Lester, Geoffrey S. --- "Review - Village Journey: The Report of the Alaska Native Review Commission" [1986] AboriginalLawB 25; (1986) 1(19) Aboriginal Law Bulletin 10

• Review-Village Journey: The Report Of The Alaska Native Review Commission

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Review -

Village Journey:
The Report of the Alaska Native Review Commission

by Thomas R. Berger

New York: Hill and Wang (1985), US $16.95

Reviewed by Geoffrey S. Lester

In an essay published in 1971, Professor Kenneth Lysyk, a prominent Canadian academic lawyer, critically examined the then-current proposals for settling native claims In Alaska. The various bills contained provisions for corporations, native administration of corporate assets, and the allocation and selection and vesting of land. He concluded that 'The examples provided by the Alaska settlement proposals, and by the subsequent outcome of the Alaska native situation offer a unique opportunity for observers to explore the possibility of instituting these concepts in the Canadian north'.[1]

The Nixon Alaska Native Claims Settlement Act (ANCSA) became law in 1971. Put broadly, it offered compensation to Alaska Natives of $962.5 million, and title to 44 million acres (about 10% of the Alaska territory), and established native corporations to manage the land as owners. The corporations were supposed to be the main engines of economic development, so as to generate income and keep the natives off Skid Row.

Widely hailed in America as a radical departure from previous policies applied in the Lower 48 States that were regarded as a failure, it was nevertheless practically universally denounced by the Canadian Inuit and Indians.

The principal objection taken by the Canadians was simply that ANSCA did nothing in terms to protect the Aboriginal economy, and therefore culture and view of the world. Of course, from the American point of view, it was not meant to, and to that extent it has achieved - or I should say has the terrible potential of achieving-its major aim: the integration of the Alaska Natives into the American way of life.

The Canadian natives perceived at a glance its fundamentally assimilationist assumptions. Presumably, from the Alaska Federation of Natives' point of view, it was better than nothing.

Then in July 1983, the Inuit Circumpolar Conference and the World Council of Indigenous Peoples appointed Mr Justice Thomas R. Berger, formerly of the Supreme Court of. British Columbia, to review ANCSA.

Tom Berger is an old hand at the native business; Chief Counsel and architect of the strategy leading to the split Supreme Court decision in Calder v Attorney-General of British Columbia (1973)[2]. which forced an about-face in Federal policy on Aboriginal rights by the Trudeau Government in 1973; Commissioner of an Inquiry into the social, economic and environmental impact of a pipeline in the Canadian North, in the course of which he displayed a wonderful gift for manipulating the media and captured the imagination of an entire nation; factually, the long-term significance of this commission, I think, will be that it changed the face of public enquiries in Canada; Berger insisted that the opponents to the pipeline (the natives and the environmentalists) be funded so that they could present better briefs. The same shock to the system is badly needed here. He was eventually pressured off the Supreme Court bench for his defiance of judicial behavioural standards by publicly supporting the natives after their betrayal by Trudeau over Section 34 in the new constitution. These are impressive credentials.

The result of his review is called Village Journey: The Report of the Alaska Native Review Commission. This work is a searing indictment of ANSCA from the native point of view, and is plainly addressed to a white liberal audience in the Lower 48.

Berger identifies two fundamental problems (there are many more: greedy lawyers ripping off natives being one of the big ones). First, the village corporations are in imminent danger of losing their land once the 20 year tax holiday ends in 1991. Also, native shareholders in the corporation can freely sell their shares after 1991, and thus control may well pass into other (white) hands. Second, there is no governmental instrumentality which is prepared to defend the native subsistence economy and access to their resources against the hostile demands of white people who similarly seek access to such resources, not to also mention those who are anxious to develop the non-renewable resource economy.

The two problems are connected, because of the fundamental philosophy of the Act: 'Congress wanted to bring the Alaska Natives into the main stream of American life ... Although Congress recognised the necessity of a land base for the native subsistence economy, it nevertheless insisted that the economic development of the land must become the principal means of improving social and economic conditions in village Alaska. By this means, Congress intended native people to go into business and to participate actively in the economic development of Alaska'( pp 20-21).

Hence the land is owned by the village corporation. The native interest is that of a mere shareholder, whose interest will be transmissible after 1991.

But the Act 'was based on false assumptions about the economy of village Alaska and false assumptions about the economy as a whole' (p 45). Put simply, the economic opportunities in Alaska in which Natives can participate without abandoning their own sense of identity are minimal. Alaska lives on oil or Government expenditures. Native lands cannot both be retained as a subsistence base and at the same time generate revenue. One must ultimately be done at the expense of the other; or at the very least, measures must be taken to protect the subsistence economy.

Chapter Two therefore is a paean to this subsistence economy. There are no hard facts offered as to the viability of that economy on its own, let alone of the subsistence way of life without the support of other forms of income, through wages, or, in particular, food stamps and other forms of State relief.

The development ethic that inspires the native corporations therefore is of its nature pitted against the subsistence ethic; hence the need for drastic overhaul of the land owing provisions of the Act.

The solution offered is Native Tribal Government. This achieves two goals. First, because Tribal Governments under American law have certain advantages of sovereign immunity, there is little danger of the land being lost through forfeiture, for example, through unpaid taxes. Second, Tribal Government could legislate to protect the subsistence economy.

How can a liberal democratic state tolerate racially defined institutions, especially in the face of the melting pot theory of America?. Berger justifies these proposals on two main grounds. Both grounds rest essentially on legal propositions, as distinct from policy considerations (such as the inherent value to the human spirit that might be gained through having a mix of different cultures within the one nation).

First is the legal tradition pioneered by John Marshall that the natives are 'domestic dependent nations'.[3] This concept underpinned US policy for years. and in Chapter Five he traces the zig-zags in that policy, and argues it should be revived in Alaska, as it has been recently in some instances in the Lower 48.

Second, unlike, for example the Blacks and other immigrants into America, only natives have Aboriginal rights. Berger claims these are legally enforceable rights to the land. No convincing justification has ever been found for seizing native lands (pp 138, 156). Anyhow, all American immigrants have done their level best to integrate and participate in the American Dream of individual, as distinct from collective, chances to get rich (p 156).

But can Native Governments be trusted? Berger claims that 'it is unreasonable ..: to assume that the tribal government will discriminate against non-members, and unreasonable for the state to require tribes to dismantle traditional governmentst o ensure non-members a role in all local decisions as a condition for the receipt of funding from state programmes. (p 152).

After all, as Berger argued earlier, 'Self-governing native peoples have protected and maintained the fish and wildlife resources of Alaska for thousands of years. The unproductive expansion of regulatory processes now threatens, rather than protects, subsistence. Alaska Natives believe they can best protect their interest in subsistence activities through their own governments. Alaska Natives have always used a variety of customary laws and policies to protect subsistence and wildlife habitat. Ultimately, they seek recognition of their tribal rights to wildlife resources and the right to regulate their own subsistence activities' (pp 71-72).

Can Tribal Governments be trusted not to discriminate, therefore, because they are inherently virtuous? Given that the whole point of transferring legislative power to Tribal Governments is to enable them to protect the native interest against the non-native development interest, why should Tribal Governments not deliberately discriminate in order to protect that interest?

Although Berger does not ask this question, he anticipates it by claiming that 'The state can always enforce compliance (with a policy of non-discrimination) by cutting off aid. The threat of such action should be sufficient to prevent abuses' (p 152).

So much, then. for Tribal Governments. being sovereign. They can be bent to the majority will after all. Clearly, there is no danger to the development of Alaska's non-renewable resource economy if Tribal Governments can be whipped into shape. But if Tribal Governments can be manipulated in that fashion, who is the boss?

One of the major concerns expressed by witnesses to the hearings (interestingly, it seems that practically no-one spoke up in defence of ANSCA) is that children born after 1971 have no entitlement per se to participate in the settlement. This concern over after-born children is quite obviously profound and undoubtedly sincere.

But it a land claims settlement is to be limited to a defined set of beneficiaries (whatever the criteria for participation) some people must be excluded. It it is not to be a once-and-for-all settlement. but contains mechanisms for an on-going entitlement to benefits in perpetuity, a profound policy question arises. If beneficiaries are to be recruited in perpetuity, how do the natives answer the allegation that an aristocracy is being created?

Of course, from the point of view of the majority society, so long as the natives are given nothing worth having, there is nothing to worry about. This is why claims to sovereignty and legislative power are such a threat. But the principle, it seems to me, must be addressed by the natives and their supporters.

Be that as it may, is America willing to acknowledge the persistence of native culture and native values in Alaska, the legitimacy of distinct modes' of native land holding and native Governance as essential expressions of native culture and values? Does America's cultural pluralism extend to all of its indigenous people? These questions underlie the riddles of ANSCA. and they will not go away. The stand that Alaskans and other Americans adopt will be based on their own deepest convictions about their nation (p 157).

Berger seems to beg a crucial question that is at the heart of any land claims settlement proposal or proposals for reform. How will people earn their living in a way that is compatible with their own cultural and moral aspirations? Simply to point to the subsistence economy and Tribal Governments. without explaining how that economy ought to be maintained or shored up, and how Tribal Governments could generate economic activity that is compatible with the defence of the subsistence economy, seems to me to take the argument no further.

But even If Berger assumes rather than convincingly proves that the subsistence economy is viable. his overall point is still that a land claims settlement must be a vehicle for a self-determining people in the end. Aboriginal people can reasonably argue that. If self-determination means anything, it means the right to make a mess of things. It need only be added that if they mess up and finish on the welfare queues. the dominant society will make them pay a high price for their rhetoric. You are on your own, baby.

Despite its unproven assumptions about the subsistence economy and its woolly thinking on how Tribal Governments, can be justified within the American liberal' tradition and present political institutions. Village Journey is a passionate and detailed analysis of a land claims settlement that lacks legitimacy. It lacks legitimacy not because it is fundamentally flawed in its philosophy, but because ANSCA was Imposed on the natives, and does not take into account their legitimate aspirations to determine their own futures. The natives may well decide to put a premium on individual rights at the expense of collective rights. In impliedly sentencing the subsistence economy to death, ANSCA closes options rather than expands them. The beneficiaries cannot make a choice.

What are the lessons for Australia? Can Berger's view be implemented here? I fear not.

First, the notion of a Tribal Government that is somehow quasi-sovereign runs counter to the Westminster doctrine of ministerial responsibility. This Is not a problem in a country with a republican tradition. Second. it membership of the government Is limited to natives. those excluded may well object that they should not be taxed on the principle of no taxation without representation. Tax relief may well have to be granted to non-beneficiaries who reside and work within the territorial limits of a native jurisdiction.

Third, there maybe constitutional difficulties if a Charter of Rights is entrenched in the Constitution. It is easy to overstate this point. but it is time it was thought about seriously.

The Inuit Circumpolar Conference and the World Council of Indigenous Peoples are to be congratulated on appointing fudge Berger to review NASCA. His book is an eloquent plea by an outstanding advocate at the bar for American public opinion. As a clear statement of his faith in liberal values. Berger sums up by stating: 'The injustices continue, and they are within the power of remedy ... The problems are now manifest; the means of resolving them are ready at hand. All that is needed is will, good will' (pp 182-183).

It remains to be seen whether Berger's appeal to good will will be heard. The problem is that however much Aborigines might love the land, I think that arguably White people love the land more, if what they will do to get hold of it and keep it is any guide.

In the 15 years that have elapsed between Ken Lysyk's hopeful optimism and Tom Berger's conclusion that optimism has not been fulfilled, perhaps people might have learned that one cannot kill a culture by pretending it does not exist. I do not think they have, but I am willing to be proved wrong. Berger's analysis shows how things should not be done. Whether he has persuasively explained how things should be done remains an open question. Village Journey should be read by all people interested in Aboriginal rights in this country. even if only to formulate the right questions.

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[1] Kenneth Lysyk. "The Alaska Settlement". in Peter A. Cumming and Neil H. Mickenbeg. Native Rights In Canada, 2nd ed. (Toronot: Indian-Eskimo Association of Canada in association with General Publishing Co. Ltd. 1971). p. 272.

[2] (1973) SCR 313: 34 DLR (3d) 145.

[3] Cherokee Nation v Georgia 30 US [1831] USSC 6; (5 Peters) 1(1831): Worcester v Georgia 31 US [1832] USSC 39; (6 Peters) 515.