Essay # 1 - Conservation Controversy

Although conservation easement sales provide income to native allottess and native corporations, easement sales are not a good idea because exclusive use and ownership is lost, it opens the door to regulatory changes, and prohibits economic opportunity and growth.

What is a conservation easement? A conservation easement, by American standards, is an encumbrance or claims against a property that impacts transferability and usage rights. A conservation easement creates a legally enforceable land preservation agreement between a landowner and a governmental agency or a land trust organization. Land restrictions consist of non-development, such as, commercial and industrial uses, and certain types of activities agreed upon by the parties involved. Basically, conservation easement purchases developmental rights and such agreements can lead to the land sale of property to a government or trust to protect land preservation.

Alaska Native allotment owner’s either own land by application or through inheritance. The Alaska Native Allotment Act of May 17, 1906, (derived from the General Allotment Act or Dawes Act of 1887) permitted Alaska Natives to apply for up to 160 acres of non-mineral land. The differences found in the Dawes Act and Alaska Native Allotment Act are not totally clear, however, 80 acres of agricultural land or 160 acres of grazing land was allotted under the Dawes Act, and under the Alaska Native Allotment Act, use and occupancy had to be proven in order to be eligible for up to 160 acres of land. Also, land selection differed; Indians in the lower 48 States chose lands from an established reservation while Alaska Natives chose land by unreserved or unappropriated land.

On December 18, 1971, the Alaska Native Claims Settlement Act, designed to settle the aboriginal claims of Alaska natives that created regional and village corporation boundaries, repealed the Alaska Native Allotment Act, but did protect the allotment applications that were filed and pended determination of entitlement that date. At that time, there were approximately 10,000 applications filed for about 16,000 parcels. Not all applications were in one parcel, some chose different areas of use and occupancy by selecting specific use areas totaling up to 160 acres. To be eligible applicants you had to prove use and occupancy that integrated subsistence use and resource gathering such as berry picking, fishing, hunting, dry wood, or improvements such as a cabin, fish rack, tent frame, and other traditional uses. Today, Alaska Native allotments are still pending application approval and certification processes through the Bureau of Land Management and the Department of Interior.

On a separate note, in 1998, Congress passed the Alaska Veterans Allotment Act and permitted Vietnam veterans who missed the opportunity to apply for native allotments under the 1906 Dawes Act to do so.

The Alaska Land Transfer Acceleration Act of 2004 was signed into law to represent an attempt to address conflicting land claims by the State of Alaska, Alaska Native Corporations, and Native allottees. The State of Alaska was allowed to select approximately 104 million acres of unclaimed and unreserved federal land under the Statehood Act. With the selection, however, came a right disclaimed by Alaska natives that native lands are not available under the Statehood Act hence the Alaska Native Claims Settlement Act of 1971 after a Ninth Circuit Court ruled in favor of Alaska natives in 1969. The complicated land claims by these distinct parties remain unsettled. With the passage of the Alaska Land Transfer Acceleration Act, deadlines were set to finally address entitlement selections and conveyances without further delay. Also, a report to Congress is required in three years from the Department of Interior on the progress and any recommendations needed to complete these cumbersome lessons.

Because exclusive use and ownership is so prevalent throughout the history of claims made by American Indians and Alaska Natives, why would Alaska Native allottees and Alaska Native corporations agree to conservation easements? Do the lessons go unnoticed in the outcome of the Dawes Act, where the remaining 78 of 156 million acres of reservation tribal lands in the lower States, after individual Indians were allocated their tracts, were declared surplus and sold by the U.S. Government? Or, the unheard protest by the American Indians that allotment of land would destroy ancient Indian systems of common ownership? The breaking down of exclusive use and ownership including Native culture continues today through conservation easements by controlling land and enforcing laws applicable to these agreements. The use can also be lost in some instances where conservation easements may confer no use of land either by the holder or public. Alternatively, some conservation easements do address specific uses by the public for enjoyment of sport fishing and recreational uses. Who support these efforts and fund conservation easements in Alaska?

Further, economic development is prohibited on identified lands once these agreements are in place and causes a loss of power to become self sufficient by enterprise whether native allottee or corporate shareholder. Ultimately, a source of economic opportunity and growth is lost to future generations and given into the hands of opportunists’ interests without competition. Rights to use; develop; provide sustenance, are now at the helm of those parties whose surface intentions are to protect land in perpetuity.

As a Native allottee, not fully understanding my own privatization land rights fell into the belief that I was saving myself from degradation, destruction, and ecological disaster of my own inheritance. I agreed first to a conservation agreement, but it led to a negotiated sale of 80 acres of land by acting in humility. What land will my children use for their homes?
As a corporate shareholder, our village corporate land is under a conservation agreement that encompasses 23,753 acres of prime property within the largest State Park in the Nation, namely, the Wood Tikchik State Park, and includes 26 miles of river and lake shore. More importantly, future economic development opportunity and growth is lost that will never be seen by others, but merely left in the hearts of those that had a vision and dream of their Native lands.