How Alaska Native Corporations Can Better Support Alaska
Transcript Of How Alaska Native Corporations Can Better Support Alaska
American Indian Law Journal
Volume 10 Issue 1
Article 5
1-25-2022
How Alaska Native Corporations Can Better Support Alaska Native Villages
E. Barrett Ristroph Esq.
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Recommended Citation Ristroph, E. Barrett Esq. (2022) "How Alaska Native Corporations Can Better Support Alaska Native Villages," American Indian Law Journal: Vol. 10 : Iss. 1 , Article 5. Available at: https://digitalcommons.law.seattleu.edu/ailj/vol10/iss1/5
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HOW ALASKA NATIVE CORPORATIONS CAN BETTER SUPPORT ALASKA NATIVE VILLAGES
By E. Barrett Ristroph1
Table of Contents
I. Introduction..............................................................................................2 II. Origin and Nature of Alaska Native Corporations ..................................3
a. Corporate Governance .......................................................................4 b. Economic Revenue for Tribes vs. Corporations ................................5 c. Disparities Among Corporations .......................................................10 III. Role of Alaska Native Corporations and Others in Supporting Alaska Native Villages ..................................................................................................................11 a. ANCs and Their Foundations ............................................................12 b. Alaska Native Regional Non-Profit Organizations............................15 c. Economic Development Corporations ...............................................15 d. Federal, State, and Municipal Entities ...............................................16 IV. Examples of Lower 48 Native Corporations Supporting Tribes and Communities ..................................................................................................................17 V. Arguments and Recommendations for Greater Alaska Native Corporation Support for Villages ....................................................................................................18 a. Challenges Associated with Individual Dividends ............................19 b. New Problems and Declining State Revenue ....................................20 c. Covid-19 CARES Act........................................................................21 d. Opportunities Under Existing Law for Greater Investment in Villages
............................................................................................................22 i. Expanding on Scholarships....................................................23 ii. Investing in Village Infrastructure .........................................23
iii. Land Transfers .......................................................................24 iv. Endowments...........................................................................25 e. Potential for Changing Laws to Improve ANC Corporate Social Responsibility to Villages ..............................................................................................26 i. State Corporation Law Changes ............................................26 ii. Federal Law Changes.............................................................26 iii. Potential for Casinos ..............................................................28 VI. Conclusion ...............................................................................................29
1 E. Barrett Ristroph is the owner of Ristroph Law, Planning, and Research, an organization that provides services to Alaska tribes and other clients.
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ABSTRACT
Since their formation in 1971 through the Alaska Native Claims Settlement Act, Alaska Native Corporations (ANCs) have operated largely under a mission to build economic revenue for distribution to their shareholders, who are generally Alaska Native tribal members. While larger ANCs have formed foundations that provide scholarships to shareholders, ANCs generally do not have missions or entities associated with developing community infrastructure or promoting social programs in Alaska Native Villages, which are the communities of federally recognized Alaskan tribes. Until recently, the infrastructural and institutional needs of Alaska Native Villages have largely been met through State of Alaska funding, with support for housing, health, and roads from the federal government. In the current era of low oil prices, however, the State of Alaska has little funding to support villages with basic needs, let alone forthcoming and growing needs such as climate change adaptation. This article considers whether and how ANCs could fill infrastructural and institutional funding gaps for villages and provides examples of Native Corporations that take on this role in the many other American states. Further, this article offers ideas for how ANCs can better support villages and Alaska Native culture while providing for corporate revenues.
I.
INTRODUCTION
Alaska Native Villages are federally recognized tribes located in Arctic and sub-Arctic village sites that are often distant from urban centers.2 Village residents continue to practice
subsistence-based lifeways to meet their nutritional and cultural needs in a manner that is distinct from the lifeways of their urban relatives.3 At the same time, village residents have fully embraced all that the modern Western world has to offer.4 They have adapted their lifeways to
incorporate technological improvements and adjust to laws and institutions that curtail their ability to hunt.5 While villages were once mobile and self-governing, their stationary existence is
now intertwined with a patchwork quilt of laws and institutions that can help or hinder village lifeways.6 Many of these institutions—state and federal agencies and municipal governments—
2 See generally Elizaveta Barrett Ristroph, Addressing Climate Change Vulnerability in Alaska Native Villages Through Indigenous Community Knowledge, 9 SOCIO. STUDY 1, 1-5 (2019) (describing the geographic factors that hinder ANV adaptation). 3 See generally Patricia Cochran et al., Indigenous Frameworks for Observing and Responding to Climate Change in Alaska, 120 CLIMATIC CHANGE 557, 557-67 (2013) (describing the significance of traditional ANV lifeways); Philip A. Loring et al., Ways to Help and Ways to Hinder: Governance for Effective Adaptation to an Uncertain Climate, 64 ARCTIC 73, 73-88 (2011) (describing village lifeways and challenges). 4 See Ristroph, supra note 2, at 9-11. 5 E.B. Ristroph, Subsistence in Alaska Native Villages: Adapting in the Face of Climate Change and Government Regulations, Ch. 5 in Adapt And Be Adept, by Terry Anderson (Ed.) Stanford University (2021). 6 See generally, E. Barrett Ristroph, Still Melting: How Climate Change and Subsistence Laws Constrain Alaska Native Village Adaptation, 30 UNIV. COLO. NAT. RES., ENERGY, & ENV’T L. REV. 245, 245-86 (2019) (describing how current state and federal hunting and fishing laws conflict with traditional adaptation strategies ); E. Barrett Ristroph, Fulfilling Climate Justice and Government Obligations to Alaska Native Villages: What Is the Government
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are familiar to most United States residents. Others are unique to Alaska, including tribal nonprofit organizations that provide health services, economic development corporations involved in fisheries, and Alaska Native Corporations (ANCs).7
This article focuses on the latter entity and its relationship to tribal villages, suggesting ways for corporations to better support village infrastructure and programs. Part II explains the aboriginal title settlement in Alaska that led to the creation of ANCs. Upon creation, ANC goals were not fully aligned with those of the tribes, and over time, the misalignment has increased.8 Part III outlines the primary entities that have supported tribal villages over the last five decades, noting that ANC support is primarily in the form of individual shareholder dividends. While some ANCs have foundations, these foundations are mostly oriented around individual scholarships that tend to lead to jobs outside of villages.9 Part IV provides contrasting examples of Lower Forty-Eight tribal foundations that provide for a broader range of village services. Finally, Part V identifies recent existential threats to villages and provides suggestions for corporations to better support villages, as well as possible policy changes.
The article is based on desk research that I have done over the last fourteen years, a specific search of the State of Alaska database on corporations,10 and information that Alaska Native tribal members have informally shared with me during the course of my work with tribal entities from 2016 to the time of this writing.
II.
ORIGIN AND NATURE OF ALASKA NATIVE CORPORATIONS
In 1968, a game-changing discovery was made in Arctic Alaska: copious amounts of oil, enough to be commercially viable.11 The rush to develop the oil lands began. But there was
one problem: indigenous peoples still held aboriginal title to large swaths of the land needed to construct a pipeline from Arctic Alaska to a more temperate port in southern Alaska.12
Congress took the initiative to address this problem. Deciding that the system of Indian Reservations in the Lower Forty-Eight had been a failure,13 Congress enacted a new
Role? 43 WM. & MARY ENV’T L. & POL’Y REV. 501, 501-39 (2019) (outlining the key laws and institutions that affect climate change adaptation for ANVs). 7 See infra Part III. 8 See infra Part II. 9 See infra Part V(A).
10 ALASKA DEP’T COM. DATABASE, https://www.commerce.alaska.gov/cbp/main/search/entities (last visited Nov. 20, 2021). 11 U.S. DEP’T ENERGY, https://www.energy.gov/management/march-13-1968-oildiscovered-alaskas-north-slope (last visited Dec. 12, 2021). 12 About the Alaska Native Claims Settlement Act, ANCSA REG’L ASSOC., https://ancsaregional.com/about- ancsa/ (last visited Nov. 16, 2021). 13 See 43 U.S.C. §§ 1601(b), 1603, 1618(a); COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §4.07(3)(b)(ii)(C) (Nell Jessup Newton ed., 2017).
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experiment in capitalism: the Alaska Native Claims Settlement Act (ANCSA).14 Passed in 1971, the Act purported to extinguish all Alaska Native land claims and aboriginal title-based hunting and fishing rights.15 In place of reservations and treaties, ANCSA established regional and village ANCs, distributed almost one billion dollars among them, and granted them the right to select land, collectively, forty-four million acres.16 Unlike Lower Forty-Eight tribal corporations, ANCs are not required to promote the welfare of tribes or tribal communities, though they may choose to do so.17
Shares in the corporations were issued to each Native person in each Alaska Native Village.18 ANCSA allowed ANCs to choose whether Native Alaska individuals born after the date of enactment (1971) would be shareholders eligible for corporation benefits.19 Some corporations have amended their articles of incorporation to allow descendants of original shareholders to become new shareholders.20 The benefit to such an amendment is that there is a closer correlation between those who are tribal members and those who are shareholders. This avoids the disparity where an older tribal member gets a large dividend, while a younger one who has not inherited shares gets nothing. The downside is that the new, younger shareholders are increasingly residing in urban areas or outside of Alaska,21 such that they may be less vested in traditional lands and in the fate of village residents who continue to subsist on these lands.
A. Corporate Governance
The purpose of ANCSA was not to promote the wellbeing of tribes, but that of corporations.22 ANCSA effectively bifurcated corporations and traditional lands from tribal governance. Alaska Native Villages, as tribes, are completely separate entities from ANCs.
14 See 43 U.S.C. §§ 1601-1629. The Indian Law and Order Commission characterizes ANCSA as “the last gasp of Federal Termination Policy.” A ROADMAP FOR MAKING NATIVE AMERICA SAFER - REPORT TO THE PRESIDENT AND CONGRESS OF THE UNITED STATES: INDIAN LAW AND ORDER COMMISSION, http://www.aisc.ucla.edu/iloc/report/ (2015). 15 See 43 U.S.C. § 1603. 16 See 43 U.S.C. §§ 1605-1607, 1611. There are thirteen regional corporations, including the twelve endowed with land and an inactive thirteenth corporation that was established for Alaska Natives living outside of Alaska at the time of the settlement. There are currently 210 village corporations which can be found at https://dcra-cdodcced.opendata.arcgis.com/datasets/native-village-corporations/data. 17 Compare the mandate to provide for tribal welfare in the Indian Gaming Act, 25 U.S.C. §§2702, 2710(b)(2)(B)(ii), with the desire for a hasty settlement in the purpose of ANCSA, 43 U.S.C. § 1601. 18 See 43 U.S.C. § 1602(c) (defining a village as a settlement composed of 25 or more individuals. Elsewhere, the term “Alaska Native Village” refers to a federally recognized tribe in Alaska as well as the physical settlement of the village). 19 43 U.S.C. § 1606 (g)(1)(b)(i)(I). 20 See Stephen Colt, Alaska Natives and the “New Harpoon”: Economic Performance of the ANCSA Regional Corporations, 25 J. LAND RES. & ENV’T L. 155, 170 (2005). 21 Ristroph, supra note 2, at 6; Lawrence C. Hamilton et al., Climigration? Population and Climate Change in Arctic Alaska, 38 POPULATION & ENV’T 115, 133 (2016); David Driscoll et al., Assessing the Influence of Health on Rural Outmigration in Alaska, 69 INT’L J. CIRCUMPOLAR HEALTH 528, (2010); Marie E. Lowe, Contemporary Rural-Urban Migration in Alaska, 8 ALASKA J. ANTHROPOLOGY 75, 76 (2010). 22 43 U.S.C. §§ 1606(d), 1606(r), 1607(a).
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Tribal governments have no control over ANCs whatsoever. While ANCs are generally regulated by the State of Alaska, state and federal oversight for ANCs’ financial reporting is limited.23 ANCs are exempt from certain federal financial disclosure regulations, meaning that they are not held to the same financial reporting standards as publicly traded corporations.24 As such, there is extremely limited public information regarding ANC funding, debt, and leverage ratios.25 Despite concerns raised by those outside of ANCs regarding corporate management,26 there have been few shareholder derivative suits to hold directors accountable.27
Each ANC is run by elected boards of directors, which may consist of nine to twentythree members for regional corporations,28 and as few as five for village corporations.29 Each ANC has its own governance structure in terms of board elections, representation, and shareholder involvement.30 For example, some ANCs require a certain number of board members to come from the villages or areas they serve, while others do not.31 In nearly all situations, however, tribal members’ control over ANCs is limited to voting their shares (if they are shareholders) on resolutions and for board members who share their views.32
B. Economic Revenue for Tribes vs. Corporations
The legal separation between tribes and ANCs leaves Alaska Native Villages with little to no land or economic base. As a result of ANCSA, tribes lack not only land, but also jurisdiction over any lands they may own.33 The vast majority of Alaska tribes lack their own revenue base, leaving Alaska Native Villages entirely dependent on outside sources for
23 GOV’T ACCOUNTABILITY OFF., GAO-13-121, REGIONAL ALASKA NATIVE CORPORATIONS: STATUS 40 YEARS AFTER ESTABLISHMENT, AND FUTURE CONSIDERATIONS (2012) [hereinafter GAO 13-121]. 24 See 43 U.S.C. § 1625. 25 An extensive internet search yielded no information on ANC debts and leverage ratios. None of the ten ANC representatives I reached out to for more information provided it. 26 See, e.g., Michael Grabell, Rampant Fraud, Self-Dealing Alleged in Alaska Native Corporation, PROPUBLICA (Dec. 15, 2010, 2:59 P.M.), https://www.propublica.org/article/rampant-fraud-self-dealing-alleged-in-alaska-nativecorporation. 27 The suits that have taken place are often disputes as to whether one group of shareholders is getting more dividends than another. E.g., Sierra v. Goldbelt, 25 P.3d 697 (Alaska 2001); Broad v. Sealaska Corp., 85 F.3d 422 (9th Cir. 1996), Bodkin v. Cook Inlet Region, Inc., 182 P.3d 1072 (Alaska 2008); Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997). 28 See GAO 13-121, supra note 23, at 22-24. 29 E.g., Leadership, LEISNOI, INC., https://leisnoi.com/about/leadership/ (last visited Dec. 13, 2021). 30 See GAO 13-121, supra note 23, at 16. 31 See, e.g., Doyon Ltd. Articles of Incorporation (1972) Art. XI(B) (setting formula for percentage of directors that must come from the Doyon region of Alaska based on the number of shareholders located there, which is now only 20%); compare with Kuukpik Corporation Resinstated Articles of Incorporation (2019) Art. VII (no particular residency requirements, but current directors all reside in the village, see Kuukpik Board, https://www.kuukpik.com/corporation/board/) 32 See Eric C. Chaffee, Business Organizations and Tribal Self-Determination: A Critical Reexamination of the Alaska Native Claims Settlement Act, 25 ALASKA L. REV. 107, 126 (2008). 33 See 43 U.S.C. § 1603.
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funding.34 Outside of Metlakatla Reservation in southeast Alaska, there is nothing akin to reservations in the Lower Forty-Eight contiguous states.35 There are no Indian casinos in Alaska.36 Until recently, Alaska Native Villages did not even have the option of putting land into trust such that it could be treated like a reservation.37 The regulation prohibiting land into trust was repealed just prior to the Trump Administration, which put a freeze on any new applications for land into trust.38 With the Biden Administration, the option may now be open to tribes, although after ANCSA, few own land that they could put into trust.
While ANCSA left tribes without their own economic base, ANCs were expected to be self- sustaining.39 ANCSA required that regional ANCs be for-profit entities under the laws of Alaska,40 although they may express other purposes in their Articles of Incorporation.41 Village ANCs were allowed to incorporate as nonprofit institutions,42 but all chose to operate for profit.43
ANCs hold nearly ten percent of all Alaska’s lands in fee simple, while the federal and state governments own most of the rest of Alaska.44 ANC land is exempt from property taxes until it is developed.45 Despite these advantages, under the Small Business Act Section 8(a), all Alaska Native Corporations and their subsidiaries, regardless of their size or wealth, are
34 Stephen Cornell, et al., Achieving Alaska Native Self-Governance, Toward Implementation of the Alaska Natives Commission Report, 36 , http://ankn.uaf.edu/curriculum/AFN/selfgov.pdf (last visited Dec. 15, 2021); Central Council of the Tlingit & Haida Indians of Alaska, Southeast Alaska Tribal Comprehensive Economic Development Strategy (2018) 8, https://lawsdocbox.com/Immigration/88555617-Southeast-alaska-tribalcomprehensive-economic-development-strategy.html. 35 Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 524, 118 S. Ct. 948, 140 L.Ed.2d 30 (1998). 36 The Indian Gaming Act of 1986 provides a revenue source for many tribes in the contiguous states. See the discussion on casinos infra, Section IV. However, the Act requires casinos to be constructed on trust or restricted land, 25 U.S.C. §§2703, 2710, of which there is very little in Alaska after ANCSA. Also, the State of Alaska generally does not allow casino gambling. Alaska Stat. 11.66.200. 37 The previous regulation referring to land into trust, 25 C.F.R. § 151.1. indicated that, “These regulations do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members”). The D.C. District Court struck down this portion of the regulation, Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 1 (D.D.C. 2013), and the D.C. Appeals Court dismissed the case. Akiachak Native Cmty., v. United States Dep’t of Interior, 827 F.3d 100 (D.C. Cir. 2016). 38 Withdrawal of Solicitor Opinion M-37043, “Authority to Aquire Land into Trust in Alaska” Pending Review, Op. Sol. Interior No. M-37053, at 3 (June 29, 2018) 39 See 43 U.S.C. § 1601(b) (“the settlement should be accomplished rapidly . . . without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska”). 40 See 43 U.S.C. § 1606(d). 41 See GOA 13-121, supra note 23. 42 See 43 U.S.C. § 1607. 43 See Ben Summit, The Alaska Native Claims Settlement Act (ANCSA): Friend or Foe in the Struggle to Recover Alaska Native Heritage, 14 T.M. COOLEY L. REV. 607, 616 (1997). 44 See 43 U.S.C. §§ 1611, 1613, 1618. 45 43 U.S.C. 1621(f), Alaska Stat. 43.98.015.
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considered economically disadvantaged.46 Thus, ANCs automatically have preference with
federal government contracting, while tribes must demonstrate actual economic disadvantage.47 Further, ANCs and other Native entities have particular contracting advantages that non-Native entities lack.48
C. Potential Clashes between Corporations and Tribes
Corporate objectives are not always the same as those of the tribes.49 A key source of
income for most of the successful ANCs has been the development of nonrenewable natural resources on their land50 —land that Alaska Native Village residents have traditionally relied on for subsistence hunting, fishing, and trapping.51 Even the most responsible development has impacted subsistence habitat in Alaska to some degree.52 Land management decisions are
46 See P.L. 102-415, §10, 106 Stat. 2115 (Oct. 14, 1992); 43 U.S.C. §1626(e) (“(1) For all purposes of Federal law, a Native Corporation shall be considered to be a corporation owned and controlled by Natives and a minority and economically disadvantaged business enterprise if the Settlement Common Stock of the corporation and other stock of the corporation held by holders of Settlement Common Stock and by Natives and descendants of Natives, represents a majority of both the total equity of the corporation and the total voting power of the corporation for the purposes of electing directors. (2) For all purposes of Federal law, direct and indirect subsidiary corporations, joint ventures, and partnerships of a Native Corporation qualifying pursuant to paragraph (1) shall be considered to be entities owned and controlled by Natives and a minority and economically disadvantaged business enterprise if the shares of stock or other units of ownership interest in any such entity held by such Native Corporation and by the holders of its Settlement Common Stock represent a majority of both—(A)the total equity of the subsidiary corporation, joint venture, or partnership; and (B)the total voting power of the subsidiary corporation, joint venture, or partnership for the purpose of electing directors, the general partner, or principal officers.).” 47 The Small Business Act permits participants in its Section 8(a) preferential program to be owned by ‘‘an economically disadvantaged Indian Tribe (or a wholly owned business entity of such Tribe.’’ 15 U.S.C. 637(a)(4)(A)(i)(II). The term Indian Tribe includes any Alaska Native village or regional corporation. 15 U.S.C. 637(a)(13). Pursuant to the Alaska Native Claims Settlement Act, a concern which is majority owned by an Alaska Native Corporation is deemed to be both owned and controlled by Alaska Natives and an economically disadvantaged business. As such, Alaska Native Corporations do not have to establish that they are “economically disadvantaged.” Tribes are not afforded the same presumption. See Small Business Administration, Small Business Size Regulations; 8(a) Business Development/Small Disadvantaged Business Status Determinations, 76 Fed. Reg. 8233 (Feb. 11, 2011). 48 These include the ability to confer 8(a) program eligibility upon firms on multiple occasions and for an indefinite period, 5 15 U.S.C. §636(j)(11)(B)-(C); no limits on the number of firms they may own that operate in the same “primary” industry as the ANC, 13 C.F.R. §124.109(c)(3)(ii); the ability to own multiple firms that earn less than 50% of their revenue in the same “secondary” industries as the ANC, 13 C.F.R. §124.109(c)(3)(ii); and eligibility to receive additional sole-source awards even after they have received a combined total of competitive and sole-source 8(a) contracts in excess of the dollar amount set forth in 13 C.F.R. 124.519(a).
49 See E.B. Ristroph, Alaska Tribes’ Melting Subsistence Rights, 1 ARIZ. J. ENV’L L & POL’Y 47, 78 (2010); Benedict Kingsbury, First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society, 3 CHI J. INT’L L. 183, 190 (2002) (discussing the tensions created when aboriginal groups adopt or are forced to reorganize as corporations). 50 See Colt, supra note 20, at 164 (“In this ‘resource-limited’ world, the only ways for a Native group to prosper are either to discover and develop new resource extraction projects on their own lands or to usurp profits from existing markets by stealing market share from some other firm.”). 51 See generally id. (describing the traditional economy). 52 See generally, Stephen R. Braund, Impacts and Benefits of Oil and Gas Development to Barrow, Nuiqsut, Wainwright, and Atqasuk Harvesters (2009) http://www.northslope.org/assets/images/uploads/Braund%20NSB%20Oil%20and%20Gas%20Impacts%20July%2009.pdf
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made by corporate officers and directors who are not necessarily village residents. In some
cases, ANCs favor development of natural resources on corporate land, while village residents and tribal leaders oppose it.53
Regional corporations have created subsidiaries expressly for economic development purposes, adding another layer between tribal members and control of corporate activities.54
Unlike many parent ANCs that refer to culture and social wellbeing in their articles of incorporation55 and websites,56 these subsidiaries generally have nothing to do with the
(referring to displacement of caribou and bowhead, loss of fish and wildlife); Broken Promises, The Reality of Oil Development in America’s Arctic (2d. Ed.), The Wilderness Society (2009) (describing oil spills and damage from from seismic surveys undertaken in the early 1980s in the Arctic National Wildlife Refuge, which remained visible 25 years later); Elizaveta Barrett Ristroph & Martin Robards, Preparing for the Aftermath of Drilling on Arctic Lands, 8 LSU J. OF ENERGY L. & RES. 55, 195(2019) (referring to damage to the landscape from oil development that will take years, possibly centuries, to fully remediate). 53 One example is that of NANA Corporation, which owns the land on which Tech Resources’ Red Dog Mine is located and receives 25% of all profits from the mine’s operation. See Our View: Red Dog, Take Two, Zinc Mine Needs New Pit—and Vigilant Oversight, ANCHORAGE DAILY NEWS (Nov. 14, 2009) http://www.adn.com/2009/11/14/1013389/our-view-red-dog-take-two.html. In 2009, Tech Resources settled with residents of Kivalina (one of the region's villages) regarding claims that Red Dog Mine had contaminated Kivalina’s drinking water supplies See id. In February 2010, Kivalina and Point Hope tribal councils and environmental groups appealed the reissuance of Red Dog’s water discharge permits. See Elizabeth Bluemink, Alaska's Red Dog Mine Faces Uncertainty on Permit Appeal, ANCHORAGE DAILY NEWS (Feb. 18, 2010) http://www.adn.com/2010/02/17/1144100/states-red-dog-mine-faces-uncertainty.html. The appeals divided the community. At least nine organizations in the area passed resolutions in support of new permits to allow Red Dog's expansion, including the Northwest Arctic Borough, and tribal governments in Noorvik, Kiana, Kotzebue and Deering. See id. 54 For example, go to Search Corporation Database, STATE OF ALASKA, https://www.commerce.alaska.gov/cbp/main/search/entities (last visited Nov. 21, 2021), and type in the name of any of the twelve regional corporations, e.g., Doyon Ltd. You will find dozens of subsidiaries including Doyon Contracting Services, LLC, Doyon Development Corporation, and Doyon Government Contracting, Inc.
55 See, e.g., Arctic Slope Regional Corporation, Restated Articles of Incorporation at Art. III(3) (Filed Mar. 9, 1990 with the State of Alaska Department of Commerce) (including as its purposes “To engage in all activities, whether economic, cultural, social or charitable to, protect and preserve the well-being of the Natives enrolled in tile Arctic Slope Region . . .”.); Ukpeagvik Iñupiat Corporation, Amended and Restated Articles of Incorporation at Art. III(3) (Filed May 1, 2006 with the State of Alaska Department of Commerce) (including as a purpose: “To engage in all activities, whether economic, cultural, social, or charitable, to protect and preserve the well-being of the Natives residents of the Native village of Barrow, and to engage in and conduct any and all lawful activity necessary or convenient in furtherance therof.”); AHTNA, Inc., Articles of Incorporation of AHTNA, Inc. art. 3(C) (Filed June 23, 1972 with the State of Alaska Department of Commerce) (describing the company's purpose as “[t]o promote the economic, social, cultural and personal well-being of all Natives” in the region); NANA Regional Corp., Amended and Restated Articles of Incorporation of NANA Regional Corp., art. III(b) (2003), (describing its purpose as “[t]o promote the economic, social and personal well-being of the Natives of the northwest region of Alaska” and to engage in any lawful business). 56 See, e.g., About, ARCTIC SLOPE REGIONAL CORPORATION, https://www.asrc.com/about/ (last visited Nov. 21, 2021) (“Arctic Slope Regional Corporation’s mission is to actively manage our businesses, our lands and resources, our investments and our relationships to enhance Iñupiaq cultural and economic freedom – with continuity, responsibility and integrity.”); About, BERING STRAITS NATIVE CORPORATION, https://beringstraits.com/about/ (last visited Nov. 21, 2021) (“Our mission is to improve the quality of life of our people through economic development while protecting our land and preserving our culture and heritage.”); About, BRISTOL BAY NATIVE CORPORATION, https://www.bbnc.net/our-corporation/about/values-goals/ (last visited Nov. 21, 2021) (“Our Mission: Enriching our
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protection of village lifeways.57 Some shareholders may be surprised by the kinds of work subsidiary corporations are doing.58 Likewise, while some parent companies make efforts to hire their shareholders,59 subsidiaries of Native Corporations tend to have few shareholder employees.60 Over time, more corporations have moved their headquarters to Anchorage,
where nearly all Alaska-based subsidiaries are headquartered, putting physical distance
between those who depend on traditional lands for subsistence lifeways, and those who make decisions about these lands.61 Even for village corporations headquartered within the villages,
there can be political clashes if the village and corporation feel that they must compete for control over limited resources.62 Further, the need to coordinate between a separate tribe and corporation can slow down community projects.63
Native way of life.”); Who we Are, CHUGACH ALASKA CORPORATION, https://www.chugach.com/about-us/who-weare/ (last visited Nov. 21, 2021) (“Our Mission: Committed to profitability, celebration of our heritage and ownership of our lands.”); Our CIRI, CIRI. https://www.ciri.com/our-corporation/mission-vision-and-values/ (last visited Nov. 21, 2021) (“The mission of CIRI is to promote the economic and social well-being and Alaska Native heritage of our shareholders, now and into the future, through prudent stewardship of the company’s resources, while furthering self-sufficiency among CIRI shareholders and their families.”); Who We Are, DOYON LIMITED, https://www.doyon.com (last visited Nov. 21,2021) (“At Doyon, our mission is to continually enhance our position as a financially strong Native corporation in order to promote the economic and social well-being of our shareholders and future shareholders, to strengthen our Native way of life, and to protect and enhance our land and resources.”); About Us , DOYON LIMITED, https://www.doyon.com/about/ (last visited Dec. 1, 2021) (“Doyon values its relationship to the Place of our people: to our land, our culture, our way of life.”); Mission and Values, NANA, https://www.nana.com/about-us/mission-values/ (last visited Nov. 21, 2021) (“Our traditional values are the foundation of NANA.”); Our Vision, AHTNA, https://www.ahtna.com/ (last visited Nov. 21, 2021) (“Our culture unites us; our land sustains us; our people are prosperous.”). 57 See, e.g., UMIAQ, LLC (formerly UIC Oilfield Services, LLC) Articles of Organization (filed Aug. 15, 2006 with the State of Alaska Department of Commerce) available at https://www.commerce.alaska.gov/cbp/main/search/entities. 58 See, e.g. René Kladzyk, The strange business of Alaska Native corporations and ICE immigrant detention, EL PASO MATTERS (Jan. 26, 2021) https://elpasomatters.org/2021/01/26/the-strange-business-of-alaska-nativecorporations-and-ice-immigrant-detention/ (shareholders of Bering Straits Native Corporation expressed surprise that a subsidiary, Global Precision Systems, is the contractor that staffs El Paso Service Processing Center--an Immigration and Customs Enforcement facility that had one of the largest COVID-19 outbreak among detainees in the nation). 59 GAO 13-121, supra note 23 at 46 (as of 2010, the percentage of regional corporation employees that are shareholders ranged from 35 to 95%). 60 Id. (as of 2010, the percentage of regional corporation subsidiary employees that are shareholders ranged from 1 to 11%).
61 For example, Arctic Slope Regional Corporation and Utqiagvik Inupiat Corporation were previously headquartered on the North Slope, where their lands are located. These companies and many of their subsidiaries now have their principal offices in Anchorage. See About, ARCTIC SLOPE REGIONAL CORPORATION, https://www.asrc.com/about/ (last visited Nov. 21, 2021) (searching for Arctic Slope Regional Corporation). . See also, THOMAS R. BERGER, VILLAGE JOURNEY: THE REPORT OF THE ALASKA NATIVE REVIEW COMMISSION 42 (1985) (“[C]orporate executives in the urban centers may be estranged from their shareholders in the villages.”); Monroe E. Price, A Moment in History: The Alaska Native Claims Settlement Act, 8 UCLA ALASKA L. REV. 89, 95 (1979) (“The corporate executives will be those who are willing to forego subsistence activities, to place a higher priority on board meetings than on salmon fishing, and to spend time talking to lawyers and financiers and bankers rather than the people of the villages.”). 62 F. Stuart Chapin & Patricia Cochran, Community Partnership for Self Reliance and Sustainability, Final Report to Communities from the Alaska Native Science Commission and the University of Alaska Fairbanks (2014) (white paper on file with author); Cornell, et al., supra note 34 at 76. 63 Cornell et al., supra note 34 at 36.
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Volume 10 Issue 1
Article 5
1-25-2022
How Alaska Native Corporations Can Better Support Alaska Native Villages
E. Barrett Ristroph Esq.
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Recommended Citation Ristroph, E. Barrett Esq. (2022) "How Alaska Native Corporations Can Better Support Alaska Native Villages," American Indian Law Journal: Vol. 10 : Iss. 1 , Article 5. Available at: https://digitalcommons.law.seattleu.edu/ailj/vol10/iss1/5
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HOW ALASKA NATIVE CORPORATIONS CAN BETTER SUPPORT ALASKA NATIVE VILLAGES
By E. Barrett Ristroph1
Table of Contents
I. Introduction..............................................................................................2 II. Origin and Nature of Alaska Native Corporations ..................................3
a. Corporate Governance .......................................................................4 b. Economic Revenue for Tribes vs. Corporations ................................5 c. Disparities Among Corporations .......................................................10 III. Role of Alaska Native Corporations and Others in Supporting Alaska Native Villages ..................................................................................................................11 a. ANCs and Their Foundations ............................................................12 b. Alaska Native Regional Non-Profit Organizations............................15 c. Economic Development Corporations ...............................................15 d. Federal, State, and Municipal Entities ...............................................16 IV. Examples of Lower 48 Native Corporations Supporting Tribes and Communities ..................................................................................................................17 V. Arguments and Recommendations for Greater Alaska Native Corporation Support for Villages ....................................................................................................18 a. Challenges Associated with Individual Dividends ............................19 b. New Problems and Declining State Revenue ....................................20 c. Covid-19 CARES Act........................................................................21 d. Opportunities Under Existing Law for Greater Investment in Villages
............................................................................................................22 i. Expanding on Scholarships....................................................23 ii. Investing in Village Infrastructure .........................................23
iii. Land Transfers .......................................................................24 iv. Endowments...........................................................................25 e. Potential for Changing Laws to Improve ANC Corporate Social Responsibility to Villages ..............................................................................................26 i. State Corporation Law Changes ............................................26 ii. Federal Law Changes.............................................................26 iii. Potential for Casinos ..............................................................28 VI. Conclusion ...............................................................................................29
1 E. Barrett Ristroph is the owner of Ristroph Law, Planning, and Research, an organization that provides services to Alaska tribes and other clients.
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ABSTRACT
Since their formation in 1971 through the Alaska Native Claims Settlement Act, Alaska Native Corporations (ANCs) have operated largely under a mission to build economic revenue for distribution to their shareholders, who are generally Alaska Native tribal members. While larger ANCs have formed foundations that provide scholarships to shareholders, ANCs generally do not have missions or entities associated with developing community infrastructure or promoting social programs in Alaska Native Villages, which are the communities of federally recognized Alaskan tribes. Until recently, the infrastructural and institutional needs of Alaska Native Villages have largely been met through State of Alaska funding, with support for housing, health, and roads from the federal government. In the current era of low oil prices, however, the State of Alaska has little funding to support villages with basic needs, let alone forthcoming and growing needs such as climate change adaptation. This article considers whether and how ANCs could fill infrastructural and institutional funding gaps for villages and provides examples of Native Corporations that take on this role in the many other American states. Further, this article offers ideas for how ANCs can better support villages and Alaska Native culture while providing for corporate revenues.
I.
INTRODUCTION
Alaska Native Villages are federally recognized tribes located in Arctic and sub-Arctic village sites that are often distant from urban centers.2 Village residents continue to practice
subsistence-based lifeways to meet their nutritional and cultural needs in a manner that is distinct from the lifeways of their urban relatives.3 At the same time, village residents have fully embraced all that the modern Western world has to offer.4 They have adapted their lifeways to
incorporate technological improvements and adjust to laws and institutions that curtail their ability to hunt.5 While villages were once mobile and self-governing, their stationary existence is
now intertwined with a patchwork quilt of laws and institutions that can help or hinder village lifeways.6 Many of these institutions—state and federal agencies and municipal governments—
2 See generally Elizaveta Barrett Ristroph, Addressing Climate Change Vulnerability in Alaska Native Villages Through Indigenous Community Knowledge, 9 SOCIO. STUDY 1, 1-5 (2019) (describing the geographic factors that hinder ANV adaptation). 3 See generally Patricia Cochran et al., Indigenous Frameworks for Observing and Responding to Climate Change in Alaska, 120 CLIMATIC CHANGE 557, 557-67 (2013) (describing the significance of traditional ANV lifeways); Philip A. Loring et al., Ways to Help and Ways to Hinder: Governance for Effective Adaptation to an Uncertain Climate, 64 ARCTIC 73, 73-88 (2011) (describing village lifeways and challenges). 4 See Ristroph, supra note 2, at 9-11. 5 E.B. Ristroph, Subsistence in Alaska Native Villages: Adapting in the Face of Climate Change and Government Regulations, Ch. 5 in Adapt And Be Adept, by Terry Anderson (Ed.) Stanford University (2021). 6 See generally, E. Barrett Ristroph, Still Melting: How Climate Change and Subsistence Laws Constrain Alaska Native Village Adaptation, 30 UNIV. COLO. NAT. RES., ENERGY, & ENV’T L. REV. 245, 245-86 (2019) (describing how current state and federal hunting and fishing laws conflict with traditional adaptation strategies ); E. Barrett Ristroph, Fulfilling Climate Justice and Government Obligations to Alaska Native Villages: What Is the Government
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are familiar to most United States residents. Others are unique to Alaska, including tribal nonprofit organizations that provide health services, economic development corporations involved in fisheries, and Alaska Native Corporations (ANCs).7
This article focuses on the latter entity and its relationship to tribal villages, suggesting ways for corporations to better support village infrastructure and programs. Part II explains the aboriginal title settlement in Alaska that led to the creation of ANCs. Upon creation, ANC goals were not fully aligned with those of the tribes, and over time, the misalignment has increased.8 Part III outlines the primary entities that have supported tribal villages over the last five decades, noting that ANC support is primarily in the form of individual shareholder dividends. While some ANCs have foundations, these foundations are mostly oriented around individual scholarships that tend to lead to jobs outside of villages.9 Part IV provides contrasting examples of Lower Forty-Eight tribal foundations that provide for a broader range of village services. Finally, Part V identifies recent existential threats to villages and provides suggestions for corporations to better support villages, as well as possible policy changes.
The article is based on desk research that I have done over the last fourteen years, a specific search of the State of Alaska database on corporations,10 and information that Alaska Native tribal members have informally shared with me during the course of my work with tribal entities from 2016 to the time of this writing.
II.
ORIGIN AND NATURE OF ALASKA NATIVE CORPORATIONS
In 1968, a game-changing discovery was made in Arctic Alaska: copious amounts of oil, enough to be commercially viable.11 The rush to develop the oil lands began. But there was
one problem: indigenous peoples still held aboriginal title to large swaths of the land needed to construct a pipeline from Arctic Alaska to a more temperate port in southern Alaska.12
Congress took the initiative to address this problem. Deciding that the system of Indian Reservations in the Lower Forty-Eight had been a failure,13 Congress enacted a new
Role? 43 WM. & MARY ENV’T L. & POL’Y REV. 501, 501-39 (2019) (outlining the key laws and institutions that affect climate change adaptation for ANVs). 7 See infra Part III. 8 See infra Part II. 9 See infra Part V(A).
10 ALASKA DEP’T COM. DATABASE, https://www.commerce.alaska.gov/cbp/main/search/entities (last visited Nov. 20, 2021). 11 U.S. DEP’T ENERGY, https://www.energy.gov/management/march-13-1968-oildiscovered-alaskas-north-slope (last visited Dec. 12, 2021). 12 About the Alaska Native Claims Settlement Act, ANCSA REG’L ASSOC., https://ancsaregional.com/about- ancsa/ (last visited Nov. 16, 2021). 13 See 43 U.S.C. §§ 1601(b), 1603, 1618(a); COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §4.07(3)(b)(ii)(C) (Nell Jessup Newton ed., 2017).
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experiment in capitalism: the Alaska Native Claims Settlement Act (ANCSA).14 Passed in 1971, the Act purported to extinguish all Alaska Native land claims and aboriginal title-based hunting and fishing rights.15 In place of reservations and treaties, ANCSA established regional and village ANCs, distributed almost one billion dollars among them, and granted them the right to select land, collectively, forty-four million acres.16 Unlike Lower Forty-Eight tribal corporations, ANCs are not required to promote the welfare of tribes or tribal communities, though they may choose to do so.17
Shares in the corporations were issued to each Native person in each Alaska Native Village.18 ANCSA allowed ANCs to choose whether Native Alaska individuals born after the date of enactment (1971) would be shareholders eligible for corporation benefits.19 Some corporations have amended their articles of incorporation to allow descendants of original shareholders to become new shareholders.20 The benefit to such an amendment is that there is a closer correlation between those who are tribal members and those who are shareholders. This avoids the disparity where an older tribal member gets a large dividend, while a younger one who has not inherited shares gets nothing. The downside is that the new, younger shareholders are increasingly residing in urban areas or outside of Alaska,21 such that they may be less vested in traditional lands and in the fate of village residents who continue to subsist on these lands.
A. Corporate Governance
The purpose of ANCSA was not to promote the wellbeing of tribes, but that of corporations.22 ANCSA effectively bifurcated corporations and traditional lands from tribal governance. Alaska Native Villages, as tribes, are completely separate entities from ANCs.
14 See 43 U.S.C. §§ 1601-1629. The Indian Law and Order Commission characterizes ANCSA as “the last gasp of Federal Termination Policy.” A ROADMAP FOR MAKING NATIVE AMERICA SAFER - REPORT TO THE PRESIDENT AND CONGRESS OF THE UNITED STATES: INDIAN LAW AND ORDER COMMISSION, http://www.aisc.ucla.edu/iloc/report/ (2015). 15 See 43 U.S.C. § 1603. 16 See 43 U.S.C. §§ 1605-1607, 1611. There are thirteen regional corporations, including the twelve endowed with land and an inactive thirteenth corporation that was established for Alaska Natives living outside of Alaska at the time of the settlement. There are currently 210 village corporations which can be found at https://dcra-cdodcced.opendata.arcgis.com/datasets/native-village-corporations/data. 17 Compare the mandate to provide for tribal welfare in the Indian Gaming Act, 25 U.S.C. §§2702, 2710(b)(2)(B)(ii), with the desire for a hasty settlement in the purpose of ANCSA, 43 U.S.C. § 1601. 18 See 43 U.S.C. § 1602(c) (defining a village as a settlement composed of 25 or more individuals. Elsewhere, the term “Alaska Native Village” refers to a federally recognized tribe in Alaska as well as the physical settlement of the village). 19 43 U.S.C. § 1606 (g)(1)(b)(i)(I). 20 See Stephen Colt, Alaska Natives and the “New Harpoon”: Economic Performance of the ANCSA Regional Corporations, 25 J. LAND RES. & ENV’T L. 155, 170 (2005). 21 Ristroph, supra note 2, at 6; Lawrence C. Hamilton et al., Climigration? Population and Climate Change in Arctic Alaska, 38 POPULATION & ENV’T 115, 133 (2016); David Driscoll et al., Assessing the Influence of Health on Rural Outmigration in Alaska, 69 INT’L J. CIRCUMPOLAR HEALTH 528, (2010); Marie E. Lowe, Contemporary Rural-Urban Migration in Alaska, 8 ALASKA J. ANTHROPOLOGY 75, 76 (2010). 22 43 U.S.C. §§ 1606(d), 1606(r), 1607(a).
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Tribal governments have no control over ANCs whatsoever. While ANCs are generally regulated by the State of Alaska, state and federal oversight for ANCs’ financial reporting is limited.23 ANCs are exempt from certain federal financial disclosure regulations, meaning that they are not held to the same financial reporting standards as publicly traded corporations.24 As such, there is extremely limited public information regarding ANC funding, debt, and leverage ratios.25 Despite concerns raised by those outside of ANCs regarding corporate management,26 there have been few shareholder derivative suits to hold directors accountable.27
Each ANC is run by elected boards of directors, which may consist of nine to twentythree members for regional corporations,28 and as few as five for village corporations.29 Each ANC has its own governance structure in terms of board elections, representation, and shareholder involvement.30 For example, some ANCs require a certain number of board members to come from the villages or areas they serve, while others do not.31 In nearly all situations, however, tribal members’ control over ANCs is limited to voting their shares (if they are shareholders) on resolutions and for board members who share their views.32
B. Economic Revenue for Tribes vs. Corporations
The legal separation between tribes and ANCs leaves Alaska Native Villages with little to no land or economic base. As a result of ANCSA, tribes lack not only land, but also jurisdiction over any lands they may own.33 The vast majority of Alaska tribes lack their own revenue base, leaving Alaska Native Villages entirely dependent on outside sources for
23 GOV’T ACCOUNTABILITY OFF., GAO-13-121, REGIONAL ALASKA NATIVE CORPORATIONS: STATUS 40 YEARS AFTER ESTABLISHMENT, AND FUTURE CONSIDERATIONS (2012) [hereinafter GAO 13-121]. 24 See 43 U.S.C. § 1625. 25 An extensive internet search yielded no information on ANC debts and leverage ratios. None of the ten ANC representatives I reached out to for more information provided it. 26 See, e.g., Michael Grabell, Rampant Fraud, Self-Dealing Alleged in Alaska Native Corporation, PROPUBLICA (Dec. 15, 2010, 2:59 P.M.), https://www.propublica.org/article/rampant-fraud-self-dealing-alleged-in-alaska-nativecorporation. 27 The suits that have taken place are often disputes as to whether one group of shareholders is getting more dividends than another. E.g., Sierra v. Goldbelt, 25 P.3d 697 (Alaska 2001); Broad v. Sealaska Corp., 85 F.3d 422 (9th Cir. 1996), Bodkin v. Cook Inlet Region, Inc., 182 P.3d 1072 (Alaska 2008); Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997). 28 See GAO 13-121, supra note 23, at 22-24. 29 E.g., Leadership, LEISNOI, INC., https://leisnoi.com/about/leadership/ (last visited Dec. 13, 2021). 30 See GAO 13-121, supra note 23, at 16. 31 See, e.g., Doyon Ltd. Articles of Incorporation (1972) Art. XI(B) (setting formula for percentage of directors that must come from the Doyon region of Alaska based on the number of shareholders located there, which is now only 20%); compare with Kuukpik Corporation Resinstated Articles of Incorporation (2019) Art. VII (no particular residency requirements, but current directors all reside in the village, see Kuukpik Board, https://www.kuukpik.com/corporation/board/) 32 See Eric C. Chaffee, Business Organizations and Tribal Self-Determination: A Critical Reexamination of the Alaska Native Claims Settlement Act, 25 ALASKA L. REV. 107, 126 (2008). 33 See 43 U.S.C. § 1603.
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funding.34 Outside of Metlakatla Reservation in southeast Alaska, there is nothing akin to reservations in the Lower Forty-Eight contiguous states.35 There are no Indian casinos in Alaska.36 Until recently, Alaska Native Villages did not even have the option of putting land into trust such that it could be treated like a reservation.37 The regulation prohibiting land into trust was repealed just prior to the Trump Administration, which put a freeze on any new applications for land into trust.38 With the Biden Administration, the option may now be open to tribes, although after ANCSA, few own land that they could put into trust.
While ANCSA left tribes without their own economic base, ANCs were expected to be self- sustaining.39 ANCSA required that regional ANCs be for-profit entities under the laws of Alaska,40 although they may express other purposes in their Articles of Incorporation.41 Village ANCs were allowed to incorporate as nonprofit institutions,42 but all chose to operate for profit.43
ANCs hold nearly ten percent of all Alaska’s lands in fee simple, while the federal and state governments own most of the rest of Alaska.44 ANC land is exempt from property taxes until it is developed.45 Despite these advantages, under the Small Business Act Section 8(a), all Alaska Native Corporations and their subsidiaries, regardless of their size or wealth, are
34 Stephen Cornell, et al., Achieving Alaska Native Self-Governance, Toward Implementation of the Alaska Natives Commission Report, 36 , http://ankn.uaf.edu/curriculum/AFN/selfgov.pdf (last visited Dec. 15, 2021); Central Council of the Tlingit & Haida Indians of Alaska, Southeast Alaska Tribal Comprehensive Economic Development Strategy (2018) 8, https://lawsdocbox.com/Immigration/88555617-Southeast-alaska-tribalcomprehensive-economic-development-strategy.html. 35 Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 524, 118 S. Ct. 948, 140 L.Ed.2d 30 (1998). 36 The Indian Gaming Act of 1986 provides a revenue source for many tribes in the contiguous states. See the discussion on casinos infra, Section IV. However, the Act requires casinos to be constructed on trust or restricted land, 25 U.S.C. §§2703, 2710, of which there is very little in Alaska after ANCSA. Also, the State of Alaska generally does not allow casino gambling. Alaska Stat. 11.66.200. 37 The previous regulation referring to land into trust, 25 C.F.R. § 151.1. indicated that, “These regulations do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members”). The D.C. District Court struck down this portion of the regulation, Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 1 (D.D.C. 2013), and the D.C. Appeals Court dismissed the case. Akiachak Native Cmty., v. United States Dep’t of Interior, 827 F.3d 100 (D.C. Cir. 2016). 38 Withdrawal of Solicitor Opinion M-37043, “Authority to Aquire Land into Trust in Alaska” Pending Review, Op. Sol. Interior No. M-37053, at 3 (June 29, 2018) 39 See 43 U.S.C. § 1601(b) (“the settlement should be accomplished rapidly . . . without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska”). 40 See 43 U.S.C. § 1606(d). 41 See GOA 13-121, supra note 23. 42 See 43 U.S.C. § 1607. 43 See Ben Summit, The Alaska Native Claims Settlement Act (ANCSA): Friend or Foe in the Struggle to Recover Alaska Native Heritage, 14 T.M. COOLEY L. REV. 607, 616 (1997). 44 See 43 U.S.C. §§ 1611, 1613, 1618. 45 43 U.S.C. 1621(f), Alaska Stat. 43.98.015.
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considered economically disadvantaged.46 Thus, ANCs automatically have preference with
federal government contracting, while tribes must demonstrate actual economic disadvantage.47 Further, ANCs and other Native entities have particular contracting advantages that non-Native entities lack.48
C. Potential Clashes between Corporations and Tribes
Corporate objectives are not always the same as those of the tribes.49 A key source of
income for most of the successful ANCs has been the development of nonrenewable natural resources on their land50 —land that Alaska Native Village residents have traditionally relied on for subsistence hunting, fishing, and trapping.51 Even the most responsible development has impacted subsistence habitat in Alaska to some degree.52 Land management decisions are
46 See P.L. 102-415, §10, 106 Stat. 2115 (Oct. 14, 1992); 43 U.S.C. §1626(e) (“(1) For all purposes of Federal law, a Native Corporation shall be considered to be a corporation owned and controlled by Natives and a minority and economically disadvantaged business enterprise if the Settlement Common Stock of the corporation and other stock of the corporation held by holders of Settlement Common Stock and by Natives and descendants of Natives, represents a majority of both the total equity of the corporation and the total voting power of the corporation for the purposes of electing directors. (2) For all purposes of Federal law, direct and indirect subsidiary corporations, joint ventures, and partnerships of a Native Corporation qualifying pursuant to paragraph (1) shall be considered to be entities owned and controlled by Natives and a minority and economically disadvantaged business enterprise if the shares of stock or other units of ownership interest in any such entity held by such Native Corporation and by the holders of its Settlement Common Stock represent a majority of both—(A)the total equity of the subsidiary corporation, joint venture, or partnership; and (B)the total voting power of the subsidiary corporation, joint venture, or partnership for the purpose of electing directors, the general partner, or principal officers.).” 47 The Small Business Act permits participants in its Section 8(a) preferential program to be owned by ‘‘an economically disadvantaged Indian Tribe (or a wholly owned business entity of such Tribe.’’ 15 U.S.C. 637(a)(4)(A)(i)(II). The term Indian Tribe includes any Alaska Native village or regional corporation. 15 U.S.C. 637(a)(13). Pursuant to the Alaska Native Claims Settlement Act, a concern which is majority owned by an Alaska Native Corporation is deemed to be both owned and controlled by Alaska Natives and an economically disadvantaged business. As such, Alaska Native Corporations do not have to establish that they are “economically disadvantaged.” Tribes are not afforded the same presumption. See Small Business Administration, Small Business Size Regulations; 8(a) Business Development/Small Disadvantaged Business Status Determinations, 76 Fed. Reg. 8233 (Feb. 11, 2011). 48 These include the ability to confer 8(a) program eligibility upon firms on multiple occasions and for an indefinite period, 5 15 U.S.C. §636(j)(11)(B)-(C); no limits on the number of firms they may own that operate in the same “primary” industry as the ANC, 13 C.F.R. §124.109(c)(3)(ii); the ability to own multiple firms that earn less than 50% of their revenue in the same “secondary” industries as the ANC, 13 C.F.R. §124.109(c)(3)(ii); and eligibility to receive additional sole-source awards even after they have received a combined total of competitive and sole-source 8(a) contracts in excess of the dollar amount set forth in 13 C.F.R. 124.519(a).
49 See E.B. Ristroph, Alaska Tribes’ Melting Subsistence Rights, 1 ARIZ. J. ENV’L L & POL’Y 47, 78 (2010); Benedict Kingsbury, First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society, 3 CHI J. INT’L L. 183, 190 (2002) (discussing the tensions created when aboriginal groups adopt or are forced to reorganize as corporations). 50 See Colt, supra note 20, at 164 (“In this ‘resource-limited’ world, the only ways for a Native group to prosper are either to discover and develop new resource extraction projects on their own lands or to usurp profits from existing markets by stealing market share from some other firm.”). 51 See generally id. (describing the traditional economy). 52 See generally, Stephen R. Braund, Impacts and Benefits of Oil and Gas Development to Barrow, Nuiqsut, Wainwright, and Atqasuk Harvesters (2009) http://www.northslope.org/assets/images/uploads/Braund%20NSB%20Oil%20and%20Gas%20Impacts%20July%2009.pdf
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made by corporate officers and directors who are not necessarily village residents. In some
cases, ANCs favor development of natural resources on corporate land, while village residents and tribal leaders oppose it.53
Regional corporations have created subsidiaries expressly for economic development purposes, adding another layer between tribal members and control of corporate activities.54
Unlike many parent ANCs that refer to culture and social wellbeing in their articles of incorporation55 and websites,56 these subsidiaries generally have nothing to do with the
(referring to displacement of caribou and bowhead, loss of fish and wildlife); Broken Promises, The Reality of Oil Development in America’s Arctic (2d. Ed.), The Wilderness Society (2009) (describing oil spills and damage from from seismic surveys undertaken in the early 1980s in the Arctic National Wildlife Refuge, which remained visible 25 years later); Elizaveta Barrett Ristroph & Martin Robards, Preparing for the Aftermath of Drilling on Arctic Lands, 8 LSU J. OF ENERGY L. & RES. 55, 195(2019) (referring to damage to the landscape from oil development that will take years, possibly centuries, to fully remediate). 53 One example is that of NANA Corporation, which owns the land on which Tech Resources’ Red Dog Mine is located and receives 25% of all profits from the mine’s operation. See Our View: Red Dog, Take Two, Zinc Mine Needs New Pit—and Vigilant Oversight, ANCHORAGE DAILY NEWS (Nov. 14, 2009) http://www.adn.com/2009/11/14/1013389/our-view-red-dog-take-two.html. In 2009, Tech Resources settled with residents of Kivalina (one of the region's villages) regarding claims that Red Dog Mine had contaminated Kivalina’s drinking water supplies See id. In February 2010, Kivalina and Point Hope tribal councils and environmental groups appealed the reissuance of Red Dog’s water discharge permits. See Elizabeth Bluemink, Alaska's Red Dog Mine Faces Uncertainty on Permit Appeal, ANCHORAGE DAILY NEWS (Feb. 18, 2010) http://www.adn.com/2010/02/17/1144100/states-red-dog-mine-faces-uncertainty.html. The appeals divided the community. At least nine organizations in the area passed resolutions in support of new permits to allow Red Dog's expansion, including the Northwest Arctic Borough, and tribal governments in Noorvik, Kiana, Kotzebue and Deering. See id. 54 For example, go to Search Corporation Database, STATE OF ALASKA, https://www.commerce.alaska.gov/cbp/main/search/entities (last visited Nov. 21, 2021), and type in the name of any of the twelve regional corporations, e.g., Doyon Ltd. You will find dozens of subsidiaries including Doyon Contracting Services, LLC, Doyon Development Corporation, and Doyon Government Contracting, Inc.
55 See, e.g., Arctic Slope Regional Corporation, Restated Articles of Incorporation at Art. III(3) (Filed Mar. 9, 1990 with the State of Alaska Department of Commerce) (including as its purposes “To engage in all activities, whether economic, cultural, social or charitable to, protect and preserve the well-being of the Natives enrolled in tile Arctic Slope Region . . .”.); Ukpeagvik Iñupiat Corporation, Amended and Restated Articles of Incorporation at Art. III(3) (Filed May 1, 2006 with the State of Alaska Department of Commerce) (including as a purpose: “To engage in all activities, whether economic, cultural, social, or charitable, to protect and preserve the well-being of the Natives residents of the Native village of Barrow, and to engage in and conduct any and all lawful activity necessary or convenient in furtherance therof.”); AHTNA, Inc., Articles of Incorporation of AHTNA, Inc. art. 3(C) (Filed June 23, 1972 with the State of Alaska Department of Commerce) (describing the company's purpose as “[t]o promote the economic, social, cultural and personal well-being of all Natives” in the region); NANA Regional Corp., Amended and Restated Articles of Incorporation of NANA Regional Corp., art. III(b) (2003), (describing its purpose as “[t]o promote the economic, social and personal well-being of the Natives of the northwest region of Alaska” and to engage in any lawful business). 56 See, e.g., About, ARCTIC SLOPE REGIONAL CORPORATION, https://www.asrc.com/about/ (last visited Nov. 21, 2021) (“Arctic Slope Regional Corporation’s mission is to actively manage our businesses, our lands and resources, our investments and our relationships to enhance Iñupiaq cultural and economic freedom – with continuity, responsibility and integrity.”); About, BERING STRAITS NATIVE CORPORATION, https://beringstraits.com/about/ (last visited Nov. 21, 2021) (“Our mission is to improve the quality of life of our people through economic development while protecting our land and preserving our culture and heritage.”); About, BRISTOL BAY NATIVE CORPORATION, https://www.bbnc.net/our-corporation/about/values-goals/ (last visited Nov. 21, 2021) (“Our Mission: Enriching our
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protection of village lifeways.57 Some shareholders may be surprised by the kinds of work subsidiary corporations are doing.58 Likewise, while some parent companies make efforts to hire their shareholders,59 subsidiaries of Native Corporations tend to have few shareholder employees.60 Over time, more corporations have moved their headquarters to Anchorage,
where nearly all Alaska-based subsidiaries are headquartered, putting physical distance
between those who depend on traditional lands for subsistence lifeways, and those who make decisions about these lands.61 Even for village corporations headquartered within the villages,
there can be political clashes if the village and corporation feel that they must compete for control over limited resources.62 Further, the need to coordinate between a separate tribe and corporation can slow down community projects.63
Native way of life.”); Who we Are, CHUGACH ALASKA CORPORATION, https://www.chugach.com/about-us/who-weare/ (last visited Nov. 21, 2021) (“Our Mission: Committed to profitability, celebration of our heritage and ownership of our lands.”); Our CIRI, CIRI. https://www.ciri.com/our-corporation/mission-vision-and-values/ (last visited Nov. 21, 2021) (“The mission of CIRI is to promote the economic and social well-being and Alaska Native heritage of our shareholders, now and into the future, through prudent stewardship of the company’s resources, while furthering self-sufficiency among CIRI shareholders and their families.”); Who We Are, DOYON LIMITED, https://www.doyon.com (last visited Nov. 21,2021) (“At Doyon, our mission is to continually enhance our position as a financially strong Native corporation in order to promote the economic and social well-being of our shareholders and future shareholders, to strengthen our Native way of life, and to protect and enhance our land and resources.”); About Us , DOYON LIMITED, https://www.doyon.com/about/ (last visited Dec. 1, 2021) (“Doyon values its relationship to the Place of our people: to our land, our culture, our way of life.”); Mission and Values, NANA, https://www.nana.com/about-us/mission-values/ (last visited Nov. 21, 2021) (“Our traditional values are the foundation of NANA.”); Our Vision, AHTNA, https://www.ahtna.com/ (last visited Nov. 21, 2021) (“Our culture unites us; our land sustains us; our people are prosperous.”). 57 See, e.g., UMIAQ, LLC (formerly UIC Oilfield Services, LLC) Articles of Organization (filed Aug. 15, 2006 with the State of Alaska Department of Commerce) available at https://www.commerce.alaska.gov/cbp/main/search/entities. 58 See, e.g. René Kladzyk, The strange business of Alaska Native corporations and ICE immigrant detention, EL PASO MATTERS (Jan. 26, 2021) https://elpasomatters.org/2021/01/26/the-strange-business-of-alaska-nativecorporations-and-ice-immigrant-detention/ (shareholders of Bering Straits Native Corporation expressed surprise that a subsidiary, Global Precision Systems, is the contractor that staffs El Paso Service Processing Center--an Immigration and Customs Enforcement facility that had one of the largest COVID-19 outbreak among detainees in the nation). 59 GAO 13-121, supra note 23 at 46 (as of 2010, the percentage of regional corporation employees that are shareholders ranged from 35 to 95%). 60 Id. (as of 2010, the percentage of regional corporation subsidiary employees that are shareholders ranged from 1 to 11%).
61 For example, Arctic Slope Regional Corporation and Utqiagvik Inupiat Corporation were previously headquartered on the North Slope, where their lands are located. These companies and many of their subsidiaries now have their principal offices in Anchorage. See About, ARCTIC SLOPE REGIONAL CORPORATION, https://www.asrc.com/about/ (last visited Nov. 21, 2021) (searching for Arctic Slope Regional Corporation). . See also, THOMAS R. BERGER, VILLAGE JOURNEY: THE REPORT OF THE ALASKA NATIVE REVIEW COMMISSION 42 (1985) (“[C]orporate executives in the urban centers may be estranged from their shareholders in the villages.”); Monroe E. Price, A Moment in History: The Alaska Native Claims Settlement Act, 8 UCLA ALASKA L. REV. 89, 95 (1979) (“The corporate executives will be those who are willing to forego subsistence activities, to place a higher priority on board meetings than on salmon fishing, and to spend time talking to lawyers and financiers and bankers rather than the people of the villages.”). 62 F. Stuart Chapin & Patricia Cochran, Community Partnership for Self Reliance and Sustainability, Final Report to Communities from the Alaska Native Science Commission and the University of Alaska Fairbanks (2014) (white paper on file with author); Cornell, et al., supra note 34 at 76. 63 Cornell et al., supra note 34 at 36.
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