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(43 O.S.C. § 1601, et seq.) differed significantly from the claims of native Hawaiians. 195/

Non-Indian settlement of the western United States followed a three-step pattern. First, the land was acquired by treaty from the sovereign entity—France, Spain, Mexico, Great Britain, or Russia— claiming title. Second, some lands in the acquired territory were set aside for Indians. Third, the public land laws, which allowed people to enter into the acquired territories and settle thereon, were extended to all federally-owned land in the acquired territory, except land that had been specifically reserved for governmental purposes, such as Indian reservations.

In Alaska, however, only the first and third steps occurred. 196/ After the United States acquired title from Russia, the public land laws were extended to Alaska without there having been any effort by the United States to define Alaska Native rights to use land or set aside land for their exclusive use. However, as Congress extended the various public land laws to Alaska, it provided that nothing in the laws should be deemed to affect Alaska Native occupancy. In general, this meant that land actually occupied by an Alaska Native or a native group or village could not be acquired by a non-native under the public land laws. However, it has generally been held that a non-native could acquire title to vacant land that was subject to native "aboriginal" occupancy, rather than actual occupancy. 197/

When Alaska became a state, Congress authorized the State to select vast areas of federal land for its own use. 198/ The selection of land had to be approved by the Secretary of the Interior; however, he could give "tentative approval" to the State selection pending his final approval and issuance of a patent. Once the State had received "tentative approval," it could "conditionally" lease or sell the land to third parties. Another provision of the Statehood Act, however, required the State of Alaska to disclaim any interest in land that "may be held by any Indians, Eskimos, or Aleuts." Further, the Statehood Act provided that none of its provisions could be construed to "recognize, deny, enlarge, or impair any claim against the United States" [emphasis added] and that the resolution of any native land rights would be left to future legislation by Congress.

The Statehood Act thus had an irreconcilable conflict. Unlike the acts that extended the public land laws to Alaska but protected the lands natives actually occupied, the Statehood Act prohibited the State from selecting any lands that "might" be held by natives or even claimed by natives. Congress probably intended to protect lands that the natives used and occupied in an aboriginal manner from State selection, but no one was sure what those lands were or the extent of any native claim. The State did select some lands and received tentative approvals from the Secretary. The State then leased these lands to oil companies, which discovered oil on them. When oil was discovered, the native groups claimed aboriginal title to the land. The Secretary of the Interior then issued a land freeze preventing the State from receiving further tentative approvals of i t s selections pending resolution of the native claims. Moreover, Congress, in the Statehood Act, had reserved for itself the exclusive authority of defining native land rights through future legislation, so resolution by lawsuit was difficult. This impasse led to the enactment of the Alaska Native Claims Settlement Act which, for the first time in Alaska, defined the land rights of the natives and allowed the State to select its land from the federal lands not set aside for the natives by the Settlement Act.


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