Showing papers in "Alaska Law Review in 2016"

Sovereignty and Subsistence: Native Self-Government and Rights to Hunt, Fish, and Gather After ANCSA

Abstract: The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska’s unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.

The Benefits of a Benefit Corporation Statute for Alaska Native Corporations

Abstract: In the forty-five years since the Alaska Native Claims Settlement Act (ANCSA) created the Alaska Native regional corporation and village corporations, shareholders and outside observers have criticized the statute’s use of the traditional corporate form as inappropriate for Alaska Native communities. The emergence of the benefit corporation entity across the United States may soon mean that Native corporations have a promising alternative. If Alaska joins the majority of states that have adopted this new legal entity, Native corporations would have an opportunity to significantly reform their corporate governance within the existing framework of ANCSA. This Note will argue that Alaska should enact a benefit corporation statute because it would give Native corporations a legal entity that better fits their purpose. As benefit corporations, Native corporations would commit to pursuing public benefits, and their directors would be required to consider factors beyond shareholder value in making decisions.

North to the Future of the Right to Bear Arms: Analyzing the Alaska Firearms Freedom Act and Applying Firearm Localism to Alaska

Abstract: The Second Amendment has gone from a rarely invoked constitutional provision to being one of the most hotly contested and politically charged protections of the Bill of Rights. Additionally, small government advocates have used local gun laws as a mechanism for challenging broad government regulation while conversely advocating for states’ rights, with Alaska recently joining a series of states seeking to expand local gun rights by passing state laws that nullify federal gun laws. Given Supreme Court case law and as demonstrated by recent Ninth Circuit precedent, the nullification course is almost certainly ill fated. Apart from the big government/small government proxy war being waged through local gun laws, others see the local, traditional character of the right to bear arms in a particular place as the most appropriate manner for scrutinizing regulation, given Supreme Court precedent and historic tradition. Copyright © 2016 by John Hill. * J.D., Duke University School of Law, 2016. Many thanks to Professors Darrell Miller and Joseph Blocher for sparking my interest in the Second Amendment and gun regulation and for providing generous feedback and guidance throughout this process; to my colleagues at the Alaska Law Review for their diligent and thoughtful commentary; to Dorothy for her patience and encouragement; and finally, to my mother for her constant love and support, and my father for imparting to me enduring inspiration and unquenchable curiosity. ARTICLE 5 HILL (DO NOT DELETE) 6/17/2016 2:46 PM 126 ALASKA LAW REVIEW [33:1

Sustainable Development, Natural Resource Extraction, and the Arctic: The Road Ahead

Abstract: Sustainable development has emerged as an integral nexus, linking together critically important global issues including environmental stewardship and economic growth. Understanding sustainable development demands a close analysis of evolving definitions, conceptual applications, and areas of convergence and divergence within international, regional, and domestic institutions. The import and impact of hard law and soft law must additionally be explored to understand the application of sustainable development to the Arctic. This Article suggests a three-tier framework to assist the multiplicity of stakeholders with diverse equities to navigate the socio-economic and legal hurdles and potential associated with Arctic development. First, a trend has emerged where soft law is effectively “hardening.” Second, the guiding role of domestic law must not be underestimated. The final tier proposes that multidisciplinary Arctic approaches are integral and yield efficiencies. Taken together, this framework provides guidance for novices and experts alike when considering Arctic sustainable development. Copyright © 2016 by Edward Canuel. * Dr. Canuel is a U.S. Foreign Service Officer with extensive international legal experience, particularly involving comparative contract, energy, and Arctic law. Dr. Canuel was named the U.S. government’s candidate to lead the Arctic Council Secretariat in 2012, and is a member of Aarhus University’s Arctic Research Centre. He received his B.A. in Political Science and Philosophy from Boston College (summa cum laude) and his Juris Doctor from Boston College. He was awarded his Master of Laws (Business Law) from Osgoode Hall, where he was subsequently named a Visiting Scholar. Dr. Canuel received his Ph.D. in international private law from the University of Oslo. He served as the State Department Visiting Professor at the U.S. Military Academy at West Point. Dr. Canuel is an Adjunct Professor at American University and an Honorary Professor of Aarhus University. Note that this document does not express the views of the U.S. government. ARTICLE 2 CANUEL (DO NOT DELETE) 6/14/2016 2:05 PM 32 ALASKA LAW REVIEW [33:1

Issuing New Stock in ANCSA Corporations

Abstract: In the late 1960s, oil was discovered on Alaska’s North Slope. A pipeline cutting across the state was planned to pump that oil to an icefree port and get it to market. This necessitated the settlement of aboriginal land claims, which had been simmering for years.1 To that end, the Alaska Native Claims Settlement Act (ANCSA or “Act”) was signed into law on December 18, 1971.2 The Act extinguished aboriginal land claims and created thirteen regional for-profit Alaska Native corporations3 and more than 200 village corporations that generally followed historical ethnic lines.4 Alaska Native corporations (ANCs) are for-profit corporations organized under the laws of the State of Alaska.5 Under ANCSA itself, these corporations received $962.5 million, retained title to forty-four million acres of Alaska Native traditional land, and now manage this land and money for the benefit of the Alaska Native people who were made