by Franklin H. James,
October 20, 2004
I would like to answer the letter wrote by Stan Hewitt to the
Editor, Daily News Monday, Oct. 18, 2004. First I would like
to say he was way off base and that he showed he was racist in
First of all, subsistence is a basic human right; and, the Alaska
Native People gathered in Anchorage and have adopted this as
a key principle in our battle to maintain the rights we are presently
free to exercise. I believe that we have adequate legal basis
for lawsuits and for the claim that our rights are indeed protected.
They are protected by common law, tribal law, State law, federal
law and international law. It is important to recognize and remember
that these rights are NOT granted by any government, they are
inherent, basic, sacred, fundamental human rights. You are born
with them; and, according to the highest laws of the land; these
rights are protected. Yet, we see the constant and continuing
erosion of these rights are restrictions are placed upon the
people supposedly having the right to them. The governments involved
are managing people, not resources. There is no officially recognized
or declared shortage or any resource, yet the subsistence user
smallest user group, is blamed for the problems and a huge bureaucracy
and legal argument has arisen over it. While this dispute plays
out in court, it is the indigenous people declared "non-rural"
(whatever that is!) who suffer. Additionally, in order to go
and gather food it is sometimes necessary to have your attorney,
your surveyor and your biologist with you in order to make sure
you are within regulations, in the proper place and not violating
ever shifting scientific principles base upon knowledge which
is not yet complete.
It may be helpful to define a basic human right. A basic human
right is one that, if infringed upon, will prevent persons from
exercising other rights. Henry Shue, in his book BASIC RIGHTS,
says, "Basic rights, then, are everyone's minimum reasonable
demands upon the rest of humanity. They are the rational basis
for justified demands the denial of which no self-respecting
person can reasonably expected to accept."
We, the Tlingit, the Haida and the Tsimpsean predate the arrival
of the colonialists who now occupy our territories by thousands
upon thousands of years. Indeed, our creation stories maintain
that we emanated from here; we are not migrants over any land
bridge. There are no stories in any tribe in the Americas that
includes any mention of any of us coming from elsewhere. There
is no question that we have practiced our lifestyles; and that
usage of all resources should, and must, be considered customary
and traditional. Our rights were intact upon the arrival of the
white man. No one was going hungry and no ecological devastation
was allowed under our management regimes. No tribe or groups
has entered into any treaty with any eligible entity. That means
we have legally never surrendered any of our rights. Our rights
and titles remain legally intact.
The Treaty of Cession states:
The inhabitants of the ceded territory, according to their choice,
reserving their natural allegiance, may return to Russia within
three years; but if they should prefer to remain in the ceded
territory, they, with the exception of uncivilized native tribes,
shall be admitted to the enjoyment of all the rights, advantages,
and immunities of citizens of the United States, and shall be
maintained and protected in the free enjoyment of their liberty,
property, and religion. THE UNCIVILIZED TRIBES WILL BE SUBJECT
TO SUCH LAWS AND REGULATIONS AS THE UNITED STATES MAY, FROM TIME
TO TIME, ADOPT IN REGARD TO ABORIGINAL TRIBES OF THAT COUNTRY.
What is not included herein
is the legal doctrine which surrounds what are termed prior valid
existing rights. The United States of America, Russia and the
Treaty of Cession and the subsequent creation of the State of
Alaska did not take place in a vacuum. That is to say that there
was, and is, international law which is applicable. It is not
as if the Czar of Russia and the US Secretary of State (representing
the President) have the right to subject free and independent
people to abject slavery and treat them as chattel to be used
as desired under a purported land cession. We have prior valid
existing rights vis a vis Russia, the United States of America,
the Territory of Alaska and the State of Alaska. We precede all
Additionally, it is preposterous to assume that Russia had conquered
and occupied Alaska. The truth of the matter is that they hid
inside their forts; rarely venturing out. Although they did conquer
and enslave the Aleut, they did not do so to the Tlingit or the
Haida. What actually happened is that there was diplomatic subterfuge,
fraud ratified by the great powers of the day. In the development
of the Treaty of Cession of 1867 the British became concerned
that they would have no Pacific coastal presence, essential to
the empire. So, in order to get the British to accept the treaty,
Russia and the United States of America agreed to allow the creation
of British Columbia (Rupert's Land and Columbia were combined)
in 1871; and, as Henry Kissinger records in his book DIPLOMACY,
territory was acquired not through conquest by by diplomacy.
Simon Cameron bribed Congress with its own appropriation; and,
the Senate met at Midnight to provide the necessary advice and
consent for its ratification and proclamation by the President.
Not only that, there were, at the time 22 various means by which
nation-states could acquire territory which were legal under
recognized international law. The United States of America, in
its purported purchase of Alaska, did not meet any of them. Not
one. There are, in fact, books which document exactly and precisely
what the Czar of Russia owned and possessed; and, he did not
possess much at all. There were complete and thorough inventories
done, even so far as to identify slave, prostitutes and Creoles;
as most were considered chattel.
All documents in the development of the Territory of Alaska include
a clause guaranteeing prior valid existing rights and promising
that they would not be preempted. I do not include these documents,
or the sections protecting our prior valid existing rights.
The Alaska Statehood Act and the Constitution of the State of
Alaska include a disclaimer clause which guarantees our fishing
rights "...forever...." Fishing rights generally include
hunting rights in the law.
Franklin H. James, Sr.
Ketchikan, AK - USA
PS: This letter will be done
in three parts; it gets better as it goes on.
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