October 20, 2004
Wednesday

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 his remarks.

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 group, the!
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:

ARTICLE III

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. (emphasis added.)

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 these creations.

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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