(National Archives, via KUAC)
Resolution of the claims of Alaska’s Native people was fraught.1 The law that was finally passed in 1971, the Alaska Native Claims Settlement Act (ANCSA), came after 104 years of uncompensated taking by White Americans, not just of lands but the decimation of resources like salmon and sea otter. Those are part of the settlement.
Part of the “payment” to Alaska Natives was allowing them, through village and regional corporations, to keep 44 million acres of their land.2 ANCSA set out of complicated process for the selection of lands to keep. The land they could keep included federal land, outside of national parks and wildlife refuges, which the federal government wasn’t actually using. That included former Distant Early Warning radar sites, Nike missile sites, old military bases, old federal buildings and abandoned training areas. Out in the Aleutian Islands, it included World War II battlefields. In many cases, those unused federal lands were in the most valuable locations; in the case of several Alutiq villages in the Aleutians, the bases and battlefields were the only land available.
Under the law, Alaska Natives only had three years to pick the land they could keep. In 1971, the environmental laws that did exist were in their very early stages. There was no record of what hazardous materials might be on those federal lands. With just three years to make selection from among the 108 million acres available, there was little time to perform any kind of due diligence like environmental assessments, if the expertise to do those assessments was even available. The mouths of the gift horses were not examined.
The selections were made. The land was conveyed to the village and regional corporations. And then the extent of environmental contamination was discovered. Friable asbestos, organic solvents, hydrocarbons, toxins; a veritable smorgasbord of environmental nightmares in the pristine Alaska lands.
Many of those properties, instead of being an asset, were a liability. At least nominally, the village and regional corporations as owners of contaminated lands are liable for the costs of cleaning it up. Congress has reacted by . . . hemming and hawing. Perhaps it’s not as bad as smallpox-infested blankets, but it’s not very good, either. Mostly, as to each contaminated parcel, it means the Alaska Natives can’t do anything with it. No lender is going to loan money for development. No other purchaser or tenant is even slightly interested in leasing it. Because to do so would make them potentially liable for remediation as well.
In 1990, Congress directed the Secretary of the Interior to identify the contaminated lands and determine whether anyone knew it was contaminated when it was conveyed. In 1995, Congress ordered the Secretary to try to figure out what contaminants were present and where, and whether it was the fault of anyone other than the federal government. The BLM issued a report that made recommendations. The report was pretty seriously flawed, but did identify at least 920 (!) sites with serious contamination.
In 2014, Congress cleared its collective throat again and ordered BLM:
The Bureau shall provide the House and Senate Committees on Appropriations with a detailed report within 180 days of enactment of this Act, which includes the following information: (1) a comprehensive inventory of contaminated sites conveyed through ANCSA, including sites identified subsequent to the 1998 report; (2) an updated status on the six recommendations listed in the 1998 report; and (3) a detailed plan on how the Department intends to complete cleanup of each contaminated site.
Explanatory Statement of Public Law 113-235.
It took BLM two years, not six months. The report found still more contaminated properties. An on-line database was established for the contaminated sites, but precious little data was posited to it. As far as a cleanup plan, BLM threw up its collective hands and allowed as how it had neither expertise not money to do any such thing. And there it sat. Some items received modest cleanup, incidental to other program obligations. But most have not. To see the scope of the problem, visit the ARCGIS graphic map [WARNING: Serious Time Suck].
In 2022, under considerable pressure from its Alaska Native constituents, the Dunleavy filed an ill-considered lawsuit in U.S. District Court against the Department of the Interior. The lawsuit sought to compel the Department of the Interior to get off its ass and clean up the contaminated sites.
Earlier this month, Senior District Court Judge H. Russell Holland threw the case out of court. Congress, Judge Holland concluded, hadn’t authorized the Department of the interior to actually mediate anything, only to prepare reports. The reports might be shabby, but that was between the Department and Congress. The State of Alaska, Judge Holland ruled, had no standing because it had no legal basis for its complaint:
The clerk of court is directed to enter judgment dismissing plaintiffs’ first amended complaint with prejudice.
Order on Motion to Dismiss Complaint, p. 23, Alaska v. United States, Case No. 3 : 2 2 – c v -0163-HRH
The State can appeal to the Ninth Circuit, but Judge Holland’s decision, in WC’s view at least, is unlikely to be reversed.
So there things sit. The Alaska Native are saddled with a multi-billion dollar problem they didn’t create, that badly undercuts the fairness and reasonableness of the Alaska Native Claims settlement itself. A small percentage of the site are being addressed through other remediation programs, but hundreds of known contaminated sites are sitting unaddressed. The risk that the various contaminants will spread further is unknown. The hazard to a subsistence lifestyle is highly concerning but unknown. All with a Congress that redefines “gridlock” every day.
Success has a dozen fathers. Failure is an orphan. Failure involving environmental hazards is a pariah.
Wickersham's Conscience 
Shared with thanks to WC. I remember very little of first year university courses but wasn’t there some principle of “clean hands”? Obviously those agreements with their vicious twist were crafted by legislators with very dirty intentions. It would be nice if that were enough to overturn the biased selection criteria but we’ll probably need to leave that to a species in another star system. It is nevertheless a story which needs telling often and everywhere so I have chosen to share it. Thanks WC for documenting it in layman’s terms.
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It probably wasn’t deliberate. At worst, it might have been gross negligence and willful ignorance. But it has created a terrible mess.
/WC
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We all face the enormous and expensive task of cleaning up the messes left by carelessness, deliberate malfeasance, and uninformed industrialization -and warfare -throughout the globe. Some – especially indigenous peoples – are both blameless and ill-equipped to the task. We are a destructive species. We do much harm, some irreversible.
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