GLACIER BAY Land Reborn: A History of Administration and Visitor Use in Glacier Bay National Park and Preserve

In early March of 1964, Chief Ranger David B. Butts and an assistant ranger set out on the first patrol of the new year "up bay." They headed north in the ranger staff's single patrol boat, a modest 17-foot outboarder that tended to limit these routine patrols to fair weather conditions and a maximum range of about thirty miles from Bartlett Cove. On this occasion they headed for the entrance to Muir Inlet, curious to see what remained of a camp on Garforth Island that had been occupied by two Native hunters from May through October of the previous year. [1]

Approaching the edge of the pan ice near the entrance to Muir Inlet, the rangers watched as numerous hair seals crashed off the ice into the water at the sound of their engine. Still nearly a mile away, the seals looked like so many black dots on the white pan ice. Butts had never before observed such wariness on the part of the seals and assumed it was because the animals had been hunted from a boat the previous year. When the two men drew closer to the shoreline, they caught the stench of partially decomposed carcasses wafting on the chill breeze. Going ashore, they inspected the refuse left by the past season's hunt: backbones and rib cages picked clean by shorebirds, rotting entrails twisted and scattered by the tides, skinned seals lying pink and dull-eyed on the rocks. Butts stood amidst this animal wreckage and looked grimly into the camera as his partner snapped off pictures of the devastation. According to a photo caption, the scene prevailed for a stretch of beach nearly two miles long. [2]

Butts and others on the staff at Bartlett Cove reacted to the large seal hunt of 1963--some 243 seals killed and reported by the two Native hunters--with dismay. Many felt a visceral response to the slaughter that was probably akin to the feelings that coursed through John Muir when, back in 1879, the famous naturalist rocked the Tlingit canoe and spoiled the aim of his Native companions as they tried to shoot deer along the shoreline. Killing animals in such a place was sacrilege. "This type of shooting has no place in a National Monument," Butts declared. [3] "The stench from decomposed carcasses is somehow not fitting for this fine wilderness," wrote another of the staff. [4] "Somehow" was the key word here. Instinctively, they knew this was wrong.

Ordinarily such expressions of outrage were sufficient to bring the desired results in a national park; NPS staffers would respond with like-mindedness and act to prevent the killing from recurring. The principle of protection of all wildlife in national parks was firmly established, the law was unambiguous, and the public almost universally supported it. NPS staff members at Bartlett Cove faced a more complex situation in Glacier Bay National Monument. Seal hunters from the local Native village of Hoonah enjoyed privileges in the monument based on aboriginal rights. This peculiar circumstance did not shake the NPS staffer's conviction that the kind of hunting which occurred around Garforth Island in 1963 should be stopped, but it did require an unusually thoughtful and painstaking presentation to explain why.

The legal basis for the Natives' hunting privileges was beginning to stretch back so many years that its origins were becoming obscure to the people who staffed the monument in the 1960s. The existing agreement had been drafted in 1954 by superintendent Schmidt and Charles H. Jones of the BIA. This agreement, which allowed Natives of Hoonah to gather berries, hunt seals, and carry weapons ashore for their protection against bear attacks, was a revision of an agreement between the NPS and the BIA of December 18, 1946. This was in turn based on an understanding between the NPS and the BIA obtained some time in the fall of 1939. [5] No one on the staff in the 1960s had been in the monument when even the last of these agreements was made, nor did the files at Bartlett Cove hold documentation on any except the most recent agreement in 1954. Even the superintendent's knowledge of its origins was sketchy--Howe would erroneously place Schmidt's agreement in the World War II era, for example. [6]

The subsequent history of this authorization may be briefly summarized. The NPS and the BIA reevaluated and renewed the agreement in 1956, 1958, 1960, and 1962, with only two modifications: after 1956 the seal pupping grounds in Wachusett and Johns Hopkins inlets were closed to hunting, and a restriction against firearms of less than .30 gauge was relaxed so that Natives could use their preferred .22 caliber Hornet rifles. [7] Issuance of permits by rangers at Bartlett Cove (rather than by the city clerk in Hoonah) was initiated unilaterally by the superintendent on June 10, 1960. [8] The NPS took steps to discontinue the provision for Native hunting in 1964, but suspended this action under pressure from the BIA on March 29, 1965. [9] The NPS made a second attempt to rescind the agreement in 1966 but failed again. [10] The NPS finally terminated the agreement on April 4, 1974. [11] Inquiries by people of Hoonah and reminders by the NPS that hunting was no longer permitted were exchanged in 1976 and 1978. [12]

Biological and Aesthetic Objections

The primary objection to Native seal hunting by the Park Service was the threat hunters posed to the Glacier Bay seal population. That this concern lay at the root of the conflict is clear from the stream of memoranda sent by Ranger Butts to the superintendent in Juneau under such dire headings as "Ever Increasing Threat to Hair Seal," all of which led to the Park Service's initial effort to terminate the Natives' privilege during the winter of 1964-65.

The local ecology of the hair seal was not well known in the early 1960s. The monument staff observed numerous seals in the lower bay in the winter and early spring, and recorded large congregations of seals near the glacier fronts in late spring and summer. It was thought that the seals migrated up bay in the spring in order to feed on crustaceans and pup on the icebergs, returning to the lower bay in the summer to resume their main diet of finfish. The NPS had not yet made a reliable census, but it was safe to say that the seal was the most abundant large mammal in the monument and an important part of the marine ecology. [13]

After the big hunt of 1963, Ranger Butts became concerned about numbers. Not knowing how many seals were in the monument, he was understandably wary that the population might be overhunted or even exterminated. In May 1964, a Native from Haines stopped at Bartlett Cove and informed Butts that a friend in Juneau had recently taken 300 seals without permit from Glacier Bay. Butts had already issued twenty permits to residents of Hoonah since the start of the year--including to the two hunters who had slaughtered more than 200 seals in Muir Inlet the year before. He guessed the total number of seals in Glacier Bay might be 800 to 1,000. "There are no bag limits, no closed season, and no closed area to protect this population," Butts wrote the superintendent. "Under present agreement this entire herd could be wiped out if the natives so desire." [14]

Numbers assumed even greater significance after the Park Service tried unsuccessfully to get the secretary of the interior to review the situation in the winter of 1964-65. The Washington office instructed superintendent Mitchell to compile statistics on the numbers of permits issued, kills reported, bounties paid, and various other indices of hunting pressure on the seal population. Ranger Charles V. Janda, who had transferred to Glacier Bay from Yellowstone National Park in May 1964, found these numbers disturbingly difficult to come by. For example, the permit system required hunters to report kills within thirty days to the chief ranger, but the level of compliance was very low. Janda conceded, "there is absolutely nothing in our files which indicates any attempts on our part to enforce the regulation or at least remind the hunters of their responsibility." Determining the amount of hunting pressure on the population was a matter of guesswork. Janda estimated that the total kill in Glacier Bay for the first half of 1965 had already reached 1,200. This was more than four times the reported kill of 291, and exceeded Butts' total population estimate by 200 to 400 animals. Janda arrived at this estimate by extrapolating from state bounty records held in Juneau, which showed significant increases of seal harvests in 1963, 1964, and the first quarter of 1965. But the bounty records did not indicate where the seals had been taken. [15]

Meanwhile, on the basis of further rough counts of the hair seals, Janda raised the earlier population estimate more than eight-fold to 7,000 or 8,000. [16] Strictly in terms of a biological assessment, the higher population estimate significantly altered the picture of seal hunting. It now seemed doubtful that the annual harvest exceeded the number of surviving pups each year. Present hunting pressure, one staff report stated, was not "sufficiently intense to cause a noticeable change in the seal population." [17]

Fortunately from the Park Service's standpoint, the higher population estimate not only put the seal out of danger of extermination but also elevated its status as the most abundant large mammal in the monument and a significant tourist attraction. Both Janda and Howe, who had taken the superintendent's reins in the middle of this controversy in April 1966, were cognizant of the dismal impression that seal hunting made on tourists. That summer, the long awaited park concession opened, and a tour boat began providing day trips up the bay. The shooting of seals made the animals boat shy. "Passengers on the Park cruise boat express great interest and pleasure at seeing these animals," a 1966 report on seal hunting stated. "They are visibly shaken when they learn that the Hoonah are allowed to kill them within the Monument boundaries." [18]

Butts had raised similar objections in 1964. The presence of hunters had made the seals "much more wary of approaching boats." As the seals now spooked off the ice whenever a boat came within earshot of them, it deprived "the bona fide visitor of the opportunity to observe the seal under natural conditions." Of course, such "natural conditions" were a contrivance of modern society, for Natives had been hunting seals in Glacier Bay or its vicinity since time immemorial. Butts missed the irony. "Everywhere in the state," he continued, "the seal is shot at and withdraws from the approaching boats and people. Glacier Bay should be the one place where it is protected as a member of the ecological community and enjoyed in its natural state." [19]

The ranger's comments went to the nub of the Park Service's traditional concept of nature. In this view, nature was the interaction of all living things in the absence of human influences. To preserve nature, national parks had to insulate these delicate ecological relationships from human disturbance. Though human beings were present in national parks as visitors, theoretically their influence was benign; they did not introduce anything into or take anything out of the food chain; their use of the area was non-consumptive. In the case of Glacier Bay National Monument, Butts, Janda, and Howe all desired that visitors be able to observe the wondrous return of life to this recently glaciated landscape, without engaging in any activities that would disturb the natural process of ecological change. In their view, hunting was by definition a consumptive use and therefore an unnatural intrusion upon this environment.

When the effects of hunting on the seal population proved too difficult to quantify, Howe and Janda shifted their attention to the effects of hunting on wildlife viewing. "Although it is unlikely that the limited seal hunting in Glacier Bay National Monument has any effect on the overall population," they wrote, "we are greatly concerned as to the effect the hunting has on the park visitors opportunity to see seal. The harassment and killing of these animals has made it impossible to get close to them on the ice flows." Like Butts, they wanted tamer animals. Both having served for several years in Yellowstone National Park prior to their assignments in Glacier Bay, Howe and Janda believed that Glacier Bay had the potential to join Yellowstone as one of the nation's great wildlife parks. "The great wildlife viewing opportunities in the well known wildlife parks in the System are the results of protection from hunting and where necessary, closely supervised control problems," they noted, thus acknowledging that national parks in fact change animal behavior insofar as animals lose their natural fear of human beings. [20] Yet, inadvertently perhaps, they turned the tables on the hunter. They equated tame animals with natural conditions and hunters with unnatural conditions. This may have been a minor point to NPS officials concerned with preserving nature for the enjoyment of the American people, but it was a bitter irony for the area's indigenous people. In effect, it created the illusion that Native hunters were newcomers to Glacier Bay. [21]

Biological and aesthetic considerations formed the basis of NPS objections to hunting in Glacier Bay National Monument. NPS officials were concerned both for the health of the seal population as a fully functioning part of the ecosystem, and for the seal's accessibility as an appealing and potentially conspicuous part of the natural scene. But NPS officials were unable to convince the secretary of the interior on either of these grounds that Native hunting seriously impaired the monument's values. Rather, they had to resort to a third objection--that the modern hunter was himself undeserving of the special privileges in the monument that the government had earlier attached to his village.

This resulted in much bitterness. The NPS was made to demonstrate that seal hunting in the monument no longer bore any relationship to subsistence needs, that Hoonah's claim of aboriginal rights in Glacier Bay was a mere pretext for commercial hide hunting. These alleged hide hunters, entering the bay in large boats, sometimes killing 200 seals on a single trip, were trying to "outdo the whites in their resource-rape" according to former park biologist Gregory P. Streveler. [22] The Natives, for their part, found the actions by the NPS in the 1960s consistent with the acts of intimidation and vandalism that had forced a number of their people to abandon property in the monument in the 1940s. [23] As William Johnson, a clan chief, expressed his people's feelings about this period many years later, "The government just told us to get out of there." [24]

Seal Hunting and Cultural Change

From the outset there was a fundamental difference of opinion as to whether the Hoonah Tlingits' privileges were transitional or permanent. The Park Service's 1957 master plan for the monument commented that the privileges would be "reduced and eliminated within a reasonable period of time." [25] Superintendent Howe repeatedly alleged that the hunting privilege had long outlived its original intent, which in his view was to help the Hoonah community through a short period of economic adjustment at the end of World War II. [26] Hoonah Tlingits, on the other hand, viewed the negotiated terms of their continued use of the area as being "for all time." [27] Their interest in the area involved not only food resources but origin myths and ancestral graveyards too.

There was also a profound difference of opinion as to the amount of use that Natives made of Glacier Bay in the 1950s and 1960s. NPS officials assumed that the use was very light and of negligible importance to Hoonah's economy. [28] They based this assessment mainly on the trifling number of seal hunters who requested permits at Bartlett Cove each year in the 1960s. [29] When approximately ten percent of the Hoonah population petitioned against the Park Service's threatened termination of the agreement in 1964, NPS officials construed this as the full extent of Hoonah interest in the area. [30] But according to a 1986 survey of Hoonah households by the ADF&G, respondents estimated that fifty-five percent of their households' annual subsistence take had come from the monument area when they had had access to it. Based on its survey data, the ADF&G calculated that nearly seventy percent of "active users" in the Hoonah community made subsistence use of upper Glacier Bay at least once in 1950, while just under forty percent did so in 1965. The ADF&G study indicated even higher percentages, with the same downward trend, for lower Glacier Bay and Dundas Bay. [31] There is a huge disparity in these numbers--in the perceptions of Natives and NPS personnel over the extent of past Native use of the resources--that will probably never be reconciled.

The differences in perception extended to the nature of seal hunting itself. When an upturn in the hide market in 1963-65 led a handful of Hoonah Natives to start taking a hundred or more seals apiece each season, NPS officials assumed that these were a new class of Native seal hunter because they were oriented to the market rather than the village subsistence economy. The NPS perceived a discontinuity between this kind of seal hunting and the aboriginal seal hunting practices of the hunter's forebears. This discontinuity, NPS officials alleged, ought to disqualify the market hunter from hunting in the monument. They saw the market hunter as a sort of fallen Indian. Chief Ranger Butts wrote, "If they [the seals] were used for domestic purposes such as hide for clothing and meat for food I might feel differently." [32] Ranger Janda, filling out an incident report on Hoonah Native Kenneth Schoonover for taking 210 hair seal from the monument out of season in February 1969, entered Schoonover's race as "Caucasian--Claims Thlingit Lineage." [33] To Superintendent Howe, the hide hunters who came into the bay in large fishing boats with skiffs in tow "were not real Indians." [34] These NPS officials overlooked the fact that Natives had been market hunting as well as subsistence hunting for generations.

That no credible distinction between subsistence and market hunters really existed is shown by the fact that the first two Native hunters to exploit the higher prices paid for hides in 1963 were George Dalton and James Austin, two longtime hunters whom the NPS would later describe as the only remaining true subsistence hunters still using monument waters. [35] These two hunters acquired permits at Bartlett Cove on May 3, 1963, and proceeded up the bay to Garforth Island, near the entrance of Muir Inlet. They killed more than 200 seals that season before taking out their camp in November. According to a writer for Alaska Sportsman who invited the two seal hunters aboard his cruiser one day, Austin and Dalton were saving some of the hair seal hides to make moccasins and selling others to a fur dealer. They distributed seal oil to friends and kin in Hoonah and sold some of the carcasses to crab fishermen for crab bait. [36] By the end of the season they had also collected $729 in bounty payments. [37]

Dalton and Austin harvested these seals in the usual manner. They hunted the seals from a skiff, shooting them in the back of the head in such a way that their jaws stayed shut; otherwise a shot seal had a tendency to open its mouth, inhale a lot of water, and sink before the hunter could get to it. They skinned the seals on the beach, leaving what carcasses they could not use to rot. When Butts found the putrifying remains of their work in the following spring he was appalled by the waste, the gore, and the stench. He was even more dismayed when another seal hunter, Jimmy Martin, told him that he had shot 161 seals, and had lost 40 percent to sinking. To Martin, it was a test of the hunter's efficiency and skill to secure as large a percentage of his kills as possible; to Butts, it was a travesty to kill so many animals without being able to retrieve them all. "This type of shooting has no place in a National Monument," Butts wrote the superintendent. [38]

Just as the purpose and intensity of seal hunting disturbed NPS officials, so did the technology that was now at the seal hunter's disposal. In early April 1964, a converted 110-foot sub-chaser came into Bartlett Cove to wait out a storm. The white crew was seal hunting and inquired about the monument boundaries along the outer coast. The next day, after the sub-chaser had left, four Hoonah Tlingits docked in Bartlett Cove to obtain permits. Asked what they knew about the sub-chaser, they said that the crew had been trying to hire "sharpshooters" in Hoonah. While it was unclear whether the crew's intent was to gain access to Glacier Bay seals, Butts thought the NPS had no legal recourse to stop such a plan. "So long as they are natives and have a permit they can operate under any subsidy they can work up," he wrote superintendent Mitchell. "One boat such as this 110 foot one could keep a sizeable crew of hunters in the Monument and really slaughter the seal." [39] Two years later in 1966 Superintendent Howe again raised this spectre of a "mother ship" employing Hoonah Tlingits with hunting permits. "Why no one has taken advantage of this loophole is surprising to all of us," he wrote. [40]

Some time later--no record of the incident is contained in the park's files--some Hoonah Tlingits entered Glacier Bay on Willie Marks's fishing boat New Annie with more than a dozen skiffs in tow. This was not quite the factory ship that the monument staff feared, but the enterprise struck the superintendent as morally wrong and illegal. NPS rangers intercepted the boat, boarded it, and confiscated the Natives' rifles for evidence. The incident became something of a symbol for both points of view: a symbol of Native avarice to the NPS, a symbol of NPS belligerence to the Natives. Hoonah Tlingits were outraged but also cowed by the incident. Most of them would not concede that the mission of New Annie was an aberration from subsistence seal hunting. [41]

Throughout this period, the Park Service showed that it was little better informed about the cultural meaning of seal hunting to Hoonah Tlingits than biologist Lowell Sumner had been in 1947. Like Sumner, NPS officials in the 1960s operated on the idea that increased material wealth and cash income by Tlingits was equatable with decreased need for native foods and animal hides, as if there were a reciprocal relationship between the two. The familiar idea was advanced anew in 1964: "The natives involved are no longer dependent on these animals for food and clothing. They are employed in industry and are commercial fishermen with the most modern boats and gear." [42] Again, Howe reiterated this idea in subsequent memoranda when he reported a decline in the number of permits issued after 1966: "Our people at Bartlett Cove cannot offer a concrete explanation [for the decline] except that it is generally recognized that the Hoonah natives do not rely on the seal as a principal source of food and clothing. In fact, there is only one family who consistently hunts in Glacier Bay." [43] There was a predilection by the monument staff to see all that was modern in Hoonah and to interpret subsistence use as a vanishing way of life.

But this was misleading. A 1970 study of employment opportunities for Tlingit and Haida Natives found that while 56 percent of the male labor force was employed in the commercial fishing industry, less than one in ten of these men were year-round commercial fishermen; and while 43 percent of the female labor force was employed in the canneries, this work was all seasonal. Only one in four men and women in the labor force held year-round jobs of any kind. One in three men and a somewhat higher proportion of women in the labor force were unemployed at least six months of the year. As for the Natives' "modern boats and gear" to which the NPS alluded, this probably referred to some 130 seiners (about one vessel per six Tlingit and Haida families) that had been purchased on credit from the IRA's revolving loan fund during the late 1930s and early 1940s. Few fishermen had completely paid off their mortgages on these boats and the boats themselves were badly deteriorated. The 1970 study recommended to the Tlingit-Haida Central Council that the cost of refinancing most of these vessels was unjustified given their poor condition. [44]

This kind of information was not readily available in 1965, when the NPS asked the BIA for economic data on the Hoonah community. Yet NPS officials contented themselves with glib assurances by the BIA that Hoonah was better off than ninety percent of other Alaska Native villages. Rather than conduct a hearing in Hoonah on this issue, as the Natives requested, NPS staffers went to Juneau and assembled data on bounty payments and market prices for seal skins to prove their point that modern seal hunting was now disembodied from traditional Native subsistence use. [45]

Their investigation disclosed that seal skins were selling for $10 to $12 apiece on average, compared to prices of $1 to $4 only three or four years earlier. The market price had not been that high for ten to twenty years. [46] The NPS presented these figures as evidence that the seal hunters were making large profits; as Butts told Superintendent Mitchell, "This is big business." [47] Butts was correct in that the market was now international, with Canadian buyers accounting for most of the local purchases and a large proportion of the skins from southeast Alaska eventually being shipped to Europe to be turned into high-fashion wearing apparel. But he exaggerated its importance to the Hoonah economy. The cash value of seal skins in this period was only about double what the value of the $3 bounty had been in the 1940s; and total harvest levels in Alaska in the 1960s were below what they had been in the 1930s and 1940s when bounty payments had been the most significant cash incentive. Meanwhile the State of Alaska had held the bounty at $3 and ended it altogether in 1967. Unless seal hunting was conducted from a factory ship equipped with compressed air skinning devices, hunting seals for their skins was about as marginal to the cash economy of southeast Alaska as hunting them for the bounty had been during the 1940s. Its very marginality ensured that some, though not all, of the seals taken in Glacier Bay were consumed as meat and oil in the subsistence economy. [48]

The inability to argue their case against hunting convincingly on biological grounds led NPS officials back to approximately the same set of economic and cultural questions that were posed twenty years earlier. And once again, the NPS found it impossible to make a convincing case for terminating the Hoonah Tlingits' privileges in Glacier Bay on the basis of cultural change. The effort to do so produced rancor more than anything else. After two years of investigations and three reports on the subject, the NPS remained stymied at the end of 1966.

From Aboriginal Rights to Subsistence

As is so often the case in national park administration, the Park Service's difficulties with this issue were compounded by the fact that it was not strictly local, but involved a wider geographic area and various other government entities. Although the Hoonah Tlingits' privileges in Glacier Bay had been framed as a local agreement, the legal foundation for these privileges was the Tlingit-Haida land claim suit, and more broadly, federal policy toward Alaska Natives. The final settlement of that suit in 1968, together with a major reassessment of federal policy in the Alaska Native Land Claim Settlement Act of 1971, had profound implications for the Hoonah Tlingits' legal position in Glacier Bay. Two other acts of Congress, the Alaska Statehood Act of 1958 and the Marine Mammal Protection Act of 1972, also had repercussions in Glacier Bay.

Each time the Park Service sought to terminate the Hoonah Tlingits' privileges in Glacier Bay, it involved a number of political entities directly or indirectly, from the Tlingit-Haida Central Council and the BIA to the state of Alaska and the Alaska Department of Fish & Game (ADF&G). Somewhat apart from the problem of Native privileges in the monument was the dispute between the NPS and the state of Alaska over ownership of Glacier Bay. The dispute arose out of the Alaska Statehood Act of 1958, which conferred all navigable waters and submerged lands of the public domain to the state of Alaska. The state claimed that the two presidential proclamations of 1925 and 1939 which established Glacier Bay National Monument covered the land area only, leaving the bays and coastal waters in the public domain; thus they now belonged to the state of Alaska. The NPS held otherwise. The jurisdictional dispute simmered along, neither the state nor the Park Service wanting to take the matter to court, yet each party being leery of any action by the other that would prejudice its case. Tacitly, the NPS allowed the ADF&G to regulate the small-scale commercial fishery in Glacier Bay. It also assumed that Native seal hunters would respect the ADF&G's closed season on seal hunting while operating under NPS permits in the monument. For its part, the ADF&G informed Hoonah Natives that they did not need permits to hunt seals in Glacier Bay below the tide line, because the state controlled the waters. [49]

This legal muddle posed a problem for enforcement of seal hunting restrictions: NPS officials were unsure of their authority to board vessels or make arrests on the open water. The U.S. commissioner in Juneau informed Howe that he would not hear any federal cases where jurisdiction was in dispute between the federal agency and the state. [50] While this situation was troubling in itself, NPS officials did not want a confrontation with Native seal hunters to force the issue of jurisdiction. If taking a hard line toward Native seal hunting resulted in an arrest or two, followed by the filing of charges in federal district court, then the unwanted legal contest with the state over jurisdiction would likely ensue.

The jurisdictional dispute may have been an important factor in muffling the issue of Native seal hunting after 1966, although evidence of this is only circumstantial. Late in that year, NPS Director Hartzog tried without success to interest state officials in "concurrent jurisdiction" of Glacier Bay. [51] Some time later--the communication was undated--NPS officials in Washington instructed Superintendent Howe by telephone that the seal hunting agreement would be continued, with the thought that it would "die a natural death when the few old timers still participating could no longer hunt." [52] In other words, the NPS no longer wanted to have this issue out with either the BIA or the Hoonah Tlingits themselves. Ostensibly the change of tack was in response to a drop in the hide market and an easing of pressure on the seal population. There was little further communication out of the monument on this subject until 1970.

But another political consideration may have weighed in this decision as well. The growing Alaska Native rights movement, together with the U.S. Court of Claim's decisions in Tlingit and Haida Indians of Alaska v. United States (1959, 1968), may have persuaded NPS officials to wait and see how these developments affected the Hoonah Tlingits' position in Glacier Bay--as well as indigenous people's rights in other Alaska national parklands--before moving too aggressively against them. Howe alluded to these political considerations in 1969 when he recalled his unrecorded telephone communications with the Washington office in which he had been told to let the seal hunting problem subside. [53]

The Alaska Native rights movement developed in reaction to state land selections and state wildlife laws that encroached on Native subsistence resources in the early 1960s. The Alaska Statehood Act had entitled Alaska to select 100,000,000 acres of land from the public domain for state ownership--a far greater proportion of the total public domain than any other new state had ever received, the idea being that a viable government of this far northern state would need a hefty income from oil and mineral leases in order to compensate for the state's scant population and miniscule agricultural and manufacturing base. The statehood act noted that Native title to this land would have to be settled at a later time. As the patenting of state lands went forward, Eskimos, Aleuts, and Athapaskan Indians formed several Native regional associations in the early and mid-1960s, and these came together with the southeast region's Tlingit-Haida Central Council to form the Alaska Federation of Natives in 1966. With the notable exception of the Tlingits and Haidas, who had organized the Alaska Native Brotherhood in 1912, all of these Native groups were organizing politically on a regional basis for the first time in their history. Nevertheless, the fledgling Alaska Native rights movement was already sharply focused on land. [54]

With these developments in the background, the NPS could no longer afford to address Hoonah Tlingit privileges within a strictly local context. In effect, the problem of Native seal hunting was swept out of Glacier Bay on a tide of legal and political maneuverings that turned not on seals but on state land selections, Native land claims, and nearly a billion dollars' worth of North Slope oil leases. In the summer of 1966 the BIA began its first halting efforts toward drafting a comprehensive solution to the aboriginal land claims of all Alaska Natives, and in the fall of that year Secretary Udall issued a controversial land order that prohibited further patenting of state lands (as allowed under the statehood act) until Native claims were settled. [55]

With so much attention focused on the North Slope and, after the spring of 1968, the oil strikes at Prudhoe Bay, the southeast Alaska region and the Tlingit and Haida Indians would have played a relatively minor part in the process of settling Native land claims except for the long history of Tlingit and Haida claims. Now the case of Tlingit and Haida Indians of Alaska v. United States was seen as precedent-setting.

The U.S. Court of Claims had handed down a preliminary judgment in the case on October 7, 1959. The court had ruled in favor of the Indians, finding that their aboriginal title was valid and that they were entitled to recover for the uncompensated taking of their land and property. This included some 16,000,000 acres which had been set apart as Tongass National Forest by presidential proclamations on August 20, 1902, September 10, 1907, and February 16, 1909, and some 2,297,598 acres embraced by the original 1925 boundaries of Glacier Bay National Monument. (The addition to the monument in 1939 was immaterial to this case since it amounted to a transfer of land from Tongass National Forest which had already been taken.) The amount of the settlement was to be established by a subsequent proceeding. [56]

On January 19, 1968, the U.S. Court of Claims concluded its second and final proceeding in this case with a judgment for the plaintiffs of $7,546,053.80. This was a pyrrhic victory for the Tlingits and Haidas. Their attorneys had sought an $80,000,000 settlement; the trial commissioner had calculated the fair market value of the total land claim, including fishing grounds, at $15,934,368.80; but the judges ruled that no awards in respect to fishing grounds should be made, and consequently arrived at the figure of $7,546,053.80 Especially significant was the court's finding that aboriginal title did not extend to submerged lands or fisheries. [57]

The decision in Tlingit and Haida Indians v. United States, coming in the midst of the Alaska Native rights movement, provided an important impetus toward a legislative settlement of Native land claims throughout the rest of Alaska, not least because the judgment of the court convinced Native leaders that an act of Congress would be preferable to another judicial settlement based on monetary compensation alone. [58]

The Alaska Native Claim Settlement Act (ANCSA) was enacted on December 18, 1971. The act extinguished all aboriginal title to lands and submerged lands and all aboriginal hunting and fishing rights. It granted the Natives $925,500,000 for compensation, apportioned between twelve regional corporations and more than 200 village corporations created under the act. All Natives born on or before the date of the act became shareholders in their respective village and regional corporations. These corporations were to oversee Native land selections amounting to 40,000,000 acres, development of these lands, and other capital investment. ANCSA provided for the same corporate structure in the southeast region of Alaska, but granted one fourth as much land to each of the ten Tlingit and Haida villages, including Hoonah, as other Native villages were entitled to, and declared that the funds appropriated to pay the judgment of the U.S. Court of Claims in Tlingit and Haida Indians of Alaska v. United States were in lieu of additional lands. The principal intent of this complicated legislation was to provide a vehicle with which Alaska Natives could find their own way into the corporate economy. [59]

At the same time, ANCSA laid the foundation for modern legal protections of Native subsistence use in Alaska. At an early stage in the development of this legislation, namely in the Federal Field Committee's preparation of its report, Alaska Natives and the Land (1968), it became apparent that Alaska Natives were dependent on far more land for their subsistence needs than Congress would be willing to allow them to retain. The Federal Field Committee estimated that Alaska Natives required a minimum of 60 million acres to support their subsistence take. Not only was this acreage unacceptably high as a share of the total land area, but the regional corporations that ANCSA established were expected to select Native lands on the basis of development potential rather than subsistence resources, and often the two did not coincide. Therefore, lawmakers recognized that the extinguishment of aboriginal title would have to be accompanied by legal protections of the Natives' continued subsistence use of the public lands. [60]

The Senate version of the Alaska Native Land Claims bill provided for this protection, but the House version did not. When the two houses of Congress went to conference on this bill in December 1971, the conference committee decided to exclude direct language on subsistence protection from the bill, despite two last-minute appeals by the Alaska Federation of Natives. [61] There was hesitation over how such protection would be implemented by the law--under a permit system or a land classification system. [62] However, the conference report on the bill stated that the committee "expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the Natives." [63]

In 1972, Superintendent Howe began once more to press his superiors for an end to the Natives' seal hunting privilege, maintaining that the U.S. Court of Claim's judgment in 1968 had now compensated the Tlingits for any aboriginal rights they had once enjoyed in Glacier Bay. [64] The NPS informed the people of Hoonah that it had a Department solicitor's opinion which stated that the court's decision in 1959 had terminated any such rights. [65] The NPS did not acknowledge that this solicitor's opinion was now nine years old. Dated December 15, 1965, it had been written prior to the court's second decision and ANCSA and was probably of doubtful worth. At least two signficant problems remained unaddressed by this nine-year-old solicitor's opinion. First, did the court's subsequent restriction of its judgment to land areas still affect the Hoonah Tlingits' privileges in Glacier Bay? Second, did the court ruling affect hunting rights, and if so, was it superseded by ANCSA and the intent of Congress to protect Native subsistence? [66]

Because ANCSA did not specifically address subsistence, the outlines of the new policy were not well understood in the early 1970s. Important questions such as who qualified as a subsistence user and how the federal government would implement some kind of prioritization of subsistence over other forms of resource consumption remained to be worked out. Perhaps the key question with regard to Glacier Bay was this: did subsistence protection assure subsistence users access to all public lands of which they had made traditional use? The House and Senate conference committee had framed the subsistence issue for purposes of debate in this way: "Should Native people's historic use of public lands for subsistence purposes--hunting, fishing, trapping, berry-picking--be protected under the Act, and if so: (1) By a permit system (2) By a land classification system." [67] The conference committee provided no definitive answer to this question.

Less than six months after passing ANCSA, Congress considered subsistence protection for Alaska Natives in terms of another bill, what would become the Marine Mammal Protection Act of 1972. While the bill placed a moratorium on the hunting of marine mammals, it allowed Alaska Natives to continue to harvest marine mammals for subsistence and limited commercial use. Dozens of Alaska Natives testified before congressional hearings in Nome and Bethel, Alaska, on May 11-13, 1972, about the importance of seal, walrus, and whale hunting to their village economies and culture. Robert Willard, a Tlingit Indian representing the Alaska Commission on Human Rights, testified that the sole income for 10,000 Natives derived from the manufacture of arts and craft items, mainly from sea mammals and byproducts. [68] George Miller, president of Cook Inlet Regional Association, stated that the harvesting of ocean mammals "for subsistence and commercial purposes...is so interwoven into the fabric of traditional Native life that it cannot be altered or terminated without seriously jeopardizing the culture of our people." [69] Conservation groups including Friends of the Earth, the Sierra Club, and the Alaska Conservation Society supported the bill's provision for Alaska Native subsistence, though they urged careful limits on the size of the arts and crafts commerce. [70]

The enactment of the Marine Mammal Protection Act (MMPA) on October 21, 1972, made four significant refinements to the vague subsistence protections that Congress had mandated in the course of settling the Alaska Native land claim. First, there was a notable shift in emphasis from the economic to the cultural significance of subsistence. In the context of ANCSA, most discussion of subsistence protections had had an economic bent; lawmakers as well as Native leaders had treated subsistence as a safety net or stop gap while the Native village and regional corporations developed the necessary job base to bring their people fully into the cash economy. While the language in the MMPA was neutral on this point, the congressional hearings and debate on this bill clearly laid a new stress on cultural preservation. Second, Congress decided to broaden the Natives' subsistence protections in the MMPA to include limited commercial use of harvested marine mammals--both in the form of authentic handicrafts and clothing which could be sold in interstate commerce, and as food which could be sold in Native villages and towns in Alaska or for Native consumption. Third, Congress decided to overlook the protests of some white Alaskans that these subsistence protections were racially discriminatory; in the MMPA Congress unequivocally restricted the allowance of marine mammal harvests to "any Indian, Aleut, or Eskimo who dwells on the coast of the North Pacific Ocean or the Arctic Ocean." Fourth, Congress insisted that marine mammal harvests must not be "accomplished in a wasteful manner." [71]

To NPS officials who wanted to end Native hunting in Glacier Bay National Monument, the MMPA suggested a need to make haste in declaring that seal hunting was no longer legal. If the two decisions in Tlingit and Haida Indians v. United States had strengthened the Park Service's case for terminating the privilege, ANCSA's effect was rather ambiguous and the MMPA could potentially work against it. Five days after Congress enacted the MMPA, Superintendent Howe wrote to the NPS state director:

It is long past June 20 [the beginning of open season], when we would have liked an answer. We truly believe that seal hunting in Glacier Bay is neither legal nor longer necessary. In fact, considering the new national legislation it might be illegal anywhere when "hide hunting" is the end result. If it is ever to be stopped we should probably start the effort about November 8 [the end of open season]. [72]

Howe finally got the answer he had long been looking for when the director of the Alaska field office told him by telephone on November 14 to arrange a meeting with the people of Hoonah and inform them that their privileges in the monument were terminated. [73]

If a meeting to explain this to the people of Hoonah ever occurred, it is not a part of the official record. Indeed, the record shows that after 1966 the NPS successfully suppressed this issue and eventually settled it quietly and unilaterally. Whereas the record in the 1940s comprised interagency communications and meetings with the people of Hoonah, it dwindled to telephone conversations between NPS officials and memoranda to the files in the 1970s. Whereas the mayor of Hoonah's inquiries in the 1940s had been answered by the secretary of the interior, now they were answered by the chief ranger or the superintendent. Chief Ranger Janda informed Mayor Frank See on April 4, 1974, that as of that date all people entering the park were equally subject to the Code of Federal Regulation's prohibition against killing of wildlife in national parks. In this letter Janda also noted a telephone conversation with See the previous January in which Janda had informed the mayor that all hunting privileges were terminated. In addition, Janda stated that there had been only one request for a permit over the past two years. Thus, it was not clear exactly when the Hoonah Tlingits had lost their privileges in Glacier Bay. In recent years, the Hoonah Tlingits have expressed anger that the NPS did not put the rulemaking against Native hunting in writing or run it through the normal public review process for regulatory changes. The record would seem to justify their anger.

There is some irony in the fact that the Marine Mammal Protection Act of 1972 forced the Park Service's hand. By affirming the new federal policy of subsistence protections in Alaska, the MMPA might have provided the kind of settled legal definition of the Hoonah Tlingits' relationship to Glacier Bay that had long been sought by both the NPS and the Hoonah Tlingits. The NPS might have invoked the law on the one hand to answer criticisms that Native hunting had no place in the national park system, and on the other hand to prevent Native hunters from defiling the shores of Glacier Bay by taking seals only for their skins. The law practically eliminated the market for seal hides. It removed the alleged threat that Native hunters could legally exterminate the monument's seals while in the service of a factory ship. Moreover, the MMPA provided a way around the problem of jurisdiction in Glacier Bay, because it took marine mammal management away from Alaska (and other states) and assigned it to a new federal agency, the Marine Mammal Commission. NPS management of seal hunting in Glacier Bay would no longer represent a pocket of federal law enforcement in an otherwise state-managed activity.

However, this perspective on the MMPA was not within the frame of reference of most NPS officials in 1972. Hunting in national park areas, no matter in what form, was anathema to the Park Service. It was only in the course of eight years of land use planning in the 1970s, leading up to the passage of the Alaska National Interest Lands Conservation Act of 1980, that the Park Service adopted a new stance toward subsistence hunting. By then the Park Service would maintain that in Alaska, the nation's "last frontier," subsistence could be compatible with wilderness preservation and the national park idea.