When is a deal not a deal? When there’s a wildlife refuge to be exploited

Advocates of congressional term limits, and of voters imposing ad hoc term limits by voting out incumbents, sing the virtues of getting fresh perspectives on difficult public problems. Those benefits are real, but congressional turnover also allows members to come back with the same complaints that had been raised and resolved years earlier. The members that took office since the original deal have no idea that their predecessors made valuable concessions in exchange for the dropping of those complaints.

We saw that earlier this year when Sen. Lisa MurkowskiLisa Ann MurkowskiOn The Money: Pessimism grows as coronavirus talks go down to the wire | Jobs report poised to light fire under COVID-19 talks | Tax preparers warn unemployment recipients could owe IRS Pessimism grows as coronavirus talks go down to the wire Hillicon Valley: Facebook removes Trump post | TikTok gets competitor | Lawmakers raise grid safety concerns MORE (R-Alaska) demanded building a road through a unique, environmentally sensitive wildlife refuge to respond to the same access problems that Congress previously agreed to address with $50 million in improvements including a state-of-the-art hovercraft.

The latest attempt to undo a previous deal comes in the form of a shameless land-grab buried in what is supposed to be a non-controversial end-of-year package of public lands legislation. If she has her way, Sen. Murkowski will have gone a long way to undermining the viability of wildlife refuges and other ecologically sensitive public lands in Alaska.


The original idea sounded perfectly reasonable: Alaskan Natives would be permitted to claim up to 160 acres of federal land with which they had a prior connection that they could put to personal use. This country’s history with respect to native people’s land rights is a shameful one, and our treatment of Alaskan Natives is no different. If Alaskan Natives had a personal tie to a piece of land and wanted to make a living there, the federal government should not get in the way. The program operated many decades, allowing many Alaskan Natives to register claims. Congress eventually sunset the program in the Alaska Native Claims Settlement Act of 1971 to facilitate transfer of lands to Native villages and corporations.

In the 1990s, the Alaskan delegation returned to Congress claiming that some Alaskan Natives had been unable to assert claims in the program’s final days because they had been away fighting the Vietnam War.  The merits of this claim were dubious — the program had been open for decades — but nobody wanted to risk treating Alaskan Native veterans unfairly so Congress re-opened the program for eighteen months from 1998 to 2000. In a world where deals matter, that should have been the end of it.

Instead, the Alaskan delegation proposed a further extension of the authority to claim public lands in 2002. This effort failed when congressmembers who had been part of the original deal objected, citing an Interior Department letter “oppos[ing] further changes or expansion of the law, which we believe fully and fairly addresses the problem of lost opportunity due to military service for Alaska Native veterans of the Vietnam War to apply for allotments.”

Now, with many of those members out of Congress, Sen. Murkowski and Sen. Dan SullivanDaniel Scott SullivanLincoln Project targets Senate races in Alaska, Maine, Montana with M ad buy Overnight Energy: Official says protesters not cleared from Lafayette Square for Trump | Trump administration blasts banks refusing to fund Arctic drilling | 2019 coal production hit lowest level since 1978 Trump administration blasts banks that refuse to fund arctic drilling MORE (R-Alaska) are back, making essentially the same old arguments about eligible people being unable to file claims — but on behalf of a new, radically more aggressive plan, S. 785. The explanation as to why this issue needs to be revisited so many years later is hazy at best.

One gets a better idea of this bill’s purpose by comparing it to the prior program. Previously, Alaskan Natives had to have some connection with a piece of land to claim it. Under S. 785, no such tie is necessary. The original program’s purpose was to allow Alaskan Natives to live on, and off of, the land they claimed. Under S. 785, claimants can turn their land over to developers, forgoing personal use. The original program naturally allowed each Alaskan Native to make a single claim. S. 785 would allow new claims from people who already filed and won claims. The new legislation would put 500,000 acres of iconic federal lands at risk.

Far from respecting Alaskan Natives and honoring their desire to continue their traditional lifestyle, this legislation would turn them into commodities. Giant companies will identify pieces of federal land that they most desire and then scour Alaskan cities and towns for Native people to file claims for that land and sign it over for commercial development.


The Native people recruited will receive modest payments from the companies but these likely will represent a tiny fraction of the value industry extracts from this land. The idea of giving Native peoples a pittance for rights to valuable land has a long and disgraceful history in this country. Transferring money to impoverished Native people is a worthy goal, but direct payments from the federal or state governments would be vastly more efficient — and would avoid the severe environmental damage that this legislation would do.

Once industry has pock-marked wildlife refuges and other sensitive public lands with these private holdings, they predictably will campaign for road-building to access their holdings, seek land swaps to claim even more sensitive properties, and do enormous “incidental” damage to adjoining lands that remain in public hands. The environmental purposes of wildlife refuges require large, contiguous areas where animals can roam free from human interference. With this land-claiming process as a Trojan horse, that will become increasingly impossible.

Ignoring carefully crafted legislative compromises can only discourage future deal-making and exacerbate our already-severe gridlock. Cynically invoking Alaskan Native veterans to provide cover for a corporate grab of sensitive public lands undermines the core values of empathy and loyalty on which a decent society must stand. This proposal has no place in a year-end public lands legislation. 

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.