Kuiu Island, located off the Northwest Coast of North America, is home to the Kuye’di. The Kuye’di make up the Kuiu Kwáan, one of many Thlingit Nations inhabiting Southeast Alaska. For thousands of years before the other Nations of the world became aware of the island or the people who lived there, the Kuye’di enjoyed exclusive possession of their ancestral lands. The rich verdant forests, bountiful bays, and pristine seas, containing healthful species of vegetation, swarming with fish and sea mammals enabled the Kuiu Kwáan to fashion an independent society, a sovereign nation.

The Thlingit arrived in Southeast Alaska before the great flood. Different units migrated from the interior of the continent down five main rivers that empty into the sea. So long ago that the memory of man runneth not, distinct sovereign Thlingit nations came into being. This phenomenon was a natural consequence of the geography of the northwest coast of North America and its bountiful resources. The configuration of the archipelago lying offshore, composed of many islands, straits and strong sea currents fostered the development of separate nations. Each nation developed unique and similar traditional cultural customs and practices. Each established a geographically defined territory over which it exercised exclusive dominion. The several Kwáan nations respected the territory of the other nations and would only fish, hunt or harvest in the territory of another Kwáan with the permission of the owner. Violation of this respect would result in swift punishment. The nations traded with each other and with other nations as far south as Baja California before the advent of the Europeans. A high level civilization dependent only on the resources given to the inhabitants by the same God worshiped by the European Powers flourished in harmony with nature along the northwest coast of North America.

By the advent of the European traders who arrived from Spain, England, France and Russia, toward the end of the 18h century, fourteen or more distinct Thlingit nations engaged in trade with each other and with other peoples as far south as Baja California. Before 1867 no European power had attempted to colonize or occupy Thlingit country. Russia attempted to establish a trading site at Yukatat Bay. After tolerating their presence for four years, the Thlingit finally drove them off in 1805. Russian, English and American trading vessels uniformly traded with Thlingit nations but did so from offshore. Except for a trading outpost at New Archangel, [Sitka], on Baranoff Island which was first burned and later rebuilt circa 1804 and an outpost at Wrangell established circa 1834, no outsiders were permitted on the continent, Kuiu Island, or the other islands that make up the Alexander Archipelago.

I returned to the University of Texas in 1983. I had practiced law for thirty-one years in Houston, Texas, and was ready to explore another discipline. I completed my course of graduate studies in 1987. On the way to a doctoral degree our family moved to the Northwest. We spent two years in the Applegate Valley and then moved on to Whidbey Island, Washington.

I fully intended to complete my dissertation proposal and dissertation study promptly. I took time to gain admission to the Washington Bar and the Oregon Bar and had begun the research necessary to my dissertation at the University of Washington. One day the elders of the Kuiu Thlingit Nation approached me. A dear friend who knew of my legal background in property law and what she calls my tenacity suggested they seek me out.

The elders sought help. They were among a group of Thlingit elders who wanted to preserve their native culture. They were alarmed at how the natives of Southeast Alaska were being denied the opportunity to exercise their right to utilize the resources from their ancestral lands. Would I assist the Kuye'di in its effort to preserve their right to harvest these resources without which their culture would die? Could I help them protect their homeland from environmental waste and destruction? I listened to their history a story of wonder. With the white man came disease and deprivation. The society was suffering. Their story was compelling, their motives worthy of respect. I agreed to help.

I soon became immersed in the study of Thlingit culture. Indian Law as it evolved in the United States became my focus. I traveled to Southeast Alaska and met with the elders of other Thlingit Nations. I studied the history of Russia in her contact with America. I read anthropological studies. I searched the National Archives in Washington D.C. My mind became engaged; my heart filled with compassion. The dissertation, completed eventually, moved to the backburner.

My experience at the bar, in party politics, campaigns for public office, dealing with politicians, bureaucrats, and public figures at all levels of government showed me how people and institutions sometimes adopt the "what is expedient is just," standard. Too often, I found, honor and truth are sacrificed on the altar of expediency. Nothing would compare to the betrayal of principle I found after I undertook the work of helping the Kuye'di.

The Kuiu Kwáan never ceded its sovereignty or lands to the United States. How did the Kuye'di and other Alaska Natives lose their right of sovereignty over their land? Have they?

The truth is, they have not. Not by law, not by agreement did they lose their land. After the United States entered into the Treaty of Cession with Russia and thereby "purchased" Alaska in 1867, the newly discovered "gunboat" demonstrated an effective way of controlling the Thlingit warriors in the sea channels of the Alexander Archipelago. Where before the Russians had learned to respect the sovereignty of the natives and acknowledged the independence of the Thlingit nations, the United States took a different path. Assuming it had "good" title to the soil, the U.S. proceeded to intimidate the inhabitants of the Archipelago by threat of, or by force. The message to the natives in Southeast Alaska was made clear, conform. The United States soon dominated the territory of Southeast Alaska. In 1909 President Roosevelt designated the Tongass National Forest. Kuiu Island lies within the territory of the designation.

During the early twentieth century the social organization of the Thlingit Kwáans began to change. While for the most part their use of their ancestral lands went undisturbed, the "purchase of Alaska" had become an accepted "fact" in the history books of the United States. Assimilation practices by some took root. More and more the lifestyle of the Thlingit became threatened. The "educated" accommodated.

In 1934, the Kuye’di, at gunpoint, and under threat of prison if they did not send their children to school were forced from Kuiu Island. They continue to return to their ancestral lands to hunt and fish, and keep up their places of residence. They continue to assert their sovereignty.

The United States abandoned the treaty relationship with the indigenous inhabitants of Alaska. American occupation of Alaska includes no treaties When oil was discovered on the North Slope the government had to find a way to facilitate the building of a pipeline across Alaska. The rights of the Natives had to be considered to get title to the land free of "Indian" claims. Would they be consulted? Were they?

Congress enacted the Alaska Native Claims Settlement Act, Public Law 92-203 (85 Stat 688) as amended, (ANCSA) became the white mans solution to the problem of native "aboriginal claims." The Alaska National Interest Lands Conservation Act Dec. 2, 1980, ANILCA, a generous design to grant priority to subsistence rights for the natives followed. These statutes became my stumbling blocks. What property rights, if any, remained in the bundle of property rights once held by the Kuiu Kwáan after the "purchase of Alaska," and the passage of ANCSA and ANILCA? Was the 1867 Treaty of Cession between the United States and Russia the endpoint? Were the myriad number of cases defining the rights of Indians with respect to the United States the sole criteria. The more I studied the more I struggled.

During my research I studied Johnson vs. M’Intosh, 8 Wheat 543, the landmark case dealing with the title to land in the lower forty-eight States, land once held by Indians. The opinion upholding the defendants title derived from the United States against a title claim under a deed to Murray was written by John Marshall, who incidentally was a Virginian.  Intrigued by Judge Marshall's reasoning, I studied the historical development of the concept of "discovery title." I became interested in the politics surrounding the issues involved in M'Intosh. I concentrated on the history of Russia in Alaska. I will review this opinion and Marshall's reasoning later in detail.

The truth that confirms the title of the Kuiu Kwaán and other Native nations of Alaska lies hidden in the National Archives among what we call the "Smoking Gun," correspondence contained among the documents introduced into the record of the Alaska Boundary Tribunal proceedings. These proceedings held in the early 1900’s, by agreement of the U.S. and Great Britain, settled a dispute between the two powers concerning the location of the boundary between territories claimed by these two parties.

No native nation occupying land in Southeast Alaska was invited. Why not?Why the U.S. owned Alaska did it not? Of course, history teaches that the United States purchased Alaska from Russia. Why invite the Natives, Indians have only aboriginal claims.

On the contrary, the legal and historical facts revealed by the Smoking Gun documents,together with other historical events I had discovered in my research, leads to the inescapable conclusion that indeed the Kuiu Kwáan and other Thlingit Kwáans owned not "aboriginal claims," but the "fee absolute title" to their ancestral lands. By law and justice, in 1903, and from time immemorial before, the Kuiu Kwáan held the full bundle of property rights appurtenant to their land. I explained to the elders that the United States and Alaska would never accept the truth voluntarily, and left for them their options. The reply came, "We will fight for our land and culture."

The Kuiu Kwáan attempted to bring the Smoking Gun documents and their effect on current problems involving natives of Alaska to light by seeking to intervene in the State of Alaska vs. Manuel Lujan, Jr., and Secretary of the Interior NO. A 92-264, then pending in the District Court for the Southern District of Alaska. This case was consolidated with Katie John, et al vs. United States of America No. 93-35295. Katie John is an ANILCA case. The Katie John plaintiffs claimed the right to a fishery on the Copper River. The U.S. had failed to recognize that right under ANILCA. In its case The State of Alaska contends that it and not the U.S. has the right to manage the resources in the waters of Alaska. The State bases its "right" on its claim of "title to the submerged lands" acquired, it claims, by virtue the Submerged Lands Act and its right as a newly admitted State of the Union.

Attempting to intervene, in 1993, the Kuiu claimed title as against the U.S. and Alaska to the waters and the submerged lands appurtenant to Kuiu Island. The Kuye'di sought protection under ANILCA as an alternative claim for relief . The trial court refused to allow the Kuiu Kwáan intervention.

The Circuit Court of Appeals for the Ninth Circuit, in an unpublished opinion, found that title to land was not involved in the suit.

It found also that the Katie John plaintiffs would take care of the Kuiu ANILCA claim and upheld the trial court’s refusal to permit the Kuiu Kwáan to intervene. It may or may not be significant that the Katie John Plaintiffs first supported our intervention until the case was argued before the Ninth Circuit Court of Appeals. At that level the Katie John plaintiffs allowed as how they "could" take care of our ANILCA claims and allowing us in would delay the progress of the case. Had they continued to support our intervention and admitted that they could not take care of our ANILCA claims we might have then have been admitted and been entitled to assert all claims. That case has yet to proceed to trial. Interesting is it not?

The discovery of the Smoking Gun and the subsequent refusal of the Courts to allow us to try the issue of title to Kuiu Island continues to run counter to my sense of justice. In my judgment "title" was the crux of the matter in the consolidated case. The Katie John plaintiffs were not in position to assert our Anilca claims. I believed we had been abandoned by the Katie Johns for expediency. The desperate situation of the indigenous people of Alaska coupled with the inescapable conclusion required by the Smoking Gun documents aroused my passion. My sense of outrage and my compassion for the indigenous peoples of Alaska, indeed for indigenous people everywhere, compel me to write and publish this story.

This story is a story of missed opportunity and tragedy. The story demonstrates that the United States of America first adopted a fiction to seize title to the ancestral lands of the indigenous people of the lower forty-eight States. We all know the tragedy that followed. Without color of title, the United States occupies the ancestral lands of the Kuiu Kwáan and other Nations of indigenous people in Alaska to serve an expedient end. Both the United States and the State of Alaska have continued to deny the native people their right to their land and its resources. Another tragedy is unfolding.

When the Congress passed and the President signed the Alaska Native Claims Settlement Act, (ANCSA), purporting to extinguish the "aboriginal" claims of the natives of Alaska, the United States missed the opportunity of developing a meaningful relationship with the Native Nations of Alaska.

The truth, concealed by accident or by design, I know not, but the issues raised by the Smoking Gun have never to my knowledge been debated or discussed. In all my research I have not yet found any discussion of the title issue raised by the Smoking Gun documents and presented in our pleading in intervention in the consolidated Katie John case.

A recent Royal Canadian Commission on Aboriginal peoples studied the relationship of the indigenous people of Canada with the Canadian government and the people of Canada. The Commission wrote, "The fact is that in crucial dimensions, Aboriginal cultures, values and world-views were and remain fundamentally different from the organizing principles of mainstream North American society. Yet Aboriginal peoples have been denied the right to fashion their societies and institutions in ways that are consistent with these values." That observation is true. Canada has owned up to it and is attempting to remedy the situation.? The American people and the society of the United States of America are only recently beginning to understand that diversity of culture is not harmful to the great American experiment but consistent with it. What will the American society do after this story is published, deny it, debate it, or accept the truth it reveals and act upon it? Where is our courage?

What will unfold here describes why it is that the Kuye’di and other indigenous peoples of Alaska still own their ancestral lands notwithstanding the actions and laws of the United States of America and the State of Alaska.

The tragedy is that the Kuiu Kwáan and other nations of indigenous peoples in Alaska are still denied the privilege of living their culture by utilizing the resources of these lands necessary to the preservation of their culture. These people face ultimate extinction as a people.

Perhaps a greater tragedy lies in the continued failure on the part of the United States to live up to the American experiment embodied in the principle that all men are created equal and are entitled to life, liberty and the pursuit of happiness.

How often we cry, "the Truth will out." I have mentioned,"either by design or ignorance," Truth has indeed been concealed. Where was the courage of those appointed to represent the interests of the Native indigenous to Alaska while ANCSA was being debated? Did they know what I found out. Why did they not raise the issue then?

If they didn't know,they failed in their reprsentation. I will use the narrative form to tell this awesome tale, Reader please indulge my fancies, I have put flesh and bones on the principal characters. The events are true the motives or character portrayals of the principal actors are the product of poetic license.

July 5, 1773, dawned brightly. William Murray, a tall man, broad of shoulder and slim of hip, rose early. He stretched and looked out of his window. In high spirts, he prepared himself for the meeting scheduled at midday in the village open space. He felt confident. "The dawn colors portend success," he thought. "Even the clouds take on inviting forms." He chuckled, "this is going to work." He went to work on the documents he had worked on late into the night. He continued to work past his regular breakfast time. At last, deeds written, he completed his toilet. Dressing, he remarked to himself, "kindness is rewarded." He recalled the help he had given to the trapper he had met on the trail to Kaskaskia. "Of little consequence at the time," he thought. Now he saw it returned in kind. The trapper knew the territory and had lived with the Indians. On the trail he had gone on at length. He talked about Indian customs and the things they believed important. He had expressed his love and respect for them. Yesterday, he had helped Murray compose a description of the parcels of land Murray hoped to acquire by using the landmarks the Chiefs had identified. On the trail Murray hadn’t realized how valuable his experience with the man would be. Now Murray believed that without that contact he would have failed in his mission. What he had learned he had used; and now, as he went to breakfast, he knew he would succeed.

Sagacious, experienced, persuasive, patient, kind, and tenacious, Murray had arrived in Kaskaskia that spring. He had convinced a group of Pennsylvanian businessmen that the demand for land occasioned by the flood of immigrants to the English colonies would soon reach the fertile lands north of the Ohio River and east of the Mississippi. England had secured these lands for English settlers. With this group he had formed the Illinois Land Company and after raising sufficient capital the group appointed Murray their representative to accomplish their mission. The group was prepared to risk a large amount of capital in an ambitious land venture. Murray had come to Kaskaskia to negotiate the purchase of as much land as he could from a confederacy of the Illinois Nations. The Crown recognized Illinois country as Indian land.

In addition to gold, Murray had come armed with a legal opinion given by two prominent lawyers in London. One the Lord Chancellor, the other the Lord Chancellor to be. The opinion purported to support the proposition that Indian nations in America had full power to dispose of their property subject only to His Majesties Right of Sovereignty over settlements arising thereafter and the English subjects who might inhabit them. Many lawyers in London agreed. Many disagreed. Risk takers, speculators in the landlocked colonies, agreed. Others wanted to control the land settlements through government action. These argued the opinion was intended to apply only to the Princes of India. They were supported by the Virginia power elite. The Virginia colony claimed the Illinois country under the King's grant that established the Virginia Colony. Pennsylvania, a landlocked colony, could not expand westward. Private initiative took over. What the Crown's feelings about his relationship to the Indians of America was continued to be a matter of speculation among the English Lords.

Soon after he had settled in Murray had presented the opinion to Captain Lord, his Majesty's post commander. The King had established the military post to guard the country lying along the Mississippi from the French and Spanish pending a decision on how to govern the territory. In England the Board of Trade was undecided on how to proceed. Lord, a career soldier, had fought in the French and Indian war. His loyalty was with the Crown. He had observed the arrival of new settlers. They were not his problem. He knew, however, the government in Quebec was even then deciding on a policy with respect to the Illinois territory. In 1772 he had met with Jehu Hay the King's representative who was to report back to Lord Dartmouth the head of the Board of Trade. He knew Lord Dartmouth, the King's man, favored a progressive policy of expansion in the west under the Crown. He knew little of the Virginia claim. He had described the chaotic conditions that existed to Hay. He awaited instructions. His loyalty to the Crown and his skepticism toward the motives of all colonials warned him to be careful. He appeared to be unimpressed with the opinion when Murray presented it to him and cautioned Murray, "that he should not suffer to settle any of the lands as it was expressly contrary to his Majesty’s Orders."

Undaunted, Murray arranged and later held five conferences with the tribes of the Illinois Nations. Each of these lasted for hours. Every chief and sub-chief would have his say. Seizing on the opportunity to impress the traders, trappers, and new settlers of the area, Murray had invited all the British officers and all of the inhabitants of the village to attend the conferences. All conferences were well attended. Many witnessed his skill. Some onlookers even bet on the outcome. The first conference tested Murray’s abilities. Murray introduced his message talking about the land. He relied heavily on the education he had received from the trapper. "Indians in counsel talk out loud and at length to reach decisions," he recalled the man saying. Murray encouraged the chiefs to talk about how it was before the whites came. Carefully he put to memory the concerns he had heard, and how they were expressed. He realized, "these Chiefs are different from those in Eastern and Western Pennsylvania." He became cautious. At first he spoke little. He listened carefully while each Chief recalled the history of his people. He attended closely to their expressions of reluctance to trade their land. Murray exercised patience. Listening, he learned, "These Indians are much more aggressive yet more stolid than the Indians on the other side of the mountains." What is it that will move them, he wondered, power, gold, the uncertain future?"

The Indians listened as Murray outlined the options open to the tribes. He could tell they were concerned about the land and their people. Having been allies of france in the last war they knew they were not trusted by the British even though they had made peace.Murray pointed out, not as a threat, but as anaother fact of life, to both Indian and colonials, that many whites were moving west. "The people who come are not traders,"  he explained, in a sympathetic tone, "The newcomers are farmers, families, shopkeepers and the like. They will level the forests, they will till the land. They will destroy the game. They will kill the fox, the lynx and the bear who threaten their livestock."

"The Chiefs retired and returned. At each conference more talk. Murray responded to all objections in a conciliatory and empathetic demeanor. He kept to his theme. The whites who come will not respect the land, they are a threat to your lifestyle. Finally the Chiefs told Murray, "We will bring you our answer."

This was the day set for their answer. Murray ate a hearty breakfast. He felt elated. Walking to the meeting place he mused, "This project began in Philadelphia months ago. It was tough getting it off the ground, now, the fat is in the fire." The deeds were written. Kaskaskia bustled about him. The Chiefs of the Illinois Indian tribes had arrived early, and were in counsel. The British Officers and the inhabitants of the place, all whom Murray had invited to the conferences, took note that something of moment was about to take place, and gathered at the meeting place. The Chiefs were ready. "This is it," he thought.

The Chiefs too had seen a new breed of emigrant. Different from the trappers. The trees of the forest were being removed. Cabins were being built. Game was harder to come by. The old ways were threatened. Reluctantly, they had decided to yield to Murray's logic. They could no longer protect the land the Great Spirit had given into their care. Perhaps West of the Mississippi they could find peace. The French traders had been easier to manage than the English. They would take the white man's gold.

The oldest Chief rose and spoke, "We have heard our white brother, we know others will come. You speak the truth. We have seen, they will not respect the land; they will destroy it. With a heavy heart, we agree." The Chiefs, assembled, acting for their tribes, they executed and delivered a deed to William Murray conveying two parcels of land located on the east of the Mississippi, northwest of the Ohio River and west of the Great Miami. Murray paid the Indians $24,000.00. This was the first of two deeds Murray received on behalf of two different syndicates of colonists. Upon returning to Philadelphia he celebrated his success with his companions and warned them of the comments he had received from Captain Lord. It was vital that the Company get its title recognized by the Crown. The company decided to enlist Lord Dynsmore the former Governor of the Virginia Colony. Lord Dynsmore, they believed, would have influence in London and in Virginia. The latter became active in the company, albeit not without some persuasion and only after receiving a financial incentive.

Murray returned to Illinois country. This time he represented a new syndicate that included some powerful political colonists. Successful in his second foray, he received a second deed on the 18th of October, 1775. The chiefs of the Piankeshaws executed and delivered the later deed at the post of Vincennes a British military post. Murray paid the Indians $31,000.00.

When Murray returned to Philadelphia his world had changed. The colonies were in revolt. The Declaration of Independence had been signed and published. The Revolutionary War had begun. He and his partners took their deeds and claim of title to the Continental Congress. There the Virginia elite blocked every move they made and despite every strategy they adopted, Murray and his partners met with disappointment.

In may, 1776, Virginia declared itself and independent State claiming all the territory within the limits of its grant from the Crown limited by the treaty between Great Britain and France of 1763. In 1778, on the promise of land for his soldiers General Clark entered the territory and took the posts of Kaskaskias and Vincennes from the British. Virginia then established the county of Illinois which contained the land earlier granted by the Indians to Murray's syndicates. In 1783, Virginia conveyed all right title and interest and claim as well of soil as jurisdiction the tract of country granted to the colony of Virginia by the Crown in 1609, to the United States, in Congress. In May, 1779, the Assemblyof Viginia passed a law that declared all sles and deeds which had been made by ny Indian or Indians, or by any Indian nation or nationsl utterly void and of no effect.

The Murry group, undaunted, continued their effort to protect their investment and repeatedly, and at various times, from the year 1781 till the year 1816, petitioned the Congress of the United States to acknowledge and confirm their title to thos lands, under the purchases and deed from the Indians. They met with no success, and in my view, met no success because of the power and influence of the such powerful figures as Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe delegates representing Virginia at the Continental Congress, the Constitutional Convention and in the Congress and Presidency of the United States.

Zot-kee lay sleeping during a summer night of 1776. He returned home late the night before with the warrior contingent he had led toSitka.  Zot-kee represented the Kuyédi at a council of spokesmen from the Kwáans that formed the Thlingit Tribal Nations. The council requested by the Yakutat Kwáan had come about because of the activity of the gamehunters and foreign navigators who had visited the area. The council decided that each nation would continue to trade with the ships visiting their respective territories within Thlingit Country but would prevent any incursion that threatened their people or independence.

Zot-kee named for his legendary ancestor of the same name, was young and strong.  Zot-kee had been elected spokesman for the Kuiu KwáanTribal Council. He had already earned the respect of all the elders of the Kuiu Kwáan for his wisdom and intelligence. They trusted him to make decisions for the entire clan at the council. He had carried his nations resolve to be wary of the Russians in particular because of their reported cruelty to the Aleuts. The English sailors seemed to present no threat and the French seemed friendly.

Zot-kee woke. His sleep, sound though it was, ended abruptly. The mournful cry of the Kuiu timber wolf broke through his consciousness. The feeling of dread he experienced deep within his spirit did not come from the wolf's call. It came with the disturbing dream that had awakened him. He couldn't shake the feeling of anxiety that gripped him. He had faced danger many times. Fear wasnot in him. The anxiety he felt was not for himself, but his people. In his dream he had seen an apparition barely visible through the mist that covered the head of Saginaw Bay. The sea creature longer than the grey whale looked similar to the sailing ships he had seen in the straits. This creature, however moved across the water without the benefit of sail. Three armlike members extended skyward. One poured out smoke. Suddenlya yellow flash, followed closely by another and another spring from the creature.  A terrible roar deeper and stronger than that of the gray bear followed immediately. The ground shook The long housein the center of the village spit open. He heard cries of terror from inside. These cries had awakened him.

Wide awake, he wondered, "Did the dream have any connection with the council he had just
attended."Later he would relate the dream to the elders. Never having seen a steamship he did not know he had forseen the destruction of his village by the U.S.S. Saginaw in February 1869.