OPINION: What is the Anchorage Museum thinking?

What could Julie Decker, the director of the Anchorage Museum, and the members of the board of the Anchorage Museum Association to whom she reports, have been thinking when they recently announced that henceforth “Alaska Natives” will be admitted to the museum for free, while everyone else will continue to pay as much as $25 for a general admission ticket?

The Municipality of Anchorage owns the museum and contracts with the Anchorage Museum Association to manage the facility. As a consequence, the museum is subject to the Equal Protection Clause in the 14th Amendment to the U.S. Constitution and to section 3 of Article I of the Alaska Constitution, which prohibits discrimination based on “race, color, creed, sex, or national origin.”

As recently as last June, in a decision called Students for Fair Admissions v. Harvard College, the U.S. Supreme Court reaffirmed that the Equal Protection Clause “applies without regard to any differences of race, of color, or of nationality — it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” And more than 40 years ago, Alaska Attorney General Wilson Condon issued an opinion in which he advised that section 3 of Article I prohibited the Legislature from enacting a statute that gave “special privileges to a class of citizens consisting of Eskimos, Aleuts, and Indians only.”

So, again, what could Director Decker and the members of the Anchorage Museum Association have been thinking?

In some ways almost even more astounding, they also announced that, for the purpose of obtaining free admission, an “Alaska Native” is any individual who says that he or she is one.

That is a reverse application of the iniquitous “one drop” rule that legislatures in Southern states enacted during the Jim Crow era to prevent individuals who possessed so much as a scintilla of African blood quantum from using drinking fountains and sitting in seats on buses and restaurants reserved for whites only.

But should an individual who had a single grandparent or a single great, or even great-great, grandparent who was an Indian, Aleut, or Eskimo be deemed an “Alaska Native” for the purpose of being eligible to receive a government benefit, which is what being admitted to the museum for free is?

In 1971, when it enacted the Alaska Native Claims Settlement Act Congress decided on its answer to that question. Section 3(b) of ANCSA defines “Native” for the purpose of being eligible to own and vote stock in an ANCSA corporation to mean “a citizen of the United States who is a person of one-fourth degree or more Alaska Indian, Eskimo, or Aleut blood, or combination thereof.” (Why the constitutionality of that explicitly racial classification has never been challenged is an interesting subject too convoluted to describe here.)

In 1971, neither the Alaska Federation of Natives nor any other Native organization objected to that definition. But the subject finally received attention in 1984, when the AFN hosted a retreat in Kotzebue that the leaders of ANCSA corporations attended whose purpose was to develop a package of amendments to ANCSA, the most consequential of which was an amendment to sections 7(h)(1) and 8(c), which authorized any shareholders who wished to do so to sell their ANCSA corporation stock beginning in 1991.

For two days, everyone at the retreat repeatedly agreed that the AFN should ask Congress to amend sections 7(h)(1) and 8(c) to prohibit the sale of stock after 1991 in order to ensure that stock in ANCSA corporations would continue to be owned and voted only by “Natives.” But then at the end of the last day, someone asked who a “Native” was. When the answer was that section 3(b) of ANCSA defines “Native” to mean a person of one-fourth degree or more Alaska Indian, Eskimo, or Aleut blood, or combination thereof, the room went silent as everyone quietly did the math.

Then someone said: “I am a Native because my grandmother was. I am married to a non-Native. Does that definition prohibit my children from owning and voting stock in my ANCSA corporation?”

Because the answer to that question was yes, the bill the AFN wrote and Congress enacted in 1987 amended ANCSA to state that after 1991 not only section 3(b) “Natives,” but also “descendants of Natives,” could own and vote ANCSA corporation stock.

What that forgotten moment in Alaska Native history illustrates is that if an individual wants to take pride in his or her racial heritage, that’s great. And if another individual does not want to do so, that’s also great. Because whether to do so or not is no one’s business but that of each individual. But when the government — be that government Congress, the state of Alaska, or the Municipality of Anchorage — employs blood quantum as a criterion for eligibility for a government benefit that individuals who have a lesser or a different blood quantum are denied, independent of the blatant unconstitutionality of doing so, as a matter of public policy, that is a slippery slope down into a quagmire that any responsible public official should want to avoid sliding into.

But in an era in which the members of the Anchorage Assembly now begin their meetings by reading a statement “that marks our collective movement towards decolonization and equity” in which they acknowledge that the room in the library in which the meeting is being held is located “on the traditional lands of the Dena’ina Athabascans,” it is no surprise that Director Decker and the members of the board of the Anchorage Museum Association have been captured by the same local zeitgeist.

But surprise or not. Really. What could they possibly have been thinking?

Donald Craig Mitchell is an Anchorage attorney, author of the two books on the Alaska Native Claims Settlement Act and “Wampum: How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gaming and Created a $28 Billion Gambling Empire.”

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