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Law Professor With Square Head Rounding Into Form?

Because we work with Native corporations all the time, the lawyers at Atkinson, Conway & Gagnon like to keep up with what is going on in the world of ANCSA. I have just read an interesting article by Douglas Branson, a law professor from Pittsburgh who has often pontificated on ANCSA corporations. .

Professor Branson’s new article appears in the Alaska Law Journal. The title of the article is ridiculously long, but the first part of it is Still Square Pegs in Round Holes? (The article can be found here: Alaska Law Review Current Issue) This title harkens back to Professor Branson’s original ANCSA law review article of 1979, which was called Square Pegs in Round Holes: Alaska Native Claims Settlement Corporations Under Corporate Law. The original article was notable for its position that ANCSA corporations should be viewed as business corporations under the law first, last and always.

The new article is full of detail that means nothing in the real world. And there are even a few inadvertently humorous points where he demostrates the great distance between Pittsburgh and Alaska. For example, he writes about filing corporate amendments with the “Alaska Secretary of State.” Real Alaskans know that, while there is an official First Dude of the State, there is no Secretary of State.

The most interesting part of the new article to me was Professor Branson’s concession that perhaps he needed to soften his stance a bit. While various parts of the article show that Professor Branson is still willing to grind that old axe, he has backed off enough to concede that “continued adherence to a single form of entity” is no longer crucial.

Yet Professor Branson misses the larger picture by continuing to insist that ANCSA corporations are bound to follow rules of organizational governance that have been developed in other contexts. He seemingly cannot grasp that ANCSA corporations are unique entities governed by their own unique law that was pulled from various places, not exclusively from the law of business corporations. ANCSA corporations were understood as being unique at the time Congress provided for their creation in 1971, and each time Congress has revisited ANCSA it has done so to reaffirm that ANCSA corporations are unique. It is not possible to be a little unique, any more than it is possible to be a little pregnant.

But buried in the article is a truly frightening paragraph and footnote. Professor Branson writes that, in his view, Section 7(r) of ANCSA only applies to Regional Corporations and not to Village Corporations. Section 7(r) authorizes an ANCSA corporation to provide health, education and welfare benefits to Alaska Natives on a basis other than share ownership. The ANCSA corporations have fought through decades of litigation over elders benefit programs. Section 7(r) was meant to put an end to this litigation. In fact, this past fall I argued in the Alaska Supreme Court the most recent case over elders benefit programs, Bodkin v. Cook Inlet Region, Inc. I had hoped that the Bodkin case was going to be last of its kind.

I fear that Professor Branson’s comments on Section 7(r) mean there are more lawsuits to come directed at the elders benefit programs of Village Corporations.