Scattered across the American West are tens, perhaps hundreds of thousands, of mining claims on federal and state lands. They come in a variety of categories: unpatented, patented, active, abandoned, fraudulent. They all are authorized by the Hardrock Mining Law of 1872 and its various permutations down through the years.
Mining is risky and costly. The chances of finding a bonanza are extremely remote, those of finding a paying claim not very good. Before 1872, because prospectors did not want to spend the money to buy land when the risk was so great, they simply trespassed, which worked as long as the government was tolerant. The Hardrock Mining Law replaced trespass with a claims regime: Prospectors can gain a right to exclusive possession of a parcel of land for mining purposes upon valid discovery of a hardrock mineral. The validity of the discovery is often problematical, but that's a separate issue. Coal, oil and natural gas were included as hardrock minerals under the original law.
However, worried that usurious corporations were using the hardrock act to hoard coal and oil lands, presidents Theodore Roosevelt and William Howard Taft blocked coal and oil claims until Congress should find a way to protect those resources. This Congress did with the 1920 Mineral Leasing Act, which takes away a presumed "right to mine," and puts coal, oil, gas and some other minerals into a different regime, requiring an economic return for a lease to mine. States quickly adopted similar leasing acts.
Since before the Gold Rush era, Alaskans and Alaska aficionados have wildly romanticized mining. In a democratic culture, the notion of a lone prospector striking it rich and becoming unbeholden to landlords, creditors and other annoyances of civilization, and meeting the high and mighty on their own financial terms in the exclusive clubs of the world, is a beguiling and pervasive one. The thoroughly unique Klondike experience exacerbated such idealization of the miner's vision greatly. In reality, though, not much prospecting and little mining has been done by lone prospectors; it's been done by agents of heavily capitalized investors funding major industrial operations.
This was apparent to the writers of the proposed Alaska State Constitution meeting in Fairbanks in 1955 and 1956. Alaska's Delegate to Congress Bob Bartlett made it clear that Congress would be unhappy with the idea of opening the land that would be deeded to the new state to mineral entry, that is, to freewheeling prospecting by corporations that might lock up the land by simply hoarding it. Perhaps themselves beguiled by the miner's romance, however, the constitution writers threw caution to the wind and included a version of the hardrock law, opening Alaska land to claims prospecting.
Congress balked, as predicted, and in the Alaska Statehood Act, Section 6(i), prohibited the state of Alaska from selling or giving away mineral rights on pain of forfeiture of such land to the federal government, as Gordon Harrison explains in his "The Alaska Constitution: A Citizen's Guide." Alaska voters approved Congress' Alaska Statehood Act in a referendum in August 1958. Thus, Alaska must retain public ownership of all of the subsurface rights of all of Alaska's land. This prohibition of state alienation of the title to its minerals was tested in the courts, most notably in 1977 (State v. Lewis) and 1987 (Trustees for Alaska v. State). Congress' prohibition was upheld. After the 1987 test, the Alaska Legislature adopted a law incorporating the leasing regime for hardrock minerals.
Alaskans might have been dismayed by this rejection of their romanticization of the Gold Rush era and mining. But not Wally Hickel. Elected Alaska governor for the second time in 1990, Hickel began widely promoting his concept of Alaska as the "owner state." State ownership of its resources, he argued persuasively, is a great blessing, giving Alaskans a level of control and opportunity other states do not have. He was surely correct.
How ironic it is, though, that it was the federal government that saved Alaska from itself, that dictated what Bob Bartlett told the constitution writers in 1955, that the state has a noble responsibility to protect its resources and link their development to maximum benefit for all the people of Alaska.
Steve Haycox is professor emeritus of history at the University of Alaska Anchorage.
Steve Haycox
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