TOM HARDIE MEMORIAL AWARD No. 29
Subsistence in Alaska: Balancing Competing Visions of the Land in Fish and Game Management
May 2003 Judith B. Harvey ‘03
SUBSISTENCE IN ALASKA:
Balancing Competing Visions of the Land in Fish and Game Management
by
Judith Harvey
A thesis submitted in partial fulfillment of the requirements for the Degree of Bachelor of Arts with Honors in Environmental Studies
WILLIAMS COLLEGE
Williamstown, Massachusetts
2003
Acknowledgements
I would like to thank Professor Karen Merrill, my advisor, for the encouragement and academic support she provided throughout this entire project. I am also incredibly grateful to Taylor Brelsford for his input and advice, which helped to give me a deeper understanding of the Alaska subsistence issue. Additionally, I would like to thank Professor Kai Lee, my second reader, for his helpful critique of my first draft.
I had the opportunity to visit Anchorage, Alaska this past January thanks to funding from the Center for Environmental Studies and the Office of the Dean of the Faculty. I appreciate the time that the following people took to talk with me while I was in Anchorage: Marianne See, Tom Boyd, Ethan Berkowitz, Gabe Sam, and Steve Colt. I would also like to thank the Alaska Office of the Bureau of Land Management, the ARLIS librarians, the Yukon River Delta Fisheries Association, and Taylor and Terry Brelsford for their accommodation and assistance.
Last, and certainly not least, I am extraordinarily grateful for the constant support from my family and friends, without whom I would not have completed (or even started) this project.
Table of Contents
Introduction: The Relationships of Alaska’s People to the Land……………………..1 Bibliography for the Introduction…………………………………………………....12
Chapter One: The Early Development of the Subsistence Conflict…….……………13 Chapter One Bibliography……………………………………..…………………….39
Chapter Two: ANILCA and the Era of State Compliance…………………………...41 Chapter Two Bibliography...... ……………………………………………………….75
Chapter Three: Dual Management and the Search for a Subsistence Resolution….....79 Chapter Three Bibliography...... 113
Chapter Four: Conclusions…………………………………………………………...117 Chapter Four Bibliography…………………………………………………………..134
Maps
Map 1: Map of Alaska (Alaska Geographic Society)…..……………………………....2
Map 2: Generalized geographic distribution of Alaska Eskimos, Aleuts and Indians….3
Introduction: The Relationships of Alaska’s People to the Land
Alaska, land of the “last frontier,” is known for its especially vast, unforgiving landscape and harsh climate. Separated by such a far distance from the lower forty-eight states and not officially admitted to the Union until 1959, Alaska is a state with a past and a path distinct from that of other states. Central to the state’s history are the changing and various relationships between humans and the land. Due to the competing conceptions of the human-to-land relationship held by Alaska’s inhabitants, natural resource access and development has been debated since the arrival of white settlers in the eighteenth century.
Today, one of the most controversial topics of human land use concerns subsistence, customary and traditional practices that involve the hunting, fishing, and gathering of wild foods from the land. To better understand the contemporary debate and historical pieces of legislation that have attempted to reconcile competing visions of the land and subsistence, it is valuable to first gain an appreciation of Alaska’s geography and people.
Alaska’s natural landscape
Fundamental to Alaska’s geographic character are both its size and the wide diversity of its landscapes. The 375 million acres that make up the state are twice as many as the state of Texas has and four times that of California (Haycox 2002, 6). In the south of the state is the Pacific Mountain system, composed of significant ranges including the Alaska Range, in which North America’s tallest peak, Mt. McKinley, is located. Two lowland areas within the Pacific Mountain system, the Copper River Basin and the Susitna-Cook Inlet, are comprised of forested terrain and fertile farmland. North of the Pacific Mountain system are the Central Uplands and Lowlands, distinguished by gently sloping hills and the Kuskokwim, Koyukuk, Tanana and Yukon river valleys. Going north further still, are the glacier-made mountains of the Brooks Range. Beyond
the Brooks Range, extending to the Arctic Ocean, is the Arctic Coastal Plain, the land of
Alaska’s tundra. Also significant to note is that Alaska is almost entirely bordered by
water: the Pacific Ocean to the south, the Bering Sea to the west, and the Arctic Ocean to
the north. (Netstate 2003).
Map 1: Map of Alaska (Alaskan Geographic Society ©1998, cited in Haycox 2002, Frigid Embrace, viii)
The diverse populations of Alaska and their connections to the land
As could be expected across an area so vast and varied, Alaska’s land serves diverse and dynamic economic and social purposes for its equally diverse and dynamic human population. There are three main groups of Alaska Natives who have resided in the territory dating back 10,000 years and today live clustered in separate regions of the territory. The Aleut, primarily a coastal group, inhabit the southern Aleutian Islands and the westernmost land of the Alaskan peninsula. Aleutians rely on sea mammals for food
2 and other necessities such as clothes (Haycox 2002, 27). Covering much of the interior portions of Alaska are the Athabascan Indians. The Athabascan tribes live mainly in river valleys and depend on the fish and game that are plentiful in the region. In the north and northwest are the Eskimo (Inupiat) people. To survive in the harshest weather conditions, Eskimos developed tools to better hunt and more efficiently use their main food source, marine mammals (ibid., 24).
Map 2: Generalized geographic distribution of Alaska Eskimos, Aleuts and Indians groups (cited in Arnold 1976, 9)
3 Prior to the middle 1700s, when Russian settlers arrived in Alaska, the Alaska
Native population numbered 74,000 people (Arnold 1976, 8). Alaska Natives, essentially without outside contact before that time, depended almost exclusively on the hunting and gathering of Alaska’s natural resources for survival. Consequently, these regionally separate landscapes and their respective climates and natural resources have forced
Alaska Natives, and later, some non-Native settlers to the most remote parts of the state, to become acutely adapted to the particularities of the land in which they each reside. As the land has intimately shaped the strategies of survival, the relationship of people to the land has become a universal and central theme of Alaska’s many cultures, and of special importance to indigenous groups whose traditions of relating to the land date back thousands of years. Although the conditions of the land are extreme and challenging to adapt to, Alaska’s Native groups have consistently existed and even thrived off of the resources the land provides.
Colonization and settlement of the Alaska territory first by Russia and then by the
United States subjected the subsistence activities of Alaska Native groups to external
influence and regulation. Because Alaska is so large and its most extreme conditions
were considered uninhabitable by Western standards, at first there were relatively few
conflicts between the Native Alaskans and outsiders. This changed when until an
increasing influx of settlers from the lower forty-eight states in the 1800s began to
encroach upon traditional Native hunting and fishing patterns. While both Natives and
non-Natives depended on the land for survival, non-Natives realized the market potential
of the land’s natural resources and sought to capitalize on such resources for financial
gain.
4 Throughout Alaska’s many different regions, non-Native settlers developed a variety of modern industries, such as timber processing in the south and salmon canneries on the coasts. However, for the most part, at first the Native groups did not resist the
non-Native settlers, as their industries did not at first interfere with subsistence activities.
As Frank Norris explains in a history of National Park Service subsistence management,
Native and non-Native populations coexisted without much formal governmental intervention until the early 1900s, “Alaska’s Natives…were largely ignored by governmental Indian policy during the first three decades of American rule, primarily because their land and resources were either ‘undiscovered’ or were not coveted by non-
Natives (Norris 2002, 2). Yet this relatively peaceful and unregulated relationship did not exist for long. Norris continues his account of early American rule by giving examples of the increasing number of conflicts between Natives and non-Natives that occurred as white settlers began to expand their industries (ibid.).
Armed with more money and power, non-Native interests generally won conflicts
over the land’s resources, but Native interests did not merely fade away. Instead, two
very different conceptions of the land began to more clearly surface. On one side were
the white frontiersmen who hoped to get rich by mining, logging, fishing, or exploiting
other sorts of Alaska’s seemingly infinite natural resources. On the other side were
Native Alaskans who perceived natural resources to be central to their everyday existence
and, due to their traditional dependence on them, worked to maintain fish and animal
populations for future harvest seasons.
From these two conceptions of land use, different definitions of subsistence
emerged, which have in turn affected subsistence policy throughout the twentieth
5 century. To some, specifically a number of Euro-Americans, subsistence has connoted a
bare minimum existence, a state of impoverishment in which one gets by with just
enough food and other necessities to survive (Case 1989, 1009). On the other hand, for
Alaska’s Natives who inhabited the territory and relied on its natural resources for 10,000
years prior to the arrival of Russian and American settlers, the land’s resources have
taken on cultural as well as nutritional and monetary value. Thomas Berger, head of the
1984 Alaska Native Review Commission, described the distinction between Western and
Native perceptions of subsistence in this way:
The word subsistence reminds most Americans of dirt-poor farmers, scratching a hard living from marginal land. In Alaska, however, subsistence means hunting, fishing, and gathering. More than that, it means a way of life that—far from being marginal—fulfills spiritual as well as economic needs (Berger 1984, 5).
The Native definition of subsistence has increasingly been acknowledged and accepted
by non-Native Alaskans and policymakers over the last few decades as a result of the
growing influence of Alaska Native political organizations. Yet conflicts remain over the
degree to which the government should protect or preference the subsistence activities of
Alaska Natives and non-Native Alaskans dependant on the land, as many urban non-
Natives feel that their recreational and commercial interests should be protected as well.
To reconcile the different conceptions of the land and its uses held by Alaska’s diverse populations, different approaches to subsistence management and protection have been employed. Efforts by government leaders to adequately accommodate competing visions of the land have resulted in the implementation of large-scale legislative acts that have established different subsistence regimes. Yet, as such legislation represents a broad compromise of competing interests, battles over subsistence have continued, and many
6 users continue to feel that their fundamental relationship to the land remains
insufficiently protected.
Subsistence today
Despite conflicts and failed compromises between Native, non-Natives and
government parties, subsistence remains an integral and vital component of Native and rural life. Today, twenty-percent of Alaskans, or 123,000 of the state’s 600,000 total number, live in rural villages (Division of Subsistence, Alaska Department of Fish and
Game, “Subsistence in Alaska: A Year 2000 Update,” 2000, 1). In Alaska’s villages, 75 to 98% of households harvest fish and 48 to 70% harvest wildlife (ibid.). Much of the food that is harvested is shared among rural residents, and the actual number of households that depend on subsistence hunting and fishing is greater than the total number participating directly in the harvest (Wolfe 1987). Furthermore, although Alaska
Natives make up a minority of the state’s total residents, rural villagers are predominately of Native heritage (Division of Subsistence, Alaska Department of Fish and Game,
“Subsistence in Alaska: A Year 2000 Update,” 2000, 2). Thus, the customs and traditions of Native subsistence persist in villages, and hunting and fishing activities retain both economic and cultural significance.
As the following quote suggests, however, subsistence looks in some ways very different than it has in the past:
The ancient art of whaling exists alongside many examples of government-supplied amenities—the school, the state welfare office, the water truck. The people here use snowmobilies. They play basketball. They watch “Dallas” and “Donahue” on their television. Like all cultures today, this one is changing too, but their ancient beliefs and values preside. The Inupiat in the whaling villages ask, “Why are we here, if not to take whales?” (Berger 1984, 51).
Today, Alaska Natives and rural villagers need money to buy supplies for hunting and
fishing activities and to purchase other modern goods, and therefore the economy of
7 Alaskan villages can be categorized as a mixed subsistence-market economy (Division of
Subsistence, Alaska Department of Fish and Game, “Subsistence in Rural Alaska’s
Mixed Economy,” 2000). Subsistence harvests supply an average of 375 pounds of food per year per each rural resident and the “replacement value” of such foods totals between
$131 and $218 million dollars annually (Division of Subsistence, “Subsistence in Alaska:
A Year 2000 Update,” 2000, 2,3). As the costs of subsistence activities are substantially
less expensive than the costs of obtaining substitute foods in the market economy, the mixed subsistence-market economy of rural villages, while it is “cash dependant,” is also
“cash efficient” (Brelsford 2003). Thus, subsistence remains a viable livelihood despite changing management regimes and policies that have been implemented by various government authorities over the past one hundred years. And while today subsistence users employ technologies such as snowmobiles and often live in houses with modern amenities, hunting and fishing activities and their associated traditions are fundamental to
a way of life still practiced by many Native and rural Alaskans.
Due to its longstanding importance and persistence, subsistence will most likely
remain part of village life regardless of what protections – or lack thereof – are enacted
by government managers. At the same time, it is important to understand the history of
subsistence policy and the present discussion before implementing new management
strategies. As this thesis will document, it is critical that a successful management
regime is one that balances competing visions of the land’s resources because the conflicting values that are at the heart of the subsistence debate will not soon be resolved.
8 Subsistence policy: a cycle of conflicts and compromises
In legislating and negotiating subsistence policy, is it possible to satisfy all members of a population, including many whom have fundamentally different positions on the issue? Today, many Alaska Natives believe that it is the obligation of the state and federal government to protect their subsistence way of life, in a manner consistent with the Native, not Western, definition of subsistence. For Alaska Natives and many non-
Natives now living in rural areas, a fair subsistence policy is one that guarantees them preferred access to the fish and game resources they have traditionally depended upon.
Currently, the federal government offers a rural subsistence preference allowing customary and traditional consumptive uses a higher priority than commercial or recreational uses on the federal public lands it manages, in an attempt to accommodate subsistence users who depend considerably on fish and game resources.
This priority – implemented only on federal public lands, which cover sixty percent of the state – has frustrated a population of Alaskans with attachments to the land not entirely related to subsistence. Because this population sees the land for its economic potential and as a way to accommodate personal recreational uses, its members lobby for the equal opportunity for all Alaskans to take advantage of the state’s natural resources.
The State of Alaska, which today manages subsistence on state and private lands, was founded by such populations who saw the land for its economic and recreational potential. As a result, the state’s mandates and policies afford less explicit protection and accommodation of subsistence uses than federal government policies offer.
As this thesis will attempt to demonstrate, the dual federal and state management system currently in place – with the federal government managing subsistence on federal
9 public lands and the state managing subsistence on state and private lands – has balanced the needs of subsistence, as well as commercial and recreational, users. However, because the regime of divided management is at times confusing, and some believe it does not allow for adequate state sovereignty over natural resources, the following chapters will explore proposals for a new regime of unified fish and game management by the state, and will analyze the proposals in light of past regimes of unified state management in the 1970s and 80s.
It is clear that a return to unified state management would require significant revisions of current legislation, which at this time would have practical consequences for
Alaska’s subsistence, commercial, and recreational users. Historical attempts of this kind
that aim to reconcile fundamental and opposing values have set into action vigorous
renegotiations regarding access to fish and game resources. It is possible that the
enactment of a new regime would have similar effects, perpetuating the cycle of failed
compromises and embittered conflicts. In the debates following the implementation of a
new unified state management regime, subsistence users might lose the additional
protections that they have been gained through increased federal intervention.
Because many Alaskan residents would be affected by any substantial change to
fish and game management structure, it is imperative that policymakers critically
examine existing system of dual management to determine if the potential benefits of a
return to state unified management outweigh the costs. As this thesis will illustrate, the
current system of dual management has worked to balance subsistence, as well as sport
and recreational issues. By implementing smaller-scale compromises at the local and
regional management levels and allowing for diverse users’ input into policies directed
10 by different state and federal mandates, dual management has effectively addressed the
interests of competing user groups. Thus, although the system of divided state and federal management may not be the permanent solution to the challenges associated with the formulation of subsistence policy, a return to unified state management is not
advisable at this time.
11 Bibliography for the Introduction
Berger, Thomas R. 1985. Village Journey: Report of the Alaska Native Review Commission. New York: Hill & Wang.
Brelsford, Taylor. 2003. Personal interviews. Anchorage, Alaska. 12-23 January.
Case, David S. 1989. Subsistence and Self-Determination: Can Alaska Natives have a more ‘effective voice’? University of Colorado Law Review. Boulder: University of Colorado Law Review. 60: 1009-35.
Division of Subsistence, Alaska Department of Fish and Game. Subsistence in Alaska: a year 2000 update. March 2000.
Division of Subsistence, Alaska Department of Fish and Game. Subsistence in rural Alaska’s mixed economy. Presented by James A. Fall, Regional Program Manager. Juneau, Alaska. April 2000.
Haycox, Stephen. 2002. Alaska: an American colony. Seattle, WA: University of Washington Press.
Haycox, Stephen. 2002. Frigid embrace: politics, economics and the environment in Alaska. Corvallis, OR: Oregon State University Press.
Netstate. “Alaska Geography.” 2003.
Norris, Frank. 2002. Alaska subsistence: a National Park Service management history. Produced by the Alaska Support Office, National Park Service. Anchorage: U.S. Department of the Interior.
Wolfe, Robert J. 1987. The super-household: specialization in subsistence economies. Division of Subsistence, Alaska Department of Fish and Game. Paper presented at the 14th annual meeting of the Alaska Anthropological Association. Anchorage, AK. 12-13 March.
12 Chapter One: The Early Development of the Subsistence Conflict
Traditional conceptions of hunting and fishing rights
Traditional notions of Alaskan Natives’ relation to the land began to change after the arrival of Russian colonists in 1741. Prior to this event, rights to particular areas or regions of land depended almost exclusively upon divisions determined by tribal and familial associations. Oftentimes, a particular band, or extended family group, had exclusive access privileges to small hunting and fishing areas. Such arrangements were based on “relation” not possession; for, the land use rights of a site were accorded to kin of the previous generation who had hunted and fished in the area. A collection of familial bands made up a tribe, which had land rights to extended regions and all members of a tribe could freely hunt and fish in agreed-upon common areas (Arnold
1976, 15).
While some Alaska Native groups, such as the Eskimos and Athabascans, were organized exclusively at the local level, Southeastern Alaska Natives organized regionally by chiefdoms. Chiefdoms, encompassing the land of multiple tribes, determined the land rights within larger territories. Each Alaska Native culture thus had rights to certain territories, and an infringement on those rights by other Native groups without consent meant war. Consequently, Natives were highly aware of tribal affiliations and territorial boundaries. Thus, although the territory inhabited by Native groups in Alaska was large, and a single subordinate authority did not exist to unilaterally govern the territory, an internal structure guided the division of land in such a way as to reduce conflict (Arnold 1976, 15; Brelsford 2003).
13 In contrast to the Western private property model, Alaska Native groups throughout the territory – though organized by different structures – all practiced a communal approach to dividing the land and regulating land use. Such an arrangement was especially conducive to a subsistence way of life, for Native groups were able to
establish traditional fish and game harvest camps and return to them on a seasonal basis.
The communal land rights system allowed for the preservation of a semi-nomadic
subsistence way of life as it gave Natives flexibility in deciding where to hunt and fish,
allowing for moves to other, more productive subsistence lands if needed. Additionally,
while Western management regulations are routinely imposed and implemented by a
single authoritative body that governs large areas of land, Native land management
strategies were implemented through a regionalized, less hierarchical structure.
Russian colonization and disturbance
As Russians began to settle in the Alaskan territory, Alaska Native land use
patterns were disrupted, although the colonial impact on the nearly 80,000 Natives living
in the territory at the time varied from group to group. Upon arriving, Russian traders
massacred many Aleutian Natives, reducing the group’s population (Berry 1975, 12).
Many Aleuts not killed at the hands of the Russian traders succumbed to smallpox or
other diseases, while other surviving Aleuts became Russian slaves (ibid.). The Aleut
population was not the only one to feel the effects of colonialism. Sixty years after the
first Russian colonists arrived, the Russian government formed the Russian-American
Company, which received exclusive hunting and fishing rights to the territory (Arnold
1976, 26). The Russian government, however, had not entered into any official treaties
with any of the Native Alaskans before explicitly granting hunting and fishing rights to
14 the company. Although the land of the Alaska’s southeast Tlingit and Haida Indians was subject to “early and continuous exploitation by white men” who extracted furs, fish, and timber (Berry 1975, 13), the indigenous people managed to escape much of the persecution experienced by the Aleuts, as the Russians engaged in limited trade with the
Indians rather than attempting to conquer them (ibid.). Thus, although some conflicts
over natural resources occurred, the lives of the Tlingit and Haidas did not substantially
change during the one hundred years of Russian colonization.
Early United States actions affecting Alaska Natives and natural resource development
By the mid-1800s, the Russian-American Company provided little in the way of
economic profits for the Russian government, and in 1867 the United States bought the
Alaska territory in the Treaty of Cession. Historian Charles Bancroft pointedly remarked
that the land’s first settlers, the Alaska Natives, were not included in the negotiations,
concluding that by the Treaty “this vast area of land, belonging by right to neither was
transferred from one European race to the offshoot of another” (Arnold 1976, 25). In the
Treaty the rights and status of Alaska Natives were only briefly mentioned and vaguely
addressed. One specific clause of the Treaty declared that the Alaska Natives would “be
subject to such laws and regulation as the United States may…adopt in regard to
aboriginal tribes in that country” (ibid.), making tribes at least legally subject to the
policies and regulations of an external authority without attaining their initial consent.
The Treaty did not in any way address the land claims of the Alaska Natives (ibid.).
Thus, although the Alaska Natives became accountable to the United States and forced to
interact at some level with the federal government, they were not appropriated the same
rights and privileges as other American citizens. Moreover, Alaska Natives’ rights to the
15 land remained vulnerable to subsequent intrusions and exploitation by white American settlers, as they went unrecognized by the Treaty.
In the years following the United States’ purchase, white men from the lower forty-eight states increasingly extracted the territory’s natural resources, often interfering with the subsistence livelihoods of Native groups (Arnold 1976). Much of this was done in violation of the spirit of the original Organic Act, one of the first pieces of federal legislation that specifically addressed land claims and Alaska Natives. The Organic Act, passed in 1884, reserved for Congress the authority to settle Native claims (Berry 1975,
18). However, the protections of the original act came to mean very little after a
commission established by the Act declared that the extent of Native claims included
only the villagers’ homes and small garden patches, leaving the rest of Alaska’s resources
open to “bona fide settlers” (ibid.).
In addition to not allowing Native Alaskans ownership of practicable segments of
what had once been exclusively Native land, the United States exploited Native resources
by leasing out hunting and fishing rights – to which it did not legally have title as such
rights were still subject to aboriginal claims – to private businesses (Berry 1975, 17). In
1878, a salmon-canning industry began in the southeastern region of the state and
expanded westward up the coastline (ibid.,19). After this and other industries had
significantly intruded upon traditional hunting and fishing grounds in the southeastern
Alaska region, the Tlingit and Haida Indians asked the Secretary of the Interior to protect
their lands from exploitation sometime in the late 1800s (ibid.). The Secretary, however,
did not take responsibility for the Indians, claiming that under the Organic Act of 1884 it
was the task of Congress to preserve land areas for Alaska Natives (ibid.).
16 Congress at the time, however, did not entirely support the establishment of reservations, which were thought to bring additional and unnecessary costs to the federal government. Although Congress had earlier passed legislation to encourage the institution of reservations in the lower forty-eight states, by the late 1800s Congress supported Native land ownership policies and had passed legislation which divided tribal lands and allocated plots to individual Native households. This bill, known as the Indian
Allotment Act of 1887, was designed to give plots of land to Native Americans for the primary purpose of farming and thus did not extend to Alaskan land, as the territory’s land was not in most cases suitable for agriculture (Berry 1975).
Congress did not provide an alternative land allotment scheme for Alaska Natives.
The lack of attention the federal government gave to Alaska Native policy reflected a desire to avoid the costly guardianship relationship with the Alaska Natives that had been common between the government and Natives in other parts of the United States. Alaska was large and very removed from Washington D.C.; governance over the territory’s scattered and remote inhabitants seemed a daunting task. Making Alaska Natives a
“project” of the federal government would be perhaps an unduly expensive venture
without many additional rewards. Because the government and white settlers had access
to the resources they desired, there was not a pressing need to resolve the land claims
issue. For the most part, the Natives, who made up a majority of the population in the
Alaska territory, “scarcely existed” in the eyes of the federal government and were hardly
confronted in its policies from the time of the Alaska purchase through the late 1800s
(ibid.,19).
17 The establishment of the Federal Trust Doctrine and a new relationship between Alaska Natives and the federal government At the turn of the twentieth century, the Supreme Court found it unlawful for the federal government to disregard issues relating to Alaska Natives. In the 1905 decision
Berrigan v. United States, the United States Supreme Court officially required the federal government to fulfill certain obligations to the Alaska Natives as it had with other Native
Americans in the lower forty-eight states. According to the Court, the Alaska Natives were “wards” of the federal government and thus subject at times to paternalistic government policies (Berry 1975, 19-20). From this decision the Federal Trust Doctrine, which had previously only applied to Natives in the lower forty-eight, was established for
Alaska Natives. Through this doctrine the federal government acts on its authority to create special laws for Alaska Natives, presumably to protect their best interests by providing opportunities for economic advancement.
As a consequence of the Berrigan decision and court-enforced mandate of the
Federal Trust Doctrine, Congress passed the Native Allotment Act in 1906 under pressure to come up with some kind of system to provide Alaska Natives title to at least part of their land. This act was an extension of the original Indian Allotment Act of
1887, encouraging a sedentary and Euro-American way of life. Through the Native
Allotment Act and a second piece of Congressional legislation, the Native Townsite Act of 1926, Alaska Indians and Eskimos were given the opportunity to acquire limited title to 160 acres of land, provided they could prove they had used and occupied the land for at least five years (Arnold 1976, 80-81).
Consistent with the Federal Trust Doctrine, the Natives who were successful in obtaining an allotment through either of these laws were only given limited title to their
18 land; the government, acting as a guardian, reserved its right to manage the land in ways it determined best fit national, as well as Native, interests. For instance, Natives were not allowed to profit from mineral deposits beneath land allotted to them, as their title to the land did not extend below the surface (Arnold 1976, 80). Additionally, the federal government acted to protect national interests by prohibiting Natives from selecting lands that had not been reserved by the federal government (Berry 1975, 20).
Furthermore, the acts encouraged a stationary, non-nomadic way of life, and the federal agency responsible for implementing the acts refused to recognize subsistence hunting and fishing activities as proof of the use and occupancy required for an allotment
(Berry 1975, 20). Additionally, the acts were an extension of the Indian Allotment Act, which was designed for agricultural land. For this reason Robert Arnold claims that the acts were unsuited to protect the hunting and gathering lands of Alaska Natives, asking his readers “what protection for a large food-gathering territory was to be afforded by a small lot in the village?” (Arnold 1976, 81). From the provisions of the acts, it can be assumed that the government, through its policy, discouraged the continuation of traditional subsistence livelihoods.
Because of the many restrictions imposed by the “guardian” government and the general inappropriateness of the acts to Alaska Native subsistence needs, the government granted relatively few allotments. In 1960 only 80 such allotments had been successfully processed, mostly in southeastern regions of the state (Berry 1975, 19). Although the acts themselves did not appreciably impact land transfers to individual Natives or suitably provide for their well-being, their passage marked the first applications of the Federal
Trust Doctrine in Alaska and formalized a guardian-to-ward relationship between the
19 federal government and Alaska Natives. The doctrine’s early application reflected the
Western philosophy of individual land ownership, which imposed a structure of land
rights very different from the successful one that had been established by Natives
themselves. By offering allotments only to individuals, the government refused to
acknowledge the convention of communal land rights that Natives had long upheld.
Additionally, while the allotment scheme discouraged a semi-nomadic, subsistence way of life, it pushed instead for Native assimilation and the acceptance of Western values.
Natives were given incentives to construct a stable and sedentary local economy through working their allotted section of land. As the government thought it best for the Natives
to become westernized, provisions outlined in the Native Allotment Act and Native
Townsite Act reflected this policy goal.
The assimilationist policies advocated by the government concerning its treatment
of Natives was also reflected in its attempts to encourage the reindeer herding industry,
which government officials believed would help spur development and provide food for
the Alaska Natives. Even before the Berrigan decision and the Federal Trust Doctrine,
which obligated the government to provide for the welfare of the Alaska Natives, the
government initiated the training of Natives in reindeer herding in 1891 on the Seward
Peninsula (Dillingham 1999, par.2). A specific intention of the program was to
encourage Natives to leave behind their traditional customs and become civilized through
the practice of reindeer herding (ibid.). As with the Native Allotment and Native
Townsite Act, the program did not acknowledge or support Native subsistence activities
and advocated western market ideals.
20 Despite federal subsidies and support, the reindeer industry almost failed in the
1930s due to a variety of natural, economic, and competitive forces (ibid.). In order to save the industry, Congress stepped in again by passing the Reindeer Industry Act of
1937. Through this act Native groups received a virtual monopoly on the reindeer industry, causing the exclusion of most non-Natives from the industry (Case 2002, 274).
Additionally, the act touted a new respect for Native traditional practices and was thus a departure from previous assimilative policies of the early 1900s.
The Reindeer Act reflected the shift in federal policy during the Indian New Deal.
The Indian New Deal, when John Collier, director of the Bureau of Indian Affairs, promoted Native sovereignty and de-emphasized the ward-guardian relationship that had been previously supported between Native Americans and the federal government
(Mitchell 2002). Before the Reindeer Act, the federal government applied the Trust
Doctrine without taking into account the historical importance of traditional subsistence living to Alaska Native culture. To many Americans a subsistence livelihood was “the bare eking out of an existence, a marginal…way of life.” This conception of subsistence was distinct from the broader, Native definition that attached cultural significance to traditional subsistence practices (Case 1989, 1009). Identifying more with the Native definition, however, the authors of the Reindeer Act interpreted subsistence as something necessary not only for Alaska Natives’ physical survival, but also for their cultural survival. Instead of endorsing the forced assimilation of Natives into American culture, the act directed the government-supported industry to be guided by “Native values” and provided for the continuation of their “traditional subsistence way of life” (Dillingham
1999, par.3) while also sponsoring economic development activity (Case 2002, 274). As
21 a result of the act, the trust relationship between the federal government and Natives was no longer based entirely on that between a paternalistic guardian and uncivilized wards,
as the government now appeared to more consciously support Native culture and
subsistence practices in addition to advancing their economic welfare.
Although the Reindeer Act provides some early evidence for the formation of a
new, more progressive relationship between the federal government and Alaska Natives,
other actions (and the absence of others) indicate that the federal government was not especially interested in or protective of Native subsistence prior to the 1960s (Morehouse and Holleman 1994, 11). Still, the Reindeer Act, as well as increased legislation that withdrew valuable land from the public for the use and benefit of the federal government, caused non-Natives to resent the intrusion of a government they felt protected Native interests above their own (Berry, 1975, 20). As new settlers to the Alaska territory, white
Americans desired virtually unlimited access to the region’s wealth of natural resources.
However, when legislation began to prioritize Native and especially federal government access to natural resources above non-Native access, white settlers became increasingly excluded from resources they felt entitled to.
Increasing the power of non-Native residents through statehood
To establish their political power and increase their own access to natural resources, Alaska’s settlers initiated the process of securing statehood in the 1950s.
During this decade the total population of Alaska grew from 123,000 to 226,000 people, with the non-Native population increasing faster than the Native one (Leask, Killorin,
Martin 2001, 2,4). The first step in this procedure involved the creation of the Alaska
State Constitution, which provided for state administration over Alaska’s affairs. The
22 Constitution was developed by the people of Alaska in the 1956 Constitutional
Convention and officially ratified by the Alaska Statehood Act two years later. Included in the Article VIII of the Constitution, the section which governs the use of the state’s natural resources, were certain provisions which would later become relevant to subsistence issues.
Sections of Article VIII reflect the framers’ desire to assure white settlers’ equal
access to resources. Specifically, Section 3 reserves natural resources for the “common
use” of the people and Section 15 (an amendment to the Constitution passed in 1971)
guarantees “no exclusive right or special privilege of fishery.” Additionally, the state
government is required to assure certain individual rights in its natural resource
management plans. For example, Sections 16 and 17 limit the state from unnecessarily or
unfairly restricting an individual’s access to natural resources by guaranteeing due
process and equal application of laws and regulations (Alaska State Constitution, as cited
on Governor of Alaska’s home page, 2003).
On the other hand, certain clauses of Article VIII allow for a tiered system under
which not all uses must be given equal priority by the state. For example, the
Constitution declares that the state is responsible for ensuring that the land and water
resources are harvested consistent with the sustainable yield principle and, in doing so,
may preference beneficial uses over others (Section 4 and Section 13 of Alaska State
Constitution, as cited on Governor of Alaska’s home page, 2003). At the same time
however, the Constitution, while it did allow for a tiered system of uses, did not specify
that certain user groups could attain preferential access to natural resources.
23 Thus, while the Constitution of Alaska allowed the state to prioritize certain land uses that may have advanced Native subsistence protection, it mostly reflected the interest of non-Natives looking to exploit the land’s natural resources. By guaranteeing
the equal access rights to natural resources to all individuals, the Constitution’s language was later cited by those trying to block the passage or implementation of any type of special subsistence user priority over natural resources.
The Statehood Act, drafted by the U.S. Congress at the same time as the State
Constitution, further solidified the power of non-Native Alaskans and the state government over Alaska’s natural resources by providing for the transfer of management responsibilities from the federal government to the state (Section 6(e)). Additionally, the
Statehood Act authorized the state to withdraw 102 million acres of land that were
“vacant, unappropriated, and unreserved at the time of their selection” to help the state to
build an economic base through natural resource development (Hull and Leask 2000, 2)
and to provide for the interests of Alaska’s residents (Section 6b). Although given broad
authority, the state was not permitted to withdraw or manage land set apart previously by
the federal government as wildlife refuges or reservations and was required to receive
approval from the federal government before any withdrawals were finalized (Alaska
Statehood Act, 72 Stat.339 Public Law 85-508 1958).
At the time of the statehood, Native claims still had not been settled in accordance
with the terms of Congress’ 1884 Organic Act, thereby leaving certain lands vulnerable
to government and non-Native intrusion. To ensure that the state would not withdraw
important Native lands for its own purposes, Section 4 of the Statehood Act prevents the
state from selecting lands of interest to the Alaska Native population. This section
24 prohibits the state from claiming land (and fishing rights) already held in official right or
title by the Natives, as well as land “held by the United States in trust for…natives” and
land “which may belong to said natives.” Such lands would be under the complete
jurisdiction of the federal government until Congressional measures were taken to either
officially dispose of such land to the Natives or otherwise settle unsettled claims.
Through the Statehood Act, Alaska’s residents had no pressing obligation to settle
disputed Native land claims and pushed off all future responsibility to the federal
government.
The treatment of Native land claims in the Statehood Act contributed to the
growing conflict between the state and the Native people, for “while the act recognized the right of Natives to lands which they used and occupied, it did not provide any means of assuring such use and occupancy” (Arnold 1976, 100). Thus, the state began to select
its 102 million acres without substantial guidelines in place to adequately protect the
lands and hunting and fishing rights of the Alaska Natives. In documenting Alaska
Native lands claims issues, Thomas Berger writes, “Despite the fact that aboriginal title
had never been extinguished, the State considered lands used by Alaska Natives for
subsistence activities to fall within the public domain” and therefore available for its own
land selection (Berger 1985, 22). State land selections in the absence of a congressional
claims settlement thus presented a potential threat to Alaska Native subsistence
livelihoods.
To prevent the formalization of proposed state land selections that Alaska Natives
believed might compromise their traditional hunting and fishing practices, Natives
appealed to the federal authorities. In 1961 the state proposed a land selection near an
25 Athabascan village located in the Minto Lakes region of Alaska’s Interior region for the primary purpose of building a recreation area, though the area was additionally believed to hold significant oil reserves and would potentially serve to help the state’s economic development (Arnold 1976, 100). The Native population of Minto, however, maintained that such a selection and subsequent development of the land would significantly harm their subsistence livelihoods and that, as inhabitants who had for many years greatly depended on the resources of the land, they were entitled to keep the land under Native control (ibid.,101). In order to make their complaints known, the people of Minto appealed to the United States Department of the Interior (ibid.), which had final authority in approving state land selections. In response to the Minto petition and other similar
Native land claims that conflicted with potential state selections, the Department of the
Interior remained indifferent to Native assertions of rights. Instead, the Secretary differed to the state and allowed the state discretion in choosing lands not already owned or coveted by the federal government. Thus, in the early years after the establishment of statehood, Natives had little influence over the federal or state government and were unable to secure a Congressional settlement assuring their own land rights.
Native mobilization for a claims settlement
Over the course of the latter part of the 1960s, however, Alaska Native populations mobilized to more effectively pressure the federal government to protect the
Native way of life by settling land claims and protecting subsistence livelihoods compromised by proposed state land withdrawals. Donald Mitchell, author of numerous works on Alaska Native land claims, credits the beginning of Native mobilization and political development in the 1960s to two things: funding for Native political activities
26 through President Lyndon Johnson’s War on Poverty and the emergence of Native leaders politically conscious enough to know how to spend it (Mitchell 2001, 11).
By the end of the decade, scholars Gerald McBeath and Thomas Morehouse report that Alaska Native communities were significantly impacted by War on Poverty programs, which provided substantial federal financial and programmatic support to address Native issues, especially in rural Alaska throughout the 1960s. The establishment and expansion of such programs facilitated the political development of
Alaska Natives by helping to train Native leaders. For instance, federal funding provided money for tuition grants to Alaska Natives, which led to the increased enrollment of
Natives in universities. McBeath and Morehouse argue that the most significant result of
Native leadership development was “the knowledge that Natives gained of the statewide problems of Native communities and of the agencies and officials that could induce change” (McBeath and Morehouse 1980, 33).
This new Native consciousness, which developed at the time of the Civil Rights movement and concurrent mobilization of previously marginalized groups in the United
States, spurred Native efforts to settle land claims and protect Native culture. The messages of politically astute Native leaders, who worked for organizations such as the
Alaska Federation of Natives (AFN) and Inupiat Paitot (“People’s Heritage”), began to reach wider audiences. With funds received from outside backers and indirect support from the federal government (Mitchell 2001), a statewide Alaska Native newspaper, The
Tundra Times, was established in 1966 (Arnold 1976, 99). The Tundra Times, writes
Alaska Native Land Claims author Robert D. Arnold, “gave Alaska Natives a common voice for the first time…its impact was to be most far-reaching in the attention it gave to
27 land rights of Eskimos, Indians, and Aleuts” (ibid., 100). Support for a Congressional
settlement sympathetic to Alaska Native culture and livelihoods grew over the course of
the decade as both Natives and non-Natives began to question whether the federal
government was living up to its trust agreement with Alaska Native people and protecting
Native rights.
During this period, the issue of subsistence became increasingly politicized; for,
Natives felt that the perpetuation of a traditional livelihood was their right, not a privilege
allotted by government authorities. Alaska Natives felt it to be the particular
responsibility of the federal government to ensure that their subsistence way of life and
the lands they depended on for subsistence activities, central to their cultural and
economic welfare, were protected. For instance, Natives began to demand that the
federal government stop the state from encroaching upon Native subsistence lands
through the Statehood Act. Development of state selected lands and construction of
roads through these lands would potentially interfere with Native hunting and fishing
practices by disrupting animal migrations and damaging the habitats of fish and wildlife.
Additionally, federal land withdrawals and regulations often conflicted with patterns of
subsistence resource harvesting. In 1961, for example, federal agents arrested two
Inupiat men for violating waterfowl hunting laws on land that had been withdrawn by the
federal government. Although the charges were eventually dropped, the incident showed
the need for an agreement between the federal and Native parties regarding land
selections and subsistence rights (Berger 1985, 23).
Finally, in 1966, the Secretary of the Interior Stewart Udall responded to Native
concerns and instituted a “land freeze,” thereby halting further state and federal selections
28 until a comprehensive Native land claim settlement was passed by Congress (Arnold
1976, 117). Although such action was only temporary, Alaska Native subsistence supporters considered its enactment a substantial victory. At the same time, the Secretary
Udall’s action aggravated relations between state and federal authorities. Governor
Wally Hickel claimed that the land freeze was contrary to the provisions of the Statehood
Act and brought his complaint against Secretary Udall to court (Arnold 1976,118).
Building pressure for a land claims settlement after the discovery of oil in Prudhoe Bay
Conflicts between the state and federal government and Native and non-Native interests, initiated in part by the land freeze, became exacerbated in 1968 after the first
large discovery of oil in the state, which was found off the northernmost tip of Alaska in
Prudhoe Bay. After selecting certain oil-rich lands near Prudhoe Bay and selling $900 million worth of leases on them to oil companies, the state found that its land selection – as it was made during the land freeze – had only been “tentatively” approved. The state’s income was significantly lower than expected because, as a consequence of the freeze, it was prevented from profiting from Alaska’s land resources (Arnold 1976, 123).
The state and the oil companies with leases in Prudhoe Bay, as well as non-
Natives hoping to receive benefits from development, were not the only parties interested in ending the land freeze. The federal government also had claims in potential oil deposit sites. All profits, however, would remain negligible until Congress reached a land settlement and compensation agreement with the Alaska Natives. It would not be politically feasible, as had been accomplished previously by the government concerning land of the Tlingit-Haida Indians, to take away land for natural resource development and provide only a belated monetary payment in return (Berger 1985, 23). The Alaska
29 Natives, whose voices were articulated by increasingly powerful Native leaders, wanted official title to a significant amount of land to be used for their own purposes and financial compensation for other aboriginal lands they would transfer to the federal and state governments.
Although the 1960s was a time when Native leaders and communities organized statewide for the main purpose of attaining a land settlement, Native interests in such a settlement were not all the same. The discovery of oil contributed to a divide between
Alaska Natives within the claims settlement movement. Like other sorts of development, drilling for oil has the potential to damage hunting and fishing populations and negatively affect subsistence living. For this reason many Natives opposed a settlement that would have allowed for excessive oil exploitation of Native lands and instead lobbied for one that would first and foremost protect subsistence hunting and fishing and a traditional Native way of life. In a statement to the Alaska Federation of
Natives Board of Directors, William L. Paul, Sr., a prominent Alaska Native rights advocate, proposed that the planned settlement include a provision allowing for Native hunting and fishing rights consistent with “the manner of aboriginal mode of life” (Paul
1971, par.11).
Other Native and non-Native interests were more concerned with the economic potential of the oil and mineral resources than with the cultural value of the subsistence resources of the land. White settlers wishing to capitalize on resource deposits emphasized the spirit of the Alaska State Constitution, which they claimed guaranteed
“equal opportunity for all seekers,” and were opposed to bills allowing special access privileges to the minority Native population (Anthony 1969, par.10). Many in the white
30 population in Alaska held beliefs similar to those of Leo Mark Anthony, a businessman
active in the mineral industry, who said of Alaska: “look at the land – there’s not much
on it, whatever wealth is there lies under the ground” (ibid.). To him and others, living
directly off of the land was not a desirable existence. Like the Russian and American
settlers before them, they believed the land was to be exploited for what resources could
be sold for profit, used to create employment opportunities, and generate economic
development. A subsistence livelihood did not promote any of these economic values,
and the supposed cultural significance of subsistence activities did not warrant
government support of unprofitable ventures.
Aspects of Anthony’s attitude towards the land, however, were not exclusive to
white Alaskan entrepreneurs. Certain Natives also desired to profit from the newfound
oil and mineral wealth, despite the fact that doing so might require departing to some
extent from the subsistence activities that a majority of the Alaska Native population still
took part in (Upickson and Edwardsen 1971, par.9). Part of this desire for change
stemmed from the relative poverty experienced by Native populations. Although the
Bureau of Indian Affairs and the Public Health Service, had provided approximately 43
million dollars to provide for the welfare of Alaska Natives, poor conditions such as
dilapidated housing, high incidences of disease, malnutrition, and sub-standard
educational systems remained prevalent throughout Native villages (Herrigan 1969,
par.6). As certain aspects of these conditions were the consequence of unsuccessful
traditional livelihoods, many Natives wished to improve their quality of life, newly
reshaped under the influence of Western standards.
31 The desire for a share of the economic dividends from natural resources, extending beyond a livelihood based purely on subsistence activities, came mainly from a segment of Natives living in the Arctic Slope region of northern Alaska, where the potential for oil was predicted to be high. Representatives of the Arctic Slope Native
Association (ASNA) asserted that it would only be just for the Natives who had lived on the land for generations to receive revenue from the oil resource (Upickson and
Edwardsen 1971, par.9). Additionally, the ASNA emphasized the “special” trust relationship between the Natives and the federal government, which ANSA felt should be considered before pursuing a policy many Arctic Slope Natives believed was detrimental to Native economic development (ibid., par.12).
Thus, as some Natives prioritized Western-style economic growth and others wanted more protections in place to ensure the existence of traditional livelihoods, an
entirely unified position on a claims settlement seemed unattainable. However, as the
state and federal government, as well as other Alaskan residents, desired to profit from
the new oil wealth and a settlement would potentially bring the needed resolution to the
long-standing claims debate in a way that addressed concerns brought by the recently
mobilized Alaska Native population, all parties involved continued in negotiations
throughout the 1960s and early 1970s.
The Alaska Native Claims Settlement Act of 1971
In 1971, a legislative agreement known as the Alaska Native Claims Settlement
Act (ANCSA) was reached between the Alaska Natives and Congress, more than 100 years after the United States bought Alaska under a treaty that only briefly considered the
interest of the territory’s first inhabitants. Through ANCSA more than 40 million acres
32 of land was promised to the Alaska Natives. In addition, Alaska Natives received $465 million directly from the federal government and up to $500 million in state mineral revenues in compensation for aboriginal land rights extinguished by the Act. Included under the category of extinguished land rights were hunting and fishing use rights based on previous or traditional use of the land (Arnold 1976). Consequently, Alaska Natives lost certain use rights as well as land rights, and were officially made subject to government regulations regarding subsistence activities throughout the state.
The money received in payment would be distributed to thirteen Native for-profit corporations and indirectly trickle down to smaller village corporations. Each eligible
Native was entitled to shares in his or her particular regional and village corporations that could not be sold (either to Native or non-Native parties) until twenty years after the enactment of ANCSA in 1991. The 40 million acres in land selections would be awarded to the regional corporations (39 million acres) as well as local village corporations (1 million acres). For-profit regional corporations would have the subsurface land rights to village lands and other selected lands in the region; village corporations, run as either for- profit or non-profit organizations, would receive surface rights to village land and some limited land in the surrounding area. Both village and regional land selections would have to be approved by a federal government agency. The lands selected by the more powerful regional corporations would be theoretically of high economic potential (i.e. oil-rich or well-endowed with other marketable natural resources). Village corporations, on the other hand, were expected to select land that would help protect the traditional livelihoods and customs for the 55,000 Alaska Natives living at the time throughout the state.
33 Despite the fact that ANCSA entirely changed traditional Native conceptions of land use and rights by imposing a corporate system of ownership and authorizing the
transfer of most of the territory’s lands to the federal and state government, a large
segment of Native representatives supported ANCSA, as evidenced by the fact that
delegates to the Alaska Federation of Natives (AFN) supported the bill at a convention by
a vote of 511 to 561 (Tundra Times 1971). While many Natives were saddened by the
relinquishment of their rights to so much of the land they had used and occupied for
generations, it seemed to many the best compromise that could be reached between the
federal, state and non-Native interests2. No act would allow them to completely retain a traditional subsistence-based livelihood, as an act rejecting all aspects of modern society would be both undesirable and impractical to all parties. The AFN delegates, upon whose approval President Nixon based his decision to sign ANCSA into law, believed that the act balanced the Western-style goal of economic advancement with the Native objective of protecting traditional culture and values (paraphrased from selections of the author’s History 474 research paper, 2002).
While many Alaska Natives were hopeful that the claims settlement would lead to improvements in their daily lives, certain provisions of the act specifically threatened
Native subsistence. Section 4(b) of the act unambiguously prohibited the continued existence of aboriginal land rights based on use and occupancy, including aboriginal
1 Those delegates in opposition to the Act were primarily from the oil-rich Artic Slope region. Reasons for their dissent had more to do with the fact that they felt they were not being compensated enough for lands lost than discontent with the corporate structure of land rights instituted by ANCSA (Upickson and Edwardsen, 1971). In Village Journey, Thomas Berger reports that although representatives from certain Native organizations such as the AFN thought ANCSA to be “defective on many counts, they nevertheless felt it was the best deal they could get” and thus supported it (Berger 1985, 26).
2 After speaking with Alaska Native villagers ten years after the passage of ANCSA, Thomas Berger notes that Alaska Natives reported that they were not sufficiently consulted in decisions affecting the land claims settlement and the AFN delegates did not appropriately represent their interests (Berger 1985, 26).
34 hunting and fishing rights (Arnold 1976). Thus, lands throughout Alaska would be
subject to certain state hunting and fishing regulations. Additionally, although the
amount of land to which Natives were slated to receive title would contribute to the protection of Native subsistence activities, the settlement did not give title to all of the lands that were used by the 55,000 Natives living at the time in Alaska (Brelsford 2003).
Because most Natives lived dispersed throughout the state in numerous small villages, the actual land provided per village did not offer enough area to encompass all village subsistence activities, which customarily extended over wide areas (Brelsford 2003).
Many traditionally established harvest areas were located on land that was to be
transferred under ANCSA to federal and state government. Because the government
owners would manage the land to best provide for their interests, subsistence users would
potentially have to compete with other parties to secure subsistence protections on what
would officially become state and federal land.
The type of lands that would likely be proposed for selection by the corporate
entities established by ANCSA also had the potential to endanger the continuation of subsistence living. While traditional ownership and use rights had been arranged communally on the basis of family, tribe, and chiefdom ties for the purpose of perpetuating the existence of a subsistence livelihood, the for-profit structure imposed by
ANCSA encouraged that the corporate acreage allotment be strategically chosen to generate maximum economic gain. In most cases this meant that the land selected by the regional corporations would be selected for natural resource development potential, not its subsistence value. Although resource development would potentially reduce the subsistence value of the land, a result not desired by many Natives, ANCSA dictated that
35 corporations’ Boards of Directors could choose to select, develop, or sell land without the approval of their stockholders.
Since the for-profit regional corporations were not structured to protect
subsistence activities, village corporations and institutions were forced to do so, though
often lacking the financial, political, and land resources to best serve the interests of subsistence users. Village corporations which were unwilling or unable under ANCSA’s restrictive provisions to select economically valuable land would potentially face bankruptcy, as much of the land settlement compensation went directly to regional corporations (Arnold 1976). Because Natives believed village corporations might face economic collapse, some thought by some that the village lands would eventually have to be sold, thus further compromising subsistence activities (Berger 1984).
A complete rejection of a Native subsistence livelihood, however, was not
ANCSA’s intention, as evidenced by a report of the Congressional Conference
Committee accompanying the act, which stated that members of the committee expected
“both the Secretary (of the Interior) and the State (of Alaska) to take any action necessary to protect the subsistence needs of the Natives” (“Alaskool” excerpt of Senate Report 92-
581, 92nd Congress, 1st Session 1971, cited 2002). Thus, with the extinguishing of aboriginal hunting and fishing rights, in conjunction with loss of lands used for subsistence purposes, the Report of the Congressional conference committee made clear that the continuation of Native subsistence depended heavily on protective initiatives taken by the federal authorities and favorable state management.
The federal government’s Secretary of the Interior had the ability to protect the
subsistence activities of Alaska Natives by denying particular federal and state land
36 withdrawals or easement requests and allowing instead for Native choice of the land in question. However, the Secretary was limited in his power to protect subsistence lands, as he could only approve of village land selections that met ANCSA’s strict conditions
(Brelsford 2003). For instance, village land selections were required to be “compact and contiguous,” meaning a village could not choose land that extended far beyond the village, even if villagers traditionally had used the land for subsistence activities (Bigjim and Ito-Alder 1974, ch.6). Still, if a proposed state or federal selection and the expected
use of the associated land would negatively affect, for instance, caribou migration across
Native lands, the Secretary could reject the proposal. Furthermore, the Secretary could impose restrictions on selected land to limit or prohibit oil drilling, thus reducing the effect of the industry on subsistence populations. In taking any of these actions, the federal government would work to fulfill its trust doctrine and ANCSA obligation to protect Native subsistence. At the same time, there were no formal provisions established by ANCSA or its conference committee to ensure that subsistence would be protected to the satisfaction of Native users.
Additionally, the state, now responsible under the Statehood Act for managing natural resources, could enact certain regulations that would facilitate the continuation of
Native subsistence. However, the Alaska State Constitution, which guaranteed equal access to resources, placed subsistence users in competition with the larger Alaskan population, many of whom desired to participate in recreational hunting and fishing activities and profit from oil development activities. Due to these conflicting interests and different views of what the land had to offer, state and Native subsistence user interests were poised to clash over hunting and fishing regulations.
37 Thus, ANCSA’s provisions established a corporate land rights structure, extinguished aboriginal hunting and fishing rights without specific protections, and gave
much discretion to federal and state authorities in the creation of subsistence policy. At
the same time ANCSA allowed increased Native self-determination over the lands they
eventually selected to enact subsistence protections. The following chapter will illustrate
that the extent to which subsistence was protected in the aftermath of ANCSA critically
depended on the actions taken by state and federal authorities. As this chapter has
attempted to reveal, government actions are often influenced by the evolving
relationships between the state, federal and Native parties. Prior to the passage of
ANCSA, the federal government’s obligation to Alaska Natives under the Federal Trust
Doctrine caused for federal officials to take some, albeit limited, action on behalf of
subsistence users. In contrast, the state government – founded and run primarily by non-
Native urban residents – has had less motivation to protect subsistence users, as it
focused on oil development and worked to protect equal access to natural resources.
Thus, the relationships among federal, state and Native parties impacted subsistence
policy before the passage of ANCSA. As subsequent chapters attempt to demonstrate,
these relationships continue to play an important role in subsistence policy.
38 Chapter One Bibliography
Alaska State Constitution. As cited on the Governor of Alaska’s homepage. 2003.
Alaska Statehood Act, 72 Stat. 339 Public Law 85-508. 7 July 1958. Alaska Statehood Act, Compact with the United States: Section 4. As cited on Landye Bennett Blumstein LLP. 1998.
Anthony, Leo Mark. 1969. Statement provided at Congressional Hearings concerning the native land claims bill. Anchorage and Fairbanks, Alaska. 17-18 October. As cited on “Alaskool.” 1998-2000. University of Alaska Anchorage: Institute of Social and Economic Research.
Arnold, Robert D.1976. Alaska Native land claims, Anchorage, AK: Alaska Native Foundation.
Berger, Thomas R. 1985. Village journey: Report of the Alaska Native Review Commission. New York: Hill & Wang.
Berry, Mary Clay. 1975. The Alaska pipeline: The politics of oil and Native land claims. Bloomington: Indiana University Press.
Brelsford, Taylor. 2003. Personal interview. Anchorage, AK, 12-23 January.
Case, David S., Alaska Natives and American laws, Fairbanks, AK: University of Alaska Press, 2002 editions.
Case, David S. 1989. Subsistence and self-determination: Can Alaska Natives have a more ‘effective voice’? University of Colorado Law Review. Boulder: University of Colorado Law Review. 60: 1009-35.
“Congress Passes Alaska Native Land Claims Bill: ‘I didn’t know whether to laugh or cry’”. A Scrapbook History: Alaska Native Claims Settlement Act. 1991. Tundra Times. p.61. As cited on “Alaskool.” 1998-2000. University of Alaska Anchorage: Institute of Social and Economic Research.
Dillingham, Terese. 1999. Playing reindeer games: Native Alaskans and the Federal Trust Doctrine. Boston College Environmental Affairs Law Review. Boston, MA: Boston College Law School. LEXIS: 26 B.C. Envtl. Aff. L. Rev. 649.
39 Henninger, Daniel. 1969. Alaska: Share the Oil. New Republic, v.160, pp.15-17. 28 June 1969. As cited on “Alaskool.” 1998-2000. University of Alaska Anchorage: Institute Social and Economic Research.
Hull, Teresa and Linda Leask. 2000. Dividing Alaska, 1867-2000: Changing land ownership and management. Alaska Review of Social and Economic Conditions. 32, No. 1: 1-12.
Leask, Linda, Mary Killorin, Stephanie Martin. 2001. Trends in Alaska’s people and economy. Prepared for the Alaska 20/20 Partnership Bringing Alaskans Together to Chart Our Future by the Institute of Social and Economic Research, University of Alaska Anchorage, and the Alaska Humanities Forum.
McBeath, Gerald and Thomas Morehouse. 1980. The Dynamics of Alaska Native Self- Government. Lanham, MD: University of America Press.
Mitchell, Donald Craig. 2001. Take my land, take my life: the story of Congress’s historic settlement of Alaska Native land claims, 1960-1971, Fairbanks: University of Alaska Press.
Morehouse, Thomas, and Marybeth Holleman. 1994. Occasional paper 22: When values conflict: accommodating Alaska Native subsistence. Institute of Social and Economic Research, University of Alaska Anchorage. Anchorage, AK: ISER- UAA.
Paul, William L., Sr., “We Own the Land: Statement by William L. Paul, Sr., to the AFN Board of Directors, Alaska Federation of Natives’ Convention, Fairbanks, Alaska, October, 1971,” Alaska Native News Magazine, August 1984. As cited on “Alaskool.” 1998-2000. University of Alaska Anchorage: Institute of Social and Economic Research.
Senate Report of ANCSA Conference Committee. Rpt. 92-581, 92nd Congress, 1st Session, December 14, 1971, as cited in “Major Federal and State Laws and Court Decisions Affecting Subsistence, 1971-1991.” Excerpt, as cited on “Alaskool.” 1998- 2000. University of Alaska Anchorage: Institute of Social and Economic Research.
Upickson, Joseph and Charles Edwardsen, Jr. 1971. “Why the Arctic Slope Inupiat said NO to ANCSA,” letter to the President of the United States. Reprinted by Alaska Native News. v.2, p.16. (September 1984). As cited on “Alaskool.” 1998-2000. University of Alaska Anchorage: Institute of Social and Economic Research. (2002)
40 Chapter Two: ANILCA and the Era of State Compliance
With the passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971, aboriginal hunting and fishing rights were abolished. Throughout the 1970s, competition
for natural resources increased and it became clear that those who depended most on
subsistence resources were not sufficiently protected under the provisions of ANCSA.
Consequently, the federal government included additional protections for subsistence
users under Title VIII of the Alaska National Interest Lands Act (ANILCA), passed in
1980. This chapter will trace the dynamic relationships between the federal government,
state government, and Alaska Native and non-Native residents, from the years leading up
to the ANILCA through 1989, when the state lost authority over game management on
federal public lands after the State Supreme Court decision, McDowell v. State. Disputes
between the involved parties were brought for resolution to the state legislature, voters of
Alaska, management authorities, and state and federal courts. A frequent subject of
continued negotiation was the design and implementation of a new system of federal
public land subsistence management, and especially controversial was the system’s
provision for a subsistence priority to rural Alaskan residents. It is important to note,
however, that despite the conflicts, the 1980s is now referred to as the era of compliance,
as state authorities satisfactorily followed ANILCA’s federal mandates throughout the
period.
The extent that Native and rural subsistence users were protected under state
management depended upon ongoing negotiations and compromises made between state,
federal and Native interests. Todd Moster, in an analysis of state sovereignty movements
41 and Native political development at ANILCA’s adoption, explains the unique importance
of the interactions among the parties involved:
In Alaska, perhaps more than any other state, the status of Native people is the result of a delicate balancing of federal, state, and Native interests. Even a slight shift in this fragile triangle of power could have a major impact on this special relationship. (Moster 1981, 203)
The implementation of ANILCA challenged the “delicate balancing” of interests, and
power struggles between the parties affected subsistence policy throughout the 1980s. At
the beginning of the decade, the federal government, in deference to traditional state authority over wildlife and seeking a unified management program, wanted the State of
Alaska to retain management responsibilities over the federal public lands it had
withdrawn through ANILCA and previous laws. Through ANILCA’s subsistence
provisions, however, Congress imposed certain mandates that restricted state autonomy over hunting and fishing regulations on federal lands. Of these mandates, the most
controversial was the provision for a rural subsistence priority, which many Alaskans and state officials complained was contrary to the “common use” clause of the State
Constitution. Because the state perceived the federal law to be an infringement of state sovereignty, relations between the two governments became increasingly tense after
ANILCA.
In response to ANILCA and the new state management regime, rural villages, made up of primarily Alaska Native residents, began to demand a greater voice in the
state hunting and fishing regulatory decision-making process. In many cases, villagers
found support for their cause both in clauses of ANILCA and the federal government
policy of Alaska Native self-determination, which advocated more autonomy to Native
groups, thus further fueling the debate between federal and state governments. Urban
42 recreational hunters, on the other hand, felt the federal mandates to be unfair and petitioned for a repeal of the rural priority and increased autonomy of state management.
Struggles between the state management authorities making regulations and subsistence
Native and non-Native user groups who were expected to adhere to the laws continued,
as many users felt that their needs were not incorporated into fish and game policies.
This chapter explores chronologically the state and federal laws, regulations, and
court decisions concerning subsistence and the reactions of user groups. The first section
will discuss the period immediately after the passage of the Alaska Native Claims
Settlement Act (ANCSA) and the motivations behind and the interests involved in the
adoption of the 1978 state subsistence law. As this chapter will show, the 1978 law did
not go far enough in protecting subsistence users, as it allowed for virtually all Alaskans
– regardless of their dependence on wild foods – to qualify as subsistence users. The second section will analyze the varying and opposing political interests involved with the creation and adoption of ANILCA’s Title VIII, which was passed in response to the growing need for additional protections for subsistence users. Because ANILCA’s subsistence provisions represent a compromise of many conflicting interests, and was open to multiple interpretations, the passage of the Act did not resolve the subsistence debate. The third section of the chapter will analyze the subsequent battles fought in the state legislature, state management authorities, and state and federal courts that occurred during the first ten years of the implementation of ANILCA. Both sport and subsistence users expressed dissatisfaction with the federal and state laws and the management policies formed in response to the laws. Contrary to ANILCA’s intent, under state management Alaska Native groups received limited say in management decisions and
43 although their subsistence practices were supported by the state, they were not entirely
protected. Sport hunters from urban Alaska were the interest most influential in
challenging management practices. Their campaign against the rural residents’ priority
cumulated in the State Supreme Court ruling, McDowell v. State, which repealed the
priority and put the state out of compliance with ANILCA and no longer in control of
game management on federal public lands.
After ANCSA: the effects of extinguishing aboriginal hunting and fishing rights
“Cooperative federalism” and subsistence management
The extent to which ANCSA’s provisions would affect Alaska Native and rural
subsistence was dependent both on the particular regulations adopted by the new state
fish and game management agencies and the implementation of certain federal mandates.
As a compromise to Native subsistence interests, the ANCSA Congressional conference
committee had noted in its report that both the State of Alaska and the U.S. Department
of the Interior were to be responsible for the protection of subsistence on Alaska lands
after aboriginal hunting and fishing rights were extinguished (Fall 1990, 69). In order to
meet its obligations under ANCSA, in addition to those under the Federal Trust Doctrine,
Congress could invoke its constitutional authority to manage public lands (AFN,
“Subsistence Chronology,” 1998). Thus, although the state was to be responsible for
managing Alaska’s public lands, its management authority was contingent on federal
approval of state laws. If the federal government finds that state statutes and policies
conflict with federal interests and mandates, the responsibility of subsistence
management on federal public lands would potentially shift back to the federal
government. In this model, known as “cooperative federalism,” the federal government
44 authorizes and helps to fund state management programs in developing policies consistent with federal and state mandates and responsibilities (Brelsford 2003, citing
Case 2002).
1978 state subsistence law: the first guarantee of a subsistence priority
To fulfill state obligations with regard to subsistence under cooperative federalism, the state Commissioner of Fish and Game and the Boards of Fish and Game issued in 1973 a policy statement declaring that subsistence use would be accorded the highest use priority (Norris 2002, 66). However, no steps were taken to formalize this commitment to subsistence through statutes or management regulations. In 1975 the western Arctic caribou herd became severely depleted, causing the Boards to reduce harvest quotas (ibid.). Villages that had been dependent on wild game were required to substantially reduce their harvest from 20,000 animals per year to 3,000 animals (ibid.).
The absence of an official subsistence priority required traditional subsistence users to
openly compete with commercial and sport users for depleting resources. As it became
clear that the lack of such a priority caused significant hardship to those most dependent
on subsistence activities, a movement to establish such a priority began among state
legislators who hoped to create a new law that would better meet federal subsistence
mandates, which they were obligated to fulfill under cooperative federalism (Brelsford
2003).
At the time of the caribou crisis, a law was passed by the state legislature
authorizing the Boards of Fish and Game to create separate regulations for subsistence
users. The Boards, primarily representing the interests of recreational sport hunters, were
“less than enthusiastic” about creating regulations to protect subsistence and believed it
45 important to allow for equal access to natural resources for both urban and rural users
(Norris 2002, 66). Yet resource pressures continued, in part as a response to the 25%
increase in state population that came as a result of the Trans-Alaska pipeline construction from 1973-1977 (Hull and Leask 2000) and increased harvest of fish and game (McBeath and Morehouse 1980, 88). The conflict between recreational hunters and rural Native and non-Native subsistence users intensified during this population boom, as it became apparent that harvests by all user groups would have to be increasingly restricted in order to meet the sustained yield principle required by Section 4 of the State
Constitution (AFN, “Subsistence Chronology,” 1998). The effect new state law restrictions would have on each user group depended on the law’s criteria enumerating
the uses or users that would qualify for a subsistence priority. Thus, urban and sport
hunters lobbied for a broad subsistence law that would protect all Alaskans’ access to fish and game resources; Native and rural parties wanted a law that restricted the subsistence priority to those most dependent on fish and wildlife resources.
To construct a subsistence law that would satisfy diverse subsistence, commercial, and recreational interests in accordance with the State Constitution and meet their obligation to the federal government under the principles of cooperative federalism, the legislature set up an Interim Committee on Subsistence in 1977 (Norris 2002, 67). Led by Representative Nels A. Anderson (D-Dillingham), the Committee held multiple public hearings and received input from the 500 people who attended them (ibid.). In 1978, the
Alaska legislature passed HB 960, which was subsequently signed into law by Governor
Jay Hammond (ibid).
46 The 1978 subsistence law included four basic components. The first was a definition of subsistence, which was based on “customary and traditional” uses of wild, renewable resources. The statute’s definition of subsistence was vague, and what
specifically counted as “customary and traditional” uses were to be determined by the
state Boards of Fisheries and Game. The second component required the Alaska Board of Fisheries and the Board of Game to “provide reasonable opportunities for subsistence use” through hunting and fishing regulations; the third allowed for a subsistence priority over other uses in times of a resource shortage. Fourth, the law established a Division of
Subsistence, within the Alaska Department of Fish and Game, to conduct research and present policy options to the Board of Fisheries and Board of Game (Fall 1990, 69).
By incorporating compromise language and allowing for a broad range of statutory interpretations, the 1978 subsistence law attempted to satisfy diverse user groups, federal interests, and state management agencies. However, in its attempt to compromise between interested parties, Native and rural subsistence users were slighted.
As the priority extended to all “customary and traditional uses” of natural resources and was not limited only to Alaska Natives or those living in rural areas dependent on subsistence, rural villagers would potentially compete for resources with any of the state’s 300,000 urban residents who made claims to subsistence harvest (AFN,
“Subsistence Chronology,” 1998). Through the state law, the state Boards of Fisheries and Game, dominated in the 1970s by recreational hunting and fishing interests, were given discretion in deciding what claims qualified as “customary and traditional use” harvests. Liberal interpretations of “customary and traditional” sympathetic to sport users had the potential cause additional pressure on the resources and thus increase
47 competition over them. Thus, while a promising start towards protecting subsistence, the law did not go far enough in protecting Alaska Native and rural subsistence interests and left much discretion to the state Boards.
A new regime for subsistence management: ANILCA’s Title VIII
ANILCA deliberations: competing interests and values
At the same time that the state subsistence law was in the process of being passed,
Congress began discussions of Alaska’s national interest lands, authorized under ANCSA for selection and classification by the federal government. The ten-year deadline enumerated in ANCSA to select and categorize such public lands was fast approaching, and Congress drafted and debated many proposals until finally passing the Alaska
National Lands Interest Act (ANILCA) in 1980. Proponents of the early proposals believed that it was necessary to withdraw large amounts of pristine land to protect the areas from future exploitation. The conservationist umbrella group Alaska Coalition and an organization of business and community leaders primarily from the lower 48 states,
Americans for Alaska, lobbied hard to protect the “crown jewels” of the county in their
natural state for years to come (CQ Almanac 1980, 581). Not all parties favored
conservation-oriented proposals. Alaska Senators Ted Stevens and Mike Gravel thought
that in withdrawing lands from the public domain and putting certain restrictions on
development and access, natural resources would be unnecessarily “locked up,” serving
only modest economic purposes (ibid.). Agreeing with the senators were majority of
Alaskan citizens, as well as organizations representing timber, mining, and oil
companies, and other business interests and labor unions (ibid.).
48 The attitude of Alaska Natives toward specific pro-development versus conservation-oriented provisions of proposed national interest lands act was conflicted.
In giving Native Alaskans title through ANCSA to only 44 million acres of land of the more than 300 million acres initially claimed, the federal government assumed that subsistence activities would have to continue not just on Native corporate lands, but on public lands as well (Brelsford 2003). Thus, as some Alaska Natives felt too much development would excessively compromise subsistence activities on federal lands, they desired certain government restrictions on development in certain areas. While for many
Natives, subsistence continued to be culturally and economically important, other Natives desired increased development on public lands to generate wealth and modernization for all Alaskans. Conflicts over development kept Alaska Natives from contributing a united front to the national lands act discussion.
Accompanying debates over the classifications of national parks and monuments, which would affect which lands were open to development and subsistence, were discussions pertaining to the proposed management of federal public lands. In 1976, the federal government had passed the Federal Land Policy and Management Act. This act instituted a policy that encouraged retaining, rather than disposing of, public lands (Hull and Leask 2000, 5). Although the federal government desired to keep the acreage it had been guaranteed under ANCSA and select the land for title through the proposed national interest lands act, most believed the state should, in accordance with tradition, manage natural resources on the lands (Brelsford 2003). Unified state management thus appeared as the politically feasible option, with the federal government setting broad management mandates for the state managers and lawmakers consistent with cooperative federalism.
49 Still, debates between the federal and state government shaped the details of the land act’s management policy. While the federal government wanted to ensure that their interests were represented in management of natural resources, a strong movement to
increase Alaska state sovereignty – especially regarding the territory’s natural resources –
arose. This movement found support in the Equal Footing Doctrine, under which a newly
admitted state to the Union would traditionally attain the same level of authority that
other states had regarding fish and wildlife management (Brelsford 2003), in making its
case. At the time of Alaska’s statehood, most states had jurisdiction over essentially all aspects of management, excluding the management of certain migratory species that the federal government managed according to the tenets of international treaties (ibid.).
Thus, state rights advocates contended that Alaska should have more authority over the
management of its fish and wildlife resources. Their appeal, based in United States
domestic policy tradition, was a significant force in influencing federal decisions
regarding natural interest lands and their management (Moster 1981, 208).
A strong movement for state sovereignty developed in part due because people
perceived there to be a growing divergence in federal and state interests. Many non-
Native Alaskans resented that the federal government accorded special privileges to the
Alaska Natives through the Federal Trust Doctrine (Moster 1981, 184). They wanted the
State Constitution, which accorded equal rights to all Alaskans, to prevail over federal
doctrine. Consequently, they rallied for lands act proposals that increased state
autonomy. In spite of this pressure, the federal government asserted its authority under
the United States Constitution, ANCSA and the Federal Trust Doctrine to oversee the
management of federal public lands and guard Native subsistence affairs.
50 Although any Congressional lands act proposal would face opposition and debate
due to different state, federal and Native interests, the deadline posed by ANCSA for
federal land withdrawal selections was fast approaching by the late 1970s. The first lands
act to be proposed in final form, H.R. 39, sponsored by Representative Morris Udall (D-
Arizona), specified that subsistence users were those who “exercise and continue to
exercise customary, consistent, and traditional use” of the resources on national interest
lands (Norris 2002, 69). Early drafts of the bill included a subsistence priority assigned
on an ethnic basis, giving Native Alaskans a preference, a model which the legislative
history of the bill notes was endorsed by the ANCSA Conference Committee (ibid.,
1972).
In the United States Senate, a national lands bill proposal very different from H.R.
39 emerged. Sponsored by Alaskan Republican Senator Ted Stevens, the bill, known as
S. 1787, represented a desire, shared by many in the state, to free up public lands for
development and recreational purposes (Norris 2002, 70). Included in the bill’s brief
“Wildlife Management” section were references to the state’s almost unlimited autonomy
in creating fish and game regulation. S. 1787 had only a brief mention of subsistence,
saying that “subsistence purposes shall be given preference” only in times of resource
shortage (ibid.). The bill provided no specific priority Alaska Native users.
At the time of ANILCA’s deliberations, groups advocating increased state sovereignty and “common use” of resources lobbied against any sort of ethnic based priority. In response, Native groups and their supporters declared that a Native priority would be the only way to guarantee protection to those who depended most on subsistence resources. Despite Native support and the H.R. 39 endorsement, an
51 ethnically based preference became jeopardized when Governor Jay Hammond told
Congress in 1977 that the State could not participate in a subsistence management system
based on “Nativeness,” as it would in violation of the Alaska Constitution. As a result,
the Native priority became legally and politically less feasible.
In the end, what emerged in H.R. 39 final draft was a “rural priority,” which gave
those people most dependent on subsistence more access to wildlife resources than those
from urban centers. Despite coming from strongly different views on subsistence, the rural priority compromise position satisfying most parties was considered by
Representative John Seiberling (D-Ohio), the chair of the Subcommittee on General
Oversight and Alaska Lands, to be a “miracle,” as it managed to protect most Alaska
Natives and honor the federal governments commitments, while at the same time appeasing some equal rights advocates by having a priority not based on race (ibid., 72-
73).
In addition to conflicts about which users, if any, would receive a subsistence
priority, debates of the proposed Congressional lands act concerned the extent to which
state or federal management would prevail on national interest lands. Many Non-Native
residents wanted virtually unchecked state autonomy so that they could more successfully
lobby for increased natural resource development and laws favorable recreational hunting
and fishing. In contrast, many Alaska Natives desired federal management, which they
felt would be more inclined to protect subsistence in fulfilling the Federal Trust Doctrine.
Representative John Seiberling (D-Ohio), who helped to conduct field hearings on both
H.R. 39 and S. 1787 as the chair of the Subcommittee on General Oversight and Alaska
52 lands, summarized the testimony about subsistence management in the following way:
We heard strong and diverse opinions on this question from the people of Alaska. Some Native groups believe that Federal management is essential if subsistence users are to be adequately protected. Other witnesses testified that the Alaska State Fish and Game Commission should be responsible…Two points seem clear: That regulation of hunting and fishing needs to be on a statewide basis, and that the Federal government has the right to require that management of wildlife resources on Federal lands follow guidelines designed to protect subsistence users, as well as the national interest (Norris 2002, 71).
Representative Seiberling implies that the system of cooperative federalism appears to best balance interests of federal, state and Native interests. Revised bills thus specifically recognized principles of cooperative federalism, or the general concept of management by the state and oversight by the federal government (ibid.).
Although it appeared that cooperative federalism would prevail and states rights
activists would not succeed in their lobbying attempts for virtually unchecked
management authority over federal lands, Senator Stevens and groups such as the
Citizens for Management of Alaska Lands continued to stress the importance of having
more state autonomy over management of fish and wildlife resources (Norris 2002, 70).
Other Alaskans, who were incensed at the idea of federal oversight and controversy over
the lands act, led the movement for the re-establishment of the Alaska Statehood
Commission. This movement gained widespread support and in 1980 the Alaska
Statehood Commission was re-authorized with the purpose of attaining for Alaskans
“reasonable self-control of their lives, land and water, fish and wildlife, and trade and
commerce” because “the current relationship of the people of Alaska to the United States
inhibit[ed]” Alaskans from achieving appropriate authority over natural resources
(Moster 1981, 203-204). The Commission considered, albeit briefly, extreme options
such as secession from the United States. Although that measure was an enormously
unlikely and unfeasible one, it illustrated the growing conflict between the Alaska and the
53 federal government over the state’s right to control natural resources and subsistence for
Native Alaskans (ibid.).
ANILCA: a compromise of interests
Despite stalling techniques by federal and state politicians, the Alaska National
Interest Lands Act (ANILCA) was passed by Congress and signed into law by President
Jimmy Carter in the last weeks of his presidency, after his loss in the general election to
Ronald Reagan. Faced with a new administration, Democrats in the House holding out
for a proposal for more conservation lands had given in, reconciled the Senate and House
bills, and sent the compromise bill to Carter for his signature (Brelsford 2003).
The act was less conservation-oriented than the original House bill, but still
authorized the transfer of 104.3 million acres into conservation units with varying
degrees of restrictions against development. Of those, 54 million were classified as
“wilderness,” the category most protected from development and limiting of subsistence
harvesting. In addition to federal withdrawals, ANILCA finalized the transfer of 98
million of the 105 million acres guaranteed to the state through the Statehood Act and
guaranteed the conveyance of 44 million acres to Alaska Native regional corporations
initially secured under ANCSA. Although the transfers to the state and Native
corporations were large, the federal government still retained the 124 million acres under
its control, in addition to those set aside as conservation units, which constituted the
remainder of the state of Alaska’s land (CQ Almanac 1980, 575).
ANILCA’s provisions are consistent with the Federal Land Policy and
Management Act of 1976, which encouraged the federal government to retain title to
large areas of public lands. Although the federal government did not want to directly
54 manage fish and wildlife resources on its lands, and desired instead for the state to do so, the federal government wanted to ensure that the state managed public lands in a manner consistent with federal mandates under ANCSA and the Federal Trust Doctrine.
Consequently, Congress delineated certain subsistence protections in ANILCA and invoked its responsibility pertaining to “its constitutional authority over Native affairs
and its constitutional authority under the property clause and the commerce clause to
protect and provide the opportunity for continued subsistence uses on public lands by
Native and non-Native rural residents” (Title VII, Sect.801(4)). Thus, in order for the state to continue management of federal lands under cooperative federalism, ANILCA provisions warranted that the state change its regulations within one year to reflect the federal interests outlined in the Act (AFN, “Subsistence Chronology” 1998).
Through Title VIII, the federal government attempted to meet its responsibility to protect subsistence, obligated to do so by ANCSA Conference Committee and the
Federal Trust Doctrine. Because it was politically and legally problematic to establish a
Native-only subsistence priority, Congress had not done so, instead establishing a rural subsistence preference in ANILCA’s provisions. Subsistence users, Native and non-
Native, living in rural areas were generally more dependent on wild foods than urban
Alaskan residents. As Alaska Natives mostly resided in rural areas, it was thought that a rural subsistence priority would substitute adequately for the more politically controversial Native-only priority, because it both satisfied federal Native-related interests and partially appeased equal rights activists from Alaska.
To ensure that Title VIII is not construed to discriminate on the basis of race in its application, Natives and non-Natives rural residents are each explicitly afforded
55 subsistence protections on public lands and a priority to resources in times of shortage
(Section 802). However, while the law’s text provides equally for Natives and non-
Natives, the purposes of protecting subsistence are different for each group. In its
findings, Congress acknowledged that supporting the continuation of subsistence for
Native Alaskans was important to their “traditional and cultural existence.” The same
paragraph did not include that particular reason for providing continued subsistence
opportunities for non-Natives. Thus, while no Native-exclusive preference is established,
Congress notes that cultural survival of Native Alaskans is at least partially linked to the
practice of subsistence. A criticism of Title VIII from Native organizations is that the
legislation failed to protect subsistence for Native urban residents (Alaska Federation of
Natives 2002). Thus, while Title VIII succeeded formally, at least in protecting
subsistence for the rural users who, in general, depended most on subsistence for physical
and economic survival, it did not go so far as to protect urban Natives’ symbolic cultural
and traditional link to subsistence activities.
To avoid the shortage of resources that occurred during the 1970s due to
regulations that did not establish criteria for subsistence users beyond “customary and
traditional,” Title VIII’s rural residency priority attempted to ensure subsistence harvest
opportunities to those most dependent on the resource. In describing how exactly the priority was to work, Section 804 outlines three criteria: “(1) customary and direct dependence upon the populations as the mainstay of livelihood; (2) local residency; and
(3) the [un]availability of alternative resources.” Sports hunters and equal rights supporters claimed the priority, based on individual user characteristics such as residency, was opposed to the equal access clauses of the Constitution of Alaska. Thus,
56 although many in the state opposed the rural priority, the state of Alaska would be required to comply with all of ANILCA’s provisions in order to continue wildlife management.
To complicate matters and set the stage for continued negotiations among state, federal, subsistence harvesters and urban sport users, “rural” was not defined in the text of ANILCA. Implementing regulations established criteria, but rural determinations were to be decided by the Boards of Fish and Game, dominated mostly by recreational and commercial hunting interests. Still, the federal government retained oversight authority: if the Secretary of the Interior did not approve of the state subsistence statute’s rural criteria, the Secretary could assert that the state management was out of compliance with
ANILCA and potentially impose a federal take-over of subsistence resources on public lands.
Another significant section of Title VIII is the provision concerning local and regional participation in management decisions (Section 805). During deliberations of
ANILCA, Congress and lobbyists debated the extent to which the federal government should direct subsistence management processes and the type of structures that would be favorable under a model of cooperative federalism. At the time of ANILCA’s passage, the state system was composed of approximately 80 local advisory councils and the staff of the Alaska Department of Fish and Game, which both reported to the state Fish and
Game Boards. As was mentioned before, the local advisory committees – and state
Boards of Fish and Game – had been generally sympathetic to commercial and sport interests. Many Natives perceived this structure to be unfair and desired a new way to influence fish and game regulatory decisions. To better incorporate Native subsistence
57 user opinions, Section 805 of ANILCA established Regional Advisory Councils (RACs),
through which subsistence users could impact management regulations by serving on the
councils as participating members. As provided by Section 805, the regional councils
would have a significant role in crafting policy, although the Boards would still have to
officially approve of all subsistence regulations.
Under ANILCA, the local advisory committees – with responsibilities beyond
subsistence – remained. From each local committee, a representative member would
serve on one of the at least six regional advisory councils provided for by ANILCA
(Marshall and Peterson 1991, 2). The regional advisory councils would each represent
one of the six (or more) “subsistence resource regions” (ibid.). Although the regional
councils could choose to focus their recommendations on subsistence issues, their
responsibilities also extended to broader management concerns (p.2, ibid.). Most
significantly, the responsibilities of ANILCA’s regional councils would “surpass merely
tendering advice” (Noble 1987, 231). As part of their responsibilities, Regional Advisory
Councils were required to review potential management regulations and solicit comment
on them, propose their own regulatory measures, and submit annual reports to the state
Boards of Fish and Game (Section 805(3)). Only in cases where either the Board of Fish
or the Board of Game determines that a regional council recommendation is “not
supported by substantial evidence presented, …violates recognized principles of fish and
wildlife conservation or would be detrimental to the satisfaction of rural subsistence
needs” could the Board refuse to adopt the recommendation (Section 805(3)(D)(d)). In
creating such councils, the federal government believed that regulatory proposals would
come from the bottom-up, ensuring that regulations were amenable to those who
58 depended most on subsistence resources (Noble 1987, 231). These councils would be
funded in part by the commitment by the federal government to reimburse the state up to
$5,000,000 or 50% of the cost of implementing the regional advisory council program
(Section 805 (D)).
ANILCA Title VIII implementation: the era of state “compliance”
Beginning with its passage in 1980, Title VIII of ANILCA was – and remained throughout the decade – the most significant piece of legislation to guide subsistence activities on Alaska’s lands. Title VIII was the most controversial and debated provision in the act, and the state management system attempted to interpret and implement the provisions consistent with the interests of the federal government. Throughout the decade, there appeared some evidence of cooperation among the parties, as management
structures became more institutionalized and were able at a less centralized level to
reconcile opposing interests. However, unresolved tensions between federal and state
governments, as well as between Alaska Natives and both governments, representing different user interests and management priorities, continued to escalate and worked to undermine a permanent solution to the subsistence issue. Debates in the 1980s revolved around the presence of a rural subsistence priority, the legal and political issues of cooperative federalism, and the tension between centralized and decentralized management policies and structures.
While the state managed game harvests on federal public land throughout the decade, legal and political battles waged in courtrooms, the state legislature, state boards and local and regional advisory meetings attempted to negotiate the meanings of specific
ANILCA provisions. Although Title VIII provided for substantially more protection of
59 subsistence than had earlier Congressional drafts, many important aspects of subsistence
management were not fully defined directly within the text. Thus, the extent to which the
legislation affected those who depended on subsistence was to be debated for many years
after.
In his article on Alaska state sovereignty and Native political development, Todd
Moster suggested the status of Alaska Natives, and by implication their subsistence
livelihoods, were influenced by the “delicate balancing” of federal, state and Native
interests (Moster 1981, 203). The effects of ANILCA in its application, then, were to be
determined based on the results of power struggles among the various interests, as they
were negotiated in the complex structure of Alaska fish and game management. State
legislators, influenced by their constituent Native and non-Native Alaskan voters of
varying interest groups, were charged with the task of writing new laws for managers that
incorporated the guiding principles of Title VIII. Specifically, the state legislature had to
adopt a rural priority and allow for the incorporation of new regional advisory councils.
After doing so, the state management passed new regulations consistent with ANILCA
provisions in 1982. Additionally, members of the state Boards of Fisheries and Game,
appointed by the Governor, adopted particular regulations regarding what constituted
“customary and traditional” subsistence use and what defined “rural,” and made policies
concerning other subsistence and non-subsistence uses. These regulations were to come
primarily from proposals by regional and local advisory groups and the Division of
Subsistence within the Alaska Department of Fish and Game. Ultimately, these
regulations affected the cultural, economic, political and social status of subsistence by
60 specifying which users had “customary and traditional” claims to the land and the type of
preferences to which such users were entitled.
Still, there were other significant players outside the immediate management arena affecting subsistence regulation. The federal government could reassume management responsibilities if it felt the state to be out of compliance with ANILCA and, at points during the decade, the federal government asserted that specific statutes were contrary to ANILCA’s intent. To pressure the state to revise statutes the federal government felt were not consistent with ANILCA, the Secretary of the Interior could sue the state on behalf of subsistence users. If the states laws were found not to comply with federal law, the federal government could assert its authority to manage subsistence on public lands. Decisions of state and federal courts that interpreted ANILCA affected laws passed by the legislature, which in turn affected regulatory decisions by the state
Boards of Fish and Game and proposals by the state Division of Subsistence and advisory councils. The “delicate balance” articulated by Moster was subject to much upheaval in the wake of ANILCA, due to pressure from those attempting to affect subsistence regulations at varying stops along the regulatory hierarchy.
Interest group opposition to ANILCA’s implementation and interpretation
Power struggles occurred immediately in the wake of ANILCA’s passage, most frequently concerning the existence of a rural priority on Alaska’s lands. A Fairbanks sport hunting group, Alaskans for Equal Hunting and Fishing, submitted a petition signed by 20,000 people that called for the repeal of the 1978 state subsistence law (Subsistence
Management Information 2002), despite the fact that doing so would put Alaska out of compliance with ANILCA. This petition was the basis for a “subsistence repeal”
61 initiative put on the ballot a statewide election in November 1982. The subsistence law repeal was strongly advocated by sports hunting interests and indicated that a vocal portion of the state desired equal access to fish and game resources for all Alaskans.
Additionally, the subsistence appeal effort illustrates the still significant movement for increased state autonomy. Even after ANILCA, which asserted “constitutional authority” of the federal government over subsistence management and specifically notes that state management on federal public lands is contingent on whether the state obeys certain federally-established guidelines, Alaskans called for the repeal of a subsistence priority in an effort to assert increased state control over fish and game resources. Despite lobbying
attempts by supporters, the repeal initiative was rejected by 58% of voters in the 1982 election (AFN, “Subsistence Chronology” 1998).
ANILCA conflicts in the courts and legislative responses to judicial decisions
In an article on the political status of Alaska Natives, author Thomas Morehouse notes that while in the 1970s Congress had been the primary body for Indian policymaking, “In the 1980s, the federal judiciary became more important as
Congressional activism receded” (Morehouse 1992, 5). With respect to ANILCA’s implementation throughout the decade, the courts, both state and federal, were increasingly used as avenues for conflict resolution and became places for user groups to voice their opposition to various statutory interpretations that ultimately affected subsistence fish and game regulations and laws.
Yet the courts were restricted in their efforts to resolve the subsistence debate.
Morehouse argues that judicial decisions are often only “short term solutions,” which address only narrow questions, making policy in a “disjointed and piecemeal” fashion
62 (ibid.). While addressing specifically the downfalls of policymaking via the federal
court, his analysis can apply more broadly to the judiciary in general. Two court rulings, one from the Alaska State Supreme Court and the other from the Ninth Circuit Court of
Appeals, illustrate the limitations of the court as a policymaking body capable of providing a solution to the deep divisions between rural and urban residents, federal and state government, and subsistence users and fish and game managers. These decisions, known as Madison and Kenaitze, respectively, both rule on specific interpretations of the rural priority as specified in Alaska state law and ANILCA provisions.
Although it appeared that more Alaskans than not favored a rural priority, based on the failed effort to repeal the subsistence law, the State Supreme Court of Alaska ruled in Madison v. Alaska Department of Fish and Game (696 P.2d 168 (1985)) that the rural priority adopted in regulations by the state Boards of Fisheries and Game in 1982 violated the 1978 pre-ANILCA subsistence law. The case was brought by Gene
Madison, a sport hunter and equal access supporter, who argued that the new priority adopted by the state Boards was illegal under the provisions of the 1978 subsistence law.
Even though it was probable that the state would have lost management responsibilities on federal public lands if it had not changed its Board regulations, Madison argued that without a new subsistence law passed by the state legislature, the Board was not justified in adopting regulations for a rural priority consistent with ANILCA. Madison’s case illustrates the growing perception shared by supporters of the “subsistence repeal” initiative and the Alaska Statehood Commission that the federal government’s legislation did not allow for enough state control over management of natural resources. Because the State Supreme Court agreed with Madison that the Boards’ rural subsistence priority
63 regulation was illegal, the state fell out of compliance with ANILCA, causing the
Department of the Interior to threaten to reassert federal management over public lands
(Subsistence Management Information 2002).
Despite discontent over the rural subsistence preference shared by sport hunters, a
new subsistence law was adopted by the state legislature specifically allowing for a rural
priority sixteen months after the Madison ruling (Caulfield 1992, 25; Norris 2002, 16).
Still, in the period after the Madison decision and prior to the new law’s passage, federal and state officials felt “considerable uncertainty about the future of ANILCA’s subsistence management program” (Norris 2002, 116). During the time of state legislative deliberations, recreational hunter groups such as the Alaska Outdoor Council, which had supported Madison’s claim, urged a law that did not prioritize local residency as a criterion for hunting permits. As most federal and state officials continued to want unified state management of fish and game, there was pressure to find common ground, and then-Governor Bill Sheffield led an effort to do so (ibid., 117). Although members of the state Senate attempted to delay legislation that would put the state back in compliance (ibid.), the possibility of a federal takeover hit home when federal officials appointed a Subsistence Resource Management Board, preparing to assume management responsibilities (ibid., 118). Soon after, both houses of the state legislature adopted HB
288, a subsistence law with a rural priority that intended satisfy federal interests under
ANILCA (ibid.).
After the state adopted the 1986 subsistence law, there was still considerable
debate over what exactly defined a community or area as “rural.” The Boards of
Fisheries and Game made decisions based on the 1986 subsistence law, determining that
64 rural areas were ones in which “non-commercial uses of fish and game comprised a
principal characteristic of the local economy” (Division of Subsistence, Alaska
Department of Fish and Game, “How Alaska’s Subsistence Law Affected Hunting
Regulations” 1990, 1). If a community or area were determined to be “rural,” it would be
eligible for the subsistence priority if its uses of fish and wildlife were considered
“customary and traditional.” After determining that a community or area was rural and
met the eight customary and traditional criteria, the Board would have to provide
“reasonable opportunities” for hunting and fishing activities (ibid.). Claiming that the state definition of rural unfairly excluded their community from attaining a subsistence priority, a tribe in Kenaitze sued the state Boards in federal court. The initial suit was decided against the Kenaitze tribe, but the decision was later reversed in the Ninth U.S.
Circuit of Appeals decision, Kenaitze Indian Tribe vs. State of Alaska, on the grounds
that rural should be defined based on an area’s population, not on its economic qualities
(860 F. 2d 312 (1988)). Following the federal court’s decision, negotiations between
federal, state, and Native leaders attempted to find consensus on the definition of rural
and how to remedy the apparent rift between the state subsistence law and ANILCA
(Subsistence Management Information 2002).
Both the Madison and Kenaitze cases illustrate the limitations of the court system
in finding a solution to the subsistence debate. While opposing interests brought their
causes to the courtrooms hoping to receive validation for their claims, narrow and
conflicting decisions from the federal and state courts added new layers of complexity
and confusion to the issue and effectively polarized the subsistence debate.
65 State management: organizational structure and policy
In passing ANILCA and allowing in its provisions for a rural priority, Congress hoped to direct the state managers to give subsistence users reasonable access to the resource for years to come. Yet, in certain respects, ANILCA’s implementation allowed for a broad range of subsistence protection: from the minimum rural priority to ideal subsistence user participation and cooperation with management through regional councils. In light of federal, state, and Native interests that affected state management
policy, to what extent did the state management program of the 1980s create fish and
game regulations that actually reflected the intent and aspirations of Title VIII?
Specifically, did the state adopt subsistence user-friendly regulations, prioritizing them
above other user groups and create effective opportunities for decentralized management
through the regional advisory committees? As this section will illustrate, the state
subsistence management program had difficulty incorporating subsistence user
information and advice into management policy, due to the perceptions and pressures of
opposing interest groups and institutional organizational and funding challenges. At the same time, some increased protections for subsistence users were made thanks to the state’s consistent implementation of ANILCA’s rural priority.
Following the adoption of a new state management plan after ANILCA, Dennis
Kelso of the state Division of Subsistence outlined a series of factors to consider in creating subsistence policies, emphasizing the importance of subsistence user influence.
Kelso called for a cooperative relationship between users and managers, to ensure that reliable data could be collected and management policies effectively carried out. Such a relationship would have to be beneficial to both groups and mutual education about
66 management practices should take place concerning all aspects of subsistence harvest.
Additionally, regulations should be established to provide for the maximum harvest under the sustained yield principle. Finally, subsistence users should be granted “meaningful involvement” in management policy decisions (Kelso 1982, 23).
To achieve Kelso’s goals would not be an easy task. Complicating the ability of the state managers to provide adequate subsistence management was the official mandate of the state, which extended beyond merely protecting subsistence. In addition to providing opportunities for subsistence users, the Boards of Fisheries and Game also had to create reasonable chances for commercial and sport users. Prior to the passage of
ANILCA, the state managers and Boards of Fisheries and Game had been accused of formulating regulations that favored sports hunting interests (Noble 1987, 235). In the
1980s, however, the decision-making Boards increasingly relied on the technical analyses they received from the state Division of Subsistence. Because of the research-oriented focus of the Division of Subsistence, its recommendations appeared objective. As the state Boards became more likely to adopt the Division’s research-based recommendations, the Boards appeared to some as less “political” then they had
previously been (ibid.).
Throughout the 1980s, the role of the Division of Subsistence grew substantially, as the state Boards came to take account of their research and recommendations. Some
believe that under unified state management, the Division of Subsistence did not adequately take into account cultural and traditional practices and favored a more neutral,
Western science-based approach to fish and game management (Noble 1987, 235).
However, in an overview of the state management program, James Fall notes the
67 successes of the Division’s efforts in collecting baseline community harvest data and making policy in cooperation with local users. Before each study was to take place, the
Division’s researchers were to get the permission of local village councils (Fall 1990), providing the groundwork in attempts to form the mutually beneficial relationship between managers and users advocated by Dennis Kelso.
Through its research, the Division of Subsistence documented such things as the mixed subsistence-market economy in rural Alaskan villages, levels of subsistence production, the character of Alaska Native communities, and the relationship between development and subsistence (Fall 1990, 80-81). These research initiatives often translated into regulatory decisions beneficial to subsistence users. In his report, Fall cites the reestablishment of a subsistence king salmon fishery in the community of
Tyonek and the removal of a lottery permit system for subsistence caribou hunting along the Copper River as evidence of the application of research by the state’s Division of
Subsistence (Fall 1990, 84). At the same time, recommendations of the Division were not always considered by the state boards, which sometimes voted in ways sympathetic to recreational or commercial interests (Wolfe 1989).
To further help the state in its subsistence management objectives, ANILCA had established and provided for a federal reimbursement for the operational costs of the
Regional Advisory Councils. The RACs would purportedly promote decentralization of management and encourage a closer relationship between managers and users, consistent with the considerations enumerated by the state in Kelso’s technical paper. The six
RACs varied throughout the state and throughout the decade in their influence over
68 Boards of Fisheries and Game decisions, though they did not gain the prominence envisioned by ANILCA’s framers (Norris 2002, 99; Marshall and Peterson 1990, 10).
The regional advisory committees convened for the first time in 1982 (Norris
2002, 99). By late 1984, however, most RACs were no longer active and infrequently held meetings (ibid.). Consequently, they could not consistently write proposals to the
state Boards for review. Thus, the RACs could not serve the supra-advisory position
authorized under ANILCA, which provided, for instance, that the Board would have to
articulate its reasons when it chose not to accept a proposal put forth by one of the RACs
(ANILCA, Section 805). Instead of having the opportunity and obligation to comment
on regulations before the Boards voted on them, RAC meetings were held after the time
of year in which regulations were made (Noble 1987, 233).
Although some claimed that limitations on the effectiveness of RACs had to do in
part with a lack of initiative on the part of Division of Subsistence and state Boards to
incorporate a user-friendly model of policymaking, a lack of adequate funding was also
an issue (Marshall and Peterson 1990). At the beginning of the decade, RACs were slow
to get going and met infrequently if at all (Norris 2002). Around the middle of the
decade, however, RACs began to receive more funding and gained influence (Noble
1987, 237). Much of the funds went towards the hiring and training of additional
regional coordinators, who served as liaisons between users, the councils, the Division of
Subsistence and the state Boards, and a brief RAC climax in the middle of the 1980s is
credited to the increased presence of such coordinators. By assisting committee members
in drafting regulatory policies, organizing and conducting meetings, and promoting
discussion with the state Boards and Division of Subsistence, regional coordinators acted
69 to shape the application of state and federal laws and management decisions in favor of
subsistence users. Although it appeared that by the mid-80s RAC representatives,
assisted by regional coordinators, had begun to attain some influence on Board decisions
(Noble 1987, 237), state revenues soon afterwards decreased substantially during a recession caused by an oil price crash in the late 1980s (Leask, Killorin and Martin 2001,
2). As a result, less money was available to support the RACs and regional coordinators and the influence of the committees declined (Fall 1990, 70).
The rural priority: reality of management vs. perceptions of urban users
The regional advisory committees never consistently embraced the role that had been envisioned by members of Congress who drafted Title VIII or state officials such as
Dennis Kelso, who desired a communicative relationship between users and management. In contrast, the application of Title VIII’s rural priority clause appeared to
follow the basic intent of the lands act legislation, at both the state government and
management levels of implementation. As earlier sections have shown, state compliance
with the rural priority essentially continued throughout the decade, although legal
disputes over the definition of rural (see Kenaitze section) were never fully resolved.
Additionally, state managers incorporated the rural priority in a way that provided more
protection than had been afforded in the 1970s (Division of Subsistence, Alaska
Department of Fish and Game, “How Alaska’s Subsistence Law Affected Hunting
Regulations,” 1990, 2).
Yet in applying a priority for rural residents, to what extent did state management
accommodate urban users? Studies completed during the 1980s show that the
subsistence priority did not always work to exclude other users from the resource. In a
70 review conducted by the state Division of Subsistence, the authors report: “Although a subsistence priority existed in law, in practice subsistence hunting regulations were quite
similar to the resident hunting regulations” (State Division of Subsistence, Alaska
Department of Fish and Game, “How Alaska’s Subsistence Law Affected Hunting
Regulations 1990, 2). The study compares game management units throughout Alaska,
noting that harvest bag limits and hunting seasons were, for the most part, comparable
between non-rural and rural users (ibid., 3). Additionally, opportunities for both rural and non-rural residents increased from the time of the adoption of a subsistence priority
(ibid.). At the same time, game populations were kept at sustainable yield levels
throughout the 1980s because non-rural hunting opportunities could be restricted
efficiently if needed (ibid., 7) The report concludes that the priority worked as an
“effective management tool,” allowing harvests for all users.
Despite the evidence that the rural priority did not, for the most part, result in
reduced sport hunting activities, lobbying groups such as the Alaska Outdoor Council
continued to call for the repeal of the priority, citing the Alaska State Constitution’s equal
access provisions. While competition for resources between rural and urban users was
generally not intense in remote areas, there were some conflicts in areas of higher
population density, such as on the Kenai Peninsula, near where the Kenaitze Indian Tribe
was located (Brelsford 2003; AOC 2000; RurAL CAP 1989). However, for many of
Alaska’s urban residents, virtually any sort of priority was, in principle, not acceptable
and battles against the rural priority appeared more ideologically based.
As it appeared that the state managers would follow ANILCA provisions until
ordered by state law or judicial decision, interest groups opposed to the priority lobbied
71 state legislators and brought suits to court. Alaska Native organizations, on the other hand, were concerned with ensuring that their subsistence activities were protected under the existing structure of ANILCA and wanted nothing less than a rural priority. The opposing interests deepened the divide between urban and rural residents, even as many
regulations did not favor one user group over another.
McDowell v. State: the end of state compliance with ANILCA
The divide between urban and rural users over the Title VIII subsistence priority
came to its climax in 1989, when the Alaska State Supreme Court heard the appeal of
Sam McDowell, an urban sports hunter. McDowell, joined in cause with the state, alleged that the rural priority implemented by the state was incompatible with the State
Constitution.
The decision of the Court agreed with McDowell and struck down the rural priority as incompatible with sections 3, 15, and 17 of the Alaska Constitution, violating the common use clause, the prohibition against exclusive rights to fisheries clause, and the uniform application clause, respectively. In the majority opinion, the Court compares the 1986 state subsistence law, which incorporated a rural priority, to the 1978 law, which did not. Because the 1978 state subsistence law allowed for urban users to still be eligible for the subsistence priority if the user could prove his or her dependence on the
resource and met other such determined criteria, it could be distinguished from the
unconstitutional 1986 law, and the Court recommended the future adoption of a law more
similar to the 1978 law. The lone dissenter to the opinion, Justice Rabinowitz, did not find the 1986 law unconstitutional, claiming that section 4 provided support for a different interpretation of sections 3, 15, and 17, which would allow for the rural priority.
72 Section 4 orders that natural resources be harvested according to the sustained yield principle and that, in doing so, the state may provide for “preferences among beneficial
uses” and Rabinowitz claimed that rural priority would be protected under the clause.
The majority dismissed Rabinowitz’s assertion, and thereafter the McDowell ruling took affect.
Under the principles of cooperative federalism, the state’s rejection of the federal mandate meant the assumption of federal management. For reasons relating to the
Statehood Act and other ANILCA provisions, the jurisdiction of the federal government
would only extend to subsistence management of federal public lands. The state would
manage subsistence on private and state lands and continue to manage commercial and
sport uses throughout the state, thereby dividing the management of Alaska’s fish and
game resources. The protections that the new management regime has offered to
subsistence users will be explored in the next chapter. Subsistence management in the
1970s and 1980s demonstrated, however, Alaska’s subsistence management regime is
subject to influence from varying and sometimes opposing interests, both through the negotiation of laws and their implementation.
Unified state management attempted to balance the interests of the parties involved and was guided in its effort by the Alaska Constitution, state subsistence laws,
ANILCA and court interpretations. Yet unified management, as directed by the federal mandate for a rural priority, did not wholly satisfy user groups. Although state managers claimed that the rural priority did not unduly exclude urban users, many urban users felt that they were unfairly deprived of their constitutional right to equal access to the resources. Additionally, while the state managers were successful at incorporating a rural
73 priority, subsistence users had little direct influence over subsistence regulations through the regional councils established by ANILCA. Thus, perceptions of the priority’s unfairness exacerbated the rural-urban divide. In short, compromises between state and federal lawmakers and managers under the model of cooperative federalism led to a situation in which not all users felt accommodated. Intense conflicts and negotiations
therefore continued despite the legislation previously enacted to “settle” the issue.
74 Chapter Two Bibliography
Alaska Federation of Natives, “Subsistence.” 2002.
Alaska National Interest Lands Conservation Act. P.L. 96-487. 94 Stat. 2371. Sect. 804, 16 USCA, 3114 (1980). Online version:
Alaska Outdoor Council. 2000. “AOC Views: Rural Determinations for Kenai Peninsula Communities”
Brelsford, Taylor. 1998. A meaningful voice: Federal regional councils and subsistence management. Cultural Survival Quarterly. 22, no.3, 72.
Brelsford, Taylor. 2003. Personal interviews. Anchorage, Alaska. 12-23 January.
Caulfield, Richard A. 1992. Alaska’s subsistence management regimes. Polar Record. 28, no.164:23-32.
Congressional Quarterly Almanac. 1980. “Congress Clears Alaska Lands Legislation.”
Division of Subsistence, Alaska Department of Fish and Game. “How Alaska’s Subsistence Law Affected Hunting Regulations.” 1990.
Fall, James. 1990. The Division of Subsistence of the Alaska Department of Fish and Game: An overview of its research program and findings: 1980-1990. Arctic Anthropology. 27, No.2: 68-92.
Hull, Teresa and Linda Leask. 2000. Dividing Alaska, 1867-2000: Changing land ownership and management. Alaska Review of Social and Economic Conditions. 32, No. 1: 1-12.
Kelso, Dennis. 1976. Legal issues in federal protection for subsistence on the proposed national interest lands. Unpublished.
Kelso, Dennis. 1982. Subsistence use of fish and game resources in Alaska: considerations in formulating effective management policies. Technical paper 65. Division of Subsistence, Alaska Department of Fish and Game. Prepared for the 47th North American Wildlife and Natural Resources Conference Special Session on Alaska. Portland, OR. 31 March.
Leask, Linda, Mary Killorin, Stephanie Martin. 2001. Trends in Alaska’s people and economy. Prepared for the Alaska 20/20 Partnership Bringing Alaskans Together to
75 Chart Our Future by the Institute of Social and Economic Research, University of Alaska Anchorage, and the Alaska Humanities Forum.
Kenaitze v. State. 860 F. 2d 312 (1988); U.S. App. LEXIS 14361; 19 ELR 20241
Madison v. Department of Fish and Game. 696 P.2d 168 (1985); 1985 Alas. LEXIS 242
Marshall, Richard and Larry Peterson. 1991. A review of the existing Alaska Department of Fish and Game advisory system and a determination of its adequacy in fulfilling the Secretary of the Interior’s and the Secretary of Agriculture’s Alaska National Interest Land Conservation Act Title VIII responsibilities. A report for the U.S. Fish and Wildlife Services. Anchorage, AK. June 1991.
Morehouse, Thomas. 1992. The dual political status of Alaska Natives under U.S. policy. An occasional paper of the Institute of Social and Economic Research. Anchorage, AK: ISER-UAA
Moster, Todd. 1981. The effects of increased tribal and state autonomy on the special relationship between Alaska Natives and the federal government: an overview. UCLA-Alaska law review. Los Angeles, CA: UCLA School of Law for the Alaska Bar Association. 10: 183-217.
McBeath, Gerald and Thomas Morehouse. 1980. The Dynamics of Alaska Native Self- Government. Lanham, MD: University of America Press.
McDowell v. State. 785 P.2d 1 (1989); 1989 Alas. LEXIS 163
Noble, Heather. 1987. Tribal powers to regulate hunting in Alaska. Alaska Law Review. Durham, NC: Duke University School of Law. 4: 223-275.
Norris, Frank. 2002. Alaska subsistence: a National Park Service management history. Produced by the Alaska Support Office, National Park Service. Anchorage, AK: U.S. Department of the Interior.
RurAL CAP Subsistence and Natural Resources Department. 1989. “The Kenaitze and ‘Rural’ Controversy” Issue Paper No. 1. Rural Alaska Community Action Program, Inc. October 1989.
Subsistence Chronology: A Short History of Subsistence Policy in Alaska Since Statehood, prepared by the Alaska Federation of Natives (AFN). 1998, As cited on “Alaskool.” 1998-2000. University of Alaska Anchorage: Institute of Social and Economic Research.
76 Subsistence Management Information, “Subsistence management history: From statehood to present,” 2002,
Wolfe, Robert J. 1987. The super-household: specialization in subsistence economies. Division of Subsistence, Alaska Department of Fish and Game. Paper presented at the 14th annual meeting of the Alaska Anthropological Association, Anchorage, AK. 12-13 March.
Wolfe, Robert J. 1989. Territorial control by contemporary hunter-gatherer groups in Alaska: case examples of subsistence and recreational conflicts. Division of Subsistence, Alaska Department of Fish and Game. A paper presented at the Society for Applied Anthropology Annual Meeting, Santa Fe, NM. 5-9 April.
77
78 Chapter Three: Dual Management and the Search for a Subsistence Resolution
“The difficulty of finding a single solution that fits within Alaska’s common ground was graphically pointed out in two letters we received during our comment period. One was from a Native Alaskan subsistence user who complained that the proposal was obviously drafted by an urban, non-Native sports hunter on the Kenai. The other was from just such a hunter who complained that the proposal had been prepared by the Alaska Federation of Natives subsistence committee.” Fran Ulmer, on her “Quiet Diplomacy” effort, 1996.
In the year after the 1989 McDowell v. State decision, federal and state policymakers, politicians, managers and user groups struggled to keep unified state game management over federal public lands. When it became clear, however, that a compromise consistent with both federal government mandates and the state’s McDowell stipulations could not be quickly reached, the federal government began to take over subsistence hunting management on its public lands, which totaled sixty percent of
Alaska’s terrain. The state maintained subsistence management authority over state,
private, and Native corporate lands. This chapter will investigate the resulting
management structure: divided federal and state subsistence game management and, after
the 1999 implementation of a federal court case decided four years before, divided
subsistence fisheries management. Additionally, since many have continued to maintain
that unified state management is preferable to dual management, this chapter will
examine efforts that were made throughout the 1990s to devise a solution satisfactory to
state and federal government, as well as to Native and non-Native, urban and rural user
groups, that would return subsistence management to the state. Today, due to
disagreements over the proposed changes, subsistence management remains divided, with
federal and state agencies each setting their own policies over their respective – though
sometimes overlapping – jurisdictions and cooperating as necessary.
79 The reasons why the subsistence issue has not been fully resolved to the satisfaction of state, federal, Native and non-Native interests can be understood through an examination of the evolving relationships between the parties involved. In the beginning of this era, the first time two separate authorities both had subsistence management duties, the relationship between the federal and state government became substantially strained. Due to conflicting mandates, the federal government maintained a rural priority and offered more accommodations for subsistence users on the public lands it had jurisdiction over, while the state officially abandoned the rural priority in accordance with McDowell and provided harvest opportunities for all Alaskans on the lands where it retained management authority. As a consequence, rural users and many
Native organizations have continued to support federal management and have called for its jurisdiction to be extended to include subsistence fisheries on federal public lands.
Opposing them have been urban sport hunters and supporters of state sovereignty over resources, who have fought to regain unified state management, bringing their cause to the legislature and federal and state courts.
While conflicts remain present between the state and federal government, as well as between urban and rural interests, cooperation between the Alaska Department of Fish and Game’s Subsistence Division and the federal Office of Subsistence Management has improved throughout the era of dual management. These two subsistence authorities direct biological and, increasingly, anthropological studies and attempt to incorporate their findings into viable management solutions. In the years since 1989, both the
Division of Subsistence and Office of Subsistence Management have become increasingly established, contributing greatly to the resultant institutionalization of
80 divided management. Federal and state authorities increasingly cooperate through formal and informal channels, marking the growth of the bureaucracy associated with divided management. An additional indication (and consequence) of this institutionalization is that subsistence users are better able to utilize developed channels, through which their needs are today better recognized, protected and balanced than they were under state management in the 1980s. Moreover, the growing entrenchment of divided management and its associated stability has caused few factions of the parties concerned with subsistence to push full-force ahead for a return to state unified management or call for an overhaul of fish and game management in general.
This chapter will more closely track the relationships between the parties involved
as they affect and are affected by new subsistence laws and court decisions, fish and
game resource user interests, and federal and state management authorities. The first
section examines state laws and amendments debated by the legislature and the court
decisions that aim to interpret federal and state laws. Especially significant are proposals
to change the Alaska Constitution and proposals that aim to amend ANILCA’s Title VIII,
either of which could potentially return unified management to the state. As this section
will show, disputes among Democrats and Republicans and opposing user groups have
worked to block both types of proposal from passage. Equally important are key federal
and state court decisions that have provided the impetus for new laws and amendments to
old laws. Throughout the 1990s, certain court decisions have worked to encourage the
continuation of divided management by causing federal and state management mandates
to become increasingly divergent, further deepening the division between Alaska’s urban
and rural residents.
81 The second section will dissect both the different strategies that divided state and federal bodies chose in making subsistence regulations and the user reactions to these regulations. In general, the federal management authorities have offered more opportunities for subsistence users and encouraged user participation through a revival of the Regional Advisory Councils (RACs) and the incorporation of oral histories through
Traditional Ecological Knowledge (TEK). State authorities, due to state laws and the
McDowell decision, could not maintain a rural user priority and have had to accommodate all Alaskans qualifying for subsistence hunts. Yet, despite differences in regulations and the philosophies that continue to drive the regulations, it appears that state and federal management authorities have cooperated as necessary in an attempt to make divided management work for users.
Laws and court decisions: The continued political stalemate on the subsistence issue
In the months just before the state lost subsistence management responsibilities on federal public lands, many proposals were put forth in an attempt to maintain unified state control through a legislative means, each of which offered varying protections to
Native and non-Native subsistence users. One such type of proposal called for an amendment to the State Constitution that would explicitly allow for a rural subsistence priority. Another – supported mostly by Republicans and members of the Alaska
Outdoor Council – recommended revising ANILCA to eliminate the rural subsistence priority so that the federal law’s provisions would comply with the McDowell interpretation of the Alaska Constitution’s “common use” clauses. While proposals supporting either an amendment to the Constitution or changes to ANILCA concerning the rural priority were embraced as most politically viable, representatives from Native
82 organizations such as the Alaska Native Federation (AFN) campaigned for a subsistence
priority extending to all rural residents and all urban Natives who, although no longer living in small and remote villages, depended on subsistence. Although state and federal
politicians, as well as lobbyists from different user groups, suggested these and other similar proposals in 1989 and throughout the 1990s, the subsistence debate has not yet been resolved through a definitive legislative act. This account of the legislative and judicial battles illustrates the continued political divisiveness of the subsistence priority issue. As all parties are unlikely to be satisfied with a single legislative proposal, this account also suggests the potential and real problems that come with the negotiation and implementation of a legislative compromise.
Proposed changes to the Alaska Constitution: the Cowper Administration
Although Alaska’s governor cannot unilaterally change the state Constitution or
direct revisions to ANILCA, three governors over the past decade have spearheaded efforts to resolve the subsistence debate. Steve Cowper, a Democrat who served as governor from 1986 to 1990, introduced a bill to secure a rural priority amendment to the state Constitution after the McDowell decision and pressed for its passage in the state
legislature. In an editorial written in support of the amendment, he argued his solution was preferable both to federal management and to revisions of ANILCA (Cowper 1990).
Cowper appealed to Republican states’ rights supporters by declaring, “the prospect of
the federal government managing Alaska’s fish and game is unacceptable” (ibid.).
Cowper also asserted that because potential changes to ANILCA could further restrict
state sovereignty, an amendment would be a better means of holding onto state
management. Furthermore, Cowper reached out to the amendment’s opponents by
83 claiming that the amendment would be embraced by a majority of Alaskan residents, citing residents’ “tradition” of allowing first priority to those who most depend on fish and game resources (ibid.).
Despite Cowper’s effort to gain support for the amendment at a special session on
subsistence the he convened, the Republican-dominated House of Representatives twice
rejected the amendment, in May and June of 1990 (Subsistence Management Information
2002). In their rejection of the Cowper amendment, Republicans cited the unfair
exclusion of non-rural Alaskans from fishing and game harvests that would result from a
rural subsistence priority (Norris 2002). Opinions among the state’s Democratic and
Republican legislators remained divided throughout the spring of 1990, and no legislative
action was taken during that time to put the state back in compliance with the subsistence
mandates of ANILCA.
A new regime for subsistence: divided state and federal management
Because the legislature failed to ratify a resolution in support of Cowper’s amendment or take any sort of legislative action regarding subsistence, the federal
government assumed game management on Alaska’s public lands on June 1, 1990. The
Federal Subsistence Board, established by the Secretary of the Interior and the Secretary
of Agriculture, became responsible for formulating subsistence hunting regulations on
public lands. Before officially assuming management responsibilities, the Federal
Subsistence Board passed a set of regulations consistent with ANILCA’s rural priority
and the subsistence protections provided by federal law. The temporary regulations
approved by the Board closely resembled the previous year’s state regulations (Boyd
2003).
84 The state legislature, in order to comply with McDowell’s invalidation of the rural priority, was required to revise its 1986 subsistence law in order to provide hunting and fishing opportunities for all 550,043 Alaskans on state, private, and Alaska Native corporate lands, as well as to provide fishing opportunities on most federal public land
(Division of Subsistence, Alaska Department of Fish and Game, “Subsistence
Management in Alaska: A 1991 Update,” 1991). Before any revisions to the 1986 law were approved however, the state Boards of Fisheries and Game took action in response to the McDowell decision and passed regulations to eliminate the rural priority. Deprived of a tiered system that restricted access to fish and game resources based on residency, the state Boards had to restrict the harvest for all users throughout the state, including rural users who depended most on subsistence resources (ibid.).
Thus, due to differences in the federal and state mandates as directed by ANILCA and the McDowell decision respectively, subsistence regulations began to diverge in the early 1990s. Because many officials believed that the state’s non-compliance with
ANILCA was only temporary, the federal authorities did little during the first few years of divided management to reform the ANILCA-driven regulations that had been put into place by the state in the 1980s (Boyd 2003). State management authorities, on the other hand, were no longer subject to ANILCA requirements and federal law, and became directly accountable to state law and the state Constitution in the early years of dual management.
A new state subsistence law: the Hickel Administration
Because the 1986 state subsistence law included a rural priority clause, it was voided by the McDowell decision. As a result, the court directed the legislature to either
85 construct a revised law without a rural priority or amend the Constitution to allow for one. In 1992, two years after the federal management takeover, newly-installed
Governor Wally Hickel advocated for a modified state subsistence law in the hopes that
such a proposal would be better received than a Constitutional amendment. Hickel, a
one-time Republican who earlier served as governor of the state in the 1960s, was re-
elected to the office in 1990, this time as a member of the Alaska Independence Party.
During his campaign, Hickel was heavily backed by voters who supported states’ rights
and equal-access to fish and game resources (Caulfield 1992, 26). Instead of pushing for
a Constitutional amendment as his predecessor Steve Cowper had done, the new Alaska
governor supported the recommendation of his own Subsistence Advisory Council: a new
state subsistence law, which he asserted would meet the State Supreme Court’s
McDowell demands (Hickel 1992, 2).
Hickel’s proposed bill established seven subsistence qualification standards,
which would be used to determine an individual’s dependence on fishing and game
resources. Certain individuals, specifically those who lived in villages of less than 2,500,
were presumed to meet such standards and thus would not have to apply for a subsistence
permit entitling them to priority access (State of Alaska, Office of the Governor “A Brief
Introduction to HB 522 and SB 443,” 1992). Individuals living in communities with
populations above 2,500 (non-rural and urban areas) were still eligible for the subsistence
privilege if they met a satisfactory number of the bill’s qualification standards (ibid.).
Thus, instead of granting a priority only to rural subsistence users, urban and non-rural
Alaskans both could qualify for subsistence privileges if they had traditionally depended
on hunting and fishing resources for familial or extended household consumption (ibid.).
86 Critics of Hickel’s bill asserted that his proposal would not have resulted in a return to unified state management without appropriate revisions to ANILCA, as it changed the federal law’s exclusively rural subsistence priority and had the potential – if corresponding revisions to ANIILCA were made – to remove certain guarantees
previously afforded to rural residents (“Why Alaska Natives opposed Governor Hickel’s
bill,”AFN Newsletter, 1992). Consequently, Hickel’s bill was hugely unpopular with
Alaska Natives (ibid.) and those who supported rural users’ subsistence rights.
Furthermore, legal scholars were uncertain that the proposal did, in fact, meet
McDowell’s requirement, as subsistence was still based partly on residency and did not
provide equal access to all Alaskans (ibid). As a result of user group opposition – on
both sides of the debate – and uncertainty as to whether such a bill would in fact
sufficiently resolve the incompatible federal and state statutes, Hickel’s bill failed to
attract enough support and was not passed by the legislature (Subsistence Management
Information 2002).
After his bill failed to win approval in the legislature, Hickel called together
legislators for a special session on subsistence in order to facilitate the passage of a
revised state subsistence law consistent with McDowell. From this special session, a new
law was drafted and eventually adopted by the legislature in 1992. The 1992 law allowed
all Alaskans to be eligible for subsistence and detailed a process by which certain
subsistence users would be granted priority over others in times of shortage. Rural
residency was not among the criteria determining a user’s subsistence priority. The law
did allow for the designation of certain urban regions as “nonsubsistence areas,” for
which subsistence harvests were eliminated, as subsistence in these areas was not
87 considered a “part of the economy, culture, or way of life” (Subsistence Management
Information 2002). Still, as the law did not comply with ANILCA’s Title VIII rural priority requirement, management of federal lands remained out of state authority.
Turning to the courts, not the legislature, for a solution
Since the 1992 law did not bring the state into compliance with ANILCA and
return unified management, user groups and politicians turned to the courts for a
resolution to the subsistence debate. As Thomas Morehouse notes in reference to judicial
decisions of the 1980s, however, the court’s policymaking powers are limited, and in answering narrow legal questions, they generally provide only “short term solutions”
(Morehouse, 1992, 5). Similarly, the court cases of the 1990s failed to bring any sort of resolution to the subsistence debate. Instead, court decisions led to an increased discrepancy between federal and state subsistence mandates, thus further establishing the institution of divided management and complicating the legal precedents regarding subsistence. At the same time, increased political momentum for a judicial answer to the subsistence issue served to further divide urban and rural residents.
In 1993, a State Superior Court decision ruled “nonsubsistence areas,” established in accordance with the new state subsistence law, to still be unconstitutional (Kenaitze v.
State). The opinion declares that such areas “effectively re-establish the rural/urban residency requirement struck down in McDowell,” as they unfairly restrict access to fish
and game resources for residents living in nonsubsistence areas (Subsistence
Management Information 2002). In adherence to McDowell decision, state courts were
directed to rule against any laws that privileged rural or Native users unless an
amendment to the state Constitution explicitly providing for such a priority was passed.
88 State court decisions such as the 1995 Kenaitze case had the effect of further exacerbating
the differences between federal and state subsistence mandates and their resultant
policies, as the state court increasingly supported equal access to resources while the
federal government maintained the rural priority.
As it appeared that the state courts would not tolerate a subsistence priority based
on residency and thus allow management to return to state authorities without new
legislative action, suits were brought to state and federal courts that challenged the
federal government’s management authority. Petitioners in these suits alleged that
because the Alaskan government had fulfilled the terms of their compact with the federal
government in the 6(e) Statehood Act, management responsibilities rightly belonged to
the state (Totemoff v. State, 905 P.2d 954, 1995; State of Alaska v. Morry, Alaska State
Supreme Court opinion, No. 3866, 1992; Alaska Legislative Council v. Babbitt, 15 F.
Supp. 2d 19 (D.D.C.), 1999).
While none of these cases resulted in a court decision mandating a return to
unified state management, they illustrate the increasing tendency of dissatisfied persons
to bring their grievances to the courts after deciding federal and state legislators were not
likely to agree on a solution to the subsistence issue. For this reason, it is important to
note that in the most recent case, Alaska Legislative Council v. Babbitt, the plaintiffs
were Alaska state legislators unwilling to support a rural priority constitutional
amendment that would have brought the state into compliance with ANILCA. Instead of
attempting to negotiate with their opponents in the legislature, the court-focused
legislators looked for outside validation of their view. As a result, a compromise
89 satisfactory to all parties became even more unlikely, as competing sides became more attached to their own platforms and less willing to participate in legislature negotiations.
The plaintiffs, seventeen Republican legislators backed by their own organization, the Alaska Legislative Council, sued the federal government for management of federal lands. In their suit, legislators alleged that the federal government’s mandate infringed upon a legislator’s duty to
act in the best interest of the citizens of the State as a whole, to abide by the limitations of the Constitution of the State of Alaska with respect to the common use of fish and wildlife resources and to make a conscientious application of their authority to protect and preserve the public trust for all citizens of the State of Alaska (Part B, AK Legisl Cncl v. Babbitt).
The legislators felt that in amending their Constitution to allow for ANILCA’s rural priority, they would be negligent in a deeper, overarching commitment to their constituents. The U.S. Court of Appeals for the D.C. Circuit found that the legislators
lacked grounds to sue and dismissed the case. As a result of the decision, the state
legislators were left with little choice but to amend their state laws, convince Congress to
revise ANILCA, or let federal subsistence management continue on public lands. The
defeat of the Alaska Legislative Council lawsuit came at a crucial time, as the Secretaries
of the U.S. Departments of the Interior and Agriculture had earlier issued a statement
declaring their intent to extend federal rulemaking powers to include certain waters on
public lands.
The Secretaries’ notice followed the decision of a federal court case, known as
Katie John III, which granted the federal government the authority to regulate subsistence
fisheries on navigable waters with reserved water rights (Peel 2001, par.5). Like other
cases in the wake of McDowell, the Katie John decision further entrenched the institution
of divided management in its ruling regarding the longstanding jurisdictional conflict
90 between the federal and state government. Although the state had lost subsistence game management to the federal government in 1990, it was assumed until Katie John that the state still could manage subsistence fishing on a large portion of the public lands, as the waters on such lands were considered navigable and thus apparently ceded to the state by provisions of the Statehood Act (6(e)). At the same time, fishing contributed a much larger share than game to the total subsistence harvest,3 and so subsistence users sought increased federal protection of their activities (Brelsford 2003). If the federal government attained control of subsistence fisheries located in waterways on public lands, it would set the quotas there for subsistence fishing, leaving only the harvestable
extra to be regulated by the state for commercial and recreational fishing purposes. Thus,
state officials and the fishing industry were concerned about potential changes in
subsistence fisheries management authority (ibid.).
The state’s concern became realized when Katie John, an Alaska Native woman
whose family had fished on the Copper River for generations, sued the U.S. Department
of the Interior in federal district court for neglecting to protect her right to subsistence
fish under Title VIII ANILCA. She claimed that the federal government was responsible
for ensuring that she and her family have a rural user subsistence preference on the
waters located on the public lands where she fished (Josephson 1997). The federal
district court agreed in part, making the federal government responsible for the
management of a large number of subsistence fisheries on public lands (ibid.). The state,
adamant that its already reduced authority would not be further curtailed, opposed the
decision. Helping the state’s case was the Alaska delegation to Congress, which attached
3 In the 1990s, fish catches made up fifty-nine percent of the total subsistence harvest weight by rural Alaska residents; land mammal harvests only contributed twenty percent to the total (Division of Subsistence, Alaska Department of Fish and Game, “Subsistence in Alaska: 1994 Update” 1994).
91 a rider on appropriation bills to prohibit the federal government from spending money on
a subsistence fisheries program (Brelsford 2003). This moratorium on spending stalled the implementation of the Katie John decision, allowing the state to appeal the decision before subsistence fisheries authority on public waterways was to be transferred to the
federal government.
The conflicts over navigable waters jurisdiction and the terms of the Statehood
Act, set off by Katie John, severely strained the relationship between the state and federal
government. As noted previously, the Departments of the Interior and Agriculture issued
a statement indicating their intent to take over fishing management on navigable public
waterways reserved to the federal government soon after the court ruling was issued. To prevent the federal government from extending its authority, the state appealed the Katie
John decision to the Ninth Circuit Court of Appeals in 1995 and lost, making the extension of federal management of subsistence fisheries seem, without a miracle legislative resolution, inevitable. And so, as with the immediate period after the
McDowell decision, state political leaders tried to find such a miracle resolution to the subsistence debate before the management of many subsistence fisheries was transferred from the state to federal government.
Revisiting the idea of a constitutional amendment: the Knowles administration As was attempted by the two previous state governors, Democratic Governor
Tony Knowles endeavored in the midst of the Katie John conflict to find a solution that would bring unified fish and game management back to the state of Alaska and, at the same time, offer adequate protection for subsistence users. Knowles understood that finding a middle ground solution suitable to most Alaskans would be difficult, as people and legislators on both sides of the issue felt so strongly that their position was right that
92 they were unwilling to compromise. Knowing this, Knowles wanted first to find out through eliciting testimony what the people of Alaska truly wanted and to then craft a solution based on what was discovered. He enlisted Lieutenant Governor Fran Ulmer to lead a project that became known as “quiet diplomacy,” which Knowles hoped would find common ground between diverse user groups and federal and state authorities
(Ulmer 1996, par.2).
Following a period of “quiet diplomacy,” Ulmer presented a proposal that included a state constitutional amendment allowing for a priority based on residency and other factors, revisions to the state subsistence law to extend a subsistence priority to all rural, plus qualified non-rural residents with cultural or traditional ties to subsistence, and
changes to ANILCA which would broaden the exclusive rural subsistence priority
(Ulmer 1996). Under her proposal, Alaska Natives living in urban areas could be eligible for the subsistence priority, thus allowing the federal government to better apply the
Federal Trust Doctrine towards all Alaska Natives. In exchange for such an avowed protection of subsistence, the federal government would concede its management
authority and defer much discretion to the state in its implementation of the protections
(ibid.). Knowles incorporated Ulmer’s plan into his own subsistence platform
(Subsistence Management Information 2002) and attempted to get the support of
Alaska’s legislators in passing a subsistence package before the assumption of
subsistence fisheries management by the federal government.
At the same time Governor Knowles attempted to find a legislative solution to the
subsistence debate, Alaska’s senior Senator Ted Stevens continued to negotiate with
Congress to delay the start of federal subsistence fisheries management (Subsistence
93 Management Information 2002; Brelsford 2003). After Stevens had secured another year’s spending moratorium on funding for a federal subsistence fisheries program, the
Alaska House of Representatives passed Knowles’ proposed constitutional amendment.
However, in spite of numerous special sessions in the spring and summer of 1998 on subsistence, the Alaska Senate failed to pass the same amendment and it was not placed on the ballot for a statewide vote that fall. Later that year, the postponement expired and in January of 1999 the federal government expanded its jurisdiction by adopting regulations for subsistence fisheries that had previously been under the control of the state, declaring its regulations would officially take effect in October of that year.
Despite the fact that the federal government had officially assumed management
control of both fishing and game management on public lands, Knowles and other state
officials still tried to argue that the federal government had no right to do so. The Katie
John case was brought again by the state to the Ninth Circuit Court of Appeals. This
time around the full court of judges sitting en banc came to the same conclusion that the
smaller panel of three judges had: the federal government is within its rights to assert
control over navigable waters in which the United States had an interest under the
reserved water doctrine, as long as the state refused to comply with the ANILCA
subsistence preference provision (Peel 2001). In the discussion of the opinion, the judges
clearly point out the need for a legislative solution to the subsistence debate (ibid.), as
judges and legal scholars had consistently done in the late 1980s and throughout the
1990s.
Accepting the judges’ ruling, Governor Knowles decided against appealing the
Katie John case to the Supreme Court and instead focused his attention on finding the
94 elusive compromise, highly desired by all parties involved, which would return management to the state. In a press release dated after the Ninth Circuit’s second ruling,
Knowles said that he had visited Katie John herself and come to the conclusion that without a constitutional amendment, the state could not adequately protect subsistence for those who depended on the land’s resources the most (Office of the Governor 2001). As a result, Knowles called for a rural subsistence priority to the state constitution as directed by the Ninth Circuit’s decision and McDowell (ibid.).
The compromise solution Knowles presented in 2002 at his third special
legislative session on subsistence was based on Ulmer’s proposal, which had been
formulated through the “quiet diplomacy” effort. In a wholly new proposed Section 19
of the state constitution, Knowles’s amendment specifically recognized the “subsistence
tradition of the indigenous peoples of Alaska” and accorded to them “a priority to
customary and traditional uses in the allocation of fish, wildlife and other renewable
resources” (Office of the Governor 2002, par.8). In addition to securing a priority for
rural residents in 19(b), the last paragraph allowed the state legislature to give a “lower priority” to urban residents with customary and traditional ties to fish and wildlife resources. By extending the priority to include some urban residents, it was perhaps thought that the amendment’s protections would be more palatable to Alaska Natives who had moved away from rural areas. On the other hand, non-Native urban sports hunters and fishers and many Republican legislators did not support the proposal, believing that the rural priority amendment would still allow certain rural users who did not significantly depend on subsistence to have an unfair priority (Alaska Outdoor
Council 1997, par.13).
95 Because the public could not vote on a constitutional amendment before it was passed by the legislature, Anchorage residents had overwhelmingly supported a
municipal ballot resolution advising the Alaska legislature to pass a constitutional
amendment regarding subsistence (Office of the Governor 2002). Yet, despite Knowles’
effort and public support for an amendment to be considered by Alaskan voters that fall,
his proposal – like the previous one – did not win the critical support of House and
Senate Republicans before this past year’s November elections. Thus Knowles, after
serving two terms as Alaska’s governor, left office having failed to convince a the necessary amount of Republican legislators to pass a subsistence amendment that would
have potentially led to the resumption of state management.
Subsistence solution on the horizon? – the Murkowski Administration
It is speculated that Republicans failed to ratify such an amendment last year
because they awaited the results of the gubernatorial election between Lieutenant
Governor Fran Ulmer and Republican Frank Murkowski, then one of Alaska’s two U.S.
Senators (Brelsford 2003). The uncompromising position taken by a minority of
Republicans in blocking Knowles’ constitutional amendment perhaps paid off.
Murkowski won the election, and his position on subsistence more closely resembles the
Republican view than the position of Ulmer, who supported a proposal similar to the one
advocated by Knowles. Both candidates professed concern with the federal
government’s subsistence intervention and desired a return to unified state management;
each proposed different strategies for doing so. Ulmer, tightening somewhat from the
“rural plus” proposal she supported in 1996, campaigned for an exclusively rural priority
amendment to the Constitution (Moran 2002, par.2). However, Murkowski campaigned
96 to regain state management by advocating for a slightly different amendment, which would provide for a rural priority only “in times of resource shortage” (Murkowski for
Alaska 2002). Because “attorneys on both sides of the issue agree” that ANILCA
“provides a rural priority all of the time and not just in times of shortage” (Bishop 2002,
par.11), it is speculated that revisions to the federal law would be necessary in addition to
the constitutional amendment proposed by Murkowski. Murkowski’s campaign manager
denied that the candidate necessarily supported a change in the law and declared that the
candidate’s support of a rural priority only in times of shortage was evidence of
Murkowski’s “broad principles,” not tied to specific ANILCA revisions (ibid., par.12).
The key difference between the candidates’ positions was that Ulmer believed the
subsistence issue could be resolved without any additional concessions from the federal
government, whereas Murkowski appeared more willing to lobby Congress to amend
ANILCA’s standing provisions in an attempt to regain state management. Murkowski
further asserted his support of state sovereignty by publicly deriding Knowles for backing
down from the Katie John appeal (Bishop 2002, par.19). Governor Murkowski’s
position on subsistence is thus more closely aligned with legislators supportive of states’
rights in the Republican-dominated state House and Senate and non-Native urban sport
hunters in the Alaska Outdoor Council who endorsed his candidacy (Alaska Outdoor
Council Newsletter 2002). On the other hand, Alaska Native organizations such as the
AFN and their advocates in the legislature do not support Murkowski’s “ANILCA
minus” plan, as the proposal calls for changes to ANILCA that could effectively reduce
the government’s established subsistence protections (Alaska Federation of Natives
2002).
97 Despite the advantage of a Republican-dominated legislature, it is unlikely that
Murkowski’s party affiliation and position on subsistence will result in the approval of his proposal. Any amendment to the Constitution presented by the Governor must win two-thirds of the vote in both houses before being presented to Alaska voters for approval. As the Republicans do not have a two-thirds majority, they would need considerable support from their Democratic colleagues. Because Native organizations are opposed to proposals such as Murkowski’s that would allow for further state statutory restrictions on subsistence, it is improbable that the Democratic caucus, which considers
Native input “critical to subsistence policy” (Berkowitz 2003), would support a rural
priority only in times of shortage.
Additionally, it appears that an alternative bill or constitutional amendment on
subsistence at this time is not politically viable, as any resolution would be perceived as
too controversial (Berkowitz 2003). An alternative legislative proposal would have to be
approved by two-thirds of the members of a legislative committee such as the Committee
on Natural Resources or Finance, before being brought to the floor for a vote. Many
members of the committees are of the belief that the status quo of divided management is
a politically acceptable alternative to a statewide rural or Native subsistence priority
(ibid.). Consequently, it is improbable that a legislative reform of subsistence policy will
occur in the absence of a politically significant event that somehow upsets the current
political stalemate in the legislature.
Thus, due in part to conflicts within and between state and federal legislators and
the entrenchment of divided management facilitated by the court system, dual subsistence
management remains. Starting in 1990, legislators and others with a vested interest in the
98 subsistence issue have advanced a wide range of proposals, from a Native-only priority to a complete abandonment of any sort of priority. Among these, a few middle ground
solutions were considered plausible and initially taken up by the legislature. These included amendments to the Constitution allowing for a rural or “rural plus” priority, revisions of ANILCA to make the federal law compatible with state law, and
combinations of these two ideas. Yet, none of these proposals ever gained the necessary support in the state legislature or was even seriously considered by Congress. In turning to the court system for a resolution of the subsistence debate, parties on all sides were frustrated by the lack of a single, politically compelling court decision. As a result, divided subsistence management became more established and the differences between opposing parties grew, making a solution that would return management to the state and afford adequate subsistence protections increasingly unrealistic and less desirable.
The implementation of dual management and associated effects on subsistence users
In the 1990s, subsistence remained a large part of rural villagers’ economic, social and cultural existence. Although subsistence activities throughout the decade accounted for only two to four percent of the state’s total resource harvests, subsistence harvests provided an average of 375 pounds of food per year for each rural Alaskan resident
(Division of Subsistence, Alaska Department of Fish and Game, “Subsistence in Alaska:
1994 Update,” and “Subsistence in Alaska: A Year 2000 Update”). Employing similar traditions that their ancestors did with regard to subsistence activities (Sam 2003), contemporary Alaska Natives – whose population numbers 62,000 in rural areas of the state – have maintained that harvesting wild foods ensures the survival of their long-held cultural values such as kin-based sharing (Division of Subsistence, Alaska Department of
99 Fish and Game, “Subsistence in Alaska: 1994 Update,” 1994; Sam 2003). Disputing the
claims of Alaska Natives, urban and sport interests have argued that subsistence
protections should not be based at all on group or community cultural connections to
subsistence, emphasizing instead that only those who depend on subsistence to meet
“nutritional needs” should be allowed more protections than the average Alaskan (Alaska
Outdoor Council 1997). By downplaying the importance of subsistence and restricting its definition, urban and sport hunters hope to be allowed less inhibited, and ostensibly fairer, access to fish and game resources. The responsibility fell onto managers to reconcile values and needs at odds with each other, while at the same time, follow
subsistence laws and mandates imposed by federal and state officials.
The conflicting mandates of the federal and state management authorized by governing laws and court decisions after McDowell resulted in divergent federal and state subsistence policy and regulations. As this section will illustrate, federal and state mandates have caused some users to assert that the federal government’s subsistence regulations are overly sympathetic to rural and Native subsistence users, and other users to complain that the state’s regulations are unfairly favorable to sports and commercial interests. The extent to which these perceptions are valid will be analyzed in light of the more recent state and federal government mandates, as well as of the internal structures of management driving each government’s regulatory process. This section will further examine dual management by determining its effect on the relationship between federal and state authorities. Despite divergent regulations and differences in the processes of subsistence policy formation, state and federal management authorities have mostly cooperated as necessary, further institutionalizing the system of divided management.
100 An overview of differences between federal and state mandates under dual management
Federal management authority initially included responsibility for the regulation of subsistence game harvests on public lands. In 1999, the federal management mandate was broadened in response to the Katie John decision to include subsistence fisheries on navigable waters on public lands and today the federal government manages subsistence uses on federal public lands4. All federal management policy must be consistent with
Title VIII of ANILCA’s subsistence protections, a requirement of which continues to be a rural subsistence priority. Furthermore, federal policy is to take into account the Federal
Trust Doctrine when its actions affect Alaska Natives, which provides for adequate protections for Native subsistence users and encourages Native self-determination.
After the federal management “takeover,” the state retained exclusive management authority over state, private, and Native corporate land, which comprises forty percent of the state’s area. On federal public lands, the state is responsible for commercial and sport regulations. Since the federal government sets subsistence quotas and regulations on public lands, however, the state manages commercial and sport uses only for the remaining harvestable surplus. State subsistence law and court interpretations of the Alaska Constitution guide and restrict state managers in the creation of subsistence policy. After the McDowell decision, state management regulations could not include a subsistence priority based on residency. Consequently, state authorities have had to pursue subsistence management strategies to accommodate the state courts’
4 Federal management of fish and game resources is restricted only to subsistence uses on federal public lands under provisions of the Statehood Act and ANILCA (Katie John v. US). For this reason, a unified federal management regime is not at this time legally feasible. Nor would such a regime be politically feasible, as most Alaskans desire increased state sovereignty over natural resource management.
101 interpretation of the “common use” clause, support Native and rural subsistence users, and sustain wildlife populations throughout the state.
Because ANILCA and the Statehood Act allow for the federal government to intervene only on behalf of subsistence users harvesting on public lands, the federal jurisdiction remains somewhat limited. At the same time, because their jurisdiction is restricted, federal authorities have been able to focus their efforts more directly on protecting subsistence activities in accordance with ANILCA and the Federal Trust
Doctrine. State authorities, on the other hand, have had to accommodate a wider range of interests in setting subsistence policy on state, Native and private land, as they are also responsible for regulating commercial and recreational uses (See 2003).
Immediate response of federal and state managers to new mandates and jurisdictions
After the McDowell decision ushered in a new era of divided management, the federal and state authorities adopted subsistence regulations for their respective jurisdictions. Federal authorities passed a set of temporary regulations in 1990 (Boyd
2003). The regulations did not vary much from the previous year’s state regulations, which included a rural priority consistent with ANILCA (ibid.) and thus fulfilled the federal government’s mandate. Because a report by the state’s Division of Subsistence completed around the same time indicated that the state’s rural priority had helped protect subsistence users without unduly affecting non-subsistence hunters (“How Alaska’s
Subsistence Law Affected Hunting Regulations” 1990), it is reasonable to assume that the federal government’s temporary regulations – which were essentially the state’s old regulations – would have similar effects on users that earlier state regulations had.
102 In contrast, the state had to potentially provide for all 550,043 Alaskan residents eligible for subsistence harvests on state, private and Native corporate lands (Division of
Subsistence, “Subsistence in Alaska: 1991 Update,” 1991). To accommodate the anticipated increase in number of qualified subsistence users, the state reduced bag limits for all subsistence users in its regulations (ibid.). Immediately in response to the state’s
new regulations, certain Alaska Native corporations restricted access to certain
subsistence lands – under state management and thus subject to the consequences of its
new mandate – in order to provide first for their own shareholders, and then to non-
resident hunters (Colt 2003; Caulfield 1992, 30).
Thus, in response to conflicting laws and court decisions regarding the rural
priority, the subsistence policies under state and federal management immediately
diverged in terms of their consequences for Alaska’s hunters and fishers. Significant is
the abandonment of the rural priority by the state and subsequent management regulation
reform, which had immediate effects on Alaska’s rural and Native subsistence users
harvesting on state and private lands as evidenced by the decision of some Native
corporations to restrict access to their lands.
An overview of new federal and state management structures:
State and federal laws also affect the priority of subsistence within the context of
a larger management structure and thus the regulations that result from such a structure.
In the state system, the State Boards of Fisheries and Game are the two bodies that
ultimately approve or disapprove of final state regulations and policies regarding
subsistence. The Governor selects the Boards’ members, and the Boards are considered
political bodies (Boyd 2003). The federal counterpart to the state Boards is the Federal
103 Subsistence Board, a six-member committee comprised mostly of top regional
bureaucrats from federal agencies.
Assisting the federal and state boards in the formulation of subsistence policy are
staff support agencies. On the state side the Division of Subsistence, a relatively small
agency within the larger Alaska Department of Fish and Game (ADF&G), helps the state
Boards of Fisheries and Game to formulate subsistence regulations. Other divisions
within the ADF&G create commercial and sports use regulations. Supporting the Federal
Subsistence Board is the Office of Subsistence Management, known as the OSM, which
coordinates an interagency staff committee composed of representatives from select
federal agencies. The support staff organizations work to aid their respective boards by
conducting biological and anthropological research and devising recommendations on
subsistence policies.
Additionally, state and federal policymakers solicit user proposals and their
opinions on subsistence issues. The state and federal management authorities have both welcomed input from individual users who are encouraged to suggest regulatory changes and comment on subsistence policies by attending local, regional, and state meetings and writing letters to the boards. The state system continued to rely on local advisory committees for user input, while the federal system revived regional advisory committees, which, if implemented according ANILCA’s provisions, would act as a super-advisory committee with a stronger influence than the state’s local committees had on management decisions.
104 Predictably, differences in federal and state management systems’ mandates, jurisdictions, and organizational structure resulted in separate subsistence policies and user reactions.
Comparing and contrasting the state and federal boards
Differences between federal and state management mandates and institutional structures became formalized at the initiation of divided management. Notable organizational differences between the federal and state system can be found when comparing each government’s decision-making boards, the Federal Subsistence Board and the State Boards of Fisheries and Game.
The Governor of Alaska appoints the members of the state Boards, contributing to the sense that the Boards are political, and they are therefore susceptible to claims of biased management decisions. For instance, all of Governor Murkowski’s four Board of
Fisheries appointees have ties to the commercial fishing industry (Gay 2003). In the state system, subsistence users are not guaranteed representation on the board and, because subsistence makes up only a small percentage of the total resource harvest the state regulates,5 subsistence users may feel that they have little influence over the regulations that are passed by the boards.
By contrast, the Federal Subsistence Board is comprised of career resource managers, many of whom may be not be intimate with subsistence issues, but are familiar with government regulatory processes. Five of the six board members are senior bureaucrats representing one of the following federal agencies: the Forest Service,
5 Throughout the 1990s, subsistence accounted for approximately 2% of the total fish and game harvest (according to total weight harvested). Commercial uses comprised 97%; Recreational uses contributed 1% (Division of Subsistence, Alaska Department of Fish and Game, “Subsistence in Alaska: A Year 2000 Update,” 2000).
105 Bureau of Indian Affairs, Fish and Wildlife Service, National Park Service and the
Bureau of Land Management. The Secretary of the Interior appoints the sixth member,
designated as chair of the Board. Since the mid-1990s, an Alaska Native has occupied
the chairmanship, and it is thought by many that the position should traditionally remain
filled by a Native subsistence user (Brelsford 2003; Norris 2002). Because ANILCA
and, by extension, the Federal Trust Doctrine – the Board’s guiding mandates – afford
broad subsistence protections, the Board is susceptible to criticism from those with urban
sports hunting and commercial interests. On the other hand, some Alaska Natives have
complained about the lack of additional Native representation on the Board, claiming that
the decisions they make have the effect of hurting, not helping, Native subsistence users
(Federal Subsistence Board Meeting, 14 January 2003).
The composition of the federal and state boards and how their members are
selected are important in determining subsistence users’ perceptions toward federal and
state management authorities and thus what alternatives to dual management might be
welcomed by subsistence users. However, the actual decisions that the boards make rely
substantially on the technical reports prepared by the supporting staff agencies, the federal Office of Subsistence Management and the state’s Division of Subsistence
(Brelsford 2003). Although some state decisions in recent years have been criticized for their biases towards commercial or sport hunting interests, the state Boards increasingly pass Division of Subsistence recommendations (Noble 1987, 235). Similarly, as voting members of the Federal Subsistence Board are not experts in subsistence issues, they rely on subsistence staffers from the interagency staff committee and the OSM to help them decide on proposals (Brelsford 2003).
106 The role of the subsistence staff agencies in state and federal management systems
Both the federal and state boards have support staff offices that work to provide general advice, conduct and fund research, and sift through regulatory recommendations.
As the key offices providing and directing scientific and anthropological reports and devising recommendations based on these reports, these agencies have influenced the direction of management.
When the federal government assumed subsistence management responsibilities for public lands and opened the Office of Subsistence Management, the federal agency began directing and commissioning anthropological and biological studies, hoping to build on data the state’s Division of Subsistence had collected throughout the 1980s.
Although the state subsistence program was underfunded due to a decreasing amount of state financial resources, important reports were authored by state staffers on topics such as Native sharing traditions and harvest patterns that proved useful in drafting new policies (Brelsford 2003). New studies funded, coordinated or conducted by the Office of Subsistence Management and other federal agencies reflect an attempt to collect data that will be of use in the formulation of sound policy protecting both subsistence users and wildlife populations. Increasingly, studies document Traditional Ecological
Knowledge (TEK) in an effort to devise regulations that better accommodate subsistence user harvest patterns (Workshop on TEK 2003).
As a result of such research, due in part to increased federal funding for and attention to subsistence, policies devised by federal staffers now better protect subsistence users. For instance, extensive state research done on Native community harvest patterns in the 1980s concluded that thirty percent of a community’s households
107 provided for seventy percent of the community (Wolfe 1987). The households that
provided most of the food to the community became known as “super households”
(ibid.). Because, based on the research, it did not seem productive to allot permits to all
individuals in the community, federal staffers and local subsistence representatives
devised a system by which those from the less efficient households could designate their
hunting or fishing quota to another member in the community, presumably one from a
“super household” (Brelsford 2003; Office of Subsistence Management, “Subsistence
Management Regulations for the Harvest of Wildlife,” 2003). Through this “designated
hunter” system, federal regulations were changed to more accurately reflect subsistence user harvest patterns (ibid.). In other efforts to adopt regulations that better reflect harvest patterns, the federal agencies have used research to support the establishment of new
subsistence fisheries and more customary and traditional use designations, both of which
work to provide more protections for subsistence users.
Although the federal government funds many of the contemporary subsistence
studies, the state is often involved in subsistence studies and incorporates the results into their policy recommendations. Throughout the 1990s, the state Boards remained receptive to reports and recommendations from scientists and managers in the state’s
Division of Subsistence, which they had started to attend to in the late 1980s. Still, the viewpoints of the individual Board members were sometimes critical in formulating policy recommended by the Division of Subsistence. Marianne See, currently the Deputy
Director of Federal Subsistence Coordination within the ADF&G Division of
Subsistence, observes that in certain rulings relating to subsistence, the philosophy of the
Boards has been an important deciding factor in cases where scientific or other research
108 regarding a recommendation is not entirely conclusive (See 2003). Additionally, unlike
the Federal Subsistence Board, the state Boards are also required to create regulations for
commercial and sport users. Thus, in addition to considering the recommendations of the
Division of Subsistence, the state Boards weigh recommendations from other divisions
within the state Department of Fish and Game, and sometimes must balance conflicting
interests and policy proposals due to their broad mandate (ibid.).
While the philosophy and mandates of the boards are often significant in the regulatory process, the staff agencies supporting the decision-making boards have also played a critical role in formulating subsistence policy. As a result of research completed on subsistence issues, federal and state policies today better reflect harvest user patterns.
However, due to in part to a lack of funding and the state’s broader mandate, in addition to the motivations of individual state Board members, the state’s Division of Subsistence has been more restricted than the Office of Subsistence Management in advancing subsistence user protections.
Soliciting user reactions and involvement: A comparison of state and federal methods
In the formulation of successful subsistence regulations, user involvement in the decision making process is considered a key factor (Kelso 1982). The extent to which a user believes he or she is being listened to and has a role to play in the policymaking process will affect the user’s adherence to the policies that are put in place by management authorities. As a result, both the federal and state management authorities claim to have a “bottom up” method by which subsistence users have great influence over the formulation of subsistence policy (See 2003; Boyd 2003).
109 On the state side, managers rely on eighty local advisory boards to help formulate policy that reflects the harvest patterns of a particular place. However, effective subsistence representation is lacking, as the boards are challenged by funding and organizational difficulties similar to those faced in the 1980s (Morehouse and Holleman
1994). Still, subsistence users are encouraged to respond to state proposals by submitting written comments on regulation proposals and attending meetings of the state Boards of
Fisheries and Game. However, for many rural and Native subsistence users living in remote villages, users may not be able – due to cultural or economic barriers – to effectively influence policy through participation in local advisory committees or interactions with the Division of Subsistence or state Boards of Fisheries and Game.
Additionally, due to budgetary pressures, the state lacks the necessary funds to incorporate Alaska’s subsistence users into the policymaking process (Aspelund 2003).
The federal government, on the other hand, has directed a great influx of funds to support user involvement in subsistence policy (Aspelund 2003; See 2003). Some of this funding has been directed towards reviving the Regional Advisory Councils (RACs).
Although instituted during the 1980s by the state in compliance with ANICLA’s provisions, many RACs were unable to encourage user involvement due to insufficient funding (Brelsford 1998). In the federal government’s push to reestablish the RACs, more regional coordinators were hired to facilitate user interaction in the regulation making process (ibid.).
Thanks to the establishment of these regional coordinators and increased funding, the federal government has been able to overcome some of the cultural and economic barriers to subsistence user involvement that the state has not completely conquered.
110 Through actions such as these, the federal government has made progress in gaining the trust of subsistence users, which has led to progress toward another key component in good management policy (Kelso 1982): an increasingly strong relationship between federal managers and subsistence users.
Cooperation between federal and state management authorities
In evaluating dual management, it is important not only to compare the different management mandates and organizational structures, but also to examine the extent to which the two governments cooperate in the formation and implementation of subsistence policy. Despite conflicting mandates, changing jurisdictions, divergent management bodies and the policies that result from them, federal and state authorities have made efforts to cooperate as needed.
Through court cases, many of the jurisdictional disputes concerning state and federal management authorities have been resolved. Although conflicts concerning subsistence fishery regulations remain (Aspelund 2003), federal and state authorities signed an “Interim Memorandum of Agreement” in April of 2000 to help guide relations between the two governments. The agreement, which was signed by representatives of the Federal Subsistence Board, state Boards of Fisheries and Game, and the
Commissioner of the Alaska Department of Fish and Game (Boyd 2003; Federal
Subsistence Management Program 2002, 93-99), requires coordination between the two authorities in the formation of subsistence policy and regulation.
Throughout the 1990s, federal intervention and the implementation of the
ANILCA mandate led to the creation of increased protections for subsistence users through board decisions, staff agency research and recommendations, and incorporation
111 of subsistence users into the policymaking process. While much progress was made on the federal management side, the state managers struggled with obstacles such as the mandated repeal of a rural priority, competing commercial and sport interests, and a lack of funding to gain the approval of subsistence users. Thus, stereotyping of the federal government as more sympathetic to rural and Native users and the state to commercial and urban sport users became more ingrained. Despite mixed feelings toward dual management, however, it has over the course of thirteen years become increasingly institutionalized and bureaucratized. Today, managers concentrate more on making the current system work for subsistence users and do not anticipate a return to unified state management anytime soon (Boyd 2003).
112 Chapter Three Bibliography
Alaska Federation of Natives, “Subsistence.” 2002.
Alaska Legislative Council v. Babbitt. 15 F. Supp. 2d 19 (D.D.C.) (1999)
Alaska Outdoor Council, “Statement on the subsistence issue.” 1997.
AOC-PAC Endorsements. 2002. Alaska Outdoor Council Newsletter (advertisement). 11, no.3.
Aspelund, Sue. Executive Director, Cordova Fishers Association. 2003. Personal interview. Anchorage, AK, 14 January.
Berkowitz, Ethan. Minority Leader, Alaska State House of Representatives. 2003. Phone interview. Anchorage, AK, 14 January.
Bishop, Sam. 2002. Murkowski: Long ties to Native leaders. Fairbanks Daily News- Miner (news-miner.com). 31 October.
Boyd, Tom. Director, Office of Subsistence Management. 2003. Personal interview. Anchorage, AK, 21 January.
Brelsford, Taylor. 1998. A meaningful voice: Federal regional councils and subsistence management. Cultural Survival Quarterly. 22, no.3, 72.
Brelsford, Taylor. 2003. Personal interviews. Anchorage, AK. 12-23 January.
Cowper, Steve. 1990. Subsistence amendment, Pro: Rural priority is only good solution. News Miner. 26 March 1990.
Caulfield, Richard A. 1992. Alaska’s subsistence management regimes. Polar Record. 28, no.164: 23-32.
Colt, Steve. Professor, Institute of Social and Economic Research, University of Alaska Anchorage. 2003. Personal interview. Anchorage, AK: 21 January.
Division of Subsistence, Alaska Department of Fish and Game. “Subsistence in Alaska: 1991 update.” March 1991.
113 Division of Subsistence, Alaska Department of Fish and Game. “Subsistence in Alaska: 1994 update.” March 1994.
Division of Subsistence, Alaska Department of Fish and Game. “Subsistence in Alaska: 2000 update.” March 2000.
Federal Subsistence Board Meeting. 2003. Notes taken by author. Anchorage, AK. 14 January 2003.
Federal Subsistence Management Program. 2002. 2002 Regional Council Operations Manual. U.S. Fish and Wildlife Service Office of Subsistence Management.
Gay, Joseph. 2003. Murkowski names Fish Board picks. Anchorage Daily News (www.adn.com) 17 January. B1.
Hickel, Walter J. 1992. Letter to from Governor Walter J. Hickel to Ben Grussendorf, Speaker of the House, Alaska State Legislature re: HB 552 and SB 443 (Subsistence). 21 February. (fax transmission from Senator Fred Zharhoff to Taylor Brelsford dated 22 February 1992).
Josephson, Andrew. 1997. Katie John and Totemoff: the United States and Alaska clash over the Reserved Water Rights Doctrine and Native Alaska hunting and fishing rights - The U.S. Supreme Court passes on an opportunity to resolve the subsistence debate. Dickinson Journal of Environmental Law and Policy. Carlisle, PA: The Dickinson School of Law. LEXIS: 6 Dick. J. Env. L. Pol. 225.
Kelso, Dennis. 1982. Subsistence use of fish and game resources in Alaska: considerations in formulating effective management policies. Technical paper 65. Division of Subsistence, Alaska Department of Fish and Game. Prepared for the 47th North American Wildlife and Natural Resources Conference Special Session on Alaska. Portland, OR, 31 March.
Kenaitze v. State, 3AN-91-4569 Civil Order. 26 October 1993.
Katie John v. U.S. 72 F.3d 689 (1995); U.S. App. LEXIS 35578
Morehouse, Thomas. 1992. The dual political status of Alaska Natives under U.S. policy. An occasional paper of the Institute of Social and Economic Research. Anchorage, AK: University of Alaska Anchorage.
Morehouse, Thomas, and Marybeth Holleman. 1994. Occasional paper 22: When values conflict: accommodating Alaska Native subsistence. Institute of Social and Economic Research, University of Alaska Anchorage. Anchorage, AK: ISER-UAA
114 Moran, Tom. 2002. Ulmer: put fish, game in state’s hands. Fairbanks Daily News Miner news-miner.com. 31 October.
Frank Murkowski for Alaska. “Alaska Issues: Frank Murkowski – A Bright Future for Alaska” 2002.
Norris, Frank. 2002. Alaska subsistence: a National Park Service management history. Produced by the Alaska Support Office, National Park Service. Anchorage, AK: U.S. Department of the Interior.
Office of the Governor, Press Releases. 2001. Knowles acts to protect subsistence, unite Alaskans: decides not to appeal Katie John, seeks vote on constitutional amendment. Release 01196. 27 August 2001.
Office of the Governor, Press Releases. 2002. Knowles announces special subsistence session: will direct legislature to address subsistence following regular session. Release 02060. 5 April 2002.
Peel, Ryan T. 2001. Katie John v. United States: Balancing Alaskan state sovereignty with a Native grandmother’s right to fish. Brigham Young Journal of Public Law. Brigham Young University (LEXIS: 15 BYU J. Pub. L. 263).
Sam, Gabe. RuralCAP. 2003. Personal interview. Anchorage, AK, 15 January.
See, Marianne. Deputy Director, State-Federal Coordination, Division of Subsistence, Alaska Department of Fish and Game. 2003. Personal interview. Anchorage, AK, 21 January.
State of Alaska, Office of the Governor. 1992. “A brief introduction to HB 552 and SB 443 (Subsistence). (fax transmission from Senator Fred Zharhoff to Taylor Bresford dated 22 February 1992).
State of Alaska v. Morry. 836 P.2d 358 (1992); 1992 Alas. LEXIS 87
Totemoff v. State, 905 P.2d 954 (1995); 1995 Alas. LEXIS 160
Ulmer, Fran. Lt. Governor Fran Ulmer on subsistence. “Comments on subsistence.” Date unknown.
Why Alaska Natives opposed Governor Hickel’s bill. 1992. AFN Newsletter. 10, no. 4: 4. Summer 1992.
115 Wolfe, Robert J. 1987. The super-household: specialization in subsistence economies. Division of Subsistence, Alaska Department of Fish and Game. Paper presented at the 14th annual meeting of the Alaska Anthropological Association, Anchorage, AK. 12-13 March.
Workshop on Traditional Ecological Knowledge and Salmon Research, Restoration and Management. 2003. Notes compiled by Henry Huntington, moderator. Anchorage, AK: 16-17 January.
116 Chapter Four: Conclusions
Subsistence activities have been a focus of conflict since non-Native settlers to
Alaska disrupted traditional harvest patterns. Beginning with Russian colonization in the
1700s and the later purchase of Alaska by the United States, Alaska Native subsistence activities and land claims have been subject to external regulations and influences. For the most part, however, Alaska’s Aleuts, Eskimos, and Indians had nominal say in the few pieces of legislation that affected hunting and fishing rights before the twentieth century. As a result, subsistence protections were not formalized, and the United States government and non-Native residents exploited Alaska’s natural resources for profit without much resistance.
To fulfill a court order that extended the Federal Trust Doctrine to Alaska Natives in the early 1900s, the federal government assumed a guardianship role and instituted a policy of assimilation at the expense of marginalizing subsistence activities. After the
Indian Reorganization Act’s passage in 1934 and subsequent policies aimed at increasing
Native self-determination, subsistence activities received more support from the federal government. As the relationship between Alaska Natives and the federal government became in some ways more cooperative, non-Native Alaskans sought to counter federal control over the territory’s natural resources by lobbying for statehood. Statehood elevated the influence of non-Natives in the policymaking process and articulated new interests in the emerging debates over management and ownership of land and resources.
Discussions of land use and rights resulted in a conciliation of state, federal, and Native interests through the Alaska Native Claims Settlement Act (ANCSA) of 1971, which included little additional protection for subsistence users.
117 In response to the ANCSA’s implementation and its responsibility under the
Federal Trust Doctrine, the federal government mandated a subsistence priority for rural residents in Title VIII of the Alaska National Interest Lands Conservation Act
(ANILCA). As this act was again a compromise between diverse and opposing interests, the parties involved continued throughout unified state management in the 1980s to disagree over which users, if any, were to be allotted preferences in the harvest of wild foods. Urban sport hunters and fishers, whose interests were disproportionately represented on state management boards and in the state legislature, maintained that the rural priority was unconstitutional and brought their claims to federal and state courts.
Native and rural users, on the other hand, benefited from ANILCA’s provisions and fought to ensure that state subsistence regulations complied at minimum with the federal law. ANILCA effectively strained relations between Alaska’s urban and rural residents and between the state and federal government. This divide was institutionalized by the
Supreme Court decision, McDowell v. State (1989), which struck down the rural priority and caused the federal government to assume responsibility for subsistence game, and eventually for fisheries, management on Alaska’s public lands.
Throughout the 1990s, government officials and citizen groups sought to reconcile rural and urban interests and conflicting state and federal government mandates in an attempt to facilitate a return to unified fishing and game management under the state. Parties from all sides brought their causes to state and federal courts and legislatures. These efforts have not initiated a judicial or legislative resolution of the subsistence debates and the divide between urban and rural residents, and the state and federal management mandates has become more entrenched.
118 Despite much debate and litigation, policies and regulations implemented under dual management have proven workable and even beneficial. Although many in the early
1990s believed that a federal and state dual subsistence system would result in exceedingly confusing and inefficient fish and game management (Morehouse and
Holleman, 1994), the management regimes have successfully cooperated with each other on many occasions (Boyd 2003). Moreover, federal management has brought improvements for Native and rural subsistence users, and many believe these additional protections should remain in place regardless of how the political debate continues
(Brelsford 2003; Buklis 2002). The following examples illustrate the accommodation of subsistence users incorporated by federal management strategies, as compared to those followed by the state during the 1980s.
Conflicting sports and subsistence values: A comparison of fishing management and the role of traditional ecological knowledge and beliefs Because Alaska’s many rivers are grounds for lucrative guided and recreational fishing, outside groups and individuals have often encroached on the activities of subsistence fishers. The following two cases, which both concern Yup’ik Eskimos traditional beliefs in Western Alaska and their conflict with modern practices, exemplify differences between federal and state mandates and their respective effects on management processes and outcomes.
To help determine the underlying cause of conflicts between Yup’ik subsistence users and sport salmon fishers along the Togiak, Kanektok, and Goodnews rivers during the 1980s, two studies were initiated by the state Division of Subsistence in 1984 and
1987 (Wolfe 1989, 21). According to the studies’ results, initially reported by Robert
Wolfe of the Division of Subsistence in 1989 and further analyzed in a more recent report
119 by Deborah Robinson and Gail Osherenko, Yup’ik people found the “catch-and-release”
practices conducted by the sports fishers to be damaging to the salmon supply:
The Yup’ik…regard catching and releasing fish and throwing them back in the water as abnormal behavior that will have long-term consequences. A Yup’ik woman (quoted in Wolfe) commented upon her perception of catch-and-release as playing with food… Other Yup’ik regard catching and releasing fish as a form of abuse and mistreatment that demonstrates disrespect to the fish and damages the resource. (Robinson and Osherenko, 2001).
The research on Yup’ik attitudes toward catch-and-release fishing documented the cultural reasons behind why members of the Yup’ik community believed that closing portions of the rivers to sports fishers was necessary in order to adequately protect the salmon resource (Robinson and Osherenko, 2001). After receiving reports of the collaborative studies, the state Board of Fisheries decided not close to segments of the river to sports fishers. The state Board felt that the disruption caused by sports fishers –
who released their catches back into the rivers – did not unduly interfere with the
community’s efforts to get enough fish, so it concluded that subsistence activities were adequately protected and changes in regulations were therefore unnecessary (Wolfe
1989).
Robert Wolfe, then the Research Director of the state’s Division of Subsistence and author of a report documenting the conflicts between subsistence and recreational users, criticized the state’s decision. In his subsequent analysis of state law, management structure, and decisions such as the one by the state Board of Fisheries not to accommodate Native traditional harvest values, Wolfe asserted that under Alaska’s management system, indigenous groups are “relatively powerless” (Wolfe 1989, 34).
Wolfe further contended that because the recreational interest groups had more power
than did the subsistence users, the sports users’ coalition was more able to use the
information documented to their advantage and influence the outcome of the state board’s
120 decision (ibid., 36). He concluded that although the state was economically reliant on traditional structures similar to the Yup’ik salmon system that supplied food for many rural residents for little cost to the state, state law did not formally acknowledge or support such systems (ibid., 34) and provided few outlets through which rural subsistence users could have truly influenced management decisions.
In contrast, a case in the late 1990s concerning Yup’ik fisheries in Western
Alaska illustrates recent advances made by the federal management toward accommodating traditional subsistence values by incorporating Native ecological knowledge and beliefs into the regulation-making process. When the federal government assumed management responsibilities for subsistence fisheries in response to the Katie
John decision, it proposed and passed a set of regulations similar to the ones that had been decided on by the state Boards of Fisheries and Game (Boyd, 2003). In the
Kuskokwim Delta area, the location where subsistence and recreational interests had battled over salmon fishing in the 1980s, the enacted regulations affected subsistence harvests of rainbow trout (Federal Register: December 17, 1997 (Volume 62, Number
242), (D)(a)(16)(xv)). The harvest of rainbow trout is not considered a “directed” subsistence fishery, as the trout are generally taken incidentally – and in low numbers – by subsistence fishers’ nets targeting other freshwater fish such as whitefish and char
(OSM, U.S. Fish and Wildlife Service, “Revising Harvest Regulations for Rainbow Trout on the Kuskokwim Delta: Regulatory Proposal #37,” 2000). Because some local residents believed that the rainbow trout harvest regulations enacted by the federal government forced them under certain circumstances to release the trout they had caught
(and thereby violate their cultural beliefs), they submitted a regulatory proposal to the
121 Federal Subsistence Board which requested the discontinuation of formal subsistence harvest regulation of trout in the Kuskokwim Delta (ibid.).
In determining whether or not to accept this proposal, the Federal Board directed its interagency staff to prepare a technical analysis of the issue, as the state’s Division of
Subsistence had done in the mid-1980s (OSM, U.S. Fish and Wildlife Service, “Revising
Harvest Regulations for Rainbow Trout on the Kuskokwim Delta: Regulatory Proposal
#37,” 2000.). The technical analysis found, consistent with the determinations of the earlier state reports, that the Yup’ik people were “deeply offended by catch and release fishing” and believed that “offending the spirits of the animals in this way can lead to future shortages” (ibid.). Additionally, the biological data of the technical analysis report showed the rainbow trout populations to be stable and the overall harvest levels sustainable. In response to the staff’s technical analysis, the Regional Advisory Councils recommended the elimination of formal regulation of rainbow trout harvest by local residents. After considering the technical analysis and the recommendations of the
Regional Councils and the interagency staff, the Federal Board approved the removal of almost all restrictions on the harvest of rainbow trout for local Kuskokwim residents, except one which regulated the use of nets during spawning season (ibid.; Federal
Subsistence Board, “Subsistence Fisheries Regulations,” 2002, 23). Thus, as a result of the Federal Board decision, the villages affected were freer to incorporate Yup’ik traditional management techniques (ibid.) and were less beholden to government- imposed restrictions that compromised widely held cultural beliefs.
As expressed in these examples, there are important philosophical and practical differences between state and federal management, which can be discerned even though
122 the rainbow trout population in the Kuskokwim was not under pressure, nor were there in
that instance conflicts with sports fishers. One difference is the recognition granted by
the federal government to traditional management structures and cultural beliefs. In
eliminating most restrictions on rainbow trout harvest, federal officials were confident
that the self-management by the Yup’ik people would better sustain traditional harvest patterns and adequately protect the resource. Additionally, the Federal Board affirmed the cultural beliefs of the Yup’ik people in passing a recommendation aimed at reducing the times in which Yup’ik people were required to throw back fish they had caught. On the other hand, the state Board of Fisheries’ decision regarding subsistence fishing regulation did not result in the accommodation of these same cultural beliefs: the state
Board considered only whether the actions of “catch and release” fishers – according to biological data – interfered with the subsistence users’ efforts to harvest enough fish.
Unlike the federal Board, the state Board’s decision was based solely on the economic, and not the cultural, considerations of subsistence with regard to Alaska’s Yup’ik people.
Thus, in considering cultural beliefs and practices, the federal management has better recognized the importance of traditional management structures and the underlying values related to the harvest of fish that continue to exist.
The different decisions of the management boards to accommodate or not to accommodate traditional systems and cultural norms have also to do with the respective organizational structures within the state and federal system. As earlier chapters have shown, the state Boards’ members have been sympathetic to sport and commercial user interests, for individual political reasons as well as due to their constitutional mandate to provide all Alaskans reasonable access to the state’s natural resources. Under the state
123 system, Robert Wolfe notes that Native subsistence users in particular consistently lost to
opposing interests in their struggle to attain the support of the Boards due to the lack of
Native power and influence (Wolfe 1989, 36). In contrast, under the dual management
system of the 1990s, subsistence users (at least on the federally-managed public lands
covering sixty-percent of the state’s land) have had more power, thanks to the provisions
of ANILCA that guarantee both a rural priority and adequate opportunities for subsistence users. Furthermore, in contrast to the state during the era of unified management, the federal government’s efforts have been more narrowly focused on protecting subsistence, as its jurisdiction extends exclusively to the regulation of subsistence and it is not authorized to regulate recreational and commercial uses. Thus, as the more recent case study evidences, the structure and mandate of the federal system have encouraged the retention of traditional management structures and continuation of subsistence-related values6.
Additionally, through the revived Regional Advisory Councils of the federal system, subsistence users have been able to contribute more meaningfully to the regulatory process than they were in the 1980s under state direction. In the 1980s, the
RACs suffered from a lack of resources and were unable to fulfill the “super-advisory” role that ANILCA’s supporters and rural subsistence users envisioned (Chapter 2; see also Marshall and Peterson’s review of the state’s fish and game advisory system (1991) for additional verification). RAC recommendations throughout the 1980s were of
6 Although potentially the best case scenario for subsistence protection, complete federal management of fish and game resources is both legally and politically unfeasible. As mentioned in Footnote 4 (Chapter 3): Federal management is restricted only to subsistence uses on federal public lands under provisions of the Statehood Act and ANILCA (Katie John v. US). For this reason, a unified federal management regime is not at this time legal. Nor would such a regime be politically possible, as most Alaskans desire increased state sovereignty over natural resource management.
124 inconsistent (though often of negligible) importance, and the ultimate decisions of state
Boards were influenced largely by the personal biases of individual members, non-Native
interests, and state subsistence staff recommendations. In contrast, the federal
government has attempted to implement the spirit of ANILCA’s original provisions
outlining the responsibilities and authorities of the regional councils. While many people
complained that Native organizations were not directly represented on Regional Councils
during state unified management (Marshall and Peterson 1991, 9) the Federal Subsistence
Board in 1993 appointed “well-known elders and rural leaders” to the councils (Brelsford
1998, 72). The federal subsistence program also provided additional liaisons for the councils’ use in an attempt to promote cooperation between subsistence users, federal staff members, and the Federal Board (ibid.). Liaisons provided to the RACs included
biological and anthropological experts who assisted in the creation of subsistence
recommendations. The efforts of the federal management to revive the regional councils
have paid off: in the rainbow trout example, the Regional Council, expressing
“appreciation for the attention to traditional knowledge and beliefs in the [interagency
technical] analysis,” submitted a recommendation to the Federal Board (OSM, U.S. Fish
and Wildlife Service, “Federal Harvest Regulations for Rainbow Trout on the
Kuskokwim Delta: Regulatory Proposal #37,” 2000). Although their recommendation
was not fully adopted by the Board, the final decision of the Board afforded greater
accommodation to subsistence users than did the previous regulations, which had been
formulated under state management. Through the revived Regional Advisory Council
system, subsistence users can more influentially affect subsistence policy decisions.
125 Current political climate and legislative proposals
While the federal system has brought advances for subsistence users, many –
including those supportive of subsistence protections – would like unified management to return to the state so that it can gain increased sovereignty over Alaska’s natural resources (Brelsford 2003). Parties on all sides of the issue continue to lobby for a
resolution that is both suitable their interests and politically feasible. Still, as it appears that many legislators, managers, interest groups, and users are not in a hurry to end the era of dual management, a compromise position is less likely to gather a coalition of support.
At the legislative level, there is little chance that a compromise bill or constitutional amendment that sufficiently satisfies state, federal, urban, and rural interests will be drafted or passed. However, with Republican Governor Frank
Murkowski now in office and the Republicans in control of Alaska House of
Representatives and Senate, some think an amendment is more politically feasible than it had been at any time during the 1990s (Brelsford 2003), though perhaps still unlikely.
The text of such an amendment would most likely be sympathetic to urban sports interests and equal rights enthusiasts. Although Murkowski has not yet presented a subsistence proposal to the legislature, his pre-election subsistence platform stated that he would support a constitutional amendment allowing for a rural subsistence priority only in times of shortage (Frank Murkowski for Alaska 2002). Two bills concerning a subsistence amendment were pre-filed by Republicans in the Alaska House and Senate, in anticipation of the Twenty-third Legislative session in January of 2003. Consistent with Murkowski’s views on subsistence, the proposed amendments allow for subsistence
126 priority only when the harvestable surplus of the resource is not high enough to provide for all uses, and only the House version specifically allows for a subsistence preference based on place of residence (pre-filed bills relating to subsistence, SJR2 and HJR2 2003).
It is questionable whether either of these amendments, because they do not provide for a rural priority all of the time, would pass muster under ANILCA’s requirements and allow the state to resume unified management responsibilities. Moreover, most Native organizations are against any changes to ANILCA that would reduce subsistence protections (Brelsford 2003). Thus, it is improbable that the Democrats, who rely on
Native political support, will support the pre-filed amendments and at least a few of their votes are needed for the two-thirds majority required for an amendment’s passage
(Chapter 3). Yet the Democrats lack the necessary Republican support to push for an alternative to the proposed amendments. Unless one or both sides compromise their traditional platform at the risk of angering their respective supporters, the political stalemate will continue.
Cycles of conflict and compromise: Historical trends and contemporary policy recommendations In looking for ways to resolve – or at least come to terms with – the different positions of the subsistence issue, many authors and those involved in the policymaking process have framed the conflict as a clashing of core values. On one hand, there is a population of urban and generally non-Native Alaskans, who believe a fair natural resource allocation system is one based on principles of equality; on the other hand are the Native and rural users who equate fairness with adequate access to food sources upon which they have traditionally depended. When fundamental values are at stake, a legislative compromise is difficult, if not impossible, to attain. Marianne See, Deputy
127 Director of the state’s Division of Subsistence, notes that “the closer you get to a core
value, the further you get from ever changing someone’s position” (See 2003). Because
legislators and interest groups on both sides have refused to change their position to
compromise, the subsistence debate remains as Richard Caulfield described it just after the McDowell decision: in political paralysis (Caulfield 1992).
Yet, it is debatable whether a legislative compromise attempting both to return management to the state and to protect subsistence users is even desirable at this time.
Thomas Morehouse and Marybeth Holleman claim that the conflict of fundamental
values is likely to continue regardless of how legislators and courts settle the subsistence
preference debate (Morehouse and Holleman 1994, 1). Their claim is well founded, as
this thesis has documented. In thirty years, two Congressional legislative acts (ANCSA
and ANILCA) and one State Supreme Court decision (McDowell) have produced three
very different regimes of subsistence management. The establishment of each successive
regime has brought increasingly complicated conflicts to the legislature and courts, as
divergent user groups and their allies have attempted both to influence the
implementation of the subsistence management system and to affect the formulation of a
more permanent “compromise” solution. In this way, large-scale legislation has often
served to further politicize the issues of resource allocation, and attempts to resolve the
subsistence issue through a combination of such legislation and reactive judicial action
have so far been unsuccessful at resolving the issue.
In the midst of prolonged public debates over subsistence, with no end in sight, federal and state managers have and will continue to carry out their missions and respective mandates to regulate the consumptive uses of wildlife. For this reason, it is
128 valuable to evaluate and improve management level solutions that attempt to satisfy
diverse interest groups – and at the same time sustain wildlife resources – within the
present structure of dual management. Users will, to a certain extent, fish and hunt in accordance with their own values of fairness, regardless of the regulations imposed by
management structures. Native and rural users will utilize resources to maximally
accommodate economic and cultural needs, claiming their right to maintain a subsistence
livelihood. Similarly, urban sports hunters and recreational fishers will continue in their
activities, in line with their perceived right of equal access to the land’s resources.
Yet the population of Alaska has grown substantially since the arrival of Western
non-Natives7, and certain steps must be – and have been – taken to somehow restrict user
group harvest activities in an attempt to prevent what Garrett Hardin calls the “tragedy of
the commons,” or the overexploitation of pooled resources. Hardin argues that the
tragedy of the commons is caused when individuals pursue their own needs without fully
recognizing the costs their actions impose on others and on the resource itself (Hardin
1968). To prevent such overuse, Hardin suggests either strict government regulations or
privatization of resources that restrict users’ access to the resource (ibid.). Alternatively,
Elinor Ostrom argues that way, a perhaps more effective than Hardin’s, to prevent
tragedy of the commons is to incorporate user participation, knowledge, and needs in an
inclusive regime, saying, “participants are more likely to adopt effective rules in macro-
regimes that facilitate their efforts than in regimes that ignore resource problems entirely
or presume that central authorities must make all the decisions” (Ostrom, et al. 1999).
7 While Native population, initially reduced, has since returned to around 90,000 (just above pre-contact levels), Natives are now only a small fraction within Alaska’s total population of over 600,000 people (Division of Subsistence, Alaska Department of Fish and Game, “Subsistence in Alaska: A Year 2000 Update,” 2000).
129 According to Ostrom, then, users would be less inclined to go against regulations that
actively attempt to accommodate traditional and contemporary harvest patterns.
In certain respects, the regime of dual federal and state management has provided
support for Ostrom’s theory. Practical and significant gains for subsistence users have
come as a result of federal management, which is able to offer more accommodation for
subsistence due to its mandates derived from ANILCA and the Federal Trust Doctrine.
As the rainbow trout study and other examples indicate, these advances for subsistence users include a greater incorporation of traditional ecological knowledge and beliefs into management policies and a more effective voice through the revival of the Regional
Advisory Council system. Additionally, because the state still retains subsistence management authority over private and state lands and regulates commercial and sport users throughout the state, other uses have been accommodated under its mandate, which does not allow for a rural priority. By promoting accommodation of Alaska’s diverse user interests, regulations set by parallel federal and state authorities have worked to satisfy different user groups and so far prevent the tragedy of the commons. Thus, while dual management is perhaps not a permanent solution, it has not led to the disastrous management situation that some had originally predicted might occur (Boyd 2003).
In looking towards a more permanent solution, however, it is important to consider the effects that the initial implementation of a state unified management regime might have on user groups. The implementation of dual management and of previous regimes brought renewed and impassioned debate to the state legislature and state and federal courts; the implementation of another large-scale legislative or judicial compromise might set into motion the same cycle of political conflict. Today, two
130 different systems, state and federal, conduct Alaska’s fish and game management, each of
which operates in many respects independently and cooperate with the other as needed.
A return to unified state management at this time would displace the managerial balance
that has been attained under dual management by forcing two currently incompatible
systems to become one.
Moreover, while seemingly the most efficient and rational way to prevent the
tragedy of the commons, a unified management system (as it has been historically
implemented) may not necessarily resolve the subsistence debate to the satisfaction of
user groups. James Scott, in analyzing the reasons why large-scale government schemes
have failed, argues that attempts to simplify and standardize traditional structures often
are not successful because they do not incorporate critical regional and local knowledge
(Scott 1998, Introduction). Applying Scott’s theory to the subsistence issue, it can be speculated that a single regulatory authority that fails to accommodate existing structures may not sufficiently address the needs of all user groups, especially Alaska Natives, who have been historically marginalized by state government regulations.
To ensure that a formal management scheme does not fail users, Scott, like
Ostrom, implicitly suggests that certain traditional structures, though complicated, should be incorporated. Additionally, although certainly not a traditional structure, features of the existing dual management system might also be successfully incorporated into a unified (though undeniably complex) management regime. To some degree, dual management has allowed for the perpetuation of traditional Native structures and has also accommodated diverse user groups. Though an intricate scheme, the institution of dual management offers insight into how competing visions of land use can be balanced.
131 Most importantly, dual management has illustrated that a complicated – and not entirely
rational – system can productively address issues of natural resource management. A
return to a legislatively imposed unified state management regime at this time might
unintentionally cause the loss of existing protections for subsistence and other user
groups.
Support for delayed – if at all – implementation of state unified management can
be found in the previously mentioned Morehouse and Holleman paper, which asserts that
smaller-scale compromises attained between users and managers through their
experiences of adjusting and adapting to each other might better balance competing interests in the short-term than might a large-scale legislative or judicial resolution that
aims to reconcile conflicting fundamental values (Morehouse and Holleman 1994, 2).
Since the publication of the Morehouse and Holleman paper, some efforts to address
competing interests at the management level have proven successful, and there remain
opportunities for such activities to continue.
For instance, the Memorandum of Agreement between the government managers promotes an open and interactive relationship between federal and state authorities through which information can be collaboratively gathered and used to create effective regulations. As each management authority is thought to be sympathetic to different sides of the subsistence debate, cooperation between the two sides on subsistence research might promote increased understanding of the issues facing all user groups.
Additionally, the Federal Subsistence Board, long criticized for being overly sympathetic to rural subsistence users, recently mandated that thirty percent of the Regional Advisory
Councils board members represent commercial and recreational hunting and fishing
132 interests (Boyd 2003). Thus, both the Memorandum of Agreement and the Federal
Board’s recent decision regarding the composition of Regional Councils give evidence of
the increasing formalized collaboration at the management level between users with
opposing values and governments with conflicting mandates. Compromises made
between users and managers at this level can be incorporated into future legislative
policies that could reinforce such accommodations (Morehouse and Holleman, 1994).
In order to attain such lasting compromises, fish and game management
authorities must continue to actively work with user groups. State and federal managers
have made efforts have in this direction through attempts to implement a more bottom-up
system of management, which brings the voices of users to the forefront of natural
resource management. If efforts in this direction are continued and expanded upon, the
existing state and federal structures will become increasingly able to facilitate
compromises. Through their joint and separate attempts to incorporate diverse user needs
in a more decentralized process, the foundation for a new – more complicated – unified
regime may be established. Because such a regime would acknowledge and incorporate
different ideas of fairness and address cultural and economic needs, its formalized
implementation would not further divide Alaskans. Instead, the legislation validating its
existence would serve to strengthen already negotiated compromises among user groups.
Such a regime, if formed by a bottom-up consensus-building approach, could provide
Alaskans the opportunity to respect their collective differences, while at the same time to maintain their individually held values.
133 Chapter Four Bibliography
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Boyd, Tom. Director, Office of Subsistence Management. 2003. Personal interview. Anchorage, AK, 21 January.
Buklis, Lawrence. 2002. Subsistence fisheries management on federal public lands in Alaska. Fisheries (www.fisheries.org). 27, no.7:10-17.
Federal Subsistence Board. 2002 Subsistence Fisheries Regulations Informational Booklet. U.S. Fish and Wildlife Service Office of Subsistence Management
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Hardin, Garrett. 1968. The tragedy of the commons. Science. vol 162:1243-1248. As cited on
HJR2. Constitutional Amendment: Subsistence. 2003. Pre-filed in the Alaska House of Representatives by Representative Bruce Weyhrauch, 10 January 2003. As cited on BASIS:
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Robinson, Deborah and Gail Osherenko. Ponoi River Report: sport fishing on the Kola Peninsula (chapter 7). A project of the Circumpolar Conservation Union. 3 August 2001.
Scott, James. 1998. Seeing like a state: how certain schemes to improve the human condition have failed. New Haven, CT: Yale University Press. (Introduction: 1-8).
See, Marianne. Deputy Director Director, State-Federal Coordination, Division of Subsistence, Alaska Department of Fish and Game. 2003. Personal interview. Anchorage, AK, 21 January.
134 SJR2. Constitutional Amendment: Hunting and Fishing. 2003. Pre-filed in the Alaska Senate by Senator Fred Dyson, 21 January 2003. As cited on BASIS:
Wolfe, Robert J. 1989. Territorial control by contemporary hunter-gatherer groups in Alaska: case examples of subsistence and recreational conflicts. Division of Subsistence, Alaska Department of Fish and Game. A paper presented at the Society for Applied Anthropology Annual Meeting, Santa Fe, NM. 5-9 April.
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