A major flaw on the issue of subsistence – living off the abundance of the sea, rivers, and lands as Alaska Natives have done since time immemorial – has always been at the core of coming to a fair resolution on hunting and fishing rights for the state’s first people. And it may once again rear its contentious head in the years to come.
Alaska now has a governor who seems more inclined to stake his future on President Donald Trump’s policies than those of the first citizens in Alaska.
In a letter dated January 2, 2019, the state’s Department of Fish and Game Commissioner, Doug Vincent-Lang called the state of Alaska’s ability to identify managed activities with which they disagree and then restrict them was a “whack-a-mole type exercise.”
This has been a contentious issue between Alaska Native people and the state of Alaska since the passage of the Alaska Native Claims Settlement Act of December 1971. That act created 13 regional corporations and more than 200 village corporations, and awarded the for-profit entities title to 10-percent of the state's lands, and compensated Alaska Native people $3 an acre for other lands taken, nearly a billion dollars total.
At the same time, Congress extinguished all aboriginal hunting and fishing rights as part of the settlement and in return, both the Secretary of Interior and the state promised they would take any action necessary to protect the subsistence needs of the Alaska Natives.
The deal was struck to allow oil companies to quickly expedite the construction of the Trans-Alaska pipeline, an 800-mile project that stretches from the North Slope oil fields to the Port of Valdez. The extinguishment of aboriginal hunting and fishing rights became and still is, a major complaint and regrettable decision that has changed the face of Alaska Native villages and tribes.
Historically, when a conservative political party wins the governor’s mansion in Juneau, the state’s leadership gets involved in changing the subsistence battle for the worse to tribes. That is now one of the issues facing Alaska Native people with the election of Governor Mike Dunleavy, an ultra-conservative Republican with views that run counter to the feelings and convictions of tribes and tribal members across the state.
Alaska Native tribes have always preferred a federal subsistence resource management regime and tribes have a special trust relationship with the federal government that is still intact today, perhaps stronger than ever – in that Alaska Native subsistence rights are a federal trust responsibility.
To further safeguard Native subsistence rights, Congress enacted the Alaska National Interest Lands Conservation Act, a federal law that was the result of that mandate. To that extent, the Act is federal Indian law, regardless of the "rural preference" compromise. To suggest otherwise would distort the legislative history of Congress and the special status of Alaska Native and American Indian tribes within the U.S. Roughly two-thirds of Alaska, or approximately 222 million acres, are federally-owned or managed.
To that end, political forces that argue the federal government owns too much of Alaska’s lands often raise their state’s rights flag in making their argument for more state-control on issues like Native hunting and fishing rights.
The total subsistence take by Alaska Native tribes amounts to only 2 percent of all fish and game while commercial and urban interests get the remaining 98 percent.
The state, under administrations that are less friendly to Alaska’s first people, often pick the issue of subsistence to take a crack at gaining more management control on federal lands and waterways. That contentious debate always becomes a battle cry for Republican-led legislatures in a state where most rural residents are traditional subsistence users.
The argument becomes even more intense when urban sports fishermen in Southcentral Alaska blame subsistence users in rural Alaska for poor salmon runs in their regions saying a 2 percent share of the resource is too much.
The Katie John federal court case
The Katie John federal court case, more than any other subsistence case in Alaska, is a testimony to the contentious battle waged between federal, tribal and state interests over jurisdiction of Alaska Native subsistence fishing rights. Katie John was a long-time client of the Native American Rights Fund, NARF, who represented her in federal court litigation for nearly thirty years. She passed away at the age of 97 in 2013.
When Alaska became a state in 1959, it assumed management of fish and game a year later. In 1964, it closed down a part of a river system in the Copper River region where Katie John’s fishing camp was located. She and her family and other Mentasta village residents had used the camp for generations. Although there was no documented evidence, the state contended the upper Copper River and its tributaries was a valued salmon conservation area where the highly valued Copper River salmon spawned.
Despite harassment from State officials and fish and game protection officers, Katie John and other residents returned every summer to visit grave sites and live where they grew up and where their ancestors made their home. Traditional fishing continued on a sporadic basis. Aboriginal fishing practices were protected under the federal law of aboriginal title, but those protections were ignored by the state. When ANILCA was passed in 1980, that federal law was intended to protect customary subsistence uses by Alaska Natives and other rural residents.
In 1984, Katie John and another Ahtna elder, Doris Charles, requested that the Alaska State Board of Fisheries open their part of the river system to subsistence fishing. Their plea was denied, despite the fact that downstream users were permitted to take hundreds of thousands of salmon for sport and commercial uses.
The Native American Rights Fund filed suit on behalf of Katie John and Doris Charles in 1985, to compel the State to re-open their historic fishery. Although the State subsequently adopted regulations providing for a limited fishery, the federal district court in 1990 set aside the regulation because it was open to interpretation as one that could mean Alaska Natives might be allowed to be first in line for salmon harvests.
After years of ensuing court battles over subsistence fishing and hunting, and after a “rural preference” right could be seen as a reasonable solution, fish and game management in Alaska was divided into two distinct legal regimes – one governed by state law and the other by federal law.
Nearly 50-years after the Alaska Native Claims Settlement Act, and despite passing a host of state and federal subsistence statutes, Alaska's subsistence policy remains mired in politics pitting the state against the federal government, rural vs. urban residents, and Alaska Natives vs. non-Natives.
John Tetpon, Inupiaq, is a longtime Alaska journalist, musician and artist.