Will Federal or State Management Afford Alaska Natives a More Effective Voice?
To many people the term `subsistence' connotes barely eking out an existence, a marginal and generally miserable way of life. That is not, however, the standard dictionary definition of the term, nor is it the way in which the word is used in Alaska. In Alaska, `subsistence' has come to stand for a class of hunting and fishing rights that, under federal and state laws, has enjoyed a legal preference superior to competition sport, commercial, and personal use rights. For Alaska Natives, subsistence also became a political and cultural rallying cry some years before it became a law. The term as used by Natives describes an entire way of life. Thus, subsistence has come to symbolize unique hunting and fishing rights, as well as the complex web of cultural practices, social relationships, and economic rewards associated with those rights.
The ability of Alaska Natives to maintain subsistence as a way of life is a measure of their ability to achieve self-determination. Without subsistence, the way Alaska Natives live would inevitably be defined by standards external to their own cultural values. As wage employment and the accumulation of wealth compete with Native values associated with hunting, gathering, and sharing, the evolution of Alaska Native cultures will be determined by forces outside those cultures rather than from within. Forestalling that possibility by promoting Native self-determination is the official policy of the federal government.
The federal government's self-determination policy was perhaps best stated in President Nixon's July 8, 1970, special message to Congress, in which he urged and subsequently proposed legislation to build federal Indian policies "on the capacities and insights of the Indian people...The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions."
The new policy was followed by a host of legislative acts of which the Indian Self-Determination and Education Assistance Act of 1975 is the centerpiece. The specific congressional findings enacted as part of the Self-Determination Act concluded that "The prolonged Federal domination of Indian service programs...has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities."
Thus, American domestic policy and law acknowledge that Native Americans should have an effective voice in developing and operating programs that benefit Native communities. Under the Self-Determination Act, the policy is manifested by requirements that the Secretaries of the Interior and Health and Human Services contract with Indian tribes or tribal organizations for the provision of Native services and programs. These self-determination statutes have all been specifically applied to the Alaska Native villages and corporations as defined or established in 1971 under the Alaska Native Claims Settlement Act (ANCSA).
Co-Management and Regulating Subsistence
Alaskan Native fishing and hunting has, until relatively recently, been governed solely by indigenous systems of unwritten customs, beliefs, and practices that ensured the survival of families and villages. These unwritten rules were generally effective from a conservation standpoint. Equally important, they dovetail the complex web of social, cultural, and economic activities and personal relationships that define Alaska Native societies. The more recent, formal regulations of the state and national governments have often tom apart this web of relationships. The effect is perhaps unintended because the purpose is not to infringe on subsistence practices, but to protect wild, renewable resources by imposing bag limits, seasons, and other scientifically routine methods. These artificial limitations, however, often clash with the hunting and fishing practices of Native people who generally perceive such limits as unnecessary.
Peter Usher has characterized these two, often conflicting ways of managing wildlife as the indigenous and state systems. Co-management affords potential solutions to their conflicts by implementing a management regime in which, as Gail Osherenko notes, "public authorities share power with indigenous user groups." The extent to which co-management amounts to a more effective voice for Alaska Natives depends on the extent to which a particular co-management regime bridges the gaps between the state and indigenous systems of wildlife management.
The gaps in understanding between the participants in the two systems are predominantly cultural, often arising from the differences between bureaucratic and organic forms of organization. In state fish and wildlife management systems, biologists do research which is used by rule makers to promulgate regulations which are enforced by yet another group of officials. In contrast, under indigenous systems of fish and wildlife management, the harvesters are also the ones who have the greatest level of knowledge about the resources they harvest. The rules based on that knowledge are, in reality, community values which are enforced only because they are generally accepted as correct.
The researchers, rule makers, and enforcement officers of the state system are often perceived by the participants in the indigenous system as being out of touch with the reality of the indigenous participants. This perception has often been correct. It is not surprising that Alaska Native people want to find ways in which they can more effectively influence state systems of wildlife management. To the extent that co-management regimes allow Alaska Natives to influence research, rule making, and enforcement, they also afford them a more effective voice in fish and wildlife management.
The Alaska National Interest Lands Conservation Act (ANILCA)
Alaska Native aboriginal hunting and fishing rights were extinguished as a matter of federal law in 1971 with the passage of ANCSA. Of course, the cultural, social, and economic activities associated with the extinguished rights did not cease, but subsistence users became politically and economically disadvantaged in asserting their interests in the state regulatory system. For one thing, the Alaska state boards of fish and game were dominated by sport and commercial interests. Moreover, funding for much of the activity of the Alaska Department of Fish and Game came from license fees paid by sport and commercial users. As a result, rural Alaska Native people had little economic or political influence on the Alaskan fish and game regulatory process.
Although ANCSA formally extinguished aboriginal hunting and fishing rights in Alaska, it was clear from the Joint Senate and House Conference Committee Report accompanying the Act that Congress intended the state of Alaska and the U.S. Secretary of the Interior to make provisions for Alaska Native subsistence. By 1980, however, it had become obvious that neither the state nor the secretary was going to take any significant action. The result was Title VIII of ANILCA.
Title VIII was intended to be a comprehensive approach to the political and economic problems that plagued the state's subsistence fish and game policies. By the time the issue got to Congress, it was no longer exclusively a Native issue. Alaska Natives were not the only people who lived off the land in rural Alaska and the state argued that it could not enforce an exclusively Native preference on state land without violating the state constitutional provision against racial discrimination.
In what was to prove an ironic political compromise, Congress (at the state's insistence) established a preference for subsistence uses of wild renewable resources by "rural" Alaska residents. The congressional findings of the Act state that the legal justification for federal protection of both Native "cultural" existence and non-Native "social" existence. ANILCA's administrative scheme urges the state to provide for the "customary and traditional" subsistence uses of rural Alaska residents with a priority for those uses and a system of local advisory committees and six regional advisory councils. Title VIII also restricted the authority of the Alaska fish and game boards to make subsistence policy that contradicts the recommendations of the regional advisory councils.
Typical of cooperative federalism, Title VIII did not compel the state of Alaska to do anything, but it made the state an offer it couldn't refuse. The law Congress enacted provided rural Alaska residents a subsistence preference only on public lands-defined elsewhere in ANILCA to be federal "lands, waters and interests therein." ANILCA did not require the state to adopt a subsistence preference or establish advisory councils and committees for regulation of fish and game on state or even Native lands. But the price of not doing so was that the state would not be able to regulate fish and game on nearly two thirds of the Alaska lands still in federal ownership. Alaska had one year to establish a subsistence preference and the committee/council structure for state and private lands identical to those required under ANILCA for federal public lands. When the state accomplished this, then the interior secretary could not set up a competing system to regulate subsistence on federal public lands and state regulatory authority would encompass virtually all public lands and waters.
State Implementation and Frustration
Prior to 1980, the state already had enacted legislation establishing a subsistence preference. After ANILCA became law, the state Department of Fish and Game adopted regulations establishing a rural resident subsistence preference as required under ANILCA. It also set up the necessary advisory committees and councils throughout the state. Then, in 1985, the Alaska Supreme Court held that the state subsistence statute on which the Department of Fish and Game had based its rural resident subsistence preference regulations did not limit subsistence fishing and hunting to rural residents.
Since the federal law required that the preference be limited to rural residents, the state (by the decision of its own supreme court) appeared to be in violation of federal law. Faced with the prospect of federal takeover of fish and game management on two thirds of the territory in the state, Alaska passed a new law. The new statute did limit the subsistence preference to residents "domiciled in a rural area of the state," but in 1989, the state Supreme Court held in McDowell v. Collinsworth that the state "rural resident" preference was unconstitutional under the equal access to resource clauses of Article VIII of the state constitution.
Ironically, in McDowell, the Alaska Supreme Court rejected the same rural resident compromise which the state had insisted was necessary for the ANILCA subsistence preference to pass Alaska constitutional muster. The court held that the automatic inclusion of all rural residents and exclusion of everyone else from the preference in the state law implementing ANILCA was inconsistent with provisions of Article VIII of the state constitution guaranteeing equal access to fish and game. The immediate effect was a flurry of failed legislative activity followed by a federal takeover of subsistence fish and game management on federal lands. This left the state with responsibility for subsistence fish and game management on state and private (including Native) lands.
The McDowell decision was handed down in December 1989, one month prior to the convening of the Alaska legislature in January 1990. A majority of Alaska's legislators supported putting a constitutional amendment before the voters to preserve the rural preference. However, the legislators could not garner the necessary two-thirds vote in both houses to put the amendment on the ballot. The result was that on July 1, 1990, the federal government announced the resumption of federal management of subsistence on federal lands in Alaska.
Five years later, after another legal challenge, the federal courts held that the federal ANILCA subsistence preference also applied to "reserved waters" within the huge federal parks refuges and other conservation system units (CSUs) established under ANILCA. The purposes of those CSUs usually include the protection of subsistence, meaning that the reserved waters in the CSUs now had to be managed to protect subsistence fishing. Substantial federal regulation of subsistence fishing raises the possibility that the federal government may have to limit sports and commercial fishing even outside the CSUs in order to protect the return of subsistence fish to the reserved waters. Alaska Senator, Ted Stevens, Chairman of the U.S. Senate Appropriations Committee, was successful in attaching appropriation `riders' to the annual Interior Department appropriations prohibiting implementation of the court order while the state attempted, once again, to amend its constitution to overcome the McDowell decision.
A Cultural Dilemma
The state legislature and governor are deeply divided over whether to amend the state's constitution. ANILCA's rural resident subsistence preference is mandatory only on federal public lands which now include reserved waters. Federal law is the supreme law of the land, and would be superior to state law if it was mandatory for the state to follow it. However, the ANILCA subsistence preference is only a voluntary option for the state. Therefore, the state supreme court was free in McDowell to interpret the state constitution as being superior to ANILCA. In a divided (four to one) opinion, the Alaska Supreme Court held that the Alaska Constitution required equal rights for all state citizens and that therefore the state could not discriminate on the basis of residency.
The McDowell decision left only two ways to resolve the subsistence dilemma: either amend the state constitution to bring it into compliance with ANILCA or amend ANILCA to bring it into compliance with the state constitution. This poses a dilemma because ANILCA and the state constitution represent two different cultural perspectives. By lumping rural residents together, ANILCA favors a kind of community entitlement to the subsistence preference. The state constitution, as interpreted by the Alaska Supreme Court, requires an individualized preference, based on need or individual reliance on fish and game for sustenance. The state court decision spawned a series of state judicial and administrative decisions which established an individual subsistence use preference open to all Alaskans on state and private lands.
The federal government has gone the opposite direction. Upon resuming management of subsistence on federal lands, it established a federal subsistence board, consisting of the Alaska state directors of the five principal federal resource management agencies-Bureau of Land Management, National Park Service, Fish & Wildlife Service, U.S. Forest Service and Bureau of Indian Affairs. A sixth person (usually an Alaska Native) is appointed by the secretary of the interior and chairs the board. Federal management resulted in a substantial reformation of the local advisory committees and regional subsistence councils required under ANILCA to include more subsistence representatives and fewer sports and commercial representatives. The federal subsistence board has also been more responsive to Alaska Native cultural concerns when it comes to establishing (or eliminating) seasons, bag limits, methods and means of harvesting fish and game. It is not surprising that given this history, the Alaska Natives living in areas with a large federal presence are skeptical that state management is in their best interest. For them, federal management has opened the door to co-management and a more effective voice because it accepts the recommendations of the ANILCA mandated local committees and regional council.
The legislature has debated, watered down, but in two special sessions, failed to pass an already weakened constitutional amendment proposed by the governor. The problem with almost any state constitutional amendment is that it will turn the subsistence preference over to a state administrative and legislative regime that is hostile to anything but individual rights and which will remain generally insensitive to indigenous cultural and communal values. Nonetheless, powerful Alaska Native, state, and federal interests are pushing hard for any sort of constitutional amendment that will return management back to the state and avoid a possible confrontation over commercial and sports fishing rights.
Corporate, commercial, and sports interests in the state have supported a weak constitutional compromise that would have consigned the subsistence preference to the discretion of the Alaska legislature and the existing state fish and game boards. The rationale for this position is often that federal management will mean distant management, influenced by outside environmental and conservation interests. Other Alaska Native regional institutions and tribes fear that state management will mean what it has meant in the past: increasingly individualized and regulated hunting and fishing primarily to protect commercial and sports interests. As the population of Alaska grows, the influence of these interests will only get stronger. Alaska Natives and other rural residents fear that where Native rights and culture are pitted against states rights and the culture of the individual, Native rights and cultures will lose. If history is any guide, they are right.
Case, David. 1989. "Subsistence and Self-Determination: Can Alaska Natives Have a More Effective Voice?" Colorado Law Review. vol. 60.
Berger, Thomas. 1985. Village Journey: The Report of the Alaska Native Review Commission. New York: Hill and Wang.
Osherenko, Gail. 1988. "Can Co-Management Save Arctic Wildlife?" Environment. July/August.
Usher, Peter. 1987. "Indigenous Management Systems and the Conservation of Wildlife in the Canadian North." Alternatives. vol. 14(1) pp. 3-9.
McDowell v. Collinsworth. Alaska 1989.
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