Tribal Hunting and Fishing Rights: Subsistence (ANILCA 1980)
The Alaska Native culture, economy, and traditional way of life are intimately tied to living off the land, gathering, hunting and fishing for food. This way of life has been labled ‘subsistence’ in the legal and political arenas. Since the purchase of Alaska in 1867 to the present day, the federal government accepted a duty to provide at least some level of protection for subsistence through exemptions from conservation laws, international wildlife treaty provisions, land reservations, and land withdrawal authority. The first law protecting subsistence was passed by the federal government during territorial days. It was the basis for most subsistence hunting and fishing from 1925 until 1960 and stated that “…any Indian or Eskimo, prospector, or traveler [can] take animals, birds, or game fishes during the closed season when he is in the need of food.” When Alaska became a state in 1959, one of the main arguments for statehood was that the new state would manage fish and wildlife on both state and federal lands.
In 1971 Congress extinguished aboriginal hunting and fishing rights through the Alaska Native Claims Settlement Act (ANCSA) with no provisions for protecting subsistence in the Act. Hunting for food requires more land than was received under ANCSA, and waters with fishing resources were not part of the settlement. At the passage of ANCSA, Congress expressed that they expected that the State of Alaska and the Secretary of Interior would work together protect Alaska Native hunting and fishing needs and requirements.
The State of Alaska enacted it's first subsistence law in 1978, which recognized subsistence uses of fish and wildlife to have a priority over sport, personal and commercial uses. This law did nothing to protect the Alaska Native way of life as it defined all Alaskans to be subsistence users, and the growing urban majority of Alaskans could go into any rural area and compete with local villagers for the food supply. in 1980 Congress reacted to the State’s lack of protection of Alaska Native subsistence uses and attempted to carry out the unfulfilled settlement of aboriginal hunting and fishing rights through the passage of the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. The Act placed over 104 million acres of Alaska land into national parks, preserves, refuges, monuments, wilderness and wild and scenic river areas, and contained a provision in its Title VIII to give rural Alaskans a subsistence user priority on federal lands and waters. In report language that went with the Act, subsistence was defined as “…the customary and traditional uses by rural Alaska residents of wild, renewable resources for such direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; the making and selling of handicraft articles…’for barter or sharing for personal or family consumption; and for customary trade.”
A subsistence use priority was given to "rural" Alaskans in Title VIII of ANILCA rather than to Alaska Natives because the State of Alaska objected to a Native preference. In order to get the State of Alaska to comply with the subsistence priority in Title VIII, the State was offered the option to manage subsistence hunting and fishing on federal lands in addition to State and private lands if the State Legislature enacted a law of general application containing the same priority, and that priority was changed from Native to rural. The State of Alaska adopted a regulation in 1982, then a statute in 1986 giving a rural subsistence priority on State and private lands which allowed the State to manage subsistence uses on all lands in Alaska. Sport hunting associations and other anti-subsistence forces in Alaska were and still are very opposed to the idea of giving any priority for subsistence uses, and have fought the original Title VIII language in ANILCA, as well as the state regulation and statute which brought the State into compliance with it. Anti-subsistence groups tried to fight the subsistence priority through a ballot measure, but the voters rejected it, siding with the priority. They then turned to the courts and won when the Alaska Supreme Court ruled that the State’s rural priority for subsistence was a violation of the Alaska Constitution, in McDowell v. State of Alaska (1989). The State returned to opening subsistence to all Alaskans, creating a conflict with federal law and the rural priority granted through Title VIII of ANILCA. Efforts to bring the issue back to the voters, this time to change the Constitution to allow the rural subsistence priority, have been blocked by politicians in every session of the Alaska State Legislature since 1990.
Since 1992, the federal government has managed subsistence activities on federal lands in Alaska giving rural citizens a priority, while the State of Alaska manages subsistence on State and private lands, including ANCSA lands giving no rural priority. Originally, the federal management only applied only to hunting and not to fishing. Native Elders Katie John, Gene Henry and Doris Charles brought a suit, claiming that waters should be included too, and the federal courts sided with them in Katie John, et al. v. U.S. After several moratoriums and special sessions of the Legislature that failed to pass legislation to bring the State into compliance with Title VIII, the federal government expanded its management over subsistence fishing in certain waters considered ‘reserved waters.’
While Congressional acts such as the Marine Mammal Protection Act specifically protect Alaska Native subsistence take of marine mammals, and some international wildlife treaties take subsistence uses into consideration, the vast majority of subsistence hunting and fishing resources are under the direct management of the federal government and the State of Alaska. The federal government manages subsistence hunting on all federal public lands in Alaska as well as fishing on 'reserved' waters, giving rural residents a subsistence priority use for the fish and wildlife resources. The State manages subsistence hunting on State and private land, referring to all Alaska citizens as subsistence users.
Federal and regional advisory boards form the regulations regarding subsistence uses on federal public land and waters. The State Boards of Fish and Game create regulations on behalf of the State. The dual federal-state management of subsistence hunting and fishing in Alaska is cumbersome, is not satisfactory to any of the stakeholders, and the results are far from the original intent of Congress to protect the hunting and fishing rights of the Alaska Native people.
In 2009, Secretary of the Interior Salazar declared, “After nearly two decades of dual management, it is clear that the State of Alaska is not taking steps to regain management of subsistence uses on federal lands and waters in the foreseeable future.” The federal government recognizes the failure of the State to protect subsistence, and called for a review to “ensure that the federal management structures, procedures, operations, budgets and other elements best meet the goals of ANILCA and serve rural subsistence users.” Within the State of Alaska, the subject of subsistence and all the details associated with it promises to be subject to political and legal debate well into the future.