Subsistence Chronology, A short history of subsistence policy in Alaska since statehood

"Subsistence Chronology, A Short History of Subsistence Policy in Alaska Since Statehood" revised edition, AFN 1998. Used with permission of the Alaska Federation of Natives, 1577 C Street, Suite 300, Anchorage, AK 99501

Between statehood and the first state subsistence law (1978), almost all fish and game were open to all residents on a "first come, first served" basis. No defined user group had preference over any other. But as human populations steadily grew, this caused serious resource problems for subsistence-dependent Native villages. The situation came to a head when the pipeline boom of the late 1970’s created an urban, non-Native population explosion.

Throughout the five-year process of enacting ANCSA, the primary focus was on land ownership, but the issue of subsistence also pervaded the process. Congressional findings in the final Senate bill emphasized protection of ". . . Native subsistence hunting, fishing, trapping, and gathering rights. . . " If enacted, it would have required the Secretary of the Interior to designate public lands around Native villages as "subsistence use areas. . ." and, under certain circumstances, to close them to non-subsistence uses. But both provisions were dropped by the conference committee because the Congress, the oil companies, and the State of Alaska didn't want to delay the land settlement (i.e., the pipeline) in order to deal with subsistence.

Therefore, Section 4 (b) of ANCSA extinguished, along with aboriginal land titles and claims thereto, "...any aboriginal hunting or fishing rights that may exist. . . ," but the Act took no statutory action to protect Native uses of fish and game following the aboriginal extinguishment (as it had replaced aboriginal ownership of all lands in Alaska with 44 million acres in fee title and a billion dollars in monetary compensation). The Conference Report articulated the United States’ concern about Native subsistence and mandated responsibility for it in the absence of statutory protection:

But by 1980, the inadequate track records of the Secretary and the State had convinced the Congress that statutory action on subsistence could not be delayed any longer. The result was Title VIII of ANILCA (below).

During enactment of both ANCSA and the 1973 TAPS Act (the final step toward construction and the oil boom that transformed Alaska), Native communities and institutions made enormous right-of-way concessions and provided political support for congressional decisions that finally made the line a reality. They did so in return for promises of Native employment and subsistence protections.

In 1974, the Interior Secretary signed an agreement with the pipeline owners, Section 30 of which states that the companies would ". . . not damage any fish, wildlife or biotic resources in the general area of the Right-of-Way upon which Persons living in the area rely for subsistence purposes; that they would ". . . comply promptly with all requirements of the Secretary to protect the interests . . ." of such persons; and that, upon secretarial order, they would ". . . provide emergency subsistence and other aid . . . to any affected Alaska Native, Native organization or other person . . ." seeking such emergency aid. Thus, the whole foundation of modern Alaska’s economy — the pipeline — was built with Native support and with legal protections of Native subsistence.

By the end of the construction boom in the late 1970’s, the Alaska Legislature, like Congress in its ANILCA deliberations, came to the conclusion that subsistence would have to be protected by statute, rather than by conference reports and contractual agreements. It therefore enacted a 1978 subsistence law requiring the Boards of Fisheries and Game to give a preference to subsistence uses of fish and game. Leaving unanswered the question of who the subsistence users were (e.g., Natives, rural residents, or any other defined class of citizens), the statute laid down the principle that subsistence uses have priority over other consumptive uses (commercial, sport, etc.) at any time of reduced human takings.

Throughout enactment of ANILCA, it was clear that the legislation was going to contain a federal protection of subsistence. The key issues in its design were the definitions of what subsistence is ("uses") and who does it ("users"). The Congress did not enact a racial preference — in part because of the State’s opposition. All parties assumed that "rural" would work; and the Native community had to compromise in order to get a preference that the State could carry out. The Report accompanying the final Senate Committee bill described subsistence use as ". . . by its very nature, . . . something done only by Native and non-Native residents of ‘rural’ Alaska." It further defined subsistence uses as ". . . the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter or sharing for personal or family consumption; and for customary trade."

Title VIII offered the State the option of continuing to regulate subsistence on federally owned public lands (in addition to its own jurisdiction over state and private lands), if the Legislature would enact and implement within one year ". . . laws of general applicability which are consistent with and which provide for the definition, preference, and participation specified . . ." in the federal law.

The Boards of Fisheries and Game jointly adopted a regulation in 1982 that added the rural residency standard to the state’s definition of "subsistence uses." This proved insufficient when the Alaska Supreme Court threw out the regulation three years later on the ground that the 1978 state subsistence statute did not specifically authorize the Boards to make such a rural limitation. So, if the state was to comply with ANILCA, it would have to do so by legislative action. In 1986, the Legislature amended its subsistence statute to limit the definition of "subsistence uses" to residents of "rural areas," thereby complying with Title VIII.

An anti-subsistence coalition placed a "subsistence repeal" initiative on the 1982 general election ballot. If adopted by a majority of the votes cast, Ballot Measure 7 would have prohibited state law from giving a subsistence preference based on virtually any criterion. On November 2, 1982, Ballot Measure 7 was defeated, 111,770 (58.38%) to 79,679 (41.62%).

State compliance with Title VIII of ANILCA came to an abrupt halt on December 22, 1989, when the Alaska Supreme Court, ruling in McDowell v. State of Alaska, struck down the 1986 state subsistence statute as unconstitutional. The Superior Court, to which the case was remanded for implementation, ruled that McDowell had struck down only the rural resident standard for defining subsistence users. The rest of the 1986 statute, giving preference to subsistence over other uses, remained intact. This led directly to the State’s current "all Alaskans" subsistence policy, which gives preference to every one of Alaska’s 610,000 residents.

Governor Cowper called a special legislative session in June 1990 and proposed a constitutional amendment to allow a state statute complying with ANILCA's rural preference. The Senate passed a modified version on the 28th. On July 8, the House failed to submit any constitutional amendment to the voters, mustering only 26 (of 40) in favor, one short of the required 2/3.

Governor Hickel called a 1992 special session and proposed a whole new state system that would not comply with ANILCA or return state management. It failed, with the Legislature enacting only three specific provisions: Joint Board creation of non-subsistence use areas, "reasonable opportunity" as the standard of subsistence rights, and a definition of "customary trade."

After the state failed to come back into compliance with ANILCA in 1990, federal management regulations excluded marine and navigable waters from the Secretaries’ jurisdiction, leaving fish stocks (59% of the rural subsistence diet) without protection. Natives brought suit in U.S. District Court (Katie John, et al. v United States), claiming that ANILCA’s term "public lands" included navigable waters. The Hickel administration countersued (State of Alaska v Babbitt), claiming that ANILCA gives the Secretaries no power of direct management on any lands or waters of Alaska. The latter suit was subsequently withdrawn by the Knowles administration when it became clear that it would fail in the courts. On March 30, 1994, the U.S. District Court ruled in favor of the plaintiffs, holding that all navigable waters were under Title VIII’s protections. The subsequent appeal to the Ninth Circuit cut down federal jurisdiction to "reserved" navigable waters only. Since then, implementation of the rural subsistence preference has been blocked by annual congressional moratoria.

On September 30, 1997, the Congress (using the Interior Department’s FY ‘98 budget) amended Title VIII of ANILCA, reducing federal protections that had been in the original act. These changes were a modification of Governor Knowles's 1997 Task Force package. They do not take effect unless the Legislature delivers its two components of the package, with a final deadline of December 1, 1998, after which the ANILCA amendments automatically sunset.

The other two components of the Knowles package (constitutional amendment and statute) were introduced in the 1998 regular legislative session and died there. Instead, both houses passed H.B. 406 in May, which Governor Knowles vetoed in June.

In January, 1998, the Alaska Legislative Council brought suit against the Interior Secretary, resurrecting the old State v Babbitt arguments claiming that Congress' enactment of Title VIII violated the U.S. Constitution and the "Statehood Compact" — and that the Secretaries had exceeded their regulatory authority under Title VIII. The case is being heard in the U.S. District Court in Washington, D.C.; and the United States has moved for dismissal.

Governor Knowles called a special session on subsistence on May 26, 1998. He introduced only his constitutional amendment, which failed to pass either house. Several anti-subsistence constitutional amendments and their attached conditions also failed to pass before the Legislature went home on June 1. Before adjourning, lawmakers came close to passing a "compromise" bill in the House. It contained:

Despite great effort after June 1 to line up 27 House votes and 14 Senate votes for the compromise, Bob Penney, co-chairman of Alaskans Together, reported in mid-June that additional ANILCA amendments might be the price of getting more -votes for the compromise package. He listed three:

Governor Knowles called a second special session for July 20, 1998. It lasted two days, abruptly adjourning without taking any action on subsistence.

In late September, 1998, Senator Stevens extended for one more year the moratorium against implementation of the 1994 federal court order in Katie John. This was agreed to by the Secretary of the Interior. It provided that $8 million would become available to the Interior Department (with an additional $3 million to Agriculture) on September 1, 1999 to underwrite direct federal management of subsistence fisheries on navigable waters reserved to the United States -- provided that the Alaska Legislature has not adopted a constitutional amendment resolution leading to compliance with Title VIII. If the Legislature did so, the State would receive the $11 million in federal funds to implement its new subsistence laws, and the moratorium would be extended to December 1, 2000 (after the general election vote on the constitutional amendment). If legislative action has not occurred by June 1, 1999, $1 million of these funds will go to the Secretaries for data gathering, research, and planning for a federal takeover of subsistence fishing on October 1, 1999. The Stevens 1997 amendments to Title VIII expired and are no longer part of ANILCA.