Alaska Natives Commission

The Situation

The subsistence issue is an important part of the larger historical question about the status, rights, and future survival of Alaska’s aboriginal peoples. Because of this, subsistence should not be seen as a subset of fish and game management. Subsistence is not about animals, their habitats, or the professional management activities of public agencies. It is about human beings. In its distribution: of limited resources among competing user groups, subsistence law is social policy on a very large scale. The way in which the current conflict over fish and game allocations is resolved will do as much, if not more, to influence the future economic and social well-being of Alaska Natives as any other issue addressed by the Commission.

The economies of most Native villages in Alaska remain underdeveloped, artificial dependencies of government where few jobs and relatively small amounts of cash exist. Without a secure protein base of wild, renewable fish and game resources, the poorest and most traditional villages are doomed to economic and social deterioration. These facts cannot be ignored by policymakers as they debate abstract terminologies, nor must they allow policy decisions to be compromised by powerful anti-subsistence constituencies. Subsistence is more than economics. In addition to supplying food and other necessities, it provides people with productive labor, personal self-esteem, strong family and community relationships, and a cultural foundation that can never be replaced or duplicated by any other arrangement.

If the subsistence-based economies and cultures of modern Alaska collapse, the resulting social dislocation and out-migration from the villages will entail an enormous historical cost. Aware of it or not, all Alaskans have a vested interest in the economic and social well-being of the villages.

While some argue that Congress meant to protect a lifestyle based on geographic rather than ethnic and cultural considerations, the evidence does not support that argument. Subsistence is, and always has been, an Alaska Native issue. By articulating the federal government’s traditional obligation to protect indigenous citizens from the political and economic power of the non-Native majority, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) is a landmark of Indian law.

Alaska Natives, like all tribal peoples who fight for survival, have no desire to disappear. Every fact available to the Commission indicates that they will fight tenaciously to save their subsistence way of life. Having lost most of their ancestral land holdings and many of their inherited rights over the past two centuries, Alaska Natives have expended enormous human, financial and political resources in order to hold what ground they can on fish and game. Many Natives have willingly faced arrest and imprisonment rather than give up one of the last remaining pillars of their aboriginal cultures. This is significant for a people who ceded untold wealth without a fight and stoically suffered a multitude of social and cultural losses.

The long battle over subsistence in Alaska has unfolded in fluctuating cycles of legislative, regulatory, and judicial activity, alternatively surging and receding over the years. Today, the Native subsistence rights that Congress sought to protect in ANILCA are in greater political jeopardy than at any time in the nation’s history. They are now under concerted political assault by powerful, organized interests which compete with villages for limited public resources that governments must allocate. The current subsistence management impasse, which began with the 1989 Alaska Supreme Court ruling in McDowell v. State of Alaska, should not be allowed to continue.

"If you recognize that unemployment is 80 percent, then you have to recognize how people survive. And if people survive off the land and survive by eating natural foods, natural fish and game in quantities it takes to survive, then you have to recognize that as an economy. And then, maybe you would have to get away from the word ‘subsistence’ and just call it a lifestyle and give rights to [the taking of] that fish and game."

Orie Williams
Bethel.

For further information, analyses, and recommendations regarding Alaska Native subsistence issues, please see:

Alaska Natives Commission, Volume II, "Report of the Governance Task Force (Part 3)."
Alaska Natives Commission, Volume III: "Report of the Alaska Natives Commission on Subsistence."

Recommendation

1. Congress should repeal the following language from Sec. 4(b) of P.L. 92-203 (The Alaska Native Claims Settlement Act); language that serves only to confuse and detract from Alaska Natives’ attempts to secure real, long-term subsistence rights: ". . . and including any aboriginal hunting or fishing rights that may exist . . .".

Discussion

ANCSA’s legislative history clearly indicates the concern of Congress to protect Alaska Natives subsistence rights. Bowing to pressure from the State of Alaska, however, Congress deleted committee language that would have expressly protected those rights and substituted the present text of Sec. 4(b). Congress also substituted the Conference Report mandating responsibility for the defense of Native subsistence. When it became clear after passage of ANCSA that the Secretary of the Interior and the State of Alaska would not adequately discharge their respective obligations as contained in the Conference Report, Congress enacted Title VIII of ANILCA in an attempt to correct its flawed assumptions.

The present language of Sec. 4(b) of ANCSA continues to be used against Natives in every effort they make to assert their right to subsist from Alaska’s land and waters. Congress should cut through the ambiguity, clarifying the ongoing subsistence debate. Such action would be far preferable to the prevailing sophistry that often produces outcomes contradictory to the original intent of Congress.

Recommendation

2. Congress should maintain the existing rural preference in Title VIII of ANILCA as the minimum acceptable level of subsistence protection in federal law and should resist all pressures from private interests and the State of Alaska to diminish or eliminate the current preference.

Discussion

Despite inherent weaknesses in ANILCA’s rural preference, federal law clearly remains superior to the present State system. The record of the past four years demonstrates the unwillingness of the State of Alaska to protect subsistence from the demands of sport, commercial, and other uses of fish and game resources.

Two governors, four regular legislative sessions, two special legislative sessions, and a series of ad hoc advisory groups have sought to resolve the current subsistence impasse. The result is ongoing dual management. The situation has now come to a point where the only bulwark protecting Alaska Natives from the power of an adversarial state government is federal law.

Recommendation

3. The Congress should conduct ongoing oversight of Title VIII implementation in order to monitor the status of subsistence law in Alaska and the performance of the state government and the federal agencies involved in Title VIII implementation. As part of this long-term analysis, Congress should draft alternative language to replace the present rural preference with more adequate protections for all Native people, including those residing in nonrural areas.

Discussion

Although it constitutes the last line of defense for Natives and must be defended from anti-subsistence efforts to remove it from federal law, the rural preference is flawed in concept as well is result. It fails to protect the legible subsistence needs and continued practices of thousands of Native people who, through no fault of their own, reside in areas of Alaska not defined as rural. Subsistence, being integral to their world view and among the strongest of remaining ties to their ancient cultures, is as much spiritual and cultural as it is physical.

The current rural preference threatens the long-term protection of Natives in rapidly growing, hub communities in rural Alaska. A Native preference, irrespective of place of residence, would nullify this very real threat. Whether "rural" is defined by the number of people in a community, the nature of its economy, or a combination of the two, it is inevitable that some communities initially classified as rural will become nonrural over time due to population growth, socio-economic change, or both. Native villagers have little or no control over the in-migration of non-Native populations or the socioeconomic changes resulting therefrom. The results of significant non-Native population growth in rural areas are increased competition for fish and game, greater regulatory restrictions, and lowered subsistence productivity — all without an equitable distribution of benefits of a developing cash economy to the Native residents. The thought that Native people in such impacted communities also lose their federal subsistence protections because of events beyond their control is unacceptable. A Native or "Native plus" preference, substituted for "rural," would nullify this historical threat.

Recommendation

4. During any period of dual management; Congress and the cognizant federal agencies should take all legislative and administrative actions necessary to maximize the geographic scope of federal jurisdiction over fish and game in Alaska. At a minimum, this should include all public lands, including all marine and navigable waters, all conveyed ANCSA fee lands, all selected but unconveyed State and ANCSA lands, and the assertion of the federal government’s extraterritorial reach off public lands and waters.

Discussion

Statewide, fishing accounts for almost 60 percent of total subsistence product. It is the primary subsistence activity in most rural Alaskan communities. It is inconceivable that the intent of Congress was to leave nearly two-thirds of rural Natives subsistence needs outside the bounds of the federal preference. But that is the result of the federal government’s failure to include marine and navigable waters within its jurisdiction when it assumed fish and game management in 1990.

Both proponents and opponents of subsistence have long agreed that fish and game management can best be conducted through a unified statewide system. The State’s inability to adhere to the mandates of Title VIII of ANILCA virtually assures that a dual management system will exist indefinitely. As such, the federal government should expand its jurisdiction in order to ensure the maximum geographic scope for a coherent management system and maximum protection of subsistence users. At the same time, Alaska Natives subsistence requirements can be protected to the greatest degree possible.

Recommendation

5. During, any period of federal management in any Alaskan jurisdiction, federal agencies should fully implement existing provisions of U.S. law requiring the operation of regional subsistence advisory councils and the options of contracting with communities and regional Native entities under co-management agreements. It is further recommended that the State of Alaska regionalize the Boards of Fisheries and Game to enable Alaska Natives more local control over subsistence resources, harvests, and traditional uses.

Discussion

Subsistence management regimes have, to date, ignored the underlying Alaska Native cultural patterns of sharing and providing for not only oneself but ones community in ways that have been passed from generation to generation for millennia. Regional fish and game councils established pursuant to ANILCA have, for all intents and purposes, become inactive due to lack of federal funding to support them. Likewise, while the State of Alaska spends $1.5 million annually on the operation of advisory committees and the Boards of Fisheries and Game, most indications continue to be that this system — though expensive and giving the appearance of local involvement — does not honor the local cultural traditions of Alaska Native people.

From a strictly economic perspective, decreasing federal and state budgets coupled with diminishing access to and abundance of subsistence resources will assure even less economic well-being than that which exists in village Alaska today. Strategically, it behooves the federal and state. governments to explore means for empowering Alaska Natives in the areas of research and wildlife and habitat management. This should include (1) identification of institutional, regulatory, policy, legal, and cultural barriers to Native participation in wildlife research and management; (2) identification of the major obstacles to development of co-management regimes; (3) development of co-management programs with funds. allocated toward development of the institutional and cultural capacity for Alaska Natives to co-manage; and (4) development of programs which increase Alaska Native employment in the fields of wildlife research and wildlife and habitat management.

Recommendation

6. The Alaska Legislature should adopt and submit to the voters at the next statewide general election, an amendment to the Alaska Constitution allowing a statutory subsistence preference that complies with federal law and returns to the State of Alaska authority to manage fish and game in Alaska. This proposed constitutional language should be broad enough to permit State compliance with a congressionally improved ANILCA preference (see Recommendation #3, above). A constitutional amendment should be accompanied by state legislative actions mandating local and regional co-management agreements, effective regional advisory councils, and reform of the state’s fish and game regulatory system (see Recommendation #5, above).

Discussion

The post-McDowell dual management arrangement under which two governments apply different subsistence policies to highly mobile fish stocks and game populations according to static patterns of land ownership is expensive and incoherent. It creates as much confusion for the professional managers who implement it as it does for fish and game harvesters. Alaska’s people and resources deserve the consistency and reliability of a single system of subsistence regulation. That is as true of subsistence users as it is of other groups — provided that the resulting single system affords adequate protection of subsistence economies and cultures.

The real problem is that, while the adoption of a state constitutional amendment and statute complying with ANILCA’s rural preference would resolve the current legal impasse and return fish and game management to the State of Alaska, it would not, in and of itself, adequately protect subsistence. In the absence of additional actions by Washington, D.C., and Juneau, such a move would merely hand subsistence back to a state government controlled by sport and commercial interests. The embittering experience of the last four years has led many Native leaders and organizations to question the wisdom of a constitutional amendment that does nothing more than return to the pre-McDowell status quo. This reluctance stems, in part, from the inadequacies of the rural preference itself. But, in addition, Native people are expressing the view that putting federal lands and waters back in the control of a state government that treats them in this way does not make sense. Their definition of what is broken, and what must be fixed, appears to go well beyond dual management.

The current subsistence impasse appears to be a problem that only the legislature and Alaska’s electorate can fix. For this to be achieved, Native organizational help in the legislature and Native votes at the polls are needed. The only strategy likely to enlist the entire Native community’s political support is one that combines a constitutional change, congressional improvement of the rural preference, and basic reforms in the State of Alaska’s management system.

The Situation

Alaska Natives are tribes indigenous to the United States. Full tribal recognition by the federal government would not only legitimize its special relationship with Alaska Natives, but would also go far in helping to define the social and political status of Alaska Natives and their communities throughout the state.

At the present time, rather than recognizing and working with Alaska Native tribal governments, the State of Alaska and, to a degree, the federal government, have attempted to suppress and replace them with Western institutions and values. The social, economic, and political plight of village Alaska as we approach the dawn of a new century offers clear evidence that the current "system" of local government — the framework for community life — is not working in rural Alaska.

In a throwback to periods when termination and assimilation were government policy, the State of Alaska, in general, refuses to recognize even the existence of Alaska Native tribes and opposes the empowerment of Natives’ traditional and Indian Reorganization Act governments. To the State, Alaska Natives are a terminated people and, therefore, do not exist on the legal landscape. For its part, the federal government has attempted to walk a. non-existent fine line by bowing to the State’s position of nonrecognition while concurrently trying to treat Alaska Natives as it does other Native Americans.

A review of the tribal status and authority of Alaska Native communities comes within the mandate of the Commission for two principal reasons. First, Alaska Native eligibility for federal Indian programs is dependent upon the tribal status of the villages. Second, the tribal status and authority of these villages broadly influences relations with the federal and state governments and their residents. As long as Alaska Natives are at a legal and political disadvantage in relation to others, they can never be full and equal participants in achieving much-needed solutions to the contemporary problems facing them.

Alaska Natives have seen the benefits and potential advantages of tribal governments and tribal judicial systems. They have recognized the value and have attempted to live by the terms of such laws as the Indian Self-Determination and Education Assistance Act, the Indian Child Welfare Act, and other congressional policies intended to benefit them and their tribal governments. But their efforts are continually illustrated by the State of Alaska and its agencies in the courts and in the service delivery arenas. Their efforts are further frustrated by the federal government’s approach where vacillation, half steps, and retreats have been the rule.

After several centuries of painful experience, the federal government has determined that Native Americans are best able to govern many aspects of their own lives as evidenced by the prevailing federal policies emerging over the past quarter-century. The application of these policies and protections, for reasons not fully clear to the Commission, has been uneven in the Alaska Native context. In fact, termination and assimilation — tragic and failed policies that, for the most part, were long ago discarded by the federal government in dealing with indigenous peoples — a pear to hold on as the de facto policies of government with respect to relations with Alaska Native people.

In preceding subsections of this report, the Commission makes a number of recommendations regarding issues directly relating to aspects of Alaska Native tribal governance. For instance, the first recommendation made in this volume (see Recommendation #1 on page 28) proposes congressional amendment of Public Law 83-280 extending to Native governments concurrent criminal jurisdiction with the State of Alaska. Tribal courts and other dispute resolution bodies are covered under Recommendation #l on page 44. In Recommendation #2 on page 45, the Commission suggests establishment of formal agreements between tribal councils and the State of Alaska regarding jurisdiction over infractions of local law. These recommendations, together with additional recommendations in this subsection, constitute a framework within which the Alaska Native tribal governance issue can be viewed not only from legal and political perspectives, but also from the perspective of true Native self-determination as it affects daily life in contemporary Alaska Native villages.

"The problem is well-known, and the problems are all recognized; but the solutions have been out of reach of the local communities because of the divisive nature of the State against the tribes . . . the federal government against the tribes. The tribes are just bound to lose in that political situation."

Adrian LeCornu
Hydaburg

For further information, analyses, and recommendations regarding Alaska Native Tribal Governance, please see:

Alaska Natives Commission, Volume II, "Report of the Governance Task Force"
Alaska Natives Commission, Volume III: "Alaska Natives Tribal Governance"

Recommendation

1. Congress should establish policies and relationships supporting tribal governments in Alaska beginning with the repeal of disclaimers added to Indian legislation over the last ten years that disavow Congress’ role in promoting the federal relationship with Alaska Native tribes.

Discussion

The failure of the federal government to clearly recognize Alaska Native tribes facilitates assaults on fundamental tribal interests in the state and federal courts by the State of Alaska and private parties. The Secretary of the Interior partly resolved this issue by publishing an Alaska Native tribal list on October 21, 1993, clarifying that the entities listed are traditional councils or Indian Reorganization Act councils which the federal government deals with on a government-to-government basis.

Congress, on the other hand, has effectively removed itself from its role as a trustee of the federal relationship with Alaska Native tribes by including disclaimers in most recent Indian legislation. These disclaimers state that nothing in the legislation will either diminish or expand Alaska Native tribal authority nor validate or invalidate any claim of sovereign authority over lands and people. These disclaimers are inconsistent with the federal relationship with Alaska Native tribes. now that the United States recognizes the tribes and any powers they still possess.

Recommendation

2. The Secretary of the Interior should withdraw Solicitors Opinion (Sol. Op. M-36,975) and clarify the federal government’s position on the jurisdictional status of Native lands in Alaska by participating in pending federal court cases in support of Alaska Native tribal claims to Indian Country.

Discussion

The Solicitor for the Department of the Interior under the previous administration issued an opinion concluding that Congress expressed an intent that Native lands retained under the terms of the Alaska Native Claims Settlement Act do not constitute Indian Country. Although the Solicitor acknowledges that restricted townsite lots and allotments remain Indian Country for federal jurisdictional purposes, it also concludes that tribes do not exercise governmental authority over practically any property the tribe might own or occupy.

The opinion is untenable because it supports an implicit extinguishment of tribal authority contrary to established federal law. The federal courts have already determined that Indian Country can exist in Alaska and, contrary to the Solicitor’s Opinion, that ANCSA did nor affect either the tribal or Indian Country status of Indian lands in Alaska.

The Solicitor should support Alaska Native tribal claims in federal courts that would promote, rather than diminish, the federal relationship with Alaska Natives.

Recommendation

3. Native communities should be able to freely convey ownership and control of Native lands between Native corporations, tribal governments, individuals, and other Native institutions; and they must be able to regulate these lands where competing uses threaten tribal and subsistence interests regardless which Native institution or individual holds title.

Discussion

Ownership and effective control by Alaska Natives of lands on which they depend has been markedly diminishing since statehood. Native people, as evidenced by testimony offered to the Commission, want the option of consolidating Native land ownership in ways that are most protective of subsistence land values and that expand jurisdiction over social and regulatory matters, most notably alcohol importation and use and domestic issues.

New ownership and jurisdictional patterns would be enhanced by tribal land use plans and co-management agreements with federal and state land use and resource managers, and by formal agreements with judicial and enforcement agencies.

At a minimum, the Secretary of the Interior should take lands owned by tribes in Alaska into trust when requested by a tribe to the extent such lands have been transferred from an ANCSA village corporation pursuant to a vote of the ANCSA village corporation shareholders. Some tribes in Alaska are acquiring lands from their ANCSA village corporations independent of the process that led to the settlement of Alaska Native aboriginal claims. For this reason, there is questionable justification for treating tribes in Alaska any differently from those elsewhere in the United States by denying the protections of trust land status.

Recommendation

4. Tribal governments require a financial base which the federal and state governments should address through cooperative agreements and legislation, such as to grant federal tax credits for taxes paid to tribal governments and to provide equitable state funding to residents regardless of the form of government they elect to represent their communities.

Discussion

Tribes look to reduce their dependence on federal grant funds by generating local tax revenues. Current laws allow federal and state taxation within tribal territory, making it difficult for tribal communities to attract economic enterprises. The federal government can address this situation and promote its policy of self-determination by granting a tax credit for taxes paid to tribal governments.

The State of Alaska currently appropriates more funds to communities organized as state municipal corporations than to villages governed by IRA or Traditional Councils. Persons living in unincorporated communities and Native communities organized under federal charters are also state citizens but end up receiving less state funding simply because of the form of local government they have chosen. The State of Alaska can address this inequity by funding communities on an equal, per capita basis.

Recommendation

5. The State of Alaska should, through Executive Order or legislative enactment or resolution, recognize the existence of Native tribes in Alaska to clear obstructions to successful implementation of policies and programs affecting predominantly Native areas of the state.

Discussion

Despite federal recognition, the State of Alaska continues to attack the tribal status of Alaska Natives in court decisions that conflict with federal precedent and practice. At the same time, the State consistently works to diminish any authority and jurisdiction that Alaska Native tribes might have. This hostile position, while presumably protecting the state’s authority, results not only in state court decisions contrary to the self-governance goals of Alaska Natives, but also in what are; more often than not, adversarial regulatory and enforcement practices.

While it is not within the domain of the State of Alaska to either establish or deny tribal status, powers, and jurisdiction, a clear recognition of the existence of Alaska Native tribes other than the Metlakatla Community Council can have a multitude of positive policy and program impacts. It will enable officials and agencies of the State of Alaska to work co-operatively with tribes in such critical areas as Indian Child Welfare Act implementation, local law enforcement and dispute resolution, and land and resource management, among others.

The Alaska Legislature. should, therefore, enact legislation reversing the untenable policy on tribal status reflected in Stevens Village v. Alaska Management and. Planning in which the Alaska Supreme Court held that there are no tribes in Alaska except for rare exceptions. In addition, the Governor should, at a minimum, repeal Administrative Order #125, in which is embedded the most hostile formal position ever taken by an administration against tribal governments in Alaska.

LOOKING TO
SOURCES OF
STRENGTH

Prior to Vitus Bering’s 1741 arrival in North America, the vast expanse of land anchoring the continent’s northwest reaches had been home to Native peoples for countless centuries and generations.

Tlingit and Haida Indians roamed the forests and plied the waters of the southeastern coast. The Eyak and other tribes found richness between the Indians of the southeast and the Suqpiaq of the Alaska Peninsula and the Southcentral region. The Aleut and Koniag were established in the swirling mists and seas of the Aleutian Archipelago and Kodiak. Occupying all of southwest Alaska, its major rivers, the Bering Sea coast and the island now called St. Lawrence were the Yupik Eskimos. Inland were the Dene, the Athabascans, living in the forests through which ran the Yukon River and, its tributaries. And to the west and north of the Athabascans were the Inupiaq, the brothers and sisters of the Yupik people ,whose domain was a vast arctic expanse, in the farthest reach of the hemisphere.

Collectively, the Native peoples knew and revered the entirety of what was to become known as Alaska. By the time of the arrival of Europeans, they had named every major river and creek, every mountain and valley. And, contrary to some current thinking, all of Alaska was dotted with Native villages, most of which have since passed into history.

Having developed an intimate knowledge of the land and its resources, the Native people located their villages in areas richest in natural resources — by streams and rivers and along the coastlines teeming with salmon and other marine life, and near fertile hunting grounds. Here, over the course of many thousands of years, the Alaska Native people — ruled by their own spiritual beliefs, traditions, customs, and environment — developed rich cultures and intricate systems for community life and social order.

Alaska Natives had well-developed, time-tested political, social, and economic systems tied intimately with nature and the spiritual realm. To them, the temporal and the spiritual intertwined. Because of this, they walked and lived in both worlds. When a Tlingit or Athabascan walked into the forest, or when a Yupik, Inupiaq, or Aleut pushed his kayaq or umiaq into the sea, he entered not only the hunting. grounds but the spiritual realm as well. Native arts, songs, dances, feasts, and ceremonials reflected this view of existence. Cultures and languages were constructed around it.

In a study that helped. to lay the groundwork for the Commission’s undertaking, anthropologist Ann Fienup-Riordan wrote that despair is a natural side effect of 100 years of attempted assimilation and increasing dependency. On the other hand, she has pointed to the large number of Alaska Natives who have retained a positive personal identity. She has suggested that the sources of strength are as important to understand as the sources of problems.

If the Commission’s message can be summarized, the point to be made is that the strength truly does deserve attention. Read the entire log of testimony submitted to the Alaska Natives Commission, and at times you will be brought to tears. But at other times, you will find yourself chuckling and even laughing out loud at the tireless humor of people who absolutely refuse to be beaten down and forgotten.

There is a lot of caring and love sprinkled throughout the testimony the Commission gathered. People who want more than anything else to offer the very best opportunities to their children find that without adequate water supplies, even the most basic amenities seem like an impossible dream. Parents are suffering because they know that the village school their children attend ma y not compare to an urban education. And yet, a look at the dropout statistics for Natives in Alaska’s cities shows that urban schools have their problems, too. The lack of employment, and even the lack of hope of a future job, has turned many Alaska Natives into less than well-functioning dependants of government.

In incredibly depressing statistics the scope of problems resulting from alcohol abuse in the Native Community has been documented. Whole families — and sometimes even entire villages — have been nearly destroyed by this insidious stranger in their midst who saps both body and spirit.

As the Commission completes its report, however, we look to the future and a people who have told us time after time that what they want more than anything else is self-determination. The testimony is not from people seeking an easy answer brought in from outside. Alaska Natives have recognized that no person and no agency will arrive on the scene to "save" anyone. They know that their future is bright only if they are self-reliant.

The tools for Natives’ futures are the pages of our report. While we hope that all of our recommendations are adopted as soon as possible, we realize that what really matters is the people’s strength of will. Among Alaska Natives, strength of will is not an issue.