Volume III of the Alaska Natives Commission's Final Report contains the full text of two separate studies conducted by the Alaska Natives Commission: 1) Alaska Native Subsistence; and, 2) Alaska Native Tribal Government. Condensed versions. of these studies (including key findings and recommendations which are contained in full in this volume) can be found in Volume I, Part Two. .

In preparing these studies, the Commission went to great lengths to treat each issue as thoroughly and conclusively as possible. The issues were examined from a number of policy perspectives, including social, cultural and economic.

These issues. Alaska Native subsistence and Alaska Native tribal government, are among Alaska's most legally and politically dynamic. In recognition of this fact, the Commission strived to ensure that its discussions, findings and recommendations were as current as possible given the ever-changing legal and political environment affecting these two important issues.

About the Commission

The Alaska Natives Commission (the joint Federal-State Commission on Policies and Programs Affecting Alaska Natives) was created by Congress in 1990 at the urging of Alaska Native groups. The Commission's undertaking was jointly funded by the federal government and the State of Alaska.

The idea of creating a high profile, authoritative commission emerged from the Alaska Federation of Natives' report on the status of Alaska Natives, A Call to Action, published in 1989. AFN's report was precipitated, in large part, during a visit to Alaska Native villages the previous year by Sen. Daniel Inouye (D-Hawaii), chairman of the Senate Select Committee on Indian Affairs.

When Congress created the Commission, it was directed to conduct a comprehensive study of the social and economic status of Alaska Natives and the effectiveness of the policies and programs of the United States and of the State of Alaska that affect Alaska Natives.

The Commission also was directed to conduct public hearings and to recommend specific actions to Congress and the State of Alaska that might help assure that Alaska Natives have life opportunities comparable to other Americans. The Commission was to accomplish its work while respecting Natives' unique traditions, cultures and special status as Alaska Natives.

In addition, the Commission was to address the needs of Alaska Natives for self determination, economic self-sufficiency, improved levels of educational achievement, improved health status and reduced incidence of social problems.

The first meeting of the Commission was held in February 1992. Within months, staff had been hired and five task forces had been named to gather information on economics, education, governance, health, social and cultural issues.

Mary Jane Fate of Fairbanks and Perry R. Eaton of Anchorage were named co-chairs of the Commission. Other Commission members included Johne Binkley of Fairbanks, Edgar Paul Boyko of Anchorage, Father Norman Elliott of Anchorage, Beverly Masek of Willow, Martin B. Moore of Emmonak, Frank Pagano of Anchorage, John W. Schaeffer, Jr., of Kotzebue, Father James A. Sebesta of St. Mary's, Walter Soboleff of Tenakee Springs, Morris Thompson of Fairbanks, and Sam Towarak of Unalakleet. Francis E. Hamilton of Ketchikan served on the Commission until her death September 28, 1992.

Nine regional hearings were held by the Commission, including: Fairbanks, Bethel, Nome and Klawock in 1992; and Barrow, Dillingham, Kodiak, Kotzebue and Copper Center in 1993. In addition, statewide hearings were held during the Alaska Federation of Natives Convention October 14-17, 1992, and October 14, 1993.

Task forces held special regional hearings, and among them were: Social/Cultural Task Force hearings in Ft. Yukon; Health Task Force hearings in Emmonak, Alakanuk and Hooper Bay; three separate Governance Task Force hearings in Anchorage, as well as criminal justice hearings at the Hiland Mountain/Meadow Creek Correctional Center in Eagle River and the Wildwood Correctional Center in Kenai; and, Education Task Force hearings in Sitka and Angoon, including a special session at Mt. Edgecumbe to gather testimony from students.

In all, about 500 Alaskans from 82 cities and villages provided oral testimony to the Commission during the 16 months over which hearings were held. Several hundred additional people submitted written testimony for the Public Record.

The Final Report

The result of the Commission's two-year study is a three-volume Final Report designed as a blueprint for change regarding the way in which the federal and state governments deal with Alaska Native issues. Though the report is not all-inclusive nor entirely exhaustive, it does - within the pages of the three volumes - touch specifically on those issues in contemporary Alaska Native life that Alaska Natives, themselves, have identified-as being among the most important.

The Commission also published the 260-page Federal and State Catalog of Programs Affecting Alaska Natives which contains information about the multitude of governmental services available to Alaska Natives and Alaska Native tribes. The catalog is available at the Library of Congress, the National Archives in Anchorage, the Alaska State Library (Anchorage, Fairbanks and Juneau), and various public and university libraries throughout the state. Also available at these same repositories is the body, in verbatim transcript form, of public testimony gathered by the Commission (seven volumes total).

Alaska Native Subsistence

3-Subsistence in Contemporary Alaska

3-Traditional and Modern Ways

3-Data and Sources

7-Mixed Economies

8-Other Characteristics of Subsistence Use

8-A Demographic Typology of Subsistence

11-Subsistence as an Alaska Native Issue

12-Federal and State Subsistence Policies: The Evolution of Gridlock

12-Public Regulation and Allocation: Equal Access vs. Preference

13-The Alaska Native Claims Settlement Act (1971)

14-The Alaska National Interest Lands Conservation Act (1980)

15-State Compliance with ANILCA (1981-1989)

18-The End of State Compliance

34-Litigation

38-Additional Management Concerns

40-Conclusions and Recommendations

Alaska Native Tribal Government

45-Introduction

45-The Scope of the Commission's Mandate

45-Statement of the Contemporary Issue

49-Tribal Sovereignty and Federal Indian Law Policy

49-Federal Indian Law and Policy

57-The Dynamics of Federal Indian Policy

58-Historical Application of Federal Indian Law in Alaska

63-Policy Positions

66-Tribal Recognition as Applied to Alaska Natives

67-Federal Government Recognition of Alaska Native Tribes

68-Governmental Powers of a Federally Recognized Indian Tribe

in Alaska

72-Effects of Dissolution of Municipal Government

73-Governmental Authority Over Residents and Territory

74-Summary of Issues and Recommendations from Witness Testimony

74-Tribal Status

77-Indian Country

78-Land ownership and control

Appendix

[Alaskool Home]

I. Subsistence in Contemporary Alaska

A. Traditional and Modern Ways

The term "subsistence" refers to the hunting, fishing and gathering activities which traditionally constituted the economic base of life for Alaska's Native peoples and which continue to flourish in many areas of the state today. Before the mid-18th Century arrival of the first non-Natives, subsistence was the only form of economic production by which the aboriginal populations fed, clothed and housed themselves. Conducted in seasonal cycles by small, semi-nomadic communities and kinship groups within recognized territories, subsistence utilized traditional, small-scale technologies for harvesting and. preservation of foods and distributed the resulting production through networks of communal sharing and barter. Wide disparities existed among the subsistence practices of Native societies in the different climatic and biological areas of Alaska - from the marine mammal cultures of the high Arctic, through the land mammal/fishing groups of the Interior river systems, to the resource-abundant coastal communities of the southeastern rain forests.

During the past 250 years, the technologies of Native subsistence have changed profoundly, as people have adjusted to the use-0f modern instruments of harvest, transportation and storage. On the surface, today's subsistence activities look very different from those of pre-contact times. But beneath this visible level, with its manufactured equipment and store-bought supplies, older patterns of behavior and values continue. As we try to define what subsistence really is in contemporary Alaska, we must distinguish between form and function. How Native people practice it today has changed profoundly over the centuries, but what they are doing is mainly what they have always done. And what they have always done is very different from the economic organization and personal relationships of contemporary mass culture.

In order to deal effectively with Alaska's festering political controversy over the allocation of fish and game, it is necessary to understand the actual practice of subsistence "on the ground," in the lives of real people. The purpose of this section is to provide a statistical/narrative description of how modern subsistence works.

B. Data and Sources

In the late 1970's, the Alaska Legislature and Governor Hammond created within the Department of Fish and Game a new organizational unit called the Division of Subsistence. Because of the increasing political rivalry over fish and game resources, the new entity was designed to conduct and publish social science research on human behavior. Its purposes were to inform lawmakers, administrators and the general public about subsistence takings and uses of wild renewable resources and to advise the state government on the regulation of such practices in competition with sport and commercial harvests. In the past 15 years,

the Subsistence Division, working with limited budgets and staff, has produced a remarkable body of research. The information that follows is based on such studies, as well as on census data and other publications.

C. Who Practices Subsistence? Where?

In 1987, Subsistence Division researchers published a detailed outline of annual subsistence harvests in 98 Alaskan communities (four large cities, plus 94 towns and rural villages of varying sizes).¹ Using state management records and detailed "harvest recall" interviews conducted between 1980 and 1987, the analysts gathered data on the taking of fish, land mammals, marine mammals and other species (e.g., birds, plants, invertebrates, etc.), measured by the common statistical unit of "pounds (dressed-weight), per capita, per year."

They came to two general conclusions: 1) that the non-commercial taking of wild plant and animal species for food and other domestic uses continues to produce "significant economic value" in contemporary Alaska, particularly in the rural areas of the state; and 2) that this sector of the state's economy is relatively "hidden" from view, generally left out of government statistics on productivity and growth, and all but. ignored in the development of public policy.

As an example of what is meant by "significant economic value," consider the fact that 45 of the 98 surveyed communities reported wild food harvests equaling or surpassing the western U.S. standard for average annual per capita purchases of meat, fish and poultry (222 pounds). And fully 82 of these locations reached at least half of that benchmark (i.e., 111 pounds) through hunting and fishing. Even allowing for the fact that per capita consumption of animal proteins and fats is higher in rural Alaskan villages than in the national diet, the data are compelling. They show us that virtually all the meat, fish and poultry annually consumed in half of the surveyed communities came from the harvest of wild resources; and in five out of six of them at least one-half of such nutritional needs were met by subsistence. For most of the surveyed locations, store-bought. meat, fish and poultry were only a supplement, often a very expensive one, to the local protein base.

If such wild resources were somehow denied to subsistence-dependent communities, the inevitable result would be the deterioration of nutrition, public health and social stability -because the cost of buying, transporting and storing imported replacements would be impossible for local people', or even government agencies, to bear over time. The long-term consequence would not be starvation but the gradual erosion and disappearance of many rural communities through out-migration. This is the irreducible fact that underlies the most divisive issue in Alaskan politics. "Subsistence" cannot be understood as a subset of fish and game management. It is a subset of social policy. What is at stake in it is the survival of human communities and cultures.

If subsistence is important, which Alaskans depend on it most heavily? The following ranking of annual per capita subsistence harvests in 14 geographical areas demonstrates a general pattern: that the more remote and traditionally ethnic an Alaskan community is, the higher its subsistence productivity is. likely to be., Harvest levels in Table 1 begin at an average of 30 pounds per person per year in the four major urban locations and steadily

expand from there - first through the Railbelt and Southeast, then through the more economically developed southern regions of the bush, and finally to the remote villages of the Interior and the northern and western coasts. The highest subsistence levels are found in the most traditional Yup'ik, Inupiaq and Athabascan regions. (The only exception to this ranked order is the North Slope, where temporary public employment created by an oil-driven tax base has slightly reduced, but in no way eliminated, subsistence harvests.)

The researchers then broke their data into sub-harvests by animal categories and got the results in Table 2, organized according to five larger areas of ecology and culture. It not only reinforces the pattern of where subsistence is most heavily practiced but shows what kinds of fish and game different groups of Alaskans take to feed their families. It also demonstrates another basic fact of modern subsistence: the combination of all forms of fishing produces a greater total output than does the combination of all forms of hunting -in virtually every region. Statewide, fishing accounts for almost 60 percent of total subsistence product. It is the primary subsistence activity in most Alaskan communities, even those located far north of Anchorage. The sole exception to this rule is that group of Inupiat communities of the high Arctic coast where hunting of marine mammals and caribou displaces fishing as the predominant subsistence pursuit.

Table 1

5

The 1987 research also shows that levels of subsistence harvest correlate significantly with certain socio-economic traits of communities:

Table 2

6

D. Mixed Economies

No community in Alaska any longer possesses a pure subsistence economy. All human settlements, even the most rural and most Native, participate to some degree in the world's cash/market/wage system. Most Native villages now have what researchers describe as "mixed" economies, in which small-to-moderate amounts of cash are provided at different times of the year by limited resources: very few full-time wage jobs (most of which are in public service agencies, staffed mainly by non-local, non-Native personnel); some seasonal employment in commercial fishing, fish processing, trapping, construction and fire-fighting; handicraft cottage industries; government transfer payments; and family sharing. The ratio of cash to subsistence varies widely from village to village and from family to family within the same village. Often a household's subsistence production is "capitalized" by its pooled cash income, since the efficient harvest of large amounts of fish and game cannot be accomplished without market-produced industrial goods such as fishnets, outboard motors, rifles, ammunition and snow machines.²

Many non-Native observers, including policy-makers, perceive modern subsistence as nothing more than a cultural antique - a quaint, but increasingly ineffective, holdover from previous times that will inevitably disappear as market economics take over. They admit that modem village economies are mixed, but they see the two components as varying inversely with one another (i.e., that subsistence hangs on only to the extent that development of the cash economy has not taken place). The truth is that subsistence is much more than the consolation prize that village people are left with in the absence of jobs. It is its own economic sector, highly prized by its practitioners and fully co-existing with cash-market activities.

The vast majority of village residents choose to practice subsistence, even if they have access to good wage incomes, and research has failed to establish any cash cutoff point at which individuals or households stop harvesting fish and game³. Large economic development impacts may slightly reduce aggregate harvest data (e.g., on the North Slope during the past 15 years), but individual rural households at all income levels cling tenaciously to their uses of wild food resources. Some wage activities are particularly compatible with subsistence (e.g., seasonal commercial fishing and trapping). Full-time jobs are generally less accommodating, although some village employers adjust schedules and activities to allow for subsistence. Often families combine economies by having some members work for cash while others harvest fish and game, occasionally switching these roles among individuals. Even people who cannot get time off from cash jobs work at subsistence in the evenings and on weekends - not for recreation, as in urban areas, but for household food production.⁴ Village people have created their own syntheses of traditional and modern activities that allow them to take care of themselves and their families. They survive by maintaining the combination of cash -and subsistence, not by making a forced choice between them.

E. Other Characteristics of Subsistence Use

An important attribute that distinguishes subsistence from other uses of fish and game is the diversity of species harvested (i.e., the number of different wild resources annually taken and used by a given household for food and other domestic purposes).⁵ Subsistence families generally take a wider range of resources than do other user groups. They do so out of cultural preference for local foods, because of the better nutrition provided by wider traditional diets, and because different species allow greater opportunities for sharing and exchange of goods favored by others. They also practice resource diversity as an economic contingency plan, providing their households with back-up options in an environment of seasonal resource uncertainty and chronic instability of cash incomes. In any community, some resources (e.g., salmon) will be used by almost every family, while other species are the acquired tastes of relatively few (e.g., sea cucumbers). Coastal settlements commonly demonstrate a wider resource diversity than do inland communities, partly due to the access of the former to marine fin-fish, shellfish and mammals. As a general rule, the more economically developed and culturally diverse a community is, the narrower the range of its subsistence resource menu will be.

A second important attribute of subsistence communities in modern Alaska is that of specialization by household. While most rural households harvest some wild foods, a relatively small percentage (which the researchers have called "super-households") are extremely productive, harvesting most of their communities' annual supplies and distributing them to less productive families. A Subsistence Division "harvest recall" study published in 1987 produced the "70-30 Rule" (that, on average, about 30 percent of a rural community's households will produce about 70 percent of its total subsistence output).⁶ The researchers have posited that the principal reason for this is the natural "developmental cycle" of village households. At one end of the continuum, newly-formed households tend to be headed by inexperienced young adults with a labor force of children. They have limited subsistence capital and lighter community obligations to produce and distribute food. At the other end, elderly households, often composed of widowed spouses and grandchildren, have seen their adult offspring move out to establish their own families. They are characterized by an older, physically less capable, work force, uneven subsistence capital and limited community obligations to harvest and share. It is the "mature," adult generation in between that heads the super-households of the typical village. They have experience, labor and capital, and almost everyone else looks to them as the main providers. Most of them act as the cores of multi-household networks of output and distribution.

F. A Demographic Typology of Subsistence

In 1992, the Subsistence Division circulated research that divided 293 Alaskan communities (virtually every recognizable settlement in the state) into three demographic levels.⁷ The comparative socio-economic characteristics of these categories showed the roles that hunting and fishing play in Alaskan communities of different sizes.

8

Communities with Populations under 2,500: This category contains 278 Alaskan places, all of them rural, with an aggregate 1990 population of only 85,230 people (15.5% of the state total). It includes all Native villages except those that have been demographically swallowed by larger non-Native towns or cities but still maintain their separate legal and cultural identities (included in Categories 2 and 3). It also contains many tiny non-Native settlements in the bush, particularly in Southeast and along the Railbelt and Interior road system. 251 of the 278, including all the Native villages, were designated by the Alaska Boards of Fisheries and Game in 1986 as having mixed subsistence-cash economies. The other 27 were designated as having cash-market economies.

In most communities of this category, large majorities of the residents participate in subsistence, as both harvesters and consumers. They produce moderate-to-high levels of subsistence output, taking a relatively wide diversity of plant and animal species. Production and processing are done by non-commercial household/kinship groups, using efficient, small-scale technologies within traditional territories according to seasonal cycles. There is extensive non-market sharing and exchange, and most of the system's values and knowledge, transmitted from generation to generation, are what the researchers call "traditional." There is a wide range of productivity among households in a given community, with some feeding far more than their own members through distribution networks. In these very high cost-of-living environments, limited cash employment and small public support payments produce low annual cash incomes for most households, especially for Natives. Pooling of household cash not only pays for such domestic purchases as fuel, clothing and store-bought foods, but also capitalizes subsistence by buying equipment and supplies.⁸

Communities with Populations of 2,500 to 7,000: This category contains only seven places, each with its own combination of urban/rural characteristics and its own Native/non-Native mix. They have an aggregate 1990 population of 23,292 (4.23 % of the state total):

Table 3

Such places have recently come to be called "transitional" communities, occupying a controversial status on one side or the other of the "rural" line in federal law. Three (Petersburg, Unalaska and Cordova) are predominantly non-Native towns (containing small, intact Native communities) which participate in well-developed commercial fisheries and related market economies. The four predominantly Native places (Bethel, Nome, Barrow

and Kotzebue) are rural service/transportation centers and commercial hubs for outlying subsistence villages. In 1986 all seven were designated as having mixed subsistence-cash economies.

These places share many of the socio-economic characteristics of Category 1 communities, with certain key differences. The majority of residents who hunt or fish do so, at least some of the time, for subsistence, although these percentages are not as large as in Category 1. Most residents also consume subsistence products, although not in the amounts seen in Category 1. In these economically-more-developed, culturally-more diverse rural Alaskan towns, there are minorities of households that harvest and consume little or no subsistence food because of their exclusive concentration on commercial economic activities and/or their social position outside traditional networks of production and sharing.⁹

Communities/Areas with Populations above 7 000: This category contains eight places, all predominantly urban/suburban, with an aggregate 1990 population of 441,521 (80.27% of the state total):

Table 4

Only Sitka and Kodiak received 1986 designations as mixed subsistence-cash economies, while the other six were designated "cash-market" economies.

In these communities, the large majority of residents who hunt and fish do not do so for subsistence but for commercial, sport or "personal use" (i.e., limited fishing for food -primarily by non-Natives). Most family diets, including meat and fish, are store-bought, occasionally supplemented with wild foods. There is a narrow range of species harvested and consumed, and stable kinship sharing networks exist only among minorities. The timing of hunting and fishing is limited by leave arrangements from full-time employment schedules. Harvest methods reflect what the researchers call "fair chase" sporting values, rather than the need for efficient production of food; and the knowledge and values inculcated in succeeding generations are those of outdoor recreation, not community survival. Modern transportation methods allow urban hunters and fishermen a vast pattern of land use, often much larger than those used by subsistence harvesters. Primary food production is by cash purchase in the market economy, supported by comparatively well-

developed job opportunities, long-term income security, low-cost and plentiful retail goods, and moderate-to-high family incomes (although Natives and other ethnic minorities in urban Alaska generally have cash incomes well below community averages).¹⁰

G. Subsistence As An Alaska Native Issue

While the preceding descriptions and generalizations are important, they inevitably suffer from being the products of dry statistical science. Simply telling the reader that subsistence "correlates significantly" with certain "behavioral characteristics" or "demographic patterns" makes no personal impression. On subsistence, as in most matters, we grasp patterns of fact to the extent that we can see them. The table in the Appendix attempts to remedy that problem." It presents a visual model of 131 Alaskan communities for which we have both subsistence harvest data (gathered by state surveys in the mid-1980's) and demographic/socio-economic information (from the 1990 census and other sources).

One of the fundamental reasons why subsistence is such a difficult issue in contemporary Alaskan politics is that it is really about Natives. While many non-Native Alaskans, particularly those residing in rural areas, harvest and use fish and game, the vast majority of communities seriously practicing subsistence as an economic livelihood are Native villages. Despite the fact that Title VIII of the Alaska National Interest Lands Conservation Act, the centerpiece of federal subsistence policy in Alaska, gives a subsistence preference on the public lands to the taking of fish and game by "rural Alaskans,¹¹ there can be no doubt that the primary congressional motive behind its enactment was the protection of Native people and their communities. (Both the legislative history and the text of ANILCA articulate this intent, and the federal courts have accordingly held that Title VIII is Indian law.) These legal facts underscore the historical perspective of one prescient observer:

II. Federal and State Subsistence Policies: The Evolution of Gridlock

A. Public Regulation and Allocation: Equal Access v. Preference

Fish and game resources have been the subject of fierce political competition throughout human history. That is particularly true in Alaska, where, in the absence of agricultural development, a significant portion of the human population has traditionally relied on hunting and fishing for economic survival. There can be no doubt that the allotment of these resources among competing individuals and groups was one of the important functions of government in traditional Native cultures. Because of the gradual in-migration of large non-Native populations and the development of efficient methods of mass harvest during the last 125 years, the politics of fish and game allocation are probably as intense today as they have ever been in Alaska. Subsistence uses have been joined -indeed, all but overwhelmed - by an enormous commercial fishing industry and by a sport hunting and fishing culture involving hundreds of thousands of ordinary citizens. Accordingly; the question of who gets to take fish and game has been a significant issue in territorial, state and federal politics since the advent of American sovereignty in 1867.

Since 1959, it has been the state government that has enjoyed the legal power. to regulate most such resources. With the exception of several species that remain under federal control and/or international, treaties (e.g., marine mammals), fish stocks and game populations are the province of the Alaska Legislature and the Governor, usually acting through the Board of Fisheries, the Board of Game and the Department of Fish and Game. Indeed, the assertion of local control over these resources had been one of the compelling motives of, the. statehood movement, and several sections of the Alaska Constitution articulate this persistent theme of state politics.

But under the federal system, state action is often circumscribed by the authority of the United States. The federal government owns more than 60 percent of all lands in Alaska and maintains a special obligation for the protection of its Native citizens (approximately 15 percent of the state's total population). The federal role in regulating Alaskan resources began with the Treaty of Cession (1867), and the specific involvement of the Congress in subsistence protection dates back as far as 1902. Public policy on fish and game, therefore, unfolds against the larger backdrop of federal-state jurisdictional competition and often ends up the subject of political and judicial confrontation.

Since statehood, the central problem of fish and game policy has been that there are not enough animals to go around. Population growth has combined with technology to create a situation in which it is no longer possible to allow every person to take everything he or she wants. The result is that government must engage in the politics of allocation, deciding who gets to take which resources ("fish stocks" and "game populations"), where ( game units and fisheries"), when ("seasons"), how ("methods and means"), and for which purposes ("uses" -commercial, sport, subsistence or other).

During the 19 years between statehood and the first subsistence law enacted by the Alaska Legislature (1978), fish and game were open to all residents on a "first come, first served" basis, and no defined group had preference over any other. But as human populations steadily grew, this method 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 demographic explosion, and something had to be done to shield rural Alaska from overwhelming resource competition and socio-economic deterioration.

B. The Alaska Native Claims Settlement Act (1971)

Even before the pipeline boom, the Congress had become concerned about protecting subsistence in Native villages. During the five-year process leading to adoption of the Alaska Native Claims Settlement Act (ANCSA), the primary focus was on land ownership, but the closely-related issue of fish and game kept intruding. The final bill on the Senate side specifically referred to protection of "...Native subsistence hunting, fishing, trapping and gathering rights..." in its declaration of purposes. If it had been 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 uses of fish and game other than subsistence by local residents¹³. But both provisions were dropped by the conference committee in response to a request by the state government.

As a consequence, Section 4 (b) of ANCSA extinguished, along with all aboriginal land titles and claims thereto, "...any aboriginal hunting or fishing rights that may exist...," and there was no specific reference to subsistence protections in the text of the statute. But the Conference Report accompanying the legislation made clear the congressional concern for Native subsistence and mandated responsibility for its defense:

One way of understanding the historical relationship between ANCSA and the Alaska National Interest Lands Conservation Act (ANILCA), enacted nine years later, is to see them as two chapters of the same congressional book of land and resource policy. In 1971, the topic of subsistence received nothing more than a statement of expectation in the legislative history; but by 1980, the inadequate track records of the Secretary and the- State had convinced the Congress that it was time for clear statutory direction. The result was Title VIII of ANILCA.

C. The First State Subsistence Statute (1978)

By the late 1970's, the Alaska Legislature was also coming to the conclusion that subsistence would have to be legally protected if the economic and cultural base of the villages was to survive. Partly in response to anticipated shortages on the ground, and partly in reaction to early policy options being discussed in congressional deliberations over ANILCA, the state enacted a 1978 subsistence law requiring the Board of Fisheries and the

Board of Game to give a legal preference to subsistence uses of fish and game.¹⁵ Leaving unanswered the question of who the subsistence users were (e.g., Natives, rural residents, poor people, or any other defined class of citizens), the statute merely laid down the principle that subsistence uses would have priority over all other uses (commercial, sport, etc.) at any time of reduced human takings. This first, tentative venture of state law into uncharted territory managed to define "what" but not "who." The latter would have to wait for congressional action.

D. The Alaska National Interest Lands Conservation Act (1980)

It took the Congress four years, from January 4, 1977, through December 2, 1980, to enact ANILCA. From the outset, it was clear that the Act was going to contain a federal protection of subsistence, and Title VIII gradually emerged as the vehicle for this policy. The key issues in its design were the definitions of what subsistence is ("uses") and who does it ("users").

While committee deliberations and draft bills were loaded with references to "Alaska Natives" and "Native villages," the State of Alaska was successful in persuading the Congress to enact a subsistence preference defined by geography of residence, rather than by ethnicity. The people who would be protected by federal law were those who lived in,

rural Alaska, regardless of race, culture or other considerations. The Report accompanying the final Senate Energy and Natural Resources Committee bill clearly described the rural urban distinction:

Although the Report included such larger bush communities as Dillingham, Bethel, Nome and Kotzebue in the rural definition, it added that the rural character of any community was not necessarily "static" - clearly assuming that population growth and/or socioeconomic development might, over time, remove it from the preferential category.¹⁶

The following excerpts from the text of Title VIII describe the reality in Alaska, the authority of the Congress and the policy enacted: -

Section 801 - Congressional Findings: "...the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, on the public lands and by Alaska Natives on Native lands is essential to Native physical, economic, traditional and cultural existence and to non-Native physical, economic,

traditional and social existence." [Because of the dependency of rural residents on such.

resources, the absence of alternative food supplies, and the increasing pressure of human

populations,) "...it is necessary for the Congress to invoke its constitutional authority over

Native affairs and its constitutional* authority under the property clause and the commerce

clause to protect and provide the opportunity for continued subsistence uses on the public

lands by Native and non-Native rural residents." -

Section 802 - Policy: "...non-wasteful subsistence uses shall be given preference on the public lands over other consumptive uses..."

Section 803 - Definition: "...the term 'subsistence uses' means 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."

Section 804 - Preference: "...the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes."¹⁷

However, in enacting protections of subsistence on those lands owned by the United States, the Congress did not want to encourage two separate and conflicting systems of fish and game management: one administered by the Secretaries of the Interior and Agriculture on public lands and the other operated by the state government, under different regulations, on state and private lands. Having two levels of government trying to regulate highly mobile animals according to intricate patterns of land ownership did not make sense. In response to specific requests from Juneau, Section 805 (d) therefore offered the state government the option of continuing to regulate subsistence on federally-owned public lands (in addition to the State's own jurisdiction over state and private lands), if the Alaska 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.¹⁸ If Juneau would impose the rural subsistence preference throughout Alaska, the state government could continue to regulate fish and game on all lands. This "opt-in" provision has been described by some as an exercise in "cooperative federalism.''

ANILCA, with its rural preference on the public lands and its management incentive for statewide compliance, thus became the legal foundation of federal subsistence policy in Alaska. It was the principal mechanism by which the Congress substituted statutory protections of subsistence for the aboriginal hunting and fishing rights it had extinguished in ANCSA.

E. State Compliance with ANILCA (1981-1989)

The subsequent nine-year period of state compliance with Title VIII of ANILCA was confused and discontinuous. The 1978 state subsistence law had not specifically limited the definition of "subsistence uses" to rural residents. So the one-year grace period following federal enactment began with the state out of compliance, and it was clear that Juneau would have to act promptly if it wished to retain statewide regulatory authority. But during its 1981 session, the Alaska Legislature failed to amend its statute. As a consequence, 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."¹⁹ That strategy proved insufficient when the Alaska Supreme Court, ruling three years later in Madison v. Alaska Department of Fish and Game, threw out the regulation on the ground that the language of the 1978 statute did not specifically authorize the Boards to make such

a rural limitation.²⁰ It was clear that, if the state was to comply with ANILCA, it would have to do so by legislative, not regulatory, action.

In 1986, the Alaska Legislature finally amended its subsistence statute to limit the definition of "subsistence uses" to residents of "rural areas," thereby complying with Title VIII. But in so doing, it unwittingly created another legal tangle by defining "rural area" as "...a community or area of the state in which the noncommercial, customary and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy..."²¹

1. A Challenge to State Compliance: Ballot Measure 7 (1982)

Shortly after the state's first attempt at compliance by regulation, a coalition of individuals and groups opposed to the subsistence preference gathered enough petition signatures to place 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:

Interests behind the initiative, including several sport groups, established themselves as Alaskans for Equal Fish and Game Management. Those favoring the preference, including most Native organizations, organized as Alaskans for Sensible Fish and Game Management. Both sides concentrated on radio and television spots, newspaper ads, mass mailings and public speaking engagements. Many candidates for state office found themselves pulled into the bitter campaign on subsistence.

On November 2, 1982, Ballot Measure 7 was defeated. Out of 191,449 votes cast, 111,770 (58.4%) voted down the initiative. As expected, the remote bush voted strongly against (80.5 % to 19.5 % ), as did Southeast, including urbanized Juneau, (70.5 % to 29.5 % ). The Kenai/Valdez/Whittier area rejected the initiative by a closer margin (55.7% to 44.3%), as did the Railbelt/Highway region (55.5% to 44.5%). Two areas approved the initiative: MatSu (52.7% to 47.3%) and Fairbanks and its outskirts (52.7% to 47.3%). Significantly, the 77,766 voters of Anchorage (40.6% of all votes on Measure 7) rejected the initiative (52.3% to 47.7%).²³

The 1982 repeal initiative had at least three long-term consequences. First, it temporarily took the issue of subsistence out of the hands of officeholders, bureaucrats and lawyers and gave it to the electorate, raising mass awareness. Second, it helped to form rather stable pro-subsistence and anti-subsistence interest groups that have continued the same fight in

other political and legal arenas during the ensuing decade. Finally, the high voter turnout, particularly in rural areas, affected other races. It was widely understood that Ballot Measure 7, in combination with other issues (e.g., a proposition to move the state capital) had contributed significantly to the election of a Democratic governor. This perceived effect of Native voting made many non-Native political leaders reluctant to submit a subsistence constitutional amendment to the voters in more recent general elections.

2. The Problem of Defining "Rural"

In 1980, ANILCA had given a subsistence preference on the public lands to residents of rural communities but had _ not included a statutory definition of the word "rural." In 1986, the Alaska Legislature complied with the federal law by enacting the rural limitation, but it additionally defined "rural" Alaska as those areas where hunting and fishing for food was a "principal characteristic of the economy..." In order to implement the state's rural preference, the Boards of Fisheries and Game then had to make regulatory determinations of which specific communities met that criterion. During that process, one of the areas determined not to be rural was the entire Kenai Peninsula. The Kenaitze Indian Tribe, objecting to being excluded from the subsistence preference, brought suit in U.S. District Court, claiming that the state statute's definition of "rural" was inconsistent with the intent of Congress in ANILCA.²⁴ In July, 1987, the trial court found against the plaintiffs, who promptly appealed. On October 24, 1988, the Ninth Circuit Court of Appeals reversed, holding that the commonly understood meaning of "rural" is an area that is "sparsely populated, where the economy centers on agriculture or ranching." It added: "More broadly, rural is the antonym of urban and includes all areas between cities and towns of a particular size."²⁵ While legal scholars were uncertain of the exact standard the appellate court wanted the state-to use, most felt that, whereas the state law's definition had been socio-economic in nature, the federal law's definition was now held to be basically demographic.

The immediate result of Kenaitze was that, more than a year before McDowell v. State of Alaska, the state was technically out of compliance with the federal law because of the different definitions of "rural." This means that, even if the Legislature and the voters were now to amend the Alaska Constitution to permit a rural subsistence preference, the problem of defining "rural" would still have to be solved: 1) by legislative change of the state's definition to conform to Kenaitze; 2) by congressional change of ANILCA to define "rural" as the Alaska Legislature did in 1986; 3) by coordinated legislative and congressional action enacting a new, mutually agreed-upon, definition in both federal and state laws; or 4) by some combination of demographic and socio-economic criteria that would pass muster with both state and federal courts (if, indeed, this last option is at all possible).

But this battle over semantics reveals a larger historical implication of the rural preference: regardless of whether one defines the term 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 that are initially in the "rural" category will become "non-rural" over time - because of population growth, socio-economic development, or both. As noted above, statements in the legislative history of ANILCA indicate that Congress accepted such acculturation (and consequent loss of the preference) as inevitable:

However well-intended, that last assumption is wrong. Native villagers have traditionally had little or no control over the in-migration of non-Native populations or over the socioeconomic changes that result therefrom. When the historical disruption occurs, it simply falls on them. As described previously, the result of significant non-Native settlement entry is usually a combination of increased competition for fish and game, greater regulatory restrictions, and lowered subsistence productivity - all without an equitable distribution to the Native residents of the benefits of a developing cash economy. But on top of that, any definition of "rural" means that, if the changes are great enough, an entire community may fall out of the subsistence preference, taking with it a relatively intact enclave of Native people whose permission for the "assimilation" no one has asked. That is what happened to the Kenaitze Indians, who are now a small ethnic minority surrounded by a larger non-Native community. Indeed, sizable Native enclaves, the ancestors of which were once the areas' only inhabitants, continue to maintain their cultural identities inside predominantly non-Natives places such as Ketchikan, Juneau, Sitka, Cordova, Seward, Kodiak and elsewhere. r What many Native people have reluctantly concluded from this is that the ANILCA rural preference, which was the best the Congress would do in 1980, was conceptually flawed from the outset. Not only does it threaten the long-term protection of Natives in rapidlygrowing "transitional" bush communities (e.g., Bethel, Nome, Kotzebue and Barrow), but it offers no hope for many "urban" Natives who, while they may hold tenaciously to their subsistence cultures, have either moved out of their home villages or watched those traditional communities be swallowed by non-Native urbanization. This has led a significant portion of the Native community to favor congressional amendment of ANILCA to provide some type of Native, "Native Plus" or tribal preference -because they regard "rural" as a slow death warrant for subsistence.

F. The End of State Compliance

1. McDowell v. State of Alaska (1989)

The nine-year period of state. compliance with Title VIII of ANILCA - confusing and disrupted as to method, politics and definitions - 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 suit had been brought in 1983 by opponents of the subsistence preference who had been active in the previous year's failed Ballot Measure 7. The Superior Court had ruled against the plaintiffs in January, 1988, but two years later the Supreme Court reversed on appeal.

The majority opinion found that the state law's rural preference violated three provisions of Article VIII of the Alaska Constitution: Section 3, which reserves fish and wildlife "...to the people for their common use...;" Section 15, which prohibits any "...exclusive right or

special privilege of fishery...;" and Section 17, which requires that state laws and regulations governing the use and disposal of natural resources "...apply equally to all persons similarly situated." While a subsistence law that protects individuals who live off the land would be acceptable, the court held that broadly defining that group by geography of residence was not. It noted that many urban Alaskans could legitimately claim to be subsistence users, while many rural residents could not, and suggested that "...a classification scheme employing individual characteristics ..." (emphasis added) would be more likely to pass muster.²⁷

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 itself, over other uses, remained intact. This led directly to the current "all Alaskans" subsistence policy: the peculiar situation of according a legal preference to every one of Alaska's 550,000 residents.²⁸

2. The Federal-State Impasse

As a result of McDowell, one of the participants in ANILCA's "cooperative federalism" provision had been pulled out of the arrangement, and the State of Alaska was now caught between its own constitution and the federal law. The invalidation of the rural preference immediately put the state out of compliance with Title VIII of ANILCA, and it had no constitutional means of re-establishing conformity. If Juneau could not figure out a strategy to resolve the impasse, it would lose its authority to regulate fish and game on the public lands, and dual management would ensue. Accordingly, the state had asked for, and had been granted, a stay of the McDowell decision's regulatory effect until July 1, 1990. The most commonly discussed options for resolving the impasse were:

Anti-subsistence interests, having succeeded in removing the rural preference from state law, were now determined to eliminate it from the federal statute; and they began their effort by judicial, rather than congressional, means. On June 22, several of the plaintiffs in

McDowell v. State of Alaska filed suit in U.S. District Court challenging the federal constitutionality of Title VIII of ANILCA.²⁹

Pro-subsistence groups (mainly Native organizations and communities under the aegis of the Alaska Federation of Natives) cautiously opted to support a constitutional amendment and state resumption of regulatory authority, provided that Juneau conduct a thorough review of subsistence policy and address the inherent weakness of the rural preference. Anti-subsistence interests strongly opposed any change of the state constitution. Having successfully removed the rural preference from state law in the courts, they were not about to let it back in through legislative and electoral action. But regardless of what private interests thought, the problem was the state's. The impasse, after all, was between state law and the federal statute, and the consequences of non-compliance fell on Alaskan management. Only state action could resolve it. The question was whether the Legislature would act.

Because statewide general elections occur in November of even-numbered years, 1990 became the first target for state constitutional action, a process repeated in 1992. During the 1990 regular legislative session, several bills proposing constitutional amendments, including one authored by Governor Cowper's administration, were introduced.³⁰ Hearings were held, conflicting testimony received and alternative language debated. Newspapers urged legislative action to place a constitutional amendment on the general election ballot, as did the Governor, the Native community, the Congressional Delegation, and federal agency officials .

The U.S. agencies charged with enforcing the ANILCA preference on public lands (the -Departments of the Interior and Agriculture) clearly preferred to avoid a federal regulatory takeover after July..l.. Faced with additional workload and legal responsibility in a time of severe budget deficits, Secretary of the Interior Manuel Lujan repeatedly urged the state to resolve the problem through legislative action complying with the federal law.³¹ But state action was by no means assured, and on April 13, 1990, the U.S. Fish and Wildlife Service published a Federal Register announcement of "Intention to Propose Interim Rules Implementing Title VIII of the Alaska National Interest Lands Conservation Act," inviting public comment. ³²

On May 6, the Alaska House of Representatives failed, by a vote of 20-20, to adopt a bill to submit a subsistence constitutional amendment to the voters. (Passage would have required a 2/3 majority: 27 votes.) Subsistence legislation on the Senate side never made it to the floor, remaining bottled up in the judiciary Committee. On May 8, just 53 days before the takeover deadline, the Second Session of the Sixteenth Alaska Legislature adjourned without taking action on subsistence. Reaction from the Governor, the Congressional Delegation, the Interior Department, and the media was dismay.

Some legislative opponents of a constitutional amendment argued that, even if two-thirds of both houses agreed to put such a measure on the ballot, a majority of the electorate would not vote for it. A statewide public opinion poll, however, showed a clear majority

in favor of it.³³ The opposition also argued that another ballot proposition on subsistence would produce a bitter and divisive electoral campaign, pitting angry interest groups against one another. Mixed with all this were partisan political considerations: 1990 was an important electoral year, and no one could forget the 1982 voter turnout on Ballot Proposition 7. Many Republican leaders, regardless of how they felt on the substance of the issue, dreaded seeing another Democrat elected governor on the coattails of the subsistence issue.

On the question of how to otherwise resolve the federal-state impasse, some anti-subsistence legislators favored congressional action to get rid of the rural preference in ANILCA. Alaska's Congressional Delegation responded that such a strategy could boomerang against the state: that the Congress was highly unlikely to renege on its commitment to protect subsistence and that reconsidering any part of the 1980 law would open all its land and resource provisions to further control by national interest groups. The Delegation urged that the issue be resolved by the voters in Alaska and warned of the impending loss of state regulatory authority if no action were taken.

Now the Department of the Interior (U.S. Fish and Wildlife Service) issued draft temporary regulations for federal management of subsistence, to take effect after July 1 if there were no political resolution of the conflict. To the dismay of pro-subsistence interests, however, the proposed rules defined the term "public lands" in ANILCA to exclude marine and navigable waters (thereby exempting almost all fish from federal jurisdiction and the protection of the rural preference). Arguing that the Congress had never intended to leave 60 percent of rural Alaska's subsistence diet unprotected, subsistence groups felt that the federal "takeover" was purposely toothless: that the agencies were asserting jurisdiction over nothing but hunting on federal lands in response to pressures from commercial and sport fishing interests and the state government.

3. The First Special Legislative Session (1990)

On June 8, Governor Cowper called the Alaska Legislature back into special session, to convene on Monday, June 25, for consideration of a subsistence constitutional amendment and other subsistence provisions that the administration would introduce. Strong pressure for a state resolution of the impasse came from the federal government. On June 20, Secretary Lujan wrote to the Governor, issuing a clear warning:

Three days before the special session, Governor Cowper sent to the legislative leadership his proposed language to amend the constitution:

In addition, the Governor's bill would "...validate, ratify, and reinstate state subsistence laws..." that had been nullified by McDowell v. State of Alaska. It also included a provision whereby the constitutional amendment, if approved by the voters in November, 1990, would automatically come up for re-vote on the 1994 general election ballot (a condition that was included to make the measure more palatable to 2/3 of both houses).

At the opening of the special session, Governor Cowper appeared before a hearing of both houses and advocated his proposed solution. U.S. Senator Ted Stevens, who had consistently appealed for a constitutional amendment to avoid a federal takeover, arrived in Juneau and strongly supported the Governor's package in the joint public hearing, as well as in private meetings with lawmakers. Congressman Don Young also traveled to Juneau from Washington, D.C., to press for a constitutional amendment and to warn of the consequences of state failure to resolve the impasse. Committee hearings proceeded, taking testimony for and against the Governor's legislation and on other subsistence bills

introduced by legislators.

On June 28, after extensive committee work, drafting and floor debate, the Alaska Senate adopted a constitutional amendment similar to the original Cowper formula:

The Senate action also pushed the automatic re-vote forward to 1992. In addition, it enacted bills to reinstate the nullified subsistence laws, to create a two-year Subsistence Review Commission, to petition the Congress for an ANILCA amendment allowing the state to define "rural," and to empower the state Boards to restrict the out-transport of harvested fish and game from local areas. The Senate recessed and waited.

The Alaska House of Representatives then sat for ten additional days, relieved only by a brief holiday recess. The July 1 federal deadline came and went, and the Interior Department continued to hold, pending state action. On July 8, the House finally failed by one vote (26 in favor, 14 opposed) to obtain a 2/3 majority for a constitutional amendment.

The Legislature adjourned, having resolved nothing. The federal-state impasse remained precisely where it had been for six months.

The 1990 special session was a critical taming point in modern Alaskan politics. Anti-subsistence interests had won another major victory on the state level, and they now vowed to target the federal law. Pro-subsistence interests had to accept the fact that there would be no prompt decision by the voters on the rural preference and settled in for an indefinite period of dual management. The federal takeover of subsistence regulation on the public lands now began; and although its initial regulations excluded marine and navigable waters, it was widely assumed that federal jurisdiction would expand over time, through administrative and judicial action. The larger historical reality was that the state government could not resolve its most volatile public policy issue, and the divisions among Alaska's peoples deepened.

4. The First Hickel Bill (1991)

Following the 1990 special session, the federal presence took hold in the form of a five person Federal Subsistence Board representing the Interior Department's Bureau of Land Management, National Park Service, U.S. Fish and Wildlife Service, and Bureau of Indian Affairs, and the Agriculture Department's U.S. Forest Service. Interim federal subsistence regulations, permanent regulations and an Environmental Impact Statement went through processes of drafting, publication, public comment and adoption.

On November 6, 1990, Walter J. Hickel was elected Governor of Alaska. During the June special session, this former governor had played a key role in defeating the constitutional amendment, traveling to Juneau to oppose it in public testimony and private meetings.³⁷ As a candidate in the general election, Mr. Hickel had campaigned against the idea of a constitutional amendment and was supported by anti-subsistence groups. He took office on December 3, vowing that resolution of the subsistence impasse would be a top priority of his administration.

InF ebruary, 1991, Governor Hickel formed a 10-member Governor's Subsistence Advisory Council, composed of state agency heads and public representatives. His original charge to the group was to design a solution to the federal-state impasse that would return all fish and game regulation to the state, without amending either the Alaska Constitution or ANILCA. When this quickly proved impossible, the Council was directed to' design a system that would comply with the Alaska Constitution, without regard to the federal law.

On September 13, 1993, Governor Hickel announced that his Advisory Council had completed its work and that his draft bill was ready. Its key provision defined a subsistence user (i.e., the person eligible to receive an individual subsistence licensed as one who had lived in Alaska for at least one year and who, during at least three of the preceding five years, had met the following six criteria of a subsistence lifestyle:

The Governor's bill also contained a number of provisions allowing the Boards of Fisheries and Game to limit subsistence by geography and species:

In addition, the Nickel bill proposed a preference that required the Boards, whenever resources could not satisfy all uses, to give subsistence users a "reasonable opportunity" to take fish and game - a significantly lower management standard than ANILCA's guarantee that "...utilization of the public lands in Alaska is to cause the least adverse impact on rural residents who depend upon subsistence uses..."³⁸

The administration's intent was now clear. In addition to exempting large fish stocks, game populations and geographical areas from subsistence uses, and in addition to establishing out-transport limitations, it wished to enact on state and private lands a system of individual subsistence permitting based on "lifestyle," thereby attempting to satisfy the Alaska Supreme Court. Thereafter, it planned to put forward this system as a political alternative to the-rural preference in a campaign to persuade the Congress to amend ANILCA. If the two-part strategy worked, the State would regain unitary fish and game regulation by being in compliance with federal law - because the federal law would have been changed to fit the Alaska Constitution, rather than vice versa. Everyone recognized that ANILCA's rural preference and the Alaska Constitution were irreconcilable, but the Nickel administration's definition of which had to yield to the other

was very different from that of subsistence interests. This remains the sticking point of the impasse to the present day.

On October 15, 1991, Governor Nickel met with the Board of Directors of the Alaska Federation of Natives to discuss his draft bill. He was candidly told that they would not support it. In addition to opposing its many large exemptions from the preference, the Native community found the administration's whole approach to subsistence inadequate:

The cultural and economic impacts of individualized eligibility: Native people feared that an individualized permitting system would be one more example of how a culture of rights insistently disrupts a culture of relationships. The individual is not the critical unit that drives the real world of subsistence. Personal property rights, represented by licenses, are antithetical to traditional family arrangements and networks of sharing. Permitting would impose on Native communities an artificial class structure, dividing residents into subsistence people and non-subsistence people ("traditionals" and "moderns"), based on the possession of a piece of paper issued by non-Natives. Fear of losing a subsistence permit, for failure to meet the lifestyle criteria, would become a disincentive to participation in the wage economy and to absence from the village. People would no longer be able to combine and balance their livelihoods. The bottom line was that subsistence licensure would inevitably force the most important components of modern Native culture into mutually exclusive choices, effectively dismantling the mixed economies of village Alaska.

The policy precedent of individualized eligibility: Native people also feared that permitting, even if its initial criteria were somehow acceptable, would open an historical door that could never be shut again. They knew full well that it was the policy of individualizing land ownership and resource use that had stripped the South 48 Indian tribes of virtually everything in the-late 19th and early 20th centuries. As long as the law provided some form of group subsistence preference (at least "rural," but preferably "Native"), there was safety in numbers; but once the precedent of individual eligibility had been set, the Legislature and the Boards, controlled by anti-subsistence majorities, could steadily tighten the criteria by which it was applied. Even if the process began with such standards as "pounds consumed," "distances traveled" and "values handed down," the eventual criterion of a subsistence lifestyle was likely to be cash income. It might take years, but when Alaska finally reached the point at which 'individual subsistence permitting was based on IRS returns, the forced bifurcation of mixed economies would be complete, the subsistence-eligible population would be minimized, and history could take its "natural course" in gradually eliminating the villages.

The un-enforceability of the lifestyle criteria: A subsistence preference based on geographical residence is relatively easy to implement because a person can document the fact of where he or she lives. But how could public agencies, charged with licensing something as controversial as subsistence, apply the six-lifestyle criteria to prove or disprove the honesty of any application? Did most people really know whether they personally consumed 200 pounds of wild fish and game per year during three of the past five years, and how could a given applicant - whether in Anchorage or Tuntutuliak - prove that he or she had done so? By what demonstrable standard could government apply such terms as "accessible," "efficient," "economical," "diversity," "values and lore?" That kind of law would create a bureaucratic nightmare and invite fraud. The Nickel administration's contention that such problems could be minimized by depending on applicants to adhere to an "honor system" was seen by the Native community as questionable.

The unspoken purpose of the 200 pound standard: If eligibility for a subsistence license were limited to people who had personally consumed at least 200 pounds of wild fish and game per year during three of the preceding five years, and if people were honest in filling out their applications, a significant percentage of village residents would not qualify. The

only people who could satisfy such a zealous quest for "true subsistence users" would be those whose diets were almost entirely composed of wild foods. Ignoring the reality of mixed economies, the law would immediately toss out thousands of people who, even though they had been heavily dependent on subsistence, had unwittingly combined cash and subsistence incomes sometime during the preceding half-decade and fell short of the 200 pound standard as a consequence. Clearly, the purpose of the whole exercise was resource allocation. Cutting so many rural residents out of the subsistence preference would free up fish and game resources for redistribution to the urban majority. The policy goal was not the reduction of post-McDowell eligibles under the "all Alaskans" policy, as the State claimed, but the reduction of pre-McDowell eligibles under the federal law.

The out-transport restrictions: "Eat it where you kill it" addressed transportation, not taking. It would allow any Alaskan resident to enter any subsistence use area in the state and to take fish or game for "subsistence" purposes, as long as he or she either consumed the meat within the use area or dropped it off at some needy local community before leaving - an arrangement that villagers found absurd and demeaning. (It seemed to combine non-Native "catch and release" with Native "welfare," neither of which had anything to do with subsistence.) Moreover, if the only permissible exceptions to the out-transport restrictions were for sharing, barter and customary trade, didn't the exceptions swallow the rule? After all, subsistence is, among other things, a system of economic distribution based on kinship and personal obligation; and if the loopholes in "eat it where you kill it" were to be that big, why include the provision at all - unless the gesture had symbolic political value with, anti-subsistence constituencies?

The extent of regulatory discretion: The quality of a system is no better than the real intentions of the people who run it. Since statehood, subsistence interests had seen one law after another come down from the Legislature for implementation by the Boards of Fisheries and Game. And time after time, they had watched the Boards, controlled by sport and commercial interests, interpret such laws so as to provide as little protection of subsistence as was legally possible. Board implementation had occasionally been so narrow as to violate the letter of the law, requiring expensive litigation to compel adherence. Although the tradition had grown up of always having some subsistence representation on the Boards, such members were always outnumbered and usually outvoted by sport and commercial interests. What many Native leaders now sought was a system that imposed clear, unavoidable standards. of subsistence protection, and they were not about to trade ANILCA for a highly discretionary state system implemented by bodies that they had come to view as rigged.

The law's questionable constitutionality: Among several provisions- unlikely to pass constitutional muster with the Alaska Supreme Court, the outlawing of subsistence takings in "non-subsistence use areas" appeared to be a disguised version of the same. problem that had caused the Court to strike down the rural preference in McDowell (i.e., denial of equal subsistence rights to a whole class of citizens defined only by place of residence). The same problem would likely arise regarding the out-transport restrictions. Geographical distinctions seemed to pervade the bill. In addition, using an eligibility standard based on three -of -the-past five years tested past, not present, dependence on subsistence, and might well violate the "common use" clause. The same problem applied to the 40 year standard for designating non-subsistence species. Such constitutional questions were particularly serious because the bill's lack of a "severability" clause meant that if any part of it was subsequently struck down, the whole thing would fall, leaving Alaska with no subsistence law at all.

The purpose of non-subsistence use areas: Even if the outlawing of all subsistence takings in large geographical areas of the state had been constitutional, its use as a policy was indicative of the state's attitude toward the very idea of a preference. When McDowel

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nullified the rural standard for defining subsistence users, leaving intact the preference for subsistence over other consumptive uses, it created the anomaly of the "all Alaskans" policy. Such an arrangement was fine with some opponents of subsistence who felt that, if they could not get rid of the preference itself, they could at least open it to everyone. The problem was that a subsistence preference enjoyed by every Alaskan could decimate sport and commercial takings in certain highly competitive areas of the state. If, for example, the 200,000 residents of Anchorage had a preferential right to fish with subsistence nets on the readily accessible Kenai peninsula, their takings might seriously damage the lucrative commercial industry in Cook Inlet, as well as the world-class rod-and-reel sport fisheries on the rivers and beaches of the peninsula. The state's answer to this was to make such hotly contested places off limits to subsistence, regardless of the economic dependency or traditional practices of any individual or community that might need to engage in subsistence therein. Quite apart from the question of its constitutionality, that looked to subsistence people like sleight-of-hand, the statutory granting of a statewide preference in theory, followed by the regulatory denial of it in practice - but only in those cases where it was truly needed. While Native groups clung to the idea that a preference is something real - that it actually protects subsistence-dependent communities against overwhelming competition for scarce resources - it became clear that the state administration was working with a looser definition of the term.

ANILCA, the real issue: In the wake of Kenaitze and McDowell , there were two, and only two, legal problems that Alaska needed to fix: the federal-state impasse over the preference and the need for a common definition of "rural." Instead of doing that, the Nickel bill created a whole new management system - and one that was freakishly awkward in the bargain. Even if this new plan had somehow proved both workable and constitutional, its enactment would not have brought Alaska into compliance with ANILCA or returned unitary fish and game management to the State. It would, however, have been the first step in the administration's strategy to amend Title VIII, and the Native community was determined to oppose that agenda at all costs. While Natives saw the rural preference as flawed - and would have welcomed congressional action to improve it - they clung to the federal law in the face of any threat to replace it with something worse. ANILCA was the final bulwark protecting them from a state that refused to provide effective protection of subsistence, and they were determined to defend it in Congress and the courts. The Native community's bottom-line standard for resolving the impasse now came to be articulated as "no net loss."

On October 18, 1991, the AFN Convention voted overwhelmingly to oppose the Nickel bill.³⁹ The Governor withdrew his draft from public consideration and went back to the drawing board.

5. The Second Nickel Bill (1992)

In November, the Governor appointed a second Subsistence Advisory Council, dropping the state commissioners and adding several new public representatives. The group met nine times in the next four months, and on February 21, 1992, the administration's new bill was introduced in the Legislature.⁴⁰ The new bill continued to seek a system based on individual lifestyle, rather than the federal standard of rural residency. In order to be eligible to practice subsistence in any specific use area, an individual Alaskan would have to satisfy a Board-created system

awarding him or her points for fulfilling any or all of seven criteria:

As in the first Nickel bill, the individual eligibility criteria were intended to comply with the state constitution, interpreted in McDowell. But in order to give them a more collective flavor, the new bill utilized the mechanism of community "presumptions." It organized all Alaskan settlements into three categories, each with a different process and standard for determining which of its residents were subsistence eligible:

Level I: Communities of less than 2,500 population (not part of an urban areas where dependence on subsistence is a principal characteristic of the economy, culture and way of life. All residents were presumed to meet the individual criteria and to qualify for subsistence in that use area. They would not individually be required to sign any statement or application affirming compliance with the criteria. The presumed eligibility of any individual resident could be rebutted "only by clear and convincing evidence." In the bill's final form, this could be done only by the Department of Fish and Game.

Level II: Communities of between 2,500 and 7,000 population (not part of an urban area) where dependence on subsistence is a principal characteristic of the economy, culture and way of life. All residents were "refutably" presumed to meet the individual criteria and-to qualify for subsistence in that use area. Any individual resident who wished to practice subsistence would be required to sign a statement affirming compliance with the criteria. The presumed eligibility of that individual could be rebutted by the Department of Fish and Game by "a preponderance of the evidence."

Level III: Communities of more than 7,000 population or where dependence on subsistence is not a principal characteristic of the economy, culture and way of life _plus all persons domiciled outside the specific subsistence use area. Any resident wishing to practice subsistence in a given use area would have to apply individually for a permit and would have to demonstrate individual compliance with the criteria.

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On March 16, the Legislative Counsel (attorney to the Legislature), responding to a senator's inquiry, issued a written opinion that found at least two substantive provisions of the Governor's bill constitutionally suspect of infringing on equal access: the mandatory minimum standards of individual eligibility and the varying burdens of proof of individual eligibility in the presumptions.⁴¹ The constitutionality of several other provisions was seriously questioned by other legal observers, but the state administration pressed on.

On March 23 and 24, more than 500 village and regional representatives of the Native community gathered in Anchorage for an AFN- and RurALCAP-sponsored "Subsistence Summit." It concluded that the second Nickel bill had made little progress on the most important problems that had plagued the first, despite the fact that "eat it where you kill it" had been dropped:

It still provided the Boards with too much discretion (e.g., to exempt large fish stocks and game populations from subsistence uses).

The Boards' discretionary authority to create non-subsistence use areas (where dependence on subsistence is not a principal characteristic of the economy and culture) also remained and was almost certainly unconstitutional.

The preference itself continued to substitute "reasonable opportunity" for ANILCA's more protective "least adverse impact" standard.

The precedent of individualization, represented by seven eligibility criteria, was still there. (Although the use of community presumptions tried to cover this fact, it failed to produce a real group preference.)

Although certain lifestyle criteria (e.g., pounds annually consumed) had been made more realistic, the rebuttal process at Levels I and II and the application process at Level III remained unenforceable, and the bill provided no guidance regarding standards of proof, adjudicator authority, appeals, record-keeping, staffing or costs.

The artifice of applying legal presumptions to entire communities almost certainly breached McDowell's constitutional prohibition against basing subsistence eligibility on residency.

Above all, the second Nickel bill, like the first, would not resolve the dual management impasse - because it did not comply with ANILCA any more than it complied with McDowell. The bill thus provided a classic example of what comes from refusing to face up to a hard policy choice: by starting with individual eligibility to satisfy the Alaska Constitution, and then attaching community presumptions as a gesture in the direction of ANILCA, the administration had violated both.

During the last half of the 1992 regular legislative session, the House and Senate held committee hearings on the Governor's bill. An AFN-sponsored alternative bill⁴² was introduced, as were several versions of a subsistence constitutional amendment.⁴³ The Natives' alternative had been drafted to comply with ANILCA by according the federal preference to rural residents, with no exclusion of geographical areas or of fish stocks and game populations customarily and traditionally used for subsistence. But it then added a second-level preference to protect the subsistence practices of urban residents who could qualify by demonstrating community or individual dependence. Like the Governor's bill, it would have required a constitutional amendment because of its use of the residency standard. But, if enacted, it would have resolved the ANILCA impasse, returning fish and game management to the state.

Nothing moved. Face-to-face negotiations between the administration and AFN ended in deadlock on May 7. The AFN position was: a constitutional amendment and a rural preference statute complying with federal law, whether or not accompanied by a secondary urban preference. The Governor's position was: a constitutional amendment requiring that the Legislature "provide for subsistence opportunities," coupled with enactment of his new system in both state and federal law. The sticking point was not just in the operational details of the Governor's bill. It was the fundamental question of whether Title VIa's rural preference would continue as the ultimate standard of subsistence law in Alaska. Since McDowell that had been the real issue and it had now come to a confrontation in which either one side would defeat the other or the impasse would continue. On May 12, the Second Session of the Seventeenth Alaska Legislature adjourned, having taken no action on subsistence.

G. The Second Special Legislative Session (1992)

On May 27, Governor Hickel called the Legislature into special session, to begin on June 15, for the purpose of enacting his bill. Members of the Congressional Delegation again warned that any attempt to amend ANILCA in Congress would be long, hard and risky to other state interests.⁴⁴ But the state administration was determined to get an up-or-down vote on its new alternative policy. Although the Governor's proclamation setting the agenda of the special session excluded a constitutional amendment, once the legislators were in session, they could (by a two thirds vote of each house) adjourn and immediately reconvene to consider constitutional language. But rural legislators knew they had little or no chance of reaching that goal. The likelihood of a constitutional amendment had not improved since 1990; if anything, it had deteriorated. The other side even had enough votes to stop the AFN's alternative bill that had been introduced in the regular session. The real question for the special session was whether pro-subsistence forces could muster the votes to block the Governor's plan.

The 1992 special session took place against the backdrop of larger political questions than hunting and fishing. To a certain extent, it was an exercise in sectional politics - a geographical showdown over who runs the state. For years, rural Alaska had been able to parlay "safe-seat" constituencies, legislative organization and skilled leadership into political power beyond its electoral numbers, strongly influencing the state's policies and taking home a significant share of its budgetary largesse. Until the Hickel election in

1990, no governor since statehood had been elected without the support of the bush. Now, with reapportionment transferring legislative control to the cities, and an incumbent governor elected by an urban plurality, conservative interests could feel the power flowing in their direction and were determined to prove that the Legislature's Bush Caucus was in eclipse. Many of them had long regarded the subsistence preference as one more discrimination in favor of a coddled minority. In their view, the Nickel bill was not only a way of correcting that injustice, but an opportunity to show, once and for all, who was in charge. Accordingly, they were as determined to keep rural legislators from winning in Juneau as they were to keep rural voters from turning out for a constitutional amendment.

Subsistence was also a microcosm of the broader question of state sovereignty versus national supremacy in the federal system. The assertion of state's rights against the interference of the U.S. government, particularly in the control and use of natural resources, had long been a staple of Alaskan politics and did much to drive the statehood movement in the first half of this century. Admission to the Union had been seen by many as a way of throwing off the federal yoke and putting Alaskans in control of their own assets after decades of congressional dominance and exploitation. For some, however, the euphoria of statehood soon -gave way to disillusionment over the persistence of federal power - an authority buttressed by ownership of more than 60 percent of Alaska's lands and articulated by laws and regulations that often limited state action and private-sector development. The Nickel administration had come to office in 1990 determined to address what it regarded as the root cause of Alaska's problems, and litigation against the United States quickly became the tactic of choice on several fronts. Thus, the post-McDowell subsistence impasse was only one battlefield on which the state administration had declared a larger war for independence from perceived federal control. In this specific case, the objective was to take Title VIII of ANILCA.

The 1992 special legislative session on subsistence lasted eight days, from June 15-22. Constitutional amendment language was an outside possibility in the early days but eventually went nowhere. The Governor's bill jH.B. 599 and S.B. 484), the AFN alternative bill and several bills by individual legislators were introduced. Some became legislative vehicles that went through various modifications and committee substitutes as the session proceeded. Others were quickly shelved.

The Governor's remarks to the opening joint session described his bill as a first step in "...a chain reaction that will result in regaining state management of all fish and game resources..." and he added that the Legislature's actions "...will determine whether we have a peaceful Alaska or one torn apart by bitterness and violence." The administration's early testimony concentrated on the need to protect sport and commercial uses from the potential effects of the "all Alaskans" preference. The Attorney General testified that "...The state's subsistence law is like a sieve. Everything passes through. Everyone qualifies." In committee testimony, another administration staff member added that..."If we allowed subsistence nets on the Kenai River, I think we'd have warfare." As to the larger impasse between the state constitution and ANILCA, the Attorney General blamed it on the Natives' refusal to agree to amending ANILCA and concluded: "I really don't think there is an overall, final solution at this time.."⁴⁵ That became a self-fulfilling prophecy.

The administration also stated, in a publicly-distributed memo from the Attorney General to the Commissioner of Fish and Game, that a subsistence constitutional amendment would have other long-term negative consequences:

Native leaders responded that this was a scare tactic and that the administration's real concern was not for other resources but for the politics of fish and game allocation.

Several hundred Native representatives from regions and villages across the state traveled to Juneau, remaining there most of the week: Dozens of Native elders testified in opposition to the Governor's bill, and a rally of pro-subsistence people was held on the steps of the state capitol, attracting a crowd of more than 500. Native organizations ran a concentrated series of newspaper ads and radio and TV spots to underscore the importance of subsistence to the survival of village communities. The Legislature's free telecommunication service conveyed hundreds of public opinion messages to legislators. While many expressed the views of sport and commercial user groups and urban interests, the majority came from rural Alaskan communities, and from Native individuals and organizations.

By Thursday evening, June 18, two things had become clear: that any hope of a subsistence constitutional amendment had died in the Senate (where there were only 12 of the 14 votes necessary to consider that option) and that the Governor's bill was not going to pass the House. Because the House could not muster the votes to pass any of the pending bills and because it was now time to do something, key leaders proposed a compromise that would contain those parts of the Governor's bill that the Legislature could agree were urgent (e.g., creation of non-subsistence use areas, closing perceived loopholes in customary trade of subsistence products, etc.). House members who opposed enactment of the administration's whole new eligibility system settled for a strategy of giving the Governor certain items from his bill in return for rejection of its most important provisions.

The next two days saw the administration negotiating hard for everything it could salvage and a comic interlude involving legislative screaming matches, the abrupt adjournment and immediate reconvening of the House, a brief sit-in by some representatives in the Speaker's office, and the departure of others from Juneau despite unsuccessful attempts by the State Troopers to stop them. $y Sunday, June 21, the task of stitching together a final

compromise bill was handed to a six-member free conference committee.'

On Monday, June 22, both houses adopted Conference Committee Substitute for House Bill 601 and adjourned. Despite the fact that the administration had been given certain pieces that it deemed crucial, it could not mask its disappointment over the defeat of its bill -which meant the derailment of its strategy to amend ANILCA. The most important items the Governor got were:

In addition, the Legislature included a three-year "sunset" provision under which certain portions of the 1992 statute automatically disappear on October 1, 1995: the definition of "customary and traditional," the definition of "customary trade," and the procedure by which the subsistence preference is applied by the Boards. It also authorized a thorough review of the statute's regulations, with recommendations for changes in the statute by a representative group to be convened by the Governor prior to September 1, 1994.

NOTE: The 1992 special session's decision to allow regulatory creation of non-subsistence use areas occurred in the context of a fierce legal debate over their constitutionality. During committee hearings, one attorney after another testified as to whether this provision would violate the McDowell prohibition against denying Alaskan residents equal access to common use resources on the basis of residency. The Nickel administration, speaking through its Department of Law, stated that the provision would satisfy the courts, while attorneys for the Alaska Federation of Natives predicted that it would be found unconstitutional. On October 26, 1993, State Superior Court Judge Dana Fabe, ruling in Kenaitze Indian Tribe v. State of Alaska, struck it down. The court's opinion was that

At this writing, the decision is on appeal by the state to the Alaska Supreme Court, and the appellate ruling is not expected for several months. But if the Superior Court is upheld, the state government will find itself right back in the nightmarish consequences of its "all Alaskans" subsistence preference.

G. Litigation

In some ways, the 1992 special session was a reverse image of that which had taken place two years earlier. Whereas pro-subsistence forces had narrowly failed to adopt a constitutional amendment in 1990, this time it was anti-ANILCA legislation that had been stopped. After 2-1/2 years of maneuvering, the state administration's intention to get rid of the rural preference and the Native community's determination to defend it remained in gridlock. That is where the issue stands as of this writing. Since June 22, 1992, there has been no state legislative action on subsistence. Instead, the battle over the preference has moved to another arena: the courts. What has become clear in the past 22 months is that the state's political resolution of the ANILCA impasse will occur only when every judicial hope of avoiding it has been exhausted - if, in fact; it is going to happen at all. Three cases, among many, articulate the legal confrontation:

1. McDowell v. United States: The Constitutional Challenge to AIVILCA

In the midst of the first special legislative session on subsistence, several of the individuals and organizations that had succeeded in excising the rural preference from state law (in McDowell v.-State of Alaska) turned their attention to its removal from the federal statute. On June 22, 1990, they brought suit (commonly referred to as McDowell II) in U.S. District Court, seeking to have Title VIII of ANILCA struck down for violating the U.S. Constitution. Among other legal issues raised, plaintiffs claimed:

On October 6, 1992, the District Court (Judge H. Russel Holland) upheld Title VIII, ruling against plaintiffs on every claim. It found that Congress not only has the power to enact a law asserting federal jurisdiction- over hunting and fishing on federal lands in Alaska, but that the way it did so in ANILCA was not arbitrary or capricious and did not violate Fifth Amendment guarantees. It further found that ANILCA's terms are clear and understandable. The court dismissed plaintiffs' claims on the Statehood Act, the "equal footing" doctrine and the Eleventh Amendment, for lack of standing (i.e., because such, claims could only be brought by the State of Alaska, not by private parties, and because the

state had chosen to steer clear of this suit). Surprisingly, the court then went on to rule on the merits of such claims, if they had been properly brought, finding against them. The decision was a complete victory for the defendant United States, for the defendant intervenors Alaska Federation of Natives and Kenaitze Indian Tribe, and more generally for subsistence interests throughout Alaska.⁵²

As of this writing, the McDowell B plaintiffs have appealed the District Court's decision to the Ninth Circuit, an action scheduled for oral argument on June 9, 1994, with a written decision coming thereafter. Plaintiffs clearly have an uphill battle in their appeal, in light of the District Court's unequivocal rejection of their position. At whatever point the judicial process is concluded (at the Appeals Court or even the U.S. Supreme Court), it is likely that Title VIII of ANILCA is here to stay.

2. State of Alaska v. Morry: Diverging Regulatory Systems

This important state case is an example of how the gap between federal and state subsistence regulations has been steadily widening since McDowell I. In 1983, after having been arrested by state officials for illegally taking a grizzly bear, Riley T. Morry, an Inupiat hunter and resident of the Native village of Anaktuvuk Pass, sued the state, claiming that the regulations under which he had been charged were procedurally invalid.⁵³ More importantly, he made three additional claims with broader policy implications. The first (added to his case following the 1989 McDowell I decision) was that, contrary to interpretations of the Boards of Fisheries and Game, all Alaskans were not eligible for subsistence.. The second was that state regulations must be written specifically to fit ANILCA's management standard (i.e., to have the "least adverse impact" on customary and traditional uses of fish stocks and game populations). The third was that state regulations must broadly protect the "customary-and traditional" character of subsistence hunting and fishing.

The plaintiff won on all three policy claims in Superior Court, and the state appealed. On July 10, 1992, the Alaska Supreme Court reversed. Although it found for Morry on the procedural invalidity of the provision under which he had been charged, it ruled against him on the larger issues of regulatory procedure:

What Morry shows is that, although subsistence advocates had labored to achieve a judicial interpretation of state regulations that used the concepts and standards of federal law, the effort had not succeeded. State court constructions of state subsistence statutes are now irreconcilably different from federal court interpretations of ANILCA. The reason for this is not that the Alaska judiciary, whatever the predilections of its individual judges, is more biased against subsistence than are the policy branches of state government. Rather, it reflects the fact that the whole structure of state law, regulation and judicial interpretation

has been moving away from federal law for years. It may be one more sign that the dual management impasse, whatever form it takes, could be with us for some time - and that, even if it can be formally resolved, the underlying clash of legal ideologies is probably permanent and irreconcilable. Hence, the even greater need, from the viewpoint of subsistence interests, for federal oversight and intervention.

3. Katie John, et al. v. United States and State of Alaska v. Babbitt: The Nature and

Extent of ANILCA Jurisdiction

After the state government failed to resolve its non-compliance with ANILCA during the first special session in 1990, the management regulations published by the Federal Subsistence Board purposely excluded marine and navigable waters from federal jurisdiction, leaving almost all fish stocks without effective subsistence protections. The initial response of the Native community was persistent public comment and written testimony, calling attention to the fact that Secretary Lujan's interpretation violated both the language of the federal statute and the clear intent of Congress, as demonstrated by legislative history. Responding to pressures from sport and commercial interests, wishing to avoid the expensive task of fisheries management, and assuming that the state would soon come back into compliance by legislative action, the federal agencies refused to expand the jurisdictional scope of their regulations. That left Natives with no alternative but to bring suit in federal court.

The lead case on navigable waters, filed in U.S. District Court (Anchorage) on December S, 1990, was Katie John, et al. v. United States.⁵⁴ Brought by two elderly Athabascan women, Katie John and Doris Charles, and by the Village Council of Mentasta, the suit was soon joined by amici and intervenors, including the Alaska Federation of Natives. Claiming that ANILCA's term "public lands" included marine and navigable waters, the complaint sought a judicial order requiring the secretaries to set up a subsistence salmon fishery at Batzulnetas on the Copper River, a customary and traditional location of subsistence fishing by local Native residents. But the legal implications were statewide: if ANILCA mandated such federal action at Batzulnetas, it did the same throughout the bush, and that would require the publication of new regulations expanding federal jurisdiction to all waters. The State of Alaska quickly joined the United States in opposition.

Inauguration of the Clinton administration brought to office a new Secretary of the Interior, Bruce Babbitt, in early 1993. On July 15 of that year, the Alaska Federation of Natives, joined by other Native organizations, communities and individuals, submitted an administrative petition to the cognizant federal agencies, requesting that they take the initiative to rewrite the Federal Subsistence Board's regulations without waiting for the court's expected order ⁵⁵ Despite the fact that the federal government does not want the task and the federal budget can ill afford it, public responses from Secretary Babbitt have recognized his obligation, absent a state solution, to implement a step-by-step federal takeover of subsistence fisheries in Alaska.

On January 14, 1994, the District Court finally issued a preliminary written ruling m Katie John, finding for plaintiffs and scheduling final oral arguments six weeks later. However, the anticipated judicial victory for subsistence interests was tempered by the possible

outcome of a related case which the District Court had consolidated with Katie John. In response to the initial regulations for federal management and to the filing of Katie John in late 1990, the Nickel administration had counter-sued in State of Alaska v. Babbitt ,⁵⁶ claiming not only that the federal government does not have the authority to regulate subsistence in marine and navigable waters, but that ANILCA accords it no power of direct subsistence management on any federal lands or waters of Alaska. The state contended that, whether or not it has a complying law of general applicability on the books, regulatory power over fish and game always rests with the Alaska Boards of Fisheries and Game, subject only to relief through the federal courts and to the recognized power of the federal secretaries to close the federal domain to non-subsistence uses. Its theory acknowledged that the ANILCA preference applies to federal public lands, however the latter term might be defined in Katie John. But since only the state Boards may regulate, and because they are precluded by McDowell from implementing a rural preference, any aggrieved rural resident who has been denied the protections of the federal law by state authorities would have to sue for a federal court order directing the Boards to rewrite their offending regulations in conformity with ANILCA. Whether such a judicial preemption of the Alaska Constitution would violate the Tenth Amendment to the U.S. Constitution (which generally prohibits Congress from requiring a state to implement a federal regulatory program against its will) lay at the heart of the legal argument.

One thing was clear, however. If the state's argument in State of Alaska v. Babbitt prevailed, the Federal Subsistence Board would all but disappear, becoming little more than a secretarial oversight mechanism that receives information from regional advisory councils and reports to Congress on implementation of Title VIII. The central arena of subsistence management would move to the courts - with their slow, expensive procedures of trial and appeal on dozens of separate regulations adopted by state entities that have neither the political inclination nor the constitutional authority to implement ANILCA. A second arena would be the process of administrative closures, which would itself generate judicial challenges from the state. Whatever the legal merits of State v. Babbitt, the practical situation that would flow from a state victory underlined the Nickel administration's determination to make subsistence a judicial war of attrition.

The combination of the "where" issue in Katie John and the "who" issue in State v. Babbitt will likely play a critical role in the resolution of the larger federal-state impasse. During any period of continuing dual management, subsistence interests have no choice but to pursue the maximum geographical, extent of federal jurisdiction, since only federal law provides any protection of the villages. The initial building block in constructing such a maximized jurisdiction is waters - because of the central role of fish in the rural subsistence diet. Thereafter, the effort is likely to involve expansion of federal authority (through congressional, administrative and/or judicial action) over some or ;ill conveyed ANCSA fee lands and over-selected but unconveyed state and Native lands, both of which currently remain under state jurisdiction. Maximization is also likely to entail the gradual extension of federal regulatory "reach" beyond the widest legal definition of public lands (e.g., in those cases where the taking of highly mobile fish stocks and game populations, when they are temporarily located off public lands, affects their availability for subsistence uses when they return to public lands).

But beyond the need for interim subsistence protections, maximum federal jurisdiction increases political leverage to end the gridlock. The only power likely to persuade the state government to resolve the ANILCA impasse through a constitutional amendment is the full force of federal intervention in fish and game management. If and when the state

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finally accepts the need for such action, it will do so only in its own interest, not out of concern for Native cultures or village economies. The present administration and legislature are likely to produce a 2/3 vote of both houses only when all perceived alternatives have been foreclosed by judicial order and the full administrative power of the United States has begun to bite down hard.

On March 30, 1994, after more than three years of judicial wrangling, Katie John, et al. v. United States and State of Alaska v. Babbitt were decided in favor of subsistence users by the U.S. District Court. Judge Holland found that ANILCA's rural preference applies to all marine and navigable waters (as part of the statute's definition of "public lands") and that the federal agencies have the authority for direct regulation of subsistence hunting and fishing on all such lands and waters in Alaska.⁵⁷ The judge stayed the effect of his own decision for 60 days to give parties the opportunity to file appeals, which will further stay the District Court's order until the appellate process is completed. The State of Alaska has said that it will appeal to the Ninth Circuit and beyond and that it expects to prevail.

Whether this huge loss of state control in the lower court - when combined with impending regulatory tangles over the "all Alaskans" preference on the Kenai Peninsula in the summer of 1994 - will push the administration and the Legislature toward resolution of the ANILCA impasse remains to be seen, as of this writing. All that can be said with

certainty in the spring of 1994 is that state sovereignty is beginning to hemorrhage, user group conflicts are steadily worsening, electoral politics are heating up, and the federal state gridlock remains right where it has been for four and a half years.

H. Additional Management Concerns

In addition to dealing with the continuing federal-state impasse, subsistence interests must pursue arrangements that ensure the full participation of local people in regulatory decisions and day-to-day agency operations. Practically, such opportunities now exist only on the federal side of dual management. Below are the two most important examples:

1. Cooperative Management and Co-management

Section 809 of ANILCA authorizes the secretaries to enter into cooperative management agreements and contracts with local communities and organizations to carry out the purposes of Title VIII. Many operational functions usually performed by agency employees can be delegated to, and purchased from, the very people who have the greatest stake in the success of subsistence management. The effort to make local residents an integral part of the system provides knowledge that only they possess, as well as a cultural authority at the village level that no amount of training or money can produce in bureaucrats. Moreover, it encourages local responsibility for the arrangements in place and reduces the adversarial

nature of relationships between agency personnel and subsistence users.

The process of negotiating and implementing these contracted roles has only begun, due largely to the resistance of the former federal administration. At this writing, three contracts have been executed between the Interior Department and Native regional organizations, while others are in negotiation. The long-term success of the effort will be measured not so much by the number and amounts of the contracts, as by the qualitative expansion of the powers delegated under them. The Native community's goal is to enlarge such contracted responsibilities to the point where ANILCA's "cooperative management" evolves into a true "co-management" arrangement between the United States and local residents.

2. Regional Advisory Councils

Section 805 of ANILCA mandates that the secretaries establish regional advisory councils, composed of local subsistence users, with the authority to devise and submit to the Federal Subsistence Board recommendations on proposed regulations. The recommendations of the councils are to be followed unless they violate principles of fish and wildlife conservation, are not supported by substantial evidence, or would be detrimental to subsistence uses. Federal agencies are to provide the councils with professional staff support and timely distribution of relevant information; and each of the councils in turn is obligated to submit to the secretaries a comprehensive annual report on the status of subsistence uses and regulations within its respective region.

The new federal administration, under secretaries Babbitt and Espy, recently formed ten regional councils throughout Alaska. Each has held its initial meetings and elected its officers, and the real work of regulatory analysis and recommendations has now begun. While local hopes are high, the question of whether regional councils will work effectively - or turn out to be a token gesture of public relations - remains to be answered. At this writing, key operational issues include the adequacy of funding, staffing, data and other support, as well as the future impact of council recommendations on the regulatory decisions of the Federal Subsistence Board.

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III. Conclusions and Recommendations

The Joint Commission has reached the following conclusions and recommends the following actions regarding subsistence:

1. Subsistence is a Native issue- a critical part of the larger historical question about the status, rights and future survival of Alaska's aboriginal peoples. The economic and cultural survival of Native communities is the principal reason why Congress enacted its rural subsistence preference in 1980. By articulating the federal government's traditional obligation to protect indigenous citizens from the political and economic power of the nonNative majority, Title VIII of ANILCA constitutes a landmark of Indian law. Such congressional action was both constitutional and appropriate.

2. Subsistence should not be seen merely as an issue of fish and game management -because it is not principally about animals, their habitats, or their scientific management by public agencies. It is about human beings. In its distribution of limited resources among competing user groups, subsistence law is social policy on a grand scale. The way in which the current conflict over fish and game allocations is resolved will do more to influence the future economic and social condition of the rural areas of this state than any other issue addressed by the joint Commission.

3. The economies of most Alaska Native villages remain underdeveloped, artificial dependencies of government, providing few jobs and very little cash. Without a secure protein base of wild, renewable resources, the poorest and most traditional villages are doomed to economic erosion and disappearance. Hunting, fishing and gathering also provide Native people with productive labor, personal self-esteem and family relationships. More than an economic system, it is the social foundation of life. If the subsistence-based economies and cultures of village Alaska collapse, the resulting social dislocation and out-migration will cost Alaskans dearly. Whether aware of it or not, we all have a vested interest in the success of the bush.

4. Subsistence hunting and fishing are now under concerted political assault by powerful, organized interests which compete with villages for the limited public resources that governments allocate. In the foreseeable future, Alaska Natives will remain a permanent minority in a state dominated by the political and economic power of a~ non-Native, urban majority. Demographic pressures and political competition for natural resources will continue and increase. The fight over subsistence comes in cycles of legislative, regulatory and judicial activity, alternately surging and receding over the years. But it never goes away - because competing human user groups are a permanent fact of life in Alaska.

5. The State of Alaska will not provide adequate protections of subsistence against the demands of sport, commercial and other uses of fish and game - a fact amply demonstrated in the last four years. Two governors, four regular legislative sessions, two special sessions, and a series of ad hoc advisory groups have sought to resolve the federal-state impasse. The result is dual management. Part of the blame for this gridlock can be fixed on individual officeholders and their parties, but the larger fact is that the interests and attitudes of non-subsistence user groups pervade the executive branch, the Legislature, the state courts and the Boards of Fisheries and Game. The only bulwark protecting Alaska Natives from the power of an adversarial state government is federal law.

6: The protection of the individual and the minority against the power of the majority is an axiom of democratic systems. There is nothing wrong with a constitutionally valid state or federal law that provides minority guarantees. If the people of Alaska feel that maintaining traditional subsistence cultures is fundamental to the life of their state, they have every right to include protections, thereof in organic law. That is one of the things that constitutions are for. But if the electorate is denied the opportunity to exercise that choice, Alaska Natives have no alternative but to seek such protections from the United States.

7. ANILCA's rural preference is flawed in concept as well as result, failing to protect, the legitimate subsistence needs and practices of many Native people who, through no choice of their own, reside in areas not defined as rural. This is a classic example of how non-Native law can, by its arbitrary categories, disrupt Native life. Congress should conduct on-going oversight of Title VIII implementation by the state government and the cognizant federal agencies. As part of this analysis, Congress should consider replacing the present rural preference with the protections of a Native or "Native plus" preference.

8. Despite the inherent weaknesses of the rural preference, the subsistence protections of current federal law remain superior to the present state system, which contains no effective preference for any defined group of subsistence users and is now attempting to prohibit all subsistence uses in large areas of the state. While Natives urge improvements in the federal statute, they know that the ANILCA's rural preference must be defended against judicial and congressional challenges from anti-subsistence interests. At the very least, Congress must maintain the existing rural preference in Title VIII. It is the minimum acceptable level of subsistence protection in federal law, and Congress should resist all pressures from private interests and/or the State of Alaska to weaken or eliminate the current protections.

9. During any length of dual management, the subsistence interests of Native people will be best protected by maximum extension of the geographical scope of ANILCA jurisdiction. This should include not only all marine and navigable waters (by court order and/or administrative regulation), but ANCSA fee lands and selected but unconveyed state and Native lands (by congressional and/or administrative action) as well. In addition, the United States should be willing to extend the "reach" of its regulatory decisions beyond the legal definition of public lands.

10. Barring unlikely events in the Ninth Circuit, the McDowell II constitutional challenge will fail. This means that anti-subsistence interests, determined to get rid of the preference in federal law, will have only one place left to go: to Congress. As federal jurisdiction gradually broadens, political pressure on the state government to resolve the impasse will grow. This could result in a state constitutional amendment and a statute complying with federal law, in which case the present gridlock would end and Alaskan law would return to its pre-McDowell status. But, depending on the intentions of future administrations and legislatures, it could also produce a full-fledged state push to persuade the Congress to alter or remove Title VIII of ANILCA. Those committees with ANILCA jurisdiction should be aware of, and prepared for, this scenario.

11. If the federal courts should decide that the text and legislative history of ANILCA fail to authorize direct secretarial management of subsistence hunting and fishing on federal public lands and waters during any period of state non-compliance, Congress should amend Title VIII of ANILCA to provide for such authority in specific, unambiguous terms.

12. Cognizant federal agencies should fully implement existing provisions of law requiring the operation of regional subsistence advisory councils and the options of contracting with communities and regional entities for co-management agreements. The involvement, responsibility and power of local people should become permanent principles of the system.

13. 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 the authority to manage fish and game on all lands. This constitutional language should be broad enough to permit state compliance with a congressionally improved ANILCA preference. (See recommendation 7 above.) In addition, a constitutional amendment should be accompanied by state legislative actions mandating local and regional co-management agreements, effective regional advisory councils, and a top-to-bottom reform of the state's fish and game regulatory system. The design of such a package should involve Native subsistence users working cooperatively with state and federal authorities.

14. If all attempts to persuade the state government to return to a unitary system of subsistence regulation fail, Congress should enact legislation, based on the supremacy clause and on its plenary authority to regulate Indian affairs, that imposes a federal subsistence preference (at least rural, but preferably Native or "Native plus") on all lands and waters of Alaska, offering the state the option of implementing such a system under federal oversight or having the federal agencies administer it directly.