Alaska National Interest Lands Conservation Act Compliance and Nonsubsistence Areas: How Can Alaska Thaw Out Rural and Alaska Native Subsistence Rights?

• Publication year: 2013

§ 30 Alaska L. Rev. 71. ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT COMPLIANCE AND NONSUBSISTENCE AREAS: HOW CAN ALASKA THAW OUT RURAL AND ALASKA NATIVE SUBSISTENCE RIGHTS?

Alaska Law Review
Volume 30, No. 1, June 2013
Cited: 30 Alaska L. Rev. 71

ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT COMPLIANCE and NONSUBSISTENCE AREAS: HOW CAN ALASKA THAW OUT RURAL and ALASKA NATIVE SUBSISTENCE RIGHTS?

Miranda Strong ^[*]

ABSTRACT

The Alaska Constitution prevents the Alaska National Interest Lands Conservation Act's (ANILCA) ^[1] rural subsistence ^[2] priority from being enforced. ^[3] The Federal Government currently manages subsistence on federal lands in Alaska and Alaska can only resume management if it becomes ANILCA compliant. The current federal management system does not sufficiently protect rural and Alaska Natives' subsistence rights. Alaska's Legislature must overcome the rural-urban divide to amend its constitution to become ANILCA compliant again by providing a modified rural priority that includes urban ^[4] Alaska Natives. The Alaska Legislature should repeal the nonsubsistence zones statute because it denies federally defined rural areas the state's subsistence priority.

INTRODUCTION

Though caribou outnumber people in Alaska, ^[5] competition is still fierce for Alaska's wild game and fish. The Alaska Department of Fish and Game (ADFG) may constitutionally cap fish and wildlife harvests to protect fish and wildlife populations. ^[6] After the ADFG sets these conservation limits, only a fixed amount of "harvestable surplus of a fish or game population" is available for subsistence and sport harvests. ^[7] Subsistence users compete with powerful commercial-fishing and sport-hunting-and-fishing interests for this "harvestable surplus" of fish and wildlife. ^[8]

Conflicts over fish and wildlife emerged in western Alaska where villagers and commercial boats fished for the same salmon and in the Nelchina Basin where hunters' demand for caribou exceeded supply. ^[9] A rural priority would increase access to subsistence foods through measures like longer seasons and increased limits. ^[10] In contrast, the State of Alaska's current subsistence priority only provides a "reasonable opportunity" for subsistence use before sport hunters and fishers may harvest the available fish and wildlife. ^[11] With no rural priority in place, a weak subsistence priority, and nonsubsistence zones barring subsistence access, rural Alaskans face diminished subsistence access while commercial and sport interests continue to harvest fish and wildlife in nonsubsistence zones. ^[12]

Congress determined that subsistence is essential for rural Alaskans - specifically Alaska Natives - to maintain physical, economic, traditional, and cultural existence. ^[13] Congress has noted that there is no substitute for subsistence foods in rural Alaska. ^[14] Food costs twenty-five percent more in rural communities than the already-expensive food in Anchorage, and the average rural Alaskan's income is much lower than that of the average Anchorage resident. ^[15] Further, more than serving as a means for survival, Alaska Natives and rural Alaskans traditionally view subsistence as a "collective right based on sharing." ^[16] Thus, protecting subsistence traditions protects Alaska Native culture and rural Alaskans' social existence. ^[17]

The Alaska Legislature should pass a bill putting a modified-rural-priority constitutional amendment before voters and it should repeal the nonsubsistence zones section of the subsistence statute. Only through such measures can Alaska comply with federal law and preserve subsistence traditions.

I. THE ALASKA CONSTITUTION AND ANILCA CONFLICT

A. ANILCA Requires a Rural Priority

The Alaska National Interest Lands Conservation Act's (ANILCA) ^[18] preserves Alaskan wilderness for future generations by adding land to the national conservation systems. ^[19] ANILCA gives rural Alaskans an exclusive right to subsistence hunt and fish on federal lands. ^[20] Alaska should administer and enforce ANILCA's exclusive-rural-subsistence priority on federal land and create and administer a modified-rural-subsistence priority on private and state land. ^[21] A modified-rural-priority is necessary to ensure rural Alaskans and Alaska Natives have the most subsistence access while permitting other Alaskans to participate in subsistence harvesting. ^[22]

In addition to increasing the national conservation systems' acreage, ANILCA regulates subsistence hunting and fishing on federal lands in Alaska. ^[23] These federal lands compose almost sixty-eight percent of Alaska. ^[24] State law regulates subsistence on state and private lands-including land owned by Native corporations- composing the remaining thirty-two percent of land in Alaska. ^[25] There is a rural subsistence priority on federal lands, but not on private lands. ^[26]

In drafting ANILCA, Congress found subsistence essential to rural Alaskans' and Alaska Natives' physical, economic, traditional, and cultural/social existence. ^[27] The Department of the Interior's regulations interpreting ANILCA only allow rural Alaskans to subsistence hunt and fish on federal lands. ^[28] ANILCA also prioritizes subsistence above other uses. ^[29] Further, ANILCA requires that if subsistence must be restricted for conservation, the rural priority should be administered by applying "Tier II" criteria: "customary and direct dependence, local residency, and availability of alternative resources." ^[30]

1. Origin of the Rural Priority

In the past, the Federal Government settled battles over resources in favor of rural Alaskans. ^[31] For instance, early statutes granted Alaska Natives and food-needy travelers prioritized access to game. ^[32] One fishing statute allowed all Alaska Natives and the non-Alaska Native residents who lived within fifty miles of certain rivers to fish out of season using different methods. ^[33] In addition, the Endangered Species Act exempts the subsistence uses of Alaska Natives and non-Alaska Native permanent residents of Alaska Native villages. ^[34]

The Alaska Native Claims Settlement Act ("ANCSA") ^[35] influenced ANILCA's attention to a rural priority. ^[36] Congress extinguished aboriginal hunting and fishing rights in ANCSA. ^[37] Paradoxically, Congress expected the Secretary of the Interior and the State to protect Alaska Native subsistence uses by "closing appropriate lands to entry by non-residents when the subsistence resources of [those] lands are in short supply..." ^[38] and "excercis[ing] [the Secretary's] existing withdrawal authority." ^[39] Congress could not agree on how to protect Alaska Natives' subsistence rights, but the ANCSA Conference Committee expected that the Secretary of the interior and Alaska would "take any action necessary to protect the subsistence needs of the Natives." ^[40] Thus, the statute itself did nothing to protect Alaska Native subsistence hunting and fishing. ^[41]

Despite Congress' expectation that the State and the Secretary of the interior would intercede, neither the State nor the Federal Government adequately protected Alaska Natives' fishing and hunting rights. ^[42] So Congress decided to intervene through ANILCA: ANILCA's rural priority grew out of Congress's attempt to protect Alaska Natives' subsistence practices. ^[43] The initial bill for ANILCA suggested an Alaska Native subsistence priority to protect Alaska Natives' subsistence access. ^[44] The State of Alaska balked at the proposed Alaska Native priority and successfully appealed to Congress to establish a rural priority ^[45] instead. ^[46] The rural priority includes rural non-Alaska Natives, but it was intended to protect Alaska Natives' subsistence use ^[47] and attempted to replace Alaska Natives' aboriginal hunting and fishing rights. ^[48]

2. The Rural Priority Should Be Liberally Interpreted Under the Indian Law Canons

Indian Law canons should apply to interpreting ANILCA's Title VIII because this legislation protects Alaska Native subsistence rights. ^[49] While ANILCA is not entirely Indian legislation, Title VIII references Indian legislation because it derives from ANCSA, which was Indian legislation. ^[50] The rural priority should be liberally interpreted when administering the subsistence priority. If ambiguities exist, they should be resolved in favor of Alaska Natives. ^[51]

However, the Ninth Circuit held that ANILCA's Title VIII is not Indian legislation and the Ninth Circuit did not resolve the vagueness in Section 810 of ANILCA in favor of Alaska Natives. ^[52] Similarly, the Supreme Court refused to apply the Indian law canon resolving vagueness in favor of Alaska Natives in a decision, but only because the Court did not believe there was any vagueness to resolve in that matter. ^[53]

B. The Alaska Constitution's Equal Access Clauses Prohibit a Rural Priority

The Alaska Constitution contains three equal access provisions that conflict with a rural priority. ^[54] These three clauses are the no-exclusive- right-of-fishery, common-use, and uniform-application clauses. ^[55] The Alaska Supreme Court held that the no-exclusive-right-of-fishery clause's prohibition of privileged access to fisheries ^[56] expressly conflicts with ANILCA's rural priority. ^[57] Furthermore, the Court held that the common-use clause's reservation of fish and wildlife to Alaskans for common use, ^[58] and the uniform-application clause's...