Protection of Alaska Native Customary and Traditional Hunting and Fishing Rights Through Title Viii of Anilca

• Publication year: 2016

§ 33 Alaska L. Rev. 315. PROTECTION OF ALASKA NATIVE CUSTOMARY AND TRADITIONAL HUNTING AND FISHING RIGHTS THROUGH TITLE VIII OF ANILCA

Alaska Law Review
Volume 33, No. 2, December 2016
Cited: 33 Alaska L. Rev. 315

PROTECTION OF ALASKA NATIVE CUSTOMARY AND TRADITIONAL HUNTING AND FISHING RIGHTS THROUGH TITLE VIII OF ANILCA

JOHN SKY STARKEY ^[*]

This paper analyzes the degree to which the administration of Title VIII of the Alaska National Interest Lands Conservation Act ^[1] (ANILCA) of 1980 protects customary and traditional hunting and fishing by Alaska Natives and their tribal communities. A recent Memorandum of Understanding ^[2] (MOU) entered into by the United States Fish and Wildlife Service (USFWS) and the Kuskokwim Inter-Tribal Fish Commission (KRITFC) for comanagement of subsistence fisheries will be used as a means to analyze the issue. This paper concludes with suggestions for improving the administration of Title VIII to better secure Alaska Native and Tribal rights for self-determination.

BACKDROP

Professor Robert T. Anderson has written a thorough analysis of the history and application of federal law to Alaska Native hunting and fishing rights, including ANILCA, and readers of this paper are encouraged to read Professor Anderson's law review article for an in depth understanding of these issues. ^[3] Title VIII is administered largely through authority delegated by the Secretaries of Interior and Agriculture to the Federal Subsistence Board (FSB). ^[4] The Office of Subsistence Management (OSM) performs the majority of administrative support for the FSB, ^[5] including administration of the regional advisory councils (RACs). Section 805 of ANILCA mandates the establishment of RACs to provide a meaningful forum for the involvement of local residents knowledgeable about subsistence uses in the region. ^[6]

RACs form recommendations regarding the takings of subsistence resources on the public lands that are to be adopted by the FSB, unless a recommendation is not supported by substantial evidence, is detrimental to subsistence uses, or violates recognized principles of management. ^[7] Two RACs share jurisdiction over the Kuskokwim River drainage: the Yukon-Kuskokwim RAC (Y-K RAC) and the Western Interior RAC (WIRAC). ^[8] The Kuskokwim River is second largest in Alaska, only surpassed by the Yukon. Thirty-three Native Villages, all governed by federally recognized tribes, are located in the drainage. Salmon is an essential cultural and nutritional resource for these tribes. Chinook salmon are the most highly valued because they are the largest and highest in fat content, and because they are the first salmon to return in the spring after the ice recedes. Their early arrival coincides with the driest weather and thus the best time for preserving salmon. ^[9] Native fish camps are marked with large covered drying racks filled with strips of Chinook salmon over a cold alder or cottonwood smoke. The finished product is highly valued and shared and traded with other Native Villages throughout the state. ^[10]

Chinook are far more than a vital source of nutrition. They play an essential role in the traditional, cultural, and spiritual way of life for the tribal communities in the drainage. ^[11] Unfortunately, Title VIII uses the term "subsistence" to protect Alaska Native hunting and fishing rights. This is not a term that is used by Alaska Natives. Numerous Native leaders have spoken at annual and special conventions of the Alaska Federation of Natives rejecting "subsistence" as a term that minimizes a complex and holistic way of interacting with their traditional lands, waters and the plants and animals that share this territory. ^[12] "Subsistence" lends itself to narrow interpretations associated with nutritional survival, a form of welfare necessary only for those who continue to reside in remote areas where access to grocery stores and jobs is limited. ^[13] In order to protect Native hunting and fishing rights, Title VIII must protect the full scope of opportunity Congress described as the policy of the law: to provide for the continuation of "Native physical, economic, traditional and cultural existence." ^[14] This paper analyzes the success of the Federal Subsistence Management Program in achieving this goal.

The first weakness in the federal management regime is the failure to authorize tribal customs and traditions to govern subsistence hunting and fishing by tribal members. Regulation and management of subsistence takings and resources are nearly identical to those governing sport hunting in Alaska. ^[15]

Title VIII defines "subsistence uses" as "customary and traditional uses." ^[16] As Alaska's legislature acknowledges, "customary and traditional uses . . . originated with Alaska Natives and are culturally, socially, spiritually and nutritionally important." ^[17] Customary and traditional uses are defined and applied by the FSB pursuant to eight criteria. ^[18] The criteria are generally applied only to determine if a Native Village or rural community has customary and traditional uses of an area for a wildlife population or fish stock. ^[19] A positive customary and traditional use determination established eligibility for the opportunity and priority for subsistence uses mandated by Title VIII. ^[20]

The federal subsistence management program largely fails, however, to incorporate Alaska Native traditional knowledge, management practices, and customs into the implementation and regulation of the subsistence hunting.. ^[21] For example, Alaska tribes must establish their right to subsistence hunting for moose within their traditional hunting grounds based on their customary and traditional practices, including "a pattern of use . . . which provides substantial cultural, economic, social and nutritional elements to the community." ^[22] Yet, after a tribe has demonstrated the cultural basis for hunting moose, the actual opportunity provided for hunting has little if anything to do with culture, custom, tradition or tribal management. This is a major problem for achieving the Title VIII's goal of providing an opportunity that will allow for the continuation of "Native physical, economic, traditional and cultural existence." ^[23]

Tribes know what is needed to sustain their way of life. Other federally protected hunting rights for Alaska Natives ensure a tribal role in management. ^[24] The FSB could better fulfill the intent of Title VIII by giving a broader interpretation and application to subsistence uses as "customary and traditional uses" and acknowledging that tribes should be incorporated to the fullest extent in implementing subsistence hunting and fishing for their members.

A second and related weakness of Title VIII, one that can only be addressed through a change in federal law, is the limitation of protection for customary and traditional uses to "rural" residents of Alaska. ^[25] The foundation for the "rural" eligibility standard is similar to using the terms "subsistence" and "food security," through which essential nutritional needs become the narrow focus. ^[26] The subsistence priority can be, and often is, justified on the basis of the cost of store-bought food in remote Alaskan communities. ^[27] If there is a store, and if it has food available for sale, the cost is above the means of many rural residents. This justification for a rural priority falls far short, however, in describing the importance of Alaska Native and Tribal hunting and fishing to their way of being. Under a rural priority, Alaska Natives are forced to choose between the opportunity to continue their connection to their tribes and traditional and cultural practices, or the opportunity to succeed in other ways.

A young Native person, for example, raised in a Native Village and who wants to work as a fish biologist, lawyer or doctor, will, after attending college, likely need to spend some time in an urban area to gain expertise and advance in his or her career, even if the end goal is to return to the Village and work for the tribe. The individual may return to his or her family and Village every summer to go to fish camp, in the fall to hunt and berry pick, and go home for a potlatch or other traditional gatherings. He or she remains a Native person deeply connected to his or her tribe, Village, and traditional ways of life, but is not a rural resident. As such, the individual is not entitled to a subsistence priority to hunt, fish and gather on federal public lands with extended family who remain in the Village or with his or her tribe. No cultural, social, economic or nutritional justification exists to force a Native person into this kind of situation. Rather, this forced assimilation is contrary to the policy of self-determination that has been recognized by Congress and Presidents for decades. ^[28] Forced assimilation is also implicitly recognized in the United Nations Declaration on the Rights of Indigenous Peoples as a violation of their fundamental human rights as Indigenous Peoples. ^[29]

This paper will not delve any further into the failure of the rural priority to protect Native rights except for this observation: Many Alaska Natives and tribal representatives from the Yukon drainage were opposed to implementing the federal rural subsistence priority for the Chinook salmon fisheries on the Yukon River because they did not want their family members who had moved to non-rural areas of Alaska to be...