The Legal Protection of Subsistence: a Prerequisite of Food Security for the Inuit of Alaska(fn1000)

• Publication year: 2005

§ 22 Alaska L. Rev. 35. THE LEGAL PROTECTION OF SUBSISTENCE: A PREREQUISITE OF FOOD SECURITY FOR THE INUIT OF ALASKA(fn1000)

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 35

THE LEGAL PROTECTION OF SUBSISTENCE: A PREREQUISITE OF FOOD SECURITY FOR THE INUIT OF ALASKA ^[*]

Sophie Theriault, Ghislain Otis, Gerard Duhaime, and Christopher Furgal ^[**]

I. INTRODUCTION

II. THE ENDURING CONFLICTS OVER SUBSISTENCE IN ALASKA

A. Native Subsistence Rights from Statehood to ANILCA

B. The Enactment of the Alaska National Interest Lands Conservation Act and the Ensuing Subsistence Debate

III. SUBSISTENCE AS A CONDITION FOR INUIT FOOD SECURITY

A. The Significance of Country Food Gathered through Subsistence Activities in Alaskan Inuit Food Preferences and Diet

B. The Role of Country Food in the Promotion of Inuit Cultural Vitality

C. The Importance of Subsistence to the Food Economy of Alaska Inuit Communities

IV. PROTECTING SUBSISTENCE-BASED FOOD SECURITY: THE SHORTCOMINGS OF ALASKAN LAW

A. Legal Confusion Generated by Dual Land Management

B. Defective or Limited Subsistence Priority

C. The Challenge of Accommodating Inuit Culture in the Subsistence Regime

V. CONCLUSION

FOOTNOTES

For the last twenty-five years, the legal protection of subsistence in Alaska has given rise to legal and political controversies. Subsistence is closely related to the concept of "food security," as defined by the World Food Summit. The purpose of this Article is to highlight the need to recognize and critically examine the link between food security and the efficient legal protection of the traditional hunting, fishing, and gathering activities of the Inuit people of Alaska. The Article first describes the genesis and evolu-[*pg 36] tion of the subsistence debate in Alaska. It then attempts to demonstrate that the legal protection of subsistence is a prerequisite to Inuit food security for nutritional, cultural, and economic reasons. Finally, the Article identifies specific features of the Alaskan legal regime that threaten Inuit subsistence and food security.

I. INTRODUCTION

The concept of food security was put forth by the United Nations' Food and Agriculture Organization ("FAO") in 1974 in the aftermath of the food crisis that devastated a number of third world countries. ^[1] This concept was initially given a very narrow meaning, as it referred solely to the global availability of adequate food supplies necessary to meet the needs of a growing world population. ^[2] It has since evolved considerably, thanks to a more sophisticated understanding of the many factors and conditions that affect the capacity of individuals to obtain adequate and sufficient food. ^[3] Food security is now defined as the capacity of individuals to "have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life." ^[4] The purpose of this Article is to highlight the need to recognize and critically examine the link between the challenge of food security and the efficient legal protection [*pg 37] of the traditional hunting, fishing, and gathering activities of the Inuit people of Alaska. ^[5]

The Alaskan Inuit have been using their environment and its natural resources for nutritional, material, social, and ritual purposes since time immemorial. ^[6] Activities that revolve around the harvesting, transforming, sharing, and consuming of renewable resources of the land are frequently designated by the generic term "subsistence." ^[7] Subsistence still constitutes a central component of Alaskan Inuit culture, identity, and economy. ^[8] Indeed, for those Alaska Natives who engage in subsistence uses, "the very acts of hunting, fishing, and gathering, coupled with the seasonal cycle of these activities and the sharing and celebrations which accompany them are intricately woven into the fabric of their social, psychological, and religious life." ^[9]

In Alaska, the legal protection of subsistence has given rise to a controversy that occupies an increasingly important place in the state's political and judicial landscape. ^[10] The controversy pertains to the allocation of fish and game among different users and, in particular, the recognition of a priority for rural residents and Natives. ^[11] Alaska Natives demand better legal protection for their customary and traditional subsistence activities in the face of increasing competition for access to fish and game, intensifying exploitation of non-renewable resources, growing environmental pollution, and continuing animal rights activism. ^[12] On the other hand, recreational and commercial users of natural resources oppose any preferential access to fish and game and [*pg 38] claim their right to equality. ^[13] This conflict has resulted in heated political debates and numerous lawsuits over the last three decades. ^[14]

A substantial body of literature on the political and symbolic dimensions of the Alaska subsistence debate exists; however, other implications of the debate have not yet been explored, such as the relationship between subsistence and food security. This Article demonstrates that the ability of Alaskan Inuit to pursue their subsistence activities is closely linked to their food security. In other words, even if it is essential to ensure that the Inuit have access to healthy marketed foods, such as fruits, vegetables, whole grain cereals, and dairy products, protecting their subsistence harvesting of renewable natural resources is a fundamental requirement for their food security as well. The Article analyzes some of the effects of the subsistence debate and federal and state resource management regimes regarding Alaskan Inuit food security.

Part II describes briefly the genesis and the evolution of the subsistence debate in Alaska, and Part III attempts to demonstrate that the legal protection of subsistence is a prerequisite to Inuit food security for nutritional, cultural, and economic reasons. Part IV identifies specific features of the Alaska legal regime that threaten Inuit subsistence and food security.

II. THE ENDURING CONFLICTS OVER SUBSISTENCE IN ALASKA

Alaska Natives have been struggling for the recognition of their rights, including land, hunting, fishing, and gathering rights, since at least 1867 when the United States purchased Russian interests in the territory that later became the State of Alaska. ^[15] No treaty protecting Alaska Native rights has been reached with the United States. In fact, until 1971, when the Alaska Native Claims Settlement Act ("ANCSA") was passed, the very existence of Alaska Native rights remained uncertain. ^[16] Subsistence hunting and fishing rights were not comprehensively defined until the adoption of the 1980 Alaska National Interest Lands Conservation Act ("ANILCA"). ^[17]

[*pg 39]

A. Native Subsistence Rights from Statehood to ANILCA

When Alaska was admitted as a state in 1959, ^[18] the Alaska Statehood Act authorized the new-born state to select for development 103.35 million acres of "vacant, unappropriated, and unreserved" public lands of the United States, ^[19] representing about 28% of Alaska's total land base. ^[20] The Act also recognized the rights of Native peoples in the following terms:

As a compact with the United States said State and its people do agree and declare that they forever disclaim all right and title . . . to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives. ^[21]

However the Act did not define the title or rights that Natives might have, leaving this question unresolved. ^[22]

The State of Alaska and its Native peoples clashed when the state began to select lands and plan development projects that could interfere with subsistence activities. ^[23] Native peoples claimed that the lands selected by the state were subject to aboriginal title and thus were not "vacant, unappropriated and unreserved." ^[24] They also challenged the state's land selections before the federal Bureau of Land Management. ^[25] In 1966, in response to Native protests, U.S. Secretary of the Interior, Stewart Udall, halted state land selections until Native claims were settled. ^[26] The "land freeze" was made permanent in 1968. ^[27] However, the discovery of vast oil reserves at Prudhoe Bay in 1967 and 1968 prompted the settlement of Native land claims. ^[28]

[*pg 40]

To this end, Congress enacted ANCSA in 1971. ^[29] The Act extinguished "[a]ll aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist" ^[30] and all claims based on aboriginal rights and title. ^[31] In exchange, the Act provided that Native regional and village for-profit corporations would receive $962.5 million in compensation ^[32] and about forty-five million acres of land. ^[33] In extinguishing aboriginal rights, ANCSA did not provide for specific Native hunting, fishing, and gathering rights; however, the Conference Committee declared that it expected the State of Alaska and the Secretary of the Interior to take any measures necessary to further...