History of Subsistence Management in Alaska

History of Subsistence Management in Alaska

Since achieving statehood in 1959, Alaska’s legal framework for subsistence has been shaped by developments occurring at both the state and federal level, beginning with the passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971. ANCSA is one of the single largest claims settlements ever reached between the U.S. government and Indigenous Americans. Catalyzed in part by pressure placed on the federal government to address Alaska Native land claims following the discovery of the Prudhoe Bay Oil Field along Alaska’s North Slope, the 1971 Act formally extinguished all Alaska Native claims to ancestral lands and natural resources by allocating 44 million acres of land (approximately one-ninth of the state's land) and $963 million in compensation to 12 regional for-profit Alaska Native corporations and over 200 Native village corporations established under the Act.7

Doyon, Limited was incorporated in June 1972 as the land-owning corporation serving the Native peoples of the Interior region. The Native shareholders of Doyon received 12.5 million acres of the Alaskan Interior, making Doyon the largest private landowner in the state and one of the largest in the nation.8 At the time, the Tanana Chiefs Conference (TCC) had already formed a decade prior in June 1962 in response to the threat to Alaska Native land interests in the Interior region from federal encroachment.9 With Doyon established to hold title to the ANCSA lands and to receive and manage the settlement money, TCC became Doyon’s nonprofit counterpart and pivoted to administering social, education, and health services for Alaska Native people in the Interior region. TCC continues to serve the 42 Interior Alaska Native communities, 37 federally recognized tribes, and more than 10,000 Alaska Natives spread across the 235,000 square mile Interior region.

7 “About ANCSA.” ANCSA Regional Association, 2021. https://ancsaregional.com/about-ancsa/ 8 "Our Lands." Doyon, Limited, 2021. https://www.doyon.com/our-corporation/ourlands/alatna/. 9 "Our History." Tanana Chiefs Conference, 2021. https://www.tananachiefs.org/about/our-history/. In addition to extinguishing Native claims to ancestral lands, ANCSA also abrogated all hunting and fishing rights held by Alaska Natives. Up until this point, despite lacking formal subsistence rights or protections under state or federal laws, many Alaska Native communities continued to live off the land much as their ancestors had for generations—the extinguishing of native resource claims under ANCSA alone did little to change this. But as Alaska’s oil boom accelerated development in the 1970s, an influx of new transplants to the state placed increased pressure on Alaska’s fish and game. Recognizing the threat to subsistence resources from the growing number of commercial and sport users, the Alaska State Legislature passed a 1978 law establishing a priority for subsistence over all other fish and wildlife uses. The law defined subsistence as “the customary and traditional uses in Alaska of wild, renewable resources,” providing that in periods of scarcity "subsistence use shall be the priority use”.10 Importantly, the law failed to define “subsistence users,” drawing no distinction between rural and urban or native and non-native users.

The federal government stepped in to further enhance subsistence rights just two years later when Congress passed the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. ANILCA is best known for setting aside nearly 160 million acres of public lands in Alaska for national parks, forests, monuments, and wildlife refuges. A lesser-known function of the Act was to establish a subsistence priority for rural Alaskans, both Native and non-Native, over other consumptive uses. When fish and game populations were insufficient to sustain all uses, sport and commercial uses would be restricted under ANILCA Title VIII while subsistence hunters and fishers received priority. ANILCA provided for State management of subsistence activities on all Alaska lands contingent on the State enacting a subsistence priority law that

10 National Park Service. Alaska Subsistence: A National Park Service Management History, Chapter 4: The Alaska Lands Question, 1971-1980, 2003. http://npshistory.com/publications/alaska/subsistence/chap 4.htm.

would align with ANILCA within one year of the Act’s passage. The Alaska Department of Fish and Game (ADF&G) adopted a subsistence priority for rural users in 1981 per the ANILCA stipulation, and the State’s subsistence program was certified by the Interior Secretary in 1982.11

The preference for rural subsistence established by ANILCA and upheld by the ADF&G policy spawned an immediate backlash and series of legal challenges from non-native urban sport hunters and fishermen. In a 1985 Alaska Supreme Court case, the court overturned ADF&G’s rural subsistence preference on the grounds that the preference was not consistent with the Alaska Legislature's 1978 subsistence law.12 In order to keep the state’s subsistence management program in compliance with Title VIII of ANILCA and avoid a federal takeover of fish and wildlife management on public lands, the Alaska Legislature amended its subsistence statute in 1986 to embed the rural priority in law.13 Shortly after, Sam E. McDowell, an Anchorage businessman and sport-hunting advocate, filed a case against the 1986 law and its rural-preference provision arguing that it unfairly discriminated against urban residents and violated the common use clause of the State’s constitution. In its 1989 McDowell v. State ruling, the Alaska Supreme Court sided with McDowell and found the state's rural subsistence priority unconstitutional.14

The McDowell decision once again threw the state out of compliance with the ANILCA, and in July 1990 federal authorities assumed jurisdiction over subsistence fish and game management on federal public lands excluding navigable waters. Thus began Alaska’s experiment in dual subsistence management, with the federal government regulating subsistence on federal lands (60% of the state) and the state retaining authority over state (30%) and private (10%) lands. Alaska’s dual

11 National Park Service. Alaska Subsistence: A National Park Service Management History, Chapter 5: Initial Subsistence Management Efforts, 2003. http://npshistory.com/publications/alaska/subsistence/chap 5.htm. 12 Madison v. Alaska Department of Fish and Game, 696 P.2d 168 (1985) 13 National Park Service. Alaska Subsistence: A National Park Service Management History, Chapter 6: Managing Alaska's Subsistence Program, 1985-1989, 2003. management system became permanent in 1992 when the federal government adopted final subsistence management regulations for federal public lands and continues to operate to this day.15

Figure 2. “As used in this Act, the term "subsistence uses" means the customary and traditional uses by rural Alaska residents of wild renewable resources…”

Alaska National Interest Lands Conservation Act (ANILCA) Title VIII § 803

http://npshistory.com/publications/alaska/subsistence/chap 6.htm. 14 McDowell vs. the State of Alaska, 785 P.2d 1 (1989)

15 "Subsistence In Alaska Overview: Definition, Responsibilities And Management." Alaska Department Of Fish And Game, 2021. http://www.adfg.alaska.gov/index.cfm?adfg=subsistence.defi nition.