OPINION: As AFN convenes, subsistence rights are hanging in the balance

This week, Alaska’s first peoples are gathering together to visit, share, and discuss issues of import. Among them is the grave threat to subsistence fisheries posed by the Dunleavy administration’s refusal to acknowledge federal management of waters on the Kuskokwim River within the Kuskokwim National Wildlife Refuge. Rural villages favor federal management, as Title VIII of the Alaska National Interest Lands Conservation Act provides a priority for rural residents when the resource is insufficient to support all uses. The federal priority contrasts with state law that regards all Alaskans as eligible to subsistence fish even in times of shortage. The issue is particularly raw as villagers have witnessed four consecutive years of poor salmon runs necessitating emergency closures to meet escapement goals. With salmon constituting 60% of the average diet along the river, food shortages and hunger are all too real. Alaska’s first peoples are gripped with fear that without fish, their very way of life is being lost, a way of life based on customary and traditional knowledge passed down from generation to generation that stretches back millennia.

You are not wrong if you thought the issue of management was resolved years ago by the Katie John cases. Those cases established that the priority for subsistence uses in Title VIII extends to fisheries in all federal waters running through or within public lands set aside by ANILCA. But the state government is now relitigating the Katie John holdings.

In litigation against the United States over who has authority to regulate subsistence fisheries in the Kuskokwim River, the state now argues that federal authority to regulate any activities in navigable waters was disavowed by the Supreme Court four years ago in Sturgeon v. Frost. There, the court held that the federal government could not prohibit Sturgeon’s use of a hovercraft on waters within a federal refuge. It so concluded by assessing whether federally reserved waters are property sufficient to bring them within Title VIII’s “public lands” definition. While the Ninth Circuit in the Katie John cases found that some navigable waters were public lands, the Supreme Court in Sturgeon disagreed and held instead that, “(the) reserved right, by its nature, is limited. It does not give the Government plenary authority over the waterway to which it attaches.”

Importantly, however, the court left intact the Katie John cases at the request of all parties, including the state of Alaska, Sturgeon and the various Alaska Native Claims Settlement Act corporations that supported his suit. The court noted in a footnote the position of the parties supporting the interpretation that the term “public lands,” when used in ANILCA’s subsistence-fishing provisions, encompasses navigable waters. It then explicitly stated, “Those provisions are not at issue in this case, and we therefore do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters.”

Fast-forward to the Dunleavy administration, which now wants to challenge federal management of subsistence fishing on navigable waters. The query before the courts will be whether the term “public lands” can have one meaning in the context of Title VIII and another meaning for the rest of the statute. On this score, the courts will have to glean congressional intent to give meaning to the term, and congressional intent in Title VIII could not be more clear: “The continuation of the opportunity for subsistence uses on public lands is ‘essential to Native physical, economic, traditional, and cultural existence.’”

Whether the courts agree to adhere to the Katie John decisions remains to be seen, with the outcome uncertain. What is certain, though, is that dual management is the result of a broken system that nobody is happy with. It has led to countless lawsuits that have pitted Alaskans against each other in the name of state sovereignty against an overreaching federal government. At least that’s the narrative the state wants the public to believe. The other narrative, and one more true to history, is that Title VIII was intended to restore the aboriginal hunting and fishing rights that were extinguished by ANCSA, a land claims settlement that was brokered after vast oil reserves were discovered in the Arctic. The protection of hunting and fishing was one of the promises made to Alaska’s first peoples, a promise that the secretary of the interior and the state government would protect continued subsistence uses. That hasn’t happened, and the promise has yet to be fulfilled. It is time for Congress to go back and get it right.

Heather Kendall is a member of the Curyung Tribe of Dillingham and part-time attorney with the Native American Rights Fund.

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