The federal government is suing the state of Alaska. It is the latest jab in a long boxing match between the state and the fed.
In one corner is a guarantee from the federal government to prioritize the needs of rural subsistence harvesters. In the other corner is the Constitution of the state of Alaska. Fish and Game Commissioner Doug Vincent-Lang has been named in the suit, along with his whole department.
In its introduction the lawsuit states: “The United States brings this action against the State of Alaska to protect subsistence use of the Kuskokwim River Chinook and chum salmon populations by local rural residents who depend on these salmon for their physical, economic, traditional, and cultural existence. The United States seeks a declaration … that the State’s actions in contravention of a rural Alaskan subsistence priority are preempted by federal law and are therefore unlawful.”
This particular disagreement can be traced back to a decision by the Alaska Supreme Court in 1989, which declared a rural preference to be contrary to the Alaska Constitution, which guarantees equal access to all Alaskans. But the roots of the dispute go back to the sale of Alaska to the United States by Russia. Native Alaskans universally rejected the legality of the transfer of aboriginal lands, having never relinquished them through a “just war” or treaty.
And indeed, the law that made Alaska a state in 1958 specified that aboriginal land claims should be recognized, but it was left up to Congress to do so. Congress did not do so. So, in 1966, The Alaska Federation of Natives was formed to present a consolidated front to advocate for Alaska Native land claims, and they convinced the Secretary of the Interior to freeze all land conveyances in Alaska until the claims were resolved. Still, the claims seemed stuck in a Washington whirlpool, going around, but getting nowhere. Then, in the early seventies, underground oceans of oil were discovered on the North Slope. To get it to market a pipeline would have to be built, which was impossible because of the federal freeze on much of the land it would need to pass through.
With loads of money to be made, lobbyists leapt to the fray and Congress acted relatively quickly. In 1971 The Alaska Native Claims Settlement Act was enacted, which created regional and village corporations and transferred land rights to them in exchange for a corridor for the pipeline. ANCSA also allowed the Secretary of the Interior to reserve lands for future use in the public interest, by making them National Parks, Wildlife Refuges, Wild and Scenic rivers, or National Forests. He set millions of acres aside, but the tabled lands remained in political limbo for nine years as debate raged over their proper use.
It wasn’t until 1980 that the Alaska National Interest Lands Conservation Act was signed into law. ANILCA dedicated over 43 million acres of land in Alaska to public use. It also officially recognized the lands granted to native corporations by ANCSA, opened up the Tongass to clearcut logging, and specifically prioritized the subsistence needs of rural Alaskans over other users. And so, in 1982, the Alaska Board of Fisheries and Game enacted regulations that created a rural subsistence priority, in compliance with ANILCA.
Then in 1989 the Alaska Supreme Court declared that the rural subsistence preference was a violation of Alaska’s Constitution. The federal government disagreed then as now, but as long as there was plenty of fish for everyone, it was a moot point. But the fed does not possess the resources for in-season management. The state does the actual on-the-ground management of Alaska’s fisheries, and this presents a potential regulatory conflict when fish become scarce, as salmon have in the Yukon and Kuskokwim drainages. For example, in June 2021, the state opened the lower Kuskokwim to gillnet fishermen, while the fed simultaneously declared it closed to protect the resource for rural users.
At a meeting of the Federal Subsistence Board on March 29 residents living on the Yukon River asked the federal government to wrest management of their salmon fisheries from the state. The Temporary Special Action Request was filed with the Board by a resident of Rampart, the Holy Cross Tribe, the Native Village of Eagle, and a resident of Huslia. They asked the Board to uphold the provision in ANILCA that prioritizes rural subsistence use by closing the 2022 salmon fisheries in their region to all but qualified rural subsistence users.
And now the federal government has sued the state. The new lawsuit could be a try for a knockout. The Kuskokwim River Inter-Tribal Fish Commission has declared its support for the Fightin’ Feds. Their Interim Director, Kevin Whitworth, said, “The fish commission is heartened to see the federal government basically stand up to protect salmon and the importance of federal management.”
A spokesperson for the Department of Law said the state’s management is sound, and based on science and input from local stakeholders.
Terry Haines was a commercial fisherman in Kodiak for more than 30 years. He now produces the Alaska Fisheries Report for KMXT and is a member of the Kodiak City Council. He can be reached at firstname.lastname@example.org
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