Major subsistence fishing rights case looms over AFN convention
The Alaska Federation of Natives met last week for its annual convention, and on Saturday, delegates gathered to consider resolutions that would set their political agenda for the next year.
With the rural priority for subsistence fishing under legal threat, AFN delegates called on Congress to take immediate action to permanently protect the right of Alaska Native people to subsistence fish in the state’s waters.
The first measure they passed was a resolution that urges the federal government to “aggressively protect our hunting and fishing rights in court.” It also asks Congress to revisit and strengthen Title VIII of the Alaska National Interest Lands Conservation Act, or ANILCA. The 1980 law enshrined the subsistence uses of fish and wildlife by rural Alaska residents—and says that these uses should be given priority over others, such as commercial or sport uses, in times of scarcity.
For decades, that federal preference has been at odds with state law, which doesn’t allow a rural preference, according to a state Supreme Court ruling in 1989.
This conflict has led to a dual state-federal management system of Alaska’s resources. And disagreements between the two entities have come to head again in a big case that is expected to make its way to the U.S. Supreme Court.
Dispute over salmon management
In May 2022, the federal government filed a lawsuit against the State of Alaska in a dispute over salmon management in the Kuskokwim River. In accordance with ANILCA, federal managers from U.S. Fish and Wildlife had authorized rural residents only to practice limited subsistence fishing in the part of the Kuskokwim River that flows through the Yukon Delta National Wildlife Refuge in the spring of 2021. But the Alaska Department of Fish and Game opened subsistence fishing to all Alaska residents.
“If this federal overreach is allowed to stand, it opens the door to the State losing its right to manage Alaska fisheries on significant waterways beyond the Kuskokwim, including the Yukon and Copper Rivers,” Gov. Mike Dunleavy said in a statement about the case last month.
The Kuskokwim River Inter-Tribal Fish Commission, the Association of Village Council Presidents, and Ahtna, Inc. have all jointed the case as intervenor plaintiffs. In late September, AFN also joined the federal government’s side of the case. AFN is the state’s largest Native organization, with members that include 160 federally recognized tribes, 145 village corporations, nine regional corporations and 10 regional nonprofit and tribal consortiums.
“This case really is the big one,” said Robert T. Anderson, who, for a time, represented Katie John in a landmark series of case.
Anderson and the plaintiffs are worried that if the courts side with the state, the Katie John decisions could be overturned. That litigation ended in 2014 nearly three decades after Athabaskan elder Katie John sued the state for denying her right to fish at her traditional salmon camp along the Copper River. The cases ultimately gave the federal government authority over subsistence fishing and hunting in waters that are in and adjacent to federal public lands.
Anderson is now solicitor of the Department of the Interior and is working on the U.S. v. Alaska case. He explained in a speech at AFN that the state, in recent briefs it has filed, is now asserting that the state government, not the federal government, has jurisdiction over subsistence fishing in all waters in Alaska.
“As the United States’ lawyer for the Department of the Interior, which is the primary agency in the case, we say that’s completely wrong,” Anderson said. “One of the reasons I came up here, not just to come to the convention, but was to meet with the lawyers for AFN, for AVCP, for the Intertribal Fish Commission, for Ahtna, to talk about our strategy going forward as we work on this case.”
He said the dual management system, where the state has some jurisdiction over some lands and some waters and the federal government has the rest, is “unworkable.”
“That’s not what Congress intended when it passed ANILCA in 1980,” Anderson said. “The idea was that there would be a rural priority in federal law and that the state would match that. The state would manage a rural subsistence priority on all waters and all land throughout the state, but it would be under federal supervision.”
But the state has not adopted such a priority.
“The best we’ll hope for this litigation from the Native side of the issue, from the pro subsistence side, is that we’ll hold on to this system that is broken,” Anderson said. “The worst case scenario is the Supreme Court will overturn the Katie John cases, and then we’ll be left with the only state jurisdiction over fishing and all navigable waters.”
Anderson said he also thought the AFN resolution calling for legislation to protect subsistence rights was a viable path forward.
“I can tell you as a lawyer who’s worked on these issues for 39 years, that it’s clearly within Congress’s power to adopt such a statutory scheme,” he said.
In addition to Anderson, AFN also hosted the third-ranking official at the Department of Justice, Associate Attorney General Vanita Gupta. After Gupta affirmed her office’s commitment to the subsistence case in her remarks, AFN President Julie Kitka reiterated the importance of a win.
“We’re caught in between the federal and the state government—that’s what this litigation is,” Kitka said. “We are getting squeezed…We’ve got to win this case, because if we don’t, we lose our fishing rights, which is unacceptable. It doesn’t stop our people from fishing. They’ll just continue fishing, but they’ll all be subject to arrest. We won’t have the rule of law underpinning what our people are doing. Our people are not going to stop doing this. But we need to have the law supporting our culture.”
The state responded to the resolution with statements from ADF&G Commissioner Doug Vincent-Lang and Alaska Attorney General Treg Taylor.
“The State of Alaska fervently supports subsistence hunting and fishing rights for Alaskans and will continue to do so,” Taylor said. “The current problem is that the federal government’s implementation of subsistence favors a few rural subsistence users over all other rural subsistence users —favors a few Alaska Native subsistence users over all other Alaska Native subsistence users—and does so without regard for the health and sustainability of future returns and State sovereignty. The State of Alaska would support congressional fixes in Title VIII so long as those fixes respect the Alaska Constitution, State sovereignty, and the principle of sustained yield for the continued benefit of fish and game subsistence for all Alaskans, now and in the future.”
Other threats to subsistence practices were a major theme during the three hours of testimony that occurred on Friday afternoon. AFN held a forum designed for members to share knowledge on regional priorities, including the salmon crisis, climate change, hunting and fishing. Each region had five, three-minute speaking opportunities.
Many representatives spoke of struggling to find caribou, moose, salmon and other traditional resources in their regions, and they often placed blame on management and a lack of tribal control in those management processes.
“Our region has seen declines of salmon for 40 years—for 40 years we’ve been seeing the same thing,” said Serena “Cuucitcuar” Fitka, who is from St. Mary’s and is executive director of the Yukon River Drainage Fisheries Association. “If our traditional knowledge was incorporated into our management systems, we could have told you that our fish were coming back in lower numbers, our fish are coming back smaller, our fish are coming back and not filling our freezers.”
Wearing a shirt that said, “Big Auntie Energy,” Faye Ewan from the Copper River region said: “Our sovereignty is being undercut by the state of Alaska… We should be sitting at the table with the state and the federal government as they make decisions on our way of life, as policies and regulations and laws are being placed among our people.” Ewan’s testimony earned loud cheers from the crowd.
Touching other common themes, several speakers encouraged more young people to get involved in advocacy and engagement on these issues, while others encouraged better cooperation. Kelsi Ivanoff has been working as the City Administrator for the City of Unalakleet, and she testified that addressing changes to subsistence resources often comes down to “adaptation and working together.”
“We (the City of Unalakleet) work really well together with the tribe, with Native corporation, with the regional corporation, with our CDQ Corporation, because if we’re all fighting against each other or have different agendas, we’re not going to get anywhere,” Ivanoff said. “And it’s been really surprising to me to see people not working together within their own communities with each different entity.”
Calls for unity across various tribal groups within AFN were also common throughout the three-day convention.
Since last year’s meeting, at least three large tribal organizations have pulled out of AFN, including the Central Council of the Tlingit and Haida Indian Tribes of Alaska, which represents 35,000 tribal members in Southeast Alaska, and the Tanana Chiefs Conference, which represents 39 villages and 37 federally recognized tribes in Interior Alaska. Other large Native corporations like the Arctic Slope Regional Corporation and Doyon have left AFN since 2019. Organizations cite various reasons for their withdrawal—or have been vague about their reasons. But the Aleut Corporation leadership said it decided to withdraw in December 2022 after last year’s convention saw a contentious debate and discord over resolutions that advocated for reducing salmon bycatch by limiting Area M commercial fishing. Those resolutions passed after heated arguments that pitted regions against each other.
Louie Green, Jr., told the crowd he regretted last year’s vote on the resolutions.
“Salmon, people need to be together on this,” Green said. “And anytime you see something like we did last year, you’re putting people down, and that was the wrong thing we did. We should be pulling people up to the table to take care of business. We know what’s going on. We know we’re smart people. We need to tell our politicians in Washington DC, no more money from the trawler fleet.”
Besides Ivanoff and Green, Roy Ashenfelter, Steve Ivanoff and Benjamin Payenna spoke during the Bering Straits slots.
In addition to the resolution asking for better federal protections for subsistence, AFN delegates passed another 27 resolutions with minimal debate. One resolution called for tribal representation on the Alaska Board of Game and the Alaska Board of Fisheries. Another advocated for Indigenous knowledge to be incorporated by those boards.
After a year that saw a disproportionate number of prison deaths of Alaska Native people in Department of Corrections custody, AFN passed a resolution calling for an independent federal investigation into the issue. Members also passed a resolution in support of the Save Our Sisters Missing and Murdered Indigenous People federal legislation.
Another resolution was passed in favor of Alaska’s new ranked choice voting system. Other resolutions asked for more funding for various programs and institutions, including the Indian Housing Block Grant program, as well as the grant program under the Native American Graves Protection and Repatriation Act of 1990.
One resolution, which would have recognized the importance of clean waters and lands, was pulled for further refinement by AFN’s legislative and litigation committee.
A few late submissions for resolutions were ultimately pulled from the approval process. One of these would have affirmed support for the Iditarod Trail Sled Dog Race and its health initiative, and the others, submitted by Dot Lake Village, opposed the development of the Manh Choh Mine and its haul plan.