Alaska Native advocates and leaders call for expanded federal subsistence protection

Advocates for Alaska Native interests say they see an opening to significantly broaden a key federal subsistence protection across Alaska amid a court dispute between the state and the federal government over that protection.

With support from Alaska’s 200-plus tribes, Congress could expand the protection to new swaths of Alaska, say attorneys with the Native American Rights Fund and Alaska Native groups.

They want the protection, which provides a fishing priority in times of shortage for rural residents who are typically Native, to expand beyond sections of rivers associated with federal lands such as refuges, where the law currently applies.

They want it to cover the entirety of rivers, including sections of rivers associated with state lands.

“Up and down the river,” is how it would be applied, not just on part of a river, said Heather Kendall-Miller, a part-time attorney with the Native American Rights Fund.

Also, the priority for rural residents should be expanded to include Alaska Natives, to ensure it benefits Indigenous people living in urban and rural areas, they say.

State officials said Thursday those proposals, if Congress approved, would allow federal authority to supplant state authority on rivers across the state.

The call for more subsistence protections is coming as thousands of Alaska Natives gather for the annual Alaska Federation of Natives convention that began Thursday and runs until Saturday at the Dena’ina Civic and Convention Center in Anchorage.

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Bob Sam, from Sitka, left, and Lemmie Charlie, from Chistochina, sit on a bench during a lunch break at the Alaska Federation of Natives convention on Thursday, Oct. 19, 2023 at the Dena'ina Civic and Convention Center in Anchorage. (Loren Holmes / ADN)

The group, the largest organization of Indigenous people in Alaska, is expected to approve a resolution Saturday calling on Congress to “revisit and strengthen” the subsistence protection. The resolution itself does not provide details on how it would be strengthened.

Alaska Native leaders say the state has threatened the subsistence priority in a federal court case brought by the Biden administration over management authority on a section of the Kuskokwim River passing through the Yukon Delta National Wildlife Refuge. The case is called USA vs. Alaska.

AFN President Julie Kitka told delegates in the convention hall on Thursday that the matter is among the most important issues Alaska Natives have faced.

“It is the big one,” she said.

The attorneys, including Kendall-Miller, spoke at two tribal conferences in Anchorage on Wednesday. They were organized by the Alaska Federation of Natives and the Tanana Chiefs Conference, representing 37 tribes from the Interior region of Alaska.

If Congress approved such an expansion, it would mean that during shortages of salmon or other fish, the federal priority would kick in, Kendall-Miller said.

In that circumstance, state management of the fishery would be preempted, she said.

It would help ensure that the subsistence needs of Alaska Natives and rural residents in many areas are prioritized above others in times of hardship, including commercial and sport fishermen, she said.

That’s critically important to Alaska Native families, she said. Subsistence fishing overall is a small part of the fish caught in Alaska, accounting for only 2% of fish, she said.

The legal group distributed fliers at the tribal meeting requesting that tribes across the state pass the resolution that may be approved at the Alaska Federation of Native convention, and forward it to Congress.

The resolution was proposed by the Association of Village Council Presidents, representing 56 tribes in Southwest Alaska, and combined with similar resolutions from the AFN board.

The Native American Rights Fund will collect the resolutions approved by tribes and will also send them to Congress, said Erin Dougherty Lynch, with the legal group in Anchorage.

Several Alaska Native people from different regions of Alaska spoke at the tribal conferences on Wednesday and said shortages of salmon and other wildlife are endangering their ability to feed their families and pass eons-old traditions onto their children.

They said they must compete with commercial and sport fishermen, to their detriment. Some said they’re caught between the conflicting laws of the state and federal government, when rural residents who lived off the land for ages should have a priority for their nutritional needs. They said the federal law should be updated.

“It’s not a state fish, it’s not a federal fish, it’s a Yup’ik fish,” said Thomas Tilden, a Native leader from the Yup’ik region in the Bristol Bay area.

Rep Mary Peltola’s office could not be reached for comment on Thursday. Staff for Sens. Dan Sullivan and Lisa Murkowski have said the senators are tracking this week’s AFN discussion about subsistence protection. Murkowski and Sullivan are scheduled to speak at the AFN convention on Friday, and Peltola is scheduled to speak on Saturday.

Douglas Vincent-Lang, commissioner for the Alaska Department of Fish and Game, said in an email that the proposal, if it were approved by Congress, would be a “significant expansion of federal authority” that “would supplant state management with federal management in all navigable waters.”

The case between the federal and state government arose from a management conflict in 2021 and 2022 amid shortages of king and chum salmon on the Kuskokwim River in Southwest Alaska.

The feds had allowed subsistence fishing openers under federal law, which provides for a subsistence fishing priority for rural residents. The state also announced openers for all Alaskans, not just rural residents, in line with the Alaska Constitution.

Under current federal law, only 180 miles of the 700-mile Kuskokwim River fall under the current priority as they pass through the Yukon-Delta National Wildlife Refuge.

The proposed expansion seeks “to apply federal jurisdiction upstream of the refuge where there are no adjacent federal lands,” Vincent-Lang said.

“It would reduce opportunity for rural residents who have been displaced to urban areas from participating in the customary and traditions practices when harvestable surpluses exist,” he said.

Patty Sullivan, a spokeswoman with the Alaska Department of Law, said the measure would “significantly rewrite” federal law, impacting nearly every important waterway in Alaska including the Susitna River.

“This would also fundamentally change the agreement under ANILCA,” she said in an email, referring to the 1980 Alaska National Interest Lands Conservation Act that created the rural priority.

“The rural preference was a compromise reached when ANILCA was being debated in Congress,” she said. “The proposed change would establish a Native preference (regardless of residency). This would also conflict with (the 1971 Alaska Native Claims Settlement Act), which extinguished Native claims.”

Kendall-Miller said it would not violate the 1971 law because Congress can invoke its constitutional authority to adopt or change legislation.

She said a rural and Native preference would “do away with expecting the state of Alaska to manage a subsistence priority since the state has failed to adopt a constitutional amendment that would allow it to manage either a rural priority, or a priority for Native American people.”

“By tying the priority to Native American peoples, it is fulfilling congressional intent, to protect continued subsistence uses by Alaska’s first peoples,” she said.

Kendall-Miller and other attorneys for Alaska Native interests were joined at the tribal conferences by Bob Anderson, chief attorney of the Department of the Interior.

Anderson was the original lead counsel in the cases that upheld the subsistence priority, known as the Katie John cases.

Anderson said he had helped open the Native American Rights Fund office in Anchorage in the 1980s when he met the late Katie John.

Anderson said the case has consumed his career across nearly four decades.

He told the tribal members that the federal government, along with the Alaska Federation of Natives and other groups that have intervened in USA vs. Alaska on the side of the federal government, are mounting a “vigorous defense” to protect the rural priority.

He also said Congress has the power to expand the subsistence protection.