Alaska Subsistence A National Park Service Management History

F. The State Gets Involved

As noted in Chapter 1, Alaska Natives prior to the 1960s had made many attempts to acquire land for their own purposes. The Alaska Statehood Act, however, had set a process into motion that promised to usurp huge expanses of land that Natives had been using for subsistence purposes for time immemorial. But as a practical matter, rural Natives during this period (and rural non-Natives as well) had few conflicts from other users in their pursuit of subsistence fish and game resources. Rural users, moreover, benefited in 1960 by the institution of separate subsistence fishery regulations—brought about by the inclusion of Section 6(e) in the state constitution—for those who used gill nets, seine gear, and fish wheels. Both Natives and non-Natives, of course, used gill nets and seining equipment, but the creation of separate regulations for these gear types provided a modicum of protection to Native families who fished primarily for personal and family consumption. As to hunting, the state made no distinction in its regulations between subsistence and sport hunting.

By the decade of the 1970s, however, conditions regarding hunting and fishing resources were clearly changing. The oil boom had brought both increased wealth to existing residents and a dramatic influx to Alaska of Outside residents, and fish and game populations in many rural areas began to be impacted for the first time. (The number of Alaska resident fish and game licenses, for example, "practically doubled" between 1965 and 1975.) There was a widespread recognition that unless regulatory steps were taken, subsistence resources would eventually be overwhelmed by sport and commercial users. [86] In response, both the Commissioner and the Board of Fish and Game, in 1973, issued a policy statement recognizing that subsistence use would be assigned the highest use priority. It noted that because of "culture, location, economic situation, or choice, large numbers of people will find it impossible to abandon or alter their [subsistence] way of life," and for those reasons, subsistence resources would thenceforth be allocated to users based on "cultures and customs, economic status, alternative resources, ... location and choice of life style." The Board of Fish and Game did not respond to that policy statement by enacting regulations or by otherwise implementing enforcement powers. [87] It did, however, begin to strengthen local fish and game advisory committees, who advised the Board and the Department on issues important to area hunters and fishers, by funding trips by advisory board chairs to Fish and Game Board meetings. [88]

In 1975, the conflict over subsistence reached a crisis point when the western Arctic caribou herd crashed. Many rural Native Alaskans, who were heavily dependent on the herd, were rocked by the crash; area villages, who had typically harvested around 20,000 animals per year, were forced to get by on a 3,000-animal harvest. The legislature, hoping to improve the villagers' plight, responded by passing HB 369, which for the first time authorized the Board of Game to regulate subsistence hunting as a separate activity and to create subsistence hunting areas. In 1976, the Game Board responded to the legislature's action by authorizing 3,000 harvest permits, to be distributed among hunters in Native villages; it also developed a three-tiered system for allocating access to hunting resources at times of scarcity. The three tiers, each tailored to increasing levels of scarcity, were 1) community access to alternative resources, 2) family income and resource dependence, and 3) individual ability to cope with the hardship. The Board of Fisheries and the Board of Game, trying to support rural sport hunters during the crisis, appeared less than enthusiastic in their general support of the subsistence lifestyle; a joint policy statement issued that year warned that "limitations on the productivity of fish and game must discourage continued increases in the numbers of subsistence type resource users." [89]

The state game board's decision to allot hunting resources, when scarce, to residents who lived closest to the available game angered a number of urban Alaskans, who felt that the resource should be equally available to everyone. In December 1976, therefore, the Tanana Valley Sportsmen's Association filed suit to annul that decision. That suit was successful. The state legislature, in reaction to the court decision, established a system for defining legitimate subsistence uses and users. The legislature made it clear that subsistence uses would have a preference over other consumptive uses, and it reiterated the Game Board's recently-established criteria to determine who would have access to harvest subsistence resources in times of scarcity. [90]

In 1976, the Board of Game first provided an opportunity for local residents to petition for subsistence hunting areas in order to encourage their adoption. The legislature also issued a finding about the subsistence use of wildlife. It stated that

The legislature finds that traditional dependence on fish and game resources is a continuing and necessary way of life in many areas of the state and that the protection of subsistence usage of these resources is essential to the health, safety, and general welfare of the citizens of the state in those areas. [91]

In 1977, the U.S. Congress began actively pursuing legislation that would satisfy ANCSA's national interest lands provision—Section 17(d)(2). The Alaska legislature was fully aware that ANCSA had imposed a seven-year timetable for the implementation of national interest lands legislation. The legislature also concluded, somewhat begrudgingly, that it would need to pass its own subsistence law before Congress passed Alaska lands legislation. The need for such a law stemmed from two clauses: Section 6(e) in the Alaska Statehood Act (noted in Chapter 1), and language in ANCSA's conference committee report (noted earlier in this chapter). Because of those two clauses, the legislature was well aware that if it did not enact a "proposal for the adequate management of Alaska's fish and wildlife resources," the federal government would be authorized to manage fish and game resources on Alaska's national interest lands. Indeed, various working drafts of H.R. 39—the primary vehicle for Alaska lands legislation in the U.S. House of Representatives—clearly announced an impending federal takeover if the state failed to act. [92]

In recognition of those factors, the 1977 Alaska legislature established an Interim Committee on Subsistence, which was chaired by Rep. Nels A. Anderson, Jr. (D-Dillingham). The eight-person committee (seven House members and one Senate member) was charged with collecting available data, conducting hearings, and gathering public testimony on the subsistence issue. In pursuit of that goal, the committee held thirteen hearings, in communities large and small, between August and December 1977. Those hearings, attended by some 500 people, helped formulate the basis for future legislation. [93]

In 1978, the Alaska State Legislature passed HB 960, a broadly applicable subsistence law. The law, which was signed by Governor Jay Hammond on July 12, became effective on October 10. It provided that "it is in the public interest to clearly establish subsistence use as a priority use of Alaska's fish and game resources and to recognize the needs, customs, and traditions of Alaskan residents." It also provided that whenever it was necessary to restrict the taking of fish and game, "subsistence use shall be the priority use." Subsistence uses, as defined in the law, meant

the customary and traditional uses in Alaska of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicrafts articles out of non-edible by-products of fish and wildlife resources taken for personal or family consumption; and for customary trade, barter or sharing for personal or family consumption. For the purposes of this paragraph, "family" means all persons related by blood, marriage, or adoption, and any person living within the household on a permanent basis.

The legislature made it clear that race would play no role in determining access to subsistence resources. However, it sidestepped the delicate issue of just what constituted "customary and traditional uses" (so-called C&T uses) and it also failed to define who was qualified to be a subsistence user. [94] To help address these and other issues, the legislature as part of HB 960 established a "Section of Subsistence Hunting and Fishing" in the Department of Fish and Game. (The House Special Committee on Subsistence tried but failed to establish a full-fledged Division of Subsistence Hunting and Fishing.) For the next several years, the legislature had a Special Committee on Subsistence that served year-round in an oversight capacity. [95]