Alaskan Native subsistence rights

Organized Village of Saxman Sues Interior over Subsistence Rights

Matthew L.M. Fletcher

Here is the complaint in Organized Village of Saxman v. Towarak (D. Alaska):

Complaint

An excerpt:

This action seeks declaratory and injunctive relief under section 807 of the Alaska National Interests Lands Conservation Act (ANILCA), 16 U.S.C. § 3117, to prevent the Secretaries of Interior and Agriculture from implementing a 2007 final rule that administratively grouped the rural community of Saxman with the nonrural cvcommunity of Ketchikan. Only residents of communities identified by the Federal Subsistence Board (FSB) as rural are eligible for ANILCA’s subsistence priority. 50 C.F.R. 100.5 § (2013). By grouping Saxman with Ketchikan, the 2007 final rule removes Saxman’s rural status and effectively eliminates Saxman’s priority for subsistence uses set forth in ANILCA section 804, 16 U.S.C. § 3114, thus denying Saxman’s members continued access to the subsistence resources they depend on as a mainstay of their livelihood in violation of section 811 of ANILCA, 16 U.S.C. § 3121, and the Administrative Procedures Act (APA), 5 U.S.C. § 553, 706(2)(a),(d).

Alaska SCT Orders State to Reconsider Hunting/Fishing Ruling for Chitina Subdistrict

Matthew L.M. Fletcher1 Comment

Here is the opinion in The Alaska Fish & Wildlife Conservation Fund v. State, Dept. of Fish & Game, Board of Fisheries.

An excerpt:

In 1999, the Board of Fisheries (the Board) made a positive customary and traditional use finding in the Chitina subdistrict for the first time, thereby changing it from a “personal use” to a “subsistence” fishery. The Board reversed this decision in 2003, returning Chitina to a personal use fishery. The Alaska Fish and Wildlife Conservation Fund (AFWCF) and the Chitina Dipnetters Association, Inc., after asking the Board to reconsider its 2003 finding in both 2005 and 2008,1 brought this suit to challenge the Board’s negative customary and traditional use finding for Chitina. They claimed that the regulation used by the Board to make such a finding, 5 Alaska Administrative Code (AAC) 99.010(b), was unconstitutional on its face and as applied. The superior court held that the regulation was valid and constitutional, but remanded for the Board to fully articulate the standard being used in its application of 5 AAC 99.010(b)(8). It also instructed the Board not to consider “the per capita consumption of wild food in the home community of various users” upon remand. On remand, the Board codified a definition of “subsistence way of life,” allowed the parties to submit evidence, and upheld its previous classification. Because 5 AAC 99.010(b) is consistent with its authorizing statutes, is reasonable and not arbitrary, does not violate the Alaska Constitution’s equal access provisions, and was constitutionally applied when the Board made its customary and traditional use finding for the Chitina fishery in 2003, we affirm this portion of the superior court’s rulings. Because there is no indication that the Board actually relied on the per capita consumption of wild foods in the users’ home communities when applying 5 AAC 99.010(b) and because that information may be relevant to the subsistence inquiry, we reverse this ruling by the superior court.

New Scholarship on Native Subsistence in Alaska and the National Historic Preservation Act

Matthew L.M. Fletcher

Danielle S. Pensely has posted her paper, Existence, Persistence, Resistance: Preserving Subsistence in the Copper River Delta of Southcentral Alaska, forthcoming from the Environmental Law Reporter, on SSRN.

Here is the abstract:

Ordinary existence in Cordova, Alaska illustrates an extraordinary range of subsistence practice, that is, the persistent wresting of food calories and spiritual orientation from the immediate natural environment through the harvest of renewable resources. Despite cataclysmic disruptions to include the arrival of whites, the Exxon Valdez Oil Spill, and anthropogenic climate change, the practice continues to animate a self-reliant and pluralistic society with a distinct local identity. The range of threats to the long-term health of the Copper River Basin is, however, intensifying – from the augmentation of wild Pacific salmon runs with hatchery fish to leaks and spills from the Trans-Alaska Pipeline, and from residential development to the construction of access to rich coal and oil fields for exploration and development.

This article intertwines twenty-seven narrative interviews with landscape theory to argue that the National Historic Preservation Act of 1966 (“NHPA”), as amended, 16 U.S.C. §§ 470-470×6, is up to the crucial task of protecting subsistence in Cordova. Indeed, NHPA directs the federal government “to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.” Thus compelled, this article argues that living things are eligible for listing on the National Register: adverse effects to the wild salmon should trigger the consultative reconsideration of NHPA Section 106, as would be the case under the implementing regulations with any other object of functional, aesthetic, cultural, or scientific value. Alternatively a landscape, even a very large landscape like the Copper River Basin, is analogous to an urban or rural architectural district and on that basis should be listing eligible.

When historic preservation practice ostensibly prevents the development of a place to fullest potential, it is in fact insulating a place within which is freedom from official interference or infrastructure. The subsistence practitioners of Cordova consequently have the choice (now and in the future) to pursue and transmit – or to forget and abandon – their cultural values, in other words, their civic virtue. This concept of food sovereignty parallels accepted republican principles, thereby illuminating the relevance of subsistence and the Section 106 process as a counterweight to the compulsory consumption that typifies current political discourse.

Two New Articles on Alaskan Native Issues in Alaska Law Review

Matthew L.M. Fletcher

Here.

Subsistence Hunting and Fishing in Alaska: Does ANILCA’s Rural Subsistence Priority Really Conflict with the Alaska Constitution? by Jack B. McGee

Note: One Company, Two Worlds: The Case for Alaska Native Corporations by Travis G. Buchanan

 

Elizabeth Barrett Ristroph on Climate Change and Alaska Tribes’ Subsistence Rights

Matthew L.M. Fletcher

Elizabeth Barrett Ristroph of the North Slope Borough Legal Department has posted “Alaska Tribes’ Melting Subsistence Rights” on BEPress.

Here is the abstract:

Climate change impacts subsistence-dependent Alaska Natives more than Lower 48 Natives and other United States populations because (1) the effects of climate change on land and wildlife are more severe in Alaska than elsewhere in the U.S.; and (2) compared to Lower 48 tribes, Alaska tribes have less control over land and wildlife needed for subsistence.