[Senate Hearing 113-118]
[From the U.S. Government Publishing Office]
S. Hrg. 113-118
SUBSISTENCE
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
TO
EXAMINE WILDLIFE MANAGEMENT AUTHORITY WITHIN THE STATE OF ALASKA UNDER
THE ALASKA NATIONAL INTEREST LANDS ACT AND THE ALASKA NATIVE CLAIMS
SETTLEMENT ACT
__________
SEPTEMBER 19, 2013
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Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
RON WYDEN, Oregon, Chairman
TIM JOHNSON, South Dakota LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana JOHN BARRASSO, Wyoming
MARIA CANTWELL, Washington JAMES E. RISCH, Idaho
BERNARD SANDERS, Vermont MIKE LEE, Utah
DEBBIE STABENOW, Michigan DEAN HELLER, Nevada
MARK UDALL, Colorado JEFF FLAKE, Arizona
AL FRANKEN, Minnesota TIM SCOTT, South Carolina
JOE MANCHIN, III, West Virginia LAMAR ALEXANDER, Tennessee
BRIAN SCHATZ, Hawaii ROB PORTMAN, Ohio
MARTIN HEINRICH, New Mexico JOHN HOEVEN, North Dakota
TAMMY BALDWIN, Wisconsin
Joshua Sheinkman, Staff Director
Sam E. Fowler, Chief Counsel
Karen K. Billups, Republican Staff Director
Patrick J. McCormick III, Republican Chief Counsel
C O N T E N T S
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STATEMENTS
Page
Anderson, Robert T., Professor of Law, University of Washington
School of Law, Director, Native American Law Center, Seattle,
WA............................................................. 35
Fleener, Craig, Deputy Commissioner, Alaska Department of Fish
and Game,on Behalf of State of Alaska; Accompanied by Douglas
Vincent-Lang, Deputy Commissioner, Alaska Department of Fish
and Game, Juneau, AK........................................... 15
Hoffman, Ana, President/CEO, Bethel Native Corporation, Bethel,
AK............................................................. 33
Isaac, Jerry, President, Tanana Chiefs Conference, Fairbanks, AK. 55
Murkowski, Hon. Lisa, U.S. Senator From Alaska................... 2
Peltola, Gene, Assistant Regional Director, Office of Subsistence
Management, Fish and Wildlife Service, Alaska Region,
Department of the Interior..................................... 6
Pendleton, Beth, Regional Forester for the Alaska Region, Forest
Service, Department of Agriculture............................. 10
Worl, Rosita, Chair, Subsistence Committee, Alaska Federation of
Natives........................................................ 46
Wyden, Hon. Ron, U.S. Senator From Oregon........................ 1
SUBSISTENCE
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THURSDAY, SEPTEMBER 19, 2013
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:36 a.m. in room
SD-366, Dirksen Senate Office Building, Hon. Ron Wyden,
chairman, presiding.
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM OREGON
The Chairman. The purpose of this morning's hearing is to
review the management of fish and wildlife in the State of
Alaska under the Alaska National Interest Lands Conservation
Act, commonly known as ANILCA, and the Alaska Native Claims
Settlement Act.
I'm particularly pleased that Senator Murkowski asked that
we hold this hearing. This topic is of great importance to her
constituents. We heard a lot about it during our visit in
Alaska, and I'm very pleased that Senator Murkowski has made
this a priority for the committee.
While the role of the Federal and State management of fish
and wildlife resources may be an issue that the rest of the
country has little knowledge about, in a State like Alaska,
with over 60 percent of its lands under the jurisdiction of the
Federal Government, it is clear this is a matter of great
importance and it has certainly generated strong feelings,
especially among Native Alaskans and rural residents who depend
on hunting and fishing for their food.
I also understand there are unique management and legal
issues involved as a result of the subsistence language in
ANILCA and a long line of Federal and State court decisions and
any changes to the existing management authorities would be
quite challenging.
In my home State of Oregon, we have a number of issues
regarding the salmon runs on the Columbia and the Klamath
Rivers. I understand that the issues in Oregon are different
than those facing the people of Alaska, but the importance of
having a healthy and sustainable fishery is something that we
Westerners certainly understand and I have supported in my home
State of Oregon.
Now, we look forward to learning more about this issue this
morning, to work with both of the Alaska Senators to explore in
greater detail some of the ideas that I hope will come out of
the hearing.
The Chairman. With that, I'd like to recognize my friend
and colleague, Senator Murkowski, for her opening remarks.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. We've known one
another for a long while. I think you know me as Lisa or
Senator Murkowski or colleague, but for some here in the room,
they know me by my adopted name when I was adopted as a member
of the Deisheetaan Clan several years back, Aan Shaawatk'I, and
the Tlingit translation of Aan Shaawatk'I is Lady of the Land.
It is probably a title or an honor that exceeds all others
of which I have been really honored with. It is a reminder to
me that the responsibilities that I have to the people of the
State of Alaska, so many of them, come back to our lands, very
special to each and every one of us.
So the opportunity today to have a discussion, to begin a
dialog about what happens with the management of our lands, the
management of our lands that sustain our people, is really
quite significant.
So I thank you, Mr. Chairman. I know that this is a very
State-specific issue, and the fact that we are holding this as
part of a full committee I think is indicative of your
willingness to recognize the high priorities that are assigned
in specific states, the high priority that we see as it relates
to the issue of subsistence in Alaska. So thank you for
accommodating my request.
To those, many of you Alaskans who are gathered here in the
room today, thank you for being here this morning, thank you
for coming all the way to Washington, DC.
I know that for some of you this is the end of moose-
hunting season. I had a group of whalers in my office yesterday
who were itching to get back because there was still time to go
out and get yet another whale for the community of, I think,
Barrow had not yet gotten all of theirs.
Our reality is is this is the time of gathering for so many
of our people, and to take the time to come to Washington, DC,
while your families, your friends, your neighbors are engaged
in a time of subsistence activity preparing for winter is
greatly appreciated.
Now, some have asked about why we are having a subsistence
hearing in the energy committee, and I think it's important to
remind folks that it is this committee that has jurisdiction
over ANILCA, the Alaska National Interest Lands Act, and over
ANCSA, the Alaska Native Claims Settlement Act.
Mr. Chairman, I think it's important to point out that, to
my knowledge, a hearing of this nature has never occurred in
this committee. Even though this is the committee of
jurisdiction, it hasn't occurred in this committee since the
enactment of these statutes decades ago.
So with the passage of the statutes nearly 40 years ago
now, and the history that has unfolded since then, I would
suggest that it's long overdue that we examine whether or not
these statutes reflect our priorities as Alaskans today.
Now, prior to this full committee hearing in Washington,
DC, I have held two public meetings in the State this past year
on the issue of subsistence. I was out in the Bethel area and I
was out in the Ahtna Region.
The goal of these meetings was for me to listen firsthand,
to gather testimony directly from residents of rural Alaska on
these issues, understanding that not everyone can make it to
Washington, DC.
Even the many of you who made it here to Washington, DC,
will not be invited to testify at the table. Given the relative
format and the formal format that we have here for Senate
hearings, it just simply doesn't afford everyone who wishes to
to be on the record to do that. So the purpose of those very
public roundtables and listening sessions was to gather as much
as we possibly can.
In both of those public meetings that we held, there was
much discussion about what subsistence really means. Do we use
the word subsistence or do we refer to customary and
traditional use?
One of my strong takeaways was that, at the core of the
discussion, subsistence is about a way of life, pretty basic,
pretty elemental. People, our Native people around the State
identify with a food source, and perhaps, unlike any others in
the country, when you think about the Gwich'in people who
identify themselves as the caribou people or the Inupiat up
north who identify so closely and wholly with the whale. So
many identify themselves with salmon, with moose, as they do in
the Ahtna Region, Athabaskans.
So to identify your, not only your cultures, but, really,
your spirituality with your food source, I think, is something
that is important when we talk about subsistence because it is
more than just putting food on the table.
When we were in Bethel, I heard from many folks who were
very troubled, very upset by the low Chinook salmon runs and
the subsistence fishing closures that came along with those.
The meeting that was in Glenallen up in the Ahtna Region,
the issues of priority were different than in the Y-K Delta,
but the passion that people spoke to was much the same, and,
Mr. Chairman, you note that. The people in your State, your
region, care about what is happening with management of our
salmon resources.
So as we deal with these issues, I think it's important to
recognize it doesn't make any difference what part of the State
you are from, the passion really is very similar. Alaska
Natives, who continue to hunt and fish in their traditional and
customary manners, face regulatory and management challenges
under the current structure.
In the Ahtna Region, we heard so many residents speak about
the issue of trespass that's occurring on their lands. Ahtna
community members on the road system experience what they
referred to as combat hunting--one elder put it that way--as
outsiders compete for the limited hunting opportunities in the
region.
Mr. Chairman, I do think it is appropriate for me to
acknowledge on the record my thanks to all those who did speak
at our public meetings and enter into the record all of those
statements that we collected, make them part of this official
energy committee.
The Chairman. Without objection, that's ordered.
Senator Murkowski. Thank you, Mr. Chairman.
The dual management and differing management regimes on
State and Federal land causes both confusion and frustration
for so many rural Alaska residents.
The Federal Subsistence Board was created through
regulation and continues to be a point of contention among
Alaskans.
We recognize in Alaska that the Federal Government fails to
prioritize land-management decisions for subsistence to ensure
healthy and abundant populations for consumption. A very direct
example of this--and I think we'll hear from Mr. Fleener on
it--is the situation out on Unimak Island with the caribou
population. Unimak is located out in the Alaska Maritime
National Wildlife Refuge.
When the State attempted to act to ensure that the caribou
populations were not going to be wiped out for subsistence
purposes, the Fish and Wildlife Service blocked access to the
State and stated publicly that natural selection is the best
course. This, it's not an acceptable outcome here.
I mentioned before the issues of trespass. How can we work
together to find ways to address these? How do we find a way to
ensure that residents will be able to continue to hunt in their
customary and traditional manner?
Mr. Chairman, I think it's fair to say that, over the
years, there has been heated debate. That's probably a polite
way to put it, but subsistence and wildlife management has
generated a great deal of contention and frustration and really
turmoil at times, and it has been evident back home. It's been
evident here in Washington, DC.
I don't have any illusions that by holding this hearing
today we're going to solve, with one fell swoop, the issues as
they relate to management of our wildlife in this State, but my
goals, really, in advancing this hearing, are to get this
discussion started again, bring the stakeholders together from
the government, from the Native community to educate my
colleagues here on the Energy Committee and within the Senate
to find specific areas of agreement where we can move forward
and address some targeted fixes.
We've done a few very, very small things. We've got the
Glacier Bay gull-egg harvest. We're moving forward on the Tonga
subsistence use cabin act. We've got the duck-stamp provision,
really quite small in scope, very small in scope.
There's so much that I think we recognize needs to be done,
but it can't be done unless we're willing to sit together,
listen to one another, engage in a respectful manner, identify
the flaws in the laws and figure out how we can move together
truly as one people with a common goal in mind.
So with that, Mr. Chairman, I look forward to the testimony
from those who have joined us here today, not only our
government officials, but the many friends who will step
forward and provide their words.
Again, my thanks to you for being a good partner in this
and listening.
The Chairman. Senator Murkowski, you make a number of
important points, and I'm struck by some parallels that we all
share when we're from the West.
What we know is to do this job properly, as it relates to
Western resource issues, as you touched on, you go home, you
spend a lot of time listening to people, and then we have these
official hearings--and I see many from your home State here--
and you listen some more. That's really the only way you can do
Western resource issues responsibly.
I'm struck, again, by the parallels, because, in a few
hours, like you, I'm going to sprint to the airport, and I'm
going to go to the Klamath Basin and Klamath Falls where we're
right on the cusp, after all those citizens have worked and
worked and worked trying to cut through some of the old battles
with respect to resources and have water and healthy fish runs
and help for our farmers, all the issues that we deal with in
the West.
Because of their good work at home in the Klamath Basin,
we're on the cusp of what I think could be a historic agreement
as relates to water and healthy fish runs and eggs and the
like.
Listening to your statement, I think we know that the
formula is listen at home, listen here, try to bring everybody
together. People always walk away.
Senator Murkowski and I say this on resource issues, you
usually can't get everything you want. You usually can't get
everything you deserve, but with Western resource issues, where
people work together, the way I saw folks in Alaska do, in the
way I'm going to see once again in the Klamath Basin, people
can get what they need and----
Senator Murkowski. Isn't there a song about that?
The Chairman. I guess. Senator Murkowski is also my
cultural advisor on things like music.
But part of what we need to do in the West is we need to
have sustainable fish runs. What works in Alaska may not
necessarily be the strategy for Oregon. That may not be the
strategy for another part of the country.
But we're here because Senator Murkowski thought it was
important for us to listen and learn, and I do think it's part
of the strategy we have in the West to do resource issues well.
So I'm really glad your constituents are here and great to be
teaming up again.
So let's go right to our first panel. Mr. Gene Peltola,
Assistant Regional Director, Office of Subsistence Management
at the Fish and Wildlife Service in Alaska.
Ms. Beth Pendleton, Regional Forester, Alaska, Department
of Agriculture, the Forest Service.
Craig Fleener, Deputy Commissioner, Alaska Department of
Fish and Game in Juneau. I believe, Mr. Fleener, yes, you are
accompanied by Mr. Douglas Vincent-Lang, who's also with Fish
and Game in Juneau.
So we'll welcome all of you. We'll make your prepared
remarks a part of the record. It has become part of the lore
around here that we do everything we possibly can to get you to
summarize your remarks. We'll make your prepared remarks a part
of the record, every single word.
I know Senator Murkowski has a number of questions, and I'm
going to support her in the effort to build this record. So
let's begin with you, Mr. Peltola.
STATEMENT OF GENE PELTOLA, ASSISTANT REGIONAL DIRECTOR, OFFICE
OF SUBSISTENCE MANAGEMENT, FISH AND WILDLIFE SERVICE, ALASKA
REGION, DEPARTMENT OF THE INTERIOR
Mr. Peltola. Chairman Wyden and Senator Murkowski, I am
Gene Peltola, Jr., the Assistant Regional Director for the
Office of Subsistence Management with the United States Fish
and Wildlife Service in Alaska Region.
I'd like to tell you a little bit about myself before I get
into a few program specifics. I am a Tlingit Indian and Yup'ik
Eskimo born and raised in Bethel, Alaska. I have lived a
subsistence lifestyle the majority of my life.
Until about 6 weeks ago, I was the Refuge Manager at the
Yukon Delta National Wildlife Refuge also in Bethel, Alaska,
and also the Federal In-Season Fisheries Manager for the
Kuskokwim Region. I'm a nearly 30-year service employee and a
former federally qualified user.
I've served on Alaska Native Corporation Board of
Directors. I've been an Alaska Native Corporation officer, and
I've served in the capacity as a vice mayor in a municipality
in Western Alaska.
I thank you for the opportunity to come before this
committee and present a perspective on the Federal Subsistence
Program.
Alaska Native peoples have relied on subsistence harvest
for thousands of years. They have relied on natural resources
for food, shelter, to make clothing and handicrafts, but, more
importantly, as a means of cultural identity and a mechanism by
which a livelihood is maintained. More recently, the non-Native
rural user has been added to the equation.
Management of subsistence harvests and natural resources is
very complicated. It is governed by many laws that are not
always in agreement, at times have conflicting mandates and may
have differing eligibility criteria.
For example, marine mammal harvests are governed by the
Marine Mammal Protection Act. Under the act, the coastal-
dwelling Native may harvest marine mammals for the creation of
authentic Native handicrafts or as a food source.
Another law, the Migratory Bird Treaty Act, governs the
harvest of migratory birds by indigenous inhabitants of
identified subsistence harvest areas in Alaska.
Subsistence management of land mammals, fisheries and
upland birds is governed by the Alaska National Interest Lands
Conservation Act, which allows for a subsistence preference for
rural residents of Alaska.
I should also note that State of Alaska law governs the
management of subsistence harvests on Alaska Native Corporation
and other private lands, including Native allotments and State
lands.
The Federal Subsistence Management Program began in 1990,
after the Alaska Supreme Court ruled that rural subsistence
priority required under ANILCA violated the State constitution.
Federal management of fisheries was initiated after the
Ninth Circuit Court of Appeals ruled in a case commonly
referred to as the Katie John Case.
The program coordinates management of subsistence resources
and promulgates the regulation of subsistence use by rural
Alaskans on millions of acres of public lands.
As I previously mentioned, subsistence management in Alaska
is very complex. I'd like to highlight an example of this
complexity for my time as the Refuge Manager, Yukon Delta
National Wildlife Refuge.
I was the Federal In-Season Manager for Fisheries along the
Kuskokwim drainage. The Kuskokwim Chinook run is one of
approximately 12 populations in the State of Alaska which has
been experiencing reduced returns over the last several years.
This salmon run, like numerous others throughout the State, is
managed in conjunction with the Alaska Department of Fish and
Game.
As in-season management occurs, the option, we, as
managers, are presented with are to assimilate a State action,
act concurrently or take independent action.
Both the State and Federal Governments have the same
hierarchy with regard to restricted access to a resource. The
first restrictions are to commercial users, then sport and
finally the subsistence user.
Despite the similar hierarchy, differing mandates between
the parties involved may yield a different management action.
Fortunately, this has only occurred 8 times since the inception
of the Federal Fisheries Program in Alaska, 4 independent
management actions occurring along the Yukon and an additional
4 along the Kuskokwim River.
There are many hundreds of management actions taken with
regard to the Federal Subsistence--Federal Fisheries Management
Program have had a concurrent or similar State action.
In closing, subsistence management in Alaska is not an
exact science. It's not perfect, and it is very complex. We
must balance the differing mandates and policies of the parties
involved, yet remain true to our charge of providing for the
continued subsistence use by local rural residents.
Throughout my nearly three-decade natural-resource career,
I have been exposed to numerous individuals who are very
passionate about subsistence management. I am confident that
through their passion and capabilities we will ensure a
sustainable future for subsistence in Alaska.
I'd like to thank the committee for allowing me this
opportunity to testify and be willing to address any questions
I may be able to.
[The prepared statement of Mr. Peltola follows:]
Prepared Statement of Gene Peltola, Assistant Regional Director, Office
of Subsistence Management, Fish and Wildlife Service, Department of the
Interior
Good morning Chairman Wyden, Ranking Member Murkowski, and Members
of the Committee. I am Gene Peltola, Assistant Regional Director for
the Office of Subsistence Management, with the U.S. Fish and Wildlife
Service in Alaska. Thank you for the opportunity to testify before the
Committee regarding harvest of subsistence resources on federal public
lands in Alaska under the Alaska National Interest Lands Conservation
Act (ANILCA).
The mission of the U.S. Fish and Wildlife Service is to work with
others to conserve, protect, and enhance fish, wildlife, plants, and
their habitats for the continuing benefit of the American people. We
take management actions to ensure that these natural resources are
available now, and for future generations of Americans. In Alaska, we
have a special responsibility is to ensure these resources are
available now and in the future for rural Alaskans who rely on
subsistence harvest.
alaska subsistence overview
The customary and traditional harvest and use of natural resources
for food, shelter, clothing, transportation, handicrafts, and trade,
commonly called ``subsistence,'' has a long history in Alaska. Alaska
Native peoples have depended on subsistence for thousands of years. In
more recent history, non-Native peoples living in rural Alaska have
come to rely on natural resources for their livelihoods as well.
The management of subsistence harvests of natural resources is
complicated. It is governed by many laws and statutes that are not
seamless in their mandates, and have differing provisions for who is
eligible to harvest. For example, management of subsistence harvest of
marine mammals is governed by the Marine Mammal Protection Act (MMPA).
Under the MMPA, coastal dwelling Alaska Natives may harvest marine
mammals for subsistence purposes or for the creation and sale of
authentic native handicrafts or articles of clothing. Management of
subsistence harvest of migratory birds is governed by the Migratory
Bird Treaty Act (MBTA). The MBTA was amended to allow for spring/summer
subsistence harvest of migratory birds by Alaska Natives and permanent
resident non-natives with legitimate subsistence hunting needs living
in designated subsistence hunting areas in Alaska.
Within the MBTA Protocol Amendment of 1996, Congress charged the
Secretary of the Interior to promulgate annual regulations for
migratory bird subsistence hunting in Alaska for the purposes of
conserving migratory birds and perpetuating subsistence hunting customs
and cultures. Congress also provided Alaska Natives a meaningful role
in management decisions affecting the customary subsistence hunting
opportunities. The MBTA Protocol Amendment also invited the State of
Alaska to participate in a management body that included Alaska Natives
and the Secretary of the Interior, represented by the U.S. Fish and
Wildlife Service. This led to the creation of the Alaska Migratory Bird
Co-Management Council (AMBCC).
Subsistence management of land mammals, fisheries and upland birds
is governed by Title VIII of ANILCA, which allows for a subsistence
preference for rural Alaskans. In addition, Alaska State laws govern
management of subsistence on State lands and on private lands,
including Alaska Native Corporation lands.
historical background
ANILCA is a wide-ranging law that established 106 million acres of
federal lands as conservation units, including national wildlife
refuges, national parks, preserves, national monuments in the national
forest system and wild and scenic rivers, thereby enlarging federal
holdings dedicated to conservation in Alaska to more than 131 million
acres. Eighty percent of the lands in the National Wildlife Refuge
System are in Alaska and sixty-five percent of all National Park
Service lands are in Alaska. Fifty-six percent of all National
Wilderness Preservation System lands (within national parks, national
wildlife refuges, and national forests) are in Alaska.
Recognizing the unique characteristics of Alaska, and the unique
history of subsistence users in Alaska, Congress also provided in Title
VIII of ANILCA, a priority for rural subsistence uses on federal public
lands in Alaska-well over 230 million acres comprising over 60 percent
of the State.. It is important to note that even though subsistence is
a priority use identified in ANILCA, maintaining healthy populations of
fish and wildlife is the top priority. ANILCA fulfilled the intent of
Congress after passage of the Alaska Native Claims Settlement Act to
provide for a subsistence priority on federal public lands. That
priority was provided to rural residents, rather than to Alaska
Natives, an issue repeatedly raised by the Alaska Native community
since the law passed.
The State of Alaska managed subsistence on federal lands until
1989, when the Alaska Supreme Court ruled that the rural residency
preference required by ANILCA violated the equal access clause of the
Alaska Constitution. As a consequence, from 1992 to the present, the
federal government has engaged in subsistence management on federal
public lands, and assumed additional subsistence responsibilities for
management of subsistence fisheries in 1998.
In 2009, the Secretary of the Interior conducted a review of the
federal subsistence management program. The intent of the review was to
``ensure that the program is best serving rural Alaskans and that the
letter and spirit of Title VIII are being met.'' As a result of the
review, the Secretary of the Interior, with the concurrence of the
Secretary of Agriculture, made recommendations for changes which were
adopted by federal regulators and administrators, or are in the process
of being adopted.
the federal subsistence management program
The Secretaries of the Interior and Agriculture delegated authority
to manage the subsistence priority use on federal public lands to the
Federal Subsistence Board (FSB). The FSB is comprised of eight members,
including: the Regional Directors of the U.S. Fish and Wildlife
Service, the National Park Service, and the Bureau of Indian Affairs;
the State Director of the Bureau of Land Management; and the Regional
Forester of the U.S. Forest Service. Three public members who represent
rural subsistence users are also members of the board, and one serves
as the FSB's chair. These board members are appointed by the Secretary
of the Interior, with the concurrence of the Secretary of Agriculture.
The Federal Subsistence Management Program is multi-faceted. It
involves five federal agencies, a federal and public-member decision-
making board, 10 Subsistence Regional Advisory Councils, and
partnerships with Alaska Native and rural organizations as well as with
the State of Alaska.
The Office of Subsistence Management, administratively housed in
the U.S. Fish and Wildlife Service, is responsible for facilitating and
providing administrative and technical support to implement the
program. In addition, the U.S. Fish and Wildlife Service provides
fisheries expertise that focuses on in-season management and conducting
biological assessments and monitoring to ensure that subsistence
harvests are consistent with conservation goals. The U.S. Fish and
Wildlife Service is also responsible for extensive outreach and tribal
consultation responsibilities. Other agencies within DOI and the US
Forest Service, represented on the Federal Subsistence Board, have
similar conservation, enforcement, outreach, and consultation
responsibilities.
The Subsistence Regional Advisory Councils are a unique feature of
federal subsistence management. Each of these councils represents a
region of the state. The councils have the authority to develop
proposals for regulations, policies, management plans, and other
matters relating to subsistence uses of fish and wildlife. The councils
hold two or more public meetings every year to gather local
information, and make recommendations to the Federal Subsistence Board
on subsistence issues. The board seriously considers council
recommendations, and routinely defers to the local wisdom of these
councils in making decisions about subsistence regulations affecting
the councils' regions.
In addition to promulgating subsistence regulations, the Federal
Subsistence Board contributes substantially to fisheries knowledge by
funding research on the status of fish stocks, subsistence harvest and
use patterns, and the collection and analysis of traditional knowledge.
current issues
The Secretaries of the Interior and Agriculture recommended that
the Federal Subsistence Board revisit the process for determining rural
status in Alaska. The current process for determining rural status may
not accommodate demographic, economic and infrastructural changes in
Alaska. The Federal Subsistence Management Program is currently
involved in a review of the rural determination process, starting with
public input, and will provide the Secretaries with a report and
recommendations in 2014.
The federal program is also involved in a number of pressing
natural resource issues. Prominent among these are declining Chinook
salmon stocks within the Yukon and Kuskokwim River Drainages.
The 2013 Chinook salmon returns on both the Yukon and Kuskokwim
Rivers are among the worst on record. Reasons for the unprecedented low
returns are not known, although ocean conditions, by-catch in high seas
fisheries, and in-river harvests are likely contributing factors. Rural
Alaskans are highly dependent on salmon runs, and Chinook salmon are an
especially valued and important resource. Subsistence harvests have
declined in recent years, consistent with reduced runs and commensurate
restrictions on harvests. In preparation for the 2013 season, the U.S.
Fish and Wildlife Service and the Alaska Department of Fish and Game
worked throughout the year to ensure local people have a meaningful
voice in management. The agencies held numerous public meetings, tribal
consultations, and teleconferences. Nonetheless, the 2013 Chinook
returns were very poor, escapement (the number of fish reaching the
spawning grounds to provide for future returns) goals have not been
met, and subsistence and other users have been adversely affected.
Preliminary indications are that the Kuskokwim River Chinook salmon
escapement may be the lowest on record and none of the tributary
escapement goals will be achieved. On the Yukon River, despite the
season-long restrictions on the U.S. portion of the river, the Canadian
border passage and escapement goal for Chinook salmon will again not be
met this year. This has consequences for the future of the run, as 50
percent of U.S. harvests are of Canadian origin.
successes and challenges
Since 1990, the Federal Subsistence Program has ensured that rural
residents in Alaska have the opportunity to pursue a subsistence way of
life, as envisioned by Congress and enacted in ANILCA. Our success has
been demonstrated by our ability to hear concerns of the user groups
and craft regulations that meet subsistence needs while ensuring
sustainable resources. We are balancing the demands of the subsistence
user with multiple legal mandates, and other public interests.
Decisions are carefully weighed, with public involvement, to consider
harvest limits that comply with federal and state laws and
international treaties while providing subsistence use whenever
possible.
Challenges regarding sustainable resource management are compounded
by multiple jurisdictions (state, federal, international) governing the
same resources. Management challenges shift with Alaska's changing
economy, demographics, and infrastructure. Alaska is experiencing
decreased runs of Chinook salmon, changes in the migration patterns of
caribou, and changes in the arrival date of migrating birds to their
breeding grounds. There are also changes to habitat such as the
salinity of water and the successional stages of vegetation. The
uncertainly of current and future effects of climate change also add to
the complexity of resource management. Although future challenges are
unknown, we do know they will occur and we must be responsive to them
if we are to be successful in conserving fish, wildlife and their
habitat for current and future generations.
conclusion
The Department of the Interior thanks the Committee for its
interest in this important issue and for its leadership in protecting
our nation's natural resources. Achieving ANILCA's intent to conserve
natural resources in Alaska for the long term, and to ensure that
robust subsistence opportunities are also preserved, is a key component
of the broader goal of maintaining America's wildlife heritage for
future generations. We welcome the opportunity to work with the
Committee on subsistence management issues and are happy to provide
additional information at the request of the Committee. This concludes
my testimony and I am happy to answer any questions the Committee may
have.
The Chairman. Very good. Ms. Pendleton.
STATEMENT OF BETH PENDLETON, REGIONAL FORESTER, ALASKA REGION,
FOREST SERVICE, DEPARTMENT OF AGRICULTURE
Ms. Pendleton. Good morning, Chairman Wyden and Senator
Murkowski, and thank you for inviting me here today to testify
about the Federal Subsistence Management Program in Alaska.
I'm Beth Pendleton, and, as the Regional Forester, I have a
delegated authority by the Secretary and through the Chief of
the Forest Service to act on the Secretary's behalf as it
relates to the statewide implementation of Title VIII of
ANILCA.
Subsistence or customary traditional hunting, fishing and
gathering is both the livelihood and a way of life for many
rural residents.
In ANILCA, Congress found that subsistence way of life by
rural Alaskans is essential to their physical, economic,
traditional, cultural and social existence.
Although many Alaska Native people object to the use of the
term subsistence, as do I--because, to many, it suggests just
getting by--I'll use the term, since that is what is used in
ANILCA.
My statement will emphasize the Forest Service role and
discuss the program review conducted by the Secretaries of the
Interior and Agriculture in 2009 and 2010.
My detailed testimony has been submitted to the committee.
For Alaska, the Forest Service has a substantial role in
determining population levels and in developing appropriate
harvest regulations for wildlife and fish on the national
forests.
Sustainable management requires accurate and timely
information about the abundance, health and distribution of
fish stocks and wildlife populations that contribute to the
subsistence use by rural residents. Much of this information is
developed through Forest Service-issued competitive contracts
with tribes and other Native and local organizations.
In addition to providing essential biological data, these
contracts create local jobs, build capacity within communities,
incorporate traditional ecological knowledge and involve
subsistence users in meaningful stewardship roles.
For example, in Hydaburg in Southeast Alaska, there are 5
fisheries monitoring jobs that employ community members through
the subsistence program.
In my experience, the 10 Regional Advisory Councils are why
this program works so well. The councils are made up of citizen
representatives appointed by the Secretary of the Interior with
concurrence of the Secretary of Agriculture.
The councils represent a bottom-up management where local
people have a real and substantial role in guiding this
program. For example, the Southeast Alaska Regional Advisory
Council Subsistence Harvest Recommendations for Sitka Black-
Tailed Deer on Prince of Wales Island ensures a rural priority,
yet continues to allow for use by and through others for sport
hunting.
Next, I'd like to talk a little bit about the Forest
Service delivery of the program. Since fiscal year 2000,
Congress has had an appropriation line item for the Forest
Service Subsistence Program. Funding has ranged from a high of
$5.9 million in 2005 to the current lowest level of
approximately $2\1/2\ million.
With those funds, the Forest Service establishes a
regulatory program, supports operations of the Regional
Advisory Councils, monitors populations, and, when possible,
undertakes education and enforcement activities. It has become
increasingly difficult to deliver the subsistence program on
National Forest System lands as those funds have decreased.
Finally, I'd like to speak just briefly on the Secretary's
review. I want you to know that, among other things, the
Secretary has directed increasing the size and representation
on the Federal Subsistence Board to include two subsistence
users and expand deference provided to the Regional Advisory
Councils.
In the year since we've added the two board members, Tony
Christianson from the community of Hydaburg and Charlie Brower
from the community of Barrow, and given that expanded deference
to the RACs, in my view, we have substantially increased
accountability to our rural communities.
Another area that the Federal program has vastly improved
is in our tribal consultation. We have developed a tribal
consultation policy in collaboration with Federal managers and
tribal representatives.
This concludes my statement, and I would be happy to answer
any questions that you might have. Thank you.
[The prepared statement of Ms. Pendleton follows:]
Prepared Statement of Beth Pendleton, Regional Forester for the Alaska
Region, Forest Service, Department of Agriculture
Mr. Chairman, Ranking Member Murkowski and Members of the
Committee, thank you for inviting me here today to testify about the
Federal program in Alaska that provides a rural priority for the
customary and traditional harvesting of fish and wildlife on federal
public lands, otherwise known as subsistence. As the Regional Forester,
I am delegated authority by the Secretary of Agriculture, through the
Chief of the Forest Service, to act as the Secretary for all aspects
associated with the implementation of Title VIII of the Alaska National
Interest Lands Conservation Act, also known as ANILCA.
The Mission of the Forest Service is to sustain the health,
diversity and productivity of the Nation's forests and grasslands to
meet the needs of present and future generations. Wildlife and
fisheries management under ANILCA contribute to the Forest Service
fulfilling its mission in Southeast and South Central Alaska.
subsistence
Subsistence, or customary and traditional hunting, fishing and
gathering, is both the livelihood and a way of life for many rural
residents of Alaska. It is protected by ANILCA, as signed into law in
1980. Although many Alaska native people object to the use of the term
`subsistence,' as do I, because to many it suggests `just getting by,'
I will use the term since it is used in ANILCA. The Federal
jurisdiction over subsistence hunting and fishing extends to
approximately 60 percent of the State's land base, including the
Tongass National Forest in Southeast Alaska and the Chugach National
Forest in South-central Alaska.
In ANILCA, Congress found that continuation of the subsistence way
of life by rural Alaskans is essential to their physical, economic,
traditional, cultural and social existence. This applies not only to
Alaska Native people, but to non-Native rural residents as well.
Hunting and fishing reflect vital relationships of people and land that
are woven into the history, cultural identity, and community life of
rural Alaskans. As well, the lack of roads in Alaska means that many
rural people have little or no access to grocery stores, and even if
they did, those foods are likely to be unaffordable and lacking in
variety.
the establishment of the federal role for subsistence management
Prior to late 1989, the State of Alaska had management authority
over subsistence, sport, and commercial uses of Alaska's wildlife and
fish resources across all lands. Eligibility for subsistence use under
State of Alaska management, based on the concept of rural preference,
was consistent with the Federal requirement in Title VIII of ANILCA. In
1989, the Alaska State Supreme Court ruled in McDowell v. Alaska that
the rural priority for subsistence use violated the Alaska State
Constitution. Mr. McDowell had challenged whether the state could give
a subsistence priority only to rural people when the Alaska
Constitution calls for common use of fish and wildlife resources by all
Alaskans. The court found in Mr. McDowell's favor, which placed the
State out of compliance with ANILCA. Pending the State's resolution of
its constitutional conflict, the Federal government, since 1990, has
administered the rural subsistence priority for wildlife resources on
nearly all Federal lands in Alaska.
Federal responsibility to manage subsistence fisheries was
subsequently added following the Ninth Circuit Court of Appeals
decision in Alaska v. Babbitt, commonly referred to as the Katie John
case, in 1995. That decision resulted in Federal management of
subsistence fisheries in waters associated with most federal lands and
added significant responsibility and cost to Federal subsistence
management. Federal subsistence fisheries regulations became effective
October 1, 1999.
No legislative or judicial solution is expected in the foreseeable
future that would enable the State of Alaska to comply with ANILCA
provisions and to thereby resume management of subsistence hunting and
fishing on federal public lands and waters.
federal subsistence management
The Secretaries of the Interior and Agriculture are legally bound
to manage fish and wildlife for the rural subsistence priority on
Federal land and water because the State of Alaska is not able to do so
in accordance with the provisions of ANILCA. To that end, the
Secretaries created the Federal Subsistence Board, made up of the
Alaska agency heads of the U.S. Fish and Wildlife Service, National
Park Service, Bureau of Indian Affairs, Bureau of Land Management, and
the U.S. Forest Service, and an appointed chair and two members
representing rural subsistence users. The Board establishes all federal
subsistence hunting and fishing regulations. The Board is generally
required to follow the recommendations of 10 regional advisory councils
in decisions concerning the taking of fish and wildlife (ANILCA Sec.
805). The councils are made up of citizen representatives appointed by
the Secretary of the Interior, with the concurrence of the Secretary of
Agriculture, under the terms of the Federal Advisory Committee Act.
The Alaska Region Subsistence Program represents a unique Forest
Service role in wildlife and fisheries management. Normally, the Forest
Service role is confined to habitat management, with the state
conducting population management. In Alaska, the Forest Service and
other Federal agencies have a substantial role and workload in
determining population levels and developing appropriate subsistence
harvest regulations for wildlife and fish on almost all federal lands
and waters within the State of Alaska, and enforcing those regulations.
The USDA and Forest Service fully accept our responsibilities toward
subsistence users and resources and have made significant progress
toward meeting the ANILCA commitments over the past 23 years.
Among the Federal agencies implementing the program, my Agency, the
U.S. Forest Service, has a unique role. For all the Federal agencies,
the Office of Subsistence Management, housed in the U.S. Fish and
Wildlife Service's Regional Office in Anchorage, manages technical and
administrative aspects of the program. Four agencies of the Department
of the Interior participate in the program (Bureau of Indian Affairs,
Bureau of Land Management, U.S. Fish and Wildlife Service, and National
Park Service); however there is only one U.S. Department of Agriculture
agency; the Forest Service. The Forest Service supports all regulatory
action on Federal public lands in Southeast Alaska including: 1)
providing funds for the Southeast Alaska Subsistence Regional Advisory
Council: 2) through the Regional Forester providing support to the
Secretary of Agriculture, paralleling the role of the Secretary of the
Interior; and, 3) funding all fish and wildlife population assessment
and monitoring on National Forest System lands.
Since the year 2000, Congress has appropriated funds by line item
to the Forest Service for the Subsistence Program. Funding has ranged
from a high of $5.9 million in 2005 to the current level of
approximately $2.5 million. With those funds, the Forest Service
implements a comprehensive regulatory program, monitors fish and
wildlife populations, and when possible undertakes education and law
enforcement activities.
Wildlife and fisheries monitoring is accomplished in part through
R&D efforts in Sustainability and Resource assessments, which provide a
national context for local decision-making as well as key indicators of
resource conditions over time. For example, the 2010 USFS National
Report on Sustainable Forests provides a comprehensive picture of
forest conditions in the United States as they relate to the
ecological, social and economic dimensions of sustainability. At the
local level, sustainable management of subsistence hunting and fishing
requires accurate and timely information about the abundance, health,
and distribution of fish stocks and wildlife populations. Much of this
critical information is developed through competitive contracts with
Tribes and other Native and local organizations that undertake harvest
monitoring, possess traditional ecological knowledge, and perform stock
assessment field projects. In addition to providing essential
biological data, these contracts create local jobs, build capacity
within communities, and involve subsistence users in meaningful
stewardship roles. For example, the Hydaburg Cooperative Association,
Sitka Tribe of Alaska and Organized Village of Kasaan (among others)
each have functioned as principle investigators, hired local residents,
and have been able to merge modern science of fisheries management with
traditional ecological knowledge, thereby sharing in the stewardship of
salmon runs with federal managers.
A key aspect of the Federal Subsistence Program is the role of the
Regional Advisory Councils. The councils were formed, as required by
Title VIII of the ANILCA, to provide recommendations and information to
the Federal Subsistence Board, to review policies and management plans,
and to provide a public forum for subsistence issues. Councils
represent bottom-up management, where local people have a substantial
role in guiding the program. Each of the State's ten regions has an
advisory council consisting of local residents who are knowledgeable
about subsistence and other uses of fish and wildlife in their area.
The councils meet at least twice each year. A representative of each
council attends each Federal Subsistence Board regulatory meeting
providing council recommendations. Council recommendations concerning
the take of fish and wildlife must be followed unless the Board
determines that the recommendation is not supported by substantial
evidence, violates recognized principles of fish and wildlife
conservation, or would be detrimental to the satisfaction of
subsistence needs.
the comprehensive review of the federal subsistence program
In 2009, the Secretary of the Interior undertook a comprehensive
review of the Federal Subsistence Program. With the concurrence of the
Secretary of Agriculture, the Secretary of the Interior directed a
number of actions in 2010. Key direction from the Secretaries included:
expand the Federal Subsistence Board with addition of members
representing subsistence users, expand deference to the Regional
Advisory Councils, and review with Council input the Memorandum of
Understanding with the State of Alaska, the customary and traditional
use determination process, and the rural/non-rural determination
process. Selection of additional Board members and expansion of the
Board's deference are complete, with the other items underway.
Of considerable interest to many Alaskans is the Board's review of
the rural determination process. In 2007 the Board determined that a
number of currently rural areas should become non-rural and therefore
ineligible for the Title VIII subsistence priority. That highly
controversial decision has been put on hold pending the outcome of this
rural review. Following public comment and tribal consultation in a
pre-rule-making process, the Board will make a recommendation to the
Secretaries on the rural process in the spring of 2014, after which the
Secretaries may commence rule-making which would include additional
public comment and Tribal consultation.
The Federal Subsistence Board has spent considerable time over the
last few years developing tribal consultation policy and implementation
guidelines. All policy and guideline development has been developed by
an equal team of Federal managers and Tribal representatives from
around the State. The tribal consultation policy is complete, and
implementation guidelines are anticipated to be finalized by the
Federal Subsistence Board in January. Recognizing that the Board must
generally defer to the recommendations of the Regional Advisory
Councils, the program is doing its best to balance Council
recommendations and the results of Tribal consultation. The Program is
also working on Alaska Native Claim Settlement Act (ANCSA) corporation
consultation policy and implementation guidelines. That policy is in
draft form while guideline development has not yet started. Consistent
with Public Law 108-199, as amended by Public Law 108-447, consultation
with ANCSA corporations is required on the same basis as with tribes.
summary and conclusion
Federal subsistence management achievements include developing the
staff infrastructure and expertise needed to carry out critical
subsistence management functions and the establishment of regional
advisory councils to facilitate the meaningful participation of
subsistence users. We have built strong relationships with Alaska
Tribes, with other subsistence user organizations, and with communities
in Alaska. The Forest Service is well integrated with the other federal
agencies with which we share responsibility for subsistence management,
while we maintain a lead role on National Forest System lands and
waters. We work closely with State of Alaska natural resource managers
and support cooperative State-Federal projects.
Sustainable management of subsistence hunting and fishing requires
accurate and timely information about the abundance, health, and
distribution of fish stocks and wildlife populations. Much of this
critical information is developed through service contracts with Tribes
and other Native and local organizations. In addition to providing
essential biological data, these contracts create local jobs, build
capacity within communities, and involve subsistence users in
meaningful stewardship roles.
In summary, the USDA and Forest Service fully accept our
responsibilities toward subsistence users and resources and have made
significant progress toward meeting this commitment over the past 23
years. Subsistence management, a Forest Service program unique to the
Alaska Region, is a key program for fulfilling the Agency's mission.
This concludes my statement and I would be happy to answer any
questions that you may have.
The Chairman. Ms. Pendleton, thank you. Let's welcome now
Mr. Fleener. Mr. Vincent-Lang, do you desire to make any
comments, too?
Mr. Vincent-Lang. Mr. Fleener will be making our comments.
I'm available for questions.
The Chairman. Very good. Mr. Fleener.
STATEMENT OF CRAIG FLEENER, DEPUTY COMMISSIONER, ALASKA
DEPARTMENT OF FISH AND GAME, ON BEHALF OF THE STATE OF ALASKA;
ACCOMPANIED BY DOUGLAS VINCENT-LANG, DEPUTY COMMISSIONER,
ALASKA DEPARTMENT OF FISH AND GAME, JUNEAU, AK
Mr. Fleener. Good morning, Chair Wyden, Senator Murkowski.
I am Craig Fleener, the Deputy Commissioner for the Alaska
Department of Fish and Game, and with me today is Doug Vincent-
Lang, Director for the Division of Wildlife Conservation.
Thank you for this opportunity to testify.
[Speaking in the Gwich'in language]
Mr. Fleener. I am from Fort Yukon, Alaska, located in the
Yukon Flats National Wildlife Refuge about 8 miles north of the
Arctic Circle, and I've hunted and fished my entire life, and
subsistence is a critical component of my life.
I've served on the Eastern Interior Federal Regional
Subsistence Advisory Council. I've served on the Board of Game
and a wide number of other panels and committees that have
basically led to the position I'm in today.
Alaska, the last frontier, is unique in that fish and
wildlife are important not only to our economy, but to our
quality of life. Alaska's wild resources provide us critical
sources of food, clothing and materials.
Imagine living life in the coldest, darkest, furthest
north, most remote locations in America where nearly no roads
or industry exist and where development, jobs and grocery
stores are far removed from communities. Imagine your income,
the survival of your family, your very existence tied to your
ability to obtain fish and wildlife.
These images lay the foundation of a very unique aspect of
the Alaskan constitution that requires the department to
actively manage wildlife to provide ample populations for the
sustenance and benefit of our people.
To fulfill our mandate, we employ active management tools,
for example, predator control and habitat manipulation, to
sustainably increase the abundance of species that provide
important hunting opportunities for Alaskans. We cannot take a
passive, hands-off approach, which would risk the future
viability of essential populations that feed our families.
The State program is highly responsive to the needs of
Alaskans. When a community identifies an inability to meet
their needs or opportunity for improvement that should be
considered, our boards, the Alaska public and the Department of
Fish and Game work collaboratively to identify the concern
through scientific analysis, community-based anthropological
subsistence surveys and public discourse to reach a solution.
If the proposed solutions are lawful, the department and
regulatory boards almost always support allowing additional
opportunity.
Our objective is to maximize harvest opportunity within the
limits of biological sustainability. The Alaska Native Claims
Settlement Act and the Alaska National Interest Lands
Conservation Act, ANCSA and ANILCA, require the Federal
agencies to manage wild resources in Alaska to meet the
substance needs of rural Alaskans.
Federal agencies have the authority to implement active
management on their lands, although they have not done so, to
meet subsistence needs.
Interestingly, there are Federal active management programs
throughout the rest of the country to kill predators to enhance
threatened bird populations. They employ hatchery programs that
enhance fishing opportunities, and they even use supplemental
feeding of non-native species like horses and burros, but no
such program exists in Alaska to meet subsistence users' needs.
Furthermore, the authority and responsibility for Federal
active management was strengthened under both ANILCA and ANCSA.
We believe Congress definitively spoke in these acts on the
importance and priority of ensuring that subsistence needs are
met.
It is our view that the Federal agencies should be viewing
the National Park Organic Act and Refuge Improvement Act
through the lens of ANILCA and ANCSA instead of vice-versa as
is currently being done. Congress needs to ensure this
direction is implemented by Federal land-management agencies.
In most cases, when it comes to meeting the necessities of
life, the Federal agencies have forgotten or neglected the
promises made under these laws. ANCSA and ANILCA were written
to ensure subsistence holds a special place requiring special
dispensation and that wild resources in Alaska must be actively
managed in order to meet the basic food requirements of
Alaskans.
You can't provide a season without providing the wildlife
necessary to meet people's needs and think you were being
successful.
The Federal subsistence framework in Alaska has been a
source of great consternation amongst federally qualified
subsistence users since its inception. They've pleaded for
active management on Federal lands and for Federal land
managers to work with the State to improve important
populations like moose, caribou and deer.
Perhaps the greatest complication for a subsistence
community is dual regulation of fish and game resources.
Conflicting regulations, divergent agency mandates and
different management strategies create confusion for the
hunting and fishing community in Alaska, and every year new or
duplicative regulations are created to address situations where
Federal managers have disagreed with the Alaskan Board of Game.
This is not improving subsistence in Alaska.
With over 60 percent of the land in Alaska under Federal
ownership, it is nearly impossible to provide adequate
subsistence foods to Alaskans, people that live near national
parks, refuges or forests. Thus, State managers have been
hobbled in their attempts to achieve management goals.
In conclusion, the State has 4 recommendations to ensure
subsistence needs are being met in Alaska. One is to clarify
the importance of subsistence and allow State managers to
conduct active management programs on Federal lands.
No. 2, maintaining adequate funding necessary for research
to support subsistence users, rather than maintaining
unnecessarily duplicative regulations.
No. 3, Federal agencies must fund the incorporation of
State data, research and expertise into the Federal regulatory
process.
Finally, avoiding expensive and duplicative programs,
especially during this time of Federal austerity.
Thank you very much for the opportunity to testify.
[The prepared statement of Mr. Fleener follows:]
Prepared Statement of Craig Fleener, Deputy Commissioner, Alaska
Department of Fish and Game, on Behalf of the State of Alaska
Good morning, Chairman Wyden, Ranking Member Senator Murkowski, and
members of the Senate Energy and Natural Resources Committee. My name
is Craig Fleener. I am a Deputy Commissioner for the Alaska Department
of Fish and Game, hereinafter referred to as the Department. With me
today is Doug Vincent-Lang, Director for the Division of Wildlife
Conservation. Thank you for the opportunity to testify regarding
wildlife management authority within the State of Alaska under the
Alaska National Interest Lands Conservation Act and the Alaska Native
Claims Settlement Act.
Alaska--the ``Last Frontier''--is unique among all the states in
that our fish and wildlife are essential to our quality of life,
providing critical sources of food, clothing, and materials to our
people. Alaskans inhabit the coldest, darkest, and most remote
locations in the United States. In many communities there are no roads,
industry, development, jobs, or grocery stores.
Imagine your existence and the survival of your family being tied
to your ability to obtain sustenance from nature. Also imagine your
income being tied to hunting and fishing. Unlike in much of the lower
48, wildlife conservation in Alaska is a matter crucial to our quality
of life.
So crucial in fact that subsistence hunting and fishing are a vital
food source for Alaskans. They provide about 44 million pounds of wild
foods taken annually by residents of rural Alaska, or about 375 pounds
per person per year. Ninety-five percent of rural households consume
subsistence-caught fish.
state subsistence framework
The unique realities of Alaskan life are reflected in Alaska's
Constitution, which requires the Department to actively manage fish and
wildlife to provide ample populations for the sustenance and benefit of
our people (Article VIII, Sections 1, 2, 3, and 4). To fulfill our
mandate, we employ active management tools (e.g. predator control or
habitat manipulation) to sustainably increase the abundance of species
that provide important hunting and fishing opportunities. We cannot
take a passive, hands-off approach, which would risk the future
viability of essential populations that feed our families.
The State of Alaska relies on a strong statutory, regulatory, and
management framework, designed to meet the needs of Alaskans. Because
fish and wildlife are critical for so many Alaskans, our system
provides extensive opportunity for user input. It allows for each
Alaskan to identify a management issue and submit a proposal to address
the issue. The proposal will then receive the attention of one of more
than 80 Fish and Game Advisory Committees throughout the state, where
the author of the proposal can garner support or improve the proposal.
Finally, Alaskans can argue the merits of proposals before the Alaska
Board of Game or Fisheries for approval and codification into
regulation.
The State program is highly responsive to the needs of Alaskans.
When a community identifies an inability to meet their needs or an
opportunity for improvement that should be considered, the Alaska
Boards of Game and Fisheries, the Alaskan public, and the Department
work collaboratively to identify the concern through scientific
analysis, community based anthropological subsistence surveys, and
public discourse, to reach a solution. If the proposed solutions are
lawful and will not harm wildlife or fish populations, the Department,
and Game and Fisheries Boards almost always support allowing additional
opportunity.
The State's objective is to maximize harvest opportunity within the
limits of biological sustainability. Whenever fish or wildlife
populations are not sufficient to meet all uses, subsistence takes
priority. Further, if deemed necessary, the Board of Game will
authorize the Department to actively manage wildlife populations
important for subsistence.
Alaska has an excellent record for managing its fish and game
resources. Our system relies on the best available information based
upon data, research, and local and traditional knowledge, along with
science-based adaptive decision making and a transparent public
process. We are recognized as worldwide leaders in the field of
wildlife research and management.
examples of successful state management
The State's subsistence management framework produces positive
results for subsistence users. The Southern Alaska Peninsula caribou
herd serves as a clear example. This herd, once numbering in excess of
10,000 animals in 1983, fell to 1,500 in the 1990s. Further decline
resulted in hunting closures, including subsistence hunting, and in
unmet subsistence needs. When the herd bottomed out at some 600 animals
in 2007, a tipping point was reached. Without active management
intervention, extirpation became the likely outcome.
Department research determined that sufficient forage was available
and was not a limiting factor for the herd. Disease also was ruled out.
A 2007 survey indicated the caribou were reproducing normally and that
pregnancy rates were moderately strong, yet young animals were all but
absent. Something was stifling herd growth and accelerating its decline
by killing caribou calves at an alarming rate. Biologists identified
wolves, the region's most efficient wild predators, as the likely
culprit. Opportunists by nature and necessity, wolves had set up
denning operations in the midst of the Southern Alaska caribou calving
grounds.
In 2008, the Department launched a scientifically designed,
targeted, active management program to reduce wolf numbers on the
calving grounds. At the time, some 60 to 80 wolves in nine to 13 packs
were estimated to occupy the region of concern. Twenty-eight wolves
were removed from the area during the caribou calving season in 2008,
eight in 2009, and two more in 2010. The combined take represented an
average of 19 to 25 percent of the area's original wolf population.
By the time the active management work was completed, caribou calf
survival had rebounded and the perilous decline in the Southern Alaska
Peninsula caribou had been reversed. As a result, the Department was
able to reestablish regional hunting opportunities, benefitting
Alaskans in communities such as Nelson Lagoon, Sand Point, King Cove,
and Cold Bay. Meanwhile, wolf numbers in the region remain at healthy,
biologically sound levels. Notably, our federal partners declined to
join this effort by denying State managers access to federal lands.
Many similar examples exist across Alaska, from Nelchina and
Fortymile caribou, to North Slope muskoxen, to Yukon River moose. In
total, the State's active management programs comprise less than 10
percent of the State's land area, but the benefit to subsistence users
has been immense. In each case, the Department has taken proactive
steps to ensure populations can meet the needs of our people. Overall,
our programs have shown success and are providing additional hunting
opportunities for Alaskans, including rural Alaskans dependent upon
these resources for subsistence. Given this success, we are committed
to our active management program.
federal subsistence framework
The Alaska Native Claims Settlement Act (ANCSA) and the Alaska
National Interest Lands Conservation Act (ANILCA) require the federal
agencies to manage wild resources in Alaska to meet the basic food
requirements of rural Alaskans.
According to Section 801(4) of ANILCA:
``[I]n order to fulfill the policies and purposes of the
Alaska Native Claims Settlement Act and as a matter of equity,
it is necessary for the Congress to invoke its constitutional
authority over Native affairs and its constitutional authority
under the property clause and the commerce clause to protect
and provide the opportunity for continued subsistence uses on
the public lands by Native and non-Native rural residents . .
.''
The federal government has attempted to create a parallel
subsistence program to the State's with ten advisory councils and a
decision making board. The Federal Subsistence Board, however, does not
have the authority to compel federal land managers to employ active
management on federal land. It only possesses the authority to set
seasons, bag limits, and methods and means of harvest for federally
qualified users hunting and fishing on federal lands in Alaska.
The federal agencies that can authorize active management, like the
U.S. National Park Service (NPS) and U.S. Fish and Wildlife Service
(FWS) have typically rejected active management measures in Alaska.
They have based their decisions on agency interpretations of the
National Wildlife Refuge System Improvement Act of 1997 and the
National Park Service Organic Act of 1916, and their emphasis on
``natural diversity'' and ``park values,'' respectively. As a result,
the federal agencies have not actively managed wildlife populations to
meet subsistence needs.
Interestingly, there are federal active management programs
throughout the rest of the country that kill predators to enhance
threatened bird populations, employ hatchery programs that enhance
fishing opportunities, and even used the supplemental feeding of non-
native species like horses and burros. However, no such programs exist
in Alaska to ensure that federally qualified subsistence users have
adequate moose, caribou, and deer to feed their families.
The federal subsistence framework in Alaska has been a source of
great consternation amongst federally qualified subsistence users since
the inception of the program in 1990. Qualified users have pleaded for
active management on federal lands and for federal land managers such
as the FWS and the NPS to coordinate with the State to increase
important subsistence wildlife populations like moose, caribou, and
deer.
Federal agencies have the necessary authority to implement active
management on their lands. The authority and responsibility for active
management was strengthened under both ANILCA and ANCSA. We believe
Congress definitively spoke in these acts on the importance and
priority of ensuring that subsistence needs are met. It is our view
that the federal agencies should be viewing the National Park Organic
Act of 1916 through the lens of ANILCA and ANCSA, instead of vice
versa, as is currently being done. Congress needs to ensure this
direction is implemented by federal land management agencies.
With over 60 percent of land in Alaska under federal ownership, it
is nearly impossible for the State managers to provide adequate
subsistence foods to Alaska's people that live in or near National
Parks, Refuges, or Forests without the assistance of federal managers.
Thus, State managers have been hobbled in their attempts to achieve
their management goal.
failures in federal management
The failure of the federal agencies to employ active management
practices on federal land has produced negative consequences. This is
best exemplified on Unimak Island. Like caribou on the South Alaska
Peninsula, the caribou population on Unimak Island plummeted with the
likely cause being wolf predation. Hunting, including subsistence
hunting, was closed, affecting the residents of the island's community
of False Pass who have a demonstrated history of subsistence use of
this herd. In response, the State attempted to work with the FWS, the
principle land manager, to reduce predation and improve calf
recruitment through an active management, wolf reduction program, in
hopes of reopening caribou subsistence hunting. The FWS declined and
instead warned the State in a letter that if we took action, we would
be arrested and charged in federal court.
In July 2010, the FWS and the State entered into a cooperative
agreement to develop an Environmental Assessment related to management
actions needed to provide for the sustainability of the Unimak Island
caribou herd. In March 2011, the FWS selected the ``No Action''
alternative, which prevented any State sanctioned program to ensure the
native caribou would not be extirpated from the island. The FWS
determined that provisions of the Wilderness Act of 1964 and the
agency's Biological Diversity Policy trumped refuge purposes, including
the conservation of caribou and the provision of subsistence
opportunities to sustain a remote population of indigenous peoples.
Quite disturbingly, State managers were informed that allowing the
caribou to become extirpated from the island, or ``blink out'' as the
FWS leadership described it, was not considered inconsistent with the
refuge management plan.
In May 2011, the State requested the FWS to reconsider its decision
and allow the effort to proceed based on new information suggesting
extirpation of the herd was likely without intervention. The FWS said
it would not do so. The State and FWS remain deadlocked, while the herd
continues its decline towards likely extirpation.
In the meantime, the residents of False Pass continue to have their
caribou hunting opportunities unnecessarily restricted.
Unfortunately, similar examples exist across Alaska on federal
lands. The NPS recently preempted State subsistence harvest regulations
for the documented customary and traditional harvest of bears in two
Alaska National Park units. The NPS also preempted State wolf seasons
in two other National Park units, despite a lack of conservation
concerns and acknowledgment that the practice would not affect other
park visitors. The NPS also closed a State wolf trapping season in
another park unit, even though the Department documented such a closure
was not necessary due to an absence of any conservation concern for the
sustainability of wolves in the area. The State continues to assert
that these restrictions are an unnecessary infringement on State
sovereignty and unnecessarily impact subsistence users.
complications resulting from dual management
Perhaps the greatest complication for our subsistence community and
State managers is the dual regulation of fish and game resources where
state and federal jurisdictions intersect. Conflicting regulations,
divergent agency mandates, and different management strategies create
confusion for the hunting and fishing community in Alaska. Every year,
new or duplicative regulations are created to address situations where
federal managers disagree with the Alaska Board of Game. This is not
improving subsistence in Alaska.
State regulations stand on federal land unless a contrary action is
taken and a federal regulation is developed. Many federal regulations
have been developed to provide a mere perception of preference for
rural users despite the federal program recognition that there was no
shortage of the resource or inability to meet rural users' needs at the
time the regulation was developed. These slight variations only burden
Alaskans without any clear benefit.
For example, subsistence users must determine which patchwork of
land they are standing on along an access route to know whether they
can take 15 or 20 birds. In some instances the possession limits for
small game or trapping or fishing may be only a difference of one or
two animals. In other areas, season dates may vary by a day depending
on your zip code. In an area with abundant populations, this
unnecessarily restricts subsistence.
state recommendations
The following are the State's recommendations to ensure subsistence
needs are met in Alaska. These include federal agencies allowing State
managers to conduct active management programs on federal lands,
addressing duplicative programs, ensuring adequate support for
necessary research, and the incorporation of State data into federal
regulatory processes.
1. Active Management on Federal Lands
As described above, active management on federal lands is essential
to ensure adequate subsistence foods are available to Alaska's people
to meet federal obligations under ANCSA and ANILCA. While the Federal
Subsistence Board has managed hunting seasons, seasons do not fill
freezers. Fish, moose, caribou, and deer, made available through active
management, fill freezers and feed families.
State managers are also eager to cooperate on habitat enhancement
with a goal of increasing wildlife populations. The State has success
stories of working with ANCSA corporations. This past spring we teamed
with Kenai Natives Association to improve their lands for moose
production. This involved physically manipulate lands by cutting mature
trees and scarifying the land to grow more willows that serve as food
for moose. We are reaching out to the FWS in the hopes of extending
this effort onto federal lands. However, initial efforts with federal
managers have not been successful.
Given the importance of fishing and hunting to the Alaska's people,
we will continue to pursue these efforts. We need congressional
guidance to the federal land management agencies to allow predator
management and habitat enhancement on federal lands.
2. Duplicative Programs
In this time of tight federal fiscal constraints, we must avoid
expensive and duplicative programs. Since the inception of the Federal
Subsistence Board in Alaska, federal agencies have unnecessarily
duplicated State programs, suggesting they must have duplicative
programs and regulations in place to meet federal mandates. This has
resulted in increased cost with little direct benefit to the
subsistence users in Alaska. Instead it has needlessly increased
regulatory complexity without putting additional meat into Alaskans'
freezers.
3. Funding Necessary Research
Rather than unnecessarily duplicating regulations, the federal
government should be assisting Alaskan subsistence users by maintaining
adequate funding for important research and data collection. In recent
years, federal support for subsistence research has diminished,
especially funding to support needed research.
While species research programs are cut, funds have been diverted
towards ``landscape and surrogate species'' programs. These landscape
and surrogate species programs do not feed people. We need research on
species of import to subsistence in Alaska, not just on a few select
surrogates. The State as the principle manager of fish and wildlife is
best positioned to collect this information. Federal support for
subsistence use surveys across Alaska has also been cut. This
information is needed to determine population levels necessary to
support reasonable subsistence opportunity. The Department has long
been recognized as the expert at assessing subsistence data needs.
Federal Subsistence Board decisions are often based on State data. Yet,
federal support for state data collection programs has decreased in
recent years. We believe a better use of federal funds is to support
State work on species important to subsistence.
4. Incorporating State Data into Federal Processes
Financial support for incorporating State data into federal
decision processes at the Federal Subsistence Board has also been
reduced. The State, as the primary management entity, has significant
information to inform federal decision processes. And as stated before,
the State is recognized as a worldwide leader in wildlife research.
Though instead of supporting a proven, successful program, this year,
the Federal Office of Subsistence Management cut the grant to the State
from $480,000 to $50,000 while expecting the State to continue to
provide the data to inform Federal Subsistence Board decisions. This
has limited the State's ability to ensure the best available data is
considered.
conclusion
Alaska's commitment to subsistence is rooted in the life sustaining
needs of our people and our Constitution. We have an excellent record
of providing for subsistence opportunities and taking proactive
measures to increase harvestable surpluses to ensure needs are met,
despite being foreclosed from managing on over 60 percent of the land
mass of the state.
Rather than duplicating State efforts, the federal government
should support State active management programs. Failure to follow this
path will result in diminished subsistence hunting and fishing
opportunities for all Alaskans over time. Federal land managers must
realize that designating subsistence seasons is meaningless unless it
comes with a reasonable opportunity to harvest resources.
Despite increasingly differing subsistence goals, Alaska continues
to seek common ground with our federal partners.
The Chairman. Thank you very much, Mr. Fleener. Let's go to
Senator Murkowski for her questions.
Senator Murkowski. Thank you, Mr. Chairman, and thank each
of you for your testimony here this morning, what you have
delivered and what you have provided in writing.
We may have a lot of issues as it relates to subsistence in
areas of disagreement, but it seems that the one area where we
agree is things aren't working as promised, and there are some
proposals that are out there we're going to be hearing in the
next panel about some suggestions that AFN has proposed in
terms of demonstration projects.
I guess I would ask both you, Mr. Peltola, and you, Mr.
Fleener, your comments, your thoughts on the two proposed
demonstration projects that AFN is putting forward.
One is an intertribal fisheries commission for the Yukon
and the Kuskokwim. The second is this co-management proposal on
Ahtna lands that would allow Ahtna to work jointly to manage
those lands.
Why don't we go first to you, Mr. Peltola, for your
comments on it, and then I'd like to hear the State's position
on these two demonstration projects.
Mr. Peltola. OK. Thank you, Senator Murkowski. I think we,
as an agency and as a program, seek to increase cooperative
management relationships with subsistence users. We would look
toward the Regional Advisory Councils to facilitate the
engagement on the ground or--which we're giving more deference
to those Regional Advisory Council recommendations.
I personally cannot make specific comments on a particular
plan. I have not reviewed or seen any of these copies, but the
service and the Federal subsistence program would be more than
ready--readily available to review such plans on a case-by-case
basis.
Senator Murkowski. Do you think that it would be helpful,
obviously, I mean, you live and work and breathed the fisheries
incidents not only this past summer out there in the Bethel
region, but in years prior.
Do you think that it would be helpful, given what you know,
to have greater inclusion of Native peoples through a proposal
like AFN has suggested?
Mr. Peltola. Yes, Senator, and, generally speaking, anytime
we can incorporate a local knowledge base or a local user base,
it could only lead to a better product and better management in
the long run.
Senator Murkowski. Let me ask you, Mr. Fleener, in terms of
the State's position on these two proposals.
Mr. Fleener. Thank you, Senator Murkowski. I think that
there is a complicating factor with the proposal from the State
perspective, and that is that the State has a responsibility to
manage fish and wildlife resources for all Alaskans, and
because of that complication, it makes it difficult to focus
benefits for one group of people, so, for example, Alaska
Natives, and----
Having said that, though, I think that our ultimate
objective is to work as much as possible with any group of
Alaskans.
Alaska Natives being tremendous landowners in the State and
being so closely tied to subsistence, our ultimate goal is to
work as closely with Alaska Natives as possible. We try to
engage, as much as possible, on improving the situation.
So we are always open to the idea of improving the
situation, trying to work toward any kind of a cooperative
relationship, and we're looking now at working with tribes
throughout the State, corporations, on corporation land to
improve subsistence opportunities.
We're looking at habitat improvement, and, if possible, we
are doing some--or when possible, I should say--we are doing
some predator-management programs and are looking for other
opportunities.
Those get to the end result that I think we're all looking
for and that is to be able to sustain subsistence opportunities
in those Native communities.
Senator Murkowski. I'll find different ways to ask probably
the same question, maybe, in a little bit here, but I think we
recognize that when it comes to the active management, we're
dealing with enormous spaces and almost always limited
resources. So where we can collaborate and cooperate, seems to
me, we're money ahead.
You used the words complex management. I think we recognize
that it is complicated. Quite honestly, our land disposition in
the State of Alaska is very complicated, and so how we manage
that is very challenging.
But I guess I'm trying to find ways that, working together,
we not only get more value for the dollars that we put into it,
but we get the desired outcome, which is greater resource for
all.
Let me ask a question here a different way. You have
suggested, Mr. Fleener, that one of State's recommendations is
greater active management on Federal lands. We tried to do that
with Unimak. We got sued.
What's our path forward here? Because litigation is not
going to deliver more caribou, more fish or more moose. How can
we be working better with our Federal partners on the
management of even the habitat side?
It seems to me that even in that area we're not seeing much
participation from our Federal partners. Would you disagree
with me on that or do you concur that this also is an issue?
It's not only the management of, for instance, the caribou
out in Unimak, but it's working with the feds to even enhance
habitat so that we can see more resource.
Mr. Fleener. Thank you, Senator Murkowski. Actually, I can
give some opening comments, but I'd like to allow our Wildlife
Division Director to comment.
We have a lot of, I would call them opportunities to
partner with our Federal counterparts. We typically approach
the agencies with projects that we're working on, and the
answer is usually no, because of either the natural diversity
mandate or other mandates that push the possibility of working
together out of the way.
We have examples like habitat improvement on the Kenai
Refuge. We have examples like the Yukon Flats National Wildlife
Refuge, where I'm from, where the moose population is about one
moose every 10 square miles. There are quite a few people that
live in the Yukon Flats that depend on that moose population,
and it's been in a downward trend for more than 20 years, and
nothing is being done about it.
The State hasn't been able to go in and work there, because
it's been very difficult to get into the door with the Fish and
Wildlife Service.
Unimak Island is another great example, and because
Director Vincent-Lang is so much more familiar with that
subject, I'd like to ask him to provide some comments.
Mr. Vincent-Lang. Thank you, Senator. The State of Alaska
recognizes that providing subsistence is more than just
providing a season. It has to come along with the reasonable
opportunity to harvest an animal, and, as such, we just don't
sit back and passively manage our wildlife populations.
We actively manage them to provide for, to assure that
there's actually animals out on the landscape. Then, when
there's a season open, somebody has a reasonable expectation to
get them.
A prime example of an action we took was on the South
Alaska Peninsula. In that case, we had a herd of caribou that
once numbered 10,000. That herd crashed, and, as a result,
subsistence opportunities had to be closed under both the State
and Federal system.
The State identified the primary cause of that to be wolf
predation and went in with a very strategically ,
scientifically designed program, actually requested the Fish
and Wildlife Service's participation as the primary land
manager in that area to cooperate with us to actually, you
know, do our predator control program and to increase the
abundance of caribou.
They chose not to participate in that effort. We went it
alone in a very limited patchwork of State land and actually
turned that herd around to a point right now where we have,
now, a season and people in local communities are taking
caribou to meet their subsistence needs.
Compare and contrast that with Unimak Island, which you
mentioned in your talk. We had the very similar circumstance.
We have a declining caribou population, and that caribou
population could likely become extirpated from that island,
and, right now, it's not providing any subsistence opportunity,
because subsistence hunting for caribou is closed.
Again, we requested to go meet with our Federal land
management partners to go out and actually conduct a predator-
control program to, hopefully, turn that herd around and
increase the abundance so we can have the subsistence-hunting
opportunity again.
Instead of cooperating, we were denied access into the area
and told that that caribou population could blink out of
existence and that would be OK under their natural-diversity
guidance.
The short of it is we believe we have to actively manage to
provide for subsistence-hunting opportunities, regardless of
which pool of people that is.
We think that under ANILCA and under ANCSA Congress spoke
clearly about the importance to actively manage, and we think
that the Federal Land Management Agencies have the necessary
tools at their disposals. They are just choosing not to use
them. We plead with Congress to give them further direction to
use those tools to increase the abundance of animals on the
landscape.
Senator Murkowski. I appreciate those comments and your
observations.
Let me ask you, Mr. Peltola, because when Secretary Salazar
took over as Secretary of Department of Interior, he had some,
I think, good conversations with Native leaders around the
State on the issue of subsistence.
He directed the Federal Subsistence Board to undertake a
number of administrative actions as a result of his review of
the Federal Subsistence Management System. This was, now, well
over 3 years ago.
My sense is that there was a review. There was a request to
do something about it, but, in fairness, we really haven't seen
much, if anything, from that request coming out of the
Secretary for something that goes beyond just the review of the
Federal Subsistence Management System. Where are we with
regards to any of those recommendations?
Mr. Peltola. Thank you, Senator. If you look at the
recommendations coming out of the Secretary of Interior with
Secretary of Agriculture's concurrence, there are numerous
actions which were recommended, and it's a lot for me to
memorize and go through here, so I have a list of what the
recommendations were and I'll follow up with those.
There was a recommendation to add new public board members
on the Federal Subsistence Board. That action has occurred with
the addition of Anthony Christianson from Hydaburg and Charlie
Brower from Barrow.
We expanded the deference from the Federal Subsistence
Board to the Regional Advisory Councils. That is in the process
and has been occurring.
Historically speaking, the Federal Subsistence Boards
looked to the Regional Advisory Council to guard the fish and
game or fish and wildlife proposals. We're doing more than
that, currently, in initiating more deference to those by
looking toward direction from the Regional Advisory Councils on
the rural determination process.
We're also looking to the recommendation from the Regional
Advisory Council with regard to the customary and traditional
determination process.
The Federal Subsistence Board was given some direction to
minimize the use of executive session to allow for a feeling of
a more transparent process. This is in the process of
occurring. A policy has been written to minimize these sessions
and report to the public the subject matter of those executive
sessions when they do occur.
We're directed to review the MOU with the State of Alaska.
That is in process. We have held two rounds of review with
Regional Advisory Councils and the MOU was revised via a State-
Federal working group, and that was forwarded to the State of
Alaska, who, I understand, is working on their own draft of it
at this time.
As I mentioned, the Rural Determination Comprehensive
Review, starting this fall with our fall rounds of Regional
Advisory Council meetings in the different regions of Alaska,
we are holding public hearings on what to utilize in that
process.
Also, I can mention the customary and traditional use
determination process also in review.
Some of those that we have not proceeded forth is where the
Federal Subsistence Board submits recommendations for funding
for the annual budget for the Federal Subsistence Program.
There's a couple of others. One is to utilize an 809
cooperative agreement authority to expand using tribes and
other local entities for fulfilling subsistence-program
elements. That is considered somewhat in progress. This
authority is used for the Fisheries Resource Monitoring
Program, and there may be other opportunities within 809
authority we could expand upon.
Those are a few of the direct secretarial review items that
we have proceeded forth with.
Senator Murkowski. Let me ask you about the RACs. Ms.
Pendleton, you can join in as well, because it seems that that
is cited as this is an indication in terms of how we bring in
the local people and solicit their input.
Currently, the Regional Advisory Councils provide
recommendations and information to the Federal Subsistence
Board, but, beyond that, there is not that much authority, if
you will. I don't think that our RACs actually have any power
or authority beyond just providing recommendations and
information, and it may or may not be regarded or taken into
account.
What can we do to empower the RACs to be more than just
somebody that presents some ideas? How do you actually make
sure that it's the local people that are providing not only
more than just information, but helping to advance some of the
decisions based on that local input?
We see back here it's pretty top heavy. The system is
pretty top heavy. I'm fearful that, oftentimes, what we get is
we're able to check the box with a level of consultation.
We're able to check the box because we have in place these
entities that, if you look at the name and the hometown, you
say, OK. We've got Native participation and representation. It
really ends up being very little, at the end of the day. This
is what I'm hearing from folks. So how do you make the Regional
Advisory Councils more meaningful?
Ms. Pendleton. Thank you, Senator. As Gene, Mr. Peltola
mentioned, the Regional Advisory Councils, the makeup of those
councils are individuals from local communities.
Many of those individuals are active subsistence users.
They have a good understanding of the importance from a
cultural, traditional, spiritual importance of the use of the
resource. So they bring that perspective, I think, to the
councils.
Council meetings are held close to communities within those
regions. There's opportunities for residents to come together
to share their perspectives, to bring proposals, of course, to
the Regional Advisory Councils and for those councilmembers to
consider and then provide input, recommendations on up to the
board.
As Mr. Peltola mentioned, those recommendations from the
councils, the Federal Subsistence Board gives deference to
those, so they are weighed and considered very importantly and
that deference is provided. So I think----
Senator Murkowski. I think that's where----
Ms. Pendleton [continuing]. That that provides some
strength----
Senator Murkowski [continuing]. That's where it appears to
me that folks aren't believing that we're getting that level of
input, because they don't see the deference being shown to what
is coming from the local people, the local input.
They've got an opportunity to participate, and that's
absolutely important, but when you say, then, deference is
afforded, I think you would have most folks saying, OK. Show me
how that actually translates into a recognition that those
local concerns had actually been addressed. I think that's
where we're seeing some breakdown.
Mr. Peltola, you want to comment?
Mr. Peltola. Yes, Senator Murkowski. One thing I would add
is that outside of the secretarial program, out of the review,
we have a couple of other steps, so to speak, that have taken
place in the last year-and-a-half or so that may contribute
significantly to the way we interact with the local individual.
One of those is being the recent Department of the Interior
tribal consultation policy and also the--I guess it preceded
that--is the Fish and Wildlife Service where my experience and
career has been placed is the Fish and Wildlife Service tribal
consultation policy.
In my capacity as Refuge Manager of the Yukon Delta over
the last five, 5\1/2\ years, I served on two different
functions within the Fish and Wildlife Service regarding tribal
consultation. One being is I helped draft the step-down plan
from Interior for the Fish and Wildlife Service, and I also
served on the Native American Policy Review Team for the Fish
and Wildlife Service nationwide and provided input there.
If you look at the way we have historically done business,
the Yukon Delta Refuge is one of the largest refuges in the
system, and because of that we have one of the largest
village--tribal-entity bases. We have 56 villages on and
adjacent to. The refuge there has always spoke with tribes,
even before it was actually dictated to be a policy.
Under my tenure as Refuge Manager there, we were doing 70
to 90 consultations a year with regard to different fisheries
or wildlife proposals or different management actions.
Now, with implementation of, you know, the secretarial
review within the Office of Subsistence Management, there also
is an OSM or Office of Subsistence Management tribal
consultation policy.
That could be overwhelming in the sense that we deal with
hundreds and hundreds of fisheries and wildlife proposals every
year. In order to reach out to every potentially affected
tribe, it could be overwhelming.
One thing I'd like to say is that looking upon my role as a
refuge manager, now within Assistant Regional Director with the
program, we're going to take very seriously those
responsibilities to communicate with individual tribes in the
affected regions via our proposals, and that is a means that
the service and myself as an individual have utilized in order
to try to provide more local input into the process.
Senator Murkowski. Just for the information of those here
testifying and those that will be part of the second panel,
Senator Wyden and I are actually trying to manage an energy
bill on the floor as we speak. So he is actually on the floor
and is hoping to be able to come back as soon as he is able.
So he wanted me to make sure that you knew it was not for
lack of interest, but we're trying to juggle multiple balls in
the air at the same time.
I note that my colleague and friend from West Virginia has
joined the committee, and I appreciate that. Senator Manchin is
a man who I think understands hunting and fishing as well as
anybody here in the Senate and has an appreciation for so many
of the issues.
Senator Manchin, I'm just going through a series of
questions, so if you would like to make a statement or ask
questions now, I'd certainly defer to you, because I've had the
mic for a while.
Senator Manchin. Thank you, Senator. I appreciate it. First
of all, I appreciate both Chairman Wyden and particularly
Ranking Member Murkowski, who are both dear friends of mine,
for holding this hearing.
Last year, I had the great pleasure of hosting both of them
in my home State of West Virginia. They took time out, and it's
very precious time that they have, to come to West Virginia to
look at an all-of-the-above energy policy and showing them the
aspects of my State.
I look forward to visiting both their states, Oregon and
Alaska. Maybe next year, then, I can make it up to Alaska for
the moose-hunting season, too. I've heard about that. Of
course, the salmon fishing is always good. So I'm looking
forward to all of those things.
I can say this, as a former Governor, I know some of the
frustrations that come from the differing and sometimes
competing management of State and Federal lands. I know in
Alaska the issue is even more complex, when you consider the
role and needs of Native Corporations.
I had the opportunity yesterday to meet with
representatives from the Alaska Native Village CEOs Association
in my office, to hear directly about some of their concerns.
While Alaskans face a number of issues that are not faced
elsewhere, West Virginians certainly understand what it means
to rely on our land for food, for energy and for many of our
basic needs.
I'm happy that today I have the opportunity to discuss the
unique management issues facing Alaskans. It is terrific how
much effort--and it really is, and I mean that. You should be
so proud that you have a Senator that works so hard in both
Senator Murkowski and what she puts into reaching out to all
Alaskans to ensure that they have a voice in Washington.
I look forward to learning more about this issue and to
learning about how, as members of our committee that we have
here, that we can help the people of Alaska find a commonsense
solution to the concerns that we hear today.
Let me just say, the commonsense solution, there's a
balance to be found. There's a balance in everything, and up
here you're seeing the extremes play out on television and
policy, truly. We're having a hard time. You don't live your
life this way.
You know, I tell people, and back home, in West Virginia,
every morning you get up, you try to find that balance
immediately, and, boy, if you can go to bed and you've found a
little bit of balance it was a pretty good day. Up here, we
haven't found many good days, and there are so many good
people, it's a shame.
So I can assure you my mind is open to help you find the
balance, and I'm sure the government should be your partner and
not your adversary.
I believe very strongly in the Tenth Amendment to the
Constitution. Being a former Governor, I will protect that
position until my last breath is taken.
So, with that, I really do, I look forward to working with
you, learning more and seeing how I can be of help and knowing
that reasonable people can make reasonable decisions. So, Madam
Chairman, thank you.
Senator Murkowski. Senator Manchin, thank you for your
statement. Thank you for your good work and your commitment to
learn.
As I mentioned in my opening statement, I greatly
appreciate the Chairman of the Committee agreeing to have a
hearing, a full committee hearing on an issue that is so local
to one State, but so integral to who it is that we are as
people.
So your statement that you're willing to listen and work to
find reasonable solutions is very, very meaningful. Know that
you will always have an open invitation to come to Alaska, and
if I'm not there to act as your host, I'm sure you would have
any number of the folks that are assembled here to escort you
around the State. So we look forward to that.
Senator Manchin. Would it be possible to ask a question?
Senator Murkowski. Absolutely.
Senator Manchin. I'll just start--we'll start with--Is it
Peltola?
Mr. Peltola, in your testimony, you mention that the
Secretaries of Interior and Agriculture recommend that the
process for determining rural status in Alaska be revisited,
and you're currently involved in a review of the process.
Maybe you can explain the rural status in Alaska and how it
is currently determined and what your position would be to
change things or how your input would be.
Mr. Peltola. With regard to the rural determination----
Senator Manchin. It can be improved upon. I'm sorry.
Mr. Peltola. Improved upon. OK. With regard to rural
determination, a few years back the Federal Subsistence Board
made the recommendation to set a hard--more or less a hard
figure with regard to population size with regard to what
determines a rural or a non-rural area.
Some of our communities in rural Alaska are approaching
that population threshold. There have been some concerns
expressed and through the secretarial direction about that
process starting this fall, which I mentioned earlier to
Senator Murkowski.
During our fall round of Regional Advisory Council
meetings, we're also having a Rural Determination Process
Public Hearing where we are initiating public comment about
what to utilize as a determining factor in the rural
determination process, because there is a lot of significance
involved in what constitutes a rural and a non-rural area with
regard to subsistence-management Alaska.
In the meantime, those recommendations made a few years
back by the Federal Subsistence Board have been put on hold
until this next round of public hearings have been initiated
and completed.
Senator Manchin. Mr. Fleener, if I may just skip around if
I can, in your testimony, you suggest that duplicative Federal
programs should be eliminated to save money and better serve
Alaskans. Can you identify the duplicative programs that you
would recommend?
Mr. Fleener. Thank you, Senator Manchin. I think probably
the one that is at hand today, what we're talking about right
now, would be the Federal Subsistence Management Program.
Really, some of the management programs that are either
being implemented now or being talked about to be implemented
in the future on Federal lands, there really isn't a good
reason to have two separate systems managing the same moose or
the same caribou or the same subsistence user. It would be a
much better, much more cost-effective method if we had one
system.
So that's probably the most relevant to this discussion
right now is the actual Office of Subsistence Management
Federal Subsistence Board Program.
We have advisory committees, more than 80 advisory
committees around the State, that I'd probably have to say the
majority of them are comprised of subsistence users. Throughout
the State, we have a very functional board structure that takes
into account all of the remarks.
Folks can submit proposals. They can argue the merits of
their proposal before the advisory committees and before the
boards. They can work together with the department, the boards
and other members of the public to improve a proposal that they
submit, and then we can turn that into an actual regulation.
We have a very good and open system in the State of Alaska
that you don't necessarily always get what you want. I
submitted quite a few proposals to the Board of Game or the
Board of Fish before I was a State of Alaska employee. Some of
them were adopted and some weren't, and so you don't always get
what you want, but we have a really good and open system.
So the idea that we have duplicated that with the Federal
Subsistence Program really is a tremendous expenditure of
money. It creates a lot of conflict and probably the worst
thing, as I testified earlier, is the confusion and the
complications for the hunters or the fishers.
So you have people that live out in the country and they
have to be aware of whether or not they're hunting on Federal
land. Often the Federal land and State authority areas are
interspersed. It's like a patchwork quilt, and in 1 hour you
can be under State regulations, the next hour you can be under
Federal regulations, and then you have to understand the
special situations within each of those regulations, not just
the standard regulations themselves. So that's a very
complicated set of situations.
One example that makes it even more complicated is with the
National Park Service and the compendium process. So you not
only have to understand the Federal regulations from the
Federal Subsistence Board, you also have to understand the
regulations through the Alaska Board of Game or Board of Fish,
Department of Fish and Game, now, you also have to read the
National Park compendium to understand if they've decided to
pull something out and no longer have it legal for you to
participate in.
So I think those are plenty of examples. I can give many
more, but I don't want to hog the microphone.
Senator Manchin. Thank you.
Senator Murkowski. Thank you, Senator Manchin.
Let me ask a question following on Senator Manchin's
comment and your comments, Mr. Fleener, about the Federal
Subsistence Management Program and your suggestion that we've
got some overlap and duplication.
Mr. Peltola, how many funding requests from Native
organizations does the Federal Subsistence Management Program
receive on an annual basis? If you can give me the number, are
we able to fund all of them?
Mr. Peltola. Senator Murkowski, I apologize, but I don't
recall the exact number of proposals coming from Alaska Native
organizations throughout the State.
But what I can tell you is that of those funding requests
we receive in the Office of Subsistence Management about 42
percent of those go to the Alaska Department of Fish and Game,
their Wildlife Conservation Program or the Commercial Fisheries
Program, and then a lesser percentage of those--I believe, it's
12 to 18 percent--go to the Alaska Native organizations.
Senator Murkowski. Are you able then to provide funding for
all of the requests? You meet the requests?
Mr. Peltola. The majority of the funding requests that come
to the Office of Subsistence Management fall under the
Fisheries Research Monitoring Program. Of that, the way the
process works--and I think it's very beneficial to some Alaska
Native organizations. The way the process works is we have a
call-for-proposal period, and then the whole packet of all the
proposals are put together in a group and they're reviewed by
what we call the Technical Review Committee.
That committee is comprised of a representative from Alaska
Department of Fish and Game Commercial Fisheries Division,
Alaska Department of Fish and Game Sport Fishers Division,
Alaska Department of Fish and Game Subsistence Division, a
Forest Service, a Park Service and a Fish Service member. Those
proposals are then ranked out----
Senator Murkowski. What's the ranking criteria?
Mr. Peltola. I shouldn't say ranked. They're reviewed and a
recommendation is given to fund or not fund a particular
proposal.
Senator Murkowski. How do you determine the priority for
allocation of funding between State and the tribes?
Mr. Peltola. One would hope, and what I've gleaned of the
system by reviewing it here, since my arriving in the position,
is that we look at priority subsistence data management needs
and necessities and those are then forwarded.
We have a recommendation from the TRC, Technical Review
Committee. The way the process is designed, and as far as I can
tell, has not been implemented to date, is that once that
recommendation goes from the TRC to the Regional Advisory
Council, the Regional Advisory Council can recommend altering
the order that they're presented by the TRC or, the majority of
the time, the Regional Advisory Councils just concur what has
been recommended at the time.
Then those are forwarded on to the Federal Subsistence
Board to--the board themselves decide whether to fund or not
fund the proposal.
Senator Murkowski. I'm going to finish up with one last
question here, and it was prompted by a comment that you made,
Mr. Fleener, about the fact that in other parts of the country
our Federal agencies actually use active management either
through some form of predator control, habitat enhancements.
So I guess the question for our Federal representatives is
why the Federal agencies have been reluctant to employ active
management, whether it's predator control or whether it's
habitat management, to meet the statutory mandates?
Because I would agree with Mr. Fleener, I don't think we
see that here in the State. So it's required in ANILCA and
ANCSA, why have we seen reluctance within the State of Alaska
by our Federal agencies to engage in active management?
Mr. Peltola. Yes, Senator Murkowski. We're looking at,
generally speaking, actions allowing for the control of
predators on Federal public lands fall under the jurisdiction
of each land-management agency.
Each agency has different missions and mandates, and, then,
through the Federal Subsistence Program, the Secretaries have
chosen to leave predator management to the individual agencies.
As for specifics to Unimak, which you mentioned before, I
have somewhat of an understanding about the situation there. I
was not directly involved in the decisions that were made with
regard to Unimak, but I understand that the service, through
the Division of Refuges in Alaska, determined that predator
control there was inconsistent with ANILCA and the Wilderness
Act.
It was also contrary to ANILCA's purposes for establishing
the refuge. That purpose states that wildlife population on
Unimak could be managed with their natural diversity and that
subsistence be carried out in a manner that is consistent with
the natural diversity purposes of the refuge.
So I can speak to generalities of and I can't get in--I am
unable to address the specifics that each individual bill or
decision that has been made.
Senator Murkowski. I guess that I would take it back to the
comment that Mr. Fleener made that we need to be viewing this
through the lens of ANILCA and ANCSA, rather than whether it's
the Wilderness Act or whether it's the other organic acts that
you have cited to.
It seems to me we have Federal statutes, Federal laws and
you've got an administration, and I won't necessarily just
blame this particular administration, but you have an
administration that is choosing to interpret or give priority
again to some Federal statutes at the expense of others, and we
see conflict there, and I think the Unimak example is a pretty
stark example of just that.
Ms. Pendleton, do you want to add anything to that before I
give up my time here?
Ms. Pendleton. I really don't have any further comment,
other than to say that, on the National Forest System, we
haven't had any request or need or proposal for predator
management to date that I'm aware of.
Senator Murkowski. But what about the wildlife habitat?
Because that's clearly in your domain.
Ms. Pendleton. Thank you. It is. We have worked extensively
with the State, under a memorandum of understanding and through
the Federal Subsistence Program, to coordinate substantially as
it relates to monitoring information, population information
and that is all brought forward into the proposals and
considerations, not only of the Regional Advisory Councils, but
of the Federal Subsistence Board as well.
Senator Murkowski. Mr. Chairman, I've had a lot of time
here to ask questions, and I'd like to get to our second panel,
but, certainly, would turn to you, turn the gavel back to you.
The Chairman. Thank you, Senator Murkowski.
Just on that point, because, for the two Federal agencies,
that was something I was going to ask about as well.
Ms. Pendleton, you said that you all at the Department of
Agriculture, at the Forest Service, are working with the states
in terms of a more active approach in managing for increased
wildlife populations and controlling predators.
But, obviously, the states aren't getting it right, so if
we come here and we say, Gee, there are a variety of different
reasons why this has taken place, which is what I understood
Mr. Peltola to say, and Ms. Pendleton says we are working with
the states, but the states don't seem to think we're getting it
done, we've got some work to do to get this right. So I want to
make sure you understand that I share Senator Murkowski's
concern.
Here's, of course, another big issue throughout the West.
We're going to be following up at the staff level, so that we
can ensure that more active approach in managing for increased
wildlife populations and make sure that it's consistent with
what I'm sure are other Federal directives and strike that kind
of balance, but this is an area where we've got to get it
right.
Senator Manchin, any questions?
Senator Manchin. I already had----
The Chairman. OK. Very good. Let's go to our next panel,
which is Ms. Ana Hoffman, President/CEO, Bethel Native
Corporation; Mr. Robert T. Anderson, professor of law,
Director, Native American Law Center; Dr. Rosita Worl with
Sealaksa; Mr. Jerry Isaac with, if I'm pronouncing it right.
Senator Murkowski, is this Tanana, Tanana----
Senator Murkowski. Tanana.
The Chairman. Tanana Chiefs Conference in Fairbanks,
Alaska.
All right. We will make your prepared remarks a part of the
record. Why don't we begin with you, Ms. Hoffman?
STATEMENT OF ANA HOFFMAN, PRESIDENT/CEO, BETHEL NATIVE
CORPORATION, BETHEL, ALASKA
Ms. Hoffman. Quyana keleglua mana arrcaralria
qalaruteksartusqelluka. The closest word in Yup'ik for
subsistence is nerangnaqsaraput, our method of gathering food.
On September 7 of this year, my son shot a bull moose. Once
we got all of the meat into the boat, including the heart,
liver, tongue and nose, we waited while he tossed the moose
beard into the tall trees to ensure continued success of future
hunts.
We were able to spend a week upriver because the school
district, recognizing attendance drops dramatically during
moose-hunting season, has established a fall break to
accommodate subsistence.
The length of the Kuskokwim River that we traveled from
Bethel to McGrath required one General Harvest Tag 13 years
ago. Today, it requires four: A General Harvest Ticket,
Registration RM 615 Tier II, Registration RM 650 and one
section is closed.
The subsistence hunter in rural Alaska works hard to stay
informed about governing laws and regulatory changes. Without
monuments or landmarks, hunters and fishermen learn the unit
boundaries and the applicable harvest restrictions in order to
be in compliance. By and large, we are a regulation-following
people.
Last summer, there was an act of civil disobedience near
Bethel. After having observed a 7-day closure, a number of
Yup'ik fishermen decided to fish for Chinook salmon. This was
the first significant incidence in Alaska in over 60 years.
During the State court trials, the judge found that
subsistence activities related to hunting and fishing are
deeply rooted in the religious beliefs of the Yup'ik culture
and that subsistence fishing for Chinook salmon and the
attendant activities are religiously based conduct.
Despite these findings, the district court affirmed the
State's authority to restrict subsistence fishing and the case
is now on appeal.
The State's subsistence law requires the Board of Fisheries
and Game to establish an amount necessary for subsistence of
fish and game resources. In essence, this should be the
baseline.
What we see happening oftentimes is achieving the amount
needed for subsistence is not known until we are subsisting. As
a result, the subsistence user, whose cultural, social,
economic and physical livelihood is at stake, is bearing the
brunt of conservation.
Bethel is the hub community of villages along the Yukon,
Kuskokwim and Johnson Rivers. Each of these villages is
strategically located in direct relationship to specific food
sources.
Forty years ago, Senator Edward Kennedy visited my mother's
village of Nunapitchuk. He had dry fish and tea with my
grandparents. The village is known for its proximity to white
fish, black fish and pike. It is because of the continued
access to subsistence hunting and fishing that the villages
remain in existence today.
If you walk into any classroom in rural Alaska and ask the
students what they ate for dinner, they will likely answer
soup. But it is not French onion or vegetable beef. It is fish
soup, moose soup, caribou soup, seal soup, swan soup, walrus
soup, goose soup, beaver soup and crane soup, all accompanied
with dry fish. This is our sustenance.
In 2010, the State of Alaska gathered statistics about
subsistence harvesting. Subsistence food harvests represent
just over 1 percent of the fish and game harvested annually in
Alaska. The commercial fisheries harvests over 98 percent.
Of the non-commercial harvests of food, the studies showed
the average urban resident harvests 23 pounds per person per
year, the rural resident harvests 316 pounds per person per
year. In Western Alaska, where I am from, we harvest 490 pounds
per person per year. There is no Costco or Walmart in our area
of Alaska. It is the rivers, the lakes, the oceans and the
wilderness that feed us.
Last week, I walked out to my mom's native allotment just
outside of Bethel to pick berries. Along the way, I came across
Fritz Jimmie, Neal Japhet and Ray Landlord. They were bird
hunting. They noticed my bucket and pointed out which way I
should go to find the biggest blackberries.
As I walked across the tundra, I looked back at them and
saw them, 3 boys, ages 10, 11, and 12, sitting at the edge of a
lake in the middle of Southwestern Alaska waiting for the
migratory birds to land. It is their rights we aim to protect.
If I may, I'd like to enter into the record the photo of
Ray, Fritz and Neal that I took last Friday evening. Thank you.
[The prepared statement of Ms. Hoffman follows:]
Prepared Statement of Ana Hoffman, President/CEO, Bethel Native
Corporation, Bethel, AK
Quyana keleglua mana arrcaralria qalaruteksartusqelluku.
Subsistence in Yup'ik is nerangnaqsaraput. It means our way of
gathering food.
On Sept 7 of this year, my son shot a bull moose. Once we got all
of the meat into the boat, including the heart, liver, tongue and nose,
we waited while he tossed the moose beard into the tall trees to ensure
continued success on future hunts. We were able to spend a week up
river because the school district, recognizing attendance drops
dramatically during moose hunting season, has established a fall break
to accommodate subsistence.
The length of the Kuskowkim River we traveled from Bethel to
McGrath required only one general harvest tag thirteen years ago.
Today, it requires four: general harvest ticket, registration RM 615,
tier II, registration RM 650 and one section is closed. The subsistence
hunter in Rural Alaska works hard to stay informed about governing laws
and regulatory changes. Without monuments or land marks, hunters and
fishermen learn the unit boundaries and the applicable harvest
restrictions in order to be in compliance. By in large, we are a
regulation following people.
Last summer there was an act of civil disobedience near Bethel,
after having observed a seven day closure, a number of Yup'ik fisherman
decided to fish for Chinook salmon. This was the first significant
incidence in Alaska in over sixty years. During the state court trials,
the judge found that subsistence activities related to hunting and
fishing are deeply rooted in the religious beliefs of the Yup'ik
culture and that the subsistence fishing for Chinook salmon and the
attendant activities are religiously based conduct. Despite these
findings the District court affirmed the State's authority to restrict
subsistence fishing and the case is now on appeal.
The State's subsistence law requires the Boards of Fisheries and
Game to establish an amount necessary for subsistence of fish and game
resources. In essence, this should be the baseline. What we see
happening oftentimes is achieving the amount needed for subsistence is
not known until we are subsisting. As a result, the subsistence user,
whose cultural, social, economic, and physical livelihood is at stake,
is bearing the brunt of conservation.
Bethel is the hub community of villages along the Yukon, Kuskokwim
and Johnson rivers. Each of these villages is strategically located in
direct relationship to specific food sources. Forty years ago, Senator
Edward Kennedy visited my mother's home village of Nunapitchuak, he had
dry fish and tea with my grandparents. The village is known for its
proximity to white fish, black fish and pike. It is because of the
continued access to subsistence hunting and fishing that the villages
remain in existence today.
If you walk into any classroom in rural Alaska and ask the students
what they ate for dinner, they will likely answer soup. But it is not
French onion or vegetable beef. It is fish soup, moose soup, caribou
soup, seal soup, swan soup, walrus soup, goose soup, beaver soup, and
crane soup all accompanied with dry fish. This is our sustenance.
In 2010 the State of Alaska gathered statistics about subsistence
harvesting. Subsistence food harvests represent just over 1% of the
fish and game harvested annually in Alaska, the commercial fisheries
harvests over 98%. Of the non-commercial harvests of food, the studies
showed the average urban resident harvests 23 pounds per person per
year, the rural resident harvests 316 pounds per person per year. In
Western Alaska, where I am from, we harvest 490 pounds per person per
year. There is no Costco or Walmart in our area of Alaska, it is the
rivers, lakes, ocean and wilderness that feed us.
Last week, I walked out to my mom's native allotment just outside
of Bethel to pick berries. Along the way, I came across Fritz Jimmie,
Neal Japhet and Ray Landlord they were bird hunting. They noticed my
bucket and pointed out which way I should go to find the biggest black
berries. As I walked across the tundra, I looked back and saw them,
three boys ages 10, 11, and 12 sitting at the edge of a lake in the
middle of southwestern Alaska waiting for the migratory birds to land.
It is their rights we all aim to protect.
Senator Murkowski. Thank you, Ana. The photograph will be
entered into the record. I think it is a beautiful example of
what we see in Western Alaska, where our children are taught
and trained to provide for the family, even at a very early
age. Thank you for your comments.
Mr. Anderson, welcome.
STATEMENT OF ROBERT T. ANDERSON, PROFESSOR OF LAW, DIRECTOR,
NATIVE AMERICAN LAW CENTER, UNIVERSITY OF WASHINGTON SCHOOL OF
LAW, SEATTLE, WA
Mr. Anderson. Thank you, Senator Murkowski, Senator
Manchin. I appreciate the opportunity to talk with you this
morning about the legal issues implicated by any amendments to
ANILA, Title VIII, and to ANCSA, and the fact that this
committee has jurisdiction over both statutes is very telling.
The history of Federal law regarding hunting and fishing in
Alaska is an important personal history to people, first and
foremost, but it also has a rich legal history, in the sense
that it's part of our tradition in American Indian law, in
Federal law of recognizing and protecting Native Aboriginal
rights to hunt, fish, gather and occupy their traditional
lands.
When Alaska was purchased from Russia in 1867, the treaty
provided that aboriginal peoples in Alaska would be subject to
and protected by the same laws that governed Indian tribes
throughout the rest of the United States.
Really, without exception, up until 1971, nearly every
Federal statute made applicable to Alaska either had an
exception for Native subsistence uses of fish, game, migratory
birds or had some sort of an affirmative protection for those
rights, recognizing the importance, even in the early
territorial days, of Native aboriginal rights to hunt, fish and
gather.
The Solicitor and Secretary of the Interior in 1942
recognized that aboriginal occupancy establishes possessory
rights in Alaskan waters and submerged lands and that such
rights have not been extinguished by any treaty, statute or
administrative action.
As we know, the Statehood Act, 1958, provided that the
State would disclaim any jurisdiction over aboriginal rights in
Alaska. It wasn't until the discovery of oil at Prudhoe Bay in
the late 1960s that things really got moving with the adoption
of ANCSA in 1971.
ANCSA was really an aberration in the history of the
dealings between the United States and Indian tribes in a
couple of senses. One, we have the corporate scheme, which is
different, but, most importantly, there was no substitute
provision for the aboriginal hunting and fishing rights that
were extinguished.
Every other treaty or statute or agreement that was made
with an Indian tribe provided for protection on a continuing
basis for those important hunting, fishing and gathering
rights. That was not included.
Rather, the conference committee indicated an expectation
that the Secretaries of the Interior in the State would provide
for subsistence uses by Alaska.
That didn't happen and we ended up with Title VIII of
ANILCA as a substitute for those aboriginal rights that were
extinguished, the expectation being that the State would have a
rural preference in place and would manage fish and game with a
rural priority throughout Alaska on Federal and State lands,
and that happened for a brief period. It was 7 years that the
State was managing fish and game.
It was during that time that Katie John, who we all have
heard a great deal about, and I was honored to be able to
represent her, went to the State Board of Fisheries to get her
fishery opened that had been closed shortly after statehood.
The Board of Fish refused. She went to Federal court, as
contemplated under ANILCA, and the Federal court ordered the
fishery opened. That was 24 years ago, and that litigation
still rages on with the State attempting to displace Federal
management on the limited basis that the Federal Government
manages now.
The failure to adopt the rural preference because of the
State constitution has really broken ANILCA. I know Governor
Knowles and Senator Stevens worked tirelessly to try to get a
constitutional amendment on the ballot to provide a rural
preference, so that we could have a unified management regime
again in Alaska, but that failed.
The State's program since that McDowell decision in 1990
has, you know, developed this non-subsistence component, so
that there'll be large non-subsistence-use areas in the State,
and has moved further and further away from providing a true
priority.
So, in sum, I would say that Title VIII was intended to
protect these aboriginal rights through a rural preference that
would be fulfilled with the State's cooperation.
The State is disabled from cooperating because of its own
constitution and hasn't been able to amend it. ANCSA's
corporate scheme was experimental. This committee and Congress
have revisited that scheme many times and made substantial
changes in how ANCSA operates.
AFN's resolutions and the two experimental programs
indicate that now is the time for Congress to consider a
possible Native subsistence preference in all of Alaska. The
Federal Government has power in this area, has exercised it in
the past, and it would be constitutional to do so as set out in
my full testimony. Thank you.
[The prepared statement of Mr. Anderson follows:]
Prepared Statement of Robert T. Anderson, Professor of Law, University
of Washington School of Law, Director, Native American Law Center,
Seattle, WA
Good afternoon, my name is Robert Anderson and I am a Professor of
Law at the University of Washington School of Law, Director of its
Native American Law Center. I also have a long-term appointment as the
Oneida Indian Nation Visiting Professor of Law at Harvard Law School. I
have worked on Alaska Native hunting and fishing issues since 1984 when
I was one of two attorneys who opened the Anchorage office of the
Native American Rights Fund. I spent six years in the Clinton
Administration working on many Native rights issues, among other
matters. I have been a law professor for the past thirteen years. I am
a co-author and member of the Board of Editors of COHEN'S HANDBOOK OF
FEDERAL INDIAN LAW (Lexis/Nexis 2005 and 2012 Editions). I am also a
co-author of a casebook used in many law schools, Anderson, Berger,
Frickey & Krakoff, AMERICAN INDIAN LAW (2008 & 2010 Editions). My CV is
attached to this testimony.
My testimony addresses the history of federal law regarding
hunting, fishing and gathering rights in Alaska, the subsistence
management regime under Title VIII of ANILCA, and the power of Congress
to adopt a Native tribal preference for access to fish and game. For
the reasons explained below, I believe a Native tribal preference would
easily withstand any federal constitutional challenge.
i. legal history of native hunting and fishing rights in alaska
Since Alaska was purchased by the United States in 1867, the
hunting and fishing rights of Alaska Natives have been affirmatively
recognized and protected in various forms by Congress, the Executive
Branch, and the federal courts. See generally D. CASE & D. VOLUCK,
ALASKA NATIVES AND AMERICAN LAWS 270-290 (3rd Ed. 2012). The leading
scholarly treatise on Native American law and contains the following
summary of the legal treatment of Alaska Native rights to fish and
game.
From the time of Alaska's purchase in 1867 until the present
day, all branches of the federal government have protected to
some degree the fish and wildlife uses of Alaska natives
through exemptions from conservation laws, land reservations,
and withdrawals.\1189\ In its first action to protect wildlife
resources in the new territory from over-exploitation, Congress
restricted the taking of fur seals, but exempted native hunting
for food, clothing, and boat-manufacture.\1190\ Alaska's first
game law\1191\ restricted the taking of game animals, but
exempted hunting for food or clothing by ``native Indians or
Eskimos or by miners, explorers, or travelers on a journey when
in need of food.'' The 1916 Migratory Bird Convention with
Great Britain exempted natives from the closed seasons for
certain species.\1192\ The 1925 Act creating the Alaska Game
Commission authorized ``any Indian or Eskimo, prospector, or
traveler to take animals and birds during the closed seasons
when he is in absolute need of food and other food is not
available,''\1193\
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\1189\ Before Alaska's purchase, Native subsistence rights were
protected by the ``laws of an antecedent government [Russia].'' United
States v. Berrigan, 2 Alaska 442, 446 (D. Alaska 1905); see also
Russian Administration of Alaska and the Status of the Alaska Natives,
S. Doc. No. 81-152 at 45, 50-51 (1950) (reprinting Second (1821) &
Third (1844) Charters of the Russian American Company). See generally,
David S. Case, Subsistence and Self-Determination: Can Alaska Natives
Have a More ``Effective Voice''? 60 U. Colo. L. Rev. 1009 (1989).
\1190\ Act of July 1, 1870, 16 Stat. 180.
\1191\ Act of June 7, 1902, 32 Stat. 327, amended, Act of May 11,
1908, 35 Stat. 102.
\1192\ Migratory Bird Convention, U.S.-Gr. Brit., 39 Stat. 1702,
1703, T.S. No. 628. Migratory Bird Treaties with Canada and Mexico were
amended by protocols in 1997, which exempt the taking of migratory
birds and their eggs by Alaska natives. Treaty Doc. No. 104-28 and
Treaty Doc. No. 105-26. 143 Cong. Rec. S11,167 (Oct. 23, 1997).
\1193\ Alaska Game Commission Act, 43 Stat. 739, 744 (1925),
amended by Act of Oct. 10, 1940, 54 Stat. 1103, \1104\ and Act of July
1, 1943, 57 Stat. 301, 306.
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The 1925 Act also imposed a one-year territorial residency
requirement,\1194\ amended in 1938 to authorize a three-year
requirement, for trapping licenses whenever ``the economic
welfare and interests of native Indians or Eskimos, or the fur
resources of Alaska, are threatened by the influx of trappers
from without the Territory.''\1195\ The Reindeer Industry Act
of 1937\1196\ was intended to provide for native subsistence
needs and establish a native monopoly over the reindeer
industry.\1197\
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\1194\ Alaska Game Commission Act, 43 Stat. 739, 740.
\1195\ Act of June 25, 1938, Sec. 2, 52 Stat. 1169, 1170. The
foregoing territorial statutes were omitted from the United States Code
on Alaska's admission as a state. 48 U.S.C. Sec. Sec. 192-211 (note).
\1196\ 25 U.S.C. Sec. 500 et seq.
\1197\ See Gigi Berardi, Natural Resource Policy, Unforgiving
Geographies, and Persistent Poverty in Alaska Native Villages, 38 Nat.
Resources J. 85, 98-99 (1998); cf. Williams v. Babbitt, 115 F.3d 657
(9th Cir. 1997) (interpreting statute narrowly to permit non-native
ownership of imported reindeer).
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As to fisheries, the 1924 White Act exempted from methods and
closed-season restrictions ``the taking of fish for local food
requirements or for use as dog food.''\1198\ The 1934 amending
act\1199\ further excepted the ``Karluk, Ugashik, Yukon, and
Kuskokwim Rivers'' from the restrictions on devices such as
fish fences, traps, and fish-wheels, as well as other methods-
and-means restrictions. The amendment stated that the exception
for the Kuskokwim and Yukon Rivers, ``shall be solely for the
purpose of enabling native Indians and bona fide permanent
white inhabitants along the said rivers'' to take king salmon
``for commercial purposes and for export,'' but ``no person
shall be deemed to be a bona fide permanent inhabitant of the
said rivers who has not resided thereon, or within fifty miles
thereof for a period of over one year.''\1200\ In 1943, the
Secretary established the Karluk Indian reservation on Kodiak
Island, designating adjacent tidelands and coastal waters under
the Indian Reorganization Act's authority to reserve ``public
lands which are actually occupied by Indians or Eskimos'' in
Alaska.\1201\ The Supreme Court rejected a challenge to the
Secretary's inclusion of navigable waters in the reservation,
noting that for natives ``the adjacent fisheries are as
important, perhaps more important than the forests, the
furbearing animals or the minerals.''\1202\
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\1198\ Act of June 6, 1924, Sec. Sec. 4, 5, 43 Stat. 464, 466
(codified in part as amended at 48 U.S.C. Sec. Sec. 232-234).
\1199\ Act of Apr. 16, 1934, Sec. Sec. 3, 4, 48 Stat. 594, 595.
\1200\ Act of Apr. 16, 1934, Sec. 3, 48 Stat. 594, 595.
\1201\ Act of May 1, 1936, Sec. 2,49 Stat. 1250 (extending
portions of the IRA to Alaska).
\1202\ Hynes v. Grimes Packing Co., 337 U.S. 86, 114 (1949). The
Court held, however, that the White Act could not serve as the basis
for regulations prohibiting non-Indian fishing within the reservation.
COHEN'S HANDBOOK OF FEDERAL INDIAN LAW Sec. 4.07[3](c)(i ) (Lexis/
Nexis 2012) (footnotes as in original text).
This summary of congressional actions demonstrates consistent early
recognition by the United States of Alaska Native rights and the
importance of access to fish and wildlife resources.
ii. the aboriginal rights question
Native aboriginal rights, which include the right to hunt, fish and
gather natural resources, are recognized as belonging to all indigenous
Indian tribes, including Alaska Native tribes. See, COHEN'S HANDBOOK OF
FEDERAL INDIAN LAW at 10-22, 326-329 (Lexis/Nexis 2012); D. CASE & D.
VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 62, 79-80 (3rd Ed. 2012).
These legal principles are premised on international law recognizing
indigenous rights to use and occupy their traditional territories, but
subject to negotiations with the colonizing nations. No modern land
title is secure unless it can be demonstrated that Native aboriginal
title to that area was somehow extinguished, or accommodated by treaty,
agreement, or statute. Most of those treaties, agreements and statutes
reserved rights to the affected tribe to a land base, as well as
hunting, fishing and gathering rights both on and sometime off of the
reserved lands.
For Alaska, application of these legal principles began with the
Treaty of Cession in 1867, 15 Stat. 539, by which the United States
acquired Russia's rights to Alaska. The Treaty provided that federal
law pertaining to Indian tribes in the United States would likewise
apply to Alaska Natives. This naturally included the law governing
Native aboriginal rights. The Secretary of the Interior and his
Solicitor addressed the question of aboriginal hunting and fishing
rights in Alaska in a 1942 decision. The question presented was
``Whether Indians of Alaska have any fishing rights which are violated
by control of particular trap sites by non-Indians under departmental
regulations. . .'' Secretary Harold Ickes concurred in the Solicitor's
``opinion that this question must be answered in the affirmative.'' He
reasoned as follows.
Although the Natives of Alaska did not enter into formal
treaties with the United States, such treaties are not
essential to the maintenance of rights based upon aboriginal
occupancy. As the Supreme Court said in United States v.
Winans, 198 U.S. 371 (1905), ``the treaty was not a grant of
rights to the Indians, but a grant of rights from them--a
reservation of those not granted.'' (at p. 381.) Thus, unless
the rights which Natives enjoyed from time immemorial in waters
and submerged lands of Alaska have been modified under Russian
or American sovereignty, it must be held that the aboriginal
rights of the Indians continue in effect.
Aboriginal Fishing Rights in Alaska, 57 Interior Dec. 461, 462-63,
1942 WL 4531 (1942).
Finally, it must be noted that the allowance of non-Indian
fishing in areas subject to Indian possessory rights is a
continuing wrong, rather than a wrong which, once committed,
creates supervening and inalienable rights in third parties. It
is well settled that by allowing and licensing the use of
particular areas for fish traps the Federal Government does not
recognize any permanent or proprietary interest therein. Thus
while preexisting Indian proprietary interests have been
violated they have not thereby been permanently extinguished.
The Indian who has been forbidden from fishing in his back yard
has not thereby lost his aboriginal title thereto.
I conclude that aboriginal occupancy establishes possessory
rights in Alaskan waters and submerged lands, and that such
rights have not been extinguished by any treaty, statute, or
administrative action.
Id. at 476.
The 1958 Statehood Act further acknowledged the existence of Native
rights. It provided that ``all right and title . . . to any lands or
other property (including fishing rights), the right or title to which
may be held by any Indians, Eskimos, or Aleuts . . . or is held by the
United States in trust for said Natives . . . shall be and remain under
the absolute jurisdiction and control of the United States until
disposed of under its authority, except to such extent as the Congress
has prescribed or may hereafter prescribe.'' Pub. L. No. 85-508, Sec.
4, 72 Stat. 339 (1958). Corresponding language appears in the Alaska
Constitution. Alaska Const., art. XII, Sec. 12; see Organized Village
of Kake v. Egan, 369 U.S. 60, 65-67 (1962) (Statehood Act preserved
status quo respecting Native aboriginal title).
Section 6(b) of the Statehood Act, however, granted the State of
Alaska the right to select 102.5 million acres for its own use from
``vacant, unappropriated, and unreserved'' public lands. As the new
State began to select lands, Native tribes protested to the Secretary
of the Interior, and on January 12, 1969, Secretary Stewart Udall
imposed a freeze on further patenting or approval of applications for
public lands in Alaska pending the settlement of Native claims. Pub.
Land Order No. 4582, 34 Fed. Reg. 1025 (1969); see Alaska v. Udall, 420
F.2d 938 (9th Cir. 1969). Pressure to resolve Native claims in Alaska
also came from the State and from oil companies wishing to exploit the
state's newly discovered petroleum resources. See Mary Clay Berry, THE
ALASKA PIPELINE: THE POLITICS OF OIL AND NATIVE LAND CLAIMS 123, 163-
214 (Ind. U. Press 1975). Oil development could not progress as long as
Native claims clouded state authority to lease lands or transfer rights
to the companies and hindered federal capacity to authorize
construction of the Trans-Alaska Pipeline, to transport the oil. See R.
Arnold, ALASKA NATIVE LAND CLAIMS 137-147 (2d ed. Cambridge Univ. Press
1978); Native Village of Allakaket v. Hickel, No. 706-70 (D. D.C. April
6, 1970) (enjoining construction of trans-Alaska pipeline over Native-
claimed lands).
Finally, in 1971, Congress confronted the issues it had postponed
for a century and enacted the Alaska Native Claims Settlement Act
(``ANCSA''). Section 4(b) explicitly extinguished hunting and fishing
rights based on aboriginal title: ``All aboriginal titles, if any, and
claims of aboriginal title in Alaska based on use and occupancy. . .
including any aboriginal hunting and fishing rights that may exist, are
hereby extinguished.'' 43 U.S.C. Sec. 1603(b). The ANCSA Conference
Report, however, expressly provided that the Secretary of the Interior
(presumably by virtue of his on-going trust obligations) could
``exercise his existing withdrawal authority'' to ``protect Native
subsistence needs and requirements,'' from ``nonresidents when
subsistence resources for [the public lands] are in short supply or
otherwise threatened.'' H. Conf. Rep. No. 92-746, 92d Cong., 1st Sess.
37 (1971), reprinted in 1971 U.S. Code Cong & Ad. News 2247, 2250.
``The Conference Committee expects both the Secretary and the State to
take any action necessary to protect the subsistence needs of the
Natives.'' Id.
ANCSA's extinguishment clause as it relates to fish and wildlife is
arguably inconsistent with current international law, which the United
States supports. The United Nations Declaration on the Rights of
Indigenous Peoples, includes the following:
Article 20
1. Indigenous peoples have the right to maintain and
develop their political, economic and social systems or
institutions, to be secure in the enjoyment of their
own means of subsistence and development, and to engage
freely in all their traditional and other economic
activities.
2. Indigenous peoples deprived of their means of
subsistence and development are entitled to just and
fair redress.
See, Announcement of U.S. Statement of Support for the United
Nations Declaration on the Rights of Indigenous Peoples (Dec. 16,
2010). http://www.state.gov/s/tribalconsultation/declaration/
iii. post-ancsa treatment of hunting and fishing rights often included
native preferences
After ANCSA, Congress and the executive branch continued to afford
federal protection to specific subsistence rights, largely through
exemptions from federal laws, or international treaties governing
migratory birds or marine mammals. The Marine Mammal Protection Act of
1972 (MMPA) exempted from the moratorium on taking marine mammals any
Alaska Native ``who resides in Alaska and who dwells on the coast of
the North Pacific Ocean or the Arctic Ocean,'' if the taking is for
``subsistence purposes'' or for ``creating and selling'' handicrafts
and clothing. 16 U.S.C. Sec. 1371(b); see Beck v. U.S. Dep't of
Commerce, 982 F.2d 1332 (9th Cir. 1992) (interpreting Native
handicrafts exception favorably to Alaska Natives); United States v.
Clark, 912 F.2d 1087 (9th Cir. 1990); People of Togiak v. United
States, 470 F. Supp. 423 (D.D.C. 1979). See generally Marine Mammal
Protection Act of 1972, 16 U.S.C. Sec. Sec. 1361 et seq. Congress thus
preempted state authority over marine mammal hunting throughout
Alaska's territorial sea and coastal inland waters. Cf. Alaska v.
Arnariak, 941 P.2d 154 (Alaska 1997) (narrowly construing the Marine
Mammal Protection Act's preemptive scope to allow state prohibition of
firearms to take marine mammals on state wildlife refuge). Under a 1981
amendment to the MMPA, the Secretary of the Interior was prohibited
from transferring marine mammal management authority to Alaska unless
the State adopted a subsistence priority law. 16 U.S.C. Sec. 1379(f);
see also 50 C.F.R. Sec. 18.23 (2013) (implementing regulations). The
MMPA was amended in 1996 to provide for comanagement with Alaska
Natives. See 16 U.S.C. Sec. 1388. The Alaska Eskimo Whaling Commission
annually obtains subsistence bowhead whaling quotas pursuant to the
International Whaling Convention. See David A. Case & David A. Voluck,
Alaska Natives & American Laws 276-78 (3d ed. 2012). Polar bear
management agreements and treaties also contain special provisions
dealing with Native harvest. 16 U.S.C. Sec. 1423c,. See Agreement on
the Conservation and Management of the Alaska-Chutkotka Polar Bear
Population, U.S.-Russ. Fed. (Oct. 16, 2000). See also 50 CFR Sec.
300.65 (``A person is eligible to harvest subsistence halibut if he or
she is a member of an Alaska Native tribe with customary and
traditional uses of halibut listed in the following table.'' ); http://
alaskafisheries.noaa.gov/ram/subsistence/halibut.htm
In 1973, the Trans-Alaska Oil Pipeline Act imposed strict liability
for any harm to the subsistence resources of Natives or others, 43
U.S.C. Sec. 1653(a)(1), and the Endangered Species Act (ESA)
presumptively exempted subsistence uses by Natives and ``any non-Native
permanent resident of an Alaskan Native village'' from its coverage. 16
U.S.C. Sec. 1539(e)(1); the Secretaries of the Interior and Commerce
issued an order requiring early and substantial consultation between
federal agencies implementing the ESA and affected Alaska Native
tribes. Secretarial Order No. 3225 (Jan. 19, 2001).
The 1978 Fish and Wildlife Improvement Act authorized the Secretary
``to assure that the taking of migratory birds and the collection of
their eggs, by the indigenous inhabitants of the State of Alaska, shall
be permitted for their own nutritional and other essential needs.'' 16
U.S.C. Sec. 712(1). Finally, executive land withdrawals in the decade
following passage of ANCSA contained expansive subsistence-protection
mandates: 14 of the 17 national monument proclamations signed by
President Carter on December 1, 1978, noted the presence of ``the
unique subsistence culture'' and directed the Secretary to protect it.
43 Fed. Reg. 57,019 (Dec. 5, 1978), reprinted in 1978 U.S. Code Cong. &
Ad. News 9589-9628; see 43 Fed. Reg. 60,252-60,258 (Dec. 26, 1978)
(interim implementing subsistence regulations, providing for
``subsistence fishing'' in ``monument area waters''). These efforts to
protect Native subsistence access to marine mammals, migratory birds
and halibut in offshore waters were beneficial, but too limited in
scope. Fish and game, which are critical for Native subsistence uses,
were not generally protected and the need for congressional action was
apparent.
By the late 1970's, it was obvious that in order for the federal
government to be faithful to its policy of dealing honorably with
Alaska's indigenous peoples, Congress would have to devise a new means
of protecting Native customary and traditional hunting, fishing and
gathering in Alaska. Resurrecting language earlier deleted from drafts
of the Claims Settlement Act, Alaska Natives returned to Congress
asking that explicit comprehensive protections for Native customary and
traditional hunting and fishing be included in the Alaska National
Interest Lands Conservation Act (ANILCA). The original Committee drafts
of Title VIII of ANILCA proposed a Native-only subsistence preference
on all federal public lands in Alaska and allowed the State to manage
the priority on those lands if it passed a law of general applicability
that provided the same preference on state lands. Before the bill was
passed, Congress recast the priority as one for ``rural'' residents in
order to appease the State of Alaska, which argued that a Native
priority would violate the State's Constitution. The State's argument
was incorrect as a matter of law, for states may implement federal laws
regarding Native American tribes if authorized to do so. See Washington
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658 (1979) (rejecting Washington's argument that it could not implement
federally protected Indian treaty rights).
iv. current state of affairs under title viii of anilca
The State came into compliance with Title VIII of ANILCA in 1981
and thus obtained authority to manage subsistence uses on federal
public lands in Alaska. Even then, however, the State program did not
provide a meaningful priority for subsistence uses by rural residents.
The Alaska Board of Game applied sport regulations to moose and caribou
hunting in the Lime Village area and Federal District Judge Holland
declared that the state rules were invalid because they did not
adequately accommodate customary and traditional subsistence use
patterns. Bobby v. Alaska, 718 F. Supp. 764 (D. Alaska 1989). The
situation with fisheries management was even worse. Under state
management many traditional upriver subsistence fisheries had been shut
down shortly after Statehood in favor of downriver commercial fisheries
highlighting the need for comprehensive legislation to protect
subsistence uses of fish and game. These upriver closures were the
genesis for the Katie John litigation, which was commenced in 1985
after the Alaska Board of Fisheries refused the request from Katie John
and Doris Charles that the fishery at the site of Batzulnetas be
opened. In 1987 the fishery was opened as a result of the litigation,
and Judge Holland ordered the State to promulgate regulations that
complied with Title VIII's rural priority. Katie John, et al. v.
Alaska, No. A85-698 Civil, Order on Cross Motions for Summary Judgment
(D. Alaska Jan. 19, 1990) (striking down state regulations that
restricted subsistence fishing at an historic Native fish camp). See,
United States v. Alexander, 938 F.2d 942 (9th Cir. 1991) (setting aside
a federal Lacey Act prosecution on the ground that state law
prohibiting cash sales from being considered subsistence uses was in
conflict with ANILCA's protection of customary trade as a subsistence
use); Kwethluk IRA Council v. Alaska, 740 F. Supp. 765 (D. Alaska 1990)
(striking down state regulations governing subsistence hunting of
caribou in western Alaska as inconsistent with the customary and
traditional harvest patterns of Yupik Natives).
In 1989 the State Supreme Court set aside the State's ability to
provide a rural subsistence preference when it declared that the rural
priority violated the Alaska Constitution. Consequently, the State lost
regulatory authority over subsistence uses on federal lands pursuant to
federal regulations adopted in 1992. Because the federal government
refused to assert jurisdiction over most navigable waters, Katie John
and others filed a successful lawsuit to obtain federal management over
many navigable waters in the state. That decision was handed down in
1995, and federal agencies were charged with developing rules to
implement the court decision.
Governor Knowles made several attempts to convince the state
legislature to place a rural preference constitutional amendment on the
ballot, but was unsuccessful. Senator Stevens secured a series of
appropriations riders that held proposed final federal rules in
abeyance to secure time for the state legislature to act, but no action
was taken. See Pub.L. 105-277, Div. A, Sec. 101(e) [Title III, Sec.
339], 112 Stat. 2681 (1998); and Historical Note, 16 U.S.C.A. Sec.
3102.
Federal regulations to implement the Katie John court decision thus
became final in 1999, and all was relatively quiet until the State
brought a new lawsuit in 2005 challenging the new rules on several
grounds. Since then, much time and expense has been spent in litigation
by both the United States and the Native community in defending the
federal priority from attack by the State of Alaska. These attacks
focus on the scope and mechanics of the federal management regime on
federal public lands. The Katie John case is now in its third
generation of litigation. In the latest decision, the Ninth Circuit
Court of Appeals rejected the State's challenge to the federal
subsistence rules promulgated to implement that court's 1995 and 2001
decisions. Katie John v. Alaska, 720 F.3d 1214 (9th Cir. 2013) (Katie
John III). Set out at the end of this document is a summary of the
decision. The State has until early October to ask the United States
Supreme Court to review the case.
Secretary of the Interior Ken Salazar initiated a review of the
federal subsistence program in 2009, and AFN urged that the
Administration recommend congressional action toward a Native priority,
or ``Native plus'' priority for subsistence uses. Instead, the
Administration made a few changes in Board structure, which are best
characterized as window dressing.
As of now the federal-state subsistence divide is as follows.
1. The federal priority (Title VIII) applies on all
federally-owned uplands. It also applies to all non-navigable
waters within such federally-owned lands.
2. The federal priority also applies to navigable waters that
are located above submerged lands that were retained by the
United States at Statehood in 1959 (most submerged lands passed
automatically to the State of Alaska at the moment of
statehood).
3. The federal priority also applies to navigable waters that
are covered by the federal reserved rights doctrine. This
includes all waters within and adjacent to federal conservation
system units, such as National Forests, Parks, Preserves,
Monuments, Recreation Areas, and so on. Litigation continues
over whether the federal government has included too few, or
too many waters within its interpretation of the federal
reserved rights doctrine. That litigation, Katie John v. United
States, 720 F.3d 1214 (9th Cir. 2013), was decided in July and
the court rejected all of the State's challenges to the federal
rules governing the scope of the subsistence priority. Any
appeals to the U.S. Supreme Court must be taken by early
October.
4. All other non-federal lands (including Alaska Native
corporation lands and tribally-owned lands) are subject only to
the state's subsistence law.
5. The State's own subsistence program, on the other hand,
has lost meaningful protection for subsistence by rural Alaska
Natives. See Alaska v. Kluti Kaah, 831 P.2d 1270 (Alaska 1992)
(upholding state ``subsistence season'' of seven days duration
in order to accommodate the requirement that all Alaskans were
eligible to hunt moose in the road-accessible Unite 13
management area); State v. Morry, 836 P.2d 358 (Alaska 1992)
(state not mandated to take into consideration traditional and
customary methods of subsistence takings in their formulation
of subsistence regulations). Aside from the fact that the state
``priority'' is available to all Alaskans, state regulatory
boards have exercised their authority to declare large areas as
``non-subsistence use areas'' to preclude application of even
the state's watered-down subsistence preference. Most of the
areas around Anchorage (including the Kenai Peninsula and Mat-
Su Valley), Fairbanks, and Juneau have been designated non-
subsistence areas by the Joint Boards of Fisheries and Game. In
addition, areas around Ketchikan and Valdez have been
designated as non-subsistence areas. The State would have
considerable work to do in order to come back into compliance
with Title VIII.
v. constitutionality of native preference laws
A tribal preference for Alaska Native hunting, fishing and
gathering rights would be consistent with a long line of Supreme Court
cases upholding federal legislation providing separate treatment for
indigenous tribes and their members in the United States. The Supreme
Court summarized the law in this area:
The decisions of this Court leave no doubt that federal
legislation with respect to Indian tribes, although relating to
Indians as such, is not based upon impermissible racial
classifications. Quite the contrary, classifications expressly
singling out Indian tribes as subjects of legislation are
expressly provided for in the Constitution and supported by the
ensuing history of the Federal Government's relations with
Indians.
``Indian tribes are unique aggregations possessing attributes
of sovereignty over both their members and their territory,
Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 557, 8 L.Ed. 483
(1832); they are `a separate people' possessing `the power of
regulating their internal and social relations . . ..' ''
United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717,
42 L.Ed.2d 706 (1975).
Legislation with respect to these ``unique aggregations'' has
repeatedly been sustained by this Court against claims of
unlawful racial discrimination. In upholding a limited
employment preference for Indians in the Bureau of Indian
Affairs, we said in Morton v. Mancari, 417 U.S. 535, 552, 94
S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974):
``Literally every piece of legislation dealing with Indian
tribes and reservations . . . single(s) out for special
treatment a constituency of tribal Indians living on or near
reservations. If these laws . . . were deemed invidious racial
discrimination, an entire Title of the United States Code (25
U.S.C.) would be effectively erased . . ..''
In light of that result, the Court unanimously concluded in
Mancari:
``The preference, as applied, is granted to Indians not as a
discrete racial group, but, rather, as members of quasi-
sovereign tribal entities . . ..'' Id., at 554, 94 S.Ct., at
2484.
U. S. v. Antelope, 430 U.S. 641, 645 (1977).
These rules were applied to reject Washington State's attack on the
treaty fishing rights of Indian tribes in off-reservation areas. The
Supreme Court stated that it ``has repeatedly held that the peculiar
semisovereign and constitutionally recognized status of Indians
justifies special treatment on their behalf when rationally related to
the Government's `unique obligation toward the Indians.''' Washington
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658, 673, (1979). In a recent case challenging Congress's power to
restore tribal criminal jurisdiction, the Supreme Court noted that it
has traditionally identified the Indian Commerce Clause, U.S. Const.,
Art. I, Sec. 8, cl. 3, and the Treaty Clause, Art. II, Sec. 2, cl. 2,
as sources of federal power and that ``at least during the first
century of America's national existence ... Indian affairs were more an
aspect of military and foreign policy than a subject of domestic or
municipal law.'' United States v. Lara, 541 U.S. 193, 200-202 (2004).
Those sources of power are also sufficient to restore or reform the
federal regime governing Alaska Native hunting, fishing and gathering
rights.
vi. conclusion
Until ANCSA passed in 1971, Native aboriginal rights were protected
under federal law. In addition, many statutes, treaties and executive
actions provided protections for Native hunting and fishing rights. The
Congress that passed ANCSA intended that subsistence uses be protected,
and when that aim was not fulfilled Title VIII of ANILCA was passed.
Title VIII was intended to protect those rights through a ``rural''
preference that would be fulfilled with the State of Alaska's
cooperation. The State has refused to cooperate and the intended
federal subsistence protections have not been fulfilled. ANCSA's
corporate scheme was experimental and Congress has revisited it with
substantial amendments on many occasions. Now is the time for Congress
to act to fulfill the promise that Native subsistence rights be
protected.
The undeniable federal power in this area, coupled with the federal
action since acquisition of Alaska to the present time, demonstrates
that the proposed Native preference is consistent with federal law. The
question here is whether Congress has the authority, consistent with
equal protection values embodied in the Due Process clause of the 5th
Amendment, to establish a Native priority for access to fish, game and
other natural resources. The answer, based on over two hundred years of
congressional, judicial and executive branch precedent, is yes.
addendum.--the katie john iii decision
Katie John v. United States, 720 F.3d 1214 (9th Cir. 2013).
Senior Judge William C. Canby, Jr. and Judge Consuelo Callahan
joined Senior Judge Kleinfeld's opinion. Senior Judge Betty Fletcher
was on the panel when the case was argued in Anchorage in July of 2011,
but passed away in 2012 and was replaced by Judge Canby.
The lengthy opinion begins with a discussion of the history of the
State's unsuccessful efforts to obtain management over federal public
lands under Title VIII of ANILCA, and the current litigation over the
geographic scope of federal management authority. The opinion then
recounts the basic parameters of the federal reserved water rights
doctrine, which is the primary issue in the litigation. Judge Kleinfeld
correctly notes that the reserved rights doctrine has previously been
applied to protect or quantify actual federal or Indian water use.
Here, instead, it is being utilized to determine the geographic
boundaries of federal public lands. Judge Kleinfeld observed that:
``We, and perhaps the Secretaries, failed to recognize the
difficulties in applying the federal reserved water rights
doctrine in this novel way, and in retrospect the doctrine may
provide a particularly poor mechanism for identifying the
geographic scope of ANILCA's rural subsistence priority
management when it comes to water. *** Of course, we had the
opportunity to revisit Katie John I in Katie John II, and while
a majority of the en banc court agreed for diverging reasons
that Katie John I was incorrectly decided, we could not come to
a controlling agreement about why that was true. We accordingly
concluded that the decision `should not be disturbed or
altered.' Katie John I therefore remains controlling law, and
we must attempt to apply it in this case.''
[Katie John I was decided by a three-judge panel of the Ninth
Circuit in 1995 and determined that the federal reserved rights
doctrine should be utilized to delineate federal jurisdiction over
navigable waters under ANILCA].
Despite the difficulties in applying the federal reserved rights
doctrine, the court moved on to the merits of the challenges to the
1999 federal subsistence rule. Set out below are short descriptions of
the issues and language from the court's opinion resolving each matter
presented in the case.
1. What Process: The State argued that the federal determination of
waters subject to the federal reserved rights doctrine should have been
decided in a judicial proceeding instead of through an administrative
rule-making. Judge Kleinfeld rejected the State's argument.
We hold that the Secretaries appropriately used notice-and-comment
rulemaking, rather than adjudication, to identify those waters that are
``public lands'' for the purpose of determining the scope of ANILCA's
rural subsistence priority. The use of rule making is consistent with
ANILCA, which requires the federal government to ``prescribe such
regulations as are necessary,'' and with our decision in Katie John I,
where we expressed our ``hope that the federal agencies will determine
promptly which navigable waters are public lands subject to federal
subsistence management. * * * Logically, we intended the agencies to
act through rulemaking, where doing so was feasible.
2. Which waters: Federal District Court Judge H. Russel Holland
presided over the lower court proceedings and directed the parties to
frame any challenges to the federal rules through particular test cases
when appropriate. Judge Holland and the court of appeals addressed the
following issues.
a) Adjacent waters: The State argued that the rules should not
apply to waters that are adjacent to the boundaries of federal CSUs.
These boundary streams include long river segments, such as the
portions of the Copper River technically outside the Park and Preserve
boundaries. The court agreed with AFN, the United States and Katie John
that such waters were subject to the reserved rights doctrine and thus
subject to the subsistence priority. The court stated:
Accordingly, the Secretaries reasonably concluded that the
United States has an ``interest'' in these adjacent waters by
virtue of the federal reserved water rights doctrine sufficient
to qualify as ``public lands'' for purposes of Title VIII.
b) Sixmile Lake: This lake is adjacent to the Lake Clark National
Park and Preserve. The State argued that because the Lake's shoreline
is non-federal, non-public land owned by the Native Village Corporation
for Nondalton, the lake could not be considered as adjacent to the
Park. The court deferred to the federal determination that the boundary
of the Park was adjacent to the shore of Sixmile Lake and thus the lake
is covered by the subsistence priority.
[T]he agency map of the Lake Clark National Park and Preserve
places the Park's boundary at the shoreline of Sixmile Lake.
ANILCA provides that, ``[i]n the event of discrepancies between
the acreages specified in this Act and those depicted on such
maps, the maps shall be controlling.'' The Secretaries
therefore properly concluded that Sixmile Lake was in fact
adjacent to the Lake Clark National Park and Preserve.
Moreover, under the federal reserved water rights doctrine, the
Secretaries must show only that the waters are positioned such
that the United States may need to exercise its rights upon
them. For that reason, the formal ownership of the land
immediately along the shoreline of Sixmile Lake is not
dispositive, so long as the lake contains water that is or
might be necessary to fulfill the primary purposes of the Lake
Clark National Park and Preserve.
c) Seven Juneau-area streams: The State argued that several streams
near Juneau were either outside of the Tongass National Forest, or were
surrounded by private and state inholdings and thus could not be
considered subject to federal reserved water rights. The court
concluded the U.S properly considered the rivers to be within the
Tongass.
d) Water flowing through inholdings: The court rejected the State's
general arguments that waters that ran between State and private
inholdings within the 34 CSUs could not be subject to federal reserved
water rights.
[W]ater rights that the United States impliedly acquires are
not forfeited or conveyed to third parties when the government
conveys to another party land within a federal reservation.
Furthermore, federal reserved water rights can reach waters
that lie on inholdings as long as those waters, based on their
location and proximity to federal lands, are or may become
necessary for the primary purposes of the federally reserved
land. Because these water bodies are actually situated within
the boundaries of federal reservations, it is reasonable to
conclude that the United States has an interest in such waters
for the primary purposes of the reservations. We therefore
uphold the Secretaries' inclusion of these waters within
``public lands.''
e) Coastal waters and the ``headland-to headland method'': The
State argued that the federal government's subsistence rules unlawfully
included marine waters at the mouths of rivers. A prime example was the
Yukon Delta National Wildlife Refuge where the river meets the sea. The
federal government determined the outer limit of public lands by
drawing a boundary across the water from the bank of one side of the
river to the opposite bank where the river meets the sea. The court
agreed that this was a reasonable way to determine where the federal
subsistence priority applies and rejected the State's arguments.
As discussed above, a federal interest by virtue of the
federal reserved water rights doctrine may exist in waters
adjacent to, but outside the boundary of, a federal
reservation, as long as these waters are appurtenant to the
reservation. Because the headland-to-headland method includes
tidally influenced waters that are physically connected to, and
indeed practically inseparable from, waters inland of the high
tide line (or waters on the federal reservations themselves),
drawing of the boundary line in this manner is consistent with
the federal reserved water rights doctrine. Finally, as the
Secretaries explain in the 2005 amendments, ``the regulations
use the methodology found in the Convention on the Territorial
Sea and Contiguous Zone from the United Nations Law of the Sea
for closing the mouths of rivers.'' For these reasons, using
the headland-to-headland approach for purposes of determining
the boundaries of rural subsistence priority management is a
reasonable way to administer ANILCA.
f) Upstream and downstream waters: Katie John argued that because
some adjacent waters were included, the federal priority should also
apply to waters farther upstream and downstream of the various
conservation system units. The court agreed that this was a reasonable
way to apply the reserved water rights doctrine, but that it was up to
the federal agencies to make that determination in the first instance.
Importantly, the court recognized that the expansion advanced by Katie
John might be appropriate in a particular situation. However, because
the argument was made in general terms, the courts deferred to the
federal agency decision. The court stated:
In short, we agree with the district court that the
Secretaries reasonably determined that, as a general matter,
federally reserved water rights may be enforced to implement
ANILCA's rural subsistence priority as to waters within and
``immediately adjacent to'' federal reservations, but not as to
waters upstream and downstream from those reservations. We also
agree with the district court that the federal reserved water
rights doctrine might apply upstream and downstream from
reservations in some circumstances, were there a particularized
enforcement action for that quantity of water needed to
preserve subsistence use in a given reservation, where such use
is a primary purpose for which the reservation was established.
But the abstract claim that all upstream and downstream waters
are necessary for all the federal reservations in the 1999
Rules cannot withstand ANILCA's text or history, the joint
decision of the two cabinet secretaries to whom administration
of the complex statute has been delegated, our decisions in
Katie John I and Katie John II, or the facts established in
this litigation.
g) Allotments: In the lower 48, allotments are generally recognized
as including reserved water rights to allow full use of the land. In
Alaska there is a strong argument that Native allotments include
reserved waters to allow for full use of the allotment. The United
States agrees, but has deferred determination of which waters are
reserved to a case-by-case process. The court agreed with the federal
position.
Determining which waters within or appurtenant to each
allotment may be necessary to fulfill the allotment's needs is
a complicated and fact-intensive endeavor that is best left in
the first instance to the Secretaries, not the courts. We are
mindful that Katie John I expresses the hope that the federal
agencies will ``determine promptly which navigable waters are
public lands subject to federal subsistence management,'' and
that the parties to this litigation have an interest in a final
determination of how the Secretaries will manage ANILCA's rural
subsistence priority. Accordingly, while we defer to the
Secretaries' determination in the 1999 Rules regarding how best
to identify federal reserved water rights for Alaska Native
settlement allotments, we encourage them to undertake that
process in a reasonably efficient manner.
3. Selected-but-not-yet-conveyed lands: The court rejected the
State's argument that land selected by the state or a Native
Corporation, but not yet conveyed from the United States, was not
federal land for purposes of the subsistence priority.
[B]ecause the title to the selected-but-not-yet-conveyed land
remains with the United States, there is no practical reason to
exclude these lands from federal rural subsistence priority
management before they are formally conveyed to the State or a
Native corporation.
Senator Murkowski. Thank you, Mr. Anderson. Dr. Rosita
Worl, welcome.
STATEMENT OF ROSITA WORL, PRESIDENT, SEALAKSA CORPORATION,
JUNEAU, AK
Ms. Worl. Aanshaawatk'I, Deisheetaan, Senator Murkowski,
Senator Manchin.
Gunulcheesh Aan Yatgu Saani. Thank you, Noble Leaders, for
this opportunity to testify in my capacity as the chair of the
Alaska Federation of Natives Subsistence Committee.
I have also submitted written testimony for the record.
I would first like to share my identity with you, to
demonstrate our spiritual relationship to the land and wildlife
and to demonstrate our ancient ties to the land.
Ch'aak' naa xat sitee, I am an eagle.
Shangukeidi aya xat. I am a thunderbird.
Kawdliyaayi Hit aya xat. I am from the house lowered from
the sun.
Lukaaz.adi aya xat. I am a child of the sockeye clan.
My spirits are the white bear and the shark.
Subsistence is not an easy concept to define. Subsistence
has been defined under Federal law to include traditional and
customary hunting and fishing.
Alaska Natives have simply defined subsistence as our way
of life. Subsistence activities, in fact, are integrated into
the economic, cultural, religious and social systems of Alaska
Native societies.
The definition of subsistence aside, it is critical that we
acknowledge that subsistence is the foundation of Alaska Native
cultures. Subsistence is the mainstay of food security in
Native villages. Subsistence contributes to the cultural and
physical survival of Native peoples on a daily basis.
Protection of subsistence is part of Federal law throughout
the United States. Nowhere are these protections more critical
than in the State of Alaska.
You have heard my colleague, Ana Hoffman, report on the
significance and the importance of Alaska Native consumption of
foods, subsistence food.
We are here to ask this committee to fulfill the Federal
Government's trust responsibility to protect Alaska Native
subsistence, to protect our communities and our cultures, our
food and our way of life.
You have also heard my colleague, Mr. Anderson, review for
you the history of ANCSA and ANILCA. ANILCA did not explicitly
protect Alaska Native subsistence users, and ANILCA's rural
priority did not extend to the State--to State or private lands
or lands conveyed to our Native Corporations pursuant to ANCSA.
Today, Federal laws protecting subsistence have been
efficiently gutted and the State has further enacted measures
adverse to subsistence. The State has declared all Alaskans to
be subsistence users, and the State has declared large areas of
land adjacent to communities as non-subsistence-use areas.
As just one example, Alaska's Board of Game, which
regulates hunting on State lands and on Ahtna's land, has
limited the subsistence moose hunts to only a few days in the
traditional territory of the Ahtna Tribe.
Yet, as I understand, the Board of Game allowed as many as
20,000 recreational hunters to sign up for the hunt during the
2013 season. The Ahtna people, who have depended on moose for
their livelihood since time immemorial, were only able to take
18 moose for their 1,700 tribal members.
The Federal Government has also failed to take meaningful
steps to protect Alaska Native subsistence users. The United
States and this government have a trust responsibility to
Alaska Natives. Congress can act to protect Alaska Natives
subsistence rights.
In fact, Congress has, in the past, enacted or amended laws
like the Marine Mammal Protection Act that explicitly protects
Alaska Native subsistence users.
We understand that achieving a meaningful reform of the
legal framework for the subsistence management in Alaska may
take some time, and we ask this committee to take a series of
steps toward reform during the Congress.
First, we ask that Alaska Native leaders work with us to
draft legislation that would protect the Alaska Native's
customary and traditional hunting and fishing way of life.
Second, we ask that you work with Alaska Native leaders to
develop and quickly pass legislation to implement two
innovative subsistence demonstration projects that my colleague
will be talking about.
Third, we ask that a report from the Secretary of Interior
on the status of the department's efforts to implement actions
outlined following a 2009 secretarial review for the Federal
Subsistence Management Program.
Fourth, we urge the Secretaries of Interior and Agriculture
to review and, to the extent possible, implement AFN's
recommendations on administrative action that would
significantly improve the ability of Alaska Native tribes to
pursue their customary and traditional subsistence activity.
On behalf of our Alaska Native people and communities,
which depend on subsistence hunting and fishing to maintain our
health, wellbeing and way of life, I thank you for holding this
important hearing.
I would be pleased to answer any questions you may have.
Gunulcheesh.
[The prepared statement of Ms. Worl follows:]
Prepared Statement of Rosita Worl, Chair, Subsistence Committee, Alaska
Federation of Natives
Chairman Wyden, Aanshaawatk'I, Deisheetaan, Senator Murkowski, and
Members of the Committee:
Gunulcheesh Aan Yatgu Saani. Thank you Noble Leaders for inviting
me to testify today. Today I testify in my capacity as Chair of the
Alaska Federation of Natives Subsistence Committee.
I would like to first share my identity with you to demonstrate our
spiritual relationship to the land and wildlife and to demonstrate our
ties to the land:
Ch'a1ak' naa xat sitee--I am Eagle
Shangukeidi aya xat--I am a Thunderbird
Kawdliyaayi Hit aya xat--I am from the House Lowered from the
Sun
Lukaax.adi aya xat--I am a Child of the Sockeye Salmon
My Spirits are the White Bear and the Shark
The concept of ``subsistence'' is not an easy concept to define. No
one definition of subsistence fully captures the meaning of the term.
Alaska Natives have simply defined subsistence as their ``way of
life.'' Social scientists affirm this definition through their analyses
that demonstrate that indeed subsistence activities are integrated into
the economic, cultural and social systems of Native societies.
The Alaska National Interest Lands Conservation Act of 1980
(ANILCA), uses the following definition, which is important from a
legal standpoint:
The term ``subsistence uses'' means the customary and
traditional uses by rural Alaska residents of wild, renewable
resources for direct personal or family consumption as food,
shelter, fuel, clothing, tools, or transportation; for the
making and selling of handicraft articles out of nonedible
byproducts of fish and wildlife resources taken for personal or
family consumption; for barter, or sharing for personal or
family consumption; and for customary trade.
Aside from the definition of subsistence, it is critical that we
acknowledge that
Subsistence is the foundation of Alaska Native cultures.
Subsistence is the mainstay of food security in Native
villages.
Subsistence contributes to the cultural and physical survival
of Native communities on a daily basis.
Protection of subsistence, including traditional and customary
hunting and fishing rights, is a part of federal law throughout the
United States. Nowhere are these protections more critical than in the
State of Alaska.
A vast majority of Alaska's 120,000 Native people (nearly 20% of
the population of Alaska) still participate in hunting, fishing and
gathering for food during much of the year. The average harvest of
subsistence resources in pounds per person in rural Alaska is estimated
at 544 pounds annually, equivalent to 50% of the average daily caloric
requirement.
Today, we are finding, more so than ever, that subsistence is
threatened on multiple fronts:
Global warming is altering our environment and diminishing
the availability of subsistence resources. For example, the St.
Lawrence Islanders are requesting that an economic disaster be
declared since they were unable to harvest their normal number
of walruses, which provide both food and a source of income.
The management of high sea fisheries fails to consider the
subsistence priority, and thousands of Natives along our major
riverine systems face decreasing availability of salmon that is
so vital to our food security.
High energy costs hinder the ability of Natives to harvest
subsistence foods, again diminishing a major source of food
security in our communities.
The Federal Subsistence Board\1\ declared the Village of
Saxman to be non-rural in 2007 by aggregating it with the
larger community of Ketchikan and declaring the whole area non-
rural. Saxman should have been evaluated on its own
characteristics and population. Unless the Board revises its
method of making rural/nonrural determinations, Saxman will
lose its rural status, a loss that will ripple through rural
Alaska as more and more of our villages face the loss of the
rural preference under federal law.
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\1\ The Federal Subsistence Board is the decision-making body that
oversees the Federal Subsistence Management Program. It is made up of
the regional directors of the U.S. Fish and Wildlife Service, National
Park Service, Bureau of Land Management, Bureau of Indian Affairs and
U.S. Forest Service. Two public members appointed by the Secretary of
the Interior with concurrence of the Secretary of Agriculture. The
Regional Advisory Councils provide recommendations and information to
the Board; review proposed regulations, policies and management plans;
and provide a public forum for subsistence issues. U.S. Department of
the Interior, Federal Subsistence Management Program, About the
Program, available at http://www.doi.gov/subsistence/about/index.cfm.
These are just a few examples of the challenges we face to our way
of life. Unfortunately, the Federal Government's legal framework for
subsistence management in Alaska further undermines the ability of
Alaska Natives to access their traditional foods.
In the 1960s, the Alaska Federation of Natives and Alaska Native
leaders sought federal protections for hunting and fishing rights as
part of a settlement of Alaska Native aboriginal land claims. Instead,
Section 4(b) of the Alaska Native Claims Settlement Act (ANCSA) of 1971
extinguished those rights:
All aboriginal titles, if any, and claims of aboriginal title
in Alaska based on use and occupancy, including submerged land
underneath all water areas, both inland and offshore, and
including any aboriginal hunting or fishing rights that may
exist, are hereby extinguished.
Rather than define explicit protections for Native hunting and
fishing rights in Alaska at that time, Congress in 1971 expected the
State of Alaska and the Secretary of the Interior ``to take any action
necessary to protect the subsistence needs of Alaska Natives.'' S. REP.
NO. 92-581, at 37 (1971) (Conf. Rep.). Neither the Secretary of the
Interior nor the State of Alaska fulfilled that expectation. As a
result, Congress enacted Title VIII of ANILCA in 1980. ANILCA's Title
VIII envisioned State implementation of the federal priority on all
lands and waters in Alaska through State law. Again, the Alaska
Federation of Natives and Alaska Native leaders sought explicit
protections for ``Native'' hunting and fishing rights, but the State
objected.
Ultimately, ANILCA was crafted to provide a subsistence priority
for ``rural residents''. Again, Congress expected that the State of
Alaska would enact State laws that conformed to federal requirements
and manage subsistence on state and federal lands in Alaska.
Alaska did enact laws that allowed the State to manage subsistence
on state and federal lands in Alaska, but that system operated for less
than a decade before the Alaska Supreme Court ruled that the State
Constitution precluded State participation in the program. In 1989, the
Alaska Supreme Court held, in McDowell v. State, 785 P.2d 1 (Alaska
1989), that the Alaska Constitution's equal access clauses, which
guarantee that all Alaskans have equal access to fish and wildlife,
preclude the State from implementing a rural subsistence priority
consistent with ANILCA.
After the 1989 McDowell decision, Alaska Native leaders and leaders
in the Alaska Legislature attempted to bring Alaska law into compliance
with ANILCA, which would have enabled the State to reassume
responsibility for managing subsistence hunting and fishing on federal
lands. The Alaska Legislature (through 20 regular sessions and six
special sessions) was not able to accomplish this goal, falling just
short of required number of votes. Today, State law generally
prioritizes subsistence uses of fish and game but provides no
preference for rural or Alaska Native residents.
Forty-two years after ANCSA passed, and 33 years after ANILCA
passed, neither the Department of the Interior nor the State of Alaska
has lived up to Congress's expectation that Alaska Native subsistence
needs would be protected. Today, the Federal Government manages
subsistence on federal lands in Alaska. The State of Alaska generally
manages subsistence on state and private lands in Alaska, including
private lands owned by Alaska Native Corporations formed pursuant to
ANCSA.
After more than 20 years of ``dual'' federal and state management,
it has become clear that the State will not do what is required to
regain management authority over subsistence uses on federal lands and
waters. The State subsistence laws have effectively been gutted--large
areas of the state have been classified as ``non-subsistence use
areas,'' where subsistence users receive no priority and ``all
Alaskans'' have been declared eligible for the subsistence priority on
all remaining state and private lands. This change is completely
inconsistent with ANILCA's rural preference. This inconsistency is
getting worse rather than better and the purpose, intent, and ``letter
of the law'' in both ANCSA and ANILCA are not being met.
We hope this Committee will recognize that ANCSA and ANILCA failed
to provide the long-term protections for Native subsistence needs that
Congress intended, and take the actions necessary to provide those
protections. Subsistence harvests have been marginalized, both by
competing users of fish and game and by ineffective and irreconcilable
federal and state management regimes. In some cases, Alaska Natives
have been made criminals for feeding their families and communities,
and penalized for practicing ancient traditions. Alaska Natives were
given only a very limited role in the management of their hunting and
fishing rights under ANILCA-even on their own lands-undermining all
efforts to protect customary and traditional uses, practices and needs.
Only Congress can make the changes necessary to protect subsistence in
Alaska.
the administration's role in subsistence reform
In 2009, in light of the erosion of federal protections, and after
more than twenty years of dual (state and federal) management of
subsistence, former Secretary of the Interior Ken Salazar initiated a
review of the Federal Subsistence Management Program. In doing so, he
called for a ``new approach''--one that would recognize and respect the
voice of subsistence users in subsistence management. The Native
community participated in the review, and submitted extensive comments
and recommendations.
The Secretary completed his review on October 5, 2010, and
subsequently outlined a number of actions which could be accomplished
by Secretarial directive or policy or through regulatory changes
requiring formal rule making. To date, very few of those actions have
actually been implemented. AFN believes the administrative actions
taken to date, as a result of the review, are inadequate. Very little
has changed since the review.
AFN recommended, and continues to recommend, that the Secretary of
the Interior pursue a number of administrative actions that would
improve the current federal management system and better protect our
way of life. We ask this Committee to join us in urging the President
and his Administration to take whatever policy and administrative
measures they can to better protect our subsistence way of life.
Attached to my testimony is a list of the actions we believe the
Administration can take right now that would require little or no
funding. We shared this list with the new Secretary of the Interior,
Sally Jewell, in our meeting with her in late August. Our
recommendations include the following:
Effective Implementation of Section 809 of ANILCA: Title
VIII of ANILCA mandates that the Federal Government provide
rural residents a meaningful role in the management of
subsistence fisheries. To increase the quality and quantity of
information available to subsistence fisheries managers,
Secretary Babbitt established the Fisheries Resource Monitoring
Program within the Office of Subsistence Management in 2000.
While the Monitoring Program offers tremendous opportunities
for partnerships and participation by Alaska's tribes and their
organizations, very little of the budget goes to Alaska Native
organizations. In FY 2012, the total budget for the Monitoring
Program was $4,538,150. Only 19% of that funding ($861,526)
went to Native organizations while 42% went to the State of
Alaska and another 11% to private organizations. Alaska's
tribes have historically received very little of the funding
under the Monitoring Program.
Regional Advisory Councils\2\: Section 805 of ANILCA
mandates that the Federal Subsistence Board follow the
recommendations of the RACs unless a recommendation is ``not
supported by substantial evidence, violates recognized
principles of fish and wildlife conservation or would be
detrimental to the satisfaction of subsistence needs.'' The
Federal Subsistence Board takes the position that it need only
give deference to recommendations that involve the ``taking''
of fish or wildlife; the Board does not defer to RACs on other
critical decisions, for example, whether a community should
qualify as ``rural'', or whether a specific practice qualifies
as a ``customary and traditional'' use of fish or wildlife
within the RAC's region. The Federal Subsistence Board should
be directed to give deference to RAC recommendations on all
matters related to subsistence uses, including, among other
things (1) rural determinations; (2) customary and traditional
use determinations; (3) issues that arise out-of the normal
regulatory cycle; and (4) special actions and emergency
regulations.
---------------------------------------------------------------------------
\2\ The Regional Advisory Councils were formed, as required by
Title VIII of ANILCA, to provide recommendations and information to the
Federal Subsistence Board, to review policies and management plans, and
to provide a public forum for subsistence issues. For purposes of
Federal Subsistence Management, Alaska is divided into 10 geographic
regions. Each region has an advisory council consisting of local
residents who are knowledgeable about subsistence and other uses of
fish and wildlife in their area. U.S. Department of the Interior,
Federal Subsistence Management Program, Regional Advisory Councils,
available at http://www.doi.gov/subsistence/councils/index.cfm.
---------------------------------------------------------------------------
Composition of the Federal Subsistence Board: During the
Secretarial review, AFN recommended that the Federal
Subsistence Board be replaced with a federally-chartered or
federally-authorized body composed of twelve subsistence users
from the twelve ANCSA regions, or the chairs of each of the
RACs. There is nothing in Title VIII of ANILCA that prohibits
the Administration from creating a Board structure composed of
non-federal members. While the Secretary recently added two
public members to the Board, the majority of the members are
still federal employees.
the committee on energy and natural resources should advance
legislation to protect alaska native subsistence rights
We ask that this Committee commit to work with the Alaska Native
community to formulate legislation that will restore and protect Native
hunting and fishing rights in Alaska, and provide a co-equal role for
Alaska Natives in the management of fish, wildlife and other renewable
resources that we rely upon for our economic and cultural existence.
Rather than simply defending and repairing a broken system that no
longer serves its intended purpose, we believe it is time to consider
options that reach back to Congress's original expectation that Alaska
Native hunting, fishing and gathering rights be protected. Congress has
the authority to enact legislation that ensures a ``Native'' or
``tribal'' subsistence preference on all lands and waters in Alaska,
and to provide a co-management role for Alaska Natives.
We are not asking this Committee to undertake unprecedented action.
Congress has amended federal law to provide explicit protections for
Alaska Native subsistence rights in the not-so-distant past. In 1972,
Congress passed the Marine Mammal Protection Act (MMPA), imposing a
general ban on the taking and importation of marine mammals or their
parts, and conferred jurisdiction on the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service for the management of marine
mammals in U.S. waters. However, recognizing that Alaska Natives have
relied on marine mammals for food, clothing and culture for centuries,
Congress exempted from the ban those takings by Alaska Natives who
dwell on Alaska's coast, provided that such takings are for
``subsistence purposes'' or to create ``authentic Native handicrafts
and clothing'' and provided that such takings are not wasteful.
When the MMPA was reauthorized in 1994, Congress amended the
statute to authorize the Secretaries of the Interior and of Commerce to
enter into Marine Mammal Cooperative Agreements in Alaska with Alaska
Native Organizations ``to conserve marine mammals and provide co-
management of subsistence uses by Alaska Natives.'' 16 U.S.C. Sec.
1388 (Section 119 of the MMPA). Implicit in Section 119 is the belief
that a cooperative effort to manage subsistence harvests that
incorporate the knowledge, skills and perspectives of Alaska Natives is
more likely to achieve the goals of the MMPA than is management by the
federal agencies alone. And that has proved to be the case.
We are here to ask Congress to fulfill the Federal Government's
trust responsibility to protect the Alaska Native subsistence culture
and economy. The Committee on Energy and Natural Resources should work
with the Alaska Native community to design federal legislation that
will protect Alaska Native subsistence rights. By embracing co-
management with Alaska Natives, the Federal Government could administer
a much more responsive and cost-efficient management program. It would
reduce the litigation that has plagued the implementation of Title VIII
of ANILCA since its passage more than 30 years ago.
We commend Senators Lisa Murkowski and Mark Begich, and this
Committee, for introducing and considering legislation targeted to
resolve unique problems and to address region-specific challenges. For
example
Senators Begich and Murkowski have previously introduced
legislation that would allow Alaska subsistence hunters to
receive a waiver from the general requirement that hunters
purchase duck stamps from the Federal Government. This
legislation would enable many of our people to maintain their
subsistence way of life without facing burdensome fees that
many cannot afford.
The Huna Tlingit Traditional Gull Egg Use Act, recently
reported out of this Committee, would authorize the Secretary
of the Interior to allow members of the Hoonah Indian
Association to collect the eggs of glaucous-winged gulls up to
two times a year within Glacier Bay National Park. This
legislation was developed after working closely with the
National Park Service, and will enable the community to
continue a traditional and customary practice on the basis of
sound science.
As you work with the Alaska Native community to design a
comprehensive and holistic approach to federal subsistence reform, we
hope the Committee will also continue to pursue smaller bills that
address specific problems or region-specific challenges.
subsistence demonstration projects: two focused projects that require
congressional action
Two focused demonstration projects, described below, represent
important and worthwhile efforts to improve subsistence management.
Both would require federal legislation to implement. We urge this
Committee to support these projects.
A Demonstration Project Establishing Authority in Ahtna to Manage
Wildlife on Ahtna Lands and a Creating a Federal-State-Tribal
Co-Management Structure
This demonstration project would authorize the tribes in the Ahtna
region of Alaska to manage wildlife on lands conveyed to Ahtna under
ANCSA (``Ahtna lands'') as well as on Native allotments held in trust
by Ahtna tribal members.The legislation would create a Federal/State/
Tribal co-management structure that would apply to Ahtna's traditional
territory.
Over the years, in order to accommodate the growing number of non-
rural hunters, the State Board of Game has repeatedly taken away the
Ahtna peoples' opportunity to continue their customary and traditional
(C&T) hunting way of life.
For example, under the current dual management the Alaska Board of
Game, which regulates hunting on state lands and Ahtna lands, adopted a
regulation limiting the hunting season in the tribes' traditional
territory to a single 7-day season, and through imposition of antler
restrictions limited their take to only those moose with very large
antlers or very young moose--neither of which were traditionally taken
by the Ahtna people.
Less than five years ago the State Board took up a proposal to
classify vital parts of Ahtna's hunting territory as a non-subsistence
use area. Under State law, in a non-subsistence use area it is illegal
to provide a priority for subsistence hunting or to provide greater
hunting opportunity to subsistence users to meet essential nutritional
and cultural needs. While section 804 of ANILCA requires a subsistence
priority on all federal lands, federal lands comprise only a small part
of Ahtna's traditional territory. Thus, Ahtna relies significantly on
State lands and Ahtna lands to meet C&T hunting needs. The proposal to
deny Ahtna's basic subsistence hunting rights, even on their own lands,
failed by a single vote. Each time this State Board meets the opponents
of meaningful C&T hunting opportunities petition for a non-subsistence
use area. Ahtna faces a continual battle to hang on to essential
hunting rights.
Ahtna's problems arise from the two central facts. First, Alaska's
major population centers, and the roads that connect these centers,
surround Ahtna's traditional hunting area. The moose and caribou
populations upon which Ahtna depends are highly desirable and
accessible to these large urban populations. The competition is fierce
and the hunting grounds are crowded. Urban hunting groups apply
constant pressure on State institutions to optimize their sport use and
minimize protection for Ahtna's C&T hunting practices.Federal law and
regulations provide minimal protection due to the small amount of
accessible federal lands within Ahtna's traditional hunting territory.
Second, Ahtna has no meaningful role in regulating hunting, even on
Ahtna lands. Their traditional and local knowledge is given no weight
in decision-making. Elders and tribal leaders are reduced to a mere
three minute period of public testimony to try to influence the
regulation of their C&T hunting practices. Ahtna has no influence over
how the State manages wildlife populations for conservation, and
federal agencies are passive and reluctant to take on the State over
its management practices.
The proposed demonstration project would authorize Ahtna to manage
hunting on Ahtna lands and Native allotments held in trust by Ahtna
tribal members. Ahtna has created a tribal conservation district made
up of the eight federally recognized Ahtna tribes that would manage
hunting on Ahtna lands. All lands within Ahtna's traditional territory
(State, federal and Native lands), would be managed through a co-
management structure through which the mandates of State law, federal
law, and the traditional knowledge of the Ahtna would be unified and
coordinated to achieve the mutual goal of ensuring the conservation of
wildlife populations, and to ensure that Ahtna tribal members have the
hunting opportunities necessary to continue their tribal hunting way of
life. The practical impact of Ahtna's proposed solution on other
Alaskan hunters would be minimal since the amount of moose, caribou and
other wildlife resources necessary to meet Ahtna's needs is only a
small percentage of the total take of wildlife within Ahtna's
traditional territory.
Ahtna's proposal would replace the ineffective dual federal-state
subsistence management system with a unified Federal-State-Tribal co-
management structure. Such co-management has proven highly successful
for conservation and management in many parts of the U.S., for example
the Northwest Indian Fisheries Commission, in western Washington State.
Co-management would be more efficient than the current dual federal-
state system, thereby saving federal dollars. Co-management would
advance tribal self-determination, build tribal capacity and create
opportunities for tribal youth to work for their tribal communities.
Demonstration Project Creating an Inter-Tribal Fish Commission for the
Yukon River and Establishing Federal-State-Tribal Co-Management
for the River
The second demonstration project would create an Inter-Tribal Fish
Commission for the Yukon River, modeled after the Northwest Indian Fish
Commission and the Columbia River Inter-Tribal Fish Commission. The
Commission would provide a tribal voice within a Tribal-State-Federal
co-management regime for salmon management on the Yukon River. Federal
legislation would be needed to establish the co-management regime and
replace the current dual federal-state management system.
The Chinook salmon stocks on the Yukon River are in a steep, steady
decline. If a new, more effective direction for management is not taken
soon, these stocks, some of the last left in the United States, may
become endangered. This would be a huge loss for many across the
country, not just the tribes who depend on this resource for their way
of life. There are likely several causes for the decline, global
warming, for example. However, the current, ineffective and
controversial system of dual federal-state management, with its
checkerboard pattern of jurisdiction, is certainly a major problem, and
one that should be fixed.
The Tribes located in the Yukon River drainage have depended on the
Yukon salmon stocks since time immemorial to sustain their nutritional,
cultural and spiritual way of life. This year's run looks like it will
be the lowest on record. There has not been a commercial Chinook
fishery for years, and Tribal harvests are far below the minimum
required to meet their subsistence needs. Fish camps that a few years
ago were alive with children, elders and extended family now sit empty.
Tribal members are bearing the loss and sacrifice of this fishery. They
have knowledge gained over countless generations about the river and
salmon. The Lower Yukon Chinook directed commercial fishery was valued
in 1992 at over $10 million dollars. That fishery is virtually non-
existent today. Given the energy crisis in rural Alaska, where Yukon
villages are paying extremely high transportation costs, the absence of
such a valuable fishery has far reaching effects. Tribal members are
facing choices between paying for food and fuel. Despite these impacts,
and despite the availability of such a valuable knowledge base that
could inform sustainable management, Tribes are completely excluded
from the dual federal-state salmon management system in place today for
the Yukon.
The Federal Subsistence Board manages salmon on the parts of the
Yukon that flow through or adjacent to federal lands such as fish and
wildlife refuges. The Board receives recommendations for management
from three regional advisory councils--downriver, middle river and
upriver--thus splitting the river and pitting users on one end against
users on the other end. The State of Alaska manages all other parts of
the river. This disjointed system of dual management is failing to
conserve and rebuild the Chinook run, and has failed to provide for
management of the Chinook harvest in a way that fully considers tribal
needs.
The Association of Village Council Presidents, joined by the Tanana
Chiefs Conference, represents the federally recognized tribes in the
Yukon River Drainage. AVCP and TCC have begun the process of creating
the Yukon River Inter-Tribal Fish Commission (YRITFC), which would
provide the Tribal voice for a Federal-State-Tribal co-management
regime for salmon management on the Yukon. Modeled after the Northwest
Indian Fish Commission and the Columbia River Inter-Tribal Fish
Commission, YRITFC would include a strong science arm that incorporates
traditional knowledge. The Yukon tribes are already a leading partner
for a Tribal-State-Federal salmon research organization, the Arctic-
Yukon-Kuskokwim Sustainable Salmon Initiative, and would bring this
scientific expertise to the co-management table. Billy Frank, Chairman
of the Northwest Indian Fish Commission, has participated in
discussions with the Yukon Tribes about forming the YRITFC and has
offered his full support. The Tribes' goal is to incorporate the
Canadian First Nations into the YRITFC, since they also depend upon
these fish for their way of life, and because there is a treaty between
the United States and Canada that informs salmon management for the
Yukon.
Creating the YRITFC and authorizing a Tribal-State-Federal co-
management regime for salmon management for the Yukon River will result
in greater cooperation and better management, which is critical for the
future of the Yukon Chinook salmon stocks.YRITFC would advance self-
determination for the Yukon Tribes over a resource that is vital to
their way of life. YRITFC would help build Tribal capacity and create
jobs and opportunity for young people, enabling them to stay in their
villages and work for their Tribes on issues of great significance. Co-
management would unify management throughout the river, thereby
discarding ineffective, controversial and artificial jurisdictional
boundaries that have nothing to do with the best salmon management
practices.
Co-management also would allow the Tribes and First Nations
throughout the drainage to come together and decide among themselves
how best to share the scarce available harvest of Chinook, or to stop
fishing altogether if necessary. Conservation and rebuilding of the
Chinook stocks would be the controlling goal for the co-management
structure, and would be the common goal for all parties, Federal, State
and the Tribes. Tribal involvement and
conclusion
The right to food security for oneself and one's family is a human
right enumerated in the Universal Declaration of Human Rights of the
United Nations Charter. Article 20(1) of the United Nations Declaration
on the Rights of Indigenous Peoples also provides that ``Indigenous
peoples have the right . . . to be secure in the enjoyment of their own
means of subsistence and development, and to engage freely in their
traditional and other economic activities.''
In the United States, Native hunting, fishing, and gathering rights
are protected by federal law. Nowhere are those federal protections
more critical than in the State of Alaska, where subsistence hunting
and fishing keeps food on the table and customary and traditional
hunting and fishing serves as the foundation of Alaska Native society
and culture.
Unfortunately, the current dual management of subsistence uses in
Alaska significantly hampers our ability to access our traditional
foods. Congress did not intend this result when it passed ANCSA in 1971
or when it passed ANILCA in 1980.
Congress can fix the problem. As I have noted in this testimony,
Congress has acted proactively to protect Alaska Native subsistence
rights, even after ANILCA passed in 1980.
Federal legislation that provides express protections for Alaska
Native hunting and fishing and gives us a co-equal role in the
management of those resources would do much to fulfill the Federal
Government's trust responsibility to the Alaska Native community. By
embracing co-management with Alaska Natives, the Federal Government
would administer a much more responsive and cost-efficient management
program. It would reduce the litigation that has plagued the
implementation of Title VIII of ANILCA since its passage.
We ask you to commit to work with the Alaska Native community to
formulate legislation that will restore and protect Native hunting and
fishing rights in Alaska, and provide a co-equal role for Alaska
Natives in the management of fish, wildlife and other renewable
resources that we rely upon for our economic and cultural existence.
Achieving meaningful reform of legal framework for subsistence
management in Alaska may take some time. We recommend that the
Committee take the following interim steps towards reform, which can be
achieved during the 113th Congress:
1. Work with Alaska Native leaders to develop legislative
language that will provide lasting protection for the Alaska
Native customary and traditional hunting and fishing way of
life and that will provide a co-management role for Alaska's
tribes and organizations. By embracing co-management with
Alaska Natives, the Federal Government would administer a much
more responsive and cost-efficient management program. It would
reduce the litigation that has plagued the implementation of
Title VIII of ANILCA since its passage.
2. Work with Alaska Native leaders to develop and quickly
pass legislation to implement the two subsistence demonstration
projects detailed above. We commend Senators Lisa Murkowski and
Mark Begich, and this Committee, for recent efforts to pass
federal legislation targeted to resolve specific problems and
to address region-specific challenges.
3. Require a report from the Secretary of the Interior on the
status of the implementation of proposed actions outlined as a
result of the 2009 Secretarial Review of the Federal Management
System. Former Secretary Ken Salazar completed a review of the
Federal Subsistence Management Program in 2010 and subsequently
outlined a number of reforms which could be accomplished by
Secretarial directive or policy or through regulatory changes
requiring formal rule making. To date, very few of those
actions have actually been implemented. The Alaska Federation
of Natives believes the administrative actions taken to date,
as a result of the review, are inadequate. Very little has
changed since the review.
4. Urge the Secretaries of the Interior and of Agriculture to
carefully review and, to the extent possible, implement AFN's
recommendations on administrative actions that can be taken to
improve the ability of Alaska's tribes to pursue their
customary and traditional subsistence activities. Attached to
my testimony is a list of the actions that we believe the
Administration can take right now that do not require
legislation and would require little or no funding. We shared
this list with the Secretary of the Interior, Sally Jewell, in
our meeting with her in late August.
On behalf of our Alaska Native people and communities, which depend
on subsistence hunting and fishing to maintain our health, well-being
and way of life, I thank you for holding this important hearing today.
It represents an important step in the journey to build a better
subsistence management system in Alaska, and to protect the nutritional
and cultural needs of Alaska Native people, from our elders to
generations to come. We stand ready to work with you, and this
distinguished Committee, to accomplish these critical objectives.
Senator Murkowski. Gunulcheesh, Dr. Worl.
Mr. Jerry Isaac, nice to have you here.
STATEMENT OF JERRY ISAAC, PRESIDENT, TANANA CHIEFS CONFERENCE,
FAIRBANKS, AK
Mr. Isaac. Senator Murkowski.
[Speaking an Athabaskan language].
Mr. Isaac. Thank you, Senator Manchin.
I have come across a wide piece of land, if you want to
call it that, to come here to appeal to you to listen to what
we have to say.
My name is Jerry Isaac. I'm Athabaskan from Tanacross, and
I'm currently the President of the Tanana Chiefs Conference, a
tribal consortium representing 37 federally recognized tribes
of Interior Alaska.
Earlier, you head testimony that during the passage of
ANCSA, the State of Alaska and the Secretary of Interior
promised to protect Alaska Native hunting and fishing.
You also heard that during the passage of ANILCA the State
of Alaska urged Congress to provide for a rural priority,
rather than a Native priority.
Today, it is necessary to hold this hearing because the
promise of ANCSA has gone unfilled, and the promise of ANILCA
has failed.
Finally, you heard it's well within your congressional
authority to act to protect Alaska Native hunting and fishing
by passing into law preemptive legislation providing for a
Native subsistence priority on all lands and waters in Alaska
and allowing for Alaska Native co-management of hunting and
fishing resources.
In the current system, a subsistence priority is only
trigged when the resource is so low in numbers that there is
not enough for commercial and sport take. If the resources were
better managed, there would be fewer incidences in which
subsistence priority is necessary.
Under the current checkerboard management in Alaska in
which Alaska Native tribes have little to no influence,
sustainable yield for Alaska's hunting and fishing resources
will continue to be unattainable for many species.
I have been directed by the tribes I represent to ask you
to allow the Alaska Native tribes to fix the failed management
by ending the checkerboard system and allowing Alaska Native
co-management.
Today, we proposed two possible solutions. First, I will
speak about the demonstration projects of the Yukon and
Kuskokwim Rivers. Second, I will speak about the co-management
proposal for Ahtna's lands.
A good example of the broken checkerboard system is the
Chinook management of the Yukon River. The State of Alaska is
the primary in-river manager, and so the State Board of Fish
implements most regulations applying to Yukon River Chinook.
Tens of thousands of acres of Federal lands and waters are
also within the Yukon River drainage, and so the subsistence
board and the Office of Subsistence Management, which receives
advice from two separate advisory councils, also implement
regulations. Two separate systems manage the same fish swimming
up the Yukon. This does not make sense.
The most disturbing fact, there is no official role for
tribal governments in the salmon management on the Yukon, but
tribal members are, by far, the most dependent and
knowledgeable of the resource. It is no wonder the Yukon River
Chinook runs have been on the decline for over a decade.
We propose a demonstration project to authorize intertribal
fish commissions for both the Yukon and Kuskokwim Rivers and
establish a State-Federal tribal co-management structure that
would focus on rebuilding the Chinook stocks and traditional
fishing way of life.
The fish commissions would be composed of users most
dependent and knowledgeable of the Chinook representing 93
federally recognized tribes, which clearly are the people to
manage this precious resource.
Next, it is my honor to speak to you about our next
proposal concerning co-management of Ahtna's lands, lands which
are traditionally owned by my clan cousins.
Like all village corporations, the Ahtna villages selected
their corporation lands based on the value for subsistence
hunting, fishing and gathering. But decades later, the Ahtna
people struggle to provide for their families' hunting and
fishing needs because Ahtna lands are poorly managed.
The lack of authority to manage hunting and fishing on our
own ANSCA lands is one of the greatest existing injustices for
Alaska Natives. Imagine, for my own corporation, the animals
living on the 12-million acres of toyon lands owned by Alaska
Natives are managed by outsiders with little knowledge of the
needs of the Athabaskan people.
This demonstration project would remedy this injustice,
greatly advance effective wildlife management and help resolve
the growing divide over subsistence management in Alaska. It
would authorize Ahtna tribes to manage wildlife on lands Ahtna
was conveyed through ANCSA.
I have been asked by the tribes I represent to tell you it
is your duty to address the broken promise of ANCSA and the
failure of ANILCA and pass legislation establishing an Alaska
Native priority on all Alaska lands and waters, an Alaska
Native co-management authority.
The demonstration projects I have testified to today are
projects that can be passed into legislation this year.
Protection of Alaska Native hunting and fishing will
continue to be the Alaska Native people's No. 1 priority until
we see implementation on the ground of legislation establishing
an Alaska Native priority and Alaska Native co-management.
The strength of our resilience to pursue this priority is
given to us by the spirits of the animals themselves and shall
not waiver until the divine relationships between the Alaska
Native people and our cousin animals are reconciled.
I thank you for this time.
[The prepared statement of Mr. Isaac follows:]
Prepared Statement of Jerry Isaac, President, Tanana Chiefs Conference,
Fairbanks, AK
Good Morning, my name is Jerry Isaac. I am Athabascan from
Tanacross and I am currently the President of Tanana Chiefs Conference,
a tribal consortium representing 37 federally recognized tribes of
Interior Alaska.
Earlier you heard testimony that during the passage of ANCSA the
State of Alaska and the Secretary of Interior promised to protect
Alaska Native hunting and fishing. Today it is necessary to hold this
hearing because that promise has gone unfulfilled.
You also heard during the passage of ANILCA, the State of Alaska
urged Congress to provide for a rural priority rather than a Native
priority. Today it is necessary to hold this hearing because the
compromise of ANILCA has failed and there is currently not a rural
priority on state lands and waters to the detriment of the rural Native
people-those most dependent on subsistence resources.
Finally you heard that it is well within your Congressional
authority to act to protect Alaska Native hunting and fishing, by
passing into law preemptive legislation providing for a Native
subsistence priority on all lands and waters in Alaska and allowing for
Alaska Native co-management of hunting and fishing resources.
In the current system, a subsistence priority is only trigged when
the resource is so low in numbers, that there is not enough for
commercial and sport take. If the resources were better managed there
would be fewer instances in which a subsistence priority is necessary.
Under the current checkerboard management, in which Alaska Native
tribes have little to no influence, sustainable yield for Alaska's
hunting and fishing resources will continue to be unattainable for many
species. I have been directed by the tribes I represent to ask you to
allow the Alaska Native tribes to fix the failed management system.
Fixing the management issues will include ending the checkerboard
system and allowing Alaska Native co-management.
You have the opportunity under two proposed demonstration projects
to provide a small scale solution to the problem established by ANCSA's
broken promise and ANILCA's failure. First I will speak about the
Demonstration Project for Establishment of Inter-tribal Fish Commission
and Tribal-State-Federal Fisher Co-Management for the Yukon and
Kuskokwim Rivers and Second I will speak about the co-management
proposal for AHTNA's lands. Both demonstration projects should be
passed into legislation this year.
demonstration project for establishment of inter-tribal fish commission
and tribal-state-federal fisher co-management for the yukon and
kuskokwim rivers
A good example of the broken checkerboard system is the Chinook
management of the Yukon River. The State of Alaska is the primary in-
river manager and so the State Board of Fish implements most
regulations applying to Yukon River Chinook. Tens of thousands of acres
of federal lands and waters are also within the Yukon River drainage
and so the Federal Subsistence Board and the Office of Subsistence
management which receives advice from two separate advisory councils
also implement salmon regulations. Two separate regulation systems
manage the same fish swimming up the Yukon-it does not make sense. The
most disturbing fact-there is no official role for tribal governments
in the salmon management on the Yukon, but tribal members are by far
the most dependent and knowledgeable of the resource. It is no wonder
the Yukon River Chinook runs have been on the decline for over a
decade.
We propose a demonstration project to authorize inter-tribal fish
commissions for both the Yukon and Kuskokwim Rivers and establish a
state/federal/tribal co-management structure that would focus on
rebuilding the Chinook stocks and would ensure fishery management
consistent with the tribe's customary and traditional fishing way of
life. Co-management will unify management throughout each river,
thereby discarding ineffective, controversial and artificial
jurisdictional boundaries that have nothing to do with the best salmon
management practices.
The demonstration project would unify the current dysfunctional
split of the federal Office of Subsistence Management regional advisory
council (RAC) system for the Yukon and Kuskokwim, providing for one RAC
for each river. The project would give preference to the Fish
Commissions when awarding ANILCA section 809 agreements and include
funding for research pursuant to ANILCA section 812. In addition the
project allows for the commissioners to influence the impacts of both
the Yukon River Salmon treaty with Canada and the Magnuson-Stevens Act
by mandating commissioners participate in both the implementing bodies.
We have draft legislation prepared to implement the Fish
Commissions. These Commissions are supported by Tanana Chiefs
Conference and the Association of Village Council President,
representing a total of 93 federally recognized tribes.
ahtna's demonstration project
Next it is my honor to speak to you about our next proposal
concerning co-management of Ahtna's lands. While I do not officially
represent the Ahtna, Ahtna lands are located not far from my home of
Tanacross and I am clan cousins with many tribal members from the Ahtna
region. Because Tanacross is on the road system, I understand the
struggle experienced by the Ahtna Athabascans when outside hunters take
away from the subsistence and cultural needs of the Native people.
Ahtna's traditional hunting area is surrounded by Alaska's major
population centers, Anchorage, Fairbanks, and the Mat-Su and the roads
that connect these centers.
The Ahtna villages selected village corporation lands based on
their value for subsistence hunting, fishing and gathering, but decades
later the Ahtna people struggle to provide for their families hunting
and fishing needs because their traditional lands are poorly managed by
the State of Alaska. The federal rural subsistence priority does not
help the Ahtna because there are little federal lands in their
traditional lands. The lack of authority to manage hunting and fishing
on our own ANSCA lands is one of the greatest existing injustices for
Alaska Natives.
This demonstration project would remedy this injustice, greatly
advance effective wildlife management, and help resolve the growing
divide over subsistence management in Alaska. It would authorize Ahtna
tribes to manage wildlife on lands Ahtna was conveyed through ANCSA.
The proposed Ahtna demonstration project would only include Ahtna
lands and it would not apply to other regions. The legislation would
also authorize Ahtna, the State and the Department of the Interior to
develop a co-management agreement for the coordination of wildlife
management on ALL lands traditionally used by the Ahtna.
I have been asked by the tribes I represent to tell you it is your
duty to address the broken promise of ANCSA and the failure of ANILCA
and your sacred trust responsibly to the Alaska Native people AND wait
no longer and pass legislation establishing an Alaska Native priority
on all Alaskan lands and waters and Alaska Native co-management
authority.
The demonstration projects I have testified to today are projects
that can be passed into legislation this year.
Protection of Alaska Native hunting and fishing will continue to be
the Alaska Native people's number one priority until we see
implementation on the ground of legislation establishing an Alaska
Native priority and Alaska Native co-management.
Senator Murkowski. Thank you, Jerry. Thank each of you for
your comments here this morning and, additionally, for making
the long haul across country to come before the committee and
enter your recommendations, your stories and your concerns.
I'm going to start with you, Ana. I thought that your very
personal story helps to kind of frame what we're talking about
here. When it's a discussion of management of subsistence, I
think we can get into some pretty technical terms and talk
about RACs and boards and differing management systems, but, at
the end of the day, it pretty much comes down to how one feeds
one's family.
I had the opportunity to visit you and your family at your
family's fish camp there just outside of Bethel, and it is more
than just kind of hanging out together in the summertime. It is
about providing for your family.
Your comment that your family harvests 490 pounds of
subsistence foods per year, I haven't checked the price of
hamburger in Bethel. I can't imagine what it is, but when we
take into account that so many in our rural villages simply
don't have the ability to afford to buy their food--as you
point out, there's no Costco near Bethel and Bethel's a pretty
large town. So when we talk about the significance of the food,
it is so much of what we do.
When I was in Galena inspecting the community after the
floods, people were going into the winter season and the
concern was moose season is next week. I might be able to get a
moose, but if I don't have a freezer to put my moose in, then
what am I going to do? How am I going to make it through the
winter?
So I think it is important that we understand what we're
talking about here when we're talking about a subsistence
lifestyle, and how Alaska Natives, rural Alaskans are feeding
their families when you don't have access to a store.
I wanted to ask you, and you can comment about that if you
will, but I wanted to ask you about the Regional Advisory
Councils, because I was trying to understand from those on the
Federal and State representatives just really how well these
are working. How much deference is given to those with local
knowledge?
So if you can just give me your perspective on this. To
what extent does the Office of Subsistence Management work with
the local people out in your region and in the RACs to
integrate that traditional knowledge that we've been speaking
about? How much deference, then, is actually given to the
locals?
Ms. Hoffman. Thank you, Senator Murkowski. First, about the
food harvest, the figure of 490 pounds per person represents
the Western Alaska Region, so that's in our area where I live.
You're right, the food source that we gather from the land,
there is really no functional way to replace it otherwise.
My family owned a family store in Nunapitchuk for many,
many years, and the freezer that we had at the store for meat,
it was one chest freezer, and this is a community of 350
people. Each one of them has, you know, numerous chest freezers
in their home, and if they weren't able to fill those freezers
from hunting and fishing off of the land, that one chest
freezer at the village store is not going to feed the
community. There's no other way to replace the food source,
and, really, it is the essence of subsistence and the rural
preference is food security.
So we have so many challenges out there with the
infrastructure, with our distance, with the cost of living.
Western Alaska is one of the highest cost-of-living in the
Nation, and we have, you know, water and sewer is still an
issue. There are so many basic challenges we have, and, yet, we
still have to plead for food security. So I appreciate you
having the hearing to help us express that need.
As far as your question about community involvement and
input in the process, I heard the panelists before and it is
good to have those opportunities for input.
I'll speak to the Chinook salmon incident, and that
happened out in Bethel last year. You know, we had been
working, the working group had been working in collaboration
with the fish managers for about 10 years, had been building
this understanding, this buy-in, this teaming relationship, and
the working groups were actively involved.
Last year, when the 7-day closure was extended an
additional 5 days without having the working groups buy into
that, I feel like there was really an erosion of the
relationship that had been built.
So there is potential to continue to building that co-
management aspect that I think is hoped to be achieved through
RACs and through the working groups, but there are many
instances where the input of the local community and the local
users is not weighed into the final decisions, and that was
felt out in our region last year.
Senator Murkowski. Thank you. Senator Manchin, why don't I
turn to you here? I've used up 5 minutes already.
Senator Manchin. Just hearing all of you speak makes me
want to visit sooner than later.
Senator Murkowski. That's a good thing.
Senator Manchin. A good thing.
I come from West Virginia, so hunting and fishing is
prominent in our lives, too. A lot of people do it for
subsistence the same as you, but not at that scale, not where
it's the dependent and no other alternatives or options.
I'm trying to understand because I would be probably more
in tune with the environment of hunting and fishing and
outdoors than maybe a lot of other Senators.
But coming from the place I come from, you know, we have
different seasons, and we have different people that come from
other States that come to our--and buy their license for
recreational.
We have people that own land, and, basically, they're
allowed to harvest a little differently, and I'm trying to get
it in the grander scheme of things and understanding, so that
maybe I can help Senator Murkowski and to be more of a
proponent of where I think you're coming from.
I can't figure out, and Ana, you were just talking, and Dr.
Worl, I wanted to hear from all of you all, anybody that wants
input on this, how can we make it better? How can we find that
balance?
I would assume the Department of Fish and Wildlife in
Alaska would want to make the revenue. People coming in, that's
revenue to your State. I would assume that's a big part of your
tourism and revenue base.
But at the expense of someone's subsistence of livelihood,
there's got to be a balance. We can't put that in front of what
you all and the heritage you have and basically the need.
How do we help? How can we find out--you're telling me is
it the Federal Government's encroaching more? Is it the State
government that's encroaching more, taking away your
opportunities?
It sounds to me like there should be a way to work this
out, but--and I don't know where--Are we putting out too much
recreational hunting licenses and people are coming in for the
sport of it taking away from the necessity of the people that
live there? Doctor, you might want to start on that.
Ms. Worl. Thank you, Senator. First of all, I think it's
important to go back to I think what Ana said, that subsistence
hunting and fisheries takes just a small portion of all of the
take.
Subsistence fisheries, what is it? One percent, 1 percent
of the fisheries, that's all we take for subsistence. I just
don't think that that's, you know, that's even balance, you
know. If we want to talk about equity or want to talk about
equality, you know, it seems----
Senator Manchin. Is this in competition with the
commercial?
Ms. Worl. Yes. In competition with commercial and----
Senator Manchin. So the commercial----
Ms. Worl. Commercial and----
Senator Manchin [continuing]. Is maybe taking more than
what they can sustain itself.
Ms. Worl. Right. Commercial fisheries takes more than 90
percent of all the fisheries.
Senator Manchin. Is that regulated by the State or by the
Federal?
Ms. Worl. That's by the State, by the State and Federals.
Senator Manchin. We don't think the State is doing the job
it should be doing to make sure that there's a coexistence.
Ms. Worl. The subsistence priority is not being recognized
in the management of fisheries.
Senator Manchin. It's all about the commercial.
Ms. Worl. Right. Right.
Senator Manchin. Got you.
Ms. Worl. But if I could go back to----
Senator Manchin. Sure, whatever. You go everywhere you want
to go.
Ms. Worl [continuing]. Senator Murkowski's question about--
There's a lot more we could do about that. I really do think
that if we, if Native people were able to sit down at the table
and have an equal voice in the management, I think we could
work things out. But, as it is, right now, we're not at the
table.
Senator Manchin. What's the percentage of Native Alaskans
that are serving in government, in State government? Are there
any Native Alaskans on Fish and Wildlife that understand?
Ms. Worl. There are about 16,000 Alaska Native people. I
don't think that we're equitably represented in the Fish Board,
on the Federal Subsistence Board, and even on the Federal
Subsistence Board. Even with the addition of the two rural
Native people who are appointed, the Federal Subsistence Board
is still largely managed by Federal representatives.
Senator Manchin. But the 1-percent of the fish subsistence
that takes care of the Native Alaskans is encroached upon by
the expansion of commercial fishing.
Ms. Worl. Right. We're just----
Senator Manchin. Is that the same of hunting, too?
Ms. Worl. Yes. Right.
Senator Manchin. Hunting, is it commercial hunting or is it
basically recreational hunting?
Ms. Worl. It's recreational.
Senator Manchin. So the recreational people like myself who
would buy a license and come up, because I want to see
beautiful Alaska and be part of it, that's gotten to the point
where it's encroached on the people who depend on their
livelihood.
Ms. Worl. That's correct. I really do believe that if we
were at the table, I mean, we're reasonable people, I think
that if we could develop a formula that would take care, you
know, take care of all interests, our interests are----
Senator Manchin. Is moose hunting a lottery? Is there a
lottery for moose hunting?
Ms. Worl. Yes.
Senator Manchin. Ana.
Ms. Hoffman. It varies across the State, and some regions
deal with the commercial take more readily, like in Ahtna
Region that we spoke about earlier. They're on the road system.
Where I live, in Bethel, you have to pay $500 to fly out to
Bethel and return, so we don't have the same kind of intrusion
of non-regional users as they would in the Ahtna Region.
As I explained, when we went moose hunting, different
sections are under different authority. There's Tier II
Registration Permits where you have to be in person to get your
ticket. That often reduces the number of people that will be
out hunting.
But the Ahtna Region is really the forefront of what we're
talking about when it comes to game harvests and the lack of
subsistence harvests being available for the users.
Senator Manchin. Mr. Isaac, you all are on the same page on
this? You all are in agreement of the commercial overreach, if
you will, and the pressure on the subsistence? The same in
hunting and fishing for recreation and commercial?
Mr. Isaac. Thank you, Senator. My feelings is the fact
that, No. 1, the systems employed to manage fish and game has
not worked.
Senator Manchin. Lack of personnel? Lack of budget?
Mr. Isaac. Just the system. Just the system----
Senator Manchin. The system itself.
Mr. Isaac [continuing]. As a method to manage fish and game
in terms of increasing the population of the moose, the
caribou----
Senator Manchin. We have, and, again, just my lack of
knowledge from the moose arena, but I do understand the
whitetail deer. We have buck season, buck only. We have open
doe season sometime, depending on what our count is.
Our DNR people go out and survey and basically take a
wildlife count and they say, OK. We're not going to open up doe
season or we're going to limit buck--you follow me? We manage
that way, so we have a healthy deer population.
Then sometimes we underestimate and we have a very healthy
deer population where the farmers get so mad because they're
eating all their crops, so then we've got to kind of weed that
down. So it's a kind of chess game back and forth. You're
saying your Fish and Wildlife don't do the same?
Mr. Isaac. I'm saying that there's a lot of opportunities
that can be taken to help improve the current condition. I'm
saying that there are too many rules and regulations that are
not working.
One is the element of cooperation is such a feared idea
that nobody wants to try it. For example, the RACs, for
example, there is no meaningful input by the Native groups to
participate in the RACs in such a way that there is meaningful
participation in this for one purpose and one purpose only, to
increase and maximize animal and fish populations at a healthy
level that it would be adequate for the use of all.
What I'm saying is the fact that, with the two proposals,
we're saying let's try it this way. I know it will work.
Senator Manchin. Somebody's got to be responsible for
overharvesting. Somebody has got to be responsible, and if
you're overharvesting, that means you're not controlling and
monitoring the crop, whether it be the moose or whatever, and
that's what I'm saying. I'm looking for an answer that----
Mr. Isaac. Senator, you know, if I may----
Senator Manchin. I'm sorry. I'm----
Senator Murkowski. No, no, no.
Senator Manchin. You sure?
Senator Murkowski. Yes.
Mr. Isaac. If I may, the subsistence takers of the Chinook
salmon----
Senator Manchin. OK.
Mr. Isaac [continuing]. Have been regulated to the point
where we cannot get nothing. This summer, we have seen very
devastating situation with the Chinook salmon, the harvests
along the Yukon River. We have taken steps to contribute toward
the saving of future salmon population.
There are other elements that affect the Chinook salmon.
One of the elements is the high-seas fisheries. For example,
the Pollack fishing industry, nobody says nothing about those
things. Nobody addresses these things in a collective way, so
that we can all agree to one thing, something is affecting the
return of the Chinook salmon.
Senator Manchin. Got you.
Mr. Isaac. Thank you.
Senator Manchin. That helps me. I understand that.
Ms. Worl. The subsistence priority is not recognized there.
In the management of the high-sea fisheries, subsistence is not
recognized.
Senator Manchin. I understand.
Ms. Worl. We do have a law that says subsistence priority
should be recognized, and it doesn't come into play until the
fish are going up the river, and there's not that many----
Senator Manchin. I see. The whole cycle. You're saying the
whole cycle is not taken into consideration----
Ms. Worl. Right.
Senator Manchin [continuing]. Under the regulatory system
we have not.
Ms. Worl. Right.
Senator Manchin. That makes sense to me. I'm learning.
Senator Murkowski. Good.
Senator Manchin. I'm learning.
Ms. Worl. Senator, if I could just finish on the----
Senator Manchin. Oh, I'm sorry. I am so sorry.
Senator Murkowski. Go ahead.
Senator Manchin. I cut----
Ms. Worl. I really wanted to finish this on the Federal
Subsistence Board. You had asked the question, you know, is the
system working and is the RAC working? The major issue is that
the Federal Subsistence Board itself has taken the position
that it needs to give deference to RAC recommendations only in
the taking of fish and wildlife. It does not take deference in
other areas.
For example, should a community qualify as rural, the RAC's
recommendations aren't considered or given deference in those
points.
I did note, you know, that the Federal Subsistence Board is
made up primarily of Federal representatives. I know, from the
State of Alaska, I don't think the State of Alaska would allow,
you know, have State officials, you know, serving on that
management board. There should be, you know, the balance
between the users and the managers.
So I think that's one of the areas that we'd like to see is
that we'd like to see that the Federal Subsistence Board
members be 12 rural subsistence users. That's one
recommendation that we might offer.
Senator Murkowski. So that's the AFN recommendation, that
the subsistence board should be restructured to include the
chairs of each of the RACs, so that we make sure that we've got
that local input throughout.
Senator Manchin.
Senator Manchin. We have some, our first panel, right?
Senator Murkowski. Um-hum. Um-hum.
Senator Manchin. I'd love to hear--do they object to what
the sensible requests are?
Senator Murkowski. I tried to get an answer----
Senator Manchin. Now that we've heard both sides, but----
Senator Murkowski [continuing]. From the feds and the State
on these two demonstration projects, and I think it's probably
fair to say that the response was unresponsive.
Senator Manchin. Yes, you shouldn't be afraid to talk, I
mean, because I'm trying to--I have a great interest, and this
is my dear friend, so I even have more of an interest of
understanding.
But this is fascinating, but I'm saying you're putting a
very logical request out. I haven't heard anything that I would
consider that's irrational. On that, I'm sure they have a job
to do and they're doing the job the best that they think is
described for them to do their job.
Somehow, we've got to break that logjam and say, OK.
There's got to be a compromise. How do we do that? You've got
to speak up from the other side, from the Federal side or State
side. You've got to let us know, because, if not, we might
intervene. You might not like anything we do, and we don't want
to do that. We want to find that balance, but so that was
interesting.
Senator Murkowski. Senator Manchin, I think it was said
here earlier that part of the complication here is you have two
very distinct management systems. You've got a Federal
management system and you have a State management system, and
they're both managing the same fish that's going up the Yukon
River, and----
Senator Manchin. I understand, and they're managing it in
different places.
Senator Murkowski. Different places.
Senator Manchin. One out in the ocean where it originates.
One when it comes back, and then when it gets into the water.
Senator Murkowski. But depending on where you are,
upriver--you know, quite honestly, the fish could care less
whether it's State management----
Senator Manchin. Yes.
Senator Murkowski [continuing]. Or Federal management, but
what it puts in place for the user, for the consumer is a
complexity that makes management almost ridiculous.
So when we talk about the concept of co-management, as long
as everybody's talking and working with one another, I think
that we can make some good headway there, but it's really how
this is translated.
This is why I've asked so much about, you know, how we are
incorporating the input from the local people, the local
knowledge, and the significance of a RAC, and, again, making
sure that these actually function as intended, and it's not
just having the right folks be there, but not, then, giving any
weight, any credence to their input.
So much of this is how it's actually translated, and so
some of the suggestions about how we give greater empowerment,
I think, is key to our discussion here.
Mr. Anderson, I appreciate what you've given us in terms of
the legal perspective and some of the, just the historical
analysis here with ANILCA and ANCSA.
If the State of Alaska today were to pass a constitutional
amendment that allows for a rural priority, would that, in and
of itself, bring the State into compliance with Title VIII
under ANILCA?
Mr. Anderson. I don't think it would. They'd have to----
Senator Murkowski. Why would it not?
Mr. Anderson. They would have to amend their statute that
allows them to designate rural areas as non-subsistence zones.
They've got a statute that provides for a reasonable
opportunity, which has been interpreted by the State Supreme
Court as to allow restrictions that are greater than are
allowed under the Federal subsistence statute, so that might
have to be taken care of.
So there are probably about 5 or 6 other statutory fixes
that would have to be made in order to get back in compliance,
so then ANILCA would allow the Secretary to certify the State.
But I would say that if they had the political will to put
a constitutional amendment on the ballot, they could certainly
do these other fixes as well.
Senator Murkowski. Understood.
Mr. Anderson. I would say, just on the RAC issue, you know,
just fixing the RACs would be helpful for the Federal lands
now, but, you know, the big problem is that we have differing
priorities on different lands and waters in the State, and
that's why we have this multiplicity of regulation.
So if you had a single standard applicable in all rural
areas under, say, the Federal standard, as was originally
intended, then everyone would manage to that goal and we had
the Federal courts overseeing that implementation, and we just
have lost that with the McDowell case and the divide between
State and Federal lands now.
Senator Murkowski. Dr. Worl raised the issue that when it
came to deference to the locals through the RAC process that it
doesn't include issues like determination of rural versus non-
rural. So recognizing that the Federal Subsistence Board is in
the process of reviewing how it determines these, if there were
a more inclusive regulatory definition of rural adopted would
that eliminate the need for statutory changes to ANILCA?
Mr. Anderson. I think so, if the agencies were willing to
do that. I think that's the problem is that the agencies, you
know, interpret the grant of authority to the RACs in such a
way that minimizes the role of the RACs, and that just results
in the agencies having or retaining more power over all these
other ancillary matters that are important to subsistence
users, but don't bear on the actual seas that are bag limit
that might be before the board where they do say they allow
deference.
Senator Murkowski. OK. So, Dr. Worl, you, in your, I think,
4 recommendations, and, Jerry, also, in your comments, you've
identified a few areas where you think that we could make a
difference.
Legislative changes, I think we all recognize, are tough to
achieve anymore. We've been working to try to get an energy-
efficiency bill through the floor now for almost 2 weeks, and I
think the reason that the Chairman is not here today is because
it's probably going to be announced that we can't even move a
simple energy-efficiency bill.
I don't mean to be discouraging, but I'm being very
practical about or pragmatic about what's happening with
legislation in this body and on the other side.
So let's just set off the table right now discussion about
legislative amendments. I put this out to each of you, are
there specific ideas that we can--or specific suggestions that
we can advance, move administratively through the regulatory
process, just all stakeholders sitting together?
I want our comments that you might bring up on this right
now to extend to the work session that we're going to have this
afternoon, because I want to try to explore some areas where we
can improve the issue of management at all levels.
I understand that that requires just greater discussion,
greater dialog, greater commitment to be working with one
another, rather than our very siloed world, which I think is
where we are. But just setting off the table right now the
issue of specific legislation, what suggestions might any of
you have about some things that we could specifically look to
now? Ana.
Ms. Hoffman. In my comments I made reference to the amount
needed for subsistence, and I think that that really should be
the baseline, as I said, for the management efficient game.
If we start with that figure and get a real, you know,
comprehensive figure of what the amount needed for subsistence
is and involve--you know, we've heard about the Intertribal
Fish Commission--utilize the local knowledge to come up with
the amount needed for subsistence for all the fish and game
resources, and then begin management from there.
Senator Murkowski. OK. Rosita.
Ms. Worl. ANILCA does mandate the Federal Government to
provide for a meaningful role in management. That's what ANILCA
says.
It was Secretary Babbitt that actually created that
Fisheries Resource Monitoring Program, and, as I understand,
there's not a lot of money in there. I think last year there
was about $5 million, but only 19 percent of that money went to
Native organizations, and the State got near half of it, and
then the private sector got--I can't figure out where the
private went, but I only came up with 73 percent. I don't know
where the rest of the money went.
But if we were able to implement, you know, that mandate in
ANILCA to provide for a meaningful role in the management of
subsistence, I think that could bring us to the table. That's
one recommendation.
The second recommendation I had already made was make that
Federal Subsistence Board a real management board of
subsistence users. Two recommendations I would offer.
Senator Murkowski. Thank you. Jerry or----
Mr. Isaac. Thank you. If I could be so bold to mention some
real observations that I have had in my participation in terms
of the fish and game management.
In my view, there's never been any meaningful cooperation.
The meeting halls and the conference tables have always been
gathered about with an attitude of withholding and not being so
foregoing, and not being so forthcoming, rather.
RACs, you know, the Rural Advisory Councils, could be
composed in such a way that it is more fairly comprised.
You know, dialog, simple things like dialog, let's sit down
and talk about the differences. That has never been had. If it
has been, the dialog has been approached with a very biased
opinion, unyielding opinion.
Now, we're going to have to quit that. If we're going to
solve the issue of fish-and-game management on the basis of
sustained yield, we all have to give and we all have to take.
The other thing is divisiveness. You're very aware of it.
I'm aware of it. I mean, there is such divisiveness about the
very subject matter about fish-and-game management in Alaska,
and yet we all claim that we're concerned about the stocks of
the fish-and-game populations. Now, if we are so moved about
the concern, why not we go step forward and meaningfully
engage?
The other thing that I see as lacking is respect. People
would rather dislike or hate each other rather than to sit down
and try to understand each other.
Like I have never met Senator Manchin. I am impressed with
the character of the man because he stepped forward to say that
he's interested in hearing more about this discussion here.
Now, I really respect a man for having stepped forward to
listen to the differences I may have. Thank you.
Mr. Anderson. I have two quick ones. One would be to
increase the cooperation with the Native community through non-
profits and tribes by funding more contracts and cooperative
agreements.
That was a big part of the original implementation plan
when Secretary Babbitt set up this structure was to do as much
contracting as possible and that has contracted under both of
these last two administrations.
It simply has become more of a Federal program in
cooperation with the State. So I would say that they should
revisit that, if they could do it on their own in conjunction
with the Native community.
Then, second, the fact that this program is housed within
the Fish and Wildlife Service, rather than the Secretary's
office, makes it, you know, it's got the Culture of the Fish
and Wildlife Service, which tends to be more top down than this
should be.
In addition, with reforming the board composition, I would
think that, you know, moving that box outside of the line
control of the Fish and Wildlife Service Director in that
budgetary process would be a positive aspect.
Both of those are contained, I think, in the attachments to
Rosita's testimony from AFN, and there were a number of others
that I'm sure we'll talk about this afternoon. Those are two I
can think of right now.
Senator Murkowski. Good. I look forward to that. I'm going
to let Senator Manchin ask a couple of more questions. We're
going to have to wrap it up because I've got to be--
Senator Manchin. No. I think the doctor wanted to say
something.
Senator Murkowski. Go ahead.
Senator Manchin. I think she wanted to say something.
Ms. Worl. Senators, I would be remiss in my duty if I did
not say that we really need to deal with the Saxman rural
determination, and that's something that we can do
administratively.
Then the next one was that Secretary Salazar did outline a
number of reforms. None of them, except for the appointment of
the two people to the Federal Subsistence Board, none of them
have been implemented. So that's something where we could start
with that.
Senator Manchin. If I could, I saw Mr. Fleener out in the
hallway and I just asked him, just trying to learn as much as I
can as quick as I can, and he was telling me about 60 percent
of the land is owned by the Federal, 40 percent by the State.
With that being said, then there's primacy, you know,
because I'm thinking, and my State has a lot of regulations,
too, but, then, as a former Governor, I'm very much protective
of the Tenth Amendment, States' rights.
With that being said, I believe that the Federal Government
should be my partner. In saying that, the Federal Government
and the State, since they both have vested interests, should
come up with a set of guidelines that we think are reasonable.
The Federal Government could have a contract with the State
for the State agencies to basically have one regulatory agency
that's responsible. The feds could have oversight. If the State
doesn't do its job, then the fed moves in and takes basically
primacy away because they haven't earned the right to keep it.
I don't think we're that balanced right now. That's what I'm
understanding. Those are things that maybe we can help you work
out. That's what we're hoping for.
But it makes sense to me that if we come to an agreement--
and somebody might want to chime in here, and feel free to do
so--if we can get an agreement to where, first of all, the
State should take the enforcement primacy, responsible for the
enforcement, once the feds and the states come to an agreement.
Does that sound reasonable? Mr.----
Ms. Worl. Senator, Alaska is our State also. It is our
State, and we want to have a State that works for all Alaskans.
Senator Manchin. Sure.
Ms. Worl. We, as Alaska Native people, had lobbied
strenuously, lobbied the legislature to try to get it to resume
management of Federal lands by recognizing the Federal
subsistence priorities.
Senator Manchin. Yes.
Ms. Worl. We tried, without any success. We were saying,
Why are we doing this? You know, we shouldn't be doing this,
except we cared for our State. We thought a dual-management
system is really not in the best interests of its citizens, but
we were unable to convince the State to recognize----
Senator Manchin. In all fairness to the Federal Government,
the Federal Government has had situations where they've had
oversight or review process and saw that the states weren't
doing the job they were supposed to do, either they didn't want
to or they weren't capable of it or weren't financed well
enough to do it, and then the feds had to feel like they moved
back in, so I've seen that.
Mr. Anderson, you wanted to say something, I'm sure.
Mr. Anderson. I just wanted to say that, Senator, that that
deal was made in 1980 in Title VIII of ANILCA for the State to
be the manager on all Federal lands and waters in Alaska, if
they would adopt a rural priority, and they did, and the State
Supreme Court said that was unconstitutional as a matter of
State law.
As Rosita said, the Native community expended thousands of
hours of effort and probably millions of dollars trying to get
that amendment passed.
Senator Manchin. Everybody was in agreement on that in the
1980s.
Mr. Anderson. That there should be a rural priority, and
then the----
Senator Manchin. In the State. Did you go to the Federal,
the U.S. Supreme Court?
Mr. Anderson. State Supreme Court said the State
constitution meant the State could not have a rural priority.
They would have to amend our constitution to do that.
Senator Manchin. You can't get it amended.
Mr. Anderson. They would never put it on the--came within
one vote once, I believe, of getting it on the ballot.
Senator Manchin. You mean from your State legislature?
Mr. Anderson. From the State legislature. So that's why----
Senator Manchin. I got you.
Mr. Anderson [continuing]. You know, they can't----
Senator Manchin. Now, it's getting clear. By God, I knew
politics would enter into it sooner or later.
[Laughter.]
Ms. Worl. But all the surveys we did of the public it
showed that the public did support us. It was, unfortunately--
--
Senator Manchin. You'd like to see a referendum, wouldn't
you?
Ms. Worl. Yes.
Senator Manchin. I got you. I understand. I'm getting it
now. I'm getting it.
Thank you so--I can't tell you how much this--how enjoyable
this has been, and how much I've learned, and I really
appreciate this so much.
All of you, from both panels, have been so professional, so
sincere about where you're coming--I just think that, you know,
if they'd let you all sit down and work it out, we'd be in good
shape. Right? Thank you so much.
Senator Murkowski. Senator Manchin--go ahead, Jerry.
Mr. Isaac. Just a quick one. Senator Manchin, I would
invite you to come to Tanacross.
Senator Manchin. Oh, I'm coming----
[Laughter.]
Mr. Isaac. You don't have to pay me to take you out into
the land. We can share the food that we can get. We can buy the
gas together. There'd be no charging you nothing. Just come
down in September and we'll go out on the river, and whether we
see moose or not, doesn't matter. It's just we'll go out there
and have a good time and enjoy life.
Senator Manchin. The ethics is very clear here.
[Laughter.]
Senator Manchin. We don't want to violate them right now,
but I would be more than happy to pay my fair share just to see
that beautiful, beautiful place of the world. Thank you.
Senator Murkowski. Senator Manchin, I think we're going to
work very hard to make sure that you get to that place of the
world. I want to thank everybody for your participation here
today, and, again, I've mentioned that we'll have an
opportunity to continue the discussion and the ideas. I
appreciate the suggestions that you've provided the committee
here as follow-on.
I really do hope this is the beginning of good, respectful
engagement and dialog on this issue. For decades now, we've
fought about this. I was advised by a lot of smart folks that I
have good respect for, Don't raise the ghosts of subsistence
past. It will just get the issue boiling again and Alaskans
will be fighting again.
But the fact of the matter is that when we have in place
Federal statutes that are not doing that which we intended, if
they're not working, it's incumbent upon us, as lawmakers, to
review them, to address them and to deal with them, and
sometimes it's hard.
In fact, if it was easy, we would have done it a long time
ago.
So I do appreciate my colleague from West Virginia, the
Chairman of the Energy Committee, Senator Wyden, for their
interest in making sure that we are able to have a dialog at
this level, because, as local and personal as this issue is, we
have Federal laws in place that are complicating your access to
a resource, Alaskans' access to a resource, how we manage our
resources, and so we've got to start working on it.
It's not going to help if we move off to our respective
corners and say, I don't want to deal with it because it's too
big.
I think we need to go back to the picture that you have
shared of these 3 young boys out on the tundra waiting for
birds, finding berries--thank you, Joe--and, really, this is
about their future as well.
So what we've begun today I hope will be good and
constructive and purposeful, keeping in mind who we are, who
we're working for.
So I thank you for what you've given us today in your
testimony. I thank you for those that have participated prior
to this time through either oral testimony in Bethel or
Glenallen, those who have submitted their comments in writing
over the internet.
Our record is going to be held open, I think, for further
comments.
The working group is going to be taking place this
afternoon at 2:30 p.m. in this room. So, hopefully, we'll have
a good number of you back with good, constructive ideas and a
desire to do right by Alaska's people and all those of us that
are working for her.
So, with that, gunulcheesh. Thank you.
[Whereupon, at 11:58 a.m., the hearing was adjourned.]
Due to the volume of additional materials submitted for the
record, all other statements and documents have been retained
in committee files.