"BASE SUBSISTENCE PRIORITY ON NEED"
By Wayne Anthony Ross
2 August 2001

For too long we've suffered from the divisiveness caused by the Subsistence provisions of ANILCA. When I first came here, Alaskans had no problems with subsistence. In those days, State law allowed Alaskans who needed the fish and game resources to subsist, to take such resources; and no one complained about such use by those in need of them.

But since ANILCA, Alaskans have been divided into those who have subsistence rights (rural residents) and those who do not (urban residents). In effect, ANILCA has torn Alaska apart.

Just before Congress adopted ANILCA (1980), the national environmental lobby and AFN lobbyists cut a deal. If AFN would support the legislation to place 156 million acres of Alaska into Parks, Refuges, and Wilderness, the green lobby and its Democratic friends in Congress and the White House would guarantee inclusion of the so-called subsistence title in the final Alaska lands bill. The fact that such legislation conflicted with the Alaska Constitution (a Constitution that had been approved by Congress at the time of Statehood) was ignored by almost everyone involved. Whether or not the proposal would actually work was also disregarded.

The intent of the subsistence portion of the legislation was honorable. Many parties did not want the creation of all the new National Parks, Wildlife Refuges, and National Wilderness areas to preclude the lifestyle and traditions of Alaskans to use those lands and natural resources to sustain themselves and their families. However, by granting a preference to rural residents to take Alaska' s fish and wildlife resources, Congress made a grave error. That rural residents preference excluded many Alaskans from the right to continue to rely on fish and wildlife resources for food. To compound the problem, the underlying premise in ANILCA that such a priority would be triggered only when there was a shortage of fish or game (not enough resource to meet everyone' s need) has been ignored by the federal agencies administering that law.

As a result, we now have a system of allocating fish and wildlife resources based solely on where one lives in the State, a system directly in conflict with Alaska' s Constitutional mandate that those resources are for the common good and benefit of ALL Alaskans. Of greater concern, we now are seeing federal agencies using ANILCA' s subsistence priority to re-assert jurisdiction over Alaska lands and resources which the federal government surrendered at Statehood. Alaskans need to realize that Protecting subsistence is, for the federal agencies, little more than a mask for their real goal, regaining control of land and resources in Alaska. ANILCA was the first step; managing subsistence was the second; now reserved water rights is the third. Because of the actions or inactions of our Governor, who ignores his oath to defend Alaska' s Constitution, federal agencies are succeeding in tying up Alaska' s lands and resources.

The current Governor, the Lieutenant Governor, some members of our Congressional Delegation, and others claim that only an amendment to the Alaska Constitution to provide for a rural preference will work to solve Alaska' s problems. They are wrong! Amending Alaska' s Constitution would not eliminate federal control since ANILCA' s provisions would still allow any person who disagreed with decisions made by Alaska regarding subsistence to challenge those decisions in Federal court. Under the current ANILCA law, an amendment of Alaska' s Constitution granting a rural preference would simply ensure that the final decision regarding disputes over allocation of subsistence resources in Alaska would be made by federal courts.

Before amending any of Alaska' s Constitution, we need to first amend Title VIII of ANILCA to eliminate the rural preference. Alaskans of good faith, working together, can then establish an Alaskan system for taking fish and wildlife resources for food purposes in time of shortage based on NEED, and traditional use, without Federal interference in our affairs. No reasonable thinking Alaskan would be against giving the first position in line to those who need the resource to feed their family, in times when game and fish populations are low. And then, of course, we need to wisely (and intensively) manage our fish and game resources so that the Alaska Constitution' s goal of sustained yield is achieved as much as humanly possible.

There are those who say that amendment of Title VIII cannot be accomplished. History proves them incorrect. From its enactment in 1980 through October 1998, ANILCA has already been amended nineteen times. Our Congressional delegation needs to step up to the plate and introduce, and push for, the amendments so sorely needed to solve Alaska' s subsistence controversy. It was Congress that approved our Constitution (with its provision for common use of fish and game resources) in the first place! Those who claim the only solution is to amend Alaska' s Constitution, need to be reminded of that.

No real Alaskan can object to an Alaskan priority based on need to feed one' s family. Amending ANILCA to provide for need as the basis for allocating resources in time of scarcity is a reasonable and fair solution to this vexing problem. But to resolve the problem once and for all, we need to have the political will, and the political leadership, to make it happen.