[Note: This paper was originally
prepared on 6 December, 1990. It has been revised
and updated several times, and is presented here to
reflect recent events.]
----------------
When Congress passed the Alaska
National Interest Lands Conservation Act (ANILCA)
in 1980, it included a subsistence priority for
the taking of fish and wildlife on federal lands
and allowed subsistence hunting on certain so-called
"national interest lands".
The intent of the subsistence
portion [Title VIII] of that legislation was honorable.
Alaskans 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,
as written, ANILCA contains a number of serious
flaws. One of these flaws requires that the subsistence
priority be given only to "rural" residents.
The meaning of "rural" was never defined
in the legislation. Another flawed provision mandates
federal management of fish and wildlife resources
on federal lands in Alaska if Alaska's subsistence
law does not conform with the provisions of ANILCA.
Despite many Alaskans' demands
that the federal ANILCA law be amended or challenged
in court, some State authorities opted to "go
along to get along" by enacting State subsistence
laws providing for a rural preference. Those attempts
to comply with the flawed ANILCA law conflicted
with certain provisions of Alaska's Constitution.
Among these Alaska Constitutional provisions are
the following:
"Article I: This constitution is dedicated
to the principles that all persons have a natural
right to life, liberty, the pursuit of happiness,
and the enjoyment of the rewards of their own
industry, that all persons are equal and entitled
to equal rights, opportunities and protection
under the law; and that all persons have corresponding
obligations to the people and to the State.
Article, Section 15: .(N)o law making any irrevocable
grant of special privileges or immunities shall
be passed . .
Article VIII, Section 3: Wherever occurring
in their natural state, fish, wildlife, and
waters are reserved to the people in common
use.
Article VIII, Section 4: Fish, forests, wildlife,
grasslands, and all other replenishable resources
belonging to the State shall be utilized, developed
and maintained on the sustained yield principal,
subject to preferences among beneficial uses.
Article VIII, Section 17: Laws and regulations
governing the use or disposal of natural resources
shall apply equally to all persons similarly
situated with reference to the subject matter
and purpose to be served by the law or regulation."
From the Constitution of the
State of Alaska.
As a result of the conflict
between the laws, providing for a rural preference,
enacted by the State in it's attempt to comply with
ANILCA, and the provisions in Alaska's Constitution
itself, several Alaskans (including a Native Alaskan
who lived in an urban area) took the State to court.
In a decision rendered in 1989, the Alaska Supreme
Court held that a rural preference for subsistence
violated the Constitution of the State of Alaska.1
Since that decision, several
misguided Alaskan Governors, and some Alaska legislators,
have sought to amend Alaska's Constitution to comply
with the flawed ANILCA law. Instead of seeking amendments
to ANILCA2,
or challenging the ANILCA law in court, these Alaskan
"leaders" have ignored their oath of office
to "support and defend the Constitution of
the State of Alaska" and, instead, have advocated
that we change our Constitution through a public
vote.3
Both the Anchorage Daily
News and the Voice Of The Times published
editorials on 28 April 1996 calling for an "advisory
vote" of the people on the subsistence issue4.
Either the editors of both newspapers did not understand
the issue then, or else they lacked the fortitude
to advocate for the rights of Alaska and its people.
Five years later, the Daily News' editorial
of 12 August, 2001 was equally ill informed. It,
once again, raised false hopes for resolution of
this issue by calling for the hand-picked participants
in Governor Knowles's so-called "Subsistence
Summit" to support amending the Alaska Constitution
as the solution for the subsistence issue.
All three of these editorials
were mis-guided because amending Alaska's Constitution
will not resolve the problem! In advocating
amendment of Alaska's Constitution as the preferred
solution for Alaska regaining the authority to manage
its own fish and wildlife resources, the editors
either fail to realize, or (even worse) ignore an
important provision written into ANILCA. Under that
provision, even if Alaskans amended Alaska's Constitution
to provide for a rural preference for subsistence,
Alaska would still have to endure Federal management
of our fish and wildlife resources. Why? Simply
because ANILCA provides that any aggrieved party
who does not get what he/she wants from the State
subsistence managers has the right to seek a remedy
by taking State fish and wildlife managers to federal
court!
In short, even if Alaska was
to amend its Constitution to provide for a rural
preference for subsistence, any final decision about
what should happen will be made by a federal judge
and Alaska would have federal courts managing subsistence
and fish and wildlife resources in Alaska, just
as we do presently.
As long as Title VIII of ANILCA
exists in its present form, federal courts will
exercise authority to review attempts by the State
of Alaska to manage fish and wildlife resources
for subsistence.
The Alaska Constitution was
ratified by Alaskans in 1956. The Statehood Compact
followed, and in 1959, Congress adopted the Statehood
Act. One of the central issues driving the fight
for Statehood was the very strong demand by Alaskans
to wrest management and control of fish and wildlife
resources from the federal government.
In adopting ANILCA, Congress
reversed the position it took 20 years earlier in
approving the Alaska Constitution. Congress effectively,
and unilaterally, nullified provisions of the very
State Constitution it had approved in the Statehood
Compact. And Congress did so without a concurring
vote of the people of Alaska who, two decades earlier,
had been required by Congress to approve that Constitution
in a plebiscite before Alaska would be granted admission
to the Union.
Contrary to the proponents
of an amendment to Alaska's Constitution, there
are only two meaningful ways to resolve the mess
that Alaska is in. Either get Congress to repeal
or revise the onerous parts of Title VIII in ANILCA,
or the State must legally challenge Title VIII as
violative of the Statehood Compact, and pursue the
case to the U.S. Supreme Court for a final determination.
The presently pending Katie
John vs. U.S. case affords Alaska that opportunity.
It may or may not be the "best case" upon
which to take an appeal, but if it is not appealed,
Alaska will have forgone the "best opportunity"
it has had to date to get the issue of States' Rights
before the U.S. Supreme Court.
Thus far, the Alaska Supreme
Court has been the best protector of Alaska's constitutional
guarantee with respect to the State's ability to
allocate fish and wildlife resources. Until and
unless Alaska's elected leaders are willing
to stand up for Alaska's rights as a member of the
union of states, Alaskans will continue under the
heel of federal management.
It can only get worse. To advocate
a vote as to whether some Alaskans should give up
a right granted to them by the State Constitution,
the Statehood Compact, and the Statehood Act, can
only be described as outrageous! Such a vote would
be even more divisive to Alaska. This advocacy for
a vote will continue to pit one group of Alaskans
against another. Not until the State of Alaska takes
back its right to manage fish and wildlife resources
from the federal government can subsistence be resolved.
Once Alaska is free from improper
interference by the Federal Government, Alaskans
of good will can work together to solve the subsistence
issue on our own. Then, and only then, can provision
for those who need subsistence be incorporated into
management techniques so that those Alaskans who
rely on our fish and wildlife resources can be accommodated.5
I believe there is an equitable,
reasonable and fair solution to this problem, one
to which no Alaskan can object. That is to provide
for a subsistence priority based on need.
Amending ANILCA to provide for "need"
[instead of a "rural residency" preference]
as the basis for allocating resources in time of
scarcity is a reasonable and achievable solution
to this vexing problem. ANILCA has been amended
nineteen [19] time since its passage in 1980.
But, to resolve the problem
once and for all, we need to have the political
will, and the political leadership, to make
it happen. The recent "subsistence summit"
sponsored by Governor Knowles, was little more than
political air cover for a politician who does not
want to offend his political constituency. As was
predictable, the hand-picked summit participants
opted to urge the Legislature to adopt an amendment
to the Alaska Constitution as "the remedy"
for this problem. Such a proposed "remedy"
simply will not work for the reasons stated above.
As long as Title VIII of ANILCA provides for a "rural
priority" and affords any aggrieved party the
option to go directly to federal court, the federal
courts will continue to manage fish and wildlife
resources in Alaska.
There is a particular irony
in this seeming uniquely Alaska controversy that
few realize. While Alaskans argue and battle over
who gets how big a slice of the fish and wildlife
pie, the anti-hunting crowd, along with their allies
in the national environmental lobby and the animal
rights groups, are busy in a well-financed campaign
to stop all hunting and fishing, regardless
of its purpose. Their efforts are not confined to
the lower-48. They are active in Alaska, too. Indeed,
their efforts are global! These groups, seeking
to stop all hunting (and they are beginning
to try and stop fishing), have already partially
succeeded in certain areas of the world.
Alaskans need to resolve this
subsistence conflict here, at home, amongst ourselves,
and soon, and not allow ourselves to be divided.
Consumptive users of natural resources need to stop
fighting among ourselves and, like the musk ox,
turn and face outwards, uniting against those outside
groups who would try to put an end to our Alaskan
cherished heritages of hunting and fishing. An oft
used phrase is especially applicable here: "United
we stand; divided we fall!"
- McDowell v. State, 785 P.2d 1 (Alaska 1989).
(return to story)
- From 1980 through 1997, ANILCA
has been amended 19 times. (return
to story)
- The so-called "Public Trust
Doctrine", which was incorporated into Alaska's
Constitution, holds that natural resources are
reserved for common use. Many legal scholars believe
that such doctrine would prohibit any vote to
take resources from one group and reserve them
for another group of citizens. There is no doubt
that if a proposal to amend Alaska's Constitution,
to allocate common resources based upon zip code,
was actually brought forward for a vote by Alaskans,
extensive litigation would result seeking to remove
the issue from the ballot as illegal under Alaska
law. Furthermore, if such vote actually took place
and Alaskan natural resources were allocated to
one group over another, numerous legal scholars
believe that a properly formulated legal challenge
would cause such a vote to be overturned by the
courts. Rather than solving the issue once and
for all, placing the issue before the voters (as
advocated by the Knowles-Ulmer Administration)
will merely result in even more divisive litigation
in the courts of this State.(return
to story)
- Again, we believe such a vote would be illegal.
See Footnote 3 above.(return to
story)
- In 1983, Swedish hunters harvested 232,000 moose.
During the same year, Alaska harvested only 10,000
moose. Sweden is 1/3rd the size of Alaska. Sweden
attributes their great moose harvest, in part,
to intensive forest management. Wisconsin had
800,000 deer hunters in the field in one of its
recent 10 day deer hunts. During its deer season,
Wisconsin had twice as many people carrying guns
as served in any one time in Vietnam! There were
5 to 6 times the number of hunters we have in
an entire year in an area one tenth the size of
Alaska. Three hundred and fifty thousand deer
were taken during only ten days of the Wisconsin
deer season.
In Alaska, instead of managing our fish and
game resources intensively, as mandated by Article
VIII, Section 4, of our Alaskan Constitution,
we have a Governor who cancels wolf hunts, allows
"referendums" on game management, and entertains
crackpots who advocate wolf sterilization!
Subsistence needs can easily be accommodated
through proper and intensive management of our
fish and wildlife resources and through regulations
governing seasons and bag limits, methods and
means. (return to story)
