Published Articles

By Wayne Anthony Ross, B.S., J.D.
25 August 2001

[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!"

  1. McDowell v. State, 785 P.2d 1 (Alaska 1989). (return to story)

  2. From 1980 through 1997, ANILCA has been amended 19 times. (return to story)

  3. 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)

  4. Again, we believe such a vote would be illegal. See Footnote 3 above.(return to story)

  5. 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.
  6. 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)

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