Alaska Subsistence A National Park Service Management History

To a large extent, questions related to subsistence use and management are a direct function of land ownership, and particularly during the years prior to ANILCA, many conflicts over subsistence use were subsumed within larger fights over land ownership and control. After the U.S. government purchased Russian America from Czar Alexander II, U.S. officials adopted a distinctly different policy toward Native populations in Alaska than it did elsewhere. That new policy, which was largely the result of changing attitudes toward Natives throughout the United States, avoided a reliance on the reservation system. One result of that policy was that Natives, individually or collectively, had almost no land that they could call their own. They were, however, able to continue to use vast expanses of the unclaimed, federally-owned domain for subsistence purposes. The federal government, throughout the pre-statehood period, did not address larger questions about Native rights to Alaska lands.

This policy, which was consistent with the general attitude that the federal government took toward Alaska, had few initial impacts on Alaska's Native inhabitants. During the late nineteenth century, indeed, the amount of land that was intensively utilized by non-Native populations remained quite small. The twentieth century, however, brought a large migration of non-Native prospectors, followed by the scattered growth of transportation networks, agricultural and mineral lands, and commercial fishing grounds, along with the villages and towns needed to support those developments. The coming of World War II, moreover, accelerated those developments, and by the time the statehood movement reached its final stages, Alaska's Natives felt sufficiently concerned about the potential loss of subsistence resources that provisions for subsistence fishing were included in the state's original fish and game statutes. The larger question of Native land rights, however, was again put on the back burner, and it was not until the late 1960s that a combination of factors—a federal land freeze, the discovery of North Slope oil, and efforts by Native Alaskans to organize on a statewide scale—forced the Native land rights issue.

Congress, in response, passed the Alaska Native Claims Settlement Act (ANCSA), which provided both cash payments and land allotments. Land allotments were to be selected by regional corporations and village corporations, both of which were ANCSA creations. The architects of ANCSA were fully aware that these land allotments, generous though they may have been, were far less than was necessary to accommodate the Natives' subsistence needs. In order to provide for subsistence, the U.S. Senate inserted a provision that provided legal protection for the Natives' continued subsistence use of the public lands. The House, however, did not go along with that provision. The final bill, as a result, was silent on the issue. An important footnote stemming from ANCSA, however, was a Conference Committee report stating expectations for future action relative to Native land rights.

Planning for that future was not long in coming, because Section 17(d) of that act set in motion a long period of planning that resulted in the classification of Alaska's unreserved lands into conservation system units and other reserved areas. Within weeks of ANCSA's passage, the federal and state governments, along with a broad spectrum of Native, environmental and user groups, began working to shape the nature of Alaska's rural lands in their favor. Most groups concentrated their fight on how large the various conservation units would be, who would manage them, and to what extent wilderness and sport hunting would be allowed. But the National Park Service—along with the State of Alaska, Native groups, the Joint Federal-State Land Use Planning Commission, and a number of other interested parties—were also vitally interested in how any final settlement effort would impact Alaskan subsistence activities. Between 1972 and early 1975, the NPS and other federal agencies produced a series of draft and final environmental statements detailing proposed plans for the future of much of rural Alaska. These documents served as a basis for the decisions that Congress would make.

Then, in January 1977, Congress began working in earnest to resolve the Alaska lands issue. In their approach to subsistence, members of the House and Senate initially presented wildly diverse ideas. Some, for example, recommended a Native preference while others recommended a rural preference; some urged that the federal government manage subsistence activities while others pressed for state management; and some urged that subsistence activities be sanctioned in almost all of the proposed NPS units, while others felt that subsistence, in most units, should be either limited in its application or prohibited entirely. Many of the details regarding how subsistence activities would be managed (i.e., the paragraphs that comprise today's Title VIII) were settled, to a large extent, in early 1978. The extent of acreage on which subsistence activities would be sanctioned, however, was the subject of a tug-of-war that would not be settled until President Carter signed the final bill on December 2, 1980. Among its other provisions, ANILCA decreed that subsistence activities would be legal in all but one of the newly-established park units, and thus 43.0 million of the 43.6 million acres in the newly-established NPS units would be open to subsistence. However, in five of the seven newly-established parks or monuments (comprising 20.2 million acres), subsistence would not necessarily be allowed everywhere but "where such uses are traditional in accordance with the provisions of title VIII."

Given that dictum, the NPS did its best to implement Title VIII and the other ANILCA provisions. The wheels, at first, turned slowly; ANILCA, after all, had brought about a greater than eight-fold increase in Alaska's NPS acreage, and the agency perforce spent much of the initial post-ANILCA period hiring staff, acquiring a rudimentary physical plant, and in other ways establishing an minimal organizational presence. (Historian Bill Brown perhaps said it best when he stated that the NPS's approach during this period was "show the flag, keep a smile on your face, be educational, and don't march in with jack boots.") Meanwhile, NPS officials spent much of the six-month period following ANILCA establishing regulations for their newly-established lands. New regulations regarding some NPS activities were unnecessary because there was no need to distinguish the new Alaska parks from those located outside of the state; regarding subsistence, however, the realities of Alaska's rural lifestyle were so distinctive that many new Federal Register pages were needed in order to provide effective, appropriate management regulations. Because both the regional office and the parks themselves had to limp along with slim staffs and meager funding, little active work was done to resolve subsistence issues; and although ANILCA had stated that the various park and monument subsistence resource commissions (SRCs) would have a "program for subsistence hunting" ready by June 1982, the cold reality was that the first SRCs did not even meet until April and May of 1984.

Between 1984 and 1989, most of the SRCs met at least once per year, and during this period some of the initial battles over subsistence issues were waged. Most of the initial SRC members were well-respected local residents, and they were well aware that any actions they took had to fit within the legal framework of ANILCA and its subsequent regulations. Many of the SRC members, however, were subsistence users, and many also had a keen interest in continuing the laissez faire system that had been in place prior to ANILCA's passage. Agency officials, however, recognized that ANILCA and the regulations placed certain constraints related to subsistence access, eligibility, and use, and throughout the mid-to-late 1980s Interior Department officials rejected many SRC recommendations that would have allowed a relatively broad interpretation of the regulations. Friction and frustration was the inevitable result. SRC members, all too often, felt that the government was trying to restrict legitimate subsistence activities; moreover, some SRC members (and some agency staff as well) felt that the NPS was trying to eliminate subsistence entirely. Agency officials, in response, countered that they were merely trying to interpret the letter as well as the spirit of ANILCA and its regulations.

Throughout the decade that followed ANILCA's passage, the State of Alaska managed subsistence resources throughout the state. The Interior Department, after some initial misgivings, officially certified the legitimacy of the state's program as applied to federal lands in May 1982. The state's voters rejected a referendum of the state's initial (1978) subsistence law in the fall 1982 elections. In early 1985, the Alaska Supreme Court issued a ruling in the Madison vs. Alaska Department of Fish and Game case which nullified a key provision of the initial subsistence law, and as a result, the Alaska legislature passed an amended subsistence law in May 1986. Beginning in 1982, the state began overseeing a series of six regional subsistence advisory councils, but funding and other difficulties limited the councils' effectiveness.

In December 1989, the world of subsistence management was rent asunder when the Alaska Supreme Court, in McDowell vs. State of Alaska, ruled that the rural preference provisions contained in the state's revised (1986) subsistence law illegally discriminated against urban residents. The Alaska legislature, in response to that court decision, recognized that the State of Alaska could retain its lead role in subsistence management if it passed a bill mandating a rural preference. (This bill would forward a constitutional amendment that Alaska's voters would decide at the next general election.) The legislature, however, was unable to pass such a bill, so on July 1, 1990, the federal government began managing certain subsistence activities. The Federal Subsistence Board—composed of representatives of the NPS and four other federal agencies—played a major role in implementing the new management scheme.

Federal agencies in the wake of the McDowell decision recognized that they would be required to assume certain tasks related to subsistence management if the legislature failed to address the issue, so they hurriedly compiled a series of temporary subsistence harvest regulations. One of those decisions, that would loom large in upcoming years, was that the federal government would manage subsistence activities only on lands within the various federal conservation units. In addition, federal regulators determined that jurisdiction over subsistence would not extend to the state's navigable waters; as a result, federal agencies' jurisdiction would be related to hunting and trapping, and also to fishing in non-navigable waters. (Because few issues arose regarding fishing in non-navigable waters, the practical result of this decision was that the great majority of the federal officials' responsibility was related to subsistence hunting.) Federal agency personnel spent the next two years preparing an environmental impact statement that provided a more specific direction for the federal subsistence program; it was approved by the Interior and Agriculture secretaries in April 1992. A major element in that decision was that the State-managed regional subsistence advisory system did not adequately reflect the concerns of both urban and rural subsistence users; as a result, the state's six-region system was superceded by a federally-managed ten-region system.

One by-product of the federal assumption of subsistence management was that the NPS was provided with significantly increased funding to administer subsistence programs in Alaska's park units. The agency took advantage of that opportunity by hiring subsistence coordinators in the field and beefing up the subsistence staff in the Anchorage office. The field coordinators soon became familiar with the nearby resident-zone communities and with area subsistence users; and perhaps not surprisingly, many of them quickly recognized that many users had valid complaints about inequities in the existing subsistence management system. The field coordinators' empathy, in many cases, was passed on to park superintendents, who began to chafe at the strict-constructionist way in which subsistence regulations were being interpreted by regional officials. The growing antagonism between park and regional officials led first, in 1993, to a week-long subsistence conference; then, a year later, continuing friction led to the appointment of a working group that was tasked to review the various laws and regulations that pertained to the NPS's administration of subsistence activities. That effort resulted in a draft report that was quietly shelved. But an entirely separate effort—one that was assigned to restructure the agency's approach to natural resource management—recommended the breakup of the region's subsistence division. Recommendations contained in a February 1996 report signaled a major shift in attitudes toward subsistence management; soon afterward, agency officials unearthed a previously-discarded report on subsistence laws and regulations and used it as a springboard for reinterpreting and clarifying the agency's stance on a variety of subsistence issues. The agency, during this period, took some pains to let the SRCs know that it was showing a renewed interest in users' concerns. Since then, relations between the SRCs and the agencies have considerably improved, and the NPS has made a yeoman effort to listen to the SRC members' concerns and accommodate their legitimate requests. This is not to say, however, that subsistence users are uniformly satisfied with either the style of NPS management or the agency's responses to users' recommendations. A dialogue, however, has been established in recent years that had not existed previously.

As noted above, the NPS has been one of several federal agencies which, since 1990, has jointly made management decisions regarding subsistence regulations within the various federal conservation units. In the fall of 1993, federally-sponsored regional advisory councils began advising the Federal Subsistence Board. Given this operational structure, the federal subsistence regulatory system has continued making subsistence decisions to the present day. But beginning in the spring of 1994, Alaskans began to recognize that the federal government's management reach in the subsistence field might extend from a primary focus on hunting to one that also included fishing. Anchorage District Court Judge H. Russel Holland ruled, in the Katie John vs. USA case, that "the federal government has the legal power and obligation to take over management of subsistence fisheries on all navigable waters." That decision was soon relayed to the Ninth Circuit Court of Appeals. In an April 1995 ruling, Judge Eugene Wright (speaking for the appeals court majority) stated that "we have no doubt that Congress intended that public lands include at least some navigable waters." Judge's Wright's decision thus reaffirmed the notion that the federal government should be managing at least some of the state's navigable waters; the scope of that management, however, was significantly narrower than that envisioned by Judge Holland.

Judge Wright's decision in the Katie John case, coupled with the U.S. Supreme Court's refusal to accept the state's appeal, put additional pressure on the Alaska Legislature to pass a bill providing for a constitutional amendment that would have allowed a rural subsistence preference. But the legislature, in both 1995 and 1996, refused to act. Alaska's Congressional delegation, hoping to buy time, was thrice able to extend the deadline for which the federal government would assume management of subsistence fishing. But the Alaska legislature, for whatever reason, opted not to forward a rural-subsistence provision to Alaska's voters, and in October 1999 the federal government assumed jurisdiction over subsistence fishing on more than half of the state's navigable waters. The federal government issued final regulations relative to subsistence fishing in January 1999; most of these regulations are still in effect. The federal expansion of subsistence fishing management meant that both the Federal Subsistence Board and the various regional advisory councils now assume a much more active role than had been assigned to them back in 1992; the Board now makes many fishing-related decisions each December in addition to the hunting and trapping decisions it makes each April or May.

Seen from a historical perspective, it appears that subsistence management—which in Alaska is a consistently emotional and high-priority topic—has itself been treated with a startling lack of consistency. The NPS (and to extent other federal agencies as well) has ebbed and flowed in its attitude toward subsistence users; at times, it has seemingly offered subsistence users a carte blanche approach to subsistence access, eligibility, and other aspects of subsistence management, while at other times, many subsistence users felt that the agency was attempting to whittle away at legitimate subsistence uses and consign these activities to a historical dustbin.

As this paper has noted, the agency has never, in reality, openly advocated either extreme. But seen from an organizational point of view, the agency's varying approaches should come as no surprise. As early chapters have pointed out, the NPS built its reputation over the years through strong efforts to protect scenic landscapes and wildlife populations for public enjoyment, and key to its organizational philosophy during its early years was the prevention of hunting, personal use fishing (i.e., fishing that was not intended for sport), and other subsistence activities within park borders. But during the years following ANCSA's passage, the agency leaders in Alaska quickly concluded that Alaska Natives and other rural residents had long used tens of millions of acres of potential parkland; and furthermore, an alliance between Alaska Natives and conservationists was politically necessary in order to ensure the passage of a strong Alaska lands bill. Given that alliance, agency leaders were proud to note that subsistence uses—primarily by Alaska Natives—would be a key aspect of the new parks. When these concepts were presented in Congress, the U.S. House largely accepted what the agency had proposed. The Senate was initially much more restrictive in its approach; the final bill, though necessarily a compromise, was still a radical departure from what the NPS had historically championed.

During the initial years after ANILCA's passage, the NPS retained its low-key, laissez faire approach to subsistence management, and agency officials did their utmost to win friends among park neighbors. In a state that was traditionally hostile to conservation and federal control, such an attitude was critically necessary; and considering skeletal budgeting and staffing levels, the agency would have been shortsighted to act otherwise. But within a few years, officials apparently felt that enough time had elapsed since ANILCA that the agency could afford to revert to a more traditional management style. For the remainder of the 1980s the agency retained its relatively conservative approach; it did so in order to let Alaskans of all stripes know that the parks, as specially-protected places, needed to be managed quite differently than lands elsewhere in Alaska. But in doing so, the agency aroused the enmity of many local residents and subsistence users, some of whom resented the very existence of the various park units as well as any specific park-related restrictions. This attitude prevailed until the early 1990s, when the combined actions of superintendents and subsistence coordinators forced a reinterpretation of many agency regulations and brought about new levels of communication between agency personnel and subsistence users.

Today, Alaska's subsistence management "system"—if that is the proper term—is a complex melange that is managed by both the state and federal governments. Subsistence decisions are made by the state game and fish boards and by the Federal Subsistence Board, and serving these boards in an advisory capacity are various local advisory committees, subsistence resource commissions, regional advisory councils, along with other groups and agencies. Despite the Federal Subsistence Board's titular leadership, a seeming tyranny of democracy prevails, in which both rural and urban Alaskans of all stripes have a voice, and rural groups additionally benefit through various so-called Section 809 agreements through which various data collection, project management and monitoring projects are conducted.

At first glance, it would appear that the present system is, at long last, in a relative state of equilibrium; the Alaska legislature's track record suggests that a unified subsistence management regime will not be adopted in the near future, and the Alaska governor's August 2001 decision to not appeal the Katie John decision suggests that no major court decisions any time soon will significantly affect the existing subsistence management regime. The chronicle of what has happened thus far, however, suggests otherwise. This study has shown that ever since 1970, some major event affecting Alaska's subsistence management—either a legislative act or a major court decision—has taken place every five to seven years. Given that time line, it must be recognized that turbulence is the norm rather than the exception, and it should come as little surprise if further dramatic changes occur within the next few years.

"Nobody like regulations—even I don't. But we need them. We've got to protect what we've got here. if you let this land get completely run over there wouldn't be room for man or beast." NPS (AKSO), photo. —Percy Duyck (Nenana resident and member of the Denali National Park Subsistence Resource Commission), 1999