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HomeMy WebLinkAboutAlaska Native Commission Final Report Vol 3 1994ALASKA NATIVES COMMISSION er fn) Final “FReport Volume III Volume Ill of the Alaska Natives Commission's Final Report contains the full text of two separate studies con- ducted by the Alaska Natives Commission: 1) Alaska Native Subsistence; and, 2) Alaska Native Tribal Government. Condensed versions of these studies Cincluding key findings and recommendations which are contained in full in this volume) can be found in Volume |, Part Two. In preparing these studies, the Commission went to great lengths to treat each issue as thoroughly and con- clusively as possible. The issues were examined from a number of policy perspectives, including social, cultural and economic. These issues, Alaska Native subsistence and Alaska Native tribal government, are among Alaska's most legally and politically dynamic. In recognition of this fact, the Commission strived to ensure that its discus- sions, findings and recommendations were as Current as possible given the ever-changing legal and political environment affecting these two important issues. Forward About the Commission The Alaska Natives Commission (the Joint Federal-State Commission on Policies and Programs Affecting Alaska Natives) was created by Congress in 1990 at the urging of Alaska Native groups. The Commission's undertaking was jointly funded by the federal government and the State of Alaska. The idea of creating a high profile, authoritative commission emerged from the Alaska Federation of Natives' report on the status of Alaska Natives, A Call to Action, published in 1989. AFN's report was precipitated, in large part, during a visit to Alaska Native villages the previous year by Sen. Daniel Inouye (D-Hawaii), chairman of the Senate Select Committee on Indian Affairs. When Congress created the Commission, it was directed to conduct a comprehensive study of the social and economic status of Alaska Natives and the effectiveness of the policies and programs of the United States and of the State of Alaska that affect Alaska Natives. The Commission also was directed to conduct public hearings and to recommend specific actions to Congress and the State of Alaska that might help assure that Alaska Natives have life opportunities comparable to other Americans. The Commission was to accomplish its work while respecting Natives' unique traditions, cultures and special status as Alaska Natives. In addition, the Commission was to address the needs of Alaska Natives for self- determination, economic self-sufficiency, improved levels of educational achievement, improved health status and reduced incidence of social problems. The first meeting of the Commission was held in February 1992. Within months, staff had been hired and five task forces had been named to gather information on economics, education, governance, health, social and cultural issues. Mary Jane Fate of Fairbanks and Perry R. Eaton of Anchorage were named co-chairs of the Commission. Other Commission members included Johne Binkley of Fairbanks, Edgar Paul Boyko of Anchorage, Father Norman Elliott of Anchorage, Beverly Masek of Willow, Martin B. Moore of Emmonak, Frank Pagano of Anchorage, John W. Schaeffer, Jr., of Kotzebue, Father James A. Sebesta of St. Mary's, Walter Soboleff of Tenakee Springs, Morris Thompson of Fairbanks, and Sam Towarak of Unalakleet. Francis E. Hamilton of Ketchikan served on the Commission until her death September 28, 1992. Nine regional hearings were held by the Commission, including: Fairbanks, Bethel, Nome and Klawock in 1992; and Barrow, Dillingham, Kodiak, Kotzebue and Copper Center in 1993. In addition, statewide hearings were held during the Alaska Federation of Natives Convention October 14-17, 1992, and October 14, 1993. Task forces held special regional hearings, and among them were: Social/Cultural Task Force hearings in Ft. Yukon; Health Task Force hearings in Emmonak, Alakanuk and Hooper Bay; three separate Governance Task Force hearings in Anchorage, as well as criminal justice hearings at the Hiland Mountain/Meadow Creek Correctional Center in Eagle River and the Wildwood Correctional Center in Kenai; and, Education Task Force hearings in Sitka and Angoon, including a special session at Mt. Edgecumbe to gather testimony from students. In all, about 500 Alaskans from 82 cities and villages provided oral testimony to the Commission during the 16 months over which hearings were held. Several hundred additional people submitted written testimony for the Public Record. The Final Report The result of the Commission's two-year study is a three-volume Final Report designed as a blueprint for change regarding the way in which the federal and state governments deal with Alaska Native issues. Though the report is not all-inclusive nor entirely exhaustive, it does - within the pages of the three volumes - touch specifically on those issues in contemporary Alaska Native life that Alaska Natives, themselves, have identified as being among the most important. The Commission also published the 260-page Federal and State Catalog of Programs Affecting Alaska Natives which contains information about the multitude of governmental services available to Alaska Natives and Alaska Native tribes. The catalog is available at the Library of Congress, the National Archives in Anchorage, the Alaska State Library (Anchorage, Fairbanks and Juneau), and various public and university libraries throughout the state. Also available at these same repositories is the body, in verbatim transcript form, of public testimony gathered by the Commission (seven volumes total). Table of Contents Alaska Native Subsistence Subsistence in Contemporary Alaska Traditional and Modern Ways Data and Sources Who Practices Subsistence? Where? Mixed Economies Other Characteristics of Subsistence Use A Demographic Typology of Subsistence Subsistence as an Alaska Native Issue Federal and State Subsistence Policies: The Evolution of Gridlock Public Regulation and Allocation: Equal Access vs. Preference The Alaska Native Claims Settlement Act (1971) The First State Subsistence Statute (1978) The Alaska National Interest Lands Conservation Act (1980) State Compliance with ANILCA (1981-1989) The End of State Compliance Litigation Additional Management Concerns Conclusions and Recommendations ll 12 12 13 13 14 15 18 34 38 40 Alaska Native Tribal Government Introduction The Scope of the Commission's Mandate Statement of the Contemporary Issue Tribal Sovereignty and Federal Indian Law Policy Federal Indian Law and Policy The Dynamics of Federal Indian Policy Historical Application of Federal Indian Law in Alaska Policy Positions Tribal Recognition as Applied to Alaska Natives Federal Government Recognition of Alaska Native Tribes Governmental Powers of a Federally Recognized Indian Tribe in Alaska Effects of Dissolution of Municipal Government Governmental Authority Over Residents and Territory Summary of Issues and Recommendations from Witness Testimony Tribal Status Indian Country Land ownership and control Authority Financing Structure of Native Governments Federal Policies and Laws Appendix 45 45 45 49 49 57 58 63 66 67 68 72, 73 74 74 77 78 80 84 86 88 ALASKA INATIVE SUBSISTENCE I. Subsistence in Contemporary Alaska A. Traditional and Modern Ways The term "subsistence" refers to the hunting, fishing and gathering activities which traditionally constituted the economic base of life for Alaska's Native peoples and which continue to flourish in many areas of the state today. Before the mid-18th Century arrival of the first non-Natives, subsistence was the only form of economic production by which the aboriginal populations fed, clothed and housed themselves. Conducted in seasonal cycles by small, semi-nomadic communities and kinship groups within recognized territories, subsistence utilized traditional, small-scale technologies for harvesting and preservation of foods and distributed the resulting production through networks of communal sharing and barter. Wide disparities existed among the subsistence practices of Native societies in the different climatic and biological areas of Alaska - from the marine mammal cultures of the high Arctic, through the land mammal/fishing groups of the Interior river systems, to the resource-abundant coastal communities of the southeastern rain forests. During the past 250 years, the technologies of Native subsistence have changed profoundly, as people have adjusted to the use of modern instruments of harvest, transportation and storage. On the surface, today's subsistence activities look very different from those of pre- contact times. But beneath this visible level, with its manufactured equipment and store- bought supplies, older patterns of behavior and values continue. As we try to define what subsistence really is in contemporary Alaska, we must distinguish between form and function. How Native people practice it today has changed profoundly over the centuries, but what they are doing is mainly what they have always done. And what they have always done is very different from the economic organization and personal relationships of contemporary mass culture. In order to deal effectively with Alaska's festering political controversy over the allocation of fish and game, it is necessary to understand the actual practice of subsistence "on the ground," in the lives of real people. The purpose of this section is to provide a statistical/narrative description of how modern subsistence works. B. Data and Sources In the late 1970's, the Alaska Legislature and Governor Hammond created within the Department of Fish and Game a new organizational unit called the Division of Subsistence. Because of the increasing political rivalry over fish and game resources, the new entity was designed to conduct and publish social science research on human behavior. Its purposes were to inform lawmakers, administrators and the general public about subsistence takings and uses of wild renewable resources and to advise the state government on the regulation of such practices in competition with sport and commercial harvests. In the past 15 years, the Subsistence Division, working with limited budgets and staff, has produced a remarkable body of research. The information that follows is based on such studies, as well as on census data and other publications. C. Who Practices Subsistence? Where? In 1987, Subsistence Division researchers published a detailed outline of annual subsistence harvests in 98 Alaskan communities (four large cities, plus 94 towns and rural villages of varying sizes).! Using state management records and detailed "harvest recall" interviews conducted between 1980 and 1987, the analysts gathered data on the taking of fish, land mammals, marine mammals and other species (e.g., birds, plants, invertebrates, etc.), measured by the common statistical unit of "pounds (dressed-weight), per capita, per year." They came to two general conclusions: 1) that the non-commercial taking of wild plant and animal species for food and other domestic uses continues to produce "significant economic value" in contemporary Alaska, particularly in the rural areas of the state; and 2) that this sector of the state's economy is relatively "hidden" from view, generally left out of government statistics on productivity and growth, and all but ignored in the development of public policy. As an example of what is meant by "significant economic value," consider the fact that 45 of the 98 surveyed communities reported wild food harvests equaling or surpassing the western U.S. standard for average annual per capita purchases of meat, fish and poultry (222 pounds). And fully 82 of these locations reached at least half of that benchmark (i.e., 111 pounds) through hunting and fishing. Even allowing for the fact that per capita consumption of animal proteins and fats is higher in rural Alaskan villages than in the national diet, the data are compelling. They show us that virtually all the meat, fish and poultry annually consumed in half of the surveyed communities came from the harvest of wild resources; and in five out of six of them at least one-half of such nutritional needs were met by subsistence. For most of the surveyed locations, store-bought meat, fish and poultry were only a supplement, often a very expensive one, to the local protein base. If such wild resources were somehow denied to subsistence-dependent communities, the inevitable result would be the deterioration of nutrition, public health and social stability - because the cost of buying, transporting and storing imported replacements would be impossible for local people, or even government agencies, to bear over time. The long-term consequence would not be starvation but the gradual erosion and disappearance of many rural communities through out-migration. This is the irreducible fact that underlies the most divisive issue in Alaskan politics. "Subsistence" cannot be understood as a subset of fish and game management. It is a subset of social policy. What is at stake in it is the survival of human communities and cultures. If subsistence is important, which Alaskans depend on it most heavily? The following ranking of annual per capita subsistence harvests in 14 geographical areas demonstrates a general pattern: that the more remote and traditionally ethnic an Alaskan community is, the higher its subsistence productivity is likely to be. Harvest levels in Table 1 begin at an average of 30 pounds per person per year in the four major urban locations and steadily ‘Wolfe, Robert J. and Walker J., "Subsistence Economies in Alaska: Productivity, Geography and Development Impacts," Arctic Anthropology, Vol. 24, No. 2, 1987, pp. 56-81. (This article is the source of data and conclusions, through the middle of page 5 of this text, on community harvests, geography of harvest levels, geography of species taken, predominance of fishing, urban distance correlation, transportation infrastructure correlation, non- Native settlement correlation and cash income correlation.} 4 expand from there - first through the Railbelt and Southeast, then through the more economically developed southern regions of the bush, and finally to the remote villages of the Interior and the northern and western coasts. The highest subsistence levels are found in the most traditional Yup'ik, Inupiaq and Athabascan regions. (The only exception to this ranked order is the North Slope, where temporary public employment created by an oil-driven tax base has slightly reduced, but in no way eliminated, subsistence harvests.) The researchers then broke their data into sub-harvests by animal categories and got the results in Table 2, organized according to five larger areas of ecology and culture. It not only reinforces the pattern of where subsistence is most heavily practiced but shows what kinds of fish and game different groups of Alaskans take to feed their families. It also demonstrates another basic fact of modern subsistence: the combination of all forms of fishing produces a greater total output than does the combination of all forms of hunting - in virtually every region. Statewide, fishing accounts for almost 60 percent of total subsistence product. It is the primary subsistence activity in most Alaskan communities, even those located far north of Anchorage. The sole exception to this rule is that group of Inupiat communities of the high Arctic coast where hunting of marine mammals and caribou displaces fishing as the predominant subsistence pursuit. Table 1 Geographical Area Annual Harvest (Pounds/Person) Anchorage/Juneau/Fairbanks/ 30 Mat-su Kenai Peninsula 96 Copper Basin 149 Southeast 212 Upper Tanana 218 Prince William Sound 256 Northern Cook Inlet 265 Alaska Peninsula 290 North Slope 364 Kodiak Island 426 Southwest 626 Western 732 Yukon-Koyukuk 839 Northwest Arctic 1,067 The 1987 research also shows that levels of subsistence harvest correlate significantly with certain socio-economic traits of communities: 1) Productivity tends to vary directly with distance from urban population centers. The farther a community is from any large city, the greater its likely harvest of wild foods. Thus, subsistence is predominantly rural. 2) Productivity tends to vary inversely with mass transportation infrastruc- ture. Alaskan communities that are connected to urban centers by road, rail or ferry service (e.g., in the Ahtna-Dena'ina-Upper Tanana area, along the Seward-Fairbanks Railbelt, on the Kenai Peninsula, and in Southeast) report annual per capita subsistence harvests 69 percent below those of non- connected communities. The presence of modern transportation infrastructure has the general effect of opening rural areas to permanent non-Native settlement, as well as to seasonal urban hunters and fishermen, producing both higher competition for local fish and game resources and more stringent governmental regulation of all takings. 3) Productivity tends to vary inversely with community levels of cash income. The less cash there is in the local economy, the greater the depen- dence on fish and game. But it is important to note that, as cash development comes into a bush community, its benefits are inequitably distributed by race and class. Employment opportunities and higher incomes generally end up in the hands of non-Natives, and that leaves Natives who reside in heavily-impacted rural communities with the dual reality of limited cash and reduced subsistence. 4) Productivity tends to vary inversely with permanent non-Native settle- ment. As the percentage of non-Natives in a community goes up, subsistence output generally goes down. Non-Native residents tend to enjoy higher cash incomes than do local Natives, depend less on subsistence for economic survival and reduce community productivity averages. Subsistence is, then, predominantly Native. Table 2 Ecological Zone (Cultural | Fish Land Marine Other Total Area) Mammals | Mammals Arctic Sub-Arctic Coast 363 106 104 37 610 Aleutian-Pacific Coast 251 68 33 26 378 (Aleut-Sugpiaq] 66.4% 18.0% 8.7% 6.9% 100% Subarctic Interior 256 105 <l 15 377 (Athabascan) 67.9% 27.9% 0.0% 4.0% 100% Southeast Coast 122 41 12 37 212 (Tlingit-Haida) 57.7% 19.3% 5.7% 17.5% 100% Urbanized & Adjacent 28 12 0 8 48 (Mixed) 58.3% 25.0% 0.0% 16.7% 100% 6 D. Mixed Economies No community in Alaska any longer possesses a pure subsistence economy. All human settlements, even the most rural and most Native, participate to some degree in the world's cash/market/wage system. Most Native villages now have what researchers describe as "mixed" economies, in which small-to-moderate amounts of cash are provided at different times of the year by limited resources: very few full-time wage jobs (most of which are in public service agencies, staffed mainly by non-local, non-Native personnel); some seasonal employment in commercial fishing, fish processing, trapping, construction and firefighting, handicraft cottage industries; government transfer payments; and family sharing. The ratio of cash to subsistence varies widely from village to village and from family to family within the same village. Often a household's subsistence production is "capitalized" by its pooled cash income, since the efficient harvest of large amounts of fish and game cannot be accomplished without market-produced industrial goods such as fishnets, outboard motors, rifles, ammunition and snow machines.’ Many non-Native observers, including policy-makers, perceive modern subsistence as nothing more than a cultural antique - a quaint, but increasingly ineffective, holdover from previous times that will inevitably disappear as market economics take over. They admit that modern village economies are mixed, but they see the two components as varying inversely with one another (i.e., that subsistence hangs on only to the extent that development of the cash economy has not taken place). The truth is that subsistence is much more than the consolation prize that village people are left with in the absence of jobs. It is its own economic sector, highly prized by its practitioners and fully co-existing with cash-market activities. The vast majority of village residents choose to practice subsistence, even if they have access to good wage incomes, and research has failed to establish any cash cutoff point at which individuals or households stop harvesting fish and game.’ Large economic development impacts may slightly reduce aggregate harvest data (e.g., on the North Slope during the past 15 years), but individual rural households at all income levels cling tenaciously to their uses of wild food resources. Some wage activities are particularly compatible with subsistence (e.g., seasonal commercial fishing and trapping). Full-time jobs are generally less accommodating, although some village employers adjust schedules and activities to allow for subsistence. Often families combine economies by having some members work for cash while others harvest fish and game, occasionally switching these roles among individuals. Even people who cannot get time off from cash jobs work at subsistence in the evenings and on weekends - not for recreation, as in urban areas, but for household food production.’ Village people have created their own syntheses of traditional and modern activities that allow them to take care of themselves and their families. They survive by maintaining the combination of cash and subsistence, not by making a forced choice between them. *Wolfe and Walker (1987) Also: Wolfe, Robert J. and Walker, Robert J., "Subsistence and Income in Rural Alaska," Unpublished Paper, Subsistence Division, Alaska Department of Fish and Game, April 1986. Also: Kruse, John A., "Alaska Inupiat Subsistence and Wage Employment Patterns: Understanding Individual Choice," Human Organization, Vol. 50, No. 4, 1991. *Kruse (1991) Also: Wolfe and Walker (1986) ‘Wolfe and Walker (1986) E. Other Characteristics of Subsistence Use An important attribute that distinguishes subsistence from other uses of fish and game is the diversity of species harvested (i.e., the number of different wild resources annually taken and used by a given household for food and other domestic purposes).° Subsistence families generally take a wider range of resources than do other user groups. They do so out of cultural preference for local foods, because of the better nutrition provided by wider traditional diets, and because different species allow greater opportunities for sharing and exchange of goods favored by others. They also practice resource diversity as an economic contingency plan, providing their households with back-up options in an environment of seasonal resource uncertainty and chronic instability of cash incomes. In any community, some resources (e.g., salmon) will be used by almost every family, while other species are the acquired tastes of relatively few (e.g., sea cucumbers). Coastal settlements commonly demonstrate a wider resource diversity than do inland communities, partly due to the access of the former to marine finfish, shellfish and mammals. As a general rule, the more economically developed and culturally diverse a community is, the narrower the range of its subsistence resource menu will be. A second important attribute of subsistence communities in modern Alaska is that of specialization by household. While most rural households harvest some wild foods, a relatively small percentage (which the researchers have called "super-households") are extremely productive, harvesting most of their communities' annual supplies and distributing them to less productive families. A Subsistence Division "harvest recall" study published in 1987 produced the "70-30 Rule" (that, on average, about 30 percent of a rural community's households will produce about 70 percent of its total subsistence output).° The researchers have posited that the principal reason for this is the natural "developmental cycle" of village households. At one end of the continuum, newly-formed households tend to be headed by inexperienced young adults with a labor force of children. They have limited subsistence capital and lighter community obligations to produce and distribute food. At the other end, elderly households, often composed of widowed spouses and grandchildren, have seen their adult offspring move out to establish their own families. They are characterized by an older, physically less capable, work force, uneven subsistence capital and limited community obligations to harvest and share. It is the "mature," adult generation in between that heads the super-households of the typical village. They have experience, labor and capital, and almost everyone else looks to them as the main providers. Most of them act as the cores of multi-household networks of output and distribution. F. A Demographic Typology of Subsistence In 1992, the Subsistence Division circulated research that divided 293 Alaskan communities (virtually every recognizable settlement in the state) into three demographic levels.’ The comparative socio-economic characteristics of these categories showed the roles that hunting and fishing play in Alaskan communities of different sizes. ‘Wolfe, Robert J., "Resource Diversity as a Characteristic of Subsistence Uses," Unpublished Paper, Subsistence Division, Alaska Department of Fish and Game, December 1991. ‘Wolfe, Robert J., "The Super-Household: Specialization in Subsistence Economies," Paper for 14th Annual Meeting, Alaska Anthropological Association, March 1987. 7Subsistence Division, Alaska Department of Fish and Game, "Community Size, Economy and Number of Subsistence Users," Unpublished Paper, January 1992. Communities with Populations under 2,500: This category contains 278 Alaskan places, all of them rural, with an aggregate 1990 population of only 85,230 people (15.5% of the state total). It includes all Native villages except those that have been demographically swallowed by larger non-Native towns or cities but still maintain their separate legal and cultural identities (included in Categories 2 and 3). It also contains many tiny non-Native settlements in the bush, particularly in Southeast and along the Railbelt and Interior road system. 251 of the 278, including all the Native villages, were designated by the Alaska Boards of Fisheries and Game in 1986 as having mixed subsistence-cash economies. The other 27 were designated as having cash-market economies. In most communities of this category, large majorities of the residents participate in subsistence, as both harvesters and consumers. They produce moderate-to-high levels of subsistence output, taking a relatively wide diversity of plant and animal species. Production and processing are done by non-commercial household/kinship groups, using efficient, small-scale technologies within traditional territories according to seasonal cycles. There is extensive non-market sharing and exchange, and most of the system's values and knowledge, transmitted from generation to generation, are what the researchers call "traditional." There is a wide range of productivity among households in a given community, with some feeding far more than their own members through distribution networks. In these very high cost-of-living environments, limited cash employment and small public support payments produce low annual cash incomes for most households, especially for Natives. Pooling of household cash not only pays for such domestic purchases as fuel, clothing and store-bought foods, but also capitalizes subsistence by buying equipment and supplies.* Communities with Populations of 2,500 to 7,000: This category contains only seven places, each with its own combination of urban/rural characteristics and its own Native/non-Native mix. They have an aggregate 1990 population of 23,292 (4.23% of the state total): Table 3 Community 1990 Population % Native Bethel 4,674 63.89 Nome 3,500 52.11 Barrow 3,469 63.91 Petersburg 3,230 10.41 Unalaska 3,089 8.38 Kotzebue 2,751 75.14 Cordova 2,579 10.96 Such places have recently come to be called "transitional" communities, occupying a controversial status on one side or the other of the "rural" line in federal law. Three (Petersburg, Unalaska and Cordova) are predominantly non-Native towns (containing small, intact Native communities) which participate in well-developed commercial fisheries and related market economies. The four predominantly Native places (Bethel, Nome, Barrow “Ibid., pp 1-2 and Kotzebue) are rural service/transportation centers and commercial hubs for outlying subsistence villages. In 1986 all seven were designated as having mixed subsistence-cash economies. These places share many of the socio-economic characteristics of Category 1 communities, with certain key differences. The majority of residents who hunt or fish do so, at least some of the time, for subsistence, although these percentages are not as large as in Category 1. Most residents also consume subsistence products, although not in the amounts seen in Category 1. In these economically-more-developed, culturally-more- diverse rural Alaskan towns, there are minorities of households that harvest and consume little or no subsistence food because of their exclusive concentration on commercial economic activities and/or their social position outside traditional networks of production and sharing.’ Communities/Areas with Populations above 7,000: This category contains eight places, all predominantly urban/suburban, with an aggregate 1990 population of 441,521 (80.27% of the state total): Table 4 Community/Area 1990 Population % Native Anchorage Municipality 226,338 6.44 Fairbanks N.S. Borough 77,720 6.86 Mat-Su Area 9,683 4.88 Kenai Peninsula Area 36,651 5.42 Juneau Borough 26,751 12.94 Ketchikan Borough 13,828 13.73 Kodiak City Area 12,230 10.47 Sitka Borough 8,588 20.92 Only Sitka and Kodiak received 1986 designations as mixed subsistence-cash economies, while the other six were designated "cash-market" economies. In these communities, the large majority of residents who hunt and fish do not do so for subsistence but for commercial, sport or "personal use" (i.e., limited fishing for food - primarily by non-Natives). Most family diets, including meat and fish, are store-bought, occasionally supplemented with wild foods. There is a narrow range of species harvested and consumed, and stable kinship sharing networks exist only among minorities. The timing of hunting and fishing is limited by leave arrangements from full-time employment schedules. Harvest methods reflect what the researchers call "fair chase" sporting values, rather than the need for efficient production of food; and the knowledge and values inculcated in succeeding generations are those of outdoor recreation, not community survival. Modern transportation methods allow urban hunters and fishermen a vast pattern of land use, often much larger than those used by subsistence harvesters. Primary food production is by cash purchase in the market economy, supported by comparatively well- *Ibid., pp. 2-4 10 developed job opportunities, long-term income security, low-cost and plentiful retail goods, and moderate-to-high family incomes (although Natives and other ethnic minorities in urban Alaska generally have cash incomes well below community averages).'° G. Subsistence As An Alaska Native Issue While the preceding descriptions and generalizations are important, they inevitably suffer from being the products of dry statistical science. Simply telling the reader that subsistence "correlates significantly" with certain "behavioral characteristics" or "demographic patterns" makes no personal impression. On subsistence, as in most matters we grasp patterns of fact to the extent that we can see them. The table in the Appendix attempts to remedy that problem.'' It presents a visual model of 131 Alaskan communities for which we have both subsistence harvest data (gathered by state surveys in the mid-1980's) and demographic/socio-economic information (from the 1990 census and other sources). a One of the fundamental reasons why subsistence is such a difficult issue in contemporary Alaskan politics is that it is really about Natives. While many non-Native Alaskans, particularly those residing in rural areas, harvest and use fish and game, the vast majority of communities seriously practicing subsistence as an economic livelihood are Native villages. Despite the fact that Title VIII of the Alaska National Interest Lands Conser- vation Act, the centerpiece of federal subsistence policy in Alaska, gives a subsistence preference on the public lands to the taking of fish and game by "rural Alaskans," there can be no doubt that the primary congressional motive behind its enactment was the protection of Native people and their communities. (Both the legislative history and the text of ANILCA articulate this intent, and the federal courts have accordingly held that Title VIII is Indian law.) These legal facts underscore the historical perspective of one prescient observer: We must never forget that subsistence is a Native issue. The form of the preference in federal law may be rural, but if the only people living in rural Alaska had been a few thousand non-Native homesteaders, miners and modern-day sourdoughs, there never would have been any Title VIII of ANILCA. It was enacted for the protection of Natives. They are what this is all about.” 'Ibid., pp. 4-5 "Subsistence Division, Alaska Department of Fish and Game, "Food Harvest Levels by Alaskan Community and Individual," Unpublished Paper, September 15, 1991. Also: Research and Analysis, Alaska Department of Labor, "Alaska Population by Sex, Race and Hispanic Origin: 1990 Census," June 1991. Also: Census Bureau, U.S. Department of Commerce, "1990 Census of Population and Housing: Summary of Social, Economic and Housing Characteristics," CPH-5-3, April 1992. See Also: Bureau of Indian Affairs (Juneau Area Office), "Directory of Alaska tribal Entities," July 20, 1992. "John Shively, October 28, 1991. ll Il. Federal and State Subsistence Policies: The Evolution of Gridlock A. Public Regulation and Allocation: Equal Access v. Preference Fish and game resources have been the subject of fierce political competition throughout human history. That is particularly true in Alaska, where, in the absence of agricultural development, a significant portion of the human population has traditionally relied on hunting and fishing for economic survival. There can be no doubt that the allotment of these resources among competing individuals and groups was one of the important functions of government in traditional Native cultures. Because of the gradual in-migra- tion of large non-Native populations and the development of efficient methods of mass harvest during the last 125 years, the politics of fish and game allocation are probably as intense today as they have ever been in Alaska. Subsistence uses have been joined - indeed, all but overwhelmed - by an enormous commercial fishing industry and by a sport hunting and fishing culture involving hundreds of thousands of ordinary citizens. Accordingly, the question of who gets to take fish and game has been a significant issue in territorial, state and federal politics since the advent of American sovereignty in 1867. Since 1959, it has been the state government that has enjoyed the legal power to regulate most such resources. With the exception of several species that remain under federal control and/or international treaties (e.g., marine mammals), fish stocks and game populations are the province of the Alaska Legislature and the Governor, usually acting through the Board of Fisheries, the Board of Game and the Department of Fish and Game. Indeed, the assertion of local control over these resources had been one of the compelling motives of the statehood movement, and several sections of the Alaska Constitution articulate this persistent theme of state politics. But under the federal system, state action is often circumscribed by the authority of the United States. The federal government owns more than 60 percent of all lands in Alaska and maintains a special obligation for the protection of its Native citizens (approximately 15 percent of the state's total population). The federal role in regulating Alaskan resources began with the Treaty of Cession (1867), and the specific involvement of the Congress in subsistence protection dates back as far as 1902. Public policy on fish and game, therefore, unfolds against the larger backdrop of federal-state jurisdictional competition and often ends up the subject of political and judicial confrontation. Since statehood, the central problem of fish and game policy has been that there are not enough animals to go around. Population growth has combined with technology to create a situation in which it is no longer possible to allow every person to take everything he or she wants. The result is that government must engage in the politics of allocation, deciding who gets to take which resources ("fish stocks" and "game populations"), where ("game units" and "fisheries"), when ("seasons"), how ("methods and means"), and for which purposes ("uses" -commercial, sport, subsistence or other). During the 19 years between statehood and the first subsistence law enacted by the Alaska Legislature (1978), fish and game were open to all residents on a "first come, first served" basis, and no defined group had preference over any other. But as human populations steadily grew, this method caused serious resource problems for subsistence-dependent Native villages. The situation came to a head when the pipeline boom of the late 1970's created an urban, non-Native demographic explosion, and something had to be done to shield rural Alaska from overwhelming resource competition and socio-economic deterioration. 12 B. The Alaska Native Claims Settlement Act (1971) Even before the pipeline boom, the Congress had become concerned about protecting subsistence in Native villages. During the five-year process leading to adoption of the Alaska Native Claims Settlement Act (ANCSA), the primary focus was on land ownership, but the closely-related issue of fish and game kept intruding. The final bill on the Senate side specifically referred to protection of "...Native subsistence hunting, fishing, trapping and gathering rights..." in its declaration of purposes. If it had been enacted, it would have required the Secretary of the Interior to designate public lands around Native villages as "subsistence use areas..." and, under certain circumstances, to close them to uses of fish and game other than subsistence by local residents.'* But both provisions were dropped by the conference committee in response to a request by the state government. As a consequence, Section 4 (b) of ANCSA extinguished, along with all aboriginal land titles and claims thereto, "...any aboriginal hunting or fishing rights that may exist...," and there was no specific reference to subsistence protections in the text of the statute. But the Conference Report accompanying the legislation made clear the congressional concern for Native subsistence and mandated responsibility for its defense: The Senate amendment to the House bill provided for protection of the Native peoples' interest in and use of subsistence resources on the public lands. The conference committee, after careful consideration, believes that all Native interests in subsistence resource lands can and will be protected by the Secretary through exercise of his existing withdrawal authority. The Secretary could, for example, withdraw appropriate lands and classify them in a manner which would protect Native subsistence needs and requirements by closing appropriate lands to entry by non-residents when the subsistence resources of these lands are in short supply or otherwise threatened. The conference committee expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the Natives.'* One way of understanding the historical relationship between ANCSA and the Alaska National Interest Lands Conservation Act (ANILCA), enacted nine years later, is to see them as two chapters of the same congressional book of land and resource policy. In 1971, the topic of subsistence received nothing more than a statement of expectation in the legislative history; but by 1980, the inadequate track records of the Secretary and the State had convinced the Congress that it was time for clear statutory direction. The result was Title VIII of ANILCA. C. The First State Subsistence Statute (1978) By the late 1970's, the Alaska Legislature was also coming to the conclusion that subsistence would have to be legally protected if the economic and cultural base of the villages was to survive. Partly in response to anticipated shortages on the ground, and partly in reaction to early policy options being discussed in congressional deliberations over ANILCA, the state enacted a 1978 subsistence law requiring the Board of Fisheries and the '8§. 35, Section 2(a)(7), 92nd Congress, Ist Session, 117 Congressional Record, 38,290, 1971. ‘Conference Report #746, 92nd Congress, Ist Session, 1971, p. 37. 13 Board of Game to give a legal preference to subsistence uses of fish and game.'° Leaving unanswered the question of who the subsistence users were (e.g., Natives, rural residents, poor people, or any other defined class of citizens), the statute merely laid down the principle that subsistence uses would have priority over all other uses (commercial, sport, etc.) at any time of reduced human takings. This first, tentative venture of state law into uncharted territory managed to define "what" but not "who." The latter would have to wait for congressional action. D. The Alaska National Interest Lands Conservation Act (1980) It took the Congress four years, from January 4, 1977, through December 2, 1980, to enact ANILCA. From the outset, it was clear that the Act was going to contain a federal protection of subsistence, and Title VIII gradually emerged as the vehicle for this policy. The key issues in its design were the definitions of what subsistence is ("uses") and who does it ("users"). While committee deliberations and draft bills were loaded with references to "Alaska Natives" and "Native villages," the State of Alaska was successful in persuading the Congress to enact a subsistence preference defined by geography of residence, rather than by ethnicity. The people who would be protected by federal law were those who lived in rural Alaska, regardless of race, culture or other considerations. The Report accompanying the final Senate Energy and Natural Resources Committee bill clearly described the rural- urban distinction: ...[a]lthough many residents of cities such as Ketchikan, Juneau, Anchorage and Fairbanks harvest renewable resources from the public lands for personal or family consumption, by its very nature, a ‘subsistence! use is something done only by Native and non-Native residents of 'rural' Alaska. Although the Report included such larger bush communities as Dillingham, Bethel, Nome and Kotzebue in the rural definition, it added that the rural character of any community was not necessarily "static" - clearly assuming that population growth and/or socio- economic development might, over time, remove it from the preferential category.'® The following excerpts from the text of Title VIII describe the reality in Alaska, the authority of the Congress and the policy enacted: Section 801 - Congressional Findings: "...the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, on the public lands and by Alaska Natives on Native lands is essential to Native physical, economic, traditional and cultural existence and to non-Native physical, economic, traditional and social existence." [Because of the dependency of rural residents on such resources, the absence of alternative food supplies, and the increasing pressure of human populations,] "...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." Section 802 - Policy: "...nonwasteful subsistence uses shall be given preference on the g P public lands over other consumptive uses..." 'SCh. 151 SLA 1978. ‘Senate Report #413, 96th Congress, Ist Session, 1979, p. 233. 14 Section 803 - Definition: "...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." Section 804 - Preference: "...the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes."!” However, in enacting protections of subsistence on those lands owned by the United States, the Congress did not want to encourage two separate and conflicting systems of fish and game management: one administered by the Secretaries of the Interior and Agriculture on public lands and the other operated by the state government, under different regulations, on state and private lands. Having two levels of government trying to regulate highly mobile animals according to intricate patterns of land ownership did not make sense. In response to specific requests from Juneau, Section 805 (d) therefore offered the state government the option of continuing to regulate subsistence on federally-owned public lands (in addition to the State's own jurisdiction over state and private lands), if the Alaska Legislature would enact and implement within one year "...laws of general applicability which are consistent with and which provide for the definition, preference, and participation specified..." in the federal law.'* If Juneau would impose the rural subsistence preference throughout Alaska, the state government could continue to regulate fish and game on all lands. This “opt-in” provision has been described by some as an exercise in “cooperative federalism.” ANILCA, with its rural preference on the public lands and its management incentive for statewide compliance, thus became the legal foundation of federal subsistence policy in Alaska. It was the principal mechanism by which the Congress substituted statutory protections of subsistence for the aboriginal hunting and fishing rights it had extinguished in ANCSA. E. State Compliance with ANILCA (1981-1989) The subsequent nine-year period of state compliance with Title VIII of ANILCA was confused and discontinuous. The 1978 state subsistence law had not specifically limited the definition of "subsistence uses" to rural residents. So the one-year grace period following federal enactment began with the state out of compliance, and it was clear that Juneau would have to act promptly if it wished to retain statewide regulatory authority. But during its 1981 session, the Alaska Legislature failed to amend its statute. As a consequence, the Boards of Fisheries and Game jointly adopted a regulation in 1982 that added the rural residency standard to the state's definition of "subsistence uses."'? That strategy proved insufficient when the Alaska Supreme Court, ruling three years later in Madison v. Alaska Department of Fish and Game, threw out the regulation on the ground that the language of the 1978 statute did not specifically authorize the Boards to make such "'P.L. 96-487, December 2, 1980 (94 Stat. 2371). "Ibid. "5 A.A.C. 99.010 15 a rural limitation.”” It was clear that, if the state was to comply with ANILCA, it would have to do so by legislative, not regulatory, action. In 1986, the Alaska Legislature finally amended its subsistence statute to limit the definition of "subsistence uses" to residents of "rural areas," thereby complying with Title VIII. But in so doing, it unwittingly created another legal tangle by defining "rural area" as "a community or area of the state in which the noncommercial, customary and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy..."" 1. A Challenge to State Compliance: Ballot Measure 7 (1982) Shortly after the state's first attempt at compliance by regulation, a coalition of individuals and groups opposed to the subsistence preference gathered enough petition signatures to place a "subsistence repeal" initiative on the 1982 general election ballot. If adopted by a majority of the votes cast, Ballot Measure 7 would have prohibited state law from giving a subsistence preference based on virtually any criterion: This proposal would, for fishing, hunting, or trapping for personal consumption, prevent classifications of persons on the basis of economic status, land ownership, local residency, past use or dependence on the resource, or lack of alternative resources. It would, as does existing law, also bar classifications by race or sex for any taking of fish and game. It repeals existing provisions of the Fish and Game Code which provide for, or relate to, subsistence hunting and fishing.” Interests behind the initiative, including several sport groups, established themselves as Alaskans for Equal Fish and Game Management. Those favoring the preference, including most Native organizations, organized as Alaskans for Sensible Fish and Game Management. Both sides concentrated on radio and television spots, newspaper ads, mass mailings and public speaking engagements. Many candidates for state office found themselves pulled into the bitter campaign on subsistence. On November 2, 1982, Ballot Measure 7 was defeated. Out of 191,449 votes cast, 111,770 (58.4%) voted down the initiative. As expected, the remote bush voted strongly against (80.5% to 19.5%), as did Southeast, including urbanized Juneau, (70.5% to 29.5%). The Kenai/Valdez/Whittier area rejected the initiative by a closer margin (55.7% to 44.3%), as did the Railbelt/Highway region (55.5% to 44.5%). Two areas approved the initiative: Mat- Su (52.7% to 47.3%) and Fairbanks and its outskirts (52.7% to 47.3%). Significantly, the 77,766 voters of Anchorage (40.6% of all votes on Measure 7) rejected the initiative (52.3% to 47.7%).3 The 1982 repeal initiative had at least three long-term consequences. First, it temporarily took the issue of subsistence out of the hands of officeholders, bureaucrats and lawyers and gave it to the electorate, raising mass awareness. Second, it helped to form rather stable °696 P. 2 168 (1985). 1Ch. 52 SLA 1986, A.S. 16.05.940. tate of Alaska, Division of Elections, Sample Measure Ballot, General Election, November 2, 1982, Ballot Measure No. 7, Initiative No. 80-08. State of Alaska, Division of Elections, General Election, November 2, 1982, Bonds and Measures, pp. 022.00001 - 022.00007. 16 pro-subsistence and anti-subsistence interest groups that have continued the same fight in other political and legal arenas during the ensuing decade. Finally, the high voter turnout, particularly in rural areas, affected other races. It was widely understood that Ballot Measure 7, in combination with other issues (e.g., a proposition to move the state capital) had contributed significantly to the election of a Democratic governor. This perceived effect of Native voting made many non-Native political leaders reluctant to submit a subsistence constitutional amendment to the voters in more recent general elections. 2. The Problem of Defining "Rural" In 1980, ANILCA had given a subsistence preference on the public lands to residents of rural communities but had not included a statutory definition of the word "rural." In 1986, the Alaska Legislature complied with the federal law by enacting the rural limitation, but it additionally defined "rural" Alaska as those areas where hunting and fishing for food was a "principal characteristic of the economy..." In order to implement the state's rural preference, the Boards of Fisheries and Game then had to make regulatory determinations of which specific communities met that criterion. During that process, one of the areas determined not to be rural was the entire Kenai Peninsula. The Kenaitze Indian Tribe, objecting to being excluded from the subsistence preference, brought suit in U.S. District Court, claiming that the state statute's definition of "rural" was inconsistent with the intent of Congress in ANILCA.” In July, 1987, the trial court found against the plaintiffs, who promptly appealed. On October 24, 1988, the Ninth Circuit Court of Appeals reversed, holding that the commonly understood meaning of "rural" is an area that is "sparsely populated, where the economy centers on agriculture or ranching." It added: "More broadly, rural is the antonym of urban and includes all areas between cities and towns of a particular size.""° While legal scholars were uncertain of the exact standard the appellate court wanted the state to use, most felt that, whereas the state law's definition had been socio-economic in nature, the federal law's definition was now held to be basically demographic. The immediate result of Kenaitze was that, more than a year before McDowell v. State of Alaska, the state was technically out of compliance with the federal law because of the different definitions of "rural." This means that, even if the Legislature and the voters were now to amend the Alaska Constitution to permit a rural subsistence preference, the problem of defining "rural" would still have to be solved: 1) by legislative change of the state's definition to conform to Kenaitze; 2) by congressional change of ANILCA to define "rural" as the Alaska Legislature did in 1986; 3) by coordinated legislative and congressional action enacting a new, mutually agreed-upon, definition in both federal and state laws; or 4) by some combination of demographic and socio-economic criteria that would pass muster with both state and federal courts (if, indeed, this last option is at all possible). But this battle over semantics reveals a larger historical implication of the rural preference: regardless of whether one defines the term by the number of people in a community, the nature of its economy, or a combination of the two, it is inevitable that some communities that are initially in the "rural" category will become "non-rural" over time - because of population growth, socio-economic development, or both. As noted above, statements in the legislative history of ANILCA indicate that Congress accepted such acculturation (and consequent loss of the preference) as inevitable: **Kenaitze Indian Tribe v. State of Alaska, No. A86-367. achame ncaa amc Vora On eas **Kenaitze Indian Tribe v. State of Alaska, 860 F. 2d 312, (9th Cir. 1988). 17 This Act is not...predicated on the philosophy that the historic way of life of the Native people of Alaska can, or will, or should be perpetuated into the future for all time by the actions taken by this Congress...This legislation recognizes, but makes no value judgment concerning, the processes and forces of social change which are transforming the historic culture of the Native people of Alaska. Congress can, however, give Native people the opportunity to decide for themselves the rate at which acculturation will take place.” However well-intended, that last assumption is wrong. Native villagers have traditionally had little or no control over the in-migration of non-Native populations or over the socio- economic changes that result therefrom. When the historical disruption occurs, it simply falls on them. As described previously, the result of significant non-Native settlement entry is usually a combination of increased competition for fish and game, greater regulatory restrictions, and lowered subsistence productivity - all without an equitable distribution to the Native residents of the benefits of a developing cash economy. But on top of that, any definition of "rural" means that, if the changes are great enough, an entire community may fall out of the subsistence preference, taking with it a relatively intact enclave of Native people whose permission for the "assimilation" no one has asked. That is what happened to the Kenaitze Indians, who are now a small ethnic minority surrounded by a larger non-Native community. Indeed, sizable Native enclaves, the ancestors of which were once the areas' only inhabitants, continue to maintain their cultural identities inside predominantly non-Natives places such as Ketchikan, Juneau, Sitka, Cordova, Seward, Kodiak and elsewhere. What many Native people have reluctantly concluded from this is that the ANILCA rural preference, which was the best the Congress would do in 1980, was conceptually flawed from the outset. Not only does it threaten the long-term protection of Natives in rapidly- growing "transitional" bush communities (e.g., Bethel, Nome, Kotzebue and Barrow), but it offers no hope for many "urban" Natives who, while they may hold tenaciously to their subsistence cultures, have either moved out of their home villages or watched those traditional communities be swallowed by non-Native urbanization. This has led a significant portion of the Native community to favor congressional amendment of ANILCA to provide some type of Native, "Native Plus" or tribal preference -because they regard "rural" as a slow death warrant for subsistence. F. The End of State Compliance 1. McDowell v. State of Alaska (1989) The nine-year period of state compliance with Title VIII of ANILCA - confusing and disrupted as to method, politics and definitions - came to an abrupt halt on December 22, 1989, when the Alaska Supreme Court, ruling in McDowell v. State of Alaska, struck down the 1986 state subsistence statute as unconstitutional. The suit had been brought in 1983 by opponents of the subsistence preference who had been active in the previous year's failed Ballot Measure 7. The Superior Court had ruled against the plaintiffs in January, 1988, but two years later the Supreme Court reversed on appeal. The majority opinion found that the state law's rural preference violated three provisions of Article VIII of the Alaska Constitution: Section 3, which reserves fish and wildlife "...to the people for their common use...;" Section 15, which prohibits any "...exclusive right or **House Report No. 1045 (Interior Committee on H.R. 39), 95th Congress, 2nd Session, Part I (1978), p. 187. 18 special privilege of fishery...;", and Section 17, which requires that state laws and regulations governing the use and disposal of natural resources "...apply equally to all persons similarly situated." While a subsistence law that protects individuals who live off the land would be acceptable, the court held that broadly defining that group by geography of residence was not. It noted that many urban Alaskans could legitimately claim to be subsistence users, while many rural residents could not, and suggested that "...a classification scheme employing individual characteristics ..." (emphasis added) would be more likely to pass muster.”’ The Superior Court, to which the case was remanded for implementation, ruled that McDowell had struck down only the rural resident standard for defining subsistence users. The rest of the 1986 statute, giving preference to subsistence itself, over other uses, remained intact. This led directly to the current "all Alaskans" subsistence policy: the peculiar situation of according a legal preference to every one of Alaska's 550,000 residents.”* 2. The Federal-State Impasse As a result of McDowell, one of the participants in ANILCA’s “cooperative federalism” provision had been pulled out of the arrangement, and the State of Alaska was now caught between its own constitution and the federal law. The invalidation of the rural preference immediately put the state out of compliance with Title VIII of ANILCA, and it had no constitutional means of re-establishing conformity. If Juneau could not figure out a strategy to resolve the impasse, it would lose its authority to regulate fish and game on the public lands, and dual management would ensue. Accordingly, the state had asked for, and had been granted, a stay of the McDowell decision's regulatory effect until July 1, 1990. The most commonly discussed options for resolving the impasse were: 1) amendment of the Alaska Constitution (by a two-thirds vote of both houses of the Legislature and a majority vote in a subsequent state general election) to permit a state law of general applicability complying with Sections 803 and 804 of ANILCA, plus enactment of such a statute; 2) amendment of Title VIII of ANILCA to make its regulatory standard conform to the state Supreme Court's interpretation of the Alaska Constitution; 3) a combination of state and congressional action to enact a third, mutually-agreed-upon, standard in both federal and state laws; or, 4) amendment of ANILCA (under the supremacy clause of Article VI of the United States Constitution) to preempt the Alaska Constitution and to give the state the choice of implementing the federal rural preference on all lands in Alaska or having the United States do so. Anti-subsistence interests, having succeeded in removing the rural preference from state law, were now determined to eliminate it from the federal statute; and they began their effort by judicial, rather than congressional, means. On June 22, several of the plaintiffs in *7Opinion 3540, December 22, 1989, McDowell v. State of Alaska, Supreme Court File $-2732; 785 P. 2d 1 (Alaska 1989). *Alaska Superior Court (Third Judicial District, Palmer), Memorandum of Decision Severing Unconstitutional Portions of Statute from Remainder of Statute, Case No. 3AN-83-1592 Civil, June 20, 1990. 19 McDowell v. State of Alaska filed suit in U.S. District Court challenging the federal constitutionality of Title VIII of ANILCA.” Pro-subsistence groups (mainly Native organizations and communities under the aegis of the Alaska Federation of Natives) cautiously opted to support a constitutional amendment and state reassumption of regulatory authority, provided that Juneau conduct a thorough review of subsistence policy and address the inherent weakness of the rural preference. Anti-subsistence interests strongly opposed any change of the state constitution. Having successfully removed the rural preference from state law in the courts, they were not about to let it back in through legislative and electoral action. But regardless of what private interests thought, the problem was the state's. The impasse, after all, was between state law and the federal statute, and the consequences of non-compliance fell on Alaskan management. Only state action could resolve it. The question was whether the Legislature would act. Because statewide general elections occur in November of even-numbered years, 1990 became the first target for state constitutional action, a process repeated in 1992. During the 1990 regular legislative session, several bills proposing constitutional amendments, including one authored by Governor Cowper's administration, were introduced.*° Hearings were held, conflicting testimony received and alternative language debated. Newspapers urged legislative action to place a constitutional amendment on the general election ballot, as did the Governor, the Native community, the Congressional Delegation, and federal agency officials. The U.S. agencies charged with enforcing the ANILCA preference on public lands (the Departments of the Interior and Agriculture) clearly preferred to avoid a federal regulatory takeover after July 1. Faced with additional workload and legal responsibility in a time of severe budget deficits, Secretary of the Interior Manuel Lujan repeatedly urged the state to resolve the problem through legislative action complying with the federal law.*' But state action was by no means assured, and on April 13, 1990, the U.S. Fish and Wildlife Service published a Federal Register announcement of "Intention to Propose Interim Rules Implementing Title VIII of the Alaska National Interest Lands Conservation Act," inviting public comment.” On May 6, the Alaska House of Representatives failed, by a vote of 20-20, to adopt a bill to submit a subsistence constitutional amendment to the voters. (Passage would have required a 2/3 majority: 27 votes.) Subsistence legislation on the Senate side never made it to the floor, remaining bottled up in the Judiciary Committee. On May 8, just 53 days before the takeover deadline, the Second Session of the Sixteenth Alaska Legislature adjourned without taking action on subsistence. Reaction from the Governor, the Congressional Delegation, the Interior Department, and the media was dismay. Some legislative opponents of a constitutional amendment argued that, even if two-thirds of both houses agreed to put such a measure on the ballot, a majority of the electorate would not vote for it. A statewide public opinion poll, however, showed a clear majority Sam E. McDowell, et al., v. United States, F90-034 Civil (1990). *°sixteenth Alaska Legislature, Second Session. See, among other bills, HJR 88 (Governor), SCR 39, H.B. 415, HJR 74, HJR 90. 4'See Lujan speeches to Subsistence Summit of Alaska Federation of Natives (April 10, 1990) and Anchorage Chamber of Commerce (April 11, 1990). See also Lujan: June 20, 1990 letter to Governor Cowper. 3250 CFR Part 36, Federal Register, Vol. 55, No. 72, April 13, 1990. 20 in favor of it.** The opposition also argued that another ballot proposition on subsistence would produce a bitter and divisive electoral campaign, pitting angry interest groups against one another. Mixed with all this were partisan political considerations: 1990 was an important electoral year, and no one could forget the 1982 voter turnout on Ballot Proposition 7. Many Republican leaders, regardless of how they felt on the substance of the issue, dreaded seeing another Democrat elected governor on the coattails of the subsistence issue. On the question of how to otherwise resolve the federal-state impasse, some anti- subsistence legislators favored congressional action to get rid of the rural preference in ANILCA. Alaska's Congressional Delegation responded that such a strategy could boomerang against the state: that the Congress was highly unlikely to renege on its commitment to protect subsistence and that reconsidering any part of the 1980 law would open all its land and resource provisions to further control by national interest groups. The Delegation urged that the issue be resolved by the voters in Alaska and warned of the impending loss of state regulatory authority if no action were taken. Now the Department of the Interior (U.S. Fish and Wildlife Service) issued draft temporary regulations for federal management of subsistence, to take effect after July 1 if there were no political resolution of the conflict. To the dismay of pro-subsistence interests, however, the proposed rules defined the term "public lands" in ANILCA to exclude marine and navigable waters (thereby exempting almost all fish from federal jurisdiction and the protection of the rural preference). Arguing that the Congress had never intended to leave 60 percent of rural Alaska's subsistence diet unprotected, subsistence groups felt that the federal "takeover" was purposely toothless: that the agencies were asserting jurisdiction over nothing but hunting on federal lands in response to pressures from commercial and sport fishing interests and the state government. 3. The First Special Legislative Session (1990) On June 8, Governor Cowper called the Alaska Legislature back into special session, to convene on Monday, June 25, for consideration of a subsistence constitutional amendment and other subsistence provisions that the administration would introduce. Strong pressure for a state resolution of the impasse came from the federal government. On June 20, Secretary Lujan wrote to the Governor, issuing a clear warning: ... McDowell v. State of Alaska...has made it impossible for the State to maintain a subsistence program meeting all of the requirements of Title VIlIl...As a result, on July 1...I will be compelled to implement a federal program to ensure that subsistence uses are given a preference on the public lands. ... The subsistence regulations proposed by the Department of the Interior are temporary. They...represent the minimum extension of Federal authority necessary to fulfill the statutory obligation...Absent...[a] high degree of cooperation..., we will be faced with the prospect of either closing public lands to non-subsistence uses of fish and wildlife or further extending Federal authority to comply with the mandates in the law...Federal authority may have to be extended, predicated on the Federal government's constitutional mandate to protect Native American interests Dittman Research Corporation, March 13-18, 1990, unsponsored random statewide phone poll of 547 respondents, (4.5% margin of error): 51% supporting constitutional amendment, 34% opposing, 15% undecided. Reported by Associated Press, April 3, 1990. 21 and our fish, wildlife, and other natural resources.** Three days before the special session, Governor Cowper sent to the legislative leadership his proposed language to amend the constitution: Consistent with the sustained yield principle, the legislature may grant a preference in the taking of fish and wildlife and other renewable natural resources for subsistence uses by residents of rural areas and, when necessary to assure sustained yield or to protect subsistence uses, may allocate those resources on the bases of customary and direct dependence, local residence and the availability of alternative resources.*° In addition, the Governor's bill would "...validate, ratify, and reinstate state subsistence laws..." that had been nullified by McDowell v. State of Alaska. It also included a provision whereby the constitutional amendment, if approved by the voters in November, 1990, would automatically come up for re-vote on the 1994 general election ballot (a condition that was included to make the measure more palatable to 2/3 of both houses). At the opening of the special session, Governor Cowper appeared before a hearing of both houses and advocated his proposed solution. U.S. Senator Ted Stevens, who had consistently appealed for a constitutional amendment to avoid a federal takeover, arrived in Juneau and strongly supported the Governor's package in the joint public hearing, as well as in private meetings with lawmakers. Congressman Don Young also traveled to Juneau from Washington, D.C., to press for a constitutional amendment and to warn of the consequences of state failure to resolve the impasse. Committee hearings proceeded, taking testimony for and against the Governor's legislation and on other subsistence bills introduced by legislators. On June 28, after extensive committee work, drafting and floor debate, the Alaska Senate adopted a constitutional amendment similar to the original Cowper formula: Consistent with the sustained yield principle, the legislature may grant a preference to and among Alaska residents in the taking of fish and game for subsistence uses on the basis of community or area characteristics, geography, customary and traditional use, direct dependence, local residence or the availability of alternative resources.** The Senate action also pushed the automatic re-vote forward to 1992. In addition, it enacted bills to reinstate the nullified subsistence laws, to create a two-year Subsistence Review Commission, to petition the Congress for an ANILCA amendment allowing the state to define "rural," and to empower the state Boards to restrict the out-transport of harvested fish and game from local areas. The Senate recessed and waited. The Alaska House of Representatives then sat for ten additional days, relieved only by a brief holiday recess. The July 1 federal deadline came and went, and the Interior Department continued to hold, pending state action. On July 8, the House finally failed by one vote (26 in favor, 14 opposed) to obtain a 2/3 majority for a constitutional amendment. “Lujan, Manuel J., U.S. Secretary of the Interior, to Governor Steve Cowper, June 20, 1990. June 22, 1990 letter from Governor Steve Cowper to House Speaker Sam Cotton, containing unnumbered House Joint Resolution to be introduced by the Rules Committee at the request of the Governor. Anchorage Daily News, Friday, June 29, 1990. 22 The Legislature adjourned, having resolved nothing. The federal-state impasse remained precisely where it had been for six months. The 1990 special session was a critical turning point in modern Alaskan politics. Anti- subsistence interests had won another major victory on the state level, and they now vowed to target the federal law. Pro-subsistence interests had to accept the fact that there would be no prompt decision by the voters on the rural preference and settled in for an indefinite period of dual management. The federal takeover of subsistence regulation on the public lands now began; and although its initial regulations excluded marine and navigable waters, it was widely assumed that federal jurisdiction would expand over time, through administrative and judicial action. The larger historical reality was that the state government could not resolve its most volatile public policy issue, and the divisions among Alaska's peoples deepened. 4. The First Hickel Bill (1991) Following the 1990 special session, the federal presence took hold in the form of a five- person Federal Subsistence Board representing the Interior Department's Bureau of Land Management, National Park Service, U.S. Fish and Wildlife Service, and Bureau of Indian Affairs, and the Agriculture Department's U.S. Forest Service. Interim federal subsistence regulations, permanent regulations and an Environmental Impact Statement went through processes of drafting, publication, public comment and adoption. On November 6, 1990, Walter J. Hickel was elected Governor of Alaska. During the June special session, this former governor had played a key role in defeating the constitutional amendment, traveling to Juneau to oppose it in public testimony and private meetings.*” As a candidate in the general election, Mr. Hickel had campaigned against the idea of a constitutional amendment and was supported by anti-subsistence groups. He took office on December 3, vowing that resolution of the subsistence impasse would be a top priority of his administration. In February, 1991, Governor Hickel formed a 10-member Governor's Subsistence Advisory Council, composed of state agency heads and _ public representatives. His original charge to the group was to design a solution to the federal-state impasse that would return all fish and game regulation to the state, without amending either the Alaska Constitution or ANILCA. When this quickly proved impossible, the Council was directed to design a system that would comply with the Alaska Constitution, without regard to the federal law. On September 13, 1993, Governor Hickel announced that his Advisory Council had completed its work and that his draft bill was ready. Its key provision defined a subsistence user (i.e., the person eligible to receive an individual subsistence license) as one who had lived in Alaska for at least one year and who, during at least three of the preceding five years, had met the following six criteria of a subsistence lifestyle: taking fish and game by methods characterized by "efficiency and economy of effort, cost and transportation"; utilizing wild fish and game that are "near, or accessible in an efficient and economical manner from, his or her residence"; relying "for subsistence purposes upon a wide diversity of wild renewable resources"; *’Anchorage Daily News and Anchorage Times, Tuesday, June 26, 1990. 23 deriving "substantial economic, cultural, social or nutritional elements" of his or her life from subsistence; employing "knowledge of fishing and hunting skills, values and lore handed down from generation to generation"; and, personally consuming at least 200 pounds of wild fish and game per year (whether taken under general hunting, sport fishing, personal use fishing or subsistence regulations). The Governor's bill also contained a number of provisions allowing the Boards of Fisheries and Game to limit subsistence by geography and species: to delineate areas of the state where subsistence is not a "principal characteristic of the economy," prohibiting therein subsistence hunting and fishing by anyone and requiring residents of such "non-subsistence use areas" to travel elsewhere to practice subsistence; to designate species not consistently used for subsistence for the preceding 40 years as non-subsistence animals; to exempt all "non-wild" (hatchery-reared) fish stocks from subsistence uses, regardless of whether local residents depend on them for food; to exempt from the subsistence preference any fish stocks commingled with other stocks in open waters, allowing commercial fishermen to take them before they separate and enter Alaska's rivers, regardless of the subsistence dependence of upriver villages on them; and, to set up a subsistence use area for each fish stock and game population, within which any subsistence product would have to be consumed ("eat it where you kill it"), with exceptions for purposes of sharing, customary trade or barter. In addition, the Hickel bill proposed a preference that required the Boards, whenever resources could not satisfy all uses, to give subsistence users a "reasonable opportunity" to take fish and game - a significantly lower management standard than ANILCA's guarantee that "...utilization of the public lands in Alaska is to cause the least adverse impact on rural residents who depend upon subsistence uses..."** The administration's intent was now clear. In addition to exempting large fish stocks, game populations and geographical areas from subsistence uses, and in addition to establishing out-transport limitations, it wished to enact on state and private lands a system of individual subsistence permitting based on "lifestyle," thereby attempting to satisfy the Alaska Supreme Court. Thereafter, it planned to put forward this system as a political alternative to the rural preference in a campaign to persuade the Congress to amend ANILCA. If the two-part strategy worked, the State would regain unitary fish and game regulation by being in compliance with federal law - because the federal law would have been changed to fit the Alaska Constitution, rather than vice versa. Everyone recognized that ANILCA's rural preference and the Alaska Constitution were irreconcilable, but the Hickel administration's definition of which had to yield to the other ““Office of the Governor, Legislation and Sectional Analysis: Work Draft, September 13, 1991. 24 was very different from that of subsistence interests. This remains the sticking point of the impasse to the present day. On October 15, 1991, Governor Hickel met with the Board of Directors of the Alaska Federation of Natives to discuss his draft bill. He was candidly told that they would not support it. In addition to opposing its many large exemptions from the preference, the Native community found the administration's whole approach to subsistence inadequate: The cultural and economic impacts of individualized eligibility: Native people feared that an individualized permitting system would be one more example of how a culture of rights insistently disrupts a culture of relationships. The individual is not the critical unit that drives the real world of subsistence. Personal property rights, represented by licenses, are antithetical to traditional family arrangements and networks of sharing. Permitting would impose on Native communities an artificial class structure, dividing residents into subsistence people and non-subsistence people ("traditionals" and "moderns"), based on the possession of a piece of paper issued by non-Natives. Fear of losing a subsistence permit, for failure to meet the lifestyle criteria, would become a disincentive to participation in the wage economy and to absence from the village. People would no longer be able to combine and balance their livelihoods. The bottom line was that subsistence licensure would inevitably force the most important components of modern Native culture into mutually exclusive choices, effectively dismantling the mixed economies of village Alaska. The policy precedent of individualized eligibility: Native people also feared that permitting, even if its initial criteria were somehow acceptable, would open an historical door that could never be shut again. They knew full well that it was the policy of individualizing land ownership and resource use that had stripped the South 48 Indian tribes of virtually everything in the late 19th and early 20th centuries. As long as the law provided some form of group subsistence preference (at least "rural," but preferably "Native"), there was safety in numbers; but once the precedent of individual eligibility had been set, the Legislature and the Boards, controlled by anti-subsistence majorities, could steadily tighten the criteria by which it was applied. Even if the process began with such standards as "pounds consumed," "distances traveled" and "values handed down," the eventual criterion of a subsistence lifestyle was likely to be cash income. It might take years, but when Alaska finally reached the point at which individual subsistence permitting was based on IRS returns, the forced bifurcation of mixed economies would be complete, the subsistence-eligible population would be minimized, and history could take its "natural course" in gradually eliminating the villages. The unenforceability of the lifestyle criteria: A subsistence preference based on geographical residence is relatively easy to implement because a person can document the fact of where he or she lives. But how could public agencies, charged with licensing something as controversial as subsistence, apply the six lifestyle criteria to prove or disprove the honesty of any application? Did most people really know whether they personally consumed 200 pounds of wild fish and game per year during three of the past five years, and how could a given applicant - whether in Anchorage or Tuntutuliak - prove that he or she had done so? By what demonstrable standard could government apply such terms as "accessible," "efficient," "economical," "diversity," "values and lore?" That kind of law would create a bureaucratic nightmare and invite fraud. The Hickel administration's contention that such problems could be minimized by depending on applicants to adhere to an "honor system" was seen by the Native community as questionable. The unspoken purpose of the 200 pound standard: If eligibility for a subsistence license were limited to people who had personally consumed at least 200 pounds of wild fish and game per year during three of the preceding five years, and if people were honest in filling out their applications, a significant percentage of village residents would not qualify. The 25 only people who could satisfy such a zealous quest for "true subsistence users" would be those whose diets were almost entirely composed of wild foods. Ignoring the reality of mixed economies, the law would immediately toss out thousands of people who, even though they had been heavily dependent on subsistence, had unwittingly combined cash and subsistence incomes sometime during the preceding half-decade and fell short of the 200 pound standard as a consequence. Clearly, the purpose of the whole exercise was resource allocation. Cutting so many rural residents out of the subsistence preference would free up fish and game resources for redistribution to the urban majority. The policy goal was not the reduction of post-McDowell eligibles under the "all Alaskans" policy, as the State claimed, but the reduction of pre-McDowell eligibles under the federal law. The out-transport restrictions: "Eat it where you kill it" addressed transportation, not taking. It would allow any Alaskan resident to enter any subsistence use area in the state and to take fish or game for "subsistence" purposes, as long as he or she either consumed the meat within the use area or dropped it off at some needy local community before leaving - an arrangement that villagers found absurd and demeaning. (It seemed to combine non-Native "catch and release" with Native "welfare," neither of which had anything to do with subsistence.) Moreover, if the only permissible exceptions to the out- transport restrictions were for sharing, barter and customary trade, didn't the exceptions swallow the rule? After all, subsistence is, among other things, a system of economic distribution based on kinship and personal obligation; and if the loopholes in "eat it where you kill it" were to be that big, why include the provision at all - unless the gesture had symbolic political value with anti-subsistence constituencies? The extent of regulatory discretion: The quality of a system is no better than the real intentions of the people who run it. Since statehood, subsistence interests had seen one law after another come down from the Legislature for implementation by the Boards of Fisheries and Game. And time after time, they had watched the Boards, controlled by sport and commercial interests, interpret such laws so as to provide as little protection of subsistence as was legally possible. Board implementation had occasionally been so narrow as to violate the letter of the law, requiring expensive litigation to compel adherence. Although the tradition had grown up of always having some subsistence representation on the Boards, such members were always outnumbered and usually outvoted by sport and commercial interests. What many Native leaders now sought was a system that imposed clear, unavoidable standards of subsistence protection, and they were not about to trade ANILCA for a highly discretionary state system implemented by bodies that they had come to view as rigged. The law's questionable constitutionality: Among several provisions unlikely to pass constitutional muster with the Alaska Supreme Court, the outlawing of subsistence takings in "non-subsistence use areas" appeared to be a disguised version of the same problem that had caused the Court to strike down the rural preference in McDowell (i.e., denial of equal subsistence rights to a whole class of citizens defined only by place of residence). The same problem would likely arise regarding the out-transport restrictions. Geographical distinctions seemed to pervade the bill. In addition, using an eligibility standard based on three of the past five years tested past, not present, dependence on subsistence, and might well violate the "common use" clause. The same problem applied to the 40-year standard for designating non-subsistence species. Such constitutional questions were particularly serious because the bill's lack of a "severability" clause meant that if any part of it was subsequently struck down, the whole thing would fall, leaving Alaska with no subsistence law at all. The purpose of non-subsistence use areas: Even if the outlawing of all subsistence takings in large geographical areas of the state had been constitutional, its use as a policy was indicative of the state's attitude toward the very idea of a preference. When McDowell 26 nullified the rural standard for defining subsistence users, leaving intact the preference for subsistence over other consumptive uses, it created the anomaly of the "all Alaskans" policy. Such an arrangement was fine with some opponents of subsistence who felt that, if they could not get rid of the preference itself, they could at least open it to everyone. The problem was that a subsistence preference enjoyed by every Alaskan could decimate sport and commercial takings in certain highly competitive areas of the state. If, for example, the 200,000 residents of Anchorage had a preferential right to fish with subsistence nets on the readily accessible Kenai peninsula, their takings might seriously damage the lucrative commercial industry in Cook Inlet, as well as the world-class rod-and-reel sport fisheries on the rivers and beaches of the peninsula. The state's answer to this was to make such hotly contested places off limits to subsistence, regardless of the economic dependency or traditional practices of any individual or community that might need to engage in subsistence therein. Quite apart from the question of its constitutionality, that looked to subsistence people like sleight-of-hand: the statutory granting of a statewide preference in theory, followed by the regulatory denial of it in practice - but only in those cases where it was truly needed. While Native groups clung to the idea that a preference is something real - that it actually protects subsistence-dependent communities against overwhelming competition for scarce resources - it became clear that the state administration was working with a looser definition of the term. ANILCA, the real issue: In the wake of Kenaitze and McDowell, there were two, and only two, legal problems that Alaska needed to fix: the federal-state impasse over the preference and the need for a common definition of "rural." Instead of doing that, the Hickel bill created a whole new management system - and one that was freakishly awkward in the bargain. Even if this new plan had somehow proved both workable and constitutional, its enactment would not have brought Alaska into compliance with ANILCA or returned unitary fish and game management to the State. It would, however, have been the first step in the administration's strategy to amend Title VIII, and the Native community was determined to oppose that agenda at all costs. While Natives saw the rural preference as flawed - and would have welcomed congressional action to improve it - they clung to the federal law in the face of any threat to replace it with something worse. ANILCA was the final bulwark protecting them from a state that refused to provide effective protection of subsistence, and they were determined to defend it in Congress and the courts. The Native community's bottom-line standard for resolving the impasse now came to be articulated as "no net loss." On October 18, 1991, the AFN Convention voted overwhelmingly to oppose the Hickel bill.°° The Governor withdrew his draft from public consideration and went back to the drawing board. 5. The Second Hickel Bill (1992) In November, the Governor appointed a second Subsistence Advisory Council, dropping the state commissioners and adding several new public representatives. The group met nine times in the next four months, and on February 21, 1992, the administration's new bill was introduced in the Legislature.*° The new bill continued to seek a system based on individual lifestyle, rather than the federal standard of rural residency. In order to be eligible to practice subsistence in any specific use area, an individual Alaskan would have to satisfy a Board-created system Alaska Federation of Natives, 1991 Annual Convention, Resolution 91-01. *9S B. 443 and H.B. 552, Second Session, Seventeenth Alaska Legislature. 27 awarding him or her points for fulfilling any or all of seven criteria: the quantity of fish and game he or she had personally consumed during the preceding 12 months (mandatory minimum: 125 pounds); the number of species and groups of species he or she had personally consumed from the use area during the preceding 12 months (mandatory minimum: Board-determined), the number of days he or she took fish and game in the use area during the preceding 12 months (mandatory minimum: 30 days); the number of different months in which he or she took fish and game in the use area during the preceding 12 months (mandatory minimum: four months); the number of weeks in which fish and game taking or processing was his or her principal work effort (no mandatory minimum; maximum considered: 26 weeks); the number of households, other than the individual's, with which he or she shared (giving or receiving) fish and game during the preceding 12 months (no mandatory minimum; maximum considered: ten households); and, whether the person's taking of fish and game occurred solely in the specific use area. As in the first Hickel bill, the individual eligibility criteria were intended to comply with the state constitution, interpreted in McDowell. But in order to give them a more collective flavor, the new bill utilized the mechanism of community "presumptions." It organized all Alaskan settlements into three categories, each with a different process and standard for determining which of its residents were subsistence eligible: Level I: Communities of less than 2,500 population (not part of an urban area) where dependence on subsistence is a principal characteristic of the economy, culture and way of life. All residents were presumed to meet the individual criteria and to qualify for subsistence in that use area. They would not individually be required to sign any statement or application affirming compliance with the criteria. The presumed eligibility of any individual resident could be rebutted "only by clear and convincing evidence." In the bill's final form, this could be done only by the Department of Fish and Game. Level II: Communities of between 2,500 and 7,000 population (not part of an urban area) where dependence on subsistence is a principal characteristic of the economy, culture and way of life. All residents were "rebuttably" presumed to meet the individual criteria and to qualify for subsistence in that use area. Any individual resident who wished to practice subsistence would be required to sign a statement affirming compliance with the criteria. The presumed eligibility of that individual could be rebutted by the Department of Fish and Game by "a preponderance of the evidence." Level III: Communities of more than 7,000 population or where dependence on subsistence is not a principal characteristic of the economy, culture and way of life - plus all persons domiciled outside the specific subsistence use area. Any resident wishing to practice subsistence in a given use area would have to apply individually for a permit and would have to demonstrate individual compliance with the criteria. 28 On March 16, the Legislative Counsel (attorney to the Legislature), responding to a senator's inquiry, issued a written opinion that found at least two substantive provisions of the Governor's bill constitutionally suspect of infringing on equal access: the mandatory minimum standards of individual eligibility and the varying burdens of proof of individual eligibility in the presumptions.*! The constitutionality of several other provisions was seriously questioned by other legal observers, but the state administration pressed on. On March 23 and 24, more than 500 village and regional representatives of the Native community gathered in Anchorage for an AFN- and RurALCAP-sponsored "Subsistence Summit." It concluded that the second Hickel bill had made little progress on the most important problems that had plagued the first, despite the fact that "eat it where you kill it" had been dropped: It still provided the Boards with too much discretion (e.g., to exempt large fish stocks and game populations from subsistence uses). The Boards' discretionary authority to create non-subsistence use areas (where dependence on subsistence is not a principal characteristic of the economy and culture) also remained and was almost certainly unconstitutional. The preference itself continued to substitute "reasonable opportunity" for ANILCA's more protective "least adverse impact" standard. The precedent of individualization, represented by seven eligibility criteria, was still there. (Although the use of community presumptions tried to cover this fact, it failed to produce a real group preference.) Although certain lifestyle criteria (e.g., pounds annually consumed) had been made more realistic, the rebuttability process at Levels I and II and the application process at Level III remained unenforceable, and the bill provided no guidance regarding standards of proof, adjudicatory authority, appeals, record-keeping, staffing or costs. The artifice of applying legal presumptions to entire communities almost certainly breached McDowell's constitutional prohibition against basing subsistence eligibility on residency. Above all, the second Hickel bill, like the first, would not resolve the dual management impasse - because it did not comply with ANILCA any more than it complied with McDowell. The bill thus provided a classic example of what comes from refusing to face up to a hard policy choice: by starting with individual eligibility to satisfy the Alaska Constitution, and then attaching community presumptions as a gesture in the direction of ANILCA, the administration had violated both. The Subsistence Summit unanimously rejected the second Hickel bill, opposed any weakening of ANILCA, and urged resolution of the deadlock through a constitutional amendment. It resolved that, as long as the state refused to comply with ANILCA, the Native community would support full implementation of federal management on all public lands (including waters). “'State of Alaska, Legislative Affairs Agency, Division of Legal Services, memorandum from Legislative Counsel George Utermohle to Senator Lyman Hoffman, March 16, 1992. 29 During the last half of the 1992 regular legislative session, the House and Senate held committee hearings on the Governor's bill. An AFN-sponsored alternative bill” was introduced, as were several versions of a subsistence constitutional amendment.** The Natives' alternative had been drafted to comply with ANILCA by according the federal preference to rural residents, with no exclusion of geographical areas or of fish stocks and game populations customarily and traditionally used for subsistence. But it then added a second-level preference to protect the subsistence practices of urban residents who could qualify by demonstrating community or individual dependence. Like the Governor's bill, it would have required a constitutional amendment because of its use of the residency standard. But, if enacted, it would have resolved the ANILCA impasse, returning fish and game management to the state. Nothing moved. Face-to-face negotiations between the administration and AFN ended in deadlock on May 7. The AEN position was: a constitutional amendment and a rural- preference statute complying with federal law, whether or not accompanied by a secondary urban preference. The Governor's position was: a constitutional amendment requiring that the Legislature "provide for subsistence opportunities," coupled with enactment of his new system in both state and federal law. The sticking point was not just in the operational details of the Governor's bill. It was the fundamental question of whether Title VIII's rural preference would continue as the ultimate standard of subsistence law in Alaska. Since McDowell, that had been the real issue, and it had now come to a confrontation in which either one side would defeat the other or the impasse would continue. On May 12, the Second Session of the Seventeenth Alaska Legislature adjourned, having taken no action on subsistence. 6. The Second Special Legislative Session (1992) On May 27, Governor Hickel called the Legislature into special session, to begin on June 15, for the purpose of enacting his bill. Members of the Congressional Delegation again warned that any attempt to amend ANILCA in Congress would be long, hard and risky to other state interests.“* But the state administration was determined to get an up-or-down vote on its new alternative policy. Although the Governor's proclamation setting the agenda of the special session excluded a constitutional amendment, once the legislators were in session, they could (by a two thirds vote of each house) adjourn and immediately reconvene to consider constitutional language. But rural legislators knew they had little or no chance of reaching that goal. The likelihood of a constitutional amendment had not improved since 1990; if anything, it had deteriorated. The other side even had enough votes to stop the AFN's alternative bill that had been introduced in the regular session. The real question for the special session was whether pro-subsistence forces could muster the votes to block the Governor's plan. The 1992 special session took place against the backdrop of larger political questions than hunting and fishing. To a certain extent, it was an exercise in sectional politics - a geographical showdown over who runs the state. For years, rural Alaska had been able to parlay "safe-seat" constituencies, legislative organization and skilled leadership into political power beyond its electoral numbers, strongly influencing the state's policies and taking home a significant share of its budgetary largesse. Until the Hickel election in “HB. 592, Second Session, Seventeenth Alaska Legislature. “HJR 77/SJR 50 (MacLean/Adams}, HJR 78 (Ivan), HJR 79/SJR 49 (Lincoln/Hoffman), Second Session, Seventeenth Alaska Legislature. “Anchorage Times, June 1, 1992, p. Bl, "Senator Offers Subsistence Strategy." 30 1990, no governor since statehood had been elected without the support of the bush. Now, with reapportionment transferring legislative control to the cities, and an incumbent governor elected by an urban plurality, conservative interests could feel the power flowing in their direction and were determined to prove that the Legislature's Bush Caucus was in eclipse. Many of them had long regarded the subsistence preference as one more discrimination in favor of a coddled minority. In their view, the Hickel bill was not only a way of correcting that injustice, but an opportunity to show, once and for all, who was in charge. Accordingly, they were as determined to keep rural legislators from winning in Juneau as they were to keep rural voters from turning out for a constitutional amendment. Subsistence was also a microcosm of the broader question of state sovereignty versus national supremacy in the federal system. The assertion of state's rights against the interference of the U.S. government, particularly in the control and use of natural resources, had long been a staple of Alaskan politics and did much to drive the statehood movement in the first half of this century. Admission to the Union had been seen by many as a way of throwing off the federal yoke and putting Alaskans in control of their own assets after decades of congressional dominance and exploitation. For some, however, the euphoria of statehood soon gave way to disillusionment over the persistence of federal power - an authority buttressed by ownership of more than 60 percent of Alaska's lands and articulated by laws and regulations that often limited state action and private-sector development. The Hickel administration had come to office in 1990 determined to address what it regarded as the root cause of Alaska's problems, and litigation against the United States quickly became the tactic of choice on several fronts. Thus, the post-McDowell subsistence impasse was only one battlefield on which the state administration had declared a larger war for independence from perceived federal control. In this specific case, the objective was to take Title VIII of ANILCA. The 1992 special legislative session on subsistence lasted eight days, from June 15-22. Constitutional amendment language was an outside possibility in the early days but eventually went nowhere. The Governor's bill (H.B. 599 and S.B. 484), the AFN alternative bill and several bills by individual legislators were introduced. Some became legislative vehicles that went through various modifications and committee substitutes as the session proceeded. Others were quickly shelved. The Governor's remarks to the opening joint session described his bill as a first step in "...a chain reaction that will result in regaining state management of all fish and game resources..." and he added that the Legislature's actions "...will determine whether we have a peaceful Alaska or one torn apart by bitterness and violence." The administration's early testimony concentrated on the need to protect sport and commercial uses from the potential effects of the "all Alaskans" preference. The Attorney General testified that "...The state's subsistence law is like a sieve. Everything passes through. Everyone qualifies." In committee testimony, another administration staff member added that..."If we allowed subsistence nets on the Kenai River, I think we'd have warfare." As to the larger impasse between the state constitution and ANILCA, the Attorney General blamed it on the Natives' refusal to agree to amending ANILCA and concluded: "I really don't think there is an overall, final solution at this time..."*° That became a self-fulfilling prophecy. “Anchorage Daily News, June 16, 1992, AP Wire, "Hickel Pushes Subsistence Bill; Special Session Gets Under Way." 31 The administration also stated, in a publicly-distributed memo from the Attorney General to the Commissioner of Fish and Game, that a subsistence constitutional amendment would have other long-term negative consequences: There is a risk that a subsistence preference enshrined in the constitution would be interpreted to inhibit or prevent development of other resources, such as logging, mining, oil, etc.*° Native leaders responded that this was a scare tactic and that the administration's real concern was not for other resources but for the politics of fish and game allocation. Several hundred Native representatives from regions and villages across the state traveled to Juneau, remaining there most of the week. Dozens of Native elders testified in opposition to the Governor's bill, and a rally of pro-subsistence people was held on the steps of the state capitol, attracting a crowd of more than 500. Native organizations ran a concentrated series of newspaper ads and radio and TV spots to underscore the importance of subsistence to the survival of village communities. The Legislature's free telecommunication service conveyed hundreds of public opinion messages to legislators. While many expressed the views of sport and commercial user groups and urban interests, the majority came from rural Alaskan communities and from Native individuals and organizations. By Thursday evening, June 18, two things had become clear: that any hope of a subsistence constitutional amendment had died in the Senate (where there were only 12 of the 14 votes necessary to consider that option) and that the Governor's bill was not going to pass the House. Because the House could not muster the votes to pass any of the pending bills, and because it was now time to do something, key leaders proposed a compromise that would contain those parts of the Governor's bill that the Legislature could agree were urgent (e.g., creation of non-subsistence use areas, closing perceived loopholes in customary trade of subsistence products, etc.]. House members who opposed enactment of the administration's whole new eligibility system settled for a strategy of giving the Governor certain items from his bill in return for rejection of its most important provisions. The next two days saw the administration negotiating hard for everything it could salvage and a comic interlude involving legislative screaming matches, the abrupt adjournment and immediate reconvening of the House, a brief sit-in by some representatives in the Speaker's office, and the departure of others from Juneau despite unsuccessful attempts by the State Troopers to stop them. By Sunday, June 21, the task of stitching together a final compromise bill was handed to a six-member free conference committee. On Monday, June 22, both houses adopted Conference Committee Substitute for House Bill 601 and adjourned. Despite the fact that the administration had been given certain pieces that it deemed crucial, it could not mask its disappointment over the defeat of its bill - which meant the derailment of its strategy to amend ANILCA. The most important items the Governor got were: 1) delegation of authority to the Boards of Fisheries and Game, acting jointly, to designate as a non-subsistence use area any "...area or community where dependence upon subsistence is not a principal characteristic of the economy, culture and way of life,..." by conducting a factual inquiry based “June 12, 1992 Memorandum to Carl Rosier, Commissioner, Alaska Department of Fish and Game, from Lance B. Nelson and Cheri L. Jacobus, Assistant Attorney General, Alaska Department of Law, File No. 661-92- 0716. 32 on thirteen socio-economic criteria.” 2) application of the subsistence preference by a process in which the Board of Fisheries or the Board of Game first decides whether a harvestable surplus exists for a given fish stock or game population, then identifies the pattern of subsistence uses of that stock or population, and then adopts regulations which provide a reasonable opportunity and expectation of success in subsistence taking and which regulate and eliminate other uses before regulating or eliminating subsistence uses;** 3) delegation of authority to the Boards of Fisheries and Game to regulate "customary trade" in subsistence products, defining such trade as"...the limited noncommercial exchange, for minimal amounts of cash,...of fish and game resources...," exempting from the cash limit the sale of furs and furbearers.” In addition, the Legislature included a three-year "sunset" provision under which certain portions of the 1992 statute automatically disappear on October 1, 1995: the definition of "customary and traditional," the definition of "customary trade," and the procedure by which the subsistence preference is applied by the Boards. It also authorized a thorough review of the statute's regulations, with recommendations for changes in the statute by a representative group to be convened by the Governor prior to September 1, 1994. NOTE: The 1992 special session's decision to allow regulatory creation of non-subsistence use areas occurred in the context of a fierce legal debate over their constitutionality. During committee hearings, one attorney after another testified as to whether this provision would violate the McDowell prohibition against denying Alaskan residents equal access to common use resources on the basis of residency. The Hickel administration, speaking through its Department of Law, stated that the provision would satisfy the courts, while attorneys for the Alaska Federation of Natives predicted that it would be found unconstitutional. On October 26, 1993, State Superior Court Judge Dana Fabe, ruling in Kenaitze Indian Tribe v. State of Alaska, struck it down. The court's opinion was that ..the criteria in AS 16.05.258(c) for determining nonsubsistence use areas effectively re-establish the rural/urban residency requirement struck down in McDowell. The statutory language defining 'rural areas' in the 1986 statute is repeated in the definition of 'nonsubsistence areas' under the 1992 statute...The statute...is plainly discriminatory against residents of nonsubsistence areas. Such a substantially residency-based classification scheme, under McDowell, violates the equal access clauses of the Alaska Constitution.*° At this writing, the decision is on appeal by the state to the Alaska Supreme Court, and the appellate ruling is not expected for several months. But if the Superior Court is upheld, the state government will find itself right back in the nightmarish consequences of its "all Alaskans" subsistence preference. *7AS 16.05.258(c), Section 2. “SAS 16.05.258(a), (b), (f), and AS 16.05.940(36). AS 16,05.940(37). “°Kenaitze Indian Tribe v. State of Alaska, 3AN-91-4569 Civil, Order, October 26, 1993. 33 G. Litigation In some ways, the 1992 special session was a reverse image of that which had taken place two years earlier. Whereas pro-subsistence forces had narrowly failed to adopt a constitutional amendment in 1990, this time it was anti-ANILCA legislation that had been stopped. After 2-1/2 years of maneuvering, the state administration's intention to get rid of the rural preference and the Native community's determination to defend it remained in gridlock. That is where the issue stands as of this writing. Since June 22, 1992, there has been no state legislative action on subsistence. Instead, the battle over the preference has moved to another arena: the courts. What has become clear in the past 22 months is that the state's political resolution of the ANILCA impasse will occur only when every judicial hope of avoiding it has been exhausted - if, in fact, it is going to happen at all. Three cases, among many, articulate the legal confrontation: 1. McDowell v. United States: The Constitutional Challenge to ANILCA In the midst of the first special legislative session on subsistence, several of the individuals and organizations that had succeeded in excising the rural preference from state law (in McDowell v. State of Alaska) turned their attention to its removal from the federal statute. On June 22, 1990, they brought suit (commonly referred to as McDowell II) in U.S. District Court, seeking to have Title VIII of ANILCA struck down for violating the U.S. Constitution. Among other legal issues raised, plaintiffs claimed: that, by giving a subsistence preference to all rural residents and denying it to all urban dwellers, without regard to individual dependency or need, the federal statute discriminated against similarly-situated individual citizens, in violation of the Fifth Amendment's guarantee of equal protection; that many of the terms Congress had used in Title VIII were void for vagueness (e.g., "subsistence," "customary and traditional," "continued viability of all wild and renewable resources in Alaska," "barter," "customary trade" and "rural"), violating the due process guarantee of the Fifth Amendment; that Section 807 of ANILCA, by giving aggrieved rural subsistence users the right to sue in federal court, violated the Eleventh Amendment restrictions on the judicial powers of the United States); and, that Title VIII violated the Statehood Act - which approved the Alaska Constitution (with its guarantees of equal access to common use resources and prohibitions against exclusive resource rights) and stated that Alaska was admitted to the Union on an "equal footing" with all other states).°! On October 6, 1992, the District Court (Judge H. Russel Holland) upheld Title VII, ruling against plaintiffs on every claim. It found that Congress not only has the power to enact a law asserting federal jurisdiction over hunting and fishing on federal lands in Alaska, but that the way it did so in ANILCA was not arbitrary or capricious and did not violate Fifth Amendment guarantees. It further found that ANILCA's terms are clear and understandable. The court dismissed plaintiffs' claims on the Statehood Act, the "equal footing" doctrine and the Eleventh Amendment, for lack of standing (i.e., because such claims could only be brought by the State of Alaska, not by private parties, and because the 5'Sam McDowell, et al. v. United States, F90-34 Civil, Complaint for Declaratory and Injunctive Relief, U.S. District Court, June 22, 1990. 34 state had chosen to steer clear of this suit). Surprisingly, the court then went on to rule on the merits of such claims, if they had been properly brought, finding against them. The decision was a complete victory for the defendant United States, for the defendant- intervenors Alaska Federation of Natives and Kenaitze Indian Tribe, and more generally for subsistence interests throughout Alaska. As of this writing, the McDowell II plaintiffs have appealed the District Court's decision to the Ninth Circuit, an action scheduled for oral argument on June 9, 1994, with a written decision coming thereafter. Plaintiffs clearly have an uphill battle in their appeal, in light of the District Court's unequivocal rejection of their position. At whatever point the judicial process is concluded (at the Appeals Court or even the U.S. Supreme Court), it is likely that Title VIII of ANILCA is here to stay. 2. State of Alaska v. Morry: Diverging Regulatory Systems This important state case is an example of how the gap between federal and state subsistence regulations has been steadily widening since McDowell I. In 1983, after having been arrested by state officials for illegally taking a grizzly bear, Riley T. Morry, an Inupiat hunter and resident of the Native village of Anaktuvuk Pass, sued the state, claiming that the regulations under which he had been charged were procedurally invalid.** More importantly, he made three additional claims with broader policy implications. The first (added to his case following the 1989 McDowell I decision) was that, contrary to interpretations of the Boards of Fisheries and Game, all Alaskans were not eligible for subsistence. The second was that state regulations must be written specifically to fit ANILCA's management standard (i,e., to have the "least adverse impact" on customary and traditional uses of fish stocks and game populations). The third was that state regulations must broadly protect the "customary and traditional" character of subsistence hunting and fishing. The plaintiff won on all three policy claims in Superior Court, and the state appealed. On July 10, 1992, the Alaska Supreme Court reversed. Although it found for Morry on the procedural invalidity of the provision under which he had been charged, it ruled against him on the larger issues of regulatory procedure: 1) At least at the "Tier I" level, all Alaskans are eligible subsistence users. 2) Whatever the federal law may say, "least adverse impact" was not stated in or implied by the "reasonable opportunity" standard of the 1986 state subsistence statute. 3) The Boards may provide for customary and traditional practices in subsistence regulations, but they are not required by law to do so. What Morry shows is that, although subsistence advocates had labored to achieve a judicial interpretation of state regulations that used the concepts and standards of federal law, the effort had not succeeded. State court constructions of state subsistence statutes are now irreconcilably different from federal court interpretations of ANILCA. The reason for this is not that the Alaska judiciary, whatever the predilections of its individual judges, is more biased against subsistence than are the policy branches of state government. Rather, it reflects the fact that the whole structure of state law, regulation and judicial interpretation Sam McDowell, et al. v. United States, A92-531 Civil, Order, U.S. District Court, October 06, 1992. “Morry v. State of Alaska, 2 BA-83-87 Civil. 35 has been moving away from federal law for years. It may be one more sign that the dual management impasse, whatever form it takes, could be with us for some time - and that, even if it can be formally resolved, the underlying clash of legal ideologies is probably permanent and irreconcilable. Hence, the even greater need, from the viewpoint of subsistence interests, for federal oversight and intervention. 3. Katie John, et al. v. United States and State of Alaska v. Babbitt: The Nature and Extent of ANILCA Jurisdiction After the state government failed to resolve its non-compliance with ANILCA during the first special session in 1990, the management regulations published by the Federal Subsistence Board purposely excluded marine and navigable waters from federal jurisdiction, leaving almost all fish stocks without effective subsistence protections. The initial response of the Native community was persistent public comment and written testimony, calling attention to the fact that Secretary Lujan's interpretation violated both the language of the federal statute and the clear intent of Congress, as demonstrated by legislative history. Responding to pressures from sport and commercial interests, wishing to avoid the expensive task of fisheries management, and assuming that the state would soon come back into compliance by legislative action, the federal agencies refused to expand the jurisdictional scope of their regulations. That left Natives with no alternative but to bring suit in federal court. The lead case on navigable waters, filed in U.S. District Court (Anchorage) on December 5, 1990, was Katie John, et al. v. United States.’ Brought by two elderly Athabascan women, Katie John and Doris Charles, and by the Village Council of Mentasta, the suit was soon joined by amici and intervenors, including the Alaska Federation of Natives. Claiming that ANILCA's term "public lands" included marine and navigable waters, the complaint sought a judicial order requiring the secretaries to set up a subsistence salmon fishery at Batzulnetas on the Copper River, a customary and traditional location of subsistence fishing by local Native residents. But the legal implications were statewide: if ANILCA mandated such federal action at Batzulnetas, it did the same throughout the bush, and that would require the publication of new regulations expanding federal jurisdiction to all waters. The State of Alaska quickly joined the United States in opposition. Inauguration of the Clinton administration brought to office a new Secretary of the Interior, Bruce Babbitt, in early 1993. On July 15 of that year, the Alaska Federation of Natives, joined by other Native organizations, communities and individuals, submitted an administrative petition to the cognizant federal agencies, requesting that they take the initiative to rewrite the Federal Subsistence Board's regulations without waiting for the court's expected order. Despite the fact that the federal government does not want the task and the federal budget can ill afford it, public responses from Secretary Babbitt have recognized his obligation, absent a state solution, to implement a step-by-step federal takeover of subsistence fisheries in Alaska. On January 14, 1994, the District Court finally issued a preliminary written ruling in Katie ohn, finding for plaintiffs and scheduling final oral arguments six weeks later. However, the anticipated judicial victory for subsistence interests was tempered by the possible “Katie John, et. al. v. United States, No. A90-484 Civil, now consolidated with State v. Babbitt, No. A-92-0264 Civil, and other subsistence jurisdiction cases. Native American Rights Fund, "Petition for Rule-Making by the Secretaries of the Interior and Agriculture That Navigable Waters and Federal Reserved Waters are ‘Public Lands' Subject to Title VIII of ANILCA's Subsistence Priority," July 15, 1993. 36 outcome of a related case which the District Court had consolidated with Katie John. In response to the initial regulations for federal management and to the filing of Katie John in late 1990, the Hickel administration had countersued in State of Alaska v. Babbitt,° claiming not only that the federal government does not have the authority to regulate subsistence in marine and navigable waters, but that ANILCA accords it no power of direct subsistence management on any federal lands or waters of Alaska. The state contended that, whether or not it has a complying law of general applicability on the books, regulatory power over fish and game always rests with the Alaska Boards of Fisheries and Game, subject only to relief through the federal courts and to the recognized power of the federal secretaries to close the federal domain to non-subsistence uses. Its theory acknowledged that the ANILCA preference applies to federal public lands, however the latter term might be defined in Katie John. But since only the state Boards may regulate, and because they are precluded by McDowell from implementing a rural preference, any aggrieved rural resident who has been denied the protections of the federal law by state authorities would have to sue for a federal court order directing the Boards to rewrite their offending regulations in conformity with ANILCA. Whether such a judicial pre-emption of the Alaska Constitution would violate the Tenth Amendment to the U.S. Constitution (which generally prohibits Congress from requiring a state to implement a federal regulatory program against its will) lay at the heart of the legal argument. One thing was clear, however. If the state's argument in State of Alaska v. Babbitt prevailed, the Federal Subsistence Board would all but disappear, becoming little more than a secretarial oversight mechanism that receives information from regional advisory councils and reports to Congress on implementation of Title VIII. The central arena of subsistence management would move to the courts - with their slow, expensive procedures of trial and appeal on dozens of separate regulations adopted by state entities that have neither the political inclination nor the constitutional authority to implement ANILCA. A second arena would be the process of administrative closures, which would itself generate judicial challenges from the state. Whatever the legal merits of State v. Babbitt, the practical situation that would flow from a state victory underlined the Hickel administration's determination to make subsistence a judicial war of attrition. The combination of the "where" issue in Katie John and the "who" issue in State v. Babbitt will likely play a critical role in the resolution of the larger federal-state impasse. During any period of continuing dual management, subsistence interests have no choice but to pursue the maximum geographical extent of federal jurisdiction, since only federal law provides any protection of the villages. The initial building block in constructing such a maximized jurisdiction is waters - because of the central role of fish in the rural subsistence diet. Thereafter, the effort is likely to involve expansion of federal authority (through congressional, administrative and/or judicial action) over some or all conveyed ANCSA fee lands and over selected-but-unconveyed state and Native lands, both of which currently remain under state jurisdiction. Maximization is also likely to entail the gradual extension of federal regulatory "reach" beyond the widest legal definition of public lands (e.g., in those cases where the taking of highly mobile fish stocks and game populations, when they are temporarily located off public lands, affects their availability for subsistence uses when they return to public lands). But beyond the need for interim subsistence protections, maximum federal jurisdiction increases political leverage to end the gridlock. The only power likely to persuade the state government to resolve the ANILCA impasse through a constitutional amendment is the full force of federal intervention in fish and game management. If and when the state **State of Alaska v. Lujan (now State of Alaska v. Babbitt), No. A-92-264 Civil, February 27, 1992, now consolidated with Katie John, et. al. v. United States and other subsistence jurisdiction cases. 37 finally accepts the need for such action, it will do so only in its own interest, not out of concern for Native cultures or village economies. The present administration and legislature are likely to produce a 2/3 vote of both houses only when all perceived alternatives have been foreclosed by judicial order and the full administrative power of the United States has begun to bite down hard. On March 30, 1994, after more than three years of judicial wrangling, Katie John, et al. v. United States and State of Alaska v. Babbitt were decided in favor of subsistence users by the U.S. District Court. Judge Holland found that ANILCA’s rural preference applies to all marine and navigable waters (as part of the statute's definition of "public lands") and that the federal agencies have the authority for direct regulation of subsistence hunting and fishing on all such lands and waters in Alaska.*” The judge stayed the effect of his own decision for 60 days to give parties the opportunity to file appeals, which will further stay the District Court's order until the appellate process is completed. The State of Alaska has said that it will appeal to the Ninth Circuit and beyond and that it expects to prevail. Whether this huge loss of state control in the lower court - when combined with impending regulatory tangles over the "all Alaskans" preference on the Kenai Peninsula in the summer of 1994 - will push the administration and the Legislature toward resolution of the ANILCA impasse remains to be seen, as of this writing. All that can be said with certainty in the spring of 1994 is that state sovereignty is beginning to hemorrhage, user- group conflicts are steadily worsening, electoral politics are heating up, and the federal- state gridlock remains right where it has been for four and a half years. H. Additional Management Concerns In addition to dealing with the continuing federal-state impasse, subsistence interests must pursue arrangements that ensure the full participation of local people in regulatory decisions and day-to-day agency operations. Practically, such opportunities now exist only on the federal side of dual management. Below are the two most important examples: 1. Cooperative Management and Co-management Section 809 of ANILCA authorizes the secretaries to enter into cooperative management agreements and contracts with local communities and organizations to carry out the purposes of Title VIII. Many operational functions usually performed by agency employees can be delegated to, and purchased from, the very people who have the greatest stake in the success of subsistence management. The effort to make local residents an integral part of the system provides knowledge that only they possess, as well as a cultural authority at the village level that no amount of training or money can produce in bureaucrats. Moreover, it encourages local responsibility for the arrangements in place and reduces the adversarial nature of relationships between agency personnel and subsistence users. The process of negotiating and implementing these contracted roles has only begun, due largely to the resistance of the former federal administration. At this writing, three contracts have been executed between the Interior Department and Native regional organizations, while others are in negotiation. The long-term success of the effort will be measured not so much by the number and amounts of the contracts, as by the qualitative expansion of the powers delegated under them. The Native community's goal is to enlarge such contracted responsibilities to the point where ANILCA's "cooperative management" evolves into a true "co-management" arrangement between the United States and local residents. *’Katie John, et. al, v. United States, No. A90-0484 Civil, consolidated with State of Alaska v. Babbitt, No. A92- 0264 Civil, Decision, March 30, 1994. See also Stay Order of same date. 38 2. Regional Advisory Councils Section 805 of ANILCA mandates that the secretaries establish regional advisory councils, composed of local subsistence users, with the authority to devise and submit to the Federal Subsistence Board recommendations on proposed regulations. The recommendations of the councils are to be followed unless they violate principles of fish and wildlife conservation, are not supported by substantial evidence, or would be detrimental to subsistence uses. Federal agencies are to provide the councils with professional staff support and timely distribution of relevant information; and each of the councils in turn is obligated to submit to the secretaries a comprehensive annual report on the status of subsistence uses and regulations within its respective region. The new federal administration, under secretaries Babbitt and Espy, recently formed ten regional councils throughout Alaska. Each has held its initial meetings and elected its officers, and the real work of regulatory analysis and recommendations has now begun. While local hopes are high, the question of whether regional councils will work effectively - or turn out to be a token gesture of public relations - remains to be answered. At this writing, key operational issues include the adequacy of funding, staffing, data and other support, as well as the future impact of council recommendations on the regulatory decisions of the Federal Subsistence Board. 39 III. Conclusions and Recommendations The Joint Commission has reached the following conclusions and recommends the following actions regarding subsistence: 1. Subsistence is a Native issue- a critical part of the larger historical question about the status, rights and future survival of Alaska's aboriginal peoples. The economic and cultural survival of Native communities is the principal reason why Congress enacted its rural subsistence preference in 1980. By articulating the federal government's traditional obligation to protect indigenous citizens from the political and economic power of the non- Native majority, Title VIII of ANILCA constitutes a landmark of Indian law. Such congressional action was both constitutional and appropriate. 2. Subsistence should not be seen merely as an issue of fish and game management - because it is not principally about animals, their habitats, or their scientific management by public agencies. It is about human beings. In its distribution of limited resources among competing user groups, subsistence law is social policy on a grand scale. The way in which the current conflict over fish and game allocations is resolved will do more to influence the future economic and social condition of the rural areas of this state than any other issue addressed by the Joint Commission. 3. The economies of most Alaska Native villages remain underdeveloped, artificial dependencies of government, providing few jobs and very little cash. Without a secure protein base of wild, renewable resources, the poorest and most traditional villages are doomed to economic erosion and disappearance. Hunting, fishing and gathering also provide Native people with productive labor, personal self-esteem and family relationships. More than an economic system, it is the social foundation of life. If the subsistence-based economies and cultures of village Alaska collapse, the resulting social dislocation and out- migration will cost Alaskans dearly. Whether aware of it or not, we all have a vested interest in the success of the bush. 4. Subsistence hunting and fishing are now under concerted political assault by powerful, organized interests which compete with villages for the limited public resources that governments allocate. In the foreseeable future, Alaska Natives will remain a permanent minority in a state dominated by the political and economic power of a non-Native, urban majority. Demographic pressures and political competition for natural resources will continue and increase. The fight over subsistence comes in cycles of legislative, regulatory and judicial activity, alternately surging and receding over the years. But it never goes away - because competing human user groups are a permanent fact of life in Alaska. 5. The State of Alaska will not provide adequate protections of subsistence against the demands of sport, commercial and other uses of fish and game - a fact amply demonstrated in the last four years. Two governors, four regular legislative sessions, two special sessions, and a series of ad hoc advisory groups have sought to resolve the federal-state impasse. The result is dual management. Part of the blame for this gridlock can be fixed on individual officeholders and their parties, but the larger fact is that the interests and attitudes of non-subsistence user groups pervade the executive branch, the Legislature, the state courts and the Boards of Fisheries and Game. The only bulwark protecting Alaska Natives from the power of an adversarial state government is federal law. 40 6. The protection of the individual and the minority against the power of the majority is an axiom of democratic systems. There is nothing wrong with a constitutionally valid state or federal law that provides minority guarantees. If the people of Alaska feel that maintaining traditional subsistence cultures is fundamental to the life of their state, they have every right to include protections thereof in organic law. That is one of the things that constitutions are for. But if the electorate is denied the opportunity to exercise that choice, Alaska Natives have no alternative but to seek such protections from the United States. 7. ANILCA's rural preference is flawed in concept as well as result, failing to protect the legitimate subsistence needs and practices of many Native people who, through no choice of their own, reside in areas not defined as rural. This is a classic example of how non- Native law can, by its arbitrary categories, disrupt Native life. Congress should conduct on-going oversight of Title VIII implementation by the state government and the cognizant federal agencies. As part of this analysis, Congress should consider replacing the present rural preference with the protections of a Native or "Native plus" preference. 8. Despite the inherent weaknesses of the rural preference, the subsistence protections of current federal law remain superior to the present state system, which contains no effective preference for any defined group of subsistence users and is now attempting to prohibit all subsistence uses in large areas of the state. While Natives urge improvements in the federal statute, they know that the ANILCA's rural preference must be defended against judicial and congressional challenges from anti-subsistence interests. At the very least, Congress must maintain the existing rural preference in Title VIII. It is the minimum acceptable level of subsistence protection in federal law, and Congress should resist all pressures from private interests and/or the State of Alaska to weaken or eliminate the current protections. 9. During any length of dual management, the subsistence interests of Native people will be best protected by maximum extension of the geographical scope of ANILCA jurisdiction. This should include not only all marine and navigable waters (by court order and/or administrative regulation], but ANCSA fee lands and selected-but-unconveyed state and Native lands (by congressional and/or administrative action) as well. In addition, the United States should be willing to extend the "reach" of its regulatory decisions beyond the legal definition of public lands. 10. Barring unlikely events in the Ninth Circuit, the McDowell II constitutional challenge will fail. This means that anti-subsistence interests, determined to get rid of the preference in federal law, will have only one place left to go: to Congress. As federal jurisdiction gradually broadens, political pressure on the state government to resolve the impasse will grow. This could result in a state constitutional amendment and a statute complying with federal law, in which case the present gridlock would end and Alaskan law would return to its pre-McDowell status. But, depending on the intentions of future administrations and legislatures, it could also produce a full-fledged state push to persuade the Congress to alter or remove Title VIII of ANILCA. Those committees with ANILCA jurisdiction should be aware of, and prepared for, this scenario. 11. If the federal courts should decide that the text and legislative history of ANILCA fail to authorize direct secretarial management of subsistence hunting and fishing on federal public lands and waters during any period of state non-compliance, Congress should amend Title VIII of ANILCA to provide for such authority in specific, unambiguous terms. 41 12. Cognizant federal agencies should fully implement existing provisions of law requiring the operation of regional subsistence advisory councils and the options of contracting with communities and regional entities for co-management agreements. The involvement, responsibility and power of local people should become permanent principles of the system. 13. The Alaska Legislature should adopt and submit to the voters at the next statewide general election an amendment to the Alaska Constitution allowing a statutory subsistence preference that complies with federal law and returns to the state the authority to manage fish and game on all lands. This constitutional language should be broad enough to permit state compliance with a congressionally improved ANILCA preference. (See recommendation 7 above.) In addition, a constitutional amendment should be accompanied by state legislative actions mandating local and regional co-management agreements, effective regional advisory councils, and a top-to-bottom reform of the state’s fish and game regulatory system. The design of such a package should involve Native subsistence users working cooperatively with state and federal authorities. 14. If all attempts to persuade the state government to return to a unitary system of subsistence regulation fail, Congress should enact legislation, based on the supremacy clause and on its plenary authority to regulate Indian affairs, that imposes a federal subsistence preference (at least rural, but preferably Native or "Native plus") on all lands and waters of Alaska, offering the state the option of implementing such a system under federal oversight or having the federal agencies administer it directly. 42 ALLINTHIN NT ATA A Or IOV Al te HAILYN YWaIswl wow I. Introduction A. The Scope of the Commission's Mandate A review of the tribal status and authority of Alaska Native communities comes within the mandate of the Alaska Natives Commission for two reasons. First, Alaska Native eligibility for federal Indian programs is dependent upon the tribal status of Alaska Native communities. Second, the tribal status and authority of Alaska Native communities broadly influences the social status of Alaska Natives within their communities and in relations with the federal and state governments and their residents. Congress charged the Alaska Natives Commission with the task of conducting a comprehensive study of the social and economic status of Alaska Natives and the effectiveness of those policies and programs of the United States, and of the State of Alaska, that affect Alaska Natives, and to make recommendations based on their findings. Congressional authority to request and finance a study for a distinct social group such as Alaska Natives arises from a long political and legal relationship between Native American people and the government of the United States. The term "tribe" describes indigenous groups of Native American people: Originally, the definitional question [regarding the definition of "tribe"] arose in connection with treaty relations, as it was necessary to determine which groups were political entities for the purpose of negotiating treaties with them. Later, federal legislation to regulate Indian affairs, to allow claims for depredations by Indians, to permit claims by Indians against the federal government, and to protect Indian property and other rights, required determinations of which groups fell within the meaning of the particular statute. More recently, it has been necessary to identify recipients of federal programs for support, protection, and assistance. Felix S. Cohen's Handbook of Federal Indian Law 3 (1982 ed.}("Cohen") Alaska Native tribes and tribal organizations not only legitimize the special treatment Alaska Natives receive from the United States, but also help define the social and political status of Alaska Native communities throughout Alaska. Despite the significance of Alaska Native tribes, over time they have been the object of neglectful policies, controversy and conflict. This paper reviews the issues related to the status and authority of tribal governments in Alaska as they impact the social status of Alaska Natives and the effectiveness of State and federal policies and programs which are intended to benefit Alaska Natives and their communities. B. Statement of the Contemporary Issue The United States government made the legal status of Alaska Native tribes and their members an issue of significance from the time it first acquired Russian rights in Alaska. Article III of The Treaty Of Cession called for the application of federal Indian laws to the 45 "uncivilized tribes in Alaska": The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they with exception of uncivilized native tribes, shall be admitted to the enjoyment of all rights, advantages and immunities of citizens of the United States and shall be maintained and protected in the free enjoyment of their liberty, property and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may from time to time, adopt in regard to aboriginal tribes in that country. Treaty of March 30, 1867, 15 Stat. 539 (Emphasis added). For the first hundred years of American occupation, legal battles over Indian affairs in Alaska revolved around the scope of the federal government's power and obligation to protect Indians and Indian tribal lands and rights.' More recently, the focus of the political discourse and litigation has expanded to include the scope of tribal authority.’ The debate over the legal status and authority of Alaska Native village tribes, and the appropriate role and relative rights and obligations of the federal and state governments has been described as the "tribal sovereignty issue" or "tribal sovereignty debate." Historically, American Indian tribes could claim the full attributes of an international sovereign exercising: The supreme, absolute, and uncontrollable power...to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like..." Definition of "sovereignty" from Black's Law Dictionary at 1568 (1968). That time has passed. Today, Indian tribes still enjoy a sovereign status, but more akin to 'See, generally, D. Case, Alaska Natives and American Laws 60-70 (1984)("Case")(Case analyzes a long series of conflicting court decisions regarding the federal government's duty to protect aboriginal use and occupancy of lands in Alaska). >See e.g., Chilkat Indian Village v. Johnson, 870 F. 2d 1469 (9th Cir. 1989)(upholding federal jurisdiction over a tribe's determination of the ownership and disposition of Tlingit clan property held by a non-Native); Chilkat Indian Village v. Johnson, Memorandum and Order, slip op. at 9-10 (D. Alaska, Jan. 11, 1990)(on remand from the 9th Circuit, holding that the village possessed sufficient attributes of sovereignty such that "the district court must abstain from hearing the suit until the parties exhaust tribal remedies"); Chilkat Indian Village, I.R.A. v. iohnson, No. 90-01 (Chilkat Indian Village Tribal Court, November 3, 1993)(seventy-one page tribal court opinion upholds the authority of the IRA tribal council to prevent removal of resident member clan property from the village without the tribe's consent and orders the non-Native defendant art dealer to return the property to the village); Native Village of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992)(remanding to the federal district court to develop findings of fact and conclusions of law backing its finding that the village is a tribe occupying Indian country where land in the village is principally under village corporation ownership and the tribe seeks to control access to and use of residential tribal property); State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988)(in a case involving the power of a tribe to tax business activities in a Native village where land is principally owned by the tribe, the court held that the tribal and Indian country status of Alaska Native villages are to be resolved under general federal Indian law standards); Alyeska v. Kluti Kaah Native Village of Copper Center, No. A87-201 Civil (D. Alaska)(this case concerns the power of a tribe to tax property in a Native village where most lands are owned by a merged ANCSA regional corporation). 46 the sovereignty of the states. Indian tribes and states, like Alaska, enact and enforce their own laws and tax, but they no longer make war or manage foreign affairs. Alaska Native village tribes and confederated groups of tribal villages all base their claims to sovereignty on legal tenets commonly applied to Indian tribes in the United States: The present right of tribes to govern their members and territories flows from a preexisting sovereignty limited, but not abolished, by their inclusion within the territorial bounds of the United States...[T]hose powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather "inherent powers of a limited sovereignty which has never been extinguished." Cohen at 231 citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978). Generally speaking, "Indian tribes" are "bodie[s] of Indians* of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory..."* which have been recognized by the federal government as enjoying a government to government relationship with the United States. Congress now authorizes the formal acknowledgment of tribal status by regulation, where once accomplished by treaty with Indian tribes: The purpose of this part is to establish a departmental procedure and policy for acknowledging that certain American Indian tribes exist. Such Acknowledgment of tribal existence by the Department is a prerequisite to the protection, services, and benefits from the Federal Government available to Indian tribes. Such acknowledgment shall also mean that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes as well as the responsibilities and obligations of such tribes. Acknowledgment shall subject the Indian tribe to the same authority of Congress and the United States to which other federally acknowledged tribes are subjected. 25 C.F.R. § 83.2 Purpose (Procedures for Establishing that an American Indian Group Exists as an Indian Tribe).° “The term "Indian" as used in federal Indian law refers to individuals "whose ancestors lived in what is now the United States before its discovery by Europeans, and ... that the individual is recognized as an Indian by his or her tribe or community." See, Felix §. Cohen Handbook of Federal Indian Law 20 (1982 ed.)("Cohen"). The term includes Alaska Natives (Eskimos, Aleuts and Indians) either directly, see e.g. 25 C.F.R. § 103.1 (c) and (d) or indirectly by the inclusion of Alaska Native villages in the definition of "Indian tribe". See e.g., 25 U.S.C. § 450b (d) and (e). “Montoya v. United States, 180 U.S. 261, 266 (1901). Although this ethnological definition of a tribe constitutes the most basic variety of a tribe, the United States exercises much broader discretion to recognize the sovereign status of tribal confederations, remnants or subgroups of tribes, and reorganized tribes, to name just a few. See, Cohen_at 231, n. 17. ‘Long a bone of contention, the Secretary of the Interior finally clarified the sovereign tribal status of Alaska Native villages in Alaska. "Native Entities Within the State of Alaska Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs," 58 Fed. Reg. 54,364 (October 21, 1993). 47 Congress also recognizes tribes for various purposes through legislation. Cohen at 3-4. Courts normally must defer to congressional and executive branch findings of tribal status.° Although the tribal status of some Native communities may remain at issue in the Congress and the federal courts’, sovereignty issues and conflicts have already shifted toward the scope of federal authority and obligations to protect Native rights and interests® and to the extent of Indian Country and tribal authority in Alaska.” More typical jurisdictional conflicts between states and tribes arising in Indian country can be expected.!° This paper addresses the issue of Alaska tribal sovereignty in three parts: A general overview of tribal self-government and federal Indian law and policy and its historical application in Alaska; contemporary Federal, Native, and State views towards Alaska Native tribal status and authority; and, finally, draft recommendations with supporting annotations from the Commission's hearing records. Original research for this paper was limited to updating the substantial, scholarly body of works which review and analyze various aspects of federal Indian policy and tribal sovereignty in Alaska." *United States v. Rickert, 188 U.S. 432, 445 (1903); See generally, Baker v. Carr, 369 U.S. 186 1962). United States District Court Judge Russell Holland, citing the Secretary of the Interior's recent publication of an Alaska tribal list, dismissed the defendant Kluti Kaah Native Village of Copper Center from a case on the grounds of sovereign immunity based on the fact that "[p]laintiff and intervenor-plaintiffs concede, as they must at this point, that the executive branch of government of the United States has declared that defendant Kluti Kaah Native Village of Copper Center is an Indian tribe." Order (Tribal Status), Alyeska Pipeline Service Company, et al., v. Kluti Kaah Native Village of Copper Center, et al., No. A7-0201-CV (December 22, 1993). ’See e.g. S. 1618, An "Amendment offered by [Sen.] Murkowski to restore the Central Council of Tlingit and Haida Indian Tribes of Alaska to the Department of the Interior list of Indian entities recognized and eligible to receive Services from the United States Bureau of Indian Affairs," United States Senate Natural Resources Comm. (Nov. 1993); See also, Consolidating Alaska Natives Governing Bodies: Hearings on S. 1920 and S. 2046 Before the United States Senate Select Comm. on Indian Affairs, 95th Cong., 1st Sess. (1977). ‘Although Katie John, Doris Charles and Mentasta Village Council v. United States and Alaska, No. A90-484 (D. Alaska), is not generally referred to as a tribal sovereignty case, the gist of this subsistence dispute involves the determination of the definition of "public lands" and the scope of the federal government's duty to protect Native and non-Native subsistence values--elements common to battles between states and the federal government regarding the scope of federal authority to protect Native rights and interests. °The Bush Administration's Interior Solicitor concluded that little if any Indian Country exists in Alaska. "Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers," Opinion No. M-36975 (Jan. 11, 1993)("Solicitor's Opinion"), but see , Letter from Michael J. Anderson, Associate Solicitor, Division of Indian Affairs, Office of the Solicitor to Michael Cox, General Counsel, National Indian Gaming Commission (November 15, 1993)(stating that tribal canneries located in three southeast villages are Indian Country for purposes of the Indian Gaming Regulatory Act.}; See also federal district court cases cited at supra note 1. ‘The first opportunity for such a conflict may occur in Klawock, where the local IRA recently notified the State of Alaska of its intent to negotiate a Class III gaming compact with the State pursuant to the Federal Indian Gaming Regulatory Act. The State has 180 days to respond. Telephone interview with Roseann Demmert, President, Klawock Cooperative Association (December 13,1993). "See e.g., Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land (1968); Robert R. Nathan Associates, Inc., 2(c) Report: Federal Programs and Alaska Natives (1975); American Indian Policy Review Commission, Special Joint Task Force Report on Alaska Native Issues (1976); R. Arnold, Alaska Native Land Claims (1978 ed.); Alaska State Legislature, Local Government Study (August 4, 1979); State of Alaska, Problems and Possibilities for Service Delivery and Government in the Alaska Unorganized Borough (1981); Cohen, "Chapter 14. Special Groups, Section A. Alaska Natives," 739-770 (1982 ed.}; State of Alaska, Legal 48 II. Tribal Sovereignty and Federal Indian Law and Policy A. Federal Indian Law and Policy Since the arrival of European explorers to the American continents, sovereign governments representing the descendants of these immigrants and the indigenous residents of America have struggled to maintain control over what they considered their land and people. The Europeans called the indigenous residents Indians and their governments tribes. United States "Indian policy" carried on where the Spanish’, the Dutch, and the English left off’: Originally, Indians governed themselves free of outside interference or control. As the New World was settled something had to be done about the continent's aboriginal inhabitants. Very early it was apparent that the tribes could have been contained or decimated by force. But the costs in lives, material, time and conscience were far too great. Indians were in the way; their lands were needed for settlement and the frontier was too vast to defend against attacks by hostile Indians. Thus, the United States' policy of negotiating land cessions in treaties and agreements, with certain promises and rights in return, was born of necessity and convenience. One of the most essential ingredients of the process was recognition of tribes as sovereign entities. Treaty making with them indicated the tribes' legal capacity. The process of obtaining Indian lands and containing the tribes had to be done by agreement in order to be consistent with the legal and moral precepts of the new government. D. Getches & C. Wilkinson, Federal Indian Law, Cases and Materials xxiv (2d ed., 1986). The federal relationship with Indian tribes, founded upon the need to acquire land and maintain peaceful relations, continues to develop today in more domestic forms. The relationship remains grounded in the mutual recognition of federal and tribal governmental status. Federal laws which describe this relationship are called federal Indian laws. Federal Status of the Alaska Natives; A Report to the Alaska Statehood Commission (1982); D. Case, Alaska Natives and American Laws (1984); T. Berger, Village Journey: The Report of the Alaska Native Review Commission (1985); D. Getches and C. Wilkinson, Federal Indian Law: Cases and Materials, 774-820 (1986)("Section A. Alaska Natives: Looking Forward to the Past"); State of Alaska, Report of the Governor's Task Force on Federal-State-Tribal Relations--Submitted to Governor Bill Sheffield (1986); Toward Understanding: A Positive View of Federal-State-Tribal Relations (1986](An adaptation of the Governor's Task Force Report on Federal-State-Tribal Relations sponsored by the Rural Alaska Community Action Program, Inc.); R. Price, The Great Father in Alaska: The Case of the Tlingit and Haida Salmon Fishery (1990); E. Smith & M. Kancewick, The Tribal Status of Alaska Natives, 61 U. Colo. L. Rev. 455 (1990); Institute of Social and Economic Research, The Dual Political Status of Alaska Natives Under U.S. Policy (1992); Alaska Judicial Council, Resolving Disputes Locally: Alternatives for Rural Alaska (1992); Alaska Judicial Council, Resolving Disputes Locally: A Statewide Report and Directory (1993); S. Di Pietro, Forward to Native Law Selections: Recent Developments in Federal Indian Law as Applied to Native Alaskans, 10 Alaska Law Review 333 (1993); S. Di Pietro, Tribal Court Jurisdiction and Public Law 280: What Alaskans, Role for Tribal Courts in Alaska, 10 Alaska Law Review 335 (1993). "FE. Cohen, "The Spanish Origin of Indian Rights in the Law of the United States," reprinted in The Legal Conscience, Selected Papers of Felix $. Cohen 230- 252 (Archon Books, 1970)("Cohen, The Spanish Origin"). See, Cohen at 50-58. 49 laws, judicial decisions, and executive branch regulations and practices which determine the course of action taken by the federal government", with respect to Indian tribes, are collectively referred to as federal Indian policy or Indian affairs. Federal laws and regulations governing Indian affairs are principally found in the Indian titles of United States Code and the Code of Federal Regulations--including such far ranging matters as the federal acknowledgment of Indian tribes, 25 C.F.R. part 83, to the federal authorization for state officials to enforce sanitation and quarantine regulations on Indian lands, 25 U.S.C. § 231. Federal Indian laws are also spread throughout the federal statutes and administrative codes. For example, courts have declared the Alaska Native Claims Settlement Act, Indian legislation despite being located in the public lands title of the federal code at Title 43.'° The collection of federal Indian laws and regulations generally are applied to Alaska Native villages through the definition of "Indian tribes."'° The rich history and pattern of federal Indian law and policy attracts analysis. Federal Indian law touches every aspect of Native individual and community life. Numerous authors have attempted to "reduce the maze of our Indian law to a manageable scheme and take account of its basic principles."'? Among these sources is Felix §. Cohen's Handbook of Federal Indian Law. First published by the Department of the Interior in 1942 under the direction of its author, Felix S. Cohen, Special Assistant to the Attorney General and 'sFederal Indian law and policy is just that -- federal law. Federal Indian laws may impact and at times limits tribal law, but does not include tribal law or tribal actions any more than it includes state laws and policies. Tribal laws, court decisions and administrative practices are considered the actions of a separate sovereign. Talton v. Mayes, 164 U.S. 376 (1896). 'SD. Case, Alaska Natives and American Laws, 16 (1984)("Case"). ‘The following federal statutes include Alaska Native villages in the definition of "Indian tribe": Indian Financing Act of 1974, 25 U.S.C. § 1452(c); Indian Self-Determination Act and Education Assistance Act of 1975, 25 U.S.C. § 450b(b); Indian Health Care Improvement Act of 1976, 25 U.S.C. § 1603(c); Tribally Controlled Community College Assistance Act, 25 U.S.C. § 1801(2); Indian Child Welfare Act, 25 U.S.C. § 1903(8); Title XI of the Education Amendments of 1978, 25 U.S.C. § 2019(10}; State and Local Fiscal Assistance Act, 31 U.S.C. § 1227(b}(4) and (d). Federal regulations which define "Indian tribes" to include Alaska Native villages are the following: 25 C.F.R § 256.2(£)(2|(Snyder Act, 25 U.S.C. § 13); 25 CER. § 23.2(i)(Indian Child Welfare Act); 25 C.F.R. §§ 32.2(e) and (d), 32.3, 39.2(0)(Title XI of the Education Amendments of 1978); 25 C.F.R. § 41.3(i)(Tribally Controlled Community College Assistance Act); 25 C.F.R. §§ 1Ol.|(e}, (f) and (g), 103.1(e), (f), and (g), 286.1(g), (h), and (i)(Indian Financing Act); 25 C.F.R. §§ 271.2(h), 272.2(j), 274.3(j), 275.2(f), 276.1(i), 277.3(g)(Indian Self-Determination and Education Assistance Act); 25 C.F.R. § 273.2(g)(Johnson-O'Malley Act); 45 C.F.R. § 1328.3 (Older Americans Act, 42 U.S.C. § 3057); 45 C.F.R. 96.44(b) (Low Income Home Energy Assistance Act of 1981, 42 U.S.C. § 8623(d)(1)); 24 C.F.R. § 571.3(0)(Housing and Community Development Act, 42 U.S.C § 5302(a)(17)); 20 C.F.R. § 688.10 and 29 C.F.R. §§ 96.42 and 97.103 (Comprehensive Employment and Training Act, 29 U.S.C. § 801); 34 C.F.R. § 250.4(b)(Indian Education Act, 20 U.S.C. §§ 241aa et seq., and 3385 et seq.); 34 C.F.R. § 371.4(b)(3) (Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, 29 U.S.C. § 750); 34 C.F.R. § 408.203(a)(Vocational Education Act, 20 U.S.C. § 2303); 7 C.F.R. § 1823.402(b)(Consolidated Farm and Rural Development Act, 7 U.S.C. § 1989), 40 C.F.R. § 35.751(c) (Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136); 42 C.F.R. § 36.21 (Snyder Act, 25 U.S.C. § 13); 42 C.F.R. §§ 36.102(c) and 36.204(g)(Indian Self-Determination and Education Assistance Act); 42 C.F.R. §36.302(j)(Indian Health Care Improvement Act); 45 C.F.R. § 1336.1 (Native American Programs Act of 1974, 42 U.S.C. § 2991); and 10 C.F.R. § 440.3 (Energy Conservation in Existing Buildings Act of 1976, 42 U.S.C. § 6863). '"The Spanish Origin of Indian Rights in the Law of the United States" in The Legal Conscience; Selected Papers of Felix S. Cohen 232 (1970). 50 later Associate Solicitor of the Department of the Interior, the 1982 edition is a substantial update edited by a Board of Authors and Editors made up of law professors from around the country under contract with the Department of the Interior pursuant to a mandate from Congress to revise and republish the Cohen Handbook. 25 U.S.C. § 1341 (a)(2). David H. Getches and Charles F. Wilkinson, two members of Cohen's board of authors and editors contributed a course textbook to this collection called Federal Indian Law, Cases and Materials (West Publishing Co., 1986). Finally, David S. Case wrote a treatise on federal Indian law in Alaska called Alaska Natives and American Laws (The University of Alaska Press, 1984, Case). Each work portrays the field of federal Indian law in a slightly different light. Each analysis helps explain the theory and principles of federal Indian law to the lay and professional reader. 1. Cohen's Principles of Indian Law Cohen's authors and editors noted that his original vision of Indian law as a set of four principles proved out over time and remain largely unaltered to this day: a) Indian Tribes are political bodies with retained powers of self-government; b) The United States has broad authority over Indian Affairs; c) The federal government has a trust obligation to Indians, i) resulting in the protection of tribal self-government from state incursions, ii) the protection of Indian property interests, iii) and the provision of services and programs; and, d) Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state laws. Cohen at x. a. Indian tribes are political bodies with retained powers of self-government. Tribal powers are "inherent powers of a limited sovereign which has never been extinguished." United States v. Wheeler, 435 U.S. 313, 322-23 (1978). Customs, practices and formal codes of behavior which tribes used in the past, typically in place of written laws, constitute the governmental and legal systems which were originally recognized by federal constitutions, legislation, treaties, judicial decisions and administrative practice. Cohen at 230-231. Most tribal legal systems now incorporate written codes, published court decisions and other attributes of contemporary legal systems. The increasing dependency of tribes on the federal government allowed the United States to limit tribal authority. Tribes now retain all rights and powers of a sovereign except those withdrawn or extinguished "by treaty or statute, or by implication as a necessary result of their dependent status."!® Indian Tribes exercise significant control over their internal affairs and may regulate and '’Tribes can no longer enter into international relations, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), or freely alienate lands in which the United States retains an interest. Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 #1823), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)(Indian tribes are not "foreign nations," but instead are more properly referred to as "domestic dependent nations"). Finally, Indian tribes are not considered to have inherent jurisdiction to try and punish non-Indians." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191(1978)(Indian tribes cannot exercise criminal jurisdiction over non-Indians). 51 adjudicate the activities of non-members who enter into voluntary agreements with the tribe or tribal members or otherwise threaten the tribe's political integrity or the health, safety and welfare of the tribal community. Montana v. United States, 450 U.S. 544 (1981). Absent specific limitations, tribal power over their internal affairs remains "unfettered by assertions of federal or state authority .".Cohen at 236. Within "Indian Country" most state laws are of no effect unless Congress authorizes them. In many situations, as in the case of a federally declared Indian reservation or a comprehensive scheme of federal regulation, federal law preempts state law.'” Otherwise, state legislation applies unless it infringes upon the right of "reservation Indians to make their own rules and be governed by them.2° Within their tribal territory,’ and even outside their territory, with respect to their members and certain subject matter, tribes employ the following powers: 1) the power to determine their own form of governments,” 2) the power to determine membership; 3) the power to legislate,” 4) the power to administer justice; '°Williams v. Lee, 358 U.S. 217 (1959). Federal laws maintain this effect through the Supremacy Clause which states that treaties and federal laws are "the Supreme Law of the land" notwithstanding contrary state constitutions and laws. ?°McClanahan vy. Arizona State Tax Commission, 411 U.S. 164 (1973). 2'Tribal territory or "Indian country" is not limited to Indian reservations. Indian country includes Indian reservations, Indian allotments, and dependent Indian communities. 18 U.S.C. § 1151 (b). The Indian Country statute sets out the limits of federal criminal jurisdiction on Indian lands, but courts also apply it to civil jurisdiction. State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1390 (9th Cir. 1988), citing California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). ae eeeEEEe eee United States constitutional limitations which constrain federal and state action--such as the requirement of a republican form of government, the doctrine of separation of powers, and the rule against establishment of religion--do not hinder tribal activities. Cohen at 247. The Congress can establish eligibility criteria for federal program purposes and for the purposes of distributing property under federal control. Congress can even establish or modify tribal membership criteria if it does so clearly, but has done so only rarely and not lately. Cohen at 248. Tribes are unfettered by United States constitutional provisions in establishing criteria for membership. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). “Tribes can enact criminal and civil laws that apply to all internal affairs. The Indian Civil Rights Act, 25 U.S.C. § 1302(7), limits tribal criminal sanctions to a maximum fine of $ 5,000 and a sentence of one year. The Indian Civil Rights Act imposes limited procedural requirements on tribal courts and police, including protection against unreasonable searches and seizures, probable cause requirements for warrants, protection against double jeopardy, protection against being a witness against oneself, guarantee of a speedy trial, right to be informed of the nature and cause of the accusation, the right to confront witnesses, right to subpoena witnesses, right to an attorney paid for by oneself, and the right to a jury trial in a criminal case. 25 U.S.C. § 1302. Tribal jurisdiction is concurrent with the federal courts on most reservations. The Congress has delegated its criminal jurisdiction and cause of action civil jurisdiction to some of the states pursuant to Public Law 280. Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. § 1360, 1360 note). 52 5) the power to exclude persons from tribal property;”* and, 6) the power to regulate and adjudicate the civil behavior of certain non-Indians. See generally, Cohen at 246-257. b. The United States has broad authority over Indian affairs. Various sections of the United States Constitution together provide authority for federal power over Indian affairs.” The sections most frequently cited include the Indian Commerce clause, the treaty clause’, and the Supremacy clause”. The Commerce Clause offers the only affirmative authority that actually refers to "Indian tribes." Congress may "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."*° Perhaps the purest use of this authority is found in the series of Trade and Intercourse Acts intended principally to prevent unlawful purchases of Indian land.*! Since the discontinuation of Indian treaty making in 1871*, it has been said that the Indian Commerce Clause provides the main authority for Congressional power over Indian affairs. However, as Cohen notes, "it is somewhat artificial to analyze the constitutional provisions separately. For most purposes it is sufficient to conclude that there is a single power over Indian affairs, "an amalgam of the several specific constitutional provisions." Cohen at 211. Federal power over Indian affairs and the existence and recognition of the Indian tribes' political status are interdependent concepts: "As long as these Indians remain a distinct people, with an existing tribal organization, recognized by the political department of government, Congress has the power to say with whom, and on what terms, they shall deal." **Tribes possess inherent authority to exclude persons from tribal territory. Persons holding fee title to lands within tribal territory may not be excluded, but may be "subject to reasonable regulation by the tribe if a significant tribal interest, such as health and safety, requires that access be limited." Cohen at 252, n. 86; Montana v. United States, 450 U.S. 544 (1981). *’See e.g., McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172 n. 7(1973). *8U.S. Const. Art. II, §2, cl. 2; Montana v. Mancari, 417 U.S. 535, 553 n. 24 (1974). U.S. Const. art. VI, cl. 2; Bryan v. Itasca County, 426 U.S. 373 (1976). U.S. Const. Art. I §8, cl. 3; United States v. 43 Gallons of Whiskey, 93 U.S. 188, 195 (1876). “Act of July 22, 1790, ch. 33 § 4, 1 Stat. 137. The modern successor to the Nonintercourse Acts is now codified at 25 U.S.C. § 177. “Appropriation Act of March 3, 1871, Ch. 120 §1, 16 Stat. 544, 566 (codified at 25 U.S.C. §71). By this time, the House of Representatives had grown tired of living with the results of federal Indian policies carried out by the Senate and President through their treaty making authority. F. Prucha, American Indian Policy in Crisis, 67-70 (Norman: University of Oklahoma Press, 1976). 53 United States v. 43 Gallons of Whiskey, 93 U.S. 188, 195 (1876). Courts have described Congress' power over Indian affairs as plenary,** in part due to the lack of any meaningful possibility of judicial review of congressional acts in this field. However minimal the standard, there are limits beyond which Congress cannot bootstrap Indian affairs authority: Of course, it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts. United States v. Sandoval, 231 U.S. 28, 46 (1913). So long as a Native group is made up of Indians (persons whose ancestors lived in this country prior to European discovery), and is distinct from other tribes, a determination of tribal status will be upheld. Indian legislation will withstand challenge if it is "rationally connected to fulfillment of Congress' obligation to Indians."** Stricter constitutional standards apply to Congress' management of Indian lands.** Federal power or jurisdiction over Indian affairs also includes a territorial component. Historically, federal power over Indian affairs was limited to those geographic areas, outside of states, where tribal communities were located. These areas were known as Indian country. The status of these lands served two purposes. Strict boundaries identified where federal Indian affairs jurisdiction started and the laws of the state ended. Secondly, Indian country boundaries identified the limits of tribal authority. Outside Indian country, state laws apply unless federal Indian laws tied to some particular subject matter preempts the state law. For example, the Indian Child Welfare Act* applies federal standards to the adoptive and foster care placement of Indian children in state proceedings wherever they occur. Today, Indian country includes Indian reservations, trust allotments, and dependent Indian communities as defined in the Indian Country Statute and case law.*” c. The federal government has a trust obligation to Indians. This obligation includes the protection of tribal self-government from state incursions, the protection of Indian property interests, and the provision of services and programs. Plenary is defined as "complete in all respects; unlimited or full.". American Heritage Electronic Dictionary, Standard Ed. (1992). “Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 83-84 (1977). “Payments must be made to Indians for the taking of permanent property rights protected by the 5th Amendment. Shoshone Tribe v. United States, 299 U.S. 476 (1937). 525 U.S.C. § 1901 et seq, *’Supra note 21, 18 U.S.C. § 1151 (b). 54 The federal government first protected Indian governments, lands, and provided services and special programs to their members in order to gain their loyalty, to obtain cessions of land, and to maintain control and peace during the settlement of the frontier. Cohen at 58-78. In exchange for land and peace, early treaties promised tribes goods and the protection of the United States. The theory of a federal trust responsibility to Indian tribes arose from the general promises in treaties to protect certain tribal lands and the right of the tribes to manage their own affairs.** Similar terms were included in other treaties and later, statutes which resulted in the acquisition of the public lands in the United States. The historical guardian/ward relationship has been applied to find the highest fiduciary standards applied to trust duties owed to Indians.” The more contemporary view looks to specific statutes to define the scope of the trust or duty owed.*° In this sense, Congress' power over Indian affairs is not "absolute" as much as it is "complete" -- standards of care can be enforced in a court of law. On the other hand, Congress can "exercise broad police power, rather than only the powers of a limited government with specifically enumerated powers." Cohen at 220. Although the federal duty to protect Indian trust land in the United States usually can still be traced to historical treaties or statutory land cessions, the same is not always true with respect to Indian services and programs. While Indian education and health services have been provided to Indian tribes since the earliest years of the Nation because of their status, more recently, Indian tribes have benefitted from generic social welfare programs due to their rural location, relative level of community poverty, or minority status.*! d. Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state laws. During Cohen's era Indian civil rights were still much in doubt coming only years after all Indians gained citizenship* and nearly 20 years before the civil rights laws of the 1960's. These matters are well settled now. In addition, federal policy and case law now confirm that special treatment in federal statutes or hiring and contracting preferences in favor of members of Indian tribes do not constitute a prohibited racial classification in violation of constitutional notions of equal protection or various civil rights laws. Morton v. Mancari, 417 U.S. 535 (1974). In Morton v. Mancari, the Supreme Court confirmed that the distinction between members of Indian tribes and others is political and not racial. A hiring preference in the Indian Health Service of the Bureau of Indian Affairs, "...as applied, is granted to Indians not as a discreet racial group, but, rather, as members of quasi-sovereign tribal entities..." ““Worcestor v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)(Indian tribes are "in a state of pupilage...[and] their relationship to the United States resembles that of a ward to his guardian.") Worcestor v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Where the United States has assumed a duty to manage, the highest fiduciary standards apply. Seminole Nation yv. United States, 316 U.S. 286 (1942). “° The recent tendency is against finding generic trust duties in favor of those defined by Congress. White v. Califano, 437 F. Supp. 543 (D.C. S.D. 1977) aff'd. sub nom White v. Matthews, 420 F. Supp. 882 (D.C. S.D. 1976), aiano, aaa reac’ aff'd. per curiam 581 F. 2d 697 (8th Cir. 1978). *'Cohen at 673-678 (describing the change in federal service delivery from the non-intercourse acts to the "Great Society" programs. Act of June 2, 1924, ch. 233, 43 Stat. 253. 55 2. Getches, Wilkinson & Case on Federal Indian Law Authors of case law texts, treatises and court opinions concerning federal Indian law find it difficult to avoid the influence of Cohen's Handbook of Federal Indian Law. However, contemporary authors contribute perspectives colored by time and place. David Getches and Charles Wilkinson suggest that federal Indian law focuses on three concerns: Tribal sovereignty and Indian property rights, federal power and obligations, and States' rights. Getches and Wilkinson, Federal Indian Law: Cases and Materials xxiv (1986). Tribal sovereignty and federal power are no less valid after Cohen's publications, but tribal jurisdictional and property rights have increasingly come in conflict with States' rights and interests. As Justice Stevens wrote in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979)(establishing that the right of Indians in the pacific northwest to fish at their "usual and accustomed grounds and stations...in common with all citizens of the Territory" meant they could take up to fifty percent of the run of salmon): The purport of our cases is clear. Non-treaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other "citizens of the territory." Both sides have a right, secured by treaty, to take a fair share of the available fish. Id.. The Supreme Court strictly construed the relative rights set out in the Washington treaty fishing rights cases pursuant to the federal treaty language. However, the Court has increasingly balanced the interests of Indian tribes and states (and their subdivisions and citizens) in the absence of a preemptive federal statute. For example, in Brendale v. Confederated Tribes and Bands of the Yakima Nation, 492 U.S. 408 (1989), the Court found that a county planning code took precedence over the tribe's in the open part of a former reserve where the tribe had lost the power to exclude non-members. According to the court, "because the open area no longer maintains the character of a unique tribal asset and because the Tribe accordingly lacks a substantial interest in governing land use, the [tribal] power to zone has become outmoded." David Case examines the federal relationship with Alaska Natives in his treatise on federal Indian law in Alaska. Case notes that federal statutes and policy define the government's relationship with Alaska Natives due to the absence of treaties: [S]tatutory [and regulatory] descriptions afford an opportunity for both the federal government and Alaska Natives to define their respective obligations and expectancies, thereby ensuring more likely future realization of both... These statutes manifest all four aspects of the federal relationship to Alaska Natives: 1) protecting Native lands and resources; 2) providing human services; 3) protecting subsistence values; and, 4) promoting Native government. Case at 22. In sum, federal Indian law and policy defines the federal relationship with American Indian tribes. As Case observes, federal Indian laws define the "respective obligations and 56 expectancies [of tribes and the federal government], thereby ensuring more likely future realization of both." Case at 22. While some observers believe that the relative certainty of these federal laws, which temper otherwise rapid changes in the society, can be assuring, Cohen at 2, some Natives consider legal attempts to define the social and political boundaries of a society dangerous: I am against putting down our definitions of sovereignty. Sovereignty isn't a word that is there for other people to define. Sovereignty, to us, is a word that is lived. Sovereignty is the ancestral spirits that each and every one of us carry within our hearts and within our minds...and that power...that driving force...[A]nother [politician]...can take that document; and they can twist it to suit their own fancy and put their own interpretations in there. So I'm leery about doing that. Alaska Natives Commission Hearing at Klawock, Alaska, October 24, 1992, (Testimony of Gilbert Charles Fred). Mr. Gilbert Fred could well be a scholar of federal Indian law. The history of federal Indian law and policy reveals many changes in the policy tide which give credence to Mr. Fred's skepticism. A brief introduction to the dynamics of federal Indian law and policy follows in the next section. B. The Dynamics of Federal Indian Policy Federal Indian law memorializes the legal relationship between Indian tribes and the federal government.’ The law lags behind, but eventually follows the movements of society. In order to understand federal Indian law, people must study the history of the contacts between the two societies. As Rennard Strickland, the chief editor of the 1982 edition of Cohen, observed: In historically reconstructing the origins, purposes, goals, values and motivations of Indian policy, lawyers too often attempt to find a rational basis for policy decisions...The consequence of this erratic legal rationality has been an absence of a single, unified, established American Indian policy...Consistently, the rules have changed, often for reasons that have little to do with Indian concerns or needs. Boundaries are shifted when gold is discovered; promises of Indian statehood are abandoned when it is clear that the Indian territory has rich agricultural potential; land is withdrawn when railroads wish to move across the plains. R. Strickland, The Absurd Ballet of American Indian Policy or American Indian Struggling with Ape in Tropical Landscape: An Afterword, 31 Maine L.Rev. 213, 220-221 (1979). The larger trends in the history of Federal Indian policy reveal swings between the federal government's attempts to separate Indian communities from the larger society and later forcing the tribes to assimilate into the dominant culture. Early Indian Country statutes ‘S" There is a very real sense in which it can be said that no provision of law ever completely disappears. This is particularly true in the field of Indian law. At every session of the Supreme Court, cases arise in which the validity of present claims depends upon what the law was on a particular point in some earlier period. Laws long repealed have created legal rights which endure and which can be understood only by reference to repealed legislation. Thus in studying Indian law one cannot rest with a collection of laws still in force, but must constantly refer to legislation that has been repealed, amended, or superseded." Cohen at 2. 57 kept Indian lands separate from state lands. The following period of Indian reservations located within states yielded to the allotment of those reservations into small parcels held by individual Indians. The federal government finally stopped allotting Indian lands during the Indian reorganization period of the early 1930's when it attempted to use the tribe as a vehicle of social progress and economic development. This period of tribal rebirth was quickly followed by a wholesale period of federal termination of its relationship with Tribes. Since the early 1960's, the general trend of Federal Indian policy has been to strengthen tribal government as a means to accomplishing Indian individual and collective "self-determination." Federal Indian law kept pace with each of these policy shifts and provides a sort of historical record.** C. Historical Application of Federal Indian Law in Alaska As agreed in the Treaty of Cession with Russia, the United States intended to subject Alaska Native tribes to the same laws it applied to other Indian tribes in the country. David Case points out that only "uncivilized tribes" were supposed to be treated in this manner, perhaps in reference to the federal practice of bestowing citizenship on Indians who were either not members of an Indian tribe or terminated their tribal relations.*® The distinction never significantly influenced federal policy in Alaska which was equally labored and unpredictable regardless of the level of any particular Native's civilization.** Nonetheless, early managers of federal Indian policy in Alaska, which centered on the delivery of education services to Alaska Natives, promoted the distinction between tribal status and citizenship: The Government has never treated them as Indians, and it would be a national calamity at this late date to subject them to the restrictions and disabilities of our Indian system. Among those best known their highest ambition is to build American homes, possess American furniture, dress in American clothes, adopt the American style of living, and be American citizens. R. Price, The Great White Father in Alaska: The Case of the Tlingit and Haida Salmon Fishery 87 (1990)(Quoting Sheldon Jackson, the first General Agent of Education in Alaska from his Report on Education in Alaska 34 (1886). Late educators carried on this philosophy: ... The abandonment of tribe and clan, together with superstition and cumbersome and barbarous traditional laws or customs that cling to them, must be accomplished, and the native must learn to recognize the laws of “Whereas early court decisions like Worcester defended the integrity of Indian tribes and their lands, later judicial decisions legitimized unilateral termination of Indian treaty rights, Rosebud Sioux Tribe v. Kneip, 430 U.S. 534, 594 (1977) and takings of aboriginal lands without compensation, Tee Hit Ton Indians v. United States, 348 USS. 272 (1955). “Case at 6; See generally, Cohen at 642-645. “One federal education statute allowed the children of mixed blood Natives leading "a civilized life" to attend schools attended by non-Native children. Courts of the day prevented mix blood Native children from attending white schools if they continued merely to associate with Natives. Davis v. Sitka School Board, 3 Ak. Rpts. 481 (1908). 58 Government and the moral law if he ever expects to enter into business or industrial competition. In order that these may be relinquished the principles of the Christian religion must be inculcated in him. Id, at 88 (quoting W.G. Beattie, Superintendent of the Sitka Training School and advisor to the founders of the Alaska Native Brotherhood--the ANB*’, from a 1910 volume of the Home Mission Monthly, a Presbyterian Church publication). No one philosophy melded Federal Indian policy in Alaska in the early years. The Secretary of the Interior Seward declared Alaska to be Indian Country and it was treated as such by the military which asserted its authority over Indians on this basis. "Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers," Opinion No. M-36975 at 17 (Jan. 11, 1993)("Solicitor's Opinion"). A later series of cases penned by Judge Deady from the federal district court in Oregon rejected this view of law holding without analysis that Congress only intended to extend some, but not all, federal laws to Alaska. United States v. Seveloff, 27 F. Cas. 1021, 1024 (1872). Some commentaries have stated that Seveloff and Deady's subsequent decisions were motivated by his not uncommon view that anything, including adverse interpretations of law, that interfered with non-Native access to and development of the frontier was not the law.“ The end of the treaty making period with Indians came just four years after the United States acquired Alaska preventing any negotiated clarification of the relationship between Alaska Natives and the United States. Congressional legislation did little to settle matters. Laws of the time reflect the struggle to facilitate development in Alaska while maintaining some protection for the possessory rights of Alaska Natives. The first Organic Act that extended federal mining laws to Alaska declared: That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress. The Organic Act of May 17, 1884, sec. 8, 23 Stat. 24. In the following seventy years, courts would find alternatively that the Organic Act permitted Natives to convey title to their lands®’, prevented Natives from conveying lands” and recognized compensable “’7The ANB was founded in 1912 as one of the first Indian civil rights organizations. The ANB originally promoted citizenship, Indian education and abolition of those aboriginal customs that impeded the advancement of Indians. The ANB's initial ambivalence to tribalism carried over to modern attempts to revive tribes under the Indian Reorganization Act. See, "The Alaska Native Brotherhood and IRA's" in Naats'keek, This is Yakutat 47-49 (Kadashan Enterprises, Yakutat, 1992). “*Niedermeyer, Note, "The True Interests of a White Population": The Alaska Indian Country Decisions of Matthew P. Deady, 21 N.Y.U. J. Int'l L. & Pol. 195 (1988). The cases included In re Carr, 5 F. Cas. 115 (D. Or. 1875; Waters v. Campbell, 29 F. Cas. 411 (C.C.C. Or. 1876); United States. Williams, 2 F. 61 (D. Or. 1880); United States v. Stephens, 12 F. 52 (D. Or. 1882); Kie v. United States, 27 F. 351 (D. Or. 1886); and Nelson v. U.S.,30 F. 12 (C.C.C. D. 1887). Sutter v. Heckman, 1 Ak. Rpts. 188 (D.C. Ak 1901). wer U.S. v. Berrigan, 2 Ak. Rpts. 442 (D.C. Ak 1904). 59 individual Indian titles to land*', before finally deciding that the Act merely maintained the status quo--that Alaska Natives held unrecognized and uncompensable rights to use and occupy lands.” In the meanwhile, the Congress continued to include Alaska Natives in Indian legislation or crafted special statutes for their benefit, including legislation providing authority for Alaska Native allotments and town sites, Indian education, reservations of federal lands, limited protections for Native subsistence, and repeated appropriations to carry out these duties. See generally, Case, ch. 1. Modern federal courts found Indian country in Alaska®, declared that Alaska Natives held valid aboriginal land claims® and prohibited State land selections under the Statehood Act until such time as all land in Native possession could be identified and excluded from state land selections. In 1923, the United States Solicitor had found that relationship between Alaska Natives and the United States was "very similar and in many respects, identical with those that have long existed between the Government and Aboriginal people residing within the territory." 49 L.D. 592 (1923}, aff'd in 53 L.D. 593, 604-605 (1932). Alaska Natives suffered through a sort of terminationist period of Federal Indian Policy at the same time as tribes in the states.*° During the late 1940's and through the 1950's federal court decisions effectively eliminated federal authority to preserve exclusive fisheries for Indians residing on reservations in Alaska. Grimes Packing Co. v. Hynes, 337 U.S. 86 (1949)(Native fishery could only be protected in a trespass action agreed to by the Justice Department in Washington, D.C.); U.S. v. Libby, McNeil and Libby, 107 F. Supp. 697 (1952)(Trespass case to eject a non-Native fish trap held that the Hydaburg reserve was illegally established and void). The United States Supreme Court also concluded that most Native lands in Alaska were held pursuant to unrecognized and uncompensable aboriginal title. Tee-Hit-Ton Band of Indians v. U.S., 348 U.S. 272 (1955). Finally, the Congress added Alaska as one of the mandatory Public Law 280 states and transferred federal criminal and limited cause of action jurisdiction over Indian Country in Alaska to the State.*” By the early 1960's, the federal government had already stopped setting aside Indian reservations in the state under the governance of village based Indian Reorganization Act tribal councils. Instead, the Department of the Interior was promoting voluntary transfers *!Miller v. U.S., 159 F.2d 997 (9th Cir. 1947). Miller v. U'S,, *Tee-Hit-Ton Band of Indians v. U.S., 348 U.S. 272 (1955). ‘In re McCord, 151 F. Supp. 132 (D.C. Ak. 1957). “Tlingit and Haida Indians of Alaska v. U.S., 177 F. Supp. 452 (Ct. Cl. 1959). State of Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969). See, Cohen at 152-180. *’See, 12 U.S.C. § 1162 (criminal jurisdiction); 28 U.S.C. § 1360 (civil jurisdiction); and 25 U.S.C. §§ 1321-1326 (Indian Civil Rights Act, amendment). 60 of local government authority from federally chartered IRA councils to municipal governments organized under state law: RECOMMENDATIONS: In commenting on matters of village organization, the Task Force calls attention to two problem areas:** 1. The need for establishing village governments consistent with the system of municipal organization found throughout the State. Comment: Native villages vary in size and quality for incorporation as cities of different classes. A majority, however, at least fulfill the criteria for fourth class cities. The Task Force suggests that the Juneau Office discuss with those communities which already have I.R.A. constitutions the pros and cons of dissolving their village associations and incorporating under State law. At the same time, it should work with non-LR.A. villages to encourage them to organize in similar fashion. 2. The desirability of providing for State-licensed business organizations in the Native communities as an alternative to the granting of Federal charters. Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs 86, December 28, 1962. Although some Native communities were persuaded to organize city governments during the 1960's, most cities in rural Alaska were not incorporated until the State of Alaska begin to distribute oil revenues to municipalities once North Slope oil production took off in the early 1970's. The tribal governments continued to exist along side the cities (IRA's require congressional action to dissolve). Despite Statehood Act disclaimers of any interest in Native land and fishing rights, the United States Supreme Court only partially upheld Native rights to fish free of state regulation. Kake v. Egan, 369 U.S. 60 (1962); Metlakatla v. Egan, 369 U.S. 45 (1962). The State also rapidly filed for lands in and around Alaska Native Villages as its entitlement under the Act. State of Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969). Very soon, however, the Kennedy administration and later the Johnson administration started programs to address poverty conditions around the nation, including rural areas like Alaska, through a network of community development programs” that eventually lead to increased attention to Indian programs.® Alaska Natives developed non-profit regional The second recommendation pointed out: "2. The desirability of providing for State-licensed business organizations in the native communities as an alternative to the granting of Federal charters." Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs at 87. See, Cohen at 180-184. Id. at 184-206. 61 development service organizations and acute political skills during this period of time." With these resources, political acumen, and luck, the Alaska Natives started on the path to a land claims settlement.” Federal officials were called on to renew contacts with the tribal communities for the purpose of identifying villages that would be eligible for such a settlement.® At the time, very few villages still maintained active tribal governments.“ And yet, every Native community in the state relied upon the tribal status of their Native villages to sustain colorable claims to aboriginal title. With the passage of the Alaska Native Claims Settlement Act and the extinguishment of claims based upon aboriginal title, the collective attention and leadership of the Alaska Native community was drawn away from issues of local government and service delivery and, instead, focused on corporate organization, land selection, and business operations. It would take nearly ten years for villages in Alaska to replenish their cadre of leaders and for the issue of tribal government to surface again. In the next section, we review contemporary views on tribal sovereignty and Indian affairs in Alaska. “'See, Case at 389-391. See, Arnold at 93-144. “Telephone Interview with John Hope, former Tribal Operations Officer (1947-55, and 1963-80), Juneau Area Office, November 1, 1993. “Id. 62 III. Policy Positions Knowledgeable participants in the Alaska Native land claims process thought that Native villages would eventually transform themselves from indigenous local governments into "ordinary business corporations" once a corporate based land claims was enacted: [W]e have separated the native village as a municipal corporation from the native village as an incorporated tribal enterprise. And the lands and the money will be going to the incorporated tribal entity which will be gradually transformed into an ordinary business corporation with shares that are fairly alienable. See, Alaska Native Land Claims: Hearings on S. 2906, S. 1964, S. 2690, and S. 2020 Before the Comm. on Interior and Insular Affairs, 90th Cong., 2d Sess. 89 (1968)(Statement of Barry W. Jackson, Attorney for a Number of Indian Organizations}("Alaska Native Land Claims: Hearings on S. 2906"). Nothing could be further from the truth. If anything, ANCSA corporations have become more like tribes. Stock in the corporations remains inalienable indefinitely. Special amendments also allow corporate shareholders to make extraordinary distributions and stock conveyances for the benefit of Native elders and youth. Protections against the loss of community lands in corporate ownership have increased and growing numbers of Native villages are conveying lands or interests in lands back to tribal governments. Implementing the land claims took an extraordinary amount of time, but eventually attention returned to the village community. A new policy of Indian self-determination evolved in the 1970's out of a growing number of federal Indian programs that shifted the responsibility for service delivery from the federal government to the tribes.® Tribal government activity sped up partly because these programs were only available to Indian tribes and duly appointed tribal organizations. The federal government began to bolster the status and authority of Indian tribes during this new era of tribal self-determination.% In 1977, the American Indian Policy Review Commission declared that ANCSA did not "effect a termination of the traditional Alaska Native tribes...as its very title implies"--it was a settlement of aboriginal land claims.” An earlier Special Task Force Report on Alaskan Native Issues prepared for the Review Commission went further: "It is presently unclear, although clearly a good argument can be made that Native villages are 'Indian Country' under the dependent community component “These programs are described in the Solicitor's Opinion at 38-46. Also see, Case, Ch. 9, "Modern Alaska Native Governments and Organizations." Vine Deloria, Jr., and Clifford Lytle discuss the distinction between tribal self-governance and self-determination in their book, The Nations Within 244-264 (1984): "Self-government is basically a political idea, and it has been superseded in our generation by the demand for self-determination. Indian affairs thus moved beyond political institutions into an arena primarily cultural, religious, and sociological and there are no good guidelines for either policy or programs in this new area of activity." American Indian Policy Review Commission, Final Report 95th Cong., 1st Sess. 491 (Comm. Print 1977). 63 of the concept..." In 1977, the Assistant Solicitor for the Department of the Interior stated that Alaska Native groups could become Indian tribes within the meaning of the Indian Reorganization Act rather than going through the federal acknowledgment process.” By 1982, the Department of the Interior published their first list of Alaska Native entities that the Bureau of Indian Affairs gave priority in federal Indian program funding and services.” At the same time, village based tribes in Alaska began to push beyond their service delivery functions and started actively exercising governmental authority. During 1976, the Chilkat Indian Village enacted a tribal ordinance prohibiting the removal of artifacts from their village, Klukwan.”’ The ANCSA village corporations for Arctic Village and Venetie quitclaimed the land encompassing their former reserve to their regional IRA government in 1979 and amended their 1978 gross receipts tax to include a business activities tax in 1986.” In 1981, the Native Village of Tyonek amended their 1965 housing ordinance to require village approval of any alienation of tribal housing. A non-member leased tribally constructed housing in Tyonek in 1982 subject to the ordinance.” Kluti Kaah, Native Village of Copper Center was planning a business activities tax for their community which included part of the Alyeska Pipeline.” The Alaska State Legislature enacted a law that distributed $ 25,000 per year to tribal governments located in otherwise unincorporated communities.” From these beginnings evolved a string of sovereignty cases and policy developments that would fuel the sovereignty debate for a decade. Two core legal issues define the tribal sovereignty issue: 1) tribal status -- does a Native community enjoy a government to government relationship with the United States, and 2) tribal authority -- what powers does a Native community retain on its own or exercise on the basis of a delegation from the United States. A few critical studies have reviewed these issues as they relate to Alaska. The American Indian Policy Review Commission Report in 1977 came too soon to address any of the specific actions being taken by Alaska Village tribes and thus concentrated on the “8Special Task Force Report on Alaska Native Issues, American Indian Policy Review Commission 23 (1976). “Opinion letter from Associate Solicitor for Indian Affairs, Thomas Frederick to Edward Weinberg (Sept. 14, 1977). 47 Fed. Reg. 53,133 (Nov. 24, 1982). ”\Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1471 (9th Cir. 1989). State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988). Native Village of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992). Alyeska Pipeline Service Company v. Kluti Kaah Native Village of Copper Center, No. A87-201 Civil. 7 ‘Blatchford v. Native Village of Noatak, 111 S.Ct. 2578 (1991) rev'g Native Village of Noatak v. Hoffman, 896 F.2d 1157 (9th Cir. 1990). 64 implications of ANCSA on the governmental status and authority of tribes in Alaska. A state study, Legal Status of the Alaska Natives, A-Report to the Alaska Statehood Commission (July 30, 1982), provides some of the first extensive legal analysis of the status and authority of Alaska's Native Tribes following David Case's early analysis of the Federal government's relationship with Alaska Natives.” Thomas Berger raised the sovereignty issue in a Native sponsored report partly in response to the Secretary of the Interior's report on the implementation of the Alaska Native Claims Settlement Act required by section 23 of the Act.”” By far the most illustrative reports on the sovereignty debate resulted from a Governor's Task Force on Federal-State-Tribal Relations (the "Governor's Task Force") called by Governor Bill Sheffield on September 5, 1984. The official Report of the Governor's Task Force was drafted by Donald Mitchell and Robert Price.”* The Rural Alaska Community Action Program sponsored a "minority opinion" supported primarily by the Native and federal members of the Task Force.” The two reports discussed five issues raised by Governor Bill Sheffield: 1) What groups of Alaska Natives have been recognized by the federal government as "Indian tribes?" 2) How does the federal government recognize Alaska Native tribes? 3) What are the respective governmental powers of a federally recognized "Indian tribe" in Alaska, a Native village council organized pursuant to the Indian Reorganization Act, and a Native village council which has not been organized pursuant to the Indian Reorganization Act with respect to exercising governmental authority over: i. Its own members; ii. Non-members; iii. Land and renewable resources otherwise subject to the jurisdiction of the United States; and iv. Land and renewable resources otherwise subject to the jurisdiction of State of Alaska? 4) With respect to using state monies to fund essential governmental services in Native villages, what is the effect of a decision by residents of a village to dissolve their municipal government in order to use the IRA or traditional council to provide governmental services? 71D, Case, The Special Relationship of Alaska Natives to the Federal government (Alaska Native Foundation, 1978). ’T. Berger, Village Journey, The Report of the Alaska Native Review Commission (1985). State of Alaska, Report of the Governor's Task Force on Federal-State-Tribal Relations--Submitted to Governor Bill Sheffield (Feb. 14, 1986). Toward Understanding: A Positive View of Federal-State-Tribal Relations (Mar. 31, 1986}(An adaptation of the Governor's Task Force Report on Federal-State-Tribal Relations sponsored by the Rural Alaska Community Action Program, Inc.). 65 5) What are the legitimate interests of the State of Alaska and the legitimate interests of a Native council in exercising governmental authority over the Native and non-Native residents of the council's village and the land and resources within and surrounding the village? How are these interests compatible? How are they incompatible? This framework will be used to summarize the respective policy positions expressed by Natives, the Federal government, and the State of Alaska in writings, litigation, and in public addresses. Some of these matters have been more or less resolved since 1986. We start with the first two questions regarding federal recognition, then complete the list with the comparative views of the three parties. A. What groups of Alaska Natives have been recognized by the federal government as "Indian tribes?" The State of Alaska and its Supreme Court believe that few if any Indian communities in the state had ever been affirmatively recognized by the United States as an Indian tribe.*° The Alaska Supreme Court relied upon research developed in the Governor's Task Force Report and ambiguous statements accompanying the publication of the BIA's earlier Alaska Tribal lists to support its finding. Without unequivocal recognition, Alaska Native tribes have been forced to argue that Congress had either recognized them through the passage of federal Indian legislation like the IRA and ANCSA, by publication of the BIA tribal list, or through a course of dealing with them as historical tribes.*! It appears that the Secretary of the Interior has resolved the status issue by publishing a list of 226 traditional councils and Indian Reorganization Act councils that the government deals with on a government to government basis. "Native Entities Within the State of Alaska Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs," 58 Fed Reg. 54,364 to be codified at 25 C.F.R. part 83 (October 21, 1993)("Alaska Tribal List"). The Secretary clarified that the listed traditional and Indian Reorganization Act councils: are not simply eligible for services, or recognized as tribes for narrow purposes. Rather, they have the same government status as other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a government to government relationship with the United States; are entitled to the same protection, immunities, privileges as other acknowledged tribes; have the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes; and are subject to the same limitations imposed by law on their tribes. *°Native Village of Stevens Village v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988). *ISee, E. Smith & M. Kancewick, The Tribal Status of Alaska Natives, 61 Colo.L.Rev. 455 (1990) and L. Miller, Caught in a Crossfire: Conflict in the Courts, Alaska Tribes in the Balance, Harvard Indian Law Symposium 135 (1989). 66 Id. at 54366." The Secretary's publication of the Alaska Tribal List has already favorably impacted pending sovereignty cases in the federal courts. The federal district court in Alaska recently dismissed one of the listed villages from a federal lawsuit due to its tribal status and immunity as acknowledged by the Alaska Tribal List. Alyeska Pipeline Service Company v. Kluti Kaah Native Village of Copper Center, No. A87-0201-CV (Order (Tribal Status), December 22, 1993). The State of Alaska is a party to the Alyeska lawsuit and conceded Kluti Kaah's tribal status. The State left no indications that it will concede the tribal status of other tribal communities. Resolution of the status issue in federal cover does not necessarily mean that the state courts will follow suit until forced to either by the United States Supreme Court, the state legislature, or by continued concessions by the State's attorneys. The Native community fought hard for the publication of a bona-fide tribal list.8’ And yet, some smaller Native communities, historical Native communities located in urban areas, and a special legislative tribe are still not recognized pending administrative or legislative review. B. How does the federal government recognize Alaska Native tribes? The federal government recognizes tribes by dealing with them on a government to government basis. The government memorializes the relationship in different ways. Historically, it entered into treaties with Indian tribes. More recently, the Congress has enacted laws that acknowledge the relationship. Congress delegated the duty of acknowledging Indian tribes to the Secretary of the Interior. Native groups in the United States can establish recognition of their status by petitioning the Secretary pursuant to federal acknowledgment procedure regulations.** Alaska Native communities can also do so by filing an IRA petition.** Successful tribal petitioners under either process are added too the list of acknowledged tribes published by the Secretary. Tribes can also litigate and attempt to prove that the United States has already recognized them as a tribe as a matter of law or fact.*° “©The Secretary's statement accompanying the list is subject to a significant caveat: "Sol. Op. M-36,975 concluded, construing general principles of Federal Indian law and ANCSA, that 'notwithstanding the potential that Indian country exists in Alaska in certain limited cases, Congress has left little or no room for tribes in Alaska to exercise governmental authority over land or nonmembers.’ M-36,975 at 108. That portion of the opinion is subject to review, but has not been withdrawn or modified." 58 Fed. Reg. at 54366, n. 1. See e.g., Letter of January 14, 1992, from the Alaska Native Coalition and other tribal organizations to Lynn Forcia, Chief, Branch of Acknowledgment and Research, Bureau of Indian Affairs. “95 C.E.R. part 83. S95 C.F.R. part 81. “State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (1988). 67 C. What are the respective governmental powers of a federally recognized "Indian tribe" in Alaska, a Native village council organized pursuant to the Indian Reorganization Act, and a Native village council which has not been organized pursuant to the Indian Reorganization Act with respect to exercising governmental authority over: i. Its own members; ii. Non-members; iii. Land and renewable resources otherwise subject to the jurisdiction of the United States; iv. Land and renewable resources otherwise subject to the jurisdiction of the State of Alaska? 1. Native View There was a time when it could be said that there was little if any consensus in the Native community on the status or authority of Alaska Native village tribes. Early on, missionaries acting as federal officials emphasized the policies that forced Natives to choose between citizenship and tribal membership.*” These "official" actions influenced Native thought at the time and, for a time, institutionalized Native distrust of the IRA and the federal reservation system.** In the early 1980's Native leaders began to discuss the appropriated roles of Native tribes and corporations but also emphasized the failings of former tribal policies.*’ More recently, with State policies perceived to be increasingly adverse to Native subsistence and civil rights, the same Native leaders now advocate that "Tribal governing powers, long denied by the State of Alaska and the federal government, need to be recognized and accepted as part of our state's governing system."” And yet many Natives remain wary of the limited legalistic and political view of tribal status and powers. A Tlingit from southeast Alaska expressed this concern the best: I feel that every time that we Indians dance, every time that we teach our children their culture and the way that our society is set up in a matrilineal society, how we learn from our mothers' people, how we take our mothers' crests, every time we carry potlatches every time we go out there to provide *’See e.g., R. Price, The Great Father in Alaska: The Case of the Tlingit and Haida Salmon Fishery 87-97 (1990). “See, "The Alaska Native Brotherhood and IRA's" in Naats'keek, This is Yakutat 47-49 (Kadashan Enterprises, Yakutat, 1992). See, R. Huhndorf, "IRA councils: finding a model," Anchorage Times, April 3, 1983. °R. Huhndorf, "President's Message, Social Justice: A time for action" (The CIRI Newsletter, 1993). 68 the customary foods for our potlatches, these are...exercises of sovereignty. I feel that every time that our people are arrested for going out and getting these foods to provide for potlatches this is an infringement and a denial of our sovereign rights... Alaska Natives Commission Hearing at Klawock, Alaska, October 24. 1992, (Testimony of Gilbert Charles Fred). ..I am against putting down our definitions of sovereignty. Sovereignty isn't a word that is there for other people to define. Sovereignty, to us, is a word that is lived. Sovereignty is the ancestral spirits that each and every one of us carry within our hearts and within our minds, etc. , and that power and that driving force...This is what sovereignty means to us, another {politician] can be there, and they can take that document; and they can twist it to suit their own fancy and put their own interpretations in there. So I'm leery about doing that... Id. (Testimony of Gilbert Charles Fred). In sum, the Native community has reached consensus on the tribal status issue and appears to be moving toward agreement on the authority of tribes. The best example of this trend is seen in a recent analysis of the Solicitor's Opinion by the AFN.”! The AFN criticizes the Solicitor's conclusion that tribal status in Alaska is a rebuttable presumption and cites approvingly to the newly published Part 83 tribal list. AFN also claims the Solicitor's Indian Country analysis as inconsistent with recent federal court decisions and administrative practice. However, AFN does not discuss, as few do, the potential scope of tribal powers. Consensus on tribal power will only occur after tribes begin to use their power. Generally speaking, Alaska tribes support the view that their jurisdiction is no different than that of reservation based tribes. Their views are summarized as follows: Its own members -- Tribes enjoy civil and concurrent criminal jurisdiction over their members within and outside tribal territory which at a minimum includes ANCSA village corporation entitlements and restricted properties held by members. Non-members -- Tribes may employ civil regulatory and adjudicatory jurisdiction over the activities of non-members who enter into voluntary agreements with the tribe or tribal members or otherwise threaten the tribe's political integrity or the health, safety and welfare of the tribal community. Montana v. United States, 450 U.S. 544 (1981). Land and renewable resources otherwise subject to the jurisdiction of the United States? -- The federal government exercises jurisdiction over federal lands and waters in the state (including navigable waters), restricted allotments and Native town sites, and dependent Indian communities which at the very least also include village corporation lands. Tribes exercise concurrent jurisdiction, with the federal government, over °*' Alaska Federation of Natives, Analysis of Department of Interior Solicitor's Opinion Examining The Issue of Tribal Status and Powers of Alaska Native Villages 29 (November 1993)(On Reserve at the National Indian Policy Center, Wash., D.C.). 69 dependent Indian community lands and water and may jointly govern more in cooperation with the federal government through co-management agreements. Land and renewable resources otherwise subject to the jurisdiction of State of Alaska? -- Either federal laws will preempt state laws or tribal interests will prevail within dependent Indian Communities when weighed against state interests. State interests generally will prevail on state lands outside of dependent Indian communities. 2. Federal View Congress can establish policy on any matter concerning Indian Affairs. Congress has effectively removed itself from any role in this process by including disclaimers in most recent Indian legislation. These disclaimers state that nothing in the legislation will either diminish or expand Alaska Native tribal authority nor validate or invalidate any claim of sovereign authority over lands and people.” The Executive Branch enacts regulations consistent with federal laws and can issue opinions and publish court briefs on these matters. Executive Branch authority is particularly persuasive on determinations of tribal status which Congress delegated to it. The federal courts can determine the meaning of federal laws and their application in cases where the statute does not do so. In this respect, the federal courts have historically lead the way in determinations of Indian Country and may make determinations that are inconsistent with administrative decisions of the Executive Branch, but not of the Congress so long as it operates within the scope of its power over Indian affairs. The Solicitor's Opinion published in the eleventh hour of the Bush Administration is only one view, albeit and important one, of the policy of the federal government despite the fact that the current administration says that it is reviewing the opinion as it regards Indian country and tribal authority in Alaska.”* The Solicitor argues that ANCSA did nothing to effect the retained tribal powers necessary to determine membership and to regulate internal tribal affairs (subject matter untied to territory)”* other powers delegated to them by Congress -- such as the authority under the Indian Child Welfare Act. As for Indian Country in Alaska, the Solicitor concludes that the Congress expressed an intent that ANCSA lands do not constitute Indian Country.*° Although the Solicitor acknowledges that restricted town site lots and allotments remain Indian Country for federal jurisdiction purposes, it also concludes that tribes do not exercise governmental authority over restricted properties unless they own them. Whether these rather novel interpretations of federal Indian law will be accepted by the federal courts is yet to be seen. The Federal District Court in Alaska and the Ninth Circuit Court of Appeals have already determined that Indian Country can exist in the state and, contrary to the Solicitor's Opinion, that ANCSA did not affect either the tribal or Indian Country status of Indian See e.g., 26 U.S.C. § 7701 (40) and P.L. 100-241, 101 Stat. 1788. See, text at supra note 82. *Solicitor's Opinion at p. 107. 1d, °Id. at 65. 70 lands in Alaska.” The federal government's present positions are summarized as follows: Its own members -- Solicitor: tribes control membership issues and exercise those powers that are not dependent on a territorial base. See, Cohen at 347-348." Federal Courts: No tribal powers are precluded subject to findings of tribal status and Indian Country.” Non-members -- Solicitor: No tribal powers in the absence of tribal territory, except in limited instances where federal law delegates limited subject matter jurisdiction to the tribes as in ICWA.'© Federal Courts: No tribal powers are precluded. A standard analysis would apply subject to findings of tribal status and Indian Country.'” Land and renewable resources otherwise subject to the jurisdiction of the United States? -- Solicitor: No tribal powers unless the tribe is one of 27 that were conveyed unoccupied town site lots and the tribe can show some "tribal nexus" to the land.'” Federal Courts: No tribal powers precluded, subject to standard Indian Country tests. All dependent Indian community lands are automatically subject to federal jurisdiction. Restricted Native allotments and town sites could be included as part of the tribal territory. Land and renewable resources otherwise subject to the jurisdiction of State of Alaska? -- Solicitor: No tribal powers exist.’ Federal Courts: No tribal powers precluded, subject to standard Indian Country tests. State jurisdiction could be preempted by federal law or subject to a balancing test between State and tribal interests. *’See, Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1471 (9th Cir. 1989) and Memorandum and Order, J84-024 Civil (October 9, 1990)(Chilkat is a tribe and Klukwan is Indian Country for purpose of determining tribal ownership of clan artifacts in the possession of a non-member notwithstanding ANCSA.}; State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988)(Traditional Indian Country tests apply in Alaska); Order (Tribal Status), Alyeska Pipeline Service Company, et al., v. Kluti Kaah Native Village of Copper Center, et al., No. A7-0201-CV (December 22, 1993)(ANCSA does not preclude a finding of tribal status or Indian Country). °s" [IJn practice most tribes exercise authority only over such matters as tribal membership, elections, referenda, property distribution, and other uniquely internal matters." In essence, tribes would become mere membership organizations rather than governments in any meaningful sense if the Solicitor's view on Indian Country were to prevail. See e.g., Venetie IRA v. State of Alaska, 944 F.2d 548 (9th Cir. 1991)(Tribe may exercise domestic relations jurisdiction subject to a finding of tribal status). '°Solicitor's Opinion at 130. 101 10214, See e.g., Native Village of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992). Od, at 110-123. 71 3. State View Until recently, the State clearly expressed their view on tribal status and powers in their legal opinions, briefs and court decisions. The recent concession in the Alyeska Pipeline case leaves the State Supreme Court and the State Attorney General at odds. The Alaska Supreme Court only concedes that certain factually unique villages that possessed Indian country reservations at the time they adopted IRA charters might be tribes.!°* Copper Center, on the other hand, has never been declared Indian Country and is not organized under an IRA charter. Otherwise the State believes that tribes do not exist and since tribes do not exist, Indian country cannot exist for purposes of the tribes.'%° At one time, Governor Cowper issued an Administrative Order 123 (Sept. 10, 1990) that recognized the tribal status of ANCSA villages for purposes of federal Indian program service delivery and recognized tribal powers sufficient to manage solely internal affairs much akin to the current Solicitor's view. Governor Walter Hickel revoked Administrative Order 123 and replaced it with Administrative Order 125 declaring that "Alaska is one country, one people." The Order goes on to say that the State "opposes expansion of tribal governmental powers and the creation of "Indian Country" in Alaska. The State of Alaska's views on tribal authority can be summarized as follows: Its own members -- Tribes do not exist in Alaska, except on Metlakatla and in extraordinary circumstances, and therefore cannot have members or jurisdiction over them. Non-members -- No tribal power except for civil authority on Metlakatla. Land and renewable resources otherwise subject to the jurisdiction of the United States? -- No tribal power except on Metlakatla. Land and renewable resources otherwise subject to the jurisdiction of State of Alaska? -- No tribal power. D. With respect to using state monies to fund essential governmental services in Native villages, what is the effect of a decision by residents of a village to dissolve their municipal government in order to use the IRA or traditional council to provide governmental services? 1. Native View -- See, C.1. Natives have argued that State actions precluding Indian tribes from state funding mechanisms on the grounds that they are racially defined organizations constitutes discrimination based on an unlawful (and erroneous) racial classification in violation of the "Native Village of Stevens Village v. Alaska Management & Planning, 757 P.2d 32, 35-36, n. 4 (Alaska 1988). ‘The State has been consistent in its position from the offset of the sovereignty cases. See, Opinion Letter of July 7, 1982, regarding the Application of the Indian Reorganization Act in Alaska from the State's Attorney General Wilson L. Condon to Lawrence Jensen, Associate Solicitor. 72 United States Constitution.’ Natives argue that the State can fund Native government in otherwise unincorporated communities in the same way that it funds incorporated communities and the Metlakatla Indian Reservation. The States distinguishes the funding for Metlakatla on the grounds that the tribe is recognized and occupies an unextinguished Indian reservation. The distinction will not hold up if other tribes in Alaska are found to occupy dependent Indian community since reservations are merely another kind of Indian Country unrelated to the racial makeup of the tribe. 2. Federal View -- See, C.2. 3. State View -- See, C.3. Although the State does not acknowledge the existence of tribes, its agencies employ fictions to get around the practical consequences of the State's view. Since the publication of the Governor's Task Force Report, the State has enacted legislation and regulations allowing municipalities to dissolve. A.S. 29.06.470, 29.06.500; 19 AAC 10.130. The first dissolution involved the City of Akiachak.'"” The Local Boundary Commission found that it was in the best interest of the State to permit the dissolution in part because "it seems evident that the Akiachak IRA Council is willing and able to provide local services to the community.""* The communities lose some state revenue sharing funds and all of their municipal assistance, but recent legislative budget cuts to these programs make this a less significant concern than before. E. What are the legitimate interests of the State of Alaska and the legitimate interests of a Native council in exercising governmental authority over the Native and non-Native residents of the council's village and the land and resources within and surrounding the village? How are these interests compatible? How are they incompatible? These issues are the same as they were in 1986 when the two Task Force Reports were issued. The Governor's Report only discusses the jurisdictional implications of the Indian Child Welfare Act. The RuralCap version includes analysis on the issues of criminal and civil jurisdiction; the federal tests for jurisdictional conflicts; and the jurisdictional consequences of the Federal Liquor Control laws, the Indian Child Welfare Act and dependent Indian community. The general jurisdictional concerns arising in these contexts have already been discussed above and will be developed more fully when the federal district court in Alaska decides the current tribal sovereignty cases on its docket. The following section reviews issues and recommendations suggested by witness testimony to the Governance Task Force and to the Commission. ‘Blatchford v. Native Village of Noatak, 111 S.Ct. 2578 (1991) rev'g Noatak v. Hoffman, 896 F.2d 1157 (9th Cir, 1990). '°’Department of Community and Regional Affairs, Report and Recommendation to the Local Boundary Commission, Petition For Dissolution of the City of Akiachak (June 5, 1989). ‘Id. at 21. 73 IV. Summary of Issues and Recommendations from Witness Testimony Witnesses, primarily Native from all regions of the state, testified to the Alaska Natives Commission on a wide range of issues. Some hearings addressed only governance issues under the jurisdiction of the Governance Task Force established by the Commission. Hearings at smaller rural locations were open to comments on all Commission issues from education to governance. The following are excerpts from this record on matters related to Alaska Native village tribal government and the "Sovereignty Issue." A. Tribal Status-- The Secretary of the Interior should publish a bona fide list of Alaska Native tribal governments and defend the tribal status of Alaska Native villages against legal assaults by the State and third parties. The State of Alaska should recognize the tribal status of Alaska Native villages and conform its legal interpretation of tribal sovereign immunity with that of the federal judiciary. The failure of the federal government to clearly recognize Alaska Native Village tribes exasperated Alaska Native witnesses and facilitates assaults on fundamental tribal interests in the state and federal courts by the State of Alaska and private parties. See, Alaska Natives Commission Hearings in Fairbanks, Alaska, July 18, 1992, (Written testimony of Shirley L. Lee). This Secretary of the Interior partly resolved this issue by publishing an Alaska Native tribal list on October 21, 1993 clarifying that the entities listed are traditional councils or Indian Reorganization Act councils which the BIA deals with on a government to government basis.'” Since then, Judge Holland dismissed Kluti Kaah Native Village of Copper Center from a federal lawsuit on the grounds of its tribal status and immunity as acknowledged by the BIA tribal list. Alyeska Pipeline Service Company v. Kluti Kaah Native Village of Copper Center, No. A87-0201-CV Order (Tribal Status, December 22, 1993). Although the Alaska tribal list does not resolve the scope of tribal powers issue, tribal status raises a strong presumption that certain powers, not requiring a tribal land base to exercise, continue to exist in a tribe unless Congress explicitly extinguishes the powers by legislation. Some examples of these powers include tribal sovereign immunity, personal jurisdiction over members, and certain kinds of subject matter jurisdiction such as child welfare matters governed by the Indian Child Welfare Act. Despite federal recognition, the State continues to attack and diminish Alaska tribal status in state court decisions that conflict with federal precedent and practice. See e.g., Note, The Waiver of Tribal Sovereign Immunity in the Contractual Context: Conflict Between the Ninth Circuit and the Alaska Supreme Court?, 10 Alaska L. Rev. 363 (1993)(Student note comparing the State Supreme Court's theory of implicit waivers of tribal immunity to the federal rule against implicit waivers). The state legislature should enact legislation reversing the untenable state policy on tribal '"Native Entities Within the State of Alaska Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs" pursuant to 25 C.F.R. part 83 on October 21, 1993, 58 Fed Reg. 54,364. 74 status reflected in Stevens Village v. Alaska Management and Planning, 757 P.2d 32 (Alaska 1988}(Supreme Court holding that there are no tribes in Alaska except for rare exceptions).!!° Only then, can the tribes and the State get on to the more critical matters of exploring the scope of tribal government powers in Alaska. Witnesses before the Commission demonstrated a striking appreciation of tribal sovereignty, its contemporary reality and the special problems (and dangers) of replacing "living" tribal sovereignty with a process and definition grafted into a statute or other government edict such as a list created and approved by a third party. Typical of this appreciation was the testimony of Gilbert Charles Fred of Angoon, member of the Wolf Clan, speaking to the Commission at its October 24, 1992, hearing in Klawock in his native language: {I]t needs to be reiterated that when our people speak of sovereignty, sovereignty is something that we have. Sovereignty is like our muscles. It's there. It's something that we shouldn't ask for. I believe that sovereignty is something that is useless unless we exercise it...When [the Tlingit and Haida] sued the federal government for lands taken from them and placed in the Tongass National Forest [that was] an indication of the indigenous tribes of Alaska exercising their sovereignty, making sovereign claim to these lands, and saying: "This is our land...this is a right that we've never relinquished." [T]he Tlingit and Haida suit, when they sued the federal government, spearheaded the ANCSA; and the passage of ANCSA is another indication of indigenous tribes of Alaska exercising their sovereignty. I feel that every time that we Indian dance, every time that we teach our children their culture and the way that our society is set up in a matrilineal society, how we learn from our mothers! people, how we take our mothers’ crests, every time we carry potlatches every time we go out there to provide the customary foods for our potlatches, these are...exercises of sovereignty. I feel that every time that our people are arrested for going out and getting these foods to provide for potlatches this is an infringement and a denial of our sovereign rights... Alaska Natives Commission Hearing at Klawock, Alaska, October 24, 1992, (Testimony of Gilbert Charles Fred). I feel very saddened to testify that our people are being denied their tribal and inherent rights. We do have sovereignty, I have seen the Hickel Administration; I have seen Frank Murkowski in Washington, D.C., try to define sovereignty; and I've seen their definitions in newspapers and they try to put out into the general public that sovereignty means that our people want a totalitarian government apart from the United states government. That is not true. Their attempts to define sovereignty to destroy our efforts to claim what is our inherent rights are working to the detriment of our people; and it's evident out there today. I feel that for an official to stand up and to say that: "I am against sovereignty. I'm against, Two law review articles analyze the schism between the federal and state courts on the issue of tribal status. E. Smith and M. Kancewich, The Tribal Status of Alaska Natives, 61 Colo. 455 (1990); L. Miller, Caught in a Crossfire: Conflict in the Courts, Alaska Tribes in the Balance, 1989 Harvard Indian Law Symposium (1990). 75 you know, totalitarianism." This isn't true. We swear, in the Alaska Native Brotherhood, to stand and uphold the Constitution of the United States. Many of our Tlingit, Haida, and Tshimshian people have gone to war in World War II and Viet Nam and have fought for this country. We have no indications or endeavors whatsoever to try to create a separate government. All we are here is we are citizens of the United States; but yet we have some tribal inherent rights as the indigenous tribes of Alaska, that are not being met; they are being denied at his moment. I take offense to people like Walter Hickel, the Governor of Alaska, and Frank Murkowski opposing sovereignty and drawing their own conclusions as to what sovereignty means. Angoon is an area that understands what sovereignty means, we live it. We exercise it. Every time we teach our kids our songs and dances, we're exercising sovereign rights. Any attacks upon these rights, I look at as an...attack on our sovereignty. Id. (Testimony of Gilbert Charles Fred). Asked by Commissioner Elliott to join with the people of Angoon to write down their definition of sovereignty, Mr. Fred refused: I would object to writing [it] down and taking an attempt, irregardless of whether or not I took this issue to the Grand Clan for it to say: "Let's get together and put it in a hat what we think sovereignty is and then put this down on paper." I am against putting down our definitions of sovereignty. Sovereignty isn't a word that is there for other people to define. Sovereignty, to us, is a word that is lived. Sovereignty is the ancestral spirits that each and every one of us carry within our hearts and within our minds, etc. , and that power and that driving force-- that forces [us to] stand up to fight for areas that are being threatened by the United States Forest Service...This is what sovereignty means to us. Another Walter Hickel can come into office, and another Frank Murkowski can be there, and they can take that document; and they can twist it to suit their own fancy and put their own interpretations in there. So I'm leery about doing that... Id. (Testimony of Gilbert Charles Fred). Native people and their communities seek control over the most fundamental parts of their lives--the parts that define what it means to be a Native community--protection of Native lands and resources; promotion of the health, safety and welfare of Native people and their culture through education, Native service delivery, and protection of cultural artifacts and practices; preservation of Native land and resource uses also called subsistence; and self-government, the prerogative to make their own rules and live by them. To these matters, governments and others attach the tag sovereignty. Preconceptions and misconceptions regarding the implications of sovereignty create constant problems for village tribes: Unfortunately, in Alaska we have a State administration that has asserted that there are no tribes in Alaska; that they are just merely clubs based on-- membership...based on racial ties. This cannot be further from the truth. [IJn addition to the state perception, we also have a general public perception that seems to fear tribal government. When we hear the word 76 sovereignty, many people's hackles go up...sovereignty is merely a reference to self-government that does exist in our villages." July 1992 Hearing in Fairbanks (Testimony of Shirley Lee). B. Indian Country-- The Secretary should withdraw the Solicitor's Opinion and clarify the federal government's position on the jurisdictional status of Native lands in Alaska by participating in pending federal court cases in support of Alaska Native tribes. Witnesses could cite from memory the scope of their traditional territory. Now, we the people from Klawock and around this part are sovereign people. We own from Point Baker all the way across to Point Ellis, all the way to the point out there, and down to Marsh Point over there. You know, these are the things that our grandfathers, our fathers told us. My grandmother told us what we owned. These are the things we understood. We never put it down on [a] piece of paper saying we owned this. But I bet you one thing, the Commissioners that they send around like you people have put it down on paper as to where we own. Klawock Hearing (Testimony of James Martinez). As witness Dalee Sambo reminded the Commission, The Alaska Native Review Commission, chaired by the Hon. Thomas Berger, had determined that villagers perceived their villages as staging areas for subsistence and had their own laws to deal with the conservation and harvest of wildlife. (See testimony of Dalee Sambo, October 16 Governance Hearings in Anchorage, recommending review of Chapter seven of T. Berger, Village Journey: The Report of the Alaska Natives Review Commission (1985)). Although Berger limited his definition of Indian Country to the core village, Alaska Native witnesses to the Commission stressed the need for village government to exercise control over subsistence regulation, resource conservation practice, liquor control and economic development outside the village core. These lands include those traditionally employed by villagers, a geographic realm now usually in the private and public jurisdiction of entities far from the village and incapable of monitoring occurrences there without close cooperation of village authorities. Alaska Native witnesses were confounded by the popular view of their situation and well understood their legal position under federal Indian law. Gideon James of Arctic Village drew the distinction between aboriginal title to land "that we lost and that then Native people got paid for" and aboriginal rights that were not lost. Said James: That's why the traditional government and IRA charter are in place today. And each tribe in Alaska should pursue to exercise those powers that are still in place. And it seems like the State of Alaska does not look at it that way, they'd rather take us to court and spend many, many hours, many, many years, just litigation, litigation, after litigation. And we have experienced that. We at the IRA government experience that, and we know what we're talking about. We're not going to compromise over any specific interest decision or recommendation; we will stand by the promise and the law that was written for Native tribes and IRA documents that are in place today. 77 July 1992 Hearing in Fairbanks (Testimony of Gideon James). Alaska Natives, like the federal courts, do not believe that the Alaska Native Claims Settlement Act extinguished Indian Country in Alaska. By and large, Natives believe that tribes still retain control over territory in their communities. C. Land ownership and control-- Native communities should be able to freely allocate ownership of and control over Native lands between Native corporations, tribal governments, individuals, and other Native institutions. Native communities should be able to guide land use decisions where competing uses threaten tribal and subsistence interests. Witnesses in Kotzebue, focused on the absence of ownership or control by Alaska Natives of lands on which they depend. You look at maps, like the one that's hanging on that wall right there. That's the NANA region. That's now what...I'm supposed to identify as my region because I'm a NANA shareholder. It's probably got seven or eight different colors on there. And all these colors show all these different entities that got their hands on Native lands. And we buy into that map. We look at it and we say, Okay, NANA owns this land KIC owns this land, the National Park Service owns this land, Fish and Wildlife has a little bit in here too. The biggest problem that the Native people have is ourselves buying into this system that's put into place for us. We've so freely given up the traditional ways of our life, the way that we governed ourselves, working with a consensus, and bought into a troubled system. Alaska Natives Commission Hearings at Kotzebue, Alaska, October 2, 1993, (Testimony of Ian Erlich). Maybe the government of the United States will ask the local Native government how problems should be dealt with. But its not looked at that way. There is no government-to-government basis. And we continue to all just sit around and let things go the way they are. Id. (Testimony of Ian Erlich). John Erlich, Sr., took up his brother's theme by illustrating how, over time, competing uses could transform policy in the wildlife refuges from one that emphasizes a subsistence preference to one that balances that off with emerging uses, including tourism. Using the world famous Kobuk sand dunes as an example he explained: [P]eople will want to see the Kobuk sand dunes. And so they [will] set up a little visitor's center in there. Well, you can't have Inupiat people running around with guns, shooting at animals, when you've got tourists and recreationalists there viewing the sand dunes. So it'll start off they won't cut off hunting in the whole park. But they'll declare a small area as being a non-subsistence zone...[Bleing that there is money in tourism, the interest in tourism is going to grow; they're going to want to access more land, again, perhaps, a non-subsistence zone will grow. (J. Erlich, id.). 78 John Erlich, Sr. emphasized that the same encroachment was likely to emerge from pressure to access land and resources by outside interests. Returning to his brother's "map," he noted that: "I don't see under any of those different colors any land holding or any reserved lands for Inupiat government or for Inupiat people." (J. Erlich id.). Even Native corporate plans were not immune. Some people misconstrue NANA Corporation lands to be Inupiat lands. But these corporations...operate under a state charter. And even to this day, they fall under the jurisdiction of the state, as far as fish and wildlife management. (J. Erlich, id.) This same cold recognition of the dangers that competing interests posed on land once held by Inupiat under Aboriginal Title, subject to now extinguished Aboriginal Hunting Rights, emerged with an appreciation that statutory and administrative policy could change with deadly results to those who depended on subsistence. Ricky Ashby of Noatak told the Commission that the village had pinned its future and risked its present fiscal security on a vast tract of land near the village in order to protect its subsistence base. (Ricky Ashby, Kotzebue Hearings). Thus, at the core of land use concerns was a recognition by witnesses that without a tribal land base sufficient to sustain a subsistence economy, villages would need strong empowerment and authority over land use in domains that each did not own. Such an authority could only emerge from secured Native governmental land use control along with constitutional entrenchment of aboriginal hunting rights, now extinguished by the Claims Settlement Act. Witnesses also noted that competing resource management regimes make attempts at coordination among owners wanting to facilitate subsistence more difficult: A[n] area of concern has to do with game management differences, State versus Federal versus Tribal, and on private lands, ANCSA lands. Here in Barrow, we have gotten very close to initiating an agreement between the Village Corporation and the Native village organization, which would provide for the management of permitting systems for accessing of private lands for the purpose of hunting. And just about a month or so ago, came the Indian lands ruling, which basically throws all of our work out of the window. Alaska Natives Commission Hearings at Barrow, Alaska, February 24, 1993, (Testimony of Dale B. Stotts referring to assertion of federal subsistence management). Other problems related to land selection and available state or federal resources. As in other hearings, a witness at the Barrow hearing reported that the NSB could not complete its selection due to the absence of governmental personnel to conduct appropriate surveys and classifications. Barrow Hearings (Testimony of J. Kaleak). Many innovative examples of land allocation were provided to the Commission at the Barrow hearing by Ronald H. Brower, Sr. Land transfers that worked to improve the community included donations by the village corporation to the City of Barrow for an elders home, seven and a half miles of gravel for housing within subdivisions and other donations to the North Slope Borough. Native control over most state and federal institutions on the North Slope provides the confidence necessary to go beyond statutorily mandated conveyances: UIC [Ukpeagvik Inupiat Corporation] is probably the only [village corporation] in the State that has developed subsistence subdivisions and assisted the Feds in developing their regulations." 79 D. Authority-- The state and federal governments should enter into co-management and other jurisdictional agreements with Native communities for the purpose of coordinating the regulation of their members, land and resources, and other persons and matters within the scope of their authority. The state and federal governments should formally acknowledge the concurrent criminal jurisdiction of Alaska tribes within their communities and work cooperatively to develop justice procedures that ensure adequate protections for individual rights consistent with the Indian Civil Rights Act. Delbert J. Rexford, representing the City of Barrow, told a February 1993 hearing that the Commission should recommend that: "some sort of cooperative management of the renewable resources [should] be established with the Native tribal councils, so that there's an enforcement program and implementation of [a] permitting process on our lands to protect our renewable resources." This theme is borne out of the direct experience of North Slope Inupiat as the tribes fought to maintain bowhead whaling by engaging in an international process, dealt with offshore oil drilling and attempted to sort out the diverse jurisdictions of borough, state, federal, village and regional corporate, municipal and tribal entities in matters of community development and subsistence. Village witnesses as well as state representatives and members of regional corporations spoke of both formal and informal working relationships between service providers and village leadership in problem areas, ranging from management of wildlife to concerns with health and criminal behavior. From their unique perspective as present or recent actors within the governmental processes, they gave a new call for local control, emphasizing the special utility of tribal empowerment. In Southeast Alaska Gilbert Charles Fred of Angoon addressed the practical realities of resource management and social problems in his testimony in favor of a formal and central role for tribal authority: The management of our resources is in havoc right now. We have the state managing within the three-mile limit, and the federal government managing outside of that. Our people 's stand [is] in honor of our ancestors [who] asserted: "We know what is best for our resources within our areas adjacent to our communities." Irregardless of how much money the state government has, they do not have the means available to manage our resources that the local residents do. We have to buy a hunting license in order to go out and hunt food for our people. And we hear elderly saying: (Speaking in Native tongue.) "Grandson, I need some deer. I'm hungry for deer. My body's screaming for deer." We'll have handicapped people out there that can't go out there and get their own deer, and when we use up our tickets that we acquire when we buy our hunting license, we go beyond that and go out and continue to hunt, even when we don't have deer tickets, to meet the needs of our people. And when the Fish and Wildlife Department sent out 80 questionnaires saying: "We need to know how many deer you shot last year." I'm willing to bet you that virtually everybody in Angoon has put down a lower number than they have actually harvested. And I certainly believe that in order for the Fish and Wildlife Department to best manage our resources and assure future generations that, yes, these resources will be made available to them, we have to give an accurate estimation of how much deer we shot; and I feel that the State Department had best look into the feasibility of tribal management; tribal Fish and Wildlife Officers being trained; contracting out federal grants; letting Angoon IRA, Sitka SEA maintain their fish and wildlife habitat, because if I had somebody from Angoon maintaining the ordinances that the tribe lays down and if I say: "Well, I only shot two deer last year," They'll say: "No, we know how much deer you shot." [T] his way we [can] best assure that we don't over exploit and deplete our resources that are out there. It's best managed by our people. I feel that all of the wildlife stock is out there today as a result, and it stands as a testament to the fact, that our people best knew how to manage these resources. Klawock hearing (Testimony of Gilbert Charles Fred). Numerous witnesses promoted tribal control over justice services. William Cotton, executive director of the Alaska State Judicial Council and his colleagues presented a study which demonstrated the continuing importance to the state of tribal judicial activity by special courts and village councils in matters of village social control throughout Alaska, this despite the state's long-standing position in that it had been delegated exclusive criminal law authority under P.L. 280. Hearings Before The Alaska Natives Commission Task Force on Governance At Anchorage, Alaska, April 14, 1993, (Testimony of Bill Cotton, Ex. Dir. Alaska Judicial Council). Said Cotton: We tend to see that...in communities where there is an active local organization looking at what's going on in the community, trying to control minor conduct that we have a lot less cases in the state criminal justice system. We don't have the Troopers going in all the time, we don't have the prosecutor prosecuting cases, we don't see those cases, we don't see those people from those communities in the state courts. (Cotton, id.). Both the local community and the state benefit from this village activity. Said Cotton: [Blasically, the state does not have the resources, especially at the present time, to provide comprehensive justice services in rural Alaska. (Cotton, id.). His colleague, Terri Carns, described recommendations of the recently concluded Sentencing Commission, chaired by the Chief Justice, that had built upon the de facto working relationship in an effort to create alternative punishments. [IJn the context of Native offenders, (the commission] encouraged the development of...alternative punishments that, again, to tie in very closely to the work of the tribal courts and councils and using them to supervise community work service and using them to come up with creative ideas for punishments in rural areas. 81 April 14 Governance Hearings in Anchorage (Testimony of Terri Carns). See also Exhibit Alaska Sentencing Commission's 1992 Annual Report to the Governor and the Alaska Legislature, December 1992. Village Public Safety Officers trained by the State Troopers, but employed by regional nonprofit corporations, were said to best serve when (as in Minto) they continued the village tradition of channeling nonviolent matters to the local forum and more serious matters to the distant troopers and prosecutors in regional centers. April 14 Governance Hearings in Anchorage (Testimony of Alaska Native Major Glen Godfrey, Deputy Director, Alaska Division of State Troopers). Despite their continuing value to both villagers and the state, witnesses spoke of pressures on this long-term arrangement. These pressures include the numbers of problems at the village level that village forums without resources or clear legal recognition must confront and the absence of funding for oversight by state troopers. April 14 Governance Hearings in Anchorage (Testimony of Major Godfrey). At least as significant was the discovered absence of Alaska Natives or even non-Natives with village experience among, judges, prosecutors and defense attorneys in the criminal justice process. On prosecutors, see April 14 Governance Hearings in Anchorage. (Testimony of Dean Guaneli, Chief, Alaska Department of Law, Criminal Division). The tilt of the modern state system toward urban rather than village options was most evident in the manifest failure of the state correctional system to develop probation and parole alternatives that returned village offenders to villages with authority for their behavior vested in village institutions. The result of this shift to release and supervision in urban areas created new problems for Native offenders without roots in the cities and was said to be one reason for the widespread violation of conditions of release. According to public defenders who had represented Alaska Natives, high rates of incarceration were often due to violation of probation conditions which did not reconnect the offender to the authority of the village. Native American people serve their sentences on the installment plan. They just do...they get a break, they get a suspended sentence or part of their sentence suspended. They get out; there's conditions that most of us who know the system know they couldn't keep." April 14 Governance Hearings in Anchorage (Testimony of Margi Mock, Supervisor, Statewide Appeals, Alaska Public Defender Agency). Former Kotzebue Public defender Geddes highlighted the problems confronted by Alaska Native defendants when critical decisions are made by state professionals with little understanding of the difficulties faced by villagers who must comply with conditions of release: [T]he individual who I saw arrive up there [as a state probation officer], for months and months didn't really comprehend how it all worked, how that lifestyle worked, how people got around, the kinds of factors that they had to consider when making any travel plans, the kind of difficulties that they had in terms of maintaining regular periodic contact. April 14 Governance Hearings in Anchorage (Testimony of Ms. Mary Geddes, assistant federal public defender). 82 The conflict between the presumed statutory allocation of exclusive authority for criminal justice process to the state and the informal allocation of responsibility between state and village authorities also worked to deny villages federal funds allocated for law and order services to Indian tribes that most tribes received to sustain tribal courts and tribal police in the lower 48. "[The] tribes in the Lower 48 are eligible for law enforcement...I feel we're eligible for those kinds of funding, because, in the first place, we're having to deal and hire our own village police officers to enforce local ordinances. And the state, although they have some resources, they don't always show up when you need them." October 16 Governance Hearings in Anchorage (Testimony of Willie Kasayulie, chairman, Akiachak Native Community). For these reasons the Task Force recognized that for the working relationship to be maintained and enhanced (especially in development of alternatives to incarceration), the state must re-address its authority under Public Law 280 and seek a new relationship between village and state justice. See comment of Commissioner Boyko, April 14 Governance Hearings in Anchorage. Concurrent jurisdiction in matters of juvenile and family law was also advocated by witnesses, given the diminution of social service resources, the failed promise of early state intervention or family therapy and the special initiatives undertaken by some villages under the Indian Child Welfare Act. I think that it would be economically feasible for the state and federal governments to determine the feasibility of assisting and setting up more Indian Child Welfare Act core systems within the infrastructure of IRA and tribal governments...because the tribe...knows what is best for a child. If the child comes from a broken home, abusive parents that are alcoholics and drug addicts... {It's disheartening to hear an Indian child coming back home and saying: "Yes, Ido not know my culture, I don't even know who my people are, I don't even know my relatives; but I know that I am a Tlingit. My parents were abusive and...Child Social Services came in, and took me away; and they put--placed me in a Caucasian home in the Lower 48." I feel that the Indian Child Welfare Act could best address this issue and best knows who can best care for this child. Not somebody in some agency out in Fairbanks, Anchorage, or Juneau. They need a localized,...Indian Child Welfare Act to best deal with these issues. And I feel that it would be economically feasible, not only for the state agencies--adoption agencies, etc., [because] the tribe best knows how to handle these issues. We have for thousands of years. Klawock Hearing (Testimony of Gilbert Charles Fred). 83 E. Financing-- The State and Federal governments should facilitate local and regional strategies for financing Native governments. Arnold Brower, Jr., President of the Native Village of Barrow saw the problem of financing tribal governments in Alaska as fundamental: {IJn speaking for the self-determination of the tribal governments...there is a lack of funding sources that I found out for practically every tribal entity in Alaska. And this is detrimental for a self-determination act provision to a tribal government. [For example] [wJhen a government does not have a home base to have its own meeting and planning facilities, then it kills the purposes of self-determination. So these kind of facility funds needs to be appropriated for these villages- Native villages. Barrow Hearings (Testimony of Arnold Brower, Jr.). Witnesses observed similar funding shortages under state law: [T]here are meetings that are scheduled, and a lot of them are outside meetings. You know, go to Lower 48 and have these special training sessions for administrators, clerks, all members of the council; lot of information on meetings. But we don't have funds for these meetings. And I would like to see -- especially I'm speaking for Noatak, because Noatak is not incorporated through the state, so we are not recognized by the state. If we get moneys from the state, they go through the Borough...And then by the time we get those, sometime they can be cut, because they're things that they want to cut for administrative fees before they pass them on to the village. Kotzebue Hearings (Testimony of Ricky Ashby). Critical to economic survival were problems of financing village infrastructure. Jack Smith, speaking on behalf of the director of the North Slope Borough health department, spoke of the difficulty of meeting basic needs in rural Alaska with scarce dollars: The Alaska Native Health Board's identified that 1.6 Billion Dollars would be needed to bring just the village health clinics up to acceptable water and sewer standards. Barrow Hearing (Testimony of Jack Smith). Concern was voiced from many witnesses about millions of dollars spent on social programs with no apparent result. The nub of the problem for Joe Ballot, president of Maniilaq, the regional Native non-profit corporation in Northwest Alaska, was "that there are so many policies and programs being written without the involvement of the Native people." Not only financing but finance planning should involve Native government consultation, especially with declining revenues and the increased shouldering of the burden of program implementation on Alaska Native institutions. Witnesses stressed many economic development projects they desired to undertake if only allowed. October 16 Governance Hearings in Anchorage (Testimony of Mike Williams). Mr. Williams cited fisheries and tourism. 84 Given the influence and promise of the Indian Child Welfare Act, several witnesses decried what Lorraine Jackson of the Cooper River Native Association termed unfair and inconsistent distributions to the tribes by the BIA: Programs which were funded one year were not funded the next; and, in general it was difficult to provide consistent services. This year, BIA is interested in contracting directly with tribes, and it would be a competitive process. This program should not be competitive, but be based on needs. For as long as the ICWA has been around, we have not had a program in operation to protect our children in the Ahtna Region. July, 1992 Hearing in Fairbanks (Testimony of Lorraine Jackson). Flexibility in use of program funding was another concern of Jackson. [W]e are not allowed to reprogram this money [state mental health money] to better suit the local needs. Community-based programs seems to be more effective, because it is based on what the community needs to help solve their problems, It will encourage the villages to take the responsibility. Every village has different views and ways to pursue their goals. [D]istribution of the funds should be based on needs and not be competitive or based on population. Id. (Testimony of Lorraine Jackson). Ms. Jackson's sentiments were echoed by Jerry Isaac, Chairman of the Tanacross Village hiring council, who noted: "We have problems that are forever dogging us due to the size of the tribe and the land jurisdiction, which causes lack of funds on a per capita basis." July, 1992 Hearing in Fairbanks (Testimony of Jerry Issac). Innovative avenues for achieving financial rewards were suggested by several witnesses as, for example, Fred Simpson, who described the only fish buying and minority fish company in the United States with potential contracts from the Armed Forces, hospitals, prisons and schools. Klawock Hearing (Testimony of James Simpson). Robert Willard, former president of the Tlingit and Haida Contractors Association, explained how tribal units could benefit from forthcoming housing projects if the purchasing process was arranged so that jobs and money was recirculated into the communities: [T]he mistake we made was that we did not build a rural economy in the process of development of housing. [O]nce construction begins, you need to establish rural franchise dealerships in the local area, owned and operated by rural people...Had we foresight in the days that we were building those houses, we would have provided sufficient capital for someone in rural areas to build those houses that we planned... Under a franchise dealership, we would have been able to buy 454 refrigerators from that dealer, we would have been able to buy refrigerators, stoves, that sort of fixtures, furniture, windows, doors from that rural dealer, instead of shipping it in from Seattle. That was the mistake that we made in the Housing Authority housing project. Hearing in Klawock (Testimony of Robert Willard). 85 Willard also stressed the need to restrict local hire to rural locales and to gear education to emerging rural economies so that homegrown specialists could be produced: You need to set up a rural local hire law...strong enough to withstand any lawsuit filed by union locals...If you want strictly Alaska hire, you would end up with 50 to 60 imported, as we did in the Housing Authority Project...Perhaps you designate that area as an economic depressed area and get away with rural local hire. Alfrieda Lord of Barrow stressed the need for tribal based preferences for employment to assure that local residents were, in fact, the recipients of jobs under local hire. October 16 Governance Hearings in Anchorage. In this respect, federal agencies and the Congress should review the implementation of existing hiring and contracting preferences under federal law as a means of indirectly influencing the financial base of Native village governments. Along with strong efforts to de colonize rural Alaska, was the widely held belief that the tribe and not competing entities could advance the economic well-being of indigenous peoples. Anything to do with water and fishing rights should be left up to the tribal elders council to decide, not the state and federal government, for us as a tribe to be successful, competitive Haida tribe in fisheries as history foretells. The Haida's proud of the ocean and the sea, so we have the aboriginal entitlements and rights...[w]e wouldn't have to beg the federal or state government for moneys that belong to us, for the state and federal government have been taking our resources since they come into our lands. ..We, as a tribe should be getting dollar value instead of a percentage from the Fish and Game management, so that the tribe can profit, not the federal or state Fish and Game management, to provide services for our own economic need, health and welfare, education and business management." Klawock hearing (excerpts) (Testimony of Becky Frank, Hydaburg, speaking in Haida). F. Structure of Native governments-- Congress and the State should allow Native communities to change and restructure their governments with a minimum of federal standards and state influence sufficient only to ensure the relative fairness of the process. This recommendation recognizes that the failure to establish ground rules in the relationship encourages destructive institutional conflict within Native communities. "([Mly big concern is having three, four five governments within the small community and-- for an example in Akiak, you know, our community is split, and we're having family wars, and, you know, we have hard feelings-- political hard feelings to our own family members; and we're fighting amongst ourselves...[B]efore the arrival of different forms of government,...our people handled [problems] well regardless if it's domestic, or criminal or whatever issue, I think it was dealt with." October 16 Governance Hearings (Testimony of Mike Williams). [T]he state is still trying to force the village to use the state government as 86 a governance organization..but the village has converted back to the elder's council as a governing body. And it has worked very well for us because things that were becoming major problems, were taken care of." Hearings of the Alaska Natives Commission Task Force on Governance in Connection With a Hearing on Governance Issues and Solutions at Anchorage Alaska, January 26, 1993, (Testimony of Charlie Kairaiuak of Chefornak, citing specific tribal initiatives in elimination of drinking and promotion of economic development). [T]here's a lot of confusion as to who the real governing bodies are by those people that are dealing with those villages...But in some villages, its very, very clear who they have chose to be their governing body. In my village, it is very clear to the people that the governing body is the elder's council...So instead of making an assessment from a far-off distance like Anchorage or Juneau, the Commission should make effort to find out which governing body that is recognized by that village. Id. (Testimony of Charlie Kairaiuak). A persistent theme of witnesses was their frustration in grappling with local and regional problems because of the rural populations’ inability to select for itself a structure of local government best suited both to local problem solving and cooperative working relationships with the state. Citing the historical flow of liquor into his area and the inability of state law to curb it, witness Mike Williams, Vice chairman of the Akiak IRA Council, remarked: {If we had a regional tribal government, and everybody voted to ban that, then we would have that authority to do so; but right now, as it stands, we cannot do that; and you know, those are the issues that we're dealing with right now." October 16 Governance Hearings in Anchorage. Given the fact that they basically represent the same constituents, witness Willie Kasayulie advocated that three competing entities at the village level (state municipalities, tribes and ANCSA corporations) give way to a single tribal government charged with civil and criminal jurisdiction as well as resource management with regional jurisdiction. October 16 Governance Hearings in Anchorage. However, the task force also heard descriptions of nonprofit regional corporations who, armed with resolutions of support from village tribes, draw on federal and state dollars to create health and social service programs that reflect the special regional needs of the population. See for example, Hearings, Alaska Natives Commission, Governance Task Force Meeting in Anchorage, Alaska, January 26, 1993, (Testimony of Katherine Grosdidier, Southcentral Foundation and Testimony of Orie Williams Yukon Kuskokwim Health corporation). Nonprofits appear confident that they can improve upon programs offered by the state and federal government in earlier times and are better attuned to village needs and aspirations. Other witnesses from regional non-profits were more blunt in their assessment of the root causes of village problems they addressed through programs that targeted symptoms: In our villages, we have unemployment of 80 and 90 percent and they call it "too bad"...We wonder why we're spending so much on suicide and substance abuse and changing roles of the male and the changing 87 evolutionary process of the culture. But just the recognition of the existing conditions--if you recognize that unemployment was 80 percent, then you'd have to recognize, I guess, how people survive. And if people survive off the land and survive by eating natural foods, natural fish and game in quantities it takes to survive, then you'd have to recognize that as an economy. And then maybe you'd have to get away from the word "subsistence" and just call it a lifestyle and give rights to that fish and game. January 26, 1993, Governance Hearings in Anchorage (Testimony of Orie Williams). As the foregoing indicates, the personnel of the regional nonprofits often recognize that the very programs they administer are often removed from an appreciation of village realities. Thus reempowerment of local tribes through acknowledgment of their sovereignty, a position uniformly taken by witnesses of nonprofits, could also mean a more carefully modulated use of funds in the region to deal with problems as defined by the villages in close association with regional managers. In addition, tribal reempowerment could mean that the root causes of problems, such as unemployment, could be addressed at the local and regional level thus freeing up state and federal funds now employed to deal with the symptoms of unemployment. Witnesses decried both the extinguishment of aboriginal hunting and fishing rights (See testimony of Mary Ann Mills, October 16 Governance Hearings in Anchorage) and the failure to obtain tribal consent for the extinguishment of aboriginal title under the claims settlement act. They described the complex web of special purpose tribes defined in acts of Congress drafted for the purpose of providing funds and services to Alaska Natives. Given the confusion, some advocated the approach employed in other countries like Canada with the core attributes of tribal authority entrenched in the national constitution and thus rendered distinct and protected from more ephemeral statutory vehicles. See testimony of Mary Ann Mills, id.; and Testimony of Dalee Sambo, October 16 Governance Hearings in Anchorage. Both cited the Canadian example. G. Federal Policies & Laws-- Congress and the State should maximize Native control over all aspects of statutory program delivery including determining the need for and content of the services. Joe Upicksoun, President of the Arctic Slope Native Association, summarized the first annual meeting of ASNA held in twenty years, conducted the night before the Barrow regional public hearing: [T]hey talked about control of decisions about land and their own children. Their lives are complex, but their issues are simple. Central to these needs is that the federal and state government recognize and honor the special relationship of the federal government to the indigenous people of the Arctic Slope. Despite the vitality of our borough government and our profit-making regional and village ANCSA corporations, it is our traditional relationship to our village governments that is the core of our personal and cultural strengths... Although there are many specific examples we could give of ways you could encourage self-determination, most critical is the full protection of rights to subsistence...[W]e recommend that this Commission urge Congress to enlarge the subsistence protections of federal law to reach all Alaskan lands. 88 No matter how modern our lifestyle may appear, subsistence is central to our being. Our celebrations, our language, our very lives are made strong by our tie to our land and the fish and animals who share it with us. Barrow Hearings (Prepared testimony of Joseph Upicksoun, President, Arctic Slope Regional Association, see Exhibit, February 24, 1993). Witnesses assured the Commission that tribes would not go away and that the state would, sooner or later, need to deal with them in areas like criminal jurisdiction. Public Law 280 allows the state to handle criminal law and jurisdiction in the communities; but I feel that the law needs to be reevaluated for Alaska; and one of the things that I would like to see, as far as Alaska is concerned is to look at how the other states in Lower 48 deal with their tribes...because tribal governments are not going to go away. We'll still be here, despite the efforts to establish state-charter governments. October 16 Governance Hearings in Anchorage (Testimony of Willie Kasayulie). Witnesses at the Barrow Hearing strongly endorsed co-management between the federal government and the North Slope Borough or other local entities directly involved in the subsistence way of life. Barrow Hearing (Testimony of Jeslie Kaleak, Mayor of the North Slope Borough). Kaleak stressed that this implied "all local communities or governments need to be involved in planning from the beginning of any project, not after a draft plan is out." Id. "...[T]he local experts, my fellow Native people, are not listened to at all during the planning process. We always get involved after everything's planned out, after everything is written down on paper." Id. Barrow witness Eugene Brower recommended that the Commission recommend detachment of the whaling issue from the International Whaling Commission: Basically...these 4,000 plus Natives [of the Arctic Slope] are spending their own money through the Regional governments to do the scientific study...The North Slope Borough hires these scientists to do the work which is submitted to IWC which is under a lot of scrutiny. We have been the most scrutinized people on the issue of the bowhead. What we say has to be proven in scientific words or documented on a piece of paper, saying this is the truth, instead of taking our word for it. That's the hard part. Barrow Hearings (Testimony of Charles Brower). However, other witnesses saw the working arrangement with the IWC as an example of future comanagement arrangements with other governments. (See Recommendation C.} Not only did witnesses relate experiences with comanagement as the key to the direction that new federal policies should take, but also observed that the interrelationship between cash and subsistence economies was often not appreciated as the fulcrum of village economic life. The former general manager of the Unalakleet Native Corporation and manager of a general store in that community attempted to explain this interrelationship: I can tell you that while we did $1 million of business in selling groceries in that community of 800 people, it was not because they had cash that they could survive; it was because they had subsistence opportunities in their community to get seals, whales, fish, trout, ducks, geese, moose, that they were able to survive at least at a standard level, or a level better than 89 what they were used to. It was not because the groceries could get in on Mark Air every night, and if that was all that was available to them, they would not have been able to survive in that community. Me, as a General Manager, recognized that over 60 percent of that economy was probably subsistence. July 1992 Hearing in Fairbanks (Testimony of Chuck Akers). Many informants returned to the hearings leading up to the passage of the Alaska National Interest Lands and Conservation Act and recommended that the Commission revisit the Congressional findings that a subsistence priority was essential to Native well-being along with a Native preference on Native owned lands. Please ask Congress to make ANILCA consistent with the findings that Congress has already made, and extend the priority or protection for subsistence management to Native-owned lands which were primarily selected in reliance on the idea they would be protected. July 1992 Hearings in Fairbanks (Testimony of Paul Tony). Often the approach to program implementation was viewed as significant as the program afforded villagers. Experts coming from outside the village keep villagers dependent on the skill from someone else, so that local skills and leadership are not developed. Money given directly to a family can keep families dependent on someone else for their livelihood, or can be used to exacerbate other problems. The Athabascan value of self-sufficiency can easily become lost in the good intentions of people outside the village trying to help. [I] strongly believe that dollars and services must be committed where the problems are experienced--in the village. Dollars and social workers in the village...training dollars to train village tribal members to become paraprofessionals and to become social workers...social workers from the village helping their tribal members and families working together, watching out for and caring for their families. Villages making their own decisions for the care and best interests of their families and children; empowering tribes, empowering families. July 1992 Hearing in Fairbanks (Testimony of Don Shircel, director of Family Services for the Tanana Chiefs Conference). The same theme resonated through the prepared testimony of Eileen Kozenivkoff: Welfare programs need to be changed into employment programs for able bodied recipients. Economic development that takes into consideration the traditions and subsistence lifestyle of tribal communities must be developed. Strong management trainee programs need to be a part of the economic development. July 1992 Hearing in Fairbanks (Submitted testimony of Eileen Kozenivkoff). Persistent dismay at seemingly arbitrary and nonproductive subsistence regulation resonated throughout the testimony: 90 I always helped put up subsistence. I put up dried fish; I put up smoked fish; I put up salt deer, or salt meat; I put up salt bellies. These were the things that helped us through the winter...[A] slap in the face is what the government is doing to us. They're giving us a permit and saying: "Here's a permit that you...can go out and catch this many fish." I think that's wrong. Before, when the people went out there and fished, they went out there and caught what they needed at one time. They didn't catch ten fish at a time to take home and dry and then go back out and catch ten more fish. That's wasting our time, and wasting your time and the government's time. You know it always happens...they always take something from us; and they always replace it with a: "You have to get permission from us." Hearing at Klawock (Testimony of James Martinez). Continuing problems with the subsistence provisions of ANILCA caught the attention of many witnesses: With respect to the provision on "Customary and traditional use," the President of the local ANB Juneau Camp Number 2 told the Commission: To me, it doesn't make a difference where we reside, whether we reside in the small community or the urban community. So, as a result, we practice our culture in traditional [ways]. [W]e need the resources like anybody else in the community. Klawock Hearing (Testimony of Alfred McKinley, Sr.) I feel that the subsistence status quo of our people is of great concern to, not only people in Angoon, but people all over the region, people all over Alaska. And the state is not in compliance with ANILCA. I feel that the alternatives that they place before us and ask us to choose from do not meet the needs of our cultures. Klawock hearing (Testimony of Gilbert Charles Fred ). Many witnesses, including Fred, recognized the strong interconnection between local economies and outside resource allocators in an increasingly complex management system. Fred for example, pressed for Native representation on the North Pacific Fisheries Management Council. I feel that although we only utilize four percent of the natural resources out there available as subsistence users, I feel that we are not having the impact on our resources that the developmental organizations and businesses, and processing plants have on the environment and the resources. I feel that the four percent of us that utilize these resources don't have the impact ..and we're still being denied these rights. Id. (Testimony of Gilbert Fred). Thus a new initiative for sovereign control of the traditional subsistence domain will involve extensions of tribal authority into regulatory arenas beyond the land base of the tribal government, both to protect tribal interests and the environment from depredations of other powerful, non-Native actors. 91 APPENDIX APPENDIX The following table presents a visual model of 131 Alaskan communities for which we have both subsistence harvest data (gathered by state surveys in the mid-1980's) and demographic/socio-economic information (from the 1990 Census and other sources): Column A lists 131 place names. (NOTE: Although the sample is slightly deficient in its representation of all geographical areas of the bush, it contains one-third of all human communities in Alaska and fully four-fifths of the state's population.) Column B denotes the region in which each community is located. Column C denotes the year in which the Subsistence Division conducted its harvest study in each community. Column D lists each community's annual per capita harvest of wild foods (pounds of dressed weight, per person, per year). (NOTE: This column is the dominant variable in the table and accounts for the order in which the communities are listed. It begins at the top with an average of 10 pounds for Anchorage and advances down the page until it reaches 1,498 pounds for the village of Hughes.) Column E lists each community's total population (1990 census). Column F lists each community's average per capita cash income in Calendar Year 1989 (1990 census). Column G indicates whether each community is road- or rail-connected to urban areas (YES), or is non-connected (NO), or is located in Southeast Alaska (SEA), where non- connected places are in a slightly different socio-economic category from non-connected communities in the main part of the state. Column H gives the Native American percentage of each community's population (1990 census). (NOTE: The combination of Columns H, I and J provides a good look at any community's "Nativeness."} Column I shows which communities have BIA-recognized tribal councils - whether Traditional Councils or those chartered under the Indian Reorganization Act. Column J indicates which communities have ANCSA village corporate entities. The list has been divided into three levels, measured in multiples of 100 pounds per capita per year of harvested wild foods, in order to present a picture of low, middle and high levels of subsistence use in modern Alaska. TABLE COMMUNITY REGION YEAR | ANNUAL HARVEST | 1990 POPULATION | 1989 INCOME] ROAD/RAIL|% NATIVE] TRIBAL | ANCSA A B c D E F G HL | J 1 {Anchorage Southcentral 1984 10.0 226,338 $19,620 Yes 6.44 % No No 2 |Mat-Su Borough Southcentral 1984 17.0 39,683 $15,898 Yes 4.88 % No No 3__| Fairbanks Interior 1984 22.0 77,720 $15,914 Yes 6.86 % No No 4 |Juneau Southeast 1984 34.0 26,751 $19,920 SEA 12.94 % No Yes Ba 5 Kenai Southcentral 1982 37.9 6,327 $17,877 Yes 8.46% Yes-IRA Yes ° 6 | Seldovia Southcentral 1982 50.6 316 $14,052 No 15.19% Yes-IRA Yes c 7_|Skagway Southeast 1987 51.8 692 $17,671 SEA 5.49% No No v 8 | Talkeetna Southcentral 1985 55.1 250 $11,576 Yes 1.60% No No i 9 |Metlakatla Southeast 1987 70.8 1,407 $12,463 SEA 83.51% | Yes-IRA No 10 |Ninilchik Southcentral 1982 85.4 456 $15,118 Yes 19.52% Yes-TC Yes 411 |Saxman Southeast 1987 89.3 369 $10,714 SEA 76.96% Yes-IRA Yes 12 |Homer Southcentral 1982 93.8 3,660 $19,182 Yes 3.55% No No 13 _|Glenallen Southcentral 1987 99.4 451 $15,435 Yes 6.65% No No 14 |Haines Southeast 1987 103.6 1,238 $16,790 Yes 18.09% Yes-IRA No 15 | Cantwell Southcentral 1982 111.6 147 $20,128 Yes 22.45% Yes-TC Yes 16 |Dot Lake Interior 1987 115.6 70 $8,289 Yes 54.29% Yes-TC Yes 17_|Mentasta Southcentral 1987 125.4 96 $6,392 Yes 72.92% _|__Yes-TC Yes 18 |Healy Interior 1987 132.1 487 $18,160 Yes 1.44% No No 19 | Kenny Lake Southcentral 1987 136.2 423 $12,172 Yes 9.69% No No |@ 20 | Anderson Interior 1987 139.2 628 $18,360 Yes 3.66% No No 3 21 |Sitka Southeast 1987 146.3 8,588 $16,962 SEA 20.92% | Yes-IRA | Yes__| 22 |Kodiak (City) Southwest 1982 147.2 6,365 $22,951 No 12.74% Yes-TC Yes |" 23 | Tok Interior 1987 149.2 935 $14,559 Yes 12.51% No No = 24 |Gulkana Southcentral 1987 152.1 103 $18,232 Yes 59.22% | Yes-TC Yes 25 |Tonsina Southcentral 1987 155.7 38 $5,451 Yes 18.42% No No 26 |Kake Southeast 1987 158.6 700 $13,193 SEA 73.43% | Yes-IRA | Yes 27 | Cordova (incl. Eyak) _ | Southcentral 1985 163.8 2,282 $26,461 No 10.96% Yes-TC Yes 28 | Hollis Southeast 1987 163.9 W $12,060 SEA 2.70% No No a ee A B Cc D E F G H | J 29 | Wrangell Southeast 1987 164.2 2,479 $17,005 SEA 20.01% | Yes-IRA No 30 | Copper Center Southcentral 1987 173.4 449 $15,521 Yes 34.52% | Yes-TC Yes 34 [McGrath Interior 1984 181.9 528 $13,196 No 46.97% Yes-TC Yes 32 | Craig Southeast 1987 185.0 1,260 $17,909 SEA 22.86% | Yes-IRA Yes 33 |Kasaan Southeast 1987 185.6 54 $20,782 SEA 53.70% Yes-IRA Yes 34 | Coffman Cove Southeast 1987 185.7 186 $20,160 SEA 6.99% No No 35_ | Thorne Bay Southeast 1987 187.7 569 $14,691 SEA 1.23% No No 36 | Naknek Southwest 1983 188.2 575 $19,341 No 41.04% Yes-TC Yes 37 (Barrow Arctic/N. Slope | 1988 195.6 3,469 $20,753 No 63.91% Yes-TC Yes 38 | Petersburg Southeast 1987 200.3 3,207 $22,143 SEA 10.41% Yes-IRA No 39 | Chase Southcentral 1986 209.2 38 $27,181 Yes 0% No No 40 |Tetlin Interior 1987 213.9 87 $9,752 Yes 95.40% Yes-IRA Yes 41 |Chiniak Southwest 1982 217.2 69 $17,591 No 5.80% No No 42 Chignik Lagoon Southwest 1984 220.2 53 $19,604 No 56.60% Yes-TC Yes 43 |King Salmon Southwest 1983 220.3 696 $20,808 No 15.52% No No 44 | Port Graham Southcentral 1987 227.4 166 $17,265 No 90.36% Yes-TC Yes 45 |McCarthy Southcentral 1987 230.2 25 $12,230 Yes 4.00% No No 46 |Klawock Southeast 1987 235.2 722 $15,422 SEA 54.29% Yes-IRA Yes 47 |Klukwan Southeast 1987 239.2 129 $11,865 SEA 86.82 % Yes-IRA Yes 48 |Angoon Southeast 1987 241.5 638 $11,158 SEA 82.29% | Yes-IRA Yes 49 |McKinley Park Village | Interior 1987 242.0 171 $20,917 Yes 2.92% No No 50 [Dillingham Southwest 1984 242.2 2,017 $19,189 No 55.78% Yes-TC Yes 51 |Slana Southcentral 1987_| 249.3 63 $8,226 Yes 6.35% No No 52 |Tanacross Interior 1987 250.0 106 $8,099 Yes 94.34% | Yes-IRA Yes 53 | Gustavus Southeast 1987 257.0 258 $16,842 SEA 3.88% No No 54 |Nelson Lagoon Southwest 1987 257.6 83 $21,218 No 80.72% Yes-TC Yes 55 |Bettles/Evansville Interior 1982 259.9 69 $24,003 No 39.13% Yes-TC Yes 56 |Chistochina Southcentral 1987 262.2 60 $10,354 Yes 61.67% Yes-TC Yes 57 |Elfin Cove Southeast 1987 264.4 57 $13,670 SEA 1.75% No No 58 | South Naknek | Southwest 1983 267.9 136 $9,809 No 79.41% Yes-TC Yes | 59 |Tyonek Southcentral 1983 272.0 154 $8,761 No 92.21% | Yes-IRA Yes Il dnoudD A B Cc D E F G H I J 60 | Northway Interior 1987 278.1 113 $11,674 Yes 94.69% Yes-TC Yes 61 | Chignik Lake Southwest 1984 279.0 133 $7,765 No 91.73% Yes-TC Yes 62 |Port Lions Southwest 1982 279.8 222 $14,960 No 67.57% Yes-TC Yes 63 |Paxson Southcentral 1987 288.4 30 $14,738 Yes 0% No No 64 English Bay Southcentral 1987 291.1 158 $12,615 No 91.14% Yes-TC Yes 65 | Port Alexander Southeast 1987 306.0 119 $6,711 SEA 2.52% No No 66 |Port Protection Southeast 1987 310.7 62 $8,030 SEA 1.61% No No 67 |Kaktovik Arctic/N. Slope | _ 1986 328.0 224 $13,705 No 84.37% Yes-TC Yes 68 | Hydaburg Southeast 1987 337.1 384 $8,602 SEA 89.06% | Yes-IRA Yes 69 |Chitina Southcentral 1987 341.7 49 $8,810 Yes 46.94% Yes-TC Yes 70 | Point Baker Southeast 1987 343.7 39 $19,390 SEA 0% No No 71 |Tenakee Springs Southeast 1987 344.8 94 $10,947 SEA 9.57% No No 72 _|Tatitlek Southcentral 1987 351.7 119 $8,674 No 86.55% Yes-IRA Yes 73 | Pelican Southeast 1987 354.6 222 $15,201 SEA 29.28% No No 74 |Port Alsworth Southwest 1983 361.1 55 $21,667 No 1.82% No No 75 |Ouzinkie Southwest 1982 369.1 209 $16,530 No 85.17% Yes-TC Yes 76 | Chenega Bay Southcentral 1985 374.2 94 $9,211 No 69.15% | Yes-IRA Yes 77 |Pilot Point Southwest 1987 383.7 53 $13,710 No 84.91% Yes-TC Yes 78 |Manokotak Southwest 1985 384.1 385 $6,468 No 95.58% Yes-TC Yes 79 | Egegik Southwest 1984 384.3 122 $15,137 No 70.49% Yes-TC Yes 80 |Hoonah Southeast 1987 387.6 795 $14,429 SEA 67.17% Yes-IRA Yes 81 | Perryville Southwest 1984 391.2 108 $12,288 No 94.44% | Yes-IRA Yes 82 | Yakutat Southeast 1987 398.1 534 $14,396 SEA 55.06% Yes-TC Yes 83 | Kotzebue Arctic/N.W. 1987 398.1 2,751 $13,906 No 75.14% Yes-IRA Yes 84 |Nuiqsut Arctic/N. Slope | 1985 399.2 354 $10,787 No 92.66% Yes-TC Yes 85 Hyder Southeast 1987 401.3 99 $15,862 SEA 1.01% No No 86 | Larsen Bay Southwest 1982 403.5 147 $19,222 No 84.35% | Yes-TC Yes 87 | Port Heiden Southwest 1987 407.6 119 $16,419 No 72.21% Yes-TC Yes 88 |Meyers Chuck Southeast 1987 414.2 37 $8,248 SEA 10.81% No No 89 |Tliamna Southwest 1983 416.0 94 $16,018 No 65.96% Yes-TC Yes 90 |False Pass Southwest 1988 428.7 68 $7,858 No 16.47% Yes-TC Yes ieee Il dnowo WI dnoud | A B Cc D E F G H I J 91 | Ivanof Bay Southwest 1984 455.6 35 $5,959 No 94.29% | Yes-TC Yes 92 |Old Harbor Southwest 1982_ 491.1 284 $8,008 No 88.73% | Yes-TC Yes 93 | Wainwright Arctic/N.Slope | 1988 506.6 492 $11,099 No 94.31% | Yes-TC Yes 94 |Kotlik Western 1987 510.0 461 $6,481 No 96.96% Yes-TC Yes 95 |Edna Bay Southeast 1987 517.1 86 $5,743 SEA 0% No No 96 | Akhiok Southwest 1982 519.5 11 $14,793 No 93.51% | Yes-TC_| Yes 97 _|Brevig Mission Arctic/N.W. _ 1988 579.4 198 $5,539 No 92.42% Yes-TC Yes 98 | Russian Mission Western 1987 599.0 246 $5,707 No 94.72% Yes-TC Yes 99 {Golovin Arctic/N.W. 1988 604.5 127 $6,772 No 92.91% Yes-TC Yes 100 |Emmonak Western 1987 612.0 642 $8,220 No 92.06% Yes-TC Yes 101 |Igiugig Southwest 1983 617.6 33 $8,505 No 78.79% Yes-TC Yes 102 | Shishmaref Arctic/N.W. 1988 663.2 456 $5,516 No 94.52% Yes-IRA Yes 103 |Kokhanok Southwest 1983 696.9 152 $5,846 No 90.13% Yes-TC Yes = 104 |New Stuyahok Southwest 1987 700.4 391 $4,566 No 95.91% Yes-TC Yes 16 105 |Beaver Interior 1985 731.9 103 $8,595 No 95.15% Yes-TC Yes | 106 | Alakanuk Western 1987 733.0 544 $5,462 No 95.77% Yes-TC Yes |'U 107 |Newhalen Southwest |_:1983 767.1 160 $7,373 No 94.37% Yes-TC Yes | = 108 | Quinhagak Western |_—:1982 167.9 501 $5,842 No 93.81% | Yes-IRA Yes |™ 109 | Nikolai Interior 1984 786.6 109 $5,127 No 88.99% Yes-TC Yes 110 |Scammon Bay | Western 1987_| 787.0 343 $4,729 No 96.50% Yes-TC Yes 111 |Galena Interior 1985 787.1 833 $14,643 No 45.26% Yes-TC Yes 112 |Ekwok Southwest 1987 796.6 71 $6,145 No 87.01% Yes-TC Yes 113 |Tanana Interior 1987 801.1 345 $8,824 No 78.26% _|_Yes-IRA Yes 114 |Nunapitchuk | Western 1987 801.9 378 $6,262 No 97.09% Yes-IRA Yes ‘445 |Mountain Village Western 1987 822.0 674 $7,763 No 91.10% Yes-TC Yes 116 |Koliganek Southwest | 1987 830.5 181 $5,040 No 96.14% Yes-TC Yes 117 |Kwethluk Western 1986 836.1 558 $5,008 No 96.42% | Yes-IRA Yes 118 | Karluk Southwest 1982 863.2 71 $8,052 No 91.55% | Yes-IRA Yes 119 |Pedro Bay Southwest 1983 865.1 42 $11,995 No 90.48% Yes-TC Yes 120 | Point Lay Arctic/N. Slope | 1987 890.1 139 $17,583 No 81.29% | Yes-IRA Yes 121 | Allakaket/Alatna Interior 1982 905.5 170 $5,639 No 94.12% | Yes-TC Yes — A B c D E F G H I J 122 |Kivalina Arctic/N.W. 1983 940.2 317 $4,968 No 97.48% | Yes-IRA Yes 123 | Fort Yukon Interior 1987 998.8 580 $10,055 No 85.00% | Yes-IRA Yes 124 | Stebbins Western 1980 1012.0 400 $5,533 No 94.75% _|_Yes-IRA Yes 125 | Minto Interior 1984 1015.4 218 $5,718 Yes 97.25% | Yes-IRA Yes 126 |Tununak Western 1987 1023.5 316 $5,866 No 96.20% | Yes-IRA Yes 127 |Huslia Interior 1983 1082.1 207 $6,984 No 90.82% | Yes-TC Yes 128 [Stevens Village Interior 1984 1138.7 102 $4,432 No 91.18% _|_Yes-IRA Yes i129 |Nondalton Southwest 1983 1174.8 178 $12,110 No 89.33% Yes-TC Yes 130 | Levelock Southwest 1989 1252.5 105 $7,063 No 82.86% Yes-TC Yes 131 | Hughes Interior 1982 1498.0 54 $8,687 No 92.59% Yes-TC Yes I dnouo Analysis of Table Regional Location (Column B). Of the 13 low-subsistence communities in Group I, all but one (highly urbanized Fairbanks in the Interior) are located in either the Southcentral or the Southeast region. No community in the Southwest, Arctic North Slope, Arctic Northwest or Western region is in Group I. The 51 mid-level subsistence communities of Group II present a more mixed geographical distribution. Still a majority (30) are in Southcentral and Southeast, ten are in the Interior (all but two being highway-connected non-Native or mixed communities}, 10 are in Southwest (all commercial fishing centers), and only oil revenue-impacted Barrow represents the Arctic North Slope region. No community of the Arctic Northwest or Western region is in Group II, much less in Group I. Of the 67 high-subsistence communities in Group III, only three are located in Southcentral, while 11 are in Southeast. The other 53 include ten in the Interior (all of which, except Minto, are non-road-connected Native villages), 17 in Southwest, four of the five surveyed communities in Arctic North Slope, all four from Arctic Northwest, and all 11 from the Western region. Total Population (Column E). The 13 low-subsistence communities of Group I have an aggregate population of 384,420 people, 86.5 percent of the sample's total (444,581) for all 131 places. Indeed, the four largest urban communities at the top of the list (Anchorage, Mat-Su, Fairbanks and Juneau) have 370,492 people, fully 83.3 percent of the sample's total. Six communities have under 1,000 people; two have between 1,000 and 5,000; one is between 5,000 and 10,000; and from there the totals abruptly jump to the top four, each of which has more than 25,000 people. The average community population for Group I is 29,571. The 51 mid-level subsistence communities of Group II have an aggregate population of 41,440, 9.3 percent of the sample's total. Only nine have populations above 1,000, and 39 have fewer than 500 people each. The average for all-51 is 813. The 67 high-subsistence communities of Group III have an aggregate population of 18,721, 4.2 percent of the sample's total. Only one (the regional service center of Kotzebue) has more than 1,000 people, and 57 have populations below 500 each. The average for all 67 is 279. Cash Income (Column F). Of the 13 low-subsistence communities in Group I, nine have average per capita incomes above $15,000, and the other four are between $10,000 and $15,000. The lowest is $10,714, at the Native community of Saxman. The average for all Group I communities is $15,803. Among the 51 mid-level subsistence communities in Group II, 12 are above $20,000 (mainly road-connected, non-Native or mixed towns and commercial fishing centers), 15 are between $15,000 and $20,000, another 15 are between $10,000 and $15,000, and nine have per capita incomes below $10,000. The average for Group II is $15,635. Of the 67 high-subsistence communities in Group III, only one (the non-Native, commercial fishing community of Port Alsworth) ranks above $20,000 per capita. Nine are between $15,000 and $20,000, with another 14 between $10,000 and $15,000. Fully 39 communities (58.2% of Group III) have average per capita incomes below $10,000, and 30 of those are below $8,000. The average for all 67 in Group III is $9,558. For the last 39 communities at the bottom of the list (those that annually harvested above 500 pounds of wild foods per person), the average per capita income is $7,546. Road or Rail Connection (Column G). Among the 13 low-subsistence communities in Group I, eight places are road- or rail- connected (YES), four others are in Southeast (SEA), and only one in the main part of the state (Seldovia) is non-connected (NO). In Group II, 20 communities are transportation-connected, 14 others are in Southeast, and 17 are non-connected. In Group III, only two communities are transportation-connected, 11 others are in Southeast, and fully 54 communities (80.6% of Group III) are non-connected. Native American Character of Communities (Columns H, I, J). In Column H, 11 of the 13 low-subsistence communities in Group I have Native American populations of less than 20 percent, and eight of those are below 10 percent. The average of Alaska's top four urban communities (Anchorage, Mat-Su, Fairbanks, Juneau) is only 7.8 percent Native American. Only two Group I communities (Saxman, on the outskirts of urban Ketchikan, and commercially well-developed Metlakatla) show Native majorities. The average for Group I is 19.4 percent Native American. Without Saxman and Metlakatla, it sinks to 8.3 percent. The Native American percentages of Group II's 51 mid-level subsistence communities are mixed. 21 communities are below 20 percent, 14 of those being below 10 percent. 20 other communities are spread out almost evenly between 20 percent and 80 percent. Ten communities, all in the lower half of Group II, have Native American populations between 80 percent and 100 percent. The average for Group II is 40.2 percent Native American. Of the 67 high-subsistence communities in Group III, only eight have Native American populations below 20 percent. With the exception of Port Alsworth on Lake Clark, all are small non-Native places in Southeast. 12 other communities are spread between 20 percent and 80 percent. Fully 46 communities (68.7% of Group III) have Native American populations between 80 percent and 100 percent, and 33 of those are above 90 percent. The average for Group III is 75.9 percent Native American. The 39 highest-level subsistence communities at the bottom of the Table (those harvesting above 500 pounds per capita per year) average 88.4 percent Native American. Of the 13 low-subsistence communities in Group I, eight have BIA-recognized tribal councils and five do not (Column I). The same ratio pertains to ANCSA corporations Column J), although it does not apply to exactly the same communities. (Juneau is in ANCSA but has no BIA-recognized tribal institution, while Metlakatla is a recognized tribe unaffected by ANCSA.} Among the 51 mid-level subsistence communities in Group II, 34 have recognized tribal institutions and 17 do not, while 31 have ANCSA corporations and 20 do not. Of the 67 high-subsistence communities of Group III, 58 (86.6%) have both tribal and corporate Native institutions and nine do not. Mike Irwin, Executive Director William Hanable Debra Jessup Florence Lauridsen Harold Napoleon Robert Singyke Debra Dubac ATT ALASKA COMMISSION TI Joint Federal-State Commission on Policies and Programs Affecting Alaska Natives Anchorage, Alaska May 1994 a aw Printed on recycled paper