Joaqlin Estus
Indian Country Today

The state of Alaska has announced it’s taking over management of navigable waters from the federal government.

Gov. Mike Dunleavy in late March accused the federal government of ignoring state rights and delaying conveyance of title to land under navigable waters to the state despite a U.S. Supreme Court ruling in Sturgeon v. Frost two years ago.

“Our state will not tolerate federal officials or federal action attempting to subvert the clear mandate of the court,” Dunleavy said. He said the court’s decision clears the way for 800,000 river miles to be managed by the state.

Those rights are nothing new, said Heather Kendall Miller, Dena'ina Athabascan. She has defended subsistence rights for decades at the Native American Rights Fund, the largest legal organization defending Native American rights.

“The state of Alaska has had management authority over navigable waters for two years, ever since a U.S. Supreme Court ruling in favor of John Sturgeon,” Miller said. “He took a hovercraft up a river in the Yukon Charley National Preserve to hunt moose.”

Federal officers stopped him, and Sturgeon went to court. 

“Up until his case, the federal government had precluded the use of hovercraft in national parks and refuges,” Miller said. “The [U.S.] Supreme Court said, ‘No, you don't have the authority to regulate such activities. That authority rests with the state of Alaska.’

“The federal government, as of last year, had already backed up, recognizing that it no longer had such authority to regulate the use of hovercrafts in certain other waters.”

Miller describes Dunleavy’s announcement as “all bluster” and “it’s not new.”

“He has simply taken advantage of the result of the decision that was rendered in Mr. Sturgeon's case two years ago,” Miller said.

Sturgeon’s case and Dunleavy’s announcement don’t change management of subsistence fisheries, a vital economic, social and cultural activity for Alaska Natives, Miller said.

Katie John, Ahtna Athabascan, was the lead plaintiff in a lawsuit over subsistence fishing rights that went on for some 30 years, through numerous appeals. With Miller representing her, John won them all.

“The most important thing, from my perspective, as someone who litigated the Katie John cases, was that those cases are still binding precedent and the state does not have the authority to impose its jurisdiction over subsistence fisheries,” Miller said.

That’s also important to the Kuskokwim River Intertribal Fish Commission, which is headed by Mary Peltola, Yup’ik.

For the past seven years, the commission has had an agreement with the U.S. Fish and Wildlife Service to co-manage subsistence fisheries. The federal agency has the final say. But Peltola said “without exception” the federal agents with the Yukon Delta National Wildlife Refuge in western Alaska have heeded the advice of commission managers.

The commission is made up of 33 communities on the Kuskokwim, a 700-mile river located in Southwest Alaska. During the fishing season, they elect four in-season managers from different points on the river. The commission's managers work with federal managers to figure out when to open and close fisheries to make sure enough fish continue up the river to spawn, while also providing food for villagers.

Predictions on when and how many fish will return can be unreliable. Weather can make fishing hazardous. And the number of King Salmon, or Chinook, returning to spawn in the Kuskokwim River has been declining for years. So management is a balancing act.

“The in-season managers and the fish commission has done a remarkable job making sure that the escapement is met as well as coming as close [as possible] to meeting our escapement goal of 110,000 Chinook, as well as being very sensitive to the timing, you know, synching harvests up with weather to the best of our abilities and trying to make sure that there's an even distribution of salmon along the whole 900 miles of the watershed,” Peltola said.

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The biggest problem managers face is the decline in the number of Chinook returning to spawn. In other years, at its peak, the subsistence catch was 110,000 salmon. For the past several years, returns have been much lower.

“We've been managing for a harvest of a mere 20,000 to 40,000 Chinook a summer. So really it doesn't come anywhere close to meeting anyone's subsistence needs for Chinook. And we're trying to be, you know, the fish commissioners are trying their hardest to be as equitable along the river [as possible] under really challenging circumstances. I mean, we're basically fighting over crumbs,” Peltola said.

The intertribal fish commission doesn’t have the same cooperative relationship with the Alaska Department of Fish and Game as with federal agencies, Peltola said. In fact, she said the commission was formed in response to frustration, “a feeling that the advice wasn't being listened to and stakeholders were not part of working on solutions for conservation in state waters.” The previous administration of Gov. Bill Walker and Lt. Gov. Byron Mallott participated in the fish and wildlife service and inter-tribal fish commission meetings, Peltola said.

However, “with this new administration and a commissioner who was very outspoken against the tribes, they have not participated to the same extent.”

Commission members want to avoid over-harvesting, to keep fish population numbers up in future years. But the state makes an already complicated situation more challenging, by allowing fishing for other species when Chinook are in the river, and using gear that also catches Chinook, Peltola said.

“The last two summers they've done things where they’re having concurrent fishing times, supposedly for chums and reds (salmon), when we all recognize that when there are three species of salmon in the river and [indiscriminate] ...gear is being used to harvest them... and it is a violation. That's something we're going to be watching for this upcoming summer,” Peltola said.

Independent journalist Dermot Cole said in his blog “Reporting from Alaska,” that Dunleavy “taking control of submerged lands under every river, lake, pond, and deep ditch in Alaska sounds like an opening shot for his 2022 re-election campaign.”

When oil production was high and the price of oil was up, the state of Alaska raked in enough money to fund most of the state government and create a Permanent Fund, or savings account. Every eligible Alaskan receives an annual dividend of $1,000 or more drawn from the fund. Dunleavy has said he’ll increase the dividend to $5,000 per person.

The Klutina River, Alaska. (Photo courtesy of Alaska Department of Fish and Game website)

“Dunleavy has fallen flat on the multi-billion-dollar deficit facing the state—the most pressing issue facing Alaska,” wrote Cole. “He can’t get his jumbo dividend and has set a course for draining the earnings reserve of the Permanent Fund.” Dunleavy is also facing a recall campaign to put him out of office.

“He can’t explain how he intends to fund state government starting in July 2022, so he can’t run for re-election or any other office on his fiscal record, but he can appear to be a man of action by taking on the feds in court and talking tough—an Alaska wag-the-dog political stunt that never goes out of style,” Cole said.

Dunleavy had stated, “It is my hope federal authorities will abandon their strategy of litigation and delay, and instead choose to save millions of dollars by working cooperatively with the state.”

“Nothing will be abandoned. No money will be saved. Alaska will be spending millions on court costs on highly technical arguments,” Cole said. Conveyances have been slowed by disagreements between the state and federal agencies, and by the volume of information needed to secure title to some 30 million acres of land under lakes.

Dunleavy is also fomenting civil disobedience, telling people to ignore federal rules on travel on rivers and lakes.

“Following in the path of John Sturgeon, who won two unanimous decisions before the Supreme Court on this very issue, the state will provide a legal shield to Alaskans for as long the Biden administration wishes to lose cases,” Dunleavy said. Cole said he wouldn’t count on state backing in court.

Land management agencies in Alaska include the Department of Interior’s Bureau of Land Management, National Park Service, and U.S. Fish and Wildlife Service, and the Department of Agriculture’s U.S. Forest Service. They manage more than 200 million acres in Alaska, or about 60 percent of the state.

The departments of Interior and Agriculture, and the statewide Alaska Federation of Natives had no comments on the governor’s announcement.

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