Indian Country Today
Rosita Worl unexpectedly grew teary eyed as she looked at the coho salmon a younger family member had brought her.
The silver fish was a sight she was used to, but one she had learned wasn’t always guaranteed.
“I just cried that our traditions were still viable, and that he was able to still bring food to me as an elder,” she said.
Worl, Tlingit, was born in Petersburg, Alaska, during the 1930s. She was brought up in a subsistence lifestyle, living off the land in Southeast Alaska as her ancestors had. As she grew older, the ceremonies, traditions, and community need for subsistence stayed constant, but the laws surrounding it changed.
She recalled the first time she realized this, as if it were yesterday. She was fishing with other kids from her village as they always did, when state officials suddenly told them that the familiar process was illegal.
“We didn't know that it was against the law. They confiscated the fish and we couldn't believe it. We kept saying, ‘what value is it to you to take that fish away and not return it?' Whereas to us it meant winter food,’” she said.
Decades after this incident, similar legal disputes over subsistence are still occurring. The Alaska Native Claims Settlement Act was intended to protect this Indigenous community right, but the matter did not end up being resolved. As the 50th anniversary of the landmark legislation approaches, the question still remains: what can be done to protect subsistence rights today?
‘An unsettled and unsettling landscape’
While Indigenous land claims were being settled during ANCSA, many Alaska Natives fought to include subsistence rights in the final bill. The pairing appeared natural. After all, the legislation addressed traditional lands, which seemed inseparable from the hunting and fishing that accompanied them.
However, outright subsistence protections were left out of the final legislation, due to disagreements and a pressured timeline to develop oil. Instead, ANCSA ended up extinguishing all aboriginal hunting and fishing rights as part of the settlement. Congressional intent was for the Secretary of Interior and state of Alaska to "take any action necessary to protect the subsistence needs of the Natives." Many believed this would be sufficient, but it soon became apparent that more concrete protections were needed.
The omission is viewed as one of the largest unintended consequences and unresolved portions of ANCSA.
“I think the ongoing, unsettled nature of subsistence has caused people to take pause; to see and ask themselves whether that part of ANCSA was a shortcoming,” said Margie Brown, Yup'ik, in an interview with University of Alaska Anchorage.
Around 10 years later, there was a second chance to protect subsistence with the passage of the Alaska National Interest Lands Conservation Act (ANILCA). While ANCSA determined the future of Native lands, ANILCA designated what would happen to the rest of state. Through the act, approximately 222 million acres of Alaskan land were put into conservation units such as parks, preserves, wildlife refuges, and national monuments. The decision meant that around 60 percent of the state was under federal control, making it the highest acreage of federal land ownership in the country by a long shot. Even states known for their national parks hardly compare -- Alaska’s federal land is more than that of California, Oregon, Washington, Montana, Wyoming, and Idaho combined.
This time, subsistence was explicitly addressed. ANILCA protected the customary and traditional uses of fish and wildlife for food and other noncommercial use, and made subsistence the priority use on federal lands, above sport or commercial fishing and hunting.
But there was a catch. ANILCA designated subsistence to be a priority for rural residents, not Alaska Natives. Under this law, urban residents could still practice subsistence, they just wouldn’t receive priority status during times of shortage. The rural distinction was a compromise meant to protect Native subsistence, while not discriminating on the basis of ethnicity —something that several influential non-Native groups in the state opposed.
The state of Alaska set out to replicate this policy on non-federal lands, but urban hunters and fishers who considered it unfair were determined to fight it. After a few years of legal disputes, the Alaska Supreme Court ruled in their favor, deeming the rural distinction unconstitutional. The decision meant that any Alaskan resident could practice subsistence on state lands, if the state approved subsistence use in the area for that season.
Today, this dynamic has resulted in a vague and often-clashing dual system. The federal government regulates subsistence on the 60 percent of Alaskan land under federal control, while the state regulates subsistence on the 30 percent of Alaska which is under state management, the 10 percent which is privately owned, and navigable waters.
“You've got three different land jurisdictions in Alaska: you've got the state lands, you've got the federal lands, and then there's this 40 million acres of Native lands,” said John Sky Starkey, Cheyenne River Lakota Tribe, a lawyer who has spent decades representing Alaska Native organizations in subsistence cases.
Since ANILCA passed, there have been several lawsuits between the state and federal government that have put this system to the test.
“Although the laws can potentially provide protection, the implementation of the laws is greatly lacking. And the legal meaning of the laws is also still in flux,” he explained. “In both the federal and the state regulatory regimes, Alaskan Natives have really very little say in what the regulations are going to dictate and the restrictions that they're going to cause.”
Subsistence, a practice which past generations participated in without question, had now become a complex legal puzzle.
“It's a very unsettled and unsettling [legal landscape] for Alaska Native people,” Starkey said.
‘An embodied way of life’
“We don't think about subsistence as merely a quantifiable event. Subsistence is a whole structure, it's a way of life,” explained Haliehana Alaĝum Ayagaa Stepetin, Unangax̂. Stepetin grew up subsistence fishing and hunting in her homelands on the Aleutian Islands. Today, subsistence is part of everything she does: her PhD research in Native American studies at the University of California Davis, her teachings at the Alaska Native Studies program at the University of Alaska Anchorage, and her performance and choreography of traditional Unangax dance.
“It’s an embodied knowledge, an embodied way of life. And when we dance about these activities, we're extending that process of subsistence,” she said.
From the Athabascans in the interior, to the Inupiaq in the Arctic, this sentiment is consistently echoed. The practice itself looks different across the varying Alaska Native regions. Some communities hunt seals and whales along icy coasts, others fish for salmon during the long days of the midnight sun. The ceremonies might vary, and the passed down stories might differ. But despite these contrasts, all tribes have one aspect in common: subsistence means more than just food security, it also has greater cultural significance.
“Subsistence is absolutely critical to our survival. Without it, we don't exist out here,” said Steve Ivanoff, Inupiaq, a subsistence hunter and fisherman from Unalakleet, a village of about 600 people in Western Alaska. For him, subsistence meant the community gathering and sharing of food from nature.
It can be difficult for those who aren't familiar with subsistence to fully understand this concept.
“A major issue is that the general public, overall, does not understand the full significance of subsistence hunting as one, our basic food security, and then also the cultural dimensions of it,” explained Worl, who has a PhD in Anthropology and a renowned career in subsistence research and advocacy. She currently works as the president of Sealaska Heritage Institute, and spent years on the Alaska Federation of Natives' subsistence committee.
Worl believes some of the disconnect stems from antiquated views of Indigenous people, in which others expect them to be solely traditional, rather than the reality of modern people living in current times, who also practice their traditions.
“These spiritual things, they're important to our cultural survival. And I don't know that people realize that, because they see us driving cars and dressed up in modern clothes,” she said.
Stepetin also encountered misunderstandings surrounding subsistence, both as a teacher and a student.
In her PhD program, she found that the term “subsistence” was often corrected to “sustenance,” and that people viewed it in the same light as agriculture.
“It’s always surprising to me that people don't know what subsistence is, which is really just living a balanced and sustainable lifestyle with your local ecosystem, and stewarding that ecosystem for returns to come for generations in the future,” she said.
As a teacher of Alaska Native studies, she tries to emphasize this point for students who might be unfamiliar with the tradition.
“All of our our pedagogy revolves around transfers of subsistence, which includes sharing, storytelling, dance, song, and eating together," she said. "It permeates into every single part of an Alaskan Native existence. So I try to make it clear in my curriculum.”
She starts by encouraging her students to think beyond what’s represented in mainstream culture, which can be a challenging exercise for anyone.
“It takes a lot of introspection to even be able to understand that there's a whole other way of living and thinking and being in the world that exists,” she said. “So really, it's a philosophical question of, “Can I get these students to think in a different way?’ And to think critically and to think deeper about the ways that people have adapted to living in place over time.”
For many Alaska Natives, the highlight of subsistence is the generational bonding formed over passed down knowledge and shared experiences.
“It's an important part of our wellness, our health, and our healing culture. It’s the very center of who I am as an Alaska Native person,” said Jody Potts, Han Gwitch’in Athabascan. “And it's important for me to be raising my kids this way.”
But in recent years, the legal landscape has made the crucial generational component more difficult to fulfill. Subsistence life is usually tied to the village one is from. In the summers, people travel to their fish camps — settlements near one’s village where people fish, oftentimes in the same location their ancestors had practiced subsistence. In the winter, they trap or hunt in areas located near their village as well.
Today, an increased number of Alaska Natives have moved away from their family’s village to urban areas, such as Anchorage, for employment or educational opportunities. However, many still have ties to their home village, and return for key community events, such as subsistence practices and celebrations.
“They want to continue to engage with their village and their kin and everybody around subsistence activities. They want to bring the kids up with that culture. And because of this rural priority, if they live somewhere other than in the village, then they're cut out, which causes a great amount of consternation to people,” Starkey said.
If the federal government exercises its authority to close a river to subsistence fishing to anyone who's not a qualified rural resident, that means their own family can't come out to fish camp anymore, says Starkey. Because federal subsistence protections extend to rural residents, urban Alaska Natives aren’t included.
“It’s just becoming a real tool for assimilation,” he explained.
Even those who do qualify for the rural precedent can have their access removed. For example, in 2006, the Federal Subsistence Board terminated the Southeastern village Saxman's rural status, and grouped it in with the larger town Ketchikan. For 10 years, the small community of 400 worked to restore their subsistence access before it was finally granted.
It's situations like this that reveal how the rural precedent can be unpredictable, and demonstrate why some Alaska Natives would favor a law that more directly protects their subsistence practices.
“This does not mean that non-Natives from Anchorage and Fairbanks can't go out and take a moose or go fishing," wrote Thomas Berger in his 1985 Report of the Alaska Native Review Commission. "What it does mean is that I believe Congress should entrench Native subsistence rights, so they cannot be placed in jeopardy by any future state action.”
The argument that Berger made almost 40 years in his report to the Inuit Circumpolar Conference is still being debated today.
Basic rights, different wavelengths
In theory, the current legal setup is designed to provide equal hunting and fishing opportunities for all Alaskans. But some argue this approach doesn’t account for pre-existing societal inequities.
Most Alaska Native villages are located in highly remote areas, disconnected from roads and far from other communities. Food must be shipped in by plane or boat, and the unconventional transportation route can cause prices to skyrocket. Expensive airfare and unpredictable weather conditions can make grocery deliveries unreliable.
“There is currently this notion that all Alaskans, regardless of whether or not they're living a subsistence way of life, are subsistence users. And if everyone is, then it dilutes the so called priority for real subsistence users. If everybody is a subsistence user then what does priority mean?” Starkey said, referring to the state's subsistence laws.
Worl sees cases of these inequities all the time. For example, during the pandemic, transportation to the village of Kake was interrupted, meaning the coastal town was unable to get a steady supply of commercial goods during the health crisis. In light of the urgent situation, the village applied for an emergency subsistence use permit. The request was initially denied, briefly approved, then stalled by a lawsuit from the state government.
“It just seemed like it should be a basic right. But we must be on different wavelengths than other people,” she said.
To make matters worse, it occurred at a time when the health qualities of subsistence food were especially sought after.
“There was this great concern for elders who were more susceptible to getting COVID,” she said. “And the community really wanted them to be able to have this healing food.”
The case demonstrated how Alaska Native subsistence rights can often become tangled in legal conflicts focused on state vs federal power. Matthew Newman, an attorney for the Native American Rights Fund, says they should be two separate issues.
"Unfortunately, the board’s effort here has been attacked as part of a much different battle between the federal government and the state of Alaska about who gets to control fish and game management,” said Newman said in an interview with High Country News.
For those worried that an increase in subsistence practices could lead to a strain on natural resources, data says otherwise. Subsistence users take just 1 percent of the fish and game harvested in Alaska, according to the Department of Fish and Game, with the vast majority going to commercial fishers and hunters instead.
A worsening situation
The Alaska Native subsistence debate has been occurring for years. But the stakes are even higher in recent times, when a changing climate has altered everything from salmon runs and hunting seasons, to migration patterns and and berry growth.
“There are so many threats to our subsistence and our traditional ways of life, be it climate change, be it laws, [other] hunters, and the stress on the resource,” explained Potts.
Many subsistence based communities have been impacted by this first hand. For example, the Yukon River has seen two consecutive years of record breaking low salmon runs, consistent with a decade of downward trends. Around 40 communities in the area rely on subsistence fishing. The situation was so dire that emergency shipments of salmon and other food had to be flown out to particularly afflicted regions.
(Related: Slow, late salmon run hurting fishers)
This dismal data isn’t surprising news to subsistence users. Many have been seeing warning signs for years. Stepetin described how her dad taught her to observe the signs in the land, and note the interconnected nature of the wildlife that surrounded them. This knowledge was based on thousands of years of passed down insights. For instance, when there wasn’t enough snowfall, there would likely be a shortage of berries.
“We're already Indigenous scientists and already know this. We don't need outside sources to tell us what's going on. We can tell them that we're witnessing and experiencing a changing climate and returns of salmon and the different fish,” she said.
The value of traditional knowledge was apparent to outside perspectives as well. Through his legal work on subsistence, Starkey has witnessed countless times where Indigenous customs predicted food shortages, or traditional management prevented overfishing.
He views this as another reason Alaska Natives should have an increased role in subsistence management.
“It’s not just for the sake of Alaska Native people, that Alaska Natives need to be much more meaningfully engaged in land management. It would benefit everyone,” he said.
50 years later, an ANCSA amendment?
From the very start of the legislative process, it was evident that many expected ANCSA lands to be tied to Indigenous subsistence. When ANCSA first passed and the various Alaska Native corporations began choosing the lands they would own, some corporations, such as Ahtna, specifically selected areas that were best for subsistence, says Starkey. Thousands of years of knowledge went into the decision. Decades later, Ahtna has had to consistently fight for hunting and fishing rights on their own lands.
"In one lifetime, we went from being the only inhabitants of our region to co-managing the resources of our homeland alongside state and federal actors," said Ahtna chairman Ken Johns, Udzisyu Caribou clan, in an essay for the Anchorage Daily News.
It’s another example of the unsettled dynamic between subsistence and ANCSA. But there are still possibilities for change down the line.
“I think that there needs to be amendments made to the Alaska Native Claims Settlement Act that reinstates our Aboriginal hunting and fishing rights,” Potts said.
There are a few potential solutions. One change would be to enable Alaska Natives to manage and harvest ANCSA lands, as they initially believed they would be able to.
This could be accomplished through an amendment to ANCSA legislation. Many in the community, like Potts, believe this is a good compromise: if Alaska Natives aren’t legally given priority to subsistence hunt and fish on all Alaskan land, then they should at least be able to receive priority on their own lands.
Unfortunately, the amendment process would likely be extremely expensive. Already, Alaska Native subsistence advocacy has cost millions of dollars, says Worl. Furthermore, many of the Alaska Native organizations that could lead the process already are inundated with other pressing legal matters.
“There is an estimate that we’ve spent around $20 million trying to protect subsistence, because it seems that every time we try to do something, we end up with a lawsuit. And it's still ongoing,” Worl said.
This is where the Alaska Native corporations have been able to help: funding. Any legal battle would most likely be a sort of David and Goliath dynamic, where subsistence users would have to go against resource heavy opponents such as the state and federal government, or special interest groups like sports hunters that receive outside funding from national sporting organizations. Many villages simply don’t have the resources to counter these larger groups. But the Alaska Native corporations, which have more assets and organizing capacity, might be able to provide more assistance.
Another option would be to amend ANILCA, so that Alaska Natives have priority to subsistence hunt and fish on federal lands in addition to rural residents. This would also likely be a lengthy and expensive process.
The third option is to implement a co-management solution, which would enable Alaska Natives to have greater influence over state and federal subsistence laws.
“In both the federal and the state regulatory regimes, Alaskan Natives have very little say in what the regulations are going to dictate and the restrictions that they're going to cause,” Starkey said. “They’re left out of control of one of the most important aspects of their way of being. And that's just wrong. It's been a huge problem from the beginning.”
As it currently stands, there are three Alaska Native representatives on the federal subsistence advisory board, and one representative from the BIA. However, these voices are often outvoted by the 5 other representatives that don’t have ties to Alaska Native communities. The setup can cause critical subsistence decisions to depend solely on the current administration.
“If your way of life depends on who's in office every four years, either as a governor or president, what kind of security do you feel about that?” asked Starkey.
Worl also saw a need for a more concrete co-management policy.
“We've been pushing and pushing for increased co-management. I know some regions have more success with co-management, but it should be addressed on a statewide level,”’ she said.
This strategy has worked in other locations. In Washington, salmon and steelhead fisheries are managed cooperatively by Western Washington tribes and the Washington state government. The arrangement involves an annual agreement on salmon fishing seasons and on hatchery production objectives in Puget Sound and the Washington coast.
While the region still experiences the type of salmon population challenges that are becoming increasingly common today, the co-management approach has seen positive results overall.
“I don’t know of a better working relationship between a tribe and a state agency,” Scott Chitwood, Jamestown S’Klallam Tribe’s natural resources director, told the Northwest Indian Fisheries Commission in 2007. “By working well together, we’ve been able to make real progress toward recovering Dungeness chinook.”
Even sports fishers who had initially been against a co-management relationship eventually saw the value of Indigenous-led fishing policies.
“I had a lot of sports fishermen come directly up to me. And they put out their hand and they said, 'Would you please tell the Yakama Nation thank you? Because we know if it wasn't for their tribe, there'd still be no fish in that river,’” recalled Carol Craig, Yakama, in a 2016 NMAI interview.
As the Alaska Federation of Natives rolls around this year, Worl and others will be including a resolution to amend ANCSA to protect subsistence rights. Considering the cost it would take to change the law, coupled with the many other advocacy campaigns Alaska Native organizations are already handling, she isn’t optimistic that it will pass. But giving up doesn’t seem like an option, either. She’s hoping that increased emphasis on social and environmental justice might just make a difference this year.
“I was thinking this would be the perfect time to try to pursue it when people are looking at social justice and social equity. But again, it takes money to be able to push these things through Congress. So I just don't know what it'll take to move it past a stalemate,” she said.
Until then, Indigenous Alaskan communities will continue passing on their traditions despite legal barriers, just as they have done for centuries.
“It's a sustainable way of life,” Stepetin said. “And we will keep it alive as long as communities with this knowledge continue to transmit it to the next generation, and keep these stories and lessons of subsistence alive within us.”
Update: The story has been updated to include information on the Kake lawsuit.
This story is part of a joint project between Indian Country Today, Alaska Public Media, and Anchorage Daily News on the 50th anniversary of the landmark Alaska Native Claims Settlement Act. Funding for ICT’s ANCSA project is provided in part by the Alaska Center for Excellence in Journalism and the Solutions Journalism Network. Stay updated on ICT’s ANCSA project using #ANCSA50 and at https://indiancountrytoday.com/tag/ancsa-50.
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