July 4, 1997

Caribou head

A caribou head and meat dry in the shadows in Kwethluk. Tensions were high when Kwethluk won a federal court order in 1990 allowing villagers to hunt the small Kilbuck caribou herd, against the recommendations of state and federal biologists. (Anchorage Daily News photo by Bob Hallinen)

Will fish and game suffer?

Some foresee chaos, while others see cooperation

By Tom Kizzia and Don Hunter
Daily News reporters

Kwethluk -- In 1990, when Yup'ik villagers along the Kuskokwim River were barred from hunting the small Kilbuck caribou herd, some hunters rode their snowmachines into the mountains and shot caribou anyway.

Kwethluk's tribal government then went to federal court. Their hunters had waited for years, they said, and now the herd had grown large enough to support a small hunt.

State and federal biologists disagreed, but the judge sided with Kwethluk.

Stunned biologists warned that even a limited hunt could halt the tiny herd's growth, but within a year, four more village tribes were in court seeking hunting rights. A fifth, Akiak, threatened to hunt without a court order, proclaiming villagers had a right as a sovereign people to shoot the caribou they needed.

That volatile combination of sovereignty and subsistence is what some urban hunters fear they'll be up against throughout Alaska if the state is carved into pieces of Indian country.

The potential for disruption is huge if tribal governments can set their own hunting and fishing rules on as much as 20 million acres of Native village corporation land.

Because Native corporations already have the power to exclude outsiders or charge hunting fees, the issue is really increased harvest by local Natives. Liberal tribal rules might force hunting cutbacks on adjacent land by urban hunters or local non-Natives. At worst, critics say, animal populations could be decimated.

''The fervor of exercising this self-government image could really far overshadow the attention to sound conservation,'' warned Dick Bishop, a retired state biologist who has just stepped down as executive director of the Alaska Outdoor Council, a statewide sportsmen's group. ''I don't think that's unique to Alaska Natives. That's human nature. People go overboard to make a philosophical point.''

But in the aftermath of a federal appeals court decision last winter opening the door to Indian country in Alaska, many tribal advocates describe a very different future for hunting and fishing in Alaska.

They base their predictions partly on the outcome of the caribou confrontation in Kwethluk, where the much-anticipated Eskimo slaughter of Kilbuck caribou never came to pass. Instead, the Kilbuck crisis helped usher in an era of cooperative game management that is now winning praise from federal, state and tribal officials.

''I think there would be some villages that would try to manage their own fish and game,'' said Carl Jack, a Yup'ik from Kipnuk who coordinates subsistence issues for the Rural Alaska Community Action Program, a nonprofit anti-poverty agency. ''But I think the preferred option for most tribes would be to go through the co-management process.''

Rights never guaranteed

The first question about subsistence is whether last winter's 9th U.S. Circuit Court of Appeals decision on Indian country really opens the door to tribal management of hunting and fishing in Alaska.

Answers are hard to come by in the looking-glass world of a Supreme Court appeal. The state says tribes may gain wide new authority over subsistence. Native rights lawyers say tribes may actually gain little.

Most lawyers agree that tribal authority over hunting and fishing won't come easily under the 9th Circuit's Venetie decision.

Alaska Natives never had hunting and fishing rights guaranteed by treaty, unlike Indian tribes in the Lower 48. And in 1971, as part of the Alaska Native Claims Settlement Act, Congress expressly revoked aboriginal hunting and fishing rights.

Section 4-b of the act said: ''All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy ... including any aboriginal hunting and fishing rights that may exist, are hereby extinguished.''

Tribes in Alaska may therefore have much less authority than in states like Washington, ''where tribes have enormous treaty rights,'' said David Getches, a law professor at the University of Colorado in Boulder and a founder of the Native American Rights Fund.

Lacking treaty and aboriginal rights, tribes will be forced to argue they have civil jurisdiction over hunting and fishing in Indian country as the governmental body in charge.

Last month, in an interesting preview of subsistence arguments to come, the state's own appeals court ruled that even if Indian country exists in Alaska, hunting there is subject to state law. Ruling in the case of a Sitka man accused of hunting deer out of season on Native land, state appeals court judge David Mannheimer said that hunting might be called a civil matter. But ''illegal hunting,'' he wrote, is a criminal matter and therefore subject to state jurisdiction even in Indian country.

Of course, the question ultimately will be settled by federal, and not state, courts.

Fishing rights have an extra hurdle, Native rights lawyers say. The 9th Circuit's Venetie decision dealt with tribal jurisdiction over lands awarded to Native corporations. Under terms of the settlement act, navigable waterways remained in state hands. This makes it even harder for a tribe to claim a salmon swimming up a river than a caribou wandering onto corporation lands.

''Although it potentially provides a tribe some jurisdiction over game (on Indian land), as a practical matter, it won't resolve subsistence,'' said Heather Kendall-Miller, a Native American Rights Fund attorney who is representing Venetie before the Supreme Court.

Chaos or conservation?

If tribes do gain some control over hunting and fishing in Indian country, the result would be an unworkable checkerboard of regulatory schemes, predicted Bishop of the Alaska Outdoors Council.

Hunting seasons on adjacent public lands might have to be restricted to compensate for increased Native harvest. Excessive hunting by one tribal group also could hurt other Native communities competing for the same resources, or even cause game populations to crash, Bishop said.

Critics are particularly concerned about the potential effects of tribal regulation on migratory species such as caribou, waterfowl and salmon.

There is a check on tribal authority over fish and game, however. The U.S. Supreme Court has said a state can intervene in tribal fish and game management when conservation of a resource is at risk.

''The treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets,'' the court said in a 1973 case involving the Puyallup Indians of Washington state.

Bishop expects fish to become part of the debate in Alaska, too.

''The opportunity to assert authority over fishing will follow on the heels of any successful Indian country claim,'' he said. ''That's especially so when it comes to valuable fishing resources.''

Critics of tribal management note that spawning beds often lie in non-navigable streams. Will that give tribes rights to migrating salmon -- even at the cost of shutting down distant commercial fisheries? And who sets the bag limits on local species like trout?

''You could wipe out a rainbow trout population in some of those places really easily,'' Bishop said. ''And in the name of self-government and regulation, I think that could easily be done before anybody gave adequate thought to what the long-term impact was likely to be.''

Will people who are hungry feed themselves first, or make good conservation decisions first?

Native leaders bristle at the suggestion they wouldn't do what's necessary -- even work with state and federal biologists -- to protect wildlife resources.

Myron Naneng, president of the Bethel-based Association of Village Council Presidents, said it's foolish to think Alaska Natives, who have depended on wildlife for survival for thousands of years, would be shortsighted enough to threaten the foundation of their society.

''There's no incentive for us to kill off everything,'' he said. ''Under our own basic Yup'ik laws, we can't waste any resource. We have to be able to perpetuate it. So their fears are unfounded as far as I'm concerned.''

That familiar argument about Natives being the first conservationists leads to a false generalization, Bishop said.

''The perception that there's something intrinsically right about all things Native is just a perception that a lot of people don't get beyond,'' he said.

''They're people with all the warts and pimples that other people have. There's good ones and bad ones, smart ones and dumb ones, there's those with good instincts and poor instincts. They are people who are trying to cope with their lives, and some of them do it effectively ... and others don't.''

The Kwethluk model

The village of Venetie has restricted outside hunters' access to their lands for years -- acting as landowner and tribal government. Now the village council is talking about expanding hunting season for moose and caribou so that families can hunt when they are hungry.

Venetie has a vast 1.8-million-acre reserve on which to control hunting. But other tribes, especially those with small land bases and competition for game, are likely to try to parlay their new authority into cooperative agreements with the state and federal governments, Jack said.

They would be following the example set in Kwethluk.

Kwethluk is a string of houses set on pilings along a mile of Kuskokwim riverbank upstream from Bethel. Yup'ik hunters from the village never took the court-approved limit of Kilbuck caribou in 1990, thanks to an early breakup and the advent of calving season.

Then in 1991 a working group of federal, state and tribal representatives came up with a plan for dividing the allowable harvest among 18 villages with a stake in the herd. The villages promised to police their own hunters.

''The group worked in a way where everybody would consent to what would be in the plan, and that took a long while,'' said Phillip Guy, president of Kwethluk's village corporation and co-chairman of the caribou management program. ''It sort of follows the traditional way of our people.''

Today the Kilbuck herd is thriving.

To be sure, a major factor in the success of the Kwethluk plan was the spread of the much-larger Mulchatna caribou herd, which in the last few years has expanded into the Kilbuck range, reducing hunting pressure on the Kilbuck herd.

But the Qauilnguut Caribou Management Plan gets credit from state, federal and tribal officials for ending the confrontational atmosphere.

Under the plan, state and federal biologists fly aerial surveys with a village hunter, who directs biologists to areas frequented by the herds. This gives villagers more confidence in official population estimates.

''It's allowed Fish and Game and Fish and Wildlife staff to listen to non-Western science from the villages,'' said Michael Coffing, a Fish and Game subsistence specialist. ''They give us information on what they think is happening with the herd, the history of caribou in the region.''

At least once a year, state and federal biologists meet with representatives from the 18 villages to agree on a population estimate and an allowable harvest.

The allowable harvest, reached by consensus, has to be approved by both the Federal Subsistence Board for federal land and the state Board of Game for state and Native corporation land. The villages agree among themselves how to split the quota.

Several dozen other co-management programs are in place in Alaska, many involving federal and tribal officials working under federal laws. With the Kilbuck caribou herd, the state has come to play an important role, too.

''All the users have seen there is more to gain working together than working against each other,'' said John Coady, Fairbanks regional supervisor for the Alaska Department of Fish and Game's wildlife conservation division and a 16-year veteran of managing rural hunts in the state. ''There are a lot of different agendas out there, but I hope to see a future for wildlife management that includes some state involvement.''

Often underlying these agreements is the recognition by government authorities that local support is essential to prevent scofflaw hunting -- ''poaching'' to many urban hunters -- in remote rural areas.

Under co-management, any tribal rights to manage hunting in Indian country could be relinquished in exchange for rights to expanded hunting opportunities on adjoining state and federal land.

In Kwethluk's case, for example, tribal jurisdiction might extend no farther than the 120,000 acres held by the village Native corporation. That only covers a small corner of the Kilbuck caribou herd's range, according to federal and state biologists. Most of the year they are in the federal Yukon Delta Wildlife Refuge, and during the fall hunting season they are on state land, Coady said.

Tribes also get to participate in management without shouldering the full costs and gain a forum for mediating their own inter-village conflicts over fish and game.

''I think you are going to see Native people coming to the management table, not as the ultimate decision-maker but as co-managers,'' said Mitch Demientieff, a Nenana tribal chief and chairman of the Federal Subsistence Board.

More difficult areas

Co-management sounds good in theory. But what happens when several tribes don't like how many caribou they are apportioned? If they are sovereign tribes, can they pull out and go their own way?

Carol Daniel, a lawyer for RuralCAP, said most co-management agreements try to provide for arbitration and dispute resolution.

And what happens when tribal officers patrol Native lands? Involving tribes in data gathering and monitoring may be one thing. But some tribes hope to extend co-management to include deputized tribal marshals.

''Enforcement is going to be a tricky one,'' Jack conceded.

Who looks out for the interests of non-local hunters at the co-management table? Coady quickly concedes that no one looked out for sport hunting in the Kilbuck caribou agreement -- because there was no non-local harvest.

''It was probably a very good situation for Fish and Game and local people to gain experience working together, but it was relatively simple because there were not a lot of diverse stakeholders,'' Coady said. ''Now we're trying to apply that to more difficult areas.''

Urban hunters worry about becoming a full part of any co-management team. The system of regional advisory councils under the federal subsistence program in Alaska has left many of them concerned about fairness.

''Some of these Native people can come out right in public and say because of my skin color I'm a no-good sport hunter, I have no traditions, no ties to the land,'' said Elaina Spraker of Soldotna, a self-described ''non-subsistence hunter.'' Though the Kenai Peninsula is predominantly non-Native, she said she found her testimony for a local sportsmen's group coolly disregarded by advisory councils who preferred unsubstantiated Native testimony.

''It's the same people driving Indian country,'' Spraker said.

Indeed, just as worries about the state's equal-access subsistence program have helped push tribal sovereignty, worries about the federal rural-priority subsistence program have galvanized opposition to Indian country.

Bishop said co-management involving tribal governments would probably result in discrimination against urban Alaskans.

''We saw that in proposals before the federal board. Nobody was that concerned with the facts of the matter. They were concerned with keeping non-local people out,'' Bishop said.

Beyond that, Bishop said, co-management schemes tend to be ''incredibly bureaucratic and cumbersome.''

The alternative? Bishop says rural communities should give another try to the state system of local advisory fish and game boards, which make proposals to the state boards of fish and game.

Tribal advocates disagree. They say the state's commitment to even-handed policies made it impossible to protect the interests of rural villagers. As the number of sport hunters and fishermen grows, competition for resources continues to increase.

Village leaders say finding a stronger local voice on fish and game matters is one more way -- an essential way to a still-living subsistence culture -- to retain control over their futures. These days, to villagers in places like Kwethluk, tribal government looks like the way to get them where they want to be.

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