It was like walking into the junior high school cafeteria for the first time. I looked around, trying to see if there was someone I knew that I could sit next to. The room for "Alaska Forum 2015: A Summit on Shipping and Ports" (Aug. 23-25 in Anchorage) was so full there were people standing at the back. I wandered around to the side and sat in a lone empty chair, still looking.
In a room of hundreds of people all talking about shipping off the west coast of Alaska, I saw maybe two people that I knew represented tribal governments, both from the same village. It struck me that this critically important conversation about developing a massive shipping corridor on their front doorstep was happening without the tribes. People are talking about them and their homes but not to them.
Thankfully, Myron Naneng from Association of Village Council Presidents stood up and said the coastal tribes in the Yukon-Kuskokwim Delta were largely unaware of the proposed shipping route called PARS, short for the Port Access Route Study. He is right. There are almost 50 tribes on the west coast of Alaska between the Bering Strait and Bristol Bay and only one had submitted any comments. The U.S. Coast Guard representative was gracious in his response that they might not be able to get to everyone they would like to receive comments, but he – and almost everyone else in the room – missed the main point: Tribes are entitled to more than just the ordinary notice and comment period you get with a regulation, rule or policy. As federally recognized tribes, they are entitled to government-to-government consultation.
There are 229 federally recognized tribes in Alaska, the legal and political successors of the pre-contact, pre-statehood governments. In most of rural Alaska, the closest (and sometimes only) government for hundreds of miles is the tribe. Their primary role is to serve the needs of their people and to advocate for their best interests when faced with political decisions that will impact their lives. One of their tools is tribal consultation.
In 2000, President Bill Clinton issued Executive Order 13175: "Consultation and Coordination with Indian Tribal Governments." One of its fundamental principles is that: "Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory." Based on this principle, Clinton directed federal agencies "When undertaking to formulate and implement policies that have tribal implications, agencies shall ... where possible, defer to Indian tribes to establish standards." Moreover, each agency was directed "to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications."
This executive order remains in effect today and, in fact, in 2009, President Barack Obama issued a memorandum directing each agency to develop within 90 days "a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175." Tribal consultation is alive and well and still on the books.
On top of the pressing weight of history, law, policy, precedent and a very specific executive order, there is another reason any federal agency involved in the development of any shipping infrastructure or corridor must talk directly to the tribes: It is the right thing to do. A few weeks ago my friend described how walrus hunts are still conducted using the traditional method of sticking the oar in the water and putting your ear to the handle of the oar to listen. He wondered how that was going to work when a cruise ship plows through during hunting season. Many of these hunters are out in the Bering Sea on 18-foot Lund boats. He wondered how that was going to work when the waves of a huge cargo ship hit you.
They are there because it is still a critical part of their culture and way of life, and they still rely on marine subsistence foods to survive. Every one of the coastal tribes between the chokepoint at Diomede and Bristol Bay relies on hunting and fishing for healthy food and culture. It is not an afterthought or consideration to be taken into account; subsistence is an imperative, a way of life and the very first thing that should be considered.
Finally, I suspect some people in the room, and some people reading this comment, are assuming because the representative from one corporation or another was present or submitted comments on the shipping route, that it might counted as "consultation." It does not. Each tribe has its own government, its own voice and its own views and consultation is not satisfied by the act of speaking with a regional corporation. To be sure, the regional corporations will be key to infrastructure development so they are important to the shipping conversation but they do not displace tribes. Tribes are governments and corporations are not.
Moreover, Alaska Native peoples do not have a monolithic point of view. They will surely have different information to offer and different opinions. The next time I attend a meeting on Arctic shipping, or see a notice being published in the Federal Register, I hope and expect to see the tribes represented. This proposed massive shipping corridor is right outside their front door and they are entitled to know what you have planned.
Natalie Landreth is a senior staff attorney at the Native American Rights Fund in Anchorage and is counsel to the Bering Sea Elders Group, an association of members from 39 coastal tribes.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com