When is one man's boat more important than an entire way of life?
That question is now before the United States Supreme Court, thanks to the efforts of Gov. Walker and a man named John Sturgeon. Their appeal would have the Supreme Court abolish all Alaska Native subsistence fishing rights so that one man can drive a hovercraft in a national park. They believe a boat is worth putting at risk an entire way of life.
Alaska Native people have lived off the land for millennia. The subsistence way of life that sustained them for centuries still sustains them today. Hunting, gathering and sharing are critical components of that way of life, but none is more critical than subsistence fishing. Although subsistence fishing only accounts for 2 percent of all fish caught in Alaska, it constitutes two-thirds of all subsistence foods taken by Alaska Native people. As one judge once observed, to destroy Alaska Natives' ability to fish is to destroy their very way of life. Alaskans understand this, and when polled, we overwhelming support rural subsistence fishing and hunting rights in our state.
The law hasn't always been protective of these rights. When Alaska Native land claims were settled in 1971, Congress carelessly abolished all Alaska Native hunting and fishing rights. Congress did that on the tragically mistaken assumption that the state of Alaska would step up and protect those rights. But the state did nothing. To the contrary, it maintained closures of many Native subsistence fisheries.
Nine years later, Congress reinstated some of those rights by enacting Title VIII of the Alaska National Interest Lands Conservation Act. Congress declared that there would forever be a subsistence right to fish in Alaska rivers running through federal lands such as parks, preserves and national forests. This wasn't an accident: Congress mentioned subsistence fishing more than three dozen times in Title VIII. If those fishing rights didn't apply at least in those rivers, there would be no Title VIII subsistence fishing rights at all.
This meaning of this law was well settled in the 1990s, when the federal courts repeatedly ruled in the famous Katie John cases that Title VIII protects subsistence fishing rights on federal waters, including all navigable rivers where the government still retains water rights (as is the case in federal parks and refuges). The key to those decisions was the meaning of the words federal "public lands," and the courts held that "public lands" include these rivers.
But now, John Sturgeon and Gov. Bill Walker want to revisit all this, simply so that a man can use a hovercraft instead of a skiff inside our federal parks and preserves. They are urging the Supreme Court to rule that the federal government has no authority to regulate the use of these rivers, and that only the state can regulate river uses. While they claim their intent isn't to destroy subsistence fishing rights, that outcome is almost compelled by their actions.
The prospect of state regulation of subsistence is terrifying to Alaska Native villages. Not only has the state never adequately protected Alaska Native, or even rural, subsistence fishing rights; when pressed, the Alaska Supreme Court ruled that it would be unconstitutional for the state to do so. This means that without federal subsistence fishing rights for rural Alaskans, they will have no fishing rights at all.
That is an unfathomable assault on a way of life that is already under assault from all sides. The Outdoor Council, on whose board Mr. Sturgeon sits, may praise that outcome — as may some in state government who despise anything federal other than federal money — but fortunately, a strong majority of Alaskans support a fishing priority for the few thousand people in the rural parts of our state who continue to live a subsistence way of life.
The tragic thing is that this all-or-nothing gambit could have been completely avoided. Mr. Sturgeon could have dropped his case and turned to Congress for greater state authority over some river activities. The governor could have urged the Supreme Court not to take the case, and to leave further adjustments to the legislative process. Even today, Mr. Sturgeon could dismiss his appeal.
But none of that is happening. Clearly, both Mr. Sturgeon and the governor, along with fringe groups like the Outdoor Council, are happy to put rural subsistence fishing rights on the block in the name of more and more "states' rights" — and a boat.
When is one man's boat more important than an entire way of life? Never.
Lloyd Miller is an Anchorage attorney specializing in Native American law.
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