Opinions

The Kavanaugh Supreme Court appointment would threaten Alaska Native subsistence

  • Author: Charles Wohlforth
    | Opinion
  • Updated: August 14
  • Published August 14

Alaska Sen. Dan Sullivan meets with Supreme Court nominee Brett Kavanaugh in Sullivan’s Washington, D.C., office on Thursday, July 12, 2018. (Erica Martinson / ADN)

Brett Kavanaugh could cast the Supreme Court vote that takes away federal protection of subsistence fishing rights for Alaska Natives.

Kavanaugh's Senate confirmation will probably happen before the court decides a case called Sturgeon v. Frost, about control of Alaska's rivers. Sturgeon's states' rights argument is tailor-made for Kavanaugh, whom President Donald Trump picked from a list by the conservative Federalist Society.

Pressure on Sen. Lisa Murkowski to oppose Kavanaugh has focused on Roe v. Wade. After his confirmation, the court is widely expected to restrict or reverse women's constitutional right to abortion. Murkowski is a rare pro-choice Republican in the Senate.

But subsistence shines an even brighter light on the contradictions in Murkowski's party membership.

Alaska Republicans — and our independent governor, Bill Walker — carry the states' rights banner with insistence I've never been able to fathom. In this case, they are backing John Sturgeon's suit against the National Park Service, which blocked him from using a hovercraft in Yukon-Charley Rivers National Preserve. Sturgeon claims the state, not the federal government, should control those waters.

Alaska's constitution prohibits giving preferential fishing rights to rural residents. So, if Sturgeon wins and the state takes over the rivers, Native subsistence fishing in navigable rivers could be lost.

"I think as soon as you back up the Sturgeon case, you're against the Native way of life," said Fred John Jr., of Mentasta. "That's what the state wanted all these years, the power to take subsistence back, which is for everybody. Once they do that, we've lost everything."

John, 75, is the son of the late Katie John, whose historic 30-year legal fight defended Native subsistence rights on Alaska's navigable rivers.

It's time for Republicans who claim to support subsistence to explain why states' rights are more important than the age-old rights of constituents who were on the land long before anyone thought of creating the State of Alaska.

On the one hand, they say they support subsistence. On the other hand, their actions are the biggest threat to subsistence rights.

When he was Alaska attorney general, Dan Sullivan, now a U.S. senator, tried to fight the Katie John case at the Supreme Court. Now he also supports Sturgeon. The nominee he put forward for the District Court in Anchorage, Jon Katchen, worked on that case.

In a recent ADN opinion piece, Alaska Attorney General Jahna Lindemuth said that the state could win management of rivers in the Sturgeon case and still protect subsistence.

Her Supreme Court brief, filed Tuesday, argues that the 9th U.S. Circuit Court of Appeals was wrong to link the Katie John and Sturgeon cases. But the state's argument is complex and would require the high court to interpret certain words differently in different parts of the same federal law.

The risk to subsistence rights is great if Sturgeon wins. The Alaska Supreme Court has ruled that the state can't protect a rural priority for subsistence.

"One has to question the state's position that they can manage hunting and fishing with a rural preference given that it's constitutionally illegal to do that," said former Gov. Tony Knowles.

As governor, Knowles declined to fight Katie John in court after visiting her fish camp. He pushed for a state constitutional amendment to allow a rural subsistence preference through a series of special sessions during his two terms, from 1994 to 2002.

Conservative Republicans narrowly defeated putting the amendment on the ballot, forcing the federal government to take over management to defend Native subsistence.

"Every poll indicated the public would overwhelmingly support a rural preference for subsistence, and yet those same people who are now demanding that the state manage fish and game are the ones who fought it," Knowles said.

The Walker administration worked with Murkowski recently to amend federal law to address the problem presented by the Sturgeon case — an implicit admission that Lindemuth lacks confidence in her argument that the Supreme Court can separate it from the Katie John case.

Murkowski's legislation specified that the federal government would manage subsistence in rivers but the state would control them. It failed. If Republicans lose the U.S. House in the coming election, a legislative solution becomes even less likely.

The states' rights crowd has tied themselves in a knot. Politically, Walker, Murkowski and Sullivan say they support subsistence, but their desire to rid rivers of federal environmental protections drives them to support suits that threaten it.

This fight is older than the state. In Alaska history, states' rights and Native rights have often been enemies.

Only one Alaska Native was elected to the Alaska Constitutional Convention in 1955. Statehood in 1959 threatened Natives and spurred their land claims movement.

Responding to that movement, the federal government froze land transfers, forcing passage of the Alaska Native Land Claims Settlement Act in 1971. But that law failed to protect subsistence.

"For myself, my family in Mentasta, we never did trust the state," John said. "Back in the '70s, when they say they will protect Native Alaska, after they passed land claims, they didn't for 10 years."

Sen. Ted Stevens fixed that in 1980, with passage of the Alaska National Interest Lands Conservation Act — ANILCA. It protects subsistence on federal land and waters many times. But the Sturgeon case would say the rivers aren't federal.

The banner of states' rights is stained by racism. It was carried by proponents of slavery and opponents of civil rights. We finally reached a consensus that our rights as individual citizens of the United States come above states' rights.

That consensus is at risk in the Supreme Court Trump is creating.

The Supreme Court is no longer a court. It is a political body that votes along party lines. Conservative Republicans will control for many years.

The justices are American monarchs, like the old House of Lords in Britain. Members come from a narrow, elite world. All are graduates of either Yale or Harvard, all with similar urban legal careers. And they serve unaccountably, for life.

Alaska Natives, and all of us, should be afraid of what will happen to us under the rule of these ideologically driven, all-powerful lawmakers who understand so little of our lives here.

The views expressed here are the writer's and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser.