As the Alaska’s largest gathering of Indigenous people gets underway in Anchorage later this week, the Alaska Federation of Natives is proposing that Congress update a key protection for rural subsistence fishing that faces a legal challenge from the state of Alaska.
The organization wants Congress to “revisit and strengthen” Title VIII in the 1980 Alaska National Interest Lands Conservation Act to “permanently protect” the right of Alaska Native people to engage in subsistence fishing in Alaska’s navigable waters, according to a resolution from the group’s board.
The measure is just one of several resolutions the group released over the weekend. But it could dominate discussions at the group’s 57th annual convention, starting Thursday at the Dena’ina Civic and Convention Center. Alaska Native delegates from around the state are expected to vote on the proposals on Saturday as the convention wraps up.
The resolution was sponsored by the AFN board. It was submitted by the Association of Village Council Presidents and combined with similar resolutions from the AFN board. The Association of Village Council Presidents is based in Bethel and represents 56 tribal governments in a Southwest Alaska region, where chum and king salmon stocks have crashed, hurting a vital resource for dozens of villages.
Alaska Republican Sen. Dan Sullivan “will be closely monitoring the outcome of the resolution,” his office said in a statement on Monday. Democratic Rep. Mary Peltola and Republican Sen. Lisa Murkowski did not provide a comment for this article.
The salmon shortage has led to a courtroom battle between the state and federal government over which side should manage subsistence fishing on the Kuskokwim River as it passes through the Yukon Delta National Wildlife Refuge, the 180-mile lower stretch of the waterway, past Bethel to the village of Aniak.
Vivian Korthuis, chief executive of the Association of Village Council Presidents, said communities across Western Alaska have been devastated by the lack of salmon, likening it to the 1989 Exxon Valdez disaster because it touches so many people.
“The magnitude of the salmon crash we’re experiencing really demands that a dialogue happen across our state and we figure out the best path forward because we can’t go on like this,” she said in an interview on Friday.
The federal subsistence protection gives rural residents, who are predominantly Alaska Native in most villages across Alaska, priority rights for hunting and fishing in times of shortage.
The Alaska Federation of Natives, representing 160,000 Native people statewide, believes the protection is endangered by the state’s arguments in United States vs. Alaska, the case before the federal courts involving subsistence fishing on the Kuskokwim.
The lawsuit arose after the federal and state fishery managers had announced conflicting fishing openers in 2021 and 2022 on the portion of the river associated with the refuge. The Biden administration, bound by federal law, opened limited subsistence fishing to rural residents. The state, bound by the state Constitution, allowed openers for all Alaska residents.
U.S. District Court Judge Sharon Gleason in Anchorage last week allowed the Alaska Federation of Natives to join the case on the side of the federal government, alongside others that had intervened on the federal government’s side, including the Association of Village Council Presidents.
Alaska Attorney General Treg Taylor said on Monday that the state “vehemently supports subsistence hunting and fishing rights for Alaskans and will continue to do so,” according to an email from his office.
“The state of Alaska would support congressional fixes in Title VIII so long as those fixes respect the Alaska Constitution, State sovereignty, and the principle of sustainable yield for the continued benefit of fish and game subsistence for all Alaskans, now and in the future,” he said.
The Alaska Department of Law argues in the case that portions of rivers passing through federal waters should not be considered public lands subject to federal oversight for fishing management, as they are under the 1980 law, following decades of court decisions that upheld the protection. Those decisions are known as the Katie John cases, after the late Athabascan elder who fought to protect subsistence fishing rights along the Copper River.
The state asserts that the federal courts should instead apply the Supreme Court’s decision four years ago unanimously approving John Sturgeon’s right to use a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve in Alaska. Under that scenario, state management would prevail for subsistence fishing in “navigable waters” associated with federal lands.
The Alaska Federation of Natives board says in its resolution that “subsistence fishing constitutes the majority of all subsistence foods taken by Alaska Native people.”
The resolution says “the State of Alaska now attempts to rewrite longstanding law and erase the Katie John decisions.”
The resolution says an unfavorable court decision threatens the “remaining federally-protected subsistence fishing rights for Alaska Native people at a time of immediate critical need for the rural subsistence priority.”
The resolution does not propose a specific approach Congress could take to resolve the issue.
Joy Anderson, general counsel for the Association of Village Council Presidents, said the state argues that the definition of public land in ANILCA does not extend to “navigable waters” associated with federal lands.
“We don’t agree with that,” she said.
Congress could strengthen the law by clarifying that “navigable waters are public lands under ANILCA,” Anderson said.
Joe Nelson, co-chair of the Alaska Federation of Natives, said the measure has a good chance of winning approval from the full AFN body.
Determining the specific approach Congress might pursue could take some time, he said. There are different approaches that could be employed, he said.
“It’s not say we should just have an Alaska Native preference, but there should be some type of rural preference that is actually working, because it’s litigated at every turn, especially when we talk about fish,” he said.
“Something has to adjust,” he said. “A lot of people would agree the status quo isn’t working.”
Correction: This article has been corrected to make clear that Title VIII is the subsistence title of ANILCA, not Title VII.