Alaska Native leaders call for legal overhaul to protect traditional fish harvests

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Strips of sockeye salmon harvested from the Kuskokwim River are seen on July 19, 2017. Sockeye salmon, also known as red salmon, are among the species harvested for subsistence. The salmon shortage on the Kuskokwim River has sparked a legal fight between the federal and state governments, and Alaska Native leaders have sided with the federal government. (Photo provided by U.S. Fish and Wildlife Service)

By Yereth Rosen/Alaska Beacon

Anchorage, Alaska (Alaska Beacon) – The crash of salmon stocks in Western Alaska’s Kuskokwim River has sparked a bitter court fight between the federal and state governments, and now Alaska Native leaders are calling for congressional action to ensure that Indigenous Alaskans have priority for harvests when stocks are scarce.

The conflict has gripped this year’s Alaska Federation of Natives convention underway this week in Anchorage, where delegates expressed anger over state policies and fears for the future of fish and wildlife upon that they and their ancestors traditionally harvested.

A resolution introduced at the convention urges the federal government to “aggressively protect our hunting and fishing rights in court” against a state government that is “actively undermining Alaska Natives’ rights to subsistence.” The resolution also calls for Congress to strengthen federal law to “permanently protect the right of Alaska Native people to engage in subsistence fishing” in Alaska waters.

Subsistence is the term that describes traditional harvests of fish, game and plants for personal and noncommercial use. Salmon has traditionally been a subsistence staple.

For Alaska Natives, subsistence is of cultural as well as practical importance. Within the Alaska National Interest Lands Conservation Act, a sweeping federal law passed in 1980, there are subsistence harvest protections for residents of rural Alaska – regions where communities are largely Native – but not for Native people specifically.

It is time to change those terms to explicitly protect Native traditions, convention attendees said. The sentiment was particularly strong among residents of the affected Kuskokwim River area.

“After decades of failed and broken promises, we urge Alaska’s state and federal policymakers to recognize and protect Alaska Native rights to subsistence uses of fish and game. We ask that they act quickly to stop the physical and cultural starvation of our people,” Curt Chamberlain, an attorney for the Yup’ik-owned Calista Corp., said during a three-hour session Friday afternoon on subsistence problems.

Curt Chamberlain, an attorney who grew up practicing subsistence fishing in Aniak, argues at Friday's Alaska Federation of Natives convention for changes to federal law to protect Native subsistence harvests. Chamberlain was one of the speakers participating in floor session on the subject. (Photo by Yereth Rosen/Alaska Beacon)
Curt Chamberlain, an attorney who grew up practicing subsistence fishing in Aniak, argues at Friday’s Alaska Federation of Natives convention for changes to federal law to protect Native subsistence harvests. Chamberlain was one of the speakers participating in a floor session on the subject. (Photo by Yereth Rosen/Alaska Beacon)

“We have to amend those policies, because current management, current action, current decisions, current lack of action by people who have that authority have put a price on our way of life,” said Jonathan Samuelson, chair of the Kuskokwim River Inter-Tribal Fish Commission. “They have put a price on our existence. And there is no room for bargaining when it comes to the wellness of our children.”

For the Native federation, the immediate issue is a lawsuit filed last year by the federal government against the state over the state’s attempt in 2021 to allow any state resident to harvest salmon in the section of the Kuskokwim River that winds through the Yukon Delta National Wildlife Refuge. The federal government had sharply limited fishing there because of the low salmon stocks.

The Department of the Interior last year won an injunction temporarily barring the state from opening the area to more fishing. The state responded by arguing that it – not the federal government – has authority over fisheries in Alaska rivers, even in sections crossing federal lands.

AFN leaders characterized the state position as an existential threat that could upend the existing protections that all subsistence harvesters currently have. That is why the federation has intervened in the lawsuit on the federal government’s side. So have other Native organizations, like the Association of Village Council Presidents, a consortium of Yup’ik Tribal governments in the affected region.

“This case is the big one. It challenges our rural subsistence priority,” Nicole Borromeo, AFN’s executive vice president and legal counsel, told the convention audience on Friday.

“More than anything we need to have our rights protected and our people to continue to live their lives,” AFN President Julie Kitka told the audience earlier in the day. “We’ve got to win this case. If we don’t, we lose the fishing rights, which is unacceptable.”

Bob Anderson, the solicitor general for the Department of the Interior, said he is gratified to have the Alaska Native organizations’ support.

Commission, speaks Friday at the Alaska Convention of Natives convention about the effects of salmon crashes in his region. (Photo by Yereth Rosen/Alaska Beacon)
Jonathan Samuelson, chair of the Kuskokwim River Inter-Tribal Fish Commission, speaks Friday at the Alaska Convention of Natives convention about the effects of salmon crashes in his region. (Photo by Yereth Rosen/Alaska Beacon)

But even if the federal government and its Native allies win in court, that will not solve the problem of mismatched management, with different subsistence systems for federal and state territory, said Anderson, who started his legal career as a staff attorney for the Native American Rights Fund – and began litigating on behalf of Alaska Natives fishing rights 39 years ago.

“The best we’ll hope for in the litigation from the Native point of view, the subsistence point of view, is that we’ll hold onto this system that is broken,” he told the audience.

That is why the law itself needs to be changed, several Native leaders and activists said.

“Give us back our fishing rights up and down the river,” Heather Kendall Miller, a senior attorney with the Native American Rights Fund, told attendees at a Tribal conference held Wednesday, the day before the AFN convention started.

In contrast, state officials argue that federal management of subsistence harvests, even when limited to portions of river within federal land, hamstrings the state’s ability to properly manage fisheries.

Officials in Gov. Mike Dunleavy’s administration have defended their commitment to subsistence fishing and blamed the Biden administration for starting the legal fight.

“The United States initiated this lawsuit, and now the State is compelled to defend itself. And it is important to realize that the federal government’s objective is not limited to implementing the rural subsistence priority to favor some rural Alaskans to the detriment of other rural Alaskans; they also appear to assert total management authority over certain areas,” Patty Sullivan, director of communications for the Alaska Department of Law, said by email on Friday.

Rochelle Adams, an educator and fisheries advocate who grew up in the Upper Yukon River communities of Beaver and Fort Yukon, points on Friday to earrings she made with old salmon skin. Adams, selling her work at the arts and craft fair held at the Alaska Federation of Natives convention in Anchorage, said she had not fished for salmon in four years. She was saving the sking for a special occasion, she said, "which is now." (Photo by Yereth Rosen/Alaska Beacon)
Rochelle Adams, an educator and fisheries advocate who grew up in the Upper Yukon River communities of Beaver and Fort Yukon, points on Friday to earrings she made with old salmon skin. Adams, selling her work at the arts and craft fair held at the Alaska Federation of Natives convention in Anchorage, said she had not fished for salmon in four years. She was saving the skin for a special occasion, she said, “which is now.” (Photo by Yereth Rosen/Alaska Beacon)

While the state agrees that the current patchwork system of management is a problem, giving the federal government all fishing management authority “is not the solution and ignores the prior history of federal mismanagement,” Sullivan said.

The state will not support a Native subsistence priority, she continued. “We are open to exploring solutions together. But a solution that cuts out anyone living in rural Alaska who is not Alaska Native and cedes all authority to the federal government is a non-starter and is not in the best interest of Alaskans,” she said.

While the Kuskokwim salmon dispute was the catalyst for the current subsistence faceoff, fights over subsistence go back decades.

State law for several years did maintain a rural subsistence preference consistent with federal law, allowing the state government to manage those harvests. But the rural preference was opposed by numerous urban-based sporthunting groups. In 1989, the Alaska Supreme Court ruled that the rural preference violated the state constitution. Attempts to amend the state constitution to allow a rural preference failed, and the federal government began a phased-in takeover of subsistence management of hunting, trapping and fishing conducted on federal lands or waters within Alaska.

Native groups have tried in the past to change the subsistence provision of federal law to make it more Indigenous-focused. AFN, for example, advocated more than a decade ago for a “Native Plus” preference that would have established subsistence rights for Native people, whether they live in rural or urban areas, as well as rural residents, regardless of ethnicity. Those changes never happened.

Speakers at Friday’s convention session repeatedly expressed frustration about the decades-long fight over subsistence.

At one point in the afternoon, moderator Joe Williams, the board chair of the organization RurAL CAP, asked audience members to raise their hands if this was their first AFN convention. For those with their hands up, “I want to make this a memorable experience,” said Williams, the board chair of Rural Alaska Community Action Program Inc., or RurAL CAP, a statewide nonprofit organization with a mission to improve the quality of life of Alaskans with low incomes.

“Because in 25 years, we will hopefully no longer be talking about subsistence,” he said.