AIP Stand on Subsistence

                                                                             

 

 

 

 

 

Adopted by the Alaskan Independence Party

in convention April 1, 2000

Wasilla Alaska

Subsistence:   1.The act or state of subsisting,

2.  a means of subsisting, especially means barely sufficient to maintain life,

3.  something that has real or substantial existence. 

(The American Heritage® Dictionary of the English Language, Third Edition  © 1996 by Houghton Mifflin Company.)

Position of the Alaska Independence Party

It is the position of the Alaskan Independence Party:

1.                  That subsistence means something that has real or substantial existence regarding the use of the land and resources on the part of all Alaskans regardless of race or location.

2.                  That subsistence is a state of mind on the part of Alaskans without racial, economic or other limiting connotations, but refers to the use of the land and its resources by all of the peoples of Alaska and the manner in which all Alaskans individually choose to share in the bounty that is Alaska’s resources.

3.                  That it is unnecessary to modify the Constitution of the State of Alaska to meet federal demands for language to specifically state a rural preference for use of fish and game resources as equality of use is the lowest common denominator for use of any resources under Alaska’s constitution. 

4.                  That Article VIII, Section 3 of the Constitution of the State of Alaska will stand a constitutional test with respect to the Constitution of the United States of America and that any attempt to amend Article VIII, Section 3 of the Constitution of the State of Alaska is ill-advised and purposeless without any court challenges having been heard.  

For the purposes of this position, the State of Alaska is the geographical boundaries as set forth in the Statehood Act of 1958, Section 2:

                                           Alaska Statehood Act of 1958

                             72 Stat. 339 Public Law 85‑508

“Sec. 2

The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.”

Background

The issue of subsistence is one which came about as a result of the passage of the Alaska National Interest Lands Act (ANILCA) in the early 1980s and as a means by the Alaska Federation of Natives to circumvent the extinguishment of aboriginal rights on federal and state lands under the Alaska Native Land Claims Settlement Act (ANSCA) in the early 1970s.  ANILCA provided for a stated rural preference with respect to a priority of use for Alaska’s fish and game resources:

         Alaska National Interest Lands Conservation Act, Title VIII

 

Sec. 803: Definitions

“As used in this Act, the term "subsistence uses" means the customary and traditional uses by rural Alaska residents of wild renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption, for barter, or sharing for personal or family consumption; and for customary trade. For the purposes of this section, the term–

(1) "family" means all persons related by blood, marriage, or adoption, or any person living within the household on a permanent basis; and

(2) "barter" means the exchange of fish or wildlife or their parts, taken for subsistence uses‑‑

(A) for other fish or game or their parts; or

(B) for other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature.”

 

Sec. 804

“Except as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes. Whenever it is necessary to restrict the taking of populations of fish and wildlife on such lands for subsistence uses in order to protect the continued viability of such populations, or to continue such uses, such priority shall be implemented through appropriate limitations based on the application of the following criteria:

(1) customary and direct dependence upon the populations as the mainstay of livelihood;

(2) local residency; and

(3) the availability of alternative resources.“

 

Prior to the passage of ANILCA, all aboriginal rights, including any subsistence rights on the part of the Alaska Native population had been previously extinguished under the Alaska Native Lands Claim Settlement Act (ANSCA).

                  U.S.C. Title 43, Chapt. 33, Sec.1603. Declaration of settlement

     “(a) Aboriginal title extinguishment through prior land and water area conveyances 

All prior conveyances of public land and water areas in Alaska, or any interest therein, pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if any.

     (b) Aboriginal title and claim extinguishment where based on use and occupancy; submerged lands underneath inland and offshore water areas and hunting or fishing rights included

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.

     (c) Aboriginal claim extinguishment where based on right, title, use, or occupancy of land or water areas; domestic statute or treaty relating to use and occupancy; or foreign laws; pending claims

All claims against the United States, the State, and all other persons that are based on

claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy, or that are based on the laws of any other nation, including any such claims that are pending before any Federal or state court or the Indian Claims Commission, are hereby extinguished.”

Section 1603(b) of ANSCA extinguished any aboriginal claims regarding subsistence hunting and fishing rights.

The Statehood Act of 1958 governs Alaska’s entry into in the Union of the United States of America and defines the nature and terms of Alaska’s status as a State in the Union.  Section 2 of the Statehood Act defined the geographical boundaries of the State of Alaska.  Section 3 set forth the manner in which the Constitution of the State of Alaska must conform to the Constitution of the United States.   Alaska’s authority to manage fish and game on federal and state lands was set forth in Section 6(e).

                                                       Alaska Statehood Act of 1958

                             72 Stat. 339 Public Law 85‑508

“Sec. 2

The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.

Sec. 3

The constitution of the State of Alaska shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.

Sec. 6

(e) All real and personal property of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska, . . . shall be transferred and conveyed to the State of Alaska by the appropriate Federal agency: Provided, That the administration and management of the fish and wildlife resources of Alaska shall be retained by the Federal Government under existing laws until the first day of the first calendar year following the expiration of ninety legislative days after the Secretary of the Interior certifies to the Congress that the Alaska State Legislature has made adequate provision for the administration, management, and conservation of said resources in the broad national interest . . . .”

Section 6(e) leaves little doubt that it was the intent of the federal government that the State of Alaska have the authority to manage fish and game resources upon all State and most federal lands. Obviously, in 1959, the Secretary of the Interior certified that the State of Alaska had made “adequate provision for the administration, management, and conservation of said resources in the broad national interest . . . .”.  Until the passage of ANILCA, Alaska had managed fish and game resources on federal and State lands without interference from the federal government.  The passage of ANILCA changed this status.

The State of Alaska had sought to satisfy the rural preference language in ANILCA through a rural priority under State game regulations. In McDowell v. State of Alaska, 1989, the Supreme Court for the State of Alaska overturned the use of any language granting a preference for the use of fish and game resources as a violation of Article VIII, Section 3 of the Constitution of the State of Alaska.  Art. VIII, Sec. 3 provides for a common or equal use of fish and game resources:

                                        Constitution of the State of Alaska

                                                       Article VIII Natural Resources

“SECTION 3. COMMON USE. Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use. “

 

Since 1990, the federal Dept. of the Interior has managed subsistence  fish and game harvesting on federal public lands in Alaska, a clear violation of the authority vested to the State of Alaska under Sec. 6(e) of the 1958 Statehood Act.  Recently, the federal government announced that it would undertake management of all fish and game resources on federal lands.

Rational

In formulating its position on the issue of subsistence, the Alaskan Independence Party reviewed the history and issues surrounding the present arguments on the part of the federal government, the State of Alaska, the Alaska State Legislature, the Alaska Federation of Natives, and other groups and individuals having an interest in this issue since the passage of ANILCA.  This issue was also reviewed with respect to the platform of the Alaskan Independence Party.

How is it that the federal government can state that a subsistence lifestyle only applies to Alaskans living in ANILCA classified rural areas when virtually all Alaskans partake of the bounty that is Alaska in one form or another?  Can someone from Holycross or Eagle argue against equality of use of fish and game for the hunter who goes out faithfully each year to hunt meat for family use?  Who fishes regularly in a sport fishery for the purpose of harvesting meat for family use?  Who’s family works to gather berries in the fall?  Who uses the bounty of the land respectfully?  But, who lives in Anchorage, Kenai, Fairbanks, or Valdez, and who is not an Alaskan Native of aboriginal descent?  How is it this use is NOT subsistence where subsistence is “something that has real or substantial existence”?  How is that these uses are any less than a subsistence based upon a “cultural and traditional” use?   The answer to these questions is that there can be no discrimination against any Alaskan regarding the use of our fish and game resources.  That the federal government is violating the very tenets of our federal Constitution regarding equality under the law.

The position of no change is stated with respect to the immutable fact that at no time in the history of the State of Alaska has any article of the Constitution of the State of Alaska ever been found to be “repugnant to the Constitution of the United States and the principles of the Declaration of Independence.” (72 Stat. 339 Public Law 85-508, Sec.3)   Furthermore, the Alaskan Independence Party believes that the federal Supreme Court will ultimately be the arbiter to the concept of “rural use preference” contained in Title VIII, Sections 803, 804 of ANILCA versus the equal use provision afforded use of fish and game contained in Art. VIII, Sec. 3 of the Constitution of the State of Alaska:

                            Constitution of the State of Alaska

                                                       Article VIII Natural Resources

“SECTION 3. COMMON USE. Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use. “

 

Moreover, it being the position of the Alaskan Independence Party that the current State of Alaska’s fish and game regulations provide for and demonstrate adequate priority for rural residents with respect to use of the fish and game resources:

 

                                                    Constitution of the State of Alaska

                                                       Article VIII Natural Resources

SECTION 4. SUSTAINED YIELD. Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses. “ 

 

Problematic with ANILCA is the definition of subsistence uses under ANILCA as contained in Sec. 803:

 Sec. 803: Definitions

“As used in this Act, the term "subsistence uses" means the customary and traditional uses by rural Alaska residents of wild renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption, for barter, or sharing for personal or family consumption; and for customary trade. For the purposes of this section, the term–

(1) "family" means all persons related by blood, marriage, or adoption, or any person living within the household on a permanent basis; and

(2) "barter" means the exchange of fish or wildlife or their parts, taken for subsistence uses‑‑

(A) for other fish or game or their parts; or

(B) for other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature.”

 

ANILCA sought to restore subsistence rights attempting to color the restoration under the guise of non-partisanship, based solely upon a rural residency, and not race. However, the definitions afforded under Section 803 for “subsistence uses” plainly demonstrate that there was an intent that the criterion for those uses be weighted towards use by Alaska Natives of aboriginal descent.

The language of ANILCA, defining a rural Alaskan in such a specific manner leads ultimately that the inference to be drawn as to intent that a rural Alaskan as defined under Section 803 of ANILCA means an Alaska Native of aboriginal decent.  This intent gives a decidedly racist bent to ANILCA.  This impression is reinforced by the arguments of the Alaska Federation of Natives with respect to their position regarding re-establishment of a priority subsistence use of fish and game based upon race qualification.  AFN’s racist position is further demonstrated in efforts to eliminate any restrictions under ANILCA presently barring the majority of the Alaska Native population of aboriginal decent living in those areas classified as non-rural under ANILCA from participating in a subsistence preference.  Under State law, there is no preference for the use of fish and game meaning no bar on the basis of race or location of residency.

In reality, there are few Alaska Natives of aboriginal origin living in ANILCA classified rural areas that meet the subsistence use definition stated under Section 803 of ANILCA.  Many work on the North Slope, or at Red Dog Mine, fish commercially, or otherwise work in their communities supporting their lifestyle by other than subsistence means.

Section 803 of ANILCA sets Alaskan against Alaskan.  It eliminates the enjoyment by the majority of Alaskans of equal use of fish and game as guaranteed under Article VIII, Sec. 3 of the Constitution of the State of Alaska.  Where an Alaskan living in Anchorage with rural relations would not be able to share in any priority of use of fish and game resources under ANILCA, that same Alaskan now shares on an equal footing with every other Alaskan under State law those same fish and game resources.   Under State law, any Alaskan can hunt and fish where legal, regardless of race or residency.

Given the history of the sustained yield management of fish and game practiced by the State of Alaska, it is unlikely that a subsistence priority would need to be exercised except in very unusual circumstances.  In the history of the State of Alaska, there has only been one instance of any subsistence priority use being exercised.

ANILCA does divide the State into three distinct groups:

5.                  Rural Alaskans as defined under ANILCA;

6.                  Alaska Natives as defined by AFN; and           

7.                  the rest of us.

The affect of ANILCA is the revocation by the federal government of the authorities regarding management of fish and game granted the State of Alaska under the 1958 Statehood Act.  This revocation may have a far reaching impact beyond ANILCA lands:

“ In addition, the amendments being proposed would clearly specify that the Secretaries are retaining the authority to determine when hunting, fishing or trapping activities taking place in Alaska off the public lands interfere with the subsistence priority on the public lands to such an extent as to result in a failure to provide the subsistence priority and to take action to restrict or eliminate the interference. “^[1] 

 

This dilution of the State’s authority coincides with the 90% future royalty allocations to the federal government of any oil produced from Naval Petroleum Reserve #4, a violation of the 90% royalty provision afforded the State of Alaska for any resource development under the 1958 Statehood Act.

It should require little in the way of imagination to reach the conclusion that the sovereignty of the State of Alaska is under attack.  What is clear, is that the Knowles Administration has attempted to sell out equality regarding use of fish and game and severely weakened the sovereignty of the State of Alaska to no good end.

It is time the Constitution of the State of Alaska faced a critical review by the federal Supreme Court with respect to the conflicting provisions of ANILCA.  If equality fails a federal Supreme Court test, then it will be the interpretation of the federal Constitution that will have been found repugnant, and not Alaska’s equal use provision.