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Lawmaker proposes Alaska Constitution amendment to resolve federal-state subsistence management

Caribou from the Mulchatna herd cross a frozen pond near Eek Lake on November 11, 2021.
Katie Basile
Caribou from the Mulchatna herd cross a frozen pond near Eek Lake on Nov. 11, 2021.

A lawmaker from Kotzebue is seeking to amend the Alaska Constitution to resolve a longstanding conflict between the state and federal government on subsistence management. But multiple Alaska Native groups and Northwest Arctic leaders are speaking out against the measure.

Across Alaska, subsistence is managed by both the federal government and the state. There are some important differences: for one, on federal lands, residents of rural Alaska communities have priority when there aren’t enough salmon or caribou or deer to go around. That’s a result of the landmark Alaska National Interest Lands Conservation Act, signed by President Jimmy Carter in 1980.

But on state land there’s no such priority. The state has an “equal access rule,” which means all Alaskans are given equal access to fish and game. That’s because of a 1989 Alaska Supreme Court ruling, McDowell v. State of Alaska, that found a rural priority on state lands violated the Alaska Constitution. That threw the state out of compliance with federal law and led the federal government to take over subsistence management on federal lands and navigable waters.

But District 40 Rep. Thomas Baker, a Republican from Kotzebue, wants to change that with a new constitutional amendment he’d like to put to voters. Baker outlined the goal of the measure, House Joint Resolution 22 (HJR 22), at a hearing on March 13: “To amend the Constitution of the State of Alaska in order to effectively establish a rural subsistence priority that in times of low yield would allow for state management of our natural resources for those who depend on it most.”

Notably, the amendment as written does not mention the word “rural.” Instead it says the state can provide a preference to Alaska residents “based on customary and traditional use, direct dependence, the availability of alternative resources, place of residence, or proximity to the resource.”

Baker said the bill does not guarantee a rural priority, it simply allows the Legislature to create one.

“If the Constitution is amended, and those laws come into play, we're still not in compliance to really do a subsistence priority of any kind,” Baker said.

But if a rural priority does pass later on, Baker said it would allow the state to reassume responsibility for subsistence management on federal lands. And many Alaska Native groups say they don’t trust the state to keep their best interests in mind.

“The dual management, it's been going on for nearly 34 years,” said Julie Kitka, president of Alaska Federation of Natives. She spoke at a meeting of the House Resources Committee on March 20. Kitka said the measure came “out of the blue.”

“Our people have spent decades now trying to make that Federal Subsistence Board and the dual management system work,” Kitka said. “People put, you know, 20 years of their life on that, they're not going to instantly say, ‘Oh, I want the state to do it now.’”

Kitka said any amendment would need more input from a variety of people, as well more fact-finding from lawmakers on the complex history of subsistence issues. Kitka said the proposal does not acknowledge the thousands of years of Alaska Native peoples and their relationship to the land, nor does it acknowledge the special trust agreement between Alaska Natives and the federal government.

“That really comes across as offensive if I’m being really honest with you,” Kitka said.

Kitka is not alone. In a sharply worded letter first reported by the political blog Alaska Landmine and addressed to House Resources Chair Tom McKay dated March 27, NANA and Maniilaq Association say they “cannot support” HJR 22. The joint letter from the Alaska Native Corporation and tribal health consortium said the “broad and flexible” language of the proposed amendment could give the state the power to erode federal subsistence protections.

“HJR 22 does not represent a solution to the dual management system,” the letter read. “Rather, it jeopardizes the rights of rural residents to be able to partake in traditional cultural subsistence activities.”

The NANA and Maniilaq joint letter said that Baker’s lack of consultation with his District 40 constituents is “extremely surprising and disappointing” and goes against Iñupiat values, Iñupiat Iḷitqusiat, of cooperation, responsibility to tribe, and respect for others. The CEO of the Association of Village Council Presidents called it “another attempt at a power grab by the state” in an Anchorage Daily News op-ed.

Alaska Department of Fish and Game Commissioner Doug Vincent-Lang spoke in support of the measure. Vincent-Lang said a single-state managed system could reduce conflicts between the state and the federal government on the Kuskokwim River and other places throughout the state. He said the Feds have a history of overstepping their subsistence management authority.

“I think it's been this movement to not just restrict when necessary, it was the complete replacement of state management with federal management on the landscape,” Vincent-Lang said.

Rep. Bryce Edgmon, a Dillingham independent who caucuses with the Republican-led majority, said there’s a lot state lawmakers have to learn about the issue.

“There's no better place to start than really, as Miss Kitka was talking about, starting from an educational standpoint. Getting legislators, you know, and other stakeholders, of course, to understand the fundamentals,” Edgmon said.

Constitutional amendments face a high threshold to pass. They require a two-thirds majority in both houses before they can be put to voters. Baker acknowledged to the committee the measure was unlikely to pass this legislative session. He said he just wanted to start the conversation.

Desiree Hagen is the news director for KOTZ in Kotzebue.
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