Dispute Over State/Federal Alaska Native Fish Fights Coming to a Head
By Hal Shepherd
Here's to Alaska Native Tribes for standing up to protect their rural subsistence priority, Native fishing rights, and a threat to their very way of life.
The dispute over the Dunleavey Administration’s efforts to take over ownership of waters within federal lands in Alaska recently took the stage during last month’s Alaska Federation of Natives (AFN) Convention in Anchorage. There, Convention delegates expressed anger over the administration’s efforts to “actively undermine Alaska Natives’ rights to subsistence” and called on the federal government to “aggressively protect our hunting and fishing rights in court.”
The most visible battleground regarding this issue is the Kuskokwim River in which the Department of Interior has sued the State for the State’s practice of opening up subsistence fishing to all residents of the state while federal regulations limit subsistence fishing to rural residents only. Such regulations are critical at this time because by limiting fishing to local Native communities only, the Feds are enforcing the “Rural Preference” as required by the Alaska National Interest Lands Conservation Act and simultaneously protecting the fishery which has experienced a catastrophic collapse of salmon returns over the past several years.
Yet, the Dunleavy Administration response to the lawsuit is to claim that the U.S. Supreme Court has given the State complete jurisdiction over navigable waters within the state boundaries free of federal regulatory authority. According to Doug Vincent Lang, Commissioner of the Alaska Department of Fish and Game, and Treg Taylor, the State’s Attorney General, “We find ourselves today in our legal response to the federal government’s repeated attempts to seize control of the Kuskokwim River and take charge of the fish within.”
Further, according to Patty Sullivan, director of communications for the Alaska Department of Law, the “United States initiated this lawsuit, and now the State is compelled to defend itself.” This statement is interesting, especially when Ms. Sullivan fails to mention that the dispute about jurisdiction over federal waters actually began two years ago when the Dunleavy Administration began filing a suite of lawsuits in the District Court for Alaska to quiet title to submerged lands underlying four rivers (South Fork of the Koyukuk River, Middle Fork of the Koyukuk River, Bettles River and Dietrich River) in interior Alaska where BLM is the relevant federal land manager.
Then, in March 2022, the Administration sued the federal government over the alleged state ownership of submerged lands within the Lake Clark National Park and Preserve. Later that same month, the State sent a notice of intent to sue for the waters of the Sarkar Canoe Route on Prince of Wales Island where the USDA Forest Service is the relevant federal land manager. Also, the State has sued the Fed over the Stikine, the Kandik, and the Nation, Gulkana, and Knik Rivers in the Fortymile basin, and the Mendenhall Lake and River.
In addition to lawsuits, during the most recent legislative session, Governor Dunleavy introduced a bill to encourage state ownership of all submerged lands underlying navigable waters. According to SB 92 which passed the State Senate in 2023, the “purpose of this Act is to clarify and underscore the State's ownership interest in all submerged land underlying navigable waters at the time of statehood, explicitly including those in federal areas…” The bill was referred to the House Resources Committee which will be taking it up during the 2024 session.
The State’s attack on the rural preference and protection of salmon boiled up at AFN where a resolution was introduced in support of Alaska Native fishing rights and calling for Congress to amend the Alaska National Interest Lands Conservation Act to include more specific protections for such rights. According to the resolution, the “State of Alaska has escalated its attacks in recent years and has undertaken a series of new, aggressive litigation aimed at actively undermining Alaska Natives’ right to subsistence…”
During the Conference, Curt Chamberlain, an attorney for the Yup’ik-owned Calista Corp., said, “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.” At another conference held the day before AFN, Heather Kendall-Miller, a long-time attorney with the Native American Rights Fund said, “Give us back our fishing rights up and down the river.”
Other Tribal organizations are also taking action. The Norton Bay Watershed Council, a tribally led non-profit group, has taken the lead for the past two years in bringing attention to the State’s water grab, has been working with several tribes in the North Bering Sea region to schedule Government-to-Government consultations between the National Park Service, and Bureau of Land Management. These meetings, set to take place later in the Fall, will focus on the multiple state lawsuits, and the Kuskokwim litigation, and the threats to Native Fishing rights and salmon should the federal government lose these cases.
Here's to Alaska Native Tribes for standing up to protect their rural subsistence priority, Native fishing rights, and a threat to their very way of life.