From the Director's Desk

To many non-Indian observers, including policymakers, subsistence is nothing more than a cultural antique -- an increasingly ineffective holdover from previous times that will inevitably disappear as market economies take over. However, subsistence is not a relic from the past. It has and continues to be the foundation of Alaska Native societies. Today, the subsistence way of life is necessary for the physical, cultural and economic survival of Alaska Native people.

Most of the 220 small Native villages in Alaska are located on or near the shores of a river or a lake, or on the coasts of the North Pacific, Bering Sea, or Arctic Ocean. The proximity to water is no accident and reflects the dependence of Alaska Natives on the harvest of fish stocks for sustenance and the basis of their traditional way of life. In many Native villages, fresh meat, fish, and produce are unavailable except through the subsistence harvest.

Yet, as important as hunting and fishing rights are to the physical, economic, traditional, and cultural existence of Alaska Native people, the Alaska legislature refuses to recognize the importance of the subsistence way of life. The State views subsistence as nothing more than the taking of a natural resource, and as something that all citizens of the state should be entitled to engage in on an equal opportunity basis with little distinction between sport and trophy hunting and subsistence needs.

Under a federal law that protects Alaska Native subsistence rights, the State's refusal to recognize the subsistence priority requires the takeover of subsistence fishery management by the federal government. However, despite a court order mandating that the federal government implement this priority, Alaska's congressional delegation and the Department of the Interior have stifled this mandate for several years in a row, by agreeing to moratoriums which deny funding for this critical federal takeover.

Thus, it is because of this poor state of affairs for Alaska Native people that NARF is working to help the tribes in Alaska halt the destruction of their subsistence lifestyle.

I invite you to read more about Alaska Native subsistence in this issue of the Justice newsletter. Once you are finished, please help us educate more people about the importance of ensuring the survival of the Alaska Native subsistence lifestyle by passing this newsletter on to a family member, friend or colleague. Then, if you're interested in learning more about the subsistence issue and Alaska Native issues in general, I also suggest that you read Village Journey by Thomas R. Berger.

John E. Echohawk (Pawnee)
Executive Director


Alaska Native Subsistence

A Historical Timeline

The federal government's obligation to protect aboriginal hunting and fishing rights is grounded in the "doctrine of discovery" which stated that the first European nation to "discover" a new world acquired title to the land exclusive of any other discovering nation. However, the title it acquired was subject to the possessory interest of all the aboriginal inhabitants. Under this rule, Native Americans were recognized as possessing "aboriginal title" - the right to exclusive use and occupancy of their tribal lands and waters subject only to the power of the federal government to extinguish that title.

* 1867 - The United States purchased Alaska from Russia. The Treaty of Cession required that Alaska's Natives were "not to be disturbed" in their use and occupancy of their traditional lands.

* 1959 - Alaska became a state. The Alaska Statehood Act required that as a condition of entering the federal union, Alaska must disclaim all right and title "to any lands or other property (including fishing rights)" of Alaska Natives. The State of Alaska ignored this provision of the Statehood Act and began to enforce its fish and game management laws on all Alaskans, without recognizing any pre-existing rights of Alaska Natives.

* 1964 - Wardens from the Alaska Department of Fish and Game confronted Katie John, an Ahtna woman from the upper Copper River region, at her family's ancestral fish camp, Batzulnetas ("roasted fish place"). The wardens closed it down to protect spawning salmon. For 20 years the camp lay dormant in order to protect those fish. In the meantime, commercial fisherman in high-powered gillnet boats made millions of dollars catching Copper River sockeye.

* 1971 - Congress enacted the Alaska Native Claims Settlement Act (ANCSA). The Act extinguished all claims of aboriginal title and "any aboriginal hunting and fishing rights that may exist," with no express language protecting Native subsistence rights. However, the final House-Senate Conference Committee Report that accompanied ANCSA explained clearly that Congress expected that "both the Secretary of Interior and the State "take any action necessary to protect the subsistence needs of the Alaska Natives."

* 1980 - Congress enacted the Alaska National Interest Lands Conservation Act (ANILCA), designating federal lands in Alaska as national parks, refuges, forests and other conservation system units. Since the state and the Secretary had failed to protect Native subsistence after ANCSA, Title VIII of ANILCA required that subsistence uses by "rural Alaska residents" be given a priority over all other (sport and commercial) uses of fish and game on federal public lands in Alaska.

As a compromise, Congress allowed the State to continue managing fish and game uses on federal public lands, but only on the condition that the State of Alaska adopt a statute that made the new Title VIII "rural" subsistence priority applicable on state, as well as on federal lands. And if the State ever fell out of compliance with Title VIII, Congress required the Secretary of Interior to reassume management of fish and game on the federal public lands.

* 1984 - Katie John, fellow villagers and other nearby Native communities decided that it was time to resume fishing at Batzulnetas. They petitioned officials of the Wrangell-St. Elias National Park and Preserve which now included the fish camp in its boundaries. When officials still refused to allow John and others to resume fishing at their camp, John sued, claiming that the federal government was failing to protect her right to subsistence fishing guaranteed under ANILCA. The Native American Rights Fund represented Katie John in the case.

* 1989 - In response to a court challenge of Title VIII of ANILCA by representatives of sport hunting and fishing organizations, the Alaska Supreme Court ruled that the state's rural priority for subsistence violated the "common use" clause of the Alaska constitution.

* 1990 - Because the state was no longer in compliance with the ANILCA subsistence priority, the federal government took over subsistence management of game and the gathering of plant resources on federal areas. Fisheries management remained with the state due to the pending lawsuit, Katie John v. United States and Alaska, in which the reach of federal responsibilities regarding subsistence fishing would be determined.

* 1994 - The 9th Circuit Court of Appeals ruled in Katie John's favor and extended federal subsistence responsibilities to waterways winding through federal lands. The judge said that Alaska's fish and game managers were unfairly denying her, as well as Natives all over Alaska, their subsistence fishing rights. The U.S. Supreme Court denied the State's petition for reconsideration of the ruling.

* 1994 to present - Congress has effectively blocked a federal takeover of subsistence fisheries management, and likewise the subsistence priority of Native villages.

* April 1996 - Alaska's congressional delegation successfully negotiated with the Department of Interior to include a "rider" to the Department's appropriation bill that withheld "funds to prepare, promulgate, implement, or enforce any rule or regulation pursuant to Title VIII of ANILCA to assert jurisdiction, management, or control over any waters" conveyed to the state of Alaska.

* December 1998 - Interior Secretary Bruce Babbitt went back on his word to Alaska Natives and struck a deal with Alaska Senator Ted Stevens and extended the moratorium through October 31, 1999, thus preventing the Department of Interior from taking over the management of subsistence fishing on Alaska's navigable waters.

Although these moratoriums have bought plenty of time for the state to pass appropriate legislation, Alaska still remains out of compliance and subsistence fishing is denied to those who need it most. This is undoubtedly a real threat to the literal survival of scores of communities coming as it does on the heels of two years of disastrous runs in many of the state's fisheries. In the meantime, subsistence hunting on federal lands remains protected under federal law, but villages that depend on game located on state or private lands lack any Title VIII protections at all.

The Economics of Subsistence

Life in urban Alaska is organized around a cash economy. Year-round employment is the norm, incomes are higher than elsewhere in the state, and most essential goods and services are obtained through the market system. Although many urban Alaskans hunt and fish to supplement their food supply, these are generally recreational pursuits.

In contrast, the rural or village economies are mixed subsistence-cash economies in which families and communities live by combining wild resource harvests with commercial wage employment. Jobs are scarce and unstable in rural Alaska and cash incomes are low. An estimated 21.5 percent of Alaska Native families have incomes below the officially established poverty line income ($12,674 for a family of four) in contrast to 6.8 percent of all Alaskan families. With low salaries and a jobless rate approaching 70-80 percent in some areas, store-bought food (if one has access to a store) is prohibitively expensive. As a result, many Alaska Natives are forced to turn to government subsidies to make ends meet.

The most reliable sector of the rural/village economy is subsistence hunting and fishing. Generally speaking, the farther one is from an urban center, and the smaller the community, the greater the dependence on hunting, fishing and gathering. The current subsistence harvest is about 354 pounds of food per person in rural Alaska compared to about 19 pounds for residents in Anchorage, 16 pounds for Fairbanks, and 35 pounds in Juneau (state capitol) -- all considered to be urban centers. However, given the greater dependence on subsistence foods, the Alaska Native harvest of fish accounts for a mere four percent of the state's total catch each year. Sport and commercial uses account for the remaining 96 percent.

The subsistence lifestyle also provides other necessities to Alaska Native people living in the Bush such as:

* Clothing: Wild furs and hides are still the best materials for parkas, mitts, ruffs (wind guards) and mukluks (winter boots) in many of the colder regions.

* Construction: Spruce, birch, hemlock, willow, and cottonwood are used for housing construction, sleds, fish racks, etc.

* Customary trade: Specialized products like seal oil are bartered and exchanged in traditional trade networks between communities. Furs sold to outside markets provide an important source of income to many rural areas.

Cultural & Spiritual Dependence

Subsistence living is more than an economic necessity. It is a spiritual and cultural practice that has sustained Alaska Native people for thousands of years. It is a rich pattern of living that provides Alaska Native people with productive labor, strong family and community relationships, a cultural foundation, and personal self-esteem that can never be replaced or duplicated by any other arrangement.

Subsistence has as much to do with mental health and spiritual well-being, as it does with economic security. The preparation for the hunt; who can hunt what species and when; the ways in which fish and game are prepared to eat or preserved for storage; sharing of resources within the community; barter and exchange with other communities; and, a myriad of other traditions have been handed down since time immemorial. Fish and game are widely given out to support neighbors who cannot harvest for themselves because of age, disability, or other circumstances. The practice of such traditions strengthen the tribe as a whole.

Furthermore, items derived from fish and game are used for funerals, potlatches, marriages, Native dances, and other ceremonial occasions. Ivory, grass, wood, skins, furs, etc. are crafted into beautiful items for use and sale.

Recommended Solutions to the Subsistence Impasse

Alaska Native subsistence is facing its gravest threat in history. None of the key players are willing to engage the Native community in real dialogue about the future of subsistence in the State of Alaska. The Republican majority of the Alaska State legislature, the Governor and Alaska's congressional delegation have turned a deaf ear to Alaska Natives who have asked for a place at the table whenever subsistence is being discussed.

In response to their lack of participation in the decision-making process, over nine hundred village and tribal representatives attended a statewide "Alaska Native Subsistence Summit" in Anchorage in August 1997. The summit participants passed a resolution that articulates a statewide Native position on subsistence.

"That the development of any further proposal to resolve [the subsistence issue] be accomplished only with the full participation and endorsement by representatives of the Alaska Native people chosen by the Alaska Native people themselves and with the consent of Alaska Native tribes."

In line with this position, the solution that the Native American Rights Fund is advocating on behalf of its clients includes the following:

* Full participation and consent of the Alaska Native community, including hearings in each region.

* Full recognition of customary and traditional uses [of wild resources] including religious/spiritual and ceremonial [uses]

* Passing a constitutional amendment that allows the state subsistence law to comply with federal law. The subsistence priority should not be based on an individualized or needs-based system, but rather on community, religious/spiritual, nutritional, medicinal and cultural practices

* Co-management of the subsistence and habitat resources upon which they rely

The attack on subsistence is nothing less than a direct attack on the Native communities themselves -- communities that define their very culture and livelihood through the subsistence way of life. Unless reversed, it is difficult to overstate the long-term damage that will befall the Alaska Native way of life -- the deterioration of the cultures, health and social stability of over 100,000 Native people.

Subsistence - Frequently Asked Questions

Is subsistence for Alaska Natives only?

No. Both Alaska Natives and non-Natives have a priority right to hunt and fish for subsistence under federal law if they live in rural areas. Currently, more than half of the people who qualify for subsistence are non-Natives.
Is big game (moose or caribou) the main subsistence food?
As a general rule, no. The types of foods people eat vary from place to place. For example fish is a smaller item in the extreme coastal arctic areas, where caribou seal, whale and walrus are major resources. But, overall, the main subsistence food in Alaska is fish. About 65 percent of the state's subsistence harvest by weight is fish. Land mammals are only about 18.5% of the state's subsistence catch. Marine mammals make up about 9.7% of the catch, and other resources (clams, crabs, birds, berries, and plants) are 6.4%.
Is subsistence compatible with wildlife conservation?
Rural communities depend on the land for subsistence. It is to their advantage to maintain undamaged land and ecosystems, so that wildlife remain abundant. Most subsistence communities have customary rules for treating the land and the ecosystem that have been passed on through the generations. Subsistence peoples are the original conservationists, although they do not use that word to describe themselves, because their very lives depend on it. Further, subsistence users must also comply with a second set of laws - those that are state and federally mandated.
Is subsistence a type of welfare for families with low incomes?
No. In fact, households with the highest incomes in rural communities usually produce the most subsistence foods. This is because subsistence is a family practice. Households with the lowest incomes in the community are commonly the very elderly, single mother with young children and young single persons or couples who are just getting started. These households often lack the time, the labor, and the equipment to harvest effectively. Because of the traditional sharing of subsistence resources, they usually eat foods harvested by other households in the community that have large, mature labor forces. Because of this, rural communities would suffer extreme hardship if subsistence hunting and fishing were limited to only households with low incomes. This would cut out the most productive households in the community.

On the Case

Lawrence "Lare" Aschenbrenner joined NARF twenty-two years ago and has served as the Directing Attorney of the Alaska office for the past fourteen years. Lare has over forty years of litigation experience and previously served as the Directing Attorney for NARF's Washington, D.C. office. He earned his law degree from the University of Oregon and completed his undergraduate work there, as well.

Prior to joining NARF's staff, Lare served in a number of legal capacities, including Acting Associate Solicitor for Indian Affairs and Assistant Solicitor for Indian Affairs in the Department of the Interior from 1974 through February 1977. In addition, he was the Deputy Attorney General for the Navajo Nation from 1982-84; Chief Counsel for the Lawyers' Committee for Civil Rights Under Law in Jackson, Mississippi from 1967-69; a partner in a public interest law firm in Oregon; the first Public Defender for the State of Oregon; and District Attorney for Josephine County, Oregon. Lare's legal responsibilities in Indian law have related primarily to issues and cases involving tribal jurisdiction, lands, minerals, hunting, fishing and water rights, and the environment.

Heather Kendall-Miller, Athabascan, has been a staff attorney with NARF since 1993. Her cases focus on Alaska issues of tribal sovereignty and subsistence rights. Heather holds a History degree from the University of Alaska-Fairbanks and a J.D. from Harvard University. Her legal experience includes working as a law clerk for Sonosky, Chambers, Sachse & Miller in Anchorage and Bogle & Gates in San Francisco. Immediately after earning her law degree Heather was a Judicial Clerk for Chief Justice Jay Rabinowitz of the Alaska Supreme Court. A Skadden Fellowship from 1992-93 funded Heather's work with Alaska Legal Services and the Native American Rights Fund. She is currently a senior staff attorney in NARF's Alaska office.

National Association of Public Interest Law (NAPIL) Fellows

Eric Johnson graduated with Distinction from Stanford Law School in 1995. While in law school he interned for the Sierra Club in San Francisco, California and also clerked for the Sierra Club Legal Defense Fund in Juneau, Alaska. After graduation, Eric clerked for the Alaska state court system and developed an interested in federal Indian law. From 1997 to 1998, he worked as a staff attorney for Alaska Legal Services in Barrow, Alaska. In 1998, Eric was awarded a NAPIL Equal Justice Fellowship through which he currently works in the NARF Alaska office.

Martha King, Kuuvugmiut Eskimo and a member of the Kotzebue IRA Tribe, graduated from the University of Colroado School of Law in 1997. That same year, she was awarded a NAPIL Equal Justice Fellowship to work with NARF's Alaska office to address the critical areas of sovereignty and subsistence preservation. While in law school Martha was a lawclerk for the Native American Rights Fund and the Council of Energy Resource Tribes in Denver. She also interned with the Alaska State Legislature and Alaska Legal Services.


Updates

Federal Judge Holds U.S. Federal Government Officials in Contempt of Court and First Phase Trial Date Set

On February 22, 1999, Federal judge Royce Lamberth held Secretary of the Interior Bruce Babbitt and Secretary of the Treasury Robert Rubin in contempt of court for their failure to produce court-ordered records in the largest lawsuit in history ever brought by Native Americans against the federal government.

The order came as part of an on-going class action lawsuit alleging that the Bureau of Indian Affairs for decades mismanaged billions of dollars earned by Indians through use of their land for oil, gas, timber, ranching and farming. For its part, the government has conceded that it lacks even an accounts receivable system for the funds, that it has lost track of thousands of account holders and that few employees handling the funds have any financial background.

"The government has been ducking their trust fund management responsibility for decades," says John Echohawk, NARF Executive Director. "It goes to show how egregious their mismanagement has been that they couldn't even find records for five people."

The Native American Rights Fund represents the 500,000 plaintiffs in the lawsuit. A first phase trial date has been set to begin on June 10, 1999. This first trial will focus on fixing the trust fund system. The second trial, which has not been scheduled yet, will focus on the restatement of the IIM trust and accounts.

English-Only Initiative - Alakayak v. State

In February, the Superior Court for the State of Alaska granted a preliminary injunction against the implementation and enforcement of the English-Only ballot measure that was passed by Alaska voters in November. Representing twenty-seven individual plaintiffs, NARF claims that Alaska's English-Only law is unconstitutional because it violates constitutional rights to free speech, access to their government, equal protection, and due process.

"Alaska Natives," says Heather Kendall Miller, NARF staff attorney, "have a fundamental community right to govern themselves through whatever structures they may choose, which necessarily includes the right to do so in the Native languages -- the first languages -- of their communities."

The law was supposed to go into effect on March 4th. The plaintiffs are from the Yup'ik villages of Quinhagak, Manokotak, Kasigluk, Chefornak, and Atmautluak, and from the larger towns of Barrow and Bethel.


The Eagle Feather

The Native American Rights Fund would like to honor the twenty-five tribes, Alaska Native villages and Indian organizations that have made contributions this fiscal year. Their support sets a fine example for the rest of Indian Country to follow.

Alaska Inter-Tribal Council (Alaska)
Arctic Slope Regional Corporation (Alaska)
Chevak Traditional Council (Alaska)
Cheyenne-Arapaho Tribes (Oklahoma)
Coeur D'Alene Tribe (Idaho)
Confederated Tribes of Grand Ronde (Oregon)
Cow Creek Band of Umpqua Tribe of Indians (Oregon)
Gila River Indian Community (Arizona)
Kenaitze Indian Tribe (Alaska)
Kotzebue IRA Council (Alaska)
Kwethluk IRA Council (Alaska)
Mashantucket Pequot Tribe (Connecticut)
Menominee Tribal Enterprises (Wisconsin)
Menominee Tribe (Wisconsin)
Miccosukee Tribe (Florida)
NANA Corporation (Alaska)
Native Village of Barrow (Alaska)
Native Village of Kwinhagak (Alaska)
Olka Tasannuk Avogel Tribe (Louisiana)
Oneida Tribe (Wisconsin)
Port Graham Village (Alaska)
Southern California Tribal Chairman's Association (California)
Tlingit & Haida Tribe (Alaska)
United Tribes Technical College (North Dakota)
Walker Rive Paiute Tribe (Nevada)
Winnebago Tribe (Nebraska)


Eyapaha

In 1992, the Native American Rights Fund's Board of Directors founded the Peta Uha Council. The Council is a support group that accepts new members by invitation only.

Peta Uha (pronounced Pay-ta Oo-ha) is a Lakota word meaning "firekeeper." Historically, the firekeeper was an honored tribal member who made a solemn commitment to keep the sacred flame -- source of light, heat and energy for the people - burning. Like the firekeepers of old, members of the Peta Uha Council demonstrate their vigilance and on-going commitment to the Native American Rights Fund.

The principal purpose of the Peta Uha Council is to provide a solid base of support so that NARF can continue to take on cases of major importance to all Indian people. Since achieving justice for Native Americans is often a long and complex process, steady and reliable resources are vital to our ability to handle cases that are in litigation for many years.

We also count on our Council members to help elevate the awareness of other Americans to the problems facing tribes today. Many Peta Uha members are in positions of influence in their communities and professional circles, and often take their support a step further by educating their family, friends, and colleagues about Indian issues and common misconceptions. Through growing awareness and education, we hope to generate widespread understanding and support of citizens throughout this country that is so essential to the work we do to improve the lives of Native Americans.

The Native American Rights Fund is honored to announce that the Panaphil Foundation of Philadelphia, Pennsylvania, recently made a generous gift of $10,000 and has accepted NARF's invitation to become the first member of the recently established Platinum Feather Society of the Peta Uha Council. Lila wopila Tunka (thank you very much in Lakota) to the Panaphil Foundation, and welcome to the NARF family.

Membership requirements for the Peta Uha Council include annual contributions totaling $500 - $999 qualifies one as a member of the Silver Feather Society, $1000 - $4,999 for the Gold Feather Society and $5,000 and up for the Platinum Feather Society. Should you wish to learn more about the Peta Uha Council and how to become a member, please call Don Ragona at 800-447-0784.