Richard Caulfield and Taylor Brelsford
Department of Rural Development, University of Alaska Fairbanks
1960 Following statehood in 1959, Alaska's new Fish and
Game Code includes reference to "subsistence
fishing:" Alaska's single Board of Fish and Game authorized
to adopt regulations affecting"subsistence fishing;" no
reference to "subsistence hunting"
1971 Alaska Native Claims Settlement Act (ANCSA)
enacted by the U.S. Congress: Native Alaskans receive
44 million acres of land and nearly $1 billion in exchange for
extinguishment of all "claims of aboriginal title...based upon
aboriginal use and occupancy,...including any aboriginal
hunting or fishing rights that may exist." Legislative history
notes that the Congress expected the Secretary of the
Interior and the state to protect subsistence activities of
Alaska Natives.
1973 Alaska Board of Fish and Game adopts policy
establishing priority for subsistence uses
1978 Alaska State Legislature adopts state's first
"subsistence law" "Subsistence uses" defined in statute
as "customary and traditional" uses; subsistence uses granted
priority in allocation of fish and game; criteria established
for further distinctions between subsistence users if
resources limited; subsistence research program established
in Alaska Department of Fish and Game
1980 U.S. Congress enacts "Alaska National Interest Lands
Conservation Act of 1980" (ANILCA): "Title VlII-
Subsistence Management and Use" of ANILCA establishes
federal policy on subsistence by defining subsistence uses as
"customary and traditional uses by rural Alaska residents;"
subsistence priority established in federal ]aw; system of
local and regional advisory committees and councils
expanded: state management of subsistence uses on federal
public lands (60% of state) allowed provided that state policy
meets ANILCA standards.
1981 Alaska Joint Boards of Fisheries and Game
establishes eight criteria for defining "customary
and traditional" and incorporates federal "rural"
distinction into state regulation
1981 Effort to repeal state's 1978 subsistence law
(Proposition #7) rejected by voters
1981 Sportsmen file McDowell lawsuit challenging
constitutionality of state's subsistcnce law. Suit
charges in part that subsistence law denies subsistence to
some urban residents who have a long history of resource
use, while granting subsistence privileges to some rural
residents who do not.
1981 In Madison v. Alaska Department of Fish and Game,
Alaska Supreme Court rules that state's "rural"
regulation is not consistent with 1978 law: federal
government notifies State of Alaska that its subsistence
program could be found in non-compliance with ANILCA's
Title VIII.
l986 Alaska State Legislature adopts second subsistence
statute: "rural" residence included in new definition of
subsistence uses, bringing it into compliance with ANILCA;
Department of Interior certifies that revised law complies
with ANILCA.
1986 Alaska boards of fisheries and game implement 1986
statute: "rural" areas identified in the state; customary and
traditional uses of discrete fish stocks and game populations
identified for rural communities; subsistence seasons
established for each such fish stock and game population.
1986 Kenaitze Indian Tribe files suit challenging state's
decision finding entire Kenai Peninsula "non-rural;"
claims decision violates ANILCA
1987 Lower courts deny Kenaitze and McDowell: federal
judge rules that rural definition on Kenai Peninsula is
consistent with ANILCA; state superior court rules that 1986
subsistence statute is constitutional; both cases appealed to
higher courts.
1988 Federal 9th Circuit Court of Appeals reverses lower
court ruling in Kenaitze; finds that state definition of
"rural" is not consistent with ANILCA: Court holds that
state legislature improperly defined "rural" by excluding the
"common sense" definition focusing on small and dispersed
populations.
1989 Federal district court rules in Bobby v. State of
Alaska that Board of Game may impose regulations
such as seasons and bag limits only when the record
shows a biological (or conservation) justification
for such restrictions: court's findings specific to hunting
in the Lime Village area but raise questions about
applicability to other areas of the state.
1989 State and Kenaitze Tribe make interim agreement
until solution to "rural/non-rural" issue is found:
initial State effort to make a technical amendment to ANILCA
amending its ~rural" definition encounters opposition;
negotiations continue to find alternate approach .
1989 Alaska Supreme Court rules in McDowell v. State that
1986 subsistence law is unconstitutional: On
December 22,the Court rules that the "rural" priority in state
law violates three provisions of Article VIII in Alaska's
constitution: section 13 ("common use" clause); section 13
("no exclusive right to fisheries" clause) and section 17
("equal applicability" clause). State law now contrary to
ANILCA requirements. Motion for reconsideration of case is
denied, but Court "stays" implementation until July 1, 1990.
1990 Alaska State Legislature considers but then fails to
place constitutional amendment on November 1990
ballot allowing state rural subsistence priority
1990 State Superior Court rules that unconstitutional
"rural" priority is "severable" from state subsistence
statute; state statute remains in effect without
"rural" priority
1990 Federal government takes over subsistence
management on federal public lands (60% of all
lands) as of July 1,1990: Federal Subsistence Board
created; temporary federal subsistence regulations
implemented; public meetings initiated to obtain input about
"rural area" designations, adequacy of regional council and
local advisory committee system and "customary and
traditional" uses and to comply with NEPA scoping
requirements.
1990 Sporthunting and fishing organizations file McDowell
v. United States in federal court challenging the
constitutionality of ANILCA, including rural
preference provisions of Title VIII: Plaintiffs' and
government's briefs due by January 20, 1991.