Although Alaska Native groups are happy the United States Supreme Court has left federal subsistence protections intact, they wonder where the next battlefront will be. On Monday, the high court once again rejected the state’s bid to challenge a federal law that protects subsistence hunting and fishing in rural Alaska.
The court declined the State of Alaska’s petition to review a federal lawsuit against the state over salmon management on the Kuskokwim River in Southwest Alaska.
The state had argued the federal government was misinterpreting Title VIII of the Alaska National Interest Lands Conservation Act, or ANILCA -- a law Congress passed 45 years ago to protect a rural priority for subsistence.
But last August, the 9th Circuit Court of appeals sided with federal fishery managers. And now that the Supreme Court has refused to take up the case, the 9th Circuit’s decision stands, giving the federal government the authority to manage fisheries over a 180-mile stretch of the Kuskokwim.
AFN: “Katie John is good law.”
The Alaska Federation of Natives hailed the decision.
“I feel relieved that we don’t have to spend our limited resources and efforts fighting for what we know is right,” AFN President Ben Mallott said. “We are relieved the Supreme Court saw it that way, and they upheld Katie John as good law.”
Monday’s decision was the third time in the last 30 years that the U.S. Supreme Court has let the Katie John litigation stand, untouched. It denied a review in 1996 and more recently in 2014.
Katie John, an Ahtna Athabascan elder, died the year before in 2013. For decades, she had fought for the right to fish in waters that flow through federal lands. She argued that ANILCA gave her the right to subsist on her family’s ancestral fishing grounds and a priority to fish in times of shortage.
Mallott said he hoped this would be the last time Native groups would have to defend what John had fought so hard to protect.
Along with AFN and two other Native groups, the Kuskokwim River Inter-Tribal Fish Commission joined the federal lawsuit against the state.
“We had a real good victory in the courts,” said Martin Andrew, chairman of KRITC. “Our fish commission is very pleased with this historic victory in favor of the Kuskokwim River.”
Andrew said the victory not only protects rural subsistence rights but is an encouraging sign for tribal co-management of the fishery. He said the 9th Circuit decision was important for tribes because it recognizes their role in the stewardship of the Kuskokwim River and sustaining its fisheries.
Kuskokwim River fisheries dispute
Under a 2016 Memorandum of Understanding with the U.S. Fish and Wildlife Service, the commission has been working in partnership with federal fishery managers to boost failing salmon runs and provide more opportunity for local subsistence fishing. The two groups clashed with the Alaska Department of Fish and Game during the 2021 and 2022 fishing seasons, when state managers opened the entire river to all Alaska residents for subsistence fishing. They determined there was enough salmon to allow the opening, despite objections from federal managers and the tribal fish commission. This led to the federal lawsuit, which argued the state had not only overstepped its authority but broke federal law, when it failed to manage for a rural subsistence priority.
ANILCA and rural priority
It was the latest stand-off among many since the federal government took over game management on federal land in 1990 -- and then fisheries, in 1999 –to enforce ANILCA’s rural subsistence priority. The federal government said the state constitution’s equal access clause conflicted with ANILCA, because it does not allow for a rural subsistence preference.
Under Article VIII of the state constitution, urban and rural hunters and fishers have equal status. Since the federal takeover, Alaska has had a dual system of fish and game management. The only solution, which so far has proved to be politically impossible, is to amend the state’s constitution.
After the federal government sued the state over its management of the Kuskokwim River in 2022, the state turned to a 2019 Supreme Court battle to defend its actions.
In this case, the justices, in a unanimous decision, sided with John Sturgeon, a moose hunter who sued the National Park Service over the right to use his hovercraft in the Yukon-Charley Preserve. The state defended his right, claiming they had jurisdiction over navigable waters in Alaska, even if they passed through federal land.
Dunleavy administration sought to regain control of fish and game
Gov. Mike Dunleavy’s administration argued that this decision affirmed its control of navigable waters, including managing the Kuskokwim River salmon run. It said the federal lawsuit threatened state sovereignty, undermined the intent of ANILCA and amounted to federal overreach. It had hoped that its argument would open a door back to state control of fish and game management, a door that the Supreme Court’s latest decision has slammed shut once again.
Alaska Fish and Game Commissioner Doug Vincent-Lang issued a brief statement following Monday’s announcement.
“We will respect the decision of the U.S. Supreme Court to not address the legal issues regarding fish and game management authorities over navigable waters belonging to the State of Alaska. That said, we will continue to work with the Secretaries of Interior and Agriculture to ensure the rights Alaska was given under its statehood compact and envisioned under ANICLA are safeguarded,” Vincent-Lang said in the state’s response.
Safari Club International sided with State of Alaska
Safari Club International defended the state’s management of the Kuskokwim River. The national sport hunting and fishing group has involved itself in Alaska issues for many years, including the case of John Sturgeon, one of its longtime Alaska leaders.
“We’re disappointed that what we find to be an incorrect reading of the Alaska National Interest Lands Conservation Act is left to stand,” said Regina Lennox, the Safari Club’s senior legal counsel. “We were hoping to see that overturned.”
Lennox said the state had widespread support that included the Association of Fish and Wildlife Agencies and from 20 state attorneys general, which filed amicus briefs on behalf of the state. They object to giving hunting and fishing access based on geography and seek a more balanced approach to management.
“We hope that the state and the federal government will take this opportunity to work better together, and to ensure collaboration and a resource management framework that better supports ANILCA,” Lennox said.
The next subsistence battlefront
The Safari Club has been working on another front to change subsistence hunting and fishing regulation in Alaska. Last year, it petitioned the U.S. Interior and Agriculture Departments to review federal subsistence management, a process that is now underway.
The group has asked the department to remove public seats on the federal subsistence board and limit seats to only federal and state agency heads. It also wants to change the qualifications for Regional Advisory Council members and have them chosen locally, rather than appointed by the U.S. Interior and Agriculture Secretaries.
Opponents say these changes would undermine all the progress tribes have made in making the federal board more responsive to subsistence users, but what they’re most concerned about is the Safari Club’s proposal to require federal managers to defer to state managers, which they say would undermine the federal government’s authority to insist on a rural subsistence priority.
The Safari Club says it is simply trying to give sport hunters and fishers more representation, while at the same time give primacy to what it claims is the state’s superior management expertise. The public comment period on the Safari Club proposals closes on February 13.
Future threats to Katie John protections
Tanner Amdur-Clark, an attorney for the Kuskokwim River Inter-Tribal Fish Commission, said it appears the Safari Club is trying to find another door to reopen the Katie John debate.
“I think mischief is the right word here,” Amdur-Clark said. “The kind of the underlying strategy that's being put forth in the regulatory petition from the Safari Club is really to reduce the voice of subsistence users in subsistence management decisions.”
While Amdur-Clark calls the Supreme Court’s rejection of the state’s case a historically consequential decision, he says the fight for subsistence rights is likely far from over.
He hopes the current political climate won’t undo what the partnership between the Inter-Tribal Fish Commission and the U.S. Fish and Wildlife Service accomplished over the last decade.
“There has been a really good cooperation between the tribes and with the federal government,” Amdur-Clark said, “and to a large extent the Alaska Department of Fish and Game as well.”
“The experience I’ve seen, essentially, is the people along the whole length of the river kind of pulling together, to rebuild the stock, while also being able to practice the ways of life that are so important to them,” Amdur-Clark said.
For the tribal fish commission and other Native organizations, attention now shifts to other arenas to protect subsistence.
Lessons from Katie John
Michelle Anderson, president of the regional Native corporation, Ahtna Inc., said she’s grateful the Supreme Court chose not to reopen Alaska’s subsistence debate. Still, she worries about the future.
“I don't think anyone is jubilant and celebrating and thinking this is it. We're just waiting for the next time,” Anderson said. “You can't sit back and rest on your laurels. You must always be vigilant and looking out for what's coming next.”
Anderson has followed the Katie John litigation since she was a teenager and says she’s learned from experience that the fight to protect subsistence is never over.
“I knew her as a child and younger person,” said Anderson, who watched John “feeding her family, taking care of her people, making sure they had food.”
Anderson said John understood that this was a basic right.
“She just said, ‘No. If I have to go through this court, then I’m going to go through this court. But I’m going to keep doing what I’ve always done. I’m going to feed my family.’”
Anderson says John’s determination still inspires her, as does the efforts of two other elders who fought alongside her, Doris Charles and Gene B. Henry. But Anderson says their work must go on.
And there’s the perennial question about whether there should be another push for a state constitutional amendment to resolve the conflicts over ANILCA. The state legislature has held numerous special sessions over the years but has failed to pass a measure that would put a constitutional amendment on the ballot.
Anderson believes Alaskans could be convinced to vote for a rural subsistence priority, but it’ll take a lot of work to get to that point.
“I think the more people that become educated on the issue and understand what’s going on, the easier it’s going to be to come to a solution,” she said. “My goal is to have wildlife management on our lands – that we sit at the table with state and with federal agencies and we manage them together. It’s not just two of them, but all of us.”
