BUCIPs, Subsistence and the Alaska Legislature

A BUCIP, long-time readers will recall, is a Big, Ugly, Complex and Intractable Problem. And the biggest, ugliest. most complex and  most intractable problem of them all is Alaska Native subsistence.

In one sense, it’s pretty clear as a matter of law. The U.S. Constitution gives Congress power over relations with Indians. Article I, Section 8. As between Alaska and Congress, Congress makes the rules when it comes to Alaska Natives. Congress made an important rule in the Alaska Native Claims Settlement Act, at §804 which provides,

Except as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes. Whenever it is necessary to restrict the taking of populations of fish and wildlife on such lands for subsistence uses in order to protect the continued viability of such populations, or to continue such uses, such priority shall be implemented through appropriate limitations based on the application of the following criteria:

(1) customary and direct dependence upon the populations as the mainstay of livelihood;

(2) local residency; and

(3) the availability of alternative resources.

The difficulty for some Alaskans is that the Alaska Constitution provides, at Article VIII, Section 17:

Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation.

Congress, in ANILCA, provided for a Native subsistence priority. The Alaska Constitution provides for equal access. As a matter of law, Congress wins. After all, when Alaska entered the United States in 1959, Alaska agreed that its Constitution “shall not be repugnant to the Constitution of the United States” and that

[A]ny lands or other property, (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives; that all such lands or other property, belonging to the United States or which may belong to said natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority…

But in the late 1990s, efforts to resolve this dispute by amending the Alaska Constitution to reflect federal powers and the Alaska Statehood Act augured in. They cratered. It ended in acrimony and stupid lawsuits. You might have thought 10,000 years of prior Native use would answer the issue; you’d be wrong. It gets even more complicated when you talk about navigable waters and fish, where territorial history and (mis)management raise their ugly heads.

So, today, when you drive along the eastern end of the Denali Highway, you see signs every few miles saying this stretch of road is subject to federal subsistence rules, and that stretch of road is subject to State hunting rules.

There are are at least three problems with the status quo:

1. The silly, naive big game animals don’t know about the different rules, and wander across the lines between state and federal lands with impunity. Oops.

2. If you are any distance from the silly signs, it’s pretty hard to tell whose land you are standing upon, and what the rules are.

3. As a result of #1 and #2, the State of Alaska equates the hunting rights of your average millionaire white guy, who hops in his $200,000 aircraft and shoots a moose he doesn’t need, and your average subsistence rural villager, who will go hungry if he doesn’t get a moose.

So this BUCIP is a stalemate. The unresolved BUCIP colors very issue in Alaska. It will only worsen as competition for subsistence resources increases. It’s swept under the rug, for the moment, but it isn’t resolved.

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