In December of 1989, the Alaska Supreme Court ruled in McDowell vs. State ofAlaska that the rural preference provisions found in the State subsistence statutes violated the Alaska Constitution. The effect of this ruling required the State to delete the rural preference provisions from the statutes. Subsequently, this resulted in a “Finding” by the Secretary of Interior that the State was out of compliance with Title VIII (Subsistence Management and Use) of ANILCA. The Alaska Supreme Court “stayed” the effect of the McDowell decision until July 1, 1990. Many had hoped that the “stay” would allow the State legislature sufficient time to implement a new and acceptable subsistence law.
In the summer of 1990, Governor Steve Cowper called a special session of the legislature to specifically deal with the growing subsistence dilemma. The legislature adjourned on July 8th without passing a new subsistence law.
Consequently, the Secretaries of Agriculture and Interior assumed responsibility for putting into effect the procedures specified under ANILCA. The Secretaries set into motion the process and procedures which implement the legislatively mandated rural preference for subsistence management and use of Federal public lands in Alaska on July 1, 1990. Temporary Subsistence Management Regulations for Public Lands in Alaska were published in the Federal Register on June 29, 1990. These temporary regulations defined and implemented a Federal program approved by the Federal Subsistence Board (FSB).
The FSB is made up of six members, five federal land managers and a chairperson. Members of the FSB include the Regional Forester, Regional Directors of the National Park Service and Fish and Wildlife Service, The State Director of the Bureau of Land Management, and Area Director of the Bureau of Indian Affairs. The position of Chairperson of the FSB remains temporarily filled by Mr. Ron McCoy.
In December of 1980, with the passage of the Alaska National Interest Lands Conservation Act (ANILCA), Congress signaled a major change in land and resource management in Alaska. ANILCA mandated the carving up of Alaska into a complex mosaic of federal, state, and Native lands. It also mandated that the State of Alaska grant a priority to rural residents for the subsistence taking of fish and wildlife resources on public lands.
Some thought this a reasonable compromise following the passage of the 1971, Alaska Native Claims Settlement Act. Language within ANCSA Section 4(b) mandated the extinguishment of “any aboriginal hunting or fishing rights that may exist”, and specific subsistence provisions were not adopted within the final language of the act. However, the conference committee report which accompanied ANCSA made it clear that Congress never intended to extinguish hunting and fishing rights nor specific subsistence provisions held by Alaskan Natives. Reference to this intent can be found within Section 17(d) (2) of ANCSA.
The ANCSA Conference Committee report spelled out that “all Native interests in subsistence resource land can and will be protected by the Secretary [of Interior] through the exercise of his existing withdrawal authority”. It further “expects both the Secretary and State to take any action necessary to protect the subsistence needs of the Native”.
During the intervening years following the passage of ANCSA, discussions and negotiations continued among the various interest groups, legislators, and agency representatives. These efforts resulted in compromise language within ANILCA which mandates a “rural preference” for the taking of fish and wildlife for subsistence. ANILCA also makes clear that under state and federal schemes for management that non-subsistence uses may not be restricted unless it is necessary either to preserve the resource or to protect the subsistence users.
