Wayne Heimer: Stumbling into the federal subsistence industry ‘elephant’

By WAYNE HEIMER

On Feb. 3 there was an Anchorage public meeting to hear testimony about an administrative entity called the Federal Subsistence Board (FSB).

That’s the extra-legal board created out of thin air to administer the 46-year-old federal subsistence preference provision of Sec. 804 of the Alaska National Interest Lands Conservation Act (ANILCA).  Emotional perceptions of the Board varied widely.

That’s because the federal subsistence ‘industry,’ is like the legendary elephant encountered by the blind men in John Godfrey Saxe’s poem from the mid 1800s.  Each of the blind men in the Hindu parable that inspired the poem ‘bumped into’ an elephant and perceived the entire critter to be like the part he ran into.  That’s the way it is with ‘federal subsistence preference.’  Everybody who encounters this ‘elephant’ thinks they understand it from their narrow perspective.  It has become virtually impossible to get the whole picture.  Let me see if I can help you.

Rather like ‘Greenland and the Danes,’ Alaska was claimed by Russian-backed explorers who blundered ashore near Sitka, stuck a stick in the ground, and ‘claimed it for Mother Russia.’  Then the Czars incurred a massive debt trying to annex Crimea.  To pay off the debt, they sold Alaska to the USA when Abe Lincoln was President.

The folks who were living in Alaska when Vitus Bering claimed Alaska for Russia, and Russia subsequently sold it to the USA were not consulted or compensated. Russia guaranteed ‘clear title’ when it sold Alaska to the USA. That seemed to work back when every country that could was exploring and ‘claiming’ land.  About a century later, ‘land claims’ were invented, and Alaska and the USA eventually compensated descendants of the folks who were living here during the ‘age of discovery.’

About 100 years after the USA bought Alaska from Russia, Alaska Natives began to press for settlement of ‘aboriginal claims.’  This seemed reasonable at the time, so the USA and Alaska settled all those claims by grants of cash and land via the Alaska Native Settlement Claims Act (ANCSA) of 1971. The other emerging dread of that time was guilt and fear over environmental degradation.

About this time oil was discovered on Alaska’s North Slope.  Getting that oil to market was going to require a pipeline.  Not everyone thought a pipeline was a good idea.  ‘Environmentalists’ partnered with Alaska Native claims interests to hold up the pipeline till both interests got what they wanted.  Alaska Natives got their claims settled for cash and land, and the environmental protectionists got protective land provisions in that settlement (ANCSA) that eventually became ANILCA (the Alaska National Interests Lands Conservation Act).

ANILCA was a land control law defining which of Alaska’s spectacular ‘Crown Jewels’ would be protected from developmental by which federal agency.  As a sort of special recognition of ‘Nativeness’ and partnering in delaying the pipeline, attorneys for Alaska Native interests wrote a subsistence section (Title VIII) into ANILCA.  This provision was presumably to protect the ‘subsistence lifestyle’ from degradation as though it were a ‘Crown Jewel.’  The original language in the House of Representatives was a straight up racial preference for Alaska Natives when it came to use of Alaska’s fish and game.  When that bill got to the Senate, Alaska Sen.  Stevens said, ‘This is 1979.  We don’t do race preference anymore!”  He amended ‘race out’ and ‘rural residence in’ to the final bill.

Everybody (except Ted, I guess) realized the flip-side of preference was discrimination, and that the Alaska Constitution did not allow discrimination.  We’d already had that bad experience before the Alaska Constitution was written.  Still, the environmental protectionists were certain that Alaska’s ‘Crown Jewels’ would suffer despoilment if not given federal protection.  One way to limit despoilment was to limit human use, so any restriction was seen as a good thing.  Exclusion of anticipated uses, particularly open hunting and fishing was seen as the key.

This is not even close to what the text of ANILCA calls for.  Sections 805 through 807 detail how any unsatisfied subsistence need is to be addressed.  In short, these ANILCA Sections say if the court finds a claim of unsatisfied subsistence is legitimate, it will direct the State to meet unsatisfied needs through its existing management framework.

There is no Federal Subsistence Board in ANILCA, and there is no federal takeover of fish and game management in ANILCA.

But wait! There’s more:

The Federal District Court judge who first ‘bumped into the elephant’ agreed there was no federal action beyond ‘judicial remedy’ for unsatisfied subsistence claims.   However, he ruled that forcing federal discrimination among Alaskans would require a ‘huge hammer.’  Knowing how highly Alaskans prized local management (and what a disaster federal management had been in territorial days) the Judge figured Congress surely intended to write the threat of ‘federal takeover’ into the final legislation to assure Alaskan discrimination. Congress apparently just overlooked writing in the ‘hammer’ the judge thought it surely meant to put into ANILCA.  Instead, we have the forgotten Sections 805-807.

The Federal Subsistence Board was administratively created to threaten Alaska with the machinery for the federal management takeover (because Alaskan’s refused to change our Constitution to allow discrimination on the basis of race or residence).  First it was a threat.  Then a reality.  Then it became the monstrous industrial ‘elephant’ that today’s special interests defend in the light of their limited vision.

Amidst all the willfully blind ‘feeling about’ on this issue, the simple fix would be to dump the administrative interpretation that is inconsistent with the text of ANILCA.  If everyone (including the feds) were to simply follow the law, subsistence opportunity would be more likely to prevail in the longer-term future.  The ‘duplicate system’ (the FSB is a ‘clone’ of Alaska’s Boards of Fish and Game—right down to advisory committees) is wasteful, and progressively departs from sound biological management to provide social comfort for special interests.

I see each special interest focusing on the particular perspective it sees flowing from ‘federal subsistence preference,’ as analogous to a ‘blind man’ stumbling into an elephant and thinking he understands the whole monster.  This is a fantasy.  Those of us who have ‘seen this elephant’ from when it was fathomable’ just want it gone.  It should never have been created.  Look at the law.

Wayne Heimer stumbled up against the elephant when it was small and could be grasped as a whole critter.  How we got into the present mess has been forgotten as each interest has defined the whole from its specific viewpoint.  Wayne may be no different, but he did stumble into the elephant when it was a ‘baby,’ and before it became a huge, political industry.