[Senate Hearing 115-415]
[From the U.S. Government Publishing Office]
S. Hrg. 115-415
KEEP WHAT YOU CATCH: PROMOTING
TRADITIONAL SUBSISTENCE ACTIVITIES IN
NATIVE COMMUNITIES
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JUNE 20, 2018
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
33-836 PDF WASHINGTON : 2019
COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JOHN McCAIN, Arizona JON TESTER, Montana,
LISA MURKOWSKI, Alaska BRIAN SCHATZ, Hawaii
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MIKE CRAPO, Idaho TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on June 20, 2018.................................... 1
Statement of Senator Barrasso.................................... 5
Statement of Senator Hoeven...................................... 1
Statement of Senator Murkowski................................... 4
Statement of Senator Smith....................................... 42
Statement of Senator Udall....................................... 2
Prepared statement........................................... 3
Witnesses
Brown, Hon. Roy B., Chairman, Northern Arapaho Tribe............. 11
Prepared statement........................................... 13
Hardin, Jennifer, Ph.D., Subsistence Policy Coordinator, Office
of Subsistence Management, U.S. Fish and Wildlife Service...... 6
Prepared statement........................................... 8
Peltola, Mary Sattler, Executive Director, Kuskokwim River Inter-
Tribal Fish Commission......................................... 15
Prepared statement........................................... 16
Romero-Briones, A-Dae, J.D., LL.M, Director of Programs, Native
Agriculture and Food Systems, First Nations Development
Institute...................................................... 25
Prepared statement........................................... 26
Appendix
Bartley, Kevin, Rural Resident of Alaska, prepared statement..... 47
Linnell, Karen, Executive Director, Ahtna Intertribal Resource
Commission, prepared statement................................. 51
Response to written questions submitted by Hon. Catherine Cortez
Masto to:
Jennifer Hardin, Ph.D........................................ 63
A-Dae Romero-Briones......................................... 60
Mary Sattler Peltola......................................... 52
Written questions submitted by Hon. Catherine Cortez Masto to
Hon. Roy B. Brown.............................................. 66
KEEP WHAT YOU CATCH: PROMOTING
TRADITIONAL SUBSISTENCE ACTIVITIES IN NATIVE COMMUNITIES
----------
WEDNESDAY, JUNE 20, 2018
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. I call the meeting to order.
Good afternoon. I would like to thank our witnesses for
being here.
Today, we will examine subsistence hunting and fishing in
tribal communities and evaluate how Congress, the
Administration, tribes, and tribal organizations can work
together to alleviate regulatory limitations on this
traditional way of life.
Subsistence involves the harvest of local resources for
local consumption. Many Indian tribes across the Country have
practiced and maintained a subsistence lifestyle for thousands
of years. This way of life has provided fundamental benefits,
from supplying critical food sources to preserving culture.
Subsistence is prevalent among Indian communities across the
Country.
In the Pacific Northwest, American Indians and Alaska
Natives harvest, process, distribute and consume millions of
pounds of wild animals, fish and plants. These practices are
critical for the cultural longevity and economic vitality of
these tribal communities. In the Midwest, tribes engage in
traditional hunting and fishing, something I enjoy very much
myself.
All over the Nation, Native communities show tremendous
care for the land and environment. However, government policy
can often limit their ability to live out this subsistence
lifestyle.
As the original stewards, tribes have demonstrated
conservation practices for their natural resources. It is
important that the Federal Government enact subsistence
policies that promote the interests of their communities.
Both overregulation and lack of oversight can affect the
availability of, and access to, tribal resources. Federal
involvement in natural resource management, through laws such
as the Endangered Species Act, must be balanced.
The government should not dictate what Native communities
can or cannot do on their own lands or disrupt the exercise of
their hunting and fishing treaty rights. It has been several
Congresses since this Committee has held a hearing examining
this important topic.
I want to thank our witnesses for being with us this
afternoon.
Subsistence policies that fully accommodate tribal
interests are vital to the health and cultural survival of
tribal communities. I look forward to hearing the
recommendations of our witnesses on how this Committee and this
Congress can help support subsistence and traditional ways of
life in Indian Country.
With that, I will now turn to Vice Chairman Udall for his
opening comments.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Hoeven, for calling
today's hearing on traditional subsistence practices.
Subsistence not only means nourishing communities with
traditional foods but also feeding generations with traditional
knowledge that sustains, grows and keeps Native communities
together.
To begin, I would like to give a special welcome to today's
witness from the First Nations Development Institute, A-Dae
Romero-Briones. A-Dae is originally from beautiful Cochiti
Pueblo in my home State of New Mexico. Thank you very much for
being here.
Today's hearing is a great opportunity to highlight the
importance of traditional, ecological knowledge, or TEK, as a
way to promote and maintain traditional subsistence practices
in Native communities. TEK is used by tribes, Federal agencies
and others stakeholders to overcome environmental barriers to
subsistence on a collaborative basis. TEK is a body of
knowledge, beliefs and practices passed down from generation to
generation in indigenous communities around the globe.
In the U.S., Native communities use TEK-based techniques to
achieve balance and sustainability in cultivating traditional
foods while also providing for spiritual and cultural well
being. For example, Tsuki Pueblo in New Mexico is creating
tribal seed banks to ensure that heirloom seeds are available
for both sustenance and ceremonies.
Despite the enormously important role TEK and subsistence
plays in Indian Country, climate change poses a grave threat to
the ability of Native communities to access traditional foods.
That loss goes beyond sustenance and eliminates a community's
way of life like hunting, fishing, trapping, farming and
forestry. Drought, in particular, has threatened traditional
farming practices in my home State which are renowned as a
benchmark for sustainable agriculture in an arid environment.
Decreased snow pack increases the occurrence of devastating
wildfires causing ripple effects far and wide, including the
loss of plans and wildlife important to subsistence uses.
Coastal tribal communities from the Wampanoag in Massachusetts
to the Quileute in Washington are experiencing the damaging
effects of climate change on their water and subsistence
rights.
Ancient Hawaiian fish ponds are another ecologically and
culturally significant subsistence resource that is vulnerable
to climate change impacts including ocean acidification and sea
level rise.
All of these examples are serious threats to the ability of
Native communities to gather, hunt and cultivate traditional
foods. That is why we in Congress should do all we can to
promote and work with tribes to develop TEK-based solutions to
climate change and other threats to traditional subsistence
practices.
This Congress, I have worked with others on this Committee
to support the use of regional and community-specific TEK
solutions. S. 2804, CROPS for Indian Country, promotes TEK-
based solutions for food programs and forestry management by
authorizing tribes to use 638 contracting to manage food
programs and forestry activities at the USDA. It also directs
the Government Accountability Office to investigate marketplace
protections for traditional tribal foods.
The legislative provisions in the CROPS Act put important
tools for environmental management back into the hands of
tribes and advance TEK-based solutions for the effects of
climate change on customary and traditional subsistence
practices. We can take important legislative steps, like the
CROPS Act, to support tribal food sovereignty but we must also
use today's hearing to discuss how we can support greater use
of TEK to address the effects of climate change.
I look forward to this panel's testimony.
Mr. Chairman, I would also like to put a statement into the
record dealing with the issue of family separation. I am just
going to put it in the record.
This has caused great concern within my Native communities
in New Mexico. We have heard from the National Congress of
American Indians which feels this goes back to a very sad
chapter in their lives.
I just want to put that statement into the record, with
your permission.
The Chairman. Without objection.
[The prepared statement of Senator Udall follows:]
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
Subsistence is a way of life for tribal communities that depends on
passing traditional ecological knowledge down between generations.
Today, we are going to talk about modern threats to subsistence, such
as climate change. But, it was not that long ago that the major threat
to subsistence--to all traditional practices--was the federal Boarding
School policy.
Members of this Committee are well aware that the Boarding School
Era is one of this country's most tragic periods--when Presidents and
Congress allowed Native children to bear the brunt of federal policies
designed to solve the ``Indian problem''.
And, even though we are decades removed from that misguided era,
the impacts of cultural and community disruption still reverberate
today. We hear it repeatedly in the testimony of Tribal leaders and
Native youth who come to speak with the Committee.
Our response, as Members of Congress, has always been to pledge:
``never again''.
Well, we are now called to uphold that pledge. The Trump
Administration actions are an attempt to write another chapter of the
Boarding School era, this time for immigrant families. It is once again
putting forward a federal policy that tears children from the arms of
their mother and fathers--this time to solve the ``border problem.''
We cannot--in good conscience and as Members of this Committee--let
this practice disrupt another generation. While the President just
announced he would sign an Executive Order ending his inhumane policy
of separating families at the border, I remind my colleagues here today
that we cannot be too vigilant.
And, we must not consider this matter settled until the details of
this Order are known and every last child is returned to their
families.
Senator Udall. Thank you.
The Chairman. I will turn to Senator Barrasso in a minute
for purposes of an introduction but are there other opening
statements before we proceed to the witnesses? Senator
Murkowski.
Senator Murkowski. Mr. Chairman, I, too, would like to be
able to introduce the Alaska witnesses. Whatever is the
Chairman's preference, now or later?
The Chairman. Are there other opening statements?
[No audible response.]
The Chairman. We will proceed to the witnesses. I will
defer on Dr. Hardin and Chairman Brown. We will start, Senator
Murkowski, with you.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Chairman. I appreciate the
Committee scheduling this hearing today to examine the
importance of traditional and customary subsistence activities
in our Native communities.
I want to recognize Dr. Hardin, the Subsistence Policy
Coordinator at the Office of Subsistence Management for Fish
and Wildlife in Anchorage. I am pleased that you are here.
I would also like to thank my friend, Mary Sattler Peltola,
for being here before the Committee to testify today. Mary's is
the first Executive Director of the Kuskokwim River Inter-
Tribal Fish Commission.
This fish commission was established in 2015 and has been
doing good and important work for us since that time.
Mary was born and raised in Kwethluk, a pretty small Yupik
village located on the Kuskokwim River. She has been a
subsistence fisherman her entire life, I think, and is raising
a young family also very engaged in subsistence fishing as her
ancestors did for thousands of years.
She is a leader in her community, in her region and in the
State. I had the privilege of serving with Mary when we were
both in the Alaska State Legislature. I think it is fair to say
that we were favorites, we liked one another and worked very
well together.
Today, you will hear from Mary how vitally, vitally
important fish and wildlife resources are to the food security
of Alaska Natives and how these resources are really the
cornerstone of Alaska Native cultures and our economic systems
in rural Alaska.
Sometimes the Federal and State governments exclude our
tribes from the subsistence management of these resources. Many
of you may know and some may not know Alaska's fish and
wildlife resources are dually-managed with different management
systems or regimes on State and Federal lands.
This causes some confusion and frustration for many
residents around the State. The Federal Subsistence Board was
created through regulation to manage the Federal side of this
dual regime and continues to be a point of contention among
many, including the view the Federal Government has failed to
prioritize management decisions for subsistence to ensure we
are seeing healthy and abundant populations for consumption.
You will hear from Mary this afternoon about the
significance of priority for protecting the subsistence way of
life through maximum self-determination and how critical that
is to our tribes.
Organizations, like the Kuskokwim River Inter-Tribal Fish
Commission, are a great opportunity for Alaska and our tribal
communities to coordinate the management of our fish and
wildlife resources, to work to get the information moving
smoothly, and to integrate the traditional knowledge that is so
key and important with our State and Federal research.
I thank you, Mary, for being here, for traveling the long
distance, for your leadership, and for really helping to show
the way when it comes to co-management of our resources. Thank
you so much.
Thank you, Mr. Chairman.
The Chairman. Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Mr. Chairman. I appreciate
your holding this hearing today and the opportunity I have to
introduce Chairman Roy Brown.
As Chairman of the Northern Arapaho Tribe in Wyoming,
Chairman Brown is uniquely qualified to discuss the ways
culture, ecology and wildlife management affect life along the
Wind River Range.
Wyoming is home to a wide variety of wildlife, elk, mule
deer, pronghorn, sage grouse and the Wind River Reservation is
no exception. Situated along the east face of the Wind River
Range, the reservation has vast grasslands, rich riparian
areas, and mountainous terrain.
Managing each of those ecosystems is carefully done, both
in the tradition and with the knowledge of the Northern Arapaho
and Eastern Shoshone wildlife managers, but also in cooperation
with the U.S. Fish and Wildlife Service and the Wyoming Game
and Fish Department.
That careful management is complicated by many natural
factors, including drought, fire and flood. Management has also
been made more difficult by the failure to manage other factors
as well.
I know today Chairman Brown plans to share with us the
ecological damage that wild and feral horses have had in
Wyoming. This situation is not unique to the Wind River
Reservation. A number of other tribes and States have grappled
with the challenge of managing horse populations on tribal
lands and in areas managed by the Bureau of Land Management.
Across the grasslands of Wyoming, forage is a valuable
commodity. The elk, pronghorn, and the bison were reintroduced
to the Wind River in 2017. When forage quantity wanes, then
wildlife moves on.
Changes to migration patterns have a ripple effect
throughout the food chain and fundamentally, change the
generations' long tradition of subsistence activities. Hunting
also plays an integral part in the food security in Wyoming
where snowstorms and other inclement weather can delay
deliveries to local grocery stores.
Chairman Brown will relate similar challenges on the Wind
River. I know he will make clear that subsistence is not
limited to Alaska and the Pacific Northwest. The tradition, the
value and the importance of subsistence activities continue to
be evident in Wyoming.
Last year, the Northern Arapaho and Eastern Shoshone
partnered with a number of groups, including the University of
Wyoming, to plan a research project to understand the role of
elk on the Wind River Reservation.
As we talk about the importance of continuity in migration
corridors and effective wildlife management, it is more
important than ever to recognize the historic and cultural
impacts wildlife management can bring.
Chairman Brown, thank you for traveling through delayed
flights and storms yesterday to share your perspective with us
today.
Thank you, Chairman Hoeven, for holding the hearing.
The Chairman. Thank you, Senator Barrasso.
We will turn to our witnesses. Again, I want to thank all
of our witnesses for being here, Dr. Hardin, Chairman Brown,
Ms. Peltola and also Ms. Romero-Briones. Thank you all for
joining us.
We will begin with Dr. Hardin.
STATEMENT OF JENNIFER HARDIN, Ph.D., SUBSISTENCE
POLICY COORDINATOR, OFFICE OF SUBSISTENCE
MANAGEMENT, U.S. FISH AND WILDLIFE SERVICE
Dr. Hardin. Thank you, Chairman Hoeven, Vice Chairman Udall
and members of the Committee, for the opportunity testify today
on the subsistence harvest of natural resources on Federal
public lands in Alaska under the Alaska National Interest Lands
Conservation Act of 1980, ANILCA.
Alaska Native peoples have depended on have depended on the
harvest and use of natural resources for food, shelter,
clothing, transportation and handicrafts, trade, barter and
sharing for thousands of years. These subsistence practices are
interwoven with their unique cultural identities and social
ways of life. In more recent history, non-Native peoples living
in rural Alaska have come to rely on natural resources for
their social and economic livelihoods as well.
My testimony today focuses on the Federal Subsistence
Management Program which oversees the subsistence harvest of
wildlife and fish on Federal public lands and waters by rural
Alaska residents in compliance with Title VIII of ANILCA.
ANILCA prioritized the taking of fish and wildlife for non-
wasteful subsistence purposes over the taking of those
resources for other purposes on Federal public lands in Alaska.
As a result of the State Supreme Court ruling, the Federal
Government has managed subsistence harvest on Federal public
lands and waters since 1990.
ANILCA emphasizes the need to balance subsistence
opportunities with the conservation of healthy populations of
fish and wildlife in order to ensure the continuation of a
subsistence way of life for future generations.
Striking this balance is also a central tenet of the
traditional ecological knowledge expressed by rural Alaskans
engaged in a subsistence way of life. In Title VIII,
subsistence priority encompasses approximately 50 percent of
the land within the State of Alaska and applies to both Alaska
Native and non-Native rural residents.
The subsistence hunting and fishing practices Title VIII
protects reflect the vital relationships between land, culture,
cultural identity and the people in rural Alaska. Subsistence
harvest is also the cornerstone of food security for many rural
Alaskans, the vast majority of whom have only intermittent
access to village stores and limited ability to purchase
expensive foods these stores carry.
The multi-faceted, highly collaborative Federal Subsistence
Management Program emphasizes a bottom-up approach which
involves five Federal agencies, a Federal and public member
decision-making board, ten subsistence regional advisory
councils, partnerships with Alaska Native and rural
organizations and the State of Alaska, as well as robust
stakeholder input.
The ten subsistence regional advisory councils provide a
direct conduit for local and traditional ecological knowledge
in the decision-making process. Each council holds at least two
public meetings every year to gather local information and make
recommendations to the Federal Subsistence Board on subsistence
take.
The FSB is statutorily-required to follow these
recommendations except under certain circumstances. In turn and
before making any regulatory decisions, the FSB also holds
regular meetings to engage in tribal consultation, accept
comments from the public, the FSB's technical review committee
and from the State of Alaska. In addition, the board solicits
comments from the public throughout the year.
To date, the FSB has adopted more than 90 percent of
regional advisory council recommendations regarding the take of
fish and wildlife on Federal public lands. Title VIII of ANILCA
provides guidance on how the Federal subsistence priority
should be implemented in the event available resources cannot
feed all harvest demands.
The law emphasizes a multi-phased approach that reduces the
number of authorized users or usage in order to ensure the
subsistence priority is provided to as many federally-qualified
users as possible.
The ability to restrict or eliminate wildlife and fish
harvest by non-federally qualified users in order to prioritize
the continuation of the harvest practices of rural Alaskans is
a unique characteristic of the Federal program that is highly
valued by rural Alaskans.
In conclusion, I want to emphasize that management of
natural resources under Alaska's intersecting laws and agency
mandates is complex, especially in light of declining
populations of critical subsistence resources. Nevertheless,
one of the program's greatest strengths is its bottom-up
approach that relies on direct input from the local people who
will be personally affected by the FSB's decisions.
The Federal Subsistence Management Program will continue
working to balance the harvest needs of rural subsistence users
with the conservation mandates of land management agencies
while considering the diverse values of the many user groups
seeking opportunities to hunt and fish on Federal public lands
in Alaska.
Thank you and I would be happy to answer any questions.
[The prepared statement of Dr. Hardin follows:]
Prepared Statement of Jennifer Hardin, Ph.D., Subsistence Policy
Coordinator, Office of Subsistence Management, U.S. Fish and Wildlife
Service
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee. I am Jennifer Hardin, Subsistence Policy Coordinator for
the Office of Subsistence Management in Alaska, within the U.S. Fish
and Wildlife Service. Thank you for the opportunity to testify before
the Committee regarding the subsistence harvest of natural resources on
Federal public lands in Alaska under the Alaska National Interest Lands
Conservation Act (ANILCA).
The customary and traditional harvest and use of natural resources
for food, shelter, clothing, transportation, handicrafts, customary
trade barter and sharing, commonly called ``subsistence,'' has a long
history in Alaska. Alaska Native peoples have depended on subsistence
for thousands of years and these practices are interwoven with their
unique cultural identities and social ways of life. In more recent
history, non-Native peoples living in rural Alaska have come to rely on
natural resources for their social and economic livelihoods as well.
The management of subsistence harvests of natural resources in
Alaska is complex. It is governed by a variety of laws dictating who
and what resources are eligible to harvest. For example, management of
subsistence harvest of marine mammals is governed by the Marine Mammal
Protection Act (MMPA). Under the MMPA, coastal dwelling Alaska Natives
may harvest marine mammals for subsistence purposes or for the creation
and sale of authentic native handicrafts or articles of clothing.
Management of subsistence harvest of migratory birds is governed by
the Migratory Bird Treaty Act (MBTA). The MBTA was amended to allow for
spring/summer subsistence harvest of migratory birds by Alaska Natives
and permanent resident non-natives with legitimate subsistence hunting
needs living in designated subsistence hunting areas in Alaska.
The customary and traditional harvest of land mammals, fish outside
of marine waters and upland birds in Alaska is governed by Title VIII
of ANILCA. For the Committee's purposes today, my testimony will focus
on the Federal Subsistence Management Program, which is charged with
implementing the relevant provisions included in Title VIII of ANILCA.
Background of the Alaska National Interest Lands Conservation Act
(ANILCA)
ANILCA, which was passed in 1980, is a wide-ranging lands law that
established more than 100 million additional acres of Federal land in
Alaska, thereby enlarging federal holdings dedicated to conservation in
Alaska to more than 131 million acres. Recognizing the unique
characteristics of Alaska and the long history and important role of
the subsistence way of life in Alaska, Congress established, through
Title VIII of ANILCA, a priority for the taking of wild renewable
resources on Federal public lands in Alaska for subsistence uses by
Native and non-Native rural Alaskans. The Federal subsistence priority
applies on approximately 50 percent of the lands within the state of
Alaska.
Title VIII of ANILCA gave the State of Alaska the opportunity to
implement the Federal subsistence priority for rural Alaskans on
Federal lands. The State did so until 1989 when the State Supreme Court
ruled in McDowell v. State of Alaska that providing a subsistence
priority based on rural residency, as required by ANILCA, is
unconstitutional because it violates several clauses of the Alaska
State Constitution, including a clause that says that fish, wildlife
and waters are reserved to the people for common use. As a consequence
of this decision, the Federal government has engaged in subsistence
management within Alaska's Federal public lands and waters since 1990.
In Title VIII of ANILCA, Congress found that the continuation of
the subsistence way of life by rural Alaskans is essential to their
physical, economic, traditional, cultural and social existence. Title
VIII established a priority for the taking of fish and wildlife for
nonwasteful subsistence purposes on Federal public lands in Alaska over
the taking of those resources for other purposes. The subsistence
hunting and fishing practices that are protected by ANILCA reflect and
are an expression of vital relationships between people, land and
cultural identity in rural Alaska.
The subsistence way of life is also a cornerstone of food security
in rural Alaska. Approximately 34 million pounds of wild foods are
harvested annually by rural Alaskans, which equates to about 275 pounds
per person annually. If rural Alaskans did not have access to
subsistence foods, substitutes would have to be purchased. Alaska is
twice the size of the state of Texas but has only about 15,000 miles of
public roads, most of which are gravel. The lack of roads in Alaska
means that a large portion of rural residents have only limited access
to stores. The variety of foods in many village stores is quite limited
and the cost of store bought foods is prohibitively high for many rural
Alaskans.
ANILCA emphasizes the need to balance subsistence opportunity with
conservation of healthy populations of fish and wildlife in order to
ensure the continuation of the subsistence way of life for future
generations. In striking this balance, Congress echoed a central tenet
of the traditional ecological knowledge that guided resource management
long before the passage of ANILCA and is consistently expressed today
by rural Alaskans engaged in the subsistence way of life.
Federal Subsistence Management Program
The Secretaries of the Interior and Agriculture have delegated
authority to manage the subsistence priority on Federal public lands to
the Federal Subsistence Board (FSB). The FSB is comprised of eight
members, including: the Regional Directors of the U.S. Fish and
Wildlife Service, National Park Service, and Bureau of Indian Affairs;
the State Director of the Bureau of Land Management; and the Regional
Forester of the U.S. Forest Service. Three public members who represent
rural subsistence users are also members of the board, and one serves
as the FSB's chair. The public board members are appointed by the
Secretary of the Interior, with the concurrence of the Secretary of
Agriculture. The FSB establishes all Federal subsistence hunting,
trapping, and fishing regulations for fish and wildlife addressed by
ANILCA.
The Federal Subsistence Management Program (Program) is multi-
faceted, highly collaborative and, reflects a ``bottom-up'' approach to
management. The Program involves five Federal agencies, a Federal and
public-member decisionmaking board, 10 Subsistence Regional Advisory
Councils, partnerships with Alaska Native and rural organizations, as
well as with the State of Alaska, and robust stakeholder input.
Subsistence Regional Advisory Councils are a large part of what
makes Alaska's Federal Subsistence Management Program unique. Title
VIII required the establishment of at least six subsistence resource
regions, with each having an advisory council whose members are local
residents with knowledge of subsistence practices and uses in their
respective areas. Alaska is currently divided into ten subsistence
resource regions, each with its own Federal Advisory Committee Act
(FACA) chartered subsistence regional advisory council to reflect
subsistence harvest and cultural differences within the state and also
balance population representation.
The Subsistence Regional Advisory Council system provides a direct
conduit of local and traditional ecological knowledge in the
decisionmaking process. This approach has been crucial to the Program's
success. Each Council holds at least two public meetings every year to
gather local information, and make recommendations to the FSB on
subsistence issues. On issues related to the take of fish and wildlife
within their respective regions, the Secretary (or his delegate, the
FSB) is statutorily required to defer to the recommendations of the
regional advisory councils unless a recommendation is not supported by
substantial evidence, violates recognized principles of fish and
wildlife conservation, or would be detrimental to the satisfaction of
subsistence needs. To date, the FSB has adopted more than 90 percent of
regional advisory council recommendations regarding the take of fish
and wildlife on Federal lands.
The Federal Subsistence Priority
The Federal Subsistence Management Program's focus on the
sociocultural aspects of subsistence activities distinguishes it from
other hunting and fishing programs. Title VIII explicitly defines
``subsistence uses'' as ``customary and traditional.'' Customary and
traditional uses are essential components of the subsistence way of
life for rural residents in Alaska, and as such, once recognized by the
FSB, are protected under ANILCA, to the maximum extent possible. These
recognized practices, along with rural status, define the pool of
federally qualified subsistence users who are eligible for the
subsistence priority on Federal public lands.
The Board recognizes customary and traditional subsistence uses by
adopting specific determinations, which identify the fish stocks and
wildlife populations that have been customarily and traditionally used
for subsistence by rural residents of specific communities or areas.
The framework for making Federal customary and traditional use
determinations is outlined in the Federal subsistence implementing
regulations.
The implementing regulations list eight factors that exemplify
customary and traditional uses. The factors emphasize a pattern of use
that includes the sharing of knowledge and resources across the
generations. The eight factors make clear that customary and
traditional uses are part of a community's cultural, social, economic
and nutritional wellbeing, affirming and codifying that the subsistence
way of life in rural Alaska encompasses more than simply the
acquisition of calories. Furthermore, the factors acknowledge that the
methods and means of subsistence harvest are characterized by
efficiency and economy and, therefore, changes to community practices
over time are expected with the development of new technologies. At
times, this has created challenges for the FSB when faced with
regulatory proposals seeking to authorize in regulation hunting or
fishing practices under Title VIII of ANILCA that conflict with
agencyspecific regulations prohibiting such practices.
The eight-factor analysis applied by the FSB when considering
customary and traditional use determinations is intended to protect
subsistence use rather than limit it. Because of the important role of
subsistence in rural Alaska, it is assumed that customary and
traditional use determinations will necessarily be broad and inclusive.
The Federal Subsistence Management Program does not employ a rigid
checklist approach to assessing the eight factors. Instead, analyses in
the Federal program take a holistic approach and the eight factors
serve as a framework for considering whether an area or community
generally exhibits the eight factors characteristic of customary and
traditional uses. The regional advisory councils and the FSB recognize
that there are regional, cultural, and temporal variations throughout
the state and the application of the eight factors will likely vary by
region and by resource depending on actual patterns of use. Therefore,
the eight factors that characterize customary and traditional uses are
applied in a manner that provides maximum flexibility to address
regional variations across the state and offer protections for the
subsistence way of life in rural Alaska.
Customary and traditional use determinations are not intended to
restrict harvest or allocate resources among Federally qualified
subsistence users. However, Title VIII of ANILCA also provides guidance
on how the Federal subsistence priority should be implemented in the
event that there are not enough resources available to meet all harvest
demands on Federal public lands. The Federal prioritization process
provides a multi-phased approach that reduces the number of users or
uses authorized on Federal public lands. This process is generally
triggered by threats to the conservation of healthy populations of fish
or wildlife, threats to the continuation of subsistence uses, or
threats to the viability of a fish stock or wildlife population. While
the subsistence prioritization process often reduces the number of
users and uses permitted on Federal public lands, the overall intent of
these restrictions is to continue to provide harvest opportunity to as
many users as possible in the long run.
When populations of fish or wildlife are abundant enough to support
the harvest demands of all user groups and uses, then all harvest
authorized by the State of Alaska as well as those authorized in
Federal subsistence regulations for Federally qualified subsistence
users are allowed on Federal public lands. However, if a conservation
concern or increasing competition requires a reduction in harvest,
ANILCA requires that subsistence uses by Federally qualified
subsistence users are prioritized over other consumptive uses on
Federal public lands. The ability to restrict or eliminate harvest by
non-Federally qualified users due to threats to the continuation of
culturally important harvest practices of rural Alaskans is a unique
characteristic of the Program that is highly valued by rural Alaskans.
This aspect of the Program has received greater focus and attention as
the program has matured with the meaningful infusion of traditional
ecological knowledge shared by rural Alaskans. ANILCA also stipulates
that subsistence uses by rural Alaskans may be eliminated on Federal
lands only in cases when there is a looming threat to the viability of
a fish, shellfish or wildlife population.
Federal Subsistence Regulatory Process
Stakeholders and the general public play a vital role in initiating
changes to Federal subsistence fishing, hunting and trapping
regulations, and providing input on proposed changes to ensure
regulations meet the needs of subsistence users while also conserving
healthy populations of fish and wildlife. Any individual or group can
submit proposals to request changes to the Federal subsistence
regulations or the areas and users eligible for the subsistence
priority. The FSB very rarely generates proposals to change Federal
subsistence regulations. Instead, changes are almost exclusively
initiated by users or resource managers through an annual public
process.
The FSB receives administrative and technical support from the
Department of the Interior Office of Subsistence Management (OSM),
which is housed within the Alaska Regional Office of the U.S. Fish and
Wildlife Service. The OSM is mandated to serve each of the agencies and
rural members represented on the FSB.
The FSB recognizes the critical importance of local and traditional
knowledge in informing management decisions in the Program. It relies
on the knowledge shared by local people and strives to consider it
equitably alongside of western scientific knowledge. This expertise can
provide a spatial and temporal scale of knowledge that is otherwise
unavailable to resource managers. All OSM analyses of proposals to
change Federal subsistence regulations incorporate available
traditional ecological knowledge to help the FSB better understand
subsistence resources and the people who depend on them.
The FSB holds annual public meetings to make regulatory decisions.
During its meetings, the FSB engages in tribal consultation, accepts
verbal and written public comments, and hears regional advisory council
recommendations as well as comments by the FSB's technical review
committee called the Interagency Staff Committee and the State of
Alaska. Only after receiving all of this input do the FSB members
discuss and vote on each proposal.
Conclusion
Since 1990, the Federal Subsistence Management Program has
endeavored to provide rural residents of Alaska the opportunity to
pursue the subsistence way of life, as envisioned by Congress and
enacted in ANILCA. One of the Program's greatest strengths is its
bottom-up approach that relies on direct input from the local people
who will be directly affected by the FSB's actions. The program is
intentionally designed to be highly collaborative and primarily driven
by stakeholder input, biological data and local and traditional
knowledge. The Program will continue to seek balance between the
harvest needs of rural subsistence users, conservation mandates of land
management agencies and the diverse values that undergird each of the
many user groups seeking opportunities to hunt and fish on Federal
public lands.
We appreciate the Committee's interest in subsistence harvest on
Federal public lands in Alaska under ANILCA. I would be happy to answer
any questions the Committee may have.
The Chairman. Thank you, Dr. Hardin.
Chairman Brown.
STATEMENT OF HON. ROY B. BROWN, CHAIRMAN, NORTHERN ARAPAHO
TRIBE
Mr. Brown. [Greeting in native tongue.]
Good afternoon, Chairman Hoeven, Vice Chairman Udall and
members of the Committee. Thank you for holding this oversight
hearing and giving me the opportunity to testify.
My name is Roy Brown. It is an honor to represent the
Northern Arapaho as their Chairman. The Wind River Reservation
is located in west-central Wyoming and, for generations, has
been the home of two sovereign Nations, the Northern Arapaho
and the Eastern Shoshone Tribes.
The Northern Arapaho and Eastern Shoshone are unique in
that we are the only separate sovereign tribes who share
jurisdiction and ownership of the same reservation. Today, I
share the perspective of the Northern Arapaho Tribe.
The reservation is over 2.2 million acres of gorgeous wide-
open spaces with an abundance of natural resources, plants, and
wildlife which are central to our culture and traditions. For
this reason, we are very protective of the land and resources
the land provides. One reason that is currently changing the
landscape of the reservation is the invasion of wild and feral
horses.
In 2012, the tribes and the Wyoming Fish and Wildlife
Service, in separate surveys, estimated there were over 2,100
horses in the lower mountainous areas in the northwest portion
of the reservation.
Today, our best estimates are that there are over 6,500
horses in the wilderness of the reservation. As the wild and
feral horse population increases, their impact to the natural
resources, and thus our way of life, becomes more and more
critical.
The emergence of this population can likely be attributed
to a number of factors. Wild horses have been able to thrive
because of lack of natural predators, little to no human
contact, and the abundance of forage after the area recovered
from a long drought.
Additionally, the lack of adequate horse markets in the
last decade suppressed the horse industry and created a market
where only the most desirable horses would have buyers which
has resulted in more feral horses.
The cost of horse ownership becomes particularly burdensome
if the horse is injured, sick, old, or untrainable. These
horses are sometimes let out in the wilderness near or within
the reservation boundary.
The Wind River Fish and Game Department has the budget to
hire three wardens, three wardens to patrol 2.2 million acres,
the vast majority of it wilderness. This has not proven to be
effective in catching or deterring domestic horse abandonment.
As the horse herds increase in numbers, so does the
negative impacts to the environment. The horses will take every
opportunity to overgraze on grasslands they come across. A herd
of horses can decimate the natural grasses and forbs not only
through eating but by eroding the ground to the extent the
plants are unable to grow back.
The overgrazing leads to noxious weed infestation, long
term or permanent loss of native grass and forb species, and
sedimentation and topsoil loss. Mule deer, elk bighorn sheep
and moose have all been displaced because of increased shortage
of grasslands.
This has been particularly taxing on tribal members who
have traditionally depended on big game for subsistence. Each
June, the Wind River Fish and Game sells permits to eligible
tribal members participating in the Tribe's traditional
Sundance ceremony.
Historically, this has been a way to allow tribal members
to carry on the tribal tradition of taking big game for various
uses in the tribal ceremony. The Sundance hunting season eases
the financial burden of tribal members as well as fosters the
continuation of tribal traditions.
However, with the growing impact of wild and feral horses,
the game has been more and more difficult to locate and hunt
because they have migrated off the reservation or in areas that
are very difficult to access.
Additionally, as horse herds grow and migrate to different
parts of the reservation, they begin to threaten the plants and
materials used traditionally and ceremonially. A long-term or
permanent loss of these plants and materials would be
culturally devastating.
It will take a multi-partner approach to fully address the
wild and feral horse problem on reservation lands across Indian
Country. It will take the cooperation and input of tribes,
government agencies, and interest groups to assess current
impacts and develop plans for removal and mitigation of future
impacts.
On the Wind River, horse removal is a priority. The Tribes,
along with government agencies, have developed a methodology
for removal of the wild and feral horse population. However,
this is only one step to addressing the issue.
We will require the knowledge of tribal members, wildlife
and ecology experts, and Federal agencies to help return our
lands to their former state. To protect the lands from future
invasion of feral horses, the Wind River tribes will require
more enforcement figures from our Fish and Game Department.
Thank you.
[The prepared statement of Mr. Brown follows:]
Prepared Statement of Hon. Roy B. Brown, Chairman, Northern Arapaho
Tribe
Introduction
Good afternoon Chairman Hoven, Vice-Chairman Udall and members of
the Committee. Thank you for holding this oversight hearing and giving
me the opportunity to testify. My name is Roy Brown. It is my honor to
represent the Northern Arapaho Tribe as Chairman.
Background
The Wind River Reservation is located in west-central Wyoming and,
for generations, has been the home of two sovereign nations, the
Northern Arapaho and the Eastern Shoshone Tribes. The Northern Arapaho
and Eastern Shoshone are unique in that we are the only separate
sovereign tribes who share jurisdiction and ownership of the same
Reservation. Today I share the perspective of the Northern Arapaho
Tribe. The Reservation is over 2.2 million acres of gorgeous wide-open
spaces with an abundance of natural resources, plants, and wildlife
which are central to our culture and traditions. For this reason, we
are very protective of the land and resources the land provides. We
have encountered several threats to these natural resources throughout
the years and have learned to adapt and manage so that our tribal
citizens may still enjoy the full benefit of what the land provides.
One recent threat that is currently changing the landscape of the
reservation is the invasion of wild and feral horses.
In 2012, the Tribes and the Wyoming Fish and Wildlife Service, in
separate surveys, estimated there were over 2,100 hoses in the lower
mountainous areas in the northwest portion of the reservation. Today,
our best estimates are that there are over 6,500 horses in the
wilderness of the reservation. As the wild and feral horse population
increases, their impact to the natural resources, and thus our way of
life, becomes more and more critical.
Contributing Factors of Invasive Horses
The emergence of this problem can likely be attributed to a number
of factors. Wild horses have been able to thrive because of lack of
natural predators, little to no human contact, and the abundance of
forage after the area recovered from a long drought. Additionally, the
lack of adequate horse markets in the last decade suppressed the horse
industry and created a market where only the most desirable horses
would have buyers which has resulted in more feral horses. Individuals
with horse ownership could no longer market aggressive or untrainable
horses. The cost of horse ownership becomes particularly burdensome if
the horse is injured, sick, old, or untrainable. These horses are
sometimes let out in the wilderness near or within the reservation
boundary.
Which leads to another contributing factor. Wind River Fish and
Game department has the budget to hire three wardens, one of whom
serves as the Director of the program and carries out day-to-day
administrative tasks. Three wardens to patrol 2.2 million acres, the
vast majority of it wilderness, has not proven to be effective in
catching or deterring domestic horse abandonment.
Ecological Impacts
As the horse herds increase in numbers, so does the negative
impacts to the environment. The horses will take every opportunity to
overgraze on grasslands they come across. A herd of horses can decimate
the natural grasses and forbs not only through eating but by eroding
the ground to the extent the plants are unable to grow back. The
overgrazing leads to noxious weed infestation, long-term or permanent
loss of native grass and forb species, and sedimentation and topsoil
loss. The reservation, particularly the northwestern portion, has many
areas that used to be grasslands but are now eroded to point where only
weeds and other invasive plants can grow. Other ecologically related
impacts are loss of naturalized water such as springs, downcutting or
downsizing perennial streams, and degrading water quality.
Below are pictures of a study from 2014 to measure the impact of
wild and feral horse herds. Exclusion cages were put in place to
prevent horses from grazing in small circles of grassland. The picture
on the left is a wide shot of grasslands with the exclusion cage in
place. The picture on the right is a close up of the circular plot of
excluded grassland after the cage has been removed. The pictures
illustrate the extent to which the horses overgraze by highlighting the
comparison of what the grassland looked like prior to and after grazing
by horse hers in the wilderness.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Impacts on Culture and Tradition
Mule deer, elk, big horn sheep and moose have all been displaced
because of increasing shortage of grasslands. The Fish and Wildlife
Service have observed less use by wintering groups of elk on crucial
winter ranges in the northwest area of the reservation. When big game
are not able to find grasslands on which to forage on the reservation,
they will migrate to areas where they can find food. Many times, that
means they migrate off the reservation or to higher elevations. This
has been particularly taxing on tribal members who have traditionally
depended on big game for subsistence. Each June, the Wind River Fish
and Game sells permits to eligible tribal members participating in the
Tribe's traditional Sundance ceremony. Historically, this has been a
way to allow tribal members to carry on the tribal tradition of taking
big game for various uses in the tribal ceremony. The Sundance hunting
season eases the financial burden of tribal members as well as fosters
the continuation of tribal traditions. However, with the growing impact
of wild and feral horses, the game have been more and more difficult to
locate and hunt because they have migrated off the reservation or in
areas that are very difficult to access.
Additionally, tribal members have a traditional and/or ceremonial
use for many plants and materials found on the reservation. As the
horse herds grow and migrate to different parts of the reservation,
they begin to threaten the plants and materials used traditionally and
ceremonially. A long-term or permanent loss of these plants and
materials would be culturally devastating.
Unknown Impacts
The tribes and its partners are just beginning to discover the ways
in which the wild and feral horse overpopulation is impacting our
reservation. While we cannot know with specificity, we suspect the wild
and feral horse population has the potential to permanently affect our
culture, environment, ecology and economy.
Addressing the Problem
It will take a multi-partner approach to fully address the wild and
feral horse problem on reservation lands across Indian country. It will
take the cooperation and input of tribes, government agencies, and
interest groups to assess current impacts and develop plans for removal
and mitigation of future impacts. On the Wind River, horse removal is a
priority. The Tribes, along with government agencies, have developed a
methodology for removal of the wild and feral horse population.
However, this is only one step to addressing the issue. We will require
the knowledge of tribal members, wildlife and ecology experts, and
federal agencies to help return our lands to their former state. And to
protect the lands from future invasion of feral horses, the Wind River
tribes will require more enforcement figures in our Fish and Game
Department.
Thank you.
Senator Barrasso. Mr. Chairman, let me just point out the
size of their reservation is, as you described, 2.2 million
acres and is larger than the combined sizes of the State of
Rhode Island and Delaware. It is an amazing amount of area.
The Chairman. Are you bragging now?
Senator Barrasso. It is quite a place.
The Chairman. It is a very big area.
Thank you for being here, Chairman. We appreciate it very
much.
I should not tease my fellow Senator. He does a fantastic
job. I appreciate him being here.
Ms. Peltola.
STATEMENT OF MARY SATTLER PELTOLA, EXECUTIVE
DIRECTOR, KUSKOKWIM RIVER INTER-TRIBAL FISH
COMMISSION
Ms. Peltola. Thank you, Mr. Chairman and members of the
Committee.
[Greeting in native tongue.]
My name is Mary Peltola. I am from the community of Bethel,
Alaska. I am the Executive Director of the Kuskokwim Inter-
Tribal Fish Commission.
As Senator Murkowski mentioned a moment ago, in May 2015,
the Fish Commission was formed as a consortium of all of the 33
federally-recognized Alaska Native tribes located along the
Kuskokwim River. This historical unity of tribes was driven by
our understanding and insistence that we must have at least a
co-management role if our Chinook salmon and way of life are to
survive.
Despite agreements with the U.S. Department of the Interior
for a tribal role in management of traditional subsistence
fisheries, the burdensome Federal administrative structure and
misplaced policy priorities of Fish and Wildlife have
undermined the unified effort of the tribes to protect our
salmon stocks and way of life.
Tribal self-determination is minimized in this most vital
aspect of tribal health and well being. Two unique
circumstances complicate the Fish Commission's efforts to
manage the Kuskokwim River Chinook salmon stock.
We are federally-recognized tribes. We have a government-
to-government relationship with the Department of the Interior
and Interior has ample discretion to implement and administer
the subsistence rights provided under Federal law for rural
tribal members through co-management with our rural tribal
governments.
Roughly half of the Kuskokwim River from the village of
Aniak to the mouth of the Bering Sea flows through the Yukon
Delta National Wildlife Refuge, and is subject to Federal
jurisdiction. However, before the river passes through Aniak,
it is subject to State jurisdiction. I should also note the
Kuskokwim River is 900 miles long.
Under ANILCA, Federal managers are required to prioritize
non-wasteful subsistence uses of fish and wildlife resources by
Alaska's rural residents, many of which include the Fish
Commission's tribal members.
However, State law prohibits prioritizing subsistence uses
of fish and game resources for Alaska's rural residents.
Instead, State managers must provide all Alaskans with equal
access and opportunities to take fish and wildlife resources.
Despite the obvious conflict between these two management
regimes, it is Federal policy to defer to State management of
the Federal portion of the Kuskokwim River Chinook salmon
whenever possible.
Federal managers currently apply and enforce State
regulations in Federal waters even though those regulations do
not meet ANILCA's mandate to prioritize subsistence uses and
they defer to State management decisions.
The Federal Subsistence Board administers the subsistence
taking and uses of fish and wildlife under ANILCA. The regional
directors who sit on the Subsistence Board frequently band
together and at times their loyalty to support one another
undermines their protection of subsistence interests.
The Federal Subsistence Board receives administrative
support from another Federal agency, the Office of Subsistence
Management. While OSM purports to represent the interests of
Alaskan subsistence users, those interests are oftentimes in
conflict with Fish and Wildlife Service political and
bureaucratic interests limiting OSM's effectiveness.
These jurisdictional and administrative issues motivated
the Fish Commission to enter into a Memorandum of Understanding
with the Fish and Wildlife Service in February 2016. While on
paper, the MOU places the Fish Commission as a management
partner with the Fish and Wildlife Service, the equity of
relationship has not been borne out in real life.
The Fish Commission needs clear and enhanced authority to
develop and implement management plans without having to go
through the burdensome administrative process required by
ANILCA.
Congress should consider Federal legislation authorizing a
pilot project for the Fish Commission that provides authority
for the Commission to bypass the existing administrative
structure and process of ANILCA and directly implement the
Federal subsistence priorities for rural and tribal members.
Congress should also encourage the Secretary of Interior to
engage in rulemaking to create a direct management structure
between the Secretary and the Alaska tribal co-management
commissioners such that the Secretary can simply delegate
authority to our tribes to implement subsistence fishery
management.
With that, I would be happy to answer any questions.
[The prepared statement of Ms. Peltola follows:]
Prepared Statement of Mary Sattler Peltola, Executive Director,
Kuskokwim River Inter-Tribal Fish Commission
My name is Mary Peltola. I am the Executive Director of the
Kuskokwim Inter-Tribal Fish Commission (KRITFC). I come from Kwethluk,
Alaska, a small Yupik Alaska Native village located on the Kuskokwim
River. I have been fishing with my family in the Kuskokwim in our
traditional ways my whole life. Despite agreements with the U.S.
Department of Interior (DOI) for a tribal role in management of
traditional subsistence fisheries, the burdensome federal
administrative structure and misplaced policy priorities of the FWS
have undermined the unified effort of the tribes to protect their
salmon stocks and way of life. Tribal self-determination is minimized
in this most vital aspect of tribal health and well-being. We are in a
constant, ineffective struggle, and our tribes and salmon are suffering
the consequences. After describing the KRITFC and our issues, I have
some recommendations for Congress to address these issues.
In May 2015, the KRITFC was formed as a consortium of all of the 33
federally-recognized Alaska Native tribes that are located along the
Kuskokwim River. This historical unity of the tribes was driven by
their understanding, and insistence, that they must have at least a
comanagement role if their Chinook salmon and way of life are to
survive. Each tribe appoints a Commissioner to the KRITFC who is
authorized to make decisions on behalf of the Tribe. The Commissioners
select seven of their own members to serve on an Executive Council. The
KRITFC strives to achieve consensus in all decisions.
For about a decade, the Chinook salmon stocks in the Kuskokwim
River have been crashing. This has had disastrous consequences for
Alaska Natives who depend on Chinook salmon for their nutritional,
spiritual, and cultural well-being. In light of these conservation
issues, the KRITFC has consistently and unanimously agreed to voluntary
fishing restrictions to protect these stocks. The Commission uses its
collective traditional knowledge and expertise concerning the Kuskokwim
River to develop culturally appropriate conservation management plans.
And, together with the Bering Sea Fishermen's Association, the KRITFC
also designs and implements harvest data collection programs. The
Commission's goal is to jointly implement those plans with U.S. Fish
and Wildlife Service (FWS) and, when possible, with the State of
Alaska. A central aspect of the tribal management plans is the
unfulfilled goal that once a management plan is agreed to, and
consistent with conservation, the tribes are authorized to implement
and enforce that plan for their rural tribal members.
While each KRITFC member tribe has a unique relationship with the
Kuskokwim River, all of our tribal members are unified by the vitally
important role salmon--in particular, Chinook salmon--plays in our
nutritional, cultural, and spiritual well-being. Since before contact
with Russian traders and missionaries, and certainly before statehood,
Alaska Natives were stewards of this resource. We successfully managed
the harvest and conservation of all Kuskokwim River salmon stocks
according to our traditional Yupik and Athabascan rules and values:
Providing for children, the sick, and the elderly first. Only catching
what you can eat. Sharing what you cannot. Treating our resources with
respect.
However, since the advent of Federal and State management of
Kuskokwim River Chinook salmon stocks, tribal management has been
sidelined, our Chinook salmon stocks are crashing, and both our tribes
and our salmon are suffering. Despite our proven expertise and interest
in sustainably managing our river's resources, the current
interpretation and administration of federal subsistence laws makes it
very difficult for the KRITFC to fully engage in traditional
subsistence ways of life and to exercise self-determination in this
most essential right.
Two unique circumstances complicate the KRITFC's efforts to manage
Kuskokwim River Chinook salmon stocks under the existing federal and
state subsistence management programs. The first is that unlike the
Lower 48, neither the Federal nor the State government recognizes our
right as a matter of policy or law to manage our fish and wildlife
resources, despite having successfully done just that for thousands of
years. As you know, with the exception of the Metlakatla Reserve in
Southeast Alaska, there are no reservations in Alaska. This is,
however, simply one excuse used to minimize tribal co-management. We
are federally recognized tribes, we have a government to government
relationship with the DOI, and DOI has ample discretion to implement
and administer the subsistence rights provided under federal law for
rural tribal members through co-management with their rural tribal
governments.
Empowering tribal management or co-management is the only way to
overcome the ineffective and inefficient State/Federal dual management
system currently in place. The Kuskokwim River salmon fisheries are
subject to both Federal and State management. These management regimes
are inescapably tangled by conflicting laws and policies. Roughly half
of the Kuskokwim River, from its mouth on the Bering Sea to the village
of Aniak, flows through the Yukon Delta National Wildlife Refuge, and
is subject to federal jurisdiction. But, after the river passes through
Aniak, it is subject to State jurisdiction. Some of our tribes must
subsistence fish under State regulations, others under federal
regulations, and at times it appears the purpose of the different
regulatory schemes is to undermine tribal unity. Currently, there is no
recognized place for all tribes to fish under a united tribal
management plan that has been negotiated with all management partners,
which would thereby bring an effective, unified management plan
throughout the entire drainage.
Under the Alaska National Interest Lands Conservation Act (ANILCA),
\1\ Federal managers are required to prioritize non-wasteful
subsistence uses of fish and wildlife resources, such as Kuskokwim
River Chinook salmon, by Alaska's rural residents, \2\ many of which
include the KRITFC's tribal members. If conservation concerns require
Federal managers to restrict people from hunting or fishing from a
certain stock, they must consider a user's customary and direct
dependence upon the resource as the mainstay of livelihood, the user's
local residency, and the availability of alternative resources before
any restrictions are put in place. \3\ ANILCA helps to ensure that the
people who depend on a resource the most have the best opportunity to
harvest that resource.
---------------------------------------------------------------------------
\1\ 16 U.S.C. 3101 et seq.
\2\ 16 U.S.C. 3114.
\3\ 16 U.S.C. 3114(1)-(3).
---------------------------------------------------------------------------
Absent FWS agreeing about the existence of a specific conservation
concern or threat to subsistence uses, the State manages the Federal
portion of the Kuskokwim River through State regulations. However,
State law prohibits prioritizing subsistence uses of fish and game
resources for Alaska's rural residents. \4\ Instead, State managers
must provide all Alaskans, regardless of whether they live in a rural
village where food is costly and scarce or in an urban city where food
is plentiful and relatively affordable, with equal access and
opportunity to take fish and wildlife resources. This means that a
lawyer who lives in Anchorage is provided the same opportunity to come
to Bethel and fish for Kuskokwim River Chinook salmon as an elder
subsistence user who is unemployed and depends on the nutrition
provided by Chinook salmon to make it through the winter without going
hungry.
---------------------------------------------------------------------------
\4\ See McDowell v. State, 785 P.2d 1 (Alaska 1989).
---------------------------------------------------------------------------
Despite the obvious conflict between these two management regimes,
it is Federal policy to defer to State management of the federal
portion of the Kuskokwim River whenever possible. \5\ These conflicting
management regimes create serious problems that restrict our
subsistence opportunities and impede our ability to fully engage in our
traditional subsistence ways of life and to be fully self-determined in
that engagement. One problem is that despite the fact that Federal
management is required to prioritize subsistence opportunities for
rural residents, Federal managers currently apply and enforce State
regulations in Federal waters even though those regulations do not meet
ANILCA's mandate to prioritize subsistence uses, \6\ and defer to State
management decisions. This is done over the KRITFC's objection, to the
detriment of Alaska Native subsistence opportunity and self-
determination.
---------------------------------------------------------------------------
\5\ 50 C.F.R. 100.14(a)(State Fish and game regulations apply to
public lands and such laws are hereby adopted and made a part of the
regulations in this part to the extent they are not inconsistent with,
or superseded by, the regulations in this part).
\6\ 50 C.F.R. 100.14(a).
---------------------------------------------------------------------------
Alaska's tribes do not have a direct role in either the Federal or
the State management systems. This means that the people who depend on
the resource the most have little to no say in how that resource is
managed. The extent to which the KRITFC is able to fully engage in
Federal management of the Kuskokwim River is controlled by an
ineffective and inefficient federal administrative process that is
stacked against tribal interests and designed to disenfranchise our
tribal voices.
The Federal Subsistence Board (FSB or the Board) is an
administrative body created by the Secretaries of Interior and
Agriculture created to administer the subsistence taking and uses of
fish and wildlife under ANILCA. \7\ The FSB has eight members--a Chair,
two public members appointed by the Secretaries of Interior and
Agriculture, and the Regional Directors of FWS, the Bureau of Indian
Affairs, the Bureau of Land Management, National Park Service, and U.S.
Forest Service. \8\ The Public Members are required to be familiar with
subsistence users and uses; there is no such requirement for the agency
Regional Directors. The FSB votes on all regulatory proposals and
actions concerning subsistence uses of fish and wildlife on Federal
public lands. The Regional Directors frequently band together and at
times their loyalty to support each other undermines their protection
of subsistence interests.
---------------------------------------------------------------------------
\7\ 50 C.F.R. 100.10(a).
\8\ 50 C.F.R. 100.10(b)(1).
---------------------------------------------------------------------------
The FSB receives administrative support from another federal
agency, the Office of Subsistence Management (OSM). It is staffed by
anthropologists, biologists, technical and administrative employees, as
well as liaisons to the ADFG and Alaska Native communities. OSM
communicates with tribal members and other subsistence users to clarify
regulatory proposals. OSM also conducts tribal consultations when
deemed necessary by agency policy. And, OSM administers each FSB
meeting, providing procedural guidance in an effort to ensure a
consistent process. However, OSM is housed within FWS. While OSM
purports to represent the interests of Alaska's subsistence users,
those interests are oftentimes in conflict with FWS's political and
bureaucratic interests, limiting OSM's effectiveness.
During public hearings held approximately every four months, the
FSB considers regulatory proposals concerning subsistence uses of fish
and game, recommends subsistence regulations for Federal public lands
in Alaska for approval to the Secretary of Interior, and makes
management decisions concerning eligibility to take, allocation, and
restriction of subsistence resources. \9\ The FSB also decides whether
to delegate certain aspects of its authority to agency officials to
make in-season subsistence management decisions consistent with
frameworks established by the Board. \10\
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\9\ 50 C.F.R. 100.10(d).
\10\ 50 C.F.R. 100.10(d)(6).
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These jurisdictional and administrative issues motivated the KRITFC
to enter into a Memorandum of Understanding (MOU) with the FWS in
February 2016. \11\ The MOU was designed to enable the KRITFC, together
with the FWS, to cooperatively manage Kuskokwim River Chinook salmon
fisheries, to ensure a stronger, more self-determined management
structure, and to avoid the burdensome administrative process. However,
the KRITFC continues to face the same administrative delays and
bureaucratic obstacles which exclude tribal participation and fail to
prioritize subsistence opportunities for the rural users who need them
the most.
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\11\ A copy of the MOU is appended to this testimony.
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It is difficult to maintain our traditional Alaska Native
subsistence ways of life when a federal agency dictates every aspect of
the administration of the Federal subsistence management program in
ways that are often contrary to our self-determination and traditional
subsistence way of life. While on paper, the MOU places the KRITFC as a
management partner with FWS that equity of relationship has not been
borne out in real life. The KRITFC has attempted to work in good faith
to cooperatively develop and implement management plans and decisions
for Kuskokwim River Chinook salmon stocks and subsistence fishing. But,
the KRITFC continues to find its positions and suggestions diminished
or wholly sidelined. FWS's number one priority often appears to be
getting along with the State rather than ensuring that the subsistence
needs of the Kuskokwim tribes and other rural users are fulfilled, and
that the Chinook stocks are rebuilt. It appears that the FWS does not
want to be in the position of protecting subsistence rights and
managing the fishery. The solution is to take the FWS and FSB out of
the process, and implement ANILCA's subsistence priority on the
Kuskokwim River directly through these rural tribes pursuant to a
management plan developed in consultation with the State.
The KRITFC needs clear and enhanced authority to develop and
implement management plans without having to go through the burdensome
administrative process required by ANILCA in order to address continued
threats to stock conservation. This is vital given the growing impact
of climate change on the natural resources Alaska Native subsistence
users depend upon. The KRITFC offers these specific recommendations to
ensure Tribes have central role in implementing and administering
ANILCA.
Congress should consider federal legislation authorizing a pilot
project for the KRITFC that provides authority for the Commission to
bypass the existing administration structure and process of ANILCA, and
directly implement the federal subsistence fishery for rural tribal
members. The Commission suggests that upon adoption of a unified
conservation and subsistence fishery management plan, the tribes would
implement that plan for their rural tribal members, as well as non-
tribal members residing in the villages so long as they agree to abide
by the management plan. The Secretary of DOI would be authorized to
review the plan to ensure conservation of fish stocks. If the Tribes
and State could not agree on a management plan, the default would be
federal management. Our Tribes have managed and depended upon Kuskokwim
River Chinook salmon for thousands of years. Our Tribes understand
salmon. They want to sustain it. They want to ensure its continued
viability. Congress should recognize our conservation management
experience and expertise and authorize this tribal co-management pilot
project.
Congress should also encourage the Secretary of Interior to engage
in rulemaking to create a direct management structure between Secretary
and Alaska Tribal co-management commissions such that the Secretary can
simply delegate authority to our Tribes to implement subsistence
fishery management, relieving us of the burden of having to constantly
engage in an ineffective, inefficient federal subsistence
administrative structure.
It has been the KRITFC's experience that having only two public
members on the FSB is woefully insufficient representation for Alaska's
subsistence users. The agency Regional Directors on the FSB often have
not lived and don't really understand the subsistence way of life. An
immediate fix that Congress could implement would be to require the
appointment of additional tribal representatives to the FSB resulting
in an equal number of public and agency members on the Board.
Finally, we recommend that it is essential to move OSM out from
under FWS so that it operates independently of an agency whose policy
and administrative actions are at times not consistent with providing
fully for subsistence uses and needs. Ensuring that OSM is
independently funded and managed would allow that agency to do its job
free of potential ideological and political conflicts.
Attachments
Prepared Statement of Michael Williams, Elected Tribal Official, Akiak
Native Community
Wha'Qaa! My name is Michael Williams, currently Vice Chairman of
the Kuskokwim River Inter-Tribal Fish Commission (KRITFC), past
Chairman of the KRITFC, Steering Committee Chair to organize KRITFC,
former Area Vice President of the National Congress of American
Indians, former Chairman of the Association of Village Council
Presidents, Former President of the Rural Community Action Program,
Board Member of the Native American Rights Fund, Former Vice Chairman
on the Alaska State Board of Education, and an avid and long-time
musher and lditarod Sled Dog Race veteran and retired US Army Veteran.
I also testified before Congress concerning the impacts of climate
change on Indigenous Peoples in Alaska.
I appreciate the opportunity to submit my individual testimony in
my capacity as a Tribal Council Member on an issue that is very close
to my heart and mind. I am fortunate to have been raised in a Yupiaq
Traditional way by my grandparents, my parents, and my uncles and aunts
learning how to hunt, fish, and gather on our traditional lands in
Western Alaska. They lived a Customary and Traditional way of life,
living with the land, waters and air year-round. This life changed when
the State and Federal Governments came to our communities with their
laws that were crafted without our knowledge and participation. These
laws continue to adversely affect the ability of Indigenous Peoples in
Alaska to practice our ways of life.
Akiak Native Community requests that this Committee take the
following actions:
1. Advance and protect Tribal Sovereignty;
2. Meet with Tribes to address the impacts of State and Federal
laws on Indigenous Peoples of Alaska;
3. Secure ongoing funding for Tribes in Alaska to co-manage and
manage natural resources.
Advance Tribal Sovereignty
The decision of Kuskokwim River Indigenous fishermen in 2012 to
fish outside State regulations in order to feed their families resulted
in the indictment of Indigenous fishermen. \1\ While the Court found
that the defendants were guilty of violating State law, Indigenous
Peoples fished in order to uphold Tribal laws. We recognize that Tribal
law and State and Federal laws are not always in agreement, and we
strive to abide by the laws both by which we are governed and by which
we also govern ourselves. Akiak Native Community is committed to
working with Federal agencies to ensure that the Federal Government
upholds its Trust Responsibilities to the 229 Federally-recognized
Tribes in Alaska equally along with the other 338 Federally-recognized
Tribes in the United States.
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\1\ State of Alaska v. Felix Flynn et al., District Court for State
of Alaska (Alaska 2013)
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Indigenous Peoples are the first ``Natural Resource Managers'' of
the lands and waters, and fish and wildlife, from which all Alaskans
benefit. Because of Indigenous Knowledge--which draws upon Ancestral
territorial ties, our understanding of our lands, and our respect and
love for our Natural Resources--Tribal participation in management is
paramount to managing fish and wildlife populations for conservation
and to ensure future subsistence uses of such populations. Tribal
sovereignty is upheld when Tribes are recognized as effective co-
managers of the territories and fish and wildlife that sustain us.
On May 5, 2015, 33 Federally-recognized Tribes organized as the
Kuskokwim River Inter-Tribal Fish Commission (KRITFC), modeling the
Northwest Indian Fisheries Commission (NWIFC) that organized after the
Boldt Decision in the 1970's with the great Billy Frank, Jr. of the
Nisqually Indian Tribe. \2\ Billy traveled to our region to help Tribes
in Alaska advocate to get on the management table. We are forever
grateful for his contribution along with the ongoing support of the
NWIFC Board.
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\2\ United States v. Washington, 384 F. Supp. 312 (W.D. Wash.
1974), affirmed, 520 F.2d 676 (9th Cir. 1975).
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In addition to the KRITFC, there have been numerous other
agreements between Indigenous Peoples in Alaska and the Federal
government concerning fish and wildlife management, including
management of migratory birds, marine mammals, whales, polar bear, and
walrus. These agreements have yielded successful results. Indigenous
Knowledge and participation played a huge part. Fish and wildlife
populations were replenished when Tribes co-managed and when Tribal
sovereignty was recognized.
Following the creation of a Memorandum of Understanding between the
KRITFC and the United States Fish and Wildlife Service (USFWS), KRITFC
Tribes continue to work to increase their involvement as co-managers of
Kuskokwim River fisheries with the USFWS. \3\ However, as Mary Sattler
Peltola addressed in her testimony before this Committee on May 20,
2018, the current Federal subsistence management structure impedes
Tribal capacity to be effective co-managers.
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\3\ See attached Memorandum of Understanding.
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We ask that Congress recognize the vital importance of Ancestral
territories and fish and wildlife to Indigenous Peoples in Alaska by
amending the Alaska National Interest Lands Conservation Act (ANILCA)
to create a clear management role for Tribes separate from rural Alaska
residents.
Meet With Tribes
Recognizing Tribal sovereignty requires, in part, that Federal
agencies meaningfully negotiate with Tribes on issues that impact
Tribal wellbeing. In this spirit, we ask that Congress authorize the
Secretary of the Interior to conduct field hearings throughout Alaska
with Tribes in order to better understand how Federal laws such as
ANILCA affect Indigenous Peoples in Alaska. These hearings can inform
legislators of the changes in Federal law necessary to more fully
recognize Tribal sovereignty, protect Tribal uses of fish and wildlife,
and support Tribal co-management of natural resources.
Secure Funding For Tribes
We ask that Congress secure ongoing funding for individual Tribes
in Alaska as well as for Tribal bodies, including KRITFC, charged with
co-managing fish and wildlife. Funding will support Tribal management
efforts as well as Tribal capacity to address the welldocumented
effects of climate change. The negative effects of climate change to
which Indigenous Peoples of Alaska must adapt are experienced also by
Indigenous Peoples on a global scale. Adequate funding from Congress
will help position Indigenous Peoples of Alaska to be partners in
addressing the effects of climate change and resource extraction
nationally and internationally. Many Tribes are reviving management
practices that are time-tested, climate-resilient, and have value to
all Peoples, Indigenous and nonIndigenous alike. We ask Congress to
nurture these efforts to help them grow across all our lands and
waters.
Akiak Native Community is committed to preserving the health of our
People and our fish and wildlife in perpetuity. Our goal is for our
People and fish and wildlife to be well again. Without a meaningful
role in the co-management and management of our Ancestral territories
and fish and wildlife, the health of our People and our natural
resources will remain threatened. Thank you very much.
______
MEMORANDUM OF UNDERSTANDING BETWEEN UNITED STATES
DEPARTMENT OF THE INTERIOR U.S. FISH AND WILDLIFE SERVICE ALASKA REGION
AND KUSKOKWIM RIVER INTER-TRIBAL FISH
COMMISSION
This Memorandum of Understanding (MOU) is entered into in order to
formalize the fishery management partnership between the United States
Department of the Interior (Department), U.S. Fish and Wildlife Service
(Service) and the Kuskokwim River Inter-Tribal Fish Commission
(hereinafter referred to as ``Commission'').
ARTICLE I--BACKGROUND AND OBJECTIVES
In his address to the Alaska Federation of Natives Convention in
October 2014, and to the National Congress of American Indians in
February 2015, Deputy Secretary Mike Connor announced plans to develop
a meaningful Partnership Project that could be implemented
administratively, with the goal of more meaningfully integrating
Kuskokwim Tribes and Federally qualified users into Federal fisheries
management on the Kuskokwim River drainage. Development of this MOU is
one component of the Kuskokwim River Partnership Project. It formalizes
a management partnership that begins to address the long-standing
desire of Alaska Native Tribes in the Kuskokwim Drainage to engage as
co-managers of fish resources.
The Association of Village Council Presidents (A VCP) and Tanana
Chiefs Conference (TCC) are regional Tribal organizations whose
membership includes all of the federally recognized tribes in the
Kuskokwim drainage. The A VCP and TCC were instrumental in the
establishment of the Commission and in the development of this MOU.
Both AVCP and TCC have adopted resolutions that support the
Commission's participation in the Kuskokwim River Partnership Project
through the signing of this MOU.
The Partnership Project sets forth a two-part structure to
meaningfully integrate Kuskokwim Tribes and Federally qualified users
into the decisionmaking process for fisheries management on Federal
public waters of the Kuskokwim River drainage. The MOU represents one
component of a two part structure that will implement the 2014
directive from the Deputy Secretary to establish a demonstration
project for the Kuskokwim River Drainage that integrates Alaska Natives
into Federal fishery management into the decisionmaking process. The
MOU builds upon the experience and success gained from consultations
between the Commission and the Yukon Delta National Wildlife Refuge
Manager related to Federal in-season fishery management decisions for
the 2015 season, and will provide an opportunity to advance issues that
are critical to the Commission and Federally qualified users in future
years. The second component of the Partnership Project is a proposal
cooperatively developed by the Commission, the Office of Subsistence
Management (OSM), and the Service which was submitted to the two
Regional Advisory Councils (Councils) in the Kuskokwim River drainage
for a subcommittee jointly chartered by the two Councils. The goals of
the proposal include providing a meaningful role for the Commission in
the Federal subsistence management process and developing unified
recommendations for fishery management for the Kuskokwim River
drainage.
The Department of the Interior and the Service also share a mutual
concern with the Commission for the conservation of fish resources and
their habitats and ensuring the opportunity for the continuation of the
subsistence way of life. Both are engaged in fish management strategies
and programs and desire to develop and maintain a cooperative
relationship which will be in the best interests of the Parties and the
resource.
Additionally, the Department, Service, and Commission share the
goal of meaningfully integrating the tribal governments located in
Kuskokwim River drainage, through their membership and participation in
the Commission, as broadly as possible, into the management of Federal
public waters in the Kuskokwim River drainage fisheries.
The Parties share the goal of effective and timely communication of
all information and consultation and collaboration for in-season
fishery management actions;
ARTICLE II--AUTHORITY
The following authorities support the MOU:
Alaska National Interest Lands Conservation Act (ANILCA)
Title VIII
Alaska Native Claims Settlement Act
Executive Order 13175 ``Consultation and Coordination with
Indian Tribal Governments''
Secretarial Order 3317, Department of Interior Policy on
Consultation with Indian Tribes (December 2011)
Secretarial Order 3335 ``Reaffirmation of the Federal Trust
Responsibility to Recognized Indian Tribes and Individual
Indian Beneficiaries''
U.S. Fish and Wildlife Service Native American Policy (1994)
Federal Subsistence Board regulations 36 CFR 242 and 50 CFR
100
The Federal Subsistence Board (Board) is vested with authority
delegated by the Secretaries of the Interior and Agriculture to manage
subsistence uses and resources on the Federal public lands in Alaska.
The Board may delegate specific regulatory authority related to the in-
season management of fish species for the Federal public waters in the
Kuskokwim Area. The manager of the Yukon Delta National Wildlife Refuge
(Refuge is currently delegated this authority. The Letter of Delegation
from the Board to the Refuge manager is attached as an appendix.
The Department has a government-to-government relationship and
trust responsibility with the Federally recognized tribes in the
Kuskokwim River Drainage and is committed to implementing programs that
further tribal self-determination. The Federally recognized Kuskokwim
River Tribes are the governing bodies for the tribal members who are
residents of these rural communities in the Kuskokwim River Drainage.
The Kuskokwim River Tribes established the Commission for the purpose
of engagement in the management of Kuskokwim River fisheries.
ARTICLE III--STATEMENT OF WORK
This MOU formalizes an agreement for substantive consultation
between the Federal in-season manager and the Commission prior to in-
season management decisions and actions. The MOU also acknowledges the
collaborative development of a proposal by the Parties for a fisheries
subcommittee jointly chartered by the Western Interior and Yukon-
Kuskokwim Delta Regional Advisory Councils (Councils).
THE SERVICE AGREES:
1. The Federal in-season manager will consult with the Commission
for the purpose of collaboratively making fisheries management
decisions with the integration and application of Commission knowledge,
information, and management strategies.
2. All relevant data and information will be provided by the
Service to the Commission at the earliest practicable time before
consultation.
3. The Federal in-season manager will serve as the primary point of
contact for the agency.
4. To engage the Commission as partners in the development and
implementation of fishery management projects for the Kuskokwim River
drainage, such as research, monitoring, harvest surveys, subsistence
studies, test fisheries, and other programs, and to enter into
cooperative funding agreements with the Commission to support such
capacity building to the degree funding is available from the Service
or the Department.
5. To provide a timely written justification to the Commission when
the Refuge manager is unable to reach consensus with the Commission
regarding Kuskokwim Fisheries in-season management decisions. The
justification will include an explanation of how the Commission's
traditional and scientific information and position were integrated and
considered in the management decision.
THE COMMISSION AGREES:
1. To maintain its status as a tribal organization with membership
open to all of the Federally recognized Tribes in the Kuskokwim River
drainage, that the Commission represents a significant majority
Kuskokwim tribes representing all segments of the drainage, and that
the Commission is authorized by its member tribes to engage in the
management activities formalized through this MOU.
2. To recognize the Refuge Manager at Yukon Delta National Wildlife
Refuge as the Federal in-season manager to the extent such authority
has been delegated by the Board, including delegated authority to issue
emergency special actions for the management of fish within the Federal
public waters of the Kuskokwim River drainage. The scope of delegation
set by the Board and limited by 36 CFR 242.10(d)(6) and 50 CFR
100.10(d)(6).
3. To provide all relevant data and information to the Service at
the earliest practicable time before consultation, including local and
traditional observations and knowledge and regional customary and
traditional fishing practices.
4. To inform the Kuskokwim River Villages about in-season and other
fishery management plans and actions.
5. To meaningfully engage in consultations with the Service to
collaboratively manage fish in the Kuskokwim River drainage.
6. To designate an in-season consultation committee composed of the
fewest number of Commissioners that can adequately represent the member
tribes, understanding that the lower, middle, and upper regions of the
watershed will be equitably represented.
7. To assist the Service with communication and outreach of
critical biological and regulatory information to Commission members
throughout the year.
THE PARTIES MUTUALLY AGREE:
1. To engage in consultation and collaboration throughout the year
to coordinate planning for management actions regarding fish resources
on Federal public waters of the Kuskokwim River, and to facilitate
development of a unified management strategy that is informed by
traditional ways of knowing and science that is biologically,
environmentally and culturally sound.
2. Each party will engage in consultation and collaboration with an
open mind and without committing to a special action before
consultation occurs between the Parties. The Parties will notify each
other, in a timely manner, of discussions with other management
agencies and provide a summary of the information exchanged.
3. Both parties acknowledge the dynamics of in-season management
and that in certain instances, due to the need for a timely decision,
immediate consultation and collaboration may not be possible or will
need to be abbreviated. Both parties will, in good faith, minimize the
instances when abbreviated consultations occur and will meet soon
thereafter to discuss the management action taken and modifications
that may be necessary.
4. The Service and Commission will contribute to and support a
Technical Advisory Body (TAB) that consists of fisheries biologists/
scientists, social scientists, and traditional knowledge experts. The
TAB will meet as requested by the Service or Commission, freely
exchange information, and strive to cooperatively develop a unified
presentation of information for consideration during negotiation,
consultation and collaboration.
5. The Federal in-season manager and the Commission will negotiate
for the purpose of striving to reach consensus on in-season management
decisions. The parties expect that consensus will be reached for a
large majority of issues. If consensus cannot be reached by
negotiation, the Commission may take one or more of the actions below:
A. The Commission may request that a conference call or meeting
occur with the Service Regional Director/Deputy Regional
Director, the Assistant Regional Director of OSM, the Federal
in-season manager, and, at the request of the Commission, the
Bureau of Indian Affairs Regional Director or Deputy Regional
Director, in a timely fashion to engage knowledgeable experts
and key decision makers in a discussion for the purpose of
achieving a mutually beneficial compromise. This strategy is
consistent with the qasgiq model, a Yup'ik problem-solving
framework, similar to a collaborative decisionmaking framework
widely practiced among Federal agencies known as operational
leadership. The Federal in-season manager maintains delegated
authority. Members of the TAB may be requested to attend the
meeting.
B. The Commission may submit a Special Action Request with
urgency to the Board in an effort to address a concern. The
Service agrees to request that the Commission's Special Action
Request be addressed with urgency.
C. The Commission may submit a request to the Board to
reconsider an in-season management action.
6. To support the development and establishment of a joint
subcommittee appointed by the Councils. The goal for the Subcommittee
is to develop recommendations to the Councils on the initiation,
review, and evaluation of proposals for regulations, policies,
management plans, special actions (in-season management), and other
matters or potential impacts relating to management, conservation, and
subsistence users of fish in the Kuskokwim River Area, or for fisheries
which have impacts on Kuskokwim River Area stocks. Fishery proposals
developed by the Subcommittee and forwarded to the Board by both
Councils as recommendations will be entitled to deference in accordance
with Section 805 of ANILCA and Board policy.
7. If the Councils choose not to establish a Subcommittee that
incorporates the substance of the Parties' proposal, the Parties will
jointly develop a proposal for the Department of the Interior under the
authority of ANILCA Section 805(a) or other legal authority that
incorporates the objectives of the Subcommittee.
8. To send the same representatives to attend consultations. The
parties may send an alternate to consultations only when necessary,
recognizing this should only occur on a very limited basis.
9. To develop supplemental memoranda of understanding between the
Commission and the Refuge, as may be required to implement the
objectives of the Partnership Project as it develops.
10. To attend and meaningfully participate in consultations during
in-season fisheries management and at other times when requested by
either Party, and to promote a professional, productive, and
collaborative atmosphere, while avoiding confrontational speech or
behaviors.
11. To actively encourage and seek the participation of the State
of Alaska fishery managers in the consultation and collaboration
process.
12. To jointly develop a proposal to the Board for an abbreviated
process that will, to the degree practicable, provide an opportunity
for timely relief when a request is submitted to reconsider an in-
season management action.
ARTICLE IV--TERMS OF AGREEMENT
1. This MOU shall become effective upon the signature of the
Service and the Commission.
2. This MOU shall continue until terminated by the Service or the
Commission. A party may terminate this MOU by providing sixty (60) days
advance written notice to the other party. Upon notice of termination,
the Parties will meet promptly to discuss the reasons for the notice
and to try to resolve their differences.
3. Amendments to this MOU may be proposed by the Service or the
Commission and shall become effective upon the signature of the
Parties.
4. If the Board changes the delegation of authority for the
Kuskokwim River Federal in-season manager, this MOU will be carried
forward and amended to reflect the new delegation.
5. Any significant change in the scope of Federal public lands or
tribal lands in the Kuskokwim region will require a re-evaluation and
possible amendment of this MOU.
6. This MOU shall be re-evaluated by the Parties after two (2)
years from the date of execution.
The Chairman. Ms. Romero-Briones.
STATEMENT OF A-DAE ROMERO-BRIONES, J.D., LL.M,
DIRECTOR OF PROGRAMS, NATIVE AGRICULTURE AND FOOD SYSTEMS,
FIRST NATIONS DEVELOPMENT INSTITUTE
Ms. Romero-Briones. [Greeting in native tongue.]
It is an honor to be here Chairman Hoeven, Vice-Chairman,
and members of the Committee.
I come from the beautiful Cochiti Pueblo in New Mexico but
I am also Kiowa from the Kiowa Tribe of Oklahoma.
I have the honor of working as the Director of Programs for
First Nations Development Institute. I run the Native
Agriculture and Food Systems Initiative. First Nation's mission
is to support tribal communities in economic development with
the fundamental belief that tribes have the wherewithal,
knowledge and ability to create their own solutions for their
communities.
I have submitted written comments for you to review at your
pleasure. Those comments were generated by input from the many
grantees we have. We currently serve or have served over 307
different grantees that are working on community-based food and
agricultural projects. A large number of those grantees are
focused on documenting their subsistence practices as a way of
giving clout to the practices that have sustained their
communities for generations.
I come to you at a special time in my community. We
recently completed the harvesting of our scung which is wild
celery. When you look at the harvesting time, it coincides with
the different seasons and provides an important and sometimes
the only source of iron and Vitamin C to the community after a
long winter in New Mexico.
Senator Udall, thank you for your work on behalf of tribal
communities and also for describing New Mexico as beautiful as
most think of it as a desert. It has much to offer this
Country.
I want to focus my oral comments on two important
prospects. My community is located on the banks of the Rio
Grande River. In order to manage whatever resources, whether
elk, deer, turkey, and fish that makes its way to the Rio
Grande River and have made their existence part of our
existence in the subsistence lifestyle, we have to deal with
over seven different Federal agencies starting at the top of
the mountain where we have the National Forest Service all the
way down to the Bureau of Reclamation to the Bureau of Land
Management, BIA and even the Department of Defense.
In order to manage our traditional lifestyles having to
meet with so many different agencies, with so many different
tribal consultation policies, and different perspectives from
Federal managers, is a challenge. That is an understatement.
In addition, one of the most critical issues happening in a
lot of our communities around the Country is the threat of
commercialization of some of our traditional foods and
traditional products.
I have the honor of serving as a National Organic Standards
Board member within the Organic Food Production Act which does
not recognize tribal communities. There is a provision allowing
for organic certification of wild products. In California right
now, when the tribes are making their way to process and save
seaweed for the winter months, the commercialization of seaweed
has created some conflicts along the coast.
Thank you.
[The prepared statement of Ms. Romero-Briones follows:]
Prepared Statement of A-Dae Romero-Briones, J.D., LL.M, Director of
Programs, Native Agriculture and Food Systems, First Nations
Development Institute
Introduction
Chairman Hoeven, Vice-Chairman, and members of the Committee, my
name is A-dae Romero-Briones. I am a member of the Cochiti Pueblo, one
of 19 Pueblo communities in New Mexico. I am also Kiowa from the Kiowa
Tribe in Oklahoma.
I serve as the Director of Programs for the Native Agriculture and
Food Systems Initiative (NAFSI) at First Nations Development Institute
(First Nations). First Nations's mission is to strengthen American
Indian economies to support healthy Native communities. We invest in
and create innovative institutions and models that strengthen asset
control and support economic development for American Indian people and
their communities. We believe that when armed with appropriate
resources, Native peoples hold the capacity and ingenuity to ensure the
sustainable, economic, spiritual and cultural well-being of their
communities. This belief largely stems from examples of long-standing
food system management that includes subsistence practices in
Indigenous communities.
NAFSI began in 2002 because of the need in Indian Country for
financial support for community-based food system projects that include
financial and policy support for traditional gathering, hunting, and
management practices. Since 2002, First Nations has awarded 307 grants
totaling more than $7.58 million to Native organizations dedicated to
increasing food access and improving the health and nutrition of Native
children and families. This number, however, pales in comparison to the
more than 1,450 requests received that totali more than $49.7
millionover that time, illustrating that a huge unmet need for funding
for these types of projects continues in Native communities.
These comments were generated with input from communities we
support at First Nations Development Institute, our friends at the
Indigenous Food and Agricultural Initiative at the University of
Arkansas, and from personal experience coming from a community that
relied heavily on subsistence agriculture. With increased pressures for
energy, urban expansion, and ever changing environmental conditions,
Indigenous subsistence practices are becoming all the more important to
the communities that practice them. It is my hope that we all recognize
and acknowledge the ecological managing that subsistence practices
(hunting, gathering, fishing, etc.) offer to support Indigenous
communities and people, ecosystems, regional environments, and our
country. These comments are also made with the understanding that there
is a government recognition of Tribal Sovereignty and Trust
Responsibility that underlies any government approach, whether through
legislation or regulation or otherwise, meant to protect Tribal
Nationhood which includes the food system institutions that sustain
those nations. Lastly, these comments focus largely on Indigenous
communities located in the lower 48 because Alaska presents its unique
historical and present day circumstances.
Subsistence Practices Are Ecological Management Practices
Subsistence should be recognized as sustainable ecological
management practices worthy of protection. Far too often, subsistence
practices are seen as passive activities isolated to Indigenous
communities and focused solely on ``food gathering.'' Yet, subsistence
practices include hunting, gathering for food, medicine, tools,
traditional arts like clothing, dying, basketmaking and building,
fishing, and controlled burning. Subsistence is not a singular ``food
gathering'' activity, but encompasses a multi-dimensional approach to
environmental understanding and management that is embodied in the
lifeways of a community.
In mainstream society, subsistence denotes production at a level
sufficient only for one's own use or consumption without any surplus
for trade or the action of maintaining or supporting oneself at a
minimum level. \1\ However, Indigenous subsistence practices are much
more than minimal levels of production, they are the practical
manifestation of generations of Indigenous knowledge institutionalized
in ecological management systems. In short, subsistence practices
empower Indigenous communities, allowing them to manage their
environments, and the human presence within that environment, and to
adjust to environmental changes with the goal of ensuring environmental
health for generations.
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\1\ ``Subsistence.'' Google Dictionary, Google, 19 June 2018,
www.google.com/search?
q=subsistence&rlz=1C1EJFA_enUS800US800&oq=subsisten
&aqs=chrome.0.69i59j69i60j69i57j0l3.1924j1j9&sourceid=chrome&ie=UTF-8.
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This long-standing approach to environmental management ensures
that a community is ``balanced'' within their own environments and eco-
systems.. In communities where we see a disruption of subsistence
lifeways, we also tend to see a greater dependence on retail markets
and their support networks, and thus a greater likelihood of over-
consumption and waste. Once lost, subsistence practices, that have been
strengthened over generations, are much more difficult to re-create,
re-teach, and re-learn.
As a Nation and at First Nations Development Institute, we have
numerous examples of subsistence practices maintaining and improving
local ecosystems from watershed improvement, species population
balance, endemic plant and animal protection, and creating a blue print
for climate change adaption. More often than not, subsistence
communities are often the first alarm when environmental changes occur
as we see with climate change.
Too often, we think of subsistence as a practice that is limited to
places like Alaska where the remote nature of villages and communities
is common. \2\ Yet, subsistence practices (ecological management)
occurs in almost every Indigenous community through the lower 48,
Alaska, and Hawai'i. Subsistence practices are not only important to
some of the most food insecure Indigenous populations, subsistence
practices are practiced intentionally and by choice by many Indigenous
people across this nation to perpetuate a shared responsibility to our
human and non-human community, and shape environmental conditions to
ensure the continued environmental and human health for future
generations.
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\2\ Subsistence use: The customary and traditional use by Native
Americans of renewable resources. For Alaska, specific statutory
definition of ``subsistence uses'' comes from section 803 of the Alaska
National Interest Lands Conservation Act of 1980 and is paraphrased as
``the customary and traditional uses by rural Alaska residents of wild
renewable resources for direct personal or family consumption as food,
shelter, clothing, tools, or transportation; for the making and selling
of handicraft articles out of nonedible by-products of fish and
wildlife resources taken for personal or family consumption; for
barter, or sharing for personal or family consumption; and for
customary trade.''
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Subsistence Practices Today
Toni Stanger-McLaughlin, an attorney, wife, and mother from
the Coleville Tribe in Washington spent several years working
for USDA in Washington, DC. She now resides with her family on
Coleville where she practices a subsistence lifestyle with her
husband and three children. She says, ``My family survives on
either three deer or one elk or one moose and a small deer for
dried meat. Last year, we got a cow elk and only needed one
other deer. Most years we get 3-4 smaller deer, just enough to
get our family through an entire year. We need 6-7 large wild
salmon, and three gallons of berries and a couple gallon size
bags of other assorted roots and medicine. We also get a few
small birds. All harvested on my reservation or in traditional
seeded areas. I grew up like this and so will my children. I
didn't buy salmon in a store until I was in law school. During
certain times of the year, areas of my reservation can
experience upwards of 67 percent unemployment and still survive
through subsistence hunting and fishing. \3\
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\3\ Email Communication. June 15, 2018.
From the salmon fisherman and acorn gatherers on the California
Coast to the maple syrup and clam shell gatherers on the coasts of New
England, ecological management is tied directly to Indigenous food
systems as a codification of the relationship between Indigenous people
and their environment. When that environment changes, the effects of
that change is directly tied to the people who depend on that
environment. While modern science requires data collection over time,
Indigenous people are perhaps the best examples of generational data
keepers.
Subsistence is, in fact, a process by which a community maintains
their relationship with the environment. Through this process, the
community continues to gather data and information about changing
environments, and assist in managing those changes through time-proven
practices such as hunting and gathering.
Despite the presence and convenience of the American retail food
system, many communities still continue to practice subsistence both by
choice and necessity, as demonstrated earlier by Toni's story. Toni can
live and work wherever she so chooses, yet chooses to live within her
own community practicing subsistence. But also, there are many Tribal
people who have no choice but to depend on subsistence.
Indian Country has some of the highest insecurity rates among any
population, some of the highest food costs, and lowest incomes. One out
of 12 Native individuals is so food insecure as to be classified as
hungry. \4\ American Indians have the highest food insecurity in the
U.S., with Native households with children having a food insecurity
rate of 28 percent compared to 16 percent for non-Natives. \5\ An
overlay of the USDA Food Deserts Locator map with Native communities
shows an absence of retail supermarkets. Local convenience stores
emphasize high-priced, nutritionally-deficient and preserved foods.
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\4\ Henchy, G., Cheung, M., & Weill, J. (200). WIC in Native
American communities: Building a healthier America--Report summary.
Food Research and Action Center. Washington, DC.
\5\ Gunderson C. (2008). MeasTuring the extent, depth, and severity
of food insecurity: an application to American Indians in the USA.
Journal of Population and Economics. 21: 191-215.
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In a recent First Nations Development Institute study called The
Indian Country Food Price Index: Exploring Variation in Food Pricing
Across Native Communities--A Working Paper II, we found that Tribal
communities in the contiguous United States (or lower 48), over the 12-
month study, paid on average $8.41 more for a basket of food items than
the national average. Similarly, in Alaska Native villages, shoppers on
average paid $35.84 more when compared to the national average for the
same basket of food items. The national average for the basket of items
was $23.28. \6\ These price differences are significant when you
consider that the median income of American Indian and Alaska Native
households was averaged at $35,062, compared with $50,046 for the
nation as a whole. \7\ In addition, 28.4 percent of American Indians
and Alaska Natives that were in poverty in 2010, compared to 15.3
percent for the general nation. \8\ Based on these statistics, many
American Indian communities are more food insecure, have few retail
food establishment options, and pay higher prices for small amounts of
food. While this is seemingly a glum profile, many American Indian
people thrive because of the Indigenous ecological management
(subsistence) practices continue to provide purpose, continuity, and
sustenance to the communities who practice them. However, increased
environmental pressures for both energy and housing, urban sprawl,
climate change, ecological management (subsistence) practices are
consistently challenged and undermined.
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\6\ First Nations Development Institute. (2018) ``Indian Country
Food Price Index: Exploring Variation in Food Pricing Across Native
Communities--A Working Paper II''. Longmont, Colorado: First Nations
Development Institute.
\7\ 2010 American Community Survey for the American Indian and
Alaska Native alone population
\8\ 2010 American Community Survey for the American Indian and
Alaska Native alone population
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Barriers
Although ecological management (subsistence) practices could once
be exercised freely, the increasing limitations on Indian land
ownership has created barriers that limit a Tribal Nation's ability to
practice long-standing ecological management (subsistence). First,
Indian Country is now only a small fraction of what Indigenous people
once occupied, but even within those lands still under Indigenous
ownership/occupation ecological management (subsistence) practices may
be inhibited depending on the type of land title designation. Second,
important lands outside of Tribal occupation are likely within federal
agency like the US Forest Service, Bureau of Land Management, Bureau of
Reclamation, and the Department of Defense. These lands are accessible
at the discretion of the federal managers. While some progress has been
made to develop protocols to allow for Tribal nations to access some
federal lands, more needs to be done to ensure an objective, less
discretionary, process.
Land Holdings
Indian Country encompasses over 56 million acres. There are 302
forested Indian reservations which encompass 17.9 million acres of
Indian forest lands--7.7 million acres of timberlands and 10.2 million
acres of woodlands. One hundred and ninety-nine reservations contain
timberlands and 185 reservations contain woodlands. \9\ While these
landholding is seemingly large, complications in land management looms
larger. The differences in land title, Tribal trust lands, allotted
trust lands, and fee lands often results in different management rules
on designated parcels, so access to these lands for hunting, gathering,
and management may be limited, or worse, inaccessible to Tribal people
despite being within Tribal boundaries.
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\9\ National Congress of American Indians. ``Demographics.'' Home
NCAI, 2018, www.ncai.org/about-tribes/demographics
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It is recognized that Tribal Nations are fully in control of treaty
rights that often include ecological management (subsistence practices)
within the boundaries of a reservation, yet, treaty rights over
hunting, fishing, and gathering are heavily impacted by activities
outside of reservation boundaries. It should be recognized that the
exercise of Tribal treaty rights within reservation boundaries MUST be
considered when making determinations about off-reservation activities
that would affect treaty rights within the reservation, such as
management of habitats and how those habitats relate to National forest
timber harvest, recreation, water, grazing, and mineral exploration.
Federal Lands
Federal land holdings are of significant importance and impact to
Indigenous ecological management (subsistence) practices. A few, but
not all, of the federal agencies that have impact on ecological
management (subsistence) practices are listed and discussed below:
1. National Forest Service
``The Forest Service shares nearly 3,000 miles of contiguous
border with AI/AN-owned lands and acknowledges that many lands
now within the NFS are the ancestral homelands and ceded
territories of many Tribes. This makes the agency and Tribes
more than just neighbors; they are partners with common goals
for social, cultural, ecological, and economic sustainability.
Many Tribes have historically managed their own forests well
and in ways the Forest Service hopes to emulate. Tribal land
management is a testament to the Tribal land ethic, an ethic
rooted in traditions, stories, and cultures. Sacred sites, both
on AI/AN land and within the national forests, are important
facets of that land ethic and a common bond between us.'' (p
14) \10\
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\10\ USDA Office of Tribal Relations and USDA Forest Service.
``Report to the Secretary of Agriculture: USDA Policies and Procedures
Review and Recommendations Indian Sacred Sites.'' (Dec 2012)
There has been great strides in improving the relationship between
the US Forest Service and Tribal Nations. Yet, more can still be done
to ensure the shared goal of natural resource management. The US
National Forest Service (NFS) is required to administer the NFS for
outdoor recreation, range, timber, watershed, and wildlife and fish
purposes; to analyze the environmental impacts of decisions it
authorizes; to protect threatened and endangered species; to conduct
research; and to carry out a host of other responsibilities on NFS
lands. In the Report to the Secretary of Agriculture dated December of
2012 regarding Policies and Procedures to Allow Tribal Access to Indian
Sacred Sites, there were several recommendations that should be
implemented. These include: (1) improving relationships between Tribal
Nations and the US Forest Service by creating a ``meaningful'' Tribal
Consultation policy; (2) expanding the definitions used in E.O. 13007
of ``Indian Sacred Sites;'' and (3) utilizing legal tools to protect
Indian sacred sites within US Forest Lands against 3rd party damage to
sacred sites.
Of particular importance is the expansion of the definition of
sacred sites in E.O. 13007. This definition should include a
recognition of ecological management (subsistence) practices. It
currently reads as so:
``. . .any specific, discrete, narrowly delineated location on
Federal land that is identified by an Indian Tribe, or Indian
individual determined to be an appropriately authoritative
representative of an Indian religion, as sacred by virtue of
its established religious significance to, or ceremonial use
by, an Indian religion; provided that the tribe or
appropriately authoritative representative of an Indian
religion has informed the agency of the existence of such a
site.'' \11\
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\11\ Sacred Sites, E.O. 13007, Public Notice; Request for Comment.
76 Fed. Reg. 47,538 (Aug. 5, 2011).
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It should read as so:
Any specific, discrete, narrowly delineated location on
Federal land that is identified by an Indian Tribe, or Indian
individual determined to be an appropriately authoritative
representative of an Indian religion, as sacred by virtue of
its established religious or ecological management significance
to, or ceremonial use by, an Indian religion; provided that the
Tribe or appropriately authoritative representative of an
Indian religion has informed the agency of the existence of
such a site.
2. Bureau of Land Management
The Bureau of Land Management (BLM) is a significant federal agency
in protecting and supporting ecological management (subsistence)
practices as it manages federal lands in states where Tribes are the
most numerous such as Alaska, Arizona, California, Colorado, Montana,
North Dakota, South Dakota, Idaho, Nevada, Oregon, Washington, New
Mexico, Utah, and Wyoming. BLM is given authority and guided by the
Federal Land Policy and Management Act (FLPMA). The FLPMA does give
some consideration to Tribal Nations such as in Title II, section 202
(43 USC Section 1712(b)). \12\ However, this provision is limited to
lands within the National Forest System. Management Plans for federal
land bases that have significant ecological management (subsistence)
practice value should include Tribal input, not just those within the
National Forest System.
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\12\ b) Coordination of plans for National Forest System lands with
Indian land use planning and management programs for purposes of
development and revision In the development and revision of land use
plans, the Secretary of Agriculture shall coordinate land use plans for
lands in the National Forest System with the land use planning and
management programs of and for Indian tribes by, among other things,
considering the policies of approved tribal land resource management
programs.
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Management plans for lands considered Outstanding Natural Areas,
even if they are recognized as culturally significant lands to local
Tribes, are not required to include Tribal consultation or
considerations. \13\ For example, the Pierdas Blancas Historic
Lighthouse Station is designatedas an Outstanding Natural Area. \14\
Within the same act, it is acknowledged that the Chumash and Salian
Tribes used the area traditionally [for fishing and gathering]. \15\
Yet, they are not required to be consulted in the management plans
surrounding that area. FLMPA states:
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\13\ https://www.blm.gov/sites/blm.gov/files/uploads/MS%201780.pdf
\14\ 43 USC 1786 (a)(2)
\15\ 43 USC 1786 (b)(4)
``The management plan shall be developed in consultation with
appropriate Federal, State, and local government agencies, with
full public participation, and the contents shall include--
(E) cultural resources management strategies for the
Outstanding Natural Area, prepared in consultation with
appropriate departments of the State of California, with
emphasis on the preservation of the resources of the
Outstanding Natural Area and the interpretive, education, and
long-term scientific uses of the resources, giving priority to
the enforcement of the Archaeological Resources Protection Act
of 1979 (16 U.S.C. 470aa et seq.)'' \16\
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\16\ 43 USC 1786 (3)(A-E)
This intentional exclusion of Tribal input from significant areas
that retain or are of importance to ecological management (subsistence
practices) should, at the very least, include Tribal input into how
these areas are managed. There is a recognition of Tribal significance
by giving the land managers the ability to close the park for religious
or ceremonial purposes, but does NOT give input into management plans
of these lands, much less, give recognition of or ability to practice
ecological management (subsistence) practices on these lands. \17\
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\17\ 43 USC 1786 (10) states: (10) Native American uses and
interests In recognition of the past use of the Outstanding Natural
Area by Indians and Indian tribes for traditional cultural and
religious purposes, the Secretary shall ensure access to the
Outstanding Natural Area by Indians and Indian tribes for such
traditional cultural and religious purposes. In implementing this
subsection, the Secretary, upon the request of an Indian tribe or
Indian religious community, shall temporarily close to the general
public use of one or more specific portions of the Outstanding Natural
Area in order to protect the privacy of traditional cultural and
religious activities in such areas by the Indian tribe or Indian
religious community. Any such closure shall be made to affect the
smallest practicable area for the minimum period necessary for such
purposes. Such access shall be consistent with the purpose and intent
of Public Law 95-341 (42 U.S.C. 1996 et seq.; commonly referred to as
the ``American Indian Religious Freedom Act'').
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Additionally, BLM has broad authority to enter into contracting
agreements with Tribal Nations. \18\ In some instances, the agreements
entered into with Tribal Nations for management of culturally
significant land bases resulted in agreements that failed to compensate
Tribal Nations for beneficial land management practices because some
subsistence practices like hunting and gathering are not recognized as
ecological management. The end result was that Tribal Nations were
burdened with executing a contract that did not adequately cover the
cost of the contract. BLM contracts with Tribal Nations should include
recognition as subsistence practices as beneficial ecological
management with costs covered to execute those activities within the
Tribal/BLM contract.
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\18\ Bureau of Land Management Manual. Rel. N0. 1-1780 (7)
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Lastly, BLM has a robust Tribal Consultation policy that still can
be improved to recognize ecological management (subsistence) practices.
Native American Cultural and Religious significant places are mentioned
throughout the internal BLM consultation policy. \19\ It should be
recognized that this term includes traditional ecological management
(subsistence) practices. \20\
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\19\ Bureau of Land Management Manual. Rel. N0. 1-1780 (7)
\20\ Bureau of Land Management Manual. Rel. N0. 1-1780 defines as,
``Traditional cultural property (TCP): A phrase often used in reference
to a ``property of traditional religious and cultural importance'' as
defined in the NHPA, which are identified by Indian tribes. The
property derives significance from traditional values associated with
it by a social and/or cultural group such as an Indian tribe or local
community. It commonly refers to a culturally sensitive area that may
qualify for the NRHP if it meets the criteria and criteria of
exceptions at 36 CFR 60.4. See National Register Bulletin 38.'' (p 36).
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3. National Park Service
Like other agencies, the National Park Service has a robust tribal
consultation policy. Although, much like other agencies the ability to
respond and work with Tribal communities with significant ties to lands
with the National Park service charge is left to the discretion on the
National Park service director/manager of a particular park. This
discretion can be frustrating to Tribes if the relationship with the
National Park Service director/manager is not cordial. The National
Park Service director/manager is NOT required to allow for ecological
management (subsistence) practices. They are only directed to follow
National Park Service Policy which reads as such:
``With regard to consumptive use of park resources, current
NPS policy is reflected in regulations published at 36 CFR 2.1
and 36 CFR Part 13. These regulations allow superintendents to
designate certain fruits, berries, nuts, or unoccupied
seashells that may be gathered by hand for personal use or
consumption if it will not adversely affect park wildlife, the
reproductive potential of a plant species, or otherwise
adversely affect park resources. The regulations do not
authorize the taking, use, or possession of fish, wildlife, or
plants for ceremonial or religious purposes, except where
specifically authorized by federal statute or treaty rights or
where hunting, trapping, or fishing are otherwise allowed.''
\21\
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\21\ National Park Service. Management Policies: The Guide to
Managing the Park Service System. 2006
Because many ecological management (subsistence) practices are not
specifically recognized by federal statute or treaty rights, many
ecological management (subsistence) practices are disallowed and not
practiced. It would be wise for federal legislatures to recognize
ecological management (subsistence) practices as necessary
environmental management tools even within Federal lands.
4. Bureau of Ocean and Energy Management
The Bureau of Ocean and Energy Management (BOEM) has an incredible
impact on ecological management (subsistence) practices on ocean
resources. Historically, Tribal communities not only in coastal
regions, but even in mid-continent of North America, depended on ocean
resources for ceremonial, diet, and cultural patrimony. In more recent
times, the rapid change in ocean and sea conditions and ocean resources
is extremely concerning. Tribal people see important subsistence
resources like clams, oysters, abalone, and seaweed, to name a few,
depleting at unconscionable rates. Because these resources play an
important role in ecological balance, Tribal Nations have been
struggling to be recognized as stewards of these resources, participate
in the management of these resources, and practice ecological
management to ensure the continuation of these resources for future
generations.
BOEM's Tribal Consultation policy is not as robust or articulated
as other federal agencies. While it is subject to federal law, and
recognized as a government-to-government relationship with Tribes, BOEM
does not spell out how federal law and the government-to-government
relationship is reflected in agency action, policy, and practice.
Articulating a Tribal Consultation policy would help Tribal
stakeholders understand where and how to influence BOEM agency
decisionmaking in order to advocate for the practice ecological
management (subsistence) practices.
Additionally, many of the ocean resources that are of importance to
Tribal communities are within BOEM management scope. A full
understanding of what ocean resources are of concern should be explored
through a Tribal/BOEM relationship exploration process much like the US
Forest Service did with sacred sites. \22\ Many Tribal Nation concerns
over ocean resources could be documented and explored, but this process
may also provide valuable information and data about ocean resources to
BOEM that have yet to be considered or documented.
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\22\ See USDA Office of Tribal Relations and USDA Forest Service.
``Report to the Secretary of Agriculture: USDA Policies and Procedures
Review and Recommendations Indian Sacred Sites.'' (Dec 2012)
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5. US Fish and Wildlife Service
The US Fish and Wildlife Service (USFWS) has an important mechanism
for including Tribal participation in ecological management
(subsistence) practices through the State and Tribal Wildlife Grants
Program. This program should continue to be supported, but should also
be considered for expansion to include more Tribes. USFWS should also
consider providing technical assistance webinars to increase Tribal
participation by Tribes who do not normally participate.
Recognition of Indigenous Ecological Management (Subsistence) Practices
1. Fishing
Fishing is an important practice that is vital to many Tribal
communities, particularly those along the coastal areas. However, I am
honored to be sitting on the panel with communities who represent these
communities and can articulate the issues around subsistence fishing
more adequately than I can. I will defer my comments to them.772.
Hunting and Gathering
It has long been recognized that Tribal communities have treaty
rights that extend beyond reservation borders. The phrase ``usual and
accustomed places'' has been interrupted to include off-reservations,
which is critical to Tribal Nations actively practicing Tribal
ecological management (subsistence). The ability to exercise Treaty
rights off-reservation interpretation should continue to be upheld. In
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S.
Ct. 1187, 143 L. Ed. 2d 270 (1999), the US Supreme Court ruled in favor
of the Chippewa Indians' right to fish and hunt in northern Minnesota
without state regulation. The ruling marked a final victory for the
Tribe in its long fight to assert its treaty rights and to defend its
cultural traditions. \23\ Presently, the US Supreme Court has a similar
case listed on its docket, Herrera v. Wyoming. \24\ Tribal Nations
throughout the country are watching anxiously for this court case to be
adjudicated with the hopes that continued recognition of ecological
management (subsistence) practices will be honored even in ``usual and
accustomed'' places off reservation. The recognition of these
ecological management (subsistence) practices will support the
continuation of ecological tools that will keep our environments
healthy.
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\23\ Read more: Native American Rights--Hunting And Fishing
Rights--Court, Tribes, Tribe, and Treaties--JRank Articles http://
law.jrank.org/pages/8750/Native-American-Rights-Hunting-Fishing-
Rights.html#ixzz5IhIKR38Z
\24\ US Supreme Court Docket No. 17-532
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Organic Food Production Act--Wild Gathering Provision
The Organic Foods Production Act (OFPA) and subsequent USDA
regulations has a provision for gathering of wild crops. \25\
Unfortunately, within this act there is NO recognition of Tribal
Nations, communities, or people. Authorizing legislation, OFPA, and the
subsequent USDA-AMS regulations specify that wild crop harvesting must
``support the long-term viability of the habitat.'' However, organic
crops like wild crops are certified organic bythird party certifiers.
There is inconsistent enforcement of what it means to ``support the
long-term viability of habitat.'' Furthermore, without the recognition
of Tribal Nations, communities, and people and their relationship to
some of these wild crops, some Tribal Nations are being purged of
important traditional resources.
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\25\ (7 U.S 7 U.S.C. ch. 94, 7 U.S.C. 6501 et seq.) and Section
5022 of the USDA-AMS Organic Handbook (can be found at: https://
www.ams.usda.gov/rules-regulations/organic/handbook/5022)
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While many Tribes harvest and gather wild crops consistent with
traditional ecological management practice that may include techniques,
timing, and processes that ensure its propagation, non-tribal
harvesting of the same crop for commercial purposes may not follow the
same techniques, timing, and processes leaving the crops vulnerable for
over-harvesting, and much worse, extinction. Abalone and seaweed are
only two examples of over-harvesting. Had there been some recognition
of the importance of these wild crops to Tribal Nations and Tribal
Nations participated in the management of these crops, perhaps over-
harvesting could have been slowed or even prevented. Commercialization
of wild foods, especially those important to Tribal Nations, should be
fully explored by USDA-AMS and the USDA Organic Program before
permissive harvesting of wild crops is allowed for sale under the USDA
Organic label.
We see a commercialization of culturally important foods typically
gathered by Indigenous people. These foods, once relegated as a
``commodity,'' become over-harvested significantly with no regional
management systems in place. Indigenous people should be the managers
of their culturally important foods like leeks, wild onions, seaweed,
and maple sugar, among others. At the very least, Tribal Nations should
be a stakeholder that develops management plans for these resources.
1. Seaweed in California
Of immediate concern is the over-harvesting of seaweed along the
coasts of California. Seaweed has been an important product in
ecological management (subsistence) lifestyles for thousands of years
for California communities along the coast and as far in-land to Tribes
in Nevada. Recently, seaweed has been deemed a ``super food''' by
American food culture. As a result, seaweed has been harvested by non-
Tribal commercial harvesters that is resulting in shortages for Tribal
Nations who follow traditionally timed seaweed gathering. Not only is
there a concern for future seaweed harvests, but there is a concern for
diet shortages of California Tribal people who rely on this source of
food during winter months. BOEM should create a Tribal Resource
Management Plan specifically for seaweed along the coast of California
to ensure that this resource is not over harvested, Tribal communities
have first priority, and that this resource is healthy for future
generations.
Because of the lack of clarity between federal authority and Tribal
recognition around ocean resource management, states have taken a large
role in making determinations about ocean resources. There are times
when practicing ecological management (subsistence) may be adverse to
economic interests within a state, which can create a polarized
environment for Tribes to advocate for ecological management
(subsistence) practice. Federal recognition of the importance of
ecological management (subsistence) practice would give a new
perspective in environmental management that is greatly needed,
particularly in seaweed commercialization.
Supportive Legislation that should continue to be protected
There are current pieces of legislation that serve as a solid
beginning for the protection of ecological management (subsistence)
practices. These pieces of legislation should continue to be supported.
These are:
The Agricultural Act of 2014 (Farm Bill) Section 4033 the
Service of Traditional Foods in Public facilities \26\
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\26\ SEC. 4033. SERVICE OF TRADITIONAL FOODS IN PUBLIC FACILITIES.
(a) PURPOSES.--The purposes of this section are--(1) to provide access
to traditional foods in food service programs; (2) to encourage
increased consumption of traditional foods to decrease health
disparities among Indians, particularly Alaska Natives; and (3) to
provide alternative food options for food service programs. (5)
TRADITIONAL FOOD.--(A) IN GENERAL.-The term ``traditional food'' means
food that has traditionally been prepared and consumed by an Indian
tribe. (B) INCLUSIONS.--The term ``traditional food'' includes--(i)
wild game meat; (ii) fish; (iii) seafood; (iv) marine mammals; (v)
plants; and (vi) berries. (c) PROGRAM.-The Secretary and the
Commissioner shall allow the donation to and serving of traditional
food through food service programs at public facilities and nonprofit
facilities, including facilities operated by Indian tribes and
facilities operated by tribal organizations, that primarily serve
Indians if the operator of the food service program--(1) ensures that
the food is received whole, gutted, gilled, as quarters, or as a roast,
without further processing; (2) makes a reasonable determination that--
(A) the animal was not diseased; (B) the food was butchered, dressed,
transported, and stored to prevent contamination, undesirable microbial
growth, or deterioration; and (C) the food will not cause a significant
health hazard or potential for human illness; (3) carries out any
further preparation or processing of the food at a different time or in
a different space from the preparation or processing of other food for
the applicable program to prevent cross-contamination; (4) cleans and
sanitizes food-contact surfaces of equipment and utensils after
processing the traditional food; (5) labels donated traditional food
with the name of the food; (6) stores the traditional food separately
from other food for the applicable program, including through storage
in a separate freezer or refrigerator or in a separate compartment or
shelf in the freezer or refrigerator; (7) follows Federal, State,
local, county, tribal, or other non-Federal law regarding the safe
preparation and service of food in public or nonprofit facilities; and
(8) follows other such criteria as established by the Secretary and
Commissioner.
However, there should be a change in the language under Section
4033(c)(7)
It currently reads:
(7) follows Federal, State, local, county, tribal, or other
non-Federal law regarding the safe preparation and service of
food in public or nonprofit facilities; and
But this should read:
(7) follows Federal, State, local, county, and tribal law
regarding the safe preparation and service of food in public or
nonprofit facilities; and
(Proposed provision in current Farm Bill Discussions) Title
VIII--Forestry Sec. 8624--Good Neighbor Authority
Includes Tribes as eligible under the Good Neighbor Authority; and
Adds trust land, restricted fee, land held for a Tribe's benefit, fee
land, Section 17 corporation owned land, and an Alaska Native Village
Corporation.
The Food, Conservation, and Energy Act of 2008 (Pub.L. 110-
234) (2008 FARM BILL PROVISIONS)--
Previous Farm Bill Provisions, included a section that allowed for
ecological management (subsistence) practices. It said:
SEC. 8105. FOREST PRODUCTS FOR TRADITIONAL AND CULTURAL
PURPOSES.(a) In General- Notwithstanding section 14 of the
National Forest Management Act of 1976 (16 U.S.C. 472a), the
Secretary may provide free of charge to Indian Tribes any
trees, portions of trees, or forest products from National
Forest System land for traditional and cultural purposes.
(b) Prohibition- Trees, portions of trees, or forest products
provided under subsection (a) may not be used for commercial purposes.
This should be included and supported in future versions of the
farm bill.
Recommendations
1) Include Tribal Nations in Land Management Planning on Federally
held lands
While we do have laws and policies that protect sacred sites and
protect historic places significant to the US Nation such Executive
order 13007 and the National Historic Preservation Act (NHPA), \27\
these laws are often used to designate protections to specific land
sites. Protections should and need to extend to the ecological
management (subsistence) activities that take place on these lands.
Protecting a parcel or historic land base without the ecological
management (subsistence) activities historically used to maintain its
health is analogous to watching a house deteriorate from non-use.
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\27\ E.O. 13007, 61 Fed. Reg. 26771 (May 24, 1996). E.O. 13007
refers to ``Indian Sacred Sites.'' In this report we generally use the
term ``American Indian/Alaska Native'' as a broadly inclusive term to
refer to American Indians, Alaska Natives, First Nations, First
Peoples, Native Americans, and other indigenous people. E.O. 13007
references Executive Memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments,'' which
requires federal executive agencies to consult with Tribes on a
Government-to-Government basis to the greatest extent practicable and
to the extent permitted by law on actions that affect Federally
Recognized Tribal Governments. National Historic Preservation Act, 16
U.S.C. 470 et seq. (1966), Section 101(d)(6)(B).
---------------------------------------------------------------------------
Additionally, the FLMPA gives authority to land managers to allow
closure of federal lands for cultural and ceremonial purposes, yet
there is NO inclusion of Tribal Nations in the creation of the land
management plans of these same areas. Tribal Nations should be included
in the creation of land management plans of the places that have been
and continue to be closed for the cultural and ceremonial purposes. In
the alternative, ecological management (subsistence) practices should
be included in the definition of cultural and ceremonial purposes
stated in Executive Order 13007. \28\
---------------------------------------------------------------------------
\28\ As used in Executive Order 13007, ``. . .any specific,
discrete, narrowly delineated location on Federal land that is
identified by an Indian Tribe, or Indian individual determined to be an
appropriately authoritative representative of an Indian religion, as
sacred by virtue of its established religious significance to, or
ceremonial use by, an Indian religion; provided that the Tribe or
appropriately authoritative representative of an Indian religion has
informed the agency of the existence of such a site.''
2) Provide a budget within USDA to create Tribal Land Resource
---------------------------------------------------------------------------
Management Plans
There are several federal agencies, the US Forest Service and
Bureau of Land Management that include Tribal Resource Management Plans
for consideration and implementation within Federal lands. Typically,
these Tribal Resource Management Plans are developed within the
Department Interior Bureau of Indian Affairs. However, too few
resources are allocated to developing these plans and are a limited to
certain land designations. Congress should consider allocating more
funding to developing Tribal Resource Management Plans and expanding
the reach of these plans to include all Tribal lands, regardless of
designation if the Tribe so chooses.
3) Provide guidance to National Forest managers to support
subsistence practices
The Multiple Use--Sustained Yield Act of 1960 (or MUSYA) (Public
Law 86-517) is a federal law passed by the United States Congress on
June 12, 1960. This law authorizes and directs the Secretary of
Agriculture to develop and administer the renewable resources of
timber, range, water, recreation and wildlife on the national forests
for multiple use and sustained yield of the products and services. This
is the first law to have the five major uses of national forests
contained in one law equally, with no use greater than any other. \29\
The Multiple-Use Sustained-Yield Act of 1960 (MUSYA), does not
currently include consideration of sacred sites and traditional
subsistence practices, and states ``It is the policy of the Congress
that the national forests are established and shall be administered for
outdoor recreation, range, timber, watershed, and wildlife and fish
purposes.'' 16 U.S.C. 528 (1960). This law makes it harder for
forest land managers to give weight to Indigenous subsistence practices
within those federal lands. Tribal Traditional subsistence practices
should be included as a sixth major use in determining multiple use and
sustained yield of the products and services.
---------------------------------------------------------------------------
\29\ ``Multiple-Use Sustained-Yield Act of 1960.'' Wikipedia,
Wikimedia Foundation, 19 June 2018, en.wikipedia.org/wiki/Multiple-
Use_Sustained-yield_Act_of_1960.
4) Ensure Co-management agreements duly compensate Tribal
---------------------------------------------------------------------------
communities for their participation
Federal agencies have broad power to contract with Tribal
communities, whether through grants, co-management agreements,
memorandums of understanding, cost-share agreements, Wyden agreements,
participating agreements and stewardship agreements. These agreements
should include a recognition of the important of ecological management
through subsistence practices. Tribes should be adequately compensated
for management of ecological management through subsistence practices.
Far too often, we have seen agreements between federal agencies and
Tribal Nations inadequately compensate Tribes for participation and
management which creates a hardship on Tribal Nations to fully manage
these contracts. Not only will compensation for ecological management
through subsistence recognize subsistence practices as a vital
practice, it will ensure that more funding is directed toward Tribal
execution of any agreement between Tribal Nations and federal agencies.
5) Increase Indigenous Representation on Advisory Boards
Many agencies have advisory boards authorized under the Federal
Committee Advisory Act. \30\ These advisory boards are important bodies
that allow non-federal stakeholder participation. Few of these boards
ever include Tribal Nation citizenship. Agencies should increase
outreach to Tribal Nations to include Tribal citizenship. Tribal
citizenship participation should be included (but not limited to) the
following advisory boards:
---------------------------------------------------------------------------
\30\ The Federal Advisory Committee Act (FACA) of 1972 (Public Law
92-463)
---------------------------------------------------------------------------
Rural Schools Resource Act Advisory Committee
Regional Recreational Advisory Committees (BLM)
Regional Advisory Boards for the Bureau of Land Management
National Organic Standards Board
Hunting and Shooting Sports Conservation Council(FWS)
Sport Fishing and Boating Council (FWS)
Alaska Regional Subsistence Councils (These same councils
should be created for the lower 48 and Hawaii)
National Academies on Committee on Off-Science and
Assessment
The National Park Service Advisory Board (because it's site
specific, Tribal Nations surrounding the sites should be
included)
6) Change the definition of ``sacred sites'' Executive Order 13007
to include lands significant to ecological management (subsistence)
practices.
The current definition of sacred sites in E.O. 13007 reads, ``Any
specific, discrete, narrowly delineated location on Federal land that
is identified by an Indian Tribe, or Indian individual determined to be
an appropriately authoritative representative of an Indian religion, as
sacred by virtue of its established religious significance to, or
ceremonial use by, an Indian religion; provided that the Tribe or
appropriately authoritative representative of an Indian religion has
informed the agency of the existence of such a site.
E.O. 13007 should be changed to read as follows:
Any specific, discrete, narrowly delineated location on Federal
land that is identified by an Indian Tribe, or Indian individual
determined to be an appropriately authoritative representative of an
Indian religion, as sacred by virtue of its established religious or
ecological management significance to, or ceremonial use by, an Indian
religion; provided that the Tribe or appropriately authoritative
representative of an Indian religion has informed the agency of the
existence of such a site.
Conclusion
Thank you for allowing me time to address the committee and to
advocate for the recognition of Indigenous ecological management
(subsistence) practices. There are increasing pressures on Tribal
Nations economically and socially, yet subsistence practice is one of
the few tools we have in monitoring environmental changes like climate
change and resource depletion. Rather than viewing these practices as
simplistic activities such as ``just food gathering,'' we need to
recognize these practices for the ecological management practices that
have created and ensured the health of some of our country's greatest
environmental treasures. The continued health our country's lands and
Tribal Nations is inextricably tied. To ensure their continued
existence, it's time to listen, recognize, acknowledge, and protect the
traditional food systems of Tribal Nations and the long-standing
practices that support those systems.
Na'cha,
The Chairman. Thank you.
We will begin with our five minute rounds of questioning. I
would like to start with Dr. Hardin.
The Alaska National Interest Lands Conservation Act sets
forth a broad and sweeping example of Federal management and
oversight of subsistence activities specific to the needs and
complexities in your State of Alaska.
Can you highlight some of the effective management
approaches developed pursuant to that law which might be
helpful in protecting and promoting subsistence lifestyles and
practices in tribal communities throughout the rest of the
Country?
Dr. Hardin. Thank you, Mr. Chairman, for that question.
I think we are very fortunate in Alaska to have the Alaska
National Interest Lands Conservation Act which does prioritize
subsistence on Federal public lands. I think one of the keys to
the success of that program is the bottom-up approach built
into the law and implemented through the Federal program.
In that process, the drivers of the program and the
regulations that guide the program are the users themselves.
The Federal Subsistence Board does not generate regulations and
initiate regulatory changes. Those are all driven from the
local level, from local resource managers.
Similarly, recommendations to the board are directly from
the local users themselves, with the board's understanding that
people at the local level are really the ones who have the most
knowledge about the resource and the conditions affecting the
resources.
I think that process the Federal program has implemented
and continues to develop over time is one that has broad
applicability.
The Chairman. Thank you, Doctor.
Ms. Peltola, the Federal Subsistence Management Program is
designed to elicit input on the subsistence use of fish and
wildlife within Alaska. The program includes five Federal
agencies, the Federal Subsistence Board, ten regional advisory
councils on subsistence issues and numerous partnerships from
the State of Alaska as well as other stakeholders.
In your written testimony, you referenced some of the
inefficiencies and concern about the lack of representation of
Native subsistence users on the board. To address that piece in
regard to having Alaska Natives who are subsistence users, talk
about how they should be incorporated on the board and, in
general, whether you think this type of stakeholder board is an
appropriate method for managing or overseeing subsistence use?
Ms. Peltola. Thank you, Mr. Chairman.
I do think this type of board is effective for overseeing
management of subsistence. I do believe, though, the board does
not have parity among its voting members. There are five agency
regional department heads, one from the Fish and Wildlife
Service, one from the Bureau of Indian Affairs, one from Parks,
and one from BLM.
Then there are three public members, one of whom is the
Chair who does not have an active voting membership. In effect,
there are two public members. In order for them to get on the
Federal Subsistence Board, they have to have an in-depth
knowledge of subsistence activities as well as regulations.
That same standard is not applied to the agency
representative and the agency voting members, many of whom are
very new to Alaska and do not stay in their posts longer than
three to five years. Many of them also have alternates who sit
in for them when they cannot make the meeting.
In my opinion, the way to make the Federal Subsistence
Board more effective for actual subsistence users is to have at
least as many public members as there are agency
representatives. In my opinion, preferably, there would be one
person from every region of the State. I see Alaska as having
six different, distinct regions.
Having six public members or even five public members or
maybe five public members, the chairman and then five agency
members, I think would provide more equality, effectiveness and
efficiency.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Chairman Brown, in regard to the wild horse and burro
management, BLM indicated that roughly their number for wild
horses and burros on the 26.9 million acres of BLM-managed
lands, their recommended management numbers would be to have
about 26,000 to 27,000 animals but they estimate they have a
population of 83,000 at this point.
Talk to me about some of the effects and recommendations
you have in regard to those numbers.
Mr. Brown. Thank you, Mr. Chairman.
Those numbers seem likely. On the Wind River Reservation in
2012, we did a couple of studies where we saw over 2,000
animals. It is widely known that wild horses and feral horses
breed at the rate of 20 percent per year. Every five years, the
herd of horses doubles in size.
In 2012, we did the study and are estimating, through
science and observations, the horses on the reservation number
between 6,000 and 8,000 animals. A lot of what is happening on
the reservation is we are surrounded by many public lands and
feral horses on those public lands often migrate onto the
reservation. The numbers we are seeing on the reservation still
find their way to us. They are decimating our grasslands,
displacing our elk, and displacing our mule deer, making it
more difficult for tribal members to rely on traditional
subsistence.
We recommend that money be diverted to addressing the
removal of wild horses as well as returning the landscape to
its former state and to addressing Federal legislation that
creates a suppressed marketplace for horses and encourages or
makes it easier for domestic horses to be abandoned on public
or reservation lands.
The Chairman. Thank you.
Senator Udall.
Senator Udall. Thank you, Mr. Chairman.
It is no secret the Trump Administration does not believe
in climate change but Indian Country does not have the luxury
of putting its head in the sand. In Hawaii, for example, sea
level rise, salt water intrusion and long periods of drought
threaten the cultivation of taro and other traditional crops.
Communities across Indian Country are fighting drought,
wildfires, changing habitats, decreased biodiversity and the
list goes on and on and on.
Dr. Hardin, what is the Office of Subsistence Management
doing to make sure the Federal Government is providing Alaska
Native villages and Indian Tribes with the tools to address
climate change impacts to subsistence?
Dr. Hardin. Thank you, Senator.
The Office of Subsistence Management is a mere advisor to
the Federal Subsistence Board and regional advisory councils.
First of all, I would emphasize that. However, we work very
closely with all of the local users.
One of the very valuable methods and approaches we have is
we coordinate and manage a program called the Fisheries
Resource Monitoring Program. Through that program, we find,
through a competitive proposal process, collaborative fisheries
research throughout the State of Alaska that includes research
to look at the stock status and trends of fish stocks,
traditional ecological knowledge studies to better understand
what is happening in communities and the important
relationships between these resources and local communities and
harvest monitoring.
Through these research projects, we track the status of the
available stocks. In all of our analyses, we also utilize the
best available data that we have to analyze what is causing
declines in important subsistence resources. We will continue
to do so as the information becomes available.
Of course traditional ecological knowledge is really key to
understanding those over time.
Senator Udall. As we have heard from each of the tribal
witnesses today, subsistence practices are vital to Native
communities across the Country. However, Dr. Hardin, it is my
understanding the U.S. Fish and Wildlife Service primarily
supports tribal subsistence through the Office of Subsistence
Management which, in turn, supports the Federal Subsistence
Management Program established to serve rural and tribal
Alaskan residents.
Does the Fish and Wildlife Service support tribal
subsistence practices in the lower 48 and should it?
Dr. Hardin. Thank you, Senator.
Again, I work at the Office of Subsistence Management. Our
charge is to implement Title VIII of ANILCA. Although we are
administratively housed in the Fish and Wildlife Service, we
are mandated to serve all of the agencies represented on the
Federal Subsistence Board, as well as the public members.
I am really not able to speak to the individual agency
actions in the lower 48.
Senator Udall. Maybe you can help me and the record on
that, people in their department answering that question a
little more thoroughly?
Dr. Hardin. Absolutely, sir.
Senator Udall. Thank you.
Chairman Brown and Ms. Romero-Briones, is the Federal
Government, the Department of the Interior, and the U.S. Fish
and Wildlife Service providing enough resources to support
tribal subsistence practices?
Mr. Brown. Thank you, Senator.
I think the Federal Government could do more to promote
tribal traditional subsistence practices. I think part of it
begins with consulting with tribes. Many times Federal agencies
develop policies regarding wildlife management or ecosystem
management without consultation with tribes.
I think tribal traditional knowledge is key in a lot of
these discussions. Tribes have extensive knowledge on how their
environment has operated in order to promote tribal traditional
subsistence.
I think consulting with tribes is the first step and
devoting more resources is another big step.
Senator Udall. Director Romero-Briones.
Ms. Romero-Briones. Thank you, Senator.
I would echo Chairman Brown's comments. At First Nations
Development Institute, we also have a grant program that was
created largely to fill the hole that the Federal agencies have
in Indian Country.
We have awarded over 307 grants to food and agriculture
projects. Three-fourths of those are to support subsistence and
traditional lifestyles. That pales to the $49 million ask that
we are not able to fulfill.
There is definitely a need for more financial resources to
support not only communities trying to document their
practices, but also to create networks within Federal agencies
to actually get the conversations and a seat at the table for
the protection of these practices.
Senator Udall. Thank you very much.
The Chairman. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Mary, thank you again for coming all the way as you have.
Mr. Chairman, if I was really thinking, I would have
brought the jar of fish that Mary Sattler Peltola provided me
in my office today because that would have given us all the get
up and go you would need and reminded us all of the
significance of the subsistence fishing that goes on. I
understand you just had an opener out there in the YK area and
people were happy to get out on the water.
I know when we talk about the agreement we have between the
Kuskokwim Inter-Tribal Fish Commission and the Department of
the Interior, it is probably best described as a cooperative
agreement.
Can you help educate me on the difference between a
cooperative agreement and co-management and the opportunities
to the region if the Commission was involved in a co-management
agreement as you described with this proposed pilot you
mentioned earlier in your opening statement?
Ms. Peltola. Thank you, Senator Murkowski.
We have had two openings. Just for perspective, when I was
growing up, subsistence fishing was unrestricted. We could go
out any time we wanted as long as it was not in that buffer
right before the commercial opening. We no longer have a
commercial fishery for any of the species of salmon on our
river.
In past years, the average harvest was about 96,000 Chinook
salmon. Last year and this year, we estimate that the harvest
will be around 16,000. The highest amount of harvest was
110,000 Chinook salmon. We are all the way down to 16,000. That
has created a lot of anxiety and unhappiness.
The Fish Commission has done a very good job, if I can say
so, in helping explain the issue of there being a lack of
Chinook statewide and that our river is not the only river that
is experiencing restrictions. Some rivers are experiencing full
closure.
My belief is we should not be called to join the table and
become managers only in times of crisis when things are bad. My
preference is that we be asked to participate and be managers
even in times of abundance with all our species.
Senator Murkowski. Especially in times of abundance so you
can ensure that abundance continues, that sustainability.
Ms. Peltola. Sustainability. That is my hope, that the
Inter-Tribal Fish Commission can be a manager all the time, not
just when we are facing this grim reality.
Cooperative management, cooperative agreements are usually
discretionary partnerships. Those are not legally binding. The
Kuskokwim Inter-Tribal Fish Commission is asking for a co-
management structure where there is a specific legal basis,
such as a treaty or statute, in this case, which would require
the delegation of some aspect of Federal decision-making
authority to tribes, in this case, specifically the 33 tribes
that live along the Kuskokwim River.
Senator Murkowski. It is that legal binding aspect of this
that makes the difference in ensuring there really is this seat
at the table, this level of participation.
With regard to your suggestion that you move OSM out from
Fish and Wildlife so that it can operate independently, making
sure OSM is free from levels of conflict is important, I think.
Are there functions of the Federal Subsistence Board and OSM
that could perhaps be compacted or contracted right away?
Ms. Peltola. I am not 100 percent sure but I do believe
there are opportunities to compact and contract.
Senator Murkowski. Is that something we are looking to
explore?
Ms. Peltola. Yes, absolutely.
Senator Murkowski. Do we need to do more on this end to
encourage our agencies, the Federal Subsistence Board and OSM,
to work more directly with those of you involved on the ground
to pursue something like that?
Ms. Peltola. We have a very good relationship with the
Office of Subsistence Management. In my opinion, there is a
difference within the culture of OSM and the culture of Fish
and Wildlife.
In my opinion, there is a very strong desire for the Fish
and Wildlife Service to work in concert or collaboration with
great deference to the State of Alaska which does not have a
rural subsistence priority.
OSM's mission, the way I have seen it over the last two
years, is they are very focused on making sure we are in
compliance with ANILCA, which I have not seen borne out at the
refuge level.
Senator Murkowski. All I know is that when I am out there
on the river, when I am out there in the fish camps, people are
not talking about compliance with some Federal laws. They are
wondering how they are going to be able to feed their families.
Ms. Peltola. Yes.
Senator Murkowski. And fair allocation of a fishery, not
just for the resource that is there today, but going to be
there next summer, the summer thereafter and thereafter.
Ms. Peltola. That is exactly right, Senator. I have not met
anyone whose primary interest is jurisdictional boundaries or
jurisdictional oversight.
Right now, on our river, we have a very bifurcated system.
On the 12th when we had a chance to fish, the whole river,
State and Federal waters, were open. On the 16th, only Federal
waters were open. On the 18th, only State waters were open.
This is very confusing when you hear an announcement that
there is a 24-hour chance to fish. You do not know if that is
in State or Federal waters. I believe the Fish Commission can
really address that issue.
Senator Murkowski. The fish do not care whether it is
Federal or State.
Mr. Chairman, thank you so much.
Thank you for being here.
Senator Udall. [Presiding.] Thank you.
Senator Smith.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thank you, Vice Chairman Udall.
To our panelists, thank you all so much for being here
today. It is very interesting to have this conversation.
Senator Murkowski, if I had been thinking, I would have
brought wild rice and walleye to this hearing. We could have
lunch which would have been great.
As I listened to this conversation about subsistence and
traditional practices, I think a lot about the work we are in
the middle of right now with the farm bill. With Senator
Heitkamp and I serving on both the Indian Affairs Committee as
well as on the Agriculture Committee, I think we are the two
who have overlap on these committees.
I have been looking for areas where the opportunities and
synergies are with those two committees. In Minnesota, I
created a farm bill working group to bring together the issues
and views from farmers in rural communities and also the
tribes, along with those who care a lot about energy issues,
nutrition and conservation.
That was extremely helpful to be able to bring all those
views to the discussion about the farm bill. Certainly the farm
bill touches the lives of every single American and certainly
the lives of everyone who lives in tribal communities.
In the farm bill, we were able to include some of the
issues brought forth as being important. We did this with the
help of Senator Hoeven, Senator Udall and Senator Heitkamp,
including strategies to help minority and disadvantaged
farmers.
In Minnesota, that often includes helping Native farmers
who are just getting going and also looking at issues related
to expanding markets. In Minnesota, that is extending wild rice
markets but I am sure it runs the gamut all across the Country.
There is also the issue of especially fighting tribal food
fraud which is a problem.
One thing that came up quite a bit with the Native Farm
Bill Coalition was recommending we look at and understand how
to do a better job of expanding consultation with tribes on
conservation issues. I would like to touch on that a bit
because it seems to relate a lot to your comments today.
I want to go to Ms. Romero-Briones for this, but I would be
interested in hearing everyone's comments.
What should the Federal Government be doing to ensure that
tribes have the appropriate jurisdiction under the Natural
Resources Conservation Service and that Indian producers can
engage in the kind of conservation work they desire that aligns
with traditional practices? What can we be doing better there?
Ms. Romero-Briones. Thank you for the question.
First, there is an underlying issue about what subsistence
means both to lawmakers and those working in agriculture. Often
they are seen as separate issues. Like many of the panelists
said today subsistence is actually ecological management and
should be considered forms of sustainable agriculture which
would put it in the purview of the farm bill.
With the conservation programs, particularly with NRCS, one
of the limitations is the recognition of groups of tribal
farmers and tribal communities as a collective of farmers as
opposed to individual farmers with specified farm lands, which
is one of the limitations to participating in many of the
conservation programs.
I think there are several provisions the Native Farm Bill
Coalition has put forward like those in EQUIP that recognize a
collection of farmers as opposed to single farmers. Those are
great starts in increasing tribal participation in these
programs. That is a wonderful insight.
Thank you.
Senator Smith. That is great. Does anyone else wish to
comment on that?
Mr. Brown. Thank you, Senator.
The farm bill serves as an excellent example of how
valuable tribal input is. I think tribes are well prepared and
well equipped to be able to have a common and comprehensive
outlook on the things the farm bill addresses.
For example, the tribes on the Wind River own minerals, are
stewards of the lands, and also owners of the lands. When we do
mineral extraction, we also have to be aware of environmental
protections.
We have Native ranchers with whom we lease lands but also
have wildlife that is traditional and which we want to protect.
Native tribes have been able for centuries to reconcile those
different viewpoints among themselves.
I think that viewpoint is valuable when you are crafting
such a massive bill like the farm bill. I appreciate your
outreach to the tribes through the Native Farm Bill Coalition
in which the Northern Arapaho was engaged.
I think that input will be critical moving forward when
talking about sustaining subsistence as well as encouraging
agricultural management as well.
Senator Smith. I look forward to continuing that
conversation and that work. In many ways, this is a strong farm
bill but it is also certainly not a revolutionary bill. I
appreciate there are many more opportunities to work together
on this.
Thank you, Mr. Chair.
The Chairman. [Presiding.] Vice Chairman Udall.
Senator Udall. Thank you, Mr. Chairman.
Director Romero-Briones, you testified Native peoples hold
the capacity and ingenuity to ensure the sustainable economic,
spiritual and cultural well being of their communities if given
the right tools.
You go on to say this belief largely stems from
longstanding food system management. I could not agree with you
more. I have repeatedly said decisions made by tribes for
tribes produce the best results.
That is why I have introduced legislation to allow tribes
to manage their own child nutrition programs and joined the
Chairman in legislation to allow tribes to 638 their own food
distribution and forestry functions on adjacent forest lands.
We are working to provide those tools.
What can we do to help push the envelope on food
sovereignty? Do you feel the 638 model is best or are there
other solutions?
Ms. Romero-Briones. The 638 model would revolutionize, and
I use that word with a lot of reservation, how Federal feeding
programs support Native communities. In addition, if you take
that in conjunction with the traditional foods provision in the
farm bill, you really have a good foundation for supporting
subsistence practices and traditional lifestyles.
The caveat is that right now the USDA and the FDA are
concerned about traditional foods entering these Federal
programs because of food safety concerns. I think one further
step would be trying to mitigate and insert ourselves into that
conversation now.
Senator Udall. An important tool for tribes to have direct
involvement in their ecological management is through the BIA's
integrated resource management planning process. Unfortunately,
the process for tribes to create an IRMP is overly long and
excessively technical and can take up to five years for a tribe
to simply collect and compile its data.
Due to the effects of climate change, we are seeing more
severe and unpredictable weather events that can have traumatic
effects on the environment and subsistence activities.
Director Romero-Briones, how can tribes and the BIA make
the IRMP process more efficient and adaptable to the effects of
climate change?
Ms. Romero-Briones. Again, thank you for that comment
because I think you hit on the most important. Those definitely
need to come out of that agency much faster. I am not privy to
the barriers causing the delay. Perhaps it is staffing or
perhaps the way a tribe has to approach the BIA to get one
started, but I would love to see those move faster.
Senator Udall. Are there any comments from the other
witnesses on what I just asked? Chairman Brown.
Mr. Brown. I would like to emphasize that it would be
incredibly beneficial to tribes to be able to 638 programs like
food distribution which is at the core of our issues on the
Wind River Reservation and I am sure across Indian Country.
I think the intent of the 638 Self Determination Act was
really that tribes know how to best take care of their
communities, having the ability to do that. I echo Director
Romero-Briones' statements. That would revolutionize the way
that we live.
Senator Udall. Thank you.
Dr. Hardin, as I close, I just want to emphasize again the
climate change front and how serious is the situation the
tribes face. In northern New Mexico in one particular
circumstance, there is a small canyon that Santa Clara of
Pueblo has. It has been wiped out by forest fires and floods.
It was a beautiful area where there were three ponds and people
could fish. Now it is ground zero for climate change.
I do not care what you call it or if you want to call it
adaptation. The issue is there is money there to do these kinds
of things. I think we are being very shortsighted in saying
because we call it something, we are not going to use that
money at all.
I hope you take back that message to Interior because I
think these tribal communities are right at ground zero, in the
bulls-eye, when it comes to the impacts of climate change.
Thank you very much, Mr. Chairman. I really appreciate your
focusing on this issue.
The Chairman. Certainly, Vice Chairman Udall. Thank you.
With that, again, I want to thank our witnesses.
If there are no more questions, members may submit follow-
up questions for the record. The hearing record will be open
for two weeks.
With that, again, thank you.
The hearing is concluded.
[Whereupon, at 3:44 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Kevin Bartley, Rural Resident of Alaska
Thank you for the opportunity to share my experiences with and
recommendations for improving the Federal Subsistence Management
Program. Effective and responsible management or care of our fish,
wildlife, lands, and waters in Alaska requires meaningful
communications and collaborations between federal, state, tribal, and
public partners. Our children's future depends on our commitment to
work together.
A Way of Life
Rural residents and residents of non-subsistence use areas harvest
33.8 million pounds of fish and game annually in Alaska. \1\ There are
vast differences in the ways in which people understand the term
subsistence. Many urban peoples unfamiliar with Alaska understand
subsistence in the context of the definition to subsist or acquire the
minimum needs for survival. Some agency managers and scientists in
Alaska understand the term subsistence to refer to customary and
traditional harvest practices. Tribal and rural residents of Alaska
understand subsistence as our culture; our way of life. Subsistence for
Alaska Native Peoples and rural residents is associated with tastes,
smells, and feelings. It is relationships and togetherness. It is
community. It is life. When mismanagement and regulation deprive us
from practicing our cultures or ways of life, we lose pieces of who we
are. These hardships especially affect our children and elders.
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\1\ Alaska Department of Fish and Game. Division of Subsistence.
Subsistence in Alaska: A Year 2014 Update. By James A. Fall. Anchorage,
Alaska: ADF&G, 2016. 1-4.
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Background
The 1971 Alaska Native Claims Settlement Act (ANCSA) extinguished
all indigenous land claims in exchange for 44 million acres and 962.5
million dollars. \2\ Four hundred million was distributed over 11 years
among 13 Alaska Native Regional Corporations. The remaining 562.5
million was distributed following the completion of the Trans-Alaska
Pipeline. One unforeseen consequence of ANCSA included the
extinguishment of aboriginal hunting and fishing rights. To resolve
this concern among Alaska Native Peoples, a 1971 House Conference Joint
Statement declared:
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\2\ Alaska Native Claims Settlement Act, 43 U.S. Code Chapter 33
(1971)
``All Native interests in subsistence resource lands can and
will be protected by the Secretary through the exercise of his
existing withdrawal authority. The Secretary could, for
example, withdraw appropriate lands and classify them in a
manner which would protect Native subsistence needs and
requirements by closing appropriate lands to entry by non-
residents.The Conference Committee expects both the Secretary
and the State to take any action necessary to protect the
subsistence needs of the Natives''. \3\
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\3\ Joint Statement. In 2247 P.L. 92-746, Alaska Native Claims
Settlement Act. Proceedings of House Republican Conference Report. Vol.
746. Washington, D.C.: 92ST Congress, 1971.
The absence of a self-governance option or protections for Alaska
Native hunting, fishing, and gathering rights remain unfinished
business. \4\ Congress broke their promise to protect Alaska Native
Peoples hunting and fishing rights in the 1980 Alaska National
Interests Lands Conservation Act (ANILCA). Instead, Congress
strengthened hunting and fishing privileges for all rural residents in
Alaska, exclaiming to do otherwise would constitute a discriminatory
policy.
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\4\ Anderson, Robert. Alaska Native Rights, Statehood, and
Unfinished Business. Tulsa Law Review 43, no. 17 (2007): 17-42.
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ANILCA Title VIII did take several important steps to ensure that
the fish, wildlife, and people of Alaska remain healthy. Rural
residents were provided a meaningful role in the management of fish and
wildlife. Non-wasteful subsistence uses of fish and wildlife by
federally qualified subsistence users were prioritized over all other
consumptive uses. A Federal Subsistence Board (FSB) and regional
advisory councils were established to develop hunting and fishing
regulations on federal lands. A duty and responsibility was created to
ensure the continued viability of fish and wildlife and opportunity for
subsistence uses. Finally, tools were identified to restrict the take
of fish and wildlife to federally qualified subsistence users only and
among these same users when necessary.
Agreements with Tribes
Federal agencies often refer to consultation as a unique and
special privilege that tribes enjoy as sovereign nations. The term
consult means to seek information or advice. This inadequately
describes the relationship between tribes and the U.S. Government.
Federally recognized tribes possess the right to negotiate government-
to-government with the U.S. Government under the 1934 Indian
Reorganization Act (IRA). The word negotiate means to arrange for and
bring about through discussion and compromise. A negotiating role is
more closely synonymous with a decisionmaking role than an advisory
role. Any agreements with sovereign federally recognized tribes must
honor tribes' right to negotiate towards a mutually beneficial
compromise.
Amending the ANILCA
Congress declared, ``that an administrative structure be
established for the purpose of enabling rural residents. . .to have a
meaningful role in the management of fish and wildlife and of
subsistence uses on the public lands in Alaska. \5\ Two challenges
remain in regards to ANILCA Section 801 (5). First, the still undefined
term meaningful role is meaningless to Alaska Native Peoples and rural
residents. Second, tribal and rural residents' involvement on the
regional advisory councils and the FSB is limited to subsistence uses
of fish and wildlife only. Twenty-one Western Alaskans define the term
meaningful role as the capacity to work together and share equal
decisionmaking authority. \6\ Tribal and rural residents I work with
across Alaska also share similar understandings of what a meaningful
role is. Significant amendments will be necessary to improve the
Federal Subsistence Management Program (FSMP) if a bottom up approach
is desired as suggested by OSM Policy Coordinator Jennifer Hardin.
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\5\ Alaska National Interests Lands Conservation Act, Public Law
96-487 (1980).
\6\ Bartley, Kevin, and Jeffrey J. Brooks. Understanding and
Improving Collaborative Management of Fish and Wildlife in Western
Alaska. Final Report. Office of Subsistence Management, U.S. Fish and
Wildlife Service, 2014. 1-117.
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I echo and applaud Mary Sattler Peltola's testimony and
recommendation to remove the Office of Subsistence Management (OSM)
from under the U.S. Fish and Wildlife Service (USFWS). \7\ Housing the
OSM beneath the USFWS continues to present clear ethical concerns. How
can the OSM adequately serve the rural residents of Alaska while also
charged with the task of serving each of the five federal agencies that
makeup the FSB? Many Alaskans observe the strong influence that
advocacy groups like the Sierra Club, Defenders of Wildlife, and the
Alaska Outdoor Council have on these federal agencies and the State of
Alaska. The missions of these five agencies and the many advocacy
groups who support them often do not intertwine with tribes' and rural
residents' fish and wildlife management goals. It is inappropriate to
charge the OSM to serve in such a role mired by conflicts of interest.
Nothing makes this point clearer than OSM Policy Coordinator Jennifer
Hardin's testimony that, ``the [Federal Subsistence Management] Program
will continue to seek balance between the harvest needs of rural
subsistence users, conservation mandates of land management agencies,
and the diverse values of.the many user groups seeking opportunities to
hunt and fish on Federal public lands''. Balancing the conservation
mandates of the federal agencies with the diverse values of many user
groups seeking to hunt and fish on federal public lands is not the
intent or purpose of ANILCA Title VIII.
---------------------------------------------------------------------------
\7\ U.S. Senate, Committee on Indian Affairs, Oversight Hearing on
``Keep What You Catch: Promoting Traditional Subsistence Activities in
Native Communities.'' June 20, 2018.
---------------------------------------------------------------------------
I also support Mary Sattler Peltola's recommendation to restructure
the FSB. \8\ Rural residents must have equal representation and
decisionmaking authority on the FSB to possess a truly meaningful role.
The FSB includes five federal agency directors and three rural
residents. Many FSB members representing the federal agencies begin
their service the same year they arrive to Alaska and most rarely serve
beyond five years. Failing to require all FSB Members to possess
personal knowledge of local conditions presents a scary reality for
many Alaskans. A single vote from a FSB member unknowledgeable about
our unique ecospheres, fish, wildlife, and cultures could mean the
difference between whether our children eat or go hungry. Observing the
food prices at any rural grocery store in Alaska will drive home the
seriousness of this point. Most tribal and rural residents prefer wild
caught foods and overwhelmingly attest to the physical, mental, and
spiritual importance of harvesting, storing, sharing, and eating them.
---------------------------------------------------------------------------
\8\ U.S. Senate, June 20, 2018.
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Figure 1 demonstrates the rising percentage of Alaska Native
Peoples living in non-subsistence areas of Alaska. The percentage of
Alaska Native Peoples living in non-subsistence areas of Alaska in 1980
was 27.7 percent. \9\ An average of 52.4 percent of Alaska Native
Peoples were living in non-subsistence areas of Alaska during the
period between 2012 and 2016. \10\ Prior to 2000, census polls asked
only whether people were Alaska Native. Census polling in 2000 began
asking whether people identified themselves as Alaska Native alone or
in combination with other racial descents. A rising percentage of
Alaska Native Peoples living in non-subsistence areas of Alaska
presents significant implications for and further substantiates the
need to amend the ANILCA. ANILCA Title VIII can no longer deliver on
the promise and intent to protect Alaska Native hunting, fishing, and
gathering rights with more than 52.4 percent of Alaska Native peoples
now living in non-subsistence areas of Alaska.
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\9\ Fall, James A. ``Governance Systems for Subsistence in
Alaska''. Proceedings of Western Division, American Fisheries Society,
Anchorage, Alaska. 2018.
\10\ Fall, James A. ``Governance Systems for Subsistence in
Alaska''. 2018.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Congress should consider the following amendments to fulfill the
intent and promises associated with the ANILCA. Insert the words
``Alaska Native Peoples and'' in front of each use of the words ``rural
residents''. Create a truly meaningful and equal decisionmaking role
for Alaska Native Peoples and rural residents in the management of fish
and wildlife. Revise tribal consultation procedures to ensure tribes
possess the negotiating role they are due under the IRA with an
obligation from federal partners to seek and achieve mutually
beneficial compromises. Expand Alaska Native Peoples and rural
residents' involvement to include equal representation on all boards
and committees deciding on federal undertakings that may affect the
health of lands, waters, fish, and wildlife in Alaska. This should
include equal representation on the North Pacific Fisheries Management
Board. Developing an outreach and scoping plan to gather additional
insights from each tribe and rural community in Alaska will increase
the potential for a meaningful, pragmatic, and lasting amendment to the
ANILCA.
Improving Relationships and Understanding
Communication challenges and partners' lack of understanding of
each other's cultures, worldviews, and management approaches are
significant challenges to meaningful and effective collaborative
management of fish and wildlife in Alaska. \11\ We can overcome this
challenge by investing in and sharing informal interactions with each
other. Frequent communications and collaborations between partners is
critical. \12\ Productive negotiations are linked to how well
stakeholders know and understand each other. Strong relationships are
the product of shared experiences.
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\11\ Bartley, Kevin A. They Don't Know How We Live: Understanding
Collaborative Management in Western Alaska. Master's thesis, University
of Alaska Anchorage, 2014. 1-423.
\12\ Jacobs, Melanie, and Jeffrey J. Brooks. "Alaska Natives and
Conservation Planning: A Recipe for Meaningful Participation." Native
Studies Review 20, no. 2 (2011): 91-135.
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Urban-based training seminars are not enough to educate FSB Members
about Alaska. Funding to develop and implement a program that brings
FSB Members and rural residents together to engage in informal
activities such as hunting and fishing will strengthen their
understandings of and relationships with each other. Sharing informal
experiences with those we do not know in settings that we are
unfamiliar with are often uncomfortable. Such experiences are
opportunities to grow because we tend to listen more. Conversations and
collaborations help us to reflect, see, learn, process, and act. \13\
Truly listening to each other will enable us to stretch our
understandings and create new and promising realities together. \14\
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\13\ Scharmer, Otto. The Essentials of Theory U: Leading from the
Future as It Emerges. 2nd. ed. San Francisco, CA: Berrett-Koehler
Publishers, 2016.
\14\ Kahane, Adam. Solving Tough Problems: An Open Way of Talking,
Listening, and Creating New Realities. San Francisco, CA: Berrett-
Koehler Publishers, 2007.
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Climate Change
``It's no secret the Trump Administration does not believe in
climate change, but Indian Country doesn't have the luxury to put its
head in the sand''. \15\ Senator Udall's words hit home to those of us
living in rural Alaska. Failing to respond to our changing climate is
not an option. Global famine and war will surely follow if we do not
invest in sustainable futures, technologies, and infrastructure.
Funding to better understand, plan for, and respond to climate change
is critical to the health of all Alaskans.
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\15\ U.S. Senate, June 20, 2018.
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Climate changes in Alaska and across the Arctic are outpacing
changes observed across the globe. \16\ Land and sea ice loss is
accelerating. Anthropogenic or human derived forces are linked to and
exacerbating ocean acidification, increasing river runoff, warming
permafrost, and rising sea levels. Annual average Arctic sea ice is
decreasing 3.5 percent and 4.1 percent per decade since 1980. \17\
There is high confidence that human activities are contributing to more
than half of the observed rise in Arctic surface temperatures and
September sea ice decline since 1979. \18\ Warming permafrost poses a
significant and potentially uncontrollable release of carbon. \19\
Coastal permafrost is warming faster than interior regions in northern
Alaska and northwest Canada. Ground temperatures rose from 16.5oF to
21.5 oF in Deadhorse, Alaska between 1977 and 2015. \20\
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\16\ USGCRP, Climate Science Special Report: Fourth National
Climate Assessment, Volume I [Wuebbles, D.J., D.W. Fahey, K.A. Hibbard,
D.J. Dokken, B.C. Stewart, and T.K. Maycock (eds.)]. U.S. Global Change
Research Program, Washington, DC, USA, 2017. 1-669. doi:10.7930/
JOJ964J6.
\17\ USGCRP, Climate Science Report, 446.
\18\ USGCRP, Climate Science Report, 443.
\19\ Tarnocai, et al. Soil Organic Carbon Pools in the Northern
Circumpolar Permafrost Region. Global Biogeochemical Cycles 23, no.2
(2009): 1-11.
\20\ Cable, et al. Scaling-up Permafrost Thermal Measurements in
Western Alaska Using an Ecotype Approach. The Cryosphere 10 (2016):
2517-2532.
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We are observing significant declines in salmon populations across
Alaska. Most Alaska Native and rural residents share a deep
relationship with wild salmon. Salmon declines are affecting the
physical, mental, and spiritual health of Alaska Native and rural
residents. Commercial fishing harvest accounted for 3.667 billion
pounds in 2014. \21\ This number represents 98.5 percent of all fish
and game harvested among user groups in pounds. It is clear that
commercial fishing represents single most significant human impact on
fisheries and those dependent on fish living across rural Alaska. How
commercial fishing operations in Alaska directly and indirectly affect
the continued viability of fish and opportunity for subsistence fishing
warrants further exploration.
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\21\ Alaska Department of Fish and Game, Subsistence in Alaska: A
Year 2014 Update, 2.
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Ensuring that continual hard funding exists to support the upstart
and operations of intertribal resource commissions will help to address
the many resource challenges we are experiencing throughout rural
Alaska. The recently established Ahtna Intertribal Resource Commission
and Yukon and Kuskokwim Inter-tribal Fish Commissions are improving
partnerships and expanding opportunities between tribes and federal
land and resource management agencies. Making these funds available
through the Bureau of Indian Affairs with the option for compacting and
contracting will present a more flexible, pragmatic, and effective
fiscal pathway.
I hope these insights and recommendations lead to meaningful
negotiations and actions in the near future. Forming a Statewide
Committee to address fish and wildlife management and climate change in
Alaska would be an excellent next step. Thank you for your time in
reviewing this testimony.
______
Prepared Statement of Karen Linnell, Executive Director, Ahtna
Intertribal Resource Commission
Thank you for the opportunity to share our experiences with and
recommendations for improving the Federal Subsistence Management
Program. Effective and responsible stewardship of our fish, wildlife,
lands, and waters in Alaska requires dialogue and collaborations
between federal, state, tribal, and public partners. Future generations
depend on our commitment to work together.
The Ahtna Intertribal Resource Commission (AITRC) was established
in 2011 as part of a long-standing desire of Ahtna tribes and
organizations to conserve, manage, and develop the fish, wildlife, and
plant resources of the Ahtna region according to culturally-relevant
values. AITRC's core purpose is to exercise tribal sovereignty and
self-determination to promote traditional resource stewardship on the
ancestral lands of the Ahtna people.
A Memorandum of Agreement was adopted on November 29, 2016, between
the U.S. Department of the Interior and the AITRC to promote co-
management with Ahtna tribes. This agreement formalizes our wildlife
management partnership and seeks to resolve the disappearance of a
reasonable opportunity to practice our customary and traditional moose
and caribou hunting patterns. We agreed:
The Department will immediately commence rulemaking to allow
the issuance of AITRC-managed community harvest permit(s).Such
permit(s) may be for the benefit of the AITRC's member tribal
communities only [and]. . .will allow AITRC to establish
harvest limits, quotas, season dates, and methods and means.
\1\
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\1\ MOA: Memorandum of Agreement between United States Department
of the Interior and Ahtna Intertribal Resource Commission. Anchorage:
Department of the Interior, 2016.
Increasing participation in Community Subsistence Hunts managed by
the State of Alaska drove us to begin negotiations with the DOI on this
MOA. Challenges stemming from this hunt continue to intensify. Roadside
pull-offs are plugged with trucks, trailers, and four wheelers. Some
report that they are unable to bring their children hunting due to the
growing prevalence of unsafe hunting practices observed in the Copper
Basin. Once quiet and peaceful places to teach our children are
becoming noisy and trash filled areas. There is nothing respectful or
customary and traditional about the intensive hunting observed on our
ancestral homelands today.
Ahtna Elder Roy S Ewan spoke to a group of young people days before
his passing. Roy's message focused on the unfinished business
pertaining to the Alaska Native Claims Settlement Act. He recalled the
promise by federal and state congressional leaders during the House
Conference Committee. On the protection of Alaska Native hunting and
fishing rights, the House Conference Joint Statement declared:
The Conference Committee. . .believes that all Native
interests in subsistence resource lands can and will be
protected by the Secretary through the exercise of his existing
withdrawal authority. . ..The Conference Committee expects both
the Secretary and the State to take any action necessary to
protect the subsistence needs of the Natives''. \2\
---------------------------------------------------------------------------
\2\ Joint Statement.'' In 2247 P.L. 92-746, Alaska Native Claims
Settlement Act. Proceedings of House Republican Conference Report. Vol.
746. Washington, D.C.: 92ST Congress, 1971.
Many Alaska Native Peoples believe the promise to protect their
subsistence needs has been largely unrealized. We view this MOA as an
opportunity for Ahtna Peoples to exercise our right to negotiate as
sovereign Nations with the United States Government to protect our
subsistence needs, culture, and ways of life.
Since the signing of the MOA, we have been met with delays and
resistance to the implementation of our MOA. We believe that this is
because the Office of Subsistence Management is housed within the US
Fish and Wildlife (USFWS). AITRC agrees and endorses Mary Sattler
Peltola's testimony and recommendation to remove the Office of
Subsistence Management (OSM) from under the U.S. Fish and Wildlife
Service. \3\ Housing the OSM beneath the USFWS continues to present
clear ethical concerns. How can the OSM adequately serve the rural
residents of Alaska while also charged with the task of serving each of
the five federal agencies that makeup the FSB? Moving the Office of
Subsistence Management out of the US Fish & Wildlife Service would be a
move to strengthen and lend autonomy to the OSM.
---------------------------------------------------------------------------
\3\ U.S. Senate, Committee on Indian Affairs, Oversight Hearing on
``Keep What You Catch: Promoting Traditional Subsistence Activities in
Native Communities''. June 20, 2018.
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We would also like to see tribal representation at the Interagency
Staff Committee meetings to represent tribal interests to the FSB.
Currently, proposals are submitted to the Federal Subsistence Board are
reviewed by an Interagency Staff Committee (ISC). The ISC makes
comments and recommends whether or not the proposals go on a consent or
non-consent agenda. The opportunity to participate in all future ISC
meetings would provide us with a more meaningful role in the Federal
Subsistence Management Program. AITRC defines a meaningful role as a
decisionmaking role engaged in all levels of management, including
planning, negotiation, and implementation. Input at this table will
undoubtedly improve the recommendations before the Board. Participating
in ISC meetings will also present opportunities to learn about each
other's concerns and discuss pragmatic and mutually beneficial
solutions. Certainly, there could be no harm from working together; a
goal all stakeholders seem to share.
Rural FSB members must meet a criteria of personal knowledge of
local conditions. No such criteria exist for Agency FSB members. Agency
representatives are often new to Alaska and here for a short time
before beginning their service on the Federal Subsistence Board.
Expanding the FSB to include additional tribal/rural seats will
strengthen our meaningful participation and improve the Board's overall
personal knowledge of rural Alaska.
AITRC's vision is to manage our traditional lands to ensure that
our lands, waters, air, fish, wildlife, and people remain healthy. We
look to regain a meaningful role in the management of our traditional
lands through this MOA. The opportunity to work together as negotiating
partners is a welcome change. Building strong partnership will help us
accomplish our mutual goals and prepare our young people to respond
responsibly to our changing world.
We sincerely thank and respect the Committee of Indian Affairs for
their time and support.
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Mary Sattler Peltola
Question 1. You stated that tribal subsistence fishers are often
subject to conflicting laws and policies governing natural resources.
The clash between State, Federal, and Tribal regulations complicates
the practice of subsistence fishing and undermines tribal sovereignty.
You also suggested that there should be specific locations set aside
for tribal communities to engage in subsistence fishing. Who should be
responsible for identifying and reserving areas specifically for tribal
subsistence fishing?
Answer. The Kuskokwim River Inter-Tribal Fish Commission (KRITFC or
Commission) appreciates the additional opportunity to discuss its
members' traditional subsistence activities, and ways in which those
activities are being helped and hindered by existing government
actions. As I discussed during my testimony on June 20, 2018, the
Commission believes that a legislative fix to the Alaska National
Interest in Lands Conservation Act (ANILCA) is essential. Until
Congress acts, significant reform in the regulations and administration
of the Federal Subsistence Management Program (FSMP), is necessary
maintain existing subsistence opportunity and advance self-
determination in managing Alaska's fish and wildlife.
In order to fully address the numerous problems with Title VIII,
Congress needs to amend ANILCA to explicitly recognize the right of
Alaska Natives to hunt and fish on federal lands and waters, and to
regulate these uses for their tribal members on lands and waters
traditionally used for subsistence. Alaska Natives have well-
established, identified, traditional hunting and fishing territories
within the boundaries of federal parks, forests and refuges. These are
the public lands where tribes should have hunting, fishing and
management rights.
Additionally, Congress needs to ensure that Alaska Natives have the
right to use and manage the traditional lands retained by Alaska Native
Corporations through the Alaska Native Claims Settlement Act (ANCSA)
for hunting and fishing. Many Alaska Native Corporations chose their
settlement lands based on their value for subsistence uses. Yet, the
State of Alaska currently claims jurisdiction to manage all hunting and
fishing on these Native lands, and the Department of Interior has done
nothing to challenge this injustice. Some of the prime Alaska Native
hunting and fishing grounds were identified, claimed and conveyed to
ANCSA corporations more than 50 years ago. It is time for Congress and
DOI to ensure that Alaska Natives can use these lands without being
restricted or forbidden by State management.
However, the situation demands action until Congress acts. The DOI
Secretary needs to revise the regulations establishing the
administrative structure for implementing Title VIII. The revisions
need to be based on recognition of the government to- government status
of Alaska's tribes and maximum implementation of self-determination in
implementing subsistence hunting and fishing. Title VIII needs to be
recognized by DOI as ``Indian'' legislation, despite the ``rural''
priority since it was clearly the intent of Congress to protect the
Alaska Native cultural, nutritional and traditional subsistence way of
life. \1\ DOI should then enter into 638 compacts and annual funding
agreements with tribes for federal subsistence management programs. DOI
can do all of this without diminishing the protection for those rural
residents who are dependent on subsistence resources and are not tribal
members. Much of the current administrative structure can be retained
for these rural residents.
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\1\ 16 U.S.C. 3111.
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The existing federal protections for Alaska Native hunting and
fishing rights are inadequate to provide the full and meaningful access
and opportunity to meet traditional, nutritional and cultural needs.
Title VIII of ANICLA fails to explicitly recognize the right of Alaska
Natives to use federal public lands and waters to hunt, fish and
sustain their way of life. Instead section 804 of ANILCA provides for a
``rural'' instead of Native priority. It is therefore not currently
accepted as legislation adopted for the benefit of Native Americans and
not interpreted pursuant to the cannons of construction that favor
decisions supporting Native rights. Federal agencies resist compacting
federal programs related to subsistence management because Title VIII
is not ``Indian'' legislation or a right reserved for Alaska Natives.
The administrative structure established for implementing Title VIII
fails to provide the tribes with any regulatory, management or
enforcement authority over their members hunting and fishing. Instead,
those who have practiced this way of life as far back as we can
remember, and whose culture and welfare remain tied to their
traditional lands and resources, are completely sidelined while federal
boards and agencies make all of the rules. This kind of dominant and
culturally destructive policy was abandoned in most all other cases in
favor of a policy of maximizing self-determination.
Congress has clearly empowered the Secretary of the Interior (the
Secretary) with discretion to implement the federal subsistence rights
mandated in ANILCA. However, conflicting State and Federal regulations,
and the nature of the political relationship between the State and the
Federal government have resulted in a Federal subsistence management
program that is highly deferential to the State of Alaska (the State),
to the detriment of our tribes, our self-determination, and our
customary and traditional subsistence uses of available fish and
wildlife resources.
The State interprets its Constitution and statutes such that every
resident is a subsistence user regardless of whether those residents
are genuinely engaged in living a subsistence way of life. Federal
regulations prioritize subsistence uses by rural residents, emphasizing
the importance of food security and historical dependence on
subsistence resources in Alaska's rural communities. These conflicting
eligibility requirements create a number of regulatory, political, and
cultural conflicts frustrating effective subsistence management in our
state, and confirm the need for the Secretary of the Interior actively
engage in reforms that fully implement the rights protected in ANILCA
and do so through empowering those most impacted and knowledgeable,
Alaska Natives.
There is only one reservation in Alaska. \2\ Outside of the Annette
Islands Indian Reserve, no public lands are reserved specifically for
Alaska Native subsistence uses.
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\2\ The Metlakatla Indian Community is located on Annette Islands
in southeastern Alaska and is the only Indian Reservation in the State
of Alaska called the Annette Islands Reserve. See www.metlakatla.com/
for more information.
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Following the enactment of ANCSA in 1971, Alaska Native
Corporations selected and withdrew from the public domain millions of
acres of land based upon their historical significance and importance
to Alaska Native subsistence uses of available fish and wildlife
resources. However, these lands are not recognized as Indian Country,
and the State with the passive acceptance by DOI, has simply presumed
the regulation of fish and wildlife resources found on and adjacent to
these ANCSA lands. The result is that the traditional hunting and
fishing territory retained by Alaska Natives in exchange for
extinguishment of their aboriginal land claims have no federal
protection, and in some cases state law forbids providing for a
subsistence priority on Native lands.'' \3\ Alaska Native allotments,
and the fish and wildlife resources found on and accessed from these
lands, are also managed under State jurisdiction, despite the fact that
most Alaska Native allotments are held in trust by the federal
government on behalf of the Alaska Native allottee.
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\3\ Anderson, Robert T. 2016. Sovereignty and Subsistence: Native
Self-Governance and Rights to Hunt, Fish, and Gather After ANCSA, Legal
Studies Research Paper No. 2017-01, 33 Alaska Law Review 187-227, p.
218.
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In 1971, when Alaska Native land claims were addressed by the
passage of ANCSA, \4\ a House Conference Joint Statement stated
Congress's intent that Alaska Native interests in subsistence resources
would be protected by the Secretary of Interior and the State of
Alaska:
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\4\ Alaska Native Claims Settlement Act, 43 U.S. Code Chapter 33
(1971).
``All Native interests in subsistence resource lands can and
will be protected by the Secretary [of the Interior] through
the exercise of his existing withdrawal authority. The
Secretary could, for example, withdraw appropriate lands and
classify them in a manner which would protect Native
subsistence needs and requirements by closing appropriate entry
by non-residents. . . . The Conference Committee expects both
the Secretary and the State [of Alaska] to take any action
necessary to protect the subsistence needs of the Natives.''
\5\
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\5\ Joint Statement, in 2247 P.L. 92-746, Alaska Native Claims
Settlement Act. Proceedings of House Republican Conference Report. Vol.
746. Washington, D.C.: 92ST Congress, 1971.
Despite Congress's clearly stated intent about the role the
Secretary and the State were to take in protecting our subsistence
uses, the protections provided to us by both parties are not
sufficient. Both the State and federal subsistence management systems
are broken and simply cannot succeed for Alaska Natives because of the
complete lack of self-determination in this most essential right. We
know what is needed for our cultures, the health of our peoples, our
culture, and resources, but have no power to act.
Congressional action, taken in consultation with our tribes, is
critical to continued protections for our subsistence uses of fish and
wildlife. Such action is not without precedent. For example, Congress
has acted to ensure continued protections for Alaska Native subsistence
uses of marine mammals and migratory birds through passage of Alaska
Native exemptions in the Marine Mammal Protection Act and the Migratory
Bird Treaty Act. \6\ And, Congress recently passed the Huna Tlingit
Traditional Gull Egg Use Act of 2014 that authorizes the Secretary of
the Interior to allow the collection of glaucous-winged gull eggs in
Glacier Bay National Park by members of the Hoonah Indian Association.
\7\ This type of congressional intervention is needed to address
ongoing challenges faced by the Kuskokwim River Inter-Tribal Fish
Commission.
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\6\ Anderson 2016:217.
\7\ Pub. L. No. 113-142, 128 Stat. 1749 (2014).
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Congress's broad authority to restore tribal powers over people and
territory should be used to restore tribal territorial jurisdiction
over fish and wildlife resources in Alaska. This should include
recognition of Native hunting and fishing rights on ANCSA corporation
land, Federal public, and even State lands. \8\ Congress's obligation
to recognize and assist our self-determination demands such action.
Without congressional action amending Title 8 of ANILCA to specifically
provide for an Alaska Native subsistence preference, OSM, through its
administration of the FSMP, will not take action to implement
strengthened protections solely for Alaska Native subsistence uses
through ANILCA, as doing so would be considered discriminatory.
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\8\ Anderson 2016:218.
Question 1a. What sort of regulations should or would be in place
for non-tribal individuals that visit these natural resources?
Answer. The Commission is not aware of a meaningful conflict
between tribal hunting and fishing and the public's right to visit and
enjoy the federal parks, refuges and forests, and therefore does not
have a position on any regulations to manage the visiting public to
protect subsistence opportunity.
The Commission also wants to be clear that in advocating for
explicitly recognizing a subsistence right for Alaska Natives, and
self-determination, it is not discounting the need or right of other
non-tribal Alaska residents who are truly dependent on subsistence
resources for their nutritional and social way of life to have a
federally protected opportunity to do so. Congress and the Secretary
can explicitly protect Native subsistence opportunity and self-
determination while also establishing a right for non-tribal
subsistence users and an administrative system that serves the needs of
these users.
Question 2. Many tribes are facing additional barriers due to state
regulations. Indigenous peoples who have practiced subsistence fishing
and hunting for generations are experiencing large fines for not
abiding by state regulations and a seizure of goods and supplies
necessary for subsistence harvesting at the hands of the state. How can
the federal government assume an active role in protecting the
sovereignty of native peoples and continuing this tradition and what
would tribal co-management over subsistence activities look like?
Answer. Our answers to the above questions explain the Commission's
position on necessary Congressional and Secretarial action. We will
therefore take this opportunity to further discuss the existing
shortcomings with the current federal subsistence regulation process.
The existing federal administrative process is contrary to self-
determination and tribal engagement in federal management of
subsistence uses of salmon in the Kuskokwim River in several ways.
Every year, the Commission spends an exorbitant amount of time
navigating and participating in the federal subsistence management
administrative process, at great expense and inconvenience to the
Commission's members, many of whom live in rural areas hundreds of
roadless miles away from where administrative events take place. This
hinders the Commission's ability to regularly and effectively engage
the thousands of tribal citizens living along the Kuskokwim River and
who make up the Commission's thirty-three member tribes.
Too commonly, the Commission's positions and management plans are
diminished by its Federal management ``partners.'' At times, it appears
that U.S. Fish and Wildlife's primary priority is getting along with
the State rather than ensuring that our subsistence needs are
fulfilled. The Commission needs clear and enhanced authority to develop
and implement management plans that will serve the needs of its tribal
members, provide for conservation, and allow for the needs of other
federally qualified subsistence users. The Secretary needs to revise
the administrative structure so that there is a clear path between the
Secretary and tribes for subsistence management. The Secretarial
authority that is currently delegated to the Federal Subsistence Board
should be delegated to the Commission. This is vital given the growing
impacts of climate change on natural resources we depend on. It is
vital that tribes have a central role in implementing and administering
ANILCA, rather than be relegated to the sidelines as the Federal and
State governments implement their own uninformed policies.
Alaska Native tribes and tribal entities have successfully co-
managed the subsistence use of fish and wildlife resources throughout
Alaska under other federal statutes for a number of years. These
successful co-management programs provide excellent examples of how the
Commission should be empowered for co-management under Title VIII. For
example, the Alaska Eskimo Whaling Commission (AEWC), in partnership
with NOAA, co-manages the take of bowhead whales, and enforces the
provisions of a management plan with its own members with great
success. Through co-management, the AEWC has expanded the collective
scientific and traditional understandings of bowhead whale biology and
behavior while providing sustainable, customary, and traditional
whaling hunts. As a result, the numbers of bowhead whales in Alaskan
waters have increased while ensuring that AEWC-member subsistence needs
are met.
In the 1980s, migratory bird populations experienced historic
declines. Conservation efforts resulted in prohibiting the subsistence
take of specific species. One such species was the Emperor Goose, a
valued subsistence food. Along with U.S. Fish and Wildlife and the
State, the Native Caucus of the Alaska Migratory Bird Co-Management
Council (AMBCC) began co-managing the subsistence take of migratory
birds in Alaska pursuant to the Migratory Bird Treaty Act. Through the
co-management of the AMBCC, the Emperor Goose population began to climb
again, and a subsistence and non-subsistence hunt for Emperor Goose was
recently implemented for first time since 1983. Yet another example of
exemplary co-management is found in the many Alaska Native marine
mammal commissions, which develop and implement management plans
regulating the take of specific marine mammals pursuant to the Marine
Mammal Protection Act (MMPA).
Kuskokwim River tribes are the most dependent users of returning
spawning runs of Pacific salmon, yet are most vulnerable if populations
crash and become extinct. These examples demonstrate that not only is
tribal co-management of fish and wildlife resources important, but
necessary to our ongoing physical and spiritual wellness.
The Commission has actively participated in the management of
subsistence fisheries on the Kuskokwim River since 2015. A tangible
benefit of our involvement has been the widespread compliance with
stringent salmon fishing restrictions necessitated by the poor returns
of Chinook salmon. In the past, compliance with harvest restrictions
was difficult or otherwise impossible to ensure because there was no
role for our own tribes to provide input and become actively engaged in
the promotion and implementation of these conservation measures.
The Commission's goal is to assume primary responsibility for the
management of Kuskokwim River subsistence fisheries for its tribal
members through co-management with the State and Federal governments.
The Commission believes that a demonstration project authorized and
funded by Congress would be the logical vehicle to enable the
Commission to do this. With input and involvement from other
stakeholders, including the State and U.S. Fish and Wildlife Service,
the Commission would draft and implement a management plan for tribal
subsistence fisheries throughout the Kuskokwim River. Conservation of
healthy fish stocks would be a primary concern for all parties, as well
as providing subsistence opportunity for other qualified non-tribal
users. The Commission's member tribes would be responsible for
implementing and enforcing the management plan for its own members.
Subsistence users who are not tribal members would have their
opportunity and rights implemented and protected pursuant to applicable
state and federal systems and regulations.
Providing the Commission this enhanced authority could happen in a
number of ways:
1. The only way to solve the numerous obstacles presented by
Title VIII is for Congress to enact federal legislation that
explicitly recognizes Alaska Native subsistence rights and
tribal management of this right.
2. In the meantime, Congress could direct the Secretary to
engage in rulemaking to create a direct management structure
between the Secretary and the Commission under which the
Secretary delegates authority directly to our tribes to manage
subsistence uses of fish on the Kuskokwim.
These remedies will allow KRITFC to focus efforts on important
engagement and research efforts with the 33-member tribes including
discussions about issues of concern, documentation of traditional
knowledge, and current observations of tribal elders. This type of work
is vital to support more effective salmon management.
The Commission also continues its outreach role to inform and
educate the public about salmon conservation initiatives and the
management approaches taken by the KRITFC's In-Season Managers and
federal and state agency actions. State and federal agencies face
ongoing challenges in interacting with the public and it is necessary
that the KRITFC have more opportunity to serve as a critical bridge in
overcoming communication gaps.
Question 2a. How could we balance state interest to protect
endangered species with tribal rights to subsistence activities?
Answer. The current regulatory structure in place under ANILCA
builds in ample protections for state interests and endangered species.
For example, federal management must defer to State regulations except
where those State regulations conflict with federal regulations. \9\
Alaska Native co-management of fish and wildlife resources, examples of
which I discussed above, effectively maintains the balance between
State and Federal interests in protecting endangered species and tribal
rights to engage in customary and traditional subsistence uses of
available fish and wildlife resources.
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\9\ 50 CFR 100.14(a).
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Traditional tribal management principles shared by to the
Commission's members also protect endangered species without harming
tribal subsistence rights. For example, one such principle enforced by
all of the Commission's tribal members includes ``Take only what you
need, don't waste or play with your food, and keep what you catch, it
is food.'' The Commission and its members firmly believe that
disrespecting fish and wildlife resources will cause those resources to
decline such that human beings will suffer. Tribal co-management
principles implicitly incorporate protections for endangered species,
and balance those protections against tribal rights to continue
engaging in subsistence uses of those species.
Question 3. One of the prominent barriers to subsistence activities
is the harmful role of climate change in natural ecosystems in Indian
Country. We know that when lakes and other natural resources are
polluted, and communities are unable to harvest resources, they lose an
important source of nutrition? Have you collected any data or research
on the relationship between environmental pollution and native health
in communities that practice subsistence fishing, hunting, or fishing?
If so, can you talk about how native health is impacted by climate
change?
Answer. Climate change is affecting the lives of all residents of
the 33 KRITFC member tribes in the Kuskokwim region. The Commission
lacks the resources to conduct ``formal'' climate change studies
demonstrating how climate change is affecting our subsistence
resources. However, by the measure of the traditional knowledge used
and recognized by our elders, the Commission is well aware that climate
change is making it more challenging to predict weather, river
conditions, and fish and wildlife behavior. Tribal elders are observing
changes in weather, temperature, river water levels, returning species,
and other indicators of natural resource status, health, changes which
all suggest that climate change and the coincident escalation of global
temperatures is having a detrimental effect upon our subsistence
resources--which, in turn, has a detrimental effect upon our physical,
psychological, and spiritual well-being.
With regard to pollution, the Commission is fortunate in that point
sources of pollution are not something that is widespread in our
region. However it is an area of significant concern for us, especially
in light of proposed development projects. While the historical mineral
mining and the development of a military industrial complex has
resulted in polluted waters and other areas of concern, efforts are
underway to minimize impacts to protected tribal rights, resources, and
lands. Such programs include the Native American Lands Environmental
Mitigation Program (NALEMP) and CERCLA or the Superfund which has been
recently mitigating mercury contamination associated with historic
mining activities in Red Devil.
In 2007, state and federal agencies issued a health advisory
regarding high levels of mercury contamination found in northern pike,
one of our resident fish species that is widely enjoyed by area
residents. A 2001-2003 state household survey found that Bethel
residents alone harvested about 25,000 to 44,000 pounds of northern
pike. \10\ However, pregnant women and children were advised not to eat
northern pike because of concerns about mercury. This is especially
concerning when you realize how much pike we eat on the Kuskokwim
River, not to mention all the other fish we catch for food and is a
good example of why the Commission's member tribes are concerned about
point sources of pollution.
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\10\ Simon, J. et al. 2007. Bethel Subsistence Fishing Harvest
Monitoring Report, Kuskokwim Fisheries Management Area, Alaska, 2001-
2003. Alaska Department of Fish and Game, Division of Subsistence,
Technical Paper No. 330, pp. 30-32.
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It is of the utmost importance that the Commission continues to
monitor the effects of global warming and pollution upon available fish
and wildlife resources necessary to maintain our subsistence ways of
life. There have been funding proposals, unsuccessful to date, to
establish a discharge and temperature monitoring network throughout the
Kuskokwim River. However, the Commission cannot do this while operating
on a shoestring budget. The Commission's operating budget for the
current fiscal year is only $550,000.00. It is highly unlikely that the
Commission will be able to fund, or otherwise develop the capacity to
administer, projects and programs that take an enhanced look at the
effect of climate change and pollution on our subsistence lifestyle.
This network would be established by contracting scientists, then
maintained by participants in select villages.
Climate change has a broad range of impacts upon the lands, waters,
and natural resources of Alaska. From milder, drier winters to warmer,
wetter summers, these impacts change our physical landscape right
before our eyes. These impacts also affect health and strength of the
natural resources we depend on, as well as the lives and health of our
tribal members. We need secure, dependable funding in order to build
our capacity and commit to monitoring the effects of climate change.
Additional congressional appropriation is one of the only ways to
secure this necessary funding.
It is difficult to know the full extent to which climate change has
affected the health and bounty of Kuskokwim River Chinook salmon
stocks. But recent years of disastrously low Chinook salmon returns
have deeply impacted our emotional, nutritional, economic, social, and
spiritual well-being. We are no longer able to harvest enough Chinook
salmon to meet our family's nutritional needs throughout Alaska's long
and harsh winters. When our families can barely feed themselves, it
then becomes additionally challenging for us to engage in our
traditional practices of sharing and trading food resources with our
friends and family who cannot otherwise provide for themselves. The
Commission believes that the negative effects of climate change have
created an ongoing scarcity of essential resources, which in turn is
causing an ongoing crisis in our tribal communities as we lose our food
security and watch one another suffer.
Question 4. I understand that Native populations are the most
vulnerable group to climate change and that environmental pollution of
tribal lands and resources generally comes from surrounding businesses,
plants, and communities that do not belong to the tribal community.
What can we do to protect tribal lands from surrounding environmental
pollution and what course of action can tribes or the government take
against organizations, communities, or individual who contaminant
tribal lands?
Answer. Alaska Natives are highly vulnerable to climate change and
environmental pollution. Climate change and environmental pollution
compromise our food security, damage our lands, and are responsible for
rapidly changing the physical and cultural landscape in which we exist.
This is why it is so important for Congress to support laws, programs,
and projects, such as the Commission's proposed co-management and
tribal stewardship of Kuskokwim River salmon stocks, which enfranchise
our members and support our self-determination by enabling us to
directly address these negative influences. Without an enfranchised
tribal management system in place, these vulnerabilities, and the legal
and administrative roadblocks preventing our ability to successfully
address these vulnerabilities, will only deepen. Tribes need a real
seat at the table to address these significant issues.
Congress must also resist efforts to water down existing
environmental protections found within the National Environmental
Policy Act (NEPA) and the Endangered Species Act (ESA), and must
continue enforcing the full scope of protections found in these
important laws. Climate change and environmental pollution are directly
caused by business and industry's failure to voluntarily put adequate
protections in place for the development of their products. The answer
to addressing climate change and environmental pollution is not to
water-down legal obligations and protections with regard to industry
and business actions, but to strengthen and continue enforcing those
obligations and protections.
Question 4a. How can traditional knowledge help address climate
change impacts facing tribes? Do you think western science takes your
suggestions seriously?
Answer. There is a role for both western science and traditional
knowledge to address the impacts of climate change affecting our
members. While I personally do not think that western science values
traditional knowledge in the same way that it values empirical data,
there is increasing interest in and attention being paid to traditional
knowledge in the context of resource management. Traditional knowledge
passed down from our tribal ancestors helps us understand how we are to
act and behave to ensure future success for our children and
communities. Traditional knowledge guides our customs, ceremonies,
cultural practices, and our individual behaviors to ensure that respect
is shown to the land, water, and natural resources upon which our
people depend.
Traditional knowledge should not need to be ``proven'' by western
scientific methods and ways of knowing before it is considered in
making resource management decisions, but oftentimes, our traditional
knowledge is disregarded in favor of western scientific predictions and
models. For example, in 2017, the Commission and U.S. Fish and Wildlife
agreed on a conservative harvest of 40,000 Chinook salmon during pre-
season negotiations and meetings. This harvest estimate was based upon
the State's estimated Chinook returns--estimates based wholly on
western science.
However, when the run actually started, the U.S. Fish and Wildlife
Service and the Commission disagreed about the size and timing of the
Chinook salmon run in the Kuskokwim River. Real-time western science
used by U.S. Fish and Wildlife suggested that the Chinook run was weak,
whereas real-time traditional knowledge suggested that the Chinook run
was strong, but returning in ways--running deeper in the river, and
returning later in the summer--for which western science could not
account. At the end of the summer, the post-season escapement numbers
confirmed that the traditional knowledge advanced by the Commission was
correct, and there was a surplus of at least 10,000 Chinook salmon.
While the conservation of these fish was important, those 10,000 fish
represent lost opportunity and food security for hundreds of our tribal
members. Had our traditional knowledge been fully acknowledged and
recognized, we would not have lost important fishing opportunity.
Many people misunderstand traditional knowledge or are confused by
what it means. Traditional knowledge is holistic. Often one species can
be used as an indicator of presence and abundance of a completely
different species. Indigenous peoples' ways of knowing are holistic in
nature. What one thinks, what one says, and what one does, all has the
potential to impact or influence another aspect of one's world. Wasting
a resource or treating a resource disrespectfully incurs consequences
for the individual, those around them, as well as the resource. In
comparison, the western way of knowing is compartmentalized and
specialized, some might say narrow. A western scientific observer may
study a particular aspect of the world, like salmon run-timing and
abundance, take notes, gather data, test hypotheses, confirm or
formulate new theories, and develop a predicted salmon run forecast for
the next season based on mathematic models.
Here are some examples of traditional knowledge. In 2014, my mom's
younger brother taught me how to use a little set net to fish for red
(sockeye) salmon. We went to the mouth of the Gweek River, a small
tributary of the Kuskokwim River north of Bethel, where his
grandparents had their fish camp. He knew exactly where to put the net
to catch 95 percent reds, and avoid Chinook salmon. Many biologists and
fisheries managers imagine that gill nets are indiscriminate killers of
fish. But if you know where each species tends to swim, if they prefer
sandbars, slower currents or deeper depths, gill nets can be a very
targeted and discreet gear type. To me, traditional knowing is having a
detailed and deep understanding of an ecosystem. My friend Charlie
Wright on the Yukon River told me that on his section of the Yukon, an
indicator of the arrival of Chinook salmon is yellow butterflies. When
he sees a yellow butterfly, he knows the Chinook salmon are there. He
also said the abundance of yellow butterflies reflects the abundance of
Chinook salmon. In 2017 when the Chinook salmon came back in real
numbers, there were big swarms of butterflies again. These
interconnections are inherent to indigenous knowledge systems and
represent a very different way of viewing the relationship between
human beings and the natural world compared western science.
Our Commission's four In-Season Managers all value the western
science that is presented by our state and federal managing partners
and used to make management decisions. However, our In-Season Managers
also recognize the value of traditional knowledge, and know that
incorporating traditional knowledge into resource management
decisionmaking strengthens the end result.
The Commission's In-Season Managers are skilled at incorporating
western science and traditional knowledge into their consideration of
management decisions. For example, upon receiving a mathematical
forecast of the anticipate salmon return, our In-Season Managers will
also use other traditional information before deciding when and how
long to fish. These additional considerations include observations
about river water levels, snow depth of the previous season, height of
grasses, when shoots of green grass emerge, numbers of migrating birds
arriving and when they arrive, when mosquitos present themselves, where
people have been catching certain kinds of fish and which stock of fish
are presently migrating, the nature of and direction of winds at the
river mouth, when cotton flies, when there are storms in Kuskokwim Bay,
river water temperatures, water clarity, amount of debris floating
downriver, anticipated fishing interests, and fish-drying weather
conditions, and the effect that these interconnected observations have
on one another insofar as fisheries management is concerned.
The recognition and incorporation of traditional knowledge is
essential in any study of climate change in the Kuskokwim River region.
Traditional knowledge represents the most significant data set of
systematic observations of our ecosystem.
Question 5. A large part of our discussion today has revolved
around the numerous barriers to subsistence activities, particularly
focusing on the role of the Federal Subsistence Board in management.
However, we know that for native communities, subsistence activities
are an important source of cultural identity and heritage. We know that
cultural connections including traditional values, customs, activities,
and ceremonies serve as protective factors in the lives of tribal youth
by discouraging delinquent behavior, encouraging academic success, and
alleviating various stressors on native youth. Could you talk about the
emotional, spiritual, and cultural toll these barriers to subsistence
activities have had on native communities, specifically related to
native youth?
Answer. I really think that the restrictions and barriers to
subsistence activities negatively impacts our youth, in many ways. One
way is in the development of work ethic. We prepare fish to smoke and
dry at fish camp, where there is a role for everyone, no matter what
gender or what age., even a 2 or 3-year old has a role to play in the
productivity at fish camp--by retrieving needed objects like nets and
buckets, for example. Five-year olds can cut notches in salmon belly
strips, tie strings, or help people apply bug spray. 7, 8, and 9 year
olds help inspect drying fish for blue fly maggots and remove them. 11
and 12 year olds often help start or tend the smoke house fire. It is
especially important for teens to experience fish camp because that is
when you learn your skills and develop confidence.
When we don't have family time at fish camp it leaves a void in our
family seasonal rounds. The biggest risk in my opinion is to the
youngest family members, because they miss out on learning about and
experiencing the opportunity we've always had to instill in them their
self-worth and need to be productive. It is at fish camp where our
youth learn that feeling that their family needs them. I think about my
cousins and their girls. Their kids (girls and boys) are so proud to
show me their cuts of salmon and whitefish. It makes such a difference
to grow up at fish camp and every year, as children learn more, it is
truly transformative.
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to A-Dae Romero-Briones
Question 1. Many Tribes are facing additional barriers due to state
regulations. Indigenous peoples who have practices subsistence fishing
and hunting for generations are experiencing large fines for not
abiding by state regulation and a seizure of goods and supplies
necessary for subsistence harvesting at the hands of the state. How can
the federal government assume and active role in protecting the
sovereignty of native peoples and continuing this traditional and what
would tribal co-management over subsistence activities look like?
Question 1a. How could we balance state interest to protect
endangered species with tribal rights to subsistence activities?
Answer. Tribal subsistence hunters, gatherers, and fishermen and
women are a Tribal nation's and the United State's most important
conservationists. Their dependence on a resource requires knowledge,
management, and protection of that very resource. However, subsistence
hunting, gathering, and fishing practices are not often acknowledged as
a conservation or ecological management practices. In worst case
scenarios, subsistence hunters, gatherers, and fishermen and women are
labeled ``poachers'' or ``rule-breakers'' when subsistence practices,
behaviors, and timing are not acknowledged or recognized in state
hunting, fishing, and gathering regulation. More often than not, Tribal
Nations' and state conservation goals are often aligned in that both
State and Tribal Nations have shared goals of natural resource
perpetuation for future generations. Unfortunately, Tribal Nations and
State conservation offices may define ``practicing'' conservation and
resource protection differently.
In general, many Tribal communities practice conservation through
interaction with the resource. On the contrary, mainstream conservation
efforts almost always require resources to ``be left alone'' or remain
untouched. There is some evidence that suggests human interactions with
nature, that closely imitate natural disturbances have allowed
ecosystems to co-evolve with human and thus creating stronger eco-
systems. \1\ M. Kat Anderson and Eric Wholgemuth in an article called
California Indian Proto-Agriculture: Its Characterization and Legacy
state, ``indigenous disturbance was so finely tuned and similar to
certain types and scales of natural disturbances that it conserved the
renewal capacity of individual plants, populations, and whole
ecosystems'' (Pp 204). This ecological knowledge is a critical resource
for environmental and conservation practices, but in order to maintain
this knowledge, Indigenous people must be allowed access to ancestral
territories and resources to practice management in the form of
harvesting, hunting, fishing, and gathering.
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\1\ Harlan JR. 1992. Crops and Man, 2nd Edition. Madison, WI:
American Society of Argonomy and Crop Science Society of America.
Harris DR. 1989. An evolutionary continuum of people-plant interaction.
Pp. 11-26 in DR. Harris and GC Hillman (eds.) Forging and Farming: The
Evolution of Plant Exploitation. London: Unwin Hyman.
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There are several Federal actions that can be taken to ensure the
continued practice of Indigenous ecological management.
1) Ensure federal agencies with land holdings in Indigenous
ancestral territories have processes for allowing Tribal
nations access to those lands. I go into more detail about
specific processes of federal agencies who have lands
significant to Indigenous communities in the written comments.
2) The Multiple Use Sustained Yield Act requires a balance in
land use planning among the competing values of recreation,
grazing, timber, watershed protection, wildlife and fish, and
wilderness. \2\ The Multiple Use Sustained Yield Act should be
amended to include Tribal nations' consideration on federal
lands within Tribal ancestral territories.
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\2\ The Multiple Use--Sustained Yield Act of 1960 (or MUSYA)
(Public Law 86-517) is a federal law passed by the United States
Congress on June 12, 1960. This law authorizes and directs the
Secretary of Agriculture to develop and administer the renewable
resources of timber, range, water, recreation and wildlife on the
national forests for multiple use and sustained yield of the products
and services.
3) Federal Government should invest in research dollars for
documenting and strengthening Indigenous conservation and
---------------------------------------------------------------------------
ecological management practices.
4) Amend the Organic Foods Production Act (OFPA) and
subsequent USDA regulations to include Tribal authority where
state authority is recognized in the act. Specifically, the
provision for gathering of wild crops \3\ should include Tribal
consultation.
---------------------------------------------------------------------------
\3\ (7 U.S 7 U.S.C. ch. 94, 7 U.S.C. 6501 et seq.) and Section
5022 of the USDA-AMS Organic Handbook (can be found at: https://
www.ams.usda.gov/rules-regulations/organic/handbook/5022)
There are some co-management examples that offer some promising
models. In the state of New Mexico, there is a licensing system where
Tribal Nations are given a certain number of hunting licenses for state
hunts. The Tribal Nation in turn uses those licenses in an internal
process in accordance with their subsistence practices. While the model
is not perfected, the this model shows that is possible for State and
Tribal agencies to cooperate within both systems of management.
We also have co-management examples from the Bureau of Land
Management (BLM) and the Forest Service where Tribal communities co-
manage significant national monuments. For example, there was a co-
management agreement between Pueblo de Cochiti and Bureau of Land
Management over Kasha Katuwe National Park. From this model we can
glean several lessons:
1) Tribal Nations should be duly compensated for their
expertise and knowledge in managing their ancestral homelands.
In fact, Indigenous management of federal lands often improves
the land. Since the federal government is ultimately the land
owner, Tribal Nations should be compensated for the
improvements. Often, Indigenous land management practices
through subsistence are not recognized as land management.
2) Co-management agreements should mean that Tribal Nations
have equal or ample authority to manage the land. Often times,
co-management agreements give greater power to federal
agencies.
3) Co-management agreements should also be financially sound
in that all costs of Tribal Nations are adequately covered in
order to fully manage and engage according to the co-management
agreements. Too often, Tribal Nations are inadequately
compensated to execute co-management agreements, yet expected
to fulfill co-management provisions.
Balancing state interests to protect endangered species and tribal
interests to practice subsistence activities are often thought of as
different goals, but in fact, they are often aligned. Indigenous
subsistence practitioners, more often than not, have vested interest in
ensuring endangered animals endure. One perspective is that endangered
species become endangered because subsistence practices are hampered.
While this concept may seem counter-intuitive, it is quite practical to
understand species disappearance when animal and plant species are NOT
intimately and closely monitored. Random and periodic observation are
not intimate monitoring. In order to intimately and closely monitor
animal and plant species, human interaction, if not dependence, on
those species are guarantee real time monitoring and understanding of
the health of specific species. Even more profound is that subsistence
practices often require a thorough understanding of ecological
relationships. If one plant species is endangered, more often than not,
the animals and other organisms dependent on that plant is also
endangered. However, learning and understanding of ecological
relationships requires practice, often over long periods of time.
Indigenous communities are often the longest standing residents of
specific places, but their interaction and presence in those lands may
be limited by the many barriers already discussed surrounding
subsistence practice. These not only damages the cultural practices of
a people, but on the health of our ecosystems nationally. For these
reasons, Indigenous subsistence practices should be encouraged and
protected in order to ensure endangered species do endure.
Endangered Species designation and conversations should include
Indigenous perspectives whether on boards, in consultation, or in key
staff positions where such determinations are made. Again, federal
investment in ecological management practices, particularly of
endangered species, may give new perspectives on endangered species
recovery, new approaches to recovery, and I would argue, faster
recovery times. Indigenous people, in their wealth of understanding of
the environments that they have cultivated for centuries have so much
to offer to the world of conservation and management.
Question 2. One of the prominent barriers to subsistence activities
is the harmful role of climate change in natural ecosystems in Indian
Country. We know that when lakes and other natural resources are
polluted and communities are unable to harvest resources, they lost an
important source of nutrition. Have you collected any data or research
on the relationship between environmental pollution and native health
in communities that practice subsistence fishing, hunting, or farming?
Question 2a. If so, can you talk about how native health is
impacted by climate change?
Answer. First Nations Development Institute has worked with over
300+ Tribal Nation or Tribal non-profit grantees on Indigenous food
systems throughout Indian Country. We have collected antidotal
information/data on connections between environmental pollution and
health or on connections between subsistence practice disruption and
the effects on health. We do have information on specific tribal
communities who have collected their own empirical data on health and
environmental factors such as the Akwesasne Community in New York, the
Pueblo de Cochiti in New Mexico and the White Earth Community in
Minnesota, just to name a few. There are several other Tribal specific
organizations that collect and analyze such data such as the Tribal
Epidemiology Center and the Center for Native American Environmental
Health Equity Research.
There are a few conclusions we can make about climate change and
native health based on the projects that have been funded under the
Native Agriculture and Food Sovereignty Initiative at First Nations.
One, is that subsistence practices are an important process for
building the resiliency capacities of Tribal communities, individuals,
and surrounding regional communities. Subsistence practices allow
Tribal Nations to monitor their environments, take note of the changes
in that environment, and eventually, adjust behaviors to that changing
environment. Two, we know that climate change rates are outpacing the
rates of adjustment of Tribal Nations. With limited access to land
bases, disrupted subsistence practices, the ability to move or
transition to other areas is hampered in Tribal Nations. This causes
reliance on outside sources to help Tribal Nations adjust to climate
change factors. To bring balance to rates of adjustment and climate
changes, it is critical for Tribal Nations to be supported in
subsistence practice.
Question 3. I understand that Native populations are the most
vulnerable group to climate change and that environmental pollution of
tribal lands and resources generally comes from surrounding businesses,
plants, and communities that do not belong to the tribal community.
What can we do to protect tribal lands from surrounding environmental
pollution and what course of action can tribes or the government take
against organizations, communities, or individuals who contaminate
tribal lands?
Question 3a. How can traditional knowledge help address climate
change impacts facing tribes? Do you think western science takes your
suggestions seriously?
Answer. Surrounding environmental pollution is always a concern for
Tribal communities. Over the course of development of Tribal law, there
have been innovative and effective mechanisms to hinder surrounding
environmental pollution. Unfortunately, many of those mechanisms and
tools have been undermined in the last few years. Perhaps the best
example of controlling surrounding environmental pollution is the Clean
Water Act (CWA), The Clean Air Act (CAA), Clean Water Act (CWA), and
Safe Drinking Water Act (SDWA). These statutes allow Tribal Nations to
set environmental quality standards and to implement strategies to meet
those standards. These acts should be protected, used as models for
other pieces of environmental legislation, and expanded in other
environmental quality statutes. These acts can be strengthened in that
rather than having Tribal Nations apply for status as States, status as
state should be assumed unless a Tribal Nations opts out of such
treatment.
Additionally, Tribal Courts should be recognized as having the
authority to prosecute environmental pollution on Tribal lands. It has
taken an act of Congress to acknowledge Tribal court jurisdiction over
non-Indian perpetrators of domestic violence. A similar action should
be taken to acknowledge Tribal jurisdiction over non-Indian
perpetrators of environmental population.
As stated earlier, subsistence practices ensure resiliency in
Tribal Nations specifically in response to climate change. In order for
the development of climate change resiliency, it is critical for Tribal
Nations to practice subsistence. There are currently so many barriers
to subsistence practice such as land access, transference of
traditional knowledge, rates of climate change, prosecution of
Indigenous subsistence practitioners under state hunting/gathering/
fishing laws that subsistence practice is hampered, thereby weakening a
community's ability to respond to climate change.
Western Science, often, dismisses subsistence practices. Hunting,
gathering, and fishing are often viewed as a ``lesser'' form of
existence than efficient market systems where a person has to work less
for more. However, subsistence practices often ensure that demand
doesn't outpace supply in that demand is directly tied to hard work,
ecological understandings, and direct interactions with natural
resources. In short, subsistence practices have to be balanced within
the environments and natural
resources that support those practices, humans being included in
those environments. Federal investment into documenting these concepts
would have far reaching consequences for not only Indigenous
communities, but for our larger national approach to conservation.
Question 4. A large part of our discussion today has revolved
around the numerous barriers to subsistence activities, particularly
focusing on the role of the Federal Subsistence Board in management.
However, we know that for native communities subsistence activities are
an important source of cultural identity and heritage. We know that
cultural connections including traditional values, customs, activities,
and ceremonies serve as protective factors in the lives of tribal youth
by discouraging delinquent behavior, encouraging academic success, and
alleviating various stressors on native youth. Could you talk about the
emotional, spiritual, and cultural toll these barriers to subsistence
activities have had on native communities, specifically related to
native youth?
Answer. While I am not a mental health expert, I can relate to the
question through personal experience as a once native youth who comes
from a community where barriers to subsistence farming disrupted my
entire community's way of life. Within a period of ten years, the ill
social effects of losing a Pueblo lifestyle, based on subsistence
farming, were raging in my community. The loss of a life way, a
connection to ancestral ties, changes in diet, and a dependence on
sources of food outside of one's one community and hands, is
unquantifiable, but can be seen in the detrimental health and social
ills that have come to characterize many Tribal Nations.
As one might predict, a community not only struggles with the loss,
but also has to determine a substitute for that loss. During that
period of transition, many young people struggle with a sense of
identity because often identity is transmitted from one generation to
the next through subsistence activities. Subsistence activities offer
young people orientation and a place in the world. For example, in
Cochiti, young people cultivate corn. It teaches young people how to
care for life, learn the seasons of our community and environment,
understand community behaviors and ceremony, and become part of
something larger than oneself. When agriculture was disrupted in
Cochiti because of a loss of agricultural lands, young people had to
learn all these lessons somewhere else, if we learned these lessons at
all after agricultural disruption. In short, an efficient social food-
system, deliberately cultivated over generations that synchronized our
existence with our environment, is usually replaced with systems less
powerful. As one might imagine, the effects on young people is simply
struggle or a need to leave their home base to find a life outside of
the community to fill that loss. In all cases, self-identity suffers
and, in turn, the community suffers, and lastly, our environments
suffer.
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Jennifer Hardin, Ph.D.
Question 1. Many tribes are facing additional barriers due to state
regulations. Indigenous peoples who have practiced subsistence fishing
and hunting for generations are experiencing large fines for not
abiding by state regulations and a seizure of goods and supplies
necessary for subsistence harvesting at the hands of the state. How can
the Federal Government assume an active role in protecting the
sovereignty of native peoples and continuing this tradition and what
would tribal co-management over subsistence activities look like?
Answer. Title VIII of the Alaska National Interest Lands
Conservation Act (ANILCA) dictates that the subsistence harvest of fish
and wildlife is the priority consumptive use on Federal public lands in
Alaska. This means that in the event that there are not enough
resources to meet the harvest demands of all users, only Federally-
qualified rural residents (both Native and non-Native) may hunt or fish
on Federal lands under Federal regulations, and that Federal public
lands are closed to all other consumptive uses. In these instances,
state regulations no longer apply on Federal public lands. While some
subsistence users may find this type of dual management system to be
confusing at times, it can also be quite protective of the hunting and
fishing practices that are central to the Native and non-Native rural
subsistence way of life in Alaska by ensuring that these practices can
continue on Federal public lands even if state mandates or priorities
differ. The Federal Subsistence Board's charge is to act on behalf of
rural subsistence users in providing for the subsistence priority on
Federal public lands, per the ANILCA mandate. The State of Alaska is
not obligated under the law to carry out this same mandate.
ANILCA outlines the regulatory decisionmaking structure for
subsistence harvest on Federal public lands in Alaska. Federal
subsistence regulatory decisions are the responsibility of the
Secretaries of the Interior and Agriculture and the ten Subsistence
Regional Advisory Councils. Subsistence Regional Advisory Councils are
composed of representatives who are knowledgeable about subsistence
issues in their respective regions and are appointed by the
Secretaries. Many Regional Advisory Council members are Alaska Native.
The Secretaries have delegated regulatory decisionmaking authority
related to the subsistence take of fish and wildlife to the Federal
Subsistence Board (Board). In turn, the Board is statutorily required
to defer to the recommendations of the Subsistence Regional Advisory
Councils unless recommendations are not supported by substantial
evidence, violate recognized principles of fish and wildlife
conservation, or would be detrimental to the satisfaction of
subsistence needs. The subsistence decisionmaking structure outlined in
ANILCA is designed to ensure that the Federal Subsistence Management
Program is characterized by a bottom-up approach that is primarily
driven by the concerns of the rural Alaskans who will be directly
affected by Board decisions.
Currently, ``co-management'' is not defined in relation to the
subsistence provisions contained in Title VIII of ANILCA. It is assumed
that any future proposed Federal subsistence co-management structures
would conform to the provisions of Title VIII of ANILCA, which define
the subsistence priority for rural Alaskans throughout the state.
Question 1a. How could we balance state interest to protect
endangered species with tribal rights to subsistence activities?
Answer. The Federal Subsistence Management Program in Alaska
provides a good model for balancing subsistence opportunity with
conservation of healthy populations of fish and wildlife in order to
ensure the continuation of the subsistence way of life for future
generations. Striking this balance requires close collaboration between
rural subsistence users, the Federal Subsistence Board, Federal land
management agencies and the State of Alaska. In accordance with Section
815(4) of ANILCA, the endangered species program is not administered by
the Federal Subsistence Management Program. At this time, no
subsistence resources managed by the Federal Subsistence Management
Program are listed as endangered species.
Question 2. One of the prominent barriers to subsistence activities
is the harmful role of climate change in natural ecosystems in Indian
Country. We know that when lakes and other natural resources are
polluted and communities are unable to harvest resources, they lose an
important source of nutrition. Have you collected any data or research
on the relationship between environmental pollution and native health
in communities that practice subsistence fishing, hunting, or farming?
If so, can you talk about how native health is impacted by climate
change?
Answer. This is an important issue of concern for subsistence users
in rural Alaska but it is not an area of research that is within the
purview of the Federal Subsistence Management Program. The Federal
Subsistence Management Program provides funding for fisheries research
through the Fisheries Resource Monitoring Program. Research conducted
through that program examines, among other issues, the health of
subsistence fisheries throughout Alaska, including the impact of
changing environmental conditions on subsistence fish populations.
The Office of Subsistence Management also administers the Partners
for Fisheries Monitoring Program (Partners Program) on behalf of the
Federal Subsistence Management Program. The Partners Program is a
competitive grant program directed at providing funding for biologist,
social scientist, and educator positions in Alaska Native and rural
organizations with the intent of building capacity in rural Alaska to
actively participate in Federal subsistence management.
Question 3. I understand that Native populations are the most
vulnerable group to climate change and that environmental pollution of
tribal lands and resources generally comes from surrounding businesses,
plants, and communities that do not belong to the tribal community.
What can we do to protect tribal lands from surrounding environmental
pollution and what course of action can tribes or the government take
against organizations, communities, or individual who contaminate
tribal lands?
Answer. The situation in Alaska is unique in that more than 50
percent of lands within the state are managed by the Federal government
and subject to the subsistence priority afforded by Title VIII of the
Alaska National Interest Lands Conservation Act (ANILCA). In accordance
with Section 810 of ANILCA, Federal agencies are required to evaluate
and minimize the potential effects of other uses or activities on
subsistence uses prior to authorizing such actions on Federal lands.
All other lands within the State of Alaska, including those belonging
to Alaska Native Claims Settlement Act (ANCSA) Corporations, fall under
state jurisdiction.
Question 3a. How can traditional knowledge help address climate
change impacts facing tribes? Do you think western science takes your
suggestions seriously?
Answer. The Federal Subsistence Management Program recognizes the
critical importance of local and traditional ecological knowledge in
informing decisions about subsistence harvest by rural Alaskans. The
Federal Subsistence Board (Board) relies on the knowledge shared by
local people and strives to consider it equitably alongside of western
scientific knowledge. Because traditional ecological knowledge is
obtained through systematic observations and repeated interactions with
the natural world over long spans of time, it can be particularly
useful in assessing the impacts of environmental change on the natural
resources that subsistence users depend upon. Traditional ecological
knowledge often provides a spatial and temporal scale that is otherwise
unavailable to resource managers.
The Board strives to obtain traditional ecological knowledge from a
variety of sources in an effort to inform management decisions. All
staff analyses of wildlife and fishery proposals to change Federal
subsistence regulations, make customary and traditional use
determinations, and rural determination proposals incorporate available
traditional ecological knowledge to help the Board better understand
subsistence resources and the people who depend on them. The Federal
Subsistence Management Program consults with local federally recognized
tribes on proposals that might impact their members, and incorporates
the knowledge learned during those consultations. The Subsistence
Regional Advisory Council system provides a direct conduit of
traditional ecological knowledge in the decisionmaking process. The
Board considers traditional ecological knowledge along with biological
and sociocultural data when making decisions about the take of fish and
wildlife on Federal public lands.
Question 4. A large part of our discussion today has revolved
around the numerous barriers to subsistence activities, particularly
focusing on the role of the Federal Subsistence Board in management.
However, we know that for native communities subsistence activities are
an important source of cultural identity and heritage. We know that
cultural connections including traditional values, customs, activities,
and ceremonies serve as protective factors in the lives of tribal youth
by discouraging delinquent behavior, encouraging academic success, and
alleviating various stressors on native youth. Could you talk about the
emotional, spiritual, and cultural toll these barriers to subsistence
activities have had on native communities, specifically related to
native youth?
Answer. In Title VIII of ANILCA, Congress found that the
continuation of the subsistence way of life by rural Alaskans is
essential to their physical, economic, traditional, cultural and social
existence. Title VIII established a priority for the taking of fish and
wildlife for nonwasteful subsistence purposes on Federal public lands
in Alaska over the taking of those resources for other purposes. In
ANILCA, Congress recognized the vital relationships between people,
land and cultural identity that are reflected in subsistence hunting
and fishing practices in rural Alaska. These practices are part of a
community's cultural, social, economic, and nutritional wellbeing. The
Federal Subsistence Management Program's focus on the sociocultural
aspects of subsistence activities distinguishes it from other hunting
and fishing programs.
The Federal Subsistence Management Program tries to facilitate the
continuation of cultural practice associated with the subsistence way
of life in rural Alaska by supporting culture camps designed to pass on
important cultural knowledge to future generations, providing for
community harvest systems that are organized and managed by communities
according to customary and traditional practices and offering the
ability to harvest fish or wildlife outside of established season or
harvest limits, for food in traditional religious ceremonies, including
potlaches.
The Federal Subsistence Management Program regularly conducts
outreach to connect with rural youth. For example, the program offers
presentations and workshops within rural village schools in conjunction
with Subsistence Regional Advisory Council meetings and often holds
those meetings within village schools so youth may attend and
participate. Engagement with rural youth during meetings allows for
council members to interact and influence the next generation, securing
the subsistence way of life for the future. The Federal Subsistence
Management Program regularly holds an art contest focusing on wildlife
and fish related subsistence activities for all students in Alaska in
grades K-12.
The Federal Subsistence Board, Subsistence Regional Advisory
Councils, and the Office of Subsistence Management will continue to
seek additional mechanisms to increase youth involvement in the Federal
Subsistence Management Program to support generations of conservation
leaders. These future leaders will protect the continuation of the
opportunity for subsistence uses on federal lands, which is essential
to the physical, traditional, cultural, and social existence of rural
residents in Alaska. This unique existence has withstood natural,
institutional, and social challenges for many generations.
______
*RESPONSES TO THE FOLLOWING QUESTIONS WERE NOT AVAILABLE AT THE TIME
THIS HEARING WENT TO PRINT*
Written Questions Submitted by Hon. Catherine Cortez Masto to
Hon. Roy B. Brown
Question 1. Many tribes are facing additional barriers due to state
regulations. Indigenous peoples who have practiced subsistence fishing
and hunting for generations are experiencing large fines for not
abiding by state regulations and a seizure of goods and supplies
necessary for subsistence harvesting at the hands of the state. How can
the federal government assume an active role in protecting the
sovereignty of native peoples and continuing this tradition and what
would tribal co-management over subsistence activities look like?
How could we balance state interest to protect endangered species
with tribal rights to subsistence activities?
Question 2. One of the prominent barriers to subsistence activities
is the harmful role of climate change in natural ecosystems in Indian
Country. We know that when lakes and other natural resources are
polluted and communities are unable to harvest resources, they lose an
important source of nutrition?
Have you collected any data or research on the relationship between
environmental pollution and native health in communities that practice
subsistence fishing, hunting, or farming?
If so, can you talk about how native health is impacted by climate
change?
Question 3. I understand that Native populations are the most
vulnerable group to climate change and that environmental pollution of
tribal lands and resources generally comes from surrounding businesses,
plants, and communities that do not belong to the tribal community.
What can we do to protect tribal lands from surrounding environmental
pollution and what course of action can tribes or the government take
against organizations, communities, or individual who contaminate
tribal lands?
How can traditional knowledge help address climate change impacts
facing tribes? Do you think western science takes your suggestions
seriously?
Question 4. A large part of our discussion today has revolved
around the numerous barriers to subsistence activities, particularly
focusing on the role of the Federal Subsistence Board in management.
However, we know that for native communities subsistence activities are
an important source of cultural identity and heritage. We know that
cultural connections including traditional values, customs, activities,
and ceremonies serve as protective factors in the lives of tribal youth
by discouraging delinquent behavior, encouraging academic success, and
alleviating various stressors on native youth. Could you talk about the
emotional, spiritual, and cultural toll these barriers to subsistence
activities have had on native communities, specifically related to
native youth?