Subsistence uses—including the hunting, fishing, harvesting, trading, and consumption of fish, wildlife, and plant life—are necessary for the livelihood of many residents of Alaska. More than the residents of any other state, Alaska's residents rely on subsistence uses of fish, wildlife, and plant life for their daily nutritional needs. In particular, subsistence harvests provide Alaska's numerous rural communities with a large share of their food supply. These communities may not have regular access to commercial food sources due to their distance from urban centers and the high cost of flying foods into some areas. In addition, for many Alaskans, the role of subsistence uses is about more than food consumption and economics; it is directly tied to their history and central to their customs and traditions. In many Alaska Native communities, subsistence uses are vital not only as a source for food but also as they relate to clothing, transportation, trade, ceremonial activities, and other purposes.¹

Given the cultural and economic importance of subsistence uses to certain communities in Alaska, and the potential for protections of such uses to affect other resource priorities, issues related to the management of subsistence use are of significant interest at the local, state, and federal levels. Both state and federal law have recognized and protected the usage of resources from Alaska's lands and waters for subsistence purposes. The State of Alaska generally manages subsistence uses on state lands, Alaska Native Corporation (ANC) lands, and other private lands.² The federal government manages these practices both on federal lands and in the territorial sea and exclusive economic zone in offshore waters beyond state waters (i.e., generally from 3 to 200 nautical miles from the baseline of low sea level).³ In addition, the federal government may exercise authority to manage subsistence uses outside federal boundaries when concerning a particular species or a specific region in Alaska.

This report begins with an overview of subsistence uses of resources in Alaska and the traditional and current practices of those who partake in such activities. The report then discusses selected federal statutes that apply to subsistence uses of fish, wildlife, and plant life; their application in Alaska; and how federal agencies implement and administer these statutory requirements. Federal management of subsistence uses of natural resources in Alaska is complex and governed by various laws depending on the type of species involved, where such activities take place, and other factors; this report highlights only certain federal statutes of congressional interest. As part of this discussion, the report explores whether, or to what degree, such statutes provide a preference for certain groups in protecting the right to subsistence practices. Finally, the report examines various issues in which Congress may have, or has previously expressed, an interest.

What Does Subsistence Uses Mean?

Although usage varies, generally speaking, the term subsistence uses or subsistence in federal statutes and regulations refers to the practice of relying on the surrounding environment as a source of food and materials for daily life. For some, the term subsistence uses includes only such nutritional or economic purposes. For others, the concept of subsistence use extends beyond sustenance to encompass activities tied to their historical and cultural identity. In particular, some Alaska Native communities have criticized the term subsistence and its usage for not adequately capturing how such practices are integrated into their cultural, religious, and social systems.⁴ For many Alaska Natives, subsistence uses of fish, wildlife, and plant life are directly tied to their way of life and rooted in their historical and cultural identities.⁵ Beyond relying on these resources for food, these communities may rely on harvesting and processing wild resources for clothing, fuel, transportation, construction, traditional arts and crafts, customary trade, and other purposes.

Certain federal laws and regulations—including those that directly address land management in Alaska—include definitions for subsistence or subsistence uses.⁶ For example, the Alaska National Interest Lands Conservation Act (ANILCA), the primary statute governing subsistence activities on federal lands in Alaska, defines subsistence uses as

"the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade."⁷

ANILCA does not define wild, renewable resources, but agencies generally have interpreted the law to apply to animals; plants, including timber and berries; and other living resources, such as fungi.⁸ Other statutes and regulations define subsistence similarly but may be narrower in scope due to the applicability of the law in question. For example, implementing regulations for the Migratory Bird Treaty Act (MBTA) define subsistence to mean "the customary and traditional harvest or use of migratory birds and their eggs by eligible indigenous inhabitants for their own nutritional and other essential needs."⁹ (See "Selected Federal Statutes Governing Subsistence Uses of Resources in Alaska" for more information.) Generally, laws distinguish between hunting, fishing, or harvesting in the customary and traditional nature of subsistence practices and for recreational or commercial purposes.¹⁰

For the purposes of this report, the term subsistence is used throughout for consistency and due to the legal significance of the term and its general use within and across federal statutes. However, the usage and description of subsistence herein may not fully encompass all aspects of the term or its meaning across all stakeholder groups. CRS recognizes that subsistence may have different applicability based on statutory context and that some stakeholders may raise concerns about the adequacy of the term or its scope based on their specific perspectives and interests.

Brief History and Background

Alaska Native communities have relied on harvesting fish and wildlife resources for subsistence for thousands of years. Various birds, fish, marine mammals, land mammals, and plants have all been historical sources of food and supplies, with some communities more reliant on certain resources due to their geographic location, seasonality, and cultural traditions. Today, both Alaska Native communities and non-Alaska Natives use natural resources for subsistence purposes. Subsistence harvesting of fish and wildlife resources is particularly critical in rural Alaska, where it remains a cornerstone of food security and daily life. This is due, in part, to many rural Alaskans' limited access to commercial centers and the often high cost of retail food across many parts of the state.¹¹ According to federal estimates, approximately 18,000 tons of wild foods are harvested annually by rural Alaskans for subsistence uses.¹² The largest share comes from harvesting fish, which makes up roughly 56% of the subsistence harvest statewide.¹³

From 1867 (the year the United States purchased Alaska) until Alaska's statehood in 1959, the federal government was primarily responsible for managing Alaska's fish and wildlife resources. Starting in the early 20^th century, Congress passed numerous laws aimed at restricting hunting practices to protect certain species. Many of these laws expressly exempted hunting and fishing for subsistence uses from such limitations or seasonal closures. For example, the Alaskan Game Law of 1902 restricted the taking of game animals but exempted hunting for food or clothing by "native Indians or Eskimos or by miners, explorers, or travelers on a journey when in need of food."¹⁴ Upon Alaska's statehood, the federal government transferred the general authority to manage fish and wildlife to the new state government, consistent with the traditional role of states in managing such resources, and the Alaskan government subsequently enacted laws recognizing subsistence harvesting of fish and wildlife resources.¹⁵

In the 1970s and early 1980s, Congress passed legislation that reasserted a federal role in protecting and managing subsistence uses in Alaska for certain species or lands. When Congress passed or amended laws protecting certain species on a national scale and passed a law to manage species on federal lands in Alaska, it included specific exemptions for subsistence users—particularly those in Alaska—from certain otherwise prohibited activities. The sections below discuss a selection of these laws.

Alaska Native Land Claims and Subsistence Use Rights

Matters involving the resource rights of American Indians and other Indigenous communities often are complex and may require consideration of treaties, executive orders, acts of Congress, regulations, case law, and deeds or other land title documents. For many American Indians in the lower 48 states, hunting and fishing rights (including hunting and fishing for subsistence uses) were preserved and generally are governed by long-standing treaties with the federal government. In Alaska, however, the federal government used a different approach to resolving land claims and established a land entitlement system distinct from the reservation system in place for many tribes in the lower 48 states.

The Alaska Native Claims Settlement Act (ANCSA), enacted in 1971, extinguished Alaska Natives' claims to over 360 million acres of land.¹⁶ In exchange, Alaska Natives received approximately 45 million acres of land and a settlement payment of $962.5 million (roughly $5.24 billion in current dollars). Pursuant to ANCSA, the majority of this land and cash settlement was divided among ANCs, which include more than 200 village corporations and 12 regional corporations. Unlike tribal governments, which have government-to-government relationships with the United States, ANCs are business entities organized under the laws of Alaska. Once an ANC receives title to land under ANCSA, the land is considered private property. This ownership structure differs from most tribal lands in the lower 48 states, which are owned by the federal government and held in trust for the benefit of the tribe communally or tribal members individually. Accordingly, whereas tribal lands in the lower 48 states are generally federal lands managed pursuant to a federal trust relationship, ANC and village corporation lands in Alaska are private lands managed by the corporations and governed under federal, state, and local laws.¹⁷

In addition to extinguishing prior title and land claims held by Alaska Natives, ANCSA extinguished "any aboriginal hunting or fishing rights" on lands in Alaska.¹⁸ As a result, federal hunting and fishing rights of most Alaska Native communities are determined by various laws enacted after ANCSA's passage rather than pursuant to preexisting rights preserved in treaties. These governing laws include those discussed in this report.

Selected Federal Statutes Governing Subsistence Uses of Resources in Alaska

Although the State of Alaska generally manages subsistence uses of resources on state lands and certain private lands, including Native allotments and ANC lands,¹⁹ the federal government plays a significant role in managing subsistence uses in Alaska. Congress has passed a number of statutes that either directly or indirectly provide for the protection and/or recognition of subsistence uses. Some of these laws, such as such as ANILCA, apply only to the harvesting and use of resources located on lands owned and managed by the federal government.²⁰ Other federal laws may apply when concerning subsistence uses of specific species both on and off federal lands. For example, the Endangered Species Act (ESA) includes an exemption that generally allows Alaska Natives to harvest listed species for food or for crafting certain traditional handicrafts, the Marine Mammal Protection Act (MMPA) governs subsistence harvests of marine mammals, and the Migratory Bird Treaty Act (MBTA) governs the harvest of migratory birds in certain areas in Alaska.²¹ The applicability and enforcement of these statutes extend beyond the federal lands and inland waters that are generally covered under ANILCA.

This section provides a brief overview of selected federal statutes that govern subsistence uses of resources in Alaska. It discusses their applicability, as well as the role of the federal government in enforcing relevant subsistence use provisions. Because federal management of subsistence uses in Alaska is complex and can depend on various factors, this report highlights only certain federal statutes that may be of interest to Congress.²²

Alaska National Interest Lands Conservation Act

Enacted in 1980, ANILCA is the primary statute governing the management of federal lands within Alaska. ANILCA designated more than 100 million acres of federal land in Alaska as new or expanded conservation system units that included national parks and preserves, national wildlife refuges, wilderness areas, and other designations.²³ Among its many provisions, ANILCA specifically recognized and protected subsistence uses on the newly designated lands, as well as all conservation system units in Alaska established prior to and after ANILCA's enactment.

ANILCA governs subsistence use of "wild, renewable resources" on federal lands in Alaska (for more information on the extent of ANILCA's applicability, see "Multiple Land Management Mandates and Jurisdictional Questions").²⁴ Title VIII of the law specifically provides for preference to be given to "the taking on public lands of fish and wildlife for nonwasteful subsistence uses" over the taking of fish and wildlife for other purposes.²⁵ Specifically, the law mandates that "rural residents of Alaska, including both Natives and non-Natives," be given priority for subsistence uses of fish and wildlife on federal public lands and waters in Alaska.²⁶ It further requires that the Secretary of the Interior "ensure that rural residents engaged in subsistence uses shall have reasonable access to subsistence resources on the public lands."²⁷

ANILCA's priority for subsistence uses authorizes federal agencies to limit or restrict the taking of fish and wildlife for other purposes to protect the continued viability of a fish or wildlife population or the continuation of subsistence uses of such population.²⁸ In addition, ANILCA requires federal agencies to consider potential adverse impacts upon subsistence uses and resources that may result from land use decisions. For example, if a federal agency proposes to dispose of or lease public lands in a way that would significantly restrict subsistence uses, the agency is required to hold a hearing in the vicinity of the proposed action. In addition, the agency must make a determination as to the necessity of the impending action and steps it would take to minimize any adverse impact upon subsistence uses.²⁹

Federal Management of Subsistence Uses Under ANILCA

Title VIII of ANILCA provides the opportunity to manage subsistence hunting and fishing on Alaskan federal lands to the State of Alaska in lieu of the federal government.³⁰ Under ANILCA, such management is contingent upon the state legislature enacting laws consistent with certain provisions and terms of the legislation. This includes ANILCA's requirements for establishing a priority for subsistence hunting and fishing for rural Alaskans. Following the enactment of ANILCA, the State of Alaska enacted a law that limited the definition of subsistence uses to residents of "rural areas," thereby complying with Title VIII of ANILCA.³¹ Pursuant to Title VIII, the State of Alaska, through the state Board of Fisheries and Board of Game, managed subsistence uses on federal lands for the first decade following ANILCA's enactment. Then in 1989, the Alaska Supreme Court held that the rural residency preference established by state law (and required under ANILCA) violated the equal access clause of the Alaska state constitution.³² Pursuant to the ruling, the state removed the rural preference from its subsistence use law, which caused the law to no longer comply with the requirements of Title VIII of ANILCA for state management on federal lands. Because the Alaska state constitution prevents the state from enacting a law to manage subsistence uses that is consistent with Title VIII of ANILCA, the federal government has managed subsistence uses on federal lands in Alaska since Alaska changed its state law in 1990.

At that time, the Department of the Interior (DOI) and the Department of Agriculture (USDA) determined that federal management of subsistence uses on the public lands required "an administrative structure ... to execute the Secretaries' subsistence responsibilities and perform functions specific to public lands."³³ In light of the federal responsibilities at stake, the Secretaries of the Interior and Agriculture established the Federal Subsistence Board (FSB) in 1992, delegating to the FSB the authority to oversee subsistence use programs authorized under Title VIII of ANILCA.³⁴

DOI and USDA promulgated regulations outlining the FSB's authorities and responsibilities. These include issuing rules and regulations for the management of subsistence harvests of fish and wildlife on Alaska public lands and waters, setting open season dates and harvest limits, making determinations of rural and non-rural communities and areas, and determining customary and traditional subsistence uses.³⁵ The authority of the FSB extends only to Alaska federal lands, primarily those administered by the U.S. Fish and Wildlife Service (FWS), the National Park Service (NPS), the Bureau of Land Management (BLM), and the U.S. Forest Service (FS).³⁶ Certain waters within or adjacent to federal public lands also have been under the FSB's jurisdiction since 1995, when the U.S. Court of Appeals for the Ninth Circuit held that "subsistence priority applies to navigable waters in which the United States has reserved water rights" pursuant to the reserved water rights doctrine.³⁷ The reserved water rights doctrine provides that when the United States withdraws land from the public domain for a particular federal purpose, it implicitly reserves appurtenant waters that have not otherwise been appropriated, though only to the extent necessary to fulfill the reservation's purpose.³⁸

Endangered Species Act

The ESA (16 U.S.C. §§1531 et seq.) aims to conserve species and their ecosystems by identifying certain species in danger of extinction, either presently or in the foreseeable future. Those species are then listed as endangered or threatened and are subject to certain statutory and regulatory protections.³⁹ Among other things, the act prohibits any individual from taking or importing an endangered species.⁴⁰ Under the act, taking means harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting the species, or attempting to do the same.⁴¹ The prohibitions that apply to endangered species generally may be extended to threatened species by regulation.⁴²

The ESA allows for certain exceptions from one or more of the act's prohibitions, including an exception for Alaska Natives.⁴³ Under the exception, any "Indian, Aleut, or Eskimo" who is native to and resides in Alaska, and any non-Alaska Native who is a permanent resident of an Alaskan Native village and who primarily depends on taking fish and wildlife for consumption or for creating authentic native articles of handicraft and clothing, is not prohibited from taking endangered or threatened species or from importing any species so taken.⁴⁴ Any such taking must be "primarily for subsistence purposes" and "not accomplished in a wasteful manner."⁴⁵ The act does not define subsistence in general but does specify that subsistence includes selling edible portions of the fish or wildlife, so long as these portions are sold and consumed in Alaskan Native villages and towns.⁴⁶

The act also allows nonedible byproducts of such fish and wildlife to be sold in interstate commerce when they are turned into "authentic native articles of handicrafts and clothing".⁴⁷ To qualify, the handicrafts or clothing must be wholly or in a significant respect composed of natural materials and must be made or decorated "in the exercise of traditional native handicrafts" without using any pantographs, multiple carvers, or mass copying devices.⁴⁸ Examples of such crafts include weaving, beading, or drawing.⁴⁹

FWS or the National Marine Fisheries Service (as applicable) can regulate taking of listed species by "Indian[s], Aleut[s], or Eskimo[s]," or non-Alaska Native residents of Alaskan Native villages, when either agency determines that such taking is "materially and negatively" affecting the listed species.⁵⁰ Any such regulations may specify the geographical area and season for taking the species and any other factors related to why the regulation is being implemented.⁵¹ The regulations must be removed once the reason for imposing them no longer exists.⁵²

Migratory Bird Treaty Act

The MBTA implements four bilateral treaties governing migratory birds. These treaties between the United States and Canada, Japan, Mexico, and Russia generally include similar—but distinct—provisions. In general, each treaty requires the party nations to provide for the protection of certain migratory birds, allowing for the designation of hunting seasons for certain game birds and providing for certain exceptions.⁵³ Exceptions for Alaska Native subsistence uses differ across each treaty. The treaties with Russia and Japan include general exceptions from the treaties' prohibitions for Alaska Natives for subsistence needs.⁵⁴ The original treaty with Canada included a limited exception for specific species of nongame birds, and the original treaty with Mexico did not contain an exception for Alaska Natives.⁵⁵ In the 1990s, the treaties with Canada and Mexico were amended to allow for seasonal subsistence harvesting for Alaska Natives.⁵⁶

The MBTA was initially enacted in 1918 to implement the bilateral treaty with Canada and has been amended to reflect the subsequent treaties and amendments to these agreements. In general, the MBTA prohibits hunting, taking, capturing, killing, or engaging in an array of commerce-related activities with respect to specific migratory birds unless that activity is authorized pursuant to prescribed migratory bird hunting regulations or permits issued for specific purposes.⁵⁷ As an exception to these prohibitions, the MBTA authorizes FWS to issue regulations as needed to ensure the Indigenous inhabitants of Alaska may take migratory birds and collect their eggs for their own nutritional and other essential needs during seasons established by FWS.⁵⁸

FWS has issued regulations implementing this exception for Alaska Natives.⁵⁹ These regulations must be consistent with all four treaties.⁶⁰ To assist with implementation, FWS established the Alaska Migratory Bird Co-management Council.⁶¹ The council comprises representatives from the federal government, Alaska, and Alaska Natives from 12 regional management areas.⁶² The council develops recommendations for regulations related to the subsistence harvest; procedures and criteria for areas and communities to become eligible; and recommendations for other areas, such as law enforcement policies, population monitoring, research and use of traditional knowledge, and habitat protection.⁶³ The council holds public meetings at least twice a year that provide an opportunity for public comment.⁶⁴

FWS regulations identify certain subsistence harvest areas and allow other areas to be designated as such upon recommendation by the Alaska Migratory Bird Co-management Council.⁶⁵ Permanent residents of villages in subsistence harvest areas are eligible to harvest migratory birds and eggs for subsistence purposes; immediate family members of such residents also may assist with the customary spring and summer subsistence harvest with permission of the village's or tribe's council, as applicable.⁶⁶ The regulations identify which species are eligible for subsistence harvesting and provide region- and species-specific periods during which harvest may occur. They also prohibit certain methods and means of harvesting the birds or eggs.⁶⁷ The regulations reserve FWS's right to close or temporarily suspend any regulations as needed to address imminent threats to the conservation of any listed species or migratory bird population.⁶⁸

FWS's regulations for migratory bird subsistence harvesting in Alaska apply only during the closed season (March 10 to September 1 each year), when hunting otherwise would be prohibited.⁶⁹ During the open season, the regulations that govern the hunting of migratory game birds apply equally to subsistence harvesting.⁷⁰

Marine Mammal Protection Act

The MMPA prohibits taking or importing marine mammals or marine mammal products except as provided for in the act.⁷¹ The act provides an exemption from the taking prohibition for Alaska Natives.⁷² The exemption applies to "any Indian, Aleut, or Eskimo who resides in Alaska" along the Arctic Ocean or north Pacific Ocean coasts.⁷³ To qualify, the Alaska Native must take the marine mammal for "subsistence purposes" or to create and sell authentic native articles of handicrafts and clothing.⁷⁴ The taking also must be accomplished in a manner that is not wasteful.⁷⁵ Alaska Natives may sell edible components of marine mammals only in Alaska Native villages and towns or for native consumption, but they may sell native handicrafts and clothing in interstate commerce.⁷⁶

Take by Alaskan Natives may be regulated with respect to species or stocks of marine mammals that are determined to be depleted under the MMPA.⁷⁷ A species or stock is depleted when it is listed as endangered or threatened under the ESA or when an appropriate federal or state agency determines the species or stock is below its optimum sustainable population.⁷⁸ The optimum sustainable population of a species or stock is the population level that will maximize the species' or stock's productivity, based on its habitat and the health of its ecosystem.⁷⁹ Any such regulations may establish particular geographical areas or seasons for taking, as well as any other factors related to the reason for imposing the restriction.⁸⁰ The regulations must be removed once the reason for imposing them no longer exists. The National Marine Fisheries Service has enacted regulations governing the take of beluga whales in Cook Inlet and fur seals on the Pribilof Islands.⁸¹ FWS has enacted regulations governing take of the Pacific walrus.⁸²

Issues for Congress

Subsistence hunting and fishing in Alaska has long been an issue of congressional and stakeholder interest. Over the years, various groups, including Alaska Native communities, rural residents, and other interest groups, have identified an array of issues pertaining to subsistence use. These issues range from general concerns, such as the role of the federal government in managing such activities or the impacts of climate change on communities that engage in subsistence use practices, to more specific concerns regarding priority access and harvesting limits. This section provides an overview of selected issues that have been of interest to Congress in recent years.

Federal Versus Nonfederal Management

The role of the federal government in overseeing subsistence uses in Alaska is an ongoing issue of congressional interest. Some concerns generally relate to federal ownership and management of land, such as whether Congress should transfer ownership of some lands or delegate some resource management responsibilities to the State of Alaska. Other concerns are specific to federal programs addressing subsistence uses, such as federal management under the FSB, and federal engagement and cooperation with local and Alaska Native communities.

In general, the federal government has recognized states' traditional authority to manage fish and resident wildlife within their borders. That authority typically extends to federal lands, barring specific preemptions.⁸³ For subsistence harvests in Alaska, however, the federal government—primarily through ANILCA—asserted authority over certain aspects of natural resource management on federal lands. To address this potential conflict, Title VIII of ANILCA provides the state with the opportunity to manage subsistence harvesting on federal lands in place of the federal government so long as state subsistence laws are in compliance with ANILCA. However, following the aforementioned legal decisions in the late 1980s (see "Federal Management of Subsistence Uses Under ANILCA"), the federal government has overseen management of fish, wildlife, and plant life for subsistence purposes through the FSB since 1990. This management transfer to the FSB has continued to be an issue of ongoing debate.⁸⁴

Initially, some stakeholders and state lawmakers assumed federal management under ANILCA would be temporary until the state came into compliance through legislative or administrative action.⁸⁵ The initial regulations for the FSB were promulgated as temporary rules "in anticipation of the State returning to compliance with Title VIII."⁸⁶ The agencies further stated that "it is preferable to have [subsistence fish and game] management responsibility lie with the State."⁸⁷ However, since the state has not resolved the question of compliance with both Title VIII and the Alaska state constitution, federal management under the FSB has continued despite opposition from some stakeholders. For example, some have suggested that because a federal management entity was not envisioned by ANILCA (it is not explicitly mentioned or alluded to in the law), the FSB's management role is out of step with Congress's initial intent in enacting ANILCA.⁸⁸ Others have suggested expanding the federal government's role in managing subsistence uses. This approach has included proposals for the federal government, rather than the state, to manage subsistence on the roughly 45.5 million acres of Alaska Native-owned land conveyed under ANCSA.⁸⁹

In addition to concerns regarding the extent of the federal government's authority, some stakeholders have questioned the federal government's ability to provide for adequate subsistence harvests for qualified users. They have raised questions of whether the federal government can adequately manage the substantial land area subject to ANILCA (more than 60% of land in Alaska is under federal jurisdiction). Others have suggested that the FSB and other federal agencies have failed to prioritize land management decisions that ensure healthy and abundant populations are available for continued subsistence use.⁹⁰ To address these issues, stakeholders have advocated for allowing state managers to conduct management activities on federal lands.⁹¹ Others have argued that implementation of state wildlife strategies—and in particular, intensive or active management approaches—would directly conflict with the statutory mandate some federal agencies have in managing wildlife resources (see "Multiple Land Management Mandates and Jurisdictional Questions" for more information).⁹²

Other concerns pertain to the manner in which the federal government engages and interacts with local and Alaska Native communities. Some Alaska Native stakeholders have pointed to past failures by federal agencies to allow traditional subsistence harvest practices as a source of ongoing distrust and frustration between these communities and the government.⁹³ Still others have suggested federal agencies should strengthen resource management partnerships via cooperative agreements and comanagement relationships with Alaska Native and local communities.⁹⁴ Alaska Native communities have called on federal agencies to incorporate and prioritize Indigenous knowledge into federal fish and wildlife management, monitoring, and research programs.⁹⁵ The federal government has conducted reviews of its programs managing subsistence harvesting of resources and has made changes in response to some of these concerns. Past Administrations also have pointed to the "bottom-up management" approach provided by regional advisory councils—administrative bodies that provide advice and recommendations to the FSB about subsistence hunting and fishing issues in Alaska.⁹⁶ Pursuant to regulations, these councils must have representation from local communities within the applicable region with knowledge of issues relating to subsistence harvest, which some argue allows for local residents to have a substantial role in guiding the federal subsistence program.⁹⁷

Multiple Land Management Mandates and Jurisdictional Questions

Although ANILCA and other statutes establish a management priority (or exemption) for subsistence uses, the federal government is required to balance these requirements with other management provisions established under other laws (e.g., the National Wildlife Refuge System Administration Act for FWS and the National Park Service Organic Act of 1916 for NPS).⁹⁸ The purposes and mandates of these laws are not always easily balanced, and at times agencies may be directed to engage in activities that seem at odds with one another. As a result, some agencies have been reluctant to engage in certain activities that support subsistence uses but may not advance the management goals established under other authorities. In particular, some agencies have declined, at times, to pursue the type of active or intensive management of fish and wildlife populations (e.g., predator control, habitat enhancements) that some stakeholders claim is necessary to sustain subsistence needs.⁹⁹ For example, stakeholders and state management officials have suggested NPS and FWS have resisted these types of management practices in Alaska because of their interpretation of the NPS Organic Act of 1916 (NPS) and the National Wildlife Refuge System Administration Act (FWS) and those laws' emphasis on "park values" and "natural diversity," respectively.¹⁰⁰ Agencies generally have highlighted the difficulty in balancing the demands of subsistence users with multiple legal mandates and other public interests.¹⁰¹ In other instances, agencies such as FS and BLM are explicitly required by statute to manage lands and resources under their jurisdiction for multiple uses, including energy development, livestock grazing, recreation, and timber harvesting, which some have claimed prevents subsistence use from being properly prioritized. Specifically, some stakeholders have pointed to BLM's onshore oil and gas leasing program as having potential harmful impacts to subsistence users.¹⁰² Others, including some Alaska Native stakeholders, suggest that present and future oil and gas development is the foundation of a sustained local economy and must be balanced with ensuring future subsistence use.¹⁰³

Other challenges include balancing competing objectives within the same statute, as some laws that require protection of migratory birds or threatened or endangered species also authorize subsistence harvests. To address some of these concerns, DOI has established policies requiring agencies to consult with Alaska Native communities when regulating subsistence harvest of endangered or threatened species.¹⁰⁴ These consultation requirements aim to preserve subsistence harvest rights while minimizing adverse impacts on listed species.

In addition to conflicting mandates, some stakeholders have argued that sustainable resource management challenges are compounded when multiple governmental entities (state and/or federal) have jurisdiction over the same or similar resources. In particular, the "dual regulation of fish and game resources where state and federal jurisdictions intersect" has created confusion among subsistence and rural communities in Alaska, according to some stakeholders.¹⁰⁵ For example, in instances where state and federal regulations have different limits for a certain species, subsistence users must be aware of the jurisdiction in which they are hunting or fishing to know whether they are harvesting in accordance with applicable regulations. This exercise can become further complicated when hunting or fishing near the boundary between such lands, particularly if no clear markers delineate the federal-state boundary. In addition, some have argued that implementing a federal regulatory framework alongside a similar state system increases administrative costs that might otherwise be avoided with a single regulatory body.¹⁰⁶

Other jurisdictional concerns relate specifically to whether and where the federal government has jurisdiction over inland waters, bringing them under the definition of public lands for purposes of ANILCA and therefore requiring subsistence use management of the inland waters and their fishery stocks. As noted below, waters within or adjacent to federal public lands have been under the jurisdiction of the FSB since a Ninth Circuit decision in 1995 (for more information, see text box "The Katie John Litigation").¹⁰⁷ Since that decision, the degree or extent to which ANILCA's subsistence use priority—and in, turn, FSB regulations—applies to waters and fishery stocks has been the subject of litigation and concern for some stakeholders.¹⁰⁸ In some instances, state and federal officials have issued conflicting orders opening and/or closing fishing in the same waters. For example, in 2021, the Alaska Department of Fish and Game opened driftnet salmon fishing on the lower Kuskokwim River within the Yukon Delta National Wildlife Refuge on certain days to all Alaskans through an emergency order, but FWS had opened fishing only to qualified subsistence users under ANILCA.¹⁰⁹ In May 2022, the federal government sued the state to block the state's emergency order; the U.S. District Court of Alaska later granted an injunction preventing the state from implementing the order.¹¹⁰

Access to Subsistence Rights or Exemptions

Another issue raised by some stakeholders concerns which Alaska residents are eligible for subsistence use priority or exemptions. Some of these concerns relate to how the government determines or defines eligibility under certain laws. In particular, the process by which the FSB determines rural status in Alaska under ANILCA has come under scrutiny. Other concerns relate to potential confusion caused by the varying eligibility standards established for subsistence use priorities or exemptions across multiple statutes. Finally, some Alaska Native communities have suggested that the extension of subsistence use priorities or exemptions to non-Alaska Native communities does not adequately protect their traditional subsistence practices and culture.

Rural Priority Determination

Title VIII of ANILCA establishes a priority use of federal lands for subsistence purposes that applies only to "rural residents of Alaska." Because ANILCA does not define which individuals or communities qualify as rural, the FSB determines when a community or area of Alaska should or should not be considered rural using guidelines and characteristics defined by the Secretaries (see Figure 1).¹¹¹ Determinations of non-rural status—and subsequent ineligibility for the Title VIII subsistence priority—have been the subject of debate at times.

Figure 1. Federal Subsistence Board Non-rural and Rural Determinations (as of December 2022)

Source: Department of the Interior, "Federal Subsistence Management Program, Non-rural Areas," p. 1, at https://www.doi.gov/sites/doi.gov/files/non-rural-areas.pdf.

One specific issue that has generated concern is the factors that the FSB considers in making such a determination. Under previous regulations, the FSB would determine if a community was rural or non-rural based primarily on set population ranges (e.g., communities of 2,500 or fewer residents were deemed rural).¹¹² The regulations required these determinations to be reviewed every 10 years. Through this review process, the FSB had determined that a number of rural areas had become non-rural and therefore would become ineligible for the Title VIII subsistence use priority.¹¹³ After stakeholders raised concerns about the implications of individuals becoming ineligible, the federal government promulgated new regulations in 2015 that removed specific guidelines for the non-rural determination process, including requirements regarding population data, the aggregation of communities, and the decennial review.¹¹⁴ According to the agencies, these new regulations provide the FSB with more discretion in making decisions by taking into account regional differences across Alaska and allow for greater input from relevant stakeholders.¹¹⁵ Even with the new regulations, certain stakeholders believe the revised regulations continue to exclude certain residents—especially Alaska Native residents living in non-rural areas—for whom subsistence uses on federal lands are important to maintaining a connection with their culture and traditional practice (see "Alaska Native Versus Non-Alaska Native Eligibility").¹¹⁶

Differences in Subsistence Use Eligibility Across Statutes

Each of the statutes discussed in this report establishes explicit exemptions or priority use for certain subsistence practices across Alaska. How and when these exemptions or priorities apply vary depending on the law in question. Some statutes establish subsistence priorities or exemptions based on the racial or ethnic identity of the user, whereas others base applicability on certain geographic regions. Still others some consider both racial and geographic factors. For example, the ESA explicitly exempts "native Alaskans" from prohibitions on taking or importing endangered or threatened species for subsistence purposes.¹¹⁷ Under the law, native Alaskan includes any "Indian, Aleut, or Eskimo" who resides in Alaska—as well as non-Alaska Native individuals who are permanent residents of Alaskan Native villages.¹¹⁸ Meanwhile, the subsistence use exemption under the MMPA applies only to "Indian, Aleut, or Eskimo" individuals and further limits the exemption to only those individuals living "on the coast of the North Pacific Ocean or the Arctic Ocean."¹¹⁹ Non-Alaska Native individuals are not eligible for an exemption under the MMPA.

By contrast, the MBTA and ANILCA do not specifically limit subsistence use rights on the basis of race or racial heritage. The MBTA exemption applies to "indigenous inhabitants of the State of Alaska," and FWS regulations define the term to mean "a permanent resident of a village within a subsistence harvest area, regardless of race."¹²⁰ Similarly, although ANILCA recognizes the importance of subsistence uses to "Native physical, economic, traditional, and cultural existence," the law does not restrict subsistence hunting and fishing on federal lands to Alaska Natives or grant priority rights for such practices on the basis of tribal or Native affiliation. Instead, the law defined subsistence uses in terms of the customary and traditional uses by "rural Alaska residents," effectively extending the subsistence use priority on federal lands to both Alaska Native and non-Alaska Native residents.¹²¹

Given the complexity of this statutory framework, and the manner in which these laws may overlap and apply different qualifying standards, when and for whom subsistence use rights and exemptions apply can cause confusion. For example, an individual eligible for subsistence use priority under ANILCA may not be able to continue subsistence harvest practices with respect to a particular species if the species is subsequently listed as endangered or threatened under the ESA. Similarly, although FWS has indicated that no migratory birds open for harvest during the subsistence season in Alaska are currently threatened or endangered species, a future listing could cause a person previously eligible to hunt a species under the MBTA to no longer be eligible to hunt it under the ESA due to the differing eligibility provisions of the two statutes.

Alaska Native Versus Non-Alaska Native Eligibility

Another issue that has been a topic of debate is whether, or the degree to which, subsistence use priorities or exemptions apply to non-Alaska Native communities. Only the MMPA subsistence use exemption applies exclusively to "Indian, Aleut, or Eskimo" individuals (and only when those individuals are living on the coast of the North Pacific Ocean or the Arctic Ocean). Other subsistence-related statutes generally apply to both Alaska Native and non-Alaska Native individuals. Some Alaska Native communities object to the extension of subsistence use rights and exemptions to non-Alaska Native communities, claiming this approach risks not adequately ensuring and protecting Alaska Native subsistence practices and culture.¹²² The lack of explicit protections or priority for Alaska Native subsistence users in ANILCA (which instead confers such benefits to "rural Alaska residents") in particular has been an issue of concern for some Alaska Native communities.

With the passage of ANCSA in 1971, aboriginal hunting and fishing rights were extinguished for participating Alaska Native communities.¹²³ Although the conference report for ANCSA indicates that Congress may have expected that the Secretary of the Interior and the State of Alaska would use their authorities to protect specifically Alaska Native interests in subsistence activities,¹²⁴ following the law's passage many stakeholders expressed dissatisfaction with any such limitation.¹²⁵ The passage of ANILCA in 1980 was intended, in part, to resolve the issues of Alaska Native subsistence uses through Title VIII's rural priority provision,¹²⁶ which extends to both Alaska Natives and non-Alaska Natives. Since then, some Alaska Native communities have contended that ANILCA insufficiently protects the continuation of Alaska Native subsistence use rights and have advocated for amending the law to provide an explicit Alaska Native priority or higher priority for Alaska Natives, which they believe would better protect their traditions and culture.¹²⁷

By contrast, some have highlighted that subsistence uses are also vitally important to the food security of non-Alaska Natives in rural communities and therefore have advocated for a modified rural priority under ANILCA.¹²⁸ Under this approach, ANILCA's subsistence use priority would extend to Alaska Natives living in both rural and urban communities—as well as to non-Alaska Natives living in rural designated areas. According to these advocates, such a proposal would recognize that Alaska Natives in urban communities maintain a customary and traditional connection to subsistence activities, while also ensuring rural, non-Alaska Natives have access to subsistence practices that are vital to their food security. Other stakeholders oppose any subsistence use priority based on an individual's race or tribal affiliation and claim that federal lands in Alaska should be open to anyone, as Alaska's state constitution would provide.¹²⁹

Enforcement

Other potential challenges facing federal agencies involve the enforcement of subsistence use provisions under the law. Some of these issues are not specific to subsistence use but rather reflect overall challenges regarding the enforcement of wildlife and conservation laws, particularly in Alaska.¹³⁰ As mentioned, more than 60% of land in Alaska is under federal jurisdiction, comprising more than a third of the entire federal estate.¹³¹ Many of these lands are in remote regions, making enforcement and oversight challenging. In some cases—due, in part, to the sheer scale of their jurisdictional boundaries—federal agencies rely on citizen reports and/or whistleblowers to identify crimes and enforce penalties.¹³² Some Members of Congress have introduced legislation that would aim to improve the protection of whistleblowers and support funding of certain wildlife and conservation statutes.¹³³

Other potential law enforcement challenges may be more specific to subsistence uses and harvests. For example, agencies may run into difficulties verifying for whom and when subsistence use privileges or exceptions apply. Although the harvest and taking of certain species for subsistence purposes may require a permit from the state, other subsistence practices only require eligible individuals to provide identification or some other proof of residency.¹³⁴ This could create challenges in ensuring or verifying eligibility for subsistence users. Verification challenges have been of particular concern for subsistence use provisions under the MMPA, which (as discussed in "Alaska Native Versus Non-Alaska Native Eligibility") are limited to "Indian, Aleut, or Eskimo" individuals living on the coast of the North Pacific Ocean or the Arctic Ocean.¹³⁵ Other challenges have involved the limits, or reach, of federal enforcement due to litigation around the jurisdictional authority provided under federal laws (see also "Multiple Land Management Mandates and Jurisdictional Questions").¹³⁶ Still others, primarily subsistence users and Alaska Native communities, have suggested that some enforcement practices from both state and federal agencies have been overly aggressive and have focused too much on subsistence users, who make up a small percentage of Alaska's annual resource harvest.¹³⁷

Climate Change

Issues related to climate change also may impact subsistence use practices in Alaska and may have implications for federal land management and agencies' subsistence use responsibilities. For example, in Arctic regions, studies have shown that climate-related stressors such as sea ice retreat and melting permafrost have shifted patterns in animal migration and impacted people's ability to reach animals overland or safely on sea ice.¹³⁸ In addition, changing climate conditions—such as changes in terrestrial conditions, seasonality, and fire regimes—may affect populations of wildlife and fish stocks upon which subsistence users customarily have relied.¹³⁹ Climate change also may result in potentially harmful alterations to a subsistence species' habitat, such as fluctuations in water salinity and shifts in vegetation growth. In addition to shifting and impeding access to subsistence species, climate change may complicate food preservation, a vital component of subsistence practices for many rural Alaskans.¹⁴⁰ For example, melting permafrost could affect the ability to store food in traditional ice cellars and may leave food more susceptible to pathogens that can cause food-borne illnesses.

In light of these changes, federal agencies may wish to reconsider or reevaluate their approach to land management to provide continued access to traditional subsistence resources affected by climate change. For example, in response to concerns raised by regional advisory councils across Alaska, the FSB encouraged federal land management agencies to "develop investigative plans that examine how recent changes in the environment affect fish and wildlife populations."¹⁴¹ The FSB also may change harvest stock limits in response to declines in population for certain species, as it did in 2019 for the Mulchatna caribou herd.¹⁴² Some rural Alaskans view changes in harvest limits as a direct threat to their ability to source food and nutrients, whereas others argue that additional limits are necessary to ensure the sustainability of future stocks.¹⁴³ Some stakeholders also have called for greater federal support for climate resilience programs in Alaska to address future threats to subsistence practices.¹⁴⁴

Conclusion

Fish and wildlife management across the United States requires balancing a variety of uses by different stakeholders for many different purposes, all against a backdrop of changing populations and ecosystems as species and landscapes adjust to climate change. In Alaska, such issues are further complicated by the protection of certain fishing and hunting rights through various statutory authorities rather than guarantees through treaties. Additional complicating factors in Alaska include the expansiveness of the landscape (which creates both resource scarcity and enforcement challenges), the large extent of federal land ownership, and the extent to which climate change might affect subsistence use resources and practices. Alaska Natives seek to preserve their ability to sustain themselves through fishing and hunting and their culture, religious practices, and way of life. Rural non-Alaska Natives may rely on subsistence hunting and fishing to survive in remote areas with limited access to channels of commerce. Many stakeholders have interests in preserving threatened and endangered species, marine mammals, migratory birds, and other species at risk of overuse. Finally, federal and state interests may not always align, and the split or shared jurisdiction has been a frequent subject of dispute. Congress may consider whether or to what degree the federal government should play a role in managing use of Alaska's fish and wildlife for subsistence purposes and how federal agencies should balance different interests and priorities when considering subsistence uses.