Native Participation in Subsistence Decision-Making
5:30PM May 12, 2022
Good morning everyone. We're gonna get started here shortly in about one to two minutes when the other attendees join so welcome. Good morning. We'll get started. Here. shortly.
again good morning to our participants say we're gonna get started in about one minute or an hour. It's more more people to join us so welcome and get started. Here. shortly.
Good morning everyone. My name is Ben lot has honored service vice president of AFM and I welcome you to our second subsistence workshop. I'd like to remind our group today that we will have time for question answer at the end. So please feel free to write your questions in the chat or in the q&a function of the Zoom webinar. And we'll get to those once we get to the end after Anna's presentation. Also, if you haven't yet the first workshop is recorded online. I think we will share that link in the chat here shortly. And we'll also record this as well and the recording the presentation and the audio transcription should be online hopefully one or two days after we end today. So with that said, like welcome you guys all to our second workshop. I think welcome our members of our AFN board are such as a committee. We also obviously we have Mark and Rhonda Pitkin out there. So welcome. Thank you for being here. And I can choose Joe Nelson, AF and co chair to start us off today.
Thank you, Ben. I'll keep it super brief. I'm Joe co chair. I'm streaming from our Quan and Judo here today and thank everybody for tuning in. As Ben said, this is round two last week's session was on the background and legal framework and today is about how we can engage within the current structure and then there's another session next week and scheduled and I'm thankful that these are recorded because today, I can only be here for the first 2030 minutes this morning and my partner Ana might be in to help with the q&a later but I think she's gonna join in a little bit here. But just a sincere thank you to everybody that is engaging because we definitely know there's a lot of unfinished business and the business it's not going to get done for us. So we need to collectively keep keep waiting and a little deeper here and sharpening our own tools and getting to work. So that's what this is all about is empowering the Native community here to be more engaged in our current system and ideally start helping transform the system so it's working better to protect our way of life. I think what we have is Anna is going to give a presentation and there's probably a decent sized slide deck. So as Ben mentioned, you know, let's pay attention and take down your questions. There'll be time at the end of her presentation for some q&a, and we'll be back at it again next week with another session. That's a little more forward looking. So gonna sheesh from the AFN team thank you to the FT AFN team for coordinating this. It's a beautiful day out there beautiful spring so I know that this is on the front of all of our minds right now because it's it's getting to be harvest season for a lot of things right now. So gonna Sheesh. And I think I'm turning it over to Anna right now at the presentation.
Thank you very much. I'm going to just start by sharing my screen so that people can hopefully see what's going on. I guess I've already done that. And I'd like just a brief introduction for myself. My name is Anna Crary. I am an attorney here in Alaska. I work at Landy Bennett Blumstein and I work with a number of subsistence users both within the state systems and the federal system. And you know, advise people on how to use the processes that are available. So we there is today is going to be a big conversation. There's a lot of information to share. And I just want to put it out there that you know, any one of these issues that we're going to talk about today could deserve, you know, a full day long seminar of, you know, identification of its complexities and, you know, issues that come up as you're engaging in that system. So I, you know, just simply by virtue of the fact that we're limited to two hours, it's going to be it's I can't go into as much detail as I or you may want but, you know, I appreciate your patience. I recognize that there are so many subsistence users here today that are listening that have experienced these systems and these these processes, and have knowledge about them and I hope that we're able to, you know, learn from your knowledge and that we're able to maybe supplement it a little bit with what we're doing today. So with that said, what we're going to talk about our last is Alaska is subsistence frameworks, and primarily state and federal processes that are available to and used by Alaska natives to participate in subsistence hunting and fishing. I'm going to start off by talking about state subsistence laws. You know, Alaska is unique. Everybody always says that, but it's especially unique when you look at it in the context of subsistence, because of these dual competing structures that we have, and the reasons why we have those dual competing structures. So the first place to start with our state law is to identify unique constitutional provisions that create the basis for the structure of the program that subsistence users engage in and Alaska. In particular, there are three key provisions in the Alaska constitution that I'm going to highlight. And these provisions prohibit granting an individual or group exclusive rights or privileges. Yes.
Aren't up yet. Sorry, you're. Hi.
I'm just so excited. There. We go. Are they up now?
So it's, it shows me a sharing. I'm trying to share my screen. And have I shared my screen now. Is it up? Yep. Okay, thank goodness
put into presentation mode.
There we go. Okay, better. Yep. Okay, so back to what I was saying. are equal access clauses in the Constitution. The first clause we're going to call the common use clause and it states that wherever occurring in their natural state, fish, wildlife and waters are reserved to the people for common use. We have our no exclusive right clause. There shall be no exclusive right or special privilege of fishery in the natural waters of the state. And we have our uniform application clause that states that laws and regulations governing the use or disposal of Natural Resources apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation. I also want to highlight the sustained yield clause. So while the sustained yield clause isn't specifically included in the context of the common use clauses, this sustained yield clause essentially directs the state to manage its resources on the principle of sustained yield, which basically means you want to be able to have a fish stock or a game population that continues to produce so that people can use it. And you know, it really when you look at it, this clause places a duty on state management entities primarily fishing game to manage game populations and fish stocks for sustained yield. So there's a Seminole Supreme Court case Alaska State Supreme Court case that interprets these equal access clauses and interprets them to an interesting and difficult result. That state is McDowell. These are that case is McDonald V state in 1989. It established the basis for our current all Alaskans subsistence law and policy. So this case involves a challenge that was made by hunters to what was then Alaska's state subsistence law that permitted much like a nilka a subsistence priority for rural residents. So specifically gave people a priority to engage in subsistence uses a fishing game based on where they lived. But the Supreme Court looked at Alaska's equal access clauses and determined that the state couldn't do that, that it violated the Constitution. And as a result, we have like I said before the all Alaskans policy which basically means that any Alaskan anywhere in Alaska whether they live in Anchorage right next to Fred Meyer, or whether they live in Wayne, right, as far away from Fred Meyer as you could possibly get is equally qualified to participate in subsistence hunting, or subsistence hunts and subsistence fisheries. So as a result of McDowell, Alaska fell out of compliance with the nilka which we are going to talk about and a lot of detail later. And the management of fishing game on federal lands, retro seated back to the federal government, because the Alaska State said we can't manage for a rural preference because that violates our state laws. And the federal government said, well, then you can't manage on federal on federal lands at all. So we're gonna manage that. And that gives us the sort of framework leading up to the circumstance that we have today. So like I said before, the state considers all Alaskans eligible to participate in subsistence hunts and fisheries regardless of where they live. Subsequent cases fortunately have limited McDowell's reach in you know, just generally McDowell would would now really only apply when a statute or a regulation explicitly limits eligibility to participate in subsistence use based on residency or if a restriction violates the Equal Protection tests adopted by the court in that case. So for example, you know, a state regulation could restrict a beat group of users access to subsistence resources, if that restriction serves an important purpose, and restricts access to the least degree possible to achieve the purpose but, you know, it's I think it's pretty safe to say that McDowell remains good law. Like not good as I like it, but good as and it's still effective. It's still in effect, and it has not been effectively challenged. So I want to go over a few important provisions and Alaska is state subsistence statutes and regulations because these provisions similar to the common use, and equal access clauses provide a framework in which our state subsistence process operates. So I do want to highlight first how Alaska defines subsistence uses.
And I think as much like you would expect I think Tyson went over this definition in his presentation last week, but it's important to highlight that subsistence uses refers to use of wild renewable resources by a resident of the state. And that's important to focus on because only Alaskan residents are eligible to participate in fishing and hunting, under you know, subsistence fishing and hunting. But it also encapsulates all residents. It's not just a resident of a rural area, it is residents across the state wherever they live. State regulation defines the subsistence way of life as a way of life that is based on consistent long term reliance upon fishing game resources for the basic necessities of life. And state law does provide a priority for subsistence uses, but it only provides that priority for a reasonable opportunity. And what the state considers to be a reasonable opportunity is an opportunity as determined by the appropriate board. That would be the board of Game of the board of fisheries that allows a subsistence user to participate in a subsistence hunt or fishery that provides a normally diligent participant with a reasonable expectation of success of taking fish or game. So when the board determines that a reasonable opportunity exists, that is something you know that's a determination that's very difficult to challenge if if you know, it, in fact, does not provide a subsistence user user with sufficient opportunity to take enough fish or take enough game to meet their subsistence needs. It's a determination that's committed to the discretion of the board. Alaska identifies customary and traditional uses of fishing game as the non commercial long term and consistent taking of use of and reliance upon fish or game in a specific area. And the use patterns that have been established over a reasonable period of time. There so the the boards of fish and the boards of game each individually for fisheries and for hunts, use eight factors and right that are established and regulation to determine you know, whether there is a C and T or customary traditional use of the fish stock or game resource. I'm not going to list out every single criteria, you know, they're available in the regulation if you'd like to look at them. But a really important one that I do want to highlight is the last one on the bottom right, which is a pattern that includes the taking use and reliance for subsistence purposes upon a wide diversity of fish game resources that provide substantial economic, cultural social and nutritional elements of the subsistence way of life. So all of these factors together, should be should be taken into account by the board when they're making a CNT determination. But the board actually has discretion to consider CNT when they're making subsistence regulations and so what that means is that they're not required to consider customary traditional uses, and you would think that they would, right that it would be kind of an important element of, you know, making sure that a subsistence regulation that they promulgate is actually, you know, supporting and reflecting customary and traditional uses of a specific fish stock or game population they're regulating for but the Alaska Supreme Court has identified that the board's may but they're not required to take those customary traditional methods into consideration. When they're enacting subsistence regulations. So in Alaska, there are some instances where there is not enough there are not enough fish or not enough moose or caribou to go around to satisfy all subsistence needs. And in that case, state law authorizes the basically priority allocation between subsistence users to make sure that people who have either the highest the highest need or the most, you know, the most long term customer and traditional use of that game of that population or that stock had access to it. And that's what we refer to as tier two. And so, tier two is basically a permitting system. And whether you get a tier two permit to participate in a fishery or hunt is based upon a number of factors, including the customary and direct dependence that you have on the fish or the game population. And the ability that you have to obtain food if you're subsistence use of that fish stock or game population is restricted or eliminated.
So I referenced the board of game and the board of Fisheries and I want to talk a little bit about those two boards. Right now because they are part of an integral part of the regulatory structure that exists in Alaska for Alaska State subsistence process. So these boards are created by the legislature. They're tasked with developing regulations for the conservation allocation and taking of fish or fish and fish and game basically, each board seats seven members from throughout the state and has one chair right now believe that I'm not quite sure who the chair of the board game is. But the chair the board of fisheries is Mark Carlson Pandora and I think she's here today on the presentation. And she's a most excellent chair. I have had the honor of appearing in front of the board while she has been in that position. And I believe she's the first female Alaskan Native Chair of the Board of fish. That's pretty big deal. All members on these boards serve for a term of three years. They have to be appointed by the governor and confirmed by the legislature. And it's also important to note that the affirmative vote of at least four members on that board is required to enact any regulation. So when you go before the board, you know a lot of it actually is vote counting. You have to figure out who may be who's who may support your proposal, and who may be against your proposal because if you don't have four votes you're not going to get the board is not gonna be able to take action. scope of authority of the board efficient board game, like I said they adopt regulations establishing opening closed seasons areas for taking fish, harvest quotas, bad limits. Harvest levels, methods and means of take allocation of resources between users. Specifically with respect to subsistence, the board's determine which fishing game populations are customarily and traditionally to use for subsistence amounts necessary to meet to meet users subsistence needs, identifications of customary and traditional patterns of use, when and how to implement a subsistence priority if there's a tier two situation and then identification of what we refer to as non subsistence. areas. So what are non subsistence areas? It's an area or community in Alaska, where the the joint boards working together at the Board of fish in the board game have determined that subsistence is not a principal characteristic of the economy and culture and way of life of that area or community. When making this kind of termination, the board's consider, you know really the relative importance of subsistence in the context of an extensive list of characteristics specific to that area or community that are established and regulation. And the the practical outcome of the determination that you who who are subsistence user may live in a non subsistence area. So for example, all residents of the Kenai Peninsula all residents of Anchorage and all residents in the mat su Valley, the board the boards will not permit subsistence hunting or fishing in that specific area. So it doesn't matter if you know you have a customary if you have customary traditional uses of a fishing game stock or fish stock or gay population within that area. That area is determined to be a non subsistence area, you have to go somewhere else which to me sort of runs counter to the purpose of subsistence which is, you know, identifying stocks and populations in proximity to where you live and you know, where you have engaged in those historical customary traditional uses. But that is that is the reality of subsistence law in Alaska. And and so is actually challenged in the 90s by the Canadian Indian tribe, when the joint boards determined that the Kenai Peninsula was a non subsistence area. And the court, you know, basically said, Well, that's, you know, it's a nice argument, but we're not convinced and specifically, what the court said is that inconvenience is in no sense the equivalent of a bar to eligibility for participation in subsistence hunting and fishing. And you can't use you know, your the lack of proximity to a resource that you have customary traditional dependence upon, but you now find yourself in a non subsistence area and unable to access. You can't challenge it as an equal access issue under Alaska's constitution. So this case is kind of infamous. And I know I would like an opportunity to challenge it.
Just a few notes on engaging with the boards anyone any person any organization can submit a regulatory proposal to the to either board for consideration this is how this how regulations get made you submit a proposal. The proposal is considered and discussed by the boards at their public meeting. Those proposals can address statewide fisheries or hunts or they can address region specific matters. Members have the comment or public and comment on those regulatory proposals in writing, and then you can also attend a board meeting and make public comments but you're limited to three minutes usually. Advisory Committees play a really important role in state subsistence processes also. So these committees are established at the discretion of the board. And they're usually comprised of people you know, within a specific area, who have specific knowledge and expertise about official game resource and the so the ACS will evaluate regulatory proposals and make recommendations to the board. And you know, just reach out and cooperate and consult with with members of the public. ACA members, you know, can usually do a peer at board game or board fish meetings and provide testimony to the board and they're permitted a longer period of time to provide testimony, but unfortunately, their recommendations are not entitled to any difference by the board. So an AC could, you know, strongly recommend against the board's adoption of a proposal because it would be counter a you know, it could it could have a really negative effect on subsistence uses of a specific game population or fish stock. And the board can say that's nice, but we're not going to listen to your recommendation and pass the pass the regulation anyway. It's hard to challenge board factual findings and determinations. This is just a reality of Administrative Law, this Ministry of Law, you can you can always, you know, try to challenge them, but those determinations are given the highest level of deference by any court, you know, because those determinations are really within like the board's expertise. And you know, especially when those determinations relate to seasons and bad limits and methods and means of take so it's just it's sort of an upward battle. So some examples of how it's an upward battle are demonstrated by these these two cases state, the Mori and the native village of Elam. So for example, the native village of Elam came down with the determination or the that case determined that the Board of fish has a lot of discretion to define what sustained yield means, and to determine what management decisions are consistent with sustained yield. But they don't actually have to identify a numerical level of yield. You know, it's sort of like well, we know it when we see it that's sustained yield. They don't have to articulate you know, an actual bar. Or like, you know, we mentioned this case before state the more you the boards have discretion, but aren't required to consider customary and traditional methods take when they make subsistence regulation. So these cases have sort of stacked upon one another to create the difficult litigation circumstances that exist in Alaska right now. Again, challenging board regulations, you can do it and you can you can, you know, ask that a court issue a preliminary injunction or a restraining order to prevent a regulation from going into place, but there's always a but you have to meet a really high standard of proof, showing that the implementation of those regulations would cause irreparable harm and specifically in the context of subsistence use. No, you have to demonstrate that it will irreparably irreparably harm your ability to access the resource or it will harm the actual resource such that you cannot rely on it for your subsistence uses. You know, a case that illustrates the just the difficulty in challenging is regulations is state including cost from the the early 90s. So I would just refer you to that case, we're not to talk about it right now, as as an illustration of you know, where even where the facts are just so obviously, I think in my my personal and professional opinion, in favor of delaying the implementation of a board regulation, the Supreme Court didn't agree.
So just generally, you know, we all know about the Alaska Department of Fish and Game ADF and G. It's the agency that enforces Fish and Wildlife regulations that are promulgated by the boards. It's created by legislature, and it has five divisions commercial fisheries, sport fish, subsistence hunting and fishing and habitat and wildlife conservation. The commissioner of ADFG currently, Doug Vincent Lang oversees the whole department. And really even though the oversee the whole department, the Commissioner himself has pretty limited authority over Fish and Wildlife Resources, at least as written in regulation or statute. And, you know, this is the Commissioner can't order the board of fish or game to take a specific action and the the commissioner themselves sua sponte, you know, have their own authority can't change management action that was taken by the board, unless there was, you know, some new information that was provided that wasn't considered by the board related to conservation. This is a really, really unique circumstance. It very rarely happens. And when it's happened before, when a commissioner has stepped in and said, Well, I don't like that regulation. I'm just going to, you know, avoid it. The courts have not responded kindly to that action, and we've reversed the commissioners determination. It's want to touch briefly on the Alaska's subsistence division within ADF and G. They advise the commissioner in the board about customary traditional uses of our natural resources, but similar to how the board can treat or has the discretion to not adopt or give deference to AC determinations or recommendations. Neither board is required to incorporate the subsistence Divisions recommendations into its regulations. And that's kind of a problem when you think about you know, all of the competing uses in Alaska where you have commercial and sport and personal use and you know, subsistence is supposed to be a priority use in Alaska. But, you know, it's, it's, I think it's sort of a, in some ways, a devil's bargain, where you have a subsistence division that may make a recommendation that would not be received kindly by any of those other uses. But it's that recommendation is intended to protect and preserve subsistence uses, but the board's don't have to defer to or incorporate that recommendation. Um, so just one point I want to make is that, you know, it's ADFG is long standing policy that they don't make allocation decisions that the determination about, you know, who had a sort of cut up the pie of resources, that's a decision that is, you know, solely within the authority of the boards of the board of fish or the board game. But then, you know, it sort of raises the question, what happens if a regulation that's approved by the board or up by either board requires ADF and G to make an allocate a discrimination between you know, say like a sport entity, a sport use or and subsistence use or commercial use and subsistence use as sort of the situation that occurred and that was sort of identified one of many situations that was identified and the Sitka herring lawsuit that's pending right now. Or the appeal is pending right now, where in that case, the court directed ADF and G to make determinations that effectively allocate harvest opportunity between commercial and subsistence users of Sitka herring roe. So ADF and g is like, Oh God, what do we do with this? Because that decision is really, you know, upended their policy that they don't make the allocation determinations. So it's kind of a you know, if you if there's a lawsuit that you state lawsuits that you want to keep your eye on. For a potential outcome, a positive outcome for subsistence uses, this would be it
so we're gonna pivot now. We've talked about the state systems. We've talked about state regulations. We're now going to talk about a nilka, which is the end subsistence laws and regulations for fishing game on public lands. This is the federal side of the picture. So what is Anelka people talk about it all the time, is the Alaska National Interest and Land Conservation Act. It was established in 1980. And Title eight of the Milka provides a priority for rural residents to take fishing game on public lands for subsistence uses. What's key to point out here is that, unlike Alaska is systems laws, which apply to all Alaskans regardless of where they live. Alaska residents are eligible for an milkers subsistence priority, specifically on the basis of where they live, and if they live in an area that's been determined to be willing. they're eligible for the subsistence priority. It sounds really simple, but it's definitely not that simple. So where does it apply? Generally, it applies to public lands and Alaska. What the heck are public lands? Well, their lands situated in Alaska their federal lands, but with certain exceptions, so you know, and those exceptions include lands that are selected and granted to the state and lands that are selected by but not yet conveyed to and seas and then also lands that are referred to and certain sections of AXA, specifically federal lands and waters and interests federal US federal lands, our lands and waters and interests there in the title two, which is in the United States, including navigable and non navigable waters in which the United States have reserved has reserved water rights. What are navigable waters waters you can you know, basically float a raft on and what are non navigable waters, their waters that you can't float a raft on you can't navigate those waters. Just to you know, as I'm assuming many of you know, but I just want to highlight it anyway. Alaska is or the Anelka subsistence priority did not always apply to navigable waters. So prior to 1995 Federal management of the subsistence priority and for that priority did not apply to navigable waters. But in 1995, and specifically, thanks to a host of cases brought by Katie, John, Jana Elder, the Court of Appeals for the Ninth Circuit agreed that the federal government held a reserve water right in navigable waters, not that reserve water, right. Is it one of those interests there in that the definition of federal lands references, and on the basis of that reserve water right, the court said that the federal subsistence priority applied to and could be managed by the federal government on all navigable waters where the US held that reserve right. So that's the way in which and they'll go wasn't was applied to the management of federal water in Alaska prior previously in the state. So that, you know, in 1999, finally, the Federal subsistence management system took over navigable waters, there was a long regulatory delay in implementing those regulations. So just like we did with the Alaska State Constitution, I want to point out a couple of important provisions here and Anelka. So subsistence uses, it's a very similar definition to what Alaska State uses, but you'll see here that it references customary and traditional uses by rural Alaskan residents. So you have to be an Alaska resident. But you have to be a rural resident, you have to live somewhere that's rural in order to qualify for this priority. And here, and I know this is probably a very small type, but you can see the state definition on the left and the Anelka definition on the right you know, the emphasis in the state's definition for subsistence uses on all Alaskans, whereas the emphasis on rural Alaskan residents and milk is definition.
Another section of Anelka introduced to the purpose of Anelka, and this is a really important section of the statute because in addition to articulating that one of the primary purposes of it was the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both natives and non natives. This section articulated specifically that it was the purpose of a nilka to continue an opportunity for subsistence uses by Alaskan natives on Alaska on native lands. So we're going to talk a little bit later on in the presentation about what that means, and why it's important when you view it in the context of other federal laws that apply to Alaska specific specifically angkasa. And what this could mean for sort of changing the landscape and how certain lands are managed and who they are managed for in Alaska. When it comes to subsistence. Another section of America defines customary traditional uses, again, similar to the state definitions the customary and traditional uses by rural Alaskan residents. So again, it highlights the importance of the importance of residency. This section here section, what we call it 804. You can see the statutory site this is this specific portion of a nilka that establishes that subsistence priority, except as otherwise provided in this act or federal laws, the taking on public lands of Fish and Wildlife for non wasteful subsistence uses shall be accorded priority over the taking on such lands of Fish and Wildlife for other purposes. Similar to Alaska's tier two situation, this Anelka also permits for the allocation of subsistence resources between subsistence users when there's just not enough of a fish stock or game population to go around. And you can sell the these at this allocation occurs upon the termination of three specific criteria, customary indirect dependence on the resource, the availability of other subsistence resources, and local residency. So again, highlighting the difference between what Anelka focuses on and what Alaska law says you can't focus on, which is specifically where you live. So I do I just want to highlight again, I've been like hammering this home, but this is like a really, really important point that that differentiates and Milka from Alaska state law that Anelka uses local residency, and specifically, it uses local residency to allocate between subsistence users. I mentioned the can it Indian tribe case from 1995. So that case in addition to you know, saying non subsistence use areas are okay and you know, do bad you just have to just have to go somewhere else if you want to continue your subsistence uses, in this case, the Alaska Supreme Court also concluded that considering a subsistence user's proximity of domicile to a subsistence area, so IE you know, how close you live to that subsistence area, under tier two regulations violated the Equal access clauses of the Constitution, because it would prevent certain Alaskan residents from participating in subsistence activities based on where they live. Another section of Anelka, it's important to highlight is section 805. Because this section creates are created what were originally six subsistence regions in Alaska. There are now 10 and it created six corresponding advisory councils. And we'll talk about the advisory councils in a little bit, but they're a crucial element of the regulatory process, and the regulatory program for subsistence uses pursuant to Anelka
Tyson touched on this during his presentation last week, which is that section 807 creates a specific right of action for a subsistence user to sue the federal government for failure to provide for subsistence uses for this subsistence priority. I also do want to emphasize too though that this section says that if the subsistence user wins, they can recoup all of their costs and their attorneys fees that they incurred when they were bringing that lawsuit. So as as many of you probably know, litigation is really expensive and the prohibitive cost of litigation prevents what I think are a lot of really good lawsuits from happening because people just don't know how they're going to fund it. But this this section of the Milka provides sort of, you know, an answer or a solution to the cost prohibitive nature of subsistence litigation where it says right, listen, if you win, you get your attorneys fees and your costs paid. For. And that's I think that's a sort of a very positive equalizing feature contained within Anelka. And I do also want to point out that under this section when the state was prior to the McDonald determination when the state was managing for this assistance priority on federal lands, you could also sue the state in federal court pursuant to this provision, but since the state is no longer managing for the Federal subsistence priority on federal lands, it's kind of a it would be difficult to do that. So section 809, and this is the last statutory section we'll talk about contemplates that the secretaries of interior and agriculture can enter into cooperative agreements with Alaska Native corporations or other persons or organizations to achieve and milk those policies purposes. And this is this is a great section a very sort of you know, loosely worded section that provides for the possibility of cooperative management, potentially, of certain game resources or fish stocks on federal public lands pursuant to you know, achieving a sub like the purpose of Anelka and pursuance to preserving subsistence access to those resources. So we'll try again, we'll talk about that a little bit further on in the presentation. So similar to what we did with the state when we were talking about the boards of game and the board of fish and the sort of regulatory structure and the regulatory entities that you engage with in order to create and promulgate subsistence regulations or regulations in general in the state. We're now going to talk about how you can do that in the context of the federal subsistence management program, because a nilka in both statute and regulation, established a specific process that for people to engage in, in order to secure access to and you know, to continue your subsistence uses a fishing game on public lands. So the implementing regulations like I said they establish a regulatory process, and any person or organization can participate in this process. You participate in it primarily by submitting a regulatory proposal. And basically following the process through and the following administrative entities that we'll talk about are responsible for, you know, taking your proposal, reviewing it, deliberating it and either enacting it or rejecting it. So the first administrative entity, it's probably the most important under the structure of Anelka is the federal subsistence board. The Federal subsistence board, you know, at the end of the day, what they're doing is they're recommending to the secretaries of interior and agriculture, whether to approve or deny regulatory proposals that establish subsistence seasons, back limits, methods and means and other matters related to subsistence. Uses on federal lands. The Federal subsistence board also determines which communities are non rural or rural, and which residents of those communities are therefore eligible for Intellicus subsistence priority and which rural communities have customary and traditional uses of resource. The Federal subsistence board allocates subsistence resources. It restricts taking or closes public lands to non subsistence uses when it's necessary to preserve you know the like a fish stock or game population. Or when it's necessary for the continuation of subsistence uses. And it also restricts taking in or closest public lands to specifically subsistence uses, if it's necessary to do so to conserve a stock or a population or if there's a public safety issue that you know, creates enough of a concern that they determined that they have to close those lands.
And the board also establishes priorities for subsistence taking on public lands among Alaskan residents. That sort of corresponds to the the ability to restrict take when there is an insufficient amount of the resource to actually have all qualified users engage in subsistence uses of that resource. So this is a really important point that I also want to highlight and it deals again with with what the board can do. I talked about section 809 of Anelka that contemplated the board or contemplated cooperative agreements between the government and you know, agencies or other entities and the regulations that talk about the board's authorities specifically articulate that the board can enter into cooperative agreements with Native organizations with local governmental entities like tribes, and other persons and organizations to effectuate the purposes of the federal subsistence management program. The board can also develop alternative permitting, permitting procedures to ensure continued subsistence opportunity and crucially important, the board has authority to evaluate whether hunting and fishing or trapping on Alaskan lands or waters, other than public lands, interferes with subsistence uses to such an extent that it results in a failure to provide the subsistence priority. So what that means what I interpret that to mean is that the federal subsistence board can look to see how perhaps a sport hunt of a specific game population on Alaska land or how a commercial fishing regulatory structure within Alaskan waters affects subsistence users use of that game population or that fish stock within federal lands and if it is impactful and negatively impactful enough that the state uses are preventing federally qualified users from getting sufficient fish or getting sufficient gain to meet their needs. The board can take action and the board or the or the board can recommend the Secretary's what specific action to take. That could be perhaps the assertion of extraterritorial jurisdiction. Or it could be, you know, a potential lawsuit to challenge certain state determinations or state systems that are negatively affecting subsistence. So I've mentioned the rural determination process a few times and I just want to make sure that this is something that we touch on a little because it affects I imagine it affects many of the attendees in today's presentation and it's one of the one of the lesser talked about functions of the board but it's crucially important. So as I've stated, perhaps ad nauseam already in this presentation, and nilka subsistence priority only applies for rural residents, right doesn't apply to me. I live in Anchorage. I'm not a rural resident. But if I lived out in Kotzebue, I would potentially be eligible for that rural priority. But Anelka stops short of actually defining which individuals or areas are rural, it just doesn't say in the statute, right. So the board under its regulations has determined that all areas in Alaska are rural, unless and until the board determines that a specific area is in fact non rural. And the board has done that in a number of occasions and it set out those areas and regulation and it identifies and it basically just says these areas are non rural, everywhere else is where all but the problem is that when the board takes action to reclassify an area as non rural, the residents who are residing in that area, and who are all of a sudden now residing in a non rural area, lose access to milk and subsistence priority to devastating effects a lot of the time. You can look to the past. For examples of this happening in the Kenai Peninsula, or more recently, about 10 years ago and Saxman when Saks men's role determination was was reversed.
So what do you do? Right, like how do you how do you tell the board that they've made a terrible decision and they need to fix it? Well, first you have to exhaust your administrative remedies, you have to ask the board to reconsider the decision that they made. And if the board either fails to accept your request for reconsideration, or if the board accepts your request, and then says no, we don't think we made a mistake. We're gonna we're gonna stand by our original decision. You have to sue them for injunctive and declaratory relief in federal court. So it's a long process and it's expensive. And it like I said, you know, can have really serious effects upon subsistence users, but I do want to highlight it. I think there were a few questions about the rural determination process last week. And while this this is you know, again, 1000 foot overview of a very complicated process. I do just want to provide general information about it. And I also do want I want to highlight this this really has nothing to do with the Milka, but it's another example of where the federal government has used the concept of rural residency to provide subsistence access to a resource and this is specifically using rural residency for spas for subsistence halibut. So, and again, this has happened outside the context of America. This is this is your this is a process. It's really connected with the International Pacific Halibut Commission, and the North Pacific Fisheries Management Council, pursuant to the Northern Pacific Halibut act. We're not going to talk about that act today. Don't worry, but I just want to highlight, again, a way in which this this concept of rural residency is used to provide access and priority access to a subsistence resource. So 2003 the North Pacific Fisheries Management Council promulgated regulations that established subsistence halibut fisheries for residents of rural communities who had a customary traditional use of halibut in that those fisheries also were made eligible to individuals who were domiciled in a rural area, and Members of federally recognized Alaska native tribes with a customary and traditional use of halibut. What is subsistent halibut it's halibut. It's caught by a rural resident or a member of an Alaska native tribe. For direct personal or family consumption is food for sharing or for customary trade. You can't sell it. And what's really what I think is really cool to know under this program, is that if a person moves from one rural area to another rural area and all of these rural areas are identified in regulation, that person can still can halibut fish can subsistence fish for halibut, and in any area where subsistence halibut fishing is open. So another thing that this regulation does is identify a specific fishery areas, again in regulation, and you know, sort of assigns, you know, areas to specific role residents or specific tribes. But what you know, one of the things the things that we talk about a lot in the context of the subsistence laws is maintaining your your priority and you know, under Anelka, if you leave a rural area, if you move to a non rural area, if you leave the state, you're no longer considered eligible, right? Because you're not an Alaskan resident. And you are not. You're not a rural resident, so you lose your eligibility for that subsistence priority. But under the subsistence halibut program, if a person leaves are relocates from a rural area to a non rural area, so say you, you know, move away from Sitka to Anchorage, or you move outside of Alaska. You can still come back and you can still fish for halibut in a subsistence area. But you're limited to the specific subsistence area of your tribal membership. So again, like I said, the areas are identified and regulations it's sort of you know, a portion and are connected to different areas to different like residential areas and Alaska rural residential areas. So you can't you have to like fish in a specific area. But you can still come back and fish and I think that's I think that's a really interesting regulatory provision. I like the flexibility that it provides and no doubt many of you listening today are familiar with this and have taken advantage of this, this program and this regulatory process or regulate the outcome, rather of a regulatory process that had specific relevance to subsistence uses.
So back to the federal subsistence board. Another thing the board can do is delegate authority to federal agencies and managers to make specific management decisions in season in a big so these these entities and managers can decide when to open beneficiary you know, or hunt or close it. They can make determinations about needs and methods you know, how to catch how to take and you know, other essential like I said in season decisions, affecting subsistence uses a fishing game on public lands. And there's one example from from 2020 of the board delegating authority to a tribe to manage a community hunt. The authority of the legal authority of that determination is currently being challenged by the state of Alaska, of course, and federal litigation. And so, you know, we're I am I, myself am eagerly awaiting the outcome of that case, see how the Ninth Circuit comes down because at the district court level that didn't really get involved with that question. They sort of side stepped in and said it was moot. By the time that they had a chance to review the case. So it's important to highlight that the board unlike Alaska, has board a game board of fish that are identified in statute and created by statute. The Federal subsistence board is not identified in America. It is it is a purely a creature of regulation. And this, you know, potentially makes it vulnerable, because if the federal subsistence board could be created by regulation, the Federal subsistence board could also be dissolved by regulation. I don't think that's going to happen. But it's it's it's worth noting who is who are these people who is the board? The board has eight members on it. There's one chair who's historically and Alaska Native currently. That's Anthony Christianson. There are two rural resident public members. Currently, Charlie Brower from Barrow and Rhonda pika from Beaver. There's five federal agency representatives and those those people are usually the regional directors of Fish and Wildlife Service, BIA, the Bureau of Land Management, National Park Service, and the US Forest Service. The Board needs a majority to to you know, a majority vote of its members to take action. So, as you can see, by having an even number of just by you, not one by having an even number of members and two by the composition of those members, it can be challenging to have subsistence regulations enacted simply because you can have the chair and the rural residents, you know, vigorously supporting and, you know, advocating for and voting in favor of a subsistence proposal. But if none of the regional directors from any of these five agencies want to vote for that proposal, they will and the proposal will fail. Or what happens frequently is you'll get the BIA voting and support along with the Rural resident public members in the chair with respect to a proposal for subsistence, you know, like a subsistence fishery or subsistence hunt, but because that's a four four vote split, and you need five affirmative votes to take action. The proposal also fails so it can be it can be very difficult sort of bureaucratic head banging experience to appear before the board and advocate for something that is so clearly, you know, to the benefit of subsistence users, only to not be successful in your advocacy. So one of the things that we highlighted or like touched on when we were talking about provisions of Anelka was a section on Anelka that created regional specific regions and Alaska. And then corresponding regional advisory councils for those regions. We call them racks. The Regional advisory councils or racks are really important and I want to talk about them a little bit. So the racks sort of similar to advisory committees in Alaska's regulatory scheme, develop, review and recommend to the board, approval or denial of certain regulatory proposals and policies regarding subsistence take of Fish and Wildlife determinations of customary traditional uses allocations, rural residency, rural determinations, you name it.
The racks though, unlike state advisory committees, have more authority and power to shape the federal regulatory process. Because with certain limited exceptions, the board is required to defer to their recommendations. This is really important and we know that there are the touch on it a little bit later in the presentation, but what those three sort of you know, exceptions for rack deference are if one recommendation would be inconsistent with what we refer to as you know, established principles of wildlife or, you know, fish management. And our recommendation would be disadvantageous to some other subsistence uses or just to subsistence uses of that resource. And there's a third recommendation that I just can't remember, but it's in the presentation, so we will get to that. But before we get to that, let's talk a little bit about where these subsistence regions are. There were six there are now 10 and these regions are Eastern interior Western interior South Central southeast Kodiak, Aleutians. Bristol Bay, Yukon, Kuskokwim, delta y k delta, the Seward Peninsula, Northwest Arctic in North Slope, the compass who are on the racks, just like the boards who are these people, you only have to be a resident of the region that you represent. 70% of the members on each rack have to represent subsistence interests within that region, but the other 30% should have to represent commercials and sport interests or just other interests. So it's not it's not wholly made up of subsistence users. There's there's a you know, quote, balance of interests on the on the rack. Each member serves through your terms. Each rack is led by a chair. Racks are subject to FACA, what we call FACA, the Federal Advisory Committee Act with just sort of it puts certain limitations on how they can act when they can act. You know, everything has to be done publicly pursuant to a public process. And you know, this sort of this this ties back to the composition of their acts, but they are all they are required. To take into consideration a diversity of uses of a fish stock for gay population and that includes sport and commercial uses by urban residents when reviewing and recommending regulations to the board. So I touched on this prior previously the board is required to defer to RAC recommendations. So here are those three, the three three circumstances where the board is not required to defer to rack recommendations. It's one where the recommendation is not supported by substantial evidence. It's to where the recommendation would violate recognized principles. of Fish and Wildlife Conservation and three, where that recommendation would be detrimental to the satisfaction of subsistence needs. So it is really important to point out that, like state law, a nilka does not have any consideration or definition of traditional knowledge, traditional indigenous knowledge or traditional ecological knowledge. And it doesn't it doesn't contemplate those those kinds of traditional knowledge and it also doesn't require that the consideration of traditional knowledge be afforded you know, really like any any, any time at all. So it's sort of a catch 22 Where you have racks that are composed of people who have you know, they are their resource and information holders for generations and they have a wealth you know, such such valuable wealth of indigenous and traditional knowledge and they share that with the board. But there's no requirement that that knowledge be integrated into the board's consideration of a requirement or a recommendation made by Iraq.
And that that's that that creates a no another problem where when the RAC is recommending something and the board says, Well, we think that that would be, you know, that violates a recognized principle of fish and wildlife conservation. Those recognized principles are all in really Western principles. They don't they're not principles that are established through traditional knowledge or that even acknowledged traditional knowledge. And so it makes it difficult to challenge, you know, the board's decision to not to defer to Iraq's recommendation on the basis that, you know, traditional knowledge should have been acknowledged and traditional knowledge was right. And I've seen it play out many times in front of the board where, you know, the traditional knowledge that's been provided in support of a proposal, you know, that is far more accurate and far more trustworthy than the, you know, quote, recognized principle and fish and wildlife conservation as guiding the board's decision. But, you know, unless and until a nilka. It's the statute or the regulations revised to incorporate, you know, the required consideration and traditional knowledge. It's difficult to, you know, sort of use that as a hook for any kind of legal action, challenging board decision. So really quickly, the Anelka also creates, you know, a system of local advisory councils. They basically fill in where state advisory committees don't adequately assist a rack. And, you know, just like Iraq, they're required to comply with FATCA and operational rules that the board establishes. And then Anelka also creates subsistence resource conditions. They review the draft and recommend the approval of regulations to the secretaries. And, importantly, unlike racks SRCS, the subsistence resource Commission's are not required to forward their regulatory recommendations to the board they can forward those recommendations directly to the secretaries. Tribal Consultation, so it's not required shouldn't be surprising to anyone in this presentation. That tribal consultation is not required in the text of the Milka, but subsequently issued executive orders and board and Department of Interior policies require tribal consultation and consultation not just with tribes but also with agencies. Prior to board action on any specific regulatory proposal. The Office of subsistence management performs those consultations and you know, announces them and tries to notify subsistence users and tribes and organizations about when those consultations occur. Brief sidebar what is the office of subsistence management? I refer to them as OSM? Really, it's an agency it's within US Fish and Wildlife Service and it provides support to the board and it helps administer the subsistence pretty Anelka subsistence priority. And Alaska is some federal subsistence management program. You know, previously and I think believed, I believe, continuing to today, a lot of systems subsistence users have raised concerns about the fact that OSM is really housed underneath the umbrella efficient Wildlife Service, and Fish and Wildlife Service is sometimes viewed as having, you know, goals that are contrary to the the goals of the subsistence Resource Program, and you know, there's a question about always sevens impartiality and you know, whether it is you know, an impartial and neutral body, I'm not gonna make any statement about that here. But there has been discussion about removing OSM out from under the umbrella of Fish and Wildlife Service and making it you know, its own separate independent agency, but that action hasn't occurred yet. So that's going to wrap up our discussion about a nilka And what I'd like to start talking about now, which I briefly referred to when we were talking about Anelka, which is, how to engage with the federal government through cooperative management. And nilka specifically contemplates these cooperative agreements. So what are they and what is what is cooperative management?
Unsurprisingly, it is not defined in a statute or regulation. But it's you know, it's generally referred to as a discretionary partnership, usually between the federal government and you know, a tribe or a tribal organization or another organization to manage the resource. Right now in Alaska. We have examples of cooperative agreements through a number of different statutory structures, including in America and also the Marine Mammal Protection Act, the MMPA. Some of these examples of cooperative management structures involve these groups, the Alaska Eskimo Whaling Commission, the Western Arctic caribou herd working group, the Ahtna, inter tribal Resources Commission, and the Kuskokwim inter tribal Fish Commission. So, I just like to briefly touch on each of these organizations, because you know, if you don't know about them, if you haven't heard about them and what they do pursuant to their cooperative management agreements, it's really interesting. So the Alaska Eskimo Whaling Commission at PwC was founded a while ago 1977 To safeguard bowhead whales and bowhead whale habitat and to support whaling activities and culture of its member communities. Every member every member of village you know, has a whaling captain that represents it on the a WC and the IWC is charged with enforcing harvest rules and guidelines against its members. So the IWC manages the Alaska subsistence bowhead hunt in the Bering Chukchi and Beaufort seas cooperatively with the US Department of Commerce through NOAA, or nymphs and manages it pursuant to a management plan that is incorporated into its cooperative agreement. And that cooperative agreement was the legal basis as a legal authority for that cooperative agreement is cited as section 112 C of the MMPI. This cooperative agreement as Tyson said last week is sort of the gold standard for cooperative agreements between the federal government and an Alaska Native organization. It serves and this is language from the cooperative agreement. It serves as the exclusive enforcement mechanism for any violation of the Marine Mammal Protection Act, the Endangered Species Act and other federal acts that relate to subsistence whaling or a violation of the management plan that the WC follows that as you know, a violation committed by a member of the AW see, and this is crucially important because what that means is that any violation of those acts those federal laws or have a management plan, that is you know, sort of enacted under under the auspice of federal oversight and management is dealt with not by the federal government. It's dealt with by the AW see by the Alaska Native organization, and their management plan specifically sets out policies or sorry, penalties and you know, procedures for addressing violations. There is a provision within their cooperative agreement that allows the FWC to refer a violation out to the to NOAA or to the federal government for federal action, but in the long history of the AW see that has only happened once back in the in the early 80s. The western Arctic caribou herd working group was created in 1997, to work together to ensure long term conservation of the Western Arctic Caribou Herd, you know, heard that it's certainly dealt with a significant number of conservation highs and lows over the past few decades. There are 20 voting members that represent a various array of user groups, including subsistence users, sport users, conservationists, hunting guides and herders and transporters. It meets regularly to exchange and share information, and it also submits comments and regulatory proposals to the federal subsistence board in that state board game. And I know that the working group does there are a lot of other ways in which the working group is involved in a lot of their actions that they do. But again, we're here for two hours and we're just I can't go into that level of detail unfortunately, but they do. We will touch on the fact that they have a cooperative management plan. And that that plan was most recently revised in 2019 sort of sets out pathways for guiding the group and agency and researchers and you know, there with respect to certain projects and and focuses of that group. The inter tribal Resources Commission or a track comprises representatives from each of the eight Aetna native villages from Aetna Incorporated, and from the Aetna Native Corporation.
And some people may not know this, but in 2016, a track in the Department of Interior entered into a memorandum of agreement. For a demonstration project for cooperative management of customary and traditional subsistence uses and the honor region. It cited section 809 of Anelka as one of the legal authorities supporting that cooperative agreement. And you know, if it is important to note that this that the DOI has has basically failed to fully implement the MO way, which has been a point of frustration for many people on a track and Ana members included, but had this been fully implemented. You know, what it envision was that the board would the federal subsistence board would establish the authority to issue permits to a track for taking moose and caribou, other wildlife on federal public lands in ordinance traditional territories that those permits would authorize a track to manage hunting by tribal members consistent with their customary traditional practices. So like I said, DUI is largely failed. Implement the MLA but it you know, it represents another example of an attempted effort to cooperate to engage in a cooperative management agreement with the federal government. The Kuskokwim inter tribal Fish Commission is another organization on the white k delta. That, again, deals with Cooperative management of fish stocks on the Kuskokwim River pursuant to a cooperative. I will refer to it as a cooperative agreement. It's technically a memorandum of understanding with the Department of Interior. It's that the structure of this organization is interesting and unique. It comprises 33 federally recognized tribes who have seen two uses of salmon within the Kuskokwim drainage. It's governed by a board comprised of seven members that board each each of those board members represents a specific region along the Kuskokwim River from the mouth of the River all the way up to the headwaters. And those those board members are appointed by member tribes from within each of those regions. The call I call it the cryptic has tribal commissioners. One from downriver mid River and up river and who serves in season managers and the role that they play is crucial because they they meet together, and also with the managers from the white K National Wildlife Refuge, both prior to the subsistence salmon season. And at least weekly during during the subsistence season to develop preseason salmon harvesting and management plans and actions. And many, if not all of the recommendations that are provided to in season manager, the federal and season manager are based upon customary and traditional knowledge and uses of Sisyphus uses of salmon along the Kuskokwim River. So, you know, there's there's highs and lows to every to every cooperative relationship. You know the one built into the memorandum is the the agreement between the federal and season manager and the inter tribal Fish Commission is an agreement that they'll they'll try to reach consensus on all preseason and in season management actions. But it can be hard, you know, it's really hard to sort of, you know, be able to negotiate to a point of consensus. So, what are some of the, you know, pros and cons that we've learned through this process that well a pro is that you know, cooperative management and integrating tribal participation and traditional knowledge pursuant to that MOU was really helps to work through seasonal management challenges. But subsequent subsequent litigation, like the sturgeon cases that we'll talk about, at the end of this presentation, have raised jurisdictional questions. And, you know, a lot of the time even though the the agreement between the the critic and the department material doesn't prevent the state from interfering with administration of federal subsistence priority. So you know, there's like there's there's pros and cons to every relationship and to every every way of party every method of participation. So, pivoting again, away from cooperative management, management and towards co management to discuss you know, what co management is, and, you know, what are the ways in which Alaskan natives can engage in a co management relationship with the federal government with specific reference to subsistence uses a fishing game? So, again, like cooperative management, you know that what co management is specifically defined in statute or regulation? It's one of those you know, I know when I see it things, generally though, co management is based on an existing legal duty or a relationship that's defined in a statute or a treaty.
And there's a secretarial order, which is basically a policy statement that was issued by the Department of Interior in 2016 defines co-management as a situation where there's a specific legal basis that requires the delegation of some aspect of federal decision making, or that makes co management otherwise legally necessary. So there are some interesting examples of CO management that happen in Alaska and three of the organizations that are engaged in CO management relationships with the federal government, are the Alaska migratory bird comm Management Council, the Alaska nanit COMM Management Council, and I have generally here, Alaska Native organizations, but we'll touch on those more. Alaska Native organizations arise in the context in the specific context of the Marine Mammal Protection Act, and are crucial in the CO management of marine mammals between Alaska Natives and the federal government. To the ambc migratory birds, it comprises that actual co management group is Alaska Native representatives from 12 regions, and then the US Fish and Wildlife Service and the ADF and G. So the 12 regions of Alaska, you know, the excuse me, the Alaska Native representatives from those 12 regions, altogether are referred to as the native caucus and you know, they the native caucus, you know, essentially provides the Alaskan Native recommendation to the NBCC and, you know, has one vote along with the ADF and G and Fish and Wildlife Service when casting votes on regulatory recommendations? What does the NBCC do? What are their responsibilities? Well, like I said they consider and recommend regulatory proposals for the subsistence harvest of customary and traditional uses of migratory birds, eggs and Alaska during the spring. And Summer, summer subsistence seasons. They also recommend law enforcement policies and other programs that relate to participation in spring and summer summer subsistence hunts. Those recommendations sort of go up the regulatory chain the recommendations are made to service regulate the service regulations committee, who then determine whether to advance those recommendations on up to the Pacific Flyway council. So you know, there's it's a it's many steps removed the NBCC is many steps removed from like the actual final regulatory decision making. Unlike the the, you know, the way in which you would engage with the federal subsistence board, or the state boards of game or fish where they're actually, you know, promulgating the regulation, but you know, it's this sort of a, again, 5000 foot view of that process and how it happens. I want to it's important to highlight the legal basis for the NBCC is CO management. So in the United States, in addition to the Migratory Bird Treaty Act, there are four treaties. Those treaties were between the US and Canada, Mexico, Japan and Russia, and that govern the indigenous subsistence harvest of migratory birds. During the spring and summer season. In 1996, the US Canada treaty was revised and that required that Alaska Natives be provided or that specific revision required Alaskan natives be provided an effective and meaningful role in the regulation of migratory birds. That gave rise to the ambc. There are also however, limitations on the extent of the NBCC is CO management authority. And the primary limitation is really, you know, put into effect by principles of treaty interpretation. That you know that principle is that when you're looking at multiple treaties, that all purports to manage or control one resource, the most the most restrictive provision of any one treaty will guide and govern the interpretation of the rest of the treaties. So you know, an example of this happening and sort of being put to the test was that in 1984, and 85, Fish and Wildlife Service entered into cooperative agreements that allowed subsistence hunting of migratory birds in Alaska, but those agreements did not comply or weren't consistent. With restrictive provisions in the Canadian treaty. And the that those that that action was challenged.
The results of that lawsuit determined that interpretations of those treaties like I said, You need to be must harmonized with the terms of the most restrictive treaty and as a result, that means that the subsistence harvest of migratory birds have to be managed, consistent with the most restrictive of the four treaties. And because the Canadian treaty enforces the most restrictive provisions, any regulatory proposals that are considered and recommended by the NBCC need to be just as a basic basic principle needs to be consistent with the terms of the Canadian treaty. So that can certainly constrain, you know, certain actions that the NBCC may wish to take that could that are, you know, more favorable for subsistence users. So there's, you know, so it's a it's a complicated sort of, you know, overlaying of international law and international policy in a domestic regulatory situation. I'm the co management of Alaska to caucus a subpopulation of Chuck TC polar bears is dealt with by the Alaska nanoco Management Council. So talking, you know, sort of picking up the sort of idea of complex international relationships and how that affects domestic management. The ANCC in the specific sub population of polar bears is a really good example of that. So there's a treaty between United States and Russia that has a very long name, but we'll just refer to it as the US Russia agreement. And what that agreement does is it purports to manage the sub population of the the Alaska Macaca polar bear population and specifically the sub population of Chuck CISI. Polar bears, that it's a sub population that the harvest of which is shared between Alaska Natives and Russian natives. This treaty is really important and it's really interesting because it is an international treaty that specifically articulates and affirms that native people and Alaska of Alaska and Chukotka, in accordance with their, you know, domestic party's contracting laws. Have a have a right to hunt polar bears to satisfy traditional subsistence needs. And the treaty also identifies that it is essential for those native peoples of Alaska and Chukotka to have full involvement in the implementation and the enforcement of the treaties provisions. So what does that mean domestically? How is that how is that international articulation of purpose? And duty sort of realized in the domestic sphere, once realized through Title Five of the Marine Mammal Protection Act, which implements the US Russia agreement. Title Five is contains a specific statutory authorization for the Secretary of Interior through Fish and Wildlife to share authority to manage subsistence polar bear harvest with an Alaskan Native organization that represents all subsistence polar bear hunting villages that the organization does two things. First thing is you have to enter into a cooperative agreement for CO management with the secretary under Section 119 on the MMPI and that Alaska Native organization has to administer a co management program in compliance with the NNPA and the US Russia agreement. So as a result of this of this treaty that was entered into in 2022 years ago, almost. We had the creation of the the, the initial Alaska Native organization that was tasked with with these responsibilities, the Alaska commission, that organization doesn't exist anymore. It dissolved in approximately 2016 and 2017, the Alaska co Management Council was formed, and it is the current Alaskan Native organization with which fish and wildlife shares authority for managing the subsistence polar bear harvests from the Chukchi Sea subpopulation of polar bears.
Who makes up the ANCC. It's 15 tribes from all regions of Alaska that customarily and traditionally harvest polar bears for subsistence. Similar to the inter tribal Fish Commission, the Kuskokwim inter tribal Fish Commission, each tribe that's a member of the ANCC appoints a representative to serve on that on the ancc's Governing Board and the governance board collectively make determinations about how to implement Title Five, and specifically what that means right now is whether to accept and approve a co management agreement. between the bncc and US Fish and Wildlife Service. So ANCC has domestic and international duties and responsibilities, and CCS co management responsibilities include the implementation of domestic laws, and specifically right now what ANCC is doing is negotiating a harvest management plan and a co management agreement to do that. And that harvest management plan and CO management agreement contemplates and specifically articulates the circumstances and the do all the necessary details under which it will share authority with the with Fish and Wildlife Service for managing and enforcing harvest regulations for the chuck TC subpopulation of polar bears. And it's specifically contemplates the ANCC as being the you know, the management and the enforcement authority for those regulations and it also specifically contemplates the NCC as promulgating those regulations or creating those regulations. Internationally, though, the ANCC has some really interesting duties and responsibilities, so that the treaty between the US and Russia established what we refer to as a bilateral commission that coordinates the conservation and study of polar bears. It sets key standards like annual harvest quotas, multi year quota systems, and boundary lines that apply to this specific treaty and a specific subpopulation of polar bears that's covered by this treaty. So the Bilateral Commission has four members, two people from Russia and two people from the US. The US members are include one representative of the federal government usually the regional director, efficient wildlife and Alaska. And but there can be you know, it can be really anyone appointed by the federal government, but there's also one Alaska Native representative and that Alaska Native representative is usually the chair of the ANCC. The Alaska Native representative has a lot of influence over how the commission makes determinations. And it's crucially important to point out that all US decisions that are you know, sort of are positions that are presented to the Bilateral Commission have to be made by consensus. So that means that the federal appointee and the Alaska Native appointee or the Alaska Native representative have to agree on whatever position it is that they're presenting to the commission. So if the federal government wants to present a position, but the Alaska Native representative does not agree with that position, the federal government can't just say like do bad, you know, and go to the commission and present that, that that position or make that recommendation. It has to be a position or a recommendation that's made by consensus. So that it's sort of you know, it is a unique articulation of Alaska Native authority and power in a decision making process that has international effects. The last thing that I want to talk about under this section is are Alaska Native organizations that CO manage marine mammals. So you've heard that you've heard me refer to the phrase Alaska Native organizations or anos. Throughout this presentation, you may be asking what the heck are those? They are a group that's designated by law or formerly chartered that represents or consists of Indians, Eliot's or Eskimos residing in Alaska, the Marine Mammal Protection Act of the MMPA is the basis for this definition and is the sort of you know the genesis of what a what an amo is and what they do. throughout Alaska anos have entered into cooperative agreements with either Fish and Wildlife Service or NOAA, depending on what marine mammal is being managed because there's a split between the agencies for who has authority over what animal for the CO management of marine mammals. And what's interesting about these specific cooperative agreements is that they most mostly, all of them, say, to the extent provided, you know, are allowed by law, traditional ecological knowledge and indigenous knowledge are required to be integrated into management decisions.
Just you know, briefly some examples of anos include the alue marine mammal Commission, the ICL committee, the Alaska beluga whale committee, and CC the EY WC the Alaska sea otter and stellar Sealine commission. I also want to note that EP calm the Indigenous Peoples Council on marine management is sort of an umbrella organization that provides assistance, you know, policy regulatory, but also financial assistance through you know, passing passing down grants and passing down federal money to some of these anos throughout the state. The two sections of the MMPA that give rise to these co management agreements or these these cooperative agreements for CO management are MMPA section 119 Section was added when the MMPA was amended in the 1990s and it specifically provides that the Secretary may enter into cooperative agreements with a n O's to conserve marine mammals and provide co management of subsistence uses by Alaskan Natives. The other section MMPA section 112 C, this is the specific section that authorizes or the authority supporting the AW C's co management agreement with NOAA permits the Secretary to enter into contracts, leases, cooperative agreements or other transactions to carry out the purposes of this title of the MMPA with any federal or state agency, public or private institution or other person. So there are there are two there are actually two, you know, bases within the MMPA that provide, you know, legal authority for a co management relationship between an Alaskan Native organization and the federal government for subsistence uses of marine mammals. So we're gonna pivot again. And now what we're going to focus on are policy and legal developments, primarily federal that you know, effects of systems and what and why and how these policy legal developments have lingering and a lasting effect. I referred earlier in this presentation to a secretarial order, you know, what is it? Well, they are basically, you know, policy statements or, you know, announcements that are made by the Department of Interior that established specific policies that direct interior agencies on ways to act or on implementing certain programs. And in this case, implementing certain programs with Alaska native tribes or subsistence users throughout Alaska, when it comes to you know, that have specific impact upon subsistence resource management. There's an important secretarial order that I just briefly want to touch on. It's called secretarial order. 3342, who was issued in October of 2016. And its long title was identifying opportunities for cooperative and collaborative partnerships with federally recognized Indian tribes and the management of federal lands and resources. So this basically encouraged the Department of Interior agencies to, you know, seek out opportunities and enter into where cooperative management possibilities and agreements were possible, and to collaborate with tribal resource managers to share interests and managing federal lands and resources. Right now, you know, in the past, and also currently, there have been a number of primarily federal legal cases that have that have affected and continue to affect the ability of Alaskan natives to you know, access subsistence resources, and also sort of articulate some of the limitations of participating in the federal subsistence process. You know, as everybody who was listening to this presentation today knows that the federal federal statutory and regulatory frameworks that were established by Anelka are really complicated. And, you know, there are there are a lot of pressures on both on the system and on the resources that are managed by that system. And those pressures, you know, oftentimes results in, you know, disagreements between different entities entities, about how decisions should be made about how those resources are used, and those disagreements result in litigation. So again, this is 1000 foot view we could spend all week talking about Katie John and the fantastic legal work that was done, you know, in between the 1980s into the, you know, the 20 teens to secure these rights, but we're just going to touch on it briefly today because we only have a limited period of time. The key when I talked about the Katie John cases, when I'm talking about our three complex federal lawsuits in which the federal judiciary the Ninth Circuit Court of Appeals determined that the federal government had reserved water rights in navigable waters, and that they could exert their federal management jurisdiction over those waters to manage for a nilka subsistence priority.
However, recent cases brought by John sturgeon as a result of being cited for driving an airboat on the nation River in violation of National Park regulations. sort of created a situation where the precedent established by the Katie John cases was compromised. And potentially put at risk, when I'm talking about really are just our two Supreme US Supreme Court decisions that raise questions about the federal government's ability to manage for a nilka subsistence priority on navigable waters. So I'm only going to focus on the second case because the second case in my opinion, is the most important case. In that case, the US Supreme Court concluded that the nation River was not public land is that term is defined in America. Remember, nilka defines, you know, public lands is you know, federal lands and waters and the interests there and they said that that river is not public lands because well, you can't own running water. Alaska holds title to the land beneath the river, and federal reserve water rights. Those reserved water rights are one of those interests they're in. Don't give the government plenary authority over the waterway plenary authority really is just a fancy way of saying the authority to make whatever decisions you want to make. So as a result, the US Supreme Court said that the National Park Service could not regulate non public lands and waters under Anelka, and that's really concerning, because, you know, that has broad implications for almost every single navigable body of water that that passes through, you know, federal like a national park or a conservation system unit. But there was an important footnote in that case. And that case, or that footnote stated, as noted earlier, the Ninth Circuit has held in three cases, the so called Katie John trilogy, that the term public lands when used in Anelka subsistence fishing provisions and compasses navigable waters like the nation River, those provisions are not at issue in this case, and we therefore do not disturb the Ninth Circuit's holdings that the Park Service may regulate subsistence fishing on navigable waters. Thank goodness for that footnote. Subsequently issued National Park Service regulations these came out in November of 2020. Do articulate that or do limit the National Park Service's authority over navigable waters. But the final rule takes the position that there's no impact or effect on the National Park Service's ability to manage for the subsistence priority on navigable waters. And because the Supreme Court said that there's no effect on the Katie John cases. The rule specifically says because the Ninth Circuit precedent remains valid law for purposes of national of the National Park Service's subsistence regulations and that Ninth Circuit precedent they're referring to as the Katie John precedent. The revised definition of federally owned lands does not upset the application of the Katie John cases. So we will see what happens. One pending lawsuit the Alaska versus the federal subsistence board, this is currently on appeal to the Ninth Circuit Court of Appeals. You know, just briefly in 2020, the states sued the federal subsistence board because it didn't like two decisions that made excuse me, one of those decisions was the decision to delegate authority to the organist village of cake to administer an emergency hunt on federal land. And the other decision was the closure of sub units of game management unit 13 to non subsistence uses of moose and caribou for public safety purposes. State lost that lawsuit on both counts and federal district court and it's subsequently appealing that decision to the ninth circuit. So we're waiting to see what the opening brief say and what the Ninth Circuit's determination is.
An interesting possible lawsuit that could have illuminating consequences with respect to the extent of the federal government's ability to manage for the subsistence priority on navigable waters involves the management of salmon of subsistent salmon on the Kuskokwim River. So for the past two years, 2020 and 2021. After there has been a federal a federal opening on the Kuskokwim River and specifically a federal opening, you know, negotiated and agreed to by the by the inseason. Manager and the inter tribal Fish Commission. The State of Alaska after that opening has just gone ahead to proceed to open subsistence harvest on that river on the same river. On days where there is no coincident federal opening, directly implicating and affecting the refuges ability to manage for this insistence priority. So no complaint has been filed just a letter of you know, hey, heads up, we're watching you and we intend to take legal action if you don't clean up your act, but this I'm really curious to see how this potentially plays out. And finally, the state last year, you know, announced the initiation of a number of lawsuits against the federal government to recognize state ownership of submerged lands beneath four rivers in Alaska. And so if you know if these lawsuits are resolved in favor of the state, that the consequence of that is that there will it would limit the ability of the federal government to manage rivers for a nilka subsistence priority. So the last thing I want to talk about today is a still as yet untested and still developing legal theory that consent asks the question, are there reserved rights under banksa? Notwithstanding acts as termination of aboriginal title, and if so, can those reserved rights serve as an additional basis to manage for an Alaskan Native subsistence priority on excellence? So really like the statement, the sort of articulation of position that this theory makes is that x is extinguishment of aboriginal title did not terminate the reserve right to customary and traditional subsistence uses a fishing game resources on excellence. When you look at the Congressional Record, the legislative history of AXA, and it is it is lengthy and it is extensive. Congress did not clearly and unambiguously terminate subsistence hunting and fishing rights you know that it that that record pretty clearly establishes that Congress's policy and enacting aixa was to you know, achieve a fair and just settlement and expressed the expectation that the Secretary and the interior and that the state would take any action necessary to protect the subsistence needs of natives think we can say at least on the state side, that probably hasn't happened. You know, that record also reflects that Congress was clearly aware throughout the development of AXA, that how important subsistence hunting and fishing was to Alaskan Natives.
And nilka. Also that, you know, supports the theory that when Congress was enacting aixa it intended to allow for these for you know, for reservation of rights to customary traditional uses of systems resources on excellence. earlier in this presentation, we were talking about the statements of purpose that a nilka announces and its initial statutory clauses. The first sentence of title eight of Anelka acknowledges that the ability of the continuation of subsistence uses is essential to Alaskan natives on native lands. And, you know, we think that native lands, you can persuasively argue that native lands are excellence. And that that really suggests that Congress realized that extra lands alone were not enough to meet Alaskan Native customary and traditional needs and you know, was basically saying okay, like subsequent statutory frameworks are going to, you know, articulate and provide additional basis for for your realization of these rights. But, you know, right now we are recognizing and affirming that these rights and your lands do exist notwithstanding any extinguishment language and NXR. So, just briefly, what are reserved rights? You know, they're they're basically it's a right that that's not explicit, but but it's necessary to fulfill the purpose of an agreement. So the primary case that that comes up in the context of litigating a reserve, right is the winter's case and in that case, federal government created a reservation and Idaho and, you know, moved a number of indigenous people in Idaho to that reservation with the intent that they would farm the reservation, but we all know you need water to farm and, you know, unfortunately, the reservation was lower down on the river than a number of ranches and farms, you know, owned by non Indigenous people higher up on the river. And the state in Idaho is responsible for allocating water and was allocating so much water to the upper river ranchers and farmers that the downriver. Indigenous people didn't get any water and they couldn't they couldn't farm. And that was that was challenged, and that was determined by the Supreme Court that the federal government can create preempt the state from managing certain things when the states management of those certain things like water, or in the case of this current theory, fishing game resources, makes the makes the purpose of that specific, you know, either reservation in the context of winters or the purpose of, you know, any any agreement and AXA the provision of native lands. It basically makes you unable to achieve the purpose of that reservation. So if the state is doing something that makes it impossible for you to farm, we're going to preempt the state's you know, the allocation of water so that you get enough water so that you can actually achieve the purpose of your reservation. That was the position that was announced in winters. And I think that there are some really interesting parallels to draw between that the winters case, cases that deal with the termination and abrogation of treaty rights affecting Midwestern tribes, and also Washington tribes, and AXA. So you know, as we as we continue to work on and develop this theory, you know, it's going to be interesting to see, I guess, what if it's legitimate, I think it is and you know, how to use it to the advantage of Alaska Native subsistence users to, you know, one engage in perhaps a better and more equitable process and to to provide additional opportunity for subsistence uses of fishing game in Alaska. So that's the end of my slide deck. Thank you very much for sticking around continuing to be here. And I guess Ben, if you want it, you know, we can start taking comments now or start can start reviewing them or it's up to you. I see the floor
Yes. Thank you. Thank you. That was an awesome presentation. Before we get to q&a, I want to recognize some of our leaders here on the call that that you know, do advocate for us on a subsistence front. Rhonda PCOS member FSB. Margaret who is the chair of the board of fish also have Mike Miller here who is the trip comm. So, just want to thank you guys for being here and recognize all of your hard work for our communities. And I do want to go through the the comments that have come in so far, get those out first. If you do have a question, feel free to write it in the q&a or raise your hand. But let's get through the questions that have come in during the presentation. First, if that's okay with you? Sure. So, the first question I see is was from Bruce, and think is, is it possible to create a new Advisory Council for an area? I think you're talking about state advisory councils? Is that correct? Bruce?
Yeah, I'm so I'm gonna I'm going to assume that he's talking about a new Advisory Council and the answer is yes, you know, but advisory councils are created at the discretion of the board, the board official, the board game. So you know, it would have to happen in connection with either of those regulatory bodies.
Awesome. Next question that came in is from Jenny, Bill Jones. And it the question is, it should be pretty obvious that true subsistence and community active activity is active is activity of it taking part in but us native communities designated communities are not similar situated with other communities. I'm curious to know why the similar situate language is not used more often. As he championed efforts to restore subsistence rights.
Non natives are part of a native community, they could still participate. I mean, I think yeah, so you know, I agree. I imagine that the similarly situated language isn't used just because of other complexities you know, that are that it has been used and it hasn't been successful. You know, in the context of state, at least, upstate upstate use, you know, you have just there are a lot of working parts. And you know, like I said, you know, there there are other examples and many other subsistence cases that you know, and I just, simply can't pull them up in my head right now, and I apologize. But, you know, to the extent that it hasn't been done, perhaps it should be and to the extent that it has been done, you know, if it just wasn't successful, there's the story. So the next question I see is does the surgeon case affect Glacier Bay National Park? And I should absolutely know the answer to that question, but I don't and I think that I mean, off the top of my head, I would say that yeah, it would affect Glacier Bay National Park because the National Park and their national park, you know, service regulations that affect navigable waters in that park, but you know, I there could be specific regulatory provisions that I am not aware of that, you know, apply, you know, just in the context of that park or, you know, or other specific like underlying statutory provisions when that park was created, you know, if it was created outside of the framework of America, that could potentially insulate it from sturgeons determination. Like it's the last question from Tom Loman, our federal waters not in Alaska, for purposes of AXA extinguishment of Aboriginal rights. Um, I guess I'm a little confused by the question, but it seems as though the question is asking if federal law you know, if there are waters on engso lands, actually, I'm not so I apologize. I'm just I'm not able to really get the question.
I'm going to unmute Tom and see if he wants to.
Tom, like, can you hear me? Yeah. Yeah. My understanding is that Aboriginal rights were extinguished in Alaska. And there were a couple of lines of cases. I think that were settled through different routes through the courts. I know that I cast case on the North Slope years and years ago. That was I think, the rendered moot at some point in the judicial process. But the argument being that if Aboriginal rights were extinguished in Alaska, federal waters were not in Alaska, and therefore there were still Aboriginal rights on the LCS waters. Right. Okay.
So when we're in what we're talking about, it might be a little, a little different in the context of the anchor theory that we just discussed. Which is that, you know, so those federal waters would be in Alaska. But I think the argument would be that there that there are specific reserved rights to engage in customary traditional uses of subsistence resources on those waters that were not extinguished or terminated or abrogated, when AXA wasn't acted, and that AXA is extinguishment of Aboriginal rights is something that is distinct and separate from the existence of a reserve, right. Does that does that get to the sort of meat of what you're asking about? Yeah, does
I just think those cases, there was something there and then they just got they, they they ended before they were fully decided, and I'm curious whether they might ever be resurrected.
And so I mean, I am too, you know, it's certainly a question that we've we've sort of tossed around here. But, you know, I'm not it's possible, but, you know, they the fact that they ended, you know, and how they ended could be advantageous for certain subsistence users, such that, you know, you would not want to resurrect them. Right. So,
thank you for your question. Sure. Appreciate it.
Awesome. Thank you, Tom. I see Rory has his hand up, Roy. Roy can hear us. Good morning. Are you able to hear me? Yes. Good morning, Roy.
Yeah. Good morning. Thank you very much for that presentation quite long and very, very important for us. The one thing that I want to note on honor the federal subsistence board there is a tribal consultation process set aside specifically for tribes to consult with the federal subsistence board without any naps, non subsistence users present. Set aside. I've done this a couple of times at the federal subsistence board going in there specifically to talk about what what we were engaged on tribal issues in regards to the federal subsistence court action, and I think that's really important. The other test is the additional information the other one had to do with the MMPI. And I know that that opens opportunity for Alaska natives to take all marine mammals. I'm assuming that's true. But I noticed a few years ago, maybe about six years ago, when some village in southwest Alaska took a gray whale, and they were reprimanded by NOAA, I believe or whomever the federal agency that takes that takes the the Marine Mammal for gray whale, they were sent a letter saying that you shouldn't do this. Well. I'm assuming that this wasn't challenged, obviously. And that the gray whales, if taken for subsistence purposes, is a resource available to us but anyway, I just thought I'd make a note about note about that note of that. And, and obviously it hasn't been challenged by the selfless religious people. But I don't know if it scared them enough to not take any more gray whales in the future. But anyway, interesting. No, thank you very much. Those are my comments.
Thank you for raising those. Those are those are really important points. And it's always helpful to have you know, information about occurrences and events that some some people Alaska might not know about integrated at the end. So thank you for, you know, raising the incident of the goodwill. So I see that there's a question from Mabel Baldwin Schaefer, asking that why is it that Alaska Natives need to be back in the state from one year before practicing subsistence? And I suspect that the answer is because you have to be a resident of the state of Alaska, you have to be a rural resident of Alaska. And the way that residency is usually defined is basically being continuously present and in place for a year. You know, there and I can pull up the specific regulatory citation table if you'd like and send that to you, but that would be my best guess.
Awesome, thank you. Are any more questions? If you have a question? Feel free to raise your hand
but four minutes left, so. Oh, here's one from Paul cleaving. I believe I'm Jim. See that, Anna?
So Paul Cleveland's asking if the state gains land underwater, so submerged lands underwater. Will that result in Alaska gaining control over federal waters and organizations like the crit fic and US Fish and Wildlife Service getting limited or no input on regulations and rules? Possibly, yes. But you know, even where the state owns those submerged lands, you know, and this this is this is one of those sort of like, gosh, it gets complicated questions, because, you know, you have state ownership of submerged lands, but then you have a US Supreme Court opinion that says, you know, Katie, John, recognize that even where, you know, those navigable waters are owned by the state of the federal government has a reserve water right there. They can they can manage for subsistence fishing. So I think that that's, you know, that's one of those open questions now that a lot of subsistence users and legal practitioners are dealing with, where we don't know You know, where we're concerned. Yeah, potentially about the outcome. But it could go a couple of different ways.
Thank you, Rory. I see your as your hand is up. We have about three minutes left. So Roy,
thank you. Could you hear me I just want to make sure. Okay, thank you. So under the ANCC leskinen commodity Council. I attended several of those meetings. recently within the last five, six years, not one of the Alaska regional and Commonwealth Council was formed. But what I've noticed in the treaty is that the Alaska United States side is very, very active in trying to create a management process for regulations in regards to taking a polar bear. But the Russians are have a have a difficult time judge cotton's have a difficult time even getting an opportunity to take polar bear. And so I know it's a complicated sub process. But one of the things that you don't need to answer if you're one of the questions I've always asked thought about was what happens if you have one side of the treaty functioning and the other side of the treaty non functioning IE, took cotton people not able to hunt? Polar Bear? And the way I understand the Russian side is that they've been not able to touch for what 50 years, I believe, on the Russian side. So I just this is more complicated than I think. But at the end of the day, we're setting up regulations on our side and the Russian dark on the other side. And is that is that treaty, become an direct result of that. Kind of put the treaty in nimble, in my opinion. So anyway, I'm not a lawyer. I'm just looking at things from the outside having gone to several meetings to try to come up with regulations for Alaska and the quarter has increased for Alaska, by the way, or, or, anyway, thank you. I'll stop there.
No that's and I appreciate you bringing that point out because that you know, one of the primary purposes least as I understand it, well, the reasons why Alaska Natives were willing to endorse this treaty was, you know, to ensure that the native cannons on the other side of the of the ocean right, had an opportunity to have a legal harvest and so the question, you know, if that you ask is really is a very pointed one, and it's a very relevant one. And, you know, it's my understanding that if, if, if the US is the only, you know, party to that treaty that is taking steps to implement it, and you know, our our Russian or Chicago can, compatriots are not being able to take advantage of the benefit that that treaty purports to provide them, you know, whether or not the Alaska Natives who are affected by that treaty, want to continue to, you know, make an effort to comply with it becomes an open question. And he becomes an open question about, you know, how how that question is handled with Fish and Wildlife Service. And, you know, how, how one moves forward from there, so, you know, yes, you're right that it is a comp it is complicated, and there are so many working parts right to the implementation of this, but that that remains a crucial purpose and a crucial point of that treaty. And, you know, if one of those crucial purposes, is not being met, then, you know, in short, we have to figure out what to do.
Thank you, I think it's almost lunchtime, or it's lunchtime. I don't want to be between this group and lunch, but I see Bruce's hand is up. So I'm going to meet you here shortly. Bruce, can you hear us? Hi, can you hear me? Yes.
Okay, I'll just make it really quick. I put a little chat in the in the chat box earlier about what would what would it take for the chair and to public members to create an alternate for the Federal subsistence board.
So are you asking basically what would it take to put another member on the board or to sorry, go ahead. So are you are you asking like an alternative? Are you talking about an alternate in the context of somebody who steps in for either the chair or for either public members and vote? Or are you talking about an alternate in the sense of like adding another public member to the board?
The first one, okay, you know, if the chair is not able to be there, then because alternate can step in or, you know, also for the public members if they can't be there. For you know, emergency family emergency come up. Have somebody stepped in for them? Because I know they do that with the other five?
Right, the agency? Yeah, I imagine that it would be likely it would be a policy that would have to be amended or created and put into existence and I'm not aware of any specific policy that exists right now. But that doesn't mean that there isn't one. So I think that the answer would probably lie. Somewhere in that in that region, where it would have to be like the internal development of a policy that addressed that exact that exact issue.
Okay, thank you appreciate it.
So it's about three minutes after noon. And I recognize that might be hungry for lunch, before we say goodbye. Is there any other questions? We take one more question. Just raise your hand. Give me about 10 seconds. Oh, there's Charlie. Hey, Charlie. Charlie, can you hear us?
Oh Charlie is already had us up for a quick second.
I apologize for that. But my general question for those of us that have additional questions, can we submit those to you Ben via email or follow up that either Anna or any anyone else can respond to and the responses be shared in a group form?
Absolutely someone share my email in the chat, feel free to send me emails I could pass it along to our group. These this workshop series, they actually can kick it off. AFM is larger advocacy in subsistence. And it's been kind of coordinated by great efforts of Anna Tyson Linden, Andrew Bajaj got Bennis Feldman and Ana with with Danny Bennett doing so I could share questions with the group. We can get back to you we have one more workshop next week. This can be even more into the weeds of this kind of on those bigger larger what you know what can be done to effect change in our framework, kind of going and Bruce's question you know what would happen if you actually expand the membership FSB to be more, you know, to kind of be more local to your communities. That'd be our third workshop. So we have that as well. But also, if there's interest we could, we're actually looking at doing additional workshops as well and have more of a q&a as Anna said, you know, we can go into entire days weeks, just on this one subject. So, absolutely. So long story short, I'm gonna share my email in the chat
and we are also recording these workshops. So if you want to watch it again or you forget something or you're in a meeting where you can like what has came up, there will be forever on a website. You can go back and read it, listen to it. And this is for you. And also for you know for you to use, you know, use this as a resource as well. Charlie, did that. Did that answer your question? Yes, thank
Perfect. So that's several a five minutes after noon. It was a quick two hours. I will recognize and thank you all for being here. Thanks to our board members. They're here our co chairs and members of our subsistence committee. And then the team here with Danny Ben Bluestein and Bennett Stillman and spoke for having put this workshop together. Thank you. So much. As always, let me know your questions, feel free to email me. We should have the workshop recording up, hopefully within a day or so and I'll send you an email when that is up. And don't forget to register for next week. That's our third and last workshop in this series. So thank you could have sheesh on a bossy coy Jana