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AFN Subsistence Workshop 1: Overview of Alaska’s Subsistence Framework | Otter.ai

AFN Subsistence Workshop 1: Overview of Alaska’s Subsistence Framework

Spoke Consulting 21h 49min

Ben Mallott

00:00

Good morning, everyone. Welcome to our first subsistence workshop. My name is Ben law to the honor of serving as Vice President of AFM. But before we get started, I wanted to have go over a couple of house, I guess house rules here, we are going to have a time for question and answer at the end, we are using a webinar feature today. So feel free to hold your questions, write them in the chat, or once you get to the end for q&a, feel free to raise their hand. And we could I guess, pick one that you know and that to speak with Tyson and, and Dean here. And again, this is you know, our first substance workshop out of three tiers kind of getting to understand what the framework assistance is. And the second one is going to be more of a how to screen a substance and how that works on both state and federal sides. And through once we have more of a What options do we have to affect change to make it better for us, for our communities. With that said, we are going to also be recording each session. So if you can't remember or use forgot, we will have these on your website for you go back and watch later, as well. So we should have was up in a couple of days after each workshop. With that said, I also like to think Venice, Feldman. And then even Bluestein Dyson Cade, who will be presenting today, along with his colleagues from Linden, Ana, they did an awesome job with this workshop. So I want to thank them and also members of our substance committee to receive because he doesn't hear JMeter for also being here, and you know, helping put this together. With that said, I'd like to introduce Joe Nelson, eighth and co chair to introduce AFN. And, Joe, welcome.

Joe Nelson

01:51

Thank you, Ben. Oh, I'll keep my quick opening comments brief, and I'll be around to help the best I can. I want to thank Ben and the AFN team for continuing to, you know, this has always been our top priority. And it will continue to be our top priority. Just indefinitely, even with changes to the law, and the things that we needed to change we need to make, that there's nothing more important than protecting our way of life. And I know, that's why we have a series here of workshops. These things aren't taught in the classroom generally, they're generally not taught in law school. And it takes you know, unfortunately, teams of lawyers, and policymakers years to really get their heads around what's happening, and where we're at, in Alaska, when it comes to protecting our way of life. And we know, we wouldn't be here without nxo EXO is a critical thing that we're celebrating the 50th year of these corporations. But we also know that there was a huge compromise struck right in the moment, and a lot of unfinished business that we need to continue to tackle for the benefit of our you know, our grandchildren, really, and that so much healing will come once we start really making progress here. So I want to thank all of you for tuning in for making a commitment to these workshops. This today's is foundational understanding the context and background and the next couple of workshops, you know, we'll get into the weeds a little more and hopefully, come to some hopeful lights at an end of a tunnel here where we can all agree on, you know, the lay of the land and really how we want to push and move things. We're also witnessing his history as far as opportunity at the federal level with so many dollars flowing. And then we're as you know, heading into the big political season here too. So the convention this fall will be the first one in a while that's been in person. And we just need to keep this issue front and center always so i i know I'm speaking to the choir here with all of you tonight again, but I just want to with the AFN role here, thank all of you because it's not there's no one any single one of us that's going to get it done. It's all of us working together and mobilizing to to you know, refine these laws and make progress here on this so I want to thank the team, the legal team and the others that are going to share their their insights here with us today and and for those who missed it, feel free to Yeah, we this will be accessible is the idea here that this will be a session that's worth sharing in classrooms around the state and elsewhere. So goes Jewish going on I really appreciate Ben and your leadership for pulling this together and AFM team. So I'm here to help and looking forward to the q&a and looking forward to the next couple of sessions as well. So thanks for being here today.

Ben Mallott

05:15

Excuse Drogon excuse. With that said, I'm going to introduce Tyson Cade from S. Feldman. He's going to be our main presenter today. Tyson, the floor is yours. Thank you.

Tyson Kade

05:33

Ben, let me see if I can get my slides up. Okay, so welcome to the first of three workshops that the Alaska Federation of Natives is hosting on the protection of Alaska Native subsistence rights and uses. My name is Tyson cotta. I'm a lawyer in the Washington DC Office of Ben S. Feldman. By way of background, my practice focuses on a variety of federal natural resource statutes and their application in Alaska and the lower 48 states. I've been fortunate to have been able to work with and represent a number of Alaska Native entities and organizations on issues related to subsistence, and resource management. So I'm hoping to bring some of that perspective to to this presentation. And lastly, you know, Ben and AFN, I thank you for the invitation to give this presentation. So today, in this workshop session, I'm hoping to provide an overview of Alaska subsistence framework, I'm going to start with a brief summary of the historical treatment of the lot of Alaska Natives subsistence rights, prior to statehood, and then in the early statehood era, also discuss sort of the more recent establishment of the federal statutory regime and how that affects subsistence rights, and then discuss where we are today with the dual federal state management under a nilka. So with that, I will launch okay. So starting out at sort of the very earliest want to summarize some of the history that informs subsistence and Aboriginal rights, because it's important to track that up until the sort of the federal statutory era. I don't need to say this, but the Alaska indigenous people have resided in the state for millennia. For the vast majority of this time, there was no influence from from Western or European nations. Instead, the First Alaskans manage their own resources in accordance with their own nutritional needs and their cultural and traditional practices. Starting in about 1741, Russia claimed ownership of Alaska by virtue of discovery, but that in quotes, in reality, Russian occupation wasn't extensive. I think at the most there were maybe 800 Russians posted in Alaska. So this era was basically characterized with, you know, some sort of, I guess, minimal involvement of Western people. And the point here to recognize is that Russia, claimed Alaska by virtue of discovery, and under this doctrine of discovery, as it's called, indigenous people have illegal as well as just claimed to retain possession of their lands, the lands that the indigenous people have historically occupied, but it also gives the discovery nation than any successor the right to acquire full title to the land, used and occupied by the indigenous occupants. You know, this stage that was never really exercised, you start seeing that come out as we move later. So in 1867, the United States acquired Alaska from Russia through the Treaty of session. Notably, Article Three of the treaty provides that the Alaskan indigenous peoples will be subject to those laws that the United States may adopt. I've included the text of the article here. And I regret the recitation of the offensive language, but I thought it was important to include that to give a flavor of what the legal history was at this time between the federal governments and the Alaska Native people. Moving to sort of the pre statehood era, I would say generally, the early laws acknowledged the illicit the existence of the Alaska Native peoples Aboriginal rights. You had the Organic Act in 1884, which establishes civil government within Alaska. Notably, that act stated that the Indians or other persons in said district shall not be disturbed in the possession of any lands, actually, in their use or occupation are now claimed by them. But it also reserved the terms by which someone could have been tired of that title to that land for future legislation by Congress. We also see some other laws that came out at this time that recognize the right So the Alaska Native people and provide accommodations for subsistence. For example, in 1900, there was an extension of federal mining laws to Alaska. That again, provided that the Alaska Native people were not to be disturbed in their use and occupancy, occupancy of lands.

Tyson Kade

10:18

There was a restriction by Congress on taking first seals, and that exempted Alaskan Native hunting for food, clothing and boat manufacturer. And then there were also more general early hunting regulations dealing with game animals and birds. But those would include exemptions for hunting for food or clothing by Alaska Natives or by minors, explorers are other travelers on the land when they're in need of food. So it's the point I'm trying to make by reciting these is that you can see this this body of early law, reflecting a recognition of both unmixed anguished Aboriginal rights to the land and also the right to hunt and fish. So moving to the early statehood era, you had the Statehood Act in 1958. This did not squarely resolve Alaska Native subsistence rights, but it did provide some recognition. Notably, in Section four, it required that the state of Alaska must disclaim any right to the property of Alaska Native people, including fishing rights, and that such property remained under the absolute jurisdiction and control of the United States. This essentially reserved the right of Congress to address a lot of Alaska Native Claims at a later date. And then there was also section six B which granted the state of Alaska the right to select an amount of public lands not to exceed a little bit more than 100 million acres, but condition that on the lands must be vacant unappropriated and unreserved at the time of their selection. Unfortunately, sort of the obligation or the requirements of section B wasn't adhered to by the state. As the state started to assert its right to the land grants. They did go and select lands that were occupied by Alaska Native people and Alaska Native groups. And this created protests by the Alaska Native people that led to the formation of AFN in 1966, to fight for the land claims of the Alaska Native people. And ultimately, these protests led to the federal government suspending the transfer of public lands to Alaska. So this started the state. This was an era of sort of awareness and advocacy for Native rights. And then that was gaining momentum both in Alaska and DC. Ultimately, I think, you know, it's fair to say that it was the discovery of oil in Prudhoe Bay in 1968. And the need to build a pipeline to move that oil that really drove the the need to resolve Alaska Native Claims. And so that, you know, that brings us kind of closer to the modern time that led to the the the Alaska Native Claims Settlement Act in 1971. You know, I don't want to discuss this in too much detail, but I did want to highlight the sort of main provision that's relevant here is that AXA expressly extinguished any claims based on aboriginal title and any Aboriginal or hunting or fishing rights that may exist. So that essentially what that extinguishment, there was no corresponding protection of subsistence rights. This was recognized by the drafters, it's captured in a congressional conference report, which states the expectation that both the Secretary and the state would take any action necessary to protect the subsistence needs of the native people. But this, it's, it's fair to say was never really implemented or effectuated. satisfactorily for probably for anybody. And so that, you know, following AXA, you kind of see the sort of rise of what I would call the sort of federal statutory framework.

Tyson Kade

14:13

And this is generally characterized by multifaceted management structure based on location, species, purpose of harvest status of species. And you kind of see that reflected in many of the resource specific federal statutes that touch on subsistence, like the Marine Mammal Protection Act, the Endangered Species Act, the Migratory Bird Treaty Act, the whaling convention Act, the Magnuson Stevens Fishery Conservation and Management Act. You also see that when you're looking at federal lands and waters in the state of Alaska, the Alaska National Interest Lands Conservation Act, and then you also have state management on private lands and waters. So that's a quick sort of summary or encapsulation of have sort of the general management framework. So I think the point here to take away is that there are many statutes, many legal frameworks and creates a very complicated structure, both in terms of protecting systems subsistence rights, and in managing the species that the Alaska Native peoples subsist on. So here to try to lay out some of the details, I'm going to walk through some of the specific statutes try to give a general overview of what they apply to and then focus a little bit more on the specific subsistence provisions. So we're going to start with the Marine Mammal Protection Act. As the name suggests, it applies to all marine mammals. The jurisdiction is split between the National Marine Fishery Service and the US Fish and Wildlife Service. Generally based on you know, how a marine marine mammal is, so nymphs has jurisdiction over dolphins, porpoises, seals, sea lions, and whales, Fish and Wildlife Service has jurisdiction over those marine mammals that have more of a terrestrial connection like polar bears, sea otters and walrus. The Marine Mammal Protection Act generally prohibits the taking, which is the harassment hunting, capture or killing of marine mammals. And then there are certain provisions that would allow for the issuance of permits for incidental take or harassment, other purposes. And also, notably, there's an exemption for subsistence use, and also self defense. But before moving to subsistence, I just wanted to touch on a couple of components in the permitting process for incidental take, or harassment, because it does affect subsistence, and how subsistence rights may be protected. So when there's when there's an entity that has an activity that may take or harass marine mammals, they can go to whichever service and seek authorization for that, that authorization is limited to a small number of marine mammals. And further, that authorization will only be approved under the Marine Mammal Protection Act, if it's found that that taking or harassment will have a negligible impact on the species. And also for purposes of this presentation that that that that activity will not have an unmistakable adverse impact on the availability of the species for subsistence use. So I wanted to flag that requirement and that provision, because it provides an additional level of protection for subsistence users that that isn't really seen in many other federal statutes. I also want to point out that that that requirement has supported the development and implementation of conflict avoidance agreements between industry and Alaska Native organizations to avoid impacts on subsistence. So, moving to the MMPA subsistence exemption. This applies to any Indian ally or Eskimo who resides in Alaska who dwells on the coast of the North Pacific Ocean or the Arctic Ocean, and it exempts the take of any marine mammal, so long as that take us for subsistence purposes or for creating and selling authentic Native native articles of handicrafts and clothing. And also for both of those are taking must not be accomplished in a wasteful manner.

Tyson Kade

18:34

And so, the relevant regulations provide further definitions of of some of these terms. For example, subsistence is the use by Alaska Natives of marine mammals taken for food, clothing, shelter and shelter, heating, transportation, and other uses necessary to maintain the life of the taker or those who depend upon the ticker to provide them with subsistence. And then also the definition of authentic Native articles of handicrafts, which is, has created some issues in the past and potentially that are still ongoing, that restricts those articles to those that are composed wholly or in some significant respect of natural materials. They also cannot be significantly or they must be significantly altered from their natural form, excuse me, and they must be produced or decorated or fashions consistent with traditional Native handicrafts. And then, wasteful manner is also defined. That basically limits the sort of number that may be taken to those needed for subsistence purposes or for the making of authentic Native articles of handicrafts. It also prevents using means of taking marine mammals that may not be likely to assure the capture or killing of them or activities that are you know, if you do capture a marine mammal it prevent Hence those, you know, those that hunter or from not immediately following it up with in a reasonable effort to retrieve that rematch. So, you know, I'd like to reiterate that this is an exemption from the Marine Mammal Protection Act prohibition on take it's not an authorization. Let's say it reflects that that authorization has always been inherent in the Alaska Native people. However, the Marine Mammal Protection Act does provide the ability to impose regulations on subsistence. Notably, either the National Marine Fisheries Service or Fish and Wildlife Service may regulate subsistence take, if a species or stock is determined to be depleted and depleted is is informed by by two determinations. The first is that sorry. The first is that the species or population stock is below its optimal sustainable population. And the second is if that marine mammal stock is listed as threatened or endangered under the Endangered Species Act. And so once either of those happen, the stock is considered depleted, and then that essentially can can open the door to the regulation of subsistence. And those regulations may address species or stocks, geographic areas types of taking, there is a heightened administrative process involved to impose those. It requires an evidentiary hearing before an administrative law judge. And the federal government has the burden of proof to demonstrate that any regulation or restriction on subsistence is based on substantial evidence when viewing the record as a whole. So it really shifts really shifts the obligation to prove that this is necessary to the federal government. And right now, this is this restriction has only been invoked once, which was for the Cook Inlet beluga whale, which was subsequently listed, but the restriction was done under the MMPA MMPA. The ESA has a similar process. But as you know, based on my experience, and my knowledge, this is the only species that this has been invoked for. You know, one important note that I wanted to add. Going back to the ESA listing of marine mammal automatically triggering as depleted it, it creates that classification irrespective or potentially irrespective of the current health of the population. And we've seen this in looking at some of the Arctic species that have been listed recently. Their populations are healthy. But there are listed under the ESA based on projected declines due to climate change. But the concern is this ESA listing moves these currently healthy stocks one step potentially closer to possible restriction of subsistence and this concern motivated a number of Alaska Native entities to to get involved in that listing and to challenge it in court. So I just wanted to note that potential wrinkle because that automatic, you know, ESA listing to depleted distinction can create some concerns.

Tyson Kade

23:26

Also in the MMPA, it authorizes cooperative agreements. These are captured in two separate sections. I guess I think it's fair to say that through both you can get to a similar result, but they're phrased a little bit differently. Section 119 is a little bit broader. I'm sorry, it's a little bit narrower in terms of purpose. There, the services can enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and provide co management of subsistence use. Section 112 allows the services to enter into sort of more broader contracts, leases, cooperative agreements or other transactions with a broader variety of entities. So that can be federal or state agencies, public or private institutions, and also can be Alaska Native organizations. And I raised this to point out that there are various Alaska Native organizations that have entered into this into these agreements. I believe offhand. There are nine Alaska Native Alaska co management organizations that have agreements with either official Wildlife Service or nymphs. There have been others in the past that have had them but they're no longer in effect. And I think also something to note, because this may be a topic of discussion in the third workshop. When you're looking at these agreements, they generally vary pretty dramatically in scope. Some can address population and harvest monitoring, scientific research, some management others are IP addressing more to the other end of the spectrum where you get sort of true co management. The Alaskan Native entity handles the quota allocates the quota and handles any enforcement of the quota. So there's, there's not really a consistent format or framework for these. And a lot of times it's it's just there developed based on negotiations with the various entities and what can be accomplished. I also wanted to flag for of a smaller provision of the nmpa, which is Title Five. This deals exclusively with domestic management of the Chukchi Sea polar bear cell population under a treaty that the United States has with Russia. I wanted to flag this because it presents an interesting example of subsistence co management. Underneath the treaty. It establishes a Bilateral Commission, which has four commissioners to each from the US and Russia. And then within each national delegation, there's a federal commissioner and a native Commissioner. And importantly, the decision making by these four commissioners must be unanimous. So the commission is tasked with establishing the sustainable harvest level and the annual taking limit. Again, given the consensus required nature, the unanimous required nature of that decision making. It provides each Commissioner with a great deal of input and authority in addressing and approving whatever management measures may apply. I also want to note that in Title Five, there's an anticipation that this polar bear population will be co managed by the Fish and Wildlife Service, and the Alaskan and CO Management Council, which is the established Alaskan Native organization to explore and to enter into CO management agreements. And that agreement is currently being negotiated. You know, over the past, it's been past couple years, and it's getting close to completion, I would say optimistically. Okay, so moving to the Endangered Species Act. This applies to any species listed as threatened or endangered by fish or Wildlife Service or nymphs. It's not limited in terms of marine or terrestrial animal or plant, an endangered species is defined as any species which is in danger of extinction throughout all are a significant portion of its range. And then a threatened species is any species which is likely to become an endangered species within the precede within the foreseeable future, throughout all are a significant portion of its range. So this establishes essentially a temporal component to how stringent the protections of the ESA would be applied to the species endangered are obviously closer to the brink of extinction. Threatened it's foreseeable sometime in the future, I guess to the extent that the services can make a reliable prediction of what conditions may occur. Once a species once a species is listed, triggers an obligation to designate any habitat of that species as critical habitat is critical habitat designations are intended to focus on specific areas, either occupied or unoccupied by the species based on the existence of physical and biological features that are essential to the conservation of those of those species, or in areas where the species doesn't occupy that place. It can be more broader to just the area is essential.

Tyson Kade

28:39

And so that's basically the sort of protective framework that the ESA applies. In turn, there's some prohibitions and obligations by which those protections are applied. First, the ESA prohibits the take of endangered species, and take as is defined broadly to be harassed, farm pursue hunt, shoot wound kill trap, capture. It also prohibits Import Export sale and interstate commerce and some other activities. I wanted to note that prohibition specifically applies just to endangered species for threatened species. The Secretary has the Secretary's have flexibility to determine whether and how to apply those statutory prohibitions to the threatened species so they can automatically apply all of them to threatened species, they can apply some of them, or they can apply none of them to threatened species. So for example, in the recent listings of polar bear and ice seals, the services generally declined to apply the ESA take provisions to those species. Instead, they recognize that because they're also covered by the Marine Mammal Protection Act, that permitting process would apply and In general, that's viewed as more species protective. Because there's an obligation to have a negligible impact. So they've essentially, I wouldn't say Incorporated, but they're, they're relying on the mm MMPA provisions for sort of ESA listed species management. Also, I wanted to touch on another section of the ESA, which is section seven. And under that federal agencies are required to consult with Fish and Wildlife Service or nymphs to ensure that discretionary federal actions are not likely to jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of designated critical habitat. So generally, how this process works is it can result in a biological opinion, that can include alternatives to the proposed federal action that would be necessary to avoid Jeopardy or modify or adverse modification of critical habitat. Those can authorize incidental take of the species and also impose measures to minimize the impact of any taking on the species. And so I wanted to highlight that because when you're you're looking at sort of the result of these consultations, they have created conflict with subsistence users who are affected by development or other activities that require federal permitting. Because those are viewed as having a significant impact on the listed species or their habitat that either kind of deferring more to lower 48, because lower 48 Indian tribes, because this is where it more frequently comes up on their subsistence activities and their uses. So, for example, you see a lot of tribes opposing hydropower development for impacts to salmon and things like that. Also, there's a corresponding impact of this and that if you are in Alaska Native entity or an entity that seeking to do like a community development project or a housing project, in an Alaskan Native community, you may need federal approval for that action, in which case, this process can impose regulatory and economic burdens in addition to that proposed activity, so there there can be conflict there as well. And then finally, under Section 10, of the ESA, similar to the Marine Mammal Protection Act, there's an opportunity for Fish and Wildlife Service or nymphs to issue permits for incidental take of the species. Usually these don't involve federal involvement. So it's it's private activities. And then they're also authorizations for scientific research or establishing experimental populations. So like the sorry, like the Marine Mammal Protection Act, the ESA contains an exemption for subsistence supplies to any Indian ally, or Eskimo, who is an Alaska Native who resides in Alaska, or also any non native permanent resident of an Alaska Native Village. So, with that addition of non native permanent resident, this exemption is a bit broader than what's in the MMPA. But apart from that, it essentially applies in a very similar manner. It authorizes the take of any listed species if primarily for subsistence purposes. That take can't be accomplished in a wasteful manner. It also allows non edible byproducts to be sold at interstate commerce when made into authentic Native articles of handicrafts and clothing.

Tyson Kade

33:40

And under the ESA, this definition of authentic Native articles of handicraft and clothing is almost exactly the same as the MTB MMPA definition there are slight differences. So you can see I think these statutes were developed about the same time so you can kind of see how similar language was incorporated. So similar to the MMPA, the essay exemption on subsistence can also be restricted. Here, the National Marine Fisheries Service or Fish and Wildlife Service may impose regulations on subsistence take, when that take materially and negatively affects the species like under the MMPA. This requires notice and administrative hearing. There's a heightened burden of proof on the federal agencies in order to support doing this. So there is a higher threshold for this to occur. And I do want to point out that there's a secretarial order that does provide a consultation framework for this success for this subsistence exemption. And it lays out in sort of more robust terms, the relationship that should occur and the dialogue and the sort of collaboration that should occur between the federal government and a I'm interested Alaska Native entities and tribes. So, you know, I wanted to note that this require it requires full and meaningful participation, working collaboratively ensures participation to the maximum extent practicable, and all aspects of management and subsistence species. So I wanted to note this because many people are probably familiar with the sort of more general federal consultation obligation with Alaska native tribes and Alaska Native corporations and the shortcomings of that process. So I would just point out that this the secretarial order does provide for a more robust and meaningful process. Unfortunately, it is limited to this specific context. But you know, as we explore options in workshop three, this may be some basis or you know, have some language that may be helpful if consultation is something that should be explored for improvement. So moving to the Migratory Bird Treaty Act, generally, this applies to more than 1000 species of birds. And in terms of I'm sorry, it also includes a prohibition and that it's unlawful to pursue, hunt, take, capture, kill, possess, and so forth any migratory bird or any part Nesta egg of a bird. Under these provisions, there are some allowance for the hunting or there is allowance of hunting of migratory gamebirds in the fall and the winter season. The issue in terms of subsistence is that the original migratory bird treaties that were entered into with Canada and Mexico, back in the early 1900s, prohibited the take of migratory game birds between March 10 And September 1 of each year. So neither of these treaties considered the traditional harvest of migratory birds by the northern indigenous people during the spring and summer months. And that persisted for many decades. Their efforts following statehood to enforce this prohibition. Notably, this led to the barrow duck in in 1961, where residents of chaotic harvested ducks out of season and presented them presented themselves for arrest. This led to, you know, essentially a relaxation of the enforcement. But it remained a pretty significant issue. So To remedy this, the United States government negotiated amendments to those treaties to allow for spring and summer subsistence harvests of migratory birds. And then the US Senate approved the amendments to both treaties in 1997. So now the Migratory Bird Treaty Act authorizes the issuance of regulations for the take of migratory birds and collection of eggs by indigenous inhabitants of Alaska for nutritional and other essential needs.

Tyson Kade

37:57

And so that regulation of subsistence, under the Migratory Bird Treaty Act is essentially addressed and managed by the Alaska migratory bird co Management Council. This is a co management body responsible for developing recommendations for regulations concerning subsistence uses of federal migratory birds in Alaska. The membership includes representatives of the US Fish and Wildlife Service, Alaska Department of Fish and Game and the Alaska Native community. Each block casts One vote for for recommendations. And then the these recommendations are submitted to US Fish and Wildlife Service for review and approval, and they're published annually in the Federal Register for notice a comment and that enforced by the Fish and Wildlife Service. Under the Migratory Bird Treaty Act, the Alaskan natives may sell or resell authentic Native articles of handicrafts or clothing that contains inedible byproducts of identify bird species that were taken for food. So that brings me to the the whaling convention act. This was established under the International Convention for the regulation of whaling, which is an international treaty binding on the United States since 1946. That established the International Whaling Commission. Generally, it prohibits the commercial harvest of whales, and it sets cash limits on subsistence harvest, domestically that's implemented through the whaling convention act. And that establishes the US domestic obligations, both statutorily and regulatorily. And so, in implementing this, the National Marine Fishery Service will publish subsistence whaling catch limits that have been approved by the IWC and they've promulgated regulations regarding the various whaling provisions importantly, there's the Alaska Eskimo Whaling Commission, which was established as the CO management body to co manage the bowhead whale subsistence harvest through a cooperative agreement with nymphs. And so how this works is the National Marine Fisheries Service has issued the US share of the catch limit, which is then transferred to a PWC for allocation and enforcement. And through their cooperative agreement, a PwC has exclusive enforcement authority for any violation that may be committed by a member of the AF AE WC during the whaling hunt. It also requires whaling crews to record the number of strikes. And it requires NOAA to consult with a PWC on any proposed agency action that may affect the bowhead whale and or the subsistence harvest. So it provides a lot of authority and a lot of management responsibility to a PWC as the CO management entity. And just you know, in terms of looking at co management and cooperative agreements, in my view, the one that aw C has is, you know, frequently considered the gold standard, just given how much authority it gets to the the Alaska Native Alaska Eskimo Whaling Commission for purposes of CO management. So moving to fisheries, there's the Magnuson Stevens Fishery Conservation and Management Act. This applies to federal fisheries from three to 200 miles offshore. And it provides for federal management of those fisheries within the three mile limit fishing is, is managed by the state of Alaska. So under the statute, there are eight regional fishery management councils that that are mostly comprised of representatives of the fishing industry and state fishery officials. And they're tasked with preparing fishery management plans, which are approved and implemented by the National Marine Fishery Service, they must abide by 10 National Standards in the statute, which are intended to promote sustainable fisheries management, for example, they're there, they're sorry. They're targeted preventing overfishing and rebuilding over fish fisheries. Their standards for determining the fishery stock status. It allows for annual catch limits and limited access privileged programs for like transferable cat shares. And it also accounts for the importance of fishery resources to fishing communities. So here in Alaska, the applicable Regional Council is the North Pacific Fishery Management Council.

Tyson Kade

42:49

And that body is made up of 11 voting members, and it's one representative from the National Marine Fishery Service, Alaska Department of Fish and Game. And then the commissioners for fisheries for both Oregon and Washington. And then five public members appointed by the governor of Alaska and two nominated by Washington. So these public appointees are primarily commercial are from commercial and sport groups representing large industrial fisheries, and occasionally Community Development quota groups. At this time, there's no voting member of the Council. That's the designated tribal or subsistence user. And also want to note that the council isn't required to provide formal consultation on its actions and typically does not engage in tribal consultation. That does occur once nymphs gets the fish developed fishery management plan. And so to a limited extent, those concerns can be raised with the agency but typically that's right at the approval stage of of the action that the North Pacific Fishery Management Council has taken. Notably, the statute does not include an explicit subsistence exemption, there have been some fnps that address potentially address some of those types of concerns. For example, there's an FMP Fishery Management Plan sorry for the Arctic that prohibits commercial harvest in federal waters in the Beaufort and Chukchi seas until there's sufficient information about those potential fisheries. And then you also have commercial fishing for halibut, which is under an international treaty, commercial harvest of salmon is managed by the state. And I believe there is one subsistence halibut fishery that's been established in in southeast Alaska. I do want to note that, that the council has been getting a lot of pressure from Alaska Native entities and Alaska, Alaska Native subsistence users on for their management process and how They consider information. So they're currently developing protocols for the use and incorporation of local knowledge and traditional knowledge to inform their decision making. Especially those that may affect subsistence resources associated with with fisheries in the Bering Sea. And so those protocols are still in development. But my understanding is that they are intending to, they are recognizing that distinction between Western science and traditional knowledge. And they are moving to find a way to incorporate traditional knowledge and harmonize the two for purposes of their of their management.

Tyson Kade

45:42

So, turning now to sort of Alas, focus of the presentation. Following the Alaska Native Claims Settlement Act, there were many issues associated with the lack of federal statutory protection and subsistence harvest rights. And these issues became more prevalent as time went on. Notably, there was increased growth in the non native population in Alaska, with political and resource utilization implications, notably, there is greater competition for resources, greater hunting and litigation of subsistence Resource Management by urban non Alaskan Native people. So you really see, you know, an increase in for the conflict and the need to provide protection for subsistence uses by the Alaska Native people. So that led to the Alaska National Interest Lands Conservation Act. And notably title eight deals with with subsistence was passed in 1980. The statute generally had two goals. One was to provide greater protection for the national interest in scenic natural cultural values on public lands in Alaska. So it provided for a set aside of over a million acres of land for preservation purposes. And then the other objective was to provide protection or missed opportunities, greater opportunities for residents engaged, rural residents engaged in a subsistence way of life to continue to do so. So Anelka in Title eight, that's what's directed at subsistence protecting subsistence on public lands. Notably, in drafting and nilka, Congress found that the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both natives and non natives, on the public lands and by Alaska Native people and native lands, it's essential to native physical, economic, traditional and cultural existence and also to non native physical, economic, traditional and social existence. Whatever as a matter of policy, Congress also expanded to say the utilization of the public lands and Alaska is to cause the least adverse impact possible on rural residents who depend on subsistence uses of the resources. And here generally, just to kind of provide some give an indication of the scope public lands are defined as the lands waters an interest in them title two, which is held by the United States. So Anelka has, generally it excludes state owned lands, and it excludes Alaska Native Corporation own lands. These aren't considered public lands under under federal law for purposes of the Milka. So moving to sort of subsistence management under a nilka. The intent of the original drafters was to provide or was to protect subsistence hunting, fishing and gathering by Alaska Native individuals. We see this in an original bill, an original Anelka bill, which contained a native priority for subsistence. However, as the drafting process went on, the state of Alaska raised objections regarding its ability to conform with the state constitution. And so this native preference was changed to reflect rural Alaska residents. But what Anelka does is it provides a priority for subsistence uses the language of the statute is 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. And again, the statute defines subsistence uses looks at customary and traditional uses. And again, it focuses on rural Alaska residents. And these terms are further defined. I think for purposes of hearing this statute is I'll kind of get into it a little bit is implemented by the Federal subsistence board, they have federal regulations, and they're all tries to identify what non rural what rural and non rural areas are for purposes of the statute. So generally the areas around Anchorage, Fairbanks, Homer, Juneau, Kenai, Ketchikan, Seward Valdez was Sylvan Palmer, those have been determined to be non rural areas. And so generally the way this works is, it allows for the closure of federal public lands for non subsistence uses of fish or wildlife, if necessary to conserve healthy populations of those species, to assure that continued viability of those populations, or to continue subsistence uses of those populations. So that's just a quick sense of of how that priority comes into play. And I'll get into that

Tyson Kade

50:59

a little bit more here. So when it's necessary to restrict subsistence taking on public lands, there is a process by which a priority is established through rural Alaska residents. And this is different from restricting for the non subsistence activities. This goes to, to when species availability or populations may be such that it's necessary to impose restrictions on on the subsistence uses themselves by rural Alaskans. The statute establishes a priority system based on three criteria. These are called the tier two criteria. And so, through these a federal subsistence board will determine in which areas communities or individuals are determined to have customary and traditional use, based on their customary and direct dependence for their livelihood, local residency and availability of alternative resources. There's also the authority by which the federal subsistence board can temporarily temporarily close areas of public lands federal public lands to subsistence uses. And likewise, same for emergency closures. The justifications for the two are slightly different as are the process by which those must occur. But I just want to flag that there is that authority out there. And then also, I wanted to quickly touch on some of the other provisions in a nilka that address subsistence. First, section 811 requires that rural residents engaged in subsistence uses have reasonable access to subsistence resources on public lands. So this provides for snowmobile use motorboat use other surface surface transportation traditionally employed by those residents to access those resources. That is subject to reasonable regulation, but it's the right of access itself that is that is codified. Section A 10 of Anelka provides a an evaluation process, if you will, where the agencies, federal agencies must determine when they're permitting the use occupancy or disposition to federal public lands, they must evaluate the impact of that activity, and take reasonable steps to minimize the impact on the effects of subsistence uses and needs. Under Section 809 of Anelka that authorizes cooperative agreements, fairly broad in scope can be with other federal agencies, the state native corporations or other appropriate persons to achieve the purposes and policies of a nilka. Section 807 provides a right of judicial review for subsistence users, tribes and organizations, they can sue the federal and importantly the state government in federal court for a failure to provide the priority for subsistence use, and if successful, it provides for injunctive relief and the ability to recover costs and attorneys fees. And then finally, in Section 812, there's a directive for the Secretary to undertake research on species and subsistence uses on public lands and to see data problem and consult with those local residents and have special knowledge about subsistence uses. So kind of turning to, let's say, sort of the implementation of Anelka or the key dynamic is this federal and state relationship. So when Anelka was was passed, it did have the protections for subsistence. But the intent was that the state of Alaska could take over management of subsistence on state and federal lands. If they enacted laws that would extend the priority to rural the priority for rural residents to To all lands. And so initially in 1982, following the passage of Anoka, Alaska had Alaska passed regulations that did provide a statewide rural subsistence priority. There was litigation that that invalidated that regulate that regulation. So in 1986, the Alaska legislature passed a statute that provided a rural subsistence priority. Again, that was that was challenged and overturned by the Alaska Supreme Court. That was in the case of McDowell, the state of Alaska. There, the state Supreme Court and about invalidated the state statutes rule residency preference as unconstitutional. You know, in general, it found it violated three provisions of the Alaska State Constitution. One is that

Tyson Kade

55:50

fish and wildlife and waters are reserved to the people for common use, and others, there's no exclusive right or privilege for fisheries. And then also sort of the Equal Protection Clause is that the laws governing the use or disposal of natural resource shall apply equally to all persons. So the court looked at those constitutional provisions and determined that this singling out of a preference for rural residents violated those. So centrally with that decision, the state was out of compliance with a nilka that required the federal government to assume management of subsistence uses on federal public lands. Initially, this only covered federal lands and excluded nearly all of navigable waters, and therefore nearly all subsistence fisheries from the management regulations. So Alaska Alaskan Native challenges to those restrictions led to the Katie John litigation, which was a trilogy of cases in the ninth circuit that just briefly expanded the scope of public lands to include those navigable waters in which the United States has an interest by virtue of the reserve water rights doctrine. So as a result, the scope of this subsistence priority was expanded to cover not just lands but a lot of the navigable waters in the state. And then also kind of going on on a on a separate path. At this time, there were efforts by the state to secure a constitutional amendment to address the issues that McDowell Courtrai raised. And ultimately, these were all unsuccessful. So the result of this is what we have now, which is dual federal and state management on subsistence uses in Alaska. So under that framework, the state generally manages fishing, hunting and trapping on all non federal lands, and all Alaska residents are eligible to hunt under those regulations. And in many cases, the state also regulates hunting on or hunting or harvest harvesting on federal lands as well unless those areas have been specifically closed to non federally qualified users. And so on top of that, you have the federal management regime and the Federal subsistence regulations that only apply to the Federally managed lands and dictate only where rural Alaskans may fish or hunt using those regulations. And then the priority comes into play if there is sort of, I don't want to say like resource allocation conflicts, but if they're, if they're insufficient resources to provide for all uses, the federal government can close those federal public lands to nonverbal Alaskans by providing the priority for subsistence use.

Tyson Kade

58:47

So briefly, I wanted to quickly just touch on sort of the management structure. I do want to note that I'm not intending to go too deep into this, into these these bodies and how they work and how they manage that's going to be the focus of the second workshop. So antiquary will be leading that in providing a deeper dive into how this process works. But by way of overview, or or maybe foreshadowing. The Federal subsistence Board was created by the Department of Agriculture in the department of the Department of Agriculture and the Department of the Interior to manage all federal subsistence hunting, trapping and fishing for species under a nilka. And sort of under that, under the federal subsistence board, Alaska has been divided into 10 subsistence resource regions, each with a regional advisory council or rack. The rack members must be local residents with knowledge of subsistence practices and uses in that area. And then these bodies typically hold public hearings to gather information to make recommendations to this assistance board on subsistence issues. The boards required to defer to recommendations of each rack unless not supported by substantial evidence, or they violate principles of Fish and Wildlife Service conservation or would be detrimental to subsistence needs. But I want to flag that, you know, within this the subsistence or jurisdiction for purposes of Anelka and subsistence management is, it's fairly broad it is the body that is tasked with determining and implementing a lot of sort of the defined terms that I flagged earlier. So they determine which communities or areas of the state are rural or non rural, for purposes of the federal priority. They determine which areas have customary and traditional subsistence uses. They allocate subsistence uses efficient wildlife populations. And so I'm sorry, and, and so forth. Oh, so I also want to mention one other body that's that's important to know is the office of subsistence management. That's housed within fishing Wildlife Service. And they provide administrative and technical and scientific support to the subsistence board and the racks. They also work with rural residents and Fish and Wildlife Service to develop and implement cooperative management systems. So moving quickly to the state side, Alaska has general management authority for fish and wildlife, unless modified or diminished by acts of Congress. So those includes some of the statutes I discussed previously, like the Marine Mammal Protection Act and dangerous species act Migratory Bird Treaty Act and nilka. And that management generally occurs through Alaska constitutional requirements, again, like we've referenced in the McDowell case. All the fish, wildlife and waters of the state are reserved to the people for common use. There's no exclusive right or special privilege and fisheries and laws and regulations governing the use or disposal of natural resource shall apply equally to all persons. So that provides like the overarching legal framework for how state management should occur. And that's effectuated through the Alaska Department of Fish and Game. And they're sort of subsidiaries, the board of game and board of fisheries. And then, it's also I should note that, underneath that there are locally local advisory committees that informed the board's they provide a local forum for fish and wildlife issues, they develop and evaluate regulatory proposals and they make recommendations to the boards. Turning to sort of subsistence, more specifically, the state has not defined subsistence, we've got that definition here. It's it's very similar to how it's defined in a nilka. But the one important distinction that it says by a resident of the state so it's not rural resident, it's any resident can participate in subsistence. All that you need to do is be in Alaska residents for 12 consecutive 12 consecutive months. And then also the state doesn't authorize subsistence, in non subsistence areas. So those are places where subsistence is not a principal characteristic of the economy, culture and way of life. Notably, Anchorage, Fairbanks, Juneau, Ketchikan, I mean, these are I mean, it looks pretty narrow when you look at the names, but the areas that have been set aside are fairly broad.

Tyson Kade

01:03:45

So I don't want to miss out on I don't want to miss characterize the implications of that. And again, kind of similar to the federal side, on the state side, the boards have responsibility for for managing subsistence harvest by the residents of Alaska. It's done on a sustainable yield basis. And so in looking at the amount of fish or wildlife that are available, the board determines the amount of harvest that's that's reasonably necessary for subsistence uses, they then adopt regulations that provide for a reasonable opportunity for subsistence use. And you know, reasonable opportunity is is defined what the best word is fairly weakly, I guess. It just provides a normal diligent participant with a reasonable expectation of success in taking fish or game. So there's not really a strong right that that is incorporated in that. And then similar to the federal side, if the harvest portion of the species is insufficient for subsistence use the board can limit subsistence users based on what's called tier two criteria that look at customary customary dependence. And the ability of subsistence users to obtain food if their use is restricted or eliminated. So, kind of with that overview in mind, and kind of stepping back, I guess, from my perspective, you know, in wrapping up this this presentation, I wanted to flag some challenges for subsistence management that, that I've seen that I'm aware of from the work I've done in the state. Notably, there's a lack of priority for Alaska Native subsistence use on the federal management side under a NoCo. That's based on rural residents on the state side, that just reflects Alaska residency and is sort of more indicative of the interests of urban residents. Another challenge is, you know, as we've walked through all these statutes, there are multiple species and multiple frameworks that apply. And, you know, it creates a very complex interplay between the various jurisdictions, the agencies, the forum's the entities, there are different restrictions and seasons to pay stock based on location. There varying roles for Alaska Native entities, Alaska Native people in subsistence management decisions, there are obstacles to inform participation by those groups. Also, another kind of inherent difficulty in the system is just the different management approaches and values. You know, for the most part, you see these management decisions being directed by by Western science, papers need to be published and peer reviewed in order to have value. That's compared to traditional knowledge and indigenous knowledge, which has been passed on from generation to generation that's ever evolving, and really shows the depth of understanding and the relationship between the people and the species, there's often a disconnect between those two. And, you know, until recently, the federal agencies and the federal government have been very reluctant to acknowledge traditional knowledge and incorporate it, we're starting to see that change. So that's, that's positive. But there's still a lot of difficulties in how that's done, and how that's captured and authorized under the statutory regime. And then you also have different approaches to species management, versus, you know, how it would be managed for nutritional needs or traditional cultural practices. So, again, you often I recognize that I'm in DC saying this, but you often have bureaucrats in this city, espousing their view on how management should occur and imposing that on on people up in Alaska. And there's

Tyson Kade

01:08:01

not a lot of understanding of, of how subsystems has been managed in the past and how it should be managed going forward. So there's a big disconnect, and lack of just basic understanding about about that. And then finally, there's no real consistent framework for CO management. You see it recognized or spoken to, or authorized in some of these statutes, either co management or cooperative agreements. But the approach and implementation differs pretty dramatically based on the statute, the agency and the species. So it's not really coherent. And it's very rare to find a co management agreement or a cooperative agreement that provides for true co management or true management by the subsistence users are the Alaska Native entities representing the the Alaska Native hunters or gatherers. So, you know, by way of kind of capturing that, and summarizing that I wanted to kind of set up some thought and consideration as we as we move through workshop two and into workshop three, where we're, we're hoping that for the presentation of these frameworks in these issues will help inform and provide a solid basis for discussion on how do we address some of these challenges, what can be done to provide a path forward to promote the subsistence uses subsistence rights of the Alaska Native people. So with that, I'll conclude my presentation and quickly give a quick plug for the next two workshops. So the next one is, as I mentioned, will be hosted by Anna Clary, who I believe is on the on the call today. It's going to be focusing more on the native participation in decision making looking at federal subsistence board, State Boards of game and fisheries, some of the court challenges that will come out I'm in some co management, cooperative type opportunities. And then workshop three on May 19, where we'll be getting into a bit, getting into some of the options and considerations for, for how to address some of these issues and promote Alaskan Native subsistence rights and nieces. So with that, I will, I will conclude. And thank you very much for for hearing me out. I apologize if this was fast, and a bit repetitive going through the legal regime. But I'm happy to take any questions or, or Ben or Joe, if you want to jump in, feel free. But um, thank you. Thank you. Oh,

Joe Nelson

01:10:41

yeah, Tyson, they thank you for having the slides. And we at the get go, that this is going to be shareable and shared the presentation, the recording, so others will be able to come back and look at it, it's not something you you learn, just hearing just once real quickly. And sorry, I might I missed just a few moments there they hadn't, because I didn't address something. But I know we're going to try to manage questions and get through quite as most of that we can. And you might have covered some of it. But the one that came out right out of the gate that always comes up and you might have covered in the last 10 minutes that I missed there. But and I'm going to try to ask it and you know, BB I guess respect Bobo direct and how I asked it here. I'm a lawyer too. But the question that we've been wrestling with, as a community as a states, and it's why why do we have to pack around these blood quantum cards? And is the issue embedded in statute or regulation? And what's our path forward on that? No one that the blood quantum does never goes back to Whole Again, it's a very colonial construct. That is a very tough barrier. And I know we're as a community, different points of view on it. But just from a legal perspective, what is the issue on the blood quantum and where does it stem from the statute regulation?

Tyson Kade

01:12:16

Sorry, I was struggling to hear you It sounded like you're asking a question. But the issue with blood quantum and how that comes into play?

Joe Nelson

01:12:22

Yeah, yeah, the blue blood quantum just just very, you know, we have to background cards, not for every everything. But why do we have to prove our blood quantum? And is it the issue embedded in the statute, that we need to get Congress to do something? Or is it in the regulations?

Tyson Kade

01:12:46

I think what you see, you know, at least in the statutes that I've been working with here, you know, they they talk about, you know, Eliot's Indians, Eskimos, phones ringing without a clear definition of what that is in the statute. So what you've seen, at least under the Marine Mammal Protection Act, is they've come out with no definition of Alaska Natives in the regulations. And that's where they pull in the definition from AXA, which has the blood quantum requirements. And so they're relying on that. And so, you know, I recognize that issue. And I'm trying to remember, you know, I know, I've seen some some groups that have prepared proposals on that. But it's, it's something that could, you know, depending on which statute you want to address it in, could either be, you know, legislation or regulatory? I think the basis is there, you know, from the materials that I've seen, and the background that there is a is a good, solid basis to address that. But given that it's in sort of the the applicable laws and regulations, it still applies. And so it's still an issue that must be No, and you know, that needs to be dealt with, unfortunately.

Joe Nelson

01:14:11

And, at the moment, our understanding is that it's, it's mainly becoming an issue in the MMPA. It's more at the regulatory level where somebody adopted the definition from banksa. And with even with an NX, there's a pathway to wrestle down and on it, it through our through our enrollments and get rid of the blood quantum even our own enrollment. So Right. Yeah,

Tyson Kade

01:14:40

right, there is a pathway but that blood quantum requirement is still there. So my sense is it creates some uncertainty. And, you know, I think, you know, at least on the MMPA side, because it comes in from regulations, it's probably easier to deal with Um, with effects, at least for those statutes. You know, legislation can be a tougher lift. But no, I do recognize the challenges with that. And you know how that alternative pathway through recognition is, you know, maybe not sufficient or the best the best way to handle it. Perhaps, I mean, it depends on I recognize it probably various, various people in various entities have different perspectives on it. And I know it's been a subject of a lot of discussion.

Joe Nelson

01:15:36

So I'm going to wait on Matt and Aaron a bit here to help feed through some of the questions because I did have to step away and there's a long string here of chats happening. So I'm trying to find the place to grab questions

Ben Mallott

01:15:50

when you're going through that. Have a couple. I think Darryl, Ben has a hand up. And he has a question regarding just substance on federal lands. So Darryl, I don't know if you want to allow you to talk.

Speaker 1

01:16:05

So yes, is there Could you hear me? Yep. Hi. I had a question on our native allotments that we, you know, we're not allowed to hunt on them. But because traditional uses, I'm wondering, you know, how do we go about finding out, you know, because the huntin regulations state that we can count on native allotments? And also, where do corporations stand on their use of their lands with natives? And, you know, traditionary, cursors, customer use? versus state? Which has management on it? You know, I haven't seen in one day to knock off

Ben Mallott

01:17:06

a gonna go on a break up a little bit.

Speaker 1

01:17:15

Oh, kinda confused on that. Because, you know, it doesn't define anything in there. Okay, it doesn't define anything on there that states that state was managing on the corporation lands or anything like that. It just, it's very vague to me, I, you know, I don't have all the paperwork in front of me, but could they explain a little more? How do you know, traditionally customer use on those lands versus the state? Like, say, for instance, we're we're low on fish, and we're putting in a special action request to have a federal subsistence used only. So good. I did a little more exploration on it. Thanks.

Ben Mallott

01:18:07

Thank you, Darryl. Tyson. And Daryl, I think a lot of your question is going to be covered in the third workshop? What kind of what avenues to go forward? Definitely no with a nilka Dam define agencies are the opposite of advance enticing the party speak more about that? And Anna, your Oh, I see. I'm Anna popped up.

Tyson Kade

01:18:31

I think generally, for purposes of like Corporation land, it's treated as private land under a nilka. So it would fall under under state management.

Speaker 2

01:18:46

Yeah, and this is this is antiquary. Wayne. And that's, that's correct. So right now, even though Alaska Native corporations on you know, a significant amount of land in Alaska. They management of game on those lands currently, under, you know, existing legal structures is subject to state state management regulations and state subsistence laws. And as Tyson explained in his presentation, and as as I'll go into more detail on next week, right now, this state law does not identify a specific Alaska native or rural preference for for subsistence or for really hunting period. You know, as we all know, here in Alaska, the state champions the all Alaskans policy, which recognizes all Alaskans as subsistence users, you know, with equal rights to access, fishing game resources within within certain availability, you know, restrictions, which again, I'll go into in a little more detail next week. And then with respect to your question about you know, what applies to native allotments? They're all the question of whether a nilka specifically applies to allotments at this point, I don't believe is that sleepin finally and definitively answered by a court. It's an open question. It's been touched on in litigation. But you know, it right now, there would be a number of considerations that would have to be made, like whether that allotment is in restricted or unrestricted status. And, you know, specifically how big the allotment is, you know, because I know that there's a concern, obviously, with, you know, checkerboarded regulations, which is essentially, you know, you have, you know, parcels of land or state regs apply and parcels of land, and we're federal regulations apply and, you know, sort of similar. So when you go hunting, maybe out in unit 13, you know, you're always passing back and forth between national park land on a territory state territory, you can become very complicated to regulate that. And it is complicated to to try to obtain your meet your subsistence needs in that kind of, of reality. But again, that's something that we can that will I will discuss in a little more detail next week.

Ben Mallott

01:21:04

Thank you, Anna. And before we jump to Lisa, who has hand up, so a couple questions in the question answer. I think Karen kicks it off. Karen is actually a defensive committee member. Joe is a permission to ask Karen, if she could maybe talk more about her question. Karen, let me find out. Hi, can you hear me? Yes.

Speaker 3

01:21:32

Thanks so much. My question was about your presentation on the Alaska or excuse me, the Migratory Bird Treaty. And here in Alaska, US Fish and Wildlife sees it as only allowing the management of subsistence hunts in the spring and summer, and that it would require full amendment to the treaty to authorize subsistence hunting in the fall and winter. And in the ally region, our traditional hunting timeframe for certain species is the fall in winter. And so this has been a long standing issue, preventing us from using our traditional hunting timeframes. And with the change in birds distribution and timing and patterns, other folks in the state are also starting to see birds where they wouldn't used to at different times of year. And so it could be a grilling issue. And I was just wondering if it's your reading that the spring and summer is all that's covered by the Migratory Bird act? Thank you.

Tyson Kade

01:22:39

For it, I was leaning forward to hear a bit better. I think the spring and summer is the period that's expressly set aside for subsistence. But you know, and this is probably not satisfactory, but there, you know, there is harvest allowed in the fall and winter. It's just more general. So there's no real explicit protection, or, you know, set aside for subsistence in that time period. So if you want to, you know, I think given other treaties are, you know, you may have to look at that type of issue if you are trying to establish a specific subsistence related harvest in those time periods. That would be distinct from the general sort of harvest available to everybody.

Speaker 3

01:23:27

And the issue, of course, is in times of reduced availability, if they're going to be reducing harvest allowances, they should be reducing sport before subsistence at least that's been the precedent in in some other issues where endangered species or threatened species comes up, so thank you.

Ben Mallott

01:23:59

Thank you, Karen. Thank you, Tyson. I think we have I see Lisa's hand. Hands up. Lisa, don't give a if we have question he's up.

Speaker 4

01:24:18

Right, sorry about that. I had a couple of questions on the on the allotment issue. What if you were you have allotments that are in holdings in either parks or or refuges or park preserves? Why would not the whatever the hunting regime that applies the statutory regime that applies? They're also applied to the allotments? I always assumed that that was the case. So that was one question I had on the on the mic on the Migratory Bird question. My recollection I worked for Senator Stevens for 27 years in the Senate and I did all the kind of land and subsistence issues for him. Um, my recollection is that Congress might have done an amendment at one point to the Migratory Bird act, because at one point it required that harvesting, I think it was had to be done, but couldn't be done until after September, and a lot of our birds were gone by then. So that might be one thing that you all might want to take a look at. And then my last question was on on in terms of just regulation or in terms of native lands? Have you guys looked at Dennis Feldman at all about modifying the language the extinguishment clause, it was an AXA. That said, All Aboriginal hunting and fishing rights are extinguished? And just add one clause that said, Except Except for lands conveyed pursuant to this act, meaning AXA? Have you guys explored that at all? Because I think that might be something that would be really easy to. I mean, it's easy in terms of the draft team, but it might be something that is political, you know, kind of more politically palatable, than, you know, some of them were expansive issues that that might be on the table.

Tyson Kade

01:26:28

Thank you, Lisa. So I'll start by taking them in reverse order. I agree that, you know, if you're looking at that, that section of of AXA, that would be a potential option for addressing some of these issues. You know, I don't know, sort of in the sort of history of the firm, that's something that we've looked at specifically. But I would suggest that we kind of add that to the list of options that we'll discuss in two weeks during workshop three. I would imagine that that's going to be a bit of a focus of that workshop. But that's that specific idea, or option. And then, the your question before that was migratory birds. And yes, following the revision to the treaties for US and Mexico to address the, you know, to provide for the allowance of the summer subsistence spring summer subsistence season, they did amend the Migratory Bird Treaty Act to reflect that. And so that's, you know, it kind of captures that the treaty requirements and then provides the statutory obligations, and you know, how that that subsistence will be managed? Again, you know, I think if we're looking at various time periods, you know, the terms of the treaty are going to dictate that. So if you're looking at changing seasons, or expanding seasons for subsistence, we'd have to go back and look at the four treaties that are applicable and and figure out which ones, you know, may or may not preclude that and address it that way, which would then have to be followed up by a statute. And then your first question, I think, was in holdings or allotments?

Tyson Kade

01:28:24

I'm sorry, I want to miss state it. Would you mind repeating that what it was what applies to in holdings or allotments? Or? I don't know, I see Anna on the screen. Did you catch the question?

Speaker 2

01:28:35

Yeah. So the question was, where you have allotments that are in holdings and refuges and preserves? Why wouldn't the regime that applies there and lease I'm assuming, when you say there, you mean to the refuge or the preserve also apply to the allotment? And the answer sort of goes back to what I was saying, with respect to whether that allotment isn't restricted or unrestricted status. If an allotment isn't restricted status, it's held in trust, and there's the potential that it could be considered Indian country. You know, again, open question, lots of lots of uncertainty around that. But, you know, Indian country, as it's defined in statute, and regulation is just, it's regulated differently than other federal land. And, you know, I think also to you, where there are refuges and preserves, it's important to look at the actual organic statute that creates those refuges and preserves because that oftentimes provides certain exceptions or exemptions for in holdings within the refuge of the preserve with respect to you know, access or management. And it just it just becomes important to look at it on a sort of case by case basis.

Joe Nelson

01:29:48

And a reminder to folks that this is good engagement, there's gonna be two more sessions that get focused on zeroing in on some of these more of these solutions oriented options. Today the question is really about just deepening our understanding of the current, kind of bifurcated paradigm, the framework. And Bruce has a question that came through a few different chats here on it says Alaska Natives were compensated for land and NX up, but never compensated for subsistence hunting rights. Is this true? And what does this mean? So except settles cash settlement and land settlement for land. But then we didn't get compensated for subsistence right. So is that true? And what does this mean?

Tyson Kade

01:30:35

I mean, I've always understood AXA as being more of a comprehensive settlement that kind of addressed all of those issues. It was the the extinguishment of aboriginal title. And then the land exchange and monetary compensation, kind of always viewed that as sort of, they're all linked. So, you know, I, I would have to go and look and try to explore that a bit further, to see whether there is that distinction and lack of compensation, but I always thought that that was, you know, it was done as a settlement for purposes of resolving all of it collectively.

Joe Nelson

01:31:21

Thank you Tyson. And but I guess, but it's a little more nuanced, because if it was totally settled, why are we here? You know, so I think that there's about we'll get into that later in this future meetings here on the issue. And I guess it comes back to the conference committee note, though, that you mentioned that the law says it's settled and extinguished. But you read the conference report, it says there's still things something here to be taken care of, which is why we have a knockout kind of the, you know, the title eight, the references there. So, it's,

Tyson Kade

01:31:59

no, I hear what you're saying, I was trying to compensation to the extinguishment they're still you're absolutely right. There's still that issue of okay, well, what does this mean? Right? I mean, you still have the issue of of subsistence use subsistence actually accessing the protection of subsistence. You know, I'm just sorry, in my mind that I didn't associate like a compensation as part of that it's more, you know, how do we create an appropriate regime to ensure that those are protected in the way that the Alaska Native people want them to be protected? Thank you, I don't see it as sort of a monetary compensation like takings claim type issue, it's more that right is it's there, it's just been decreased, if you will, or minimized to some extent, it's given sort of the priority or the historical precedents that it had.

Joe Nelson

01:32:53

And the settlement was about, you know, a priority taking and settling the land, but now we're talking about continuing to use the land. So it's future use and being able to, you know, maintain going forward our way of life. Next question is, I think a good one here from Paul, asking, what would happen if chinook and Chum Salmon are listed as endangered or threatened? And we're aware of the issues on the Yukon and the Kuskokwim? What would happen if they ended up getting listed?

Tyson Kade

01:33:32

I mean, I think that's potentially a pretty complicated question to answer. I think from an ESA perspective, if they're listed, there would be sort of the statutory protections that would apply, you would have the subsistence exemption, that would be applicable to Alaska Native people. So they could continue to take them. But it seems like and I suspect that maybe the sort of the meat of the question is directed more towards the allocation issues, and the management issues that may come up. And if Anna will indulge me, I would defer to her. I think she's a bit closer to that specific issue than I am.

Speaker 2

01:34:20

Yeah, I mean, it's. So that's that's a great question. And it's also a very complicated question. Because you know, as we all know, the subsistence users on the Yukon the Kuskokwim are at the end of the line, when it comes to the the allocation of that resource, right? First, you have Marine Fisheries, and then you have your state fisheries, and then you have your subsistence and river fisheries. And, you know, in the end, I'll be honest, I don't exactly know the answer to that question, Paul. You know, and I think that what would happen is that you would have a very complicated, you know, essentially jurisdictional mess that you would have to figure out with respect to, you know, how would the state's regulation of their of their fisheries of their commercial fisheries, you know, in some of their sport, and personal use fisheries potentially be affected by an ESA determination of Chinook and have trauma of being, you know, threatened or endangered, and then how federal Marine Fisheries administered by nymphs would be affected by that. And so, you know, we're there. It's, it's true that the ESA does have a specific exemption, you know, for subsistence uses of a species that's, that's identified as threatened or endangered. But it's just unclear, at least to me, right, right now off the bat without having the benefit of really like looking at some of the more statutory complications that this would bring up? How, if at all, that would affect, you know, the Magnuson Stevens act with respect to the management of the species that happened under that act, or, you know, state state regulation and state management? So I think that the answer that I would want to see is that there would there would be an obvious outlook of priority for subsistence and everybody else would take the backseat, which is sort of the reverse of what it is right now. But I don't know if that would actually be the outcome.

Joe Nelson

01:36:23

Next question just came came through the chat was, if this date takes over 404, would that make it easier for mining such as diamond gold's to happen? So if the state takes over 404? I mean, one of you to guess a little more details on that that's farther in the weeds than I can cover.

Tyson Kade

01:36:49

All right, Miss part of the question. 404.

Ben Mallott

01:36:52

So I think Jill purpose and background there is some discussion of the state tape and to the for, for wetlands permitting, for development. And I think, for now, that's currently done by the feds, but there might be the state taking taking that passes over. We have the feds, there's this discussion is out there. So I think the question is, you know, if the state takes over how that changed that permitting process for, you know, for mines, or just development near a salmon stream or whatnot.

Tyson Kade

01:37:25

I mean, that's hard to say without kind of, of seeing sort of the details on it. But generally, when states get that type of delegated authority, it's still done pursuant to the statutory requirements. It just gives the state and the applicable state agencies the ability to administer and implement that. So, you know, in that sense, I would, I would suspect that the existing regime that people are used to would largely be, I would say, would be similar. There probably be some I don't want to say accommodations, but you know, the state would put its own imprint on how that would be implemented. So you would see more of, of the state's priorities. And the state's perspectives come through sort of how that wetland permitting process applies, whether it's, you know, amount of compensation mitigation, you know, what have you that, that would be applicable.

Joe Nelson

01:38:23

And we can imagine how things would play out, as far as, you know, reading the law is there, federal and state, there's not going to change, but depending on how you put your energy and resources, you know, we have got so many of our communities that have laws that should be protecting the community, but you don't have an enforcement regime there to help. So it's definitely a little bit of a loaded question, I guess, in the sense of where we which which is best for our communities. But yeah, the point is well taken, I think.

Joe Nelson

01:39:04

Looking at other things, pop in through the chat here, and we're gonna get close to the wind down here. Reading her questions and from earlier, it's too simple to say that state management reflects the interest of urban residents. It's more useful to stay that that state management reflects interest of many different uses. Commercial sports subsistence, the vast majority of state board members are chosen based on roles and dancing, non subsistence interests. So it was more of a comment. Like under the question here, how does the federal protect the habitat so the fish versus the state so so I guess, in the broader sense, I guess, federal versus state paradigms on protecting our subsystems resources, the comments and thoughts on that on how to think about federal and state and how they work. together as far as protecting our subsistence resources.

Tyson Kade

01:40:06

And I think, again, wanted to put in a plug for the second workshop. But I mean, my sense is that there has always been this tension between federal protections and state protections. You generally see the federal government being a bit more protective of subsistence uses and species and habitats. And you see, again, I'm upon making broad characterizations, you generally see the state and those entities advocating more for broader uses by broader people. And so, you know, there have been a lot of cases and a lot of instances where you see the state litigating efforts to provide subsistence access to rural residents. You see a lot of efforts by the state to seeking to expand non subsistence areas. And so, you know, there's that tension. And so, you know, I don't want to get too far into it. But I think, you know, given those broad characterizations, I mean, yes, you know, the administration's on both sides are, you know, doing what they do, I just think they kind of come at it with different perspectives and different motivations. I mean, I don't know, and I don't know if you want to add on to that and preview your

Speaker 2

01:41:28

Yeah, no, I think I think that's right. I mean, I can't specifically speak to like, you know, the nitty gritty of state regulations that protect habitat versus federal regulations that protect habitat, because I don't, I don't know them there. And I'm not I'm not I don't have them in front of me, I don't want to, I don't want to, you know, say, Well, this does that. And this is that when I really don't know what I'm talking about, I mean, like Tyson said, I think you have you in Alaska, you tend to see the federal government be more protective, not just of species, but of habitat. Whereas, you know, again, with the state, there are a number of competing uses, and, you know, competing reasons why people wish to access habitat. And so, um, you know, I think the, one of the sort of, you know, I think an important way to maybe reframe the question is, you know, what are the different ways in which, you know, we, as subsistence users, or Alaskan natives can engage with the state or with the federal government with respect to articulating concerns about how habitat is being used? Or how habitat is being preserved or not preserved? You know, and what are what are the most effective methods for advocating for that position? And so we'll, you know, we'll, we'll talk about that process a little bit. Well, more than a little bit, I will go into more detail about the regulatory processes that that are, really are the processes, the traditional governmental processes that are available for stakeholders, and for rights holders to engage with those two governmental regimes next week? But you know, I think I think the answer would lie there within that process, but then also, you know, be dependent upon certain political influences, too.

Joe Nelson

01:43:10

So I'm gonna lean on Ben, a little bit here. But I My sense is, you know, we've got two more meetings coming in the next two weeks, which a lot of these questions are leaning in that direction of, they're going to be wrestled with in the next couple of weeks. And maybe folks can continue to stand between now and then questions, maybe the bend that he can also capture. And you'll, you'll be able to skim those and see what's on people's minds as we're going into the next couple of weeks. Which, which is intended to help us go a little deeper, find our voice, and then go into the more of the solution making opportunities. So it does that sound fair? Maybe Ben, you can help make us help us make that pivot here and encourage people to stay engaged. But but we'll do this again next week. And then the week after?

Ben Mallott

01:44:01

Yep. And join us next crack? Thank you. I don't think I could, you know, I took it better than us did. This is the kickoff of a VIMS action plan that sort of get more comprehensive protection of rights of Alaska Native rights and use to subsistence with that, you know, Tyson gives a really strong background of what actually is our framework. And as we see his very, very confusing, and it's going to go into awesome, awesome work with you know, participation, and then we're gonna close up and Andrew Van Jack is going to talk about what is the avenues and coronation, what needs to happen can go into to effect change. And with that said, it'll take a lot of time and effort. But I urge our membership and those who are in it to tickle questions, so we can ask later on. Because you've looked at previous administrations to effect changes since it's a it takes all of us to do it. Tyson said earlier, those in DC if you don't understand some assistance, you don't get it. So we're always up against that. Battle. So I don't know if they asked that question, or takes away from it. But uh, there's also I guess another reason why we made these workshops recorded so you can go back, rewatch them, find a question and ask them next time as well. You know, and then Tyson, you ask questions, they answer all mine all the time. So it's fun, it's fun

Joe Nelson

01:45:31

for Tyson, or an idea of like a closing comment here that will kick us into the next meeting there are.

Tyson Kade

01:45:44

I think to echo Ben's point, you know, from, from my perspective, one of the main takeaways that I wanted, the participants to get from this is just how complicated it is, you know, there are multiple federal statutes that are involved, before you even get to the state process. And it can be very challenging to navigate these issues going forward. So I think, you know, in being engaged with these, there are opportunities that that can be pursued to help address some of these issues. And so, you know, hopefully, this presentation and providing a framework will help identify some of those opportunities or, or maybe it'd be better to say, some of those gaps that need to be addressed, or some of those deficiencies that need to be addressed, in order to promote and secure the subsistence rights of the Alaska Native people. So I'm looking forward to, to hearing at next week, and then also participating in the third workshop as we really get into, okay, where are we going from here? And what are we going to try to pursue? So again, thank you for listening to me, hopefully, no one fell asleep as I was walking through all the legal requirements.

Joe Nelson

01:47:10

My closing comment here is, you know, every AFN convention, and we're going to have the, you know, one coming in person this fall, this is top priority. And in those resolutions, we need to continue to refine this work these issues, you have to understand them. So I want to thank you Tyson, for you know, we're working for fn Ron on this issue. And you know, that the world is ready for indigenous led stewardship. It really is. So what that means as, as the indigenous community here, we need to step forward and start leading the way because these federal lands, our native lands, the state lands, our native lands, as the native people that were always been here, you mentioned, you started out with the Russians and pre Russian, I mean, we're the ones are always going to be here. So that we just, we've got the knowledge embedded in our own stories, our own history, that the world is ready for us to bring our solutions forward here and to break this compromise that we're stuck living in last 4050 years here between Exxon and elke and the broken regime that we have here. So I'm, you know, as you can tell, I have an opinion on this. So I'm thankful that you're engaging, and that we have the audience and we will keep working this issue and come into the spoils convention with, you know, very thoughtful resolutions and specific ideas on a path forward. So I'm, I'm hopeful about our grandkids doing better than we have the last 40 years here. So gross Jewish thank you to Ben, thank you to fn. We'll we'll do this again next week. And looking forward to that. And so we'll, we'll meet again

Ben Mallott

01:49:08

excuse jokin excuse and this reminder, we are going to record this workshop. Raul is going to also include the PowerPoint so feel free to to watch it again. I know it's lot information taking in one day. That's why we broke it up into three workshops go about doing a one day if that might be too much for everyone to comprehend. So we will share that hope next couple of days with the PowerPoint. And feel free to let me know if if any questions Thank you and

Unknown Speaker

01:49:36

goodbye

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