A gillnet marked Kenai River salmon/Craig Medred photo

Yet again, Alaska’s long, difficult struggle with subsistence is in the news.

This time the fight is over a gillnet in the Kenai River.

Anglers are upset the gillnet could catch up to 50 iconic Chinook salmon, an unlimited number of prized rainbow trout, and up to 2,000 sockeye salmon.

None are a big deal. The 50 kings are lost in the statistical noise of a 2016 return now looking to reach 25,000 or so, give or take a few hundred; the rainbow are plentiful; and the sockeye are more than plentiful. Close to a million are now headed up the river to spawn and die.

The Ninilchik Traditional Council contends it vitally needs to put the monofilament gillnet in a river more than 50 miles,  or a good two-day hike, from the community to practice its cultural fishing traditions, which apparently trace back to E.I. du Pont de Nemours (and Company), which invented monofilament in 1939.

The arguments for allowing the gillnet in the Kenai are weak. A community on the edge of Cook Inlet, Ninilchik could easily put a gillnet in the water there and catch plenty of salmon

The arguments for keeping the net out of river, at least at this time this year, are equally weak. There are good numbers of the big Chinooks – kings, as many call them – in the Kenia this year. And no shortage of any other species of salmonid the net might indiscriminately catch and/or maim and release.

Still, the state of Alaska; the U.S. Fish and Wildlife Service, which manages the Kenai National Wildlife Refuge which lines good parts of the river; various anglers and angling groups, and the community of Cooper Landing, which sits astride the river, all opposed a permit for the gillnet.

The Federal Subsistence Board then voted 6-2 to allow it. The board is a uniquely Alaska entity set up to favor the interests of “rural” Alaskans over all other Alaskans, and in this case the roadside community of Ninilchik was considered rural though it is no more rural than the urban-designated, roadside community of Bird Creek back to the north along the Seward Highway.

The 900-members of the Ninilchik Council, some of them Alaska Native and some not, were pleased with the Board ruling. The tribe is an interesting organization that describes itself this way:

“Several tribal members today are not direct lineal Ninilchik descendants and the modern tribe is made up of a mosaic of people from mixed Alaska Native, American Indian, Native Hawaiian and other cultures. The tribe is as socially complex as it it is ethnically complex with members having a wide range of different professions, beliefs and general ways of life.”

Non-tribal fans of the Kenai who, like the tribe, could be described “as socially complex…as ethnically complex” were outraged that the tribe was given special fishing privileges on the most popular salmon stream in the north.

How did we get here?

Subsistence defined

For the uninitiated, which likely includes most living Outside as Alaskans refer to the rest of the world, the discussion has to start with the definition of “subsistence.” In Alaska, as elsewhere, it sort of means living of the land, though almost no one really lives off the land in American anymore. It’s too hard.

Some do, however, still live close to the land. They grow a lot of their food (easier in the Lower 48 than Alaska), and kill a lot of fish and game, whether wild or raised. In other states, the wild fish and game is killed by these subsistence fishermen and hunters under the same rules and regulations that apply to all fishers and hunters.

That is not the case in Alaska, where “subsistence” is almost wholly about killing fish and wildlife. In Alaska, there is a priority for this killing which is defined in federal law in this way:

“…The term ‘subsistence uses’ means the customary and traditional uses by rural Alaska residents of wild renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption, for part, or sharing for personal or family consumption; and for customary trade.”

Alaskans have been debating the meaning of those 68 words in public, before regulatory bodies and in court ever since Congress passed them into law as part of the Alaska National Interest Lands Conservation Act in 1980.

But this story really goes back almost a decade earlier to the passage of the Alaska Native Claims Settlement Act, a grand bargain with the aboriginal residents of the state who were in Alaska for tens of centuries before the Russians showed up and just took over, and who survived for another 100-plus years as inhabitants of Russian America before the U.S. government bought the territory for $7.2 million in 1867.

(The 1867 purchase would amount to more than $110 million in 2016 dollars, but it was still a heck of a deal for the U.S. government. Billions and billions and billions of dollars worth of “black gold” has flowed south to fuel the U.S. economy since the Trans-Alaska Pipeline System connected Prudhoe Bay to tidewater in 1977.

The Claims Act was a step on the road to pipeline construction. It cleared legal claims Alaska Natives made on the more than 633,000 square miles of land in the 49th state. Alaska Natives settled for 44 million acres of their choosing, about $1 billion and some government help in setting up regional and local corporations to provide the state’s Native residents an economic future.

The Claims Act was good for some Natives and good for all Alaskans. Some of the regional Native corporations are today mainstays of an Alaska economy struggling because of a slump in global oil prices.

But the Claims Act was not good for all Natives. For many if not most of those who wanted to stay in rural Alaska, there was no real hope of an economic future because with rare exceptions – oil development for the Arctic Slope Regional Corporation, mining for the NANA Regional Corporation, timber development for a time for the Sealaska Native Corporation, and successful tourism for a handful of village corporations – there was nothing on which to build an economy.

The Claims Act left many rural Natives no better off than the 5.2 million American Indians living in poverty in U.S. reservations, a fate the Claims Act was intended to avoid.

“Living conditions on the reservations have been cited as ‘comparable to Third World,'” according to Native American Aid. “It is impossible to succinctly describe the many factors that have contributed to the challenges that Native America faces today, but the following facts about the most pressing issues of economics, health, and housing give a hint of what life is like for many first Americans.”

The description “Third World” fit large parts of Alaska when the Claims Act was signed into law by President Richard M. Nixon in December 1971 and the description would fit some of rural Alaska to this day.

By the late 1970s, when Congress started debating the creation of new national parks and wildlife refuges in Alaska, it was clear the Claims Act wasn’t going to provide the economic boost many had hoped, and thus there was a lot of discussion about what would today be called “food security” for a booming Alaska Native population in rural Alaska.

There were about 52,000 Alaska Natives in the state in 1970, down from an estimated 72,000 living here at the time of White contact, but significantly up from the 25,000 to 30,000 surviving after epidemics of illness ravaged the Native community in the early 1900s.

The 2010 census found approximately 105,000 Alaska Natives resident in the 49th state. The population has been growing steadily since the 1970s and continues to grow.

Discriminatory anti-discrimination

Against the Native Alaska backdrop and pleas from some hippies who’d gone back to the land in Alaska in the “Earth Days,” Congress wrote the “subsistence” provision into the Lands Act in 1980 with the good intention of preserving “rural” fish and wildlife as food for “rural” residents.

The well-intentioned idea was to prevent racial schisms from evolving in primarily Native rural communities and protect the hunting and fishing of some latter-day hippies shacked up in remote corners of the state. The actual result was to further split Alaskans along rural-urban lines, and create a new, affirmative-action style dilemma for residents of the 49th state.

As with affirmative-action everywhere in America, the psychological reach of the decision far surpassed the practical effects. The idea that some people get special treatment because of the color of their skin rather than as a result of their toils does not always sit well with the masses in a democracy. America has wrestled with affirmative action, an easily defined effort to help African Americans find educational and economic success, since its origin the 1960s.

That issues would arise around an even more vaguely defined preference like “subsistence” was a certainty. There were simply too many questions that could be fairly argued one way or another.

Can a monofilament gillnet – a gear type that that didn’t appear on the scene until about the time of Alaska Statehood and was banned in the state until 1978 – truly be considered a “customary and traditional” fishing device per the terms of ANILCA?

Well, it can if you’re an activist attorney for an Alaska Native rights organization arguing that one of the key components of subsistence is adaptability. Subsistence people were always quick to adapt new technologies from the arrival of the first steel knives in Alaska before the Russians to the appearance of outboard motors in the 1930s.

Can the people in Ninilchik really be considered rural when their neighbors just down the road in Soldotna and Kenai are urban?

Well, they can if you have to draw the line between “urban” and “rural” somewhere, and if federal judges from California are the ones deciding where to put the line. The state in the mid-1980s basically ruled that rural Alaska was that part of state off the road system. The ruling, which made nearly all of the Kenai Peninsula urban and thus off limits for subsistence, was challenged.

The case ended up going to the U.S. Ninth Circuit Court of Appeals. Some Ninth Circuit jurists did a tour of the Kenai and decided that the Kenai in general had “a long way to go before it approaches anything resembling an urban community” because the state’s definition “would exclude practically all areas of the United States that we think of as rural, including virtually the entirety of such farming and ranching states as Iowa and Wyoming.”

Not long after that ruling, in conjunction with yet another in a long line of subsistence court cases, the state of Alaska, which had been managing fishing and hunting in the 49th state as other states manage fishing and hunting within their boundaries, was judged to be out of compliance with the Lands Act, and the federal government took over management of fish and wildlife on federal lands in the state.

The co-management by the feds and the state – something that exists nowhere else in the country – would only get messier after the federal courts extended federal management authority to major Alaska rivers owned by the state.

The feds are now deeply involved in regulating the harvest of fish in rivers such as the Kenai, Copper, Kuskokwim and Yukon, although somehow the state has maintained sole management over the coastal waters where commercial fisheries catch about 95 percent of all salmon caught in Alaska.

By state law, the priority use of Cook Inlet salmon bound for the Kenai and other rivers is commercial harvest through July and into early August. This already irritate average Alaskans trying to catch fish for their freezers. That people from Ninilchik get another priority to take the fish once they make it back to the river only rubs salt in the wound.

As Soldotna city councilman Tim Cashman told DJ Summers, a reporter for the Alaska Journal of Commerce, “to have these fish that…beat the commercial nets; they beat sport fishermen; they beat the guides, and they beat Mother Nature. And they’re being yarded out by a group that lives 50 miles away from us. If the people who manage our fishery are telling us this is a bad idea, it’s a bad idea.”

Unless, of course, you are a member of the Ninilchik Council which sees the federal ruling as only fair. It is in their view the government doing its best to help preserve a culture under attack from powerful,  21st century cultural changes.

These are everywhere as you should well know from reading this on the computer that has become a big part of your life and changed it in so many ways.

This where we are in Alaska today.

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