Subsistence Uses of Resources in Alaska: An Overview of Federal Management

April 20, 2023 R47511

Subsistence Uses of Resources in Alaska: An
April 20, 2023
Overview of Federal Management
Mark K. DeSantis
Certain federal statutes provide avenues for individuals to engage in subsistence uses of natural
Analyst in Natural
resources. The term subsistence uses or subsistence in federal statutes and regulations generally
Resources Policy
refers to the practice of relying on the surrounding environment as a source of food and materials

for daily life. For some, the term subsistence uses includes only such nutritional or economic
Erin H. Ward
purposes. For others, the concept of subsistence use extends beyond sustenance to encompass
Legislative Attorney
activities tied to their historical and cultural identities.

More than any other state, Alaska’s residents rely on subsistence uses of natural resources—

including the hunting, fishing, harvesting, trading, and consumption of fish, wildlife, and plant
life—for their daily nutritional needs. According to federal estimates, rural Alaskans harvest approximately 18,000 tons of
wild foods annually for subsistence uses. Although the State of Alaska generally manages subsistence harvests on state lands
and certain private lands, the federal government is responsible for managing subsistence uses on federal lands and waters
and across all lands for certain species.
Congress has passed numerous statutes that either directly or indirectly provide for the protection and/or recognition of
subsistence uses on lands and waters in Alaska. Some of these laws, such as the Alaska National Interest Lands Conservation
Act (ANILCA; P.L. 96-487), apply only to subsistence uses of resources located on lands owned and managed by the federal
government. Other federal laws may apply to subsistence uses of specific species both on and off federal lands. For example,
the Endangered Species Act (ESA; 16 U.S.C. §§1531-1544), the Marine Mammal Protection Act (MMPA; 16 U.S.C. §§1361
et seq.), and the Migratory Bird Treaty Act (MBTA; 16 U.S.C. §§703-712) provide exceptions from certain prohibited
activities under the acts to allow qualifying individuals in Alaska to engage in specified subsistence uses of species protected
by the acts.
Given the cultural and economic importance of subsistence uses in Alaska, issues related to the protection and management
of subsistence use are of significant interest at the local, state, and federal levels. Many of these issues revolve around
whether, or the degree to which, the federal government should have a role in managing the subsistence use of resources.
Others relate to the extent of the federal government’s jurisdiction and whether the federal government has the authority to
regulate certain lands and waters for subsistence use purposes. Additional concerns have arisen when state and federal
regulations for subsistence uses conflict, particularly in instances when state and federal lands are abutting. Federal agencies
also may face challenges balancing their statutory obligations under the various laws that govern the management of lands
under their jurisdiction, some of which they may view as conflicting with subsistence hunting, fishing, harvesting and other
related subsistence use activities.
Other issues in recent years have focused on the importance of subsistence uses to Alaska Native communities. In particular,
some Alaska Native communities have criticized the term subsistence for not adequately capturing how such practices are
integrated into their cultural, religious, and social systems. These communities also have raised concerns as to whether the
current statutory framework adequately protects and prioritizes their traditional subsistence practices and culture. Some
Alaska Native communities have suggested that the extension of subsistence use priorities or exemptions under federal law to
non-Alaska Native communities does not satisfy commitments the federal government made to Alaska Native communities.
Other concerns have been raised regarding the federal government’s ability to regulate subsistence uses effectively due to the
size of the federal estate, the complexity of the subsistence use legal framework, and general law enforcement challenges in
Alaska. In addition, issues related to climate change have created challenges for traditional subsistence use practices in
Alaska and have potential implications for federal land management agencies’ subsistence use responsibilities.
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Subsistence in Alaska: An Overview of Federal Management

ubsistence uses—including the hunting, fishing, harvesting, trading, and consumption of
fish, wildlife, and plant life—are necessary for the livelihood of many residents of Alaska.
S More than the residents of any other state, Alaska’s residents rely on subsistence uses of
fish, wildlife, and plant life for their daily nutritional needs. In particular, subsistence harvests
provide Alaska’s numerous rural communities with a large share of their food supply. These
communities may not have regular access to commercial food sources due to their distance from
urban centers and the high cost of flying foods into some areas. In addition, for many Alaskans,
the role of subsistence uses is about more than food consumption and economics; it is directly
tied to their history and central to their customs and traditions. In many Alaska Native
communities, subsistence uses are vital not only as a source for food but also as they relate to
clothing, transportation, trade, ceremonial activities, and other purposes.1
Given the cultural and economic importance of subsistence uses to certain communities in
Alaska, and the potential for protections of such uses to affect other resource priorities, issues
related to the management of subsistence use are of significant interest at the local, state, and
federal levels. Both state and federal law have recognized and protected the usage of resources
from Alaska’s lands and waters for subsistence purposes. The State of Alaska generally manages
subsistence uses on state lands, Alaska Native Corporation (ANC) lands, and other private lands.2
The federal government manages these practices both on federal lands and in the territorial sea
and exclusive economic zone in offshore waters beyond state waters (i.e., generally from 3 to 200
nautical miles from the baseline of low sea level).3 In addition, the federal government may
exercise authority to manage subsistence uses outside federal boundaries when concerning a
particular species or a specific region in Alaska.
This report begins with an overview of subsistence uses of resources in Alaska and the traditional
and current practices of those who partake in such activities. The report then discusses selected
federal statutes that apply to subsistence uses of fish, wildlife, and plant life; their application in
Alaska; and how federal agencies implement and administer these statutory requirements. Federal
management of subsistence uses of natural resources in Alaska is complex and governed by
various laws depending on the type of species involved, where such activities take place, and
other factors; this report highlights only certain federal statutes of congressional interest. As part
of this discussion, the report explores whether, or to what degree, such statutes provide a
preference for certain groups in protecting the right to subsistence practices. Finally, the report
examines various issues in which Congress may have, or has previously expressed, an interest.

1 For example, see National Park Service (NPS), “Subsistence: Preserving a Way of Life,” at https://www.nps.gov/gaar/
learn/historyculture/subsistence.htm. See also Bureau of Indian Affairs, “Subsistence Branch,” at https://www.bia.gov/
regional-offices/alaska/subsistence-branch; and Testimony from Rosita Worl, Alaska Federation of Natives, in U.S.
Congress, Senate Committee on Energy and Natural Resources, Subsistence, To Examine Wildlife Management
Authority within the State of Alaska Under the Alaska National Interest Lands Act and the Alaska Native Claims
Settlement Act, 113th Cong., 1st sess., September 19, 2013, S. Hrg. 113-118 (Washington: GPO, 2013). Hereinafter
referred to as S. Hrg. 113-118.
2 For more information on Alaska Native Corporations, see CRS Report R46997, Alaska Native Lands and the Alaska
Native Claims Settlement Act (ANCSA): Overview and Selected Issues for Congress, by Mariel J. Murray.
3 States are generally responsible for managing offshore waters up to 3 nautical miles (nm) from shore. Federal
management of offshore waters generally extends from 3 nautical miles (nm) to 200 nm from shore. This includes
territorial seas up to 12 nm seaward of the baseline and the exclusive economic zone (EEZ), which extends up to 200
nm from the baseline. For more information on offshore jurisdictional zones, see CRS Report R45952, U.S. Offshore
Aquaculture Regulation and Development, by Anthony R. Marshak.
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What Does Subsistence Uses Mean?
Although usage varies, generally speaking, the term subsistence uses or subsistence in federal
statutes and regulations refers to the practice of relying on the surrounding environment as a
source of food and materials for daily life. For some, the term subsistence uses includes only such
nutritional or economic purposes. For others, the concept of subsistence use extends beyond
sustenance to encompass activities tied to their historical and cultural identity. In particular, some
Alaska Native communities have criticized the term subsistence and its usage for not adequately
capturing how such practices are integrated into their cultural, religious, and social systems.4 For
many Alaska Natives, subsistence uses of fish, wildlife, and plant life are directly tied to their
way of life and rooted in their historical and cultural identities.5 Beyond relying on these
resources for food, these communities may rely on harvesting and processing wild resources for
clothing, fuel, transportation, construction, traditional arts and crafts, customary trade, and other
purposes.
Certain federal laws and regulations—including those that directly address land management in
Alaska—include definitions for subsistence or subsistence uses.6 For example, the Alaska
National Interest Lands Conservation Act (ANILCA), the primary statute governing subsistence
activities on federal lands in Alaska, defines subsistence uses as
“the customary and traditional uses by rural Alaska residents of wild, renewable resources for
direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for
the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife
resources taken for personal or family consumption; for barter, or sharing for personal
or family consumption; and for customary trade.”7
ANILCA does not define wild, renewable resources, but agencies generally have interpreted the
law to apply to animals; plants, including timber and berries; and other living resources, such as
fungi.8 Other statutes and regulations define subsistence similarly but may be narrower in scope
due to the applicability of the law in question. For example, implementing regulations for the
Migratory Bird Treaty Act (MBTA) define subsistence to mean “the customary and traditional
harvest or use of migratory birds and their eggs by eligible indigenous inhabitants for their own
nutritional and other essential needs.”9 (See “Selected Federal Statutes Governing Subsistence
Uses of Resources in Alaska” for more information.) Generally, laws distinguish between
hunting, fishing, or harvesting in the customary and traditional nature of subsistence practices
and for recreational or commercial purposes.10

4 S. Hrg. 113-118. See also Isaac Stone Simonelli, “The Subsistence Economy Is More Than Cash and Calories,”
Alaska Native Magazine, May 16, 2022.
5 Meghan Sullivan, “Can Indigenous Subsistence Rights Still Be Protected in Alaska?” KTOO, October 28, 2021.
Hereinafter referred to as Sullivan, “Indigenous Subsistence Rights.”
6 For the purposes of this report, subsistence is used in the context of management of natural resources and the
harvesting of such resources for personal or traditional purposes. Other federal laws define subsistence for different
purposes unrelated to the topics discussed in this report.
7 16 U.S.C. § 3113.
8 See implementing regulations for the Alaska National Interest Lands Conservation Act (ANILCA; P.L. 96-487) at 36
C.F.R. Part 242 and 50 C.F.R. Part 100.
9 50 C.F.R. §92.4.
10 36 C.F.R. §242.4 defines customary and traditional use for the purposes of ANILCA to mean a long-established,
consistent pattern of use, incorporating beliefs and customs that have been transmitted from generation to generation,
that plays an important role in the economy of the community. Regulations outline an eight-part criteria for determining
customary and traditional use at 50 C.F.R. §100.16.
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Subsistence in Alaska: An Overview of Federal Management

For the purposes of this report, the term subsistence is used throughout for consistency and due to
the legal significance of the term and its general use within and across federal statutes. However,
the usage and description of subsistence herein may not fully encompass all aspects of the term or
its meaning across all stakeholder groups. CRS recognizes that subsistence may have different
applicability based on statutory context and that some stakeholders may raise concerns about the
adequacy of the term or its scope based on their specific perspectives and interests.
Brief History and Background
Alaska Native communities have relied on harvesting fish and wildlife resources for subsistence
for thousands of years. Various birds, fish, marine mammals, land mammals, and plants have all
been historical sources of food and supplies, with some communities more reliant on certain
resources due to their geographic location, seasonality, and cultural traditions. Today, both Alaska
Native communities and non-Alaska Natives use natural resources for subsistence purposes.
Subsistence harvesting of fish and wildlife resources is particularly critical in rural Alaska, where
it remains a cornerstone of food security and daily life. This is due, in part, to many rural
Alaskans’ limited access to commercial centers and the often high cost of retail food across many
parts of the state.11 According to federal estimates, approximately 18,000 tons of wild foods are
harvested annually by rural Alaskans for subsistence uses.12 The largest share comes from
harvesting fish, which makes up roughly 56% of the subsistence harvest statewide.13
From 1867 (the year the United States purchased Alaska) until Alaska’s statehood in 1959, the
federal government was primarily responsible for managing Alaska’s fish and wildlife resources.
Starting in the early 20th century, Congress passed numerous laws aimed at restricting hunting
practices to protect certain species. Many of these laws expressly exempted hunting and fishing
for subsistence uses from such limitations or seasonal closures. For example, the Alaskan Game
Law of 1902 restricted the taking of game animals but exempted hunting for food or clothing by
“native Indians or Eskimos or by miners, explorers, or travelers on a journey when in need of
food.”14 Upon Alaska’s statehood, the federal government transferred the general authority to
manage fish and wildlife to the new state government, consistent with the traditional role of states
in managing such resources, and the Alaskan government subsequently enacted laws recognizing
subsistence harvesting of fish and wildlife resources.15
In the 1970s and early 1980s, Congress passed legislation that reasserted a federal role in
protecting and managing subsistence uses in Alaska for certain species or lands. When Congress

11 James A. Fall and Marylynne L. Kostick, “Food Security and Wild Resource Harvests in Alaska,” Alaska
Department of Fish and Game, Division of Subsistence, July 2018.
12 Department of the Interior (DOI), “Federal Subsistence Management Program,” at https://www.doi.gov/subsistence.
Estimates from the Alaska Department of Fish and Game are generally similar to those provided by DOI. Estimates for
total subsistence harvests can be difficult to track, as most estimates are reliant on self-reporting from communities and
individuals. As a result, precise estimates for annual subsistence harvests are not readily available.
13 Ibid.
14 Act of June 7, 1902, 32 Stat. 327, amended, Act of May 11, 1908, 35 Stat. 102. Here and throughout this report, the
term Eskimo is used due to its inclusion in and legal significance under federal laws. CRS recognizes that the term may
be considered derogatory or offensive to some Alaska Native communities.
15 For example, the Act of Apr. 16, 1960, Alaska Sess. Laws 179, recognized subsistence fishing and placed limitations
on such practices (e.g., requiring subsistence fishers to obtain a license and establishing income limitations for issuing
such licenses). For more information on states’ role in managing fish and wildlife resources both on and off federal
lands and waters, see CRS Report R45103, Hunting and Fishing on Federal Lands and Waters: Overview and Issues
for Congress, by Christopher R. Field, and CRS Report R44267, State Management of Federal Lands: Frequently
Asked Questions, by Carol Hardy Vincent.
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Subsistence in Alaska: An Overview of Federal Management

passed or amended laws protecting certain species on a national scale and passed a law to manage
species on federal lands in Alaska, it included specific exemptions for subsistence users—
particularly those in Alaska—from certain otherwise prohibited activities. The sections below
discuss a selection of these laws.
Alaska Native Land Claims and Subsistence Use Rights
Matters involving the resource rights of American Indians and other Indigenous communities
often are complex and may require consideration of treaties, executive orders, acts of Congress,
regulations, case law, and deeds or other land title documents. For many American Indians in the
lower 48 states, hunting and fishing rights (including hunting and fishing for subsistence uses)
were preserved and generally are governed by long-standing treaties with the federal government.
In Alaska, however, the federal government used a different approach to resolving land claims
and established a land entitlement system distinct from the reservation system in place for many
tribes in the lower 48 states.
The Alaska Native Claims Settlement Act (ANCSA), enacted in 1971, extinguished Alaska
Natives’ claims to over 360 million acres of land.16 In exchange, Alaska Natives received
approximately 45 million acres of land and a settlement payment of $962.5 million (roughly
$5.24 billion in current dollars). Pursuant to ANCSA, the majority of this land and cash
settlement was divided among ANCs, which include more than 200 village corporations and 12
regional corporations. Unlike tribal governments, which have government-to-government
relationships with the United States, ANCs are business entities organized under the laws of
Alaska. Once an ANC receives title to land under ANCSA, the land is considered private
property. This ownership structure differs from most tribal lands in the lower 48 states, which are
owned by the federal government and held in trust for the benefit of the tribe communally or
tribal members individually. Accordingly, whereas tribal lands in the lower 48 states are generally
federal lands managed pursuant to a federal trust relationship, ANC and village corporation lands
in Alaska are private lands managed by the corporations and governed under federal, state, and
local laws.17
In addition to extinguishing prior title and land claims held by Alaska Natives, ANCSA
extinguished “any aboriginal hunting or fishing rights” on lands in Alaska.18 As a result, federal
hunting and fishing rights of most Alaska Native communities are determined by various laws
enacted after ANCSA’s passage rather than pursuant to preexisting rights preserved in treaties.
These governing laws include those discussed in this report.

16 Alaska Native Claims Settlement Act (ANCSA; P.L. 92-203, codified at 43 U.S.C. §§1601 et seq., as amended). For
more information on Alaska Native land claims and ANCSA, see CRS Report R46997, Alaska Native Lands and the
Alaska Native Claims Settlement Act (ANCSA): Overview and Selected Issues for Congress, by Mariel J. Murray.
17 Although most Alaska Native communities ceded their tribal land—and subsequently their hunting and fishing rights
to those lands—to the federal government under ANCSA, there were some exceptions. The Metlakatla Tribe opted not
to join the ANCSA settlement. The Metlakatla Reservation near Ketchikan is the only federal reservation in Alaska,
established by Congress in 1891. As a result, courts have interpreted that the Metlakatla retained certain rights to hunt
and fish both within their reservation boundaries and in certain off-reservation waters where the tribe had traditionally
fished. For more information, see Metlakatla Indian Community v. Dunleavy, No. 21-35185 (9th Cir. Sept. 8, 2022).
18 43 U.S.C. §1603(b).
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Selected Federal Statutes Governing Subsistence
Uses of Resources in Alaska
Although the State of Alaska generally manages subsistence uses of resources on state lands and
certain private lands, including Native allotments and ANC lands,19 the federal government plays
a significant role in managing subsistence uses in Alaska. Congress has passed a number of
statutes that either directly or indirectly provide for the protection and/or recognition of
subsistence uses. Some of these laws, such as such as ANILCA, apply only to the harvesting and
use of resources located on lands owned and managed by the federal government.20 Other federal
laws may apply when concerning subsistence uses of specific species both on and off federal
lands. For example, the Endangered Species Act (ESA) includes an exemption that generally
allows Alaska Natives to harvest listed species for food or for crafting certain traditional
handicrafts, the Marine Mammal Protection Act (MMPA) governs subsistence harvests of marine
mammals, and the Migratory Bird Treaty Act (MBTA) governs the harvest of migratory birds in
certain areas in Alaska.21 The applicability and enforcement of these statutes extend beyond the
federal lands and inland waters that are generally covered under ANILCA.
This section provides a brief overview of selected federal statutes that govern subsistence uses of
resources in Alaska. It discusses their applicability, as well as the role of the federal government
in enforcing relevant subsistence use provisions. Because federal management of subsistence uses
in Alaska is complex and can depend on various factors, this report highlights only certain federal
statutes that may be of interest to Congress.22
Alaska National Interest Lands Conservation Act
Enacted in 1980, ANILCA is the primary statute governing the management of federal lands
within Alaska. ANILCA designated more than 100 million acres of federal land in Alaska as new
or expanded conservation system units that included national parks and preserves, national
wildlife refuges, wilderness areas, and other designations.23 Among its many provisions, ANILCA
specifically recognized and protected subsistence uses on the newly designated lands, as well as
all conservation system units in Alaska established prior to and after ANILCA’s enactment.

19 Native allotments are private lands conveyed to Alaska Natives pursuant to the Native Allotment Act of 1906 (34
Stat. 197) or the Native Townsite Act of May 25, 1926 (44 Stat. 629). Under these laws, Alaska Natives were
authorized to acquire individual allotments of up to160-acre parcels of unreserved, unappropriated land.
20 ANILCA is codified at 16 U.S.C. §§3101 et seq.
21 The Endangered Species Act (ESA) is codified at 16 U.S.C. §§1531 et seq.; the Marine Mammal Protection Act
(MMPA) is codified at 16 U.S.C. §§1361 et seq.; and the Migratory Bird Treaty Act (MBTA) is codified at 16 U.S.C.
§§703-712.
22 Other statutes that may be applicable to certain species or in specific geographic areas are not be included here but
still may impact subsistence uses of resources in Alaska. For example, the Northern Pacific Halibut Act of 1982 (16
U.S.C. §§773-773k) can govern subsistence fishing of Pacific halibut in waters in and off Alaska, whereas, the Fur Seal
Act of 1966 (16 U.S.C. §1153) provides exceptions for “subsistence uses” for the taking of fur seals for “Aleuts,
Eskimos, and Indians” residing on the coasts of the North Pacific Ocean.
23. ANILCA defines conservation system unit to mean “any unit in Alaska of the National Park System, National
Wildlife Refuge System, National Wild and Scenic Rivers Systems, National Trails System, National Wilderness
Preservation System, or a National Forest Monument.” This includes units in existence prior to the enactment of
ANILCA; units established, designated, or expanded pursuant to ANILCA, as well as additions to such units; and any
such unit established moving forward (16 U.S.C. §3102(4). For information on these and other federal land
designations, see CRS Report R45340, Federal Land Designations: A Brief Guide, coordinated by Laura B. Comay.
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ANILCA governs subsistence use of “wild, renewable resources” on federal lands in Alaska (for
more information on the extent of ANILCA’s applicability, see “Multiple Land Management
Mandates and Jurisdictional Questions”).24 Title VIII of the law specifically provides for
preference to be given to “the taking on public lands of fish and wildlife for nonwasteful
subsistence uses” over the taking of fish and wildlife for other purposes.25 Specifically, the law
mandates that “rural residents of Alaska, including both Natives and non-Natives,” be given
priority for subsistence uses of fish and wildlife on federal public lands and waters in Alaska.26 It
further requires that the Secretary of the Interior “ensure that rural residents engaged in
subsistence uses shall have reasonable access to subsistence resources on the public lands.”27
ANILCA’s priority for subsistence uses authorizes federal agencies to limit or restrict the taking
of fish and wildlife for other purposes to protect the continued viability of a fish or wildlife
population or the continuation of subsistence uses of such population.28 In addition, ANILCA
requires federal agencies to consider potential adverse impacts upon subsistence uses and
resources that may result from land use decisions. For example, if a federal agency proposes to
dispose of or lease public lands in a way that would significantly restrict subsistence uses, the
agency is required to hold a hearing in the vicinity of the proposed action. In addition, the agency
must make a determination as to the necessity of the impending action and steps it would take to
minimize any adverse impact upon subsistence uses.29
Federal Management of Subsistence Uses Under ANILCA
Title VIII of ANILCA provides the opportunity to manage subsistence hunting and fishing on
Alaskan federal lands to the State of Alaska in lieu of the federal government.30 Under ANILCA,
such management is contingent upon the state legislature enacting laws consistent with certain
provisions and terms of the legislation. This includes ANILCA’s requirements for establishing a
priority for subsistence hunting and fishing for rural Alaskans. Following the enactment of
ANILCA, the State of Alaska enacted a law that limited the definition of subsistence uses to
residents of “rural areas,” thereby complying with Title VIII of ANILCA.31 Pursuant to Title VIII,
the State of Alaska, through the state Board of Fisheries and Board of Game, managed
subsistence uses on federal lands for the first decade following ANILCA’s enactment. Then in
1989, the Alaska Supreme Court held that the rural residency preference established by state law
(and required under ANILCA) violated the equal access clause of the Alaska state constitution.32
Pursuant to the ruling, the state removed the rural preference from its subsistence use law, which
caused the law to no longer comply with the requirements of Title VIII of ANILCA for state
management on federal lands. Because the Alaska state constitution prevents the state from

24 16 U.S.C. §3113. ANILCA does not define wild, renewable resources, but, as discussed above, agency regulations
have interpreted the term to apply to animals (including non-living parts), plants, fungi, timber, berries, and other
renewable resources found in nature.
25 16 U.S.C. §3114. ANILCA defines take or taking to mean to “pursue, hunt, shoot, trap, net capture, collect, kill,
harm, or attempt to engage in any such conduct” (16 U.S.C. §3102).
26 16 U.S.C. §§3111-3126.
27 16 U.S.C. §3121(a).
28 16 U.S.C. §3114.
29 16 U.S.C. §3120(a)
30 16 U.S.C. §3115(d). ANILCA does not impact the state’s ability to exercise its own jurisdiction over state and
private lands.
31 Act of May 30, 1986, ch. 52, 1986 Alaska Sess. Laws 1.
32 McDowell v. State of Alaska, 785 P.2d 1, 1 (Alaska 1989).
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enacting a law to manage subsistence uses that is consistent with Title VIII of ANILCA, the
federal government has managed subsistence uses on federal lands in Alaska since Alaska
changed its state law in 1990.
At that time, the Department of the Interior (DOI) and the Department of Agriculture (USDA)
determined that federal management of subsistence uses on the public lands required “an
administrative structure ... to execute the Secretaries’ subsistence responsibilities and perform
functions specific to public lands.”33 In light of the federal responsibilities at stake, the Secretaries
of the Interior and Agriculture established the Federal Subsistence Board (FSB) in 1992,
delegating to the FSB the authority to oversee subsistence use programs authorized under Title
VIII of ANILCA.34
DOI and USDA promulgated regulations outlining the FSB’s authorities and responsibilities.
These include issuing rules and regulations for the management of subsistence harvests of fish
and wildlife on Alaska public lands and waters, setting open season dates and harvest limits,
making determinations of rural and non-rural communities and areas, and determining customary
and traditional subsistence uses.35 The authority of the FSB extends only to Alaska federal lands,
primarily those administered by the U.S. Fish and Wildlife Service (FWS), the National Park
Service (NPS), the Bureau of Land Management (BLM), and the U.S. Forest Service (FS).36
Certain waters within or adjacent to federal public lands also have been under the FSB’s
jurisdiction since 1995, when the U.S. Court of Appeals for the Ninth Circuit held that
“subsistence priority applies to navigable waters in which the United States has reserved water
rights” pursuant to the reserved water rights doctrine.37 The reserved water rights doctrine
provides that when the United States withdraws land from the public domain for a particular
federal purpose, it implicitly reserves appurtenant waters that have not otherwise been
appropriated, though only to the extent necessary to fulfill the reservation’s purpose.38
Endangered Species Act
The ESA (16 U.S.C. §§1531 et seq.) aims to conserve species and their ecosystems by identifying
certain species in danger of extinction, either presently or in the foreseeable future. Those species
are then listed as endangered or threatened and are subject to certain statutory and regulatory
protections.39 Among other things, the act prohibits any individual from taking or importing an

33 U.S. Fish and Wildlife Service (FWS) and U.S. Forest Service (FS), “Temporary Subsistence Management
Regulations for Public Lands in Alaska,” 55 Federal Register 27118, June 29, 1990.
34 FWS and FS, “Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C,” 57 Federal
Register 22940-22964, May 29, 1992.
35 Federal subsistence regulations outlining the authorities of the Federal Subsistence Board (FSB) can be found at 36
C.F.R. Part 242 and 50 C.F.R. Part 100. Open season means the time when wildlife may be taken by hunting or
trapping; an open season includes the first and last days of the prescribed season period (36 C.F.R. §242.25).
Regulations require the FSB to consider traditional use patterns when establishing harvest levels, open season dates,
and methods and means of harvesting.
36 ANILCA defines public lands generally to include all lands under federal ownership following the enactment of
ANILCA, with certain exclusions. Exclusions include certain lands owned by the federal government pending
conveyance to the state, Native corporations, or individuals under certain federal statutes (e.g., the Alaska Statehood
Act and the Alaska Native Claims Settlement Act). 16 U.S.C. §3102(3).
37 Alaska v. Babbitt (Katie John I), 72 F.3d 698, 700 (9th Cir. 1995). Prior to this decision, the federal government had
taken the position that the term public lands, as used in ANILCA, did not include navigable waters and, therefore, the
state retained fish and game management authority of subsistence fishing in navigable waters in Alaska.
38 Katie John I, 72 F.3d 698, 703 (9th Cir. 1995).
39 16 U.S.C. §§1531, 1532, 1533, 1539. For more information on the ESA, see CRS Report R46677, The Endangered
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endangered species.40 Under the act, taking means harassing, harming, pursuing, hunting,
shooting, wounding, killing, trapping, capturing, or collecting the species, or attempting to do the
same.41 The prohibitions that apply to endangered species generally may be extended to
threatened species by regulation.42
The ESA allows for certain exceptions from one or more of the act’s prohibitions, including an
exception for Alaska Natives.43 Under the exception, any “Indian, Aleut, or Eskimo” who is
native to and resides in Alaska, and any non-Alaska Native who is a permanent resident of an
Alaskan Native village and who primarily depends on taking fish and wildlife for consumption or
for creating authentic native articles of handicraft and clothing, is not prohibited from taking
endangered or threatened species or from importing any species so taken.44 Any such taking must
be “primarily for subsistence purposes” and “not accomplished in a wasteful manner.”45 The act
does not define subsistence in general but does specify that subsistence includes selling edible
portions of the fish or wildlife, so long as these portions are sold and consumed in Alaskan Native
villages and towns.46
The act also allows nonedible byproducts of such fish and wildlife to be sold in interstate
commerce when they are turned into “authentic native articles of handicrafts and clothing”.47 To
qualify, the handicrafts or clothing must be wholly or in a significant respect composed of natural
materials and must be made or decorated “in the exercise of traditional native handicrafts”
without using any pantographs, multiple carvers, or mass copying devices.48 Examples of such
crafts include weaving, beading, or drawing.49
FWS or the National Marine Fisheries Service (as applicable) can regulate taking of listed species
by “Indian[s], Aleut[s], or Eskimo[s],” or non-Alaska Native residents of Alaskan Native villages,
when either agency determines that such taking is “materially and negatively” affecting the listed
species.50 Any such regulations may specify the geographical area and season for taking the
species and any other factors related to why the regulation is being implemented.51 The
regulations must be removed once the reason for imposing them no longer exists.52

Species Act: Overview and Implementation, by Pervaze A. Sheikh and Erin H. Ward.
40 16 U.S.C. §§1533(d), 1539.
41 16 U.S.C. §1532(19).
42 16 U.S.C. §1533(d).
43 16 U.S.C. §1539.
44 16 U.S.C. §1539(e). See also 50 C.F.R. §17.5.
45 16 U.S.C. §1539(e). See also 50 C.F.R. §17.5.
46 16 U.S.C. §1539(e)(3)(i).
47 16 U.S.C. §1539(e)(1).
48 16 U.S.C. §1539(e)(3)(ii).
49 Ibid.
50 16 U.S.C. §1539(e)(4). FWS administers the ESA for terrestrial, freshwater species, and catadromous species (e.g.,
eels that spawn in saltwater and live in freshwater as adults) and the National Marine Fisheries Service administers the
ESA for marine and anadromous species (e.g., salmon that spawn in freshwater and live in saltwater as adults).
51 16 U.S.C. §1539(e)(4).
52 Ibid.
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Migratory Bird Treaty Act
The MBTA implements four bilateral treaties governing migratory birds. These treaties between
the United States and Canada, Japan, Mexico, and Russia generally include similar—but
distinct—provisions. In general, each treaty requires the party nations to provide for the
protection of certain migratory birds, allowing for the designation of hunting seasons for certain
game birds and providing for certain exceptions.53 Exceptions for Alaska Native subsistence uses
differ across each treaty. The treaties with Russia and Japan include general exceptions from the
treaties’ prohibitions for Alaska Natives for subsistence needs.54 The original treaty with Canada
included a limited exception for specific species of nongame birds, and the original treaty with
Mexico did not contain an exception for Alaska Natives.55 In the 1990s, the treaties with Canada
and Mexico were amended to allow for seasonal subsistence harvesting for Alaska Natives.56
The MBTA was initially enacted in 1918 to implement the bilateral treaty with Canada and has
been amended to reflect the subsequent treaties and amendments to these agreements. In general,
the MBTA prohibits hunting, taking, capturing, killing, or engaging in an array of commerce-
related activities with respect to specific migratory birds unless that activity is authorized
pursuant to prescribed migratory bird hunting regulations or permits issued for specific
purposes.57 As an exception to these prohibitions, the MBTA authorizes FWS to issue regulations
as needed to ensure the Indigenous inhabitants of Alaska may take migratory birds and collect
their eggs for their own nutritional and other essential needs during seasons established by
FWS.58
FWS has issued regulations implementing this exception for Alaska Natives.59 These regulations
must be consistent with all four treaties.60 To assist with implementation, FWS established the
Alaska Migratory Bird Co-management Council.61 The council comprises representatives from

53 Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.S.-Gr. Brit.,
August 16, 1916, 39 Stat. 1702 [U.S.-Canadian Treaty]; Convention Between the United States of America and Mexico
for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., February 7, 1936, 50 Stat. 1311 [U.S.-Mexico
Treaty]; Convention Between the Government of the United States of America and the Government of Japan for the
Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, U.S.-Japan, March 4, 1972,
25 U.S.T. 3329 [U.S.-Japan Treaty]; Convention Between the United States of America and the Union of Soviet
Socialist Republics [Russia] Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R.,
November 26, 1976, 29 U.S.T. 4674 [U.S.-Russia Treaty]. See also U.S. Department of State, Treaties in Force, 238,
296 (2020) (listing subsequent amendments to the treaty).
54 U.S.-Japan Treaty, art. III, 1(e); U.S.-Russia Treaty, art. II, 1(c). The treaty with Japan used the phrase “for their own
food and clothing” and the treaty with Russia used the phrase “for their own nutritional and other essential needs.”
55 U.S.-Canadian Treaty, art. II, cl. 3.
56 Protocol Between the Government of the United States of America and the Government of Canada Amending the
1916 Convention Between the United Kingdom and the United States of America for the Protection of Migratory Birds
in Canada and the United States, U.S.-Can., December 14, 1995, S. Treaty Doc. No. 104–28, 2473 U.N.T.S. 329;
Protocol Between the Government of the United States of America and the Government of the United Mexican States
Amending the Convention for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S. Treaty Doc.
105-26.
57 16 U.S.C. §§703-704.
58 16 U.S.C. §712. This section of the MBTA was added by the Fish and Wildlife Improvement Act of 1978 (P.L. 95-
616, §3(h)(2), (3), Nov. 8, 1978, 92 Stat. 3112).
59 50 C.F.R. part 92.
60 See Alaska Fish and Wildlife Federation and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 940-41 (9th Cir. 1987);
S. Rep. No. 1175, 95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. & Admin. News 7641.
61 50 C.F.R. §92.10(a).
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the federal government, Alaska, and Alaska Natives from 12 regional management areas.62 The
council develops recommendations for regulations related to the subsistence harvest; procedures
and criteria for areas and communities to become eligible; and recommendations for other areas,
such as law enforcement policies, population monitoring, research and use of traditional
knowledge, and habitat protection.63 The council holds public meetings at least twice a year that
provide an opportunity for public comment.64
FWS regulations identify certain subsistence harvest areas and allow other areas to be designated
as such upon recommendation by the Alaska Migratory Bird Co-management Council.65
Permanent residents of villages in subsistence harvest areas are eligible to harvest migratory birds
and eggs for subsistence purposes; immediate family members of such residents also may assist
with the customary spring and summer subsistence harvest with permission of the village’s or
tribe’s council, as applicable.66 The regulations identify which species are eligible for subsistence
harvesting and provide region- and species-specific periods during which harvest may occur.
They also prohibit certain methods and means of harvesting the birds or eggs.67 The regulations
reserve FWS’s right to close or temporarily suspend any regulations as needed to address
imminent threats to the conservation of any listed species or migratory bird population.68
FWS’s regulations for migratory bird subsistence harvesting in Alaska apply only during the
closed season (March 10 to September 1 each year), when hunting otherwise would be
prohibited.69 During the open season, the regulations that govern the hunting of migratory game
birds apply equally to subsistence harvesting.70
Marine Mammal Protection Act
The MMPA prohibits taking or importing marine mammals or marine mammal products except as
provided for in the act.71 The act provides an exemption from the taking prohibition for Alaska
Natives.72 The exemption applies to “any Indian, Aleut, or Eskimo who resides in Alaska” along
the Arctic Ocean or north Pacific Ocean coasts.73 To qualify, the Alaska Native must take the
marine mammal for “subsistence purposes” or to create and sell authentic native articles of
handicrafts and clothing.74 The taking also must be accomplished in a manner that is not
wasteful.75 Alaska Natives may sell edible components of marine mammals only in Alaska Native

62 50 C.F.R. §§92.10, 92.11.
63 50 C.F.R. §92.10(c).
64 50 C.F.R. §92.10(d).
65 50 C.F.R. §92.5(a), (c).
66 50 C.F.R. §92.5(a), (d).
67 50 C.F.R. §§92.20, 92.22, 92.31.
68 50 C.F.R. §92.21.
69 50 C.F.R. §92.3.
70 Ibid. The regulations that govern hunting migratory game birds and crows during the regular open season for non-
subsistence use are found in 50 C.F.R. part 20.
71 16 U.S.C. §1371(a).
72 16 U.S.C. §1371(b); 50 C.F.R. §§18.23, 216.23.
73 16 U.S.C. §1371(b).
74 16 U.S.C. §1371(b)(1)-(2).
75 16 U.S.C. §1371(b)(3).
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villages and towns or for native consumption, but they may sell native handicrafts and clothing in
interstate commerce.76
Take by Alaskan Natives may be regulated with respect to species or stocks of marine mammals
that are determined to be depleted under the MMPA.77 A species or stock is depleted when it is
listed as endangered or threatened under the ESA or when an appropriate federal or state agency
determines the species or stock is below its optimum sustainable population.78 The optimum
sustainable population of a species or stock is the population level that will maximize the species’
or stock’s productivity, based on its habitat and the health of its ecosystem.79 Any such
regulations may establish particular geographical areas or seasons for taking, as well as any other
factors related to the reason for imposing the restriction.80 The regulations must be removed once
the reason for imposing them no longer exists. The National Marine Fisheries Service has enacted
regulations governing the take of beluga whales in Cook Inlet and fur seals on the Pribilof
Islands.81 FWS has enacted regulations governing take of the Pacific walrus.82
Issues for Congress
Subsistence hunting and fishing in Alaska has long been an issue of congressional and
stakeholder interest. Over the years, various groups, including Alaska Native communities, rural
residents, and other interest groups, have identified an array of issues pertaining to subsistence
use. These issues range from general concerns, such as the role of the federal government in
managing such activities or the impacts of climate change on communities that engage in
subsistence use practices, to more specific concerns regarding priority access and harvesting
limits. This section provides an overview of selected issues that have been of interest to Congress
in recent years.
Federal Versus Nonfederal Management
The role of the federal government in overseeing subsistence uses in Alaska is an ongoing issue
of congressional interest. Some concerns generally relate to federal ownership and management
of land, such as whether Congress should transfer ownership of some lands or delegate some
resource management responsibilities to the State of Alaska. Other concerns are specific to
federal programs addressing subsistence uses, such as federal management under the FSB, and
federal engagement and cooperation with local and Alaska Native communities.
In general, the federal government has recognized states’ traditional authority to manage fish and
resident wildlife within their borders. That authority typically extends to federal lands, barring
specific preemptions.83 For subsistence harvests in Alaska, however, the federal government—
primarily through ANILCA—asserted authority over certain aspects of natural resource

76 16 U.S.C. §1371(b).
77 16 U.S.C. §1371(b).
78 16 U.S.C. §1362(1).
79 16 U.S.C. §1362(9).
80 16 U.S.C. §1371(b).
81 50 C.F.R. §§216.23, 216.71-216.74.
82 50 C.F.R. §18.23(c).
83 Examples include the closure of certain national park units and national wildlife refuges to hunting and fishing under
federal laws, as well as the limitations on taking certain species under other federal wildlife laws.
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management on federal lands. To address this potential conflict, Title VIII of ANILCA provides
the state with the opportunity to manage subsistence harvesting on federal lands in place of the
federal government so long as state subsistence laws are in compliance with ANILCA. However,
following the aforementioned legal decisions in the late 1980s (see “Federal Management of
Subsistence Uses Under ANILCA”), the federal government has overseen management of fish,
wildlife, and plant life for subsistence purposes through the FSB since 1990. This management
transfer to the FSB has continued to be an issue of ongoing debate.84
Initially, some stakeholders and state lawmakers assumed federal management under ANILCA
would be temporary until the state came into compliance through legislative or administrative
action.85 The initial regulations for the FSB were promulgated as temporary rules “in anticipation
of the State returning to compliance with Title VIII.”86 The agencies further stated that “it is
preferable to have [subsistence fish and game] management responsibility lie with the State.”87
However, since the state has not resolved the question of compliance with both Title VIII and the
Alaska state constitution, federal management under the FSB has continued despite opposition
from some stakeholders. For example, some have suggested that because a federal management
entity was not envisioned by ANILCA (it is not explicitly mentioned or alluded to in the law), the
FSB’s management role is out of step with Congress’s initial intent in enacting ANILCA.88
Others have suggested expanding the federal government’s role in managing subsistence uses.
This approach has included proposals for the federal government, rather than the state, to manage
subsistence on the roughly 45.5 million acres of Alaska Native-owned land conveyed under
ANCSA.89
In addition to concerns regarding the extent of the federal government’s authority, some
stakeholders have questioned the federal government’s ability to provide for adequate subsistence
harvests for qualified users. They have raised questions of whether the federal government can
adequately manage the substantial land area subject to ANILCA (more than 60% of land in
Alaska is under federal jurisdiction). Others have suggested that the FSB and other federal
agencies have failed to prioritize land management decisions that ensure healthy and abundant
populations are available for continued subsistence use.90 To address these issues, stakeholders
have advocated for allowing state managers to conduct management activities on federal lands.91
Others have argued that implementation of state wildlife strategies—and in particular, intensive or
active management approaches—would directly conflict with the statutory mandate some federal
agencies have in managing wildlife resources (see “Multiple Land Management Mandates and
Jurisdictional Questions” for more information).92

84 S. Hrg. 113-118.
85 Frank Norris, “Alaska Subsistence: A National Park Service Management History,” DOI, 2002.
86 FWS and FS, “Temporary Subsistence Management Regulations for Public Lands in Alaska,” 55 Federal Register
27114, June 29, 1990.
87 Ibid.
88 Kyle Joly, Sanford P. Rabinowitch, and Julie Lurman Joly, “Dual Management of Wildlife in Alaska: Making
Federal Practice Align with Federal Mandates,” The George Wright Forum, vol. 32, no. 1 (2015), pp. 18-24.
89 Kyle Hopkins and Sean Cockerham, “Subsistence Rights Expected to Headline AFN Convention,” Anchorage Daily
News, October 19, 2009, updated September 17, 2016.
90 S. Hrg. 113-118, p 16. Testimony from Craig Fleener, Deputy Commissioner, Alaska Department of Fish and Game.
91 Ibid.
92 Coalition to Protect America’s Parks, “Coalition Condemns Cynical Proposal to Repeal NPS Alaska Hunting
Regulations,” September 24, 2018.
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Other concerns pertain to the manner in which the federal government engages and interacts with
local and Alaska Native communities. Some Alaska Native stakeholders have pointed to past
failures by federal agencies to allow traditional subsistence harvest practices as a source of
ongoing distrust and frustration between these communities and the government.93 Still others
have suggested federal agencies should strengthen resource management partnerships via
cooperative agreements and comanagement relationships with Alaska Native and local
communities.94 Alaska Native communities have called on federal agencies to incorporate and
prioritize Indigenous knowledge into federal fish and wildlife management, monitoring, and
research programs.95 The federal government has conducted reviews of its programs managing
subsistence harvesting of resources and has made changes in response to some of these concerns.
Past Administrations also have pointed to the “bottom-up management” approach provided by
regional advisory councils—administrative bodies that provide advice and recommendations to
the FSB about subsistence hunting and fishing issues in Alaska.96 Pursuant to regulations, these
councils must have representation from local communities within the applicable region with
knowledge of issues relating to subsistence harvest, which some argue allows for local residents
to have a substantial role in guiding the federal subsistence program.97
Multiple Land Management Mandates and Jurisdictional
Questions
Although ANILCA and other statutes establish a management priority (or exemption) for
subsistence uses, the federal government is required to balance these requirements with other
management provisions established under other laws (e.g., the National Wildlife Refuge System
Administration Act for FWS and the National Park Service Organic Act of 1916 for NPS).98 The
purposes and mandates of these laws are not always easily balanced, and at times agencies may
be directed to engage in activities that seem at odds with one another. As a result, some agencies
have been reluctant to engage in certain activities that support subsistence uses but may not
advance the management goals established under other authorities. In particular, some agencies
have declined, at times, to pursue the type of active or intensive management of fish and wildlife
populations (e.g., predator control, habitat enhancements) that some stakeholders claim is
necessary to sustain subsistence needs.99 For example, stakeholders and state management
officials have suggested NPS and FWS have resisted these types of management practices in
Alaska because of their interpretation of the NPS Organic Act of 1916 (NPS) and the National

93 For example, in 2018, FWS issued a formal apology to Indigenous Alaskans for regulations implemented pursuant to
the MBTA in the 1960s and 1970s that severely impacted these communities’ ability to harvest birds and eggs during
the spring season. See FWS and Alaska Department of Fish and Game, “Apology for Harmful Impacts of Past Bird
Harvest Prohibitions,” September 13, 2018, at https://www.fws.gov/node/267704.
94 DOI and USDA, Federal Subsistence Policy Consultation Summary Report, June 14, 2022, at https://www.bia.gov/
sites/default/files/dup/tcinfo/final-subsistence-consultation-summary-report_6.10.22_508.pdf. Hereinafter referred to as
DOI and USDA, Federal Subsistence Policy.
95 Ibid. See also Isabella Turilli, “Survival, Subsistence, and Food Sovereignty in Alaska,” Think Global Health,
January 17, 2023.
96 S.Hrg. 113-118, p. 11. Testimony of Beth Pendleton, Regional Forester, Alaska Region, FS.
97 Ibid. Membership requirements for the FSB and the regional advisory councils can be found at 36 C.F.R. §242.10
and 36 C.F.R. §242.11, respectively.
98 The National Wildlife Refuge System Administration Act is codified at 16 U.S.C. §§668dd-668ee, and the NPS
Organic Act of 1916 is codified at 54 U.S.C. §§100101 et seq.
99 S.Hrg. 113-118. See also Tim Bodony, “State Sues Federal Land Managers over Predator Hunting Restrictions,”
Alaska Public Media, January 18, 2017.
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Wildlife Refuge System Administration Act (FWS) and those laws’ emphasis on “park values”
and “natural diversity,” respectively.100 Agencies generally have highlighted the difficulty in
balancing the demands of subsistence users with multiple legal mandates and other public
interests.101 In other instances, agencies such as FS and BLM are explicitly required by statute to
manage lands and resources under their jurisdiction for multiple uses, including energy
development, livestock grazing, recreation, and timber harvesting, which some have claimed
prevents subsistence use from being properly prioritized. Specifically, some stakeholders have
pointed to BLM’s onshore oil and gas leasing program as having potential harmful impacts to
subsistence users.102 Others, including some Alaska Native stakeholders, suggest that present and
future oil and gas development is the foundation of a sustained local economy and must be
balanced with ensuring future subsistence use.103
Other challenges include balancing competing objectives within the same statute, as some laws
that require protection of migratory birds or threatened or endangered species also authorize
subsistence harvests. To address some of these concerns, DOI has established policies requiring
agencies to consult with Alaska Native communities when regulating subsistence harvest of
endangered or threatened species.104 These consultation requirements aim to preserve subsistence
harvest rights while minimizing adverse impacts on listed species.
In addition to conflicting mandates, some stakeholders have argued that sustainable resource
management challenges are compounded when multiple governmental entities (state and/or
federal) have jurisdiction over the same or similar resources. In particular, the “dual regulation of
fish and game resources where state and federal jurisdictions intersect” has created confusion
among subsistence and rural communities in Alaska, according to some stakeholders.105 For
example, in instances where state and federal regulations have different limits for a certain
species, subsistence users must be aware of the jurisdiction in which they are hunting or fishing to
know whether they are harvesting in accordance with applicable regulations. This exercise can
become further complicated when hunting or fishing near the boundary between such lands,
particularly if no clear markers delineate the federal-state boundary. In addition, some have
argued that implementing a federal regulatory framework alongside a similar state system
increases administrative costs that might otherwise be avoided with a single regulatory body.106
Other jurisdictional concerns relate specifically to whether and where the federal government has
jurisdiction over inland waters, bringing them under the definition of public lands for purposes of
ANILCA and therefore requiring subsistence use management of the inland waters and their

100 S.Hrg. 113-118, Testimony from Craig Fleener, Deputy Commissioner, Alaska Department of Fish and Game, p.
18.
101 S.Hrg. 113-118, Testimony from Gene Peltola, Assistant Regional Director, Office of Subsistence Management,
FWS.
102 For example, see Scott Streater, “Biden Plan Could Advance Massive Arctic Oil Project,” E&E News, July 11,
2022. Additional concerns have been raised regarding potential oil and gas development in the Arctic National Wildlife
Refuge. For information on this issue, see CRS In Focus IF12006, Arctic National Wildlife Refuge: Status of Oil and
Gas Program, by Laura B. Comay.
103 For example, see Testimony of Richard Glenn, Arctic Slope Regional Corporation, U.S. Congress, House
Committee on Natural Resources, Subcommittee on Energy and Mineral Resources, Promoting Onshore Oil and Gas
Development in Alaska, 115th Cong., 1st sess., July 18, 2017, S. Hrg 115-17 (Washington: GPO, 2017).
104 See for example, DOI, Secretarial Order No. 3225, Endangered Species Act and Subsistence Uses in Alaska
(Supplement to Secretarial Order No. 3206), January 19, 2001.
105 S.Hrg. 113-118, p. 20.
106 S.Hrg. 113-118, Testimony from Craig Fleener, Deputy Commissioner, Alaska Department of Fish and Game.
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fishery stocks. As noted below, waters within or adjacent to federal public lands have been under
the jurisdiction of the FSB since a Ninth Circuit decision in 1995 (for more information, see text
box “The Katie John Litigation”).107 Since that decision, the degree or extent to which ANILCA’s
subsistence use priority—and in, turn, FSB regulations—applies to waters and fishery stocks has
been the subject of litigation and concern for some stakeholders.108 In some instances, state and
federal officials have issued conflicting orders opening and/or closing fishing in the same waters.
For example, in 2021, the Alaska Department of Fish and Game opened driftnet salmon fishing
on the lower Kuskokwim River within the Yukon Delta National Wildlife Refuge on certain days
to all Alaskans through an emergency order, but FWS had opened fishing only to qualified
subsistence users under ANILCA.109 In May 2022, the federal government sued the state to block
the state’s emergency order; the U.S. District Court of Alaska later granted an injunction
preventing the state from implementing the order.110
Navigable Waters and Alaska National Interest Lands Conservation Act
(ANILCA): The Katie John Litigation
The Katie John trilogy, a series of decisions by the U.S. Court of Appeals for the Ninth Circuit, has been influential
in establishing the balance between federal and state authority in the management of subsistence fisheries in the
state. Together, these cases reinforce the existence of Alaska Native subsistence fishing rights and outline the
federal government’s trust responsibility to protect those rights. They also provide important interpretations of
ANILCA’s provisions.
In the initial years fol owing ANILCA’s enactment, the federal government played a minimal role in the
management of fish populations for subsistence purposes. Instead, Alaska's navigable waters were managed by the
state, much like the navigable waters throughout the rest of the country. Even fol owing the transfer of federal
management to the Federal Subsistence Board in 1990, agencies specifically excluded federal jurisdiction over
navigable waters, which were defined as “those waters used or susceptible of being used in their ordinary
condition as highways for commerce over which trade and travel are or may be conducted in the customary
modes of trade and travel on water” (55 Federal Register 27114).
Katie John, an Alaska Native elder, and other members of her community filed their first federal lawsuit in 1983 to
argue that the State of Alaska was violating their subsistence fishing rights through regulatory actions such as
restricting access to fishing areas and imposing permit requirements. The ensuing litigation spanned several
decades and multiple cases and appeals. Three final decisions by the U.S. Court of Appeals for the Ninth Circuit
are sometimes referred to as Katie John I, II, and III, or the Katie John trilogy.
In 1995’s Katie John I, the Ninth Circuit held that Alaska navigable waters were not entirely under either federal or
state control. Instead, the court concluded that ANILCA’s definition of “‘public lands’ includes those navigable
waters in which the United States has an interest by virtue of the reserved water rights doctrine.” The reserved
water rights doctrine provides that when the United States withdraws land from the public domain for a particular
federal purpose, it implicitly reserves appurtenant waters that have not otherwise been appropriated, though only
to the extent necessary to fulfil the reservation’s purpose. In the context of Alaska Native subsistence use rights,
that means that certain—though not all—waters in Alaska that otherwise would be subject to state management
are instead subject to ANILCA’s rural subsistence use priority.
In its decision, the court also held that the federal agencies administering ANILCA’s subsistence use priority are
responsible for identifying those waters, despite that “heavy administrative burden.” The U.S. Fish and Wildlife
Service (FWS) and the U.S. Forest Service (FS) subsequently tried to identify the navigable waters subject to
reserved water rights. The Ninth Circuit reviewed their efforts in 2001’s Katie John II. Although a majority of the

107 Federal responsibility to manage subsistence fisheries was added following the Ninth Circuit Court of Appeals
decision in Alaska v. Babbitt, in 1995; however, federal subsistence fisheries regulations did not become effective until
1999 (64 Federal Register 1276).
108 See, for example, See Alaska v. Babbitt, 72 F.3d 698 (1995); John v. United States, 247 F.3d 1032 (2001) (en banc);
John v. United States, 720 F.3d 1214 (2013);
109 Greg Kim, “State announces Kuskokwim fishing opening, but feds say it’s illegitimate,” KTOO, June 25, 2021, at
https://www.ktoo.org/2021/06/25/state-announces-kuskokwim-fishing-opening-but-feds-say-its-illegitimate/.
110 United States v. State, Dep't of Fish & Game, Case No. 1:22-cv-00054-SLG, 2022 WL 2274545 (D. Alaska June 23,
2022).
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court agreed that Katie John I was incorrectly decided, the court “could not come to a control ing agreement
about why that was true.” The court therefore concluded that Katie John I “should not be disturbed or altered,”
and it remains control ing law.
Finally, in 2013’s Katie John III, the Ninth Circuit upheld FWS and FS’s determination that the “public lands” subject
to ANILCA's rural subsistence use priority “included waters within and adjacent to federal reservations” but that
reserved water rights for Alaska Native Settlement allotments were “best determined on a case-by-case basis.”
Accordingly, certain inland waters in or appurtenant to federal lands in Alaska are subject to ANILCA and its
subsistence fishing provisions, but federal agencies must make these determinations on a case-by-case basis.
For further reading about the Katie John litigation, see generally Robert T. Anderson, “The Katie John Litigation: A
Continuing Search for Alaska Native Fishing Rights After ANILCA,” Arizona State Law Journal, vol. 51, no. 845
(2019), pp. 846-877.
Sources: State of Alaska v. Babbitt, 72 F.3d 698, 703–04 (9th Cir. 1995) (“Katie John I”); John v. United States,
247 F.3d 1032 (9th Cir. 2001) (en banc) (“Katie John II”); John v. United States, 720 F.3d 1214, 1226 (9th Cir. 2013)
(“Katie John III”).
Access to Subsistence Rights or Exemptions
Another issue raised by some stakeholders concerns which Alaska residents are eligible for
subsistence use priority or exemptions. Some of these concerns relate to how the government
determines or defines eligibility under certain laws. In particular, the process by which the FSB
determines rural status in Alaska under ANILCA has come under scrutiny. Other concerns relate
to potential confusion caused by the varying eligibility standards established for subsistence use
priorities or exemptions across multiple statutes. Finally, some Alaska Native communities have
suggested that the extension of subsistence use priorities or exemptions to non-Alaska Native
communities does not adequately protect their traditional subsistence practices and culture.
Rural Priority Determination
Title VIII of ANILCA establishes a priority use of federal lands for subsistence purposes that
applies only to “rural residents of Alaska.” Because ANILCA does not define which individuals
or communities qualify as rural, the FSB determines when a community or area of Alaska should
or should not be considered rural using guidelines and characteristics defined by the Secretaries
(see Figure 1).111 Determinations of non-rural status—and subsequent ineligibility for the Title
VIII subsistence priority—have been the subject of debate at times.

111 Communities determined to be non-rural can be found at 36 C.F.R. §242.23 and 50 C.F.R. §100.23.
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Figure 1. Federal Subsistence Board Non-rural and Rural Determinations
(as of December 2022)

Source: Department of the Interior, “Federal Subsistence Management Program, Non-rural Areas,” p. 1, at
https://www.doi.gov/sites/doi.gov/files/non-rural-areas.pdf.
One specific issue that has generated concern is the factors that the FSB considers in making such
a determination. Under previous regulations, the FSB would determine if a community was rural
or non-rural based primarily on set population ranges (e.g., communities of 2,500 or fewer
residents were deemed rural).112 The regulations required these determinations to be reviewed
every 10 years. Through this review process, the FSB had determined that a number of rural areas
had become non-rural and therefore would become ineligible for the Title VIII subsistence use
priority.113 After stakeholders raised concerns about the implications of individuals becoming
ineligible, the federal government promulgated new regulations in 2015 that removed specific
guidelines for the non-rural determination process, including requirements regarding population
data, the aggregation of communities, and the decennial review.114 According to the agencies,
these new regulations provide the FSB with more discretion in making decisions by taking into
account regional differences across Alaska and allow for greater input from relevant
stakeholders.115 Even with the new regulations, certain stakeholders believe the revised
regulations continue to exclude certain residents—especially Alaska Native residents living in
non-rural areas—for whom subsistence uses on federal lands are important to maintaining a

112 FWS and FS, “Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C,” 57 Federal
Register 22940-22964, May 29, 1992. Under these regulations, the FSB was required to take into consideration
community or area “characteristics” when evaluating rural or non-rural status. These characteristics could include the
use of fish and wildlife in daily life, the development and diversity of the economy, community infrastructure, and
other factors.
113 See, for example, a 2007 decision to list Prudhoe Bay as non-rural (FS, FWS, “Subsistence Management
Regulations for Public Lands in Alaska, Subpart C; Nonrural Determinations,” 72 Federal Register 25688, May 7,
2007) and the proposed rule to change the status of the Kodiak area from rural to non-rural (71 Federal Register
46416, August 14, 2006).
114 80 Federal Register 68245-68248.
115 DOI, “Federal Subsistence Board Adopts Policy on Nonrural Determinations,” press release, January 18, 2017, at
https://www.doi.gov/sites/doi.gov/files/uploads/fsb_nonrural.pdf.
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connection with their culture and traditional practice (see “Alaska Native Versus Non-Alaska
Native Eligibility”).116
Differences in Subsistence Use Eligibility Across Statutes
Each of the statutes discussed in this report establishes explicit exemptions or priority use for
certain subsistence practices across Alaska. How and when these exemptions or priorities apply
vary depending on the law in question. Some statutes establish subsistence priorities or
exemptions based on the racial or ethnic identity of the user, whereas others base applicability on
certain geographic regions. Still others some consider both racial and geographic factors. For
example, the ESA explicitly exempts “native Alaskans” from prohibitions on taking or importing
endangered or threatened species for subsistence purposes.117 Under the law, native Alaskan
includes any “Indian, Aleut, or Eskimo” who resides in Alaska—as well as non-Alaska Native
individuals who are permanent residents of Alaskan Native villages.118 Meanwhile, the
subsistence use exemption under the MMPA applies only to “Indian, Aleut, or Eskimo”
individuals and further limits the exemption to only those individuals living “on the coast of the
North Pacific Ocean or the Arctic Ocean.”119 Non-Alaska Native individuals are not eligible for
an exemption under the MMPA.
By contrast, the MBTA and ANILCA do not specifically limit subsistence use rights on the basis
of race or racial heritage. The MBTA exemption applies to “indigenous inhabitants of the State of
Alaska,” and FWS regulations define the term to mean “a permanent resident of a village within a
subsistence harvest area, regardless of race.”120 Similarly, although ANILCA recognizes the
importance of subsistence uses to “Native physical, economic, traditional, and cultural existence,”
the law does not restrict subsistence hunting and fishing on federal lands to Alaska Natives or
grant priority rights for such practices on the basis of tribal or Native affiliation. Instead, the law
defined subsistence uses in terms of the customary and traditional uses by “rural Alaska
residents,” effectively extending the subsistence use priority on federal lands to both Alaska
Native and non-Alaska Native residents.121
Given the complexity of this statutory framework, and the manner in which these laws may
overlap and apply different qualifying standards, when and for whom subsistence use rights and
exemptions apply can cause confusion. For example, an individual eligible for subsistence use
priority under ANILCA may not be able to continue subsistence harvest practices with respect to
a particular species if the species is subsequently listed as endangered or threatened under the
ESA. Similarly, although FWS has indicated that no migratory birds open for harvest during the
subsistence season in Alaska are currently threatened or endangered species, a future listing could
cause a person previously eligible to hunt a species under the MBTA to no longer be eligible to
hunt it under the ESA due to the differing eligibility provisions of the two statutes.

116 See, for example Raegan Miller, “Advisory Council Advances Proposal to Open Federal Subsistence Hunts and
Fisheries to Ketchikan Residents,” KRDB Community Radio, October 27, 2022.
117 16 U.S.C. §1539(e).
118 As discussed above, the term Eskimo may be considered derogatory or offensive to some Native Alaskan
communities but is used due to its legal significance under federal laws (see footnote 14.
119 16 U.S.C. §1371(b).
120 50 C.F.R. §92.4
121 16 U.S.C. §3114.
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Alaska Native Versus Non-Alaska Native Eligibility
Another issue that has been a topic of debate is whether, or the degree to which, subsistence use
priorities or exemptions apply to non-Alaska Native communities. Only the MMPA subsistence
use exemption applies exclusively to “Indian, Aleut, or Eskimo” individuals (and only when those
individuals are living on the coast of the North Pacific Ocean or the Arctic Ocean). Other
subsistence-related statutes generally apply to both Alaska Native and non-Alaska Native
individuals. Some Alaska Native communities object to the extension of subsistence use rights
and exemptions to non-Alaska Native communities, claiming this approach risks not adequately
ensuring and protecting Alaska Native subsistence practices and culture.122 The lack of explicit
protections or priority for Alaska Native subsistence users in ANILCA (which instead confers
such benefits to “rural Alaska residents”) in particular has been an issue of concern for some
Alaska Native communities.
With the passage of ANCSA in 1971, aboriginal hunting and fishing rights were extinguished for
participating Alaska Native communities.123 Although the conference report for ANCSA indicates
that Congress may have expected that the Secretary of the Interior and the State of Alaska would
use their authorities to protect specifically Alaska Native interests in subsistence activities,124
following the law’s passage many stakeholders expressed dissatisfaction with any such
limitation.125 The passage of ANILCA in 1980 was intended, in part, to resolve the issues of
Alaska Native subsistence uses through Title VIII’s rural priority provision,126 which extends to
both Alaska Natives and non-Alaska Natives. Since then, some Alaska Native communities have
contended that ANILCA insufficiently protects the continuation of Alaska Native subsistence use
rights and have advocated for amending the law to provide an explicit Alaska Native priority or
higher priority for Alaska Natives, which they believe would better protect their traditions and
culture.127
By contrast, some have highlighted that subsistence uses are also vitally important to the food
security of non-Alaska Natives in rural communities and therefore have advocated for a modified
rural priority under ANILCA.128 Under this approach, ANILCA’s subsistence use priority would

122 Sullivan, Indigenous Subsistence Rights.”
123 As mentioned above, not all Alaska Native communities ceded their land claims—and subsequently their hunting
and fishing rights to those lands—to the federal government under ANCSA.
124 H.Rept. 92-746, 91st Cong., 1st sess. (1970), reprinted in 1971 U.S. Code Cong. & Adm. News 2247, 2248. (“The
conference committee, after careful consideration, believes that all Native interests in subsistence resource lands can
and will be protected by the Secretary through the exercise of his existing withdrawal authority.”)
125 David S. Case and David A. Voluck, Alaska Natives and American Laws, 3rd ed., Fairbanks, AK: University of
Alaska Press, 2012), pp. 292-293 (“Some nine years later it was compellingly clear that neither the state nor the
Secretary were likely to protect subsistence in the manner Congress had contemplated”). See also Kristin McCarrey,
“Alaska Natives: Possessing Inherent Rights to Self-Governance and Self-Governing from Time Immemorial to
Present Day,” American Indian Law Journal, vol. 2, no. 1 (May 2017), pp. 437-452.
126 The legislative history of ANILCA indicates that Alaska Native subsistence use was an overriding concern in
developing the Title VIII provision. See, for example, U.S. Congress, House Committee on Interior and Insular Affairs,
Alaska National Interest Lands Conservation Act of 1979, 96th Cong., 1st sess., April 18, 1979 (Washington: GPO,
1979), p. 230 (“The importance of subsistence uses ... to the physical, economic and cultural well-being of Alaska
Natives and other rural residents has been exhaustively chronicled in testimony presented at hearings, town meetings
and workshops held by the committee during consideration of both the Alaska Native Claims Settlement Act and the
Alaska National Interest Lands Conservation Act.”).
127 For example, see Alaska Federation of Natives, “Subsistence Action,” at https://www.nativefederation.org/
subsistence-action-workshops/.
128 Miranda Strong, “Alaska National Interest Lands Conservation Act Compliance & Nonsubsistence Areas: How Can
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extend to Alaska Natives living in both rural and urban communities—as well as to non-Alaska
Natives living in rural designated areas. According to these advocates, such a proposal would
recognize that Alaska Natives in urban communities maintain a customary and traditional
connection to subsistence activities, while also ensuring rural, non-Alaska Natives have access to
subsistence practices that are vital to their food security. Other stakeholders oppose any
subsistence use priority based on an individual’s race or tribal affiliation and claim that federal
lands in Alaska should be open to anyone, as Alaska’s state constitution would provide.129
Haaland v. Brackeen and Equal Protection: Should Laws Benefiting Tribes Be
Subject to Strict Scrutiny?
In Haaland v. Brackeen, argued before the Supreme Court in November 2022 during the October 2022 term, the
Court is considering, among other issues, an equal protection challenge to Congress’s establishment of special
rules that apply to “Indian children” in the Indian Child Welfare Act (25 U.S.C. §§1901 et seq.). The Fourteenth
Amendment’s Equal Protection Clause prohibits state government actors from denying “any person within its
jurisdiction the equal protection of the laws.” Although the Fourteenth Amendment applies only
to state governments, the Court has analyzed federal equal protection claims under the Fifth Amendment
“precisely the same” as those brought under the Fourteenth Amendment. These equal protection provisions,
according to the Supreme Court, require that “all persons similarly situated should be treated alike.”
The challenges before the Court allege that Congress violated the Fifth Amendment’s guarantee of equal
protection by distinguishing between “Indian children” and other children in the Indian Child Welfare Act, thereby
treating individuals differently based on race in a way that does not hold up to strict scrutiny. Strict scrutiny is a
legal test that asks whether a classification in a law, such by race, (1) serves a compelling government interest and
(2) is narrowly tailored to further that interest. This challenge relies primarily on two Supreme Court precedents.
First, in Adarand Constructors v. Peña, the Supreme Court established that any time the federal government subjects
individuals to unequal treatment based on their race, that action is subject to “strict scrutiny.” Second, in Rice v.
Cayetano, the Supreme Court recognized that “[a]ncestry can be a proxy for race” and therefore subject to the
same constitutional limitations as explicitly race-based classifications. Based on these two cases, the plaintiffs in
Brackeen argue that classifications based on Native American ancestry must satisfy strict scrutiny.
On the other side, the federal and tribal defendants argue that such classifications require only a rational basis.
The defendants argue that Supreme Court jurisprudence has established that the federal government’s relationship
with federally recognized Indian tribes is based on a political, rather than racial, categorization. Political
classifications are not among the classes subject to heightened scrutiny. The Constitution’s Indian Commerce
Clause provides authority for Congress to “regulate Commerce ... with the Indian tribes” and is the principal
constitutional basis for many statutes and regulations governing the federal relationship with tribal sovereigns. For
example, in Morton v. Mancari, the Court upheld a Bureau of Indian Affairs’ employment preference for members
of federally recognized tribes because the preference was a political classification: that is, it applied to members of
tribal entities who have a unique relationship with the federal government, not all persons with Native American
heritage. The Supreme Court further opined that because “[l]iteral y every piece of legislation dealing with Indian
tribes” is “explicitly designed to help only Indians,” deeming such legislation as invidious racial discrimination would
jeopardize “the solemn commitment of the Government toward the Indians.”
Assuming the Court reaches this issue, its decision may clarify the question of how equal protection principles
apply to federal Indian legislation. Of the 574 current federally recognized tribes that may be affected by this
litigation, 227 are Alaska Native entities.
Sources: Nos. 21-376, 21-377, 21-378, and 21-380 (U.S.); U.S. Const. amend. XIV; Weinberger v. Wiesenfeld,
420 U.S. 636, 638 n.2 (1975); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); U.S. Const.
art. 1, § 2; Adarand Constructors v. Peña, 515 U.S. 200, 226 (1995); Rice v. Cayetano, 528 U.S. 495, 496 (2000);
U.S. Const., art. I, § 8, cl. 3; Morton v. Mancari, 417 U.S. 535 (1974); 87 Federal Register 4637 (Jan. 28, 2022).

Alaska Thaw Out Rural & Alaska Native Subsistence Rights,” Alaska Law Review, vol. 30, no. 1 (2013), pp. 71-94.
129 For example, see Alaska Outdoor Council (AOC), “AOC Views,” at https://alaskaoutdoorcouncil.org/aoc-views/.
For a discussion of the equal access clause in the Alaska Constitution and its applicability to federal management under
ANILCA, see “Federal Management of Subsistence Uses Under ANILCA.”
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Enforcement
Other potential challenges facing federal agencies involve the enforcement of subsistence use
provisions under the law. Some of these issues are not specific to subsistence use but rather
reflect overall challenges regarding the enforcement of wildlife and conservation laws,
particularly in Alaska.130 As mentioned, more than 60% of land in Alaska is under federal
jurisdiction, comprising more than a third of the entire federal estate.131 Many of these lands are
in remote regions, making enforcement and oversight challenging. In some cases—due, in part, to
the sheer scale of their jurisdictional boundaries—federal agencies rely on citizen reports and/or
whistleblowers to identify crimes and enforce penalties.132 Some Members of Congress have
introduced legislation that would aim to improve the protection of whistleblowers and support
funding of certain wildlife and conservation statutes.133
Other potential law enforcement challenges may be more specific to subsistence uses and
harvests. For example, agencies may run into difficulties verifying for whom and when
subsistence use privileges or exceptions apply. Although the harvest and taking of certain species
for subsistence purposes may require a permit from the state, other subsistence practices only
require eligible individuals to provide identification or some other proof of residency.134 This
could create challenges in ensuring or verifying eligibility for subsistence users. Verification
challenges have been of particular concern for subsistence use provisions under the MMPA,
which (as discussed in “Alaska Native Versus Non-Alaska Native Eligibility”) are limited to
“Indian, Aleut, or Eskimo” individuals living on the coast of the North Pacific Ocean or the Arctic
Ocean.135 Other challenges have involved the limits, or reach, of federal enforcement due to
litigation around the jurisdictional authority provided under federal laws (see also “Multiple Land
Management Mandates and Jurisdictional Questions”).136 Still others, primarily subsistence users
and Alaska Native communities, have suggested that some enforcement practices from both state
and federal agencies have been overly aggressive and have focused too much on subsistence
users, who make up a small percentage of Alaska’s annual resource harvest.137

130 For general issues regarding challenges in enforcing wildlife laws, see Kenneth J. Peak, “Enforcing the Laws of
Wildlife and Recreation (Part One),” Law Enforcement Bulletin, September 27, 2017.
131 See CRS Report R42346, Federal Land Ownership: Overview and Data, by Carol Hardy Vincent and Laura A.
Hanson.
132 For example, see National Whistleblower Network, Special Report: The Critical Role in Whistleblowers in
Enforcing Wildlife Protection Laws, September 14, 2019, at https://www.whistleblowers.org/wp-content/uploads/2019/
09/Wildlife_Report-Sept-2019.pdf; see also Tinker Ready, “Guest Post: Whistleblowers Could Help Expose Wildlife
Criminals in Remote Alaska-Yukon,” Whistleblower Network News, August 25, 2019.
133 For example, H.R. 6059, the Wildlife Conservation and Anti-Trafficking Act of 2021, in the 117th Congress. In
2018, the Government Accountability Office (GAO) published a report looking into the use of financial awards
specifically for the purposes of wildlife trafficking; such findings could be relevant to broader wildlife and conservation
statutes. See U.S. Government Accountability Office, Combating Wildlife Trafficking: Opportunities Exist to Improve
the Use of Financial Rewards, GAO-18-279, April 2018, at https://www.gao.gov/assets/gao-18-279.pdf.
134 For regulations regarding permit requirements for subsistence purposes under ANILCA, see 50 C.F.R. §100.6.
135 Steve J. Langdon, “Determination of Alaska Native Status Under the Marine Mammal Protection Act,” Sealaska
Heritage Institute, August 2016.
136 Elliot Louthen, “Subsistence and Sturgeon: Federal Enforcement on Alaska’s Rivers,” Alaska Law Review, vol. 36,
no. 2 (June 4, 2020), pp. 179-192. This law review article discusses potential challenges facing federal law enforcement
of ANILCA’s subsistence provisions in light of the Supreme Court’s ruling in Sturgeon v. Frost, 139 S. Ct. 1066
(2019), holding that navigable waters within Alaska’s national parks are outside the scope of the NPS’s normal
regulatory authority.
137 For example, see 74 Federal Register 23336 (“[FWS] received nine comments regarding the enforcement of the
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Climate Change
Issues related to climate change also may impact subsistence use practices in Alaska and may
have implications for federal land management and agencies’ subsistence use responsibilities. For
example, in Arctic regions, studies have shown that climate-related stressors such as sea ice
retreat and melting permafrost have shifted patterns in animal migration and impacted people’s
ability to reach animals overland or safely on sea ice.138 In addition, changing climate
conditions—such as changes in terrestrial conditions, seasonality, and fire regimes—may affect
populations of wildlife and fish stocks upon which subsistence users customarily have relied.139
Climate change also may result in potentially harmful alterations to a subsistence species’ habitat,
such as fluctuations in water salinity and shifts in vegetation growth. In addition to shifting and
impeding access to subsistence species, climate change may complicate food preservation, a vital
component of subsistence practices for many rural Alaskans.140 For example, melting permafrost
could affect the ability to store food in traditional ice cellars and may leave food more susceptible
to pathogens that can cause food-borne illnesses.
In light of these changes, federal agencies may wish to reconsider or reevaluate their approach to
land management to provide continued access to traditional subsistence resources affected by
climate change. For example, in response to concerns raised by regional advisory councils across
Alaska, the FSB encouraged federal land management agencies to “develop investigative plans
that examine how recent changes in the environment affect fish and wildlife populations.”141 The
FSB also may change harvest stock limits in response to declines in population for certain
species, as it did in 2019 for the Mulchatna caribou herd.142 Some rural Alaskans view changes in
harvest limits as a direct threat to their ability to source food and nutrients, whereas others argue
that additional limits are necessary to ensure the sustainability of future stocks.143 Some
stakeholders also have called for greater federal support for climate resilience programs in Alaska
to address future threats to subsistence practices.144

migratory bird subsistence regulations in the Barrow area. Commenters indicated that they believe enforcement was
‘too aggressive,’…and that the community and the Service should work together to find solutions and not resort to law
enforcement.”). See also DOI and USDA, Federal Subsistence Policy.
138 Kristen M. Green et al., “Climate Change Stressors and Social-Ecological Factors Mediating Access to Subsistence
Resources in Arctic Alaska,” Ecology and Society, vol. 26, no. 4 (2021), at https://doi.org/10.5751/ES-12783-260415.
139 Alaska Department of Fish and Game, “Climate Change Strategy,” November 2010, at
https://www.adfg.alaska.gov/static/lands/ecosystems/pdfs/climatechangestrategy.pdf.
140 E. Barrett Ristroph, “Still Melting: How Climate Change and Subsistence Laws Constrain Alaska Native Village
Adaptation,” Colorado Natural Resources, Energy & Environmental Law Review, vol. 30, no. 2 (2019), pp. 248-249.
141 Letter from Anthony Christianson, Chair, Federal Subsistence Board, to Nancy Morris Lyon, Chair, Bristol Bay
Subsistence Regional Advisory Council, September 16, 2020, at https://www.doi.gov/sites/doi.gov/files/13-board-final-
r4-bbrac-fy19-arr-enclosure-508.pdf.
142 DOI, “Federal Subsistence Board Takes Action on Temporary Wildlife Special Action Requests WSA19-07
(Mulchatna Caribou) and WSA19-08 (Unit 13E Ptarmigan),” November 8, 2019, at https://www.doi.gov/subsistence/
news/general/federal-subsistence-board-takes-action-temporary-wildlife-special-action-0.
143 For perspectives on federal harvest limits, see Jacob Resneck, “Hearing Anxiety over Food Security, Subsistence
Council Recommends Tighter Hunting Rules in Rural Southeast Alaska,” KCAW, October 14, 2021; Isabelle Ross,
“Federal Board Reduces Mulchatna Caribou Harvest Limit,” Alaska Public Media, November 8, 2019.
144 Ibid.
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Subsistence in Alaska: An Overview of Federal Management

Conclusion
Fish and wildlife management across the United States requires balancing a variety of uses by
different stakeholders for many different purposes, all against a backdrop of changing populations
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Subsistence in Alaska: An Overview of Federal Management

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

Author Information

Mark K. DeSantis
Erin H. Ward
Analyst in Natural Resources Policy
Legislative Attorney

Disclaimer
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