The Year is 2020: Climate Change is Real and has Changed Alaska Almost Irreversibly

Hello to all of the old blog followers – this blog began in 2009 as an independent and individual project as a venue for opening up critical dialogue on the state of “being” Alaska Native in Alaska.  The title of the blog was deliberately chosen so as to be inclusive of all involved topics incorporated into what it might mean to be Alaska Native.  The early to late 2010s saw a co-author add a new stream of thought, particularly comparing and contrasting life in Alaska and life in Canada as an indigenous person/people in North America.  The 2010s are over and the authors are older and maybe a little wiser.

Hello to all of the new blog followers – the year is 2020, the blog is over a decade old and will be given a new lease of life as content begins to investigate Alaska climate change and Alaska adaptation practices to climate change as a field of knowledge.  Alaska Native peoples are greatly affected by climate change in regards to subsistence harvesting as a millennia-old livelihood.  Alaska Native villages are greatly affected by coastal and river erosion, and permafrost thaw: several villages have been working for decades on relocation to a safer location from the impacts of erosion and permafrost thaw, and new recent erosion and thaw events in countless other Alaska Native villages are beginning to irreversibly change the face of each village.

The politics of climate change is not a factor in these discussions, because the climate has changed in Alaska, precluding local, state, federal and international political disputes over the issue.  If two individuals somewhere in Alaska are standing on a silty river bank, arguing the particulars of climate change politics, while the warming silty river bank is falling into the quickening river current at the tips of the individuals’ feet, what good is the argument to anyone at all?  Welcome to 2020 and welcome to a counter-impact movement addressing climate change impacts in Alaska.

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State of Alaska Climate Action Leadership Team – Draft Climate Change Policy

The State of Alaska – Climate Action Leadership Team (CALT) recently released a draft strategy and policy statement entitled “Climate Change Policy,” in regards to Alaska.

Public comments are open until June 4th, 2018.  Teleconference meetings regarding the draft policy sections will be held Monday-Friday, the week of May 21, 2018: http://notice.alaska.gov/190102; http://notice.alaska.gov/190103.

CALT will also be holding a listening session for public testimony about climate change in Alaska and the work of CALT, in Sitka, Alaska on May 30, 2018: http://notice.alaska.gov/189914.

State of Alaska Climate Action Leadership Team – Draft Strategy and Policy Analysis

The draft strategy and policy issued by the CALT can be categorized into five broad terms:

1. Improving current processes for adapting and mitigating against climate change
2. Updating currentpolicies for adapting and mitigating against climate change
3. Updating current planning for adapting and mitigating against climate change
4. Renewable and sustainable energy systems as a current and future business need
5. Oil and gas industry focused improvements, adaptations, and mitigation tax

Process Improvement

Goals  1.1

4.1

4.2

Policy Updates

Goals   1.4

3.1

5.1

5.2

Planning Updates

Goals   1.2

1.3

3.2

Business Need

Goal    2.1

2.2

2.3

Oil and Gas Industry Focus

Goals   3.3

5.3

Process Improvement

Goal 1.1 – Improve current processes for interfacing with local, municipal, and tribal governments to address climate change impacts.

Goal 4.1 – Improve current processes for land, natural resources, and wildlife management, specific to Alaska climate adaptation and mitigation needs.

Goal 4.2 – Improve current processes for technical, scientific, and social science research, specific to Alaska climate adaptation and mitigation needs.

Policy Updates

Goal 1.4 – Update current policies and policy-making bodies relevant to local, state, tribal, and federal needs to address climate change adaptation and mitigation.

Goal 3.1 – Update current policies and policy-making bodies relevant to greenhouse gas emissions and reduction regimes.

Goal 5.1 – Update current policies and policy-making bodies relevant to public and private funding of energy transitions from oil and gas to renewable and sustainable bases.

Goal 5.2 – Update current policies and policy-making bodies relevant to public and private funding of community climate adaptation and mitigation activities.

Planning Updates

Goal 1.2 – Updating current planning programs in place relevant to baseline research, data collection, and decision-making rubrics on climate change adaptation and mitigation.

Goal 1.3 – Updating current planning programs in place relevant to local, state, tribal, and federal interfacing and coordination for climate change adaptation and mitigation.

Goal 3.2 – Updating current planning programs in place for constructing and/or renovating and deferred maintenance of State of Alaska property and assets.

Business Need

Goal 2.1, 2.2, 2.3 – Characterizing a current and future business need for renewable and sustainable energy resources and systems.

Oil and Gas Industry Focus

Goal 3.3 – Industry plays an integral part in Alaska climate change adaptation and mitigation, and has opportunities to assist systemic changes.

Goal 5.3 – Industry royalties and tax revenue can include a “sin tax” on oil and gas consumer use, potentially augmenting State of Alaska public financing of climate and community adaptation and mitigation activities.

Recommendations

Goal 1.1 – switch 1.1A with 1.1B, prioritizing local self-determination over inter-governmental coordination.

Goal 1.4 – Include a subsection “1.4D” requesting all State of Alaska agencies incorporate the previous reported and published work, analysis, and recommendations of the 2007-2009 Sub-Cabinet on Climate Change.

Goal 5.1B – add “Alaska Permanent Fund” at end of sentence, suggesting an exploration of the Alaska Permanent Fund potentially providing a revenue stream for climate change adaptation and mitigation activities.

 

Mallott v Stand For Salmon – Brief and Amici Analysis

Stand for Salmon 2018 Voter Initiative

 

 

Stand for Salmon	Title
Michael Wood	Chair
Paula DeLaiarro	Treasurer
Gayla Hoseth	Co-Chair
Ryan Schryver	Deputy Treasurer
2018 Expend.	$               19,711.48

 

 

 

 

 

 

Stand for Alaska	Title
Marleanna Hall	Chair
Cheryl Fasca	Treasurer
Aaron Schutt	Co-Chair
Joey Merrick	Co-Chair
Kati Capozzi	Deputy Treasurer
April Cooley	Deputy Treasurer
Deantha Crockett	Deputy Treasurer
Kara Moriarty	Deputy Treasurer
Portia Babcock	Deputy Treasurer
Kim Reitmeier	Deputy Treasurer
Karen Matthias	Deputy Treasurer
Jaeleen Kookesh	Deputy Treasurer
2018 Expend.	$             222,632.70

 

Stand for Salmon voter initiative ballot backers are relying on the 2007 Clean Water Initiative language which passed a 2008 Alaska Supreme Court ruling stating that the 2007 initiative was not in violation of the multiple-use or Alaska State Legislature plenary powers clauses in the Alaska State Constitution.  The multiple-use clause allows for all manner of public land use and management – i.e. mining, oil and gas, sport hunting and fishing, commercial fishing, and subsistence. Each natural resource extraction project applies for a permit under the jurisdiction of both Alaska Department of Natural Resources an Alaska Department of Fish and Game.  Permitting takes into account currently existing laws, rules, and regulations disallowing wonton destruction, removal, or damage to fish and game habitat – if a development plan involves any of the above damages, the permit will not be issued by DNR and F&G.  Exceptions do exist allowing some damage, but it involves a direct trade off for reclamation of any nearby fish and game habitat relative to the proposed project.

The Stand for Salmon voter initiative ballot language proposes stricter laws, rules, and regulations surrounding any type of damage to fish and game habitat, and directly mirrors the 2007 Clean Water Initiative ballot language to skirt the multiple use clause and the clause involving the plenary power of the Alaska State Legislature to promulgate laws as the authorized branch of government to do so.  The plenary clause cannot be pre-empted by any voter initiative ballot language or measure, otherwise the proposed initiative would be disallowed, hence the utilization or mirroring of the 2007 Clean Water Initiative.

The State of Alaska Department of Law, representing the head of the Division of Elections, Lieutenant Governor Byron Mallott, argues in its brief before the Alaska Supreme Court, that the proposed ballot language may superficially pass multiple-use and plenary clauses, but the whole intent of the proposal does indeed pre-empt both clauses, and should therefore be ruled unconstitutional.  The Trustees for Alaska attorneys, representing Stand For Salmon, argue that because the proposed ballot language mirrors the 2007 Clean Water Initiative, the ballot initiative should be allowed to proceed, and if partial sections of the whole initiative are found to pre-empt the clauses, those partial sections should be severed from the text and an edited version should be allowed to proceed to the 2018 General Election ballot.  A theoretical edited version of the ballot would add laws, rules, and regulations to the existing protections of fish and game habitat already existing in the state body of law.

Amicus Curiae parties to the Alaska Supreme Court case S-16862 Mallott v Stand For Salmon include:

Bristol Bay Fishermen’s Association and Ekwok Tribal Council(for Stand for Alaska)

Alaska Oil and Gas Association(for Stand for Alaska)

Council of Alaska Producers(for Stand for Alaska)

ANCSA Regional CEOs Association(for Stand for Alaska)

Oral arguments are scheduled for 1:30PM, Thursday, April 26^th, fifth floor of the Boney Courthouse, 303 K St, Anchorage, AK 99501. Parties have 30 minutes to argue before the court, with options to yield time for responses.

The Alaska Supreme Court Justices are mostly non-partisan, and often issue rulings based on intent and readings of the law, rather than based on pre-determined political disposition.  This century there have been anywhere between 3 and 6 proposed ballot initiatives, depending on accreted versions, similar to the current pending Stand For Salmon initiative, which all failed on multiple-use clause grounds in state Superior or Supreme Courts, and did not arrive to a General Election ballot.  The Appellees Stand For Salmon/Trustees for Alaska in my opinion hold the weaker argument compared to the Appellants State Department of Law/Lt Gov Mallott, and I do not anticipate the Stand For Salmon ballot language to pass constitutional muster. The Supreme Court will expedite a written ruling by June 2018 to allow time for any potential 2018 General Election ballot requirement fulfillments.

Mallott v Stand For Salmon – Alaska Supreme Court Oral Arguments Thursday, April 26, 1:30PM

Justices Presiding:

Craig Stowers, Chief Justice

 

Justices

Daniel Winfree, Peter Maassen, Joel Bolger, Susan Carney

 

State of Alaska Assistant Attorney General

Joanne Greene, representing Alaska Division of Elections

 

Trustees For Alaska/Stand For Salmon Attorneys

Valerie Brown, Trustees for Alaska

 

Time convened: 1:30PM

 

Notes paraphrased with argument highlights only, not including direct quotes.  Please refer to 360North.org for complete video archive of oral argument footage and accurate record.

 

State of Alaska Opening Arguments

The central provisions of ballot initiative 17FHS2 are appropriations of public assets in nature, and are inseverable.  Amici Briefs are essentially affidavits proving large development projects in the state would not be allowable under the proposed laws of 17FHS2.  Also, the plain – and essential – language of 17FSH2 cannot be struck by the Court without significantly altering the essence of the initiative, therefore mooting the constitutionality of preparing a ballot vote.

 

Chief Justice Stowers– Qualify the language “adversely affected”

 

“Adversely affected” is included in 17FHS2, but following the term, legislative discretion and authority is effectively bypassed with permanent, barring language resulting in potential permitting denial of large development projects throughout the state.

 

e.g. “substantial damage” in Section 7 – permanently barring language which legislature, Department of Natural Resources, and Department of Fish and Game cannot exercise constitutional and legislative authority to allow and enforce the constitutional multiple-use clause

 

Chief Justice Stowers– Suggesting Appellant arguments will be followed, it is the Court’s duty to construe ballot initiative language in favor of the sponsors

 

Granted the constitution has a process to protect and allow sponsored ballots, there has been a three-prong test established by this Court:

 

Prong One: Unconstitutional language can be severed

Prong Two: Severability cannot result in substantially changing the spirit of the measure

Prong Three: …

 

Chief Justice Stowers interrupting:What if the Court does sever certain sections of 17FHS2?

 

The three-prong test still stands as the rubric, and 17FSH2 by interpretation cannot pass the test.

 

Appellee continuing presented argument without dialogue:

The entire permitting scheme described by the proposed sections of 17FHS2 involves “adversely affected,” “substantially damaged,” and permanent, barring language – if the Court does sever provisions involving appropriations and public assets, and if the Court does sever any permanent, barring language disallowing legislative discretion and constitutional authority of the Department of Fish and Game, the sections are so interwoven that severing one part or two parts from the whole will substantially change the essence of 17FHS2, effectively ruling the initiative unconstitutional.

 

Justice Winfree:In Kolhaus(?) [which case?] the Court issued a ruling for that particular ballot initiative to be redrafted due to being incomplete in nature.  Can 17FSH2 be redrafted, or is it too far along in the process?

 

17FSH2 has received all required certifications and successfully fulfilled all requirements leading up to Division of Elections certification, so it cannot be redrafted for the current election cycle.

 

Justice Bolger:  When do parties need a decision from the Court if 17FH2 or a severed version of it were to go out on the 2018 General Election ballot?

 

Division of Elections has a September 5, 2018 deadline for printing ballot materials, so “a few days before that.”

 

Yields time with approximately 5:45 minutes remaining.

 

Stand For Salmon Opening Arguments

The Superior Court correctly ruled 17FHS2 as constitutional, therefore the Court should follow. “Permanent damage” arguments are misconstrued by the Appellees – a tiered permit scheme proposed by 17FHS2 provisions does in fact allow “damage” to result against anadromous streams, and does not qualify as a permanent bar against any development projects around the state.  Also, any possible permit denial under 17FSH2 provisions does in fact not preclude legislative discretion and constitutional authority of the Department of Fish and Game.

 

Chief Justice Stowers: Arguments have been made by the Appellee and Amici that the language and provisions of 17FSH2 would in fact permanently ban any potential large project anywhere in the state.

 

The permitting tier scheme of the 17FSH2 provisions comprehensively encompass levels of damage from minor to major, and therefore is not permanently barring or banning projects forthwith; there are allowable thresholds of damage, and only very certain damages are disallowed and unlawful per 17FSH2 provisions.

 

Justice Bolger: Referring to the Alaska Fisheriescase (?), would 17FSH2 ban currently permitted projects?

 

There is a grandfather clause, which provides currently permitted projects to continue operations, even if unlawful in the case of 17FHS2 passing in the majority.

 

Chief Justice Stowers: Does 17FSH preclude legislative discretion, or merely narrow legislative discretion?

 

17FSH2 mirrors the language of 07WTR3, which did pass constitutional muster and was presented on the 2008 General Election ballot.  17FSH2 is a comprehensive vetting process for permitting development activities involving anadromous fish waters, and deals with varied levels of “potential harm,” and considering vagueness of vetting process and varied levels as described of potential harm, there is in fact a constitutional framework for legislative discretion to finalize determination of “adversely affected,” “potential harm,” and “substantially damaged.”

 

Chief Justice Stowers: Going back to the grandfather clause – what if there is an approved exploration permit, but not a final project permit? Would the work of an exploration permit go to waste if 17FSH2 passes and a final project permit is unlawful?

 

A conjectural question with no facts – no firm answer readily available.

 

Justice: expand on “harm,” or “resulting harm,” and what about the provisions barring any future off-site mitigation, reclamation, and/or rehabilitation?

 

Mitigation, reclamation, and rehabilitation are essentially “enabling statutes” and is a proponent of destructive development practices

 

Justice: What if a “major permit” and “substantial damage” provisions are found to be unconstitutional?  Are those provisions severable?

 

Yes, they are severable, but the Stand For Salmon group would like the whole initiative to be ruled constitutional and presented on the 2018 General Election ballot.

 

Appellee continuing argument without dialogue:

17FSH2 also includes new public process and participation in the permitting process of development, adds enforcement mechanisms against wonton and unlawful damage, and further expands Department of Fish and Game permitting jurisdiction, particularly adding an assumption that most waterways and stream are anadromous, which is currently not in statute.  All of these additional provisions do not fall under appropriations of public assets interpretation and are therefore severable and able to stand on a ballot question.

 

Justice Winfree: Let’s refer to Section 2, B(1-8), involving habitat elements and term definitions which are important to fish. How is the Department of Fish and Game to consider these proposed sections?  Mandatory considerations?  Advisory considerations?  Guidelines? What type of standards are [these]? What about “proper protection”? Is that prescriptive guidance?

 

“Proper protection” can be considered as a “trigger” under the tiered permitting system, indicating a higher tiered permitting regime to better protect anadromous water ways.

 

Justice Winfree:What about the term “maintain”?  Is “maintain” prescriptive or mandatory?

 

“Maintain” is a carry-over from current statute.

 

Chief Justice Stowers: What about the language referring to the Commissioner of Fish and Game – “shall ensure” by “maintaining”?

 

“Shall ensure” and “maintaining” properly fall under Commissioner discretion and is deliberately kept vague to allow for that constitutional discretion to stand.

 

Chief Justice Stowers: What about “permit conditions and measures” under Section 8?  What about the particular line “notwithstanding [subsection] B, a permit may not be granted.”

 

The language is concrete in that a permit may or may not be granted under the proposed tiered permitting system, and this is in fact not a public assets appropriation test.

 

Chief Justice Stowers continued: What if the Court finds permanently barring language in the initiative proposals, as to what will and what will not be allowable development activites?

 

The Department of Fish and Game will continue to hold discretionary authority under the proposed tiered permitting system, and therefore passes the constitutionality test.

 

Chief Justice Stowers continued: What about the following terms and barring language: “Substantial damage,” “adversely affected,” “recover and restore,” and “reasonable period”?

 

The terms are kept vague in the 17FSH2 language provisions, correctly allowing for Department of Fish and Game discretionary authority to make rules and regulations determining allowable and disallowed development activities based on the above terms.

 

Appellee sum:

We respectfully request the Court hold interpretations of public appropriations and constitutionality questions to a narrow focus, and affirm the Superior Court ruling.

 

Appellant Rebuttal (allowed 7 minutes to rebut by the Chief Justice):

The Department of Fish and Game cannot get around “significantly damaged” habitat language, therefore precluding legislative discretion and constitutional authority, ruling 17FSH2 moot and inseverable.  We respectfully request the Court to reverse the Superior Court ruling and find 17FSH2 unconstitutional.

 

Adjourned.

Climate Action for Alaska Leadership Team – Alaska Governor’s Office Update March 2018

From C. Nikoosh Carlo, Senior Advisor, Climate and Arctic Policy, Office of the Governor, State of Alaska

Thank you for your interest in this Administration’s efforts in support of our Alaska Climate Change Strategy, including development of a climate action plan. This policy initiative is an exciting opportunity for Alaskans to develop a range of solutions in response to climate change that help make wise use of our resources, provide for the health and welfare of Alaskans today, and meet our responsibilities to future generations of Alaskans. Input from Alaskans like you will help assess impacts of potential climate actions and ensure that our climate solutions reflect the diverse needs, interests, and expertise around the state.

I am pleased to share an update on the collective work of the Administration’s Cabinet Climate Team (CCT) and the Climate Action for Alaska Leadership Team (CALT).

Governor’s Climate Change Webpage

The new climate change webpage, part of the Governor’s website, is accessible at climatechange.gov.alaska.gov. The page provides links and summaries of state agency, University of Alaska, and AEA efforts on climate change, as well as information about the CALT, including CALT meeting summaries, draft future work plans and schedule of upcoming meetings. The Institute of the North serves as the Secretariat for the CALT and information is also posted to https://institutenorth.org/project/alaska-climate-leadership/.

Climate Leadership Team

The Climate Action for Alaska Leadership Team held its inaugural meeting on December 18, 2017, in Anchorage. Team members identified near-team and long-term (2030 and 2050) goals and visions for Alaska’s climate policy, and developed an initial work plan for 2018. As stated in the Administrative Order, the leadership team has a September 2018 deadline to present its recommended climate action plan to the Governor.

CALT members will participate in one or both working groups on mitigation and adaptation. The Mitigation Working Group will focus on growing renewable energy, energy efficiency, and community and commercial emissions reductions. The Adaptation Working Group will focus on strengthening social, environmental, and economic resilience in the context of climate change. As they develop policy recommendations, both groups will meet regularly, engage with stakeholder groups and pursue partnerships, identity gaps and potential research.

Both working groups met via teleconference – and in-person for those members who are based in Anchorage and Juneau – on Tuesday, January 30 (Adaptation) and Wednesday, January 31 (Mitigation) and will continue to meet approximately the fourth week of each month. The agenda for both meetings was to finalize the scope and operations of each working group and to continue discussions of recommended climate actions. Past and future meetings will continue to be open to the public as observers; details of upcoming meetings will be posted via the public notice system.

Agency Highlights

Recently both the Department of Health and Social Services (DHSS) and the Department of Environmental Conservation (DEC) released reports that support agencies’ and the climate team’s work to identify climate change impacts of concern and prioritize mitigation and adaptation actions.

On January 8, the DHSS Section of Epidemiology released the “Assessment of the Potential Health Impacts of Climate Change in Alaska”, which outlines how the health of Alaskans could be affected by climate change. The report highlights physical and mental health challenges that Alaskans are currently experiencing, as well as those that could be expected in the future due to warming temperatures and changing weather patterns related to climate change. The report also includes specific adaptation strategies, including support for community mental health programs and developing community response plans for wildfires. The report can be found at http://www.epi.alaska.gov/bulletins/docs/rr2018_01.pdf.

On January 30, DEC release an updated Alaska Greenhouse Gas Emissions Inventory Report, which describes and quantified human-caused sources of greenhouse gas (GHG) emissions occurring between 1990 and 2015 from Alaska operations and facilities. The updated inventory builds on earlier reports issued by DEC (2007, 2010) and focuses primarily on GHG emissions from seven economic sectors in Alaska: industrial, transportation, residential and commercial, electrical generation, industrial processes, waste, and agriculture. The report also includes data on emissions from wildfires and emissions reservoirs, also known as emission sinks, which in most years covered by the report have trapped and stored carbon from the atmosphere. The report can be found at http://dec.alaska.gov/air/anpms/projects-reports/greenhouse-gas-inventory.

2018 is off to a productive start. Throughout the year, we will strive to provide updates via e-mail on the work of the leadership team and highlight any upcoming opportunities for public input. There is a public comment form available at https://institutenorth.org/engage/project-portfolio/public-input/. Thank you again for your interest in this Administration’s efforts on climate change. Please feel free to reach out directly to me (Nikoosh.Carlo@alaska.gov) or to the CALT Secretariat (nandreassen@institutenorth.org) with questions or comments.

In Response to Fairbanks Daily Newsminer article on Alaska Land Into Trust issue: “Alaska Native lands ruling stirs deep concern”

Link to article here.  ADN op-ed linked here.

The interlocutor for the “con” side of the reporter’s story on the latest land into trust development, stemming from the DC Court of Appeals decision handed down last week in Akiachak v. Salazar, is a non-Native individual who is strongly interested in halting or stalling “federal overreach” on public lands in Alaska through the state instrumentality Citizens’ Advisory Commission on Federal Areas (CACFA). The individual as reported took it upon herself to proscribe “what is best” for Alaska Natives who have proudly resided both within the state and in some cases across international boundaries for millennia.

For the “pro” side of the argument, the reporter sought the Alaska Native Claims Settlement Act (ANCSA) non-profit advocacy organization Alaska Federation of Natives (AFN). While AFN is technically made up of individually enrolled tribal members who also happen to be shareholders of ANCSA regional and village corporations, the primary concern of AFN is to promote the interests of the for-profit ANCSA regional corporations based in the state. Can the President of AFN speak for the specific interests of each tribal government in Alaska? Much less can the press secretary of AFN speak for the specific interests each tribal government in Alaska? Rightly, no, which is why no statement was forthcoming from AFN officials for the purposes of the reporter’s story.

The tribes themselves can only speak to their own interests, and the three tribal government appellees of Akiachak v. Salazar know their reasons for fighting the federal and state governments for over two decades to apply for small parcels of land to be held in federal trust. Since each tribal government is named in the court reporter summary attached to the case, why did the reporter not attempt to contact their offices, and if the reporter could not reach any tribal officials for comment, why was it not mentioned in the story reaching a state-wide audience?

Already members of the Alaska Outdoor Council and former AFN General Counsel Donald Craig Mitchell have been providing landslide logic and doomsday scenarios knocking on our very doors, ranging from between the “Balkanization” of natural resources and lands management within state boundaries, or that “Indian casinos” are going to pop up in quick order from Barrow to Atka and Ketchikan and everywhere in between, now that tribes in the state at last have a low-impact channel to become land-owners and managers of land, in small parcels that cannot be under threat of willing or hostile sale due to the federal trust status. The Secretary of Interior and the Assistant Secretary of the Bureau of Indian Affairs will certainly not accept land into trust applications willy nilly regardless of any larger consequences beyond the applicant tribes, per the BIA Land Into Trust handbook, recently pointed out by op-ed contributor and Canadian Métis UAF adjunct professor of federal Indian and ANCSA law Jenny Bell Jones.

…

There have been instances of ANCSA village corporations transferring all or some of their lands to tribal governments – communities made up of corresponding shareholders and tribal members – which required a super-majority board of directors’ vote and super-majority shareholders’ vote following broad consensus amongst their communities. This should make it clear not every ANCSA regional and village corporation are going to transfer large swaths of their lands to their corresponding tribal governments as part of a land into trust application, which would be two very different and unrelated processes to begin with.

I hope the next land into trust story from the Fairbanks Daily Newsminer will feature due diligence from one or more of their reporters, and not feature a one-sided argument from a non-Native individual on the negative aspects of diverse Alaska Native tribal government applications for land into trust.

Governor of Alaska and the Tribal Advisory Council

On October 14th, 2015 at the Egan Center in Anchorage, during a National Congress of American Indians and Alaska Federation of Natives co-hosted meeting of tribal leaders and Governor Walker and his Cabinet members, the governor signed Administrative Order No. 277.  AO277 created the Governor’s Tribal Advisory Council, or GTAC, where 11 tribal leaders from around the state will be nominated and selected amongst the sovereign tribal governments to sit for three years and to advise the Governor of Alaska on 11 different but inter-related Alaska Native issues:

1. Education

2. Healthcare

3. Subsistence

4. Energy

5. Public safety and justice

6. Wildlife and fisheries

7. Economic development

8. Housing

9. Transportation

10. Language

11. Culture

Not since Governor Tony Knowles has such high-level acknowledgment been achieved between the State of Alaska and the 266 federally-recognized tribal governments located within the state, and before that not since ANCSA was passed in 1971 has such a high-profile been designated to Alaska Natives by the state.  Governor Knowles made a misstep, however, in the year 2000 with the “Millennium Agreement,” where the agreement stipulating a state-tribal relationship required an “opt-in” clause for tribes to sign the agreement.  The “opt-in” clause waived sovereign immunity in some respects, automatically creating an unequal partnership between the state and any tribe that signed the agreement.  As a result, not more than 50 federally-recognized tribal governments signed the agreement, and the subsequent “state-tribal relationship” spelled out in the agreement halted entirely.

Under the guise of AO277, there is no waiver or any other reservation requested or required by the state for tribal governments to nominate seats; 11 tribal leaders will have direct access to the Governor’s office and to the various departments under his or her charge, with direction to advise on the 11 topics numbered above.  For too long has the State of Alaska literally fought tooth and nail politically, policy-wise, and in the courts tribal governments around the state.  A few lucky tribal governments have successfully applied for and received “Capital Improvement Project” monies from the legislative Capital budget process, but with the literal drain of funds for FY16 and beyond due to the crash in crude oil prices, options for tribal government participation in the state government apparatus looked minimal.  With GTAC in the opening stages, there is much potential for years of wrongs to be righted in terms of state-tribal relations, and therefore improving tribal governance and increasing governmental capacity in the most remote areas and regions of the state.

The Politics of Dispossession – Alaska Context

For the past 10 years I have closely read federal Indian law, from the Supreme Court “Marshall Trilogy” cases to the latest amendments made to the Alaska Native Claims Settlement Act of 1971.  I have even compared Aboriginal law and policies between Canada, New Zealand, and Australia.  There are many similarities between all of the former British colonies, or the indigenous peoples’ lands occupied by Euro-Americans.  The League of Nations, of which the Covenant was signed and entered into force in 1920, and the modern-day version United Nations, organized in 1945, would not recognize the unique rights of indigenous peoples across the globe until 2007, when the UN Declaration on the Rights of Indigenous Peoples was agreed to by the UN General Assembly.  Even then, the declaration is not legally-binding, and only provides guidelines or a framework for nation-states to “begin on the right foot” recognizing indigenous peoples’ relations within fluid laws and policies.  I say “fluid,” because the aim of many indigenous peoples – around the globe, not just in Alaska, not just in Canada, New Zealand, Australia and many countries elsewhere – is to further improve upon the accommodation of indigenous peoples within Western legal regimes.  In this modern day and age, should the Marshall Trilogy really be the pillar of US federal Indian law?  Should Native Americans across the US really allow themselves to continue to be characterized by racial and discriminatory stereotypes, like savages, hunter-gatherers, and plain uncivilized?

Simultaneously, the bilateral Treaty of Cession of 1867 between the US and the Russian Crown made a distinction between “civilized” and “uncivilized” Alaska Natives.  According to ourselves, as Alaska Natives, we were never less than civilized.  The Treaty of Cession also included brief mention of “creoles,” as a social and cultural class.  In the fall of 2006 I attended a doctoral dissertation lecture in anthropology by a young Russian lady from St. Petersburg, and her work only included those of “full-blooded” Russians in what is sometimes labelled Russian America.  After she gave her practiced lecture, I raised my hand and asked about Russian creoles or mix-bloods.  She commented it was an interesting question, and replied “I haven’t considered that.”  How can one spend an academic career examining Russian America history and not consider the implications of blood, social, and cultural creoles?  My paternal ancestral line descends from such a lineage.  I had never met nor heard of the young lady prior to her lecture, but how could I not be personally offended by the occlusion of Alaska Natives from such an in-depth, broad historical academic treatment of government and Russian America Company records?  I am still to this day nine years later incredulous and dumbfounded.

All of my grandparents, whom none were non-Native, were born before 1936, the year the Indian Reorganization Act was implemented in Alaska, creating “tribal governments” which the federal government would recognize and treat with on a government-to-government basis.  I imagine all of my grandparents were enrolled into one tribal government or another, even though they all moved from seasonal camp to seasonal camp and did not stay in one place for long.  I also imagine Bureau of Indian Affairs “Indian agents” also pushed on their parents, whom six out of eight were Koyukon Athabascan, to apply for Indian allotments from the 1898 congressional Dawes Act, where individual Native Americans could apply for and receive up to 140 acres of land within their home regions.  From these applications, my four grandparents inherited acreage and so too my parents.  I believe my father inherited a parceled allotment in Galena, and my mother her own parceled allotment in Tanana.  In 2008 I went to Tanana for the first time in twelve years since my grandmother Maudrey’s memorial potlatch in 1996.  I walked around and reminisced and visited with family friends whom were long lost to me, but they knew who I was and never left Tanana for a single day as far as they were concerned.  One of the elders reminded me to look into allotments my grandmother’s family had held and inherited over the years.  Apparently the deeds to several parcels were not accounted for, down the Yukon River from town, as she explained to me.  My cousin and I went for a boat ride down that way to take a look around for animals and stopped at grandma’s old camp to check it out.  Maybe that is where parcels are held in name, I’m not really sure.  I haven’t had the time, nor the expertise, to look into the record, but I imagine from time to time, when I get inheritance papers and identity verification and other such records on my desk, as is temporally required for all of us humans, I will have to look into the record and work with many others to set it straight.  It would only serve our ascendants right.

Next comes the Alaska Native Claims Settlement Act, which dates to my parents’ generation.  In 1971 only my grandmothers survived with their children.  My two younger brothers and I grew up with twenty-one aunts and uncles and countless first cousins.  I have decided I am nothing without my first cousins in the same town, Juneau, where I currently reside.  I tell people, besides law or graduate school, this is the first and only time I will ever live away from my first cousins.  I have decided we are that important to each other, in so many respects, for identity and support as all-too-brief examples.  Rewinding to ANCSA, my grandmothers and my parents and their siblings, in addition to tribal enrollment – my father in Louden Tribal Council and and mother in Tanana Tribal Council, all enrolled into Doyon, Inc, the regional corporation for Interior Athabascan peoples.  My dad and his siblings were enrolled into Gana-A ‘Yoo, Ltd, the village corporation for Galena, and my mother and her siblings enrolled into Tozitna, Ltd, the village corporation for Tanana.  Concurrently, my mother’s maternal uncle Morris Thompson was the Commissioner of the Bureau of Indian Affairs in Washington, D.C.  Governor of Alaska and soon-after Department of Interior Secretary Wally Hickel and US Senator Ted Stevens at the time had a hand in appointing him to the national position of working with federally recognized tribal governments.  BIA was the federal agency that organized and footed the bill for public hearings on ANCSA and community referenda held across the State of Alaska and even in some Northwest states like Washington, Oregon, and California for Alaska Natives living out of state.  “Uncle Big” would then go on to lead Doyon, Ltd and sit in various statewide leadership positions like the University of Alaska Board of Regents.  I remember him well from my childhood, and would very much appreciate the benefit of his views and insights to this day on state and Native politics, as do many others around the state I’m sure.  I do not hear the label “tribal shareholders” very often, but it does ring a bell: it denotes the dual-recognition Alaska Natives receive from the federal and state governments, and also a sense of unity between ANCSA corporations and tribal governments, which in reality is not always the case.  Either way, many Alaska Natives are both tribal members and ANCSA corporation shareholders, and we all have the right to vote in either forms of elected leadership of our peoples.

Continuing on to my personal experiences and engagement in federal Indian laws and policies, I have worked for Doyon Drilling, Inc, a subsidiary of Doyon, Ltd, and also for the Tanana Chiefs Conference wildland firefighting crew.  Because I am a shareholder of Doyon, I receive a preference for hire in business enterprise like Doyon Drilling, Inc.  The Tanana Tribal Council is a consortia member of the Tanana Chiefs Conference, and since I am an enrolled member of the Tanana Tribal Council, I receive a “Native preference” for hire under the Indian Self-Determination and Education Assistance Act of 1975, where tribal members are preferential ahead of non-Natives for hire in tribal governments and federal government agencies like BIA.  Uncle Big coordinated efforts on behalf of tribal governments around the country during the Congressional push for the ISDEAA, when he was BIA Commissioner.  I have worked for many other businesses around the state, and with many good people Native and non-Native, but the qualities of working for and with my fellow Native peoples is invaluable.  How easy it would have been for me as an impressionable young-twenty-something kid in the City and Municipality of Anchorage to make it in the non-Native world, not at all cognizant of “Native pride” or a sense of family history going back further – millennia – than “Western expansion.”  It sounds beyond cheesy, but if the preferential-hire programs did not exist, I would not be where I am today in my career, and prideful as I am of my family history.  At 21 years old going to work for Doyon Drilling put me next to people who have known my family for generations, and I now know and enjoy friendship with many of those people, even though I had grown up in Anchorage.  My first fire season in 2010 I was a member of an all Native squad of five members.  I never enjoyed working 16 hour days for two weeks straight than that experience with those four guys from a different region than I.  I can go to their villages at any given time and their friends and family would treat me as one of their own.

Recently, I was employed by a village corporation to process share transfers from the deceased to their named or by probate inheritors of stock. In the last decade the board of the village corporation decided on transferring whole shares to inheritors, to keep shares from becoming highly fractionated. Some shareholders hold stock up to three decimals, or essentially irrational amounts of shares, not to be equally divided until the shares return to the corporation itself. I was able to tabulate which classes of shares belonged to different age groups, and the board appreciated the work. We’re hoping the board can draft up new policies like creating a new class of shares for the “afterborns,” or descendants of original shareholders born after December 18^th, 1971. Even with new enrollment of afterborns, much like fractionated Indian allotments from the 1898 Dawes Act, ANCSA shares are due to become just as complicated as the generations of shareholders age and new enrollees come into the fold. What is especially difficult is for an aged shareholder naming inheritors of their ANCSA stock, where some descendants might be favored and others left out. These are paradoxes concerning individual property vs. collective property.

This is how deep and important and vital Native identities are.  I carry around with me at all times my tribal enrollment card.  Because of the ID card, I can freely use Southeast Alaska Region Health Consortium healthcare services, an Indian Health Service “638” Self-Determination compacting and contracting consortia of Southeast Alaska tribes.  Despite all of this success, what is still at stake – and this is in closing – is subsistence.  ANCSA “extinguished” the exclusive subsistence, hunting and gathering rights of Alaska Natives.  It is our way of life, is in no way an understatement.  Federal lands, fish, and game management agencies recognize rural residency for subsistence harvesting, unless exclusive rights are explicit like the Marine Mammal Protection Act and Alaska Native rights to hunt seals and waterfowl.  State lands, fish, and game management, however, recognize no exclusive Alaska Native right to hunt and gather.  Some say state agency managers even work to stall and obstruct federal agency management of subsistence harvesting by Alaska Natives.  When Alaska Natives participate in state agency decision-making fora, we are forced to explain our subsistence practices to sport and commercial fisherman, who often view these practices as “poor,” or “wanting.”  Our way of life has never been poor or wanting, nor do we wish to take animals simply for sport.  The best intersection is commercial fishing between Native and non-Native.  The State of Alaska has one of the longest coast-lines in the world, and all of the regions practice commercial fishing in one form or another.  Even so, local fisherman need protections like the state “limited entry” program, where locals receive and enjoy exclusive commercial fishing rights to a region, and the federal Community Development Quota program, much like the state’s limited entry, but for three miles offshore and beyond to 225 miles in the US Exclusive Economic Zone.  The State of Alaska Board of Game, which manages big game hunting like moose, in the past three decades only allowed for exclusive Alaska Native subsistence harvesting for memorial potlatches in the Interior.  The State of Alaska Board of Fish only has one designated “subsistence” expert seat out of seven total.  The same interests carry their weight in the Federal Subsistence Board to integrate as much as possible state management laws and policies for federal lands like National Parks and Wildlife Refuges around the state.  The political, social, and cultural voices and participation of Alaska Natives have almost been reduced to nothing in the modern lands, fish, and wildlife management in the State of Alaska.  I think about this, a lot, just about on a daily basis.  I can go before the boards and state similarities between the US, Canada, New Zealand, and Australia for subsistence harvesting, but I would only be patted on the head and be sent on my way.  There has to be a core, fundamental shift in how these boards operate and accommodate Alaska Native subsistence harvesting practices.  Maybe, just maybe, the unreachable ideological heights of the UN Declaration on the Rights of Indigenous Peoples can find some form of applicability in the State of Alaska when it comes to Alaska Native subsistence practices.  The guidelines have to come from somewhere.