Reflections on the Water: Anchorage and the YRITWC
Dana is one of two CLA interns placed in Anchorage Alaska for the summer with CLA's partner, the Yukon Inter-Tribal Watershed Council. Dana is a student at the University of Calgary and will begin her second year at the Faculty of Law this September.As a CLA intern this summer at the Yukon River Inter-Tribal Watershed Council (YRITWC) in Anchorage, Alaska I have been granted the special privilege of learning the law in a neighbouring jurisdiction. Internships abroad aren’t just about the work you’re doing; in this day and age, it would be possible to perform most of my research remotely. But living in Alaska these past two months has given me a sense of the place and its history. In particular, the population rush for resources, the latest and greatest of these being oil, has affected the water rights of Alaska Natives - and that is what I am studying at YRITWC this summer.
Denali National Park is composed of 6 million acres of wilderness at the heart of the Yukon River Watershed (Photo courtesy of Dana Martin)
Alaska became a state just 54 years ago, in 1959, though its rugged history begins well before the 1700s, when the network of Native tribes first came into contact with Russian fur traders.When Alaska was still a young state in 1968, oil was struck at Prudhoe Bay, on the north slope of the Brooks Mountain Range. Beyond mountains that had barely been charted, lay the biggest strike in North America, among the 20 largest in the world, one that produced 1.5 million barrels a day at its peak from 1979-89.Production would not be possible without a pipeline running 789 miles from Prudhoe Bay to Valdez, a small town in Prince William Sound on Alaska’s southern shore. However, to construct the pipeline the State of Alaska needed to settle Native land claims. In 1968, Alaska Natives contested one hundred percent of total state land in claims. In order to provide certainty for the pipeline, those claims were settled in one fell swoop in 1971, when Congress passed ANCSA.The Alaska Native Claims Settlement Act (ANCSA) created a unique situation for Alaska Natives. They traded aboriginal title for a settlement of 925 million dollars, and 44 million acres – just over a tenth of Alaska’s total area.
The port of Seward, on Resurrection Bay, is home to a robust fishing and tourism economy as well as the Seward Coal Terminal (Photo courtesy of Dana Martin)
While ANCSA provided for the corporate structure of Alaska Natives’ settlement, it did not address any aspects of governance. Over the years, courts at the state and federal level have adjudicated the matter repeatedly. The outcome is that Alaska Natives retain tribal sovereignty but their sovereignty is limited to authority over members, mostly within the realm of family law. Land-based sovereignty – the ability to charge taxes, for instance, or to make decisions about resource development – was relinquished under ANCSA. Their lands are subject to state law just like any other privately owned land in the state. Furthermore, ANCSA limited their ability to continue subsistence fishing and hunting practises integral to their way of life.Congress tried to address some of these issues by passing the Alaska National Interest Lands Conservation Act (ANILCA), in 1980. ANILCA’s attempt to clarify federal land designations failed to satisfy Alaska Natives, who felt it unlawfully excluded navigable waters and subsistence fishing from its protection. They petitioned the federal government for their inclusion. As a result, in 1999, a set of rules emerged governing the federal lands on which reserved water rights exist. Since then, a series of cases have been brought before the courts. The plaintiff Katie John (arguing that the 1999 rules were written too narrowly), the State of Alaska (arguing the rules were too broad), and the Federal Government, have gone back to court on the matter a second time. The final oral arguments were heard in July of 2011. A second case, Katie John II was filed just over a week ago, on July 12th, 2013, and so far, seems to uphold the rulings of the lower courts affirming the 1999 rules in a restricted view of what federally reserved water rights mean.
The author in her mid-summer coat, Kenai Peninsula, Alaska (Photo courtesy of Dana Martin)
This summer, I’m working with a coalition of 70 Tribes and First Nations living on the Yukon River Watershed on both sides of the border. We’re trying to figure out how Alaska Natives can enter into co-management agreements with the federal or state governments in order to better manage the water. Water makes possible the only way of life they know. The river serves the same purpose as the faucet, the grocery store, and the road to your neighbours does in the city. That’s subsistence, in a nutshell. It’s an uphill battle fighting for these rights. Since litigation is an expensive and time-consuming last resort, we aim to use the YRITWC’s extensive scientific data gathered in the field as a leverage point for authority on the watershed. That, combined with the inherent authority of the Tribes, may one day grant them agency as decision-makers instead of stakeholders.I have had the opportunity to make the acquaintance of many Alaskans. It used to be that residents who lasted a winter during the Gold Rush earned the nickname “sourdough”, but today you have to stay much of your life to earn that name. Most arrivals are fresh-faced, like me. Others came up here for an internship months or decades ago and were drawn in to stay by the state’s wild charm.I don’t know that that will happen to me, but I do know that Alaska, and my time with the YRITWC will be a memorable chapter in my life, and I’m grateful for what I’ve learned about the place, its history, its politics, and above all, its people.The University of Alaska Anchorage has a terrific online resource about Alaska Natives; it is located here.