Alaska Gov. Sarah Palin, avid "aerial" hunter and lifetime NRA member, has opposed native subsistence rights ever since she came into office. Tuesday, the 9th Circuit Court of Appeals said "Thanks but no thanks" to her ongoing efforts to ban indigenous moose harvest.
Federal trust responsibility for Native people meant that the Federal Subsistence Management program followed all appropriate procedures in its ruling for moose harvest by the Cheesh-na Athabaskans of the tiny inland village of Cristochina.
"Palin's attack here has targeted (among others) the Ahtna Indian people in Chistochina; and although the federal court last year rejected this challenge, too, Palin has refused to lay down her arms," wrote Kendall-Miller and her husband, Lloyd Miller, another prominent Native rights attorney.
The State's challenge was rejected on straightforward legal grounds. It seems unlikely that the Supreme Court will hear a further appeal should Palin take time out from the campaign trail to pursue it. This decision will probably stand. With more GOP judges appointed? Perhaps not...
I never thought I'd write a Palin diary. But this Tuesday's decision on her attempt to block Native Alaskan subsistence moose hunting hasn't been covered here, and it's too rife with contrast and irony to pass up. It also contains a reminder of one of the most important reasons that an Obama victory is essential: The future of our courts. We can't afford anymore Alito or Roberts appointments; nor anymore of those lifetime appointments of wingnuts to lower courts either.
Gov. Sarah Palin of Alaska says her favorite food is mooseburgers. But when it comes to native subsistence hunting, she's not much of an enthusiast. Traditional Alaska Native subsistence, especially inland where marine mammals aren't in the mix, values the moose highly - for food and other uses. Wasilla (pop. > 9780, 863.9$ white), Palin’s home town, in addition to being the start point for the famous Iditarod dogsled race (until recently when climate change has moved it northward and inland due to inadequate snow) has grown rapidly in recent years as a bedroom commuter suburb for Anchorage. It has a WalMart and several other venues that sell groceries. Median income is $51k. Wasilla has two zip codes. The tiny village of Cristochina, (population 86, median income $25,500)? Not so much.
Chistochina is located at Mile 32.7 on the Tok Cut-off Road near the base of Mount Sanford and was originally an Athabascan fish camp along the Copper River. Later, during the Gold Rush to the Eagle area, the miners at Chistochina made a trail from Valdez to Eagle. A lodge was constructed to provide services to travelers heading to and from the gold fields. Prospectors also mined in the hills around the Chistochina area and found gold along the Upper Chistochina River and it's runoff creeks. Chistochina Lodge has since burned down, but the small community hosts a cafe, bar, campground, bed and breakfast and gas station.
The inhabitants are about 60 percent Athabascan and hunting, trapping, berry picking, and subsistence fishing from the Copper River are important activities for many of the residents. Traditions have been passed down through time and Chistochina still boasts skilled skin sewers who make beautiful beaded moccasins, hats, and gloves.
Wasilla & Cristochina have yellow highlighting added on this map
More on Cristochina:
Subsistence hunting, fishing, trapping and gathering are the basis of the village's economy. Most cash employment is seasonal.
Almost half of residences have individual wells; the remainder haul treated water from the Community Center. Some residents use individual septic tanks, but the majority have outhouses or pit privies. About 40% of homes are completely plumbed. The local landfill is closed pending clean-up and relocation to a new site. The community needs a washeteria and a new landfill. Electricity is provided out of Tok.
The native people used normal channels for the rulemaking decision on their subsistence moose hunt. (The Cristochina girl on the left is cleaning a moose stomach in a traditional way):
The Federal Subsistence Management Program is a multi-agency effort to provide the opportunity for a subsistence way of life by rural Alaskans on federal public lands and waters while maintaining healthy populations of fish and wildlife. Subsistence fishing and hunting provide a large share of the food consumed in rural Alaska. The state's rural residents harvest about 22,000 tons of wild foods each year - an average of 375 pounds per person. Fish makes up about 60 percent of this harvest statewide. Nowhere else in the United States is there such a heavy reliance upon wild foods.
This dependence on wild resources is both cultural, social and economic. Alaska's indigenous inhabitants have relied upon the traditional harvest of wild foods for thousands of years and have passed this way of life, its culture, and values down through generations. Subsistence has also become important to many non-Native Alaskans, particularly in rural Alaska.
It was a 2005 ruling by the FSMP that then-Governor Frank Murkowski’s administration filed suit to overturn. They lost that case in 2006, but Sarah Palin did not accept that ruling. Her Administration appealed against the various Federal Agencies involved. The Athabaskans were represented by the Native American Rights Fund:
On June 10, 2006 the State of Alaska brought suit challenging the Federal Subsistence Boards customary and traditional (C&T) use finding for subsistence uses of moose by members of the Chistochina Tribe. A positive C&T finding entitles residents for a specific community to the subsistence priority under Title VIII of the Alaska National Interest Lands Conservation Act. Chistochina was granted intervention in this action to protect its C&T status for moose. On June 27, 2007 in State v. Demientieff, the district court entered an Order in favor of defendant United States and Chistochina against the State and upholding the Federal Subsistence Boards customary and traditional use finding for subsistence uses of moose by members of the Chistochina Tribe.
That’s where this week’s ruling came in. The 9th Circuit found that Palin’s (et al.) appeal was without merit (full decision, PDF). The basis of the decision goes back to the Alaska National Interest Lands Conservation Act (ANLICA):
The Congress enacted ANLICA to further two ends. The first is:
to preserve unrivaled sceneic and gelogical values associated with natural landscapes; to provide for the maintenance of sound populations of, and habitat for, wildlife species of inestimable value to the citizens of Alaska and the Nation ...; to preserve in their natural state exstensive unaltered arctic tundra, boreal forest, and coastal rainforest ecosystems; to protect the resources related to subsistence needs...
The second, in order though not in priority is "to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so."
In particular, Title VII of ANLICA:
Congress sought to protect the subsistence way of life in the face of Alaska’s growing population and the resultant pressure on fish and wildlife populations, and created a subsistence management and use program. Id. Sec. 3111(3). The program grants a priority to subsistence use of resources, providing: "the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes"
When talking about possible grounds for overturning a C&T determination, we get to one of the many traits Palin shares with the Bush Administration - complete disregard of science. And science and historical evidence is what the Court found the disputed ruling had been based on. In particular, "We will find an agency action arbitrary and capricious if:"
"the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise"
The decision’s discussion opens with this smackdown:
While Alaska argues vociferously that the FSB’s fact finding was not supported by substantial evidence, the disagreements between the parties are ultimately legal, and not factual, in nature.
I suspect that contempt for the federal role in protecting resources, and its trust responsibility for native peoples is at the heart of that "Alaska Independence Party" movement. The decision notes, rather harshly:
Rather, the interpretation appears to be purely a litigation position, developed during the course of the present case. As such, we owe the interpretation no deference.
And so, the Courts are not completely lost. Yet.
Palin’s a big advocate of wolf-hunting, even having tried to initiate a program to pay a bounty for every wolf killed in Alaska. Not being a deep thinker, she missed the lesson that removing top predators doesn’t make for more game for hunters. The balance between grazing animals and their forage is not a trivial matter. Aldo Leopold figured it out nearly a century ago, and describes it as well as anyone ever has in his essay Thinking like a Mountain (a short masterpiece, worth reading - and re-reading - in full):
I now suspect that just as a deer herd lives in mortal fear of its wolves, so does a mountain live in mortal fear of its deer. And perhaps with better cause, for while a buck pulled down by wolves can be replaced in two or three years, a range pulled down by too many deer may fail of replacement in as many decades. So also with cows. The cowman who cleans his range of wolves does not realize that he is taking over the wolf's job of trimming the herd to fit the range. He has not learned to think like a mountain. Hence we have dustbowls, and rivers washing the future into the sea.
We all strive for safety, prosperity, comfort, long life, and dullness. The deer strives with his supple legs, the cowman with trap and poison, the statesman with pen, the most of us with machines, votes, and dollars, but it all comes to the same thing: peace in our time. A measure of success in this is all well enough, and perhaps is a requisite to objective thinking, but too much safety seems to yield only danger in the long run. Perhaps this is behind Thoreau's dictum: In wildness is the salvation of the world. Perhaps this is the hidden meaning in the howl of the wolf, long known among mountains, but seldom perceived among men.
And so, like on everything else, Palin comes down on the wrong side of every issue I can think of. Bad enough that she’s been wreaking havoc on wildlife, indigenous peoples, etc. in Alaska. Let’s not let her get loose on the rest of the country, and the world. The Courts are fragile, and we can’t afford any more of these right-wing justices to be appointed. Let’s have its rightward, corporatist (etc.) current swing be as far as it gets in that direction. The future of our courts is one of the best reasons to work hard to make sure McCain and Palin do not get elected.
We’ve got work to do folks - only 40 days till Election Day. And voting has already started!!