Alaska Under Siege?

The highest-profile Alaska issue from the perspective of the lower 48 may be the question of drilling for oil in the Arctic National Wildlife Refuge , but another issue has been a thorn in the sides of Alaskans for many years.

The federal government is insisting that Alaska's state Constitution be amended to provide for "rural" (read: Native) subsistence preference in the taking of fish and game.

The culprit in this insistence is allegedly a provision in the Alaska National Interest Lands Conservation Act (ANILCA) of 1980, a law best known for expanding and renaming what had been Mt. McKinley National Park — and splattering Alaska's map with dozens of brand new and mostly inaccessible national parks and reserves of various kinds.

Late in the Bush (41) administration, the Interior Department began to argue that ANILCA requires the State of Alaska to set aside preferential rights to Alaska Natives for fish and game because of the importance of a "subsistence lifestyle" to Native culture.

There are a number of problems with this position. First, and the one that initially aroused opposition among Alaskans, was that the state's own Constitution specifies that all Alaskans, regardless of race, culture or place of residence, should have equal rights to make use of the state's natural resources, including wildlife.

Second, the original demand for a Native preference is racial in nature; Interior has since tried to finesse the issue by adjusting its demand to a "rural" preference, but this has rightly been characterized as trading discrimination by race for discrimination by zip code, neither of which passes muster with Alaska's founding principles.

The third problem, which doesn't seem to get a whole lot of attention, is that when it comes to America's Native peoples, "culture" is often a code word for religion. So in effect we have a federal agency, barred by the First Amendment from respecting an establishment of religion, trying to force the state of Alaska to respect a select few (selected, lest we forget, on the basis of race).

The means of this power play has generally been coercive, with Interior first threatening, and then proceeding, to usurp the constitutional authority of the state over its own land and resources. To satisfy both the feds and their own state courts, Alaskans must amend the Constitution, essentially eviscerating its protections of equality before the law.

This is one reason why Alaskans ought to be watching the assisted-suicide ruling in Oregon's federal district last month. If the Ninth Circuit Court of Appeals, which includes both Oregon and Alaska, upholds District Judge Robert E. Jones' conclusion that the Attorney General of the United States lacks the authority to block a state law enacted by a vote of the people, it seems logical that the Secretary of the Interior also lacks authority to demand, let alone engineer, the overturning of a fundamental protection enshrined in a state's Constitution.

There are differences between the cases, however. Attorney General John Ashcroft had no act of Congress on which to base his effort to halt implementation of the Oregon law, while Interior Secretary Gale Norton can, like her predecessors, point to ANILCA.

And while Alaska's attempts to block federal takeover of wildlife management have included arguments that ANILCA expressly forbids the federal government from violating Alaska's own laws, no court has yet accepted that view.

Still, Alaskans concerned about their state's sovereignty might be excused for wishing Judge Jones were sitting on Alaska's district court instead of Oregon's.

Kevin M. McGehee lived in Alaska 1994-1999 and plans on never letting anyone forget it. He has been a warehouse clerk, janitor, delivery driver, file clerk, inventory counter, cashier, and unsuccessful political candidate. He also spends a lot of time writing, but doesn't consider it work, even on those rare occasions when it pays. These days he is editor of Flyover Country Today, which is work but only for an hour or two a day. He now lives in Georgia with his much-loved wife and three cats.

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