Letter from NTWC to Assistant Administrator Nancy Stoner discussing the Alaska Native jurisdictional challenges.

Dear Assistant Administrator Stoner:

On behalf of the National Tribal Water Council (NTWC), I again thank you for taking time to meet with the NTWC members on Tuesday, April 23, 2013.  We view this meeting as successful in terms of the continual work which will take place with you and senior staff at the Office of Water.  The NTWC looks forward to establishing a long and productive partnership with the Office of Water.

Previously, I sent you a letter discussing the six priority areas for the National Tribal Water Council with discussions on five of those areas.  I now will point out some of the problems that our brothers in Alaska face on Alaska Native Jurisdictional Challenge.

First, a short history lesson on Alaska. After Alaska was granted statehood in 1959, protection of Alaska’s ecosystems fell to the Department of Health. In 1971, the Alaska Legislature formed the Alaska Department of Environmental Conservation (ADEC), transferring authority under the new department.  The legislation set ADEC’s mission as follows: “to conserve, protect, and improve Alaska’s natural resources and environment and control water, land and air pollution in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being.”  For nearly 40 years ADEC has been working to do just that.

Further, on December 18, 1971, then President Nixon signed into law the Alaska Native Claims Settlement Act (ANCSA).  The passage of this Act settled the issue of what lands Alaska Natives owned by right of traditional use and occupancy. The phrase “traditional use and occupancy” means that the land was used for subsistence and occupied for a very long time. The Act was based on the right of Alaskan Natives to the land they had used and occupied for generations and generations. The Act also stated the terms by which Alaska Natives would give up much of their land. A dissertation could be written on the impacts this has to Alaska Natives, so I will keep this discussion short.

In October, 2002, Alaska’s former Governor Tony Knowles, under the authority vested to him by Articles III, Sections 1 and 24, of the Alaska Constitution, established Alaska’s Clean Water Act (ACWA) policy of unifying and strengthening state natural resources agency efforts to protect, assess, and restore Alaska’s waters and aquatic habitat.  With this he directed ADEC, Alaska Department of Fish & Game (ADFG), Alaska Department of Natural Resources (ADNR), and the Division of Governmental Coordination to designate ACWA members from each resource agency with the Division of Governmental Coordination to be the designated chair.

In October, 2008 ADEC submitted a final NPDES application to EPA, under the direction of one of Alaska’s former governors, which described how the permits would be issued with compliance assurances and enforcement conduct included.  State statutes and regulations as to how it would administer the NPDES program were also included.

Plans of this proposed NPDES transfer from EPA to the State was presented at the 2008 Alaska Forum of the Environment to tribal entities.  Concerns were addressed to the presenters because Alaska Natives are still dealing with the State recognizing them as tribes as the federal agencies do.  They were assured that they would still retain their government-to-government relationship with EPA.  The publication titled “Alaska Pollutant Discharge Elimination System, Public Participation in the APDES Permitting Process” states the following on Page 3, Early notification of APDES actions:

In particular, early collection of traditional knowledge, subsistence information, and other information important to residents and local or Tribal governments will allow DEC to address them during permit drafting. In designing communication processes, DEC will be mindful of the advantages of communicating with the public and interested organization early in the permit process. For every permit decision, DEC will coordinate with local and federally-recognized Tribal Governments, and RCACs that may be affected.

There are several other sections in the document listed above which discuss Tribal Government Coordination early in the permit process. To date, Alaska federally-recognized Tribal Governments are still waiting for ADEC to ask for their participation as tribes. I recommend that you read the document for yourself. A copy is attached.

It is clear that Alaska Natives through ANCSA was given exclusive jurisdiction over the water on the land selected. Because of this, Alaska Natives have the exclusive right to take fish and wildlife resources on Native owned lands and waters, subject to state fishing and hunting regulations. Section 2(b)of the Settlement Act disavows any intent to create “a lengthy wardship or trusteeship, and to add to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska”. The effect of this language is certainly subject to interpretation .While ANCSA did not create any trust relationship, it does not necessarily apply to existing Indian Reorganization Act (IRA) and traditional village governments. There are 4 forms of tribal government in Alaska. The Tribe that formed a reservation (Metlakatla), traditional village governments, IRA, and Tlingit & Haida Central Council. Cases to date indicate that Congress envisioned some sort of special relationship to continue between Congress and Alaska Natives as both HUD and Indian Health Service (IHS) have been held accountable to Acts to fulfill trust responsibility to Alaska Natives.

The Assistant Solicitor for Indian Affairs published an opinion in 1979 which found that the language of ANCSA intended to end the reservation system in Alaska and that an increase in the amount of Alaska land held in trust would constitute an abuse of the Secretary’s discretion. However, “In re City ofNome780 P2nd 363 (Alaska 1989)” the Alaska Supreme Court held that land owned not in trust but in fee by the Nome Eskimo Community, a tribal government organized under the IRA, was exempt from foreclosure by the City of Nome for nonpayment of taxes by virtue of IRA sec. 16, which recognizes that IRA governments have power “to prevent the sale, disposition, lease, or encumbrance of tribal lands, interest inlands, or other tribal assets.” Certainly, in regard to water, all agencies have been involved with Trust relationship activities from passing bills and expending funds to ensure safe and healthy water for villages. These agencies include the BIA, IHS, Corp of Engineers, BLM, EPA and Denali commission who fund programs to protect and preserve subsistence resources not only on the land but on the waters which encompass navigable waters to small streams and lakes that may impact the safety and health of subsistence resources from the sea, fresh water plants, fish, and ocean mammals.

Secretaries of Interior and Agriculture to exert federal extraterritorial jurisdiction over fishing activities in Chatham, Peril and Icy Straits on behalf of the Native residents of Angoon.  The Secretaries recommended that 3rd  party mediators explore opportunities to assist parties in the development of alternatives and the Institute for Environmental Conflict Resolution, an independent and impartial federal agency, to conduct an assessment of the situation.  The Department of Agriculture has taken other steps such as enhancement of streams on or near Alaska Native allotments for greater production and health offish. Alaska Senator Begich has requested a special hearing to be conducted by the Senate Select committee on Indian Affairs to address subsistence concerns by Alaska Natives and Alaska Native Tribes.

Obviously, the Alaska Native Jurisdictional Issues are complex. The NTWC requests that your office investigate if there has been any PDES permits issued by ADEC without early coordination with Alaska Natives, which is in contradiction to their own stated Policy. Further, we request that your office provide support to Alaska Natives on any and all water related issues.

We thank you for your time and look forward to receiving your written response in the coordination of moving our FY 2013 National Priorities and other key areas forward.

Sincerely,

Ken Norton

NTWC Chairman

Click here to download a copy of the original letter.

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