U.S. policies towards Native Americans have gone through several stages of development ranging from aggression to the execution of treaties, then assimilation then to soveriegnty and finally back to assimilation again. No state represents the back and forth in of the numerous laws adopted over the past 300 years to address the “Indian Question” than Alaska.
Of the over 500 federally recognized tribes in the United States, 229 of them are in Alaska. When Alaska became the 50th state a mere 50 years ago, therefore, a hasty development of laws occurred to address the inevitable, clash between the Alaska Native and western European cultures. For better or worse nowhere are the results of successes and failures of the development of Indian Law more transparent than in Alaska and this is especially true in the area of human rights.
Water is not only vital for life, it is also essential to a functioning economy. Water, therefore, often plays a role in the preservation of human rights because the health of all communities —small or large, wealthy or in need— depends on adequate infrastructure that can reliably deliver safe drinking water and provide clean wastewater and stormwater management. Environmental justice principals are also visible in Alaska because a higher percentage of the food supply of tribal communities located within the state comes from a subsistence lifestyle that relies on healthy fresh water fish and wildlife habitat, streams, lakes, coastal areas and rivers.
As a result, Alaska Native village communities (Villages) are disproportionately impacted by toxic substances, lowered instream flows, stream bank erosion and temperature increases resulting from industrial development activities and climate change. The Villages are especially vulnerable to mining and development because they are an indigenous population highly dependent on a subsistence economy and on diminishing water resources and because the pristine nature of many Alaska Watersheds which accounts for the exceptional quality of the Tubutulik River’s (River’s) fish populations and their importance to the region’s wildlife and Alaska Natives.
Perhaps, the primary barrier to environmental justice in Alaska regarding water law was the passage of Alaska Native Claims Settlement Act (ANSCA)which abrogated or at least left as ambiguous the question of whether Alaska Native tribal entities retain federally recognized water rights. As a result, ANSCA has been applied primarily by state agencies to not only prohibit Alaska Tribes from exercising what federal water rights they may have or protect instream flows for subsistence purposes but, up until recently, denying the existence of tribal sovereignty or refusing to even acknowledge the legitimacy of tribal entities. What is needed, therefore, is clarification by Congress or Federal Courts as to the existence of federal water rights for Tribes in Alaska in order to clear up the ambiguities in the law and prevent continued disproportionate impacts related to tribal water rights and protection of instream flows.
Needed is a analyses how the law currently acts as a barrier to human rights in relation to the water resource interests of federally recognized Alaska Native Tribal governments and what the law can do to codify protection of environmental justice policies in Alaska. To set the stage for the discussion Parts II and III provide a summary of Alaska and Federal Water Law. Part IV discusses the Development of Environmental Justice in Alaska which began in the late 1950s and also played a part in the birth of the nationwide environmental movement. Part V identifies the barriers to Environmental Justice Related to Alaska Native Water Rights which, in part, the State’s powerful, extraction industry’s reaction to the environmental justice movement. Part VI suggests how not only water law but water policy as they relate to Alaska can be Codified to implement environmental justice protections. Finally, Part VII examines the future of environmental justice related to Alaska native water rights.