Hum an Ecology, Vol. 26, No. 3, 1998

Native Am erican Sovereign ty an d Natural Resource Man agem ent Nicholas E. Flan ders 1

The relation ship between Native Am ericans and the Euro-Am erican settlers has evolved from the latter seeking to end the separate iden tity of the form er to on e in which the U.S. governm ent uses Native rights to control large-scale resou rce problem s. This new relation ship arose out of a need to control water in Western states for irrigation , bu t has expan ded in to other areas. The Navajo sheep reduction s of the 1930s an d 1940s m ay be seen as an instan ce of this relation ship. Con cerns about siltation behin d the Hoover Dam ju stified a program that dram atically tran sform ed the Navajo econom y. A second case concerns con flict over a caribo u herd in northwestern Alaska. The conflict eventually led to the Federal governm ent taking m an agement of fish and game on Federal lands back from the state governm ent. Both these cases show the developm ent of a technocracy, based on Federal trusteeship over Native resources, concerned with the con trol of n atu re sim ilar to that observed in Wittfogel’s writin gs on Chinese irrigation. KEY WORDS: natural resource s; U.S. government; Navajo; Iñ upiat.

INTRODUCTION The history of contact be tween Native North Americans 2 and the se ttlers of Europe an extraction has cente red upon natural resource s (Bee and 1

Institute of Arctic Studies, Dartmouth College, 6214 Steele Hall, Hanove r, New Hampshire 03755-3577. 2 I have used the term “ Native Ame ricans ” to refer to both American Indians and Native Alaskans. “Native American ” has not fully replaced “ American Indians ” when referring to the indigenous peoples west of the Mississippi. At the same time , Ame rican Indian does not include the Yupiit, Iñ upiat, and Aleut of Alaska. I have also used “Navajo ” instead of “Dineh ” as the former remains in common usage. 425 0300-7839/98/0900-0425$15.00/0

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1998 Plenum Publishing Corporation

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Ginge rich, 1977; Dyck, 1987) . Into the twentieth century, the patte rn of contact was for the Euro-Americans to take land, some time s through purchase , some time s through conque st, but ofte n through le gislation, le gal judgme nts and administrative action. From 1887 to 1933, the official policy of the Unite d State s gove rnme nt was to take tribal land, provide eve ry adult with 160 acres (65 ha) , and sell what land re maine d to non-Native s (Prucha, 1984) . Through education, missionization, and the individual owne rship of land, the indige nous population of the Unite d State s was to be assimilate d into the nation. Eve ryone , e xce pt the Native s the mselves, saw this prospe ct as ine vitable . Civilization, based upon agriculture , ne ede d the land. The Native way of life, base d upon exte nsive land use, had to give way. The Fede ral gove rnment asserte d its sovereignty over what had bee n calle d the Indian nations. The courts recognize d Congre ss as the trustee of Indian affairs, making it able to do what it wante d with little restraint. In 1934, the Fede ral gove rnment re versed its policy of allotme nt and assimilation. Under the Indian Reorganization Act of that year, Congre ss restored and in some cases incre ase d tribal lands, provide d for the formation of constitution al gove rnments, and institute d e ducational programs that assumed the continuation of Native culture and socie ty. This reve rsal was mysterious. The Fede ral gove rnme nt, with the ideology and the le gal means to do so, could have ende d Native American tribal land owne rship. It also had, see mingly, the e conomic incentive to do so. This mystery de epens in that, to this day, the Fede ral gove rnment pours conside rable money into the Bureau of Indian Affairs and othe r programs for Native Americans, with little appare nt return to benefit itse lf or the general American public. The answer to this myste ry lie s partially in the leve rage that the government gets from its control ove r Native affairs and the re by natural resources. Its use of Native American rights, particularly in common prope rty resource s, has helpe d it to manage natural resource proble ms with which private land owners and political subdivisions, e.g., state s, cannot deal. This control has be en based not just on Native rights, but also on a scie nce -base d justification for gove rnment inte rve ntion. This inte rve ntion is similar to Worste r’s (1985) extension of the theory of orie ntal despotism (Wittfoge l, 1957) : the developme nt of a technically-orie nte d elite that controls a significant resource over a broad area. The next se ction of this pape r will de scribe U.S. land policy during the country’s first 150 ye ars and the land and wate r manage ment proble ms that arose from that policy. Those proble ms re quire d Fe deral solutions. The second section will discuss the evolution of Fede ral¯Native relations. The third and fourth sections will de scribe two case studie s. These studie s lay out the comple x relationship be tween Native sovere ignty and the Fed-

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eral gove rnme nt. The two case s cente r on re source conse rvation, but the relationship be tween sovereignty and resource s can include nonconse rvation cases, such as nucle ar waste disposal on tribal lands. The first case study describe s the stock re duction programs that the Fede ral gove rnme nt impose d upon the Navajo Nation be tween 1933 and 1946. The programs cause d a major transformation in Navajo society, ye t may not have accomplishe d the conservation goals that had originally prompte d the re duction. The second case concerns the manage ment of the western arctic caribou herd (WAH) in Alaska. In e ach instance , the Fe deral gove rnme nt playe d or plays a promine nt role base d, in part, upon its prote ction of Native rights and its appe al to scie ntific authority. The Navajo stock reduction is a ne gative example . The case of the WAH is pote ntially positive : if the Fede ral gove rnme nt can work out its inte rnal compe ting interests and de ve lop a supporting scie ntific program, a co-manage ment agre ement with tribal governments may be possible . The final se ction discusse s the pote ntial e volution of Native ¯Fe deral re lations in re source manage ment, in particular, the evolution of a Wittfoge lian bure aucracy.

UNITED STATES LAND POLICY In New England before the American Revolution, a unique system of land te nure develope d (Benedict, 1953, Ch. 1). It was unique in both how the land was pre pare d for sale and how title s de scribed owne rship rights. When new towns were to be opene d to se ttlement, a survey would be conducte d be fore the se ttlers could enter. The lots for purchase were laid out in roughly e qual size s. Land titles to these lots describe d only the boundaries. The use to which the land was put, or could be put, was not mentione d. The owner held fee simple title to e verything from the center of the earth to the sky above within those boundarie s. As Cronon (1985) has note d, this syste m of land te nure was ecologically transformative . Land be came a commodity its owners could use as the y wante d, including transforming its e cology. Prope rty taxe s, base d on the “ highe st and be st use ,” pushe d the transformation. The nee d for a stream of income from the land to pay taxe s dictate d its commercial use , or led its owne r to sell to some one else . As a commodity, land be come a factor of production, change able according to market circumstance s, rathe r than a piece of the e arth incorporating a particular ecological syste m. Afte r the American Revolution, the New England system of land tenure became the mode l for the disposal of the public domain. The public domain was, and is, the unoccupie d and unrese rve d lands owned by the Fede ral gove rnme nt. Surve yors laid out townships, areas of 6 mile s by 6

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mile s (9.6 km 2). Each township was divide d into 36 equal sections of 640 acre s (291 ha) . Land was the n sold by the section, half section, or quarte r section (Gate s, 1968) . The surve y impose d this grid without re fe re nce to the unde rlying physical ge ography. East of the Mississippi Rive r, this inatte ntion to topography did not create proble ms. Rainfall agriculture and the large areas of exceptional soil meant that the arbitrary se ctioning made little diffe re nce . A prospe ctive farme r was like ly succe e d on what he bought. As, however, se ttle rs approache d the 100th meridian, rainfall agriculture became le ss fe asible (O pie , 1987) . To the west of the 100th meridian ave rage annual rainfall goe s be low 50 cm and also become s le ss pre dictable . Water source s be came important, and the soils were of une ven fe rtility. An entire section might miss a ne eded source of water by a few fee t. Yet the surve y grid went on without modification, an imposition of human geome try onto a now-forgotte n e cological system. The assumption that the public domain should be hande d ove r into private hands as quickly as possible pushe d the survey we stward. Until the U.S. Civil War, the only de bate was over who should be the re cipie nt of this land: small family free holde rs or large landholde rs, using slave labor. The Civil War was fought, in part, ove r which syste m of land te nure should be impose d onto the new lands to the West (Be nedict, 1953, p. 78). The North, and the small fre eholde r, won. Historians such as Williams (1961) have argue d that the e asy acce ss to land, the lack of tenant farming, and the ide ology surrounding the small family farm re lie ved the Unite d State s of many possible conflicts. America grew out of its proble ms. While the owne rship of prope rty was a require ment for suffrage in many state s, owne rship was ubiquitous in the northe rn state s. The land te nure system of wide spread small farm agriculture contribute d to a broad-base d libe ral de mocratic political syste m. Simultane ously, popular democracy pushe d for the ope ning of the public domain to all. Congre ss accede d to this ideal in the Home stead Act of 1863. For $20, a pe rson could e nte r a quarte r se ction ( 160 acre s), make certain agricultural improve ments, and within 5 years re ceive a pate nt. In theory, a U.S. citizen or an immigrant intending to become one , could obtain a farm through his or he r own labor. Native Americans were not and could not be come citize ns. In practice , railroad and land companie s took up most of the be st agricultural land. What good land remaine d was quickly se ttle d. Homeste ade rs soon crosse d the 100th m e ridian into margina l are as. A kind of Darwinian se lection took place . As one U.S. Se nator put it, the gove rnme nt bet the farmer $20 that he and his family would not starve to death in 5 ye ars (Opie , 1987, p. 93) . In areas whe re rainfall agriculture was not fe asible , the only alte rnative was grazing. A quarte r section was too small for

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grazing, however. Cattle men would e nter a homeste ad around a source of water, the reby controlling the surrounding public domain. O the rs ente red more than the y were e ntitle d to. Wate r rights became separate from othe r prope rty rights. Forests in the public domain were denude d without any rent paid to the gove rnme nt. Yet, 160 acres remaine d the limit on homeste ads until well into the 1900s because the electorate would not allow it to be othe rwise . Gradually, weste rne rs re alize d that agriculture was not fe asible in most re gions to the west of the 100th meridian without irrigation (Worste r, 1985) . At first private land companie s and state s attempted to construct irrigation systems. The y soon confronte d two proble ms: they ne eded large amounts of capital and the y ne eded to control the wate rshe d. Controlling the wate rshed was more than getting enough wate r. Rampant timbe r cutting and ove rgrazing of the public domain had create d proble ms for controlling wate r flow. Managing wate r for irrigation meant controlling the se activitie s. Major wate rshe ds, such as the Colorado River, covered several state s. O nly the Fe de ral gove rnme nt had the authority to cross state boundarie s and the financial resource s to build irrigation works on the scale nee de d. Thus, the Fe deral gove rnment be gan withholding land from private entry to prote ct wate rshe ds. For the first time, it cease d to assume that all public land should be come private . The Federal gove rnme nt be gan conservation measure s, not to pre se rve the re sources per se, but to aid in the furthe r expansion of the American West. The measure s institute d around the turn of the century to prote ct the wate rshe d did not, howe ve r, pre ve nt the ove rgrazing of Fe de ral lands. Grazing in the public domain was a classic instance of the Trage dy of the Commons (Hardin, 1968) . Anybody could use Fede ral land, and ranche rs put out as many he ad of live stock as they could. The Great Depre ssion and the Dust Bowl compounde d the proble m. In 1934, Congre ss passe d the Taylor Grazing Act. It close d the public domain to furthe r homeste ad entries, except unde r certain conditions; it impose d a system of grazing permits and accompanying fee s; and it set up grazing districts with boards to ove rse e the m. The act e nde d the westward push of Euro-American se ttlement. Since 1934, the Fede ral gove rnme nt has solidifie d its role in the manage ment of We stern land. Pe riodically, politicians in the We stern states raise the ide a that the public domain should be put in private hands, arguing that the land is use d ine fficie ntly unde r Fe deral manage ment. At the same time , they fight ve hemently against any reduction in Fe deral funding for water proje cts. Since the land is worthle ss without water, public ownership continue s. Exce pt for land unde r the national park syste m, Fede ral land is manage d according to the principle of multiple use unde r which

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such diffe rent activitie s as mining, fore stry, and recreation can be accommodate d on the same are a. The se various activitie s refle ct the groups who now bene fit from and support Fede ral manage ment. Native land is a spe cial cate gory of Federally-controlle d land.

FEDERAL TRUSTEESHIP AND NATIVE SOVEREIGNTY All the cultural understanding and tolerance in the world would not have changed the crucial fact that Indians possessed the land and that Euro-Americans wanted it. (Lime rick, 1987, p. 190)

In the first centurie s of contact, the Europe an powe rs conside re d the various groups of Native North Americans to be nations. The indige nous nations were important to trade and held the balance of military power among the Europe an colonie s. The British conside re d them so important to their inte re sts that the Crown prevented se ttle ment beyond the Appalachian Mountain range . The American Revolution was fought, in part, to ove rcome English barrie rs to American e xpansion. Even afte r the American Revolution, however, the Unite d State s government treate d with the Native s as if the y were nations. Unde r the Unite d State s Constitution, Congre ss has the powe r to regulate trade with the “ Indian tribe s.” In 1790, Congre ss passe d the Indian Noninte rcourse Act, which prohibite d anyone from buying Native land without Congre ssional approval (Strickland et al., 1982, p. 511) . O nly whe n, in the 1820s, the ne w nation be came se cure in its borde rs did anyone challe nge this Congre ssional powe r. In the e arly 1830s, the state of Georgia wante d to ope n Che roke e Indian land to se ttlement. The state le gislature passe d a law saying that the Cheroke es were unde r state jurisdiction. The Che roke e s took the ir case to the United State s Supre me Court. The Court found that the Che roke e s and othe r Native American groups were “ dome stic depe nde nt nations ” unde r the wardship of the Federal gove rnment, but did nothing to enforce its own de cision. The principle stood, however, that the Native tribe s posse ssed an inhe rent sovereignty separate from, but subse rvient to, the Fede ral gove rnme nt (Wilkinson, 1987) .3 O ver the next 80 years, the Supre me Court laid down seve ral principle s of Fe deral¯Indian law that re main today. It found that, as the trustee , Congress he ld plenary power over Native American affairs (Strickland et al., 1982, pp. 207, 220 ¯225) . That is, Congre ss could do what it wante d as the prote ctor of Native rights, with the weak restriction that it must be done in the interest of the Native s. The court also develope d the principle that, 3

For a dissenting vie w of tribal sove re ignty, see Metler (1978) .

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because the Native American tribes were in an une qual position in any negotiation with the Fede ral gove rnment, ambiguous language in any tre aty or act of Congre ss should be construe d in favor of the Native s (Strickland et al., 1982, p. 221) . The thre e principle s of inhe re nt sove reignty, plenary powe r, and strict construction mean that Native Americans posse ss rights, including prope rty rights, that have not be en comple te ly defined, that cannot be removed e xce pt through an e xplicit act of Congre ss, and that Congre ss can use to obtain certain e nds if it be lie ve s that those e nds are bene ficial to Native s. “ Aboriginal title ” to land is one example (Case, 1984, p. 48) . Although Native Americans did not initially have a system of writing, much less a syste m of titles, British Colonial, and American common law re cognize d indige nous land rights base d upon traditional use and occupancy. Aboriginal titles contain the same rights as othe r land title s, except that the Native s do not own the land in fe e: only the national gove rnment can purchase it. Congre ss, however, has the powe r to remove aboriginal title without compensation, using its ple nary powe r. During the nine te enth century, Congre ss e mploye d these principle s to cle ar the way for se ttle ment. Before the Civil War, the Fede ral gove rnme nt followe d a policy of re moval. Native groups east of the Mississippi River were forced to take up land to the west of the river. What is now the state of O klahoma was se t aside for the Five Civilize d tribe s, among them the Che roke e. Gove rnme nt policy followe d the be lie f that Native s had to give way to Euro-Ame rican se ttlers. The ir removal would allow the Native s time to “ rise ” in civilization. Following the Civil War, as the railroads and homeste ade rs pushe d west, this policy change d drastically (Mine r, 1976) . The war had e nde d all impe dime nts to We ste rn se ttle me nt. The Fe de ral gove rnment, through tre aties, agre ements and military action, forced the Native s onto small reservations. The main food supply of the Plains Indians, the American bison, was wipe d out. The tribe s were re duced to living off gove rnme nt-provide d rations. The de mise of Native American societies in the face of We stern e xpansion se e me d ine vitable . Non-Native reforme rs hope d that while the tribe s were doome d, the individuals were not (Prucha, 1976) . Believing that the small fre ehold, family farm was the foundation of American socie ty, the re forme rs pushe d le gislation to bre ak up the rese rvations and give eve ry tribal membe r an individual, quarte r se ction farm. Unde r the General Allotme nt Act of 1887, it was assumed that the tribe s would disappe ar. While the administration of this act was une ven ove r the next 40 or more ye ars, the “ ine vitable ” did se em to happe n. After the gove rnme nt allotte d land to individual Indians, the surplus land of a re se rvation was sold. Land

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spe culators, with the mone y to buy large holdings, moved in. Pe ople with political influe nce pushe d the allotme nt process. Anothe r land use re gime , howe ver, started on Native land. Indian age nts, who were political appointe es, could le ase tribal land and re sources unde r the ir control. This land include d the allotme nts of people who had died without a will. Theoretically such holdings should have be en divide d among the heirs. O ne hundre d and sixty acre s were only marginally e nough to support a family. Furthe r fragme ntation made farming impossible . Whe n it occurre d, the Bureau of Indian Affairs (BIA) would manage the land for the owners, le asing it to some one e lse, usually a non-Native . Leasing allowe d local farme rs, cattle men, railroads, timbe r companie s and the like to use Indian land without actually having to purchase it. The lessee paid much lowe r re nts than he would have on private land, particularly since politics could influe nce the terms of the le ase. In some wrongful instance s, the le ase was e sse ntially give n away or the rent not colle cted. Leasing Indian land also had the be nefit that acce ss was limite d, unlike the public domain. Lessee s of Native land also bene fitte d from Fede ral construction proje cts on the land. For instance , the water from irrigation proje cts, built unde r legislation meant to be nefit Native s, would go to the white leaseholde rs of Native land, or would be de clare d “ surplus ” and se nt to off-reservation farmers. Be cause of the sove reign status of tribe s, non-Native s who use d reservation re sources only had to pay state and local taxe s on the le asehold inte rest, not on all of the land ’s comme rcial re sources. Local pe ople and national corporations be gan to be ne fit from the le gal status of Indian re servations. Native rights also turne d out to be significant for managing water outside the reservations. In a 1908 case, the Supre me Court de ve lope d what was calle d the Winte r’s Doctrine (Win ters v. United States, 207 U.S. 564 1908) . Under the Winte r’s Doctrine , Native s have a right to water for their reservation that is prior to any othe r claim. Subse quent decisions have e xpande d the Doctrine in two othe r ways (Wilkinson, 1987, pp. 70¯71) . First, the amount of wate r re se rve d for Indians is inde terminate until the water is actually use d. Second, the wate r can be used for purpose s othe r than agriculture , such as recreation parks. Wate r rights in the We st had be en base d upon the principle of priority, that is, the first pe rson to use a particular source of wate r obtaine d exclusive rights to it, e ven if it was on some one e lse ’s land. While this principle went against what the Fede ral gove rnme nt had wante d, the practice preceded the Fede ral land survey and the gove rnment had to acce pt it as reality. The Winte r’s Doctrine , howe ve r, de throne d the principle of priority by saying that the Native s had first rights. Moreover, control over Indian water rights went to the gove rnme nt as the truste e. The history of public land law in the United State s recog-

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nizes the Winte r’s Doctrine as the first instance in which the Federal government rese rve d a spe cific land right even whe n an individual he ld a pate nt to the land (Coggins and Wilkinson, 1981, p. 305) . The Winte r’s Doctrine be came an important tool be cause the gove rnme nt could use its truste eship to manage water and watersheds for the benefit of all irrigators. Despite the incre ased bene fit that non-Native s had from Native land, the pressure from those who had nothing continue d and so did allotme nt. Allotme nt became particularly pronounce d during the 1910s. In the 1920s, howe ve r, conce rn over allotme nt’s proble ms be came so great that reform move ments appe are d. O ne group was closely allie d with the growing conservation move ment. The conservationists had, by the turn of the century, be gun to look at the Native s’ relationship with nature as a counte rpoint to urbanization (Holm, 1978, Chap. 7). The y saw in Indian socie tie s an ide al that the y wante d to prese rve . They were confronte d with politically powe rful companie s and individuals se eking uses of natural re sources that threate ned national parks, forests, and Native land alike . The leade r of the conservation-associate d reform group, John Collie r, became Commissione r of Indian Affairs in 1933. Congre ss passe d legislation during his administration that reversed what had be en the policy of the Federal gove rnme nt for almost 150 years. The Indian Reorganization Act (IRA) of 1934 was enacte d during the same month as the Taylor Grazing Act. Thus, within a fe w days Congre ss ende d the process by which the public domain had passe d into private hands, and stoppe d the proce ss of allotting Native land, reversing the assumption that the indige nous population of the Unite d State s would disappe ar into the indistinguishable mass of Americans. As with Fe deral land, Indian land re maine d intact because various users with political influe nce be nefitted from the existing ownership. Indian reservations, along with the ir water rights, gave some control over common prope rty re sources. More recent Fede ral policy has e mphasize d Indian selfdetermination. But “ se lf-de te rmination ” has meant assuming manage ment of existing Federal programs, not full se lf-gove rnment. Nor has this policy le d to change in the non-Native use of Native land because land re mains unde r the trust responsibility. Recent complaints about gove rnment oversight of Native leases sugge st that they remain source s of enrichme nt for non-Native s. O riginally, the gove rnment use d its control to aid in the e xploitation of the resource s and e ncourage developme nt. Howe ver, the linking of Indian re form and nature conse rvation, a link e mbodie d in the administration of John Collie r, sugge ste d that Native sove re ignty could also be used for environme ntal prote ction. Yet this linking was e qually proble matic, as the Navajo she ep re ductions showed.

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THE NAVAJO SHEEP REDUCTIONS The Navajo are the large st American Indian group in the Unite d State s. The Navajo combine horticulture with pastoralis m, particular ly she ep herding. The Navajo got shee p from the Spanish during the sevente enth century. By 1848, whe n the Unite d State s took New Mexico and Arizona from Mexico, shee p had be come an inte gral part of Navajo life . In 1863, the United State s gove rnme nt sent a small force to capture the Navajo, with the inte ntion of moving them to southe rn New Me xico and turning them into agriculturists. The force flushe d out the Navajo by destroying their she ep, crops, and orchards. The move to New Mexico, what the Navajo call the Long Walk, faile d. In 1868, the Navajo were allowe d to return to their original land. To e nsure the ir survival, the gove rnme nt issue d 14,000 shee p and 1000 goats in 1869 and 10,000 more she ep a ye ar late r (Unde rhill, 1967, pp. 154 ¯163) . O ver the ne xt 60 years, not only did the Navajo population triple in numbe r, but so did their he rds of shee p, goats, and horse s (Kluckhohn and Le ighton, 1962, p. 51) . The gove rnment may have e ncourage d this growth (p. 73) . By 1932, the estimated numbe r of Navajo she ep had reached 1¯ 1.3 million. Though the Navajo sold the wool from their shee p, the ir economy was subsiste nce agriculture , not comme rcial. As such, the y did not atte mpt to maximize profit, but to re duce risk. Most familie s had goats and horse s as well as she ep, and all practice d some form of horticulture . Goats were bette r at surviving winte rs than she ep, gave milk for the childre n and lambs, and could be eate n before the shee p. Horses survive d droughts be tter, and the Navajo had no qualms about e ating the m as well. Horticulture provide d a standard fare of maize, be ans, and squash, but it was highly depe nde nt upon rainfall. Live stock were the only he dge against droughts, which could occur e very 3 ¯8 ye ars (p. 48) . Conditions for e ach of these activitie s varie d ove r the Navajos ’ territory. Rarely did a family stick to one type of live stock, or one activity. The proble m was that the amount of land available to the Navajo shrank (White , 1983, p. 219) as White cattle men e xpande d into the public domain land surrounding the rese rvation. By the 1950s, the population density on the rese rvation was twice that of the surrounding non-Native land (Kluckhohn and Le ighton, 1962, p. 53) . A decline in the horse population from 1890 to 1930 compe nsate d to a degree for the increasing numbe r of she ep (Kelly, 1968, pp. 108 ¯11) . But the ne t effe ct was that the she ep began to excee d the carrying capacity of the land. The ove rgrazing was obvious from the ve getation. In the 1930s, erosion appe are d. The causes of the land erosion on the Navajo Reservation are known, but the prope r weight to give any one of

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the m is not. Increases in the total numbe r of live stock, Navajo settlement patte rns, and he rding practice s certainly contribute d. O the r evide nce, howeve r, sugge sts that a new natural erosion cycle had begun during the late 1800s (Kluckhohn and Le ighton, 1962, p. 50) . Such e rosion cycle s are known from archae ological e vide nce and may explain the disappe arance from the area of the large Anasazi se ttle ments around 1200 AD (Tuan, 1966; though see Johnson, 1996) . According to White (1983, p. 229) , current e vide nce sugge sts that incre ase s in gullying occur during multi-ye ar wet pe riods. He argue s that: Although explanations of gullying are as yet tentative and unproven, a simple correlation be tween the e rosion cycle of the late nineteenth and early twentieth century and the increase in livestock cannot stand. In some areas erosion began before livestock was introduced; in other are as prehistoric gullying was far worse than that which followed the introduction of live stock . . . . This does not me an that the range was not being overgrazed, only that seve re gullying would have occurred with or without she ep. Overgrazing hurt the land, hurt the sheep, and hurt the Navajos, but it was only a se condary cause of gullying and erosion.

Whether the Navajo were the primary cause of the erosion or not became, from one perspe ctive, irre levant. This perspective was that of the Fede ral gove rnment. In 1928, the Fe deral gove rnme nt authorize d the construction of a dam, late r name d for President Herbert Hoove r, on the Colorado River. This dam served seve ral important functions. It supplie d the entire southwe ste rn Unite d State s with electricity; it prote cted a major agricultural are a in southe rn California from flooding; and it provide d water to Los Ange les. Even before the dam was constructe d, howe ve r, concern arose ove r the re servoir filling with silt. According to a U.S. Army Corps of Engine e rs re port in the e arly 1930s, two tributarie s of the Colorado River, the San Juan and the Little Colorado, contribute d small amounts of water, but large amounts of silt. The U.S. Soil Conse rvation Se rvice considered the silt coming from the Navajo Reservation to be a threat to the new dam (White , 1983, p. 251) . The dam was a major compone nt of the regional e conomy. The Fede ral gove rnment conclude d that some thing had to be done to stop land e rosion on the reservation. Since the pe rception was that e rosion was the result of overgrazing, for overgrazing was evide nt to e ven the most casual observer, a solution had to be found. Expanding the rese rvation had bee n discusse d re peate dly ove r the previous 40 years as a solution to ove rgrazing. The non-Native ranche rs who had moved into the public domain around the re servation oppose d any expansion, howe ve r. The othe r possible solution e xiste d only be cause the Fede ral gove rnme nt was the trustee for all Native Americans: force the Navajo to reduce the numbe r of shee p and goats. In its first attempts at re duction, the gove rnme nt made se veral mistake s. It lumpe d all animals toge the r according to the amount of range

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that the y use d. It paid little attention to the diffe re nce s be tween the regions in their ability to support horticulture or live stock. Finally, it was be lie ved that the Navajo could give up stock raising for full-time horticulture . All the se be lie fs ignore d the e nvironme ntal realitie s of the re servation. The gove rnme nt also be lie ve d that it was possible to achie ve the same le vel of wool and meat production with fewer animals. This claim was true, at least for most Navajo herds. It ignore d, howe ver, the ne ed for a dive rsified e conomy and the competing claims upon the Navajo ’s time and re sources from the othe r compone nts of the ir e conomic syste m. Be cause of these assumptions, the gove rnme nt encounte red conside rable trouble during its initial e fforts at reduction. In its first atte mpt in 1933, it simply purchase d 100,000 shee p. The prices paid were too low, so the Navajos sold their culls, which the ne xt lamb crop imme diate ly re place d. In 1934, the Bure au of Indian Affairs (BIA) administrators de signe d what the y thought was a be tte r program . The y targe te d goats in particular . Range manage rs perceived goats as far more destructive and le ss e conomically valuable than she ep. Coe rcion was use d to e nforce an equal reduction in all herds. This affe cted the poor most of all because the ir he rds were smalle r and the y were more depe nde nt upon goats. The gove rnme nt also require d that 80% of the lamb crop be sold. The Navajos complie d, but unde r conside rable prote st. A third re duction in 1935, which was suppose d to bring in 250,000 she ep and goats through voluntary sale s, brought in only 27,000 head (White , 1983, p. 271) . A new e stimate , made in 1935, showe d that e ve n though the numbe r of shee p had decline d from 1.3 to slightly more than .94 million he ad, the total numbe r of all grazing animals was still e qual to about 1.3 million “ she e p equivale nts.” According to gove rnme nt advisors, the re servation could only maintain about 560,000 she ep units. Thus, after thre e atte mpts at reduction, the Soil Conse rvation Se rvice said that the numbe r of animals still had to be re duced by 56% (U.S. Soil Conservation Se rvice, 1936; Parman, 1976, pp. 92¯ 93) The gove rnme nt, afte r 3 years of insisting that each ye ar ’s re ductions would improve the range , found itse lf de manding e ven gre ater re ductions. What was worse , in the off-re servation areas, whe re Navajos compe te d with non-Navajos for range , the non-Navajos simply move d into the range ope ned by the Navajo re ductions (White , 1983, p. 266) . The gove rnment did attempt at this point to become more se nsitive . It divide d the rese rvation up into grazing units. The carrying capacity for each unit was de te rmine d and the reductions base d upon these figure s. The Navajo Se rvice develope d a sliding scale on which those whose he rds were alre ady unde r the carrying capacity were exe mpte d from furthe r reductions. Simultane ously, the rule s allowe d for a firmer gove rnment hand.

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The superintende nt of a grazing district could issue permits up to the carrying capacity and re move any animals that excee de d the limit. When in 1938 the gove rnment felt that large -scale owne rs were blocking the program, they took those owne rs to court. The courts uphe ld the gove rnme nt’s right to re move the stock, by force if necessary (White , 1983, p. 298) The gove rnme nt also initiate d roundups to reduce the numbe r of horse s. By 1945, the reservation as a whole was below carrying capacity, though individual grazing districts remaine d in poor condition. In 1946, the re se rvation containe d just 449,000 she ep units. Reduction had bee n achie ved. The Navajo did re ceive compensation for the animals take n. The compensation may or may not have be en at “ fair marke t value .” In any case , the people were le ft with cash that, unlike she ep and goats, did not re gene rate itse lf. O nce consum e d, it was gone . While the gove rnme nt had planne d agricultural proje cts to increase alternative food source s, the proje cts prove d defe ctive. O pportunitie s for wage work continue d to come sole ly from the gove rnment. On-reservation e mployme nt remaine d around 25% of total Navajo income over the period from 1940 to 1958 (Kluckhohn and Le ighton, 1962, p. 60) . People had to le ave the re servation to find work. In White ’s (1983, p. 310) words, “ Stock reduction ultimate ly neither restored the lands of the re servation, revitalize d the Navajo live stock e conomy, nor made the Navajos a predominantly farming pe ople —all de ve lopments promise d at one time or the othe r by the gove rnme nt. Instead, it made them wage earne rs and welfare re cipie nts . . . .” Most ironic was that John Collie r did what he had criticize d the previous administration for doing: force d the Navajos to change their way of life. His principle s of Indian reform had conflicte d with his conce rn for conse rvation. Conservation won. In the 1930s, the e arlie r gullying slowed. By the 1970s, gove rnme nt scie ntists found that Lake Mead, the re se rvoir behind the Hoove r Dam, was not in dange r of filling with silt. All of which would appe ar to have supporte d the gove rnme nt’s contention that re duction was ne cessary. She ep herds, howe ve r, be gan to increase again in the 1950s, and overgrazing again became a proble m. Scie ntists be gan to doubt that ove rgrazing was the sole reason for siltation, nor did all of the m accept that the siltation had come from the Navajo Rese rvation. In e ffect, the original cause for concern may not have be en a conce rn at all. Had the land bee n in fee simple owne rship, the gove rnment would have passe d le gislation describing the public purpose for reducing the numbe r of head; would have paid fair marke t value for the shee p and goats; would have dealt with the herders individually; and its evide nce for the cause s of silting would have be en more closely scrutinized. The relationship of the gove rnment to the Navajo was diffe rent. The gove rnme nt, through its trust re sponsibility could bring pressure to bear,

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including the outright seizure of live stock. It had to provide compe nsation, but not ne cessarily equal to the full value of the live stock. Even had the silt come from othe r sources, it would have bee n e asie r to de al with the herders on the Navajo reservation.

CARIBOU IN NORTHWEST ALASK A In the 1930s, the We stern arctic caribou herd (WAH) be gan to re appear in northwe stern Alaska, an are a of pre dominantly Iñ upiat village s. Though small groups of caribou were always prese nt, large numbe rs had bee n abse nt since the 1880s (Hall et al., 1985) . From the 1930s on, caribou herds became intensely manage d, he avily hunte d, and the cente r of a political controve rsy over harve st rights. The origins of the caribou hunting controve rsy may be found in the early 1960s, when the U.S. Atomic Energy Commission (AEC) re ve aled a plan to create a harbor betwee n Point Hope and Kivalina by exploding atomic bombs (O ’Neill, 1994) . Scientists and local residents fe are d that the radiation rele ase d would be absorbe d by the liche n, the n move up through caribou into humans. The explosion did not take place , but a Native land claims move ment started in reaction. The initial purpose of this movement was to prote ct what is commonly re fe rre d to in Alaska as “ subsiste nce,” the traditional resource s use d for food, clothe s, and shelte r (Fie nup-Riordan, 1984) . The discove ry of oil on the North Slope and the ne ed to cle ar land title to the Trans-Alaska Pipe line right-of-way, create d pressure for a settle ment. The oil companie s, in fact, provide d support to the Alaska Native s pushing the ir claim. The move ment succe eded in 1971, when the U.S. Congre ss passe d the Alaska Native Claims Se ttle ment Act (Public Law 93203 or ANCSA). The Act turne d out, however, to have a diffe rent purpose than the prote ction of subsiste nce resource s. The 44 million acres ( 18 million ha) awarde d unde r the Act were turne d over to corporations of which Alaska Native s would be share holde rs (Arnold et al., 1978) . The corporations were for-profit. The share s in these corporations could be sold to anyone after 1991. Most remarkably, the Act e xplicitly remove d any special hunting and fishing rights for Alaska Native s (Case, 1984, p. 295) . It did this for two reasons, first to prevent the use of such rights to make furthe r claims on land, as had happe ne d with othe r Native American groups, and, second, because the state of Alaska convince d the Fede ral gove rnment that it could ade quate ly prote ct Native hunting and fishing. For the state , controlling the natural re sources within its borde rs was a central issue (Naske, 1971) . Be fore statehood, the re venue from com-

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mercial fishing had le ft the territory along with the fish. Until oil was discove red, fishing was the primary economic activity in Alaska. The Fede ral gove rnme nt manage d the fishe rie s poorly be cause policie s we re se t in Washington, D.C. where the packing companie s exe rcised political influence (Naske , 1971) . The packing companie s were the primary oppone nts of Alaska state hood. The authors of the state constitution wrote in two unusual provisions: first, the state had to manage its natural resource s for the bene fit of all, and, second, it had to manage them according to the principle of sustaine d yield. The belief was that Alaska was a place of gre at wealth, if only Alaskans controlle d the resource s. The promise of the state to prote ct subsiste nce was put to the test in 1975. The State Department of Fish and Game had made seve ral surve ys of the WAH. Its 1975 ae rial surve y showed a drastic de cline in the herd to 75,000 animals. Estimating annual harve sts to be be tween 25¯30,000, game manage rs fe lt drastic action was calle d for. The State Board of Game decide d to limit the harve st to 3000 males unde r a pe rmit syste m. The biologists pre fe rre d no harve st, but re cognize d the ne ed for a village hunt. To fulfill its promise to Congre ss, the state allocate d permits to e ach Native village council in the re gion, allowing the council to de cide who should get the m. Giving permits to village s ange re d sport hunte rs and profe ssional hunting guide s. The y took the matter to the state court, which found in the ir favor. The state court pointe d to the constitutional provision requiring that resource s be manage d for the bene fit of all. Hunters in urban are as had to be give n equal acce ss to the herd. The battle ove r subsiste nce had be gun. Conseque ntly, the Alaska Native Federation lobbie d Congre ss to prote ct subsiste nce . To forestall re assertion of Fede ral control, the state le gislature passe d a subsiste nce law of its own, which gave pre fe re nce to the subsiste nce use of resource s when the re source was in limite d supply. Congre ss, howe ve r, include d subsiste nce prote ction provisions in the Alaska National Inte rest Lands Conservation Act (Public Law 96-487 or ANILCA) of 1980. Congre ss allowe d the state to re tain manage ment ove r fish and wildlife on Fe deral land if it had a subsiste nce law, such as the 1978 one , that met certain minimum require ments (ANILCA, Se ction 801) . Also, at the re que st of the Alaskan Congre ssional dele gation, it gave the subsiste nce rights to “ rural reside nts ” rathe r than Alaska Native s. The state law prove d controve rsial, howe ve r. Non-Native s living in urban are as, pushe d on by big-game hunting guide s, claime d that the Native s did not really nee d the food, that the y were really sports hunte rs, that the pre fe re nce violate d the Unite d State s constitutional principle of e qual prote ction, and that they wasted the resource , killing more than the y could

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eve r possibly eat. The latte r was a particularly significant claim because it sugge sted that the Native s were irre sponsible in their use of game . In 1982, a proposition to re pe al the 1978 law faile d.4 The Alaska Boards of Fish and Game , which actually decides on hunting and fishing regulations, was then le ft with de fining who qualifie d as a subsiste nce use r. In an e ffort to find a race-blind de finition, they use d place of reside nce as the crite rion. Urban Native s obje cted in state court, whe re the provisions were re peate dly struck down. The le gislature trie d writing new le gislation. In 1989, the state supre me court made it cle ar that no state subsiste nce law could be constitutionally acce ptable and meet Fe deral guide line s. The equal acce ss to re sources provision of the state constitution pre ve nte d it. In the summe r of 1990, the state le gislature went into special session to conside r amending the constitution. It did not reach a conclusion, and the Fede ral gove rnment took over manage ment. The curre nt situation may be summarize d as follows: the Federal government now manage s fish and game on the land that it owns, roughly 50% of the state, and the state gove rnme nt manage s fish and game e verywhere e lse. State manage ment would include the Native corporation land, which is private . However, unde r the modifications to ANCSA made in 1987, unde ve lope d Native corporation land must be manage d in a “ manne r consiste nt with ” manage ment on the surrounding state and Fede ral lands. Thus, Native corporation land may be subje ct to some, as ye t unspe cifie d, restrictions (Flande rs, 1989) . In essence , the Fede ral gove rnme nt has take n ove r control of a re source that the state had previously manage d. It has done so in the nominal intere st of the Alaska Native s. In Title V III of ANILCA, Congre ss justifie d its de cision to provide for a subsiste nce use pre fe re nce through its constitutional powe r over Native affairs (ANILCA, Sec. 801) . All the same, se veral le gal commentators have sugge ste d that ANILCA has give n back rights to fish and game that ANCSA took away (Conn and Garbe r, 1990) . Whether these rights bene fit Alaska Native s re mains to be se en. The Fede ral age ncies with land in Alaska at first adopte d the state regulations that had e xiste d before July 1990. A Native group sue d, pointing out that ANILCA require d the Fede ral age ncies to consult with the local advisory groups set up unde r the Act be fore promulgating regulations. The Fede ral gove rnme nt has now ste ppe d back and contracte d for research on Native subsiste nce practice s to inform its regulatory de cisions. This pre liminary action has, however, raised the issue of Native influe nce ove r fish and game manage ment decisions and incre ased the calls for Native manage ment of the re source s through tribal gove rnme nts. Tribal gove rnme nts, e .g., the 4

In Alaska, propositions can be placed on ge neral e lection ballots and, if passed, be come law.

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Kotzebue Indian Reorganization Act (IRA) gove rnme nt, have be gun conducting the ir own research. While the battle ove r subsiste nce was being fought, conce rns ove r othe r aspe cts of ANCSA be gan to mount (Berge r, 1985). Because village and regional for-profit corporations held the land grante d unde r the act, the manage ment and financial health of the corporations indire ctly threatene d the land. The corporations could develop or sell their land or lose through court judgme nts. Any one of the se dispositions would thre aten subsistence activitie s. The se things did not happe n, but economic necessity, bad busine ss de cisions, or the corporations going public in 1991 could have forced a change in manage ment (Flande rs, 1989) . Thus concern mounte d for the future of the corporations and the land that the y owned. O ut of this grew two movements. The first group, large ly made up of those most closely associate d with the corporations, sought to modify the original law, but kee p the corporate structure. The othe r group sought to re invigorate the tribal gove rnme nts that pre date d ANCSA and had not bee n extinguishe d by the 1971 Act. This latte r group believe d that the corporations could not prote ct Native inte re sts because of their limite d time , the ir focus on making profits, and their control over a limite d amount of land rathe r than significant subsiste nce resource s. A split had also de ve lope d be tween the olde r Native leade rs who had ridde n corporations to positions of promine nce and a gene rally younge r group who were concerne d about the future of the ir communitie s. The tribal gove rnment supporte r s s ought to turn c orporatio n la nd ove r to the vi llage triba l gove rnme ntal and to obtain control over all re sources, particularly fish and game, within tribal boundarie s (Berge r, 1985) . Unlike tribal gove rnme nts in the 48 contiguous states, the one s in Alaska are based on village s. In the othe r state s, a tribal gove rnme nt is base d on a reservation, a well-de fine d te rritorial are a. Fe w formal re servations existe d in Alaska be fore ANCSA and only one afte r. Thus, the e xtent of territorial control e xe rcised by Alaska tribal gove rnme nts has bee n an issue . A re cent decision by the U.S. Supre me Court denie d that Native village s constitute “ Indian country,” but allowe d that congre ss could de signate the m such. In 1987, Congre ss modifie d ANCSA to take care of the proble ms with the corporation structure . Congre ss, however, left the issue of tribal sovere ignty up to the courts. National sports hunting groups were concerned that tribal manage ment of fish and game in Alaska would pre vent non-Native s, particularly non-Alaskans, from hunting in Alaska. Thus, the issue of acce ss to fish and game stymie d the effort to re invigorate the tribal governments. Furthe rmore, the historical position of the courts and Congre ss were re ve rse d. In the past, the Fe deral courts, be cause of the ple nary powe r of Congre ss over Native affairs, had always de ferre d to the actions of Con-

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gress. In this instance , Congre ss le ft the issue up to the courts. Congre ss in effe ct said that if Alaska Native s have tribal sovere ignty then it is inherent and it alre ady e xists apart from the actions of Fede ral or state governments: it is up to the courts to decide. Until the issue of tribal gove rnme nts is re solve d, fish and game manage ment is in the hands of Fede ral age ncie s. Conflicts have alre ady arisen ove r Native hunting in national park units, which manage the land around several important caribou river crossings. The National Park Se rvice has e mphasize d enforce ment. Those who obje ct to this approach have sugge sted that the manage ment of game, caribou in particular, would bene fit from a co-manage ment agre e ment similar to that e mploye d in Canada and othe r parts of Alaska (Berke s et al., 1991; Borrini-Fe yerabe nd, 1996; Huntington, 1992; O sherenko, 1988) . Such an arrange ment is curre ntly unde r conside ration following a conference in Alaska that pointe d out the ne ed for manage rs to work more closely with communitie s (Trent et al., 1996) . The agre e ment would be among thre e entitie s: the tribal gove rnments in the herd ’s range , the state , and the Fede ral gove rnment. Tribal gove rnments have come back into the fore , in part because they are in the be st position to represent village s (cf. Noble , 1987) . Not all village s have an ANCSA village corporation (most of those in the re gion around Kotze bue were merge d with the re gional corporation) or state -charte red village governments. Even where corporations and city gove rnment are pre sent, it is que stionable whether they would have the formal ability to take on fish and game manage ment. Tribal gove rnme nts ge nerally do. The state has become more willing to re cognize tribal gove rnme nts as something more than private organizations. The ce ntral difficulty is that Fe de ral age ncie s have diffe ring approache s to manage ment, with the Park Se rvice following the implicit strategy that the be st manage ment is no manage ment (Chase, 1987) . The Park Service has also be en most re luctant to move into a co-manage ment agre ement be cause of its tradition of prote ction rathe r than conservation. A comanage ment agre ement may re quire some fundame ntal change s in age ncy perspe ctives. As with e rosion on the Navajo re servation, one may retrospe ctively que stion the scie nce on which the WAH crisis be gan: a master’s thesis base d on the WAH re se arch observed that the numbe rs use d were minimum e stimate s of he rd size (Doe rr, 1979, p. 155). The rese archers could not come up with a maximum confide nce inte rval e stimate (p. 172). At the time, village rs questione d whe ther the ae rial surve ys had actually locate d all of the animals that they were se eing on the ground. The biologists ’ reports be tween 1970, when the last survey had e stimate d a population of 243,000, and 1975 state d that the he rd was in good condition and that no

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restrictions were necessary (e.g., Pe gau, 1973) . A 1974 surve y did note that animals were missing from parts of their usual range , but since “ caribou migrate and dispe rse in an inhe re ntly unpre dictable manne r, the patte rn exhibite d during 1974 can be e xpe cted” (Grauvoge l and Pe gau, 1974) . The state biologis ts simply didn ’t be lie ve that the he rd ’s populatio n could change so rapidly (Hinman in Fairbanks Environme ntal Center, 1976). The more que stionable scie ntific issue conce rne d the cause of the belie ved de cline . The state biologists e mploye d e motive language of questionable scie ntific re le vance , “ he avy harve st by rural subsiste nce hunte rs (including waste), and substantial pre dation by wolve s were the primary cause s of caribou mortality during the post-1970 decline ” (Davis et al., 1980) . Human harve st can be a cause of he rd de cline when numbe rs are low. The 1970 level was arguably sufficie nt to allow the usual subsiste nce take . In 1986, the he rd was estimated to have again re ache d the 1970 level. It has since grown to an e stimate d 450,000 (Me dre d, 1992) despite essentially unrestricte d harve sting from the e arly 1980s on. The use s to which the harve st is put, be it subsiste nce or waste , are not a cause of de cline . Waste may be a factor in obtaining accurate harve st data and may be a le gitimate policy que stion if one is trying to re duce harve st while maintaining the same level of available food. The use of the words “ subsiste nce ” in quotation marks and “ waste ,” whether accurate or not, went beyond reporting scie ntific results. Even give n that the herd had decline d precipitously, the cause s were like ly to have include d factors othe r than human hunting. Subse que nt research on caribou and reinde e r sugge sts that abiotic factors, such as icing eve nts, and inse cts may be more important than human hunting or pre dation (for example , se e Russe ll et al., 1993) . The re se arche rs at the time did conside r the se alte rnative s, but re jected them because there was “ no evidence .” The y did not active ly test for these factors as compe ting hypothe ses. One argume nt for human harve st as a factor came from modeling, which estimated backwards to the le ve l of human harve sts that would have bee n ne cessary to achie ve the estimated decline in the herd (Davis et al., 1980; Doerr, 1979) . No hard data existe d. Government research, rese arch carrie d out within age ncie s, is typically diffe re nt from nongove rnment research, particularly its lack of merit revie w (see for example Busch, 1991) . To this author ’s knowle dge , the Department of Fish and Game ’s rese arch was never subje cted to such a re view. The ir argume nt, thus, se emed more ide ological than scie ntific. The biologists argue d against any subsiste nce hunting at all, implying that it was irresponsible , and thus trie d to limit the activitie s of the one e le ment in the syste m that see med the easiest to change : Iñ upiat village rs. In the end, the Departme nt of Fish and Game admitte d inte rnally that the re strictions

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may have be en too great and that the y did not know whe ther pe ople in the village actually followe d the m (Pe gau, 1980) . The re sult was a much large r conflict ove r subsiste nce re sources.

DISCUSSION The curre nt de bate over subsiste nce was fore see n. In 1963, when the Native land claims movement was just be ginning, Don Foote , a human geographe r, pre dicte d that something like the se eve nts would happe n. At that time, the Iñ upiat had e nliste d the aid of a Euro-Ame rican group interested in Native American affairs. The advisors to this group pushe d for cle ar title s over land. Their reasoning was that title s would allow the Iñ upiat to obtain loans and participate in the industrial developme nt of the North. Foote disagre e d with this point of view. He argue d that no industrial developme nt in the North could replace hunting and fishing as the basic compone nt of the village e conomie s (Foote , unpublishe d). O wning land could not secure access to the land and se a re sources upon which the village s depende d for food. Foote sugge sted that the Iñ upiat and othe r Alaska Native s should re ceive rights in the e cosyste m, not land (cf. Ushe r and Banks, 1986) . In retrospe ct, he was pre scient about the failure of ANCSA to provide for the well-be ing of the village s and to prote ct the re sources upon which they depe nd. Foote had sugge ste d an e cosystem manage ment re gime in which scientists would study the population dynamics of the food species and would help the “ owne rs” of the e cosystem to develop guide line s for harve sting. He sugge ste d that through a program of on-the -job training, the local pe ople would eventually take over the scie ntists’ role . What has evolve d in Alaska has bee n some thing similar to this plan, in the se nse of ecosyste m manage ment, but with the locus of control currently in state and Fede ral age ncie s. The re source regime 5 that is taking shape unde r Fede ral control may become like the te chnocratic manage ment that Worster (1985) de scribes for the irrigation works of the Imperial Valle y, California. Worste r has take n the the ory of “ oriental despotism,” originally de ve lope d by Wittfoge l (1957) for Impe rial China, and applie d it to mode rn wate r manage ment. The irrigation syste m in the Imperial V alle y was a re sult of the Hoove r Dam construction. The re -routing of wate r across wate rsheds, and the ne ed to control large are as of land was, of course , the reason for a Fe deral role in water manage ment. Worste r argue s that the re sulting bure aucracy is 5

For a de finition of resource regimes, see Young (1982).

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strikingly similar to that de scribed by Wittfoge l, and for the same reasons. Re arranging wate rshe ds re quire s highly centralize d control whe the r in China or California. The bureaucracy conce ntrate s on the technical and scie ntific proble ms of de live ring large amounts of wate r. Its powe r base become s those who be ne fit from that water. It ignore s the prior e cology and geography, and the pe ople who have depe nde d upon the m. The Navajo she ep re ductions are an example of how such a bure aucracy can create dire conseque nce s for local populations without conside ring whethe r its actions truly addre ss a proble m. The fe ar of siltation behind the Hoove r Dam drove the re ductions. At the same time , howe ve r, Navajo land erosion justifie d the use of Fede ral authority ove r Native Americans to enforce policie s. Under le ss pressure and with gre ater atte ntion to the nee ds and perceptions of the Navajo, the issue s and results might have bee n very diffe re nt. The reductions were de vastating because a centralize d administrative structure made the de cisions base d upon scientific evide nce that might or might not have be en correct. Central de cision-make rs are rarely the one s to pay for the incorre ct use of scie ntific information. In Alaska, the driving force s may be diffe re nt, but the pote ntial for a te chnocratic manage ment of wildlife resources re mains. Caribou are in some re spe cts like wate r. The major he rds cover large areas, cross jurisdictions, but also provide some opportunitie s for manage ment. In short, knowing the “ large r picture ” is important to the he alth of the he rds. State manage ment of the herd is like We stern water manage ment whe n it see ks to provide a ste ady flow (of caribou) to a group of use rs (hunte rs, primarily sport) . Caribou could become , like water in the Imperial V alle y, a numbe r inste ad of a vital gift of life to local village s. Fede ral manage ment in Alaska is now at a de cisive point. It is guarante e ing a flow of caribou to village use rs, but with a centralize d structure . This regime is currently be neficial to village use rs. The centralize d control, howe ver, also contains the pote ntial for othe r obje ctive s to appe ar that would not fulfill the ne eds of Alaska Native s. As the concept of the herd become s more of a numbe r, it can also be more easily allocate d to othe r use s. Alternate obje ctive s could be anything from industrial de ve lopme nt to e nvironme ntal prote ction. The use of scie ntific re se arch, the m odu s operandi of te chnological manage ment (Friedmann, 1987), in this situation is particularly worrisome : Fede ral age ncies can use it not just for the knowle dge that it imparts, but as a way to exclude local participation in decision-making. Federal manage rs can ove rride Congre ssionally-m andate d, locally de ve lope d wildlife manage ment programs if the y violate “ recognize d principle s of wildlife conservation, or thre aten(s) the conservation of natural or he althy populations of wildlife . . . .” Thus, the manage rs can use rese arch as a means to

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pre empt local proposals. While Fede ral responsibility in rural Alaska may in theory prote ct Native inte re sts, de cision-make rs may act on poor research and do those inte re sts harm. Eve n bad data obtaine d through scientific re se arch can cast a spell that is hard to break. Native sove reignty can be use d to solve the proble ms of common property re sources. This application we have see n in two promine nt cases. But it contains an e qual pote ntial for misuse. The developme nt of a co-manage ment regime, one that incorporate s the knowle dge of local use rs, sugge sts an alte rnative future in which manage ment is de centralize d. Such a structure could come close st to Foote ’s sugge sted owne rship ove r resource s. Here the distinction be tween patte rns of social practice — institutions — and entitie s posse ssing legal ide ntitie s and physical presence s—organizations — is significant (Young, 1989, pp. 32¯ 37). A co-manage ment institution ne ed not have a large organization to go with it; it can provide diffuse manage ment of resource s (cf. O she re nko, 1988). At the e nd of the Europe an We stward e xp an sion and the twe ntie th c e ntury, pe rhap s the history of Native ¯White interactions will change . Perhaps these interactions can be the basis for a new, more e ffective resource manage ment institution.

ACKNOWLEDGMENTS The re search upon which this pape r is based was funde d unde r a U.S. Man and the Biosphe re Program Northern Science Ne twork fellowship and a grant from the National Science Foundation (O PP 9318926) . An e arlie r version of the pape r was pre se nte d at the 1991 Nordic MAB meeting in Alta, Norway. The Arctic Ce ntre of the Unive rsity of Lapland and the Chukchi Campus of the Unive rsity of Alaska Fairbanks at various times provide d physical facilitie s ne cessary to the work.

REFERENCES Arnold, R. D., Archibald, J., Bauman, M., Davis, N. Y., Frede rick, R. A., Gaskin, P., Havelock, J. Holthaus, G., McNeil, C. Richards, T., Jr., Rock., H., and Worl, R. (1978) . Alaska Native Land Claims. Alaska Native Foundation, Anchorage. Bee, R., and Gingerich R. ( 1977) . Colonialism, classes, and e thnic identity: Native Ame ricans and the national political economy. Studies in Com parative In ternational Developm ent 12: 70-93. Benedict, M. R. (1953). Farm Policies of the United States, 1790 ¯1950. Twe ntieth Century Fund, New York. Berger, T. R. (1985) . Village Journey: The Report of the Alaska Native Review Com mission. Hill and Wang, Ne w York. Berkes, F., George, P., and Pre ston, R. (1991) . Co-manageme nt: The e volution of the theory and practice of joint administration of living re sources. Alternatives 18( 2) : 12-18.

Native American Sovereign ty an d Resour ce Man agem en t

447

Borrini-Feyerabend, G. ( 1996) . Collaborative Managem ent of Protected Areas: Tailoring the Approach to the Content. International Union for the Conservation of Nature, Gland, Switzerland. Busch, L. ( 1991) . Science under wraps in Prince William Sound. Science 252: 772-773. Case, D. S. (1984) . Alaska Natives and American Laws. University of Alaska Pre ss, Fairbanks. Chase , A. (1987) . Playing G od in Yellowstone: The Destru ction of Am erica ’s First National Park. Harcourt Brace Jovanovich, San Diego. Coggins, G. C., and Wilkinson, C. F. ( 1981) . Federal Public Land and Resource Law. The Foundation Press, Mine ola, NY. Conn, S., and Garber, B. K. (1990) . State enforce ment of Alaska Native tribal law: The Congressional mandate of the Alaska National Interest Lands Conservation Act. In 1989 Harvard Indian Law Sym posium . Harvard Law School Publications Cente r, Cambridge, pp. 99-134. Cronon, W. ( 1985) . Changes in the Land: Indians, Colonists, and the Ecology of New England. Hill and Wang, Ne w York. Davis, J. L., Valkenburg, P., and Reynolds, H. V . (1980). Population dynamics of Alaska’s We stern Arctic caribou herd. In E. Reimers, E. Gaare , and S. Skjenneberg (eds.), Proceedings of the Second International Reindeer/Caribou Symposium , Røros, Norway, 1979, Directorate t for V ilt og Ferskvannsfisk, Tondheim, pp. 595-604. Doerr, J. ( 1979) . Population Analysis and Mode ling of the Western Arctic Caribou Herd with Comparisons to Other Alaskan Rangifer Populations. Unpublished Master ’s thesis, University of Alaska ¯Fairbanks, College of Environmental Sciences. Dyck, N. (1987) . Aboriginal people s and nation-states: An introduction to analytic issues. In N. Dyck (e d.), In digenous Peoples and the Nation-State: Fourth-World Politics in Canada, Australia, and Norway. Memorial University of Ne wfoundland, Social and Economic Papers, No. 4, Institute of Social and Economic Research, St. John ’s, Newfoundland. Fairbanks Environmental Center ( 1976) . A Conference on Survival of Alaska’s Caribou Herds, 12/4/76, Alaska Humanities Forum, Unive rsity of Alaska, Fairbanks, Anchorage . Fie nup-Riordan, A. (1984). The spirit of ANCSA: Native aspirations and the Alaska Native Claims Settlement Act. In Papers Prepared for Overview Roundtable Discussions, Alaska Native Review Com mission, February 27 ¯March 16, 1984. Inuit Circumpolar Confere nce , Alaska Office, Anchorage. Flanders, N. E. (1989). The ANCSA Amendme nts of 1987 and land manageme nt in Alaska. Polar Record 25(155) : 315-322. Foote, D. (1963) . Unpublished letter to William Pruitt, January 3, 1963. University of Alaska, Rasmusse n Library, Alaska and Polar Regions Department, Don Foote Collection, Fairbanks. Friedmann, J. (1987). Planning in the Public Dom ain: From Knowledge to Action. Princeton University Press, Prince ton. Gates, P. W. (1968) . History of Public Land Law Developm ent. United State Governme nt Printing Office, Washington, D.C.. Grauvoge l, C., and R. Pegau. (1974) . Caribou Survey-Inve ntory Progress Report — 1974. Game Management Units 23, 24 and 26 — Arctic Herd. Alaska Department of Fish and Game , Kotze bue . On file, University of Alaska Anchorage, Institute of Social and Economic Research, Anchorage. Hall, E. S., Ge rlach, S. C., and Blackman, M. B. (1985) . In the National In terest: A G eographically Based Study of Anaktuvuk Pass Iñ upiat Subsistence Through Time. North Slope Borough, Barrow. Hardin, G. ( 1968) . The tragedy of the commons. Science 162: 1243-1248. Holm, T. (1978) . Indians and Progressives: From V anishing Policy to the Indian New Deal. Unpublished doctoral dissertation, University of Oklahoma, Norman. Huntington, H. (1992) . Wildlife Managem ent and Subsistence Hunting in Alaska. University of Arizona Press, Tucson. Johnson, G. (1996) . Social strife may have e xiled ancient Indians. New York Times August 20, 1996, pp. C1, C6.

448

Flan ders

Ke lly, L. C. (1968). The Navajo Indians and Federal Indian Policy, 1900 ¯ 1935. University of Arizona Press, Tucson. Kluckhohn, C., and Leighton, D. ( 1962) . The Navaho. Doubleday, Garden City, NY. Lime rick, P. N. (1987) . The Legacy of Conquest: The Unbroken Past of the Am erican West. Pantheon Press, New York. Me dre d, C. (1992) . Cariboom: We stern Arctic herd grows wildly. Anchorage Daily News July 19, 1992, F1, F3, F4. Me tler, E. (1978). A unified theory of Indian tribal sovereignty. Hasting Law Journal 30: 89136. Miner, H. C. (1976) . The Corporation and the Indian: Tribal Sovereignty and Industrial Civilization in Indian Territory, 1865 ¯ 1907. University of Missouri Pre ss, Columbus. Naske , C.-M. (1971). A History of the Alaska Statehood Movem ent. Washington State University Pre ss, Pullman. Noble, H. (1987). Tribal powers to re gulate hunting in Alaska. Alaska Law Review 4: 223-275. O ’Neill, D. T. (1994). The Firecracker Boys. St. Martin ’s Press, New York. Opie, J. (1987) . The Law of the Land: Two Hundred Years of American Farm Policy. University of Nebraska Press, Lincoln. Osherenko, G. ( 1988) . Sharing Power with Native Use rs: Co-Manageme nt Regimes for Native Wildlife. Canadian Arctic Resources Committee, Ottawa, Policy Paper No. 5. Parman, D. ( 1976) . Navajos and the New Deal. Yale Unive rsity Pre ss, New Haven. Pe gau, R. (1973) . Caribou Surve y— Inve ntory Progre ss Report— 1973. Game Management Units 23, 24 and 26 — Arctic Herd. Alaska Departmen t of Sish and Game, Kotzebue. On file, University of Alaska Anchorage, Institute of Social and Economic Rese arch, Anchorage. Pegau, R. T. (1980) . Memo to Dave Johnson, Game Biologist, ADF& G, Kotzebue, re: WAH Management, 12/4/80. On file, University of Alaska Anchorage , Institute of Social and Economic Research. Prucha, F. P. (1976). Indian Policy in Crisis: Christian Reform ers and the Indian, 1865 ¯ 1900. University of Nebraska Press, Lincoln. Prucha, F. P. (1984) . The G reat Father: The United States G overnm ent and the Am erican Indians. University of Nebraska Pre ss, Lincoln. Russell, D. E., Martell, A. M., and Nixon, W. A. C. ( 1993) . Range ecology of the porcupine caribou he rd in Canada. Rangifer (Special Issue No. 8) . Strickland, R. et al. (1982) . Felix Cohen ’s Handbook of Federal Indian Law. The Michie Co, Charlottesville, V A. Tre nt, J., Kruse, J. and Leask, L. (1996) . Unde rstanding Harve st Assessme nt in the North: Synthesis of the Conference on Harvest Assessmen t, April 20 ¯ 22, 1995, Girdwood Alaska. Unive rsity of Alaska Anchorage , Institute of Social and Economic Developme nt and Alaska De partment of Fish and Game, Anchorage . Tuan, Y.-F. (1966) . New Mexico gullies: A critical revie w and some re cent observations. Annals of the Association of American G eographers 56: 573-582. Unde rhill, R. M. (1967) . The Navajos (rev. e d.). University of Oklahoma Press, Norman. U.S. Soil Conservation Service (1936). Annual Report of the Navajo Proje ct. U.S. Soil Conservation Service, Navajo Service . Usher, P. J., and Banks, N. D. ( 1986) . Property: The Basis for Inuit Hunting Rights— A New Approach. Inuit Committee on National Issues, Ottawa. White, R. (1983) . The Roots of Depen dency: Subsisten ce, Environm ent, and Social Change Among the Choctaws, Pawnees, and Navajos. The University of Nebraska Press, Lincoln. Wilkinson, C. ( 1987) . Am erican Indians, Time and the Law: Native Societies in a Modern Constitutional Dem ocracy. Yale Unive rsity Pre ss, New Haven. Williams, W. A. (1961) . The Contours of American History. The World Publishing Company, Cleve land. Wittfogel, K. A. ( 1957) . Oriental Despotism : A Com parative Study of Total Power. Yale University Press, New Have n. Worster, D. ( 1985) . Rivers of Em pire: Water, Aridity and the G rowth of the Am erican West. Pantheon Books, Ne w York.

Native American Sovereign ty an d Resour ce Man agem en t

449

Young, O. (1982) . Resource Regim es: Natural Resources and Social Institutions. Unive rsity of California Pre ss, Berkele y. Young, O. (1989) . In ternational Cooperation: Building Regim es for Natural Resources and the Environm ent. Cornell Unive rsity Pre ss, Ithaca.