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In the Room Where It Happens: How Federal Appropriations Law Can Enforce Tribal Consultation Policies and Protect Native Subsistence Rights in Alaska

Abstract: Federal-tribal consultation is one of the only mechanisms available to American Indian and Alaska Native communities to provide input on federal management decisions impacting their subsistence lands and resources. While the policies of many federal agencies “require” consultation, agencies routinely approach consultation as a procedural checklist rather than a two-way dialogue for receiving, considering, and incorporating tribal needs and concerns. Substantive failure to consult is particularly harmful for Alaska Native communities that rely heavily on subsistence resources yet lack treaties to enforce hunting and fishing rights. The Alaska National Interest Lands Conservation Act (ANILCA) contains a “rural priority” provision that expressly protects hunting and fishing rights for rural Alaskan residents, but agency policies have consistently failed to enforce this priority through consultation. This Comment harnesses two federal statutes—provisions of Public Laws 108-199 and 108-447— as means of enforcing ANILCA’s rural priority to better protect Alaska Native subsistence resources. It also proposes solutions for how federal legislation can better enforce consultation procedures and promote tribal sovereignty and self-determination.

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