Legislature(1995 - 1996)
03/22/1995 01:45 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 33 - AMENDMENTS TO ANILCA CHAIRMAN PORTER announced that the committee would take public testimony on HJR 33 only from those who had been available to testify on the previous Friday, who he had named, and also someone from the Governor's Office. The following people were unable to testify and were told their written testimony would be attached for the record: Those in support include: W.E. BARBER, Fairbanks LORREN R. SCHEEL, Fairbanks KATHLEEN DALTON, Fairbanks RICHARD H. BISHOP, Executive Director, Alaska Outdoor Council, Inc., Fairbanks BILL J. ALLEN, Fairbanks NANCY J. SHIKORA, Fairbanks GREG MACHACCK, North Pole DENNIS O. PETRE, Salcha KEITH C. KOONTZ, Fairbanks VELMA KOONTZ, Fairbanks CERENE J. PAUL, North Pole KATHERINE RICHARDSON, Fairbanks JAMES E. MOODY, Fairbanks HARRY JENKINS, Fairbanks BYRON W. HALEY, President, Chitina Dipnetters' Association, Fairbanks LAURA JANE WINEINGER, Chickaloon DAVID M. CARRY, Wasilla HARRY E. BYLYM, Wasilla MARRELLA WILBUR, Wasilla SANDRA K. WRIGHT, Wasilla CARL W. WILBUR, Wasilla ROBERT H. PARKERSON, Palmer GABE MILLER BONNIE I. WILLIAMS, Fairbanks THOMAS N. SCARBOROUGH, Fairbanks JEANNE EVERHART, Fairbanks PHIL SUMMERS, Fairbanks GARY GUNDERSEN, Fairbanks ROBERT E. HILL, North Pole ROBERT L. BERG, Fairbanks DOUG EVERHART, Fairbanks HEIDI K. JOHN, Fairbanks MARK A. ANDERSON, Fairbanks ALASEN S. LINCK, Fairbanks GARY JOHN NUSSBAUMER, Fairbanks DARYL SOBEK JERRY L. FREEL, Fairbanks EDDIE GRASSER, Alaska Outdoor Council, Juneau WILLIAM BREWER, JR., Fairbanks DALE BONDURANT, Soldotna ANDY WARWICK ROBERT FOX, Fairbanks RICK SCHIKORA, Fairbanks DAN FAILONI, Fairbanks RUSS AND DONNA REDICK, Anchorage RENEE D. LOZIER, Fairbanks RICHARD AND CAROL SWISHER, Fairbanks TOM RAMSEY, Fairbanks TED MORPHIS, Fairbanks DAVID M. JOHNSON, Anchorage CHRISTOPHER BATIN, Editorial Director, Batin Communications, Fairbanks WAYNE L. CLARK TRACY MORPHIS, Fairbanks LARRY RIVERS, Talkeetna MIKE SHIELDS, Fairbanks MARY BISHOP, Fairbanks STEVEN D. DANIELS, Fairbanks JOHN W. HENDRICKSON, Anchorage KIM M. PENDLETON, Anchorage Those persons who submitted written testimony against HJR 33 are as follows: CLARE SWAN, Tribal Chairperson, Kenaitze Indian Tribe, IRA, Kenai COMMISSIONER FRANK RUE, Department of Fish and Game RAYMOND S. NIELSEN, JR., Sitka Tribe of Alaska MAX AHGEAK, President, Ukpeagvik Inupiat Corporation, Barrow HARRY K. BROWER, Barrow JIMMY P. ERICK, Venetie CLYDE WILLIAMS, Fort Yukon KEVIN B. CHARLES, Minto STEVE GINNIS, Native Village of Fort Yukon CHUGACHMIUT BOARD OF DIRECTORS LUCY D. ASHENFELTER, White Mountain Number 070 ART NELSON, Fisheries Specialist, Kawarek, Incorporated, testified via teleconference. He said the rural conference, as outlined in ANILCA is only intended to apply in times of resource shortages. In an ideal world there would be no shortage of resources, and the rural conference would not even need to be applied. But shortages do occur, and it is during those times of shortage that the rural residents of the state of Alaska need to be given our highest priority. It is those people who may not have access to a car or to a Fred Meyer to get food at a reasonable cost. It is those people who need to get a moose or a salmon to feed their family when there may not be enough moose or salmon for everyone to share. This legislature needs to stop trying to undermine ANILCA. Trust the voters of this state and let them decide. JONAH POKIENNA, Chairman, Walrus Commission, testified via teleconference, saying they strongly opposed HJR 33. Number 145 ROY ASHENFELTER testified via teleconference. He is opposed to HJR 33. In regards to the questions at the last meeting about welfare, he felt that people who qualify for welfare should not be penalized in any way for choosing the subsistence lifestyle. You have to remember that people living out in the villages have very limited resources. The resources that they do depend on are from the land and from the water. People who live in urban areas have access to other places such as "Carrs" and malls, or whatever. We need to have the people of the state of Alaska vote on this issue. REPRESENTATIVE CON BUNDE commented on the urban welfare question. People call subsistence "work" in the rural areas, yet they can still qualify for welfare; yet, people in urban areas who go to work no longer qualify for welfare, nor would they qualify for subsistence under ANILCA. Number 195 JULIE KITKA, President, Alaska Federation of Natives, testified via teleconference. She urged the committee to vote down this Resolution. HJR 33 is an exercise in public relations, not policy making. HJR 33 will not help return the management of fish and game to state government. We cannot take the time and use our positions to arbitrate between Alaskans on issues such as subsistence. With the federal government managing the fish and game, the Native people for the first time have seen what a fair regulatory system looks like. Natives are suspicious of any return to state management. The rural subsistence preference is going to remain a federal law. The real issue is survival of the Native culture in the 21st century. She urged the legislature to vote against this. Number 270 STAN SMITH testified via teleconference. He expressed deep gratitude to Representative Beverly Masek for taking this issue on. He totally disagreed with Ms. Kitka. This is a state rights issue, it is not a subsistence issue. The state does have the responsibility and authority to manage fish and game in Alaska. HJR 33 should be able to get that message across. He did not think that the subsistence question was a life or death issue for rural Alaska. What the state needs to look at is bringing the villages into the 21st century, instead of trying to remain in the 17th or 18th century. He urged the immediate passage of this Resolution. Number 300 GEORGE MOERLEIN, a 34 year Alaska resident, testified via teleconference. He applauded the efforts of the current legislature to get the federal government to return to Alaska what was promised us in the Statehood Act. The current federal law has been proven contrary to our own Constitution. HJR 33 needs to be passed, with the amendment requesting that Title VIII of ANILCA be repealed in its entirety. Only then will Alaska be able to join the other 50 states in the ability to manage our fish and wildlife with no strings attached. Number 345 WARREN OLSON, a 37 year Alaska resident and plaintiff in McDowell II v. the U. S. Government testified via teleconference from Anchorage. He said ANILCA violates Article 1, Section 1, of the Alaska Constitution. It also violates Article 8, Sections 3, 15, and 17 of the Constitution. We are the only state in the Union that has an article in regards to natural resources for sharing among its residents as stipulated in the State Constitution. Resources should be shared among all of Alaska's citizens. ANILCA causes divisiveness. He encouraged equal opportunity for all Alaskans. JACK HENDRICKSON, President, Alaska Waterfowl Association, and Secretary, Alaska Chapter of Waterfowl, U.S.A, testified via teleconference. ANILCA is the most divisive legislation in Alaska. It purports to divide Alaskans into rural against urban. A lot of the subsistence rights are allocated by zip code. ANILCA was not brought about by some congressman, it was lobbied by the Alaska Federation of Natives. Pursuant to Section 6 of the Alaska Native Settlement Claims Act (ANSCA), the federal government gave Native corporations $462 million and 44 million acres of land. That is larger than Wisconsin. The state of Alaska paid $500 million to the Native Settlement Act. Now, in a more clearly disguised attempt, Section 8 gives the rural residents greater hunting and fishing rights than they had. Section 8 of ANILCA is racially discriminatory, it is poor fish and game management, and it violates the state of Alaska's right to manage fish and game resources. No other state has been so treated by the federal government. It is time that Sections 8.01 - 8.16 of ANILCA be repealed. KEN JACOBUS, Attorney, representing Sam McDowell, testified via teleconference. The state should have control of all fish and game in Alaska. Some people say the subsistence issue is white versus Native, or urban versus rural. Unfortunately, it is much more divisive than that. Subsistence is quickly becoming Native versus Native, village versus village. Because of subsistence, chum salmon are not making it upstream. We need to amend ANILCA and get our statehood back. He supported HJR 33. KEN JOHNS, Board member, Copper River Native Association (CRNA), testified via teleconference. He spoke against HJR 33. His region would probably be the most impacted area in Alaska by this Resolution. We are very fortunate to have an abundance of moose and caribou at times. The current system under state management is not working for our area. There are too many people taking wildlife resources. The eight Native villages belonging to CRNA have gone to the Game Board regarding hunting. Two years ago there were approximately 1200 moose taken out by our unit which we hunt with. Our eight villages accounted for only seven moose. Most of our villages were satisfied with how the system was working. The rural preference allowed us to hunt five days before the urban people came out, and also during an extended period of time afterwards. We used to have a lot better system than we do now. Everybody is eligible for subsistence and we are still competing. He is totally against amending ANILCA in any way. Number 630 ALFRED MCKINLEY, SR., represented the Alaska Native Brotherhood (ANB), encompassing 15 - 25 villages in Southeast Alaska. The ANB opposes HJR 33. Title VIII of ANILCA protects the subsistence lifestyle and the subsistence culture of Alaska's Native tribes. The harvesting done by subsistence users is approximately 4 percent. We fail to understand all of the fear over rural preference. Such preferences only take effect when a resource population declines. It is our tribal obligation to pass on to our children and grandchildren the knowledge of our cultural existence. HJR 33 sends the message that the state of Alaska intends to manage the land and waters regardless of the culture of Alaska Native tribes. Our people are protected by the Constitution of the United States, and we are also protected under the Treaty Session of the Alaska Purses from Russia, where it states that we shall not be usurped. Hopefully, one day, the urban and rural communities will get together and, as Senator Ted Stevens has said, we should all come into one room, lock the door and throw away the key until we compromise. REPRESENTATIVE BUNDE asked Mr. McKinley if he felt there was no shortage of resources, such as moose. MR. MCKINLEY answered that he does not see anything wrong with ANILCA and the resources are plentiful. Individuals in the state of Alaska are entitled to those resources. However, if the resources become depleted, the rural preference goes into effect. As long as we have good management, there is no problem. When the Alaska Native Claims Settlement Act was actually forced upon us, the oil companies actually pushed us right into the corner because they wanted to get the oil right away. We actually had aboriginal title to the state of Alaska. As a result, we only got about three dollars for an acre, which is not very much. We got the short end of it at the end. BRUCE BOTELHO, Attorney General, Department of Law, disagreed with HJR 33, but appreciated the fact that it is a vehicle for dialogue on one of the most important issues the state has yet to adequately resolve. In the State of the State Address, Governor Knowles reiterated two points. First of all, he indicated that there were two principles that should govern the Resolution, from his perspective, and from this Administration's perspective. One, that we work to return fish and game management to the state's control. Second, that we respect the priority for rural subsistence uses. MR. BOTELHO stated the second point Governor Knowles made was that any solution had to be an Alaskan based solution, which is the result of a genuine dialogue between Alaskans. He felt it was fair to say that Governor Knowles was very heartened by the fact that our Congressional Delegation delivered substantially the same message to Alaskans during the course of this session. It is quite clear that the resolution may involve a constitutional amendment, perhaps amendments to ANILCA, revisions to the structure of the state Fish and Game Board. ANILCA clearly articulates purposes that are rational, that are not arbitrary, and that this Administration subscribes to. People may disagree with the rationale provided, but to claim that they are arbitrary falls short. MR. BOTELHO continued, saying Congress made three specific findings. A continuation of the opportunity for subsistence uses by rural residents of Alaska include both Natives and non-Natives on the public lands. Allowing Alaska Natives on Native lands is essential to Native physical, economic, traditional, and cultural existence, and to non-Native physical, economic, traditional, and social existence. The situation in Alaska is unique, in that in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents, dependent on subsistence uses. Finally, Congress found continuation of the opportunity for subsistence uses of resources on public and other lands in Alaska is threatened by the increasing population of Alaska, with resultant pressure on subsistence resources suddenly claiming the populations of some wildlife species which are crucial subsistence resources, by increased accessibility of remote areas containing subsistence resources, and by taking fish and wildlife in a manner inconsistent with recognized principles of fish and wildlife management. HJR 33 also asserts in its preamble that ANILCA is intended to allocate resources without individual regard to a resident's traditional or historic use or need to engage in subsistence use. In some respects that Resolution is correct, but in a larger sense, it is not. ANILCA does not purport to limit or bar subsistence use by any resident, except when the resources are so limited that choices must be made between those who are subsistence users. Here there is no doubt, ANILCA has clearly sided with rural users, and the need to protect and defend the rural subsistence interests. MR. BOTELHO's third comment notes that the allocations are contrary to the principles of common use of and equal access to fish and wildlife that are inherent in the Constitution of the State of Alaska. In this respect, the Resolution perhaps misses the mark. The Constitution gives the power to the people to determine the amount of authority and the manner in which that authority would be exercised by government. It is for that reason that Governor Knowles has urged that we look to the people of Alaska to have the opportunity to vote on the constitutional amendment. They are the source of power, that is the inheritance. There is nothing inherent in the principles of common use and equal access. The people should have a right to choose. HJR 33 lays upon the Secretaries of Agriculture and the Interior the responsibility for requiring the state to amend its Constitution, and to note that Congress has provided or directed that if the state wishes to manage its fish and game, it is to be responsible for bringing the state's laws into consistency with federal law. He noted that to his knowledge, Congress has taken no action to modify the efforts of its predecessor. He made it clear that the Administration does not support HJR 33. It does not purport to protect the rural subsistence priority, and they believe that it contains several factual legal inaccuracies. But most importantly, we do not see it as a vehicle in itself to unite Alaskans in finding a solution. He assured that nothing he has said was meant in any way to denigrate their view of the sponsor's motives, their integrity, or their desire to find a genuine solution. He sees this as a vehicle for dialogue. This Resolution puts the topic on the table. He looked forward to participating with the sponsors of the Resolution, Representatives Masek and Toohey, in trying to fashion some opportunity for resolution and reconciliation among Alaskans on subsistence. REPRESENTATIVE BETTYE DAVIS asked Mr. Botelho to speak on Title 7, Sections 3 and 17, which was referenced in the opposition coming from the Department of Fish and Game. She wanted to know how this would apply. They interpreted it to say it should be noted that the Constitution says there is a provision for common use and equal application of the law. According to this, there is something in the Constitution saying there are times when you do not have to provide equal access, according to the State Constitution. MR. BOTELHO said Representative Davis was referring to an Article in the State Constitution which does provide for the common use. There have, at times, been challenges to that equal access. The one most notably so, was the challenge to the state's ability to impose limited entry. The state does, in fact, limit use in a variety of ways, to the resources of the state. Those have generally been held as constitutional. Nevertheless, the Supreme Court, with respect to subsistence, has specifically struck down legislation originally enacted by this body in 1986, that would have provided for a specific rural subsistence priority, and that is really what has triggered where we are today, which is trying to reconcile federal and state law, so that the state would be able to manage to the maximum extent possible its fish and wildlife resources. TAPE 95-34, SIDE B Number 000 CHAIRMAN PORTER asked Mr. Botelho if there were any appeals, reviews, or other approaches that could be made to the Supreme Court regarding their decision that seems to be driving this whole issue. MR. BOTELHO answered that there are perhaps vehicles to have the issue re-examined, but in the courts, the decision was a four to one vote. He frankly doubted that under the present circumstances, given not only this matter, but generally, the courts would rarely reverse their decision unless there had been some fundamental change in the law itself. It is very unusual, and he felt on this one, the court struggled a great deal before it reached its conclusion, and it would be very unlikely that trying to pursue another case would lead to a different result. Number 040 REPRESENTATIVE JOE GREEN asked what Mr. Botelho's opinion was on the fact that the federal government does not have the right to dictate to states that which has not been specifically granted in the Constitution. MR. BOTELHO said there is a very strong movement originating in the West, resounding throughout the country, and the actions by the electorate in November are a reflection of that. At the same time, the very fact that the steps being taken are largely through congressional actions, rather than through litigation, is tacit recognition that much of what has been done, Congress probably had the power to do, and people are exercising their right to revisit Congress. He is heartened by the fact that the solution is not being sought primarily through court action, but through direct legislative action to reduce the kinds of impacts on this state and others. It is quite clear that Congress would not take any action in this area, unless our Congressional Delegation were of one mind. It is the kind of intrusion into legislative prerogatives that Congress has generally, but not always, been sensitive to. ANWR is a good example where they have not been sensitive to our desires, but absent a support from our Congressional Delegation, he does not believe that Congress would expend any resources to make the kinds of changes that this Resolution calls for. The delegation itself has made it quite clear that it will not entertain sponsoring such changes, unless and until there is some sort of Alaska consensus. That brings us back to the dilemma we are in today. Number 115 REPRESENTATIVE DAVID FINKELSTEIN said this brings to mind the question of whether or not the federal government has the right to manage wildlife, and to what degree? The case came up years ago in New Mexico regarding the Wild Horses and Burros Act, where the state felt the federal government was imposing on their right to manage wildlife. It was determined that not only does the federal government have the right to manage fish and game on federal lands, but also on state and private lands, in some cases. It happens all the time in such cases as the Endangered Species Act. People may not agree with the policy, but it has been upheld by the courts as being constitutional. REPRESENTATIVE BUNDE asked Mr. Botelho what vehicle he would recommend for resolving this issue. MR. BOTELHO answered that a constitutional amendment would be one part of the puzzle. What may be required is to see major interest groups entering into a dialogue and reaching an agreement amongst themselves. There are a lot of Alaskans who do not pay a lot of attention to this issue. It will be looking to the leadership of groups such as the AFN, various commercial and sport fishing groups, and those concerned about the impacts on economic development this impasse may have on our inability to engage in economic development. Hopefully they will force the issue and bring some sort of consensus that people are prepared to live with, and both the Administration and the legislature as a whole can buy into. CHAIRMAN PORTER concluded the public testimony on HJR 33, and announced that many faxes of public testimony were coming in which would be included for the record. Number 225 REPRESENTATIVE BEVERLY MASEK, Sponsor of HJR 33, said this has been a pretty upbeat time for all of us, hearing the different sides of this issue. That is part of our democracy. Everyone has a right to their opinions and they must be respected. This is just a Resolution which has no fiscal impact, and because it does not have the force of law, however, it is an urgent message for congressional relief from an unconstitutional federal law. Why is it drawing so much attention? And why is it being used to resurrect the subsistence cry from rural Alaska? We, as legislators, must not be drawn into the emotional trap of eliminating subsistence. To the contrary, this will begin the process to really resolve the issue. First, we ask for relief, and if Congress will assist us, we will be free to implement a subsistence law based on individual criteria, not classes of people. Each Alaskan, no matter where they live, under state law may apply for a preference on an individual basis. Under ANILCA, they cannot. Under ANILCA a federal employee in Bethel who makes $150,000 per year, automatically has a preference, while an Alaska Native resident from Palmer, who makes less than $10,000 per year, cannot. This is why ANILCA must be amended. Villages are being pitted against villages, neighbors against neighbors. Actually, in her case, from hearing the testimony last week, it is her brother against her, his sister. Her brother, under federal law, has an automatic preference based solely on where he lives. Her son has no preference because of where they live. How can we call this nonsense under ANILCA protecting a culture? Cultures know no lines on maps, and are not to be identified by zip codes. To survive, cultures, societies and individuals must be able to be free to practice their lifestyle no matter where they live. Her point here is to show what the federal law is doing to people, communities and families. Our state law does not do this and it can be improved so that all Alaskans can be treated fairly, no matter where they live or how they live. She urged the committee's support for and passage of this Resolution. REPRESENTATIVE BUNDE made a motion to move HJR 33 from the committee with individual recommendations. REPRESENTATIVE DAVIS objected and a roll call vote was taken. Representatives Toohey, Bunde, Green and Porter voted yes. Representatives Finkelstein and Davis voted no. Representative Vezey had stepped out. HJR 33 moved out of committee with a four to two vote.
| Document Name | Date/Time | Subjects |
|---|