Legislature(1997 - 1998)
03/20/1997 01:10 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 21 - REQUESTING CONGRESS TO AMEND ANILCA Number 0102 CO-CHAIRMAN OGAN announced the first order of business was House Joint Resolution No. 21, relating to amendment of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA). CO-CHAIRMAN OGAN advised that the motion to move HJR 21 from committee, made by Representative Barnes at the March 13 hearing, was on the table when that meeting adjourned. Number 0149 CO-CHAIRMAN BILL HUDSON made a motion to table the previous motion and noted that Representative Barnes was now absent. There being no objection, it was so ordered. CO-CHAIRMAN OGAN advised that the current meeting was to take testimony by invitation, primarily from people unable to testify on March 13 because of lack of teleconference lines. He did not intend to move HJR 21 that day. Number 0275 ANGIE MORGAN testified via teleconference from Aniak. Born in Upper Kalskag, 30 miles away, she works for the Kuskokwim Native Association, Natural Resources and Subsistence. She testified "on behalf of our people from this region." MS. MORGAN said economic and cultural survival of the Alaska Native community is the principal reason why the U.S. Congress enacted its rural subsistence preference in 1980. There are few jobs and little cash in rural areas. Hunting, fishing and gathering provide Native people with productive work and self-esteem. If the subsistence-based economies and cultures of Alaska's villages fail, there will be devastating consequences. MS. MORGAN invited Representative Masek to revisit Native villages. She herself lived in Anchorage almost ten years. When she moved back, she needed to relearn the village lifestyle. Where she lives, a loaf of bread costs $2.85. People only buy meat at the store when they must. It costs a middle-sized family $18,000 per year for food without subsistence. With welfare reform and high energy costs, rural residents are having a hard time. Number 0690 CO-CHAIRMAN OGAN clarified that HJR 21 does not call for amending the rural preference portion of ANILCA. Number 0720 THOMAS TILDEN testified via teleconference as a citizen from Dillingham. He grew up in a small village 40 miles away. He hopes legislators do not think Representative Masek is speaking on behalf of the Native people. He is almost offended by what is being attempted. He wishes legislators would come to the villages and discuss the impacts of amending ANILCA. MR. TILDEN said with the rural subsistence preference prior to 1989, there were no detrimental effects to the state. He believes Title VIII of ANILCA protects Alaska Natives' customary and traditional way of life. Ironically, the Alaska constitution provides for protection of natural resources or habitat, but not for Alaska Natives, who have long been part of the ecosystem. Number 0941 CO-CHAIRMAN OGAN noted that he was in Mr. Tilden's village in 1980 or 1981 and had been up and down that river numerous times. The teleconference operator advised that Robin Samuelson had elected to have Terry Hoefferle testify on his behalf. Number 0986 TERRY HOEFFERLE, Chief Executive Officer, Bristol Bay Native Association (BBNA), testified via teleconference from Dillingham. The BBNA had opposed, by resolution and on the floor of the Alaska Federation of Natives (AFN) convention, the federal government's stepping in to manage Alaska's resources, in part because elder statesmen remembered clearly what it was like when the federal government managed the fisheries. Mr. Hoefferle had never thought he would prefer federal over state management. Number 1023 MR. HOEFFERLE read into the record Resolution 97-42, opposing HJR 21, passed the previous day by the BBNA board of directors: "Whereas: the Bristol Bay Native Association is a tribal organization serving 31 Alaska Native communities, each of which is heavily dependent upon subsistence use of fish and game; and "Whereas: the laws of the State of Alaska provide no meaningful priority or protection for subsistence use of fish and game because they equate recreational [sic]; and "Whereas: if the current policies and laws of the State of Alaska regarding subsistence use of fish and game are extended to apply statewide, then Alaska Native culture, tradition and indeed village life itself will eventually be destroyed because of continuing urban population growth and resultant pressure on fish and game resources; and "Whereas: cutbacks on government spending on welfare and other services in rural Alaska are making subsistence even more essential; and "Whereas: the only meaningful legal protection for subsistence and the continued vitality of Native subsistence-based culture is Title VIII of the Alaska Native Interest Lands Conservation Act (ANILCA); and "Whereas: House Joint Resolution 21 has been introduced in the Alaska State Legislature and asks Congress to amend Title VIII of ANILCA in a manner which will effectively destroy the protection it gives to subsistence; and "Whereas: some of the changes requested by HJR 21 would have no practical effect, as they reflect a fundamental misunderstanding of the law, for example: State and private land are already excluded from definition of public land in ANILCA, and ANILCA already neither confirms nor denies the existence of tribal sovereignty and Indian country in Alaska; and "Whereas: HJR 21 contains many other inaccuracies of law and fact; and "Whereas: HJR 21 is cleverly worded to distort the truth and appears to intend to work a subterfuge on the people of Alaska; and "Whereas: among the falsehoods in HJR 21 are that its title implies it is for a mere amendment to Title VIII, whereas it would actually gut the protections for subsistence uses in Title VIII; that views expressed in HJR 21 are not a plurality of opinion in Alaska, but a minority; polls have continually shown a majority preference for a constitutional amendment to restore a rural subsistence priority to state law; Title VIII of ANILCA does not `unnecessarily' encroach upon state authority but is a reasonable and necessary exercise of congressional authority to meet the trust obligations of the United States government toward Native Americans; Title VIII of ANILCA does not contradict the 10th Amendment to the U.S. Constitution; both state and federal courts have consistently upheld the constitutionality of Title VIII against [the] Tenth Amendment and other constitutional challenge; Number 1206 "Now therefore be it resolved by the Board of Directors of the Bristol Bay Native Association on behalf of itself and the following Alaska Native communities: Aleknagik, Chignik Bay, Chignik Lagoon, Chignik Lake, Clarks Point, Dillingham, Egegik, Ekuk, Ekwok, Igiugig, Iliamna, Ivanof Bay, Kanatak, King Salmon, Kokhanok, Koliganek, Levelock, Manokotak, Naknek, New Stuyah Newhalen, Nondalton, Pedro Bay, Perryville, Pilot Point, Point Heiden, Portage Creek, South Naknek, Togiak, Twin Hills and Ugashik; that they ardently oppose HJR 21 and urge its defeat in the state legislature and its rejection by Congress. "Be it further resolved that copies of this resolution be sent to the Alaska congressional delegation; Governor Tony Knowles, the honorable Bruce Babbitt, Secretary of Interior; Senator Ben Nighthorse Campbell; Senator Daniel Inouye; the House and Senate leadership in the Alaska State Legislature; State Senator Lyman Hoffman; and Representatives Ivan Ivan and Carl Moses. Signed: Daniel Nielsen, President." Number 1271 CO-CHAIRMAN HUDSON said in following this issue for ten to twenty years, he had heard and experienced polarization between rural and urban Alaskans. He thanked Mr. Hoefferle for mentioning possible inconsistencies in HJR 21 and said they would look at those. He asked whether Mr. Hoefferle did not support, ultimately, Alaska managing its own fish and wildlife resources. Number 1341 MR. HOEFFERLE wished he could say yes. However, he believes HJR 21 asks for substantial changes that would gut the effective protections of subsistence that ANILCA provides. He expressed sadness at the legislature's treatment of rural Alaskans, including refusal to let Alaskans vote on the subsistence issue or place it on the ballot for a constitutional amendment. In light of welfare reform and possible elimination of 32 positions in the Department of Health and Social Services, he is losing faith in the legislature's commitment to protect Alaskans and meet their needs. Number 1461 CO-CHAIRMAN HUDSON commented that one major problem is that this is a multifaceted, polarized situation. Number 1514 DARLENE PETERSON, Tribal Administrator, Chuathbaluk Traditional Council, testified via teleconference. She said Natives have a right to live their way of life. However, they must always defend themselves to the legislature on subsistence, welfare and whatever else arises. She suggested there be more time to get informed about legislation. Number 1604 OLGA BOROWSKI, Vice Chairman, Chuathbaluk Traditional Council, testified via teleconference. She asked what changes would occur if subsistence came under state management. CO-CHAIRMAN OGAN replied that HJR 21 does not call for a change to rural preference. Rather, it calls for Alaskans to define terms like "traditional," "customary," and "rural." MS. BOROWSKI said after her monthly food stamps run out, she must rely on subsistence, which she believes should be managed by the federal government. Number 1701 MARK JACOBS, JR., testified via teleconference from Sitka, saying he is 73 years old and has been involved in politics for over 50 years. When ANILCA was pending in Congress, the Alaska legislature took action to comply with it. "It was a piece of legislation that we agreed with, and that was for Native and non-Native alike," he said. "And then we began to have challenges from sportsmen's associations. And to us, this endangered our inherent rights." MR. JACOBS said the state and federal governments, including the U.S. Congress, do not use the word "inherent." Instead, they use "traditional and customary." He claims inherent rights, not subject to legislation, which he has possessed all his life and which are immune to statutory regulation. He said inherent rights are common law rights, and there are no common law violations against a constitutional government, which includes both federal and state constitutions. Number 1775 MR. JACOBS said under the statehood act, the state and its people were required to disclaim any right or title, including fishing, to any land claimed and owned by Indians, Eskimos and Aleuts. He referred to the state constitution, Article XII, Section 12, and said it contains the word "forever" and cannot be changed, not even by the federal government. "Inherent rights is in the same category as not being subject to statutes," he said. MR. JACOBS stated, "To begin with, when we first filed our land claims suit, it was a trespass suit. And I have noticed that there is no language in the Alaska Native Claims Settlement Act that we've sold the lands. We still own it. And it is still a trespass on state -- on Alaska lands. We still own it and claim it, and that the act guarantees us maximum participation when the Native rights are in ...." Mr. Jacobs said he wished he could spend a day or an hour with the committee. Number 1851 CO-CHAIRMAN OGAN invited Mr. Jacobs to visit in Juneau and said he would inform Mr. Jacobs if he plans to be in Sitka. He commented that if every indigenous person in Alaska claimed an inherent right to take whatever fish and game they see fit, Alaska would have an anarchy and would probably lose the resource. He believes some kind of cohesive management is necessary. Nonetheless, he expressed respect for Mr. Jacobs' opinion. Number 1890 RICHARD SLATS, Chevak Traditional Council, testified via teleconference in opposition to HJR 21. He read the following into the record: "The Kashunamiut are a federally recognized tribe who is represented by their tribal government, the Chevak Traditional Council, whose primary goal is to protect the health, safety and welfare and the inherent traditional and cultural rights of the Kashunamiut and for their best interests. Let this acknowledge that we are in opposition of the House Joint Resolution No. 21, as it infringes upon our inherent rights and will exploit our ancestral lands which are located on the Yukon Kuskokwim Delta National Wildlife Refuge, which has been protected by -- or we feel which has been protected by ANILCA, Title VIII, Subsistence Use and Management, as it is written. "ANILCA Title VIII should not be amended because the resolution HJR 21 contradicts the whole purpose of Title VIII. These amendments are also directly contradicting the RurAL CAP subsistence round table, which was held in Anchorage February 1997. The State of Alaska may be out of compliance of ANILCA, Title VIII, concerning subsistence. The State of Alaska tends to lean towards sports, commercial and other special interest groups that are not aware of the importance of the subsistence issues and use for the rural communities. "The following are section responses to the `further resolved' of the proposed resolution: "(1) Public land is already defined in the Federal Register, Volume 57, No. 20, and ANILCA, Title VIII. "(2) Congress is already authorized to take over management if [the] state is not in compliance. [Resolve (3) not addressed] "(4) Section 807 provides for protection of subsistence users, and repeal would undermine authority of the federal judicial system. "(5) The customary and traditional use, subsistence use and rural are defined in the Federal Register, Volume 57, No. 20, January 30, 1992, proposed rules of the Department of Interior, under Section 4, Definition of Subpart A - General Provision. They are listed as such in the final Subsistence Management for Federal Public Lands in Alaska, which attests to the Webster's definition of [sic]. The definition of the aforementioned terms are already defined and what this resolution proposes to do is to authorize the State of Alaska to rewrite the Webster's Dictionary to soothe Masek's and Ogan's HJR 21. "(6) Under Title VIII, Section 804, the subsistence preference is already addressed. ... The House Joint Resolution 21 contradicts the purposes and policies of ANILCA, Title VIII. "(7) Tribal sovereignty and Indian country issues have been decided in favor of the tribes across Alaska but is presently in the appeal process; no amendments should even be considered because court cases on these issues are and may be pending. "(8) The State of Alaska ... should not have an option because if subsistence management is handed to the State of Alaska, it would be their obligation to establish regional advisory councils, meaning they should be mandated to establish such councils rather than to choose to do so. "(9) The Sections (8) and (9) proposed amendments are addressed in Section 805(a)(2) and (3)(D)(iv). "(10) The sale of fish and wildlife taken for subsistence uses supplements incomes for expenses incurred for hunting necessities, ammunition, gasoline and oil and other gears to do more subsistence hunting and fishing." Number 2108 MR. SLATS concluded that HJR 21 contradicts Title VIII of ANILCA. Furthermore, there are provisions in 16 U.S.C. 3119 for the state to enter into a cooperative agreement, rather than rewriting the whole purpose and policy section of Title VIII. The Kashunamiut, the Chevak Traditional Council, Chevak Tribal Courts and their departments oppose HJR 21, which they feel is a direct assault against Alaska Natives. CO-CHAIRMAN OGAN announced that testifiers could fax comments to (907) 465-3265. Number 2190 GEORGE MORGAN, JR., testified via teleconference from Upper Kalskag. He and his ancestors had managed fish and game all their lives. They knew not to waste, and they respected the animals and fish. While they were being restricted on chum salmon, however, others were catching 700,000 fish. Mr. Morgan said 70 percent of his food comes from subsistence. MR. MORGAN stated, "We were here first. We will always manage our land better than the state and federal governments." He said the federal government assisted in managing resources. The state government, however, has taken away money for advisory councils and welfare, while allocating $1 million "to fight your own people." He opposes HJR 21 because it does not protect what was agreed upon. MR. MORGAN suggested meetings in places such as Bethel, Nome, Barrow and Kodiak. He thanked Representative Masek for bringing this up so people could comment. He believes the federal government will do a better job for now. Currently, there is a lot of fish and game; he hopes this can be worked out before it is too late. He suggested 90 percent or more of state funding comes from rural Alaska. "Please don't take our subsistence way of life away. We depend on that," he concluded. Number 2308 CO-CHAIRMAN OGAN advised that public testimony was closed. REPRESENTATIVE BILL WILLIAMS said he wants to settle the subsistence issue. The state is in a critical position with subsistence. The federal government has taken hold, and it will be difficult to "get them out of our house." The federal government is not using biological science to manage Alaska's hunting and fishing. When the federal government managed Alaska's fisheries, there were no fish. REPRESENTATIVE WILLIAMS reported that Senators Stevens and Murkowski had told him it is up to the legislature and the governor to solve it, whether through ANILCA, the state constitution, or both. He said subsistence will stop commercial fishing, hunting and even logging throughout Alaska. Alaska is losing its resources. He cannot stress enough how important it is for Alaska to take care of the subsistence problem. REPRESENTATIVE WILLIAMS believes everyone affected must come to the table. He did not recall hearing one rural community in favor of HJR 21. He stated his hope that everyone can get past the polarization. "We're only hearing one side of it, and we only have one side of the fix," he said. "We need both sides, the rural communities talking on this also." TAPE 97-28, SIDE B Number 0006 REPRESENTATIVE WILLIAMS advised that he had asked the Speaker of the House to hold a majority caucus on the subsistence problem. He believes an issue as controversial as this requires time. He suggested going to rural Alaska and asked that HJR 21 be held until after the caucus. Number 0059 CO-CHAIRMAN OGAN said much of what he is hearing from rural communities is fear and mistrust. He thinks the perception is that the agenda behind HJR 21 is eliminating subsistence. However, that is not the objective. It is simply trying to let Alaskans resolve this. He believes if Alaska is to settle it as a state, it must be done the first half of this legislative session. Number 0110 REPRESENTATIVE REGGIE JOULE explained that his given name means "when a whale is caught in the village and the person is getting the membrane from the liver for the purpose of using it to make a drum, to get a softer sound." He said subsistence is more than just hunting and fishing. It goes into every fiber of the people in rural Alaska, down to how they carry their names. REPRESENTATIVE JOULE stated, "I would submit that if we were to go to our congressional delegation, bringing people who are at odds over this issue, and letting them know that we are coming to the table to try to resolve this, that our congressional delegation would work very hard to get a waiver and an extension." He indicated Senator Murkowski had mentioned that. REPRESENTATIVE JOULE said he opposes HJR 21. First, there is general mistrust in rural areas, some of which relates to the state's advocating for sport hunting and fishing. While that brings in tens of millions of dollars to the Alaskan economy, subsistence gathering by rural Alaskans brings in little in terms of new economy. Number 0262 REPRESENTATIVE JOULE referred to federal management, or no management, and said prior to 1971 or 1972, polar bears were nearly extinct from sport hunting. Since the Endangered Species Act, both polar bear and walrus populations have bounced back. REPRESENTATIVE JOULE asked that the sponsor consider tabling HJR 21 so that people can come to the table with no agenda, to see if progress can be made. He believes state management, if it can be accomplished, is best. He would rather settle this issue with the 600,000 Alaska residents, as opposed to the 600 million who have access through the federal government system. However, he also believes they must come to the table with no agenda, or at least with more openness. REPRESENTATIVE JOULE expressed appreciation for holding over the resolution and allowing additional testimony. REPRESENTATIVE JOULE discussed teaching his children about the gift of sharing. He said for years, he believed that meant giving a little of the harvest to another person. Then he heard discussion from elders who were unable to go out anymore. They asked the children where they went and how they got the foods. As the children recanted the tales, there was deep spiritual bonding between the generations. He indicated there is more to subsistence than comes across on telephone lines. He asked that the committee go to where the expertise lies. Number 0449 REPRESENTATIVE IRENE NICHOLIA spoke via teleconference. She thanked Co-Chairman Ogan for hearing the resolution again. She concurred with Representative Joule's comments. Subsistence provides food to supplement rural people's budgets, and it is a tie to Native traditional and cultural practices. "We take great pride in having these activities, which helps us to bond with others in our communities," she said. She emphasized that when a moose or caribou is taken, they attempt to utilize every part of it. REPRESENTATIVE NICHOLIA said HJR 21 weakens the rural priority for subsistence under Title VIII of ANILCA. "We cannot let you do that," she said, emphasizing that subsistence is necessary to supplement the rural lifestyle. Number 0639 REPRESENTATIVE HUDSON said he believes this is a process at impasse. People are talking to, but not with, each other. If one element is missing, it is trust. He acknowledged concerns of both rural residents and people worried about violating equal access provisions within the constitution. He is convinced there is enough for everyone in Alaska. But how to re-establish that trust is the question. He said if nothing else, HJR 21 has clearly articulated the difficulty Alaskans are having in solving a problem that really should not be a problem. REPRESENTATIVE HUDSON acknowledged that some feel there is a conspiracy or power play to remove something they feel spiritually connected to. "And I don't believe that's the case, but I think it's perception," he said. He expressed frustration at the inability to come up with the "trust equity" needed to solve this issue. CO-CHAIRMAN OGAN concurred. Number 0825 REPRESENTATIVE FRED DYSON asked when HJR 21 would be heard again. CO-CHAIRMAN OGAN said although it would be before the committee again, he wanted to work with Representative Williams on the caucus issue. Number 0859 REPRESENTATIVE DYSON said he identifies with Co-Chairman Hudson's remarks. While HJR 21 on its face is a bright, imaginative and incisive attempt to solve the problem without going to either extreme, it is not widely perceived that way. There is more work to do to help people understand the intention. He believes there will be no progress until trust is built and people start talking. Unfortunately, he believes Alaskans are a long ways from that. REPRESENTATIVE DYSON said he, Co-Chairman Hudson and Representative Green just returned from the Yukon Territory, where parties are halfway through the process of resolving similar problems. Although they have gone about it in a reasonable manner, with everyone at the table, it has been a 20-year process to date. REPRESENTATIVE DYSON concurred with Co-Chairman Ogan that "we're under the gun here on time." The problem has been brewing for one or two hundred years, and it is long past the optimum time to get started. Now, the legislature would try to play catch-up, make up for lots of real and imagined past injustices, and try to get past the paranoia and prejudice to arrive at a solution. Although he will work hard, he guesses it will not get done in a timely fashion. Number 1016 CO-CHAIRMAN OGAN believes these issues were perceived to have been settled during statehood. Since then, however, they had unraveled. Number 1035 REPRESENTATIVE BEVERLY MASEK said it is important that Alaskans work together. She believes HJR 21 provides a good avenue for debating what needs to be done at the state level on subsistence. There have been 20 years of debate, money spent, studies done, and commissions and boards put together. Recently, RurAL CAP conducted a round table discussion including statewide Native representatives; although invited, she was unable to attend because of the legislative session. REPRESENTATIVE MASEK said in continuing discussions with her family in Anvik, where she grew up, she has never heard of shortages of fish and game. She believes rural areas increasingly depend on federal and state grant money. She further believes the AFN, despite good intentions, is using subsistence to polarize people and distort the real problems. Number 1279 REPRESENTATIVE MASEK said HJR 21 addresses questions of rural versus urban, race against race, dual management, and whether the federal government can continue to define subsistence regulations. She emphasized that nothing in HJR 21 removes protection for subsistence. She has lived the rural and subsistence lifestyle, and nobody can take that from her. Although a hundred years ago there was a true subsistence lifestyle, now people are caught between two different worlds. REPRESENTATIVE MASEK acknowledged that Natives and those who have moved to Alaska all have culture and tradition. She believes in respecting that. Equality is one of the most important issues, and that is how the United States was born 200 years ago. REPRESENTATIVE MASEK said in no other state has the federal government taken away the state's right and ability to manage its fish and wildlife. At both the state and federal levels, money goes to rural areas to strengthen the economy and help with education, health and social problems. She emphasized that there are no bad or ill feelings on the part of legislators. She pointed out that unfortunately, many jobs out there are state or other government jobs. She said HJR 21 allows the state to make decisions on definitions yet still retains the rural preference, which will not go away, even in times of shortage. REPRESENTATIVE MASEK said the bigger issue is that the state must act. The only other idea has been to change the state constitution. However, she believes that currently the majority of Alaskans want to see the constitution protected. Number 1542 CO-CHAIRMAN OGAN commended participants for the level of debate and the decorum of all involved. REPRESENTATIVE JOE GREEN reminded the committee that inaction is a decision. Number 1597 CO-CHAIRMAN OGAN called an at-ease at 2:32 p.m. He called the meeting back to order at 2:35 p.m. He announced the committee would hold HJR 21 over and reminded the public that testimony was closed.
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