Legislature(1995 - 1996)
03/17/1995 01:22 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 17, 1995
1:22 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 47: "An Act relating to the crime of unlawful evasion."
PASSED OUT OF COMMITTEE
HB 48: "An Act relating to motorcycle safety and to use of
helmets by operators of motorcycles."
PASSED OUT OF COMMITTEE
HB 127: "An Act increasing the minimum term of imprisonment for
assaults in the fourth degree committed against a peace
officer, fire fighter, correctional officer, emergency
medical technician, paramedic, ambulance attendant, or
other emergency responders."
PASSED OUT OF COMMITTEE
HB 38: "An Act relating to criminal sentencing; relating to the
availability for good time credit for offenders convicted
of certain first degree murders; relating to mandatory
life imprisonment, parole, good time credit, pardon,
commutation of sentence, modification or reduction of
sentence, reprieve, furlough, and service of sentence at
a correctional restitution center for offenders with at
least three serious felony convictions; and amending
Alaska Rule of Criminal Procedure 35."
PASSED OUT OF COMMITTEE
*HJR 33: Requesting the Congress to amend Title VIII of the
Alaska National Interest Lands Conservation Act.
HEARD AND HELD
(* First public hearing)
WITNESS REGISTER
REPRESENTATIVE KAY BROWN
Alaska State Legislature
State Capitol, Room 517
Juneau, AK 99801-1182
Telephone: (907) 465-4998
POSITION STATEMENT: Sponsored HB 47
GERALD BAILEY, Program Director
Gastineau Human Services
5597 Aisek
Juneau, AK 99801
Telephone: (907) 780-4338
POSITION STATEMENT: Testified in favor of HB 47
REPRESENTATIVE TOM BRICE
Alaska State Legislature
State Capitol, Room 426
Juneau, AK 99801-1182
Telephone: (907) 465-3466
POSITION STATEMENT: Sponsored HB 48
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-4037
POSITION STATEMENT: Testified in favor of HB 48
LEE ANN LUCAS, Special Assistant to the Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Testified in favor of HB 48
SCOTT HAMANN, Legislative Representative
Alaska Bikers Advocating Training and Education (ABATE)
P.O. Box 934
Kenai, AK 99611
Telephone: (907) 283-4481
POSITION STATEMENT: Testified in favor of HB 48
BRUCE CAMPBELL, Administrative Assistant
to Representative Pete Kelly
Alaska State Legislature
State Capitol, Room 513
Juneau, AK 99801-1182
Telephone: (907) 465-2327
POSITION STATEMENT: Introduced HB 127
FATE PUTMAN
Alaska State Employees Association
641 West Willoughby
Juneau, AK 99801
Telephone: (907) 463-4949
POSITION STATEMENT: Testified in favor of HB 127
JERRY SHRINER, Special Assistant
Office of the Commissioner
Department of Corrections
240 Main Street, Suite 700
Juneau, AK 99801
Telephone: (907) 465-4640
POSITION STATEMENT: Testified in favor of HB 127
ANNE CARPENETI, Committee Aide
House Judiciary Committee
State Capitol, Room 120
Juneau, AK 99801-1182
Telephone: (907) 465-4990
POSITION STATEMENT: Provided information on HB 127
JERRY LUCKHAUPT, Legislative Legal Counsel
Legislative Legal Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, AK 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Provided information on CSHB 38
REPRESENTATIVE BEVERLY MASEK
Alaska State Legislature
State Capitol, Room 418
Juneau, AK 99801-1182
Telephone: (907) 465-2679
POSITION STATEMENT: Sponsor of HJR 33
REPRESENTATIVE EILEEN MACLEAN
Alaska State Legislature
State Capitol, Room 405
Juneau, AK 99801-1182
Telephone: (907) 465-4833
POSITION STATEMENT: Testified against HJR 33
REPRESENTATIVE IVAN IVAN
Alaska State Legislature
State Capitol, Room 503
Juneau, AK 99801-1182
Telephone: (907) 465-4942
POSITION STATEMENT: Testified against HJR 33
REPRESENTATIVE IRENE NICHOLIA
Alaska State Legislature
State Capitol, Room 501
Juneau, AK 99801-1182
Telephone: (907) 465-4527
POSITION STATEMENT: Testified against HJR 33
PATRICK WRIGHT
P.O. Box 90386
Anchorage, AK 99509
Telephone: (907) 279-1340
POSITION STATEMENT: Testified in favor of HJR 33
WILLIE KASAYULIE, Chief Executive
Akiachak Tribal Council
P.O. Box 70
Akiachak, AK 99559
Telephone: (907) 825-4626
POSITION STATEMENT: Testified against HJR 33
ANDY GOLIA
Bristol Bay Native Association
P.O. Box 310
Dillingham, AK 99576
Telephone: (907) 842-5307
POSITION STATEMENT: Testified against HJR 33
ORVIL HUNTINGTON, Tribal Member
Huslia Tribe
P.O. Box 85146
Fairbanks, AK 99709
Telephone: Not Available
POSITION STATEMENT: Testified against HJR 33
MARK JACOBS JR.
Central Council, Tlingit and Haida
P.O. Box 625
Sitka, AK 99835
Telephone: (907) 747-8168
POSITION STATEMENT: Testified against HJR 33
LORETTA BULLARD, President
Kawerak, Inc.
P.O. Box 948
Nome, AK 99762
Telephone: (907) 443-5231
POSITION STATEMENT: Testified against HJR 33
BOB CHARLES, Vice President of Operations
Association of Village Council Presidents
Yukon-Kuskokwim/Delta Region
P.O. Box 219
Bethel, AK 99559
Telephone: (907) 543-3521
POSITION STATEMENT: Testified against HJR 33
TERESA CLARK
P.O. Box 311
Galena, AK 99741
Telephone: (907) 656-1829
POSITION STATEMENT: Testified against HJR 33
RUTH WILLARD, First Vice President
Tlingit and Haida
Alaska Federation of Natives Board Member
1200 Eagle Street, No. 3
Anchorage, AK 99501
Telephone: (907) 272-4885
POSITION STATEMENT: Testified against HJR 33
DALE BONDURANT
HC 1, Box 1197
Soldotna, AK 99669
Telephone: (907) 262-0818
POSITION STATEMENT: Testified in favor of HJR 33
EILEEN NORBERGE, Deputy Director
Kawerak, Inc.
P.O. Box 948
Nome, AK 99762
Telephone: (907) 443-5231
POSITION STATEMENT: Testified against HJR 33
LORETTA LOLNITZ, Athabascan Indian
P.O. BOX 25
Koyukuk, AK 99754
Telephone: (907) 927-2253
POSITION STATEMENT: Testified against HJR 33
HAROLD MARTIN, President
Southeast Native Subsistence Committee
320 West Willoughby Avenue, Suite 300
Juneau, AK 99801
Telephone: (907) 586-1432
POSITION STATEMENT: Testified against HJR 33
VERNON OLSON, Vice President
Bering Straits Native Corporation
P.O. Box 1008
Nome, AK 99762
Telephone: (907) 443-5252
POSITION STATEMENT: Testified against HJR 33
STANLEY JONAS
P.O. Box 13
Canyon Village, AK 99740
Telephone: (907) 662-2944
POSITION STATEMENT: Testified against HJR 33
ROBERT FIFER
P.O. Box 60300
Fairbanks, AK 99706
Telephone: (907) 876-5014
POSITION STATEMENT: Testified against HJR 33
ISAAC JUNEBY
P.O. Box 107
Eagle, AK 99738
Telephone: (907) 547-2307
POSITION STATEMENT: Testified against HJR 33
HARRIET CARLO
P.O. Box 285
Galena, AK 99741
Telephone: (907) 656-1764
POSITION STATEMENT: Testified against HJR 33
CARL JERNE, JR. (REPRESENTATIVE BEVERLY MASEK'S BROTHER)
First Chief, Anvik Tribal Council
P.O. Box 10
Anvik, AK 99558
Telephone: (907) 663-6331
POSITION STATEMENT: Testified against HJR 33
JERRY SAM, Chief
General Delivery
Aletna, AK 99720
Telephone: (907) 455-8946
POSITION STATEMENT: Testified against HJR 33
CESA SAM, Tribal Administrator
P.O. Box 70
Huslia, AK 99746
Telephone: (907) 829-2294
POSITION STATEMENT: Testified against HJR 33
JEREMIAH RILEY
P.O. Box 285
Galena, AK 99741
Telephone: (907) 656-1764
POSITION STATEMENT: Testified against HJR 33
STANLEY NED
P.O. Box 27
Allakaket, AK 99720
Telephone: (907) 479-6805
POSITION STATEMENT: Testified against HJR 33
MARTHA FALK, House Researcher
Representative Eileen MacLean
Alaska State Legislature
State Capitol, Room 405
Juneau, AK 99801-1182
Telephone: (907) 465-4833
POSITION STATEMENT: Testified against HJR 33
MIKE LOPEZ, Petersburg resident
Did not give address
POSITION STATEMENT: Testified against HJR 33
PREVIOUS ACTION
BILL: HB 47
SHORT TITLE: UNLAWFUL EVASIONS CLASS A MISDEMEANOR
SPONSOR(S): REPRESENTATIVE(S) BROWN,Robinson
JRN-DATE JRN-PG ACTION
01/06/95 33 (H) PREFILE RELEASED
01/16/95 33 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 33 (H) STA, JUD, FIN
02/02/95 (H) STA AT 08:00 AM CAPITOL 102
02/02/95 (H) MINUTE(STA)
02/03/95 227 (H) STA RPT CS(STA) 4DP 2NR
02/03/95 228 (H) DP: JAMES,WILLIS,ROBINSON,IVAN
02/03/95 228 (H) NR: OGAN, PORTER
02/03/95 228 (H) 2 ZERO FISCAL NOTES (LAW, CORR)
03/06/95 (H) JUD AT 01:00 PM CAPITOL 120
03/06/95 (H) MINUTE(JUD)
03/17/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 48
SHORT TITLE: MOTORCYCLE SAFETY
SPONSOR(S): REPRESENTATIVE(S) BRICE,Brown,Navarre
JRN-DATE JRN-PG ACTION
01/06/95 33 (H) PREFILE RELEASED
01/16/95 33 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 33 (H) TRA, JUD, FIN
01/27/95 162 (H) COSPONSOR(S): BROWN
02/01/95 210 (H) COSPONSOR(S): NAVARRE
02/15/95 (H) TRA AT 01:00 PM CAPITOL 17
02/20/95 (H) TRA AT 01:00 PM CAPITOL 17
02/20/95 (H) MINUTE(TRA)
02/22/95 442 (H) TRA RPT 7DP
02/22/95 442 (H) DP: BRICE, MACLEAN, JAMES, MASEK
02/22/95 442 (H) DP: WILLIAMS, SANDERS, G.DAVIS
02/22/95 442 (H) FISCAL NOTE (DPS)
02/22/95 442 (H) 3 ZERO FISCAL NOTES (DPS, DOT, LAW)
03/17/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 127
SHORT TITLE: 120-DAY JAIL: ASSAULT ON OFFICERS
SPONSOR(S): REPRESENTATIVE(S) KELLY
JRN-DATE JRN-PG ACTION
01/27/95 156 (H) READ THE FIRST TIME - REFERRAL(S)
01/27/95 156 (H) STA, JUD, FIN
02/14/95 (H) STA AT 08:00 AM CAPITOL 519
02/14/95 (H) MINUTE(STA)
02/21/95 (H) STA AT 08:00 AM CAPITOL 102
02/21/95 (H) MINUTE(STA)
02/22/95 444 (H) STA RPT 7DP
02/22/95 444 (H) DP: PORTER, GREEN, IVAN, ROBINSON
02/22/95 444 (H) DP: WILLIS, OGAN, JAMES
02/22/95 444 (H) FISCAL NOTE (CORR)
02/22/95 444 (H) 2 ZERO FISCAL NOTES (LAW, DPS)
03/17/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 38
SHORT TITLE: SENTENCING;3RD SERIOUS FELONY OFFENDER
SPONSOR(S): REPRESENTATIVE(S) BUNDE,Toohey
JRN-DATE JRN-PG ACTION
01/06/95 30 (H) PREFILE RELEASED
01/16/95 30 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 30 (H) STA, JUD, FIN
01/20/95 105 (H) COSPONSOR(S): TOOHEY
02/09/95 (H) STA AT 08:00 AM CAPITOL 102
02/09/95 (H) MINUTE(STA)
02/10/95 295 (H) STA RPT 4DP 3NR
02/10/95 295 (H) DP: JAMES, PORTER, GREEN, OGAN
02/10/95 295 (H) NR: ROBINSON, IVAN, WILLIS
02/10/95 295 (H) FISCAL NOTE (CORR)
03/08/95 (H) JUD AT 01:00 PM CAPITOL 120
03/08/95 (H) MINUTE(JUD)
03/17/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HJR 33
SHORT TITLE: AMENDMENTS TO ANILCA
SPONSOR(S): REPRESENTATIVE(S) MASEK,Toohey,James,Bunde
JRN-DATE JRN-PG ACTION
03/01/95 529 (H) READ THE FIRST TIME - REFERRAL(S)
03/01/95 529 (H) JUDICIARY
03/06/95 623 (H) COSPONSOR(S): BUNDE
03/17/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-31, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:22
p.m. on Friday, March 17, 1995. All members were present. The
meeting was teleconferenced to Anchorage, Fairbanks, Dillingham,
Glennallen, Kotzebue, Nome, Sitka, Bethel, and Kenai. CHAIRMAN
BRIAN PORTER stated that the following bills would be heard: CSHB
47, HB 48, CSHB 127, CSHB 38, and HJR 33. He announced that the
committee would take public testimony on HJR 33, but the Governor's
Office had requested that the committee hold it over until
Wednesday, as they had not completely formulated their position,
and asked for a few extra days to do so. CHAIRMAN PORTER noted
that he would be leaving for a few minutes to introduce a bill in
another committee, so VICE CHAIRMAN JOE GREEN would facilitate the
meeting during that portion of time. He called Representative Kay
Brown forward to introduce HB 47.
HB 47 - UNLAWFUL EVASIONS CLASS A MISDEMEANOR
Number 050
REPRESENTATIVE KAY BROWN introduced HB 47. Sponsor statement for
CSHB 47:
"Current law has two degrees of unlawful evasion--which is the
failure to return to detention at a correctional facility or a
`half-way' house when so required. For individuals charged with or
convicted of a felony, the offense of unlawful evasion is a class
"A" misdemeanor, carrying a sentence of up to one year. For those
charged with or serving time for misdemeanor offenses, the crime
becomes unlawful evasion in the second degree and is lowered to a
class "B" misdemeanor.
"CSHB 47 would eliminate the distinction between first and second
degree unlawful evasion, creating a single crime of unlawful
evasion with a possible maximum class "A" misdemeanor penalty.
"The success of a community corrections program depends on
responsibility and trust. An individual serving time for a felony
or a serious misdemeanor like drunk driving, earns the privilege of
participating in a community corrections program by demonstrating
personal responsibility and trustworthiness. Appropriate sanctions
for violating that trust must be in place for the system to have
the respect of participants.
"A class "B" misdemeanor charge for unlawful evasion in the second
degree, is not considered a serious enough offense to warrant
efforts by law enforcement and prosecutors to apprehend and convict
offenders. The penalties are relatively insignificant and carry
little or no leverage to deter an inmate from simply failing to
return to custody when required.
"The crime of unlawful evasion is as much a violation of trust by
an individual serving time for a serious misdemeanor as for one
serving time for a felony.
"It is appropriate that there be only the single crime of unlawful
evasion carrying the potential maximum class "A" misdemeanor
penalty. When it comes to a violation of trust, the status of the
offender (felon or misdemeanant) should be irrelevant."
Number 090
GERALD BAILEY, Program Director, Gastineau Human Services, urged
support for HB 47 and made himself available for questions.
Misdemeanants tend to have less respect for the minor points of the
law and feel that the sanctions are not significant, so they are
more likely to walk away than someone facing more serious
sanctions.
Number 120
REPRESENTATIVE CON BUNDE made a motion to move CSHB 47 (STA) out of
committee with individual recommendations and accompanying fiscal
notes. Seeing no objection, it was so ordered.
HB 48 - MOTORCYCLE SAFETY
Number 130
REPRESENTATIVE TOM BRICE, sponsor of HB 48, introduced the bill.
He said it is basically a clean-up bill addressing an inconsistency
in statute. Sponsor statement:
"The federal highway safety act, ISTEA, requires each state to
adopt a mandatory helmet law. The penalty for noncompliance in the
first year (FY95) is 1.5 percent of federal transportation funding
which must be transferred from the Department of Transportation &
Public Facilities (DOTPF) to the 402 fund for safety, training, and
enforcement. In October 1994, (FY95) $2.6 million was transferred
to the 402 fund. Each year thereafter for the remaining four years
of the act 3 percent will be moved. Depending on whether the act
is fully funded by the U.S. Congress, $5.2 million will be moved to
402 each year. Over the life of ISTEA the total would be
approximately $23.5 million.
"During the summer and fall of 1993, the state's Attorney General's
office, in an attempt to bring Alaska into compliance with ISTEA
mandates, issued an opinion supporting the state's ability to
mandate the use of a helmet for motorcycle operators. The
opinion's argument revolved around the use of `singularly licensed
to drive a motorcycle.' Although the opinion has been withdrawn,
this is a new interpretation of a statute that has been on the
books since 1976, and is contrary to legislative intent and current
enforcement policy.
"To address this, HB 48 clarifies the statute to ensure that some
of these funds would be used for improving motorcycle safety, a
motorcycle safety program would be established under the Department
of Public Safety (DPS)."
REPRESENTATIVE BRICE noted that he would be proposing two
amendments.
Number 180
REPRESENTATIVE BUNDE asked how this would impact the federal funds
that we would receive for mandating helmets.
REPRESENTATIVE BRICE answered that it does not impact the current
status quo one way or another. The passage of this legislation
would not cause us to lose any more money, nor would it cause us to
garner any more money, though there are attempts at the federal
level, to take the blackmail clauses out of the ISTEA legislation.
REPRESENTATIVE AL VEZEY was concerned about the clause giving the
Department of Public Safety the authority to enact regulations
regarding motorcycle helmet safety standards. He recommended the
committee adopt a standard, rather than passing it on to an agency
to go through the administrative procedures and take 90 days or 6
months to adopt regulations, which may end up being regulations
that we do not want. Standards would be fairly easy for us to
adopt.
REPRESENTATIVE BRICE answered that concern had been raised in the
Transportation Committee as well. According to the testimony given
by the DPS, it was understood that those standards are currently on
the books. What this language would require is to go through yet
another administrative process to reimplement those regulations,
thereby inflicting a fiscal note. The attempt here was to, in one
way or another, have the fiscal note removed. To do that, we would
take out Sections 1 and 2 of the bill. It is at the will of the
committee whether or not to make that decision.
Number 250
REPRESENTATIVE VEZEY clarified that he was referring more to
adopting regulations as to what makes a safe helmet. In Section 3
we would be a whole lot more free to adopt a standard. We do not
need to repeat the efforts of agencies in testing motorcycle
helmets.
REPRESENTATIVE BRICE noted it is his understanding that the
department has those types of standards and there are national
standards that helmets in this state must comply with, that have
been established through various federal procedures.
REPRESENTATIVE CYNTHIA TOOHEY asked if the updating of new helmet
standards would be affected by this bill.
REPRESENTATIVE BRICE answered that this does not have anything to
do with changing those regulatory standards of the helmet itself.
This has to do with updating the statute to reflect the practice of
endorsements for motorcycle drivers, versus having motorcycle
drivers singularly licensed to operate a motorcycle. That is the
question this legislation is addressing. It is not in any way,
shape or manner, changing the standards for helmet safety, or for
the type of helmet.
Number 310
REPRESENTATIVE DAVID FINKELSTEIN asked Representative Brice to
explain it one more time. AS 28.35.250 says a person who is an
adult does not have to wear a motorcycle helmet. What is different
about that in (b) on page 2? He could not tell the difference
between the bill and existing law.
REPRESENTATIVE BRICE asked if Representative Finkelstein was
referring to a memo from Deborah Boyd, dated September 28, 1993.
REPRESENTATIVE FINKELSTEIN said yes he was.
REPRESENTATIVE BRICE said that memo gives an inaccurate citation
(AS 28.35.250). The concern should be AS 28.35.245 (b). What they
are saying is that the person is the holder of a license which,
under regulations, is classified as a license to operate only a
motorcycle. The department had made the interpretation that if you
are singularly licensed to operate a motorcycle, meaning you can
operate a motorcycle but no other type of motor vehicle that would
require a license, then you are required to wear a helmet. That
flies in the face of a state policy that has been implemented since
the inception of this statute, which currently says if you are
endorsed to drive a motorcycle, and you are over 18, then you are
not required to wear a helmet. The department, in an intent to say
that they had substantially complied with the ISTEA requirements of
having helmet laws in the books, stated that, if you are singularly
licensed you are not required to wear a helmet but everybody else
is required to. The fact of the matter is, the state almost
provides endorsement now; we do not singularly license anybody to
operate motorcycles.
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, said she was representing Governor Knowles who
supports this legislation and asked that it be passed, especially
without an amendment to subsection (b), which would require helmets
only for those under the age of 18. The Governor believes that it
is inappropriate for government to intrude itself on every decision
made by persons in the state, and that whether to wear a motorcycle
helmet or not is a matter that should be left to the judgment and
responsibility of an individual.
Number 395
REPRESENTATIVE VEZEY asked why we do not just put the motorcycle
helmet standard in the statute, and save a lot of trouble and
expense of writing regulations.
MS. KNUTH answered that they already have a standard set out in
regulation that was adopted some time ago. The reason why is
because the standards change with increased technology, and with
what we learn from traffic accidents. If it were set out in the
statute, we would have to come back and ask for it to be amended
regularly, to keep up with new information. At this point the
standard is what is required by the federal government. There is
a uniform standard. Regulations are typically easier to amend than
statutes, at least historically they have been. Even though there
is a process and expense, it is not as great as that involved in
legislation.
REPRESENTATIVE BUNDE suspected there is a national organization
that tests motorcycle helmets, and that with their information, the
Department of Public Safety would formulate standards.
Number 480
LEE ANN LUCAS, Special Assistant to the Commissioner, Department of
Public Safety, spoke in support of HB 48 without the amendment to
delete Section 2. She said they do have existing regulations that
are broad enough to provide for the licensing and certifying of
those programs. They currently have a program in Anchorage which
provides motorcycle training. Alaska Bikers Advocating Training
and Education (ABATE) currently has an application in to begin
providing for a commercial driving school for motorcycles.
MS. LUCAS explained that they had a 3.9 thousand dollar fiscal note
for the adoption of motorcycle regulations. If Section 2 was
deleted, that fiscal note would be zero. She said the department
feels it does and can cover programs, as they have been.
Number 500
REPRESENTATIVE BUNDE asked if motorcycle passengers were required
to wear helmets.
MS. LUCAS answered that their current regulations do provide for
equipment for riders. A person operating or riding upon a
motorcycle on a public roadway is required to wear a helmet.
Persons 18 years of age or older are not required to do so, under
statute.
REPRESENTATIVE BRICE clarified that current statute says if you are
riding off road, in other words, dirt biking, you are required to
wear a helmet regardless of your age; and if you are a passenger on
a motorcycle, you are required to wear a helmet. This will not
affect that either way.
REPRESENTATIVE BUNDE made a motion to move Amendment One, dated
3/16/95. The amendment would make the following changes:
Page 1, line 1:
Delete "motorcycle safety and to"
Page 1, lines 4 - 7:
Delete all material.
Page 1, line 8:
Delete "Sec. 3."
Insert "Section 1."
REPRESENTATIVE FINKELSTEIN objected and asked if public testimony
was complete.
VICE CHAIRMAN GREEN asked if anyone else wished to testify. There
was a person on the teleconference network waiting to speak.
SCOTT HAMANN, Legislative Representative, ABATE, said they support
the amendments deleting Sections 1 and 2. He said they were not
too worried about Section 3, because the national standards are so
bogus anyway. They do not mean anything to us. They only test
helmets at 12 miles an hour. They are really not in the real world
anyway, so we are not too concerned about that. He urged passage
of the bill.
VICE CHAIRMAN GREEN asked if there was objection or discussion on
the amendment. Hearing none, Amendment One was adopted.
CHAIRMAN PORTER returned.
REPRESENTATIVE FINKELSTEIN stated he would not object to the bill,
but did have great hesitancy on it. He remembered the great debate
on mandating seatbelts, and the argument that maybe it was not in
the best interest of our citizens. He said that death records
since then show that it is in the interest of our citizens. He did
not think it would be out of line for the state to look into these
matters, and he was not convinced the case has been made that
requiring helmets would save lives.
REPRESENTATIVE VEZEY made a motion to move CSHB 48(JUD) with
individual recommendations and attached fiscal notes out of
committee. Seeing no objection, it was so ordered.
HB 127 - 120 DAY JAIL: ASSAULT ON OFFICERS
Number 600
BRUCE CAMPBELL, Administrative Assistant to Representative Pete
Kelly, introduced CSHB 127, version F. Sponsor statement:
"It is the intent of this bill to enhance a serious tool for police
officers and others on the front line. It will increase severity
of punishment for acts committed against a police officer while in
the performance of official duties.
"This bill sends a clear message to individuals that once the
police arrive the fight must stop. Alaska is not sending in our
`tag team blue' for the next round. Expanding the fracas to
include a police officer will result in jail time.
"This bill also discourages an officer from `engaging in a fair
fight.' There is no reason for such a fight to continue, and this
bill makes that quite clear.
"Although initially intended as a tool for police, it has even more
meaning when applied to individuals with even less training or
expectation of dealing with persons physically. Volunteers
responding to a medical emergency or fire are neither equipped nor
trained to handle assault or violence directed against their
persons."
MR. CAMPBELL explained that the essence of the committee substitute
is the same as the original bill, but they have expanded the
language to include correctional nurses and parole/probation
officers. This language is better than that in the original bill,
which refers to peace officers and correctional officers. In
working with the Department of Law, it was found that those terms
did not actually address the issues they were considering.
Number 690
FATE PUTMAN, Alaska State Employees Association (ASEA), stated that
ASEA is the organization who requested these changes. They are in
support of the bill and of the committee substitute, which would
deter criminal behavior against members of their organization,
particularly people who work in correctional institutions, such as
nurses and probation officers. The state is concerned with their
well-being, and believes there should be a punishment if they are
assaulted.
JERRY SHRINER, Special Assistant, Office of the Commissioner,
Department of Corrections, noted that the previous two speakers had
said most of what he wanted to say. The Department of Corrections
does support this bill, particularly as modified to include
correctional employees. He said people who may be prosecuted under
this bill would more likely fall into the peace officer and
emergency responder categories than in the correctional employees
category. Nevertheless, he believes it is important in terms of
employee morale to know that their employer is behind them in the
performance of duties that can be dangerous and certainly stressful
every day that they go to work. We want them to know that we are
behind them. In most incidents occurring in institutions, there
are a variety of ways in which these problems can be dealt with.
They can take good time away or isolate individuals without
charging the person with an offense. They probably will continue
to do that inside institutions, so he does not expect that there
will be a significant number of new cases. But again, we want our
employees to know that we are behind them, and we are glad that
they are specifically named in this.
REPRESENTATIVE BUNDE felt that occurrences of this nature taking
place inside a correctional facility should not necessarily affect
the fiscal impact.
REPRESENTATIVE TOOHEY asked if a contract employee would also fall
into this protected category.
MR. CAMPBELL said he did not know, but perhaps Margot Knuth would
know.
Number 745
CHAIRMAN PORTER stated that if a person were not covered as an
employee, he/she would certainly still be covered as a private
citizen.
REPRESENTATIVE VEZEY asked what the maximum penalty is for assault
in the fourth degree.
ANNE CARPENETI, Committee Aide, House Judiciary Committee,
explained that it would have the same penalty as for a class A
misdemeanor, according to Mr. Luckhaupt, which is one year maximum
in prison.
REPRESENTATIVE VEZEY wondered what the need was to raise the
minimum sentence from 30 days to 120. If someone was found guilty
of a violent act, they could be given a year right now.
MR. CAMPBELL said he would not pretend to be replacing something.
The questions seem to be relatively legal in nature here. If
somebody committed an act that was particularly egregious, then it
would be subject to a higher level of penalty, and would be under
either a felony assault or another higher penalty phase. That is
why, in this amendment, we now have four pages, because we have
added and corrected the phrase "correctional employee" in the
assault statutes, so we are not dealing just with the fourth degree
assault level that we were initially starting out with. Those also
include the areas of specificity, those existing statutes for
felonious assault, or whatever they are referred to in a legal
phrase. Those have special sentencing sanctions and minimum
sentencing for assaulting correctional officers, and this would
expand the language to include correctional employees.
REPRESENTATIVE VEZEY said that did not answer his question, because
he was referring only to Section 5 where we are talking about
assault in the fourth degree, which is already a class A
misdemeanor. He was curious why they only wanted to raise the
minimum sentence from 30 days to 120. He could visualize some
situations of assault in the fourth degree which are not exactly
life threatening. Would we really want to put somebody in jail for
120 days for assault in the fourth degree? Punching someone in the
nose is an assault in the fourth degree.
MR. CAMPBELL said these issues are a little out of his realm, but
the initial discussion with the police officers they talked with,
particularly Chief Gunn, is that in their experience, something
like punching a police officer, in most jurisdictions, gave them an
automatic felony sentence. It automatically jumped it from a
misdemeanor into the felony category. We did not go that far. We
simply raised the minimum time of sentencing from 30 to 120 days,
rather than changing the issue from fourth degree assault to
felonious assault, just because it was a police officer. Deputy
Chief Gunn found this to be a particularly effective means of
deterring and essentially bringing to a stop, fights. When the
police arrived, the fight was over. You were not throwing in `tag
team blue' to see who had the best wrestling match. Not all
people, but many people understood that because there was a police
officer arriving, to continue the issue and drag the police officer
into a fight or carry on in that fashion, is a much more serious
issue.
REPRESENTATIVE VEZEY did not realize that what they were trying to
address here was reluctant arrestees. That certainly is a problem,
and people probably do not give consideration to what the penalties
are when they get into fisticuffs with a police officer. We are
talking about correctional employees, that is what the change is
here. We are talking about the institutional employee. Do we
really want to raise the minimum time in jail from 30 days to 120
days for fourth degree assault? That is not really a physical
endangerment. It is just an assault.
MR. SHRINER said that inside the institution, by expanding this to
include correctional employees, that includes a significantly
larger number of people than if we said correctional officers.
Correctional officers, to some extent, while they certainly do not
expect to be assaulted as part of their occupation, are trained to
deal with a different level of behavior than, for example, a
teacher, or mental health worker, or some other nurse who is one of
our employees, those people would be more protected if higher
consequences awaited the potential offender. Those workers within
an institution have more narrowly defined roles in ability to
arrest. They frequently make home visits in situations where they
do not carry weapons, and where they are not always sure what the
situation is going to be when they get there. This is not a
frequent occurrence, but he believed it was worthwhile to the
extent that this gives them some additional protection, and it is
worth the effort to try it.
REPRESENTATIVE BUNDE felt that someone guilty of punching an
officer in the nose has committed a far more serious offense than
someone who gets in a fender bender and punches a civilian in the
nose. That is why officers wear uniforms. You know who is in
charge. He would certainly endorse placing a serious consequence
on people who want to be violent.
REPRESENTATIVE FINKELSTEIN had concerns in a situation where
someone goes and punches the police officer in the nose and is
guilty of fourth degree assault, and is already subject to a year
in jail. He would be interested to see what the sentencing pattern
is.
TAPE 95-31, SIDE B
Number 000
REPRESENTATIVE FINKELSTEIN continued. He guessed the low end of
this category is people who are drunk, and where the action was
clearly not premeditated. Perhaps they are whaling on somebody
else, the officer intervenes, and they get some degree of assault.
Certainly, if they take a pounding and suffer some actual damages
of assault, the penalty should be higher. If there is a weapon
involved, it goes to higher levels. This is the very bottom level.
Is there something out there in the world of these actions where a
person hits the officer, and quickly realizes that, "Whoops! I'm in
a new world now." Is there some place out there that ought to be
the low end? The judge is going to have discretion to give
anywhere between nothing and a year. Is there never going to be a
situation where the person realizes quickly what they have done,
and it does not cause any damage to the officer, does not do any
damage at all, and quickly reverses himself, that it would be
appropriate for something more on the order of 30 days? That was
his question.
REPRESENTATIVE BUNDE said he guessed they did not need to talk
about prosecutorial discretion and jury trials, and that sort of
thing. Many first time misdemeanants do not get any jail time at
all. To jack it from a potential 30 days to 120 days is just a
reflection of a step up in the violation of civil order, when you
attack a police officer, whether intentional or unintentional.
REPRESENTATIVE VEZEY felt we were wrestling with taking away the
court system's ability to have some control over the population of
our prisons. If we are going to deny them any flexibility in
sentencing, and we do not have much flexibility on how we fund
Corrections, that is what it comes down to. If we are only talking
about a very small number of cases, but if we are going to mandate
how long people stay in jail for every crime, regardless of the
mitigating circumstances, we are just going to have to open up our
wallets and build more prisons.
CHAIRMAN PORTER did not disagree with the concerns that have been
expressed, but from his obviously biased position, he felt assaults
on peace officers and other first responders in emergency
situations were serious offenses. It is not unusual for our
statutory structure to require mandatory sentences for serious
offenses. We have had that in place for some time. These kinds of
things do not happen very often anymore, but they used to. This is
either due to societal changes or is the result of this kind of
legislation. In getting down to a fundamental level, when he
started in law enforcement, if someone took a poke at a police
officer, the police officer was entitled to take a poke back. He
or she is not now. This kind of provision makes up for that
imbalance. It is an infrequent event, and is, consequently,
admittedly, more of a statement of recognition by us to these
people that we appreciate the jeopardy they are placing themselves
in on our behalf, and we will do what we can to support that
effort.
REPRESENTATIVE GREEN said it used to be in a tort situation that if
`A' intended to do something to `B', but missed and hit `C', there
was thing called "transfer of intent" and there was a question
asked earlier about an officer stepping in between two fugitives.
Does this imply that there could be that transfer of intent, or
would it have to be an overt action?
CHAIRMAN PORTER said to charge and convict under this statute, you
would have to be able to establish intent to assault on a specific
correctional officer.
REPRESENTATIVE BUNDE said if there is something going on that
causes a police officer to be assaulted, there is probably an
accompanying crime; and one of the tools our judicial system uses
is to place multiple charges on the defendant, which has impact on
the sentence. He has known of a situation in which a police
officer was assaulted, and he would have been very happy to see a
compound sentence. Expanded and compounded sentences are justified
for this type of conflict.
REPRESENTATIVE FINKELSTEIN said he assumed that at the low end of
fourth degree assaults involving an officer, most of these would
involve alcohol.
CHAIRMAN PORTER said most of the criminal offenses we deal with
involve alcohol in some respect.
REPRESENTATIVE FINKELSTEIN said though alcohol influence does not
excuse anyone's actions, however, downtown bar brawls go on all the
time. A person is not going to have in mind that they might get
120 days instead of 30 days. The influence of alcohol will prevent
that incentive. It would not work at that level. It would not
happen in a situation like that. There are plenty of cases where
a person deserves a year, but there are also cases where 30 days
would be appropriate. Societal interests are not being served by
giving someone 120 days. When there is no other aggravating
factors, 30 days is still a pretty serious sentence.
CHAIRMAN PORTER concluded the public hearing.
Number 125
REPRESENTATIVE BUNDE made a motion to move CSHB 127(JUD) out of
committee with individual recommendations and attached fiscal
notes. Seeing no objection, it was so ordered.
HB 38 - SENTENCING; 3RD SERIOUS FELONY OFFENDER
REPRESENTATIVE BUNDE, bill sponsor, made a motion to adopt the
committee substitute for HB 38 (JUD), Version C, dated 3/10/95.
Seeing no objection, the committee substitute was adopted.
REPRESENTATIVE BUNDE said CSHB 38 clears up some language concerns
expressed about the original bill. He called the bill drafter,
Jerry Luckhaupt forward to answer questions about the committee
substitute. He stated that basically, it makes Section (j) apply
to the previous Section (f), so that they mean the same thing.
Section 6 discusses a definite term, and this clarifies the
language. In Section 7 the habitual criminal section gives the 40
to 99 year sentence, which is a change from the mandatory 99 year
sentence in the previous version of the bill. Section 8 clarifies
the language about two prior felony convictions. It specifies that
they are separate convictions. It cleans up the language about a
definite sentence and a most serious felony.
REPRESENTATIVE FINKELSTEIN said his understanding was that whenever
we have used presumptive sentencing, we have also set up a three
judge panel to allow an appeal to see that justice is being served.
We did have comments from the previous representative of the
Department of Law, Mr. McNally, who said presumptive sentencing
would be required to uphold the challenge. It may be arguable, and
it may not be necessary, but it is a good policy, and if we are
going to say in the case of presumptive sentencing that you are
going to get these absolute sentences, there has to be some
opportunity, some due process to determine if there are
circumstances here where justice would not be served. The
discretion between 40 and 99 years is an improvement to the bill,
but still, for most people, 40 on up is a life sentence, or close
to it, even if it were reduced down to 30 years. To impose
presumptive sentencing, which has lower penalties, requires a three
judge panel.
JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services,
Legislative Affairs Agency, explained that for purposes of
presumptive sentencing, the sentencing court has options. If the
court finds clear and convincing evidence that the manifest
injustice would result from imposing the presumptive term under the
statute, the court can then refer a case to a three judge panel.
That is done in all presumptive sentencing cases under current law.
For the most part, this is for second and third felony offenders,
and for all class A felony offenders. There is one case where we
have imposed the mandatory term of 99 years. That is for murder in
the first degree, with numerous aggravated circumstances. Those
are torture murders, murders of a peace officer, or the murder of
an emergency responder while performing their duties. It is in
situations like that where the court does not have the option of
deviating from that 99 year sentence, and going to the three judge
panel. He did not know of any constitutional requirement or
impediment that would require a referral to a three judge panel.
If the comments of Mr. McNally were from last year the comments, he
remembered were in reference to situations where we were imposing
the 99 year sentence, and there would have to be some sort of
review; and that is provided through the direct appeal process that
would be available in these cases.
MR. LUCKHAUPT explained that in states where presumptive sentencing
is used, there has been concern that presumptive sentencing could
lead to particular consequences that are unjust, and hence, this
idea of the three judge panel exists. But, again, it is under very
narrow circumstances that cases are referred to the three judge
panel.
REPRESENTATIVE FINKELSTEIN offered his amendment to the bill.
First, he wanted to change the word "shall" to "may" on page 1,
line 15 of the amendment. It makes it a little clearer. The
amendment reads:
Page 6, following line 30:
Insert new bill sections to read:
"Sec. 13. AS 12.55.165 is amended to read:
Sec. 12.55.165. EXTRAORDINARY CIRCUMSTANCES. (a)
If the defendant is subject to sentencing under
(1) AS 12.55.125(c), (d), (e), or (i) and the
court finds by clear and convincing evidence that manifest
injustice would result from failure to consider relevant
aggravating or mitigating factors not specifically included in
AS 12.55.155 or from imposition of the presumptive term,
whether or not adjusted for aggravating or mitigating factors,
the court shall enter findings and conclusions and cause a
record of the proceedings to be transmitted to a three-judge
panel for sentencing under AS 12.55.175; or
(2) AS 12.55.125(l) and the court finds by
clear and convincing evidence that manifest injustice would
result from imposition of the definite term, the court may
enter findings and conclusions and cause a record of the
proceedings to be transmitted to a three-judge panel for
sentencing under AS 12.55.175.
(b) In making a determination under (a)(1) [(a)] of this
section, the court may not refer a case to a three-judge panel
based on the defendant's potential for rehabilitation if the
court finds that a factor in aggravation set out in AS
12.55.155(c)(2), (8), (10), (12), (15), (17), (18)(B), (20),
(21), or (28) is present.
Sec. 14. AS 12.55.175(b) is amended to read:
(b) Upon receipt of a record of proceedings under AS
12.55.165, the three-judge panel shall consider all pertinent
files, records, and transcripts, including the findings and
conclusions of the judge who originally heard the matter. The
panel may hear oral testimony to supplement the record before
it. If the panel finds that manifest injustice would result
(1) for a record of proceedings transmitted under AS
12.55.165(a)(1), from failure to consider relevant aggravating
or mitigating factors not specifically included in AS
12.55.155 or from imposition of the presumptive term, whether
or not adjusted for aggravating or mitigating factors, or (2)
for a record of proceedings transmitted under AS
12.55.165(a)(2), from imposition of the definite term, it
shall sentence the defendant in accordance with this section.
If the panel does not find that manifest injustice would
result, it shall remand the case to the sentencing court, with
a written statement of its findings and conclusions, for
sentencing under AS 12.55.125.
Sec. 15. AS 12.55.175(c) is amended to read:
(c) The three-judge panel may in the interest of justice
sentence the defendant for a proceeding transmitted under
(1) AS 12.55.165(a)(1), to any definite term of
imprisonment up to the maximum term provided for the offense
or to any sentence authorized under AS 12.55.125(a), (b), (c),
or (i).
Sec. 16. AS 12.55.175(e) is amended to read:
(e) If the three-judge panel determines under (b)(1)
[(b)] of this section that manifest injustice would result from
imposition of the presumptive term and the panel also finds that
the defendant had an exceptional potential for rehabilitation and
that a sentence of less than the presumptive term should be imposed
because of the defendant's exceptional potential for
rehabilitation, the panel
(1) shall sentence the defendant to the presumptive
term required under AS 12.55.125;
(2) shall order the defendant under AS 12.55.015 to
engage in appropriate programs of rehabilitation; and
(3) may provide that the defendant is eligible for
discretionary parole under AS 33.16.090 during the second half of
the sentence imposed under this subsection if the defendant
successfully completes all rehabilitation programs ordered under
(2) of this subsection."
Renumber the following bill sections accordingly.
REPRESENTATIVE BUNDE objected.
MR. LUCKHAUPT thought the word "shall" should not be changed to
"may" on page 1, line 15 of the amendment. Under current law, and
the language that he has basically mirrored, it is already
discretionary. The judge must find by clear and convincing
evidence that manifest injustice would result from sentencing the
defendant from 40 to 99 years. The judge has the discretion to
find that or not. Once the judge finds that, the word "shall" is
there, to make sure the judge enters the findings and conclusions
so that the three judge panel can then review the case. Once the
judge finds that, the judge must send it to the three judge panel.
Then the three judge panel looks at the findings and conclusions,
and reaches their own decision on whether or not clear and
convincing evidence exists that manifest injustice would result
from sentencing, and if the three judge panel disagrees, then they
can send it back. The word "shall" is there to make sure the judge
enters findings and conclusions, and then sends the case up when he
finds that there is clear and convincing evidence that manifest
injustice would result.
Number 445
CHAIRMAN PORTER asked Representative Finkelstein if he wished to
rescind his amendment to his amendment.
REPRESENTATIVE FINKELSTEIN said yes, he would rescind that part of
his amendment. He would change "shall" back to "may."
REPRESENTATIVE BUNDE was not sure they would want to apply a lower
standard offense to this bill, because they are talking about the
worst case scenarios of habitual offenders, and he is really
concerned about keeping the fiscal impact down. He then asked Mr.
Luckhaupt for his assessment of what this amendment would do to the
bill.
MR. LUCKHAUPT answered that the amendment would basically allow the
judge, when he finds this clear and convincing evidence of manifest
injustice, to refer the case to the three judge panel who would
make that finding. The three judge panel would not have to
sentence someone to the 40 to 99 years that is provided for in this
case. The court would have to sentence the person to at least the
presumptive term for the offense. This would be a third felony
offense, so they would have to give the minimum sentence, at least.
For first degree murder, we provide for a 20 year minimum term, and
for the other unclassified felonies, we provide for a five year
minimum. Some of the presumptive terms for a third offense are as
follows: For your third sexual offense, the presumptive term is
25 years; for your third felony conviction, if your current one is
a class A felony conviction, then your presumptive term is 15
years. Basically, this provides an option to throw out the
habitual criminal sentencing process and go back to the regular
presumptive sentencing process, or the range of sentencing
processes currently provided for unclassified felonies in law. It
establishes the current sentencing structure as a minimum that the
three judge panel could sentence to.
CHAIRMAN PORTER said as far as the fiscal impact goes, if anything,
there might be a savings. This review would be used in an
exceptional case.
Number 530
REPRESENTATIVE BUNDE said one of the initial reasons for the bill
was that the public has not been particularly happy in some cases
with the judicial system. They feel that they have been too
flexible, too liberal in their generosity; not in their political
sense. He felt the amendment would deter from the message he is
trying to send, the message people have asked him to send. He
continued to oppose the amendment.
REPRESENTATIVE FINKELSTEIN said his focus in this legislation is
not so much on the habitual criminal, but on three strikes, and you
will get a higher penalty. If you compare what we are doing
here, it does that, even with this amendment. You go up from
either 15 years to 40 - 99, or you are going from 25 up to 40 - 99.
There is a big difference. If the minimum of any of these
sentencing processes is 30 years, if you are 30 when you go in, and
60 when you get out, this is close to life in prison, and
therefore, still achieves the purpose, because it is upping the
minimum sentences for people who fit this third category. That is
what people who feel this way would like to achieve. Do we want to
have the minimum be 40 years, when there may be a circumstance out
there where justice would not be served? Imagine someone who has
a DWI and kills someone, which is a very bad crime, but it is a
crime that could go on at any day in any one of our towns with a
hundred people on the road who are driving drunk. It is a matter
of happenstance as to who actually kills someone. Our laws reflect
that. Manslaughter is one of the things that counts in this. That
gets you into jail the first time. Now you are in jail, and you
feel that your life is threatened if you stay in jail, so you try
to escape, and you manage to get your hands on a knife and escape,
and then you are eventually brought back to jail. Someday, when
you are discharged, and you are out on the street again, your
previous life is completely gone after serving all this time. Now
you are involved in some other illegal activity such as dealing
drugs. If you get arrested one time for dealing drugs, you have
had your third strike. I think that is the kind of case where a
three judge panel would say, "Hmm, I do not think justice is being
served, and this is not necessarily in the best interest of
society." There are people who need to fill our jails who are
worse threats to society than this person.
CHAIRMAN PORTER responded, saying that one thing to keep in mind is
that it might very likely be the case that the prosecutors would
not elect to charge under this statute. They do have that
discretion in the first place. It could be that a three judge
panel does have discretion to alter a minimum sentence. The way he
reads "three judge panel" under 12.55.175, the panel may sentence
a defendant to any definite term of imprisonment up to a maximum,
or to any sentence authorized under AS 12.55.010, or AS 12.55.015;
and AS 12.55.015 is just a general provision for sentencing anyone.
MR. LUCKHAUPT stated that under current law that is true. The
amendment is to avoid that. That section would only apply to the
current cases that can be referred to the three judge panel. At
that point, the panel can sentence to any term. They can go below
the minimum for that offense. This amendment separates it, so that
if you are being sentenced under the habitual criminal law, and you
are referred under that law to the three judge panel, then they
cannot go below the presumptive or minimum term. That is on page
2, lines 17 - 19. The section that deals with the judges finding
extraordinary circumstances is on page 1. Page 2, Section 16 of
the bill describes sentencing authority.
REPRESENTATIVE FINKELSTEIN felt that in general, prosecutors go for
the highest level of crime that they have evidence for sustaining
the case, because they are upholding the laws by doing that. That
is one of their responsibilities. It also gives them more room if
they are trying to negotiate and to get the defendant to accept a
guilty plea. In our system of justice, we cannot put too much
emphasis on the prosecutors to achieve this. Their goal is to
prosecute. We cannot always expect them to mitigate every one of
these concerns. They have to go out and make their strongest and
best case.
CHAIRMAN PORTER did not dispute that. He said that we also cannot
disregard history and what the normal practice of prosecution is.
Heinous cases normally receive heinous consideration; and those
cases that are not heinous, do not receive heinous consideration,
due to the high volume of cases that are presented.
REPRESENTATIVE FINKELSTEIN agreed that was true under current law,
but this is a whole new area. We never got into presumptive
sentencing without any appeal option for the unusual circumstance.
Number 660
REPRESENTATIVE BETTYE DAVIS spoke in favor of the amendment. She
understood what the sponsor was trying to do with the bill, and he
has worked hard to make this more palatable to more people, but she
sees this amendment as something that would be helpful to the bill.
She believed the bill was aimed at the wrong group of people. She
has seen and read that violent crime is on the decline, and not on
the incline. This bill is targeting older people. It is not the
older people, but the younger people where we have the problem. We
have teenage crime all across the nation. She thought the
committee should take their time and really consider what we
actually want. We would have to have more jails, and a place to
keep these older people. The medical bills would be more
expensive. If we can keep a few people from falling into this
category simply by having this amendment added to the bill, it is
a good thing that we should do. For that reason, she supported the
amendment. It might not save but a precious few, but we could not
go wrong by doing it.
Number 680
REPRESENTATIVE BUNDE said that people in this category have already
been convicted twice before, so they have already had a two judge
panel review. You have to work pretty hard to fall under the
purview of this bill.
CHAIRMAN PORTER asked for a roll call vote on the amendment.
Representatives Davis and Finkelstein voted yes. Representatives
Toohey, Bunde, Vezey, Green, and Porter voted no. The amendment
failed two to five.
REPRESENTATIVE BUNDE made a motion to move CSHB 38(JUD) out of
committee with individual recommendations and accompanying fiscal
notes. Hearing no objection, it was so ordered.
HJR 33 - AMENDMENTS TO ANILCA
Number 700
CHAIRMAN PORTER instructed the committee to stand at ease for a
moment while someone was sent to find Representative Masek. He
acknowledged the presence of Representative Nicholia, in Fairbanks
on the teleconference, and Representatives MacLean, Moses and
Ivan. He mentioned once again that after the testimony, HJR 33
would be held over until Wednesday. The testimony would not be
opened up again for the general public, but anyone who is now ready
and willing to testify that we do not get to today, will have the
opportunity to testify on Wednesday, as well as someone from the
Governor's Office.
REPRESENTATIVE FINKELSTEIN announced that he had to go to another
meeting, but did want to express that he has grave concerns over
this resolution.
Number 775
REPRESENTATIVE BEVERLY MASEK introduced HJR 33. Sponsor statement:
"I have introduced HJR 33 to preserve the equal protection, equal
access, and common use clauses of our State Constitution.
"In 1992 the State Supreme Court threw out those portions of the
state subsistence law which violated these sections of our
constitution.
"That action by the court triggered a blackmail clause in ANILCA
which mandates federal fish and game management if the state does
not adhere to the conditions found in title VIII of ANILCA which
deals with subsistence.
"Now we must change our state constitution and meet federal
standards or lose permanently our fish and game management
authority throughout Alaska.
"What the State Supreme Court found offensive in the State law
(which they threw out) is even more offensive in Title VIII of
ANILCA. For instance, the State law was based in part on need and
was only triggered in times of resource shortages. The Federal law
on the other hand, is not need based and can be activated at
anytime.
"Even more disturbing have been the courts' implementation of the
federal law. In the Lime Village Case the courts essentially found
that seasons, bag limits, methods and means do not apply to
subsistence hunting.
"In a more recent decision the courts found that it was permissible
for subsistence users to take fish (in this case herring roe) and
sell it for cash.
"In effect the courts have established a new class of limited entry
based solely on where a person lives. This should be a warning
signal to every commercial fisherman in the state. Under ANILCA a
person may move to Wrangell from Seattle, declare a subsistence
priority immediately, harvest fish, and legally sell or trade them
to a broker in Seattle under the guise of trade and barter.
"Finally it should be noted that in 1982 the U.S. Supreme Court
ruled that Eskimos in Northwest Alaska could not use subsistence to
halt oil development on sea ice located three miles from shore.
The most important part of that decision may have been a finding by
the court that all aboriginal titles and claims of title had been
extinguished under the terms and conditions of the Alaska Native
Claims Settlement Act. This was based on a payment of 1 billion
dollars and 44 million acres of land.
"Yet today we find provisions of ANILCA which, in all likelihood
are based on an unconstitutional premise, stripping us of our
authority to manage our fish and game. Perhaps if our governor
were willing to challenge ANILCA in the federal courts we would
have a third option for resolving this dilemma. Unfortunately, his
legal counsel, the Attorney General, recently told House and Senate
members on record that while amending or repealing ANILCA was the
only true legal solution for the State, it was politically
unacceptable to the Governor. It seems difficult to believe that
this Administration finds equal rights and common use unworthy
principles to defend.
"It is now up to us as Representatives of the people to take the
lead on behalf of all Alaskans in defense of their most basic
rights.
"This Resolution is an ardent request to Congress to amend ANILCA,
to respect our state constitution, to relinquish their management
of fish and game, and to honor the most critical elements of our
Statehood Compact.
"I urge your support for this important Resolution. Thank you."
REPRESENTATIVE MASEK said they must either change the Constitution
or be punished by the Department of Interior, the federal control
of state fish and game management. No other state has been
subjected to such a federal blackmail clause. No other state has
been faced with eliminating their equal protection, equal access,
a common clause of their constitution because a provision in
federal law conflicts with it. This resolution seeks relief from
a Congress committed to restoring states' rights. It must be made
clear that this resolution does not seek to throw out the concept
of subsistence, nor does it do any damage to it. In McDowell,
Justice Moore stated that subsistence can be administered under our
state Constitution. As soon as ANILCA conforms to our
constitution, and we get back management of fish and game, we will
be free once again to address special needs of Alaskans who depend
heavily upon the resources of our state. Until then, we are held
at an impasse. HJR 33 is not just a message to Washington, it is
a request as old as the Continental Congress, as basic as the
Gettysburg Address, and as plain as the voice of Patrick Henry.
She asked her staff liaison, Dave Stancliff to assist her in
answering any questions on the history of the issue. Mr. Stancliff
has been involved with this issue since 1978, and has tracked it
through 13 years of state legislative action. Her office has not
received a single personal message of opposition to HJR 33. To the
contrary, it has received a multitude of positive letters from many
areas of our state. She read a couple of the letters to the
committee. The following message was sent from Ward Cove:
"Thank you for the courage to take a stand and to make the
statement about violence leading to violence and discrimination
leading to discrimination. I am a Native Alaskan who has always
felt one of Alaska's greatest assets was taking people individually
on their own merit. We need to be one people and continue to work
for our collective rights as Alaskans."
Another letter from Northway read:
"Hi. I read your opinion on subsistence. I could not agree more.
You are exactly right. This is a blunted discrimination. I am
white. I qualify for subsistence..."
TAPE 95-32, SIDE A
Number 000
REPRESENTATIVE MASEK continued reading the letter:
"...but I can at least give you moral support."
REPRESENTATIVE MASEK read one more letter from Barrow:
"Why should the 1959 Alaska Statehood Compact Act be purposely
thwarted behind the cloaks of subsistence or ANILCA when we can win
on all fronts. Let's go to the polls, and let's keep our full
court press on the federal manipulators. To Governor Knowles, I
say, `Uphold our original 49th Statehood Compact, as it was drafted
and as it was understood. The Tenth Amendment is here for a
reason, so do not sell us out to the pressures you are faced
with.'"
REPRESENTATIVE MASEK then read a letter of support from Ketchikan:
"I wish to applaud your position on equal hunting and fishing
rights for all Alaskans. While we are not from the same region,
you have my wholehearted support for such a resolution. It is
admirable to see a lawmaker stand up and finally declare that we
are all Alaskans, as well as Americans, and should conduct
ourselves as such. As an Alaska Native, I have watched as this
discrimination has separated those whose roots are in the state.
It is unhealthy, unproductive, and as you say, breeds further
discrimination and segregation. While your position puts you at
odds with several lawmakers, and of course, the Administration, I
encourage you to stand firm. Others will follow your lead. Again,
congratulations for standing up for your principles."
Number 075
REPRESENTATIVE EILEEN MACLEAN, spoke, representing District 37,
North Slope, and the Northwest, also representing Alaska Natives
throughout the whole state. It is very unfortunate that we have
this bill before us, HJR 33. The sponsor is wrong to say that the
Nineteenth Alaska State Legislature acknowledges and wholeheartedly
supports HJR 33. This Resolution is sending a very wrong message
to Congress; that three individuals firmly believe the Resolution
is speaking for the whole legislature is wrong. She noted for the
record that the sponsor is from an urban area, and once again it
pits rural against urban. Representative Masek is saying we need
to bring the state of Alaska as a whole, individually, connected,
in unity, but she is not doing that, not through this legislation.
Alaska Natives do not like HJR 33 because it divides the state as
a whole. If this is what the sponsor intends to do, she is doing
a good job at it. The sponsor has not been in rural Alaska for a
number of years, and Representative MacLean believes that
Representative Masek has lost touch with her roots, whether Alaska
Native or not.
REPRESENTATIVE MACLEAN defined "Alaska Native" and "native
Alaskan." An Alaska Native is an aboriginal from the state of
Alaska, born with Native blood. A native Alaskan is born, not of
Native origin, but born and raised in Alaska. Subsistence, to us,
is a way of life. Rural people rely on subsistence to make a
living. If you go to the villages, you will notice that we do not
have a lot of stores, but they rely on subsistence to make their
living. It is sad to say that HJR 33 is pitting one Native against
another Native. The Resolution is arbitrarily dividing the state
into rural versus urban. The Bush Caucus opposes HJR 33, and the
Bush Caucus is made up of primarily rural people. We don't believe
in state management of subsistence. The federal government has
taken better care of us with the issue on subsistence. We have
been in touch with Alaska Federation of Natives (AFN), and they
represent 13 regional corporations throughout the whole state of
Alaska. They also represent 220 villages. They oppose this bill
for the following reasons. The federal preference is the only
legal source protecting the economic and cultural survival of
subsistence. Dependent rural communities through state law have no
effective protection at all. Title VIII of ANILCA is the law and
must be implemented by the United States' courts and agencies
whether the state complies with it or not. The rural preference is
a policy compact agreed upon by the federal and state governments
in 1980, but the state has refused to uphold its end of the
agreement since McDowell in 1989. Federal preference is a humane,
intelligent policy that allows rural villages to survive by their
only standing economic base, as contrasted with dependency on
government and welfare. Here we are trying to do away with
welfare. What is this resolution going to do? It is going to
force more people on welfare in rural Alaska once you do away with
subsistence. Without legal protection, rural villages will
gradually deteriorate and disappear, with the social and economic
costs of their collapse falling on future Alaskan governors,
legislators, and taxpayers. Senator Stevens has told the
legislature that the Congressional delegation will not use the
Congress and the federal law to resolve a dispute affecting only
Alaskans. The Alaska Legislature, refusing to trust its own voters
with a constitutional amendment, has created this mess, which can
be resolved only by Alaskans, by the vote of the people. She
strongly opposed this legislation.
REPRESENTATIVE TOOHEY asked Representative MacLean if she believed
the government should be out of the purview of the Native
communities.
REPRESENTATIVE MACLEAN answered that she believes the state
government has not managed our fish and game resources properly for
rural people or Alaska Native people. We have had this battle for
years. She believes they had better protection under the federal
government than under the state.
REPRESENTATIVE TOOHEY asked if subsistence came back just for the
rural areas, would it also be okay, then, if we withdrew all state
aid? If you have subsistence to enhance your life, and I
understand that, then would you also agree to give up your welfare
checks, and these benefits that are part of the same government?
REPRESENTATIVE MACLEAN answered that is exactly what they have
tried to do, is get the state out of rural areas, especially in the
subsistence division, because they have not protected our
interests. And, yes, of course we will see an after effect, like
a domino effect. If you take away subsistence, then it creates
more welfare for the state. We would have to start issuing checks
for Aid to Families With Dependent Children (AFDC), and Public
Assistance. It would create a domino effect.
REPRESENTATIVE TOOHEY asked Representative MacLean if she believed
it would be in the best interest of the Native communities to do
away with the welfare system as long as they got subsistence?
REPRESENTATIVE MACLEAN said, that yes, of course, the majority of
Alaska Natives believe in that.
REPRESENTATIVE BUNDE said a concern he hears about is how
subsistence would impact commercial fishing.
REPRESENTATIVE MACLEAN said that no, it would not. There is only
4 percent of subsistence harvesters throughout the whole state of
Alaska. United Fishermen of Alaska support a constitutional
amendment for subsistence to be put to the vote of the people.
REPRESENTATIVE BUNDE asked if this were to pass, if she would not
be concerned about an out migration from the cities to the rural
areas.
REPRESENTATIVE MACLEAN said no, it would not happen. You rely on
subsistence primarily for harvesting, and the people who choose to
live in rural areas, for them it their home. Why not move to a
rural area to be a subsistence user?
REPRESENTATIVE BUNDE said that is what he is saying. You do not
expect that there would be a lot of people doing that?
REPRESENTATIVE MACLEAN said no.
REPRESENTATIVE BUNDE asked about the urban Native population, if
she would expect that they would move back to rural areas. They
are essentially denied subsistence rights because they are urban
people.
REPRESENTATIVE MACLEAN said that is a freedom that they have, to
live where they choose to live. One of the unique aspects of the
Alaska Natives is to share within their culture and so she is here
in Juneau, but has Native food in her freezer because they share
with her, her Native food. She prefers caribou over beef any day.
REPRESENTATIVE BUNDE said he just gave his brother a wild goose the
other day, a Canadian honker that he had killed, so he understands
sharing.
Number 300
REPRESENTATIVE IVAN IVAN, represents District 39, including
Kuskokwim and Dillingham areas. He respects the sponsor's beliefs,
and would like to make a few remarks. He was sure all of the
committee members have been hearing about this issue for quite some
time, and all the arguments and debates surrounding it. He did
want to make comments about what subsistence means to him, and to
the constituents that he represents. It has been defined as
hunting, fishing and gathering activities which traditionally
constituted the economic base of life for a group of people called
Alaska Native people. They continue to do that today. It is a
little more than that. We have had our own history, culture, and
philosophy related to it, and we are taught to respect the fish and
game in order to protect it as much as we can. That is also true
today, and we are trying to pass on that philosophy in history to
the younger generations and our children, so that they may continue
to provide that. Our position has always been to let the state of
Alaska recognize that this way of life exists. It is not going to
go away. People will continue to hunt and fish and some of his
constituents have been so strong, and feel no matter how thick the
laws become in the state, they will continue to hunt and fish.
That is the strong comment I have heard throughout my district.
When I campaigned prior to coming here, that was one overwhelming
issue. They kept asking me to represent their interests as far as
their subsistence way of life is concerned. We are minorities, as
we all know. You could look at the makeup of the legislature, and
there are a few of us who would really like to see this subsistence
way of life be recognized by the state of Alaska. It has been
recognized for quite some time, but it has been struck as
unconstitutional in the past. Our folks have always lived their
way in their land, our land, and it is being challenged today by
different interests and competition as more people come to the
state of Alaska. We are all looking at the same resource. The
people who were here before grew up with the idea that it was never
against the law to hunt and fish. It was a person's pride to take
care of one's extended family to make sure everybody had food on
the table. It was very respected, and young people were encouraged
to do so. That is part of growing up in our culture. As it has
been in the past, the process is still going, but of course, we do
have snow machines, rifles, and modern equipment. We have our own
controls in communities. We have elders who tell the children to
hunt only for what they need, to not hurt the resources, or we will
go hungry in the future, if we do not take care of that now. We
use as many parts of the animal as we can. When we kill a moose,
we use the hide, the antlers, as much as we can. It is a way of
life, and we do not have the infrastructure as you would see it in
many communities in the state of Alaska.
REPRESENTATIVE IVAN stated that the state of Alaska is a young
institution that has just recently come into being. That is why
the Native people trust the federal government more, because the
United States federal government had a relationship with them, and
recognized and honored their way of life in the past. As far as
Title VIII is concerned, the federal government looks at it as a
protective measure. This Resolution speaks against it. The
feeling of his constituents is that it is there for our protection,
and to preserve our way of life. If you look back at the history
of the United States government in the Lower 48, the tribes have
been recognized as tribes, and the forefathers have accordingly
dealt with those groups of Native Americans. That is the type of
relationship that these villages would like to see. As far as the
state of Alaska, it is a newer institution, and it does not, as far
as he and his constituents are concerned, recognize that way of
life.
REPRESENTATIVE IVAN explained that as far as the question of
commercial fishing, he remembers getting out of school in the early
1960s. Commercial fishing was introduced in the lower Kuskokwim.
The elders in the community looked at this new opportunity. The
reservation of the majority of the folks was that we not deplete
the resource for subsistence purposes, but let us have commercial
fisheries, yet protect the resources from depleting. The elders
wanted to see the continuity of going after the salmon resources
for annual food supply. He asked the committee to seriously
consider not passing this Resolution. Hopefully, in the future,
the state of Alaska will recognize that this way of life needs to
be continued on. At one time, my community, Akiak, was a
reservation, under the federal law, but the folks opted out of it.
During that time when non-Natives were married into the community
to families, they were automatically treated as everyone. People
in that area continue to hunt and fish.
Number 465
REPRESENTATIVE TOOHEY told Representative Ivan that she would be so
happy if he were going to live forever. You are not going to live
forever. The elders are going to die out. There is going to be a
new wave of young people coming up. We hope and pray that they
have the same care and love for their traditions that you have.
History has shown that does not happen, that there is a new age
coming up. She fears, and feels that most people fear for the
resource. More so for the resource than for your culture, because
if there is no care of the land and the resource, there will be no
resource. She thinks that is a major fear. Also, the herring roe
situation is very prevalent. What is going to happen in a case
like that?
REPRESENTATIVE IVAN answered that as far as herring roe is
concerned, that is another resource that our folks in the coastal
communities use, and barter with dried fish for. He enjoys that,
and likes it very much, but if they continue to try and get that,
they hope to continue that pursuit. That is the bottom line of his
testimony. His people are resting uneasy and feel threatened, and
he speaks against this resolution.
REPRESENTATIVE TOOHEY said bartering is not a problem, but the
problem is with bartering cash for the resource.
REPRESENTATIVE IVAN respected her position.
Number 505
REPRESENTATIVE BUNDE said he appreciated Representative Ivan's
heartfelt comments, and understands that some of his constituents
might feel threatened, and it is certainly not his intention to add
to their discomfort. He does not share Representative Ivan's
opinion of our federal government. He thinks the way our federal
government treated, in historic times, American Natives was
shameful. But maybe they have learned, and are better nowadays
than they were in the past.
REPRESENTATIVE BUNDE said, referring to the commercial fishing, at
least the elders, if resources were to run short, would want
commercial fishing to go away, in order to maintain subsistence.
What Representative Toohey has alluded to is that people would move
to the rural areas, catch $10,000 or $20,000 worth of fish and say
they are doing it as subsistence because they live in a rural area
now; and then sell it, in the name of subsistence, which would hurt
the resource. That is a concern we share.
REPRESENTATIVE BUNDE said another concern he has, is he represents
a district that includes urban Natives, and of course, the federal
government would disenfranchise urban Natives, unless they moved to
the rural areas. The Bethel area is growing rapidly, and in 10 or
20 years, could be considered a city, and would be classified as an
urban area. Would we then exclude Bethel from subsistence, if it
grows big enough?
REPRESENTATIVE IVAN believes in local self government. He believes
when we get to that point, we can revisit that issue. But as far
as he is concerned, regardless of what the population of Bethel is,
if there are people who depend on the resources and do not have
jobs to do so, he would certainly like them to utilize the
available resources, the fish, the moose, the caribou. He
understands the concerns about conservation, and it is our number
one priority. We can deal with it as time goes on, or if our
population grows, as we have adjusted to it for all these years
throughout our life. We have adjusted to very harsh seasons, we
have adjusted to game being low in number at times. Nothing has
always been abundant. We are very versatile, and can adjust easily
to that situation. We can do it through discussion, debate, and
consensus.
Due to the number of teleconference sites on line all at one time,
the quality of taping for this meeting was unfortunately less than
audible through many parts, particularly for Fairbanks.
Number 560
REPRESENTATIVE IRENE NICHOLIA testified via teleconference from
Fairbanks against the bill. She gave a list of how much several
groceries cost in rural areas. She stressed the importance of
subsistence as a means for survival and also the spiritual aspects
involved. The Native people want to carry on their traditions that
have passed from generation to generation. It is all about caring
and sharing within communities. ANILCA is the only legal force
protecting the economic and cultural survival of subsistence within
communities. There is no protection in state law. ANILCA must be
implemented by federal and state agencies because it is the law.
If you go back and review the rural history of Alaska, you will
find that rural preference is a policy contract, redefined by the
state and our federal government in 1980. She feels that this
measure would be detrimental to rural Alaskans.
CHAIRMAN PORTER was allowing unlimited testimony to the elected
Representatives because, quite frankly, they are elected to
represent large districts; but he did ask those remaining people
wishing to testify to limit their remarks to three minutes, which
is the standard for large testimony taking. He said he would try
to rotate through the sites.
REPRESENTATIVE BUNDE asked if Representative Nicholia would endorse
the elimination of commercial fishing, if subsistence were to
require that.
REPRESENTATIVE NICHOLIA said that subsistence should have the
priority.
REPRESENTATIVE TOOHEY asked Representative Nicholia the same
question she had asked Representative MacLean. Do you also believe
that if subsistence is going to be your standard way of life, that
you would do away with the welfare system in the rural villages?
REPRESENTATIVE NICHOLIA said that time will tell if those programs
would continue to be needed, as there are no jobs in rural Alaska.
Number 700
PATRICK WRIGHT testified via teleconference from Anchorage. He is
a long time Alaska resident in Anchorage. He stated that it had
just snowed about two feet, and several people who wanted to
testify were unable to come out during the snowstorm. Alaskans are
rugged and are able to take care of themselves. That is exactly
the concept he wanted to bring into this HJR 33, regardless of
where we live. Specifically, to the Judiciary Committee, he wanted
to make some comments from the Alaska State Constitution. In
Article I, the inherent right talks about this constitution being
dedicated to the principles. All persons have the natural right to
seek the pursuit of happiness, the enjoyment of the reward of their
own industry, and that all persons are equal, and entitled to equal
rights opportunities and protection under the law. That is a
pretty good guiding concept to direct our lives. He commended the
legislators who introduced this bill, because this is good Alaska
legislation to get rid of bad federal legislation, which has been
suppressive and divisive of Alaskans. Since statehood, Alaska was
supposed to come into the Union on equal footing with all the other
states. In fact, control of fish and game was a major impetus for
statehood. It is very commendable that Alaskans were able to do
away with the fish traps, and rid a privileged user group of our
resources. Our fisheries have certainly been enhanced since that
occurred. ANILCA addresses only one state, and that leaves Alaska
not being considered the same as other states. It sets up
duplication of state efforts, but it is put in federal agencies
that are really just empire buildings. Alaska has an excellent
process for public involvement in our fish and game, through the
Board of Game, the Board of Fisheries, and the local advisory
committee. We have the mechanism to do this, and we also have an
obligation to do it.
MR. WRIGHT explained that Title VIII of ANILCA is really a
statistical time bomb. In times of shortage, even though these
resources may be renewable, they are not infinite, they are
limited, and Title VIII is not working because in the future we
will have increasing demands on our resources. The Tenth Amendment
of the United States Constitution is something he would like the
legislature to involve itself with. He concluded by saying he
supports HJR 33 as a means of taking control of our own destiny,
for our present residents, and for equity for future generations of
Alaska.
Number 770
WILLIE KASAYULIE, Chairman and Chief Executive Officer for the
Akiachak Native Community in Bethel, one of 227 federally
recognized tribes, testified via teleconference. He added that the
Alaska tribes comprise over 40 percent of the federally recognized
tribes across the nation. He drove down from the Akiachak on the
Kuskokwim River to testify against HJR 33 because of the potential
impact on rural residents. In light of the national and state
government activities to reduce public assistance, especially to
rural residents, amending Title VIII will have far reaching impacts
where economic development is nonexistent. A constitutional
amendment would be a short term solution to a long term problem,
unless the people in rural areas are allowed to participate in
developing regulations to our subsistence users. When we talk
about having equal access, it would be incumbent upon the Alaska
Legislature to realize that those of us who are unincorporated
communities are being discriminated against by the state because of
our desire to run our communities under tribal authority, by not
giving us equal revenue sharing funding as is given to the state's
municipalities.
Number 800
ANDY GOLIA, Bristol Bay Native Association in Dillingham, testified
via teleconference. He stated they are a nonprofit corporation who
serve 29 Tribal Councils. The Native Association opposes HJR 33.
They feel the Bristol Bay region will suffer if this measure is
passed.
Number 830
ORVIL HUNTINGTON, Huslia Tribal Member, testified via
teleconference from Fairbanks, against HJR 33. He expressed
concerns about giving up subsistence rights, and the need to
protect the limited fish and wildlife resources. He felt this
would be discrimination.
TAPE 95-32, SIDE B
Number 000
MARK JACOBS, JR. testified against HJR 33. First of all, Title
VIII is a Native and non-Native preference in the federal ANILCA
provisions. The sponsors of HJR 33 have told us that the Statehood
Act gives the state jurisdiction over fish and game resources. But
in the Statehood Act, regarding admission to the Union, Alaska,
like every other state, is required to have in its Constitution a
disclaimer, mandated by Article IV of the Alaska Statehood Act.
The Alaska Constitution, Article 12, Section 12, has this
disclaimer. The Alaska Native Claims Settlement Act did not negate
or repeal this section, because Article 12, Section 12 clearly uses
the words "forever disclaim" as a method of amending the State
Constitution; and in amending the Constitution, the words mean
forever. Any changes to the State Constitution and the sections
have not been done legally. Any other action would be illegal in
removing that provision. If you can move it and amend the State
Constitution, in his opinion it would be a two faced, fork tongued
policy, because he takes the language at face value. Forever means
forever. If the legislature is successful in taking away rural
preference, our white brothers will also be affected, the ones who
choose to live the Alaska lifestyle. The 19th Congress must
protect the Alaska Native rights. Subsistence take is a very small
percentage, economically, to user groups. Statistics show that it
has been 1 percent subsistence, 4 percent by sportsmen, and 95
percent by commercial fishermen. These are state of Alaska
statistics. As a Native of Alaska, we have and possess tribal
sovereign distinction because our legal relationship is a nation to
nation, government to government relationship. He opposes any
effort to amend the Alaska National Interest Conservation Act. He
also informed the committee he is almost totally deaf.
Number 160
LORETTA BULLARD, President, Kawerak, Incorporated, a regional
nonprofit organization providing services to the various state
regions, testified via teleconference. She opposed HJR 33. She
thinks if the state passes this legislation, it will heighten the
need for federal protection of the rural Alaskans' ability to
subsistence hunt and fish during times of shortage. It says loud
and clear that the leadership of this state will not protect those
who most depend on harvesting resources. Congress did not
arbitrarily divide Alaskans into groups. They made a conscious
decision to protect those individuals who most depend upon those
resources in times of shortage. This would hurt the families in
the bush. This legislature needs to place a constitutional
amendment on the ballot which will provide for rural preference
during times of shortage soon. The federal government has been
more responsive to rural needs than the state has.
Number 200
BOB CHARLES, Vice President of Operations, for the Association of
Village Council Presidents in the Yukon-Kuskokwim/Delta Region,
representing 56 villages on the Delta, testified via teleconference
from Bethel. He is against HJR 33. Rural Alaskans, and
particularly indigenous people of Alaska will never be treated as
equals if this proposed resolution to amend ANILCA passes. People
throughout rural Alaska bear the brunt of the decisions made by
state regulators and managers of fish and game, on the basis of
what determines equal access. The only access they are interested
in is the access for wealthy and nonsubsistence users. State law
does not protect the resources of the people who depend upon them.
Number 300
TERESA CLARK, Galena resident, testified via teleconference from
Fairbanks. She opposed HJR 33. She believes in equal access to
fish and wildlife resources for subsistence use. The system we
have now does not provide equal access to the indigenous residents
of Alaska.
Number 360
RUTH WILLARD, First Vice President, Tlingit and Haida Central
Council, and a Board member of the Alaska Federation of Natives,
testified via teleconference in opposition to HJR 33. The federal
preference protects the economic and cultural survival of the
subsistence dependent rural communities. She has lived in
Anchorage for over 30 years, but still considers Angoon home, which
is a little village on Admiralty Island, and still looked to her
people for subsistence. She strongly agreed with one of their
leaders in a past AFN convention who said that Title VIII of ANILCA
is the last thread left to hang onto. It should not be amended or
repealed. She believes the legislature should let the people vote
on a constitutional amendment to conform with Title VIII. The
sponsor of this resolution, in her February 29, 1995, memo to all
Alaska legislators asks for support because the law is breaking the
spirit of many Alaskans. She asks the legislature to defeat this
resolution for the same reason.
Number 390
DALE BONDURANT, 40 year resident of Alaska, and fish and game user,
testified via teleconference. He considered HJR 33 an important
piece of legislation. He welcomed it, as a breath of fresh air,
and respected Representative Masek's acceptance of responsibility
to cut through the rhetoric and pursue equality for all Alaskans.
Any government authority that suggests and pressures the system of
this state to repeal the Alaska Constitution's equal protection
provision, speaks blatant blasphemy. ANILCA has federally mandated
exclusive rights and special privileges for certain groups. The
only way to cure the problem is to extinguish the mandates of
unconstitutional quality. Repeal Title VIII of ANILCA. Alaska is
the only state with the only federal law that specifically excludes
all residents of specifically named cities from the equal right of
access to use our fish and game on our own dinner tables. Do not
surrender the constitutional protection and rights of everybody.
Instead, destroy the inequality of Title VIII, ANILCA. Reunite
Alaskans for equal access.
Number 450
EILEEN NORBERGE, Deputy Director, Kawerak, Incorporated, testified
via teleconference. She totally opposed HJR 33. She felt it to be
misleading and inaccurate. People do not understand that ANILCA
provides for resource allocations only in times of resource
shortage. It provides protection for the people who rely upon
local fishing resources to feed their families. The local
population should have priority in the opportunity to continue
feeding their families, over sport fishermen from Anchorage or
Seattle. If any of you on this committee oppose that, she felt
people were getting away from the issue. The state has reneged on
its commitment to uphold the Constitution in regards to fish and
game resources. The rural preference, under ANILCA, provides us
with some form of protection, which we need. Through extended
families, we pool our resources together. Subsistence is an
economic system. The state of Alaska needs to solve its own
problems, and if it is unable to do so, then we turn to the federal
government.
Number 550
LORETTA LOLNITZ, an Athabascan Indian, testified via
teleconference. She said this Resolution will do nothing to help
her, because of the way she was raised to live and the way she
chooses to live. As it is now, our traditional heritage is
constantly being abused by various legislative parties. Our
traditional hunting and fishing needs are essential to our way of
life. We should never compare our subsistence way of life with
other states, because Alaska's conditions are unique, compared to
other states. She opposed the Resolution.
REPRESENTATIVE TOOHEY asked if Ms. Lolnitz, her husband, or
children were receiving any benefits from the state.
MS. LOLNITZ answered no.
Number 600
HAROLD MARTIN, President, Southeast Native Subsistence Commission,
testified against the Resolution. The Commission is made up of 18
community representatives elected locally by tribal members, and
four regional representatives appointed by the Central Council,
Tlingit and Haida Tribes of Alaska, Sealaska Corporation, Alaska
Native Brotherhood, and Alaska Native Sisterhood. The Commission
represents over 20,000 tribal members. He spoke against HJR 33 for
a number of reasons. Title VIII of ANILCA and the federal
preference protects the unique subsistence and cultural lifestyle
of rural Native communities. State law has no effective protection
now. Title VIII of ANILCA is a law that must be implemented by the
federal courts and agencies whether the state complies with it or
not. This issue must be resolved within Alaska by Alaskans. Why
did the state of Alaska relinquish management control of 60 percent
of Alaska lands on account of 8 percent of its people that harvest
less than 4 percent of the wild renewable resources on an annual
basis?
REPRESENTATIVE BUNDE understands the problem in Title VIII to be
that even if we amended the Constitution and put it to a vote,
there is no guarantee it would pass. But if we amended the
Constitution, we would still be under federal oversight, so we
would not really be accomplishing much by amending the
Constitution. He asked Mr. Martin to address the question of the
herring roe fishery. He understands that $70,000 worth of herring
roe was sold in the name of barter. What impact would that have on
commercial fishing if people were able to catch fish in the name of
subsistence and sell them?
MR. MARTIN was not familiar with the case Representative Bunde was
talking about. There has always been a barter system. Commercial
fisheries take the majority of the herring roe that is available in
the Sitka area, and other areas. Not a whole lot of people take
herring roe. Some people do not eat it, and some do. Not many
people sell it. There are a few people who will exploit our
natural resources, and we are on the lookout for these people. We
had that experience with the sea otter not too long ago, and we
brought them under control. He does not feel there is a threat
now.
REPRESENTATIVE BUNDE explained that the question is not about
herring roe, but people are concerned that if you can sell herring
roe, then you can sell herring, then you can sell troll-caught
fish, you can sell purse-seine fish, and call it subsistence. That
is what people are concerned about, that commercial fishermen will
lose their right to fish, their limited entry permits would be
worthless, because people could say they are doing subsistence and
sell their fish.
MR. MARTIN felt at this point, the subsistence preference kicks in
only when they run into a shortage of a particular species. It is
not in effect all the time. He does not see a threat there.
VERNON OLSON, Vice President of Bering Straits Native Corporation,
testified via teleconference. A majority of the 6,710 shareholders
of this corporation live a subsistence lifestyle. He personally
has never received aid from the state or federal government. We,
in this area, rely heavily upon subsistence. What we are really
talking about here is culture and the necessity to put food on the
table. If HJR 33 passed, we would have cultural genocide, because
it is not only food, it is also the way of life. HJR 33 is a
frivolous piece of legislation.
STANLEY JONAS testified via teleconference, against HJR 33. He is
from Canyon Village, located about 110 miles north of Fort Yukon.
His village does not have a store or an airport, and we rely on the
subsistence way of life. If we were to charter groceries in, it
would cost us about $400. That is money we do not have here,
because there are no jobs. He lives out in the bush, and at 67
years old, that is really his way of life. He is opposed to this
Resolution.
Number 745
ROBERT FIFER, testified via teleconference, representing the EGA
Village Council, and the 36 tribal members. In response to
Representative Masek's Resolution, it grossly misrepresents the
Native people of Alaska. She has no self pride as a Native person
herself. Before Ms. Masek introduces this Resolution, she should
talk to her people, in order to represent them respectfully. The
word "subsistence" is foreign. This is a way of life. Do not
dictate my way of life. Protect it. He will not support any
legislation except a constitutional amendment in our state, to
comply with federal law.
Number 775
ISAAC JUNEBY, Eagle resident, testified via teleconference. He
strongly opposed HJR 33. He believes that rural residents should
have first priority for using the resources.
Number 790
HARRIET CARLO, Galena resident, testified via teleconference. She
opposed HJR 33 and stated that her and her husband have four
children. They buy very little commercially processed meat, and
they both work full-time jobs, at low income. They do have
marketable skills. She has a background working with drugs and
alcohol, teenagers, and in being a child advocate. She has also
worked with the women's shelter. They do not depend on income, due
to personal beliefs. They share their harvests with family members
and communities. They choose to live the subsistence way of life,
and they do not have the money to go to the store to buy food.
CARL JERNE, JR. (REPRESENTATIVE BEVERLY MASEK'S BROTHER), First
Chief, Anvik Tribal Council, opposed HJR 33. The Council consists
of approximately 120 people. He said the bill claims that its
purpose is to allocate the fish and wildlife of Alaska for
subsistence use among residents of Alaska without individual regard
to the residents' use of, or need of subsistence. He felt the
resolution would be placing rural against urban. It is written in
black and white. Also, in regards to sport fishing, the exclusion
goals have not been reached. He urged the legislature to do some
research and go to the villages and see what is really happening.
Neither he, nor the Council has the staff and resources to do the
research, and to make proposals and such; but he took it upon
himself to make sure that the committee understands that their
Tribal Council opposes the Resolution.
TAPE 95-33, SIDE A
Number 000
JERRY SAM, Chief, Village of Aletna, testified via teleconference.
The only way to get supplies in and out of Aletna is to charter,
which is very expensive. We rely on food that is provided from the
animals and the land. He strongly opposed HJR 33.
Number 100
CESA SAM, Tribal Administrator, Huslia, testified via
teleconference, against HJR 33. It is hard work to live a
subsistence lifestyle, but they have been raised to work hard to
put food on their tables. If she is laid off from her job, she
knows she can always put food on her table through subsistence
rights.
Number 140
JEREMIAH RILEY, 14 year old, testified via teleconference against
HJR 33, because it will have negative impacts on their resources.
This will not promote an abundant supply of fish and game for all
of the children of the future, due to the over harvesting that will
occur.
Number 165
STANLEY NED, ALLAKAKET resident, testified via teleconference. He
opposed HJR 33. His fathers and grandfathers have lived off of the
land, taking only what they need. Not any more. What we have now
are people that do not know what living off the land means.
Talking to people that don't know what living off the land means is
like a fart in a blizzard. They do not know how to make the
necessary sacrifices. He opposed HJR 33.
Number 200
MARTHA FALK, House Researcher for Representative MacLean, addressed
the statement that Representative Toohey made, in regards to our
elders dying off. It is a real emotional issue for her. She is
living testimony that she will pass on, yet she respects her
cultural values, because it is their way of life, to keep them
unified. Subsistence is a lifestyle. The issue of food on the
table is not an economic issue, it is a way of religion for us.
And referring to Representative Toohey's comments to say that the
elders are dying off, and that there are a few bad eggs in their
race, or in the several different Native races, that is true.
There are bad eggs in every race. But she will proudly carry on
her subsistence lifestyle.
REPRESENTATIVE TOOHEY answered that if Ms. Falk took her comments
as being flippant, they were not meant to be flippant. She has a
great deal of respect for her and her lifestyle. Her fear is that
there are children out there that are fetal alcohol syndrome, that
are coming into the big cities, and are being influenced by the
wrong kind of person. They are going back to the villages without
your love of the land. That is what she fears.
MS. FALK said what she was referring to is there will always be a
remnant to carry on from generation to generation to generation,
because that is their rightful inheritance from their father in
heaven.
MIKE LOPEZ, IRA Council Member from Petersburg, strongly opposed
HJR 33. He is also a member of the Southeast Alaska Native
Subsistence Commission. Title VIII of ANILCA is intended to carry
out subsistence related policies and to fulfil the purposes of
ANSCA in this respect, that in some sense, a settlement of Alaska
Native's Aboriginal hunting and fishing claims seemingly
extinguished in ANSCA. Unlike previous such settlements, ANILCA
does not afford Alaska Natives off-reservation or other exclusive
rights to hunt and fish because of their membership in a particular
tribe. Instead, bowing to present day political reality, ANILCA
established subsistence protection for most rural Alaska residents,
both Native and non-Native. Nevertheless it is quite clear from
the congressional finding in Title VIII that ANILCA is also a
federal legislation enacted to benefit Native Americans and is
intended, in significant part, to protect Alaska Natives' physical,
economical, cultural, or traditional existence.
CHAIRMAN PORTER recorded the names of persons to testify on
Wednesday: Kenny Johns, from Glennallen, Tom Tilden from
Dillingham, Jake Ollana, Art Swanson from Nome, Larry Ashenfelter
from Nome, Al McKinley from Juneau, and of course somebody from the
Governor's Office. He announced that the hearing would be
continued to about 1:30 or 2:00 p.m. on Wednesday.
REPRESENTATIVE MASEK concluded, expressed appreciation to the
committee in taking on HJR 33. She thanked everybody for their
opinions which are very helpful. Our country allows differences,
because people died for equality in the history of our nation. She
appreciated everybody's thoughts shared on this important issue.
ADJOURNMENT
The House Judiciary Committee adjourned at 5:00 p.m.
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