Legislature(1995 - 1996)
03/17/1995 01:22 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.