Legislature(1997 - 1998)
03/28/1998 01:14 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 1998
1:14 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Brian Porter
MEMBERS ABSENT
Representative Con Bunde, Vice Chairman
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
COMMITTEE CALENDAR
HOUSE BILL NO. 406
"An Act relating to subsistence uses of fish and game."
- HEARD AND HELD (CONTINUED FROM MARCH 27, 1998)
(* First public hearing)
PREVIOUS ACTION
BILL: HB 406
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
2/12/98 2312 (H) READ THE FIRST TIME - REFERRAL(S)
2/12/98 2312 (H) RESOURCES, JUDICIARY, FINANCE
2/17/98 (H) RES AT 1:00 PM CAPITOL 124
2/17/98 (H) MINUTE(RES)
2/21/98 (H) RES AT 1:00 PM CAPITOL 124
2/21/98 (H) MINUTE(RES)
2/24/98 (H) RES AT 1:00 PM CAPITOL 124
2/24/98 (H) MINUTE(RES)
2/27/98 (H) JUD AT 1:00 PM CAPITOL 120
2/27/98 (H) MINUTE(JUD)
2/28/98 (H) RES AT 9:00 AM CAPITOL 124
2/28/98 (H) MINUTE(RES)
3/03/98 (H) RES AT 1:00 PM CAPITOL 124
3/03/98 (H) MINUTE(RES)
3/04/98 (H) JUD AT 1:00 PM CAPITOL 120
3/04/98 (H) MINUTE(JUD)
3/05/98 (H) RES AT 1:00 PM CAPITOL 124
3/05/98 (H) MINUTE(RES)
3/06/98 (H) JUD AT 1:00 PM CAPITOL 120
3/06/98 (H) MINUTE(JUD)
3/06/98 2538 (H) RES RPT CS(RES)NT 3DP 1DNP 1NR 3AM
3/06/98 2539 (H) DP: DYSON, GREEN, OGAN; DNP: JOULE;
3/06/98 2539 (H) NR: BARNES; AM: MASEK, WILLIAMS,
HUDSON
3/06/98 2539 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
3/06/98 2539 (H) REFERRED TO JUDICIARY
3/09/98 (H) JUD AT 1:00 PM CAPITOL 120
3/09/98 (H) MINUTE(JUD)
3/11/98 (H) JUD AT 1:00 PM CAPITOL 120
3/11/98 (H) MINUTE(JUD)
3/18/98 (H) JUD AT 1:00 PM CAPITOL 120
3/18/98 (H) MINUTE(JUD)
3/20/98 (H) JUD AT 1:00 PM CAPITOL 120
3/20/98 (H) MINUTE(JUD)
3/23/98 (H) JUD AT 1:00 PM CAPITOL 120
3/23/98 (H) MINUTE(JUD) (MTG CANCELLED)
3/25/98 (H) JUD AT 1:00 PM CAPITOL 120
3/25/98 (H) MINUTE(JUD)
3/27/98 (H) JUD AT 1:00 PM CAPITOL 120
3/27/98 (H) MINUTE(JUD)
3/28/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
PATRICK DALTON
P.O. Box 1413
Delta Junction, Alaska 99737
Telephone: (Not provided)
POSITION STATEMENT: Testified on HB 406.
JAKE OLANNA
Kawerak, Incorporated
P.O. Box 948
Nome, Alaska 99762
Telephone: (907) 443-5231
POSITION STATEMENT: Testified on HB 406.
PERRY MENDENHALL
Sitnasuak Native Corporation
P.O. Box 1141
Nome, Alaska 99762
Telephone: (907) 443-2455
POSITION STATEMENT: Testified on HB 406.
DONALD WESTLUND
P.O. Box 871
Ketchikan, Alaska 99901
Telephone: (907) 225-9319
POSITION STATEMENT: Testified on HB 406.
TOM LACKOSH
P.O. Box 100648
Anchorage, Alaska 99510
Telephone: (907) 563-7380
POSITION STATEMENT: Testified on HB 406.
JOHN BORBRIDGE
603 West 10th Street
Juneau, Alaska 99801
Telephone: (907) 586-2132
POSITION STATEMENT: Testified on subsistence and the special
relationship between the federal government
and Native Americans.
ACTION NARRATIVE
TAPE 98-48, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:14 p.m. Members present at the call to order
were Representatives Green and Porter.
HB 406 - SUBSISTENCE USES OF FISH AND GAME
CHAIRMAN GREEN announced the committee would hear HB 406, "An Act
relating to subsistence uses of fish and game." He noted that the
hearing was a continuation from the previous day, and there were
several people to testify.
Number 0075
PATRICK DALTON testified via teleconference from Delta Junction,
saying the original of HB 406 seemed a fair bill, with the
exception of some responsibilities placed on the boards. However,
he had serious objections to the work draft provided the previous
week, in which the focus had changed completely. He finds
seriously unfair the limiting of subsistence qualifications by
geographical area. He provides 90 percent or more of his family's
meat requirements from hunting or fishing; with six children and a
wife, it is a huge responsibility. To meet those requirements, he
must travel through three different fish and game areas. He fishes
in Copper Center and hunts caribou near Tok. He cannot obtain
those wildlife resources near Delta Junction, and he objects to a
person being required to live where that resource is in order to
qualify for subsistence.
Number 0210
CHAIRMAN GREEN asked whether Mr. Dalton was aware that the only
time he would be restricted by not living in the area would be in
a time of shortage.
MR. DALTON replied that as he understands it, this could affect him
even next year, because the Forty Mile caribou hunt is designated
as a subsistence hunt for which he has qualified under the
subsistence rules. If it were changed to include just the Tok area
or the Taylor Highway, he would no longer be able to hunt there for
caribou. The most reasonable and fair thing he had come up with
would be to pre-qualify users in an area, but also to provide that
others who would have to travel could still qualify if the species
were endangered.
CHAIRMAN GREEN pointed out that if a person has customarily
traveled to an area to get fish or game, and if the person can show
that and show reliance on that resource, there is a rebuttable
presumption that can be overcome by showing the historical need and
use. In addition, a person can go to areas that are not designated
as subsistence and hunt there.
Number 0430
MR. DALTON said it still seems that is giving a select group of
citizens more rights than others, although he sees what they are
getting at. Local people would benefit more anyway, because they
would know better where those resources are. He still disagrees
somewhat on that area. Furthermore, it would place a large burden
on the boards, and he doesn't think the boards are qualified to
determine economic needs of individuals; they are experts in fish
and wildlife. He suggested there should be objective criteria
established, which could not be influenced by personalities on the
board. It should be a truly fair system, and Mr. Dalton questioned
whether the board members could be fair in this regard.
CHAIRMAN GREEN said that is a good point. He asked Mr. Dalton
which version he was addressing, noting that there have been
revisions of the work draft. He said the next-to-last draft was
Version R, and now there is a more recent one, Version X. "And
your concerns about the individual's economic situation has been
removed," Chairman Green said.
Number 0574
MR. DALTON asked what kind of objective criteria they had ended up
with to establish whether a person qualifies for subsistence.
CHAIRMAN GREEN explained that the first pass at the subsistence
priority would be by area, not by individual. If there were enough
surplus animals or fish to satisfy the needs of the area, but not
enough to allow personal use and other conditions to take place,
that area is called a subsistence area. He said, "Now, if there
are even fewer specific species within the area designated for
subsistence, then there is a litany of conditions that the Fish and
Game department would use to determine who, among those who are
residents, have the priority. It may be they reduce everybody in
there to a certain take. They may reduce some based on ... having
had a longer period of need, or, like in your family, they may say,
'Well, gee whiz, here's Patrick Dalton and he's got nine mouths to
feed; he would have a priority over Joe Green, who might only have
two mouths to feed,' that sort of thing. That would be left to
Fish and Game's discretion, but it would be only after the area has
been determined, and not by cause of the individual's economic or
any other particular condition."
Number 0671
MR. DALTON mentioned a third point. The original version of HB 406
had a $5 hunting license for people on welfare or making up to
$8,200 per year gross income. Mr. Dalton said he had never taken
welfare payments, but if his income fell a little above that, he
still wouldn't qualify for that license. Furthermore, the income
requirements don't take into account the number of mouths a person
has to feed. It is unfair in some circumstances.
CHAIRMAN GREEN concurred and said that condition has been removed.
Number 0788
JAKE OLANNA, Kawerak, Incorporated, testified via teleconference
from Nome. He commented on the section titled, "Subsistence use
and allocation of fish and game," mentioning that "accommodation"
had been penciled in on the draft he had. In his view,
accommodation provides less protection than reasonable opportunity
does. He then referred to "portion of the residents" and mentioned
subsistence users in the Nome region. Under the qualifications, it
lists a community with fewer than 1,000 residents; he believes that
would discriminate against people living in Nome, Bethel or other
large hubs. Mr. Olanna said he also hears that this doesn't meet
the requirements of ANILCA, which addresses customary and
traditional uses and the protection of those needs. He mentioned
the elderly, as well as widows, who don't have the resources to go
out and hunt.
CHAIRMAN GREEN asked whether Mr. Olanna had received Version X,
noting that in that version, Mr. Olanna's concerns had been
removed. He asked that Mr. Olanna contact the committee on Monday
if he still had concerns after reading that.
Number 0950
PERRY MENDENHALL, Sitnasuak Native Corporation, testified via
teleconference from Nome, saying he basically has the same
concerns. Raised in Nome, he said there are quite a few projects
in the area whereby they are trying to teach their children how to
subsist as well. He also has concerns about the 1,000 population
limit. Nome is 60 percent Native, and they hunt and fish in that
region, with 350 fish camps, for example. He mentioned shortages
and the Tier II procedures, indicating the Board of Fisheries had
left them to handle it, with review scheduled for March 1999. He
said this is a test case, and he would like the bill to accommodate
the process they are going through, and to acknowledge the work
they will be doing to deal with the allocation of fish for
subsistence use.
MR. MENDENHALL expressed concern that the people of Nome have
access to that process. Many people in the area will be facing
welfare reform and losing jobs; they will be more dependent on fish
and game than ever, going back to the old ways. He pointed out
that Bering Straits Region has always been an economically
depressed area, according to the Department of Community and
Regional Affairs papers and files; it has been on the books since
statehood in that manner, to show that they are a subsistence
community.
Number 1045
MR. MENDENHALL told members they have no foreseeable economic
development that is secure, to replace jobs being lost through
state and federal budget cuts and because of the dropping price of
gold. He said 65 jobs have been lost for the next year, and people
are leaving Nome. He suggested that people there tend to run for
office, make projects, impose taxes and laws, and then leave.
Those who remain have to live with those rules and regulations. He
questioned whether people in power understand the subsistence
lifestyle, saying it is not a matter of choice, but a way of life,
which the Alaska Federation of Natives (AFN) has tried to bring
out.
CHAIRMAN GREEN asked that Mr. Mendenhall look at Version X and told
him that is exactly what they are trying to do, to return it to
being somewhat like it was before, "and that we want to get out of
your way and allow you to do this." He explained that when it gets
down to being close to the sustained yield level, Mr. Mendenhall
and his area would still have a priority.
MR. MENDENHALL said he doesn't have Version X.
CHAIRMAN GREEN replied that it is at least en route. He asked that
Mr. Mendenhall contact the committee if he still had concerns after
reading it.
Number 1232
DONALD WESTLUND testified via teleconference from Ketchikan,
suggesting they may be going a little farther than necessary. He
said the agents of the federal government in Ketchikan have said
that the state of Alaska has done a very good job in supplying
subsistence resources for the subsistence users. It is the 9th
District federal court that has ruled that Alaska is in violation
of ANILCA. It is not whether there is enough resource out there,
or whether we're providing enough, but it is the decision based on
whether a person in Alaska is a rural or nonrural person; that is
what violates the state constitution.
MR. WESTLUND said he had the proposed constitutional amendment in
front of him; it will create two different entities in the state,
the "haves" and the "have nots." He said he kind of agrees with
Mr. Bishop's testimony the previous day, that maybe the state
should draw a line and say, 'Cross it.' He stated, "I'm not sure
that's the way to go, but I have tendencies to go that way."
MR. WESTLUND acknowledged that up north there may be areas where
people subsist off the land. However, in most areas, that is no
longer true; there are stores and people buy things. He referred
to the 1990 federal census and noted that Ketchikan is 75th and
Anchorage is 32nd in average household income. Mr. Mendenhall
suggested it is ridiculous to say people subsist off the land if
they buy staples from the store. ANILCA should be changed in a way
that allows for personal use only by state residents.
MR. WESTLUND questioned how, once a priority is given to somebody
or the constitution is changed, the state could take back that
privilege if it prevails in its lawsuit. He concluded by saying
the work draft of HB 406 has come a long ways from the original; he
believes is it better as an alternative to the lawsuit. However,
he would like to see the lawsuit be tried before they convey this
privilege, which will be very difficult to take back.
Number 1464
CHAIRMAN GREEN pointed out the direct tie between the
constitutional change and the requirements to get some relief from
ANILCA: If the state doesn't get those changes in ANILCA, then the
constitutional amendment would become null and void. He also
emphasized that when talking about the subsistence preference, they
are only talking about that area which is adversely impacted, and
it is only for the length of time when that adversity exists. It
could be a season or part of a season, unless the low surplus just
above the sustainable yield continued.
CHAIRMAN GREEN noted that both HB 406 and the lawsuit are going
forward. If the state wins on the three-point suit against the
federal government, that also would negate any need to change the
constitution. Furthermore, if they were to vote to change the
constitution but should win the lawsuit in 1999, that would still
negate that change. They are trying to do both and are not putting
all their eggs in one basket.
MR. WESTLUND agreed. He cited a Dr. Seuss book, Yertle the Turtle,
with its good moral, and suggested that many an Alaskan is a
"Mack" from that story.
Number 1600
TOM LACKOSH testified via teleconference from Anchorage, saying
there seem to be a number of arbitrary measures here for assessing
the right to partake in subsistence hunting and fishing, as well as
in the establishment of nonsubsistence areas. He stated, "I think
you're going to find that you've created a circumstance here where
you will create strife between all sorts of communities because
there is no clear delineation of what an area should be, and that
there are some 14 different criteria which will possibly exclude
any given area from the ability to be a subsistence area. And
then, you have criteria here which set up the ability to be a
subsistence area by the harvest level of fish and game, of those
domiciled in the area."
MR. LACKOSH continued, "And then, you have essentially created a
nonsubsistence area by the allocation policies of Fish and Game.
So, what you have here is a set of arbitrary criteria, which not
only does it create strife but a disharmony among the citizens of
the state for this particular issue; but we may be finding
ourselves in a situation later where, because some area doesn't
have [a] cash-based economy, that they might not be entitled to
their permanent fund [dividend] because they don't use cash, or
they might not be entitled to their longevity bonus."
MR. LACKOSH concluded, "And to disparately treat the decisions of
this state in such a manner ... contradicts directly the terms of
the common use and equal protection under the law that was set up
in the constitution, specifically because there was a
disproportionate harvest by commercial interests, and that there
was not only a control of the resources but of the political base
as well to those companies who had fish traps. And I most strongly
advise that the committee go back and look at Dick Fisher's (ph)
books on the constitution and how it was espoused, and look at the
constitutional history to see exactly why we have such strong
provisions for common use and equal protection under the law."
CHAIRMAN GREEN noted that those were the only testifiers on
teleconference. He called on John Borbridge from the audience.
Number 1723
JOHN BORBRIDGE came forward to testify, specifying that he is a
Juneau resident and a Tlingit Indian whose tribal roots trace back
to Yakutat. His testimony would represent his personal views on
subsistence, as well as his experience and training as they relate
to subsistence. He related that he was elected president of the
central council of the Tlingit and Haida Indians of Alaska; later,
he was president and chairman of the board of Sealaska. In
addition, he was one of the principal architects of the Alaska
Native Claims Settlement Act (ANCSA), and was president during the
early shaping of Title VIII of ANILCA, as well as being a
congressional appointee as commissioner to the American Indian
Policy Review Commission, where they conducted a comprehensive
review of the federal government's historical and special legal
relationship with the American Indian people.
MR. BORBRIDGE said he intended in the future to comment
specifically on the evolving bill. In both this committee and the
House Resources Standing Committee, he had come to appreciate that
a number of statements have been made about Congress' authority to
evolve such a law as Title VIII and whether there is sort of a
racial question being raised by having the Alaska Natives as
beneficiaries.
MR. BORBRIDGE stated, "And this is why I've come today. My direct
participation in the subsistence lifestyle - not on a steady basis
but over the years - ranged from Southeast Alaska to Bristol Bay.
And as a subsistence specialist for the Bureau of Indian Affairs
from 1989 to 1996, I was involved from the outset in federal
management of subsistence uses of resources on public and other
lands in Alaska. And I hope to be able to state, later in my
testimony, that one of the untold and little-appreciated genuine
success stories of federal management has been the functioning and
participation in the role of the various regional advisory councils
in that system."
Number 1846
MR. BORBRIDGE told members it is beyond argument that the United
States Congress has the power to set up a resource management
regimen for the Alaska Natives and to confirm their right to
subsist on the public lands of Alaska owned by the people of the
United States. He stated, "The Indians, Eskimos and Aleuts and
non-Natives are simultaneously fellow Alaskans and fellow U.S.
citizens, and a people who, as Alaska Natives and Native Americans
or American Indians, enjoy a special and unique relationship with
the federal government. And I think it's unfortunate, Mr.
Chairman, that we Alaska Natives have not explained that more. I
know that it ... has been related to a number of friends in a very
sincere way that they don't understand how there can be differences
when we are on one hand fellow Alaskans and fellow U.S. citizens,
and on the other hand, we have a unique relationship with the
federal government. And they've asked, 'What does it mean? And
how does it impact on subsistence?' And this relationship, this
special relationship, has been little understood, sometimes
ignored, and attacked as racist by those who lack a complete
understanding of the provisions of the U.S. Constitution, which
gives Indians a unique status."
MR. BORBRIDGE continued, "The federal government owes the Native
Americans, of whom the Alaska Natives are a part, the obligation of
its trusteeship, not because of our poverty or the government's
wrongdoing in the past, but because within the federal system the
government's relationship with the Native Americans are of the
highest legal standing, established through solemn treaties and a
series of judicial decisions and legislative actions. This
responsibility originated largely from the following three sources:
(1) the treaties negotiated with the Indian tribes, in which the
United States acquired vast areas of land in exchange for its
solemn commitment to protect the members of the tribes and their
property from encroachment by U.S. citizens; (2) statutory
enactment dating from the Continental Congress to the present,
regulating transactions between U.S. citizens and members of the
Indian tribes; (3) innumerable transactions in which, in the latter
half of the nineteenth century, the United States imposed a complex
and vast array of regulatory authority over Indians and their
property, coincident with its assumption of control over the people
and property of the Indian tribes."
MR. BORBRIDGE told members the assumption of this authority over
Indian people was accomplished by responsibility to the Indian
people. Despite the foregoing, litigants have argued that federal
law singling out Indians, inclusive of Alaska Natives, as a class
violate the equal protection standard of the Fifth Amendment.
Others have contended that state actions recognizing the distinct
status of Indians or particular tribes under federal laws and
treaties violate the equal protection of the Fourteenth Amendment.
Number 1984
MR. BORBRIDGE reported that the power of Congress to enact
legislation singling out Indian lands or rights for special
treatment was upheld in Morton v. Mancari (1974), in which the U.S.
Supreme Court held unanimously that, "The plenary power of Congress
to deal with the special problems of the Indian is drawn both
explicitly and implicitly from the Constitution itself."
Additionally, the court said, "As long as the special treatment can
be tied rationally to the fulfillment of Congress' unique
obligation toward the Indians, such legislative judgments will not
be disturbed."
MR. BORBRIDGE said similarly, in United States v. Antelope (1977),
the court revisited the subject of Native rights in the
Constitution. In a unanimous decision, they stated, "The decisions
of this court leave no doubt that federal legislation with respect
to Indian tribes, although relating to Indians as such, is not
based upon impermissible racial classification. Quite the
contrary, classifications expressly singling out Indian tribes as
subjects of legislation are expressly provided for in the
Constitution and supported by the ensuing history of the federal
government's relations with Indians."
Number 2040
CHAIRMAN GREEN, noting that Mr. Borbridge was reading from a
document, asked whether he could provide a copy for the record.
MR. BORBRIDGE explained that he was hitting facets that had come up
in meetings of the various committees.
Number 2077
MR. BORBRIDGE referred to statements and questions he had heard
about ANCSA, such as whether there was an end to aboriginal hunting
and fishing rights, and how the Natives can now come in and talk
about rights in terms of subsistence. He said Congress in this
regard has followed the usual pattern by creating new rights and
new land titles for the aboriginal rights cancelled as part of the
general settlement. For example, it extinguished the aboriginal
land title but in return gave the Natives a fee-simple title to 40
million acres of Alaska land. While with one hand it extinguished
all aboriginal use rights, including the aboriginal right to hunt
and fish, with the other it took steps to confirm the existing
subsistence rights of Alaska Natives by directing the Secretary of
the Interior to take "any action necessary to protect the
subsistence needs of the Natives."
MR. BORBRIDGE said the legislative history of ANCSA further reveals
that it was anticipated that the state of Alaska could and would
assist the Secretary of the Interior in evolving policies, which
likewise would protect the subsistence activities that Natives on
the lands granted to the state under the Alaska Statehood Act. He
stated, "In 1968, prior to passage of ANCSA itself, there was a
massive compendium of information contained in Alaska Natives of
the Land, as compiled by the federal field committee for
development and planning in Alaska. That document concluded,
'There is no dispute that the right of Alaska Natives to go upon
federal lands for the purpose of taking fish and game should
continue.'"
Number 2158
MR. BORBRIDGE continued, "And so, during the consideration of
ANCSA, Congress looked hard at the subsistence provision. There
were three things that we Natives brought before the Congress:
land, subsistence, compensation for lands which would be lost as a
consequence of passage of the settlement Act." He said the Senate
committee report, which deals with Senate Bill 35, the last bill
that the Congress passed on the Senate side, concluded that the
Natives did not need to own the land they use to harvest
subsistence resources. It likewise determined that one reason
these lands should remain in federal ownership was to ensure the
protection of Native subsistence rights. Mr. Borbridge commented,
"So, clearly the Senate didn't think this would be impossible, but
then I guess they didn't have to deal with the administration, as
we did."
MR. BORBRIDGE informed members that in the report, the Senate
committee stated, "Despite the passage of control and management
over resident fish and wildlife to the state, the federal
government still holds the power to control the disposition of and
entry upon the land." He indicated that Senate Bill 35 would have
directed the Secretary of the Interior to classify lands for
habitat and to consider closure for purposes of protection for
subsistence. Mr. Borbridge stated, "And there were differences,
again, between the Senate and the House version, and of course,
this committee has had brought to its attention the conference
committee report which made reference to the different bills and
the different approaches to subsistence."
Number 2235
MR. BORBRIDGE told members that in his individual capacity, he is
coming before them to say this is the unfinished chapter of ANCSA.
"We tend to see it as separate from that," he commented. "I don't
see it that way, as one involved from the outset, from the first
bill to the final bill. This is the final unfinished chapter. The
Natives sought land, and we received the land, although it's still
being processed. We sought compensation, and that has been
forthcoming. It is subsistence that is the unfinished chapter."
MR. BORBRIDGE continued, "We feel that there is an express and
implicit ... promise that there will be, as part of the settlement
package, the right of the Natives to enjoy subsistence. What I've
sought to do today is to remove the thought that this is a racial
issue. Clearly, it is not. Unfortunately, [the] unique status we
enjoy in our relationship with the federal government, Mr.
Chairman, is not well-understood, and it gives rise to intemperate
remarks about racism and treatment of a special class differently.
Actually, I feel - and as I conclude my comments - that the United
States is to be complimented, however imperfect the legislation
was, for seeing to the passage of the claims settlement Act as a
way of doing justice. I feel also that the Native people are
seeking the fulfillment of those promises that were made in ANCSA.
And I've heard Representative Bill Williams comment on this; he is
exactly on target, Mr. Chairman. This is a promise, and we want to
see it to its fulfillment."
MR. BORBRIDGE concluded, "Since the Alaska Natives use subsistence
resources to supply both physical and cultural needs, Congress
clearly has the authority to set up a subsistence system giving
preference to the Natives, which satisfies the U.S. Constitution
and is, quote, 'tied rationally to the fulfillment of Congress'
unique obligation toward the Indian, and inclusive of the Alaska
Natives [no end quote provided]. Particularly, there can be no
doubt when this authority is combined with the plenary power
Congress also has under the property clause to regulate the use of
the renewable resources of the public lands."
MR. BORBRIDGE expressed appreciation for the committee's efforts
and complimented members for seeing the importance of discussing
the kinds of things he had presented that day. He expressed hope
that the information he had provided would allow people to feel
more comfortable about the federal power and the relationship of
the Alaska Natives to the federal government.
Number 2388
CHAIRMAN GREEN responded, "John, thank you. I think you bring an
insight that a lot of us really don't understand. Certainly, if we
even approach understanding, it's because we've read about it or
heard about it; we haven't lived it." He noted the difference
between Alaska and the Lower 48, as well as the large numbers of
non-Natives in many villages. He suggested that perhaps Alaska is
ahead of the Lower 48 in that the majority of people don't feel
there is a class distinction. Crafting something that would give
some village residents a preference over others would, he believes,
create a wedge. Chairman Green stated his belief that most
Alaskans would like to see that wedge removed and to look at each
other as Alaskans, "and if we have a problem with the federal
government, we as Alaskans want to solve that problem, rather than
having the federal government come in [ends mid-speech because of
tape change]."
TAPE 98-48, SIDE B
Number 0006
CHAIRMAN GREEN noted that rural Alaska isn't for the most part
agricultural, which people in the Lower 48 might not understand.
He asked whether in reading this, Mr. Borbridge sees that the
effort truly is to continue to provide village residents with the
way of life they have. The only time this would kick in is when
there is a threat to that way of life, in order to protect it.
MR. BORBRIDGE said he appreciates that, then noted that we have
functioned as a state under Title VIII, the aims and intentions of
which he considers very laudable. Mr. Borbridge stated, "They do
a compliment to this country, in that as it sought to do justice
through the passage of ANCSA, the same was in mind with the
enactment of Title VIII, which really came about solely because
Alaska Native people sought it, and because the chairman of the
House Interior and Insular Affairs, Representative Udall, agreed to
be prime sponsor; and that's why there is a Title VIII."
Number 0077
MR. BORBRIDGE continued, "The main concern I have ... is this: We
are in the very ironic situation - and I don't lay this on the
committee one bit; we're all a part of what's happening - and that
is the Alaska Natives didn't come in and say, 'Well, we've been
enjoying Title VIII and the priority under Title VIII, and we need
some help.' We have been calmly going about enjoying the benefits
intended to be ours under Title VIII, and now these changes are
being considered. And I've always thought, maybe in an ideal
world, that if we looked at Title VIII and looked at how we were
benefiting from its implementation, it'd be far better if the
committee were to come in and then say, 'Here's how we want to
improve it.'"
MR. BORBRIDGE continued, "What I see, and what really concerns me -
and this is not at all with respect to the bill that's come - is
that I always have this uneasy feeling that we are going to lose
some more rights, Mr. Chairman, and that before things are done,
we're going to enjoy less rights under Title VIII than we did
before. I appreciate their concerns about 'should we have a
constitutional amendment or not,' and I'm puzzling myself over
that, along with the rest. But while we're concerned about that,
I think the real thing - and the number one thing to me - is what
is the intention of Title VIII, is that there be a subsistence
preference, and that a way of life be allowed to continue and be
protected. That's what Congress said."
Number 0154
CHAIRMAN GREEN responded, "That's what we're trying to say as
well."
MR. BORBRIDGE said he appreciates that, and also appreciates people
who come in on a Saturday and are willing to work on it.
REPRESENTATIVE PORTER expressed appreciation for Mr. Borbridge's
testimony as well. He then said, "I think that it's painfully
evident that if we're going to reach a solution that's going to
work for the entire state, that the Native community has to be a
part of that solution. Having said that, I especially appreciate
your kindness to the United States; I don't particularly share it,
with relationship to their treatment of Indian relations over the
years, right up to ANILCA."
REPRESENTATIVE PORTER continued, "Representative Williams made us
all read the report of the conference committee, that we certainly
have read and agree with, that these statements were made.
Unfortunately, they were made at a time -- as if this were the
forum that they were made in; we would be telling you something
now, but we wouldn't back it up by putting it in the bill that we
passed. They didn't. They just said somebody should, later. And
then they passed ANILCA, and they still didn't do it; they said a
rural preference, they said nothing about the relationship which
they certainly - and we agree - have the authority to do with
Indians and Alaska Natives. They didn't do it. So, here we are,
stuck with a conflict with our constitution and that federal law,
and don't have the tools that the United States Congress has to
resolve them."
REPRESENTATIVE PORTER continued, "Having said all that, let me say
that I think this committee's goal is to try to come up with
something that will provide you with just what you've asked for.
It may not be said as precisely as we'd like to, but we're
precluded, because of Congress' action, from saying it
specifically. That's the goal, and I really appreciate your being
here to help us with it."
MR. BORBRIDGE indicated he anticipates revising his written
testimony somewhat and then handing it in to the committee.
CHAIRMAN GREEN encouraged Mr. Borbridge to come back before the
committee. He apologized for the absence of five members, noting
that three were out of town. [HB 406 was held over.]
ADJOURNMENT
Number 0308
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
2:10 p.m.
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