Legislature(1997 - 1998)
03/13/1997 01:20 PM House RES
| 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 RESOURCES STANDING COMMITTEE
March 13, 1997
1:20 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
Representative William K. ("Bill") Williams
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 138
"An Act relating to the Board of Storage Tank Assistance; and
providing for an effective date."
- MOVED HB 138 OUT OF COMMITTEE
* HOUSE JOINT RESOLUTION NO. 21
Relating to amendment of Title VIII of the Alaska National Interest
Lands Conservation Act.
- HEARD AND HELD
HOUSE BILL NO. 19
"An Act relating to licensing of sport fishing services operators
and fishing guides; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 138
SHORT TITLE: BOARD OF STORAGE TANK ASSISTANCE
SPONSOR(S): RULES BY REQUEST OF BUDGET AND AUDIT COMMITTEE
JRN-DATE JRN-PG ACTION
02/13/97 334 (H) READ THE FIRST TIME - REFERRAL(S)
02/13/97 335 (H) RESOURCES
03/11/97 (H) RES AT 1:00 PM CAPITOL 124
BILL: HJR 21
SHORT TITLE: REQUESTING CONGRESS TO AMEND ANILCA
SPONSOR(S): REPRESENTATIVE(S) MASEK, Ogan
JRN-DATE JRN-PG ACTION
02/12/97 314 (H) READ THE FIRST TIME - REFERRAL(S)
02/12/97 314 (H) RESOURCES, STATE AFFAIRS
03/13/97 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
JOHN C. BARNETT, Executive Director
Board of Storage Tank Assistance
410 Willoughby Avenue
Juneau, Alaska 99801
Telephone: (907) 4665-5219
POSITION STATEMENT: Testified on HB 138.
JOHN BORBRIDGE
603 West 10th Street
Juneau, Alaska 99801
Telephone: (907) 586-2132
POSITION STATEMENT: Testified on HJR 21.
CARL L. ROSIER
Territorial Sportsmen
8298 Garnet Street
Juneau, Alaska 99801
Telephone: (907) 789-9117
POSITION STATEMENT: Testified in support of HJR 21.
APRIL FERGUSON
Kawerak, Incorporated
P.O. Box 1545
Nome, Alaska 99762
Telephone: (907) 443-5231
POSITION STATEMENT: Testified in opposition to HJR 21.
NOEL WOODS
P.O. Box 827
Palmer, Alaska 99645
Telephone: (907) 745-3027
POSITION STATEMENT: Testified in support of HJR 21; suggested
amendment.
BEN HASTINGS
P.O. Box 8432
Ketchikan, Alaska 99901
Telephone: (907) 225-5014
POSITION STATEMENT: Testified on HJR 21.
ART IVANOFF, Subsistence Coordinator
Maniilaq Association
P.O. Box 254
Kotzebue, Alaska 99752
Telephone: (907) 442-7690
POSITION STATEMENT: Testified in opposition to HJR 21.
DALE BONDURANT
HC1, Box 1197
Soldotna, Alaska 99669
Telephone: (907) 262-0818
POSITION STATEMENT: Testified on HJR 21.
HERBERT SMELCER, Board Member
Tazlina Village Council
P.O. Box 373
Glennallen, Alaska 99588
Telephone: (907) 822-5146
POSITION STATEMENT: Testified in opposition to HJR 21 but
suggested statewide hearings on it.
DICK BISHOP, Executive Director
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99707
Telephone: (907) 455-4262
POSITION STATEMENT: Testified in support of HJR 21.
MICHAEL PEDERSON
Arctic Slope Native Association, Ltd.
P.O. Box 1232
Barrow, Alaska 99723
Telephone: (907) 852-2762
POSITION STATEMENT: Testified in opposition to HJR 21.
HEATHER KENDALL, Staff Attorney
Native American Rights Fund
310 K Street, Number 708
Anchorage, Alaska 99501
Telephone: (907) 276-0680
POSITION STATEMENT: Testified on behalf of Alaska Inter-Tribal
Council in opposition to HJR 21.
JULIE KITKA, President
Alaska Federation of Natives
1577 C Street, Number 201
Anchorage, Alaska 99501
Telephone: (907) 274-3611
POSITION STATEMENT: Testified in opposition to HJR 21.
SID SMITH
P.O. Box 591
Dillingham, Alaska 99576
Telephone: (907) 842-3325
POSITION STATEMENT: Testified in opposition to HJR 21.
JOHN AMIK, Tribal Administrator
Kipnuk Traditional Council
(No address provided)
Kipnuk, Alaska 99614
Telephone: (907) 896-5515
POSITION STATEMENT: Testified in opposition to HJR 21.
ANTHONY CALOI, Tribal Administrator
Native Village of Quinhagak
P.O. Box 149
Quinhagak, Alaska 99655
Telephone: (907) 556-8167
POSITION STATEMENT: Testified in opposition to HJR 21.
GEORGE YASKA, Executive Officer
Tanana Chiefs Conference, Incorporated
122 1st Avenue, Suite 600
Fairbanks, Alaska 99701
Telephone: (907) 452-8251
POSITION STATEMENT: Testified on HJR 21.
KAY ANDREW
P.O. Box 7211
Ketchikan, Alaska 99901
Telephone: (907) 225-2463
POSITION STATEMENT: Testified on HJR 21.
LUKE SAMPSON, Special Assistant to the Mayor
Northwest Arctic Borough
P.O. Box 1110
Kotzebue, Alaska 99752
Telephone: (907) 442-2500
POSITION STATEMENT: Testified in opposition to HJR 21.
NICK JACKSON
P.O. Box 123
Gakona, Alaska 99586
Telephone: (907) 822-3869
POSITION STATEMENT: Testified in opposition to HJR 21.
ACTION NARRATIVE
TAPE 97-26, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:20 p.m. Members present at the
call to order were Representatives Ogan, Hudson, Masek, Green and
Williams. Representative Nicholia was present prior to the call of
order but left, returning at 1:21 p.m. Representatives Joule,
Dyson and Barnes joined the meeting at 1:22 p.m., 1:23 p.m. and
1:30 p.m., respectively.
HB 138 - BOARD OF STORAGE TANK ASSISTANCE
Number 0135
CO-CHAIRMAN OGAN announced the first order of business was House
Bill No. 138, "An Act relating to the Board of Storage Tank
Assistance; and providing for an effective date."
JOHN C. BARNETT, Executive Director, Board of Storage Tank
Assistance, came forward to testify.
Number 0191
CO-CHAIRMAN OGAN referred to the zero fiscal note by the Department
of Environment Conservation (ADEC) and said he had requested
clarification. The explanation had been that the costs associated
with the board's activities are already in the ADEC's FY 98 budget
request. However, the fiscal note extends beyond that, to the year
2000. He asked whether it should reflect those costs.
MR. BARNETT said current statutory provisions for underground
storage tank owners allow them to appeal costs related to financial
assistance. In addition, they allow owners who have a disagreement
with the ADEC to appeal costs for cleanup plans for a leaking tank
site. The ADEC believes those appeals would still have to be dealt
with, resulting in hiring an unbiased hearing officer and other
costs to deal with appellants over the next few years.
MR. BARNETT said those costs have already been considered while the
board is in place. If the board were not in place, those costs
would be carried forward in the ADEC's budget. It would not be an
increase to the existing budget but would basically maintain the
status quo over the next few years.
Number 0375
REPRESENTATIVE JOE GREEN suggested there should be a savings. He
asked whether this meant the allocated time and expense would be
borne by the ADEC. He further asked whether there was so much
leeway in the ADEC that it could either operate the program or not.
MR. BARNETT said the board contains volunteer members who serve
without compensation. He himself is the sole employee. In
addition, there is a travel budget, plus minor miscellaneous costs.
If the board did not exist, the ADEC would hear appeals through an
independent hearing officer. That would probably cost more than
the combined expenses for travel and the executive director.
MR. BARNETT advised members there was a review the previous summer
by the ADEC. Hearing officers are predominantly attorneys, and
those appeals would take place in communities statewide. On the
other hand, the board has tried to minimize costs by conducting
teleconferences. Only when an appeal is complex or involves a
serious issue does the board go to that location. Adding a hearing
officer when needed, on an on-call basis, plus the costs associated
with that, was determined to cost the same as the existing
configuration. In addition, Mr. Barnett believed if he were a tank
owner, he would rather talk to private-sector members, who were
volunteers and somewhat unbiased, than to an attorney.
NUMBER 0547
REPRESENTATIVE BEVERLY MASEK referred to a letter by Michele Brown,
Commissioner of the ADEC, explaining the zero fiscal note is
appropriate because costs associated with the board's activities
are already in the FY 98 budget request. Representative Masek
asked what the total budget request is for FY 98.
MR. BARNETT said the total annual cost is $110,000. This has been
pretty much the same since the board's inception in 1990.
Number 0606
CO-CHAIRMAN OGAN said it seems the fiscal note should be zero for
1998 and $110,000 for every year past that. There being no House
Finance Committee referral, he would take it upon himself to see
whether a zero fiscal note is appropriate. He said from a
resources standpoint, he has no opposition, and he believes it is
a good program.
Number 0640
CO-CHAIRMAN BILL HUDSON made a motion to move HB 138 from the
committee with a zero fiscal note. He asked unanimous consent.
There being no objection, it was so ordered.
HJR 21 - REQUESTING CONGRESS TO AMEND ANILCA
Number 0681
CO-CHAIRMAN OGAN announced the next order of business was House
Joint Resolution No. 21, relating to amendment of Title VIII of the
Alaska National Interest Lands Conservation Act (ANILCA). He
called on Representative Masek to present the resolution.
Number 0760
REPRESENTATIVE MASEK, sponsor, said HJR 21 shifts the emphasis for
resolving the subsistence issue from a debate over whether to amend
ANILCA or the state constitution to one in which the legislature
and the Alaskan people must decide what the terms in ANILCA mean
and how they should be applied.
REPRESENTATIVE MASEK said it also requests that the U.S. Congress
clarify such issues as what is meant by "public lands"; who has
management authority on state and private lands; whether navigable
waters should be managed by the state or the federal government;
whether subsistence-taken resources should be allowed to be sold
for cash; and what the terms "rural" and "customary and
traditional" mean.
Number 0812
REPRESENTATIVE MASEK said HJR 21 requests the U.S. Congress to
eliminate the federal court oversight provisions for subsistence
management in Alaska that apply to state and private lands.
REPRESENTATIVE MASEK explained that HJR 21 also requests an
amendment to ANILCA that would continue to provide a preference for
subsistence but provides a "reasonable opportunity." If Alaskans
cannot agree to this approach, a constitutional amendment may
eventually be required to allow for the rural preference required
by ANILCA, she noted.
REPRESENTATIVE MASEK indicated additional provisions return
authority to the state to define rural preference. Currently,
there is debate over amending ANILCA or the state constitution.
The resolution gives a good outline of where to start making
changes. The subsistence issue has been debated for 20 years,
including the question of whether the federal government, the state
or the Alaskan people should take charge. She believes Alaskans
must all work on this issue together.
REPRESENTATIVE MASEK concluded by saying HJR 21 sends a message to
the congressional delegation that they must act to change ANILCA
before the state can start making management decisions on how to
solve the subsistence issue.
Number 1008
REPRESENTATIVE IRENE NICHOLIA expressed concern that only one
village was on teleconference because of a shortage of lines. She
hoped there would be an additional hearing. Her district has 75
communities. She has received numerous letters, telephone calls
and public opinion messages from people wishing to testify.
REPRESENTATIVE NICHOLIA read Resolution No. 97-03-01 from the
Village of Kwethluk into the record. The heading included Kwethluk
Joint Group; Kwethluk Indian Reorganization Act Council; Kwethluk
City Council; and Kwethluk, Incorporated. She read:
"A Resolution opposing Alaska Legislature House Joint Resolution 21
Requesting Amendments to Title VIII of Alaska National Interest
Lands Conservation Act.
"Whereas, the Kwethluk Indian Reorganization Act Council (IRA) is
the lead entity in various areas of concerns covering land, water,
fish and wildlife, sanctuaries and habitats in the permanent
subsistence Kwethluk River and tributaries upon which its tribal
members heavily depend on for their keeping of cultural integrity
of traditional and customary subsistence way of living; and
"Whereas, in 1959 when Alaska became a state, many Alaska Native
residents living in rural villages were, and still are, intelligent
in the way of their respective cultures and their Native language
during the period when the English language could be barely spoken
or understood, and this brings to question who voted for statehood,
and which included the management of fish and wildlife natural
renewable resources; and
"Whereas, HJR 21 insults the Alaska Native community way of life by
seeking that the State of Alaska define the terms `rural,'
`subsistence uses' of the natural renewable resources when the
State of Alaska has done dismally poor with respect to these
concerns; and
"Whereas, since 1959 the Alaska Native community has experienced
poor `reasonable opportunity' to practice customary and traditional
subsistence way of life; and
"Whereas, Kwethluk has a history of elder tribal members having had
their subsistence fishing nets wrapped around holding poles,
dragged onto beach with fish catches, creating wanton waste, which
truly is suppression of `reasonable opportunity' to practice
customary and traditional subsistence way of life; and
"Whereas, public law 96-487, ANILCA, enacted 1980, Title VIII of
which is providing positive protection to Alaska Natives'
subsistence way of life, legally encourages Alaska Native entities
for co-management agreements with the federal and Alaska state
agencies involved, enhances fish and wildlife conservation with
sustained yield principles; and
"Now, therefore, be it resolved that the Kwethluk Joint Group
composed of the Kwethluk IRA Council on behalf of its tribal
members, the Kwethluk City Council on behalf of its residents, and
the Board of Directors of Kwethluk, Incorporated on behalf of its
shareholders oppose passage of House Joint Resolution 21 in the
Alaska State Legislature; and
"Be it further resolved that copies of this resolution are sent to
Tony Knowles, Governor of Alaska, and then other members of the
House and members of Congress."
Number 1234
CO-CHAIRMAN OGAN, referred to item (2) on page 2 of HJR 21, which
reads, "prohibit federal preemption of state fish and wildlife
management on state and private land and water unless expressly
authorized by the Congress". He noted that the statehood compact
guarantees the state the right to manage its fish and wildlife. He
believes it was an egregious breech of that compact for the federal
government to have preempted state management, which is one reason
he is a cosponsor of HJR 21.
CO-CHAIRMAN OGAN referred to item (4), which requests repeal of
federal court oversight of state subsistence management programs.
Because he does not believe lawyers are necessarily qualified to
make biological and socioeconomic decisions in the state, he is
very supportive of that.
Number 1305
CO-CHAIRMAN OGAN referred to item (5), regarding definition of
"rural" and "customary and traditional". He believes Alaskans can
work together to decide their fate as a state, rather than having
decisions by a judge in California or the U.S. Congress, 5,000
miles away.
CO-CHAIRMAN OGAN commented that Alaskans need not fear each other.
He believes there is more than enough fish and game resources to go
around. The people he knows personally believe that someone who
has traditionally used a resource, and who is dependent on it,
should have first shot at it. "And I think we can accommodate that
as Alaskans, rather than having the federal government do it for
us," he said.
Number 1372
CO-CHAIRMAN OGAN referred to item (7), which requests clarification
that ANILCA neither affirms nor denies the existence of tribal
sovereignty and Indian country in Alaska. He does not believe
ANILCA is the place to define that.
CO-CHAIRMAN OGAN referred to item (10) on page 3, requesting
elimination of commercial use and sale of fish and wildlife taken
for subsistence uses. He believes subsistence means taking what
one needs to subsist, to live and to eat. Commercial sale and
taking under subsistence is, to him, frankly criminal. "I know if
I did it, I would be charged with a crime," he said. "And I don't
think any class of people should have that privilege above and
beyond what other Alaskans have."
Number 1444
REPRESENTATIVE BILL WILLIAMS suggested listening to public
testimony and indicated much could be said in defense of the
current subsistence law. He asked for a short recess.
CO-CHAIRMAN OGAN called for an at-ease at 1:41 p.m. He called the
meeting back to order at 1:42 p.m. He opened the meeting for
public testimony.
Number 1558
JOHN BORBRIDGE came forward to testify on behalf of himself and his
family. He said his observations and opinions largely derived from
past experience as a lead lobbyist for Southeast Alaska Natives;
president of the central council of the Tlingit and Haida Indians
of Alaska during congressional consideration of Alaska Native
Claims Settlement Act (ANCSA) legislation; and thereafter as
president and chairman of the board of Sealaska Corporation during
congressional consideration of Title VIII of ANILCA.
Number 1587
MR. BORBRIDGE said the subsistence provisions of ANCSA and ANILCA
are integrally related. The three primary Alaska Native objectives
sought to be realized in ANCSA legislation were lands, subsistence
and compensation. Just prior to 1971, the U.S. Senate enacted its
version of ANCSA legislation, which contained detailed provisions
relating to protection of Alaska Native subsistence uses.
MR. BORBRIDGE said the U.S. House of Representatives bill enacted
at approximately the same time contained no provisions to protect
subsistence uses. Members of both bodies agreed Native subsistence
uses should be protected. However, the views of the House
prevailed in that "they did not want the statutes unnecessarily
cluttered with laws that were already being addressed, in that the
Secretary of the Interior was assumed to have sufficient authority
to act, given his authority, in such a manner as to protect the
Native subsistence rights," he said.
MR. BORBRIDGE said as a consequence, when ANCSA became law, it not
only did not contain specific provisions protecting subsistence,
but one needed to read the report of the joint conference committee
to see subsistence mentioned. That committee had declared, in a
joint statement, that the Senate amendment to the House bill
protected the Native people's interest in the subsistence resources
on public lands. That report concluded that they expected both the
Secretary of Interior and the state to take necessary action to
protect subsistence needs of Natives.
MR. BORBRIDGE said in the four-to-six ensuing years, Natives
believed subsistence uses were being protected by neither. The
U.S. Congress agreed. Consequently, Title VIII of ANILCA came
about. It provided a subsistence priority for rural Alaskans, "of
whom a large part all knew would be Alaska Natives," he said.
Number 1741
MR. BORBRIDGE believes this is important partly because Section
4(b) of ANCSA extinguishes any aboriginal hunting or fishing
rights. He noted that Section 4 does not apply to subsistence.
MR. BORBRIDGE said it would be a mistake to say the Natives made a
deal, and that they had ANCSA, and that they had no right to come
before Congress for a particular treatment on subsistence. In
fact, Congress promised they would accord the Native people, the
subsistence users, the protections of Title VIII, which is
derivative of ANCSA.
MR. BORBRIDGE said, "And I feel that all of these things are
important because we want to have our assertion of our subsistence
uses and rights as something that is not a misreading of the law.
We want it understood that we did not, in ANCSA, give up our rights
to subsistence." He stated that a strong starting position is
important in negotiations.
MR. BORBRIDGE said, "ANCSA is Indian legislation, and thus a cannon
of construction derives from the trust relationships existing
between the federal government and the Native Americans. And this
means that statutes affecting Indian rights are to be liberally
construed, doubtful expressions being resolved in favor of the
Indians. And Congressman Udall, the prime mover of Title VIII,
declared that Title VIII is Indian legislation in all of its
aspects."
Number 1843
REPRESENTATIVE RAMONA BARNES asked whether Mr. Borbridge believes
that if subsistence were simply feeding one's family, rather than
barter and trade, the current problems would still exist.
MR. BORBRIDGE said he was not prepared to answer completely. He
noted, however, that he had written on the bill's margin:
"Wouldn't it be better to say that not all sales will be
prohibited, but that a certain level of sales would be prohibited?"
MR. BORBRIDGE stated, "The first thing I thought of is that I, as
a city Tlingit, am heavily dependent upon my relatives and friends,
who actually put up the food in the traditional manner. And some
of we city Indians have to buy our smoked fish, for example. And
so we have a processed food there that is available only if we buy
it. We know that up high, the significant commercial enterprise
would be bothersome to everyone. But I'm also equally concerned as
to the possible barring of any kind of sales, because I think that
would start to handicap and deprive a lot of us who are in a city
situation and are not able to benefit from the subsistence priority
set out in Title VIII."
Number 1936
REPRESENTATIVE BARNES replied that therein lies the problem. The
reference in Title VIII is not to city dwellers. In discussing
subsistence under Title VIII, she believes if it were simply about
feeding people in rural areas without a cash economy, today's
problems would not exist.
Number 1963
CO-CHAIRMAN HUDSON said HJR 21 seeks clarity on definitions that
are ambiguous or not described at all. Over the years, that has
been a major problem. Even the Alaska Federation of Natives (AFN)
policy resolving the subsistence issue contains definitions that
the AFN would like to subscribe to as a final solution. To find a
solution, everyone must work together. To do so, there must be
definitions all agree upon.
CO-CHAIRMAN HUDSON requested that Mr. Borbridge provide the
committee, in writing, some of his ideas on defining those
ambiguous areas.
Number 2045
REPRESENTATIVE WILLIAMS asked whether, during negotiations over
ANCSA, subsistence was something "we wanted to keep for sure, that
we weren't going to negotiate that away?" He also asked for
confirmation that Mr. Borbridge had helped negotiate ANCSA.
MR. BORBRIDGE said yes. He explained, "First of all, subsistence
was one of the three major objectives that we who were lobbying for
a settlement act sought to advance and to protect, land and
compensation being the other two. And thus when the proposal,
which became a provision in ANCSA, to extinguish aboriginal hunting
and fishing rights was brought forward, we on the Native side,
representing the various organizations, opposed it.
Notwithstanding our opposition, it was inserted into and became a
part of ANCSA."
MR. BORBRIDGE continued, "However, we, at the same time, were
successful on the Senate side in having a bill with very detailed
protective provisions as to subsistence. And that was enacted by
the House. And so we sought to have subsistence protected all the
way through the whole process. And as a consequence, when we had
the final statement inserted into the record to indicate what the
intent of the Congress was, it made clear, because we were
insisting on the side, that subsistence would be protected. It
would not in effect be extinguished or lost because of the Section
4, which speaks of extinguishing aboriginal hunting and fishing
rights. It is a delicate thing because yes, aboriginal hunting and
fishing rights are extinguished. No, subsistence rights
continued."
Number 2150
REPRESENTATIVE WILLIAMS referred to the conference committee report
of December 13, 1971, which said that committee expected the
Secretary of Interior and the state to take action necessary to
protect subsistence needs of the Natives. He asked how "rural"
came into ANILCA.
MR. BORBRIDGE replied that in early lobbying for Title VIII, Native
representatives were pretty much pushing for a Native preference.
However, then-governor Jay Hammond urged a compromise between the
state and the Native people. The language "rural Alaskans" rather
than "Native Alaskans" resulted.
Number 2217
CO-CHAIRMAN OGAN said it seemed a logical conclusion because
aboriginal hunting and fishing rights had been extinguished and
could not be reestablished.
MR. BORBRIDGE replied, "The position that we take is that, with
respect to the subsistence rights, it was clearly the intention of
the Congress, in enacting ANCSA, that it was not necessary to have
a specific provision preserving the Native subsistence use rights
simply because it was felt that the Secretary had sufficient
authority to do just that. And in the statement from the
conference committee, the Congress again made it very clear that
what they wanted was to see the Native rights protected as a matter
of national policy and a realization that the Natives in the bush
depend a great deal on a subsistence lifestyle. And it is the
lifestyle they've enjoyed from time immemorial."
MR. BORBRIDGE said there is a distinction between 1) the
extinguishment of aboriginal hunting and fishing and 2) subsistence
hunting and fishing. Clearly, subsistence uses under Title VIII
were not aboriginally based, but depended on expressed desire and
the statutory provision of Title VIII of ANILCA itself. "It
becomes a delicate little thing," he added.
Number 2305
REPRESENTATIVE FRED DYSON asked how to best balance the rural
subsistence priority with good, sound game management and not be
discriminatory on a racial basis.
MR. BORBRIDGE said because the tribes are identifiable politically
and legally, this is not an act that runs afoul of anti-
discrimination laws. "Particularly crystal clear is when an act of
the Congress is directed at, as beneficiaries, federally recognized
Indian tribes, and of course, that's what we have in Alaska," he
said. In that case, as long as it is directed at the tribes and
their members, it is not subject to a negative finding in the event
of a constitutional challenge. Looking at Title VIII and
congressional intent in dealing with Alaska Natives, they are on a
very sound footing constitutionally, he asserted.
MR. BORBRIDGE suggested they were discussing how to come up with
provisions, regulations and definitions that serve all Alaskans.
One problem is that Title VIII clearly provides a preference for
subsistence hunting and fishing. However, it only applies in the
event of a shortage of the resource. The system in place on the
federal side, where he served for seven years, seems to work
because there seems to be a genuine concern about the management of
the resource, so that there will always be a resource left to enjoy
in the following years.
Number 2461
REPRESENTATIVE DYSON asked in the case of migratory game such as
caribou, how Mr. Borbridge would envision handling an instance
where one tribal group overhunted the stock [question cut off mid-
speech by tape change].
TAPE 97-26, SIDE B
Number 0006
MR. BORBRIDGE cited his own experience. There had been ten
regional advisory councils, each with members knowledgeable about
subsistence living within the area encompassed by that council's
boundaries. In specific situations, one council might allow a hunt
but another would say no. "And we'd have to convene them over a
larger area because of the very thing you say," he said. The
movement of the herds necessitated going beyond a small
jurisdiction. Mr. Borbridge acknowledged that was only part of the
answer.
Number 0061
REPRESENTATIVE BARNES disagreed with Mr. Borbridge's assertion that
ANILCA was Indian legislation or federally recognized as tribal
legislation. She stated, "I believe very specifically in ANILCA,
Metlakatla was recognized. The other Native groups around the
state were called Native entities, not tribes."
REPRESENTATIVE BARNES said in talking about the intent of Congress,
as with intent of the Alaska legislature, if something is not part
of the law itself, it has no bearing in law. Furthermore, in
talking about Indian law, Congress voted as Alaska did on the
statehood compact and the Constitution of the State of Alaska,
which gives the state jurisdiction over those resources.
Number 0150
CARL L. ROSIER, Territorial Sportsmen, came forward to testify in
support of HJR 21. Formed in 1945, the organization numbers 1,500
to 2,000 members. Referring to fish and wildlife management and
the state constitution during the establishment of statehood, he
noted, "They saw the state as one people, with equal access to the
fish and wildlife resources. And that's what they stood for, and
that's what we still stand for today."
MR. ROSIER said his organization, which strongly supports HJR 21,
believes amendments to ANILCA are the means to resolve the
subsistence issue. Modifying the state constitution under
conditions that exist today is not reasonable. Without changes to
ANILCA, the state is destined for a future of conflict.
MR. ROSIER said HJR 21 addresses most of the problems they see with
ANILCA. However, it still does not make Alaska "a first-class
citizen in the hall of states" regarding fish and wildlife
management. He is convinced Alaskans can settle the subsistence
issue if the federal government is not involved. Otherwise, he
foresees a future of conflict and polarization of Alaskans.
Number 0282
CO-CHAIRMAN OGAN concurred that Alaskans can solve the problem.
"If Congress allows us to, I'd be one of the first to come to the
table," he added.
MR. ROSIER referred to page 2, item 7) of a document he had
provided, entitled, "AFN Policy on Resolving the Subsistence
Issues." He noted it says: "The subsistence priority applies at
all times, not just when there is a resource shortage."
REPRESENTATIVE NICHOLIA asked the source of that document.
MR. ROSIER said it had been provided to him by Dick Bishop,
Executive Director of the Alaska Outdoor Council.
REPRESENTATIVE NICHOLIA asked whether the AFN had sent it to Mr.
Bishop.
MR. ROSIER said he did not know. He noted that the document was an
official record from the AFN board meeting of March 4, 1996.
Number 0374
REPRESENTATIVE WILLIAMS agreed something must be done with the
subsistence issue to regain management that Alaska is losing. He
indicated ANCSA protects Native subsistence. He asked for Mr.
Rosier's thoughts on that.
MR. ROSIER said that seems to be the crux of the problem. The
state constitution provides everyone access to the resources. He
does not believe allocating resources to one group or another in
Alaska is the way to go. He understands that under ANCSA, and
ultimately ANILCA, those aboriginal rights had in fact been
extinguished.
Number 0434
REPRESENTATIVE BARNES asked whether Mr. Rosier is familiar with HB
960, passed in 1977.
MR. ROSIER said he remembered it vaguely.
REPRESENTATIVE BARNES explained that was the subsistence law that
passed and was then supported by the Special Committee on
Subsistence. She served on that committee in 1979. From the
beginning, she believed that law was unconstitutional, which it was
later found to be. The legislature had been advised during
testimony that if HB 960 passed, establishing a subsistence
priority for rural residents, there would no longer be a need to
bring this to the federal level.
REPRESENTATIVE BARNES said it first became an issue at the federal
level under that debate. After passage, HB 960 was used in
Washington, D.C., as ammunition to get subsistence into Title VIII
of ANILCA by saying, "See, this what the Alaska legislature wants."
She asked if that refreshed Mr. Rosier's memory.
MR. ROSIER said it did. As he recalled, that was the avenue the
state was moving down until the Supreme Court decision.
Number 0559
REPRESENTATIVE MASEK pointed out that HJR 21 is looking for an
avenue to resolve the subsistence issue. The federal government is
taking over management of the state's fish and wildlife. Although
a Native who grew up in rural areas, she had taken an oath to
uphold the state constitution, which gives equal treatment to all
Alaskans, not depending on where they live or come from, nor on
what racial or other background they have.
REPRESENTATIVE MASEK believes it is important to all work together.
She suggested looking to the future rather than getting caught up
in the past. She believes HJR 21 will help build a bridge,
resulting in fair and equal treatment.
Number 0677
MR. ROSIER complimented Representative Masek and Co-Chairman Ogan,
as cosponsor, on the resolution. He said the federal government
would be "in our hair," messing in fish and wildlife management in
Alaska, from here on. However, he does not believe that is
desirable.
Number 0720
CO-CHAIRMAN OGAN announced there were time constraints. However,
he would try to take testimony from all communities signed up.
Number 0747
APRIL FERGUSON, Kawerak, Incorporated, testified via teleconference
from Nome. She personally believes HJR 21 is not in the long-term
best interests of Alaska nor that it proposes constructive
mechanisms for Alaskans to remedy the current impact of management.
It proposes changes in ANILCA that will dissolve the fragile
protections of the subsistence way of life.
MS. FERGUSON questioned the viability of returning management to
the state. She said HJR 21 proposes disenfranchising the most
successful component of federal management, the regional advisory
council. In addition, it portrays our state legislature as
extremists to all members of Congress to whom it has been faxed.
MS. FERGUSON concluded by saying with the singular exception of
Representative Masek, the Native community of Alaska would accept
no more compromise on subsistence.
Number 0822
REPRESENTATIVE MASEK pointed out that subsistence is being
protected right now. She asked whether Ms. Ferguson understands
the problems they would face if the federal government took over
management of Alaska's fish and wildlife. She believes the state
is providing that opportunity for fishing and hunting, and that HJR
21 in no way would take away protection for all Alaskans, including
Natives, both rural and urban.
MS. FERGUSON said she respectfully disagrees. She feels more
comfortable with the responsiveness of the federal management
system than with the state or the legislature.
Number 0895
NOEL WOODS testified via teleconference from Mat-Su, saying he
fully supports HJR 21. He believes some of the terms in the
existing laws are ill-defined or not defined at all, and thus
subject to misconception or misusage by the federal government on
this matter.
MR. WOODS referred to item (9) on page 3, line 4. He suggested
inserting the phrase "if established" between "provide that
regional subsistence advisory councils" and "are only advisory to
regulatory boards". He concluded by saying HJR 21 is a good start
on a needed discussion.
CO-CHAIRMAN OGAN concurred that part of the problem is that much of
the language in ANILCA is subjective.
Number 0980
BEN HASTINGS testified via teleconference. A third generation
Alaskan, he had lived in Ketchikan 45 years. He thanked the
sponsor for introducing HJR 21. He noted that in October, the
federal government is threatening to take over management of our
fish and game. He had observed the federal advisory council in
action, on the Prince of Wales Island deer hunting issue concerning
the harvesting of does. The council had not considered any
biological input from state or federal biologists. He had
concluded that the state, not the federal government, should deal
with fish and game issues, as it has since statehood. The state
constitution should not be changed to comply with ANILCA, which is
a law. Rather, ANILCA should be changed.
MR. HASTINGS said a deal is a deal only if ANILCA meets with
Alaska's state constitution. He emphasized that all Alaskans are
created equal. He offered to assist. He believes it is the most
important issue to surface since statehood.
Number 1094
REPRESENTATIVE WILLIAMS invited Mr. Hastings to attend the
informational meeting on subsistence he planned for Tuesday, March
18, at 5:30 p.m. at the Ketchikan Civic Center.
CO-CHAIRMAN HUDSON said Mr. Hastings brought up an interesting
point. No Alaska law can go on the books without being
constitutional, both under the state and federal constitutions. He
presumed the former had been found constitutional in accordance
with the latter. He suggested an attorney address the question of
what responsibility the federal government has with its laws to the
constitutionality of the existing states, for example, if a federal
law is passed to essentially nullify a provision within Alaska's
constitution, which obviously was established under the federal
constitution. He believes this is an important element in
ultimately solving the issue.
Number 1173
REPRESENTATIVE MASEK said the state cannot act now because it is
not complying with Title VIII of ANILCA. One or the other must
change. A change to ANILCA would give the state authority to
define "rural" and "customary and traditional."
CO-CHAIRMAN OGAN said these issues had been headed for the Supreme
Court, which would have provided some answers. However, that was
headed off by the state Administration.
Number 1243
ART IVANOFF, Subsistence Coordinator, Maniilaq Association,
testified via teleconference from Kotzebue in opposition to HJR 21.
He referred to Article XII, Section 12 of the state constitution,
which states in part: "The State and its people agree that, unless
otherwise provided by Congress, the property, as described in this
section, shall remain subject to the absolute disposition of the
United States."
MR. IVANOFF then read from a preceding portion of Article XII,
Section 12, which states: "The State and its people further
disclaim all right or title in or to any property, including
fishing rights, the right or title to which may be held by or for
any Indian, Eskimo, or Aleut, or community thereof, as that right
or title is defined in the act of admission."
MR. IVANOFF said Article XII, Section 12, implies the state
realized and honored the right of the federal government to protect
the property rights of any Indian, Aleut or Eskimo and help in the
development of aboriginal rights that were wrongly extinguished by
ANCSA. ANILCA is a compromise between the Natives, the state and
the federal government. He believes Alaska Natives are now being
asked to compromise again.
MR. IVANOFF stated, "We find it necessary for the federal
government to live up to its legal, moral and political
relationship it shares with Alaska's first people," he stated.
"HJR 21 attacks the only real protection the rural communities have
against pressure from effective and powerful interest groups like
the commercial and sport interests."
MR. IVANOFF referred to item (5) on page 2 of the bill. He said
defining "rural" and "customary and traditional" for purposes of
the definition of "subsistence uses" under 16 U.S.C. 3113 must
remain in the hands of tribal government.
MR. IVANOFF opposes item (10) on page 3, where proposed language
would eliminate commercial use and sale of fish and wildlife taken
for subsistence uses. He said customary trade among Alaska Natives
has been an essential part of the economics in rural Alaska since
time immemorial. The cost of living there is extremely high, and
opportunities to trade must be provided so that revenue generated
can provide for rural families.
Number 1449
REPRESENTATIVE MASEK asked whether Mr. Ivanoff or his family had
ever been denied the right to hunt or fish in the Kotzebue area.
MR. IVANOFF said no. However, he believes there is a problem in
some areas. He mentioned Nome in particular, where he believes
state practices preclude adequate escapement or a sustained
population that would allow for a subsistence take.
Number 1173
REPRESENTATIVE MASEK said HJR 21 would return to the state the
right to manage fish and game. The current dual management is not
working. Amendments to ANILCA would allow all Alaskans to work on
it, with more local control, rather than having the federal
government come in and make regulations with no idea of what it is
like to live in Alaska.
Number 1618
DALE BONDURANT testified via teleconference from Kenai, stating he
supports equal rights for all people. He believes the federal and
state constitutions support and obligate all citizens to these
standards of equality. He had testified before Congress that
ANILCA was a moral and legal obligation of the nation. However, he
believes Title VIII of ANILCA violates the validity of (indisc.) of
ANCSA, which was an agreement between the federal and state
governments and the Native people.
MR. BONDURANT opposes any amendment to Alaska's constitution that
would give special privileges to any identity of people. Giving
privileges to one group denies equal rights to the others.
MR. BONDURANT believes the Native people realize there is no longer
a Native preference in subsistence. He said Congress had reasoned
that giving a Native preference would make it a racial issue, which
is improper. It was required that the state first vote for a
constitution during the statehood act, and that the state have a
fish and wildlife management program, before the Secretary of
Interior would give up federal management. "And he did qualify
that our management program met that requirement," he said. "Now,
they're coming back and saying Alaska does not have ... this right
to manage all of Alaska's fish and wildlife." He commended
Representative Masek for living by her belief that all people are
equal here on the earth.
Number 1806
HERBERT SMELCER, Board Member, Tazlina Village Council, testified
via teleconference from Glennallen in opposition to HJR 21. He
said they would support more hearings on this resolution throughout
the state, and they support a subsistence priority for rural
Alaska.
MR. SMELCER said local people had been denied subsistence use or
opportunity, including seeing their fish wheels shut down. New
people in the state had obtained permits to hunt caribou or moose,
whereas locals had been unable to. "So we've had an impact by
state regulations, and we feel that dual management is working for
us, and we depend on it," he concluded.
Number 1882
REPRESENTATIVE MASEK pointed out that HJR 21 preserves the federal
requirement for a rural preference in order for Alaska to maintain
management. She asked whether Mr. Smelcer had seen that.
MR. SMELCER said yes. However, he believes taking away
requirements under ANILCA, and putting decisions on definitions
under state jurisdiction, will not benefit the subsistence priority
for rural Alaska.
Number 1955
DICK BISHOP, Executive Director, Alaska Outdoor Council, testified
via teleconference from Fairbanks. His organization is a statewide
umbrella group with 50 member clubs, plus individual members,
totally 11,000 members. It promotes sound scientific management of
Alaska's fish, wildlife and habitats, as well as public access to
public resources, provided that an allocation is consistent with
the state constitution as presently written.
MR. BISHOP said the council supports HJR 21. It opens a new avenue
of discussion and catalogs most of the major flaws in the federal
law that demand amendment in order to have sound conservation and
reasonable rules relating to resource uses.
MR. BISHOP explained that the council has consistently opposed
amending the Alaska constitution by including a rural priority for
subsistence. It continues to do so on two grounds. First, it
would violate the common use and equal protection provisions of
Alaska's constitution. Second, it would be arbitrary and
discriminate against the majority of Alaskans, solely on the basis
of the postal zip code. The council maintains a subsistence
priority is not needed to accommodate Alaskans who depend on
personal use of fish and game for their livelihood.
MR. BISHOP said if there were such a priority, it should be based
on how people live, not where. The federal priority is not based
on need, nor on how dependent people are on fish and game.
Furthermore, it is absolutely not triggered by a shortage that is
in place at all times, he said.
Number 2081
MR. BISHOP said in 1992, the Alaska Outdoor Council agreed to a
compromise in state law on workable priorities. However, that was
defeated in the legislature through efforts of proponents of the
federal rural priority. Now, the federal government is grinding
along in its plan to preempt state management of all fish and
wildlife, everywhere in Alaska, urged on by the AFN and other
political entities.
MR. BISHOP cautioned that the federal management regime will serve
nobody well. Even the federal rural subsistence priority comes in
a distant second because ANILCA puts nonconsumptive use as a higher
priority.
MR. BISHOP concluded that there cannot be meaningful Alaskan
management unless federal court oversight is removed. He said HJR
21 provides a context to discuss the subsistence priority issue and
identifies many of the functional flaws of Title VIII of ANILCA.
Number 2172
REPRESENTATIVE REGGIE JOULE asked whether the Alaska Outdoor
Council existed when ANCSA and ANILCA were passed.
MR. BISHOP said it was formed around 1954 or 1955 by a coalition of
the Territorial Sportsmen, the Matanuska Sportsmen and the Tanana
Valley Sportsmens Association, and it had a slightly different
name. About 1983, it took its present configuration as the Alaska
Fish and Wildlife Federation and Outdoor Council, commonly known as
the Alaska Outdoor Council. He noted that the Tanana organization
went back as far as 1915.
Number 2257
REPRESENTATIVE JOULE asked whether the council had supported or
opposed ANCSA and ANILCA.
MR. BISHOP did not know whether the council had been active on
those issues. However, he did know, however, that groups
associated with the council were concerned with ANILCA in general,
not just with the subsistence priority but also, probably more
important at that time, with establishment of the extensive federal
conservation system units that threatened to reduce opportunity for
hunting, fishing, trapping and so forth.
MR. BISHOP believed it was reasonable to say that those same
groups, and most likely the council, probably opposed a rural
subsistence priority. He did know that members at least advised
Congress that the federal provision for a rural priority was
undoubtedly inconsistent with the Alaska state constitution.
"However, Congress, in its wisdom, chose to not take a close look
at that and passed it anyway," he commented. "That I am personally
familiar with."
Number 2420
REPRESENTATIVE BARNES recalled that the Alaska Outdoor Council was
involved, as were a number of other groups. Having been in
Washington, D.C., at the same time they were, she had personal
knowledge on that subject.
TAPE 97-27, SIDE A
Number 0006
MR. BISHOP commented that the legislative history of ANCSA includes
reference to the fact that lands intended to be transferred to
Native corporations were to be transferred not only for economic
gain but for the support of subsistence uses.
Number 0077
MICHAEL PEDERSON, Arctic Slope Native Association, Ltd., testified
via teleconference from Barrow. An Inupiat Eskimo who had lived in
Barrow and Unalakleet, he opposes HJR 21. He believes it will
destroy existing federal subsistence protections that Alaska
Natives have. One reason land selections under ANCSA were made
near villages was so people could practice their subsistence
lifestyles. He believes HJR 21 would change that and would
overturn the Katie John decision. "We've tried working with the
state, and we're just not getting anywhere," he said. "And you
want us to have a weaker standard of reasonable opportunity to
catch fish and wildlife."
MR. PEDERSON said HJR 21 would also make the regional subsistence
advisory councils under the federal management program ineffective.
"But that's one of our only strongholds that we have," he said.
"We're lucky that the federal subsistence board listens to us."
MR. PEDERSON asked what time line there was for submitting written
comments for the public record.
Number 0228
CO-CHAIRMAN OGAN confirmed that the committee would accept written
testimony and submit it to future committees and to the floor. He
had no set deadline but suggested a week or two. He said his door
is open to anyone at anytime to discuss this. He noted that the
intention with HJR 21 is to get everyone to the table to discuss
and settle this issue as Alaskans.
CO-CHAIRMAN OGAN explained his intention of hearing from a broad
variety of people from around the state that day.
Number 0462
HEATHER KENDALL, Staff Attorney, Native American Rights Fund,
testified via teleconference from Anchorage on behalf of the Alaska
Inter-Tribal Council, which opposes HJR 21. She said the council
is a consortium consisting of the majority of 220 federally-
recognized tribes in Alaska. She called HJR 21 ill-conceived. She
said rather than address specifics, she would make general
observations.
MS. KENDALL said HJR 21 attempts, very broadly, to repeal many of
the most important provisions of ANILCA's protections. She
referred to the sponsor statement, which indicates HJR 21 is
intended to bring people to the table to discuss the importance of
subsistence and to allow Alaskans to decide how to resolve this
issue. However, Ms. Kendall believes that is not occurring.
MS. KENDALL stated, "You, as a body, have already determined what
provisions of ANILCA you believe to be important in terms of
repealing them," she said. "You have not opened this debate up to
the public, and in fact, most of the Native communities that have
a vested interest in this debate have been excluded from giving
their testimony here today because there are insufficient lines for
them to be able to testify." She urged another hearing at least
and suggested that "bush Alaska" be able to testify in person.
Number 0577
REPRESENTATIVE BARNES disagreed that the committee was excluding
anyone.
MS. KENDALL said the committee would not hear testimony that day on
behalf of the Native community because they were only plugged into
urban centers. She suggested they were not allowing a broader
forum for debate.
Number 0694
REPRESENTATIVE BARNES replied that this debate had been going on 20
years. She suggested getting testimony in writing from any
community they were unable to reach by teleconference.
MS. KENDALL referred to discussion about whether ANILCA was Indian
legislation. She claimed the Alaska State Legislature has little
respect for federal law, especially for 9th Circuit Court of
Appeals opinions on federal cases. She said 11 or more 9th Circuit
cases refer to Title VIII of ANILCA as Native legislation. Title
VIII was a response to extinguishment of aboriginal hunting and
fishing claims through ANCSA. It is remedial legislation and a
treaty substitute. It is federal law that protects federal rights,
and it has been repeatedly upheld in the 9th Circuit. "That law is
not subject to this body's termination or amendment," she
concluded.
Number 0745
CO-CHAIRMAN OGAN concurred with Representative Barnes. He resented
the implication that the committee was not hearing from people
around the state. "I have deliberately gone to every community
that is hooked up to teleconference," he said. "We have not, other
than for technical reasons because of the lack of capacity for
phone lines, not hooked anybody up."
REPRESENTATIVE NICHOLIA noted that only one community in her
district was able to be on teleconference.
CO-CHAIRMAN OGAN acknowledged that. He said he especially wanted
to hear from anyone with testimony that stands out or offers
something new.
Number 0857
JULIE KITKA, President, Alaska Federation of Natives (AFN),
testified via teleconference from Anchorage. She said one common
ground is the need to protect habitat for Alaska's fish and game.
She urged the committee to seek to improve the state's management
of fish and game.
MS. KITKA suggested increasing appropriations for a management
system that would be world-class, state-of-the-art and the envy of
the Arctic and the United States, if not the world. She believes
there is much room for improvement and that Alaska has the
resources, should that be a priority.
MS. KITKA suggested an appropriation to enable the House Resources
Standing Committee to develop into the group in the legislature
with the greatest expertise on this issue. She urged them to meet
with people face-to-face in 25 or 30 rural communities.
MS. KITKA said subsistence is an economy in rural Alaska. She
suggested the legislature strengthen this economic system however
it can, realizing many people depend on it. Subsistence is the
sole reason why many people can live on such low cash incomes.
With recent federal welfare reform and its negative impacts, those
most dependent on subsistence would have even more difficulty
providing for basic needs. She expressed concern that the economic
component could get buried by political issues.
Number 1160
MS. KITKA indicated the AFN's main concern is that Natives
depending on subsistence be allowed to continue doing in peace what
they have done for many, many years, and that they not be undercut
in their ability to provide for their families and live their
lives, in any way, by the legislature or anybody else.
MS. KITKA said the AFN adamantly opposes HJR 21. A more
appropriate approach would be seeking common ground and acting on
some of the suggestions she had made.
MS. KITKA expressed concern that the state would lose credibility
with the U.S. Congress if the legislature adopts HJR 21. The AFN
believes HJR 21 guts Title VIII of ANILCA. A more constructive
approach would be building expertise as she had suggested, and then
going forward to address the issue.
Number 1267
REPRESENTATIVE BARNES responded that she and other committee
members have been to the rural areas. She believes all areas of
Alaska must be held as one, and all people treated fairly.
REPRESENTATIVE BARNES said the preferential use of Alaska's fish
and game should be allowing subsistence for anyone in Alaska, no
matter where they live, who needs to feed themselves and their
families. However, it should not be for one segment of Alaska's
population over another.
REPRESENTATIVE BARNES had brought committees to rural areas and
enjoyed a great friendship with people living there. She believes
thinking there is only one way misses the point. She said Ms.
Kitka is saying, "If you don't do it our way, then we support
federal management of fish and game or a dual management system,"
and then she is asking the state to pay for it through habitat and
appropriations for increased resource management. Representative
Barnes said she cannot agree with that. She asked why not let the
dual management, i.e., the federal government, pay for it.
Number 1422
MS. KITKA clarified that she was not saying the committee had no
expertise on this issue. She was suggesting they might want to
build it up. Rural parts of the state would invite the committee
to come out and engage in discussions, with the goal of seeking
common ground.
MS. KITKA restated earlier suggestions on the state management
system. She believed it would do a lot of good if all citizens
could point towards the state management system as being the very
best, even better than the federal system. However, the AFN's
experience with the federal subsistence board had been very
positive. She suggested people would rather work with the state
system than the federal system if the former did not fall short.
Number 1570
CO-CHAIRMAN OGAN commented that he had traveled and worked
extensively throughout rural Alaska.
REPRESENTATIVE MASEK concurred with Representative Barnes on having
more expertise. She asked Ms. Kitka how much money the AFN had
spent in the past few years on the subsistence issue.
MS. KITKA replied she did not have a dollar amount. To her
knowledge, there had been no state general fund money spent.
REPRESENTATIVE MASEK asked how much had been spent on attorney fees
and travel costs to Washington, D.C., and to statewide hearings.
She asked for a round figure and specified she was asking about
Natives' money, not state funds.
MS. KITKA said she did not know. "That's not how we keep track of
things," she said.
Number 1713
REPRESENTATIVE MASEK asked Ms. Kitka to provide, in the future, how
much the AFN has spent on battling this issue. She also wanted to
know what the AFN has done constructively to work with all the
entities in the state to resolve it. She said she would follow up
with Ms. Kitka at a later time.
MS. KITKA noted that Representative Masek had served on the Alaska
Native Commission, a joint federal-state commission. The AFN had
been very much involved in creating that. The commission produced
a three-volume report to the U.S. Congress and the state
legislature, one volume of which was on the subsistence issue. She
recommended the committee review that.
Number 1776
CO-CHAIRMAN OGAN commented that he would be more than happy to
spend time in the interim traveling around rural Alaska.
REPRESENTATIVE WILLIAMS asked Ms. Kitka to have an AFN attorney
look at the conference committee report of December 13, 1971.
"What I'd like to know is, we gave up our aboriginal fishing and
hunting rights," he said. "And I'd like to see how the other
portion, where the conference committee expects both the Secretary
[of Interior] and the state to take necessary action to protect the
subsistence needs of the Natives. I'd like to know ... if we did
give up the subsistence issues ... in that conference committee."
MS. KITKA replied that the AFN would gladly provide a short paper
on that specific issue. She agreed with John Borbridge's
recitation of the history on that process.
Number 1866
REPRESENTATIVE JOULE asked what impacts, if any, the proposed
amendments to ANILCA would have on ANCSA. He suggested an answer
could be provided in writing or at another hearing.
MS. KITKA said the AFN would be glad to provide an analysis.
REPRESENTATIVE BARNES said ANCSA had passed first, and ANILCA was
in no way tied to it. And it is the latter that HJR 21 addresses.
MS. KITKA said she was uncertain whether Representative Joule was
asking about impact on Native land. She said HJR 21 negatively
impacts Native lands, which comprise 12 percent of the entire state
and the bulk of private land in the state.
Number 2014
CO-CHAIRMAN OGAN noted the time constraints and asked that further
questions be brief.
MS. KITKA extended an invitation to the committee and offered to
help plan a trip "to further the search for common ground."
CO-CHAIRMAN OGAN indicated the desire to stay in touch on that
issue.
Number 2079
CO-CHAIRMAN HUDSON referred to his earlier request to John
Borbridge to provide the committee with an assessment. He stated
his belief that everyone ultimately wants control of the management
of Alaska's fish and wildlife to be by Alaska residents. He
stated, "It seems to me where we break down is when we try to
define what the description or definitions are on one side, that
seems to create almost a total, exact opposite on the other side.
And what I'd like to find out is where the common ground is, and
then, if we can, try to find a common solution to ultimately
gaining back ... our control here." He believes the solution is
changing ANILCA, not the state constitution.
CO-CHAIRMAN HUDSON requested that Ms. Kitka critique the elements
of the resolution and providing specific justification, reasons or
citations as to her position, as a beginning of finding common
definition.
MS. KITKA offered to provide a written statement or meet with the
committee later.
CO-CHAIRMAN OGAN asked that she submit it in writing.
Number 2233
SID SMITH testified via teleconference from Dillingham. He noted
he was the first president of the subsistence committee "that also
passed in Washington, D.C., in 1978." He provided a brief history.
Representative Barnes had been at many meetings he attended. In
the late 1970s, the state management was poor. The federal
government wanted to take over, and there had been much discussion
of local control. It was decided to let the state do the
management.
MR. SMITH said from 1978 to 1992, there was supposed to be a
regional board set up, funded by the federal government. "The only
time the thing changed is when Babbitt came to Dillingham and I
mentioned it, that we do have tribes, and also, we need to set up
regional boards around the state," he said. "And it took 14 years.
And my question is, ... why didn't the state set up these boards
when they had the opportune time in 1979?"
Number 2313
MR. SMITH referred to dual management. He said what he opposes in
HJR 21 relates to changing the definitions. He suggested that if
there was a vote, it should be by majority of the users of the
"reasonable resource." He was bothered by emotionalism on the
issues. He agreed with Julie Kitka that the committee should come
to the rural areas. He advised members that he had put out two
movies. He indicated rural people depend on the economic system
just like others depend on a cash economy.
MR. SMITH asked about the phrase "State of Alaska" versus "Alaska
state."
CO-CHAIRMAN OGAN said he interprets both to be the same entity.
Number 2431
JOHN AMIK, Tribal Administrator, Kipnuk Traditional Council,
testified via teleconference. Opposed to HJR 21, they do not want
regulations that would prevent Native people from hunting and
fishing "in our traditional and cultural way." They depend on the
resources and have little income for store-bought foods, which cost
sometimes double or more those in Anchorage.
MR. AMIK stated, "It is complicated for us to put our own
regulations in writing, but it's ... easy enough for us to learn
from our elders as they teach us to respect our land and the
resources we depend on." He indicated such knowledge allows self-
regulation that enables them to put food on their tables and to
share it with neighboring villages.
TAPE 97-27, SIDE B
Number 0006
MR. AMIK said they want a diversified diet that they can depend on
and are used to eating. He invited the committee to visit his
village for a month to live as they do.
CO-CHAIRMAN OGAN said he would work on getting to rural Alaska this
interim.
Number 0070
ANTHONY CALOI, Tribal Administrator, Native Village of Quinhagak,
testified via teleconference. With him were Wassilie Bavilla,
President; Henry Small, General Manager; and Frank Fox, Natural
Resources Director. Also with him, from the village corporation of
Qanirtuuk, Incorporated, was George Pleasant, board member.
MR. CALOI said in Quinhagak, the city and tribal councils operate
under a memorandum of agreement by which the administrations are
consolidated. The Native Village of Quinhagak and the village
corporation oppose HJR 21.
MR. CALOI discussed the trend away from guaranteed rural and
indigenous preference for subsistence. In the international arena,
there is a trend of international treaties deteriorating indigenous
subsistence rights. Eliminating federal oversight and the threat
of federal preemption will remove the only force protecting
subsistence. It will also eliminate the "federal avenue for
ensuring co-management of the resources with the tribes," he said.
MR. CALOI stated, "Our experience is that state management of the
resources is biased towards sport and commercial fisheries at the
expense of subsistence resources." In his village, they sued the
state and the federal government in order to take rainbow trout for
subsistence, because under state law it is illegal. However, it is
not illegal for sport fishermen.
Number 0129
MR. CALOI said co-management is the key to sustained resources in
the future. The state alone cannot succeed. Title VIII is the
vehicle through which the tribes can co-manage. "We all know that
the state has been reluctant to co-manage with the tribes," he
said. "Therefore, we must not diminish or weaken Title VIII in the
law. Rather, we should strengthen it."
MR. CALOI said, "In Quinhagak, we have demonstrated the
indispensable role that tribes are playing in the management of the
resources. In our village, where thousands of salmon have been
harvested without sufficient escapement data, we were told by the
state's Sport Fish division that accounting time would be a waste
and doomed to failure. But we prevailed. We secured the funds.
And in conjunction with Fish and Game and the Fish and Wildlife, we
successfully operated (indisc.) in the (Indisc.) River. That
success was a result of the collective knowledge of tribal members
participating in the project."
MR. CALOI said under state management, there has been fecal
contamination of a local river because of a dramatic increase in
sport fishing. Although they have wanted to support the Department
of Fish and Game restrictions to deal with this problem, they had
been told if they restrict sport fishing, they must also restrict
their own subsistence.
MR. CALOI read a statement from Frank Fox, Natural Resources
Director: "Subsistence way of life is not a matter of law. It is
a matter of the right to live. (Indisc.) bring food to the table.
Hunting, fishing, berry picking, egg gathering, all forms of food
gathering bring food to the table. Maybe it is time that we change
our strategy. Maybe it is time that we look at subsistence as a
right-to-live issue. No one can argue that we, as Native people,
actually have a right to live. Right to live means that we can go
out and harvest and gather food when it is around, so that we can
feed our families. Without a guaranteed rural protection for
subsistence hunting and fishing, we will not survive as a people."
Number 0297
GEORGE YASKA, Executive Officer, Tanana Chiefs Conference,
Incorporated, testified via teleconference from Fairbanks. He said
recent actions within the Native subsistence movement and HJR 21
may represent some progress towards a meeting of minds on the
subsistence issue. In February, the Rural Alaska Community Action
Program (RuRAL CAP) sponsored a subsistence round table in
Anchorage, which produced a proclamation on subsistence
representing a shift in positions.
MR. YASKA explained that prior to the proclamation, the consensus
in the Native community favored return to state unitary management
and a constitutional amendment that would comply with ANILCA.
However, the round table produced a new recognition that Alaskans
have reached an impasse and that dual management will be a
permanent feature of fish and game management in Alaska in the
foreseeable future.
MR. YASKA said the proclamation calls upon the Native community to
refocus efforts to make the dual management system work, through
development of greater cooperation between land managers and
development of co-management systems that will meet subsistence
users' needs.
MR. YASKA said interestingly, HJR 21 is premised upon a similar
realization that dual management is likely to continue in the near
future. It may signify progress that both sides acknowledge this.
Rather than focusing on co-management, however, HJR 21 calls for
amendment to ANILCA, which would erect an impenetrable wall between
state and federal game management.
MR. YASKA urged the committee to consider co-management options.
Conservation is the greatest concern. Under dual management,
someone must ensure conservation goals are met. Generally, the
federal subsistence board is restricted to making allocation
decisions on federal land. However, federal regulators may go
outside federal lands to regulate migratory species for
conservation purposes.
MR. YASKA said recent actions by that board had extended federal
restrictions on state and private lands to prevent overharvest on
state lands that adversely affect game populations found on federal
lands. The resolution proposes to prohibit federal regulation on
state land. It begs the question of how conservation goals will be
coordinated and attained on federal-state land.
MR. YASKA acknowledged the time limits and indicated he had further
written testimony.
Number 0433
KAY ANDREW testified via teleconference from Ketchikan. A lifelong
Alaska resident, she is being denied subsistence because of where
she chooses to live. To Representatives Masek and Ogan she said,
"You're the only ones that are guarding my rights as an Alaskan."
MS. ANDREW said she was hearing that some rural residents do not
care about her rights. With the federal government taking over
fishing management in October, and the recent proposal to the
federal subsistence board by the federal advisory committee for
closing all of Prince of Wales Island, including all adjacent
islands and waterways, she believes she is being denied her civil
rights as a United States citizen because of where she chooses to
live.
MS. ANDREW referred to item (10) on page 3 of the bill, which
requests elimination of commercial use and sale of fish and
wildlife taken for subsistence use. She believes this is the most
important issue. Under no circumstances should sales be allowed.
She wants the state to initiate a new lawsuit and said Ketchikan
residents are pursuing that. She would also like the committee to
visit her way of life.
Number 0539
REPRESENTATIVE WILLIAMS informed Ms. Andrew of the upcoming meeting
in Ketchikan.
MS. ANDREW thanked Representative Williams for putting that
together.
Number 0566
The teleconference operator from Kotzebue advised members that Pete
Schaeffer had departed but had left testimony.
LUKE SAMPSON, Special Assistant to the Mayor, Northwest Arctic
Borough, testified via teleconference from Kotzebue on behalf of
Mayor Chuck Greene. He said he had probably been in the same room
as Representative Barnes, discussing the same issue, 20 years ago.
MR. SAMPSON said the borough opposes HJR 21. He stated, "In any
form whatsoever, it does not represent the sentiment of our
constituents in the Northwest Arctic Borough and the 11 communities
we serve." He said it takes away a significant Alaskan way of life
necessary to both indigenous and rural Alaskans. These citizens
are being deprived of local control by deceptive use of a
"legislative mechanism called a joint resolution."
MR. SAMPSON said HJR 21 only creates more conflict for all
Alaskans. It is either insensitive, by ill-informed legislators,
or deliberately ignores the needs of constituents most directly
impacted. He concluded that the borough's past record on the issue
of protecting subsistence still stands.
Number 0726
CO-CHAIRMAN OGAN confirmed that all off-net testifiers had been
heard.
Number 0777
NICK JACKSON testified via teleconference from Glennallen. He had
spent two terms on the Board of Game and listened to rural
residents testify. Mr. Jackson opposes HJR 21. He agrees with
testimony by John Borbridge, Art Ivanoff and Julie Kitka. He
believes HJR 21 would make rural people second-class citizens.
CO-CHAIRMAN OGAN announced that public testimony was concluded. He
apologized to those unable to testify because of the long list.
However, he believed a fair representation from around the state
had been heard. Referring to Representative Nicholia's complaint
that not enough people had been hooked up, he noted that her office
had only begun attempting to hook up sites the previous day. He
suggested that with earlier notice, more lines could be arranged.
He emphasized that the lack of hook-ups was not deliberate.
Number 0887
REPRESENTATIVE BARNES made a motion that HJR 21 move from the
committee with individual recommendations.
REPRESENTATIVE WILLIAMS objected. He had excerpts from the ANCSA
conference committee report and from ANILCA. When he asked to have
it copied for committee members, Co-Chairman Ogan replied that the
conference committee was not the law of the land that was passed.
Representative Williams said he does not think that is relevant.
He said it was passed and is the law of this land. ANILCA was
started because of what was said in ANCSA.
REPRESENTATIVE WILLIAMS read from the ANCSA Conference Report,
dated December 13, 1971, "C. Other Issues," item 2, which states:
"The Senate amendment to the House bill provided for the protection
of the Native people's interest in and use of subsistence resources
on the public lands. The conference committee, after careful
consideration, believes that all Native interest in subsistence
resource lands can and will be protected by the Secretary through
the exercise of his existing withdrawal authority.
"The Secretary could, for example, withdraw appropriate lands and
classify them in a manner which would protect Native subsistence
needs and requirements by closing appropriate lands to entry by
nonresidents when the subsistence resources of these lands are in
short supply or otherwise threatened. The Conference Committee
expects both the Secretary and the State to take any action
necessary to protect the subsistence needs of the Natives."
REPRESENTATIVE WILLIAMS read from Title VIII of ANILCA, "Findings,"
subsection (4), saying it explains why Title VIII was added. It
states: "in order to fulfill the policies and purposes of the
Alaska Native Claims Settlement Act and as a matter of equity, it
is necessary for the Congress to invoke its constitutional
authority over Native affairs and its constitutional authority
under the property clause and commerce clause to protect and
provide the opportunity for continued subsistence uses on the
public lands by Native and non-Native rural residents".
Number 1052
REPRESENTATIVE WILLIAMS said he looks at that as an agreement with
the Native people of Alaska. When the Trans-Alaska Pipeline was
being built, there was a great push to get it built. A land-freeze
was put on land throughout Alaska. He said this bill passed on
December 18, 1971. He said at the end of any session, things pass
quickly. He would like to think that through all of this, that
this is the law of the land. He looks at this as a deal that has
been made, and he would hope the committee would recognize that.
Number 1123
CO-CHAIRMAN OGAN said under the settlement, all aboriginal titles,
if any, and claims to aboriginal title in Alaska based on use and
occupancy, including submerged land underneath all water areas both
inland and offshore, and including any aboriginal hunting and
fishing rights that may exist, are extinguished. "That was what
was passed in the law," he stated. "I didn't mean to be
disrespectful. It's just that the conference committee was what
was debated in the conference committee. Unless I misunderstand
it, that was what was debated. This was what was settled."
Number 1160
REPRESENTATIVE BARNES referred to the first statement read by
Representative Williams and said that was not part of the law. It
was intent language, which does not carry the force of law. "And
it very clearly said that if you were to limit the taking of fish
and game, it would be done to nonresidents," she stated. "We
aren't talking about nonresidents here, we're talking about
Alaskans." She said ANILCA was a follow-up to ANCSA. And HJR 21
specifically speaks to Title VIII of ANILCA, which goes to the
heart of Alaska's constitution and statehood compact.
Number 1228
REPRESENTATIVE JOULE objected to moving HJR 21 at this time. A
small sampling of people had testified. He hoped the committee
could hear it over the next couple of weeks, which had been his
understanding.
CO-CHAIRMAN OGAN indicated he had not committed to further
hearings.
Number 1309
CO-CHAIRMAN OGAN called an at-ease at 4:09 p.m. He called the
meeting back to order at 4:11 p.m. He announced he would hold HJR
21 until the next meeting.
REPRESENTATIVE BARNES asked to leave the motion to move HJR 21,
which includes a zero fiscal note, pending.
CO-CHAIRMAN OGAN advised members that there could be discussion in
the meantime.
ADJOURNMENT
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 4:12 p.m.
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