Legislature(1999 - 2000)
09/23/1999 10:06 AM 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
JOINT MEETING
HOUSE RESOURCES STANDING COMMITTEE
HOUSE JUDICIARY STANDING COMMITTEE
September 23, 1999
10:06 a.m.
HOUSE RESOURCES COMMITTEE MEMBERS PRESENT
Representative Scott Ogan, Co-Chair
Representative Jerry Sanders, Co-Chair
Representative Beverly Masek, Vice Chair
Representative John Harris
Representative Carl Morgan
Representative Ramona Barnes
Representative Jim Whitaker
Representative Reggie Joule
Representative Mary Kapsner
HOUSE JUDICIARY COMMITTEE MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative John Cowdery
Representative John Coghill
Representative Hal Smalley
Representative Sharon Cissna
Representative John Davies
Representative Ethan Berkowitz
Representative Bill Hudson
Representative Alan Austerman
Representative Gail Phillips
Representative Con Bunde
Representative Richard Foster
Representative Brian Porter
Representative Carl Moses
SENATE MEMBERS PRESENT
Senator Rick Halford
Senator Robin Taylor
COMMITTEE CALENDAR
*HOUSE JOINT RESOLUTION NO. 201
Proposing an amendment to the Constitution of the State of Alaska
relating to subsistence use of renewable natural resources by
residents of the state; and providing for an effective date.
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR201
SHORT TITLE: CONST.AM: RURAL SUBSISTENCE PRIORITY
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
9/22/99 (H) JUD AT 6:00 PM HOUSE FINANCE 519
9/22/99 (H) RES AT 6:00 PM HOUSE FINANCE 519
<JOINT WITH HOUSE JUDICIARY>
<HEARD AND HELD; RECESSED TO CALL OF
CHAIR>
9/22/99 1812 (H) READ THE FIRST TIME - REFERRAL(S)
9/22/99 1813 (H) RES, JUD, FIN
9/22/99 1813 (H) 2 FISCAL NOTES (GOV, F&G)
9/22/99 1813 (H) GOVERNOR'S TRANSMITTAL LETTER
9/23/99 Text (H) JUD AT 10:00 AM HOUSE FINANCE 519
9/23/99 Text (H) RES AT 10:00 AM HOUSE FINANCE 519
WITNESS REGISTER
DALE BONDURANT
31864 Moonshine Drive
Soldotna, Alaska 99669
POSITION STATEMENT: Discussed various relevant court cases.
MIKE MILLIGAN
S.R. 12056 Gara Drive
Kodiak, Alaska 99615
POSITION STATEMENT: Encouraged the committee to find a way for the
state to solve this issue.
DONALD WESTLUND
PO Box 871
Ward Cove, Alaska 99928
POSITION STATEMENT: Encouraged a vote of the people regarding
whether the state should sue the federal government.
PERRY MENDENHALL, Sitnasuak Native Corporation
PO Box 1141
Nome, Alaska 99762
POSITION STATEMENT: Expressed the need to resolve the subsistence
dilemma by passing HJR 201.
MARK JACOBS, JR.
PO Box 625
Sitka, Alaska 99835
POSITION STATEMENT: Testified that the current constitutional
language is adequate to protect subsistence.
PETER JACK, SR.
No address provided.
Angoon, Alaska
POSITION STATEMENT: Spoke to the over regulation of subsistence
users.
JULIE KITKA, President
Alaska Federation of Natives
1594 C Street, Suite 300
Anchorage, Alaska 99501
Telephone: (907) 274-3611
POSITION STATEMENT: Testified that the AFN will not support any
amendments to ANILCA.
NORMAN COHEN, Legal Counsel
Alaska Federation of Natives
204 North Franklin Street, Number 1
Juneau, Alaska 99801
Telephone: (907) 586-2360
POSITION STATEMENT: Offered legal opinions for the AFN.
SHIRLEY DEMIENTIEFF, FNA
229 Second Avenue
Fairbanks, Alaska 99701
POSITION STATEMENT: Suggested changing "shall" to "may" and
putting it to vote.
MIKE WILLIAMS, Chairman
Alaska Inter Tribal Council
Box 27
Akiak, Alaska 99552
POSITION STATEMENT: Testified that subsistence use should be
recognized in the Alaska Constitution as the highest and best use
of Alaska's renewable natural resources.
ROB HOLT, President
Alaska Professional Hunters Association
PO Box 489
Fairbanks, Alaska 99701
POSITION STATEMENT: Testified that APHA has consistently supported
continuance of the subsistence lifestyle, but also noted that the
guiding industry can't survive under federal management.
DAVID BEDFORD
United Fishermen of Alaska
531 Main Street
Juneau, Alaska 99801
POSITION STATEMENT: Urged the committee to seriously consider
passage of an amendment to Alaskans that will effectively maintain
state management.
KATHLEEN GRAVES
204 South Forest Drive, Number 13
Kenai, Alaska 99611
POSITION STATEMENT: Testified that ANILCA should be litigated and
changed to refer to "personal consumption priority."
DICK BISHOP, Vice President
Alaska Outdoor Council
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Opposed federal management.
THOMAS TILDEN
Box 786
Dillingham, Alaska 99576
POSITION STATEMENT: Urged the committee to comply with ANILCA.
JOHN PALMES
P.O. Box 20454
Juneau, Alaska 99802
POSITION STATEMENT: Testified that as many Alaskans as possible
should get to practice subsistence.
RAY NIELSEN, JR.
208B Kogwanton Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified that he is not in favor of a
compromise of subsistence rights or amendments to ANILCA.
JOHN NIELSEN
107 Wolff Drive
Sitka, Alaska 99835
POSITION STATEMENT: Testified that he is not in favor of a
compromise of subsistence rights or amendments to ANILCA
JOE WILLIAMS
Route 2, Box 2
Ketchikan, Alaska 99901
POSITION STATEMENT: Urged the state to live up to the deal which
they agreed upon in 1980.
MARLENE ZUBOFF, Executive Director
Angoon Community Association
P.O. Box 188
Angoon, Alaska 99820
POSITION STATEMENT: Testified that she is not in favor of an
amendment to ANILCA.
MAXINE THOMPSON, Mayor
City of Angoon
P.O. Box 189
Angoon, Alaska 99820
POSITION STATEMENT: Urged the legislature to look at this as an
Alaskan issue; not make it divisive between rural and urban.
PETER MCCLUSKEY, JR.
P.O. Box 216
Angoon, Alaska 99820
POSITION STATEMENT: Urged the legislature to support a good
decision.
STEVE GINNIS, President
Tanana Chiefs Conference Incorporated
122 First Avenue, Suite 600
Fairbanks, Alaska 99701
POSITION STATEMENT: Encouraged the committee to come to the
villages to see what they are making policy decisions on.
ALAN ZUBOFF, Chief
Dog Salmon Clan
P.O. Box 84
Angoon, Alaska 99820
POSITION STATEMENT: Testified that there should be no compromise.
DAVID KELLEYHOUSE
P.O. Box 81452
Fairbanks, Alaska 99708
POSITION STATEMENT: Urged the committee to forge an Alaskan
solution.
CALEB PUNGOWIYI
Kawerak, Incorporated
P.O. Box 948
Nome, Alaska 99762
POSITION STATEMENT: Discussed how restrictions have been due to a
conservation concern, not to protect subsistence.
ALEX SINYON, President
Tetlin Native Corporation
P.O. Box TTL
Tetlin, Alaska 99779
POSITION STATEMENT: Urged the committees to bring this to a
constitutional amendment.
HERBERT EDWIN
Tanana Tribal Council
PO Box 93
Tanana, Alaska 99777
POSITION STATEMENT: Urged the committee to bring this to a
constitutional amendment so all Alaskans can vote on it.
WOODY SALMON
P.O. Box 53
Chalkyitsik, Alaska 99788
POSITION STATEMENT: Urged the committee to take the issue to the
people and let them vote.
KENNETH RICHARDS, First Chief
Holy Cross Village
No address provided.
Holy Cross, Alaska 99602
POSITION STATEMENT: Discussed his definition of subsistence.
ROBERT WALKER, Mayor
City of Anvik
PO Box
Anvik, Alaska 99558
POSITION STATEMENT: Discussed the "urban" and "rural"
distinctions.
KEN JOHNS, President
Copper River Native Association
Drawer H
Copper Center, AK 99573
POSITION STATEMENT: Welcomed federal management.
McKIE CAMPBELL
10608 Horizon Drive
Juneau, Alaska 99801
POSITION STATEMENT: Offered a three part solution.
LYNN LEVENGOOD, Attorney
Member, Alaska Wildlife Conservation Association
1008 16th Avenue, Suite 200
Fairbanks, Alaska 99701
POSITION STATEMENT: Testified that the rights of all Alaskans
should be protected.
DEWEY SKAN, President
Rural Community Action Program
PO Box 34
Klawock, Alaska 99925
POSITION STATEMENT: Discussed RurAL CAP.
GILBERT BEN, Council Member
City of Allakaket
PO Box 30
Allakaket, Alaska 99720
POSITION STATEMENT: Recommended a Native priority.
SHARON LEE
10835 Glacier Highway
Juneau, Alaska 99801
POSITION STATEMENT: Urged the committees to seek God.
CARL RUE
No address provided.
Anvik, Alaska
POSITION STATEMENT: Testified that this issue must be placed
before voters.
DON BRIMNER
No address provided.
Juneau, Alaska
POSITION STATEMENT: Supported a rural preference.
ROBERT SILAS, President
Northway Village Council;
President, Dineega Corporation;
Member, Doyon Board of Directors
PO Box 436
Northway, Alaska 99764
POSITION STATEMENT: Commented on issues of equality and proximity.
Anna Davidson
No address provided.
Anchorage, Alaska
POSITION STATEMENT: Commented that if enacting a rural subsistence
priority in times of resource shortage is unconstitutional, then so
is the state's limited entry permit program and permitting of
individuals as guides for sportsmen.
FRANK BENJAMIN
No address provided.
Shageluk, Alaska
POSITION STATEMENT: Commented on discrimination.
LOTHA WOLF
No address provided.
Mentasta, Alaska
POSITION STATEMENT: Discussed the language as problematic.
DEWEY GEORGE
No address provided.
Auke Bay, Alaska
POSITION STATEMENT: Eencouraged the committees to consider the
people.
GEORGE UTERMOHLE, Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions regarding Version K.
ACTION NARRATIVE
TAPE 99-40 (RESOURCES), SIDE A
Number 0001
CO-CHAIR SCOTT OGAN of the House Resources Standing Committee
called the joint meeting of the House Resources Standing Committee
and the House Judiciary Standing Committee to order at 10:06 a.m.
House Resources Standing Committee members present at the call to
order were Representatives Ogan, Sanders, Masek, Harris, Morgan,
Whitaker, Joule and Kapsner. Representative Barnes arrived shortly
after the call to order. House Judiciary Standing Committee
members present at the call to order were Representatives Kott,
James, Murkowski, and Croft. Representatives Green, Rokeberg, and
Kerttula arrived shortly after the call to order. Other House
members present were Representatives Coghill, Smalley, Cissna,
Davies, Berkowitz, Hudson, Austerman, Phillips, Bunde, Foster,
Porter, and Moses. Present from the Senate was Senator Halford.
HJR 201-CONST.AM: RURAL SUBSISTENCE PRIORITY
[NOTE: Although this is a Joint House Resources Standing Committee
and House Judiciary Standing Committee meeting, HJR 201 is
technically only before the House Resources Standing Committee for
action.]
CO-CHAIR OGAN announced that the only order of business is HOUSE
JOINT RESOLUTION NO. 201, Proposing an amendment to the
Constitution of the State of Alaska relating to subsistence use of
renewable natural resources by residents of the state; and
providing for an effective date. He informed everyone that today
public testimony would be taken and limited to three minutes.
Co-Chair Ogan requested that committee members not debate the
witnesses.
Number 0390
DALE BONDURANT, testifying via teleconference from the Kenai,
pointed out, "The Alaska Supreme Court in a number of decisions
recognized that the fish, wildlife, and waters are common property
resources that are held in trust for the equal benefit use of all
the people." He noted that the court made over 20 references to
the states trustee duties, the public trust doctrine, and common
use of renewable resources in the Owsichek case. In the McDowell
case, the court noted that several other jurisdictions have struck
down residential preferences in fish and game statutes. The court
also said that laws may be passed on the manner of taking and using
common property resources. However, this must be done upon the
same terms for everyone; there can be no special privileges or
immunities. He pointed out that in Payton, the court stated, "...
subsistence uses have been defined in terms of customary and
traditional uses, according[ly] we consistently intrepret this
customary and traditional to refer to uses and rather than users.
Section 4, Article VIII allows for a preference among beneficial
users, but the equal protection clause allow[s] for no exclusive
right or special privileges among users." Furthermore, the Alaska
Supreme Court stated, in Totemoff, "that the federal government's
change of position in the reserve water doctrine during Katie John
litigation deserves no deference in court decisions." He also
noted that the Ninth Circuit Court admitted that their decision was
inherently unsatisfactory. Upon re-examination, one judge filed a
descenting opinion that the U.S. doesn't have any interest in
Alaska's navigable waters since given away with statehood in 1959.
Mr. Bondurant quoted the other two judges as saying, "Our
interpretation of the term 'public lands' in the case will not
allow the United States to usurp state power over navigable waters
elsewhere." Mr. Bondurant said, "Such irresponsible court
position, in fact and intent, usurped Alaska's sovereignty under
the equal footing doctrine, state police powers, Submersed Lands
Act, privilege and immunity, due process, and legal [indisc.]."
He returned to Totemoff in which the supreme court gave six reasons
and cited over 40 court decisions, regulations, and acts regarding
why Alaska has the authority to regulate hunting and fishing in
Alaska's navigable waters.
MR. BONDURANT informed the committee of his conversation with the
Governor, during which he asked the Governor why he didn't accept
the authority identified by Alaska's "highest legal authority." He
said the Governor responded that several attorneys didn't agree
with the decision. Mr. Bondurant pointed out to the Governor that
this was a unanimous decision by the court. Mr. Bondurant then
asked why the Governor didn't declare his authority to manage
Alaska's fish and wildlife and challenge the federal government to
take the state to the U.S. Supreme Court. The Governor replied
that he needed to speak with someone else. Mr. Bondurant said, "In
two pertinent U.S. Supreme Court cases, they found that Congress is
without power to enlist the state's cooperation in a joint
federal-state program by legislation to aurthorize the state to
violate the equal protection clause of the Fourteenth Amendment.
This is exactly what they are saying that they're going to do."
Number 0670
MIKE MILLIGAN testified via teleconference from Kodiak. He began
by saying that the question before the committee is regarding which
constitution, the Alaska Constitution or the U.S. Constitution, is
more powerful. He pointed out that before the Bill of Rights was
written, the U.S. Constitution stated that power allocated to
Congress under Section 8 would be "to regulate commerce with
foreign nations, and among the several state, and with Indian
tribes." When the Alaska National Interest Lands Conservation Act
(ANILCA) was written, the word "rural" was used versus "Native"
because the word "Native" would not have fallen under the legal
parameters of the Fourteenth Amendment. Mr. Milligan said that
there is no solution that could resolve that problem. He saw the
committee as having to decide who it would prefer to sort out the
solution - the federal government or the state. Mr. Milligan
concurred with U.S. Senator Murkowski that it would be better for
the state to sort out the solution. He indicated that the word
"rural" could be changed to "local," but he was unsure as to
whether that would pass muster. He felt that the bigger national
issue will become the consumptive use of wildlife. Therefore,
without the foundation for subsistence use, for the consumptive use
of wildlife, those Alaskan rights are placed at risk on the
national level. In conclusion, Mr. Milligan encouraged the
committee to find a solution that allows the problems to be sorted
out by the state not the federal government.
Number 0849
DONALD WESTLUND testified via teleconference from Ketchikan. He
predicted that no matter what the legislature does, the federal
government will continue to manage under either system. Mr.
Westlund suggested that there be a vote of Alaskans regarding
whether the Governor should file a lawsuit on this issue. He
acknowledged that there have been two lawsuits, one of which was
rejected by the Governor and the other by the courts. Mr. Westlund
recalled Governor Knowles statement that no governor has contested
this. However, one of Governor Knowles first actions in office was
to drop the lawsuit by Governor Hickel. Therefore, the public
should vote on whether the state should sue the federal government.
Without a hearing in court, the state's constitution can't be
changed.
CO-CHAIR OGAN commented that Mr. Westlund's idea was excellent, but
that many legislators are a bit shy of having an advisory vote.
MR. WESTLUND emphasized that a vote is the only way to get the
Governor in line because he continues to not support a lawsuit.
The only way to settle this issue is to determine whether Title
VIII of ANILCA is constitutional.
CO-CHAIR OGAN concurred with Mr. Westlund.
Number 1059
PERRY MENDENHALL, Sitnasuak Native Corporation, testified via
teleconference from Nome. He informed the committee that economics
in Northwest Alaska has not changed for the better since statehood.
He pointed to the Bering Straits' villages and Nome and commented
that most villagers remain dependent upon wildlife and fisheries.
With regard to the decline of the chum salmon in the Nome area
rivers, he believed that illustrated the state's inability to help
people survive in a time of economic hardship and the state's
inability to manage fish and game for subsistence. He noted that
villages and Native Alaskans have been galvanized to look forward
to and expect the federal government to take over subsistence.
Rather than laying blame, it is time for the election process. Mr.
Mendenhall expressed the need to resolve the subsistence dilemma by
passing HJR 201.
REPRESENTATIVE BARNES read the following statement : "Norm-based
Bering Strait Native Corporation road the stock market to revenues
of [$]5.229 million and a net income of [$]1.538 million for the
nine months that ended March 31, 1998. The corporation is
expanding its real estate holdings, ...." She asked if that
statement is correct.
MR. MENDENHALL answered yes, but noted that not all of that
trickles down to the shareholders. Furthermore, not all the people
in the region belong to the Bering Straits Native Corporations. He
commented that anything that is productive in the region has been
hampered or slowed down. Mr. Mendenhall also stated that there is
a lack of funds for economic development planning. Recently, some
of the villages have had water and sewer installed, but others are
still working toward that goal. Mr. Mendenhall clarified that the
Native corporations manage the land and much of the mentioned
revenue is utilized to help protect the land, future taxation, and
buy outs.
REPRESENTATIVE BARNES clarified that her point was that Mr.
Mendenhall would be proud that the corporation is doing so well.
The article seems to indicate that most of the Native corporations
are doing well, as they paid out $53 million in dividends.
Number 1326
MARK JACOBS, JR., testified via teleconference from Sitka. Mr.
Jacobs stated that the current constitutional language is adequate
to protect subsistence. He referred to Article XII, Section 12 of
the Alaska State Constitution. He recalled that at the time of
statehood, Article IV mandated that the language in Article XII,
Section 12, be included in the state constitution. Mr. Jacobs
stressed that the Alaska State Constitution is the highest and most
authoritative law in the state. The Alaska State Constitution
recognizes Indian rights. He commented that the state and federal
people refuse to use the word "aboriginal rights" and "inherent
rights." Those are rights that can't be legislated. Currently,
laws and regulations are created which are not lawfull. It
violates human rights to take away food. He referred to the equal
rights protection portion of the Alaska State Constitution and
commented the state is not following Section 8.15. He commented
that currently, there are a flood of charter boats in Alaska
sending tons of fish to the Lower 48, while the local fleets are
forced to tie up.
Number 1580
PETER JACK, SR., testified via teleconference from Angoon. He
informed the committee that he has lead a subsistence lifestyle his
entire life. He recalled going to a fish camp twice a year as a
child. Mr. Jack believed that ground has been lost on subsistence
as he knew it. Subsistence users are being regulated more than
other users of our natural resource. For example, subsistence
users must obtain a permit to take fish and report to the state on
how much fish was taken. On the other hand, the sportsfisherman
are not regulated with regard to reporting their take which he felt
to be discriminatory.
MR. JACK discussed how the elders have always referred to the land
as having a spirit which must be treated appropriately in order for
it to support the people. He considered Native Alaskans, perhaps,
all Native Alaskans, to be conservationists. He indicated that it
would not be the fault of Alaska Native's if there is a shortage of
fish and game resources. There are other users in Alaska. He
inquired as to whether other users are required to report in
because if not, that is discriminatory against subsistence users.
CO-CHAIR OGAN informed everyone that charter boats are required to
keep a record of the catch. Sportsfishermen, whether residents or
nonresidents, have a simple limit.
MR. JACK recognized that, but asked if those users are monitored;
do they have to report on their catch daily?
CO-CHAIR OGAN said he wasn't certain, but believed that guiding
sportsfishermen are required to report their catch at the end of
the season.
Number 1877
JULIE KITKA, President, Alaska Federation of Natives (AFN), noted
that she is accompanied by two legal counsels, Chris McNeil, Jr.
and Norman Cohen. Ms. Kitka stated:
For the record, AFN supports passage, first by the
legislature and then by the people of the State of Alaska
of a constitutional amendment and state statute complying
with Title VIII of ANILCA as its currently written
without amendments to ANILCA that weaken the federal
subsistence protection. AFN ... opposes the filing by
the Governor or the legislature of a federal court suit
challenging the constitutionality of Title VIII of
ANILCA, the authorities of the secretaries, or any other
arguments for state management in the absence of
compliance with ANILCA. There should be no more delays.
MS. KITKA noted that the legislature has failed to resolve this
dilemma for over ten years. Every Alaskan knows the real issue of
this special session. She said that Title VIII is sound,
responsible public policy that has consistently withstood
litigation; Title VIII must remain in place. She viewed the demand
for another suit as a delaying tactic and urged the legislature to
resolve "the most bitter issue dividing Alaskans today." Approving
an amendment would unite Alaskans, therefore, Alaskans must be
allowed to vote in November 2000. If this special session can't
produce a constitutional amendment, Ms. Kitka predicted that
everyone will face federal management in subsistence fisheries and
the Alaska public will know who has failed them.
Number 1984
MS. KITKA commented that there has been increasing national
attention to what is happening in Alaska, especially this special
session. Ms. Kitka asked to enter a New York Times article on the
subsistence issue into the record. She informed the committee that
recently the AFN and other groups sponsored a national forum in
Washington, D.C., on the future of Alaska Natives. Many who spoke
at the forum were on point with regards to subsistence. She also
requested entering into the record, the videotaped message of
President Clinton to the forum. She quoted President Clinton as
saying:
Tonight I reassure you that our administration stands
with you to improve the recognition of your religious and
cultural practices to increase your sovereignty and
self-determination to support the subsistence rights of
all Alaskan Natives. If Alaska Natives are to continue
their way of life and maintain their culture, Alaska must
comply with the Alaska National Interest Lands
Conservation Act. This federal law protects subsistence
fishing. Our position is not simply one of words, we're
ready to take action. Secretary of Interior Bruce
Babbitt is moving to take over fisheries management in
order to maintain your subsistence rights. I sincerely
hope the Alaska Legislature enacts a constitutional
amendment which will make it unnecessary to take this
action.
REPRESENTATIVE SANDERS interjected that President Clinton is a
self-admitted liar and purgerer. President Clinton lied when
saying that he would protect all of the Native rights.
Representative Sanders emphasized that he isn't protecting his
wife's rights, his son's rights, or his daughter's rights all of
which are Alaskan Natives.
MS. KITKA clarified that her quotes from President Clinton are
demonstrative of the national interest on this issue which raises
the importance of this legislature to grasp this issue and place a
resolution before Alaskan voters.
Number 2151
REPRESENTATIVE BARNES pointed out that the national attention is
not just from one point of view. People around the United States
are concerned that if the rights of some Alaskans can be denied
while giving those rights to a special group of Alaskans, then that
can occur anywhere in the United States. Representative Barnes
said she didn't think President Clinton is much of a president.
MS. KITKA reiterated that the intention was to demonstrate the
national focus and interest in this issue which she hoped would
indicate to the committee the serioiusness of their actions. She
continued by noting comments at the forum from U.S. Senator Daniel
Inouye of Hawaii. She said that Senator Inouye noted that the
Native rights to hunt, fish, gather for subsistence purposes, to
practice the traditions and customs of their culture have been
recognized in the laws of Hawaii. He further noted that Hawaii's
constitution specifically addresses Native subsistence rights and
extends protection of these rights exclusively for Native
Hawaiians. Secretary of Interior Bruce Babbit also spoke at the
forum.
MS. KITKA quoted Secretary of Interior Bruce Babbit as saying,
"There will not be another moratorium. There will be no amendments
to ANILCA on my watch. On October 1st we'll make the transition to
a new subsistence regime." She turned to comments made by the
Secretary of Agriculture, Dan Glikman(ph), as he has jurisdiction
on implementation of the federal law due to forest service lands
that are under the Department of Agriculture. She quoted Secretary
of Agriculture Dan Glikman(ph) as saying:
The very future of Alaska Natives is what's at stake in
this long running dispute over subsistence fishing
rights. Let me say, unequivocably, that if the state
does not move forward with a constitutional amendment, 22
days from now I'm prepared to work with Secretary Bruce
Babbitt to provide the resources necessary to manage
these fisheries on the federal lands, thus, upholding
ANILCA. Preserving the rural priority and protecting the
Native Alaskan way of life.
MS. KITKA noted that these statements were made in the last couple
of weeks.
TAPE 99-40, SIDE B
MS. KITKA informed the committee that U.S. Congressman Lewis was in
support of Native people and subsistence rights. Ms. Kitka said
that she senses, in the legislature and in the state, there isn't
recognition of the growing awareness of this issue in the country.
She quoted Congressman Lewis as saying:
Our struggle for justice and civil rights has always had
a strong attachment to the land. When Fedrick Douglas
raised his voice against the injustices of slavery, he
spoke of a man's right to throw off the yoke of slavery
and work his own land. And as the struggle for justice
continues, this sacred connection between people and the
land remain strong. We now fight for the right to live
in a land free of pollution, ...to know what is in the
food we eat, the water we drink, the air we breathe. But
as the movement drives forward to capture new ground in
the fight for justice, we must not forget the ancient
battles that are yet to be won. Indeed, the right of the
Eskimo, the Indian, the Aleut people of Alaska to gather
food and feed their children is not a special right, it
is a human right. The fight for the right to hunt and
fish and to carry on the ancient traditions of their
ancestors, is not a fight for dollars and cents. It is
a fight for the survival of a people to preserve a way of
life.
Number 0157
MS. KITKA announced the support of the National Association for the
Advancement of Colored People (NAACP). She commented that she
could continue to illustrate the growing support in the country and
the state to resolve this in a manner fair to Alaskan Natives. Ms.
Kitka said that AFN would like for the state to regain management,
but will not support any amendments to ANILCA which weaken the
federal subsistence protections. Ms. Kitka urged the legislature
to wrestle with the issue of a constitutional amendment, stop this
decade-long conflict, and allow Alaskans to vote on this.
CO-CHAIR OGAN requested that Ms. Kitka clarify AFN's position on
ANILCA amendments. He asked if the ANILCA amendments included in
the Governor's task force during the last special session on
subsistence were not on the table now.
MS. KITKA reiterated that AFN supports no amendments to ANILCA.
She understood that the reason those amendments disappeared from
federal law was because the legislature didn't act on those
amendments last year.
CO-CHAIR OGAN asked if the AFN supports a federal takeover of
fisheries management.
MS. KITKA answered that AFN supports the state coming into
compliance with ANILCA as well as a constitutional amendment on the
ballot in the year 2000. If the legislature is unwilling to allow
such a vote, then AFN supports full federal implementation of the
federal law.
Number 0350
CO-CHAIR OGAN inquired as to whether AFN, in its national forum and
media, is explaining that aboriginal hunting and fishing rights
were extinguished with the [Alaska] Native Claims Settlement Act
(ANCSA).
MS. KITKA commented that people are still learning.
CO-CHAIR OGAN referred to the Declaration of Settlement, Section 4,
paragraph b which reads:
All aboriginal titles, if any, and claims to aboriginal
title in Alaska based on use and occupancy, including
submerged land beneath all water areas both inland and
offshore, and including any aboriginal hunting or fishing
rights that may exist are hereby extinguished.
CO-CHAIR OGAN recalled that at the time, the AFN signed off on the
deal in exchange for 44 million acres of land, fee simple title.
He asked if it is being explained that aboriginal hunting and
fishing rights are extinguished.
MS. KITKA informed the committee of comments made by Congressman
Mark Udall, whose father authored Title VIII of ANILCA. She said
Congressman Mark Udall addressed the AFN forum and cited several
principles important to the subsistence issue. She quoted
Congressman Mark Udall as saying:
Specifically in connection with subsistence, we need to
remember that when the House and Senate considered the
settlement act, one of the issues was whether or not the
law should include provisions to protect the ability of
Alaska's Native people to continue those subsistence
activities after the law made major changes in the legal
status of Alaskan lands. We need to remember that while
the conferees finally decided not to include such
provisions in the settlement act, they did so because of
their explicit expectation stated in the Conference
Report that the Secretary of Interior could and would be
able to protect continued subsistence activities. We
need to remember it was the realization that the
conferees expectation had been over optomistic that led
to the revisiting of the issue as part of the debate over
the future of the lands in Alaska remaining in national
ownership after the settlement act. And we need to
remember that Title VIII, the subsistence title, is a key
part of the legislation that has shaped our government's
relationship with Alaska's Native people.
Number 0622
CO-CHAIR OGAN noted that he has commitments from three Republican
Presidential candidates that Alaska shouldn't amend its
constitution, not to mention that George W. Bush is a strong Tenth
Amendment, state's rights advocate.
MS. KITKA interjected that AFN has worked with both Democratic and
Republican Administrations. She believed that this is a bipartisan
issue. It was a Republican Adminsitration that sent the Secretary
of Interior to testify before the legislature in the first special
session.
Number 0714
REPRESENTATIVE MASEK said that the comments indicating that placing
the amendment before the voters would bring state management back
are false and misleading due to the judicial oversight provisions
in ANILCA. She indicated that everyone in the state should have
equal access to the resource regardless of residence, place of
birth, or zip code.
MS. KITKA agreed that there is federal court oversight and federal
involvement with the implementation of the law. The AFN supports
that because it provides part of the protections for subsistence.
REPRESENTATIVE MASEK recalled that there has never been a case won
in federal courts on the subject of subsistence. Representative
Masek recalled hearings on the Kenai Peninsula, during the time
when Deborah Williams was Secretary for the State of Alaska and the
Bureau of Indian Affairs(BIA). She had asked Ms. Williams what
actions would be taken by Congress, if the state put forth a
constitutional amendment which was subsequently voted down. The
indication was that the federal government would take over
regardless of the vote.
REPRESENTATIVE MASEK noted that she now lives in Willow and that
everything here could effect her son and his children. She felt
that her son is left out of this process with regard to access to
fish and game. There are a large number of Alaska Natives that
live in urban areas. She didn't understand how those at the
national level can believe they are protecting every Alaska Native
person in the state. Representative Masek believed the truth
should be brought out with regard to the federal court oversight.
True state management would require some ANILCA amendments.
CO-CHAIR OGAN commented that he is becoming increasingly frustrated
with the lack of compromise from the AFN with regard to no
amendments to ANILCA. Co-Chair Ogan noted his evolution in
becoming willing to consider constitutional protection for
subsistence and most recently, voting to consider proximity to
residence. In order to solve this, a solution which accommodates
both sides will have to be made. Co-Chair Ogan said that he could
not accept the creation of two classes of people in the state, but
noted that he is available to negotiate. Co-Chair Ogan predicted
that with the AFN pulling back, the state would become Balkanized
into different classes of people.
Number 1120
REPRESENTATIVE JOULE returned to Co-Chair Ogan's reference to
Section 4, paragraph b of ANCSA and said that there was no
opportunity for compromise. That was something that was done to
Alaska Native people at the last minute. In the development of
ANILCA, it was the State of Alaska that objected to Alaska Natives
and settled for "rural." Again, Alaska Natives were not at the
table. Representative Joule stressed that Alaska Natives have been
compromised many times and along the way, promises were made. It
is unfair to say that Alaska Natives have not compromised.
CO-CHAIR OGAN summarized that if a solution cannot be reached that
all sides can live with, Alaska faces federal allocation of
Alaska's resources and in the process the state will become
divided. Co-Chair Ogan reiterated that he is willing to discuss
the constitutional protection for subsistence.
Number 1282
MS. KITKA acknowledged that Co-Chair Ogan's willingness to consider
a constitutional amendment and Representative Barnes committee
substitute is movement which she applauded. She wondered as to the
circumstances that allowed the legislature to initiate a process to
amend the constitution to allow the ownership of 97 percent of all
the fishery resources with the limited entry program. Subsistence
use of fish and game is so minuscule, three to four percent, in the
large picture which is frustrating. She indicated that AFN doesn't
understand why this is so difficult to get on the ballot. Ms.
Kitka emphasized that AFN's position is so firm because, "our backs
are against the wall, we can't go back any further." Title VIII is
the only federal protection that offers protection. Ms. Kitka
said, "We have, from our perspective, a hostile state government on
that, that is hitting us from all angles on that and it wouldn't
make any sense for us to offer up key portions of the federal
protections that we have."
CO-CHAIR OGAN announced that he was willing to discuss a
constitutional amendment which would place subsistence use before
commercial fisherman, providing constitutional protection in the
highest court of Alaska; if there are times of shortage, commercial
fishermen would have to wait until subsistence use is met. He
noted that a prominent Native legislator agreed that such would
work, but this legislator was unable to support such politically.
Co-Chair Ogan reiterated that he was willing to disucss that. He
believed that a subsistence preference would place Alaska Natives
before commercial fishermen which would meet the intent of Morris
Udall, ANILCA, and the Conference Committee Report. He asked if
AFN is willing to compromise.
MS. KITKA responded that AFN is always willing to talk. Part of
the difficulty, is the short time frame that currently exists. Ms.
Kitka pointed out that the constitutional amendment merely provides
the legislature with the ability to pass a law. The next steps of
designing the law, the management system, the regulatory system,
and making it work remain. She turned to previous constitutional
amendments from the Governor, Senator Adams, and Senator Hoffman
and noted that the AFN prefers Senator Hoffman's constitutional
amendment. Those constitutional amendments allow the legislature
to make distinctions between people and areas which she viewed as
providing the legislature with more flexibility to design a system
that works. Placing a constitutional amendment on the ballot would
merely provide the flexibility to the legislature to do another
step. If the legislature doesn't want to give itself that
flexibility, then it doesn't have the legal ability to do a law
implementing something. Ms. Kitka reiterated her willingness to
talk.
CO-CHAIR OGAN reiterated that his door is open. There being no
further questions from the members of the House Resources
Committee, he turned the gavel to the House Judicary Committee
Chairman.
Number 1610
REPRESENTATIVE ROKEBERG asked Ms. Kitka if she had discussed this
issue with her Representative, assuming she still lived in District
11.
MS. KITKA replied no and noted that she lives in District 11,
Representative Rokeberg's district.
REPRESENTATIVE ROKEBERG said that he shared Co-Chair Ogan's concern
with AFN's lack of desire or policy to enter into good faith
negotiations or compromise. He was happy to hear Co-Chair Ogan's
offer to discuss this, but noted his disappointment that it hasn't
previously occured. He turned to Ms. Kitka's comments that some of
the members of the committees were aware of what happened during
the first special session on subsistence. With the exception of
Representative Barnes, no other member of the House Resources
Committee or House Judiciary Committee were present during that
first special session on subsistence. He believed that there is a
great willingness to reach some consensus and indicated that the
House Judiciary Committee would be interested in an amendment that
AFN would be amenable to. Representative Rokeberg noted his
perception that AFN tends to go straight to Washington, D.C., to
accomplish things in Juneau. There is little interaction with the
legislature which has some very strong Native leadership. He asked
if AFN is willing to work with the legislature to illustrate some
good faith in bargaining and possibly make some concessions.
MS. KITKA reiterated that the constitutional amendment, SJR 1,
sponsored by Senators Adams, Hoffman, and Lincoln is a
constitutional amendment that AFN believes would work. She urged
that be distributed to the committee in order to receive a sense of
where AFN is. She indicated that she was amenable to discussing
this.
Number 1835
REPRESENTATIVE ROKEBERG inquired as to under what circumstance, if
any, Alaska could regain state management of it's fish and game
resources, if the legislature fails to act. If state management
were lost, would AFN support or work to regain state management?
MS. KITKA commented that she really couldn't speculate. However,
she noted that many of the AFN are tired of feeling like a
political football. Many Alaska Natives are surrounded by federal
lands and don't have many state lands in the area. In those cases,
they already work with federal fish and wildlife managers on a
regular basis and know it can work. Many feel that if the state
can't come into compliance, they can work with the federal
managers. Ms. Kitka said if the state fails to place a
constitutional amendment on the ballot, the AFN would do all
possible to ensure that federal implementation fully protects
Alaskan Natives' needs.
REPRESENTATIVE ROKEBERG asked Ms. Kitka of her opinion of CSHJR
201, Version D, with regard to problems in the resolution and
possible suggestions.
MS. KITKA said that she understood the committee was waiting for an
opinion from the Secretary of Interior which she was also waiting
to review.
CHAIRMAN KOTT announced that no information had been received yet.
Number 1988
NORMAN COHEN, Legal Counsel, Alaska Federation of Natives, recalled
that Alaska Attorney General Botelho had a thorough discussion with
regard to what Version D would and would not accomplish. Mr. Cohen
agreed with Attorney General Botelho that the portion regarding
proximity would be helpful in resolving the Tier II problem.
However, the question remains as to whether that would provide the
legislature the flexiblity to pass a law consistent with ANILCA.
As written, Mr. Cohen didn't believe that necessary flexibility was
provided. Therefore, other changes would have to be made. In
further response to Representative Rokeberg, Mr. Cohen didn't
believe the language "other resources" in Version D would hurt the
situation and may solve some future problems.
REPRESENTATIVE JAMES complimented Ms. Kitka on her calm demeanor.
Representative James said she has studied this issue for some time
and didn't believe there was any portion that she didn't
understand. She expressed her admiration for all aboriginal people
in Alaska, but noted that doesn't mean that all Natives are
flawless. Representative James believed that legislation could be
drafted under the state's existing constitution which would
recognize the intent of ANILCA better than ANILCA. However, no one
seems to be willing to help define the needs in order to provide
for a priority. She understood that when one feels one is in the
best position one thinks one can get, one wouldn't give away
anything. Representative James believed that if the state submits
to the federal government's definition of "rural," which is unfair
on both sides, both Natives and non-Natives will be damaged more
than if an agreement could be reached. She also believed that
Secretary of Interior Babbitt doesn't have anything to do with
this, but noted that he is a spokesman for Native American's needs.
TAPE 99-41, SIDE A
MS. KITKA pointed out that it is a federal court order that has
been litigated in federal court. With regard to improvements to
the situation, the Native community would agree there are many
improvements necessary. The Tier I issue is giving the legislature
the constitutional authority to enact the law. Ms. Kitka mentioned
the notion of co-management which she believed the state would do
well to implement. If the legislature won't give itself the
constitutional authority to enact the law, how can the next steps
of building improvements occur.
Number 0141
REPRESENTATIVE JAMES inquired as to Ms. Kitka's feelings regarding
those folks who don't live in a designated rural area, but are as
qualified and should be able to have subsistence as a way to
support themselves.
MS. KITKA answered that if there was a way for Congress to enact a
Native priority, that would be addressed quickly. During the
ANILCA process, AFN testified in Congress as wanting a Native
priority.
REPRESENTATIVE JAMES informed everyone that she has been on the
record for more than 15 years, as supporting a Native priority.
Although that may be the intent of ANILCA, that isn't what it does.
She said that ANILCA draws a line between Native and non-Native and
discriminates. Those people in rural areas aren't the only people
who depend upon subsistence; therein, is why she can't support a
rural priority. Representative James offered to work to make the
situation better.
REPRESENTATIVE GREEN asked if there is a problem with the way that
the Alaska Department of Fish & Game (ADF&G) has handled the
situation thus far which wouldn't allow a priority among rural
people in an area where a need or shortage exists.
MS. KITKA noted that there are 102 villages in economic distress
due to the salmon shortage. She understood that the state doesn't
have the legal ability to give the priority for those distressed
communities in times of shortage. That illustrates the need for
the implementation of the federal law. That also illustrates why
the moratorium has harmed people in the villages.
REPRESENTATIVE GREEN clarified that he was referring to the
subsistence use not the commercial use.
Number 0491
MR. COHEN explained that the subsistence law for ANILCA expected a
small group to qualify. However, the "All Alaskans" policy has
resulted in changing the hunts to the Tier II system which is
inequitable in its current implementation. The issue is really how
to address those people that you really want to during those times
and allow others to enter under general hunting rules, personal use
fishing rules, or sportfishing rules. The system hasn't been
working well and this has been a time of high populations across
the state.
REPRESENTATIVE GREEN asked if the yields of the small Native
villages were placed ahead of commercial fishing, but not instead
of them necessarily would satisfy the needs of the Native
communities?
MR. COHEN stated:
If subsistence was in the constitution as the highest use
as compared to the statute which presently has it as the
highest use, would mean there would absolutely be no
difference from the way it's implemented now. ... So the
fact of putting it in the constitution that it's the
highest use would just prevent the legislature from
repealing the existing state subsistence law. So it
doesn't address the problems at all. It just strictly
puts into place what's already there by statute.
REPRESENTATIVE GREEN commented that it alters the constitution to
actually embody that rather than to do it by legislation.
MR. COHEN pointed out that the supreme court has found the existing
statute to be acceptable since it has eliminated the portion it
doesn't like. For that portion, it could be the exact same system
as there would be with a constitutional amendment. The
constitution has to be executed by statute, therefore, the statute
could look the same as the current statute.
REPRESENTATIVE GREEN interjected that the statute could be
different and more favorable to the Native villages, if in
constitutional form.
MR. COHEN said, in his opinion, this was addressed ten years ago
and it was determined that things can't be done that would benefit
one area of the state over other areas of the state because it has
to be open equally to all Alaskans. Therefore, no changes could be
made that would provide for a higher priority than is currently
provided by statute.
Number 0831
REPRESENTATIVE GREEN clarified that his point was that there would
be a nuance to the constitution which would allow that versus being
opposed to the constitution. However, not a broad stroke providing
that all rural villages have a priority over urban areas. This is
a Tier II situation.
MR. COHEN explained that a constitutional amendment saying that
subsistence is the highest priority would result in the exact
situation that currently exists.
REPRESENTATIVE GREEN commented that he agreed with Co-Chair Ogan
that there doesn't seem to be even an attempt to solve this.
REPRESENTATIVE ROKEBERG understood Mr. Cohen's testimony to
indicate that existing statute providing for Tier I subsistence is
not workable and can't be implemented based on the McDowell ruling.
Therefore, there can't be a needs based, proximity type of grant
from the board or the department during a time of shortage in a
specific area.
MR. COHEN clarified that the statutes don't allow use of proximity
to the resource as a basis for making distinctions. Therefore, if
there is a shortage in Sleetmute, anyone that has gone to that area
has an equal opportunity whether they live there or not.
REPRESENTATIVE ROKEBERG asked if the herd in Sleetmute can be
limited to subsistence users only.
MR. COHEN replied no and specified that everyone in the state is a
subsistence user now. He agreed with Representative Rokeberg that,
in effect, there isn't currently a Tier I that could work in such
a circumstance and therefore, it would default to Tier II. When
returning to Tier II, the result is anyone who has entered the area
has the same opportunity, in theory, to go after the resources.
That doesn't obtain the local need. The local need can't be
reached due to the Kenaitze II case where "proximity to resources"
was thrown out.
REPRESENTATIVE ROKEBERG asked if proximity was included in the
constitution, as in Version D, would that solve that problem.
MR. COHEN answered that it would solve the Tier II problem.
Therefore, in the earlier example only those from Sleetmute would
qualify. However, it would not solve the problem regarding who is
eligible for subsistence in the first place.
Number 1025
REPRESENTATIVE CROFT complimented Ms. Kitka with regard to how much
AFN has been willing to compromise. Historically, ANCSA was an
important compromise for the state which helped the state to obtain
the pipeline. Part of it was clearly a promise of subsistence
rights. When that didn't occur, ANILCA, a compromise itself, was
put in place. If Alaska wanted to be on an equal footing with
every other state with a significant Native population, Alaska
would have Indian country and treaties with something close to a
Native preference. More recently, the willingness to be a part of
the task force illustrates more compromise. He emphasized that the
continued willingness to support a constitutional amendment by the
state is, in itself, a continued compromise. Therefore, there has
been nothing but good faith from the Native community and AFN.
REPRESENTATIVE CROFT turned to federal court oversight. He noted
that there is a significant difference between federal court
oversight when in compliance versus when in noncompliance. He
explained:
Federal court oversight when you're certified in
compliance, the only question the federal courts would
look at is, is this such a big error by the state that
you're no longer in compliance? ... Ordinary state
management would be handled at the state court level and
that happened in the era of the '80s when we, for a brief
time, had that combined. So, instead of every decision
going to federal court, it would be just the largest
ones; are you in compliance with ANILCA?
REPRESENTATIVE CROFT addressed whether the committee substitute
(CS) complies with ANILCA and quoted George Utermohle's opinion as
saying: "The constitutional amendment proposed by CSHJR 201(RES)
would not satisfy the prerequisite of Title VIII of ANILCA. The
proposed amendment does not authorize the legislature to enact a
rural preference." Representative Croft believed that the
Secretary of Interior's comments would be similar to those of Mr.
Utermohle. He then turned to the notion of making everyone in
Alaska a subsistence user which would essentially immortalize the
current practice. That would be problematic in a situation when a
small amount of the resource is passing by a large amount of
people. In that case, any other use is pre-empted which is the
fundamental problem solved through ANILCA by limiting it to certain
areas.
Number 1305
REPRESENTATIVE MURKOWSKI recalled Ms. Kitka's comments regarding
that some Alaskan Natives already deal with federal management. Is
there a point at which those Alaskan Natives feel more comfortable
with federal management and would vote as such, if the
constitutional amendment were on the ballot? Representative
Murkowski acknowledged that AFN's first preference would be SJR 1
as proposed by Senator Adams. However, she inquired as to whether
AFN would be supportive of a constitutional amendment if it is less
than SJR 1 or the Governor's resolution.
MS. KITKA said she hesitated to respond due to its hypothetical
nature. Constitutional amendments are complex. She hoped that if
a constitutional amendment were to be produced by the legislature,
that it would be one the Native community could fully support.
REPRESENTATIVE MURKOWSKI stressed the importance of obtaining the
Alaska Native support for a constitutional amendment.
MS. KITKA agreed.
CHAIRMAN KOTT requested that House Judiciary Committee members
proceed with questions only. Please reserve comments and opinions
for a later time.
MS. KITKA noted that she and her counsel would be available
throughout this session.
SHIRLEY DEMIENTIEFF, FNA, suggested the committee consider "shall"
rather than "may." She also expressed the need to allow a vote.
REPRESENTATIVE ROKEBERG asked if the AFN could agree with any
specific amendments to ANILCA as part of this process and carry
those amendments to Washington, D.C. Could that occur in this time
frame?
Number 1624
MS KITKA reiterated that AFN would not support any amendments to
ANILCA in the next seven days because the AFN believes that Title
VIII is good public and national policy. The amendments to ANILCA
would basically overturn court cases that Alaskan Natives have won
in federal court on specific conflicts. People aren't discussing
amendments to ANILCA that improve the situation such as enhancing
co-management opportunities.
REPRESENTATIVE KERTTULA thanked the AFN and commented that she had
personally seen the work that AFN has put into this issue.
Representative Kerttula turned to the problem of "proximity" in
Version D which seems to skip Tier I and leaves out "rural."
MR. COHEN replied yes.
CHAIRMAN KOTT returned the gavel to Co-Chair Ogan.
REPRESENTATIVE BARNES inquired as to how Ms. Kitka would suggest
amending Version D, short of inserting "rural."
MS. KITKA acknowledged the work on the constitutional amendment and
commended Representative Barnes.
MR. COHEN agreed that this provision does seem to deal with Tier
II, as the discussion with Attorney General Botelho clearly
indicated. However, it doesn't deal with who qualifies for
subsistence in the first place as mentioned by Representative
Kerttula. There could be language changes that could achieve that
in the confines of this proposal.
REPRESENTATIVE BARNES questioned whether the AFN wants to work it
out and if so, how far is the AFN willing to go to achieve what is
desired?
MS. KITKA understood that the committees had requested an opinion
for the Secretary of Interior on this proposal. She said that she
was waiting, as is the committee, on that response. Ms. Kitka
offered to discuss changes to the proposal, but the AFN would want
the state to come into compliance with ANILCA with no amendments to
ANILCA. She believed there are ways to change the proposed
constitutional amendment to achieve that.
REPRESENTATIVE BARNES emphasized that the proposed constitutional
amendment certainly speaks to the spirit and intent of ANILCA.
Furthermore, it could be made to work if people were willing to
come forward to make it work.
CO-CHAIR OGAN concurred with Representative Barnes.
Number 1919
CO-CHAIR SANDERS said that he respected Ms. Kitka and her position,
although he disagreed with her position and didn't feel that the
AFN has made a compromise in his seven years or ever.
REPRESENTATIVE WILLIAMS rebutted that "we" have been compromising
all the time. He expressed the desire to hear from the naysayers
with regard to the reasoning behind not wanting to live up to an
agreement made in 1971. He was reminded of the Boldt decision. He
commented that the oil is practically gone. Perhaps, something
else is necessary. He stressed that Alaska Natives have
compromised since day one.
REPRESENTATIVE WILLIAMS turned to ANCSA and stated that oil pushed
ANCSA. He informed the committee that after 1969, the oil pipeline
which was being made in Japan and shipped to Alaska was rusting.
At that time, there was a big push to settle the issue or else the
pipeline would have to be returned to Japan. Once again, he asked
members to tell him why they don't want to live up to the agreement
once the oil is gone.
REPRESENTATIVE MASEK stated that the discussion should remain on
the CS before the committee since there are many who wish to
testify on this issue.
REPRESENTATIVE BARNES offered to debate Representative Williams at
an appropriate time.
REPRESENTATIVE WILLIAMS commented that thus far there has been only
debate, "nothing has been said."
Number 2125
REPRESENTATIVE JOULE reminded the members that during the last
special session on this issue, there was compromise to the point of
considerations to ANILCA.
MS. KITKA reiterated that the AFN has worked closely with those
Native and rural members in the Bush caucus.
CO-CHAIR OGAN commented that there hasn't been movement enough to
arrive at a compromise. Co-Chair Ogan stated that he was willing
to place a constitutional amendment on the ballot that placed
subsistence over any other use.
Number 2228
MIKE WILLIAMS, Chairman, Alaska Inter Tribal Council (AITC),
informed the committee that AITC is a statewide tribal consortium
that was established in 1993. That was around the same time that
the Department of Interior published its list of 226
federally-recognized Alaskan tribes. Of those 226
federally-recognized Alaskan tribes, 180 are members of AITC. Mr.
Williams emphasized the importance of the Congress' intent,
including Title VIII as part of ANILCA. The best and most accurate
record of the legislative intent for ANILCA is embodied in a
presentation to Congress by the Congressman Morris Udall on
Novermber 12, 1980. He informed the committees, "Congressman Udall
referred to the fact that Title VIII grew directly out of Congress'
wish to fulfill the promise it made to Alaska's Native people even
as it extinguished our aboriginal hunting and fishing rights with
the passage of the Alaska Native Claims Settlement Act of 1971."
Mr. Williams quoted Cogressman Morris Udall as saying:
I am particularly proud of the subsistence language in
ANILCA because it fully reflects the commitment that was
made to the Alaska Native people at the beginning of the
Ninety-fifth Congress. At that time, we promised that
any law would recognize the importance of subsistence and
would contain management provision which recognize the
responsibility of the federal government to protect the
opportunity from generation to generation so that Alaska
Natives now engage in subsistence uses. Their
descendants and their descendants' descendants will
determine for themselves their own cultural orientation
and the rate and degree of evolution, if any, of their
Alaska Native culture.
MR. WILLIAMS acknowledged that some criticize ANILCA subsistence
protections as a violation of the rights of Alaska's non-Native
citizens. In response to those critics, Mr. Williams quoted
Congressman Morris Udall as saying:
Although there are many non-Natives living a subsistence
way of life in rural Alaska, which may be an important
national value, the subsistence title would not be
included in the bill if non-Native subsistence activities
were the primary focus of concern. Rather the
subsistence title and the other subsistence provisions
are included in recognition of the ongoing responsibility
of the Congress to protect the opportunity for continued
subsistence uses in Alaska by the Alaska Native people.
A responsibility which is consist with our
well-recognized constitutional authority to manage ....
TAPE 99-41, SIDE B
MR. WILLIAMS continued Congressman Morris Udall's quote:
... as a demonstration of the federal government's
awareness of its trust responsibility to Alaska's
indigenous populations or Alaskan tribes.
Number 0031
MR. WILLIAMS pointed out that all the members have sworn to uphold
the state's laws and its constitution. Among Alaskan citizens, are
some 80,000 members of 226 Alaskan tribes each of which has a
distinct and separate government from city and borough governments.
Some tribes reestablished their governments with councils based on
the Indian Reorganization Act of 1936, while other tribes maintain
their ancient traditional councils. All of those tribal
governments have common a aspcet, a government to government
relationship with the U.S. which is mandated by the Indian Commerce
Clause of the United States Constitution. He emphasized that
history has much to do with ANILCA. Title VIII was a good faith
settlement with the Congress and the State of Alaska to accept a
"rural" rather than "Native subsistence preference" on Alaska's
federal public lands. Mr. Williams said that the state has yet to
fulfill its part of that agreement. Instead, Title VIII has been
attacked as if it were a conspiracy to rob non-Native Alaskans of
their hunting and fishing rights. Alaskan tribes stand on an
inherent right to maintain their communities and way of life. He
said that Alaskan tribes respect the authority of the state in as
much as it touches their lives. However, they don't support the
State of Alaska when it attempts to undermine tribal authority.
Nor do tribal governments support any attempts to diminish hunting,
fishing and gathering tribal rights. Therefore, Mr. Williams wrote
to Secretary of Interior Babbitt informing him of "...AITC's
opposition to any legislative resolution that would permit rather
than require the Alaska Legislature to bring state laws into
compliance with the federal subsistence protections contained in
Title VIII of ANILCA." Mr. Williams submitted a copy of his
testimony and letter to Secretary of Interior Babbit for the
record.
Number 0320
MR. WILLIAMS turned to the CS before the committee. He agreed that
subsistence use should be recognized in the Alaska Constitution as
the highest and best use of Alaska's renewable natural resources.
Mr. Williams stated that he couldn't support the CS for many
reasons. Firstly, the CS doesn't comply with Title VIII of ANILCA
which doesn't restrict the subsistence priority to indigenous
species nor does ANILCA use the term "reasonable opportunity." He
pointed out that ANILCA provides a priority for subsistence uses
which are defined as "customary and traditional uses by rural
Alaska residents of wild renewable resources." Under Title VIII,
when there isn't enough fish and game to satisfy sustained yield
and provide for all beneficial uses, other uses must be eliminated
before subsistence uses of rural Alaskans can be restricted. Under
the CS, all Alaskans would qualify as subsistence users. Their
uses along with sport and commercial uses could continue unabated
to the point at which there is a shortage such that the state would
be forced to restrict subsistence uses of everyone, except those
that live closest to the resource. Therefore, the hunters from
Anchorage would have the same the right, for example, to hunt moose
in the Yukon Kuskokwim Delta as rural residents of that region;
even if there were not enough moose to meet the needs of the
residents in that region. That is not what ANILCA requires. He
explained that, in the above example, ANILCA would say that the
urban users should be eliminated before the uses by rural residents
can be restricted. "In other words, the priority under ANILCA is
restricted to those living closest to the resource, only if the
resource in question is not adequate to satisfy the subsistence
needs of the rural residents." Furthermore, ANILCA requires
customary and direct dependence on the resource as well as the lack
of an available alternative resource in order for rural residents
to require a subsistence priority. In conclusion, Mr. Williams
noted that he has attached to his testimony a point by point
analysis of AITC's position on the CS.
Number 0632
ROB HOLT, President, Alaska Professional Hunters Association
(APHA), informed the committee that APHA has 600 individual
members. The APHA represents about 75 percent of Alaskans who are
actively involved in guiding. He noted that these people bring
into the state's economy $70-$100 million per year due to the
access to the resource afforded to nonresident hunters. What the
APHA does is an important heritage belonging to all Alaskans. Mr.
Holt stated that APHA has consistently supported continuance of the
subsistence lifestyle, especially by Alaska's Native people.
However, we [guides] can't survive under federal management. He
noted that many losses have occured due to federal meddling. For
example, the people in Hoonah can't hunt seals in Glacier Bay, but
a cruise ship can enter Glacier Bay. Access to over 50 million
acres has been lost due to the two land acts by the federal
government. Mr. Holt said that through federal management, the
Native people have lost the ability to guide people for polar bear,
walrus, and other sea mammals which would be a large economic
benefit for people living in those areas. Due to the language of
ANILCA and the way federal land managers operate, there is the loss
of access to hunting on federal land as a guiding industry. He
explained that is not related to anything the federal board does,
but rather the interpretation by federal land managers. All of the
recent losses were incurred under the guise of providing for the
subsistence priority whether through the state or the federal
government.
MR. HOLT stated that changing Alaska's constitution will not
necessarily serve us any better, unless something can be set aside
for nonresidents supporting the guiding industry. Therefore,
guides should be recognized as Alaskans utilizing a resource to
support their family. With regard to the constitutionality of
Title VIII, he believed it was reasonable for the Governor to ask
the U.S. Supreme Court whether this is in the framework of the
Constitution of the United States. If that were done, the state
could determine which path to take and achieve more rapid progress.
MR. HOLT pointed out that the guiding industry has great potential
with regards to economic diversity in rural Alaska. However,
giving 100 percent of the opportunity to a user excluding a
nonresident would not achieve the aforementioned economic
diversity. Mr. Holt pointed out that involving Alaskan Natives in
the guiding industry isn't easy, but those in the industry are
interested in pursuing that. He didn't want to lose that
opportunity. Although Mr. Holt didn't want to speak for Alaskan
Natives, he observed that Alaska's Native people have social,
political, and self-determination needs as well as the need to have
more control in determining their own fate. That desire is just
now being heard due to their ability to draw attention with this
issue. Therefore, he believed subsistence is being used to bring
other things to the table. He said that if he could have things
his way, the people of Alaska would come together to design a
federal law answering those questions. Perhaps, that would result
in a better law for Alaskan Natives and release the grip the
federal government has on his hunting heritage. Mr. Holt commented
that he would like to go to Washington, D.C, to fight for the needs
of Alaskan Natives in return for the continued existence of his
lifestyle. Mr. Holt didn't want to be a position to fight against
the needs of Alaskan Natives in order for his survival.
MR. HOLT surmised that there are two decisions. The guiding
industry will not fare well under continued federal managment.
Furthermore, the guiding industry won't fare much better under
state management, unless it is recognized as an industry needing an
allocation share. He predicted the guiding industry in Alaska will
ended within 10-15 years under one scenario. If the state's
constitution is changed without recognition of some things, the
guiding industry will end in 15-20 years.
CO-CHAIR OGAN acknowledged the contribution guiding makes to the
economy of the state, specifically in rural Alaska. He noted that
he has worked on legislation to make it easier for those in rural
Alaska to become assistant guides by eliminating testing.
Number 1293
DAVID BEDFORD, United Fishermen of Alaska (UFA), informed the
committees that there are 15,000 permit holders and 21,000 crew
members who participate in Alaska's commercial fisheries.
Commercial fishermen recognize the importance of subsistence and
many commercial fishermen are also subsistence fishermen. The UFA
supports placing a constitutional amendment on the ballot which
would permit Alaska to come into compliance with ANILCA. The state
has 40 years of effective preservation of the resource and
effective management which has provided for all of the uses of the
resource in the state. Now the question is whether to choose the
path that would hand much of that to the federal government. In
Mr. Bedford's opinion, a federal take over would have grim results.
He explained that federal managers aren't willing to define
subsistence harvest, therefore, ADF&G will be required to provide
for conservation as well as the unspecified subsistence
requirements. He predicted that at first there will be reductions
in Alaskan harvests in commercial fisheries and possibly in
sportsfisheries as well. Furthermore, the federal government has
made it clear in published regulations that it will be satisfied to
manage only on federal lands. Mr. Bedford pointed out that federal
managers have a single client and are charged by ANILCA to provide
for subsistence uses only. Federal managers have no knowledge or
commitment to any other use by any other Alaskan. Therefore,
sportsfishermen, commercial fishermen, and commercial
sportsfishermen will have little relevance to federal managers.
MR. BEDFORD commented that the status Alaskans will have if the
federal government takes over was illustrated in the Federal
Subsistence Board's consideration of the circumstances under which
the board would exert extraterritorial jurisdiction. He informed
the committees that no commercial fisherman or representative of
the state was invited to these discussions which was a closed door
meeting. He believed such could be expected under federal
management. Mr. Bedford acknowledged that many believe that if
Alaska comes into compliance with ANILCA, Alaska will have
surrendered management of its resources. He disagreed with that
belief because if Alaska assumes authority, Alaskans will publish
regulations and Alaskan managers will implement those regulations.
Mr. Bedford expressed much faith in ADF&G which has done a good job
managing Alaska's resource over the past 40 years. He recognized
that, due to the absolute priority in ANILCA, there will be times
when there will be conflicts and other uses of the resource will be
curtailed. He indicated that the Alaskan boards of fish and game
would be able to do that with the least impact to the other uses of
the resource. However, he had no such faith under federal
managers. In conclusion, Mr. Bedford urged the committee to
seriously consider passage of an amendment to Alaskans that will
effectively maintain state management.
Number 1545
MR. BEDFORD, in response to Representative Croft, addressed the CS
before the committee. In reading the CS, Mr. Bedford didn't
clearly understand the language. He didn't see a definition of the
subsistence users. The CS appears to be an "All Alaskans in
Alaska" priority which he predicted would end commercial fisheries,
commercial sportsfisheries, and marine sportsfisheries. He
provided the following example:
If we try to trace a stock of fish through on proximity
to the resource, and we start with King Salmon that go to
Cook Inlet. Those are fist harvested in small numbers in
Kodiak. So, if proximity to the resource means harvest
in a terminal area, then we must assure that none are
caught in Kodiak. Therefore, the Kodiak fisheries fall.
They are then harvested in commercial fisheries and sport
fisheries, marine sportsfisheries in Cook Inlet. If
proximity to the resource means the terminal area, then
those fall. Then, once they get back to that terminal
area, the question is who then has access to the
resource. And it appears to me, rather than zip code
it's by tape measure. How far are you from that river?
Number 1623
KATHLEEN GRAVES testified via teleconference from the Kenai. She
complimented the Republican Majority for taking a strong stance and
pursuing a reasonable solution while being vilified in the media.
Ms. Graves commented that some of the comments Mr. Williams quoted
of Congressman Morris Udall were actually entered in the
congressional record after the passage of ANILCA. She noted the
Ninth Curcuit Court of Appeals case in which Judge Kleinfeld
declared the following: "That the subsistence provisions of the
Alaska National Interest Land Conservation Act of 1980 are not
Indian legislation." Furthermore, Mr. Williams use of Congressman
Morris Udall's statement that the statute was primarily developed
for the benefit of Alaska Native residents of Alaska's rural
villages, who are dependent upon subsistence uses is an
illegitimate use of the quote. Mr. Graves quoted Congressman
Morris Udall as saying:
Contrary evidence abounds in the Senate committee report
on this bill which is at pains every time it mentions
rural subsistence to make it clear that it is not only
speaking only of what Natives do. Better guidance is
available from the words of the law (indisc.) wrote.
That law expressly rejected the proposition that
subsistence provision was only for Natives. The statute
says that its purpose is to protect subsistence uses by
rural residents of Alaska, including both Natives and
non-Natives. There could not be a plainer declaration
that Congress was not passing Indian legislation.
MS. GRAVES noted that quote was from the April 28 Fairbanks Daily
News Miner. Ms. Graves informed the committee that Congressman
Morris Udall's brother Stewart Udall produced a pamphlet entitled,
"Alaska Natives and Their Subsistence Rights" in 1977 when she was
in Washington, D.C. She quoted Stewart Udall as saying:
It is not suprising that the Alaska Legislature dealt
gingerly with Native subsistence issue and made no effort
to deal with the rights of the Alaska Native as a special
class of citizens under its constitution it's patent that
the Alaska Legislature cannot grant meaningful
subsistence rights to the Alaska Natives or to any other
group of citizens. Thus, the State of Alaska cannot
under its constitution, single out its Natives or any
other distinct class of citizens and grant them special
subsistence rights. This is particularly true with
respect to fishing for Article VIII, Section 15 of the
constitution prohibits the legislature from creating any
exclusive right or special privilege of fishery.
MS. GRAVES observed, while in Washington, D.C., that there was
discontent with the extinguishment of aboriginal hunting and
fishing rights. A way to get around that was to create a situation
in which the state was accused of not providing for the subsistence
needs of aboriginals. There was an effort to stimulate the
Congress to step up to its responsibilities to Indians. There was
also an effort to stimulate more involvement of IRA councils under
the Indian Reoganization Act of 1936. Ms. Graves viewed that as
basically a political move for sovereignty.
MS. GRAVES commented that she didn't believe the AFN desired
equality, but instead preferred the special legal prescription they
have been given. She believed that ANILCA should be litigated and
changed to refer to "personal consumption priority." Furthermore,
ANCSA should be enforced. She also noted the federal trust owed
under the Fourteenth Amendment as well as the need to maintain
Alaska's statehood in tact.
Number 1876
DICK BISHOP, Alaska Outdoor Council (AOC), stated that the
legislature must do what is right for Alaska. The legislature has
the opportunity and responsibility to devise a solution which
addresses the needs of Alaskans, including those needs related to
the uses of fish and wildlife resources and Alaskan's civil rights.
The AOC does support subsistence uses and lifestyles, but not a
discriminatory priority such as "rural." Furthermore, AOC opposes
conforming to federal law on subsistence. Mr. Bishop presented a
map that displayed in red the areas that would be under federal
fisheries management if the federal government takes over. If the
state conforms to the federal law, he predicted that all fisheries
management would come under federal management. The statement used
by the Governor that the state must conform to federal law in order
to have state management is an oxymoron and will not happen.
Furthermore, the state will be obligated to implement federal law
and the federal courts will oversee the implementation of that.
Mr. Bishop addressed an earlier comment that matters related to
state regulation will simply go to state court. He said that isn't
true and pointed to the 1989 Bobby case which was taken to the
federal court directly. Judge Holland ruled that the state wasn't
regulating correctly and clarified how the federal law works even
under state implementation. Judge Holland said that need, the
availability of alternate resources, or a shortage of the resource
isn't the standard. "The standard is customary and traditional use
by rural subsistence users." Judge Holland instructed the state,
the Boards of Fish & Game, to rewrite the regulations for his
review as to whether the state was properly implementing the
federal law. That illustrates the nature of federal implementation
of the law.
MR. BISHOP said that he believed the most fundamental reason for
objecting to conforming to the federal law is that it is a
violation of Alaskan civil rights. Mr. Bishop turned to a similar
situation under Governor Cowper. He paraphrased comments during
that time from a Soldotna lawyer, Chuck Robinson. Mr. Bishop
paraphased Mr. Robinson as saying, "I oppose conforming to the
rural subsistence priority in federal law. It violates my civil
rights. It violates the civil rights of the majority of Alaskans.
I'm a black man. I know something about civil rights." The then
chairman of the Anchorage NAACP inquired as to the discussion about
civil rights for the majority and commented, "Civil rights are for
the minorities." Such comments were of great concern to Mr.
Bishop.
MR. BISHOP continued by saying that the federal law is a poor
conservation law. The federal law allows for the sale subsistence
priority taken resources with no monetary limit. Furthermore, the
federal law restricts nonrural Alaskans opportunities for common
use. Mr. Bishop said, "No other state has the threat of federal
pre-emption of state responsibility for the management of resident
fish and wildlife such as we are faced with." He reiterated
earlier comments with regard to the belief that Alaska will face
federal court enforcement whether the state or federal government
operates the system. Also there will not be grounds for future
challenges of the federal law if the state adheres to the federal
law. Mr. Bishop indicated that if the federal government can't be
kept out then they should be invited in which would be the case if
the constitution is changed to conform to federal law. In
conclusion, Mr. Bishop emphasized the importance of amendments to
ANILCA which are linked to the constitutional amendment, if a
constitutional amendment occurs.
TAPE 99-42, SIDE A
Number 0031
THOMAS TILDEN, a Dillingham resident, came forward to testify. He
informed the committee that he is president of his village
corporation, a commercial fisherman, an AFN board member, a Bristol
Bay Native Association member, a church board member, a former
mayor of Dillingham and a former city councilman. He commented
that he and many Alaska Natives have lived in small communities
where they were taught to share and think collectively. Therefore,
he found it difficult to understand why others don't realize what
Title VIII of ANILCA does for the Alaska Native people. He said
he believes that the proposed CS does not address the Alaska Native
culture. The CS does not talk about culture or traditional use,
both of which are needed by the Alaska Native people. He shared
Representative Williams' thoughts regarding compromise; the Alaska
Natives have compromised. He also shared Mr. Bishop's thoughts
regarding equality and wished this was an equal world, but it is
not.
Number 0240
MR. TILDEN pointed out instances of inequities between rural and
urban areas. He indicated that rural residents are accustomed to
living with unequal attention and funding from the State of Alaska.
Recently, in Anchorage a woman ran down 15th Avenue with a child in
her hands being pursued by a batterer. That woman was helped by a
passerby and taken to a shelter. The assailant was taken to jail
and justice was served. That same incident has happened in one of
the communities Mr. Tilden's represents, and it didn't have a happy
ending. There was no Village Protection Safety Officer (VPSO) in
that village. The nearest law was 100 miles away. When the VPSO
was contacted on the phone and told of the domestic violence
incident, he said he had other pressing things to do, but he would
come down as soon as he could. Three days later, he responded and
asked whether or not he was still needed in that community. That
woman and the children who fled in that village felt the very same
thing as the woman in Anchorage, but there is no equal justice.
MR. TILDEN turned to subsistence in regards to what it means to
Alaska Natives and what it means to urban people. Between those
two there is a vast difference in the interpretation of the meaing
of subsistence. He believed that if October 1 arrives and the
legislature has not passed an amendment that complies with ANILCA,
the legislature will be blamed for letting the federal government
in. It is the responsibility of the legislature to come into
compliance. He noted a recent trip to Washington, D.C., during
which he heard and saw the tape of the President saying that time
is running out. He also heard Secretary Babbitt and Secretary
Glickman say there will be no amendments to ANILCA. He heard
Senator Stevens and the congressional delegation say there will be
no more moratoriums. He firmly believed all of them. Mr. Tilden
hoped that the legislature would take this issue seriously, vote on
it, comply with ANILCA and take care of more pressing problems like
education, alcohol abuse, domestic violence and jobs.
Number 0573
CO-CHAIR OGAN agreed that different groups think differently and
that Native culture has learned to share collectively, while the
Caucasian culture is oriented more towards individual rights.
Number 0730
JOHN PALMES, a Juneau resident, came forward to testify. He
commented that it is not the zip code that is important, but rather
community membership and the expectation of the ability to utilize
local resources for personal consumption. He noted that rural
communities are based on fish and game use. Mr. Palmes expressed
concern about all the tourists that fish in Juneau. There are more
king salmon caught by nonresidents than by residents in the Juneau
area and in Southeast Alaska. Perhaps, that is acceptable since
Juneau residents can obtain employment in order to purchase food
from the grocery store. However, that can't be allowed to happen
in rural areas. Therefore, he suggested that it is not Alaskans
one has to worry about, it is the pressure from outside. He
commented that just because urban residents cannot get a priority
]doesn't mean anybody shouldn't have one. It would be smart to
have a community resident preference or a community member
preference, not an urban or rural distincition. Residents of
Anchorage, Ketchikan, Fairbanks or Juneau shouldn't be excluded
from a preference.
MR. PALMES said if subsistence is the highest and best use of
resources, then as many Alaskans as possible should get to
participate rather than as few as possible. He didn't necessarily
agree that just because someone is given a priority that he/she
will use it. However, there will be a time when there has to be a
distinction between Alaskan use of resources and other people's
uses of Alaska's resources. With regard to equal access, Mr.
Palmes didn't understand what equal access would be good for when
the resources have dwindled. He emphasized that the rural
preference puts Alaska in the position of having to maintain an
abundance of the resources in rural areas in order to support
commercial fishing, sports fishing, and subsistence fishing. The
resources can't be allowed to fall to equal access in times of
scarcity. He said that was the wrong approach to management. In
conclusion, Mr. Palmes restated that this priority would place the
urban majority in the position of having to keep the resources in
rural Alaska abundant. He acknowledged that there is inequality in
distribution of money in Alaska. When it comes down to deciding
whether schools, prisons or fish and game management will be
funded, something like this federal oversight will be necessary in
order to keep the state honest.
Number 1123
RAY NIELSEN, JR., a member of Kiksadi clan of the Sitka Indian
Village and Tlingit, testified via teleconference from Sitka. He
informed the committee that he is enrolled in the federally
recognized Sitka Tribe of Alaska and is a member of the local fish
and game advisory committee and the Alaska Native Brotherhood (ANB)
subsistence committee. Mr. Ray Nielsen said the word subsistence
is the terminology of the State of Alaska, and it carries too much
baggage. Alaska Natives recognize the term customary and
traditional as referring to their food and resources. The
customary and traditional way of life keeps him in Sitka as he is
a hunter, harvester, gatherer, provider, teacher, cook and user of
the traditional ways of life. Mr. Ray Nielsen noted that he
maintains the customary and traditional right to trade, barter and
sell Native customary and traditional foods and resources. He
acknowledged that there has, is, and always will be a battle over
attempts to make, legalize their on-going practices, uses and ways.
MR. RAY NIELSEN recognizes, acknowledges and practices the ways and
rights of the Native people. Subsistence is more than a way of
life; in many cases it is life. Alaska Natives must be able to
exercise their inherent rights to hunt, fish and gather in their
customary and traditional lands. He commented that Alaska Native
subsistence, customary, and traditional foods and resources are
preferred and are enjoyed by Native and non-Native peoples. He
identifed those non-Natives as those who are married to Natives or
adopted into a clan, those who are active in ANB and ANS [Alaska
Native Sisterhood], and those who support and attend Native
functions. Because the recognized tribes of Alaska have a close
working relationship with the federal government, it is only
natural for them to look forward to October 1. The tribal/federal
relationship far surpasses the tribal/state relationship concerning
subsistence and customary traditional rights.
MR. RAY NIELSEN stated he is not in favor of a compromise of Alaska
Natives' subsistence and customary and traditional rights or
amendments to ANILCA. He indicated the need for a consitutional
amendment which provides for a subsistence, and customary and
traditional priority. He specified that everything Alaska Natives
fight for on their customary and traditional lands also applies to
Native corporate land which is Indian country. Alaska Natives look
forward to the co-management, the management, the co-enforcement
and enforcement of their aboriginal rights. Tribal governments and
Native peoples are ready to step in and help with the transition
with the federal government.
CO-CHAIR OGAN handed the gavel to Chairman Kott.
Number 1308
JOHN NIELSEN, Tribal Counsel for the Sitka Tribe of Alaska,
testified via teleconference from Sitka. He informed the
committees of a position statement which opposed compromise related
to the subsistence issue and opposed any amendments to ANILCA. He
echoed Mr. Ray Nielsen's comments that a constitutional amendment
must require the state legislature to pass a law providing for a
subsistence priority. Mr. John Nielsen then spoke as a tribal clan
member from Sitka, Alaska, who gathers for potlatches when needed.
Clan leaders provide guidance to grandchildren and clan members.
He commente that the Native people are taught to use, not to abuse
and to take only what is needed.
MR. JOHN NIELSEN pointed out that the charter boats are not
regulated, and they should be on IFQ [Individual Fishery Quota]
just like commercial fishermen. Charter boats are fishing in the
fish stream and snagging the fish, and no one is there to check
them. The ADF&G says they don't have the manpower to do such. He
expressed the need for ADF&G to review a concerted measure on their
management practices.
Number 1456
JOE WILLIAMS testified next via teleconference from Ketchikan. He
recalled earlier comments regarding the extinguishment of
aboriginal rights through the 1971 Alaska Native Lands Claims
Settlement (ANCSA). In that extinguishment, Alaska Natives gave up
the aboriginal rights. He asked those who have a strong opposition
to ANILCA what did they or their ancestors give up. "A deal is a
deal. Live up to the words." Alaska Natives compromised in ANCSA
in 1971, in ANILCA of 1980; it is time that the State of Alaska
live up to the deal which was agreed upon in 1980. He pointed out
that the governor of 1980 said that "rural" versus "Native" is the
only way it is going to work.
Number 1607
MARLENE ZUBOFF, Executive Director, Angoon Community Association,
testified via teleconference from Angoon. She commended the
legislature on their hard work on this issue. She agreed with
AFN's Ms. Kitka and the AITC delegation in respect to how those
groups represented the State of Alaska. She thanked her brothers
in Sitka tribes and Ketchikan for what they said. She also thanked
Mark Jacobs in Sitka who discussed about the disclaimer clause
before Alaska could become a state. Alaska Natives have always
concluded that we are the aborigines of the land, who have always
taken care to be natural managers of the land without taking or
using more than necessary from the land. Ms. Zuboff pointed out
that Alaska Natives they use less than two to four percent of the
resources within the State of Alaska.
MS. ZUBOFF expressed concern that the state is looking to this two
to four percent, when there are many more important issues that are
not being addressed. A decade is a long time to be discussing
subsistence; it is time to move on. Ms. Zuboff informed the
committee that she testified in March in Juneau when the term
"rural" was being looked at as to whether or not a ferry system
came into Angoon. The community of Angoon argued with that. She
expressed concerns about the pollution from the cruise ships and
noted that communities such as Angoon weren't considered. She
informed the committees of the "pus sacs" she has found inside
fish.
MS. ZUBOFF noted the importance of the elected officials to be very
objective when listening to the people in Southeast and across the
state. Alaska Natives wholeheartedly agree that there should be no
amendment to ANILCA. Ms. Zuboff hoped that the legislators would
listen to the Alaska Natives and review other concerns such as
education. She pointed out that the Alaska Natives are not arguing
about "rural." She discussed how the community of Angoon shares
within the community, especially with the elders and families who
don't have the wherewithal to obtain their own resources. Ms.
Zuboff stressed the importance of the protection of the resources
by the legislature. She commented that the commercial fisheries
have caused the fisheries to be less plentiful than in the 1960s.
She reiterated her concern with regard to the numerous cases of
"pus sacs" in the fish. In conculsion, Ms. Zuboff appreciated the
time and effort of the legislature on this issue.
Number 1894
MAXINE THOMPSON, Mayor, City of Angoon, testified by teleconference
from Angoon. She informed the committee that she too testified at
the March meeting in Juneau and would relate those comments again
today. She said that the issue of traditional and customary use of
resources has been an on-going debate since the early 1900s and
perhaps even earlier. She related testimony given by an elder
during the early 1930s; the elder's statements were in defense of
access to traditional and customary resources. That elder
questioned why, after all these years of use of these resources,
that Alaska Natives have to defend their actions. That continues
today. Therefore, she understood testimony she heard in the Senate
Resources Committee from Alaskan Natives who favored the federal
takeover. At the same time, she expressed concern that this issue
has become a divisive issue for Alaskans.
MS. THOMPSON recalled a legislators question, "...as to why ... the
people in 102 communities, as reported by Julie Kitka, said they're
dependent on subsistence; that this should not be an issue of
concern." As a mayor of a community that has a consistent decline
in resources from the state and federal government, the community
is dependent upon subsistence. The community doesn't have a cash
economy, and therefore is dependent upon subsistence both by
preference and by having no choice at all.
MS. THOMPSON explained that the Alaska Native diet is
predetermined, Alaska Natives have been eating these foods for
centuries and will continue to in the future. She agreed with
Representative Joule's comments regarding the continued compromise
by the Alaska Natives. The legislature has had ten years to deal
with this issue and now as the twelfth hour approaches, the debate
continues over use of the term "rural" or use of a statement of
locality. She commented on testimony heard at other hearings on
subsistence in which representatives from the Alaska Association of
Commercial Fishermen and the Alaska Professional Hunting
Association both of which favored an amendment to come into
compliance with ANILCA. She urged the legislature to look at this
as an Alaskan issue; not as a rural and urban issue. Alaska
Natives have already compromised on the Native subsistence
allowance and opted to use "rural," and now the debate is over
"rural." This is a divisive position to take. Ms. Thompson said
that she didn't want to say she would prefer federal management
over state management. This is a landmark decision the legislature
is about to make. She urged the legislature to make the best
decision for Alaska.
Number 2136
PETER MCCLUSKEY, JR., testified via teleconference from Angoon. He
told the committee he is a Dog Salmon from Angoon Central House.
He appreciated AFN's work on behalf of Alaska Natives. He also
acknowledged Representatives Croft, James as supporters of Alaska
Native issues. With regard to comments about equal rights, Mr.
McCluskey said that Alaska Natives have never received such from
the state. Mr. McCluskey quoted from a speech by Robert Loescher
of the Sealaska Corporation:
A deal is a deal. Today I am addressing the topic of Native
subsistence rights. Where are we now in state and national
politics? Our subsistence lifestyle, hunting, fishing,
trapping and food gathering is at the core of Alaska Native
tribal existence. We, Alaska Natives, have continued to enjoy
to this day, the elements of this subsistence lifestyle that
have continued to enjoy that have been passed onto us by our
ancestors and thus endured from time immemorial. The Alaska
Native traditional subsistence lifestyles are characterized in
part by the teaching and passing on of respect for the
environment to fish and wildlife, survival in harvesting
skills, tribal ceremonies, spiritual belief, shared trade and
bartering and other cultural values. It describes in our real
sense who our ancestors were, and who we are and what we
intend to pass on to those who come after. Our tribal way is
to show concern by our actions for the well-being of those who
will come after.
The unanimous U.S. Court claimed this decision of October 1959
governing Tlingit and Haida claims of aboriginal title to
virtually every acre of land in southeast Alaska and in effect
confirmed that both the use and occupancy of the land and
utilization of the subsistence lifestyles were from time
immemorial.
He continued by informing the committees that the tribe in Angoon
is also federally recognized. He urged the legislature to support
a good decision. He commented that there are non-Native
subsistence users in Angoon, and residents have no objection to
that because it is a lifestyle. Those non-Natives are trying to
survive as well, and that is where sharing and bartering come in.
STEVE GINNIS, President, Tanana Chiefs Conference, Incorporated,
came forward to testify. Prior to being President of the Tanana
Chiefs, he was the Chief of the Native Village of Fort Yukon. He
informed the committees that for five years he has been a board
member on the National Congress of American Indians and is the
former president of the Alaska Inter-Tribal Council. He noted that
for many years he has been actively involved on the local level in
the Yukon Flats. From that experience, he gained much knowledge
about this issue.
TAPE 99-42, SIDE B
Number 0001
MR. GINNIS expressed pride that he is a Kutchin Koyukon Athabaskan
and a chief. He noted that it is interesting that this whole issue
has boiled down to a lawyer's haven. All those definitions that
are included in that law certainly don't reflect the Native
lifestyle.
Number 0071
MR. GINNIS thanked those on the committee who support a
constitutional amendment. He invited those who don't support a
constitutional amendment to the Yukon Flats to see for themselves
the devastation from high unemployment, alcohol, drugs, domestic
violence, et cetera in the villages. If this issue is defeated,
the Alaska Native people will be severely hurt. This is an issue
of survival. Mr. Ginnis viewed the subsistence lifestyle as the
only way to alleviate the aforementioned devastation in the
villages. He noted that his grandfather, who is a respected chief
in the Yukon Flats, didn't envision this kind of thing happening to
their people.
MR. GINNIS encouraged the committee to seriously think about what
would happen to the Native people. He represents over 14,000
Athabaskan people in the Interior, some 42 villages spread out over
the Interior of Alaska which would be the most impacted by this
issue. He reiterated his invitation for members to come out to the
villages and take a look at what they are making major policy
decisions on.
The gavel was returned to Co-Chair Ogan.
Number 0331
REPRESENTATIVE BARNES told Mr. Ginnis that she has visited quite a
few rural villages. She asked if at any time in the Yukon Flats
area, any people have been denied their subsistence rights.
MR. GINNIS replied absolutely not. He explained his involvement on
the "fish and game committee" and why he thinks that system works.
There was a serious decline in the moose population in the
southwestern part of the Yukon Flats National Wildlife Refuge which
involved two or three villages. Through cooperation of the state
biologist and the ADF&G employees, they were able to recommend to
the Board of Game a Tier II hunt area for that region. Through
those actions and through the Native voice being heard, they were
able to build up the moose population. From his point of view,
state management offers opportunities to work through the system to
ensure that the moose population and other resources sustain them.
He agreed the fish issue is more difficult to address than the game
issue.
MR. GINNIS stressed the improtance to realize that this all refers
to times of shortage, "this particular thing would kick in."
Currently, anyone can come out to Yukon Flats or wherever else to
hunt, trap, or fish in this state. The discrimination that people
are continuously referring to just doesn't apply.
REPRESENTATIVE BARNES pointed out that the discrimination being
referred to is language that has been requested to be placed in the
constitution. Some legislators believe the problem can be resolved
without that sort of language.
REPRESENTATIVE GREEN said he was impressed by Mr. Ginnis. With
regard to Mr. Ginnis' comments about the drug and alcohol abuse
problems in the villages, he inquired as to how such items are
obtained if the community is not a cash economy.
MR. GINNIS said that he didn't know how such was obtained. He
emphasized that the Rural Commission Report should be followed up,
the urban and rural division would be helped as well as issues such
as drug and alcohol abuse.
Number 0831
ALAN ZUBOFF, Chief, Dog Salmon Clan, testified via teleconference
from Angoon. He stated that in the development of Alaska, things
are going to happen which are not going to be sufficient in the
name of compromise. The Alaska Native culture mandates that they
protect the natural resources for their grandchildren. He wished
the committee could make a decision that will make everyone happy
that takes into effect the no compromise issue. There should be no
compromise. The legislators are voted in by people who are
subsistence users, whether it be Native or non-Native; therefore,
the committees should listen to the people and continue the
practices of the last ten years. "A deal is a deal."
Number 1002
DAVID KELLEYHOUSE, a member of the Alaska Outdoor Council Board of
Directors, informed the committees that his testimony is based on
over 20 years of professional fish and game management experience
in Alaska. He commented that after this testimony he may not
remain on the AOC Board of Directors. He pointed out that the
current federal subsistence law is extremely flawed. If the state
complies with it, it will mean the ultimate end of subsistence in
this state. While Alaska Native people believe the current federal
subsistence law is their salvation, it will be the end of
subsistence because federal policies will not allow for any active
management. They are subject to the whims of anti-use forces in
Washington, D.C. which will prevail in the end. The legislators
have to forge an Alaskan solution which, in part, entails amending
the state constitution to clearly identify subsistence as the
highest and best use of the resource ahead of other uses, but that
subsistence preference has to be during times of unusual historical
shortage. Furthermore, the proximity to the resource is germane.
He forwarded the idea of proximity in 1992 during that legislative
attempt to construct a new subsistence law. Proximity to the
resource makes sense in terms of efficiency of harvest and the
development of long traditions. He pointed out that it is
important that such a preference must be in areas characterized by
long-term subsistence dependence on the particular resource that is
in a state of shortage.
MR. KELLEYHOUSE informed the committee that he had drafted some
language that incorporates all of these things as well as the
sustained yield principle, which the federal law does not have.
Without sustained yield management, there will be no subsistence,
no commercial fisheries or any opportunity for use of the
resources. He encouraged the committee to take his proposed ideas,
not necessarily the wording. The language would protect the
interest of the Alaska Native people that are truly worried about
their future. One of his most difficult jobs as director of fish
and game was to maintain a level playing field for all Alaskans,
and the constitution allowed him to do that. He urged the
committee to forge an Alaskan solution. It will require either
amendment of ANILCA or a test of its constitutionality. The state
cannot live with that law. It is not in the best use of
subsistence uses, anyone else, or the resources. [He provided a
document but it was not distributed to the committee at that time.]
Number 1294
CALEB PUNGOWIYI, Kawerak, Incorporated, came forward to testify.
He shared examples of how subsistence priority has worked in the
real world in the past nine years when the federal government has
managed the game on federal land. When both federal and state
managers feel that a game population is reduced to a point where
they must restrict take, it has been due to a conservation concern,
not to protect subsistence. In most cases, the take is restricted
to Tier II level. In such a case, the population is at the point
where the departments must take stringent actions so that a very
limited number of animals can be taken by a very limited group of
people. For example, the federal and state governments have
decided that 35 Musk Ox can be taken on the Seward Peninsula. That
is allocated on the basis of one's community and the applications
for the Tier II permits. In the cases where hunters within
communities obtain such a permit, it becomes a community allocation
or resource and the hunters share with the community. He related
other instances of such limits placed on fish and game because of
conservation concerns, not to protect subsistence.
MR. PUNGOWIYI reported that Nome is in a Tier II fishery for the
first time in Alaska's history. Since 1989, Nome has been under
Tier I fishery and people get permits to subsistence fish in marine
and inland waters. The Tier I permit allows the taking of 100
fish. However, the fish population has been declining such that
last year the Board of Fisheries limited Nome area fisheries to
Tier II. The board limited the fishery to 20 people with a take of
100 fish each. This year the Nome area fisheries are limited to
Tier II. They have 20 people who were selected out of 75 who
applied. Nineteen were from Nome and one was from Anchorage. Out
of the nineteen in Nome, one was a non-Native family. The fishing
was so bad that of those 20 with the Tier II permits, only one
family got one fish and another family got 20 fish; the rest didn't
get any fish because ADF&G closed the fishing because no fish were
getting into the waters. He emphasized that when the stage of
subsistence priority is reached, it becomes very limited. He also
informed the committees of the conservation concern in Nome in Unit
22B, the ADF&G staff in Nome will make a proposal to the Board of
Game this coming fall that will eliminate nonresident hunting.
Again, the department is not because protecting subsistence, the
proposal is a result of conservation concerns regarding the
decrease in population of large bulls to the point where the
department feels the need to limit the number taken. He commented
that it is a long process of getting to Tier I or Tier II. In Nome
where the ADF&G has concerns regarding the game populations, the
department either restricts the number of days that one can hunt or
restrict an area where one can hunt. The other areas with more
population have a more liberal season. To say that the sky is
going to fall because of subsistence is totally erroneous.
Number 1635
ALEX SINYON, President, Tetlin Native Corporation, came forward to
testify. He noted that he has been listening four hours to the
committee talk about his lifestyle. He said he thinks that many of
the committee don't seem to understand the way of life lived in his
area as well as other villages.
MR. SINYON referred to earlier testimony in which various members
said they had come a long way on this issue, but he noted that they
haven't come his way yet. The legislature has been cutting alcohol
programs and school funding and other programs. He informed the
committee that he has been looking for a job the last two years
trying to work with the alcohol program, and he couldn't even get
hired from his own corporation. This is the life he has had to
live. He said that he eats muskrat, porcupine, ducks, moose and
caribou just as he always has. He asked if they were trying to
take all that away from him and his family. Subsistence lifestyle
is the way of life for many of his people. Mr. Sinyon stated that
there is a difference, to him, between rural and urban. He
referred to a situation in Fairbanks where someone shot a moose
down and just left it. That hurt him because that is a waste of
his food. In conclusion, Mr. Sinyon commented that without work,
they go hungry and have to live off the land.
CO-CHAIR OGAN assured Mr. Sinyon that no one in the legislature
wants to take away one's ability to live off the land.
MR. SINYON responded that by not complying with Title VIII, he
believed that the legislature is taking away the ability to live
off the land.
Number 1876
HERBERT EDWIN, Tanana Tribal Council, came forward to testify. He
informed the committee that he grew up in a culture that taught him
a religion about the land. He wore a medicine bag, sang Indian
songs, has gone into the woods and prayed to the spirits because
that is what his grandfather and father did. He asked the
legislature to simply protect his right to do that so he will be
able to teach his children and grandchildren. He discussed how his
daughter has expressed the desire to learn those things as well.
The spiritual concept comes from the land and the animals that he
eats and respects every day in his prayers.
MR. EDWIN urged the committees to bring this to a constitutional
amendment in some manner so all Alaskans can vote on this. Alaska
Natives have to protect their natural right to fish out of the
rivers and lakes. Alaska Natives need to be able to do so without
being thrown in jail or ostracized by anybody. He clarified that
he is asking for an indigenous right that has been passed on. It
is a basic human right to provide for a family; it is a religious
right to practice his religion which is protected under the U.S.
Constitution. He asked the legislature to protect those rights and
pointed out that the federal government mandates such protection.
CO-CHAIR OGAN commented that he has the deepest respect for Mr.
Edwin's beliefs and culture. If it is a basic human right and a
religious right, he asked why Mr. Edwin would want that to apply
only to people based on where they live.
MR. EDWIN answered he is not asking for that right to be placed
racially on a person. There are non-Native people in Tanana who
practice a subsistence lifestyle, we don't ask them to stop.
CO-CHAIR OGAN inquired as to how this issue can be addressed for
all Alaska Natives when only providing the preference to those in
rural areas.
MR. EDWIN recalled that his grandfather told him if the earth, the
rivers and the ocean were destroyed, then man would disappear. He
grandfather asked him to uphold his side of his culture which he
does everyday. Mr. Edwin specified that he is asking for respect
for the natural lifestyle of the aboriginal people within Alaska.
The Alaska Natives have compromised since day one on everything the
state has requested. Alaska Natives have their backs against the
wall and cannot and should not compromise again. This is the
deepest feeling from an Alaskan Native as to where they are going
to draw the line.
Number 2186
WOODY SALMON came forward to testify on behalf of his people in
Chalkyitsik. He echoed comments regarding the Native people being
backed into a corner. He informed the committees that first it was
gold, then it was fur, timber, land, oil, Native languages, cuts in
education, and lack of village law enforcement which lead to
alcohol and drug abuse. Now it is fishing and hunting that Alaska
Natives are fighting over. He explained that although his people
are poor, they have a rich culture, and are a happy and proud
people. There are few jobs in the villages and those in the
villages face high transportation costs and substandard housing.
He discussed how if the legislators were in the private sector they
would have all been fired over how this issue has lingered. Mr.
Salmon urged the legislature to place the issue before the people
for a vote. The Native lifestyle is very important to Alaska
Natives.
Number 2341
KENNETH RICHARDS, First Chief, Holy Cross, came forward to testify
voluntarily on behalf of his people. He defined subsistence as
living off the land, taking care of the land and respecting the
creations of God. Mr. Richards believed that the subsistence
lifestyle is a healthy lifestyle.
TAPE 99-43, SIDE A
MR. RICHARDS defined subsistence as respect.
REPRESENTATIVE GREEN agreed with Mr. Richards' healthy lifestyle.
He noted that his wife is part Cherokee and commented that he also
looks to this issue as important to his personal lifestyle.
Number 0165
ROBERT WALKER, Mayor, City of Anvik, recalled a discussion about 15
years ago in which he asked someone in the Department of Community
& Regional Affairs to define "rural" and "urban." The person
explained that "urban" is defined as a first class city, first
class borough, and a home rule community. While "rural" was
defined as second class cities, third class boroughs, et cetera.
Therefore, the terms "rural" and "urban" are defined.
REPRESENTATIVE JAMES said that Mr. Walker went to the heart of her
concern on this issue in that "rural" doesn't define the
subsistence lifestyle. She admitted that she didn't know how to
overcome that hurtle. The subsistence lifestyle is the act of the
person and it is the person's life, religion, and culture, all of
which make no difference with regard to place of residence. Those
things go with the person wherever the person is.
MR. WALKER indicated agreement.
REPRESENTATIVE JAMES commented that her extreme respect of the
subsistence lifestyle comes from her childhood growing up raising
her food off of the land. She noted that she missed that
lifestyle.
Number 0426
KEN JOHNS, President, Copper River Native Association, considered
his area ground zero for subsistence. Mr. Johns said that he
wasn't present to advocate for a constitutional amendment. His
areas are comfortable with federal management. He noted that he
wouldn't have advocated for federal management ten years ago. With
regard to wanting equality, he commented that villages fall to the
wayside when others come in for the resource. Such villages aren't
protected. It has hard to compete with the state government which
has many resources with regard to lawyers. Therefore, it is hard
for villages to compete or bring suits.
MR. JOHNS informed the committee that one year the Board of Game
restricted the Copper River area to a five day moose hunt. He
cautioned the committee with regard to the language and exemplified
that with a supreme court decision regarding the language
"reasonable opportunity" in which the supreme court deemed a five
day moose hunt provided a "reasonable opportunity." He expressed
the need to keep the politics and lawyers out of this issue. Mr.
Johns said he would stand by and fight for the state, but when it
results in a fight for the allocation in his area there isn't
equality. Mr. Johns pleaded for the committees to protect the
Native villages in the areas bordered by larger cities which
dominate boards and make regulations.
Number 0787
McKIE CAMPBELL informed the committee that he was staff to the
Senate Resources Committee in 1986 when the statute was drafted and
has since worked on several revisions of the statute. Mr. Campbell
has worked on subsistence as the Facilitator to Governor Hickel's
task force as well as Deputy Chief of Staff in the Governor's
office and the Deputy Commissioner of Fish & Game. He commented,
"The one thing that I've found, for sure, about subsistence is no
one walks away unwounded." Mr. Campbell expressed his passion with
regard to what happens on this issue. He suggested the need to
focus on the management of fish and game and the affects on people.
MR. CAMPBELL said he believed there are three parts to the
solution. First, no permissive constitutional amendment alone will
bring the state into compliance with ANILCA. Such an amendment
will allow the legislature to pass a statute bringing the state
into compliance with ANILCA. Certainly, the Governor's amendment
does that. He also beleived Representative Barnes' amendment does
that as well, but the language on page 1, line 13, of Version D,
"the highest beneficial use of the resource is subsistence use",
doesn't have to be placed in the constitution to achieve what is
being attempted. Furthermore, it sets up much potential for
mischief in the courts. He believed Version D would allow the
legislature to pass a statute, thus, resulting in compliance.
Passage of either constitutional amendment would allow insertion of
the word "local" in four places in AS 16.05.258 which would bring
the statute into compliance. Mr. Campbell believed there should be
a third part with the constitutional amendment and statute. There
have to be some amendments to Title VIII. There are some simple
drafting issues in Title VIII which have been problematic for the
state government, federal government, and all subsistence users.
He pointed out that there are many undefined terms such as "rural"
and "customary trade."
MR. CAMPBELL, in conclusion, stated that this must be fixed. He
commented that there will not be any horrible changes in the
immediate future if the federal government takes over. However, it
is like cancer in that if it isn't dealt with while it can be, then
when the real effects arrive it is too late to fix the problem. If
anyone wonders what federal management will look like in 20 years,
look at Glacier Bay now.
Number 0163
LYNN LEVENGOOD, Attorney; Member, Alaska Wildlife Conservation
Association, informed the committees that he is from the second
largest Native village in Alaska, Fairbanks. He identified the
issue as how each Alaskan provides for the sustenance of their
family which is an individual right no matter the individual's
place of residence. That is a natural, God-given right as are all
the rights guaranteed by the constitution. Most importantly,
individual rights aren't the appropriate subject for a popular
vote. Mr. Levengood turned to Attorney General Botelho's comments
at the September 22, 1999, meeting and commented that what Attorney
General Botelho didn't say is more important than what he did. Mr.
Levengood said:
This issue isn't--should not be about dividing Alaskans
against Alaskans, it should be about this body and this
government defending Alaska's sovereignty against the
federal government's intrusion. This issue should go
directly to the U.S. Supreme Court and it could go there
on October 2nd because on October 1st there will be
600,000 brand new causes of action; one for each man,
woman, and child in this state, against the federal
government for their taking of Alaskan sovereign rights.
MR. LEVENGOOD addressed the U.S. Supreme Court case, United States
v. Alaska which was over the submerged lands in Cook Inlet. The
U.S. Supreme Court said that the case appeared to qualify under
Article III, Section 2 of the U.S. Constitution for original
jurisdiction. The Submerged Lands Act and the statehood compact
provide that the State of Alaska owns all navigable waters, the
water itself, and all natural resources therein. Therefore, when
the federal government stops one fishing boat and takes one fish
this state would have a cause of action to bring at the U.S.
Supreme Court level. Finality on the issue would occur in less
than a year or year and a half.
Number 1242
CO-CHAIR OGAN recalled a statement from Attorney General Botelho
that the submerged lands do belong to the state. Co-Chair Ogan
interpretted that to mean that the federal government doesn't have
power in that area.
MR. LEVENGOOD hoped that the members had received a discussion of
the ownership of Alaska's submerged lands. He also mentioned an
analysis of the Bess v. Ulmer decision which quantitatively and
qualitatively affects the Alaska Constitution in 13 different
places; it wouldn't make it to a popular ballot. Although Attorney
General Botelho indicated it could go either way, Mr. Levengood
pointed out that the issue of reapportionment was placed on the
ballot. The reapportionment issue was a procedural issue that
didn't speak to fundamental, individual constitutional rights as
does the amendment before the committee. The amendment before the
committee violates Bess v. Ulmer; it is a revision of the
constitution.
CO-CHAIR OGAN noted that the committee members should have the
opinion on that from Legislative Legal.
MR. LEVENGOOD addressed the question to Attorney General Botelho
from the September 22, 1999, hearing regarding urban Natives
becoming second class citizens. Mr. Levengood said that Attorney
General Botelho responded that such a situation would be dealt with
through proxy or educational permit. He viewed that as a legal
admission of second class citizenship, apartheid. Attorney General
Botelho did not read the committees the entire federal register.
He said that Attorney General Botelho read the following:
Should the Secretary of the Interior, certify before
October 1, 1999, that the Alaska State Legislature has
passed a bill or resolution to amend the constitution of
the State of Alaska that, if approved by the electorate
would enable the implementation of state laws of general
applicability consistent with and which provide for the
definition, preference, and participation described in
Sections 803, 804, and 805 of ANILCA.
MR. LEVENGOOD pointed out that Attorney General Botelho didn't read
the remainder of the sentence which reads: "Then these regulations
will be held in abeyance until December 1, 2000." Mr. Levengood
said that the question isn't whether the federal regulations would
be implemented, but rather when the federal regulations would be
implemented - October 1, 1999 or December 1, 2000. If nothing
happens by October 1, 1999, the regulations will be enforced by the
federal government with their dollars on federal lands only. If
the federal government attempts to take extraterritorial
jurisdiction, the state should bring a suit as quickly as possible
-- according to his legal analysis and previous supreme court
decisions.
CO-CHAIR OGAN asked if the language in the federal register
reading, "state laws of general applicability" meant that the laws
must be applied evenly to everyone.
MR. LEVENGOOD said that was what he is getting at. He noted an
amendment by U.S. Senator Stevens placed right before the last
moratorium. He interpretted that language to mean that a state law
would have to be a law which includes the entire State of Alaska in
order to pass muster. Therefore, an amendment attempting to come
into compliance would have to cover all lands in Alaska, not just
federal lands. So, if the federal government takes over, the
federal government would manage on federal lands with federal money
and officers. On the other hand, if the state retains a right to
manage, it would be under federal rules implemented and promulgated
by a federal subsistence board. Those rules would apply to the
entire state and would be enforced with Alaska's dollars and
troopers. In such a case, the state wouldn't have any management
decisions. Mr. Levengood informed the committee that basically
Commissioner Rue, Department of Fish & Game, was thrown out when
the state's Co-Management Team went to the Federal Subsistence
Board with their plan.
MR. LEVENGOOD stated, "The affirmative choice is not to surrender
before there is a fight." If Alaska's constitution is changed, the
ability to bring action against the federal government will be
diminished. He believed that even if nothing is done, the ability
to comply with ANILCA remains because the federal law hasn't
changed. After a suit goes to the U.S. Supreme Court, Alaska could
lose and return back to come into compliance. He noted that his
research indicates such a suit would result in Alaska winning. In
conclusion, Mr. Levengood said that all the individual rights of
all Alaskans need to be protected.
Number 1635
DEWEY SKAN, President, Rural Community Action Program (RurAL CAP);
and Tlingit Indian, explained that RurAL CAP is a service agency
which has represented the 10 regions throughout the state. Mr.
Skan informed the committees that at the Haines convention in 1929
the Tlingit tribe decided to sue the federal government because
their land had been taken and sold to Russia. It took about 60
years to resolve that issue; it was resolved December 18, 1971. He
emphasized that only 12 percent of the land was returned. Mr. Skan
informed the committees that he has lived in Alaska all his life,
he is a commercial fisherman, and has hunted, subsisted, and
gathered all his life. He noted that he owns two boats because the
state mandates that subsistence and commercial fishing can't be
done from the same boat. He discussed the history of RurAL CAP and
its achievements in Alaska. He stated that RurAL CAP's Board of
Directors is opposed to any changes to ANILCA.
MR. SKAN turned to April 1989 when this was litigated. At that
time, the Southeast Native Subsistence Commission was created in
Juneau. The Southeast Native Subsistence Commission's first action
was to express the desire for a Native preference. Although that
was not really what was desired, it was determined that would get
attention. Mr. Skan then turned to the urban Native problem which
he didn't view as a problem. He noted that in Representative
Kookesh's district there are probably 70 percent of other races,
but everyone subsists in harmony. In his opinion, there are two
classes of people because there are 110 villages without safe water
and sewage.
MR. SKAN noted that he was on the Federal Subsistence Board
representing Klawock for three years. His first action was, in
October 1992, implementation of a doe season for the Sitka
Blacktailed Deer. Within a month the mayor of the neighboring town
called Mr. Skan to express his dismay. That mayor likened killing
a doe to killing a mother. To that Mr. Skan asked if it is alright
to kill his father. Mr. Skan said that the Federal Subsistence
Board works in his area. In summary, he commented that RurAL CAP
is trying to create a healthy environment and is concerned about
all rural Alaska residents.
Number 1990
GILBERT BEN, Council Member, City of Allakaket, commented that
Alaska Natives are having difficulty with subsistence. He
expressed the importance of subsistence to his family and the other
members of the village. He noted that he has done much traveling
and observed the hunting that seems to be cleaning out the country.
Mr. Ben didn't see a future for Native people. Therefore, he
recommended a Native priority, a subsistence priority. He
indicated that there is too much hunting and overpopulation. For
example, when Mr. Ben came to Juneau via Alaska Airlines he saw
many hunters with merely horns. That is not appropriate; too much
game is being given up. With regard to all Alaskans being equal,
Mr. Ben said that isn't true. He informed the committees that he
doesn't have running water and sewer. Mr. Ben stressed that by the
time the legisalture comes to a decision, nothing will be left.
CO-CHAIR OGAN commented that he pays 100 percent for his water and
sewer.
REPRESENTATIVE MASEK inquired as to how Mr. Ben would define
protection.
MR. BEN stressed that there should be Native authority.
Number 2188
SHARON LEE, a Juneau resident and Tlingit Indian, informed the
committee that she is an Eagle from the Eagle's Nest House. She
recalled her childhood and noted that her family was very poor,
without subsitence food she said she would have been very
malnourished. She believed she was fortunate to have been raised
in Juneau and had the opportunity to obtain an education. Now she
makes a good living and doesn't have to rely on subsistence food.
Ms. Lee was sad to hear that many villages still live at the level
she grew up at. She said that there is more to the Native heritage
than dancing, singing, subsistence food, and potlaches. That
heritage also involves turing to God. She recalled the many times
her ancestors looked to God before doing anything. Therefore, Ms.
Lee urged the committees to seek God.
CARL RUE, an Anvik resident, indicated that his sister is a
legislator. He noted that he has been involved with the Anvik
tribal council, courts, and government for the past nine years.
Anvik has been successful in taking care of itself and its natural
resources, although the fisheries have been deleted for the past
three years.
TAPE 99-43, SIDE B
Number 0030
MR. RUE commented that pressure is coming from everywhere, such as
guiding. Therefore, everyone must work together to manage the
resources to ensure that there isn't a shortage. Mr. Rue said that
this should be put before Alaskan voters. He didn't have any
problem with equal access. The village of Anvik welcomes those
coming in to hunt. He related a story in which Anvik residents
helped hunters from Arizona who were hunting in Anvik. He was open
to managing the resources with the state, but now there is so much
pressure from various people.
CO-CHAIR OGAN concured with regard to what can be achieved away
from the cameras, lawyers, et cetera.
Number 0261
DON BRIMNER informed the committees that he is originally from
Yakutat. He reviewed his mixed descent and how his father, part
Scottish and Tlingit, was forced to live in two worlds. Mr.
Brimner said that he would address the proximity issue encompassed
in the resolution. He identified the following four areas in which
the criteria would fall short with regard to coming into compliance
with ANILCA. First, the language "proximity of residence" is a
contradiction in terms of relating to the Native community and way
of life as understood by ANILCA. He informed the committees of the
definitions of the words "proximity of residence" found in
Webster's and recommended the committees keep that definition in
mind. Mr. Brimner said that the interpretation, application, and
use of this criteria doesn't embody the spirit of the Native way of
life in Alaska or the interpretation, application, and use of
ANILCA. For example, "proximity" means many things to a Native.
To a Native, "proximity" means our bodies, minds, and spirits being
close to one another. He said that we, Alaskan Natives, are near
to things and things are near to us. There is no division in an
Alaskan Native's existence. He then turned to the notion of
compassion and said one must enter into the thing that one has
compassion for; therefore, he has, as a Alaskan Native of mixed
blood, compassion in his Native people. Keeping that in mind,
"residence" is moot. The fourth shortfall of "proximity to
residence" is that it is a short-term solution which doesn't
recognize a Native's existence as a whole being. If the "proximity
to residence" criteria is utilized it will merely divided the
Alaska Native community into haves and have nots as exemplified in
the Alaska Native coroporations.
CO-CHAIR OGAN asked if Mr. Brimner supported the Governor's
resolution which includes a rural priority.
MR. BRIMNER clarified that he supported a rural preference. He
returned to the issue of creating haves and have nots in the Native
community. Mr. Brimner didn't believe that the intent of the
federal government with the adoption of ANILCA was to divide the
Alaska Native community in spirit or physically. Therefore, he
indicated the need for the legislators to have compassion and
understand the Alaska Natives' "Nativeness" in order to do what is
right.
Number 0763
ROBERT SILAS, President, Northway Village Council; President,
Dineega Corporation; Member, Doyon Board of Directors; informed the
committees that when he speaks he represents himself, his tribal
members, shareholders, and the corporation. Mr. Silas noted that
he was present in the first legislative special session in 1990.
He hoped this would be the last legislative special session on this
issue. He turned to the frequently mentioned issue of equality and
noted that there are often jobs in rural communities that are
funded by state projects and dollars. In those cases, construction
companies come in and bring their own employees, urban residents.
Therefore, in order for there to be equality the rural residents
should have the first opportunity to obtain those jobs.
Furthermore, funding for schools is not equal.
CO-CHAIR OGAN interjected that the people in his district pay for
sending their children to schools.
Number 0905
MR. SILAS said that he had a problem with "rural" versus
"proximity." He explained that he takes his salmon from Holy
Cross, Galena, and Ruby and inquired as to how the term "rural"
versus the term "proximity" would effect him. Mr. Silas viewed it
as cutting out some of the places from which he takes resources.
He related how his mother and siblings survived by people sharing
food with them. Sharing is often the case in rural areas,
furthermore, families in rural areas often share with those in
urban areas. If the federal government takes over management, it
won't be because the Alaska Native people didn't compromise. He
stated that this body hasn't put forth a good faith effort to
resolve this issue.
CO-CHAIR OGAN commented that he respectfully disagreed.
MR. SILAS pointed out that at the 1990 legislative special session,
the Alaska Native people did compromise quite a bit.
Number 1039
ANNA DAVIDSON, an Anchorage resident, informed the committees that
she is originally from the village of Akiachuck. Ms. Davidson said
that the current discussion of subsistence ignores existing state
fish and game laws that have created special classes for resource
users in Alaska. She pointed to the limited entry permit system
and licenses for sport hunting and fishing guides as examples. If
everyone was truly equal in Alaska, everyone would be eligible to
fish commercially and to act as guides. If enacting a rural
subsistence priority in times of resource shortage is
unconstitutional, then so is the limited entry permit program as is
the state's practice of licensing certain individuals as guides for
sportsmen. Ms. Davidson continued by saying that Alaska Natives
gave up their land and rights when ANCSA was developed.
Furthermore, the state has laws that don't make sense with respect
to the traditional laws of Alaska Natives.
Number 1208
FRANK BENJAMIN, a Shageluk resident, recalled testimony about the
discrimination of those entering villages to hunt. He said that
his village doesn't discriminate. Mr. Benjamin noted that Shageluk
completely depends upon subsistence fishing.
LOTHA WOLF, a Mentasta resident, commented that she isn't
comfortable with the language being used such as "subsistence" and
"rural." She informed the committee that her father, Houston
Sanford, was one of the leaders who fought for schools to be placed
in the villages. Her father also fought for the right to hunt
during funerals and potlatches. Mr. Sanford's sister is Katie John
and she also fought for her human right. Ms. Wolf discussed the
entrance of assistance programs such as the Alaska Temporary
Assistance Program (ATAP) into the villages. Such assistance
programs crippled those living in the villages and people began to
depend upon that for their lifestyle.
MS. WOLF said she respected the members, but indicated that she
would like for people to come to the table and understand where she
is coming from. She inquired as to what resource would be left in
urban areas if the luxuries of light, indoor plumbing, and stores
were taken.
Number 1490
DEWEY GEORGE provided the committee with a letter that he wrote to
the Lieutenant Governor. He expressed concern that this issue will
have a major impact on the future of a culture of people. Mr.
George believed that the current federal policy misses the mark in
focusing on rural residents as does the current state policy. He
expressed the desire to see the state adopt a policy which focuses
on Alaska Native people; a policy that allows the Alaska Native
people to practice the subsistence way of life. The policy should
also provide non-Native people the right to practice subsistence by
a state license or other agreement. He pointed out that the
current federal policy now segregates between rural and nonrural
residents. He said that no one's rights are being cut off, the
future of a Native culture is merely being preserved. Mr. George
encouraged the committees to consider the people.
CO-CHAIR OGAN closed the public testimony. The committees then
took an at-ease from 4:10 p.m. to 4:30 p.m.
Number 1631
REPRESENTATIVE BARNES commented that the committee members should
have a copy of the opinion from the Office of the Solicitor in the
Department of the Interior. She said that she and others had set
out to work on this in good faith, however, she didn't believe the
Solicitor's opinion dealt with it in good faith. Certainly, the
intent and spirit of the compromise goes to the heart of ANILCA.
Anyone wishing to make it work should jump at the opportunity to
use this compromise to solve the problem. She quoted the following
from the Solicitor's opinion: "Because many fish and wildlife
populations in Alaska range over extensive geographical areas, it
would mean, for example, that residents of an urban area downstream
on a river would be legally entitled to take all the fish available
for subsistence, preventing the fish from swimming upstream to
where rural residents are waiting to harvest them." Representative
Barnes disagreed with that statement, saying Alaska's current law
allows exactly what the Solicitor is saying cannot happen.
Therefore, the Solicitor is saying that what is currently going on
with the ADF&G and the Board of Fisheries doesn't work. There
hasn't been any testimony that one rural resident has been denied
his or her subsistence rights, she stated. She reiterated that she
had offered a good faith compromise that wasn't dealt with in good
faith. Therefore, Representative Barnes expressed her wish to
withdraw CSHJR 201, Version D.
Number 1736
REPRESENTATIVE BARNES moved that the committee rescind its action
in adoption of CSHJR 201, Version GH1071\D, Utermohle, 9/22/99.
There being no objection, it was so ordered.
REPRESENTATIVE JOULE moved that the committee report HJR 201 from
committee.
REPRESENTATIVE BARNES objected. She commented that she didn't
believe the Governor's bill, HJR 201, was any more workable than
the CS, Version D. She didn't believe that HJR 201 would help
resolve the problems.
CO-CHAIR OGAN commented that he has been opposed to a "rural
priority." He noted that the bill doesn't have any amendments to
ANILCA. He then asked if anyone had any amendments to offer. No
amendments were offered. The committee was at-ease from 4:29 p.m.
to 4:30 p.m.
Number 1805
Upon a roll call vote, Representatives Morgan, Joule, Kapsner, and
Harris voted in favor of reporting HJR 201 from committee and
Representatives Barnes, Whitaker, and Masek, voted against
reporting HJR 201 from committee. Representative Sanders was not
present for the vote. Therefore, the motion failed with a 4-4
vote.
CO-CHAIR OGAN recessed the committee at 4:40 p.m. to the call of
the chair.
Number 1833
CO-CHAIR OGAN reconvened the meeting at 9:25 p.m. He noted there
was a quorum present. Those House Resources Standing Committee
members present were Representatives Ogan, Sanders, Masek, Harris,
Morgan, Barnes, and Whitaker. Representatives Joule and Kapsner
arrived shortly after the meeting reconvened. House Judiciary
Standing Committee members present when the meeting reconvened were
Representatives Kott, Green, James, Murkowski, Croft, and Kerttula.
Other House members present were Representatives Austerman,
Berkowitz, Bunde, Davis, Foster, Kohring, Mulder, Phillips, Porter,
and Williams. Present from the Senate was Senator Taylor.
REPRESENTATIVE BARNES moved that the committee rescind its action
in failing to report HJR 201 from the House Resources Standing
Committee. She asked for unanimous consent. There being no
objection, it was so ordered.
Number 0068
REPRESENTATIVE BARNES moved that the committee adopt CSHJR 201,
Version GH1071\K, Utermohle, 9/23/99, for discussion purposes.
CO-CHAIR OGAN objected.
Upon a roll call vote, Representatives Whitaker, Harris, Morgan,
Barnes, and Sanders voted in favor of the adoption of CSHJR 201
and Representatives Masek and Ogan voted against the adoption of
CSHJR 201. Representatives Joule and Kapsner were not present for
the vote. Therefore, the motion passed with a 5-2 vote.
REPRESENTATIVE BARNES addressed the CS, Version K, before the
committee. She referred to the new language on page 1, lines 9-15
which seemed to have an awkward flow. She asked Mr. Utermohle if
he had a suggestion in order for the language to flow better. The
bottom part of subsection (b) seems to be out of context with the
rest of that subsection.
Number 2062
GEORGE UTERMOHLE, Legislative Legal Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency, agreed that it is a
long sentence containing a couple of subordinate clauses that are
hard to follow.
REPRESENTATIVE BARNES asked if it would be better to place the
language "consistent with the sustained yield principle and sound
resource management practices," at the beginning rather than at the
bottom.
MR. UTERMOHLE pointed out that moving that phrase would affect the
meaning. He explained, "As cumbersome as it is, that phrase,
'consistent with the sustained yield principle and sound resource
management practices,' modifies the amount available to be taken
for beneficial uses. If that phrase was moved to the beginning,
then there would not be that modifier for determining the amount
available for beneficial uses." He commented that the language
could be broken into two sentences.
REPRESENTATIVE BARNES recalled that in earlier discussions, we had
moved a portion of it to the beginning.
CO-CHAIR OGAN called a brief at-ease at 9:35 p.m. The committees
came back to order at 9:37 p.m.
REPRESENTATIVE BARNES announced that having spoken with Mr.
Utermohle with regard to the language, she had no further
questions.
Number 2202
CO-CHAIR OGAN inquired as to the meaning of "to and among
residents" and "local residence."
MR. UTERMOHLE explained that "local residence" refers to locality
of residence as opposed to the term "resident of the state."
Therefore, the preference given by the legislature would be based
on local residency within the state.
CO-CHAIR OGAN asked then if a statute that would provide a "rural
priority" would be ruled constitutional under this amendment.
MR. UTERMOHLE replied yes. He then explained:
The phrase "to and among residents" provides the state to
grant this preference not just to a particular class of
Alaskans, but ... to also further provide that preference
to certain or divide it or allocate it among members of
that class. ... In a sense, in the current system we have
now, in Tier I ... they provide a preference to rural
residents. That's the "to". The to provide a preference
among rural residents under the Tier II criteria, the
customary dependents on the resource, the local residency
and the availability of alternative resources. That's
the--provides for allocation "among" rural residents.
CO-CHAIR OGAN inquired as to whether this would pass the "red face
test" with regard to the Bess decision or revision versus
amendment.
MR. UTERMOHLE said that he believed that Version K would raise the
same issues as any of the other versions considered to this point.
Mr. Utermohle commented that, in his mind, it is unknown with
regard to how the court would rule as to whether it is an amendment
or a revision. He clarified that Version K does, as the other
versions, raise concerns under the Bess decision. There is a risk
that the court may find this to be a revision.
CO-CHAIR OGAN asked if Version K affects the same areas of the
constitution. Does Version K affect equal protection, due process,
common use, uniform application, no exclusive fishery, as in the
other versions.
MR. UTERMOHLE answered yes. "Any proposed constitutional amendment
that would provide for the allocation of a resource among residents
of the state based on criteria such as in-state residency would
raise each of those issues."
TAPE 99-44, SIDE A
Number 0035
REPRESENTATIVE JOULE pointed out that Version K speaks to
"indigenous species" and inquired as to what that language refers.
REPRESENTATIVE BARNES pointed out that language has been in all of
the versions before the committee thus far. She explained that the
language "indigenous species" is used because there have been
species such as elk which have been brought into the state. She
said that "indigenous species" refers to those species that have
been commonly in Alaska.
REPRESENTATIVE JOULE inquired as to whether the species would be
indigenous to a particular area or Alaska.
REPRESENTATIVE BARNES responded that it would be indigenous to the
State of Alaska.
Number 0161
REPRESENTATIVE KAPSNER referred to page 1, lines 14-15 and asked if
the language "sound resource management practices" and "reasonable
opportunity" are in ANILCA. If that language is not included
ANILCA, she inquired as to how that language may conflict with
ANILCA.
MR. UTERMOHLE replied that, to his knowledge, neither of those
terms are included in ANILCA. With regard to possible conflicts
with ANILCA, Mr. Utermohle said that he couldn't speak to the
significance. Mr. Utermohle stated:
The present situation that the legislature is faced with
that ... in the next ten days and having to provide a
particular amendment that might be subject to
certification by the Secretary [of Interior]. I think
this language does do that. And to provide him with the
basis for certifying an amendment ... that would
potentially allow the legislature to meet the
requirements of ANILCA, though, it's possible also that
the Secretary [of Interior] might balk at its language
such as "reasonable opportunity" and just say that it
doesn't go far enough.
CO-CHAIR OGAN commented that the "reasonable opportunity" language
may deal with the Bobby case. He explained that the Bobby case
dealt with the need for "...all other uses have to be eliminated
before a season and bag limit can be placed on a subsistence use
user."
Number 0348
REPRESENTATIVE BARNES directed her comments to Representative
Kapsner. Representative Barnes said she couldn't imagine that
anyone would object to the language "consistent with the sustained
yield principle and sound resource management practices". She
inquired as to why Representative Kapsner would not want such.
REPRESENTATIVE KAPSNER responded that she was merely curious and
didn't mean to imply she objected to the language. She noted that
those terms can be interpretted as vague and can be viewed
differently by different groups.
REPRESENTATIVE JOULE recalled that "reasonable opportunity" was
part of a package during the last session regarding subsistence.
When that package was left, so was that language. He pointed out
that the language "reasonable opportunity" isn't found in ANILCA.
Representative Joule asked if this, Version K, has been forwarded
to Washington, D.C. for review.
CO-CHAIR OGAN said he wasn't sure he could answer, but didn't
believe that it had been forwarded.
REPRESENTATIVE KAPSNER said, with regard to the "reasonable
opportunity" language, that the Solicitor's opinion states: "By
focusing on criteria like these which are not oin the federal law,
the proposal risks new conflicts with ANILCA." Representative
Kapsner felt it worthy of discussion now in order to eliminate the
possibility of a discussion regarding "reasonable opportunity" in
the next ten years.
Number 0570
REPRESENTATIVE BARNES commented that the mere fact that some are
willing to make another attempt seems very reasonable. She
indicated that the language in Version K contains language that was
included in the version for which the Solicitor gave his opinion.
Representative Barnes quoted the Solicitor's opinion as follows:
Other difficulties with the proposed wording of the
amendment may also render it inconsistent with ANILCA.
As one example, the amendment includes proximity to the
resource as a primary factor for eligibility whereas
ANILCA has three specific criteria for applying the
priority in rural Alaska in times of shortage: (1)
customary and direct dependence upon the populations as
the mainstay of livelihood; (2) local residency; and (3)
the avialabilitiy of alternative resources. The
amendment also adopts the "reasonable opportunity"
approach to providing the subsistence priority which was
previously contained in amendments to ANILCA enacted by
Congress in 1997, but which expired in 1998...
REPRESENTATIVE BARNES said, "Once again, that if you find
difficulty with this language that's in here then all you're asking
for is for all of use to bow down and I'm not ready to do that."
CO-CHAIR OGAN asked if the Judiciary Committee had any questions.
CHAIRMAN KOTT said that the Judiciary Committee would hold its
questions.
REPRESENTATIVE BARNES requested the presence of Attorney General
Botelho.
CO-CHAIR OGAN recognized that Attorney General Botelho was not
present. He asked if Attorney General Botelho could be called.
Co-Chair Ogan noted Commissioner Rue's presence and availability
for questions.
Number 0897
MR. LEVENGOOD commented that Version K, as a whole, doesn't comply
with ANILCA for a number of reasons. Version K has the same Bess
v. Ulmer problems as did the Governor's original proposal.
Furthermore, the language doesn't seem to convey the intent. He
directed the committees to page 1, line 9, and said, "The word
'may' is volitional, it makes the preference voluntary whether the
legislature provides it or not and that alone would make it not in
compliance with ANILCA." He then turned to page 1, line 9, and the
word "preference" which would result in discrimination because
someone would be provided a preference.
MR. LEVENGOOD addressed the language "to and among" as follows:
The "to" is to "residents", means --is individuals. ...
The "among" modifies "residents" as well, and the "among
residents" is both inclusive ... or exclusive. Inclusive
"among residents" would connate a collective right as in
the groups of people, the residents among them. So, we
have a collective right where the preference could be
spread around among a group of residents. The exclusive
use of the word "among" could mean that we divide the
preference between the group of all qualifiers which
means you would end up having, the possibility of having
multiple layers of people with preferences; some with
greater preferences and some with lesser preferences and
arguable how they would get greater or lesser preferences
is based upon the qualifying factors that are listed in
the lines below.
MR. LEVENGOOD continued by addressing the language specifying the
qualifying factors for the preference. He believed the qualifying
factor of "customary and traditional use" is already defined in
state statute. He indicated that "direct dependence" isn't
defined. He pointed out the language, "or the availability of
alternative resources," and explained, "The way that sentence is
constructed, to get a preference you can either have, for
subsistence you can either have a customary and traditional use, a
direct dependence, local residence or if you don't have any of
those, if you happen to have the availability of alternative
resources you can qualify for the preference." Mr. Levengood
believed the committee wanted to make that factor a disqualifier
rather than a qualifier.
MR. LEVENGOOD referred to page 1, lines 13 and 15, the words
"beneficial uses" and interpretted that to mean any use other than
waste. He pointed out that the language on line 14, "sound
resource management practices" was not defined to his knowledge.
MR. LEVENGOOD explained that this is problematic in the Bess v.
Ulmer case because the language "to and among residents" creates an
exclusive group of a subset of Alaskans based on residents falling
under one of the discriminating factors. Then there is the
additional factor of "the availability of alternative resources."
In other words, if those in town have grocery stores or any kind of
resource available that excludes them from a natural resource in
the state, that creates equal opportunity and equal protection
problems in the constitution. He commented that using all these
qualifying and exclusionary factors appears to try to define the
word "rural" without actually saying the word "rural."
The committees were at-ease from 10:03 p.m. to 10:19 p.m.
Number 1361
DAVID BEDFORD, United Fishermen of Alaska (UFA), expressed the
importance to Alaskan fishermen to find a resolution that will
prevent federal management. He also expressed appreciation for the
efforts to find a resolution. He commented that he too would like
to hear from Attorney General Botelho as well as from the Solicitor
on this new CS. Upon review of Version K, Mr. Bedford observed
that much of it is crafted directly from ANILCA which would appear
to appeal to the Secretary of Interior. However, he was confused
with the following language, "consistent with the sustained yield
principle and sound resource management practices". It would seem
that if it was "consistent with the sustained yield principle", by
neccesity it must also be consistent with "sound resource
management practices". Therefore, he surmised the two must be
separate things or else the phrases wouldn't be separate. Mr.
Bedford expressed concern with the "reasonable opportunity"
language.
MR. BEDFORD, in response to Co-Chair Ogan, stated that the UFA has
long held that a subsistence solution would require the following:
a constitutional amendment, statutory changes, and amendments to
ANILCA regarding technical deficiencies. However, now having to
deal with all of those things as a package has become impractical.
He clarified that Alaska is in a position where those things must
be pursued one at a time because the Secretary of Interior faces an
obligation to certify whether the State of Alaska has placed a
constitutional amendment on the ballot permitting the state to come
into compliance with ANILCA, as written.
CO-CHAIR OGAN closed public testimony. He then recessed the
committees to the call of the chair at 10:25 p.m. He announced the
meeting would reconvene September 24, 1999, at 8:00 a.m.
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