Legislature(1997 - 1998)
09/24/1997 03:40 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
Fairbanks AK
September 24, 1997
3:40 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Loren Leman
Senator Bert Sharp
Senator Robin Taylor
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Lyda Green, Vice Chairman
Senator John Torgerson
ALSO IN ATTENDANCE
Senator Jerry Mackie
Senator Gary Wilken
Senator Jerry Ward
Senator Drue Pearce
Senator Jim Duncan
COMMITTEE CALENDAR
Interim Hearing on Subsistence
WITNESS REGISTER
Mr. Julian Mason
Governor's Task Force on Subsistence
POSITION STATEMENT: Presented the Governor's Task Force
subsistence proposal.
Representative Al Kookesh, Co-Chairman
Alaska Federation of Natives (AFN)
State Capitol Building
Juneau, AK 99801-1182
POSITION STATEMENT: Delivered Native Subsistence Summit of August
26 - 28 comments on Governor's Task Force.
Mr. Byron Mallott, Executive Director
Alaska Permanent Fund Corporation
Member/Governor's Subsistence Task Force
P.O. Box 25500
Juneau AK 99802-5500
POSITION STATEMENT: Answered Task Force proposal questions.
Ms. Mary Pete, Director
Division of Subsistence
Department of Fish and Game
P.O. Box 25526
Juneau AK 99802-5526
POSITION STATEMENT: Answered questions regarding Governor's Task
Force proposal.
Mr. David Kellyhouse, Wildlife Biologist
P.O. Box 81452
Fairbanks AK 99708
POSITION STATEMENT: Commented on the subsistence issue.
Tentatively supported the Governor's Task Force proposal if
substantially amended.
Ms. Cesa Sam
P.O. Box 70
Huslia AK 99746
POSITION STATEMENT: Commented on the subsistence issue. No
comment on Governor's Task Force proposal.
Ms. Patrice Salmon
P.O. Box 53
Chalkyitsik AK 99788
POSITION STATEMENT: Commented on the subsistence issue. No
comment on the Governor's Task Force proposal.
Ms. Marjorie Attla
P.O. Box 136
Galena AK
POSITION STATEMENT: Commented on the subsistence issue. No
comment on the Task Force proposal.
Mr. Patrick Saylor
P.O. Box 624
Healy Lake AK 99706
POSITION STATEMENT: Commented on the subsistence issue.
Ms. Milly Bergman
Allakaket AK
POSITION STATEMENT: Opposed the Task Force proposal.
Mr. Benedict Jones
P.O. Box 47
Koyukuk, AK 99754
POSITION STATEMENT: Supported Governor's Task Force proposal.
Mr. Gerald Walker
Tribal Council
Holy Cross, AK 99602
POSITION STATEMENT: Commented on subsistence issues.
Mr. Gerald Oldman
Hughes Village Council
General Delivery
Hughes AK 99745
POSITION STATEMENT: Concerned with trophy hunters.
Mr. Randy Mayo
Stevens Village Tribal Government
P.O. Box 13
Stevens Village AK 99774
POSITION STATEMENT: Opposed Governor's Task Force proposal.
Mr. Vernon Joseph
P.O. Box 07663
Fairbanks AK 99707
POSITION STATEMENT: Opposed Governor's Task Force proposal.
Mr. Roger Nicholas
Kaltag Tribal Council
P.O. Box 41
Kaltag AK 99748
POSITION STATEMENT: No position on Governor's Task Force proposal.
Commented on subsistence issues. Said he personally opposed the
proposal.
Ms. Anna Pickett
P.O. Box 82354
Fairbanks AK 99708
POSITION STATEMENT: Opposed Governor Task Force proposal as
written.
Mr. Gideon James
Arctic Village AK 99722
POSITION STATEMENT: Commented on subsistence issues and supported
AFN position.
Ms. Annie James
Fairbanks AK 99708
POSITION STATEMENT: Commented on subsistence issues.
Mr. Walter Flitt
P.O. Box 232
Fort Yukon AK 99740
POSITION STATEMENT: Opposed Governor's Task Force proposal.
Mr. Tom Scarborough
1678 Taroka Dr.
Fairbanks AK 99709
POSITION STATEMENT: Opposed Governor's Task Force proposal.
Mr. Gabe Sam
Tanana Chiefs Conference
122 First Ave.
Fairbanks AK 99701
POSITION STATEMENT: Supported the Native Subsistence Summit
proposal.
Ms. Clara Joseph
Beaver Village Council
First Street
Beaver AK 99724
POSITION STATEMENT: Commented on subsistence issues.
Mr. David James
Gwich'in
Fort Yukon AK 99740
POSITION STATEMENT: Commented on subsistence issues.
Mr. Curtis Tindall
276 Le Ann
Fairbanks AK 99701
POSITION STATEMENT: Commented on subsistence issues.
Mr. Byron Haley
1002 Pioneer Rd.
Fairbanks AK 99701
POSITION STATEMENT: Opposed Governor's Task Force proposal.
Supported Alaska Outdoor Council position.
Mr. Dick Bishop
Alaska Outdoor Council
1555 Gus's Grind
Fairbanks AK 99709
POSITION STATEMENT: Opposed Governor's Task Force proposal.
Mr. John Coady, Northwest Regional Supervisor
Division of Wildlife Conservation
Department of Fish and Game
1300 College Rd.
Fairbanks AK 99708
POSITION STATEMENT: Supported the Governor's Task Force proposal.
Ms. Bonne' Therriault-Wolstead
P.O. Box 56702
North Pole AK 99705
POSITION STATEMENT: Commented on the subsistence issue.
Ms. Mary Bishop
1555 Gus's Grind
Fairbanks AK 99709
POSITION STATEMENT: Opposed the Task Force proposal.
Mr. John Miller
1260 March Dr.
Fairbanks AK 99709
POSITION STATEMENT: Commented on the subsistence issue.
Mr. Joe Mattie
P.O. Box 18
Ester AK 99725
POSITION STATEMENT: Commented on the subsistence issue.
ACTION NARRATIVE
TAPE 97-36, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order in Fairbanks, Alaska at 3:40 p.m. and announced the
presentation of the Governor's Task Force Proposal on the current
subsistence situation.
MR. JULIAN MASON, Governor's Task Force on Subsistence, explained
that the proposal is structured around ANILCA which provides a
subsistence priority for rural residents that is managed by federal
managers. If the State wants to manage federal land, it needs to
create a priority on State land. This option was elected by the
State shortly after ANILCA was passed in the form of a rural
priority. There was a referendum to repeal the rural priority in
1982 which failed.
In 1989 the Alaska Supreme Court said that it is unconstitutional
to grant a subsistence priority based on where someone lives. Once
the Supreme Court said it was unconstitutional to grant a priority
based on where a person lived, we were out of compliance with
ANILCA and there was obligatory litigation and the federal
government came in and began managing subsistence on federal lands.
For all practical purposes this meant game management on federal
lands.
Initially the federal government adopted what the State had been
doing. Recently, they have deviated from that more and more. The
Boards of Fisheries and Game, at the request of the legislature,
created non-subsistence areas in Alaska. They are Anchorage, Mat-
Su, and Kenai; Valdez, Ketchikan, Juneau and Fairbanks. The rest
of the State, translated into ANILCA terms would be rural areas.
But this is not the way it is in State law.
SENATOR HALFORD asked if that meant that there really wasn't any
priority. He asked if it was true there was nothing in any of the
non-subsistence areas that says someone can't live a subsistence
life style, if they can do so without a priority.
MR. MASON responded that was right.
SENATOR HALFORD said he thought this issue was sometimes being
misrepresented as a priority issue and he thought that subsistence
was an inalienable right. He thought it was important that the
lack of a priority didn't stop subsistence activity.
MR. MASON agreed that that point was often confused in the debate.
There is nothing prohibiting people from practicing subsistence
activities in non-subsistence areas, but there's no priority.
MR. MASON continued saying that the next event was probably the
Katie John Case, the result of which is a determination by the
Federal Appeals Court, Ninth Circuit, in San Francisco, that the
federal government has the right to manage fish in reserved
navigable waters. The idea is simple, but the implementation is
very complex.
The moratorium that we have now is on the Department of Interior
spending money on implementing regulations to comply with the
decision in Katie John regarding defining navigable water. This
moratorium expires on October 1. Mr. Mason referred the Committee
to a map showing the waters the federal government proposes to
classify as being subject to subsistence management. He said that
October 1 is not an apocalyptic day, but the federal government has
said if the moratorium expires, it will begin to take the steps
necessary to comply with the court order to make the regulations to
implement the management that is on this map so they will be in
place in time for next year's fishing season.
MR. MASON said the Governor's Task Force had two basic goals - to
recognize the importance of subsistence and to ensure State
management. No one knows how simultaneous management of both fish
stocks and wildlife that move without regard to boundaries would
work.
Number 1008
CHAIRMAN HALFORD asked how long this had been going on for game.
MR. MASON replied that the McDowell case holding the rural
preference unconstitutional was decided in 1989. He thought the
federal government began to become active around 1991. We have had
dual management on the game for at least five or six years. How
well it has worked depends entirely on who you ask.
He added that he thought a third objective was to do something
without the long period of dual management, meaning no long stream
of litigation.
MR. MASON said he would comment on the proposal dated 9/23. He
said the proposed amendment simply authorizes the legislature to
create a subsistence priority based on where a person lives. It
does not require the legislature to do that and does not require a
rural priority.
Number 1606
CHAIRMAN HALFORD asked if that came back to the equal protection
question from one of the members of the Supreme Court.
MR. MASON replied yes. He added that at one point this permitted
the creation of a rural preference which was changed by the
committee to place of residence. He thought the reasoning was if
you say rural priority as a constitutional amendment, you create a
constitutional question about what is rural and you don't want to
do that.
SENATOR TAYLOR asked if he thought that the proposed constitutional
amendment satisfied the intent of ANILCA.
MR. MASON replied yes, if coupled with State Statutory amendments.
Alone, the amendment doesn't do anything. He noted that ANILCA
creates the priority on federal land and also has a section saying
if the State does the same thing, none of the federal priority
takes place.
SENATOR TAYLOR asked if this required any change in ANILCA.
MR. MASON replied no; however, there are changes to ANILCA required
by this proposal, but not required by the constitutional amendment.
SENATOR TAYLOR said he thought part of the package was that the
constitutional amendment did not take effect until ANILCA was
changed.
MR. MASON said the constitutional amendment would be the last in a
chain. The ANILCA amendments and the State Statutory amendments
would be passed, but would only become effective if the people
passed the constitutional amendment. That's why there is a
reference on page 1, line 29 saying there is a linkage function.
It's impossible to write it until you know which piece is going to
happen first. The concept has always been that nothing would
happen unless the constitutional amendment was passed.
Number 2205
CHAIRMAN HALFORD asked if there was an enforcement mechanism that
makes that work if the constitutional amendment was approved in the
fall of 1997.
MR. MASON replied it could be written to do that. It's not that
way now because as a drafting problem they would have to know which
would happen first. He thought the best way to do it would be to
have ANILCA amendments first with those contingent upon a
constitutional amendment, then do the State statutory amendments
contingent upon passage of a constitutional amendment. Put the
constitutional amendment in 1998.
Number 2401
CHAIRMAN HALFORD asked if the legislature would be called on to
vote to authorize the constitutional amendment without knowing what
the changes to ANILCA would be.
MR. MASON replied that it is conceivable. In that instance the
legislature would have to put the constitutional amendment on the
ballot contingent upon a specific set of ANILCA amendments being
passed. The problem with that is that if for some reason that
exact set of ANILCA amendments is not passed by Congress, you
defeat the constitutional amendment and you would have to come back
and reauthorize the constitution. He said it would be better in
terms of making it all work to have the ANILCA amendments pass.
SENATOR TAYLOR said he was informed by participants in the
Governor's Task Force that on two different occasions the Secretary
of Interior was called to participate in the behind closed doors
meetings by teleconference and his comments were that the President
would not tolerate any changes to ANILCA and that was one of the
reasons they make certain we could do this without any significant
changes to ANILCA.
MR. MASON responded that to the best of his knowledge there was no
such pronouncement by the Secretary of the Interior.
SENATOR TAYLOR asked if the Secretary of Interior had had a chance
to review this language and had he signed off on it.
MR. MASON replied that the Secretary's staff had this language, but
he did not think he had signed off on it. He thought the
Department of Interior would acquiesce on amendments to ANILCA.
There had been no lines drawn about amendments to ANILCA.
In ANILCA the term "customary and traditional" is important because
subsistence uses are defined in those terms. However "customary
and traditional" are not defined in ANILCA. State law has a
definition for customary and traditional. The proposal of the
Committee is to define customary and traditional, customary trade,
and a rural Alaska resident. The proposed customary and
traditional definition is different in two ways. Instead of
saying, "and reliance upon" it now says "or reliance upon." The
reason is that some people take, some people use, and some people
take and use, but all people don't necessarily do all things. This
recognizes that subsistence activities include using, but not
necessarily taking.
CHAIRMAN HALFORD asked if the State law uses "and."
MR. MASON replied affirmatively.
CHAIRMAN HALFORD asked if that, then, expanded the existing State
law.
MR. MASON replied he didn't know the intent of existing State law.
He had talked with people who said that State law is administered
as if it were an "or."
MR. MASON said that "customary trade" was also defined, but had not
changed from the last draft. He noted that the State definition on
page 48 "as restricted by the appropriate board" is not in the
ANILCA definition, but the reason is for that is later in ANILCA
there is a general provision for the State to manage and make
regulations. So the intent is the same.
CHAIRMAN HALFORD asked if the regulation could be more stringent
than the ANILCA language itself. He thought giving the court the
authority to limit it could become more stringent than the ANILCA
language. Doesn't that create a conflict between State management
policy and ANILCA through regulation instead of statute.
MR. MASON said he didn't think so, because the authorizing power in
the ANILCA amendments is to make it clear that the State can make
regulations to implement the definition which is the Boards of
Fisheries and Game exercising power not inconsistent with the
statutory limit.
Number 3346
CHAIRMAN HALFORD asked him to review the Peratrovich case and the
problems with that.
MR. MASON responded that the perceived problem was that people
using a subsistence priority take and sell (Peratrovich was roe and
kelp, probably) fish or wildlife for substantial amounts of money.
ANILCA was meant to accommodate non-commercial sales of that type,
but not in commercial quantities. Federal regulations say that
customary trade means cash sale of fish and wildlife resources for
personal family needs and does not include a significant commercial
enterprise. This is in harmony with this regulation. The
Peratrovich Case was taken because the amount involved was around
$70,000 and what the jury believed they proved was that they had
customarily and traditionally sold in Seattle. So the concern is
that fish and game taken under the subsistence priority in good
size quantities will be sold for substantial amounts of money.
This is meant to limit that.
The reason the committee wanted to leave it to the Boards of
Fisheries and Game is that it is hard to deal with the issue in
terms of dollars as a statutory matter because over time the dollar
amount would change with inflation or deflation. That is why the
emphasis is on the quantity as opposed to cash.
Number 3624
CHAIRMAN HALFORD asked if this change was changing that standard.
MR. MASON said he didn't know because the problem was that the
defendants did a brilliant job in proving they had customarily and
traditionally done that. This does not change the possibility that
someone could prove they customarily and traditionally sold large
quantities.
The federal regulation prohibits large quantities, not just the
customary and traditional ones he didn't understand why the case
went that way.
CHAIRMAN HALFORD noted that it was a federal case and was tried in
Seattle.
MR. MASON elaborated that the proof was that they had traveled by
boat to Seattle for the trade.
Number 3900
SENATOR TAYLOR asked why they would want to broaden ANILCA if their
goal was to take care of Peratrovich and did they want Congress to
put in words like minimal quantities.
MR. MASON replied yes it was the intent to flip the control from
the amount of cash to the amount of the fish or game.
CHAIRMAN HALFORD said he thought the thing that has redefined
subsistence is the federal court case which has gone beyond that of
what the original advocates would have considered under rural
priority and he thought the Peratrovich Case and the Bobby Case
were the two biggest examples.
Number 4157
SENATOR MACKIE asked if he thought the Governor's proposal would
take care of the Peratrovich problem.
MR. MASON replied yes. He explained that that case was tried with
no regulation limiting the quantity of the dollar amount.
SENATOR MACKIE asked if the Governor's proposal does not allow the
commercial sale of subsistence.
MR. MASON replied yes, that is the intent.
CHAIRMAN HALFORD asked if the intent was that the $15,000
individual and $70,000 aggregate limit would no longer be the
standards and would it be more like the intent of the original
legislation.
MR. MASON was affirmative and said he thought it could be
accomplished with these words through regulations.
CHAIRMAN HALFORD asked if success or failure would be decided by a
State court.
MR. MASON replied that a criminal violation would remain in State
court. Regulations could be challenged in federal court.
Number 4531
SENATOR WARD asked where the rural preference fit into the fish
allocation negotiations between Alaska and Canada.
MR. MASON said he didn't think it applied at all.
SENATOR WARD asked why the federal regulation for rural preference
wasn't part of the treaty process with Canada.
MR. MASON assumed that negotiators for the United States were aware
of the need for subsistence, but he didn't think the priority,
itself, was part of the negotiations.
TAPE 97-36, SIDE B
Number 001
MR. MASON said he understood the negotiations were for allocations
of fish between Canada and the U.S. In response to Senator Ward,
he said that he had no way of knowing this should be explored.
MR. MASON continued saying that the third definition of a rural
Alaska resident is a change from State law. Currently State law
defines everything in terms of non-subsistence areas. To fully
understand the law, you have to read the definition of subsistence
uses which has been State law for some time. That in turn
describes customary and traditional.
Everything under State law technically is under State regulations.
Everything currently outside the non-subsistence areas are treated
as rural. The current State division between rural and non-rural
would be initially in State law. Changes to those designations
would be made by the Boards of Fisheries and Game acting jointly
which is what the legislature authorized the Boards to do when it
created the non-subsistence areas five or six years ago.
The Boards of Fisheries and Game define non-subsistence areas.
There are some odd things outside of these areas like the Kodiak
Coast Guard Base and Prudhoe Bay. These will get a subsistence
priority in the short term, but that is only because they are
outside the current non-subsistence areas. Subsistence areas, as
such, have never been reviewed by the Boards - only non-subsistence
areas.
Number 535
CHAIRMAN HALFORD asked if it worked the other way against Eklutna
and Chickaloon.
MR. MASON replied that Elkutna would be urban. He said there is a
provision in State Statute that has the Boards meeting jointly to
reclassify to the extent necessary. They haven't done that yet,
but the proposal authorizes them to do so. Under current State law
what matters is what goes on in the non-subsistence areas. In a
sense they have never looked at the list of subsistence areas.
Number 710
SENATOR LINCOLN asked if the areas had to be reclassified before
any of this took place.
MR. MASON replied that there is no requirement in the proposal that
the Boards do that before all this goes into effect. They are
authorized to do it after. The reasoning is that the Boards have
at least defined the non-subsistence areas. What is rural under
the proposal and what is rural under the federal scheme are very
close. Under this proposal they would know in advance what the
list was going to be on the day this all goes into affect.
Going forward, the Boards of Fisheries and Game, acting jointly,
would be authorized to move communities around as they changed.
The same thing is true under the federal system which uses
population (2,500 or less is rural; 2,500 - 7,000 has no
presumption; 7,000 and above is presumed to be urban). The
resumption of 2,500 or less is rebutted if the community or area
possesses significant characteristics of a non-rural nature or is
considered to be socially and economically part of an urbanized
area. In making that determination, the federal managers look at
community infrastructure and educational institutions. There is a
requirement in the federal system that there be a rolling 10-year
review. So under the federal system there are communities
classified now as rural that would fall out very soon if the
federal regulations are followed. It would be unfair to say that
the Task Force had made it too easy to toss communities out.
Number 1207
MR. MASON said that Sitka is outside a non-subsistence area.
Saxman is in a non-subsistence area. The Task Force did not make
any judgements about what was rural and non-rural. It decided to
start with existing State law and to give the Boards, and not the
legislature, the power to change it.
SENATOR TAYLOR asked if federal regulations defining rural and non-
rural had been passed.
MR. MASON replied yes, that was the existing federal regulation,
but he didn't know when that was passed. The only reason Saxman is
affected is because the Boards of Fisheries and Game once concluded
that Ketchikan, including Saxman, was a non-subsistence area.
SENATOR TAYLOR said that many people from Saxman testified at a
House Resources Committee hearing that they wanted to make certain
their community qualified as subsistence.
MR. MASON explained that Saxman does not qualify initially, but it
doesn't prohibit the Board from doing that. One of the criticisms
the Task Force has received is that Saxman will no longer be
considered rural. His understanding is that there is concern about
whether the subsistence priority effectively guarantees that people
will take fish or game or whether it's supposed to create a
reasonable opportunity. State law now has a provision that says
you get a reasonable opportunity and it's not a guarantee. The
provision on page 5 is a change in the current State definition of
reasonable opportunity. A proposed amendment to ANILCA is to put
that concept in ANILCA.
The last draft did not have "consistent with customary and
traditional use" and this one does. The intent was to pick up what
people thought was the intent of ANILCA.
Number 1925
CHAIRMAN HALFORD asked how this affected the Bobby Case.
MR. MASON explained that in that Case the Board of Game determined
that certain game had been customarily and traditionally harvested
for subsistence purposes, but it did not create a subsistence
opportunity for taking that game. When the federal court got the
case, it said it would like to follow the determination of the
State Board of Game, and was willing to do so, but the Board had
made no factual findings and had no evidentiary record to support
its decision.
He thought the Bobby Case was no more than a court interpreting an
agency decision with an inadequate record. Some people read Bobby
as establishing the proposition that a subsistence priority
includes the right to hunt without seasons and bag limits; and it
just does not mean that.
CHAIRMAN HALFORD asked what the current moose seasons were around
Lime Village. He thought they were wide open - under State
regulations, specifically under the Bobby Case. If the Bobby Case
is reversed, he didn't think they could tell rural communities
there were no net-loss definitions, because there's clearly a
difference. The same goes for the Peratrovich case.
MR. MASON said from a legal perspective that it's not required if
it conflicts with sustained yield.
Number 2333
CHAIRMAN HALFORD said the precedent that's argued from that case is
that you can in no way restrict subsistence taking until you have
eliminated all other taking and to avoid the elimination of all
other taking in that particular case under the jurisdiction of that
particular judge, they took out all the restrictions on subsistence
taking.
Number 2406
SENATOR MACKIE asked if it was the intent of the Task Force to
overturn the Bobby Case.
MR. MASON replied that it was never discussed in those words. He
thought the intent was to further clarify what is and is not
allowed.
CHAIRMAN HALFORD noted that he had the federal season before him
and it was July 1 through June 30 with no individual limit. He
said that the State actually did it first, before the federal take-
over.
MR. MASON said he didn't know why the State would do that. He
reiterated that there were no express words to reverse the Bobby
Case.
Number 2521
CHAIRMAN HALFORD asked in defining reasonable opportunity that goes
back to terminology used in the Bobby Case, that it does, in fact,
reverse the Bobby Case.
MR. MASON replied that he just didn't know.
SENATOR TAYLOR said he understood that sustained yield was only
used in State law and under ANILCA we would be held to a liability
standard. He asked if that was another amendment to ANILCA.
MR. MASON replied there was no amendment to ANILCA like that. It
says "consistent with sound management principles and the
conservation of healthy populations of fish and wildlife" which is
essentially a conservation-driven standard.
He said that you have to understand the "lands" includes water and
though it is used in Title 8 of ANILCA, it is not defined there,
but is defined in Title 1 of ANILCA. The proposal reproduced that
definition from Title 1. People wanted to be sure that the term
"federal land" did not include State land or private land so that
the proposed amendment to ANILCA doesn't actually change ANILCA.
The proposal simply amalgamates pieces of the definition that show
up in a number of places.
This debate is driven by the Katie John decision and the fact that
land includes water and does it include reserved water rights also.
The Task Force considered, but did not intend, to try to overturn
the Katie John Case. The reason is if the State is managing, Katie
John doesn't make any difference because.
SENATOR TAYLOR asked if there was any attempt to overturn the
Babbit Case.
MR. MASON replied no, that was not discussed.
SENATOR TAYLOR asked if we were truly trying to take over
management, why would leave the federal government with the
regulatory authority.
MR. MASON said there was an important change on page 25. Any time
that the State is managing, it makes the regulations to implement
the rural priority on federal and in case that's not clear, it says
that any time the State does comply with 805, the Secretary shall
not make and enforce any regulations implementing the federal
subsistence priority. The intent of this was to make a very clean
break and to clearly authorize the State to make subsistence
regulations for both federal and State land and to deprive the
Secretary, at the time the State was the authority to do that.
In the State management scheme there are some changes made in the
ANILCA management scheme. So pages 10 - 14 are the amendments to
ANILCA that are necessary to accommodate the State management
scheme.
Number 3627
SENATOR LINCOLN noted that the council in the proposal was to be
advisory and asked if these provisions would weaken the provisions
in ANILCA as to whether the councils are advisory or policy-making.
MR. MASON said he couldn't answer that because the answer depends
on your point of view of the problem. The federal system is in
many respects a fragile system because it is done by regulation
which is implemented by political appointees. The proposal is a
much more State-driven system. So weakness is in the eye of the
beholder.
MR. MASON said there are two things on page 17 that relate to the
Babbit Case. The notion is that if the State passes the State
statutory limits and those are enabled by constitutional
amendments, the State immediately regains management authority.
TAPE 97-37, SIDE A
Number 001
He said that under present federal law the Secretary of the
Interior believes that he has the authority to declare the State
out of compliance with ANILCA. This takes away that power and
gives it to a court. Whether the Secretary really has that power
today is also a question that this would clarify. However, the
Secretary of Interior could sue to find the State out of
compliance.
SENATOR TAYLOR commented that he thought one of the goals was to
ensure State management and to eliminate federal oversight.
MR. MASON agreed.
SENATOR TAYLOR said they needed to keep in mind that an aggrieved
party who believes the State regulation is in violation of their
understanding of ANILCA would first probably go to State court and
then end up in a federal court where a federal judge would
interpret it.
MR. MASON responded that Judge Holland said in the Bobby Case the
standard he would apply is arbitrary, capricious, or an abuse of
discretion. That case went against the State because the Board had
no factual findings. That standard is now incorporated in 807; so
the ability of the federal judge to just free-lance is limited.
More importantly, there is the addition of the requirement that the
federal judge give the same deference to the State agency as they
would to a federal agency of the same sort. This means primarily
the extent to which you will defer to the State agency
interpretation of federal law. Agencies do interpret federal law
up to a point if it is a statute that they are charged with
administering and knowing the interpretive meaning. This simply
acknowledges what many people felt about ANILCA in the first place
- that the State would be managing. And this implements that
intent.
He said this does not take away the ability of an aggrieved party
to go to federal court.
MR. MASON said that issues of sovereignty was a big topic and it
was decided early to be neutral on those and that's what the
neutrality clauses say. A technique that has been used in federal
law before is that the fact of these changes can not be used to
argue for or against Indian country or sovereignty. These issues
are before the court now and there is an argument about whether
ANILCA, Title 8, is Indian law and that is significant because if
a statute is Indian law or remedial Indian legislation, any
ambiguities in it are resolved in favor of the Indians who are the
beneficiaries of the statute.
There was a Supreme Court case years ago involving AMOCO Oil
Company that said ANILCA Title 8 is Indian law. That case was
overturned by the Supreme Court and vacated without ruling on that
issue. Later three associate solicitors for the Interior
Department wrote and opinion that said that ANILCA Title 8 is
Indian law citing that Supreme Court case. That opinion was never
adopted, so it is simply that - an opinion.
The Justice Department has the final say in litigation about the
position the Interior Department will take and it has taken the
position that Title 8 is not Indian law.
Number 1235
CHAIRMAN HALFORD said reference to tribal recommendations for
appointment may be the only provision in all of ANILCA that makes
a specific definitional difference between rural residents and as
such may be problematic.
MR. MASON explained that provision was added in response to
comments from some groups of people that the committee is aware of.
SENATOR TAYLOR asked if the neutrality provision he was discussing
had new language.
MR. MASON said he didn't think it had changed at all. He noted the
next change from the last draft was on page 25.
CHAIRMAN HALFORD announced a 15-minute break.
Number 1507
REPRESENTATIVE AL KOOKESH said the AFN had not seen the final Task
Force document. He said he appreciated having the hearing on the
issue. He said ANILCA extinguished aboriginal hunting and fishing
rights, but did not immediately replace such right to statutory
protection of native subsistence practices. In the rush to open
land for the pipeline, Congress was given the authority to take any
action necessary to protect the subsistence needs of natives.
ANILCA was enacted in recognition of the fact that the Secretary
and the State had failed.
REPRESENTATIVE KOOKESH from written testimony cited alleged actions
taken by the State contrary to subsistence priority. He said in
1980 Congress enacted a rural preference including rural non-
natives and excluded non-rural natives. Their prime motive was to
protect the subsistence way of life in native village and federal
courts ruled in 1984 that Title 8 was Indian Law. Concern for
native villages is also why Title 8 rural preference is based on
customary and traditional harvest and use patterns established over
time. Native people were disappointed by the 1980 exclusion of
non-rural natives from the preference, particularly those who lived
in historically rural native places, that through no fault of their
own had been swallowed up by non-native majorities and were now
defined as urban.
The State of Alaska regulatory bodies were dominated by commercial
interests and refused to regulate in a way consistent with
customary and traditional subsistence practices. The State never
fully funded or empowered the regional subsistence councils
required by federal law. In 1989 the Alaska Supreme Court threw
the rural preference out in the McDowell Case. For the next eight
years the State legislature has refused to allow the voters to
consider a constitutional amendment.
The Native Subsistence Summit recommend the following changes to
the Task Force proposal: The Task Force rural preference must
include better protection for non-rural natives, particularly those
of formerly rural native communities that have been or could be
pulled out of the preference by non-native population growth or
socio-economic change. The optimal solution would be a native or
tribal preference or a rural plus preference that would include all
rural residents plus all non-rural natives. Such options would
also protect natives who have voluntarily moved from villages to
urban centers. At a minimum formerly rural native communities must
get full protection of statutory preference and be allowed to
practice subsistence in their local, customary and traditional use
areas. The inclusion of proxy hunting and fishing opportunities
for people who voluntarily moved to urban ares and periodically
return to their home and educational permits at the discretion of
the State Boards are inadequate.
Customary and traditional as defined by the federal subsistence
board and the Summit unanimously supported ANILCA's present
requirement that subsistence regulations mirror local, customary,
and traditional patterns with no statutory definition. None of
their regional caucuses supported the Task Force definition.
Eleven of the 12 caucuses supported the present federal requirement
that subsistence regulations accurately mirror local, customary and
traditional practices. No caucus supported reasonable opportunity
in the Task Force proposal.
ANILCA does not define customary trade, but allows the federal
courts to adjudicate individual cases of possible abuse. The Task
Force proposal leaves most of the discretion to State Boards and no
caucus supported that.
The Task Force proposal has a list of five protected uses which is
the same as in ANILCA now. State law has the same list and adds
uses for potlatches. The Task Force requires that at Tier II the
Boards must eliminate all customary and traditional uses other than
food. The Summit recommended cultural and religious uses be added
to the list of five and the Tier II limitation be dropped.
The Summit unanimously agreed on the need for comprehensive reform
of the State's regulatory and management systems and endorsed the
Federal Regional Subsistence Council.
The caucus also requested significant reform of the State Boards
proposing a restructuring of the Board, the use of a Subsistence
Board, and regional councils as regional regulatory boards. AFN
recommends that a Task Force strengthen its proposal by adding such
reforms to create a level playing field for subsistence users.
All 12 caucuses insisted on inclusion of co-management as an
essential element of any subsistence management system. AFN
recommends that when the State fails to comply with ANILCA now and
in the future, federal jurisdiction would include all public lands
including the maximum extent of reserved, navigable waters as
currently being provided in federal law, all selected, but
unconveyed laws under the Statehood Act and ANCSA, by act of
Congress, and federal extraterritorial authority to impact
regulatory decisions on State and private lands when necessary to
provide for subsistence hunting or fishing on federal lands and
waters by action of the federal agencies.
REPRESENTATIVE KOOKESH said that all caucuses agreed that no
changes should be made to ANILCA which reduce the power of federal
courts and agencies to enforce the statute. Federal law and
oversight are the only reason why native subsistence practices
survive in the present day.
AFN recommends dropping the limitation of the federal courts to
arbitrary, capricious, and abuse of discretion and the requirement
of deference to State court decisions and elimination of
Secretarial authority when the State is in compliance.
The caucus recommended mandatory language "the legislature shall."
Seven caucuses opposed any amendments to Title 8's current
provisions. Three favored amendments that strengthened current
federal protections. One caucus supported an amendment to
recognize tribal subsistence rights.
No caucus supported the weakened amendments proposed in the Task
Force draft.
All caucuses supported the position that federal and State laws
must recognize and permit a subsistence defense in court.
REPRESENTATIVE KOOKESH cautioned the committee that all caucuses
reiterated their strenuous opposition of the native community to
any attempt to operate a subsistence preference by means of
individualized needs-based permitting. Basing subsistence on a
lack of cash would turn it into a welfare program.
He said the Subsistence Summit adopted a general resolution in
appreciation of everyone's efforts on this issue and stated their
willingness to use all their energy to resolve this problem.
Number 324
SENATOR LINCOLN asked if he supported the legislative
permissiveness of using "may" and using place of residence.
REPRESENTATIVE KOOKESH responded that the AFN hadn't taken a
position on that issue.
SENATOR LINCOLN said the Senate President had been quoted as saying
he needed the native support in order to go forward with this and
asked if native people are keeping the legislature from going
forward with a constitutional amendment.
REPRESENTATIVE KOOKESH replied that he didn't think native people
were holding any group back and they think this is an Alaskan
problem, not a native problem and they are only 16% of the
population. So if the majority wanted to do something without
their blessing, they could.
CHAIRMAN HALFORD said one of the considerations for potential
change of direction was that the preference be a local preference
versus urban preference.
REPRESENTATIVE KOOKESH replied that in 1971 there was a native
preference before ANCSA was passed. It was changed to a rural
preference with everyone agreeing because that's the only way it
could go forward. The question of local preference is just in the
definition. There are some groups in his organization that want a
native preference, but they support a rural preference because it
takes care of most of the people of this State. He does not have
a definition for local preference.
Number 3827
CHAIRMAN HALFORD said he brought up the issue because he didn't
think it was the original intention for someone from the Alaska
Peninsula to be able to hunt in the Nelchina caribou herd 500 miles
away.
REPRESENTATIVE KOOKESH said he didn't think they would come up with
a perfect document, but they should get as close as perfect as they
can.
SENATOR MACKIE said a solution might involve some changes to ANILCA
as part of a package to try to address the diversity in the State
and asked if he thought AFN would be willing to come to the table
with the different interest groups to try to formulate a resolution
that might include some changes to ANILCA.
REPRESENTATIVE KOOKESH answered that they are reasonable people and
want to sit down and be reasonable. This document is only
recommendations and to be considered in the same light as the
Governor's Task Force recommendations.
Number 4145
CHAIRMAN HALFORD referenced the previous (second) draft and asked
which proposals he supported.
REPRESENTATIVE KOOKESH replied that they didn't want to shoot
anyone's proposal out of the water, but they wanted to have a
native position.
SENATOR PEARCE asked what he meant by co-management.
REPRESENTATIVE KOOKESH explained that there are areas that want to
work with the State in an equal partnership.
TAPE 97-37, SIDE B WAS NOT RECORDED
TAPE 97-38, SIDE A
SENATOR WARD asked if his proposals had been submitted to the
Governor's Task Force.
REPRESENTATIVE KOOKESH said that was correct, but he didn't know if
they accepted any of them.
SENATOR WARD asked if he stated native people were "gobbled up by
other populations" they still wanted a priority for subsistence.
REPRESENTATIVE KOOKESH said that if Saxman is considered urban,
they would like them to be considered rural.
Number 258
SENATOR LEMAN asked if he expected rejection of the most recent
proposal of the Task Force by the AFN.
REPRESENTATIVE KOOKESH said he didn't want to comment on the
proposal, but he thought that they should go forward and work on
solving the problem.
SENATOR LINCOLN said she didn't know how the bush voice was going
to be heard if they were going to hold hearings in the four
scheduled in urban areas.
REPRESENTATIVE KOOKESH responded that AFN said they would come
together with anyone to try and resolve this Alaskan issue and he
pointed out that there are more non-natives that live in rural
Alaska than natives. So the problem will be solved for them as
well.
SENATOR TAYLOR said he believed subsistence was a universal human
right and asked if they both agree it is a fundamental right, who
are they asking him to exclude from that universal human right.
REPRESENTATIVE KOOKESH replied in times of shortage only those who
live in urban areas. He elaborated that there are many existing
exclusions like limited entry and the longevity bonus. He said the
scary thing about federal law is that they are allowed to
discriminate by basis of race in their constitution. His concern
is that there are people who are becoming very comfortable with
that federal law.
SENATOR TAYLOR said he had difficulty understanding how he could
exclude this universal human right from 60% of the qualified native
population (what the federal law does currently), because he
believed that there was a cultural imperative out there that needed
to be addressed.
REPRESENTATIVE KOOKESH said the people of Alaska could vote on the
issue as a constitutional amendment.
SENATOR TAYLOR said if the constitutional amendment does exactly
the same thing that the federal law does, the same people will be
excluded on the very same basis.
REPRESENTATIVE KOOKESH said Alaska is the only state that
recognizes subsistence as a use.
SENATOR TAYLOR said he also thought they both had concerns with the
equal protection clause and that it not be based upon a racial
definition.
MR. BYRON MALLOTT, Executive Director, Alaska Permanent Fund
Corporation and member of the Subsistence Task Force, joined the
committee.
SENATOR TAYLOR asked if the Task Force had voted on each of the
proposals as amendments.
MR. MALLOTT said they had adopted the package in a series of
meetings which included recommendations made by the AFN, AITC, and
several other organizations. When they began developing this
proposal it was intended to be presented to the legislature. They
did not think it would be the only proposal under consideration.
They heard two weeks ago that this hearing would focus only on the
Task Force proposal. They, therefore, expedited their process so
they could have a work product. He acknowledged there were
substantive changes and he would be glad to answer their questions
about them.
Number 1906
SENATOR LINCOLN asked if all seven members voted unanimously on
this proposal.
MR. MALLOTT replied yes and explained that the ANILCA amendments
had been forwarded to the congressional delegation for their
review. Copies of the proposed constitutional amendment and the
statutory changes were sent to the State.
Regarding the local issue, he referred the committee to page 42 of
the proposal. He noted that former Governor Jay Hammond had raised
this issue repeatedly and said because of the McDowell decision all
references to local as places of residence have been stricken out
of the State regulatory scheme. The words on page 42 make it clear
that to be eligible to take fish or wildlife in a rural community
or area a person must be a resident domiciled in that area.
Number 2253
SENATOR LINCOLN asked if this is a final proposal from the Task
Force and that it is now up to this body to consider all the
proposals.
MR. MALLOTT replied that they were done with the development of the
proposal and added that they were an ad hoc group. The members
have said they would be available to for purposes like this.
Number 2548
SENATOR SHARP asked about subsistence qualified people taking game
in a subsistence area and shipping it to family members in a non-
subsistence area.
MR. MALLOTT replied they did not deal with that in the context of
a qualified rural subsistence user taking a subsistence resource
and restricting where that resource might ultimately be used. With
respect to the proxy-hunting section where a person from an urban
area can go to a subsistence area and on behalf of a qualified
subsistence person, they have required that the majority of that
resource stay in the area where it was taken.
Number 2817
SENATOR MACKIE asked him to explain why they think a constitutional
amendment by itself would not solve the problem and why changes to
ANILCA won't happen alone, and why it was necessary to package a
deal.
MR. MALLOTT said that other paths had already been tried and early
on they had discussion with the Department of Interior and our
congressional delegation on these specific questions. They were
told in an unqualified way that they would not be able to amend
ANILCA in ways that fundamentally disturb the present scheme. They
were told if they want to amend ANILCA to reduce the possibility of
continuing litigation that congress could be responsive to that.
If they wanted to create definitions in ANILCA that had plagued the
implementation of the rural subsistence priority, they would be
considered. Hearing all those things, it became clear to them that
a constitutional amendment would be necessary.
Getting State management of all of its lands back without any
further encroachment of federal management and to recognize the
importance of subsistence to Alaskans through minimal changes in
each area were the two motivating forces behind the Task Force, Mr.
Mallott said.
SENATOR WARD asked if the Task Force ever discussed possibilities
of litigation in the U.S. Supreme Court.
MR. MALLOTT replied that they looked at all of the litigation
before and after the McDowell litigation and that is why the Task
Force formulated their proposal - to avoid federal litigation as
much as possible.
Number 3718
SENATOR TAYLOR asked who told them they could not amend ANILCA.
MR. MALLOTT replied that it was the product of several discussions,
both with the congressional delegation and the Secretary (in
Fairbanks this summer). He explained that the notion of amending
ANILCA and the direct response of no had to do with changing the
fundamental rural priority.
SENATOR TAYLOR asked if it also had to do with returning full fish
and game management to the State of Alaska without federal
oversight.
MR. MALLOTT replied that the administration and the congressional
delegation didn't say it couldn't be achieved; they said it would
become a divisive battle.
SENATOR TAYLOR said he heard that the Secretary of Interior stated
that any substantive change to ANILCA would be met with a
presidential veto.
MR. MALLOTT said he didn't recall that language. He recalled that
the Secretary said he felt very strongly that he had a special
trust relationship with Alaskan natives and he took that very
seriously and a subsistence priority for both natives and non-
natives would require him to consider that very seriously. So they
took it to understand that would be a veto.
SENATOR TAYLOR asked if he thought this was as close as they could
come to compliance with the federal law.
MR. MALLOTT replied yes; they have clarified definitions that were
sticking points - clarified judicial oversight, clarified the
direct role of the Secretary during State management; and in the
State system they have created the clarity that did not exist
before.
SENATOR WARD asked if someone goes to Fairbanks from Minto, how
many days can they stay before they are no longer rural residents.
MR. MALLOTT said he didn't know and that they had only looked at it
in the reverse.
MR. MASON returned to testify again and added that Lime Village has
a 25 day season with a one-bull limit to Tier II. He also added
that the State has no right to sue the federal government in the
U.S. Supreme Court. On whether the ANILCA amendments are possible,
he understands that the sorts of amendments proposed here are not
the kind that would be blocked by presidential veto.
MR. MASON said the management provisions are pages 35 - 40. Then
he suggested starting on page 28. The changes there are simply
mechanical to defining non-subsistence areas using the same basic
language to create a process for defining subsistence areas and
then implementing the rural priority.
CHAIRMAN HALFORD asked if every area classified as rural became a
subsistence area even if they currently don't have a subsistence
determination.
MR. MASON replied that he understood that there are some that would
be classified that way, but because they currently have no
subsistence use, they have no subsistence priority under State law.
However, they are eligible for it.
MR. MASON said term "wildlife" was changed to "game."
TAPE 97-38, SIDE B
Number 001
CHAIRMAN HALFORD asked if we still have a Tier I and Tier II
system.
MR. MASON answered yes.
CHAIRMAN HALFORD said the difference between Tier I and Tier II in
the past was local and if what Mr. Mallott says is correct, it
would apply to everything. He asked how that coincided with
language on page 42 saying a person must be a resident domiciled in
the community or area. He asked if that only applied in Tier II
and if they still have Tier II.
MR. MASON replied that he just didn't know the answer.
CHAIRMAN HALFORD noted that under the old system Tier I was not
local-area determined. Tier II was local- area determined. He
said if the amendment adopted on page 42 is correct, both would be
local area-determined. And yet we still seem to have two tiers.
MR. MASON said that provision literally read that the hunter in a
rural area had to live there and that's not the intent. This
sentence should be read in conjunction with other text. It's
possible it needs to be changed, but the intent is to be eligible
to take fish or wildlife in a rural community area using a
subsistence priority that you got by living there.
CHAIRMAN HALFORD said he didn't think that was a bad change.
MR. MASON said there are other criteria for Tier II which have to
do with availability of other resources and that would still apply.
That's the reason you would still have Tier I and Tier II in
theory. He didn't know whether there was any practical Tier I and
Tier II distinction.
MS. MARY PETE, Director, Subsistence Division, added that Tier I
referred to Alaskan residents only. You go through a series of
steps to determine whether you're providing what's reasonably
necessary for subsistence. All uses can be accommodated. In other
words there's a harvestable surplus that can accommodate everyone
in the State. It doesn't matter where you live. If there's a
general hunt in an area, all Alaskan residents qualify.
Number 408
CHAIRMAN HALFORD asked if there would still be that priority.
MS. PETE replied that a Tier I would concern all Alaskan residents.
CHAIRMAN HALFORD said he thought the tier system was created by the
Supreme Court for everyone to get into.
MS. PETE informed them that Tier I and II existed before McDowell.
CHAIRMAN HALFORD said that Tier I didn't include all Alaskan
residents; it included all Alaskan rural residents and asked why
that was being reversed.
MS. PETE said he was correct, but that was not being reversed. She
explained that Tier I is for all Alaskan residents even before
McDowell.
CHAIRMAN HALFORD said that prior to McDowell Tier I was rural
residents and the second tier priority was rural residents in the
area where they caught the resources.
MS. PETE restated that Tier I is Alaska residents. If you have to
determine among subsistence uses using rural residency, that's pre-
Tier II. It's still within Tier I.
CHAIRMAN HALFORD asked if current Alaskan residents who apply for
a Tier I permit to hunt Nelchina caribou, if we pass this law, will
they be able to apply for a Tier I permit to hunt Nelchina caribou.
MS. PETE answered rural residents only.
CHAIRMAN HALFORD asked, then, the Fairbanks and Anchorage residents
who apply for a Tier I permit for Nelchina caribou will no longer
be able to apply for that permit.
MS. PETE answered that was correct.
Number 617
MR. MASON said that she was describing the season provisions that
are already a part of State law. Nothing is changed there.
CHAIRMAN HALFORD said it didn't work the same way, because now it
only applies to rural residents. Currently, the court says that
applies to all Alaskan residents.
MR. MASON said he meant the process the Boards go through in
determining what's available would work the same. There is no
intent to change that.
MR. MASON said that page 35 begins the management provisions which
create the regional subsistence councils which were in regulations
before. It does give them a very strong voice in the management of
subsistence.
Page 46 has a proxy provision and he said it does accommodate the
AFN points. It is meant to accommodate the urban native in
conjunction with a provision that appears a little later for
educational permits.
Provisions from there to the end are definitional changes that he
has already talked about.
SENATOR TAYLOR said he understood Representative Kookesh said that
the majority of people living in rural areas are non-natives and
asked if that took care of non-native families who also have family
members in Anchorage.
MR. MASON said it does. Specifically the Task Force was concerned
about the AFN concern with urban natives.
SENATOR TAYLOR asked if it took care of urban natives who don't
have a family member living in the bush.
MR. MASON replied that was correct and said that there was a permit
provision for the urban native and educational provision without a
priority for subsistence activities.
SENATOR LEMAN asked if there was a definition of family.
MR. MASON said there is although there might be a glitch because
family includes people who are not blood related, but live in the
household. He didn't think the Task Force meant to pick up the
extended family. The definition is the same as in federal law.
MR. DAVID KELLYHOUSE, Wildlife Biologist, started his testimony
with a quote from U.S. Supreme Court Justice Scalia in a recent
majority opinion. "The federal government may not compel the
states to enact or administer a federal regulatory program." This
was in Prince and McVie v. U.S. regarding the Brady bill.
Nevertheless this is the uncomfortable position the Alaska
legislature is placed in now.
As a former director of the Wildlife Conservation Division, he
urged them to make changes to the Task Force proposal. The changes
address racial neutrality throughout, fish and game conservation
protections, and some of the practical consequences of the proposal
for a constitutional amendment. If there is an amendment, it
should provide for a preference rather than a priority and that
language would be more consistent with language in ANILCA and our
own constitution. It should provide for the consideration of
eligibility factors such as personal nutritional need and regional
economics in addition to simple rural residency. It should
specifically prohibit the consideration of a race either directly
or indirectly as a basis for subsistence preference.
Under the statutory changes he thought customary and traditional
should be deleted from State definitions of reasonable opportunity
proposed by the Task Force. Federal Judge Holland in the Bobby
Case has ruled that customary and traditional is the standard for
providing a subsistence preference and that has been applied by
federal and State Boards to mean essentially no seasons, no bag
limits or individual harvest reporting requirements.
It has lead to instances of localized over-harvests, unacceptable
harvesting practices and other abuses. Examples include excessive
seasons and harvest of moose and caribou and herd shooting at
concentrations of wintering deer from boats in coastal Alaska.
Other activities which have characterized either in court or in
front of the Board of Game as customary and traditional include
jack-lighting deer at night, road hunting, shooting swimming
animals, and running animals down with snow machines. It's also
been argued that obtaining harvest permits and reporting harvests
are not customary and traditional and, therefore, should not be
required of subsistence hunters.
In his professional experience, seasons, bag limits, restriction of
methods and means, and harvest reporting are necessary conservation
tools and must not be jeopardized by including the term "customary
and traditional" in the definition of what constitutes reasonable
opportunity for subsistence taking.
In AS16.05.258 the definitions "human consumptive" should be
inserted before subsistence use wherever that term is used to
clarify that subsistence preference is only for human nutrition and
not for dog food or other intangible or lesser uses.
The role and composition of the regional subsistence councils are
particularly egregious. No new quasi-regulatory bodies are needed
and should not have the power to keep regulation proposals
generated by the public from being presented to the Boards of
Fisheries and Game.
Mandating that seven of the 10 members of such councils represent
subsistence and tribal counsel interests is grossly unfair and
racially discriminatory. If need at all, he suggested naming them
the Regional Fish and Game Advisory Councils; their role be limited
to resolving and considering inter-regional issues; and their
members be the chairmen of all local fish and game advisory
committees within each region.
Federal funding should pay for all of the cost of these things.
MR. KELLYHOUSE also took exception with proxy-taking because the
Task Force said they wouldn't put anything on the table that wasn't
needed to restore management. The liberalization of proxy should
be debated separately.
He noted that the rural population would continue to increase and
the fish and game resource is finite and he hoped the committee
would take all due precautions to ensure that urban and non-rural
Alaskans are not ultimately bled-out of our outdoor heritage.
MS. CESA SAM, Huslia Tribe, asked Senator Lincoln why she didn't
have any hearings in the villages she represents (over 92
villages).
CHAIRMAN HALFORD noted that Senator Lincoln had requested hearings
and times were being coordinated.
Number 1855
MS. SAM said she thought it was very important for the villages to
have a say in this issue because they are seriously affected by it.
She wanted to know who will decide what the word rural means and
she wanted it voted on by all Alaskans. She said her tribe
supports tribal co-management because they know their area very
well. They are more than willing to work with anyone.
Number 2619
MS. PATRICE SALMON, Chalkytsik Tribe, said she didn't understand
the response to why they weren't holding hearings in the bush
villages.
CHAIRMAN HALFORD explained the difficulties of transportation, time
constraints, and housing.
MS. SALMON said she would like the subsistence management to be
done by the local residents in co-management with the State. She
increased pressure on our resources from outside hunters hurts the
bush villages. She said she hadn't seen the Task Force proposal.
MS. MARJORIE ATTLA said her tribe was taught to take care of their
stuff and if they work together and hand it down to generations it
would be good for the resources. She said she hadn't seen the Task
Force proposal. She asked why they were not having hearings in the
villages. She wanted to see Alaskan residents decide on which
preference they were going to use. She pointed out that they are
asking for only 4% of the resources and only to feed their
families.
MR. PATRICK SAYLOR, Healy Lake, said they don't have salmon up in
his area and are basically big game hunters in the upper Tanana
which means they have to hunt all year round and when they kill,
they use all of it. Hunters are getting to be fewer because they
are getting older and a lot of them are getting game violations
which makes them a felon which means they can't get regular jobs
like anyone else. They are just trying to feed their families.
This is wrong. He asked who was going to take care of a hunter's
family while he is in jail for 10 days for a game violation.
He said his village had many years of consistent use of game. He
also noted that as a rite of passage a young person has to hunt and
when he kills something, he gives it to the whole community. This
is a religious belief.
MS. MILLY BERGMAN, Allakaket Village, said the subsistence proposal
would have a deadly impact on the very core of their traditional
native life style. She asked them who gave them the right to make
decisions about their lifestyle which they have practiced for
centuries. She said they did not take them into consideration in
the proposal.
SENATOR LINCOLN explained that subsistence is not food, but a
lifestyle and asked her to explain the lifestyle.
MS. BERGMAN said her grandma would say if she put food before her
and it was beef, "What the heck is this?" and she wouldn't want it.
She would not eat it ever. You cannot change an old person. She
needs game, fish, rabbit, beaver, etc.
TAPE 97-39, SIDE A
Number 001
MR. BENEDICT JONES, Koyukuk Native Tribal Council, stated he has
been a subsistence user all of his life. He said the Native people
have traditionally been living a subsistence lifestyle since before
statehood and before the Russians ever claimed Alaska. He said
subsistence users not only hunt game and fish, they also use edible
plants. He voiced his support for the Alaska Federation of
Natives' position on subsistence, which, he said, is much the same
as the Governor's Task Force proposal.
Number 435
MR. GERALD WALKER of Holy Cross stated they have been having a lot
of trouble with trophy hunters coming into their area, Game
Management Unit 21-E, which is a controlled area. Over the past
three to four years numerous calls have been made to the Alaska
Department of Fish and Game about these violations, but the
department says they don't have the airplanes or personnel to
police that area. He said his people don't mind subsistence
hunters coming into Unit 21-E, but there have been too many times
when hunters have come in just for the racks and maybe just a
little bit of meat. He asserted this problem is making people
lean more towards federal control because the feds at least answer
the phone and talk to them, even though there is nothing they can
do because this is happening on state land.
Number 740
MR. GERALD OLDMAN, Hughes Village Council, also spoke of concerns
with big games hunters and the impact they will have on moose
breeding stocks in years to come. He would like to see the moose
population in his area continue for generations to come.
Number 949
MR. RANDY MAYO, First Chief, Stevens Village Tribal Government,
said they can in no way accept a proposal, be it State or federal,
that would compromise the federal trust responsibility to them
through the treaties and agreements that were made. He stated his
people view the federal government as the lesser of the two evils.
Their village is located near the North Slope haul road and they
have seen firsthand the lack of response from the Department of
Fish and Game and the State Troopers, and he questioned how the
agencies responsible for these areas can get out and patrol them if
their budgets keep getting cut.
MR. MAYO also pointed out there are weaknesses in the Alaska
National Interest Lands Conservation Act (ANILCA) relating to rural
preference because there is no mention of tribal governments or
tribal areas. He also said the Alaska Native Claims Settlement Act
(ANCSA) was the worst legislation for the tribal governments
because it did away with a lot of their rights and they lost 80
percent of their land because of it. He concluded that a lot of
deficiencies with the current system is the lack of the tribal
governmental hand in the decision and policy making in co-
management scenarios.
Number 1633
MR. VERNON JOSEPH, born in Tanana, but a resident of Fairbanks
since 1985, said he is raising his five children as close to
traditional and cultural respectfulness to their people as he can.
This is hard to do living in an area where cultural awareness, in
a Native sense, is viewed as not appropriate, but he still has to
maintain an obligation to a sense of moral, spiritual and emotional
well being to his children, to teach them in a way that is going to
be conducive for them to get along in a world that doesn't teach
them that. He noted the large influx of hunters coming in from the
Anchorage area with air boats and four wheelers to hunt for moose
and bear. This affects people like himself in the Fairbanks area
who have to hunt in order to feed their families because they don't
have the necessities to do that.
MR. JOSEPH said he does not believe the Governor's Task Force
proposal is really sensitive to Natives or non-Natives, instead it
has turned into more of a political deal than a human aspect as it
should be. He said no matter which way this goes he is going to
hunt, even if he has to go to jail because he knows his relatives
will take care of his children.
Number 2240
MR. ROGER NICHOLAS, representing the village of Kaltag, said the
Alaska Constitution will be amended to permit, but not require
Alaska legislation to grant a subsistence priority based on place
of residence. He pointed out that part of his extended family
comes from Unalakleet, which is an Eskimo area across on the coast.
They get seal oil from there and trade Native foods back and forth,
but he has heard that they will not be able to ship Native food
from one place to another. He said that is like giving everyone
a Jewish yellow star and telling them that they are going to live
here, but they are not going to be able to eat their Native foods
anymore. Responding to the earlier question on whether he believes
in the package proposal before the committee, he said he can't do
it without the majority opinion of the residents of Kaltag.
However, his own opinion is that he disagrees with it.
Number 2717
MS. ANNA PICKETT, Fairbanks, said her mother is from Nome and Koyuk
and her father is from Tanana and Unalakleet. She said the
subsistence issue is about human rights; it's not just subsistence.
She does not live a subsistence lifestyle because of the way she
was raised, but she does know what subsistence is. She said it is
a matter of sharing, bonding, getting along together and survival.
It is not just food. It is a lifestyle passed on from generation
to generation, and while she agrees that management belongs within
the State of Alaska, she would just as soon have federal management
if the State continues to squander away the Alaska Native peoples'
rights. She said if the state would give consideration to co-equal
management with the very people who know the land, know the
resources, the State may find that the resources would grow.
MS. PICKETT also expressed concern that hearings on the subsistence
issue are not being held in the rural areas of the state.
Number 3647
SENATOR TAYLOR asked Ms. Pickett if she was in support of the
Governor's Task Force proposal, and MS. PICKETT responded that she
does not support it as it is currently presented. She suggested
there could be some changes made such as "permitting" versus
"shall" in the state constitutional amendment.
Number 3759
MR. GIDEON JAMES of Arctic Village said each area of occupancy for
subsistence use has been in existence for many generations of
Native people, and it has always provided a way of life for each
community in rural Alaska. He said the state of Alaska and the
Legislature need to understand that this existence or way of life
in the rural areas is where Alaska Natives raise their families,
and it is a continuous life cycle. He estimated it is somewhere
around only two percent of the game resource in Alaska that is
being addressed here, and he believes that the Alaska Natives have
done no harm to the game resource and have used it wisely. He said
that instead of attacking their way of life, the State needs to
control the existence of uncontrolled hunting in many areas of
Alaska.
MR. JAMES said he strongly recommends that Alaska Natives fully
support the principle adopted at the AFN's subsistence summit. He
also suggested subsistence task force meetings need to be held in
the villages because a lot of times laws are passed with very
little input from the people who will be impacted the most by its
passage, as well as the need to explain these proposals to the
elders in the villages.
TAPE 97-39, SIDE B
MS. ANNIE JAMES, the teenage daughter of Gideon James now living in
Fairbanks, said as she understands this issue, they want to take
her culture away. She lived in Arctic Village most of her life and
moving into the city was very hard because the lifestyle is so
different. She loves the subsistence lifestyle and it will be hard
for her if she can't live that way anymore.
Number 042
SENATOR TAYLOR asked Ms. James who is she being told is trying to
take that lifestyle away from her. MS. JAMES responded that is how
it sounds to her. SENATOR TAYLOR said he keeps hearing the phrase
"They want to take away our lifestyle," but he doesn't know who
"they" is. GIDEON JAMES interjected that he believes it is him.
SENATOR TAYLOR asked Mr. James if he supports the Governor's Task
Force proposal. MR. JAMES answered that he doesn't support it
because he has not seen it. He added that a lot of the time these
task forces meet secretly and don't talk to the people, so by the
time they have designed something it is too late for the people to
do anything about it.
Number 343
WALTER FLITT of Fort Yukon said for his people subsistence has been
and will continue to be their way of life. His concern is that
planning is being done on his way of life without his input. He
believes the solution to this issue is to work together on a rural
preference in a constitutional amendment and to let the people vote
on it. Until this happens, he is inclined to go with the federal
management. He added that he hasn't heard anyone address the
possibility of extending the moratorium, which he is against
because the State has had 16 years to address the subsistence
issue.
Number 547
TOM SCARBOROUGH of Fairbanks said the real issue is not about
subsistence, instead there is another agenda entirely behind all of
this. He said he feels sad that the people addressing the
committee believe that their subsistence lifestyle is going to be
taken away from them, but that is not the issue and no matter what
the outcome of this, their lifestyle is going to stay the same. He
said he can't name one non-Native group that has come forward in
support of the Governor's proposal.
He said the Alaska Constitution will not allow the Legislature to
put into effect the statutes that are being proposed. He believes
the proposal is a delaying tactic and a giant con job. It is an
attempt to violate one of the most basic principles that this
nation is founded upon, which is equality, and Alaska's people are
not going to allow this attempt to set up an apartheid system of
discrimination between rural and urban, which will come forward if
this issue is put on the ballot.
SENATOR LINCOLN asked Mr. Scarborough what the agenda is about if
it is not about subsistence.
MR. SCARBOROUGH responded that the issue is who is going to manage
Alaska in the future: is it going to be managed under the federal
government and the east coast elitists that dictate that, or is it
going to be managed as a state on an equal footing with the rest of
the states.
SENATOR LINCOLN also asked if he views the 56 page document as the
governor's document or the task force's document.
MR. SCARBOROUGH answered that he thinks it is a document that was
probably put together behind the scenes by Senator Stevens and
forwarded to the task force.
Number 1233
MR. GABE SAM of Fairbanks testifying on behalf of the Tanana Chiefs
Conference (TCC) stated their support for the seven guiding
principles in a resolution adopted by the Native Subsistence Summit
during their August summit. Those principles are:
(1) Full participation and consent of Alaska Native communities
including hearings in the region;
(2) A subsistence priority based on Alaska Native community
religious, spiritual, nutritional, medicinal and cultural practices
rather than on an individual needs basis;
(3) Only amendments which enhance subsistence rights, maintain
federal oversight, at least to its current level;
(4) Co-management including state, federal, tribal and co-equal
involvement;
(5) Full recognition of customary, traditional uses including
religious, spiritual and ceremonial;
(6) Effective, comprehensive reform of the state management
system; and
(7) Recognition that subsistence is a basic human right.
Mr. Sam questioned if the Native Summit's proposal and guiding
principles will be incorporated into the governor's final plan, and
he pointed out there was not strong Native involvement on the task
force nor has Native input been actively solicited. He stressed
the need to talk and listen to the Native communities because they
are well informed on subsistence. He said the governor's proposal
fails to recognize either a Native subsistence priority or a tribal
right to co-manage.
Number 2203
MS. CLARA JOSEPH, representing the Beaver Village Council, stated
all of the people in her village have lived a subsistence lifestyle
for many seasons for fish and game, in fact, they are busy hunting
and gathering right now. She said she knows that if people in her
village could testify they would say the "higher ups" don't know
anything about their way of life and some of them are not too
concerned about their village and their future.
Number 2402
MR. DAVID JAMES of Fort Yukon, speaking on behalf of the Gwich'in'
people, stated his people do not support the Governor's Task Force
proposal. It does not recognize tribal government authority; it
only makes reference to tribal councils or organizations or
corporations, which, he said, do not have tribal authority. He
said the same secretive process that was used when the Alaska
Constitution was written without any input from the tribal people
is being used in putting together the governor's proposal on
subsistence.
MR. JAMES stated there is nothing wrong with ANCSA and ANILCA and
they should be left as they are. He also noted that the tribal
government in the Yukon Flats is moving toward a co-management
agreement with federal managers and with the State in order to
maintain the fish and wildlife and other natural resources.
Number 2955
MR. CURTIS TINDELL of Fairbanks said he attended the Native
Subsistence Summit, but he does not think there was a Native
consensus, that it was more of a Native compromise. He said this
is a very emotional issue and it took him several days after the
summit to get back to normal. He went to the summit with a pro-
federal stance and he thought all the Native people there would
have the same stance, but he heard a lot of pro-State management
and a willingness to work with the State. However, now he sees it
shifting back to a more pro-federal stance. He said the Native
people want to be able to co-manage and have a strong equal voice
in the management of the fish and game.
He also stressed the importance of legislators going to the
villages so that they will have a better understanding of the
Native people and their lifestyle.
MR. BYRON HALEY of Fairbanks stated the Alaska Constitution gives
every resident an equal right to fish and game and other renewable
resources by the common use clause in it, and he strongly rejects
any change to the constitution by adding the word "rural" to it.
He questioned why the subsistence task force hearings were held
when the consumptive users of moose were in the field hunting for
their winter meat. He said it seems like they did not want to hear
from urban consumptive users or sport hunters. He stated he does
not support the subsistence task force proposal or recommendations
on subsistence, but he strongly supports a statement on the
subsistence issue prepared by the Alaska Outdoor Council. He
concluded subsistence needs, if any, should be a preference not a
priority.
Number 3756
DICK BISHOP of Fairbanks, representing the Alaska Outdoor Council,
stated the council does not support the task force report, as
written, and suggested that it needs substantial revision.
He said they thoroughly agree with the statement that subsistence
is a basic human right and the Alaska Supreme Court made that point
eight years ago in the McDowell Case when is said subsistence is an
important value running to every Alaskan, too important to
discriminate on the basis of zip code. One Justice said that this
was an equal protection case and an ease one at that.
The Alaska Outdoor Council has repeatedly stated that subsistence
uses and lifestyles are integral values of Alaska and Alaskans, but
a law saying that no one but those of an arbitrary closed class
group can hope to qualify for those important value or for those
basic human rights is wrong.
MR. BISHOP said this is a civil rights issue; it's not about who or
culture. It's about whether the law of the land, State or federal,
should continue to ratify discrimination against a majority of
Alaskans and against a majority of Americans regarding the use of
fish and game and other natural resources.
He thought Secretary of Interior Babbit was blowing smoke when he
said they couldn't do anything about it. He said he would like to
hear Senator Stephens say to Congress that the opportunity to
pursue subsistence should not be discriminated on the basis of zip
code. He thought Congress would listen.
The Governor's Task Force proposal ignores the premise that
subsistence is a basic human right. It says it's a basic human
right only for a privileged few. It attempts to make a rural
priority palatable by some much needed tightening up, but it begs
the Alaska public and legislature to vote for discrimination and
against equal protection before the law.
MR. BISHOP said they think it is possible to adequately accommodate
the needs of people who rely on personal consumptive uses of fish
and wildlife for their livelihoods and lifestyles without
compromising the common use and equal protection provisions of
Alaska's constitution. We have suffered through 20 years of bad
political compromise on subsistence. Adding one more will only
make matters worse.
The ball is in the legislature's court and someone must stand up
for the values and rights of all Alaskans and the use of our common
property fish and game resources or our congressional delegation
will keep dodging the issue. There is no difference in long term
results voluntarily buying into the federal law or having it
stuffed down our throats. The last time Alaska agreed with a hasty
political compromise on subsistence we got into this mess and it's
time to get out.
SENATOR LINCOLN asked if they had reviewed the amended Task Force
proposal to make their recommendation and asked how he defined
subsistence. She then asked what he thought was the right
direction.
MR. BISH0P said he received a copy of the revised version a short
while ago and had looked at the changes that were made, but the
basic problem with the proposal is that it starts from a flawed
position because it does not recognize what the native subsistence
summit stated which is that subsistence is a basic human right.
However, they went on to recommend discrimination against some
humans for a basic human right which is illogical and unfair.
He recommended that they should start with the fact that
subsistence is a basic human right and that all people are equally
entitled to qualify for that right and go from there. This is the
thrust that our constitution gives.
SENATOR TAYLOR asked if he knew of anyone in the State who has been
prevented from practicing or participating in a subsistence
lifestyle if they wish to do so.
TAPE 97-40, SIDE A
Number 001
MR. BISHOP said some people who may in fact rely just as heavily on
those resources for a better lifestyle, as rural people do, are
being precluded from hunting in some areas.
CHAIRMAN HALFORD said they would have to put that back in context
and said in real hard-core subsistence areas in western Alaska
where it is illegal to harvest waterfowl that no one would be
convicted because they need something to stay alive.
MR. BISHOP said there is a law that says if you need food to
survive, it's legal to take it. However, in many cases what is
being taken is so-called customary and traditional take. It's not
even a matter of adequate nutrition, just preference.
MR. JOHN COADY, Division of Wildlife Conservation, said he is
speaking not for the Department, but as a department biologist. He
is deeply committed to State management of our wildlife resources.
He said it's obvious that centralized management by the Department
without public participation is not longer effective. In his areas
the Department has never had a better understanding of our wildlife
resources than they do now. They have worked to earn the trust and
confidence of all Alaskan hunters. Their attributes of assessing
populations, resources use patterns, recommending harvest levels to
the Boards, and providing public services have never been
attributable to any other wildlife organization.
Dual management bears a high cost to the State. It insures
continued conflict with federal managers and continued risk to
wildlife resources because of unfortunate decisions by the federal
subsistence board, it insure continued confusion and frustration
among all hunters caused by two overlapping often conflicting
regulatory systems, and it insures continued loss of hunting
opportunity for urban hunters as areas are closed to non-local
residents whether it is necessary or not.
He thought it also brought an uncertain commitment to subsistence
hunters by the federal government as national constituencies exert
greater influence on management decisions in Alaska.
Dual management will result in continued erosion of Alaska's
responsibility and management authority and more polarization among
stake-holders. No action by the State is a melt-down position. He
thought the same thing would eventually be applied to fisheries
management, as well. He urged them to use the Governor's package
to resolve the subsistence impasse immediately.
MS. BONNE THERRIAULT-WOLSTEAD said she believed Alaska's fish and
game resources are it's second permanent fund. Subsistence means
something different to every person and due to our geographic and
cultural, and economic diversity we, as a State, will never
completely satisfy all people as to the definition of subsistence.
She said the use of the fish and wildlife and plant resources have
played a significant role in her family and for many pioneer
families. The emotional power the resources have for her family
are just as strong as any other person's who will testify before
the committee.
If the State maintains control it may be possible to work out
seasons and bag limits. For those who advocate federal management
she asked them to consider what happened to Alaskan fisheries and
marine mammal, the subsistence seal hunts on the Aleutian Island,
before statehood. She asked if they truly wished to have people
unfamiliar with Alaska imposing fish and wildlife usage.
The laws recently passed relating dog tethering is a perfect
example of how a simple act passed outside has a differing impact
on Alaskans. When the D2 lands bill was originally proposed,
simply flying over large areas of the State was going to be
outlawed.
She asked the legislature to fully fund a review of the use of the
local fish and game advisory boards which were set up so that
people who were directly involved in the resources could make
recommendations based on local knowledge and needs.
She said we must all recognize that life is not a stagnant force,
change will happen. We can rail against it or work with it.
She thought the federal take-over needed to be avoided the most.
MS. MARY BISHOP said they should consider an increase in the budget
for the protection division. She did not think it was appropriate
for any government to find who is and who is not a subsistence
user. The term has taken on a life of its own. Many people in the
bush believe this will take away their subsistence rights. She
wanted them to use "priority use" because the term subsistence
could not correctly be applied to what they are talking about.
MR. JOHN MILLER said there are many Alaskans who are neither native
or rural who have a long history of wildlife-oriented consumptive
use and feel it is an important part of their culture which is just
as important as anyone else's.
MR. JOE MATTIE said his family was licensed to hunt and trap.
These activities have allowed his family to visit many remote areas
and meet many wonderful people who have chosen to live off the
land. He said the issue of subsistence had turned their eyes away
from the real issue at hand which is responsible and active
wildlife management. He thought we needed to return to being a
land with abundant wildlife populations. He thought the
subsistence dilemma was because of inactive wildlife management.
He noted that he was part of a local organization called the
Caribou Calf Protection Program that was dedicated to restoring and
maintaining wildlife populations. In the two years they have been
in existence their focus has been on restoring the Forty-mile
caribou herd. The herd is coming back at an unprecedented rate and
the people are united in this cause regardless of race, residency
or occupation empowered by the prospect that there will be plenty
of game for all - recognizing that having a first priority for game
where there is no game is a meaningless pursuit.
He thought everyone felt very threatened because they didn't think
they'd get a chance to hunt anymore. He thought if they could deal
with the concept that they are talking about 2% of the animals that
are killed (the rest being killed by predators), they could have a
solution well in hand.
SENATOR TAYLOR asked of the 15 people who were left if anyone
supported the Governor's plan. There was one hand he announced.
SENATOR LINCOLN noted that most people said they did not have a
chance to read the Governor's proposal.
CHAIRMAN HALFORD said the committee would be having more meetings
and adjourned the meeting.
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