Legislature(1997 - 1998)
09/27/1997 01:13 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
Anchorage AK
September 27, 1997
1:13 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor
Senator Georgianna Lincoln
Senator John Torgerson
MEMBERS ABSENT
Senator Lyda Green, Vice Chairman
Senator Loren Leman
Senator Bert Sharp
ALSO IN ATTENDANCE
Representataive Scott Ogan, Co-chairman, House Resources Committee
Representative Bill Hudson, Co-chairman, House Resources Committee
Representative Con Bunde
Representative Reggie Joule
Representative Bill Williams
COMMITTEE CALENDAR
Interim Hearing on Subsistence
WITNESS REGISTER
Mr. Byron Mallott, Member
Task Force on Subsistence
Office of the Governor
P.O. Box 110001
Juneau AK 99811-0001
POSITION STATEMENT: Reviewed Governor's Task Force on Subsistence
proposal.
Mr. Julian Mason, Staff
Task Force on Subsistence
Office of the Governor
P.O. Box 110001
Juneau AK 99811-0001
POSITION STATEMENT: Reviewed Governor's Task Force on Subsistence
proposal.
Mr. Ed Earnhart
1043 W 74th Ave.
Anchorage AK 99516
POSITION STATEMENT: Commented on and supported subsistence issues.
Mr. Wayne Ross, Committeeman
National Committee, Republican Party
P.O. Box 101522
Anchorage AK 99510
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Charles McKee
P.O. Box 243053
Anchorage AK 99524
POSITION STATEMENT: Commented on world issues.
Mr. Hank Ostrosky
320 H Lane, Apt G
Anchorage AK 99508
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Dale Bondurant
HC 1, Box 1197
Soldotna AK 99669
POSITION STATEMENT: Opposed Task Force proposal.
Ms. Patty Ginsburg, Executive Director
Commonwealth North
810 N St., #202
Anchorage AK 99501
POSITION STATEMENT: No position on Task Force proposal.
Mr. Charlie Edwards
211 McCarrey, #16
Anchorage AK
POSITION STATEMENT: Commented on subsistence issues.
Mr. Joel Blatchford
1983 Waldron Dr.
Anchorage AK 99507
POSITION STATEMENT: Commented on subsistence issues.
Ms. Tuqalik Hepa
North Slope Borough
P.O. Box 69
Barrow AK 99723
POSITION STATEMENT: Commented on subsistence issues.
Mr. Jerry McCutcheon
Anchorage AK
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Griffin Quenton
2020 Muldoon Rd.
Anchorage AK
POSITION STATEMENT: Opposed Task Force proposal.
Ms. Terry Burrell
P.O. Box 665
Sitka AK 99835
POSITION STATEMENT: Commented on subsistence issues.
Mr. Bob Juettner
Aleutians East Borough
9550 Basher
Anchorage AK
POSITION STATEMENT: Supported Task Force proposal.
Mr. Randy Kubitz
18124 Meadow Creek
Eagle River AK 99577
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Landis Tew
19415 Skyline Dr.
Eagle River AK 99577
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Warren Olson
5961 Orth Circle
Anchorage AK 99516
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Gary Masog
7610 Old Harbor Rd.
Anchorage AK 99507
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Doug Pope, Member
Board of Game
3940 Clay Products
Anchorage AK 99517
POSITION STATEMENT: Commented on subsistence issues.
Mr. Vic Fischer
P.O. Box 201348
Anchorage AK 99520
POSITION STATEMENT: Commented on subsistence issues.
Mr. Chuck Graham
P.O. Box 11
Hope AK 99605
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Randy Bjorgan
3038 Donnington Dr.
Anchorage AK 99504
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Ray Metcalfe
P.O. Box 233809
Anchorage AK 99523
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Fritz Pettyjohn
P.O. Box 110912
Anchorage AK 99523
POSITION STATEMENT: Opposed Task Force proposal.
Mr. Ron Barnes
Tununic Traditional Elders Council
8301 Rangeview #1
Anchorage AK 99504
POSITION STATEMENT: Commented on subsistence issues.
ACTION NARRATIVE
TAPE 97-49, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 1:13 p.m. and announced the Interim Hearing on
Subsistence.
MR. BYRON MALLOTT, Task Force member, briefly reviewed the history
of ANCSA and ANILCA making subsistence use of Alaska's resources a
priority. He said that Alaska began managing with a subsistence
priority after a vote of the people in 1982 which could have
overturned the subsistence priority, by a 60% vote. The State
managed subsistence on all lands in Alaska until 1989 when the
McDowell decision held that Alaska's management of rural priority
was unconstitutional under the equal access provision of our State
Constitution. Since that time the federal government has somewhat
reluctantly, but steadily, assumed management for fish and game on
federal lands. There has been a series of litigation mostly in
federal court which has continued to essentially increase the
federal authority. Most recently the Katie John decision
substantially expands federal management authority to navigable
waters in a way that was of concern to our congressional
delegation. Federal funding for that expanded authority was held
in abeyance by statutory language and Interior Department
appropriations bills. That federal statutory moratorium will
expire on October 1.
The State of Alaska was informed by Senator Stevens that unless
there was action at the State level as of October 1, the expanded
management of fish and game resources on public lands in Alaska
(under the Katie John ruling) also, would begin. The Department of
Interior during this time has implemented certain regulations and
has assumed direct management particularly for game, but in some
instances fish, on federal lands in Alaska and have promulgated
more expansive regulations that would take effect or be published
at the start of the next fiscal year should the moratorium not be
continued.
MR. MALLOTT explained that there were two primary goals that were
discussed and adopted by the group: to insure effective State
authority over fish and game management on all lands and waters of
Alaska and to recognize the paramount importance of the subsistence
way of life to Alaskans.
The group thought one of the problems with previous efforts was
that the adoption of a constitutional amendment did not have the
other pieces that would implement the rural priority either in-
place or under discussion. They decided that it made sense to
develop the proposed amendments to ANILCA which the State believed
were in its best interests to assume management for subsistence
management on all lands in Alaska and to change Alaska State
statute which would clarify and strengthen the State's management
of subsistence resources should the constitutional amendment be
adopted. The package was structured in such a way that by a vote
of the people of Alaska in the 1998 election on the constitutional
amendment, the other two pieces would have been approved and have
effective dates that coincided with adoption of the State
constitutional amendment. If it didn't pass, the others would go
away.
It was thought that if we could structure a good-faith effort to be
responsive, the federal government would not begin to implement
management. The best way to do that was with minimal changes and
the group adopted that process.
The areas of concern in the federal statute included prior
litigation and regulatory and management contention over the
meaning of key phrases in ANILCA: customary and traditional,
barter, customary trade, the notion of least adverse impact versus
reasonable opportunity, the thorny issue of judicial oversight, a
definition of the word "rural," the need for some clear recognition
by congress and the Secretary what would trigger State management
and then keep federal oversight at a bare minimum.
He said there was a lot of internal debate and discussion about the
issues.
Number 234
MR. MALLOTT said they had prepared a draft resolution which
provided a constitutional amendment creating a section 19 saying
that the legislature may, consistent with the sustained yield
principle provide a priority for subsistence uses and taking fish
and wildlife and other renewable natural resources based on place
of residence. He noted that this version of a constitutional
amendment has fewer words than any other proposed, but they thought
it was sufficient for the job.
SENATOR SHARP said he was concerned that the simple wording would
give the average voter the illusion that everyone in Alaska may be
eligible for some kind of preference, if it would arise. He
thought if they are trying to address a rural preference, they
should say this only applies to rural residents.
MR. MALLOTT said they did have a rural priority right up to their
last draft, but took it out based on the notion that this was a
linked package. They also thought a lot of people would react to
the word "rural." It was not an attempt to fudge the issue.
Number 286
REPRESENTATIVE HUDSON asked why they used "priority" over
"preference."
MR. MALLOTT said that was discussed.
MR. JULIAN MASON, staff to the Subsistence Task Force, commented
that both words are in federal regulation, but the group thought
either one would do the job.
MR. MALLOTT added that former Attorney General Charlie Cole said
six of one, half a dozen of the other.
SENATOR LINCOLN said one of the questions raised in other
communities was why the words on 23 and 24 "and other renewable
natural resources" was added.
MR. MALLOTT answered that their understanding was that other
renewable resources had to do with natural resources that had been
used for subsistence purposes like berries and plants, etc.
SENATOR LINCOLN asked if there was a definition of that somewhere.
MR. MALLOTT answered that much of what is in this package already
exists in State or federal statute or regulation. They tried to
not do violence to those terms even if they felt there were better
words or phrases. Only for a very specific reason would they use
different language.
SENATOR LINCOLN asked why on line 22 the language is the permissive
"may."
MR. MALLOTT replied that was discussed in detail and recognized
that it was a trip-wire issue for some folks, but because this was
a linked package, the implementing State statutes and the
authorizing federal statute would have to have been adopted before
a State constitutional amendment could be adopted. The practical
affect is the trigger to the other actions.
Number 363
REPRESENTATIVE OGAN said he didn't think there was any real linkage
there once the constitutional amendment is passed. He thought the
may language was a smoke screen because we "may" amend the statutes
or give a rural priority, but if we don't, we get federal
management. So it's not really an optional may.
MR. MALLOTT said in recognition of these fears, they tried to
structure this in a way that the various actions were linked. He
wasn't sure about the linkage language. The congressional
delegation said that it was impossible to repeal the rural
preference and they indicated they could at least be allowed the
time to get the ANILCA amendments passed during the next congress
in January if the Alaska legislature were to be able to pass the
statutory changes to State law in their next session.
His understanding is that if one or the other or both of the pieces
don't happen, the constitutional amendment would not come up on the
ballot.
CHAIRMAN HALFORD said he thought his attorney would tell him that's
not the linkage that's in this package.
MR. MASON said it wasn't in there now, but it could go in.
One scenario is that the ANILCA amendment passes first, then the
State statutory amendments pass, then the constitutional amendment
goes on the ballot with the ANILCA amendment's effective date and
the Alaska statutory amendment effective date being the passage of
the constitutional amendment.
The concept is when the people vote on the constitutional
amendment, they will know what the State statutory amendments are
and what the ANILCA amendments are and can vote up or down based on
how they see it. To write the linkage so it's complete requires
some knowledge of what the first step is and the Task Force did not
take the time to write it in the blind. It doesn't matter what the
sequence is, the linkage can be made either way.
MR. MALLOTT said his understanding is exactly as he stated which is
why language like "may" versus "shall" becomes important. This
amendment wouldn't appear if the other two weren't in place. He
said their imperative is to get State management back at the
earliest possible date. So they were looking at the November '98
election.
REPRESENTATIVE OGAN followed up by reading the 14th Amendment of
the U.S. Constitution, the equal protection amendment. He said he
took an oath to uphold the Constitution and ANILCA seems to create
a couple of different classes of people basically defined on
residence and he wants to make sure he doesn't violate that oath.
MR. MALLOTT said one of the core tenets for the group was that this
law was a reality and if it was unconstitutional on the federal
level, it would have been challenged already. He said the Alaskan
Constitution makes a big differentiation between Alaskans with
passage of the limited entry law. He said the group tried to move
away from having a "street brawl" as we have had over the last
decade over subsistence to at least get folks in the ring with
rules using the State regulatory system.
CHAIRMAN HALFORD said he thought it was important to remember what
the Supreme Court said about the limited entry amendment that it
only just got by because of the buy-back provisions which have
never been used. He thought the limited entry provision was our
biggest constitutional mistake since statehood. You can hardly use
that to justify another one. He and most people here believe the
last person to lose a resource should be the person who depends
upon it to eat and gets it in his backyard and the first person to
lose the resource all across the country, throughout the hunting of
buffalo, ducks, or anything else, was the person who sold it. That
is the logical progression of population and we're trying to work
against that and hold out a complete class.
MR. MALLOTT responded that the fact is the federal legislation is
what it is. The notion of establishing a priority based on place
of residence which could be argued by some does have a certain
public policy symmetry especially in Alaska where those resources
exist in rural areas. It is principally rural people for who it
could be demonstrated there is a need.
There is also the fact that in 1982 Alaskans voted to have a rural
priority. Their only desire was to create a mechanism within which
over time they could move down the road.
REPRESENTATIVE BUNDE said he shares concerns about the illusionary
nature of the word "may."
TAPE 97-49, SIDE B
Number 001
SENATOR TAYLOR asked who set the parameters and guidelines for
their group.
MR. MALLOTT responded that this is the work product of the group of
seven and no one else; and the key parameters were developed by
them. There was the deadline of November 1; and the Senator
Stevens and Senator Murkowski said they didn't believe they could
extend the moratorium. They also were advised by both senators
that repealing the rural priority that that wouldn't work at all.
The group thought it was important to try to demonstrate to
congress and the federal government that the State was seeking to
come into compliance either at or near October 1 so they would
recognize a good faith effort and would not implement increased
federal take-over. They wanted to respond in a way to get the
State back into compliance in a responsible way and allow us at the
State level to wrestle with the number of issues that would still
be extant. This led to the notion of using the minimalist
approach. The group was made up of people who had been intimately
involved with all phases of this issue.
He said it was the State of Alaska, at a time when the congress was
seriously considering a native priority, who went to the federal
government and said this will not stand.
SENATOR TAYLOR said someone made the decision about whether it was
possible to ask for an injunction enjoining the Secretary and
federal agencies from enforcing this law until the State can find
out if it is constitutional. Someone made a decision about whether
or not an amendment to ANILCA could pass in the congress. He asked
who gave them these guidelines because most everything was taken
off the table when they sat down. He felt someone had assured them
that every one of these amendments are greased and going to pass
and all other amendments hadn't been considered. He insinuated
that Secretary Babbitt instructed them what to do.
Number 105
MR. MALLOTT said that he and the public don't know anything about
it because nothing of what he said happened, period. This was an
independent group. The kind of people in the group were very
independent: Former Governor Jay Hammond, former Attorney General
Charlie Cole, House Speaker Phillips, Senate President Miller,
Lieutenant Governor Ulmer, and himself. He said it just didn't
happen. They thought they had something folks could work with,
something in the middle that would allow us to move ahead. Many
other approaches were discussed and he was surprised to find that
this package was going to be the only basis for these hearings. It
was not thought that this package would be the only thing on the
table.
REPRESENTATIVE MASEK said she didn't think there was anything in
the constitutional amendment that would return management to the
State. It would allow the State to conduct federally directed
management. She thought the package wanted them to change our
Constitution for that and she didn't think it was right. The State
is going against simple justice as far as treating all Alaskan
people equally under our State Constitution. She pointed out that
there was nothing in the constitutional amendment like a hold-
harmless clause that keeps it from violating any public trust
doctrine which is the responsibility of the State and federal
government to uphold. She asked if giving a right to a small group
of people was justice.
MR. MALLOTT replied that this was designed to be responsive to a
federal statute that is, he assumes, constitutional.
REPRESENTATIVE MASEK asked again if he thought changing our State
constitution served all Alaskans justly.
MR. MALLOTT answered that when he pledges allegiance to the United
States of America, he doesn't say except for ANILCA or anything
else. He operates within a framework and he believes this is
decent public policy, although not the best.
REPRESENTATIVE MASEK said she thought it was a serious matter to
give up our Constitution as it's written now to comply with a
federal law. That's why Alaska became a state; so we could govern
at the State level. She wanted his opinion because he was
important enough to serve on the Governor's Task Force and
recommend to the legislature who represents all people.
MR. MALLOTT said he recognized the importance of the
responsibility. He said the rural priority is available to all
Alaskans.
REPRESENTATIVE MASEK interrupted saying that is what's defined
under federal statute.
MR. MALLOTT said they tried to respond to the needs of Alaskans
over time. They recognize that the majority of Alaskans living in
rural areas are non-native. He reiterated that they had to operate
within the mandate of putting a responsible public policy before
the federal government. If they had done anything else, there
wouldn't be anything.
Number 222
REPRESENTATIVE JOULE wanted an idea of how the population racially
breaks out in rural Alaska.
MR. MALLOTT responded that the information he received from ADF&G
is that under the rural definition in this bill and the subsistence
areas (all of those areas outside of the non-subsistence areas
defined in this bill) there is somewhere between 55% - 60% of the
population that is non-native.
SENATOR LINCOLN said she wanted to remind them that this is only a
report from the group of seven. She thought many people have
forgotten that they have attempted, as a legislature in the past,
to let the people vote if there should be a rural preference. Then
they could move on to another arena. She said she saw this as a
plan to bring the question to the people. She said she appreciated
him admitting it wasn't a perfect document and the fact that he was
the one of the seven who had guts enough to sit in this hot-seat.
MR. MALLOTT said on top of all his other remarks, he marvels about
how they got through the first week because there was a wide range
of diverse non-partisan opinions.
SENATOR HALFORD commented that the constitutional amendment would
be placed in the natural resources article and asked if it's there,
did he think it would supersede the concern of one of the
expressions of the Supreme Court with regard to equal protection in
the first article of the Constitution.
MR. MALLOTT replied that during the course of discussions legal
counsel said this would work.
MR. MASON responded that his view is that it would permit the
legislature to create a rural priority. If the question is does
the amendment violate the Constitution, the answer is no.
CHAIRMAN HALFORD asked if it does violence to the rest of the
Constitution that precedes it.
MR. MASON answered no.
SENATOR TAYLOR noted that on page 36 is a State statute they are
proposing the legislature pass. That State statute mirrors an
amendment to ANILCA (on page 10). That State statute on lines 3 -
4 is that 10 members, four of whom shall be selected form nominees
who reside in the region submitted by tribal councils in the
region. So we're not just talking about the allocation of fish and
game; we are talking about putting a restriction on membership on
a State board that is restricted solely to one racial group or
sect.
MR. MASON said that wasn't correct.
SENATOR TAYLOR asked how to define tribal councils if not racially.
MR.MASON replied that the nominees would be submitted by tribal
councils. It does not require any particular racial composition.
SENATOR TAYLOR said the outcome could have that impact and asked if
he believed the contemplated amendment has to be broad enough at
least to allow the legislature to pass a statute that would
discriminate between all candidates in the State and only allow
passage onto that board after going through a group that is
racially defined. He said it looks to him like the only way you
could get on the board is through a violation of equal protection
under our State Constitution.
MR. MASON asked him to put the amendment aside for a minute and
asked whether the State Constitution would permit a selection of
members of the State's existing advisory boards based on
nominations from, among others, tribal councils.
CHAIRMAN HALFORD said if four members have to come from a specific
nominating entity, and that nominating entity controls those four
members in total.
MR. MASON said he understands the question and that they do that
now in other contexts like the specific requirements for being
appointed to various boards and commissions.
CHAIRMAN HALFORD asked if they were based on suspect classes.
MR. MASON responded that he didn't know if tribal councils were
suspect classes.
CHAIRMAN HALFORD asked if they were racial.
MR. MASON responded yes, but he didn't think that would make them
suspect. He commented that the group didn't expect the legislature
to accept every word in the package blindly.
MR. MALLOTT commented in their discussion, it was simply
recognition that tribal councils are the reality out there and that
the total board is 10 and the majority would come from other
groups. Tribal councils represent a significant, and in many
instances, the only leadership policy structure that exists for
many subsistence users. The group recognized the groups that exist
presently for their representational qualities and nothing more.
SENATOR TORGERSON said the Tyonek decision said the tribal councils
could control who stays within the boundaries of their
organization. He thought that decision applied to about 56 areas
in the State. There are other lawsuits that might make it apply to
226 regions. He, therefore, thought it was a valid point to look
at.
MR. MASON said that wasn't addressed or thought about.
SENATOR TAYLOR asked what impact would a declaration by the State
through the legislative process of passing a bill that utilized
tribal councils as the only nominative authority have on the
question of sovereignty and indian country. He also asked by
placing a racial barrier upon selection for that group, which then
allocates fish and game resources which certainly has impact on the
ADF&G budget if that impacts the distribution of Pittman/Roberts
Wallop/Bureaux funds which make up about 40% of our current budget.
It has strong restrictions in it that we are not allowed as a State
to make distribution of any of those funds along racial lines. He
is fearful it does both and wants assurances from someone that this
is not going to place 40% of our ADF&G fund in jeopardy and will
not contribute to the question of sovereignty.
MR. MALLOTT replied that they would ask the Department of Law to
look at those issues and they do also have neutrality clauses
dealing with the indian country issue. The tribes now are
recognized by the federal government and have substantial
involvement with the use and structure and management and the
relationship of folks in the rural areas to fish and game. He
repeated that the group was just trying to deal with an on-the-
ground operational reality.
Number 550
REPRESENTATIVE HUDSON asked if the current proposal has the
Governor's endorsement. He really wanted to know where he stood on
this matter.
MR. MASON responded that the Task Force voted on this final
document and all voted yes. They each agreed to affix their
signatures to the transmittal letter and he has not heard Governor
Knowles exhibit any reservations about the document. His was one
of the signatures.
TAPE 97-50, SIDE A
Number 001
CHAIRMAN HALFORD said one way to avoid a constitutional amendment
would be to establish need as an established method of
differentiating among Alaskans with regard to certain rights. He
thought Senator Murkowski and Representative Young sent a letter to
the commission on July 23 suggesting that needed to be one of the
criteria used. What was the discussion on that and what happened
to their discussion, he asked.
MR. MALLOTT replied that after some discussion it was believed that
approach was not within the framework of minimal change of trying
to come into compliance recognizing the importance of the October
1 deadline. There is also strong opposition to that idea in the
native community. He said they even discussed this with the
congressmen and asked if they should continue to seek a solution
along their lines and they strongly indicated yes.
CHAIRMAN HALFORD said the committee report on HR 39 contains a
limitations clause on section 815 which basically provides that
"nothing in this act is intended to be construed as:....nothing in
this act is intended to be construed as amending the Alaskan
Constitution." He wondered what Congress meant by that because at
least our delegation knew about the provisions in our Constitution
and were vitally and directly involved in drafting the committee
report.
MR. MALLOTT said he can only speak from recalling various
conversations with State administrators of the time, but there were
grave concerns about the native priority language, about this being
indian legislation, and about this being unconstitutional. He
supposed that being told by the State that a native priority would
not be acceptable, but a rural priority might be, there was a
general acceptance that would not require an amendment to the State
Constitution.
SENATOR TAYLOR asked him to get back to the committee with opinions
from someone on all three of those issues.
CHAIRMAN HALFORD asked also for a definition of other renewable
natural resources.
Number 94
REPRESENTATIVE WILLIAMS said the way he understands ANILCA is that
subsistence was part of the negotiated settlement. He explained
that back in the 1970's, in order to get a land freeze lifted so
the pipeline could be built, there had to be an Alaska Native
Claims Settlement Act (ANCSA). He asked if this was part of a
negotiated
settlement and what does the conference report mean when it says
the conference committee expects both the Secretary and the State
to take any action necessary to protect the subsistence needs of
the natives.
He asked if we need a constitutional amendment because Senators
Murkowski and Stevens and Representative Young don't want to go
back on the deal they made in 1971.
MR. MALLOTT said he concurred with much of the historical
perspective except that Senator Murkowski was not there then. The
reason subsistence was not dealt with in ANCSA itself was because
during conference there was a clear belief on the part of conferees
that particularly the Secretary, but also very likely the State of
Alaska, already had the requisite authority (and in the person of
the Secretary, the responsibility) to provide for the subsistence
needs for Alaska's native people. It was one of the issues that
was left to administrative discretion, but with clear intent in the
ANCSA debate and conference report that it would be maintained and
dealt with responsibly as a significant public policy of the United
States. Reference to the commerce clause, etc., in the language of
ANILCA, recognizing that in many ways this was being responsive to
a specific native need, but it also includes other Alaskans. The
entire framework of those acts bring us to where we are today.
His understanding of the role of our congressmen is that they are
working with us to try to accommodate that role based upon their
perceptions of the issue and their discussions with them on this
package.
REPRESENTATAIVE WILLIAMS asked if our rights were part of the
compromise in ANCSA and if they were, should we live up to that
settlement.
MR. MALLOTT responded that congress abolished hunting and fishing
rights as part of the settlement act. It was very clear to
recognize the importance of subsistence as a remaining and
continuing public policy duty of the federal government.
REPRESENTATIVE WILLIAMS stated that the abolishing of hunting and
fishing was a property right; it was not an individual right.
MR. MALLOTT answered that was right.
REPRESENTATIVE WILLIAMS asked if it was part of the negotiated
settlement of ANCSA.
MR. MALLOTT replied that it was part of the negotiated settlement
to ANCSA to the extent that there has been a continuing federal
recognition as to its importance; a sense of federal obligation.
The federal government felt it was so important that it was willing
to assume the exercise of management of fish and game resources on
public lands in Alaska should the State choose to be in compliance
with those federal imperatives.
REPRESENTATIVE OGAN said that ANCSA was a settlement in exchange
for 44 million acres, including the subsurface rights and $1
billion for any claims of aboriginal titles based on use and
occupancy including submerged land underneath all water areas both
inland and offshore including aboriginal hunting or fishing rights
that may exist.
He said he is confused about why they are talking about the
conference committee report which is part of the legislative record
that's built as legislation is passed; and what has passed and
enacted into law is what is law.
A solicitor in the Department of Interior said that ANILCA is
recognized as remedial indian land legislation.
REPRESENTATIVE WILLIAMS said ANILCA recognized the deal that was
made in ANSCA and we're trying to go back on the deal that was
made, we should talk about that.
Number 236
REPRESENTATIVE JOULE asked if the Governor hadn't appointed the
Task Force, did he think as many people would be discussing the
issue today.
MR. MALLOTT said he assumed activity would be taking place because
getting management of our fish and game back is so important. Most
groups indicated they believe this could have been a more open
process, but he knew for certain they wouldn't have been able to
come up with this middle ground if it would have been an open
stakeholder process.
Number 283
CHAIRMAN HALFORD said he wanted him to review the changes on page
4 regarding customary and traditional and which ANILCA changes deal
with the Peratrovich case, the Bobby case, and those kinds of
things that have been ANILCA problems for the last 15-years.
MR. MALLOTT continued explaining that customary and traditional is
essentially what is in State statute. Its purpose was to get the
definition into federal law to avoid opportunities for litigation.
CHAIRMAN HALFORD asked specifically why they changed "and reliance
upon" to "or reliance upon" which means that the window of
customary and traditional opened up to any one of instead of all
the criteria. The State statutory provision is much narrower than
that.
MR. MASON said he remembered discussions that not all people
engaged in subsistence uses take, use, and rely on and that was the
reason.
CHAIRMAN HALFORD noted that this language changes the federal
mandate statute to make a stronger mandate on the State than the
existing State definition.
MR. MALLOTT replied that wasn't their intent and he recalled that
ADF&G staff discussed this.
CHAIRMAN HALFORD asked if it was the intent of the section to limit
cash sales and cash trade, and if so, to what extent.
MR. MALLOTT replied that their whole discussion had to do with non-
commercial needs and that it should be strictly limited. They felt
the exact amount should be left to the discretion of the Boards of
Fisheries and Game because one number would not work everywhere.
REPRESENTATIVE HUDSON asked if this applies also to the Subsistence
Advisory Board.
MR. MALLOTT replied they would be the responsibility of the Boards
of Fisheries and Game by regulation. The subsistence councils have
the ability to recommend to the boards.
Number 385
SENATOR LINCOLN said she understood the intent was to mirror
language in State statute.
MR. MASON added that determining what is non-commercial is done by
the Boards of Fisheries and Game. The ANILCA definition on page 4
doesn't have "as restricted by the appropriate board" because of
the regulation making power.
CHAIRMAN HALFORD says they have two different interpretations that
are subject to a court's interpretation and that's what we are
trying to avoid.
MR. MASON said he didn't think it was a problem, but it wouldn't
offend anyone on the committee if anyone added "as restricted by
the appropriate board."
MR. MALLOTT said their concern was that if they limited the rule
making scope in the federal statute, that could hamper State
management.
REPRESENTATIVE MASEK asked if the group took into consideration the
changes that have happened in the State from 1920 - 1997 as far as
their definition of what is customary and traditional - with the
taking of game and fish with today's advanced technologies and
still protecting the resource.
MR. MALLOTT replied the whole structure works within the
constitutional requirement of sustained yield. They know the
Boards and Department have constructed a system that has been
proven as working on the ground. They recognize that even things
that are customary and traditional evolve.
REPRESENTATIVE MASEK asked if he had taken into consideration the
many Alaskan natives who live in Anchorage and Fairbanks, those who
do not live in a rural area who claim traditional and customary.
They can't go back to hunt and fish in the areas they came from.
MR. MALLOTT answered that several members were strongly opposed to
the notion of rural plus (the definition this has been given) and
he acquiesced and they moved on. They moved to the point that in
order to qualify for subsistence, an individual must be a resident
domiciled in the community or area in which the subsistence
resource is taken. They try to deal with that prohibition in a
modest way by expanding the proxy provision in State statute
without impacting the resource or subsistence priority by allowing
an immediate family member of a qualified subsistence user that
might live in an urban area to come to an urban area to take a
subsistence resource on behalf of a qualified subsistence user who
would not be able to exercise that opportunity. They restricted it
by saying the majority of the resource taken had to remain in the
subsistence area.
REPRESENTATIVE MASEK said it seemed that he was trying to extend
privilege in this manner to individuals and she didn't think they
should continue on that course, because everyone should be treated
as Alaskans. She brought that up because there is a big population
of natives in Anchorage who can't go back to where they came from
to hunt and fish. She thought that changing our State Constitution
would be like getting into quicksand because once you are in it,
you can't get out. She thought the State should be able to decide
how we can manage our resources because it's been granted by mother
nature to everybody. Native people must recognize that we are in
1997 and we can move forward if we work together, but we can't
continue to say we need this and we need that and it's our right.
We are all Americans. We need to look forward to 20-years from now
and see where we are going to be.
CHAIRMAN HALFORD said that as long as the proxy question is not
adding to the federal mandate and increasing the things you have to
do in State statute to comply, at least the proxy system is a
question that will be made at home among Alaskans.
MR. MALLOTT said again that the proxy system already exists in
State law and they are trying to make minimal changes to existing
law.
CHAIRMAN HALFORD said that's probably the least damaging of any
kind of proposal you could make because it's up for consideration
always at the State level.
MR. MALLOTT said the State standard is reasonable opportunity. The
native people believe the current standard has the least adverse
impact and that should be the standard and for the Task Force to
act differently would result in a diminution of the federal
priority.
TAPE 97-50, SIDE B
MR. MALLOTT said he didn't remember any discussion of the Bobby
case while talking about reasonable opportunity.
CHAIRMAN HALFORD said just reading from the Department of Law
packet, that they cite the Bobby case. Judge Holland said, "must
first eliminate other consumptive uses before restricting customary
and traditional uses of game for subsistence purposes." He assumed
it was the intent of the Task Force that a reasonable opportunity
doesn't mean a year-round season if, when equipped with a dog team,
it would have taken a year-round season to harvest one moose per
family, but now, equipped with snow machines and four-wheelers, it
takes 45 - 90 days to harvest one moose per family.
MR. MALLOTT said that was not their intent. They believe
reasonable opportunity should have a plain meaning and that the
Boards can provide that, that this is based on sustained yield,
that the history of subsistence taking and use has been one of only
in rare instances precluding other uses of the same resource, and
to the maximum possible, they want that to continue.
MR. MASON explained that someone on the Task Force wanted the
definition of federal land to show up in one place and there was a
correction that needed to be made of deleting, "or native
corporation in State land selections," in subsection 38. However,
it was not the intent to change any definition and not the intent
to overturn Katie John. It was simply an effort to make the
definition of federal land all in one place.
CHAIRMAN HALFORD asked then it was not intended to exclude State
land or navigable waters from the definition of federal public land
or public land that appears throughout ANILCA.
MR. MASON responded that it is not meant to change the current
definition of federal lands which includes waters.
SENATOR TAYLOR said it appeared to him from the map distributed in
Fairbanks that through this classification they recognized the
federal definition which he thought was still being argued as
including reserves regarding navigable waters.
MR. MASON responded that the map was simply a document prepared by
the Interior Department to show the scope of the regulations that
it will propose. It has nothing to do with this proposal.
CHAIRMAN HALFORD said we might challenge a number of those in the
process.
SENATOR TAYLOR commented that we can't if we adopt their
definition.
MR. MASON reiterated this definition is not intended to change
anything; it was intended to corral pieces of a definition that go
on for three or four pages. It would please him if they were not
there, because it confuses things.
SENATOR TAYLOR said he didn't want to see us forfeit any
opportunity to challenge some of the definitions regarding waters
that have been proposed by the federal government and appear on
that map.
SENATOR TAYLOR asked if they included other definitions within this
packet that might result in the same outcome.
MR. MASON answered that he didn't believe so.
CHAIRMAN HALFORD said it looks like they are adding to the federal
mandate.
MR. MASON responded that the State statutory amendments propose
regional subsistence councils which are currently required by
ANILCA. The regional councils as proposed are constituted a little
differently than under ANILCA. Therefore, if you use the Task Force
proposal, ANILCA needs some amendment.
CHAIRMAN HALFORD noted they were amending the mandate and asked why
they don't just amend the State law and leave the mandate as simple
as it is, because any time you add to a mandate, it seems you are
adding to the dictates of the federal government to us.
MR. MASON replied that, for instance, there was commentary received
by the Task Force that it would be wise to have people who use the
resource, but not resident of the region, have a voice on some
regional subsistence councils. They cannot under ANILCA, because
it requires that all members be from the region.
CHAIRMAN HALFORD asked why they didn't just include the amendment,
"shall be composed of residents of the region and," and then delete
all the additions they are making.
MR. MALLOTT said he agreed with him.
SENATOR LINCOLN asked how they would propose to change it if you
don't have residents of the region.
CHAIRMAN HALFORD answered, "Each regional advisory council shall
have the following authority:"
SENATOR LINCOLN asked if they wouldn't even say what the
composition is.
CHAIRMAN HALFORD said it wouldn't be in the federal mandate, but it
could still be dealt with in State statute.
MR. MALLOTT commented that the whole discussion surrounding whether
or not the subsistence council language should be incorporated into
the federal statute had everything to do with their desire to have
out-of-region representation in the federal statute specifically
prohibiting it.
Number 112
CHAIRMAN HALFORD directed the Committee to go on to 806.
MR. MASON explained that there are two things here and first is the
linkage. How they link depends on which one goes first. The
second half is to make it clear that it requires a court as
distinct from the Secretary of Interior to say the State is out of
compliance. So it would take another court case to be out of
compliance.
MR. MASON said section 807 makes sure the federal courts, if they
are reviewing actions of the Boards of Fisheries and Game, treat
them with respect.
There were no question on section 813 and page 27 had the
disclaimer.
Number 148
SENATOR TAYLOR questioned the make-up of the regional councils and
does that not violate this section and thought they should wait for
a legal opinion before they know they could successfully do that.
CHAIRMAN HALFORD explained that the third leg is a whole series of
statutory changes, but they generally follow the ANILCA changes and
the committee had already been through those. So he wanted to take
pubic testimony.
MR. ED EARNHART, 23-year Alaskan resident, said he was a long-time
student of constitutional law and said he supported the Task Force
recommendation. The Preamble of the U.S. Constitution says that we
are supposed to be concerned with general welfare, and all this
nitpicking about provisions in the Constitution that would lead to
more strife and more enmity that would lead to more cheap politics,
that would lead to more special interests pressing hard for its
bit. He didn't think this should be and he thought the Task Force
worked hard to try to move toward a settlement of this issue. He
had no opinion about who would manage the fish and game because
many times they are both lousy.
He worked with BLM for 17 years in land conveyances and knows that
ANCSA is a mess. He knows the problems with defining public and
private lands. But he thought it would be simple to say, as the
civil war proved, that the feds would be dominant in finally
deciding what the law means. He wanted to stick to the theme of
Alaskans living together and continue to get supported by the
federal government which is one of the reasons we are such a great
state. He urged them to resolve the issue without spending the $40
million in litigation.
MR. WAYNE ROSS said we've had the federal government stick a gun in
our ear saying he wants to take over our car, ie. the management of
our fish and game. The Task Force proposal says we're to drive the
car, but go wherever the federal government takes us.
He said the Governor and Attorney General took an oath of office to
support and defend the Constitution of the United States and of
Alaska. And now instead of supporting our Constitution, our
Governor proposes to change our Constitution and bow to the threats
of the Clinton administration. He referred to Article 1 saying all
persons are entitled to equal rights, etc. and section 15 saying no
law making any irrevocable grant of special privileges or immunity
shall be passed. Article 8, section 3 says fish and wildlife are
reserved to the people for common use. It doesn't say to rural
people.
He said that Alaska chose statehood because it would transfer
management of fish and wildlife on all lands and waters from
federal agencies to the State.
In 1971 congress and Alaskan natives agreed to ANSCA which stated,
"all aboriginal title, if any, and claims of aboriginal title in
Alaska based on use and occupancy, and including any aboriginal
hunting or fishing rights that may exist are hereby extinguished."
For this waiver the Alaskan natives received $962 million and 44
million acres of land. This settlement settled all claims "with
certainty" and "without establishing any permanent racial defined
rights or privileges."
He thought some people were coming back to the well for a second
drink and he thought that was improper when other people can't
drink at the same well.
ANILCA in 1980 congress included a subsistence priority for rural
residents only on national lands and mandated federal management of
fish and wildlife on federal lands if Alaska's subsistence law
doesn't conform with ANILCA. In passing ANILCA, congress ignored
Alaska's Constitution which they had approved under the statehood
compact.
Instead of challenging this congressional violation, the State
first opted to get along by enacting subsistence laws providing for
a rural preference. The McDowell case in the Alaska Supreme Court,
held that a rural subsistence preference violated Alaska's
Constitution.
MR. ROSS said the only way to resolve this problem is to get
congress to repeal section 8 of ANILCA or challenge it in court as
violative of the statehood compact.
Number 350
REPRESENTATIVE OGAN asked if he thought it would take amendments to
four sections of the Constitution to incorporate a rural priority.
MR. ROSS answered he didn't think we wanted to do that, but we need
to remove Title 8 of ANILCA or challenging it in court.
SENATOR LINCOLN said the Task Force proposal was part of a solution
to a long-standing dilemma we've been in for years, but this was
not to be the only proposal. She said this isn't the Governor's
proposal, but was signed off by House Speaker Phillips, Senate
President Miller, and others who were on the committee.
She said we can't divide the State on racial lines. She said it is
defined as rural, not native and asked him to define rural.
MR. ROSS defined rural as out in the country. He thought using the
terms rural and urban was divisive. The point he was trying to
make earlier is there were payments made as part of ANSCA and he
thought the issue was settled about whether natives have any more
rights. The question now is do the rural areas have any more
rights than the urban people.
REPRESENTATIVE OGAN asked if he thought they would be in violation
of three other provisions of the Constitution if we adopted the
rural preference.
MR. ROSS answered that having taken McDowell to court he could
assure them they would be taking them to court again.
SENATOR TAYLOR mentioned suggesting to former Attorney General
Charlie Cole bringing a direct action suit before the United States
Supreme Court and challenging the constitutionality of ANILCA. And
considering the make-up of the court which truly advocates for
states rights, did he believe it would have a good chance of
prevailing and he said, yes, he thought it could.
He also asked if he thought we could get an injunction enjoining
the federal agencies from enforcing the federal mandate until the
Supreme Court could make a determination on constitutionality. Mr.
Cole agreed that would be a good idea.
SENATOR TAYLOR asked Mr. Ross if he had thought of that as a
solution.
MR. ROSS said he represents a group of people who tried to carry
the State's argument in McDowell 2 case in federal court. The
problem is that the administration is not willing to take on the
issue for political reasons.
Number 563
REPRESENTATIVE WILLIAMS said he appreciated his remarks and he is
not trying to make this a racial issue. He said they had
negotiated away their rights with ANSCA. He explained that they
gave up their aboriginal rights which were property rights, but
further down they were still negotiating for subsistence, and this
they can see in the conference report.
SENATOR ROSS asked if he was talking about rural or native peoples.
REPRESENTATIVE WILLIAMS answered he was talking about the State of
Alaska when they negotiated the ANILCA.
SENATOR ROSS responded that we should all have subsistence rights.
REPRESENTATIVE WILLIAMS told him to refer to the conference report
to ANILCA which states it expects both the Secretary and the State
to take any action necessary to protect the subsistence needs of
the natives. This was part of a negotiated settlement in ANSCA.
MR. ROSS said he reads ANSCA differently.
REPRESENTATIVE HUDSON asked him if changing Title 8 of ANILCA to
take out the rural requirement was what he suggested.
TAPE 97-51, SIDE A
Number 001
MR. ROSS replied yes. He thought the Governor should take the feds
to court. He added that a lawsuit was filed by the previous
governor and this governor pulled back on that suit. The
legislature tried to stay in the lawsuit, but it requires the
governor or the attorney general of the State to do something.
SENATOR LINCOLN restated that neither does the Republican Speaker
of the House or the Republican President of the Senate say to take
the feds to court or to "butt out."
MR. ROSS said they realized that we have a weak governor and they
are willing to try to do something to resolve the problem and he
submitted that we need to get a governor with some backbone.
MR. CHARLES MCKEE referenced an article in September 24, 1997
Anchorage Daily News wherein World Bank and international monetary
fund leaders commented on monetary issues. He said the article
explained who mandated the package they are discussing.
MR. HANK OSTROSKY said the issue is the fact that the President has
assumed a public trust over the indigenous people of Alaska. Under
his mandate he is not subjected to the Supreme Court decisions or
the U.S. Senate or subject to the State of Alaska or the United
States. He has to assert himself on human rights. He called Title
8 of ANILCA a violation of apartheid, genocide, and holocaust. He
did research on this issue in Hawaii and came up with the term
allodial rights and came up with a definition of the sacred
undivided common interests of the people to the resources. They
looked at human rights and human equity, not corporate rights and
corporate equity. He said they were involved in constructive fraud
if they continue to force the corporate form of the United States
on the indigenous holders of the allodial title.
MR. OSTROSKY suggested that the Governor's Task Force on
Subsistence be called the Governor's Trash Force because they are
talking about a subsistence economic system, not a lifestyle. He
said they are talking about semantic distortions coming in from the
term indian, Eskimo and American in the desire to grab the
resources of the North and South American continents by colonial
intruders.
He summarized that the legislature really needed to look into the
fact of a constructive fraud.
MR. DALE BONDURANT said the proposal would not recognize most of
the Kenai Peninsula as rural. He asked why the commercial
fishermen support destruction of the common use clause and answered
it is because they are no longer common users since limited entry
and make a lot of money off the resource.
He thought that Governor Knowles appointed this Task Force solely
in an attempt to give the look of an honest public endeavor.
MS. PATTY GINSBURG, Executive Director, Commonwealth North, said
they haven't taken a position on this proposal. However, in 1992
their Board did take a position that is still applicable. They
believe that Alaska must regain unitary management authority over
fish and game resources from the federal government and the
citizens of Alaska need to develop a consensus on the issue of
access to fish and game resources for subsistence purposes.
She urged the legislature to put a constitutional amendment to a
vote of the people. The amendment should designate subsistence as
a priority use of Alaska's fish and game resources and authorize
the legislature to grant a preference to and among Alaska residents
based on criteria such as: customary and traditional use, direct
dependence, local residence, availability of alternative resources
or some combination thereof. They support the protection of
Alaskans who survival depends most directly on the continued
harvest of fish and game resources and whatever actions are
necessary to ensure State management of all fish and game
resources. The 1992 resolution was adopted by Commonwealth North
with the goal of creating unity among Alaskans so we could channel
all of our efforts towards the development of a productive future
unencumbered by regional or ethnic division.
REPRESENTATIVE BUNDE asked if she thought the proposal before them
would remove federal domination of management and if it would pass,
did she think there would be more unity among Alaskans.
MS. GINSBURG said speaking for herself she understands for the
linkage everything has to happen and no one part can happen without
the other and she thought that would remove federal management.
The answer to the second question is that we have to keep trying to
put this issue behind us and Alaskans should have the right to vote
on it.
MR. CHARLIE EDWARDS said that this year's management of fish was so
disastrous and that's why the federal government will take over
management of all the migratory species. He informed the
plaintiffs in the McDowell case that they do have responsibility to
Article 12, Section 12 of the Constitution. The State of Alaska
does not act in a vacuum and it is supposed to uphold the
Constitution of the United States with other states. These rights
of the Alaska natives under Article 12, Section 12 say the State of
Alaska and its people forever disclaim all right or title to any
property belonging to the United States subject to the disposition
not granted or confirmed to the state and its political
subdivisions....The State and its people further disclaim all right
and title to any property including fishing rights and the rights
or title to which may be held by any Eskimo, indian, Aleut, or
community, therefore, as that right is defined in the Act of
Admission.
He said this is the price of statehood. The people gave up
something for the right to coexist with the Alaska native people.
The statehood compact is a three-legged stool: the State, the
federal government, and the Eskimos, indians, and Aleuts.
He said that customary trade was established in 1824 by Secretary
of State, John Quincy Adams in a treaty between the U.S. and
Russia. Customary trade is a foreign policy declaration of the
United States and there are no dollar caps. He said, "Don't take
our commerce rights that are protected under the Constitution. He
didn't want the legislature to trash their international trading
rights.
MR. JOEL BLATCHFORD, a native commercial fishermen also using
subsistence, said he didn't trust the State to protect our
subsistence resource because he doesn't have a say in protecting
the resource that he uses which is fish. The Governor appoints
only oil people for an oil issue. He said that many natives don't
speak the language so they can't vote. He said he can't trust
amending the Constitution or ANILCA because the motivation behind
it is money and everybody wants to change things to suit
themselves.
REPRESENTATIVE BUNDE asked if he was the person who hunts belugas.
MR. BLATCHFORD replied yes.
REPRESENTATIVE BUNDE asked if he did that for money.
MR. BLATCHFORD replied no.
REPRESENTATIVE BUNDE said he heard some of the meat was sold.
MR. BLATCHFORD replied that his family didn't sell any meat, but
his father did sell some to pay for motor parts. He said it has
been the European way to sell the food they grow to keep their farm
going. He said he didn't think it was commercial to sell a little
bit of what he catches to pay for parts to keep a boat going.
MS. TAQULIK HEPA, an Inupiat person, said she came from a family of
whaling captains. She grew up in a camp south of Barrow where her
family has been captaining for many many years. She learned to
live the subsistence way of life there. She also works for the
North Slope Borough Department of Wildlife Management for six years
and has been doing research for subsistence.
She said there are eight villages on the North Slope and haven't
really felt the impact of other Alaskan residents.
TAPE 97-51, SIDE B
MS. HEPA said that federal management has worked well on the North
Slope and she thought the main reason was because of the active,
well-funded local advisory system and the federal subsistence Board
which has been real responsible to their concerns and input. Their
history with State management has not been as good. Their advisory
system was not successful although it was tried. She thought the
Board of Game was somewhat insensitive to people of the North
Slope.
She said they do not support dual management in the long run nor do
they think federal management is best for Alaska either. They do
support the Governor's Task Force proposal with some modifications.
The first one is that there needs to be at least 10 advisory
councils which is how many there are now under federal management.
They want to see maximum support for co-management arrangements of
local user groups, including tribal and native organizations. She
thinks on the North Slope they have demonstrated they can
successfully manage their own resources.
SENATOR LINCOLN asked her to explain how she views subsistence as
customary and traditional and continuing beyond 1997.
MS. HEPA answered that subsistence is still very strong on the
North Slope in all the villages.
SENATOR TAYLOR said he didn't see why they would embrace a policy
that would exclude their family members from coming home.
MS. HEPA said they had a subsistence workshop in the middle of July
and one of their recommendations was for a subsistence priority for
Alaska native people and other residents of rural communities who
have over time established customary and traditional uses of and
dependency on fish and wildlife for subsistence.
REPRESENTATIVE JOULE said this is why the subsistence summit has
taken a position of supporting the Alaska native plus rural
preference and putting the question of priority to the voter.
REPRESENTATIVE OGAN commented that they couldn't give the Alaska
native preference if they wanted to, because it would violate
ANCSA.
SENATOR LINCOLN asked if there is a rural preference and it is
voted on by the general public, would all the subsistence foods
remain in the village or does it get shared with other relatives.
MS. HEPA answered that they share different foods like muktuk and
berries from within the community and from different communities as
well.
MR. JERRY MCCUTCHEON said there are provisions in the law that
allow a private pilot to charge for his services to pay for the
cost of the plane. He said he was for the federal take-over. He
thought they should have impeached Governor Knowles when he
withdrew the lawsuit. He said we need to know what evils will be
done to us when the feds take over. He thought that the Division
of Commercial Fish will continue to screw the sportsfishermen, the
subsistence fishermen, and the small commercial fisheries. The
federal take over appears to be the only way Alaskans can
circumvent Knowles and the gang of seven.
In summary he said they should impeach the governor sending a
message to all future governors that the failure to uphold the
Constitution is a serious offense that won't be tolerated; second
they need to get control of the Division of Commercial Fish; and
third they need to amend the Constitution so that the personal use
fishery has a higher priority than commercial fisheries. What's
left should be for commercial fish.
REPRESENTATIVE OGAN stated for the record that the day the governor
dropped the Babbitt suit, his staff worked up a memo to him
asserting it was his sworn duty to defend the Constitution and he
was the third person in two days he has heard of talking about
impeaching the governor and the news media hadn't picked it up yet.
MR. GRIFFIN QUENTON said he lived in Alaska all his life and he
couldn't understand why the people of Alaska weren't making a
concerted effort to take congress to court regarding the
constitutionality of ANILCA. He said subsistence has meant that
you were entitled to take it if it was a matter of life or death.
Now lawyers looking for work through ANCSA has created
divisiveness.
He thought that rural people were trying to garner a rural way of
life under the guise of subsistence. There is nothing customary
and traditional about an airplane or four-wheel ATVs and snow
machines.
He felt strongly that they should bend every effort to prove that
ANILCA was not created legally because the people of Alaska already
governed by their Constitution which was duly ratified by congress
20 years earlier.
MS. TERRY BURRELL said she had lived here for 38 years and said she
thought we were having hard times becoming a cohesive State because
of the various land ownerships. The federal government, private,
native sources, and State sources have made us into a feudal
kingdom and we don't have the ability to have loyalty to our State.
She agreed that we needed to take action in the Supreme Court with
an injunction. She did not want to see our Constitution changed.
She thought welfare was wiping out subsistence.
MR. BOB JUETTNER said they supported Governor Knowles Task Force
proposal and the State management of fish and game resources. The
Borough Assembly is dominated by natives and their decision to
support a rural preference is because there are a large number of
non-natives in the region and they think this is the easiest way to
get past the October 1 deadline. Speaking from his heart and for
the Borough he would like to see this issue resolved. A guarantee
of the opportunity for subsistence is a very important issue since
it's a risky proposition just like commercial fishing.
He said that he now hears real polarization which he didn't see in
the State 20-years ago.
REPRESENTATIVE OGAN asked if he considered Dutch Harbor rural.
MR. JUETTNER said no, but he would have considered it rural three
years ago.
SENATOR TAYLOR asked how he perceived the State would manage
commercial fisheries different than the feds when both bodies are
held to the same ANILCA standards and subject to the same
triggering device and appeals and litigation. He commented that
commercial fishermen just wanted to go with the proposal because
otherwise they would be shut down in Cordova and False Pass, but he
just didn't see a difference in what would ultimately happen.
MR. JUETTNER said most people don't even think that the federal
government manages with the sustained yield principal like we do.
They manage on the basis of a healthy ecosystem and what that
means. He has spent many years and meetings trying to make headway
with the feds and he thought it was impossible.
SENATOR TAYLOR asked again why the commercial fishermen thought
this was a better alternative.
MR. JUETTNER answered that they probably haven't thought it all the
way through and also they don't want to sit in front of five
federal bureaucrats or go back to Washington D.C. on an issue of
how many fish, what gear, what fish, etc.
CHAIRMAN HALFORD said he thought it would also give them another
shot at the Bobby case and changing the definition from least
adverse impact to reasonable opportunity. People won't be sitting
under a mandate that says you have first eliminate other
consumptive uses before restricting the customary and traditional
uses of game for subsistence purposes.
TAPE 97-52, SIDE A
MR. RANDY KUBITZ said he shot his moose this year and shared it
with his family. He used the whole thing; and he has done this
every year. He didn't see how curtailing his rights would benefit
anybody. He opposed the proposal to change the Constitution
because it weakens our position as a State and the support we have
for the Alaskan people. He was afraid that a constitutional
amendment would divide the people of Alaska. This plan is not
middle ground, but it is admitting defeat. Putting one choice
before the voters is a very bad idea. They should put more than
one good proposal on the same ballot. He also questioned the
definition of other renewable natural resources.
He thought they could possibly give rural preference to permanent
fund recipients because money can be considered life-sustaining.
He thought natives might be fearing general population growth
instead of everyone's rights being protected. He thought we needed
to treat everyone equally into the future because the population
will continue to grow. It might be a little inconvenient for some
people if their subsistence rules are changed so all Alaskans can
share equally, but it is subsistence and he thought there was a
difference between that and personal use.
He said they need to define the roll of ADF&G and get them out of
politics. They should be scientifically in charge of fish and game
in Alaska.
MR. LANDIS TEW said he has been a federal employee for 25-years and
he didn't like the proposal at all. He didn't understand how we've
gotten to this point. He said there is no argument between the
State and U.S. Constitution. He said no one will take anything
from him any more and if they try, that is where he draws the line.
REPRESENTATIVE MASEK commented that the federal government already
took over management in game in 1990 and said the only problem she
sees with the linkage in the proposal was that there is still
federal court oversight. MR. TEW agreed with her. She thought we
really needed to change ANILCA, but our congressional delegation
has been reluctant to do that and she urged him to contact them and
let them know how he thinks.
MR. WARREN OLSON said he is a 39-year resident and a plaintiff in
McDowell 1 and McDowell 2, and Olson 3 coming up October 31 in
front of Judge Holland. He is probably the only Alaskan who has
taken the appeal process through the United States government
because of being removed from hunting activity in 1981 and being
told that he should seek relief in federal court.
MR. OLSON said he believes it is a legislative responsibility,
through the Boards of Fisheries and Game, to manage fish and game
in Alaska. The means and methods are through police powers of
regulation and the expertise through the Boards.
The reason he believes this is because of the public trust and
public trust doctrine responsibility which resides above
subsistence; it resides above rights. Rights come through many
years of judicial law, not legislative law which has created public
trust (uplands) and public trust doctrine (waterways).
The federal government, according to the top attorney in the United
States, cannot create public trust and public trust doctrine in
regards to users (although they can create it in regards to use).
He has a book with a thousands cases in it that back that up.
He wanted the legislators to force the Ninth Circuit Court into
determining whether or not public trust and public trust doctrine
is going to prevail on renewable resources or is the obligation to
indian land going to prevail.
REPRESENTATIVE OGAN said they had a fiduciary duty, not an
obligation, to manage the resources in the best interests of the
public trust and according to the best information he's read, to
amend the Constitution to give a rural priority would be a
violation of it. He thought it went back as far as the Magna
Carta.
MR. OLSON said that public trust doctrine has four fundamental
bases: navigation, commerce, fishing, and fowl lands. Hunting and
fishing aren't a privilege; they are fundamental rights. They can
be regulated, but the reason they can do so is to enhance those
resources for all users.
In a tape by Joseph Sax, lead guru on public trust and public trust
doctrine, he discloses that the federal government cannot create
public trust and public trust doctrine in regards to users. They
can do it in regards to use. He said he didn't see legislators
elevating themselves to the level of participation that is needed.
He said they have a fiduciary responsibility to the people of
Alaska to deal with this issue. He also said the Governor did not
have the authority to drop the lawsuit with prejudice. He said
subsistence is a problem between the United States government, the
federal government, and the Supreme Court of Alaska who is not
going to backup on public trust and public trust doctrine.
SENATOR TAYLOR asked what specific action did he want the
legislature to take to assert this right.
MR. OLSON said they had removed the State subsistence law of 1978
which abandoned the public trust, public trust doctrine. He would
pass fish and game regulations to have seasons and bag limits and
let the federal government come to them.
CHAIRMAN HALFORD asked about the provisions of the Constitution
that says subject to preference among beneficial uses.
MR. OLSON replied that we can do predator control and enhance
something versus another. Legally the idea is there that the
highest and best use of fish and game is for consumption.
SENATOR TAYLOR said he thought they needed to clarify that.
MR. GARY MASOG said when he went to the federal hearing he couldn't
testify at the meeting in Anchorage. He said they were basically
divided into little groups with two federal employees to tell them
how they were going to do it. This is telling the lie over and
over again.
MR. MASOG said he didn't think we needed subsistence. He thought
the problem is natives were told to select land adjacent to their
communities to keep their way of life and they did that. They got
40 million acres; 1,000 acres per man, woman, and child and most of
them live in Anchorage. The people who actually live in the
village have 10,000 acres per man, woman, and child. Most people
in the villages don't hunt, so the average hunter probably has
100,000 acres of his own land ready to hunt on. So why do we need
them to take over the federal lands.
He overheard some natives talking to a young man on a plane and he
said he would do anything to get to go and live a subsistence life-
style in a village for one year. He was told repeatedly that that
doesn't exist any more. They don't sit out there and hunt seals 12
months a year. They get a welfare check or they get a job. They
like hunting and fishing just like we do; and they eat it and enjoy
it just like we do.
He asked them what they envisioned for Alaska in 10 years and
thought the subsistence issue was really about power.
TAPE 97-52, SIDE B
CHAIRMAN HALFORD said he thought enjoying a subsistence lifestyle
should be thought about in the positive. It is a battle over
unconstitutional discrimination that should be considered.
MR. MASOG said the real problem with subsistence is that people in
Anchorage who get a lot of the game now fly out to rural remote
areas because they can't go to their traditional highway places.
They get their moose still and they are really impacting
subsistence.
He said another bad thing about subsistence is that the idea about
game management is to get shortages and the subsistence rules kick
in. He thought it was all a waste of time and it should just be
game management and they could skew the season to let the people in
Barrow do their thing, etc.
SENATOR LINCOLN said she was terribly offended by some of his
racial remarks as an Alaskan and a citizen of this State. She said
this is not a perfect package and as a member of a village
corporation, she doesn't have the privilege of going on her village
corporation land and killing animals unless there is a permit or
the season is open.
MR. MASOG responded that he couldn't hunt on that land at all.
MR. DOUG POPE, 52-year resident of Alaska said he is an attorney
who serves on the Board of Game. He was chairman of the Board when
the McDowell decision came down. He said that a lot of people here
had testified before him, too.
MR. POPE said he favors a rural preference although he didn't
necessarily favor this package. The reason he favors a rural
preference while he was chairman because of what happened in
Nelchina. He said they had some problems dealing with the Nelchina
caribou herd, but they worked together and figured out a way so
everyone could have an opportunity. They may not have had the best
opportunity, but they had access. This is when there was a rural
preference clause in the State statute.
Once the McDowell decision came down, they had a lot of meetings
and initially the Board voted to open it up to everybody because it
was too confusing. Finally, they were told by lawyers that they
had to do it this way. He voted against taking Nelchina into the
subsistence program because it was pretty obvious what was going to
happen there. It was an area of great abundance of caribou, a lot
of demand from both rural and urban areas. It was obvious that
applying the State subsistence law without a rural preference to
the Nelchina caribou herd situation was going to result in an
underharvest which it did for about three or four years. As a
result there is great stress in the herd and the range is being
overgrazed. All the signs of an imminent collapse are before them.
He thought the most significant reason for this was that they
didn't solve the problem. He also observed that essentially when
the subsistence system is based on historic use, you end up with
just as discriminatory a situation as you do when it's based on a
rural preference. He didn't think they could go to a system based
upon need under the State Constitution without amending it. He
said he agrees with many people here that the resource belongs to
every Alaskan and if you are going to limit access one way or the
other, you are offending that notion.
He said if they, as legislators, have sworn to uphold the oath,
they should repeal the State subsistence statute because it
discriminates against just a few less people than the rural
preference law does. The rural preference clause discriminates
against 80%. The historic use approach discriminates against 75%.
He said that no one has become before them to say that they have
been denied the right to hunt and he thought the real question was
how they guarantee a reasonable opportunity and protect the
resource at the same time.
He said he does care if the feds come in because, going back to the
Nelchina situation, the combination of federal management and the
customary and traditional historic use preference has resulted in
damaging the biological productivity of that area. There is no
question about that.
His solution, as distasteful as limiting access is, is that they do
have to limit access under some circumstances. When he was
chairman he became convinced that they could address 95% of the
fears they had heard in this room through the regulatory process.
It takes a department that's committed to supporting the Board and
seven members with an open mind. However, there is that 5% that
can't be addressed through the regulatory process and that's what
this preference is about. If a rural preference were in place
right now, he could fix Nelchina in about 15 minutes if he were
chairman.
He explained that if you look at the Nelchina Basin data, of the
rural harvest (not subsistence) 98% occurs within two to three
miles of the road system. If there were a rural preference there
now, they could designate an area within three to four miles of the
road system as a rural harvest area and open up the whole rest of
the Nelchina Basin to everybody else and the problem would be
solved. He said that he tried to do that without legislative
action, but he couldn't get the Department because they didn't want
to mess around with it, because it would have taken adjusting the
game management units and there's a lot of resistance to that.
He said there is no way his two boys would ever qualify for a State
subsistence permit because he quit hunting large mammals 15-years
ago. This is why this system is unconstitutional. He said that
something has to be done; doing nothing is not an option because it
endangers the resource and is creating another system that is just
as unfair as the rural preference.
The only reason he prefers rural preference over other solutions is
so his boys could move to the bush if they wanted to.
CHAIRMAN HALFORD asked him to clarify why he thought need would be
an unconstitutional method of determination of preferential rights.
MR. POPE answered that he didn't see how it could be any more of a
basis for discriminating that historic use or place of residence.
If it's a fundamental right, how can you take it away from someone
because you think someone else needs it more.
CHAIRMAN HALFORD asked if they didn't already use need as a
mechanism of granting deferential rights in all sorts of programs.
MR. POPE responded that they weren't fundamental rights. Welfare
and medicaid is not a fundamental right.
CHAIRMAN HALFORD said he thought a rural preference would tell
someone born and raised in Eklutna that they could never harvest
while a new judge can fly out there, buy his house in Bethel or
Dillingham, and he immediately has a preference to hunt in any
rural area of the State. The two things that are the most
egregious to people are the total lack of sensitivity to need and
the other is that it is all rural as opposed to all urban with no
sensibility as to where it ends up occurring. He said maybe that's
only the 5%, but those perceptions are what stand out in people's
minds. He thought a local preference would be less egregious than
a state-wide preference.
MR. POPE agreed with that. He also said that after discussions
with native members of the Board, he finally decided that he
couldn't tell the native people what's good for them; they have to
tell him what's good for them and he has to live with it. This was
especially after an especially contentious battle over helping Lime
Village which resulted in the Bobby case.
MR. VIC FISCHER said that 45 years ago we were fighting for
statehood and one of the overriding issues was to get control over
our resources and he thinks that should be a major goal today. He
said it is terrible to hear the divisiveness that has permeated so
much of the testimony today. There were a lot of inaccuracies, for
one thing. ANCSA has been talked about as something we gave to the
natives, but it was a settlement of Alaska native claims to land
and claims covering all of Alaska. The natives were authorized to
select 44 million acres and to receive $962,500,000 for land they
didn't receive. The State was so eager to get the pipeline going
at that stage, that that's the deal we made with the natives.
The other issue he heard was to go to court to annul ANILCA. He
asked what if Alaska would win such a case. Congress has a right
under the U.S. Constitution to pass any indian law they wish. They
could turn around and do anything they want across the board.
State sovereignty won't have any meaning at that point.
MR. FISCHER said that there is a big difference between subsistence
use and personal use. To him subsistence should be a use that
relates to survival and he thought there should be a lot more
emphasis on personal use.
The constitutional amendment before them is as cleanly written as
anything he has seen since Mr. Terry Miller passed the right to
privacy legislation back int 1972 - 74, although he didn't agree
the whole thing. He suggested that the constitutional amendment
which he favors should read, "The legislature may, consistent with
the sustained yield principle, provide a priority for subsistence
and personal uses in the taking of fish and wildlife and other
renewable resources, including such taking based on place of
residence."
MR. CHUCK GRAHAM said the proposed system of subsistence is
discrimination at its ugliest. He said we are all in this room
today because of the impending federal assault on our resources
which would set up and enforce a system of racial discrimination.
He said the root of the crisis is the rural preference clause of
ANILCA. He said we don't have to discriminate. The solution is a
legal challenge to the rural preference clause that is now making
its way through the court system.
MR. GRAHAM said that he has heard a lot of selfish testimony and
hasn't heard one person speak on behalf of the healthy, sustainable
herds of wildlife and fish. The question of subsistence and the
health of the wildlife are not separate items. What works is when
professional biologists assess what can be harvested and what can't
and where, etc. He thought the system we have now of certain open
seasons and bag limits that are open to everybody works for
everybody. He didn't think it was humanly possible to establish a
system based on race or length of residency or place of residence
that would work and not be discriminatory that will protect the
wildlife resources of this State.
SENATOR LINCOLN asked if he viewed rural preference as a racial
preference.
MR. GRAHAM answered that he viewed rural preference as being
utterly undefinable. He felt that a moose is a god-send. He looks
forward to the life-style of taking and harvesting game, of
respecting the animal and acknowledging that it wants to live as
much as we do, that it was put on this earth as we are; the taking
of this animal is a deliberate act of self and by doing so it
teaches a person and gives him a viewpoint of his own life and time
on this planet that can be found in no other way. It's not based
on race. He looks upon hunting as a privilege; there are
alternatives like Costco and jobs, etc.
In answer to her question he said he didn't see rural as a native
preference. He thought race was at the core of the subsistence
issue and he thought it was as damaging to the native people as it
is to the people who enforce it.
He also thought the legislators were naive if they let the federal
government coerce the State of Alaska into changing our
Constitution and that they are going to grant us autonomy. They
will subject the State of Alaska to intense oversight; and the
first time we depart from what they feel to be their guidelines,
they're going to descend on us like flies on a dead dog.
MR. RANDY BJORGAN said he thought the proposal should go no further
than the discussion stage. He opposed changing the Constitution
and didn't think we should allow ourselves to be blackmailed by the
federal government into actions that pit Alaskan residents against
each other. This issue should not go to the voters either, he
said, because it is just manipulation by the federal government
through our administration to further pit the people of Alaska
against each other.
SENATOR LINCOLN asked what his solution was.
MR. BJORGAN answered that the constitutionality of ANILCA should be
challenged. He felt he might go along with rural preference
because people have chosen to live that kind of life-style and he
chooses to live in Anchorage for other reasons.
TAPE 97-53, SIDE A
MR. RAY METCALFE said he is litigant in the North Star litigation
and in this process has found out a lot about public trust and
resource management. He said he is convinced we don't need a
constitutional amendment. Our problems of subsistence and the
goals of the rural community and native community are totally
solvable within statutes changes. He thought the Supreme Court was
ready to rule that personal use comes first and subsistence is a
form of personal use. He thought the State should pass legislation
that puts it first in a manner that solves the subsistence needs.
He thought the Supreme Court would rule that is the correct thing
to do.
MR. METCALFE had copies of the publication by Greg Cook on public
trust and resource management which he thought was imperative
reading for anyone on this committee.
REPRESENTATIVE OGAN said he had read it and recommended it as well.
MR. FRITZ PETTYJOHN pointed out that the Task Force proposal wants
to amend the Constitution which is a multi-generational document.
It's not some thing you can change here and there. If you put in
the Constitution some sort of separation based on residence, then
the State is divided essentially which is the worst kind of public
policy. It also is a permanent division which would be even worse.
SENATOR LINCOLN said she was glad to hear he thought she had so
much power. She didn't think the proposal was a perfect document
and that they needed to look at all proposals and what is good for
all of Alaska. She didn't think we were managing our fish and
wildlife in a manner such that anyone's great great grandchildren
will have the same opportunity as we do today.
MR. PETTYJOHN said he had no argument with that. He restated he
just didn't understand why we would want to draw a line between
rural and urban in the Constitution which would lead to statutory
and regulatory divisions.
SENATOR LINCOLN said she didn't want to gamble on her grand
childrens' future. We have to look at all of our options and she
didn't know if "we rolled the dice" and took the federal government
on, that they were bluffing. She didn't know if Senator Stevens
was bluffing. She wants to hear what all Alaskans have to say and
what bothers her is that they are not willing to put that out for
the people to vote on. She would be willing to take the gamble of
asking them if they want a rural preference.
MR. RON BARNES, Tununic Traditional Elders Council, said has
resolutions from other elders' councils asserting, for one thing,
that they had never been politically recognized. He noted that the
indigenous people's did not get to participate in their settlement
and they have a right to self-determination.
Reducing the subsistence issue to something personal that someone
needs reduces the indigenous people's right to development because
this right is based on their resource and fishing rights.
CHAIRMAN HALFORD noted that Mr. Barnes had done a lot of work on
indigenous issues in an international sense and a lot of things he
says are accurate, but in a State sense the disclaimer in the
Constitution is followed by the disclaimer in the preamble of
ANILCA and if you put the two together, everybody has disclaimed
any exclusive rights they may have of fisheries and game. That
means they become common rights. The problem with subsistence is
in the transition communities like Nenana and Glennallen. Mr.
Barnes is talking about political rights and the distinction is
always made between political and racial rights in American indian
law.
MR. BARNES responded that he didn't think they had dealt with the
problem. He mentioned their needs to be fulfilled through certain
foods because that is in indigenous peoples' genetic makeup. He
said the assertion has been made that the way the State's
Constitution was written and the way the deal was struck with ANCSA
were both illegal.
SENATOR LINCOLN said, using Rampart as an example, that lands were
not always selected for game purposes or gathering purposes. The
majority of the 173 people who are shareholders from Rampart do not
reside within Rampart proper. You still must abide by State and
federal fish and game laws. There is a checkerboard effect among
the State, federal, and private land holdings. There are very few
villages that have actually posted their areas. It's expensive as
heck to monitor 93,000 acres of land.
REPRESENTATIVE MASEK asked him if he worked with AFN, the non-
profit organizations, the IRA, or an organization that has
political recognition or power.
MR. BARNES answered straight from Resolution 742, Section 8, he
said that AFN's voice is bought and paid for. The parameters for
what they can argue is already set. For statehood and in order for
them to not get the vote, they had to not follow some of these
provisions which requires them to have an indigenous
representative, to have all this explained in the indigenous
language, and to have international monitors to sit there and make
sure that process is followed through.
REPRESENTATIVE MASEK said she had a copy of the native subsistence
summit in August 28, 1997, Resolution 9701 concerning the
subsistence rights of the Alaskan native people. The back of the
section directs the leadership of the AFN, the Alaska Intertribal
Council, and the Rural Communities Action Program to continue to
work to resolve this issue.
MR. BARNES said he was invited to the Subsistence Summit, but he
couldn't make it for personal reasons. And as far as the three
mentioned groups having the total say-so in the rights of
indigenous peoples of Alaska, it also states you can't make a
decision unless they are fully informed and you've received the
consent. There are still a lot of indigenous peoples who don't
look to AFN for leadership and this is a growing trend.
REPRESENTATIVE MASEK recommended that he tell that to Kevin Speak
at the AFN because that's very important since they are the policy
makers for Alaskan natives.
CHAIRMAN HALFORD thanked everyone for their participation and
adjourned the meeting.
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