Legislature(1997 - 1998)

05/26/1998 02:15 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
CHAIRMAN HALFORD called the Senate Resources Committee meeting to              
order at 2:15 p.m. in the Senate Finance Committee Room.  He                   
announced all committee members were present, as well as a number              
of other members of the Senate joining the committee.                          
CHAIRMAN HALFORD announced the committee would be taking up the                
proposed subsistence package which includes a constitutional                   
amendment, an extension of the sunset, as well as a governor's bill            
on subsistence; however, he said the committee would be                        
concentrating on the constitutional amendment proposal and the                 
sunset legislation.  He then invited Attorney General Bruce Botelho            
and former Attorney General Charlie Cole to make their presentation            
to the committee.                                                              
ATTORNEY GENERAL BOTELHO said he was appearing before the committee            
to represent the Knowles' Administration about subsistence, and Mr.            
Cole, a former attorney general, was appearing before the committee            
as a member of the bipartisan subsistence task force that was                  
convened last year to try and find a solution to the subsistence               
dilemma.  He said he and Mr. Cole  would be providing  an                      
abbreviated historic and legal perspective about the subsistence               
issue, and would be focusing  specifically on the constitutional               
amendment and the reasons why they think that the task force                   
product is one that should be ultimately put before the people of              
ATTORNEY GENERAL BOTELHO said probably an important start is to                
talk about what subsistence is.  Obviously, both state and federal             
law provide definitions of subsistence, but in a more general                  
sense, we're talking customary and traditional hunting, fishing, or            
other gathering activities that are intended for personal or family            
consumption.  It is also quite clear in looking  at what the                   
patterns are in Alaska, that subsistence is a mainstay of life,                
particularly in rural Alaska.  That dependency was particularly                
dramatically illustrated as a result of study that was completed in            
1987 by the Department of Fish and Game.                                       
ATTORNEY GENERAL BOTELHO directed attention to Table 1 contained in            
a packet provided to the committee (See Attachment #1) which shows             
the annual harvest of subsistence foods by geographical area.  He              
pointed out that of 98 communities that were surveyed around the               
state, going from the  very largest communities to the smallest                
villages in Alaska, the results show that the per capita                       
consumption  ranges from a low in the Anchorage, Fairbanks and                 
Juneau areas of 30 pounds per person to a high in the Northwest                
Arctic of well over 1,000 pounds.  The per capita consumption of               
these wild game fish and other resources vary directly from the                
distance to the major urban centers of the State.  The closer to               
road, rail or ferry service the less the dependence on that                    
resource.  The numbers reflect three factors:  (1)  job                        
opportunities in the urban  areas limit the amount of time that                
people can engage in hunting and fishing activities: (2)  there are            
also alternative food sources available combined with those cash               
incomes in the urban centers; and (3)  in urban areas there are                
large numbers of people who don't hunt or fish at all.                         
ATTORNEY GENERAL BOTELHO said he thinks there are two major                    
viewpoints that have been expressed about what the controversy of              
subsistence is.  In one sense, the subsistence debate deals with a             
larger issue that was triggered by dramatic population growth                  
within Alaska in the last decades and the consequential pressures              
on fish and wildlife resources.  This has forced policy makers to              
have to constantly readdress the issue of how to go about                      
allocating those resources when there aren't enough to satisfy                 
every person.   The other viewpoint has to do with the issue and               
direct result of efforts to resolve aboriginal hunting and fishing             
rights which actually began before statehood.  Congress said that              
Alaska, as a state, could not regulate aboriginal hunting, fishing             
or other gathering inconsistent with federal law.                              
There are two very pertinent provisions in the Statehood Act.  One             
is the transfer in 6(e) of the Statehood Act of fish and game                  
management from the federal government to the state.  The state                
would be able to exercise the same degree of power that the federal            
government was able to.  The other provision in Section 4 of the               
Act deals with the issue of the state being required by admission              
to disclaim all right and title to any lands or other property,                
including fishing rights, the right or title to which may be held              
by Alaska Natives.  The U.S. Supreme Court visited that issue very             
early in statehood, one arising out of Metlakatla and the other out            
of Kake.  In Kake versus Egan, the U.S. Supreme Court said the                 
purpose of that language was to preserve the status quo with                   
respect to any aboriginal claims so that statehood would neither               
interfere with extinguishing those rights or require them to be                
recognized as compensable.                                                     
ATTORNEY GENERAL BOTELHO said in 1971, Congress addressed the issue            
by enacting the Alaska Native Claims Settlement Act (ANCSA), and a             
large part of the debate about ANCSA is specifically about the                 
question of subsistence rights.  Amendments proposed to that Act               
would have specifically recognized Native rights, the hunting and              
fishing subsistence rights, and would have also specifically                   
directed the Secretary of Interior to withdraw lands around                    
villages for subsistence purposes with the ability to exclude any              
other takers.  Congress ultimately decided not to do that because              
the secretary had enough power to make those withdrawals without               
additional exercise of powers conferred by the Act.  The conference            
committee report on ANCSA said that the committee expected both the            
Secretary and the State to take any action necessary to protect the            
subsistence needs of the Natives; however, the secretary didn't                
undertake any particular actions.                                              
The state of Alaska made some preliminary efforts by enacting the              
first subsistence statute in 1975.  It allowed the Board of Game to            
set aside subsistence hunting areas, but the board never did it.               
Another Act was passed in 1976 which provided for greater public               
participation in that determination.  The power to designate these             
subsistence areas was discretionary and the board decided to use               
its discretion.                                                                
In 1978, the Legislature answered the question about subsistence               
priority use in legislation but didn't address the question of who             
the users should be.  The Legislature determined that it was in the            
public interest to clearly establish subsistence use as a priority             
of Alaska's fish and game resources, and to recognize the needs,               
customs and traditions of Alaskan residents.                                   
While the Alaska Legislature was working on the subsistence issue,             
there were efforts in Congress to try and deal specifically with               
subsistence.  At the same time, efforts were being made to pass                
another act which became known as the Alaska National Interest                 
Lands Conservation Act (ANILCA).  While the primary focus of that              
debate had to do with lands and land designations, there was no                
doubt that Congress, at this point, was also going to deal with                
subsistence.  The large push at that time by the Native community              
and supported by federal case law, particularly from the U.S.                  
Supreme Court, was that the subsistence priority on federal lands              
should be a Native priority, not a rural one, while the state of               
Alaska successfully pushed for a priority based on geography rather            
than ethnic background.                                                        
ATTORNEY GENERAL BOTELHO highlighted three sections of ANILCA.  In             
the policy section, it provides that the purpose of this title is              
to provide the opportunity for rural residents engaged in a                    
subsistence way of life to continue to do so.  The definitions                 
section provides that "subsistence uses" means the customary and               
traditional uses by rural residents of wild renewable resources for            
direct personal or family consumption.  The preference for                     
subsistence users section provides that, unless otherwise provided,            
the taking on public lands of fish and wildlife for subsistence                
uses shall be accorded priority over the taking for other purposes.            
With ANILCA, the federal government authorized a particular regime,            
but it also said that the state of Alaska could take over                      
management if it enacted laws of general applicability which                   
provide for the definition of "rural," the preference, and the                 
participation specified in the Act, and Congress gave the state one            
year within which to do so.                                                    
Between 1981 and 1989, the state undertook several efforts to come             
into compliance.  Initially, the Legislature was unable itself to              
enact a law, and consequently the Boards of Fish and Game adopted              
regulations to do so; those were rejected as being without legal               
basis in 1985.  This led to action in the 1986 legislative session             
that provided for a rural preference in the taking of fish and                 
In 1989, the Supreme Court struck down the rural preference.  The              
final conclusion of the court was that the statute, which provided             
or required that one live in a rural area in order to participate              
in subsistence hunting, was violative of what is called the common             
use clauses of the constitution.  That led to a determination that             
the state had no valid law that was consistent with ANILCA, the                
state was out of compliance, and, for the first time in several                
years, management was again reverted to the federal government.                
Since then, virtually every Legislature has had constitutional                 
amendments introduced to try to resolve the dispute.                           
ATTORNEY GENERAL BOTELHO reviewed four cases which he thought would            
help the committee in its deliberations.                                       
MCDOWELL V. STATE OF ALASKA (2) (1990)  It was a challenge in 1990             
to the constitutionality of ANILCA, also alleging violations or                
conflicts with the Statehood Act.  Two years later, the Federal                
District Court in Anchorage concluded that the plaintiffs both                 
lacked standing, but also looked at  the merits of the case, and on            
each and every issue challenging the validity of ANILCA the court              
concluded that ANILCA stood.  The plaintiffs and the federal                   
government appealed the decision on the standing issue to the Ninth            
Circuit.  In 1994, the Ninth Circuit vacated the District Court                
decision and told it to go back because they had not established               
standing, and it started over again.  The District Court ultimately            
dismissed the case without prejudice to refile.  The plaintiffs                
appealed that decision to the Ninth Circuit, and that case in front            
of the Ninth Circuit was voluntarily dismissed on February 9, 1998.            
A new case known as Olson v. United States was filed in January                
1997, and it raised most of the same issues that had been in the               
McDowell (2) case.  That was also dismissed voluntarily on March               
18, 1998 in order to make way for the Legislative Council's lawsuit            
in Washington, D.C.  That lawsuit is currently pending with motions            
to intervene and a pending motion to dismiss.                                  
STATE V. KENATIZE INDIAN TRIBE (1995)  The case was decided in                 
1995, and under the 1992 subsistence law, which was enacted to                 
respond to the McDowell case, Alaska, as a state, continued to                 
recognize the subsistence priority and created two tiers of                    
subsistence users.  The first one was intended to reach all                    
subsistence users and the second was intended to be able to resolve            
who gets to take the resource in the event that there aren't                   
sufficient resources to cover all subsistence needs.  The people               
who were to be eligible for this second tier of subsistence were               
determined based on three criteria:  (1)  customary and direct                 
dependence; (2)  the proximity to the resources; and (3) the                   
availability of alternative resources if subsistence was                       
restricted.  The 1992 law also authorized the Boards of Fish and               
Game to set up subsistence and nonsubsistence areas in the state.              
That law was challenged by the Kenatizes, and the Supreme Court                
struck down that part of the tier two criteria which was based on              
proximity to the resource.  Now all Alaskans qualify for                       
subsistence, but the areas where subsistence may be taken are those            
to be designated by the Boards of Fish and Game.                               
KATIE JOHN V. U.S. (1995)  The case was decided by the Ninth                   
Circuit in 1995.  Katie John and others of the Mentasta Village                
challenged the failure of the federal government, and specifically             
the Federal Subsistence Board, to adopt regulations that would                 
cover navigable waters near Mentasta.  The federal government had              
refused to do so and the state intervened in the case.  The                    
District Court found that, in fact, the federal government did have            
the authority to establish regulations dealing with subsistence on             
navigable waters.  This was appealed by the state of Alaska and in             
the federal court, and in 1995 the Ninth Circuit rejected the                  
navigational servitude theory but found that the federal government            
did have authority to enact regulations on navigable waters of the             
state.  The Court didn't say what waters they are, but it did say              
it is up to the federal managers to identify those waters.                     
Attorney General Botelho directed attention to a map highlighting              
many of the water bodies the federal government intends to regulate            
in the event that the state of Alaska does not take management in              
December of this year.                                                         
TOTEMOFF V. STATE (1995)  The case was decided by the State Supreme            
Court.  It arose out of the taking of a deer in the Prince William             
Sound area when Totemoff used spotlighting in shooting from a skiff            
to an island owned by the federal government.  The state of Alaska             
prosecuted for violating the state regulation which prohibited                 
spotlighting.  Totemoff argued that this was a customary and                   
traditional use, clearly a protected subsistence hunt.  The Alaska             
Supreme Court concluded that ANILCA itself did not protect the use             
of spotlighting as a customary and traditional method of                       
subsistence hunting, and as a consequence, there was no conflict               
between state and federal law, consequently  the federal law did               
not preempt the state's ability to prosecute this particular                   
violation on federal lands.                                                    
ATTORNEY GENERAL BOTELHO, speaking to the Governor's Task Force on             
Subsistence, said at their first meeting the task force agreed to              
four principles in trying to reach resolution of the subsistence               
(1)  To establish effective state authority over the entire state              
     for management of fish and game.                                          
(2)  To recognize the paramount importance of the subsistence way              
     of life in Alaska.                                                        
(3)  To maintain neutrality on the issue of tribal sovereignty over            
     lands in the state.                                                       
(4)  To make only those changes that were necessary to accomplish              
     the objectives of (1) and (3).                                            
The product was three-fold:  changes to ANILCA, which for the most             
part were achieved by Senator Stevens; a constitutional amendment;             
and a statutory framework.                                                     
Number 472                                                                     
CHAIRMAN HALFORD noted that when Attorney General Botelho talked               
about  the federal law, he said if the state were managing it then             
the state could comply with the federal regulations.  He then asked            
if the "it" he was referring to is the management of fish and game             
or the management of subsistence.                                              
ATTORNEY GENERAL BOTELHO responded that, in the very specific, it              
was management of subsistence uses of fish and game on federal                 
CHAIRMAN HALFORD said the reason he asked that question is because             
one of the most often played misconceptions is that this discussion            
is about the management of fish and game versus  the management of             
subsistence harvest.  He asked if the state isn't in compliance,               
what does the federal government manage under the management                   
authority that is provided in Title VIII of ANILCA.                            
ATTORNEY GENERAL BOTELHO answered the federal government is                    
directed to manage for the subsistence use on federal lands under              
the terms of Title VIII of ANILCA.                                             
CHAIRMAN HALFORD said then it is definitely not opening and closing            
commercial seasons, nonsubsistence season, personal use seasons,               
ATTORNEY GENERAL BOTELHO agreed that it was not directly.  He said             
obviously what was anticipated and reflected in several parts of               
the Act is coordination with the state of Alaska so that the                   
subsistence use  and subsistence management or priority was reached            
but understood that it would work with state fish and game                     
CHAIRMAN HALFORD asked if it was correct that it was in 1986 that              
the state first put the rural preference in statute.                           
ATTORNEY GENERAL BOTELHO acknowledged that was correct.  Before                
that time it was done by regulation.                                           
CHAIRMAN HALFORD concluded that the statutory rural preference  was            
held unconstitutional in 1989 so the state really only had that                
preference for a three-year period since statehood.                            
ATTORNEY GENERAL BOTELHO agreed that was an accurate statement.                
SENATOR TAYLOR said Attorney General Botelho had cited the Alaska              
Supreme Court's definition and reference to the 1953 Submerged                 
Lands Act, and asked if he disagrees with the Supreme Court's                  
interpretation: that it precludes the federal government from the              
exercise of both its reserved water rights and other navigable                 
reservations or claims of power by the federal government.                     
ATTORNEY GENERAL BOTELHO responded that he thinks the real issue is            
that there is a conflict between the Ninth Circuit's view of                   
authority of federal managers and the State's Supreme Court's view             
of it.  It's a classic management conflict that is in place in                 
terms of federal mangers being compelled to follow the directives              
of their management and of the Ninth Circuit decision.  Under                  
Alaska law and constitutional law generally, the Alaska Supreme                
Court's decision is on a par with the Ninth Circuit's decision.                
He added that this is not first time there has actually been that              
kind of direct conflict.                                                       
SENATOR TAYLOR asked what side of that question he is advocating               
ATTORNEY GENERAL BOTELHO answered that his purpose in appearing                
before the committee  is to advocate a constitutional amendment                
which would make it possible for the state never to face that                  
conflict and be able to manage in all waters and lands of the                  
SENATOR TAYLOR said if the State Supreme Court is correct, and he              
was advocating on behalf of the people of Alaska in light of our               
Supreme Court's decision, he would assume that he would be                     
litigating against the federal government to take that to a higher             
court to defend Alaska's Constitution and the Supreme Court's                  
interpretation of the 1953 Act.                                                
ATTORNEY GENERAL BOTELHO replied that is exactly what the state of             
Alaska did, but the Ninth Circuit decision stands as the law of the            
circuit which includes Alaska, and conversely, the Alaska Supreme              
Court decision stands.  He said we have a direct conflict between              
the state and federal courts, and, consequently, direct conflicts              
between the authority of federal managers and the authority of                 
state managers in managing fish and game for subsistence purposes              
on the navigable waters of the state.                                          
SENATOR TAYLOR asked Attorney General Botelho to explain why the               
state dismissed the Babbitt case.                                              
ATTORNEY GENERAL BOTELHO said the Babbitt case wasn't a challenge              
to the constitutionality of ANILCA.  The issue raised in the                   
Babbitt case was did the Secretary of Interior have powers to adopt            
regulations managing subsistence on federal lands in Alaska.  That             
argument was advanced, even though there were general regulatory               
powers found in Title 8, with the expectation that if the state                
prevailed the default would be to state management and adoption of             
regulations.  The District Court held that the Secretary had the               
power to adopt  regulations and to protect subsistence, and that               
power was found not only in the Act but in other powers of the                 
secretary granted in other acts of Congress.  The District Court               
decision, which the state appealed initially before it was dropped,            
also made clear that the default position wasn't that the state                
would be able to manage, but that the federal courts would manage.             
That was an untenable position for the state to be fighting in the             
Ninth Circuit.  He said what we got was, instead of the Secretary              
adopting regulations, the federal District Court in Anchorage                  
managing subsistence on federal lands.                                         
SENATOR TAYLOR commented that Attorney General Botelho still hadn't            
answered his question as to why the case was dismissed.                        
Number 555                                                                     
SENATOR LEMAN referenced the task force's fourth principle, which              
is  to make only those changes necessary to the law to regain full             
state management, and in light of that he thinks  the                          
constitutional amendment before the committee is drafted fairly                
broadly and could be narrowed and still be consistent with the                 
other guiding principles of the task force.  He suggested one of               
the ways the focus might be narrowed and still be consistent is to             
restrict the application to federal lands.                                     
SENATOR SHARP referenced the constitutional amendment legislation              
and asked if there was a detailed definition of what is meant by               
"other renewable natural resources."                                           
ATTORNEY GENERAL BOTELHO answered that there is not, and it is not             
defined in the Act itself.  He also acknowledged that it could be              
timber, water, any natural resources which are renewable.                      
TAPE 98-42, SIDE B                                                             
FORMER ATTORNEY GENERAL CHARLIE COLE stated he was appearing before            
the committee as a member of the Republican-led task force                     
appointed by Governor Knowles, and that he was not a member of                 
Alaskans Together, he has no clients who have a basic vested                   
interest in this issue, he has no personal friends who have a basic            
interest in the issue, and he has not been paid for his service on             
the task force, except a lunch occasionally furnished by the                   
Governor, and air transportation to the various meetings.  He also             
pointed out that he is not a big hunter, not a big fisherman, and              
the views he would be expressing are those which he has come to by             
virtue of his participation on the task force, by virtue of                    
independent legal research, and by virtue of a lot of personal                 
reflection upon what he thinks is in the best interest of the state            
of Alaska.                                                                     
MR. COLE said he has thought about the issue a lot, and he supports            
what is proposed in the constitutional amendment and, in general,              
the statutory provisions which have been  introduced by the                    
Governor.  Although he doesn't agree with all of the statutory                 
provisions, he recognizes that in order to reach some  consensus,              
it is a give and take process.  He believes everyone is searching              
for the same end result and that is for the state to regain and                
continue to manage wildlife and fish on state and federal lands.               
MR. COLE related that he would be directing his comments to federal            
power to  give the committee a slightly different slant on the                 
power structure which is involved between the United States and the            
state of Alaska.  He thinks it is clear that the state of Alaska               
has legislative powers and police power over all federal lands in              
Alaska.  The state of Alaska had those powers and has exercised                
those powers on both federal and state lands in Alaska.                        
Before ANILCA was enacted, the famous Kleppe case arose and came               
before the U.S. Supreme Court.  Kleppe was a Secretary of the                  
Interior, and, in the circumstances of that case, the United States            
had enacted legislation called the "Wild and Free Roaming Horses               
and Burro Act."  It provided, in essence, that on federal public               
lands it was against the law to interfere with the free roaming                
horses and burros running wild on federal lands in New Mexico.  At             
the same time, New Mexico had a statute called the "New Mexico                 
Astray Act," which gave the state of New Mexico the right to go                
upon state and federal lands and take possession and sell these                
running wild horses and burros.  A cattle farmer, who had a permit             
for grazing his cattle on federal land, said these horses and                  
burros were interfering with his cattle and he wanted the state of             
New Mexico authorities to take possession of these animals and get             
rid of them.  The New Mexico authorities did so, however, the U.S.             
government told them to put the animals back.  The state of New                
Mexico then filed a suit saying the federal government was                     
interfering with state powers.  The case went to the U.S. Supreme              
Court, and the Court said the property clause in the U.S.                      
Constitution provides that Congress shall have the power to dispose            
of and make all needful rules and regulations respecting the                   
territory or other property belonging to the United States, and                
Congress has acted under the power.  The Court also said that while            
the furthest reaches of this power have yet to be defined, it has              
been repeatedly observed that the power over the public land thus              
entrusted to Congress is without limitations. However, the Supreme             
Court in Kleppe did not decide whether the United States had the               
power to go back on private lands and retrieve the burros, which               
had been on federal lands and been taken onto private lands, to                
take them back onto federal lands.                                             
In another case known as Brown versus Minnesota, a duck hunter                 
hunting in Voyagers National Park in Minnesota was cited by a                  
federal park ranger for carrying a loaded firearm and hunting in a             
national park in violation of regulations promulgated by the                   
Secretary of the Interior.  Brown pled not guilty on the grounds               
that the federal government had no authority over him because he               
was on navigable state waters.  He was fined then appealed his                 
conviction all the way up to the Eighth Circuit Court where his                
conviction was upheld.  Approximately four years later, the issue              
came up again in the Eighth Circuit regarding another federal                  
statute called the Boundary Waters Canoe Area Wilderness Act.  The             
federal government had about 160,000 acres of submerged lands                  
within wilderness area owned by the state of Minnesota, as well as             
another 120,000 acres within a state park.  Congress said the state            
can regulate on its own lands within the areas of the park, but                
the regulations must be as  stringent as federal regulations.                  
Congress had said no motor boats and no snow machines within the               
wilderness area.  It was determined that the Congress has extra                
territorial powers whenever action on these non federal lands and              
waters interfere with the fundamental purposes of the federal                  
MR. COLE said he fears the application of Babbitt - the Reserved               
Water Rights Doctrine under the extra territorial powers of                    
Congress - to manage for subsistence purposes.  The federal                    
government can do that under regulations promulgated by the                    
Secretary of the Interior.  He cautioned that there will be federal            
management of essentially all state waters by the Secretary of the             
Interior for subsistence purposes.  He said the power to manage for            
subsistence purposes is vast in order  to fulfill the rural                    
priority for the taking of fish and game for subsistence purposes.             
The Secretary has the power to do everything that needs to be done             
to fulfill that right.  The Secretary has said that implementation             
of the court's decision will result in the unprecedented expansion             
of federal management of Alaska's fisheries in many areas of the               
state and federal managers may be called on to intervene in the                
management of commercial harvests to assure upstream delivery of               
salmon to subsistence users.  He emphasized  that the federal                  
government is going to be managing in numerous waters throughout               
the state.                                                                     
MR. COLE said there has been talk about dual management of                     
wildlife, but that is not going happen.  The Secretary will say the            
traveling herds that go back and forth between state and federal               
lands must be protected for subsistence users on federal lands and             
there will be no taking of caribou on state lands.                             
MR. COLE questioned when anyone has ever seen the federal                      
government not exercise the full range of its powers. He said                  
within a few short years, the things that many people fought for in            
statehood are going to revert right back to the federal government.            
The Secretary will have the power to close hunting on state lands              
and in state waters until the subsistence priority is fulfilled.               
MR. COLE said that the fact of the matter is that the federal                  
government has dictated a rural priority and that's what we're                 
faced with.  If the Legislature does nothing, there will be federal            
management on state lands and federal lands for wildlife and                   
fishing.  He questioned why the Legislature, if it really believes             
in the Public Trust Doctrine and as trustees has the responsibility            
to preserve and protect the state's natural resources, would                   
abdicate to the federal government.                                            
In his closing comments, MR. COLE  said they were not asking  that             
the state's fundamental  constitutional rights be amended and                  
dispensed  with.  He said that once we regain management authority,            
we're sort of in the driver's seat and we can go back and tell                 
Congress this is unfair, and make those administrative decisions               
and the decisions of allocation among sport and commercial users.              
He reiterated that if the state doesn't do that, the federal                   
government will manage  solely to protect subsistence rights, and              
it is his view that if the state doesn't do anything, it may never             
get management back again.                                                     
CHAIRMAN HALFORD said the federal government has had subsistence               
management of game for the last eight years, and he asked if Mr.               
Cole knows of any case in the state where they have exercised extra            
territorial jurisdiction, where they have exercised any action                 
against any other harvest other than simply provide a second set of            
duplicative, wasteful and sometimes unnecessary regulations.                   
MR. COLE responded that the answer is no, but the reason he thinks             
they haven't is because they want these issues settled and                     
resolved, and when they see their way clear, they will then proceed            
expeditiously to flex their muscles.                                           
SENATOR TAYLOR noted the Babbitt case was brought under Mr. Cole's             
jurisdiction as attorney general, and Attorney General Botelho has             
indicated the case was dismissed for political purposes.  He asked             
if the Babbitt case and the dismissal of the case is, at this                  
point, incorporated within the amendments Mr. Cole was advocating              
the Legislature adopt which precludes the state to ever again raise            
the issue of the power of the Secretary to enact the regulations.              
MR. COLE declined responding to the question because one of the                
policies he has followed is not to criticize his predecessors as               
attorney general and not to criticize his successors.                          
SENATOR TAYLOR said he thought the last Supreme Court case that                
this state had a decision on was Dinkum Sands, and Sandra Day                  
O'Connor wrote in her opinion that not only did the state of Alaska            
and Legislature have jurisdiction and authority over all of the                
submerged lands pursuant to the Submerged Lands Act, but over all              
of the navigable waters and the fish that swim therein.                        
MR. COLE said Sandra Day O'Connor was correct, but she didn't put              
a comma there that said "except where the Congress of the United               
States acting under its power under the property clause has                    
determined otherwise."  He added that except for ANILCA's                      
provision, she is absolutely correct; the state has the power to               
regulate fish in navigable waters.                                             
SENATOR TAYLOR asked Mr. Cole if he would agree then that you don't            
have a case of allocation under the property clause, that Sandra               
Day O'Connor just kind of forgot to consider that they had the                 
property clause.  He asked if he feels very confident that when the            
Supreme Court of the United States gets a case, they are just going            
to roll over and say that Congress has the right to allocate among             
the beneficiaries of this public trust.  They will decide that                 
people who live in one size of a town can hunt ducks, and the                  
person who lives in a smaller town cannot hunt ducks, or vice                  
MR. COLE responded that his answer to that question is an                      
unequivocal yes.                                                               
SENATOR LEMAN said Mr. Cole had questioned why the Legislature                 
would want to restrict its authority; however, he believes that it             
may be appropriate to do that because, from time to time, there are            
excesses of the Legislature's reaches of power, and when that                  
happens, the Legislature appropriately responds.  He believes the              
constitutional amendment can be more narrowly crafted to get what              
the task force's  fourth principle says.  He asked why it is of                
particular interest to the federal government about what the state             
does on its lands or on private lands as long as it is not                     
affecting the resource that might get on federal lands.                        
MR. COLE said he has thought about the possibility that the                    
Legislature could say that it grants the priority on federal lands             
but not on state lands, but the problem is that this concept would             
not work on navigable waters because there is no way to segregate              
them under the Babbitt case or the Katie John case.                            
TAPE 98-43, SIDE A                                                             
Number 001                                                                     
CHAIRMAN HALFORD  questioned if there was no way to separate water             
rights, because he thought the whole next phase of the issue was               
going to be defining federal reserve water rights.                             
MR. COLE replied that once the state regains management, then the              
reserve water rights doctrine drops out because we have management             
in all waters of the state so we don't need to deal with that                  
SENATOR LINCOLN said the constitutional amendment before the                   
committee provides that the Legislature "may" provide for a                    
priority, etc., and she asked if the amendment were adopted but no             
statute follows it, how would it resolve the subsistence dilemma.              
MR. COLE responded that it would be necessary for the Legislature              
to enact a statute which grants the rural priority in order to                 
regain management of wildlife and to preclude the federal                      
management of fishing.  So the Legislature would be, in essence,               
required to enact a properly implementing statute.                             
CHAIRMAN HALFORD interjected that if the constitutional amendment              
passed, would not the old language that was stricken by                        
constitutional action go back in.                                              
ATTORNEY GENERAL BOTELHO replied that if the 1992 statutes are not             
extended, there is a default back to 1986, but changes in ANILCA               
itself would still have the state out of compliance.  Absent some              
intervening act right now, the constitutional amendment, by itself,            
will not bring the state into consistency with ANILCA and a default            
to the 1986 statute, in itself, most likely would not either,                  
although it does provide for the rural preference.                             
CHAIRMAN HALFORD asked if the state was out of compliance on the               
local participation provisions or only on the rural provisions when            
the McDowell case came down.                                                   
ATTORNEY GENERAL BOTELHO answered the state was out of compliance              
with the rural provision.  In the meantime, ANILCA has been                    
SENATOR ADAMS asked if language could be added to the                          
constitutional amendment that basically ratifies the 1986 law.                 
That language would add the definition and the subsistence                     
preference for rural residents without having to pass a new statute            
to satisfy this requirement.                                                   
ATTORNEY GENERAL BOTELHO replied that with the amendments, the                 
issue that the Secretary would be faced with is determining whether            
there are laws of general applicability that are consistent, and he            
thinks there are problems with the definition, participation and               
the composition of regional councils.                                          
SENATOR ADAMS said the language "the Legislature may" is                       
permissive, and he asked why not change that to "the Legislature               
MR. COLE responded that the reason the word "may" was in there was             
to give the Legislature some flexibility because it was  thought               
that perhaps at some time ANILCA may be amended and then the state             
would not have a mandatory rural priority.  Also, if the current               
litigation is successful, then the Legislature would simply repeal             
any implementing statute.                                                      
CHAIRMAN HALFORD said a portion of Senator Stevens' amendment dealt            
with regionalization, and those provisions represent an additional             
federal mandate.  He asked what the task force's position is on                
that mandate and if there was a way to separate that mandate from              
the rest of the package.                                                       
MR. COLE said this was one of the provisions of the proposed                   
legislation which he has hesitation about.  The reason is that                 
these provisions came before the task force just as it was winding             
up its actions and they really didn't have the opportunity to take             
a close look at those provisions.  He also said this is a federal              
statute and there is no way under the sun that Congress is going to            
say that United States District Courts do not have the right to                
hear and decide cases and controversies arising under a federal                
statute.  He thinks that it is vital that there be a recognition of            
the strength of the Stevens' amendments, which require federal                 
courts to give deference to state administrative agencies'                     
decisions to the same extent it would actions of a federal                     
administrative agency.  The effect of that means that when the                 
state administrative agencies, the Boards of Fish and Game, act                
that the federal district courts have to give the state the benefit            
of the doubt.  He said if we do nothing, the federal courts are                
going to give the benefit of the doubt to the administrative                   
actions of the federal agencies, so that's why it is vital to get              
that power for a deference to state administrative agencies.                   
SENATOR LINCOLN asked  Mr. Cole if he was suggesting that after                
adopting a constitutional amendment and the statutory change, the              
Legislature could then go back to Congress later and say this fix              
is unfair.                                                                     
MR. COLE replied that there are many Alaskans who feel that the                
rural priority is fundamentally unfair, and if the state regains               
compliance in the fashion that he has mentioned, those people who              
feel that way will have the right to go to Congress and seek                   
changes in ANILCA, while at the same time, the state continues                 
management of the fish and game.                                               
Number 248                                                                     
SENATOR WILKEN made reference to the new Section 19 in SJR 101, and            
asked Mr. Cole why the subsistence priority has to be based on                 
MR. COLE answered that ANILCA requires subsistence priority based              
on place of residence.  The Alaska Supreme Court has said                      
legislation giving subsistence rights on place of residence is                 
unconstitutional so the language "based on place of residence" was             
put in to get around McDowell, but it was left broad by not putting            
in the word "rural."                                                           
SENATOR HOFFMAN asked Mr. Cole his view of the prospects for                   
changes being made in the future to Title VIII of ANILCA, and why              
people of rural Alaska would want a constitutional amendment,                  
because from his presentation it seems like their subsistence                  
rights are going to be better protected by the federal mandates.               
MR. COLE said his fundamental premise was that it is virtually                 
impossible to change Title VIII  of ANILCA, and it is a waste of               
time to concoct statutes that don't comply with ANILCA.  He said               
that we ought to just face that we either comply with ANILCA or                
we're going to pack our bags and go home because, in his view,                 
those are the only effective choices.  He said there are some                  
people who feel very strongly about that and they should be able to            
exercise their rights to complain to Congress if they wish.                    
CHAIRMAN HALFORD pointed out that it has been said that changes                
can't be made to ANILCA, but last fall in a 10-day period, there               
was a change made in the definition of "rural," there was a change             
in "reasonable opportunity," there was a change in limitations on              
"customary trade."  There was a major package of changes to ANILCA             
that were done by the Appropriations Committee, outside of the                 
Resources Committee, before most people really knew what was in the            
MR. COLE replied that he has been very careful to say that he                  
doesn't think the fundamental provision of ANILCA giving priority              
for subsistence uses to rural Alaska residents can be changed.  He             
personally thinks that Secretary Babbitt was stretched to the limit            
in going along with the so-called "Stevens' amendment."                        
SENATOR TAYLOR asked if he was saying that we should surrender to              
the federal law so that at some time in the future we can go back              
with probably a less powerful congressional delegation than we have            
now and then we can change ANILCA.                                             
MR. COLE responded that he doesn't think we're surrendering; he                
thinks it is sort of an uneasy truce.  He said the important                   
distinction is that we've regained management.  The issue is do we             
want to regain it at some price or not.  His view is to regain as              
much as we can get.  Then the Legislature will be in the position              
of power and will be managing fish and game in Alaska and not the              
Secretary of the Interior.                                                     
SENATOR TAYLOR said the task force came up with a proposal that put            
in the words "arbitrary, capricious or abuse of discretion,"  and              
Mr. Cole had testified that if we had such a standard in the law,              
the federal courts would not only have to give due deference to                
state agencies, but they could not overturn those agencies unless              
they found arbitrary, capricious or abuse of discretions.  However,            
that language got changed in the Stevens' amendments  by adding the            
words "or otherwise not in accordance with law."  He asked what                
impact that language has on this deference that we're to receive               
from the federal Judiciary.                                                    
MR. COLE said that provision was discussed at length in the task               
force, and the staff recommended arbitrary, capricious, etc.  He               
had  suggested that "not in accordance with law" should be added in            
because it should be one of the fundamental reasons for not                    
supporting action of a state administrative agency.  There was a               
long debate by the task force over that issue but it was not put               
in; however, it was added into the Stevens' amendment.  He said of             
all the reasons to strike state administrative agency policy, the              
most fundamental is if it is not in accordance with state law or               
federal law.                                                                   
SENATOR TAYLOR commented that, from his viewpoint, those words have            
a significant weakening effect upon the report and recommendation              
of the task force, and once put into law, allow the federal                    
judiciary to disregard the words "arbitrary, capricious or abuse of            
discretion" and merely focus upon their personal interpretation of             
what ANILCA says.                                                              
MR. COLE disagreed and said he thinks it was simply inserting the              
obvious in that provision.                                                     
SENATOR TAYLOR said a witness testifying on HB 406 in the Senate               
Judiciary Committee wanted to know why they didn't have Native                 
subsistence only in the bill.  He asked Mr. Cole to explain, from              
a task force perspective, why there isn't Native subsistence only              
in this legislation.                                                           
MR. COLE responded it is not in there because he thinks it is                  
racist, and one thing the state does not need is more racial                   
divisiveness  in the state.  He thinks it is wrong to give special             
preferences to one ethnic group and he is glad that it is not in               
SENATOR SHARP expressed his uneasiness with the wording of the                 
constitutional amendment.  He suggested that since Title VIII is so            
chiseled in  concrete and it is not going to be changed, why not               
put rural priority in the constitutional amendment so that people              
know up front what they are voting for and don't have the feeling              
that it is based on place of residence.                                        
MR. COLE acknowledged that would be perfectly acceptable to him if             
that was the wisdom of the Legislature and if it thinks it might               
make a difference.                                                             
Number 431                                                                     
SENATOR WARD said Mr. Cole had said earlier none of this had a                 
religious overtone.  However, he was brought up Athabascan, and as             
early as he can remember, when the first subsistence was caught,               
they did a ceremony, and according to members of his family, this              
is religious to the Creator.  He then asked if the Secretary of the            
Interior is going to abandon all the Alaska Natives that live in               
the wrong zip code.                                                            
MR. COLE responded that he thought he said racial not religious,               
but he apologized if he misspoke.  He said the Secretary of the                
Interior is required to execute the laws that Congress has enacted,            
and he has no freedom to be able to unilaterally change the rural              
preference provided for in ANILCA.                                             
SENATOR WARD commented that he is an Alaskan born Native, but                  
according to this amendment, because a town (Anchorage) grew up                
around him, he would have to become a second tier as far a priority            
would go.                                                                      
MR. COLE reiterated that the decision and the problem the state is             
faced with is a congressional enactment, and until it is changed,              
that's going to be the way it is.                                              
SENATOR LEMAN said it was mentioned earlier that this was put                  
together as a package and the constitutional amendment was linked              
to some changes in ANILCA, however, the proposal before the                    
committee doesn't have that.                                                   
ATTORNEY GENERAL BOTELHO responded that the linkage was satisfied              
in part by the congressional action.  Initially, the view was to               
try and provide a fail safe for all sides where you got everything             
or nobody lost anything.  With the actions by Senator Stevens, most            
of the congressional changes that the task force looked to were                
already accomplished.  What remained were the constitutional                   
amendment and statutory changes, so, to a certain extent, the                  
linkage is still there relevant in terms of the statute  and the               
constitutional amendment themselves.                                           
SENATOR LEMAN asked Attorney General Botelho if the Administration             
would oppose some linkage if it was determined that there may be               
some appropriate linkage, even with this constitutional amendment              
and some changes in ANILCA.                                                    
ATTORNEY GENERAL BOTELHO replied that he doesn't know that the                 
Administration is at a stage to say that they would oppose                     
virtually any change.  They think they have accomplished the                   
changes that are beneficial in terms of Title VIII and to make a               
subsistence program that will actually work.  The Administration               
will not, at this point, endorse  any further changes to ANILCA                
because, in their view, the focus needs to be on the constitutional            
amendment and on the statutory framework.                                      
SENATOR TAYLOR said several people in the audience had been in his             
office during the legislative session talking about how additional             
changes needed to be made to ANILCA.  They felt that if we would               
only go along with this constitutional amendment that this form of             
appeasement might be enough so that they would then listen to our              
request for some small amendments to ANILCA.  He asked Attorney                
General Botelho if he was saying that there are going to be no more            
amendments, that the Legislature can forget about any linkage with             
Congress, and that it has to come up with a constitutional                     
amendment and a state statute to be in compliance with the law as              
it is now.                                                                     
ATTORNEY GENERAL BOTELHO answered he was simply stating the view of            
the Administration.  In terms of the package which the                         
Administration has endorsed, it consisted of changes to ANILCA, a              
constitutional amendment and statutory changes which they propose.             
They believe this package satisfies the needs of a vast majority of            
Alaskans.  He added that whatever constitutional amendment appears             
on the ballot is entirely beyond the control of the Administration.            
MR. COLE added that when the task force addressed this problem,                
they looked at what are some of the weaknesses in ANILCA that they             
would like to see remediated and that they thought they could                  
change.  So they crafted some amendments to ANILCA that they                   
thought strengthened ANILCA from the state's standpoint, made it               
more palatable from the state's standpoint, and that they thought              
they could get enacted.                                                        
Number 570                                                                     
CHAIRMAN HALFORD thanked Attorney General Botelho and former                   
Attorney General Cole for appearing before the committee.  He then             
announced the committee would stand in recess for approximately 15             
CHAIRMAN HALFORD called the Senate Resources Committee meeting back            
to order and stated the committee would next hear from the                     
Department of Fish and Game.  Representing the department were                 
Commissioner Frank Rue; Deputy Commissioner Robert Bosworth; and               
Mary Pete, Director of the Division of Subsistence.                            
FRANK RUE, Commissioner, Department of Fish and Game, informed the             
committee that Bob Clasby, Director of the Division of Commercial              
Fisheries; Wayne  Regelin, Director of the Division of Wildlife                
Conservation; and Kevin Delaney, Director of the Division of Sport             
Fish, were also in attendance to respond to questions the committee            
might have.                                                                    
COMMISSIONER RUE said he would be focusing on problems the                     
department is starting to see with federal management under game               
and what they may expect under fish.  He said having the federal               
government managing subsistence on federal lands has basically                 
created a dysfunctional system which will continue to get worse as             
they move into fisheries management.  The first federal regulations            
were basically a Xerox of the state regulations.  They have since              
then begun to divert from the state system and begun implementing              
federal regulations on federal lands which have started to cause               
three types of problems:  an unnecessary loss of opportunity for               
sport and subsistence users on state land; conservation risk to the            
resource due to over allocation; and a far more expensive, wasteful            
and confusing system for people of the government, as well as the              
TAPE 98-43, SIDE B                                                             
Number 600                                                                     
As an example of an unnecessary loss of opportunity, COMMISSIONER              
RUE noted that there is a small population of musk oxen on the                 
Seward Peninsula that goes on both state and federal lands.  These             
resources move across all land ownership and people in different               
communities depend on them.  There is a certain number available               
for harvest, and, basically, the federal board allocated all of the            
resource to the federal subsistence hunt which meant that the                  
state, in order to maintain sustained yield, had to shut its hunt              
down on state land.  The choice would have been to over harvest the            
populations.  He said the department's concern about this is not               
only the conservation risk and the loss of opportunity, but what               
has been seen in other places like the Lower 48 where there is a               
different method of dealing with aboriginal hunting and fishing                
rights.  Basically, the non-aboriginal fisheries in the state of               
Washington take all the conservation burden.  He said that is                  
another way rather than just extra territorial reach.  A federal               
subsistence priority can affect other users downstream by putting              
the conservation burden on the other users, both subsistence and               
sport and commercial and personal use.                                         
COMMISSIONER RUE said there is also concern with fish.  It is a far            
more complex system because it is a resource that moves across many            
more jurisdictions.  He believes the problems they are seeing with             
both conservation, loss of opportunity, as well as expense, will               
only increase as fisheries move into the mix.                                  
COMMISSIONER RUE stated that the proposed federal regulations,                 
which the department has reviewed and made a number of comments on,            
are very intrusive; they reach into state waters, and will have a              
significant effect on other sport, subsistence, and commercial                 
users in the state of Alaska.                                                  
COMMISSIONER RUE pointed out that besides being  dual management,              
being expensive, and confusing, in his opinion, management under a             
rural priority by the state or the fish and game in the Department             
of Fish and Game will not be the same as federal management.  The              
federal board is only concerned about subsistence, not commercial,             
personal use, and sport fisheries, and  he believes it has a very              
different perspective and will not try and accommodate those other             
users.  For instance, in a place like the Yukon, many of the                   
subsistence users are dependent on a commercial fishery to earn the            
income needed to also subsistence fish.  For a lot of users, it is             
critical that the commercial, subsistence, and sport fisheries are             
managed by a single entity so that they can provide the maximum                
opportunity for subsistence, but also ensure that a commercial and             
a sport fishery goes on.                                                       
Number 560                                                                     
MARY PETE, Director, Division of Subsistence, Department of Fish               
and Game, said she would be directing her comments to subsistence              
as we know it in subsistence areas of Alaska.  Fishing and hunting             
are important for cultures of many families in communities of                  
Alaska, and this use exists along side other important uses of fish            
and game, including commercial fishing, sport fishing, personal use            
fishing, and general hunting.  In subsistence areas, these uses are            
often intertwined.                                                             
MS. PETE said under state law all Alaskans qualify for subsistence,            
and under federal law rural residents qualify.  And although all               
Alaskans qualify, there are nonsubsistence areas which are                     
essentially identical to federal, rural and non-rural areas.                   
Directing the committee's attention to graphs and a handout                    
prepared as a result of research and working in nearly 200                     
communities throughout the state, MS. PETE pointed out that in                 
terms of Alaska's population in 1995, residents of subsistence                 
areas comprise about 20 percent of the state's population, and                 
residents of nonsubsistence areas comprise about 80 percent of the             
state's population.  In subsistence areas, depending on the region,            
there are different levels of participation in harvesting and                  
using.  In all areas of the state, the highest levels are with                 
fish.  In Western Alaska,  100 percent of the households  use fish.            
In terms of the total participation, on average, nearly 90 percent             
use game, and nearly 100 percent use fish by region.                           
Figure 3 in the handout shows that the composition of the harvest              
by residents of subsistence areas is primarily fish: about 60                  
percent is fish; 20 percent is land mammals; 14 percent is marine              
mammals; and two percent is birds, shellfish and clams each.  So               
federal management of subsistence fishing would affect many people.            
Figure 4 in the handout shows that overall, in terms of total fish             
and game output in the state of  Alaska, on average, subsistence               
comprises two percent by weight, sport use comprises one percent,              
and commercial comprises 97 percent.  Although the output for                  
subsistence is relatively small, it provides a major part of the               
food supply of subsistence areas, about 44 million pounds annually.            
That compares with nonsubsistence that produce nearly 10 million               
pounds of wild foods per year.                                                 
Figure 5 of the handout shows the pounds per person per year of                
wild food harvests in different regions in Alaska.  It shows a jump            
from 40 pounds per person to 153 pounds per person between the                 
highest nonsubsistence production areas and rural southcentral.                
In terms of the pounds per capita per person in subsistence, what              
people are really providing for their families is protein.  On                 
average, most all of the protein they feed families with is from               
wild foods.  In terms of caloric output, it is 35 percent of what's            
needed by the subsistence communities.                                         
Figure 6, relating to replacement values of subsistence production,            
shows a $220 million per year of replacement value of subsistence              
foods.  In many areas of the state, fish and game uses are highly              
integrated; in other words, income from commercial fishing is                  
needed to support subsistence production.                                      
MS. PETE said in terms of the subsistence priority, the greatest               
effect of the priority has been to legally recognize customary and             
traditional harvest practices and uses in rural areas.  While                  
impacts on nonsubsistence residents have been relatively small, the            
impacts in rural areas have been great.  She thinks that with                  
increasing federal presence in management of hunting and fishing,              
the impacts will become greater to nonsubsistence users.                       
Number 460                                                                     
CHAIRMAN HALFORD asked Ms. Pete what she thought the trend would be            
10 years from now in terms of subsistence use as a percentage of               
total harvest.                                                                 
MS. PETE responded that in terms of what are currently subsistence             
areas, they've been fairly consistent in communities where they                
have done resurveys as wide as 20 years apart.  The proportion of              
fish or game may vary, but the per capita production is relatively             
constant, so in terms of total output, she doesn't see many                    
CHAIRMAN HALFORD explained that he is trying to understand the size            
of the federal threat as it relates to the size of the management              
mandate, which is to manage subsistence harvest.  He asked if                  
anybody is, right now, losing subsistence harvest because of                   
nonrural harvest.                                                              
MS. PETE responded the feds have as much said that the priority is             
by stocks and by drainage, and in order to provide the priority to             
upstream communities, they would look to restrictions or impacts               
CHAIRMAN HALFORD asked if there is any area in the state where we              
have a record that the subsistence harvest has somehow been                    
diminished by a nonrural harvest.                                              
COMMISSIONER RUE responded that the federal government has not yet             
stepped into fisheries so the state has tried to maintain                      
commercial, sport, and subsistence fisheries of people who are                 
depending on state and federal lands.  A future problem is looming             
should the federal government implement their regulations for                  
fisheries, so there could be situations where there would be a                 
restriction of harvest to meet either an over allocation for a                 
federal subsistence fishery or a guarantee.                                    
CHAIRMAN HALFORD questioned if there was any area of the state                 
where it was perceived that that over harvest is going to come from            
the higher population areas and affect the lower population areas,             
or is it going to come from other rural areas.  He asked where is              
the population threatening subsistence harvest in the real areas of            
COMMISSIONER RUE said he thinks the folks who are dependent on                 
federal lands for subsistence feel pretty good about federal                   
management, and the folks who are dependent on state land and state            
waters for subsistence are not as sure that their subsistence                  
rights are going to be maintained over time with federal                       
ROBERT BOSWORTH, Deputy Commissioner, Department of Fish and Game,             
added it is the job of the Boards of Fisheries and Game to take                
proposals on an annual cycle from people  who perceive in their                
areas that there is a problem that needs to be addressed by the                
board.  The board has been taking subsistence proposals routinely              
for 20 years and addressing areas where people tell the board,                 
often time with collaborating evidence from the department or other            
sources, that there's a problem that needs to be fixed.  By and                
large, the laws and board system have worked enough that those                 
problems have been addressed.  There have been Tier II hunts                   
established in areas where there were insufficient resources to                
meet the demand, and those Tier II hunts, by definition, favor                 
dependent users, and, in the past, favored users  who lived in                 
rural areas adjacent to the resources.  Without a rural preference,            
all Alaskans are eligible for subsistence, which creates a greater             
demand for the existing supply of the resource and leads to an                 
additional Tier II hunt specifically to protect subsistence uses,              
and provide for those most dependent at the expense of other uses.             
He noted the Nelchina Caribou Herd used to be a drawing permit hunt            
and now is a Tier II hunt in which only those with a history of use            
and evidence of dependence would qualify.  He added that the Tier              
II hunts are not popular in this state.                                        
Number 380                                                                     
CHAIRMAN HALFORD said what he was asking is if the system is                   
working in terms of providing the resource to the people who need              
it most.                                                                       
COMMISSIONER RUE said there hasn't been a Tier II fishery yet so               
they've been able to provide for subsistence under state                       
regulations, except where they've had a resource shortage.                     
However, there have been subsistence hunts where some of the                   
residents of the area have had their harvest reduced compared to               
what it was under a rural priority, so there has been some loss.               
DEPUTY COMMISSIONER BOSWORTH directed attention to a handout                   
prepared by the department  relating to essential elements of a                
subsistence bill.  He said state Boards of Fisheries and Game need             
straightforward practical statutory direction and legal tools to               
protect subsistence use of fish and game while providing maximum               
opportunity for other uses.  He then described what the department             
believes to be the essential elements of a generic subsistence bill            
and outlined the way that the bipartisan task force addressed these            
The four essential elements for a  subsistence bill which focus on             
the who, where, how and what of subsistence are:                               
1.   Who pertains to eligibility.  There is a need to define a                 
     mechanism for determining who can participate in subsistence              
     hunting and fishing.                                                      
2.   Where pertains to location.  There is a need to identify the              
     areas of the state where hunting and fishing may occur under              
     subsistence regulations.                                                  
3.   How pertains to pertains to process.  There is a need to                  
     identify the mechanism for developing subsistence regulations             
     that implement the subsistence priority.  The mechanism                   
     directs the actions of the board and the public advisory                  
     process on subsistence.                                                   
4.   What pertains to definitions.  There is a need for clarity in             
     identifying precisely what it is that is being afforded a                 
     priority in law and when.                                                 
DEPUTY COMMISSIONER BOSWORTH said one further aspect of a generic              
subsistence bill that is advisable is to use the existing statute              
as much as possible.  The existing state statute is based on work              
that has been accomplished since 1978 by  three Legislatures and a             
great many hours of Board of Fisheries and Board of Games                      
deliberations.  It has been refined in the course of nearly two                
decades of testing by the boards, the Departments of Fish and Game             
and Public Safety, and the courts.                                             
DEPUTY COMMISSIONER BOSWORTH said the approach taken by the                    
bipartisan task force, in addition to protecting subsistence and               
providing for other uses, also seeks to  regain state management on            
all lands and waters and recognizes the substantial dependence of              
rural residents on subsistence hunting and fishing.  The task force            
proposal protects subsistence use while integrating subsistence                
with others uses through actions of Alaska citizens working                    
together as members of the fish and game boards.  The proposed                 
statute provides policy direction to the boards and provides                   
clarity in process and in definition of terms.  It moves much                  
responsibility for decision making on day-to-day hunting and                   
fishing issues to the boards and to the citizen advisory bodies.               
In his closing remarks, DEPUTY COMMISSIONER BOSWORTH said the                  
federal subsistence program has been in place for managing                     
subsistence hunting in fresh water fishing since about 1991.  The              
Federal Subsistence Board has responsibility for developing the                
federal subsistence program and passing subsistence regulations.               
It has no mandate to consider other uses except to restrict access             
to federal lands in order to provide for subsistence uses, and it              
would do so outside the federal areas if it believes that is                   
needed.  The federal board has a close interaction with the federal            
regional councils whose recommendations are very seldom not                    
adopted.  This has resulted in federal regulations that are                    
inconsistent in many cases with state regulations, and this, along             
with a patchwork of land jurisdiction in the state, has led to some            
of the kinds of problems Commissioner Rue described earlier.                   
Number 251                                                                     
SENATOR TAYLOR said the subsistence board in his district decided              
that it would be appropriate to allow the hunting of does on Prince            
of Wales Island, while at the same time, the state Department of               
Fish and Game was recommending a harvest limitation on the hunting             
of deer.  Under the federal law, the harvesting of doe went                    
forward, and he asked, in a case like this, how would that law  be             
somehow different by adopting a state law as opposed to the federal            
law.  He questioned if there wouldn't be exactly the same panels as            
currently are provided for in federal law, made up by exactly the              
same people.                                                                   
DEPUTY COMMISSIONER BOSWORTH clarified that the proposal came from             
the regional council and the board did not propose that action.  He            
said the federal standard for subsistence right now under ANILCA is            
different than the state standard would be under the task force                
proposal and under the Stevens' amendment.  The concept of                     
reasonable opportunity and the definition of "reasonable                       
opportunity" was not used by the regional council in this case nor             
would it have been used by the Federal Subsistence Board in the way            
that the state's board, using information from the Department of               
Fish and Game and under the context of the Stevens' amendments,                
would have applied it.                                                         
SENATOR TAYLOR said he is trying to understand what the practical              
difference will be between the "federal takeover" and the way                  
subsistence is currently being managed or under the new law. He                
questioned if ANILCA can't be changed, and ANILCA establishes each             
of these very well defined terms, what authority do we have left               
within which to maneuver.                                                      
DEPUTY COMMISSIONER BOSWORTH responded that he thinks there have               
been changes with ANILCA that bear on his question.  With the                  
Stevens' amendments, there are definitions that provide for a                  
process that the state would follow once in compliance, and it                 
would be a different standard than was used by the federal board.              
He acknowledged that the composition of the regional council would             
be the same, however, there is a difference in the degree of                   
deference that would be given to the council under the task force              
plan and the reasons that the board might use to accept or not to              
accept the recommendations of the council.                                     
COMMISSIONER RUE added that the Board of Fisheries, which is a                 
citizens' board, would be judging that advice, as  well as                     
listening to the department's biological recommendations, as                   
opposed to a federal board which is made up of federal bureaucrats.            
Number 135                                                                     
CHAIRMAN HALFORD said one of the things he continuously hears is               
that this applies in times of shortage, and he asked what does "in             
times of shortage" mean.                                                       
DEPUTY COMMISSIONER BOSWORTH answered that the priority under the              
present law applies at all times.  The first thing the board must              
do is provide a reasonable opportunity for subsistence use.                    
CHAIRMAN HALFORD asked if the priority applies at all times under              
federal law, under existing state law, and under the new law.                  
DEPUTY COMMISSIONER BOSWORTH responded that the answer to his                  
question is yes, there's a priority that applies at all times, but             
it has no effect on other uses, except in times of shortage.  There            
is no reason to restrict other uses unless there is a shortage.                
CHAIRMAN HALFORD referenced the Bobby case and the specific                    
statements that came out of that case, and he asked if there can be            
restrictions on subsistence harvest such as seasons, bag limits,               
methods and means before the total elimination of all other                    
competing harvests on the same specific resource.                              
DEPUTY COMMISSIONER BOSWORTH replied that under state law, the                 
answer is absolutely yes.  There are numerous examples of                      
situations where there are restrictions on other uses, as well as              
restrictions on subsistence that do not require other uses to be               
eliminated first.  He added that the key in state law is that                  
reasonable opportunity must be provided.  In cases where there is              
more than a reasonable opportunity provided for subsistence,                   
subsistence uses will be restricted right along with other uses.               
It is only when reasonable opportunity is threatened that other                
uses alone are the only ones to become restricted.                             
COMMISSIONER RUE said if you look at the record where they had the             
same regulations for everyone versus some kind of limits on folks,             
during the time there was a rural priority, a large number of the              
hunts around the state had the same regulations for everyone, so               
you didn't have to restrict one user to provide for subsistence in             
many cases.  It was only when there wasn't enough for everyone that            
you might have to go to a drawing permit.                                      
CHAIRMAN HALFORD said he was just going to the worst version, which            
is the opinion of the judge in the Bobby case, that  seemed to go              
far beyond what anybody, including its advocates, ever expected the            
priority to create originally.                                                 
DEPUTY COMMISSIONER BOSWORTH pointed out that in Lime Village, with            
regard to moose, which is the topic of the Bobby case, there are               
Tier II hunts.  There is a definite season, a definite number of               
permits that are available, and a definite number of the animals               
that  can be taken consistent with sustained yields.  He said it is            
not a free-for-all, even though there may be language that suggests            
that would be the outcome.                                                     
CHAIRMAN HALFORD inquired what happens to the federal promise in               
1980 that they would fund this whole thing.  They talked about $5              
million coming to the state for the management of a subsistence                
priority if the state did comply.  The state did comply, although              
marginally back and forth through that whole period.                           
DEPUTY COMMISSIONER BOSWORTH answered that the most the state ever             
got was $950,000 split equally between the Division of Subsistence             
and the Division of Boards.  He also clarified that they are                   
currently getting nothing.                                                     
Number 073                                                                     
SENATOR TAYLOR asked the projected cost of enforcement of this                 
proposed law.                                                                  
MS. PETE informed him that the subsistence division fiscal note was            
a little over $100,000, and DEPUTY COMMISSIONER BOSWORTH added that            
the department would provide the fiscal note with that information.            
SENATOR HOFFMAN asked Commissioner Rue the amount of the proposed              
federal budget for implementation of subsistence; if he thinks once            
the federal government comes in for management of subsistence they             
are here to stay; and if he believes that once they are here they              
will continue to manage our resources for subsistence as a priority            
COMMISSIONER RUE responded that the initial budget is about $17                
million, with approximately 71 positions, which leads him to                   
believe they are going to be looking over our shoulder in every                
fishery in the state.  He thinks once they are here, they will                 
stay, and that management of subsistence will continue as the                  
number one priority.                                                           
TAPE 98-44, SIDE A                                                             
Number 005                                                                     
There being no further questions, CHAIRMAN HALFORD thanked                     
Commissioner Rue, Deputy Commissioner Bosworth and Ms. Pete for                
appearing before the committee.  He then announced the committee               
would hear next from former Commissioner Carl Rosier and former                
Director of Wildlife Dave Kellyhouse.                                          
Number 045                                                                     
CARL ROSIER, former commissioner of the Department of Fish and                 
Game, expressed heartfelt thanks on behalf of the Territorial                  
Sportsmen to the legislators that have stood by their oath of                  
office and not bought into the concept that we must change the                 
common use provisions of our State Constitution, comply with                   
ANILCA, and forever sleep with the federal government in managing              
our fish and wildlife resources.  He said, as a professional fish              
and wildlife manager in our state for over 40 years, he can't                  
imagine a worse scenario than that particular concept.                         
MR. ROSIER said some of the questions that were raised around the              
table were excellent questions that were encountered during his                
stint in office, like the money question in terms of almost a                  
million dollars at the peak.  He said it was interesting because               
what they saw occurring under those circumstances was that they                
basically trained the federal people, and as they got smarter and              
learned a little bit more about how things worked, they became very            
independent.  The feds moved away from the state program, the                  
influence of the state agency, the money went down, and, as a                  
result, ultimately it went down to zero.  He questioned what                   
happens to that trained federal bureaucracy that is out there at               
the  present time, and if they are going to be the subsistence                 
management staff paid for by the state, or paid for by the federal             
government on contract to the state.  He said the federal                      
government is also cutting budgets, and he is skeptical of much of             
that $17 million coming to Alaska on this particular problem.                  
MR. ROSIER said it is frustrating to hear that the important parts             
of ANILCA can't be changed  and that the state has to mirror the               
ANILCA image if we are going to have the feds concurrence to give              
us some form of management.  He said there will be  major declines             
in the state's resources as a result of having multiple people                 
making management decisions on these resources.                                
MR. ROSIER stated the management programs of the state have been               
successful and they have been successful because the people that               
wrote Title 16 originally gave great authority to the people in the            
field.  These were people that had authority to write regulations              
on the spot as they saw fit and as needed by the resource at that              
particular time, and that was reason for the successful rebuilding             
of many of our stocks in Alaska.                                               
MR. ROSIER said in looking at the feds and how they operate, they              
are consistently slow in terms of making decisions.  They operate              
from plans, and if the plan doesn't cover it, it's a crisis.  They             
don't react to the emergency type of situations that are                       
encountered in fisheries management.  He said you've got a federal             
law, you've got a federal agency that is the oversight entity, and             
current regulations that outline a lot of responsibilities for the             
Secretary of Interior.  He said it isn't going to be the state                 
people that are in fact reporting that, its going to be the federal            
people that are involved where the management decisions are in fact            
going to be made.                                                              
MR. ROSIER feels that the feds are going to be muddling around on              
a day-to-day basis in the management of the resources in this                  
state.  He noted that at one point following passage of the marine             
mammals bill, the state was interested in getting back the                     
management of walrus, but the feds hung so many strings on it that             
the department just finally said to forget it because there was no             
way that the state could manage in that particular manner.                     
Number 190                                                                     
CHAIRMAN HALFORD asked if it was a conscious decision that state               
management wasn't worth the federal mandate with marine mammals.               
DAVE KELLYHOUSE, former Director of Wildlife, Department of Fish               
and Game, replied that as he recalls what it came down to was that             
the federal government offered the state the opportunity to take               
back the management of walrus but they imposed a total harvest                 
limit of 3,035.  The state's marine  mammal biologists concluded               
that if the state took management of walrus under the conditions               
set out by the feds, it was destined to fail, because at that                  
point, the walrus population was going up quite rapidly and                    
depleting mollusk food supplies.  The biologists felt the harvest              
had to be increased beyond the federal cap.                                    
MR. KELLYHOUSE noted he went through the package of legislation                
before the committee, and from a practical standpoint, he can see              
a lot of problems with it.  First of all, the very standard of                 
management under the federal system that the state has to comply               
with to get management restored is the standard  of customary and              
traditional.  When that was tested in the Alaska versus Bobby case,            
Judge Holland came back with a foreboding ruling which basically               
said that any management authority had to be extremely cautious in             
restricting customary and traditional practices; that it wasn't                
based on need, it was just based on customary and traditional.                 
This translated into extremely long seasons and ridiculous bag                 
limits.  He said should that management system, with a standard of             
customary and traditional be adopted into state law in lieu of our             
sustained yield and common use mandates, it doesn't take a rocket              
scientist to see what's going to happen.  At some point in the                 
future with finite resource capabilities, a rural population that              
continues to grow with the only basis for qualification to be where            
a person lives, and  few or no constraints on taking because there             
is no needs test, the result is inevitable and it will have a                  
negative effect on the people that live in Juneau, Ketchikan,                  
Fairbanks and Anchorage.  He is concerned that the sustained yield             
mandate, that the conservation of the resource base upon which all             
uses depend, remains intact and protected.                                     
MR. KELLYHOUSE said he is also convinced, having served as director            
and working with the Board of Game for four years, that the concept            
of sharing between user groups is also integral to good game                   
MR. KELLYHOUSE pointed out to the rural legislators, that Title                
VIII of ANILCA only gives preference for subsistence uses over                 
consumptive uses.  Very carefully they voided giving any preference            
for subsistence uses over consumptive uses or nonconsumptive uses.             
Another concern about federal management is the regional                       
subsistence councils.  As he understands the draft statutory                   
language that the Governor has proposed, there will be a minimum of            
six councils which together cover all lands and waters in the                  
state.  He noted the state already has a system of 80 local fish               
and game advisory committees that provide advice and                           
recommendations to the Boards of Fisheries and Games.  These                   
committees can submit regulation proposals directly to the boards              
for their consideration.  Under the new system, it would have to go            
through the regional councils for review and could not go directly             
to the Boards of Fisheries and Game until it had been reviewed by              
the regional councils.  He said there is nothing in the legislation            
that says the regional councils must review a proposal and, if they            
choose not to review one, it is conceivable that it wouldn't be                
considered at all.  He also has concern with the composition of the            
regional councils.                                                             
In conclusion, MR. KELLYHOUSE referenced Alaska's Constitution and             
the statement that all persons are equal and entitled to equal                 
rights, opportunities, and protection under the law.  He said there            
is a reason that was put in the constitution, and there has to be              
equality and cooperation in the management of wildlife resources or            
the whole system breaks down.                                                  
Number 317                                                                     
MR. ROSIER also voiced his concern with the composition of the                 
regional councils.  If there is one group that is specifically                 
assigned the responsibility for subsistence and then there is                  
another system that is responsible for recreational, commercial,               
etc., management begins going in separate directions.  Even if                 
there is a preference or priority for the subsistence operation,               
people in one group are going to want to know what's going on in               
the other groups.  In his opinion, there will be a duplication                 
involved in that kind of system, and it is a system that will                  
disenfranchise a lot of the population in the user groups other                
than the subsistence user and the commercial person.                           
Number 351                                                                     
CHAIRMAN HALFORD asked what do we have if a constitutional                     
amendment is passed, if the legislation proposed by the                        
Administration is passed, and if the Stevens' amendments take                  
MR. ROSIER responded that it will be a mess that probably will cost            
the state its resource in the long term.  He said we are going from            
what he considers to be a well thought out, well organized                     
management program for the resources of this state that has been               
very successful in maintaining and rebuilding the those resources              
to something that we don't know the answer to.                                 
Number 390                                                                     
CHAIRMAN HALFORD asked Mr. Rosier, in the time frame that he served            
as deputy commissioner and then commissioner, did he see any cases             
where there was ever a significant loss or any loss at all to                  
subsistence users under the state system.                                      
MR. ROSIER answered at that particular point in time, he was                   
primarily associated with fish, and in the late fifties and early              
sixties when there were extremely poor runs, there was never a time            
that subsistence was, in fact, not accommodated by the salmon runs.            
They had major closures in commercial and they had closures on                 
recreational fisheries, but there was never a time that personal               
use and subsistence was closed.  There was always  enough fish for             
subsistence.  He pointed out that today there are runs of 150                  
million fish versus 30 million fish statewide back in those days.              
MR. KELLYHOUSE, speaking to the wildlife side, said it was more a              
case of difficulty in harvesting where a person would have to spend            
more time and didn't really like non-local competition.  He said he            
hasn't seen the state system really fail in providing a subsistence            
preference or ability and, although the current system is                      
cumbersome, at least you have to demonstrate a  need and a                     
dependency to qualify for a Tier II permit.                                    
MR. KELLYHOUSE pointed out that Deputy Commissioner Bosworth said              
we don't have to worry in the future because now the federal law               
has a "reasonable opportunity."  However, the  definition of                   
"reasonable opportunity"  has customary and traditional in it, so              
his fear is that with the no season, no bag limit, no restriction              
until all other uses are eliminated, is a problem as long as that              
customary and traditional standard is embodied within the                      
definition of "reasonable opportunity."                                        
CHAIRMAN HALFORD commented that the question that always comes to              
mind is, does "customary and traditional" include the customary and            
traditional harvest outside of any season or bag limit.                        
MR. ROSIER said one of the issues that has been associated with                
subsistence has been the involvement of local people in the                    
management of those resources.  Under the federal law, it is quite             
possible for the federal government to, in fact, let contracts to              
people outside of the agency to involve in data collection.  Some              
federal entities have indicated to him that they could have let                
contracts for actual management in some cases, however, they didn't            
do that, at least during his stint in the department, but that                 
provision is there in federal law.                                             
Number 455                                                                     
SENATOR KELLY said Mr. Rosier indicated that if the task force                 
proposal is adopted, things will be in a real mess, but he                     
questioned if it would not be equally as bad a mess if nothing was             
done and we allow the federal management.                                      
MR. ROSIER replied it was his view that the only real solution to              
this is the changes to ANILCA.  What he is saying is that you're               
going to have the feds either way you go and, at least for the time            
being, depending on what happens, you may at least continue to                 
control management on state and private lands on this.  He believes            
that ultimately this mess is going to have to be sorted out,                   
probably in the Federal Supreme Court.  He emphasized that as an               
interim step, the state should not give up its prerogatives  of                
management on state and private lands because once that is done, it            
is gone for good.                                                              
Number 477                                                                     
SENATOR ADAMS said Mr. Rosier had said the solution to this dilemma            
was changes to ANILCA, but he doesn't think that is going to                   
happen.  He asked what was his preference would be between having              
federal oversight or having dual management with federal management            
within our state system.   He also questioned where the equality               
was when the people of Alaska voted regarding Article 8, Section               
15, relating to limited entry permits.                                         
MR. ROSIER responded that he doesn't think the problem can be                  
solved in one fell swoop.  He said there are good resources                    
statewide at the present time and, as far as he knows, nobody is               
being short changed on subsistence harvest.  He reiterated that, at            
this point, to give up the state's prerogatives as far as state and            
private lands doesn't make sense because once the state is under               
the ANILCA umbrella, it is there to stay.  He questioned why there             
has to be a change in the constitution in order to keep the federal            
government from allocating resources in Alaska.  He said he doesn't            
think any other state in the Union has to deal with that kind of a             
scenario, especially when we've got a lot of resource.                         
SENATOR HOFFMAN said it has been testified that we haven't had                 
shortages or that people have had to have subsistence, but the                 
great concern of people in rural Alaska is that the state of Alaska            
continues to change and the population of the state today isn't                
going to be the same as it will be 20 years from now.  As a state,             
we  have been able to manage our resources and there has been the              
abundance  so we haven't had to kick in the subsistence priority,              
but if is turned over the feds we'll see more and more people being            
denied access to resources because the subsistence provisions are              
going to kick in.  He said he agreed that we shouldn't give up                 
state management, and we should consider a constitutional amendment            
as a mandatory option for rural residents.                                     
MR. KELLYHOUSE stated that he thinks the biggest misrepresentation             
is that if we adopt a rural constitutional amendment, that we will             
have state management.  He stressed that we will not, we will have             
federal management.  He added that right now the federal                       
government's authority is constrained to federal public lands and              
they've tried to reach out into some navigable waters.  He                     
emphasized that if we come into compliance with the federal law, we            
will have federal management on all lands and waters.  If we do not            
amend the constitution to put in a rural priority at this time, we             
will defend state management on state and private lands.                       
Number 556                                                                     
SENATOR LINCOLN said she thinks since 1990 and in a ten-year                   
period, the population in Alaska will have grown in excess of                  
100,000 people, and her concern with statements that subsistence               
needs are being met and they haven't ever been denied is that no               
one talks about time of plenty anymore.  She doesn't think that                
anyone can say with all assurance that subsistence needs will                  
always be met, as we see it now, because of the population growth              
and possible decline of the resources in the state.  She believes              
a constitutional amendment and coming into compliance is the                   
future.  She asked Mr. Rosier if looking out into the future of the            
next two generations, can he in all honesty say that if the federal            
government comes in and takes over, that all of the subsistence                
needs will be met.                                                             
MR. ROSIER answered that there are no guarantees in fish and                   
wildlife populations.  He agreed that the population is going to               
increase in the state, but he questioned if someone who comes to a             
rural area of this state from another state should have subsistence            
rights.  He thinks that individual has to be treated differently               
than the person who is born and raised in this state and has lived             
a subsistence lifestyle.                                                       
TAPE 98-44, SIDE B                                                             
Number 575                                                                     
SENATOR TAYLOR asked if there was any ability for the state of                 
Alaska to provide for its own unique management style should that              
style be different from what others may interpret ANILCA to require            
in the future.                                                                 
MR. KELLYHOUSE replied that if he understands correctly, his answer            
would be no.  His understanding is that the federal government is              
becoming more and more protective of nonconsumptive uses on federal            
lands and less and less tolerant of consumptive uses.  He can see              
the federal government going along that same course and becoming               
more and more anti use; he doesn't see that with the state of                  
Number 551                                                                     
SENATOR LEMAN inquired if it was either Mr. Rosier's or Mr.                    
Kellyhouse's opinion that the general applicability is, as was                 
interpreted by Attorney General Botelho and Mr. Cole, that any law             
would have to apply to all lands and not just the federal lands.               
MR. KELLYHOUSE responded that was his understanding.  He said, if              
he were a rural person, he would really be concerned if the state              
and private lands and corporate lands in his rural area were to                
fall under federal judicial review and the standard of customary               
and traditional instead of sustained yield and common use.                     
Number 520                                                                     
SENATOR WARD said the concern of a lot of people in his district               
who are commercial fishermen is that the people who eat fish will              
have a preference and, to the commercial fishermen's detriment,                
they will have to take less of a catch in order that the                       
subsistence quota be  filled for people that want to have personal             
consumption.  He asked for Mr. Rosier comments, as a former                    
commissioner, on this issue.                                                   
MR. ROSIER responded that there is little question in his mind that            
there will be some reallocation of harvest, but he pointed out that            
the commercial fishery probably takes something in the neighborhood            
of 90 percent of the harvest statewide.  With runs that have                   
increased from 30 million to 150 million statewide, he thinks there            
are enough fish to go around.  It may cause some reallocation of               
resources, but it is hard to project that at the present time.  He             
thinks that the limited entry system has worked fairly well , and,             
in his view, it was a better system than the wide open fishery.  He            
reminded him that the limited entry system came into effect at a               
time when the state's resources were at a much lower level and the             
system was designed around that type of run.  However, one thing he            
thinks that was left out when the limited entry system came into               
being was the economics of the fisheries, and even with the limited            
entry system that is in place today, the value of that catch in the            
last few years has been going down dramatically.                               
SENATOR TAYLOR asked Mr. Rosier if the False Pass fishery is not               
shut down under state management, does he anticipate that it will              
go through the court process and end up with a federal judge                   
shutting it down.                                                              
MR. ROSIER agreed that would probably happen.                                  
Number 456                                                                     
SENATOR LINCOLN asked Mr. Rosier his objection to allowing the                 
public to vote on a constitutional amendment.                                  
MR. ROSIER replied, from his perspective, the most significant                 
objection would be to what he considers to be the less than                    
truthful information that has been in the news in regards to the               
rural priority and the lack of options for the public to look at.              
The image a lot of the public has of subsistence is the image that             
was there 30 or 40 years ago, and there has been change in                     
subsistence since that time.  He related that he is not opposed to             
a well-informed public voting, but there has been so much                      
misinformation on this issue that he is not sure the public can be             
recovered in terms of their knowledge levels on voting on the                  
MR. KELLYHOUSE agreed that the public is confused on this issue.               
He said he would be afraid to see the rights that are guaranteed to            
all Alaskans in the constitution put up to a public vote because               
those people that have a very special interest and have large cash             
reserves that they've dedicated to winning would make it a one-                
sided vote.                                                                    
Number 400                                                                     
CHAIRMAN HALFORD thanked Mr. Rosier and Mr. Kellyhouse for                     
appearing before the committee.  He then announced the committee               
would take an approximate 15-minute break.                                     
TAPE 98-45, SIDE A                                                             
Number 001                                                                     
CHAIRMAN HALFORD called the Senate Resources Committee meeting back            
to order and announced the committee would next hear from Julie                
JULIE KITKA, President, Alaska Federation of Natives, expressed her            
appreciation for the opportunity to testify on behalf of the Alaska            
Federation of Natives.  She said she would first address the                   
process issue, and she requested that the committee consider                   
extending the hearing to include testimony over the teleconference             
from individuals from throughout the state and the rural                       
communities, as well as individuals who were still arriving in                 
town.  She said these people have a vital interest at stake in the             
decisions the committee would be making.                                       
MS. KITKA then read the following testimony into the record:                   
"The state of Alaska now stands at the crossroads of history.  The             
conflict between state and federal subsistence laws has divided                
Alaskans for more than eight years; and these divisions will                   
inevitably worsen if the Legislature fails to resolve the impasse              
now.  The way in which subsistence is dealt with in 1998 will have             
a greater impact on the future of Alaska, in my opinion, than any              
other issue in state politics.                                                 
"Because so much of this debate has focused on Title VIII of                   
ANILCA, let's keep in mind why that legislation was enacted in the             
first place.  In 1971, Congress had passed the Alaska Native Claims            
Settlement Act, the primary purpose of which was to clarify land               
ownership.  But subsistence had also pervaded the ANCSA process.               
Congressional findings in the final Senate bill emphasized                     
protection of "...Native subsistence hunting, fishing, trapping and            
gathering rights..."  If enacted, that bill would have required the            
Secretary of Interior to designate public lands around Native                  
villages as subsistence use areas and, under certain circumstances,            
to close them to non-subsistence use areas.                                    
"Why did the ANCSA conference committee drop the subsistence                   
provisions from the final Act?  Basically, its our view because the            
Congress was unwilling to delay the land settlement and                        
construction of the pipeline in order to work out such a complex               
resource issue.  Accordingly, Section 4(B) of ANCSA extinguished               
Natives' aboriginal hunting and fishing rights, as well as our                 
aboriginal title to the land.  But the conference report                       
articulated the United States Government's concern for Native                  
subsistence in the absence of the aboriginal rights.  And it                   
mandated responsibility: 'The conference committee expects both the            
Secretary and the state to take any action necessary to protect the            
subsistence needs of the Natives.'                                             
"But congressional expectation of state cooperation went                       
unfulfilled during the 1970's.  The pipeline boom produced an                  
enormous non-Native migration into Alaska and a 36 percent                     
population increase in nine years, creating fierce competition                 
among user groups for limited fish and game resources.  How did the            
state government react to that?                                                
1.   The 1972 Marine Mammal Protection Act protected Native                    
     hunting, a policy that works effectively to the present day.              
     The state did nothing about marine mammals in the 1970's,                 
     except to oppose that federal action.                                     
2.   In 1976, the Northwest Arctic Caribou Herd crashed.  The                  
     Governor declared a disaster area, and food was flown in to               
     keep people alive.  But when the Board of Game tried to                   
     provide for a very limited harvest by local residents, a group            
     of Fairbanks hunters sued, claiming that their rights have                
     been violated.  And they won in state court.                              
3.   In 1978, the state arrested three agreed Athabaskan elders for            
     operating subsistence fishwheels during an opening for sport              
4.   Also in 1978, the state enacted a statutory preference for                
     subsistence over competing uses but failed to distinguish                 
     among competing users, which was always the real question.                
"The 1970's, a decade of neglect and obstructionism, led directly              
to enactment of Title VIII of ANILCA.  By 1980, Congress                       
reluctantly concluded that it had no choice but to protect                     
subsistence by federal law, pursuant to its plenary authority to               
regulate Indian affairs.  But by then, Congress made every attempt             
to accommodate the state's needs.  ANILCA's subsistence preference             
was based on the differing socio-economic circumstances of rural               
and urban Alaska, not on race or ethnicity.  The state objected to             
a Native preference because it wanted a standard that it could                 
enforce under its constitution.  All parties assumed that "rural"              
would work, and the Native community accepted that compromise in               
order to get a preference that the state could implement.                      
"Moreover, Title VIII offered the state the option of continuing to            
regulate subsistence on federal public lands and waters if the                 
Legislature would enact a state law giving the same rural                      
preference statewide.  This was not an example of "federal                     
compulsion," as some have argued.  On the contrary, the United                 
States could have proceeded to enforce the rural preference solely             
within its own domain, creating a permanent system of dual                     
management.  Instead, the federal government made a good-faith                 
offer to create cooperative, unitary management of highly mobile               
species on a checkerboard of state, Native, private and federal                
lands.  This was unprecedented in the general history of federal               
land law.  (Ms. Kitka added that if the committee was interested,              
she could outline the series of committee reports that led up to               
ANILCA and the specific cites report after report that the Congress            
had and their interest needs of the Native people and how the key              
policy decisions got decide in regard to ANILCA.)                              
"It is our view rural residents did their part to make the ANILCA              
system work, but the state of Alaska did not.  Its regulatory                  
bodies frustrated implementation of the preference and refused to              
regulate consistently with customary and traditional subsistence               
practices.  It never fully funded or empowered regional advisory               
councils.  More than once, rural residents found it necessary to go            
to court to enforce the law on a state that was determined to                  
sidestep it.                                                                   
"But the behavior of the state boards was very different from what             
the people of Alaska thought.  In the 1982 general election, a                 
ballot initiative to remove the rural preference from state law was            
soundly defeated - 58.4 percent against and 41.6 percent for.  That            
result became the real reason why legislative majorities have                  
refused ever to trust the voters with this issue again.  They know             
perfectly well what the people will do, if they ever get the                   
chance.  If legislative majorities during this period had any                  
expectation that the electorate would vote it down, they would have            
put a constitutional amendment on the ballot years ago.  Having                
failed with the voters, the 1982 initiative's sponsors then turned             
to the State Judiciary; and in 1989, the Alaska Supreme Court threw            
the rural preference out of state law.  Since then, for eight and              
a half years, legislative majorities have refused to allow their               
own voters to consider a constitutional amendment.                             
"This sad chronology lies at the heart of the distrust that so many            
rural people feel for the state of Alaska and has been a prime                 
cause of the growth of the tribal movement among Natives as a                  
protection against a permanently hostile state government.  Nothing            
has done more damage to state authority and to the social fabric of            
Alaska than the agony of the conflict over subsistence.  And the               
ultimate irony, in our view, is that it was all self-inflicted.                
The cause wasn't the federal government; it wasn't the liberals;               
and it wasn't the Natives.  The state government has no one to                 
blame for this but itself.                                                     
"Faced with this historical crisis, we would do well to cut through            
a few myths that have accumulated over the years.  The first is the            
assumption that what this is really about is "who manages."  That's            
not true.  The core question has always been about whether the                 
rural subsistence preference itself is a proper policy for Alaska,             
regardless of the uniform worn by the implementing manager.  But               
anti-subsistence forces have avoided that debate - because it is so            
hard to argue against letting people eat in times of shortage.  So,            
the principle of states' rights against the federal government has             
become the evasion of choice - as if all this were somehow a clash             
between Alaska and the United States, instead of between two                   
"Remember, state's rights is the bedrock of American federalism,               
and we ignore that principle at our peril.  But it is also true                
that, throughout the Nation's history, states' rights have been                
used as means to advance purposes that are truly destructive.                  
There was a time when states' rights was a defense for racial                  
"Further, I submit to you that, if federal law were opposed to a               
rural preference, and state law required it, instead of the other              
way around, anti-subsistence interests would turn their backs on               
the state of Alaska in a heartbeat.  They would mouth the rhetoric             
of states' rights to the extent that they can get something out of             
it - in this case, someone else's food.  But a principle is                    
something you defend because it is right, not because you get paid             
for it.  The American federal system deserves better than to be                
trotted out as a defense of every local exploitation, and it should            
not be used in modern Alaska to distract us from the real policy               
"Another myth is that ANILCA's rural preference is in force at all             
times, rather than only in times of shortage.  That is not true.               
The preference over other uses and users that is granted to rural              
residents who have established customary and traditional uses of               
specific fish stocks and game populations takes effect only in a               
Tier I or Tier II shortage.  Title VIII also mandates that the                 
boards may not manipulate such things as seasons, bag limits,                  
methods and means so as to disrupt customary and traditional                   
subsistence patterns, even in times of plenty.  This is not unlike             
commercial and sport fishing regulations, in which a system of                 
seasons, gear, bag limits, etc., must be in place, whether there is            
a shortage or not.  Both the preference in times of shortage and               
the general customary and traditional protections at all times are             
provisions of a federal statute whose purpose is to ensure that                
regulatory mechanisms do not harm subsistence in order to satisfy              
other demands.                                                                 
"A third myth that needs to be debunked is that this is all about              
"equality" versus "discrimination."  In our view, here's an honest             
answer to that: Does Title VIII of ANILCA make a discrimination                
between classes of citizens in Alaska?  Here's an honest answer:               
Of course it does; that is why it is in the federal statute.  And              
in that, ANILCA is no different than any other law ever passed.                
"All laws distinguish between classes of citizens.  Show me any act            
or appropriation by the United States Congress, the Alaska                     
Legislature, the Municipality of Anchorage, or the British House of            
Commons and I will show you a measure that hands to one group of               
citizens some benefit that it withholds from the others.  Medicare             
for older persons?  Medicaid for poor people?  The original                    
issuance of limited entry permits?  Permanent fund dividends?  The             
old longevity bonus program?  Veterans' benefits?  The entire FY               
1999 budget just passed by the Legislature?  Even voters' rights?              
Does any of these policies treat every Alaskan the same?  No.  That            
is impossible.  The great question in democracies has never been               
whether laws treat all people identically.  It has always been                 
whether the distinctions that any law obviously makes are                      
reasonable, whether they advance a valid policy goal - in short,               
whether the people believe them to be fair.                                    
"As you know, a clear majority of Alaskans believes that a state               
law containing a rural subsistence preference is a fair and                    
justifiable social policy.  They see it as morally right because               
the whole basis of life in Alaska's villages is now threatened, and            
because it is utterly perverse to wipe out human communities for no            
reason other than a false dream of equality.  They see it as                   
historically smart because, if the economies and cultures of Bush              
villages are dismantled by distant policy decisions, every Alaskan             
will suffer the consequences; and our children, who will pay that              
price more than we can imagine, will never forgive us for what our             
generation did to this beautiful place at the end of the 20th                  
"To date, the best that the 20th Alaska Legislature has been able              
to do is House Bill 406.  That legislation is diametrically opposed            
to Title VIII of ANILCA.  In order for the state to regain                     
management, it requires massive amendments to the federal law in               
order to replace the rural preference with an individualized,                  
needs-based system.                                                            
"Our written testimony outlines our concerns with House Bill 406,              
and we're hoping that the Governor will veto that and get that off             
the table.  We adamantly oppose an individualized needs-based                  
"The subsistence position of the Alaska Federation of Natives, most            
recently confirmed in February, has been clear and consistent for              
eight years.  We seek a return to a reliable rural preference in               
both state and federal laws, accompanied by four much-needed                   
improvements of the pre-McDowell system.                                       
"We therefore urge this Legislature to do its part by enacting a               
statute that complies with Title VIII as it was written in 1980,               
and to add an "intent" sentence to the constitutional amendment                
telling the public and the state courts that the purpose of the                
amendment is to allow the state to have a law with a rural                     
preference - or to allow the state to comply with Title VIII - or              
to reinstate the 1986 state law.  That last option would still                 
leave us with the problem of reconciling state and federal                     
definitions of "rural" - a task in which we would gladly cooperate.            
Another way of doing the same thing is to reenact the 1986 law now             
and accompany it with a constitutional amendment.                              
"The four systemic improvements needed by rural Alaskans are the               
1.   Mandatory federal-state-tribal co-management arrangements - to            
     give the people most affected a real role in the subsistence              
     regulatory system;                                                        
2.   Better protections of "formerly rural" Native groups and                  
     communities that have been surrounded by non-Native settlement            
     entry and taken out of the preference through no fault of                 
     their own;                                                                
3.   Reform and restructuring of the state board system to ensure              
     that we are not simply returning to a political environment               
     permanently rigged against subsistence and Alaska Natives; and            
4.   The ability of any subsistence user to employ a subsistence               
     defense in court.                                                         
"If these improvements are combined with reinstatement of the state            
law that worked perfectly well before McDowell, the concerns                   
articulated by the Native summit and the AFN convention will have              
been satisfied.                                                                
"I am certain, Mr. Chairman, that someone from the other side of               
the issue will try to exploit the differences between the task                 
force's package and the AFN position.  We can expect an exercise in            
doublethink, claiming, for example, that the AFN position should be            
ignored because it is somehow unreasonable and that the Governor's             
proposal should be ignored because it is not supported by all the              
"Such arguments conveniently ignore the fact that both proposals               
require a constitutional amendment for a rural preference and a                
state law complying with ANILCA.  The only differences between them            
are: 1) Natives want additional improvements in ANILCA; 2) Natives             
do not support the ANILCA amendments of last September; and 3)                 
Natives want a constitutional amendment which is mandatory and                 
ensures that the statute cannot be overturned by other provisions              
of the constitution.  And if you'd like a good example on how we               
feel that you can tighten up the constitutional amendment, I urge              
you to look at last session's Senate Joint Resolution 2 and  five              
criteria that were outlined in the constitutional amendment.  Those            
five criteria, which we think would greatly improve the                        
constitutional amendment approach, is customary and traditional                
uses; cultural tradition; direct dependence; local residence; or               
availability of alternative resources.  In addition, at the summit,            
two other constitutional concerns that were raised was:  recognize             
the religious and spiritual aspects of subsistence and additional              
practices of subsistence.                                                      
"Basically, the real reason why we are testifying is we hope that              
you will not dodge this conflict.  That you will spend the time and            
the energy to accomplish a resolution to this issue in this special            
session, and let the voters have an opportunity to vote in November            
on a constitutional amendment, which our people, as well as other              
Alaskans can fully support.  I urge you to not be afraid of the                
time it takes to work out what needs to be done to get the                     
constitutional amendment on the ballot.  I'm very cautiously                   
optimistic that there is the political will in this Legislature                
during the special session to do it, and I urge you to spend the               
time and do it, do it right, and lets get this issue out to the                
voters and hear what they have to say, and get this conflict behind            
"And with that, I'd be glad to answer any questions.  I have, in my            
testimony, submitted the resolution that came out of our Native                
Subsistence Summit for your consideration, the AFN position on                 
subsistence adopted by our board of February 11 urging a                       
constitutional amendment, and Senate Joint Resolution No. 2, the               
sample constitutional amendment, which we think can be a good                  
starting point to resolve this issue at this time."                            
Number 300                                                                     
CHAIRMAN HALFORD said Ms. Kitka stated that Natives want a                     
constitutional amendment, which is mandatory and insures that the              
statute cannot be overturned by other provisions of the                        
constitution, and he asked what she meant by "overturned by other              
provisions of the constitution."                                               
MS. KITKA responded that AFN has three serious concerns with the               
constitutional amendment language that has been introduced to date.            
Their first concern is that it may not override the equal                      
protection guarantees of Article I.  Their second concern is that              
the constitutional amendment is based on a place of residence                  
rather than rural residence or the five criteria that was contained            
in SJR 2 and HJR 3.  Their third concern is that it is permissive              
rather than mandatory.  On the permissive versus mandatory, they'd             
like a resolution that resolves this issue for the long term and               
just doesn't kick it from one legislative session to the other,                
depending on the whims of politics.  She asked that Norman Cohen               
address the equal protection issue.                                            
Number 318                                                                     
NORMAN COHEN, Counsel for the Alaska Federation of Natives, said               
the concern is to make sure that the statute is able to withstand              
further constitutional challenge.  There is concurring opinion in              
the McDowell case that raises other constitutional problems.  The              
object is not to say that equal protection does not apply to the               
subsistence rules, but to make sure that this particular scheme                
that is set up in the current statutes or future subsistence                   
statutes are able to be upheld.  The basic idea is to try to make              
sure that the constitutional amendment states that and to allow for            
a statute that is consistent with ANILCA so that the Court will                
interpret it as valid.  He said it is not the intent to say the                
equal protection doesn't apply; nobody is trying to eliminate the              
equal protection clause from the implementation of subsistence.                
The issue is that the Supreme Court be given a direction that it is            
going to implement the law and to find a way to be able to do that.            
The suggestion on how to do that is to use more criteria for what              
the Legislature could make distinctions on, as well as an intent               
statement to tell the Supreme Court what it is that the people are             
voting on.                                                                     
MS. KITKA explained the reason why AFN is suggesting five criteria             
rather than just the one that is the amendment is because this                 
constitutional amendment is giving flexibility to the Legislature              
to enact laws.  She said it doesn't make sense to only give the                
Legislature flexibility in one specific area when several of these             
will actually give the Legislature flexibility now, as well as over            
time, as we deal with new situations in the state.                             
CHAIRMAN HALFORD noted the seventh principle of AFN's guiding                  
principles is recognition that subsistence is a basic human right,             
and he said he assumes that is still a basic guiding principle of              
the AFN position.                                                              
MS. KITKA responded that basically, the ability of the Native                  
people in the state of Alaska to continue their customs and                    
traditions, just like indigenous people all over the world, is a               
basic human right.  Subsistence is an integral part of their                   
culture and tradition.                                                         
SENATOR LEMAN noted that in her written testimony Ms. Kitka                    
expressed opposition to House Bill 406, and he said it seems like              
some of the reasons  for her criticism are incorporated in SJR 2               
because it appears by listing the five criteria areas, it may get              
to an individualized type system.                                              
MR. COHEN replied in terms of initial eligibility for subsistence,             
the position is clear: opposed to individual criteria.   However,              
in certain Tier II situations,  it may necessitate eligibility on              
an individual basis.  When all other uses are removed and when all             
subsistence users from the area cannot participate, at that point,             
it may be required to go into individual criteria, but only at that            
very unusual situation.                                                        
Number 406                                                                     
SENATOR LEMAN said Ms. Kitka's testimony made reference to anti-               
subsistence interests who would turn their backs on the state of               
Alaska in a heartbeat, and he questioned who these anti-subsistence            
interests are because they haven't made themselves known to him in             
the time he has been in the Legislature.                                       
MS. KITKA replied she thought it would probably be fair to                     
characterize some of the people that have litigated this issue as              
not being supportive of subsistence or the Title VII ANILCA                    
SENATOR LEMAN reiterated that he doesn't know anyone who is opposed            
to subsistence harvesting.                                                     
MR. COHEN interjected a good example would be a piece of                       
legislation that basically cut out three-quarters or four-fifths of            
the land mass of rural Alaska from participating in subsistence.               
There have been bills like that around that people have supported,             
and it is that kind of thing that leads people to believe that                 
they're anti-subsistence forces.                                               
Number 432                                                                     
SENATOR TAYLOR asked if AFN has prepared any amendments on the                 
Governor's proposal or the constitutional amendment for the                    
committee's consideration.                                                     
MS. KITKA responded that the five criteria contained in SJR 2 or               
some variation with that criteria could be an amendment.                       
MR. COHEN added that in the Ostrosky case, which related to limited            
entry, it was very important that the constitutional amendment was             
very clear as to what it intended.  He suggested that if there is              
not going to be a statute that goes along to the voters with this              
constitutional amendment, it is at least more important that there             
be an intent statement as to what's intended to be accomplished                
here, and they do have some language in that regard.                           
SENATOR TAYLOR noted that Senate President Mike Miller had written             
a letter to Representative Al Kookesh, one of AFN's co-chairman,               
and asked if he would contact legislative drafting and have a bill             
drafted so that the Legislature could have an AFN plan to compare              
with the Governor's plan and to hold a hearing on it.  He said, to             
this date, there has not been a response to this letter, and he                
can't understand why because he thought AFN had specific concerns              
they wanted addressed.                                                         
MS. KITKA said she had not seen that letter.  However, when AFN had            
their subsistence summit, they invited the Legislature to hold                 
hearings during the summit to hear input and the Legislature                   
declined to do that.                                                           
Number 485                                                                     
SENATOR WARD said he and his relatives live in the largest Native              
village in Alaska, Anchorage, and he asked Ms. Kitka where do they             
get the protection to where they have the same right to go                     
subsistence hunting and fishing as anybody else in Alaska.                     
MS. KITKA answered that AFN thinks there is an amendment that can              
be made to the Governor's bill that deals with that issue of                   
communities that are surrounded by urban growth, as well as other              
concerns they've outlined as improvements to the legislation.  She             
added that there a lot of good things in the Governor's bill and in            
the constitutional amendment, but they just think there are some               
improvements that could tighten that up.                                       
SENATOR WARD pointed out that right now, everybody in his Senate               
district, whether Native or non-Native, does not qualify for a                 
subsistence preference.  He said he finds it hard to say that it is            
anywhere fair that he and the people he represents should be                   
second-class citizens.                                                         
MS. KITKA responded that some of that is a policy choice that the              
Congress made.  When AFN was working with the Congress at the time             
of ANILCA, they wanted a Native subsistence, and the state was the             
one that said that there wasn't the ability in our constitution to             
do it so lets do rural, and that was the compromise that came out              
of ANILCA.  She said her people would prefer to have a Native                  
priority, but they don't see the likelihood of Congress taking that            
SENATOR WARD asked if AFN has ever given consideration to making               
subsistence the absolute highest priority for any citizens in the              
state of Alaska that want it, regardless of race, residence, etc.              
MS. KITKA replied that there was a constitutional amendment that               
had subsistence as the highest and best use that came out in one of            
the previous special sessions, but it did not generate any support             
in the Legislature.                                                            
Number 537                                                                     
ROSITA WORL, a member of the Board of Directors of Sealaska                    
Corporation and chair of the Alaska Federation of Natives                      
Subsistence Committee, stated that AFN has taken its position from             
Alaska Native people throughout the state, and she would be                    
addressing subsistence from a cultural and historical perspective              
from the Native view.                                                          
MS. WORL directed attention to a map and five geographic regions               
representing the Yupik, Inupiat, Athabaskan, Aleut, and the                    
Southeast Natives.  The Alaska Native people lived, hunted, and                
fished off of those lands, sustaining themselves from the                      
resources, and when the Europeans arrived, they welcomed them and              
they were happy to be engaged in commerce with them.  That went on             
for a number of years, but when Alaska was sold to the United                  
States, that is when the Alaska Natives protested.  They met in                
council and took the position that they are the real owners of                 
Alaska, and, if the United States wanted to buy Alaska, then they              
should come to the real owners.  They hired a lawyer and sent that             
individual to Washington, D.C. to present their claims about what              
they saw for the future and to try to protect their lands, their               
resources, and their rights.                                                   
MS. WORL said the Alaska Native people  placed their faith in those            
Western institutions and the laws of the United States, and  that              
is what they have done with the Alaska Native Claims Settlement Act            
and ANILCA.  They placed their faith and hope in those pieces of               
legislation.  The Native people wanted to protect Alaska                       
subsistence rights, however, they were told at the time that there             
was no way that they are going to achieve an Alaska Native                     
subsistence priority.  At that time, they began to compromise and              
that compromise was rural.  Even though it cut out probably 80                 
percent of Alaska Natives from rural subsistence, AFN still went on            
record to try to protect the lifestyle, the culture, the economy of            
rural Alaskans.                                                                
MS. WORL the rural subsistence economy is a good economy, it is a              
good cultural lifestyle, and at this particular point in time, it              
is the only thing they have going out there.  If they did not have             
subsistence economies and subsistence cultures, the state of Alaska            
would have to step forward and probably pour some welfare money                
into rural Alaska.  She said that is not what her people want;                 
they want the right to be able to maintain their lifestyles, their             
culture, and their economy.                                                    
TAPE 98-45, SIDE B                                                             
Number 010                                                                     
MS. WORL said Alaska Natives are not asking for welfare.  They are             
asking the legislators to do the right thing for Alaskans, to do               
the right thing for Alaska Natives by helping them in protecting               
their way of life, their economies, and their culture.  She urged              
letting Alaskans deal with this issue by allowing them to vote on              
SENATOR WARD commented that it was his goal to broaden this                    
legislation, because right now, people who do not live in a                    
particular zip code are not treated equally.  He believes that                 
anybody who wants to live off the land should have that right.                 
MS. WORL agreed with Senator Ward, and said they would very much               
support an expanded subsistence hunt and fish if that could be                 
accomplished.   She noted that the Department of Fish and Game                 
testified that subsistence takes less than two percent of all of               
the fisheries and all of the wildlife.                                         
Number 551                                                                     
SENATOR LEMAN asked Ms. Worl if she was promoting something like               
SJR 2 with the different criteria listed, or at least have this                
concept of not only location but to broaden it to also include the             
concept of dependence, whether it is identified as customary and               
traditional use, or cultural tradition, etc.                                   
MS. WORL acknowledged that is the position of both the Alaska                  
Federation of Natives and Sealaska Corporation.                                
SENATOR LEMAN said he has always thought that the concept of                   
dependence ought to be a part of this, as well as location.  He                
said he thought this exercise has been constructive, and he                    
expressed his appreciation to Ms. Worl for her testimony.                      
MR. COHEN related that there is a nutritional dependency in the                
Stevens' amendments that is required in order to be a subsistence              
eligible community, so there is a dependence element to it right               
now if the task force proposal went through.                                   
MS. KITKA noted that when they were revisiting the legislative                 
history of ANILCA and how this came about, it became very clear to             
them that what the Congress did in allowing the opportunity for the            
state to manage, if they had a law of general applicability, was               
very unprecedented.  It is very unusual for the Congress to allow              
a state to manage federal public lands.  She said it would be very             
sad if this Legislature, by inaction, without putting a                        
constitutional amendment to the people, gave up on that                        
unprecedented opportunity and allowed the federal takeover to                  
occur.  AFN believes there is a very short window of opportunity               
and that the Alaskan people want to vote.                                      
SENATOR GREEN asked if was AFN's opinion that SJR 2 meets all the              
criteria for getting back into compliance.                                     
MR. COHEN answered that they believe it is better to be safe than              
sorry.  If a constitutional amendment is adopted by the voters, and            
then a portion of the subsistence that is on the books is thrown               
out because there wasn't enough in the amendment, then everybody               
has gone through an incredible agony for no purpose.  The reason to            
have all the criteria in the legislation is to take a look at all              
of the things that are in the statutes and all of the reasons why              
the Legislature tells the boards to make distinctions so that the              
statute is upheld by the Supreme Court.                                        
SENATOR TAYLOR made reference to the AFN's seventh guiding                     
principle, which is subsistence is a basic human right, and he said            
he has not met anyone in this Legislature that has not told him                
they believe that.  He then asked Ms. Kitka how do you allocate a              
basic human right between Senator Ward living in Anchorage, who has            
the basic human right to subsistence, and Senator Adams living in              
Kotzebue, who also has a basic human right to subsistence.                     
MS. KITKA replied that in discussing a basic human right at their              
subsistence summit, they were talking about the right of indigenous            
people in this world to go forward with their cultures and                     
traditions and develop themselves as a people at the speed and to              
the extent that they want to do that.  What they are saying with               
"it is a basic human right," is that people are going to continue              
to do that regardless of the legal structure, and they are urging              
the Legislature to make what goes on legal and to give itself the              
flexibility in the constitution to pass laws so that the state can             
have the management authority.  She also said it is important to               
recognize that there is a special trust responsibility between                 
Alaska Natives and the federal government that goes all the way                
back to the U.S. Constitution, and she doesn't see people having               
problems with the nearly half a billion dollars in federal health              
care money that comes into this state that supplements and keeps               
their people alive.  She said there is continuing federal                      
relationship between Alaska Natives and the federal government, and            
subsistence is no different.                                                   
SENATOR TAYLOR thanked Ms. Kitka for clarifying that "basic human              
right," as discussed at the subsistence summit, applies to                     
indigenous peoples and not to every person living in Alaska.                   
MS. WORL said she wanted to make it clear that the Alaska                      
Federation of Natives supports rural subsistence economies for                 
Native and non-Native people, and they are saying that the right to            
maintain a subsistence lifestyle is a human right.  She added that             
you can't just take that principle in insolation without looking at            
all of the other principles.                                                   
SENATOR LINCOLN said at the beginning of her testimony Ms. Kitka               
had urged that the committee allow public participation in the                 
meeting via teleconference because there were many people who                  
wanted to testify but were unable to come to Juneau, and she asked             
Ms. Kitka if there were people that were anticipating that they                
would be able to participate via teleconference in the process.                
MS. KITKA responded that she thinks people are absolutely shocked              
that this would be the only hearing and the only opportunity.  The             
people she represents throughout the state are expecting some open             
process where they can express their views on some specific                    
SENATOR WARD pointed out that Nondalton has a hired a teacher from             
Arkansas, so this lady would have more of a basic human right for              
subsistence than he, as an Athabascan Indian, would because he                 
happens to live in the wrong zip code.  He asked Ms. Kitka if that             
was the position of AFN.                                                       
MS. KITKA replied AFN's position is that they would prefer a Native            
priority, however, what we're dealing with is rural priority and               
that's a congressional decision.  She said AFN would like to be at             
the table to help the state regain its management ability to come              
into compliance with that federal law if the state and the state               
Legislature is interested in doing that.                                       
Number 377                                                                     
CHAIRMAN HALFORD, speaking to Senator Lincoln's question relating              
to hearings on subsistence, related that Senator Kelly requested a             
research report on the number of hearings that have been held on               
subsistence.  That report shows that since the McDowell case there             
have been 103 hearings, with testimony from 239 public officials               
and 1,128 individuals.  Just this year there have been numerous                
hearings in large communities and small communities all across the             
state.  He said it was this committee's intent to try to hear from             
groups and people representing groups so that the process can go               
SENATOR ADAMS said there has been debate about urban subsistence               
users versus rural subsistence users, and he pointed out that urban            
subsistence users are eligible to get fish and game either by a                
proxy harvest or they can participate in the educational                       
opportunity.  People in urban areas can also participate in sport,             
recreational, commercial and personal use, and there are times in              
urban areas where an individual with a personal use permit can get             
more fish than he could as a subsistence user.  He asked Mr. Cohen             
if he would agree that there is no evidence that urban residents               
are lacking necessary fish and resources  at this particular point.            
MR. COHEN agreed with Senator Adams' assessment.                               
Number 330                                                                     
CHAIRMAN HALFORD thanked Ms. Kitka, Ms. Worl, and Mr. Cohen for                
appearing before the committee and then invited Tom Tilden to the              
table to make his presentation.                                                
TOM TILDEN of Dillingham representing the Bristol Bay Native                   
Association as its president, said he was the former mayor of                  
Dillingham, as well as a former council member.  He pointed out                
that Bristol Bay has one of the world's largest salmon runs,  with             
people coming  from everywhere to fish those salmon.  This has                 
impacted their salmon tremendously and they are seeing a                       
restriction on the fishery.                                                    
MR. TILDEN recalled growing up in a village where in 1963 they ran             
out of food.  He said if he could take the committee members back              
to that time, then they would be able to see the significance and              
the importance of subsistence to himself and his people.  He said              
when the killed the moose, ducks and geese out of season they                  
MR. TILDEN also recalled 1997 when the Bristol Bay run failed and              
they saw the failure of all of the salmon in Southwest Alaska.  He             
said they have been paying taxes to the state coffers for years,               
but when they came to the state and asked for help, that help was              
very slow in coming.  He said many of their people would be sick               
and dying now if it wasn't for subsistence pulling them through.               
MR. TILDEN said Alaska is a great state to himself and to all the              
people that live in his area, but he also pointed out the                      
discrimination against the Alaska Native people that was part of               
its history.                                                                   
He doesn't think his people are asking for too much when they ask              
for subsistence.  He remembers when ANCSA passed in 1971 and he                
thought the Alaska Natives had reason to celebrate because they                
finally had some land and money, but now that he looks back after              
all those years, he had nothing to celebrate because it took years             
for that land to get conveyed to the people, and there was a                   
structure put in place to take care of that money.  Ten years later            
ANILCA passed  and they were told they would have subsistence on               
federal land, but they still don't have subsistence.  He predicted             
that subsistence will happen, maybe not today, maybe not tomorrow,             
but it will happen.                                                            
Concluding his testimony, MR. TILDEN urged that when the committee             
members get the opportunity to vote on subsistence, to vote on it              
because it is the right thing to do, because subsistence is right,             
and because the  voters of the state are going to go to the polls              
with that in mind.                                                             
CHAIRMAN HALFORD thanked Mr. Tilden for his testimony and then                 
invited Loretta Bullard, Robert Keith and Caleb Pungowiyi,                     
representing Kawerak, Inc., to the table to testify.                           
LORETTA BULLARD, President of Kawerak, Inc., a regional nonprofit              
providing services throughout the Bering Straits Region, said her              
board has gone on record in support of and encouraging the Alaska              
Legislature to place a constitutional amendment on the ballot which            
will protect rural Alaskans' priority use of subsistence resources             
during times of shortage.  Alaska state law says that subsistence              
is the highest priority for use of natural resources, but state                
court decisions have decided that everyone in Alaska is a                      
subsistence user.  In reality, there is no protection for                      
subsistence users under state law.                                             
MS. BULLARD said the Nome subdistrict in northern Norton Sound is              
a good example of an area that has been heavily impacted by                    
subsistence closures.  Their commercial fisheries have been closed             
for 10 years, and their subsistence fisheries have been severely               
restricted or curtailed and closed for the last five to six years.             
For the past 35 years, her family has had a camp on the Pilgrim                
River, and for the last 20 years, they've had subsistence                      
restrictions on their take of subsistence on the rivers in the                 
Seward Peninsula.                                                              
MS. BULLARD said Alaska Native cultures are based on hunting and               
fishing activities, and these activities have sustained them as                
distinct people for thousands of years.  If their ability to live              
off the land is not protected, their entire way of life will be                
regulated out of existence.                                                    
MS. BULLARD reiterated Kawerak, Inc.'s  support for  a                         
constitutional amendment for subsistence.  They would like to see              
a constitutional amendment introduced which contains language that             
a rural preference shall be provided and that would strengthen                 
rural and Native subsistence protections.  She said they also                  
recognize that there is a need to reform the state fish and game               
board selection process and the oversight and management processes.            
MS. BULLARD stated that if the federal government steps in to                  
manage fish, it will because the Alaska Legislature has refused to             
address this issue for the past eight years.  The subsistence issue            
has turned into a political football, and it has been an enormous              
energy, time, and resource drain to the state.  She encouraged the             
Legislature to bring this issue to closure whereby the subsistence             
needs of rural Alaskans are met now and in the future.                         
Number 037                                                                     
ROBERT KEITH, Chairman of the Kawerak, Inc. Board of Directors and             
President of Elim Native Corporation, said, in essence, he wears               
three hats: according to the U.S. Constitution he is a citizen; he             
is also a citizen of a tribe, the Native village of Elim, which has            
had a constitution since 1938; and since 1959, a citizen of the                
state of Alaska.                                                               
TAPE 98-46, SIDE A                                                             
Number 001                                                                     
MR. KEITH observed that the logistics of getting any kind of                   
changes in ANILCA at this point in time, based on the time lines,              
would be nearly impossible.                                                    
MR. KEITH said Mr. Rosier spoke to an abundance of fish, but since             
the mid 50's, there has been a decline of chum salmon, and they are            
starting to see declines in coho in his village and in surrounding             
villages.  He noted that during Mr. Rosier's time as commissioner,             
Elim, Kawerak  and the Nome Eskimo community filed a lawsuit                   
because of their serious declines in chum salmon.  Not long after              
that, there was a collapse on the Yukon and Kuskokwim Rivers, and              
there have been persistent problems regarding the return of fish.              
MR. KEITH said he would like to see the people in the villages have            
as much input into whatever management regime comes about.  Based              
on some of the scenarios that have been presented, he thinks it is             
going to be somewhat of a nightmare to have dual management.  He               
pointed out that in the Seward Peninsula area, there is very little            
federal land, so it doesn't really matter whether the feds take                
over because the state is still going to be managing the majority              
of the Seward Peninsula.  In the Shishmaref area, there is one                 
river where they will have dual management.  He said he has                    
suggested to the federal people that they need stronger co-                    
management principles built into their advisory scheme just in case            
they do take over because that will provide some opportunity for               
the state to have input.                                                       
MR. KEITH said he thought Mr. Cole's painting of a worst possible              
scenario is probably somewhat valid because the Department of                  
Interior has some underlying principles of wanting to have as much             
control as possible.  However, control usually requires funds to               
implement federal bureaucratic policies, and he doesn't see the                
stance of the current congressional delegation, or other                       
congressional people, to be pouring more money into Alaska for the             
feds to take over.                                                             
Number 112                                                                     
CALEB PUNGOWIYI, Director of Natural Resources for Kawerak, Inc.,              
said he is originally from Savoonga and currently living in Nome.              
MR. PUNGOWIYI said it took many years for the Board of Game, the               
Board of Fish, as well as the Department of Fish and Game, to                  
implement some of the requirements of ANILCA.  In 1997, the salmon             
in Norton Sound were given customary and traditional determination,            
which is 17 years since the enactment of ANILCA.  There is also                
some fallacy in terms of how use is implemented under state law.               
In his region, they have to go before the Board of Game or the                 
Board of Fish and present documentation and backup to prove that               
there is customary and traditional use.  Once that is accepted by              
the boards, regulations are adopted to implement the subsistence               
priority.  However, when  it becomes a time of shortage,  anybody              
in Alaska can come in and apply for a subsistence priority without             
having to prove by documentation a customary and traditional use,              
which is not equal when they are required to prove something, but              
others are not.                                                                
Speaking to the Marine Mammals Protection Act, MR. PUNGOWIYI said              
it is a protection act, not a management act, which prohibits the              
taking of all marine mammals in the jurisdiction of the United                 
States, but it does provide an exemption to only Alaska Natives.               
In 1976, the federal government agreed that the state of Alaska had            
the necessary tools to manage walrus and gave their management to              
the state.  The Board of Game and the Department of Fish and Game              
decided that the people of Togiak could not take walrus, and they,             
in turn, sued the state of Alaska.  The state then turned the                  
management back to the federal government.  He said, in some ways,             
his people are comfortable with federal management because of the              
relationship they have established with the federal government.                
MR. PUNGOWIYI said earlier in the meeting concern was raised that              
there might be too many Native people serving on regional councils,            
and he questioned why it would be so fearful that they would have              
some involvement in the decision-making process.  He noted his                 
people have been taking marine mammals for 26 years for                        
subsistence, and the system has worked well because they realize               
the importance of conservation.  He said the real issue that needs             
to be addressed is that, if there are issues of conservation                   
concerns, their advisory committees, the regional councils, and the            
Board of Game and Board of Fish can all work together to come up               
with something that will benefit all Alaskans.                                 
Number 227                                                                     
BERT GREIST of Selawik, a professional hunter and trapper by trade,            
related that he administered the land claims act for all the                   
village corporations and the regional corporations in the Kotzebue             
area pursuant to ANCSA.  He has worked on ANILCA lands, on ANCSA               
lands, on state lands, virtually everything that has to do with                
land and water issues in his area.  He was an eight-year member of             
the Kotzebue Fish and Game Advisory Committee, and a 10-year member            
of the Regional Subsistence Advisory Council under ANILCA.                     
Right now under ANILCA, his area has guiding, sport hunting, and               
sport fishing.  He said the management system under ANILCA does not            
give them a  rural priority, per se; it kicks in only when there is            
a resource shortage.  He said it is not like his people have more              
rights than other Alaskans.                                                    
Mr. Greist voiced his support for the testimony presented by the               
Alaska Federation of Natives and Kawerak, Inc., and for a                      
constitutional amendment with a rural priority.                                
Number 292                                                                     
JOHN BORBRIDGE, presented and submitted the following testimony for            
the record on behalf of the Alaska Federation of Natives:                      
"As the committees of the Alaska State Senate and House held                   
hearings on subsistence and discussed the details of provisions and            
language set forth in various proposed bills, certain basic                    
principles that undergrid the subsistence position of Alaska Native            
subsistence users were raised.  One principle that I will discuss              
today is what I call the "Duality of Alaska Native Status."  A                 
failure to understand the legal and policy reasons for this                    
"duality" can lead, unfortunately, to an unnecessary and                       
unwarranted fear and resentment by non-Natives.  Alaska Natives,               
like non-Native Alaskans, are fellow citizens of the state of                  
Alaska and the United States.  Where we Alaska Natives differ from             
non-Native Alaskans is that we enjoy a unique and special trust                
relationship with the federal government.  It is this trust                    
relationship that underlies the opportunities that we now have                 
under Title VIII of ANILCA to enjoy and to protect our subsistence             
"It is beyond argument that the United States Congress has the                 
power to set up a resource management regimen for the Alaska                   
Natives and confirm their right to subsist on the public lands of              
Alaska owned by the people of the United States.  The Indians,                 
Eskimos, and Aleuts and non-Natives are simultaneously fellow                  
Alaskans and fellow U.S. citizens and a people who, as Alaska                  
Natives and Native Americans/American Indians, enjoy a special and             
unique relationship with the federal government.  This relationship            
has been little understood, sometimes ignored, and attacked as                 
"racist" by those who lack a complete understanding of the                     
provisions of the U.S. Constitution which give Indians a unique                
"The federal government owes the Native Americans, of whom the                 
Alaska Natives are a part, the obligation of its trusteeship, not              
because of our poverty or the government's wrongdoing in the past,             
but because within the federal system, the government's                        
relationship with the Native Americans is of the highest legal                 
standing, established through solemn treaties and a series of                  
judicial decisions and legislative actions.  This responsibility               
originated largely from the following three sources:                           
1.   The treaties negotiated with Indian tribes in which the United            
     States acquired vast areas of land in exchange for its solemn             
     commitment to protect the members of the tribes and their                 
     property from encroachment by U.S. citizens.                              
2.   Statutory enactment, dating from the Continental Congress to              
     the present, regulating transactions between U.S. citizens and            
     members of the Indian tribes.                                             
3.   Innumerable transactions in which, in the latter half of the              
     19th Century, the United States imposed a complex and vast                
     array of regulatory authority over Indians and their property             
     coincident with its assumption of control over the people and             
     property of the Indians tribes.  The assumption of this                   
     authority over Indian people was accompanied by a                         
     responsibility to the Indian people.                                      
"Despite the foregoing, litigants have erroneously argued that                 
federal laws singling out Indians as a class violate the equal                 
protection standard of the Fifth Amendment.  Others have                       
erroneously contended that state actions recognizing the distinct              
status of Indians or particular tribes under federal laws and                  
treaties violate the Equal Protection Clause of the Fourteenth                 
"The power of Congress to enact legislation singling out Indian                
lands or Indian rights for special treatment was upheld in Morton              
v. Mancari (1974), in which the U.S. Supreme Court held,                       
unanimously, that, "the plenary power of Congress to deal with the             
special problems of the Indian is drawn both explicitly and                    
implicitly from the constitution itself."  Additionally, the Court             
said that, "As long as the special treatment can be tied rationally            
to the fulfillment of Congress' unique obligation toward the                   
Indians, such legislative judgements will not be disturbed."  That             
was largely upheld, in slightly different words, in United States              
v. Antelope (1977).                                                            
"In all cases where either Congress, the Courts, or the Indian                 
Claims Commission ultimately settles any Indian claims based on                
aboriginal title, the aboriginal rights asserted are extinguished              
as an integral part of the overall settlement with the sovereign               
government.  Congress followed this pattern when ANCSA was enacted,            
and Sections 4(b) and (c) ANCSA accomplished at the extinguishment             
of all aboriginal rights asserted by the Alaska Native.  However,              
Congress also followed the usual pattern by creating new rights and            
new land titles for the aboriginal rights, which were canceled as              
part of the general settlement.  For example, it extinguished the              
aboriginal land title, but, in return, confirmed to the Natives fee            
simple title to 40 million acres of Alaska land; and while with one            
hand it extinguished all aboriginal use rights, including the                  
aboriginal right to hunt and fish, with the other hand, it took                
steps to confirm the existing subsistence rights of the Alaska                 
Natives by directing the Secretary of the Interior to take 'any                
action necessary to protect the subsistence needs of the Natives.'             
"The legislative history of ANCSA further reveals that it was                  
anticipated that the state of Alaska could, and would, assist the              
Secretary in evolving policies which would likewise protect the                
subsistence activities of Natives on the lands granted to the state            
under the Alaska Statehood Act.                                                
"At the direction of Senate Interior and Insular Affairs Committee             
Chairman Henry Jackson, the Federal Field Committee for Development            
Planning in Alaska compiled a massive document, "Alaska Natives and            
the Land,"(1968) which offered the conclusion that: 'There is no               
dispute that the right of Alaska Natives to go upon federal lands              
for the purpose of taking fish and game should continue.'                      
"When evaluating the many settlement proposals advanced during the             
years 1967 to 1971, Congress looked long and hard at the                       
subsistence question.  Senate Bill 35, the final bill considered by            
the Senate in 1971, contained subsistence provisions.  The Senate              
committee report concluded that the Natives did not need to own the            
land they used to harvest subsistence resources, and likewise                  
determined that one of the reasons these lands should remain in                
federal ownership was to ensure the protection of Native                       
subsistence rights.  Clearly, the Senate believed that it would not            
be difficult to protect the existing subsistence rights of the                 
Alaska Natives, and it was clearly stated in its report.                       
"There were important differences, however, between the Senate's               
proposals and the approach taken by the House of Representatives.              
The House committee felt the subsistence question did not need to              
be resolved in the Settlement Act.  Instead, it anticipated that               
subsistence would be achieved by and through other means.  The                 
House committee report concluded:  'There will be little incentive             
the Natives to select lands for subsistence use because during the             
foreseeable future the natives will be able to continue their                  
present subsistence uses regardless of whether the lands are in                
federal or state ownership.'                                                   
"These differences were ultimately resolved in the conference                  
between the two bodies when, in haste to produce a settlement                  
before the end of a session of Congress, the Senate yielded to the             
House position that no legislation was needed because the Secretary            
of the Interior had authority through existing administrative                  
powers to protect the rights of the Natives.                                   
"Since the Alaska Natives use subsistence resources to supply both             
physical and cultural needs, Congress clearly has the authority to             
set up a subsistence system giving preference to the Natives which             
satisfies the U.S. Constitution and is 'tied nationally to the                 
fulfillment of Congress's unique obligation toward the Indian.'                
Particularly, there can be no doubt, when this authority is                    
combined with the plenary power Congress also has under the                    
property clause to regulate the use of the renewable resources of              
the public lands in Alaska.                                                    
"From the outset, Alaska Natives insisted on the inclusion of three            
primary objectives in an Alaska Native Claims Settlement Act:                  
land, subsistence, and compensation.  The Natives of Alaska never              
agreed to give up their subsistence lifestyle in return for                    
settlement of their land claims.  The title to lands due the Alaska            
Natives under the terms of ANCSA is being processed.  The ANCSA                
compensation has been paid.  Subsistence is the unfinished chapter.            
We are seeking the fulfillment of the promise set forth in the                 
ANCSA Conference Committee Report and reaffirmed in Title VIII of              
"Mr. Chairman, I would like to touch on some points, but I will                
omit, for the purposes of time, the citations, but I would ask your            
permission to provide a copy of this later with a complete                     
Point 1.  Subsistence could be limited to Alaska Natives                       
exclusively.  However, the Natives agreed in their lobbying to                 
settle for the language of rural Alaskans.                                     
Point 2.  The federal government could assume exclusive                        
jurisdiction over regulation of subsistence uses on public lands.              
This ties in with Kleppe case.                                                 
Point 3.  The Act established a legislative preference for                     
subsistence use.  The subsistence title established a legislative              
preference for subsistence use in the state.  This section requires            
both the state and the federal government to accord non-wasteful               
subsistence uses by rural residents a preference over the taking of            
such resources for other purposes on the public lands under certain            
Point 4.  The preferential right to subsistence use is limited to              
rural Alaska residents.  The definition of "subsistence uses" is               
intended to include all Alaska residents who utilize renewable                 
resources for direct personal or family consumption.                           
Point 5.  The term "local rural residents" refers to traditional               
use, not residents in the area.  The term "local" is intended to               
include those rural residents that have traditionally and                      
customarily hunted in the area, and it is not limited to the                   
residents of the area.                                                         
Point 6.  The statute guarantees the right to use the resources                
wherever they are located.  The committee intends that access to               
fish and wildlife populations shall be provided to rural residents             
engaged in subsistence uses regardless of where such population may            
be located in the future, except that the section does not                     
authorize subsistence uses of wildlife in national parks and                   
monuments which were permanently closed to such uses on January 1,             
Point 7.  The federal government made a considered choice to permit            
state, rather than federal regulation.                                         
Point 8.  It should be stressed that section 704 (confirming the               
role of the state to regulate subsistence uses) represents an                  
unprecedented statutory expression by Congress regarding a state's             
authority to regulate the taking of fish and wildlife on public                
Point 9.  There were advantages to state regulation.  The committee            
believes that state regulation has a number of advantages.  One of             
the most important of these is that it allows for a decentralized              
administrative structure which can respond more effectively than               
could a federal structure to the differing forms that subsistence              
uses take in different parts of Alaska.                                        
Point 10.  There is no state role in subsistence use of plants.                
Point 11.  The Secretary of the Interior is required to play an                
active role.  Ultimate responsibility for administering entry and              
use of the public lands necessarily rests with the federal                     
government; therefore, the committee, which expects the Secretary              
to respond more vigorously to the 1971 admonition of the Alaska                
Native Claims Settlement Act Conference Committee than has been the            
case to date, has gone further in stressing throughout the bill the            
federal duty of protecting the viability of subsistence resources              
and continuing the opportunity for subsistence uses on public lands            
by local residents, including such uses within conservation system             
units, which were allowed as of the date of enactment.                         
Point 12.  The technology used for subsistence may change.  This               
recognizes that we are in 1998, and we are still talking about                 
protection of, continuation of the subsistence lifestyle, and that             
a part of that necessarily recognizes that there will be certain               
improvements in technology, and that the Natives are not to be                 
frozen in time to the way things were done at an earlier time.                 
They are seeking to protect and to perpetuate the lifestyle that               
has always been theirs.                                                        
Point 13.  The pace of change from subsistence economy to cash                 
economy was to be determined by the Native Alaskans.  This                     
legislation recognizes the long-standing and historic use of the               
Alaska Native people of large areas of land around their historic              
villages for hunting, trapping, fishing, berry gathering, and other            
subsistence uses and purposes.  This Act is not, however,                      
predicated on the philosophy that the historic way of life of the              
Native people of Alaska can, or will, or should be perpetuated into            
the future for all time by the actions taken by this Congress;                 
western "civilization" came to Alaska and to virtually all of the              
Native people many years ago.  But what this Congress is stressing             
and what Title VIII in large part is, is a tool by which the Native            
people will have the right and the opportunity to determine what               
that pace of change will be."                                                  
CHAIRMAN HALFORD thanked Mr. Borbridge for his presentation and                
then invited Gabe Sam and Mike Walleri, representing the Tanana                
Chiefs Conference, to the table to testify.                                    
Number 542                                                                     
GABE SAM, Director of Wildlife, Tanana Chiefs Conference (TCC),                
said he has testified many times that under ANILCA subsistence                 
would be for a rural preference.  Senator Taylor asked him if he               
could find that preference in ANILCA, and, to his surprise, he was             
unable to find it, however, he believes it was the intent of                   
MR. SAM said TCC is still in support of the proclamation that was              
passed last year on its guiding principles.  One of the principles             
is to not amend ANILCA, only if it was to make it stronger.                    
He noted a poll conducted by Dittman found that 87 percent of the              
people of Alaska want to vote on subsistence.  That figure has now             
gone up to 92 percent.  TCC supports the right of the people to                
vote because they believe that the people of the state of Alaska               
are educated enough to understand the issue, and that they will                
vote to keep Alaska as unique as it is.  What makes Alaska unique              
is the Native people that live in it.                                          
TAPE 98-46, SIDE B                                                             
MR. SAM said when growing up, he learned from his elders his                   
people's  way of life, their traditions, their beliefs.  People                
that live in the villages truly live a subsistence lifestyle, which            
is very different than the lifestyle of people who live in urban               
Alaska.  People in the villages don't consider hunting and fishing             
as sports activities; they hunt and fish to put food on the table              
for their families.                                                            
MR. SAM said the number of hunters in Alaska is growing every year.            
For example, on the Koyukuk River, it was growing at the rate of               
100 hunters per year.  Alaska is growing, but the resource is not              
growing, and he does not believe it can sustain much more hunter               
pressure than it already has.                                                  
In closing, MR. SAM stated TCC has some concerns with the proposed             
legislation before the committee.                                              
SENATOR WARD asked if TCC supports the Governor's bill.                        
MIKE WALLERI, Legal Counsel, Tanana Chiefs Conference, replied that            
TCC has historically taken the position, beginning prior to ANILCA,            
that it favored a Native preference, and it has continued to                   
express support for the passage of laws which would implement the              
promises of the Alaska Native Land Claims to protect Native                    
subsistence.  Recognizing the various compromises that they've had             
to address, TCC has historically interfaced with the state and the             
federal government to explore various options.                                 
MR. WALLERI said there are a lot of ways to address the need to                
protect Native subsistence rights and the Governor's proposal is               
one such way of addressing those needs.  However, TCC has three                
concerns with the proposal: (1) they think that the constitutional             
amendment should be "shall;"  (2) they believe that it should                  
provide for a rural preference; and (3) they share some of the                 
concerns that AFN outlined in terms of whether or not it will                  
specifically address the concerns of an equal protection override.             
An additional concern is that the 1997 amendments to ANILCA also               
provide that there be a statutory provision adopted by the                     
Legislature in order to bring the state into compliance, and TCC               
thinks the body should seriously consider that need.                           
MR. WALLERI stated that, fundamentally, TCC's position is that                 
despite the fact that they've long held a position of supporting               
Native preference, they do believe that the people of the state of             
Alaska should have the right to vote on this and the Legislature               
should allow that vote.                                                        
MR. WALLERI noted a lot of concern had been expressed about human              
rights.  He said there is nothing in the U.S. Constitution or the              
Alaska Constitution which says that subsistence is a basic                     
fundamental human right.  That language primarily comes from the               
United Nation's covenant on political, social and economic rights,             
and it has a long history which talks about the cultural basis of              
the right of subsistence, that it is culturally defined, and that              
is what people are talking about when they are talking about basic             
human rights.  He said for most of the people in the state,                    
including himself, our traditions and cultures do not define the               
hunting and fishing in the way that Alaska Natives practice                    
subsistence.  It is unique, it is treasured, and it has a                      
substantial sacred capacity to it.                                             
CHAIRMAN HALFORD asked if subsistence is a fundamental human right             
for Alaska Natives, is it a fundamental human right for urban                  
Alaska Natives.                                                                
MR. WALLERI answered that the position of Tanana Chiefs has always             
been to protect Native subsistence rights.  It wasn't TCC that                 
proposed the rural solution.  It was something that they basically             
sought to protect.  He said we are talking about a people who have             
a culture, a lifestyle, a tie to this land which has gone on long              
before any of us got here, and, as Senator Ward and Senator Leman              
have pointed out, those things are something that we need to                   
protect in order to preserve our identity as Alaska and Alaska                 
SENATOR TAYLOR said to summarize it, TCC doesn't support certain               
provisions within the bill, they would like to have those                      
provisions amended, but they do want people to be able to vote on              
something that they don't support.                                             
MR. WALLERI responded that life is compromise.                                 
SENATOR TAYLOR said he believes that, as drafted, the amendment                
currently before the committee will fail when brought up against               
the equal protection clause of the 14th Amendment of the U.S.                  
Constitution.  Last October he asked that question of Charlie Cole,            
Julian Mason and the rest of the group that put together the                   
proposed language.  They promised to get back to him, but they have            
never bothered to respond.  He said he agrees with TCC that if this            
amendment is going to be submitted to the voters, it has to be                 
submitted with significant additional modifiers within it; however,            
even then it may fail.                                                         
MR. WALLERI responded that he thought Senator Taylor misunderstood             
his position.  He said what we are talking about is the Alaska                 
Constitutional provision, and, as Mr. Cohen outlined, we need a                
legislative record that basically tells the courts what the                    
Legislature is trying to do, which can be done in a number of                  
different ways.                                                                
Number 408                                                                     
SENATOR TAYLOR commented that he doesn't know that the language can            
be drafted sufficiently tight so as to accomplish the type of                  
Native rural preference that they want.  He pointed out that                   
earlier in the hearing he had asked Charlie Cole why the Governor's            
Task Force had failed to insert "Native preference only."                      
MR. WALLERI said he thought it was a political decision made                   
because there was a strong feeling within the state that has been              
articulated over and over again that the Native preference is a                
racial preference.  However, as  Mr. Borbridge explained, the                  
Indian people have a unique status under the U.S. Constitution; it             
is not a racial status, it is a political status.                              
SENATOR TAYLOR asked Mr. Walleri if he thought it was possible to              
redraft the language so that it doesn't violate the equal                      
protection clause.                                                             
MR. WALLERI replied that it is possible, and probably the way to do            
that is to simply say something along the lines of "the state                  
constitution would recognize Native fishing rights that may be                 
created by Congress."  He said that would solve the problem, and               
then it would be up to Congress as to whether or not it would                  
recognize Native hunting and fishing rights.  He added that there              
is a lot of case law which would basically support that position.              
In that regard, there is no question that TCC would support that               
and find it much more desirable than what was presently before the             
CHAIRMAN HALFORD thanked Mr. Sam and Mr. Walleri for appearing on              
behalf of the Tanana Chiefs Conference, and he then invited Bob                
Penney to the table to make his presentation.                                  
Number 282                                                                     
BOB PENNEY, Co-chairman, Alaskans Together, said four former                   
governors want to do the same thing their organization wants to do,            
which is vote on a constitutional amendment that would keep the                
management of fish and game in Alaska by Alaskans, and they                    
encourage the Legislature to allow that vote.  He noted they have              
been running such ads in the newspapers and on TV and radio across             
the whole state.                                                               
Responding to a question from Chairman Halford, MR. PENNEY                     
explained that Alaskans Together is a group of about 28 people from            
across the state formed last year that is comprised of a cross-                
section of Native and urban people.                                            
MR. PENNEY said he doesn't think people realize the far-reaching               
effect a federal takeover will have.  Economically, it will affect             
every single business in the state in a negative manner.  He said              
Alaska will be back like it was before statehood.  He questioned               
why Alaska got statehood if it wasn't to control its destiny.                  
MR. PENNEY said what bothers him the most is this aversion to                  
having a rural preference, because since before statehood, since               
statehood, and since statutes in 1978, today the state of Alaska,              
by law and by regulation, manages for preference for subsistence               
fishing in rural Alaska.                                                       
CHAIRMAN HALFORD interjected that it is a subsistence priority, but            
it is not a rural priority; it is a court ruling that came down by             
the Supreme Court.                                                             
MR. PENNEY said it is still living off the land, so he doesn't                 
understand what the difference is, because, in all practically, a              
state statute and state regulations are going to be turned into a              
constitutional amendment that is basically going to do the same                
thing, which is to provide a rural priority.  He said he would like            
to have someone clarify to him how it is going to any different                
than it is today.                                                              
MR. PENNEY said the reason he has been working so hard on this                 
issue is because he wants the opportunity for his children and his             
grandchildren to enjoy the same kind of life and lifestyle as he               
has within the state of Alaska.                                                
MR. PENNEY urged that a constitutional amendment be passed by the              
Legislature so that the people can vote on the issue and to keep               
the feds out of the state's management of fish and game.                       
SENATOR LINCOLN noted that Mr. Rosier and Mr. Kellyhouse testified             
that the people of Alaska really don't understand the issue enough             
to vote on it, and she asked Mr. Penney if he thought the people of            
Alaska really don't understand the issue and are not educated                  
enough to vote on it.                                                          
MR. PENNEY replied that he thinks the people want to see the issue             
go away.  He said before his group started their ads or did                    
anything it was clear nobody that he knows wanted to see the feds              
come back.  He believes the people want to vote on a constitutional            
amendment that will keep the feds out.                                         
SENATOR LINCOLN also asked if Alaskans Together believes that there            
also needs to be a statutory fix, as well as a constitutional                  
amendment, in order to be in compliance.                                       
MR. PENNEY acknowledged that it correct.  He added that he has been            
told by both Senator Stevens and Attorney General Botelho that it              
will take both the constitutional amendment and a statutory fix.               
Personally, he doesn't see why the Legislature can't just do the               
constitutional amendment now, see how it  flies, and then deal with            
a statutory change at a later date.                                            
Number 051                                                                     
SENATOR WILKEN commented that he took great exception to a recent              
misplaced, ill-advised ad placed in newspapers by Alaskans Together            
and that he had expressed his displeasure in a letter to that                  
group.  He noted that he would be meeting with Mr. Penney the                  
following day to discuss the composition of his group, as well as              
the financial backing.                                                         
SENATOR WARD asked Mr. Penney if he could provide that information             
to the committee right now.                                                    
MR. PENNEY responded that he didn't have the financial information             
with him, but he would be providing that information, as well as               
the membership of the organization, in writing, the following day.             
TAPE 98-47, SIDE A                                                             
Number 020                                                                     
SENATOR WARD pointed out that the Legislature now has an                       
opportunity to change it to where everybody will share in a                    
subsistence lifestyle equally in this state, and he asked Mr.                  
Penney if he was opposed to that option.                                       
MR. PENNEY replied that he wasn't prepared to address that because             
he doesn't know what the impact would be on the resource.                      
SENATOR WARD commented that he would imagine it would have an                  
impact upon those who catch fish for the purpose of selling them.              
Number 120                                                                     
CHAIRMAN HALFORD thanked Mr. Penney for appearing before the                   
committee and then invited Theo Matthews to make his presentation.             
THEO MATTHEWS, President, United Fishermen of Alaska (UFA) and                 
chair of its subsistence committee, said during the 1990 special               
session on subsistence, UFA testified in opposition to a                       
constitutional amendment at that time, stating that it was part of             
the problem, that it would not solve the problem without a package             
solution.  UFA has always been active and tried to be an honest and            
fair partner in this debate since the eighties.  They've maintained            
contacts with Native groups, recreational hunting groups, and sport            
fishing groups.  They've never had a hidden agenda; they often                 
argued that the real issue is how do Alaskans learn to live into               
the future with this policy that essentially was adopted by the                
federal government that the state has, in large part, adopted in               
its own state statutes.  Throughout  UFA's participation in this               
issue, they have stressed that, given there is a state policy that             
the Legislature adopted or that the Congress adopted in ANILCA,                
someone really needs to look at this and see how to make it work to            
the benefit of all Alaskans.  He said UFA seems to be the only                 
group that feels prepared to stress the nature of this preference.             
It is not simply the right to subsist and feed the family, it has              
evolved into a legal preference.                                               
MR. MATTHEWS said even for those residents of this state who                   
receive this preference, there is a burden with it.  The ideal                 
world is for good management by this state to allow for                        
differential bag limits, perhaps larger bag limits, perhaps larger             
seasons, but not to require the priority that counts to kick in,               
the one that requires the automatic elimination of all other uses              
to maintain existing subsistence uses.  What is often overlooked               
and what UFA feels is the heart of matter is that those uses that              
are eliminated are your own, even if you have the preference.  For             
example, if an individual has created a lodge on a river in Bristol            
Bay or on the Kuskokwim or Yukon, he can't bring in his clients                
anymore if his subsistence preference kicks in for him.  When that             
subsistence priority over other uses kicks in, a large part of that            
individual's social and economic lifestyle is in peril.  UFA has               
always recognized that this burden is there under state or federal             
UFA has consistently refused to accept just a constitutional                   
amendment, because it is their opinion that the federal government             
does not have the incentive to do the good management job that the             
Department of Fish and Game does.                                              
UFA testified before the Governor's Subsistence Task Force on                  
September 12,1997, and their comments are just as valid today as               
they were then.  UFA's position is that equality is being                      
represented.  He said we have a state subsistence law that is                  
identical to the federal ANILCA.  The major exception is that the              
state's law says all Alaskans will have this preference to                     
accommodate our constitution in essentially rural areas outside of             
non-subsistence areas.  The federal law mandates that only rural               
residents will be afforded that preference.  However, he said the              
state has the same law that requires the same criteria as federal              
law.  The Legislature wrote a good law, a law that the boards could            
understand how to enforce, and it gave them some good definitions.             
On one hand, there is a federal law that is terribly written and               
has no definitions or guidance, but it has a rural preference.  So             
in terms of equality and what really happens in terms of                       
management, the fact is a rural preference will give more                      
management options because there will be fewer people to                       
accommodate with the preference.  All other aspects of the state               
law are identical to what's required by ANILCA.                                
MR. MATTHEWS said UFA suggests using the current 1992 statute as               
the basis for any provisions because it has worked and it has                  
guidance to various people.  They also suggest keeping the non-                
subsistence area concept because it is not necessary to delete that            
concept to accommodate a rural preference.  They think it gives                
more guidance and makes it clearer where the Legislature intends               
this preference to be.  It is also suggested to add the word                   
"rural" or some synonym or some definition of "rural" to the                   
existing state statutes.  It is further suggested to insert the                
important definitions that they think are vital in ANILCA securely             
into the law  such as "customary and traditional," "customary                  
trade," "reasonable opportunity," "stock," etc.  UFA also                      
recommends not attempting to define the words "sustained yields"               
because the Board of Fish and Board of Game need the flexibility to            
deal with stock sizes on a stock-by-stock basis.                               
MR. MATTHEWS said, in commenting to the Governor's Task Force on               
regional councils, UFA felt that it went way beyond the                        
requirements of ANILCA in terms of what kind of deference was                  
In his final comments on the constitutional amendment, MR. MATTHEWS            
said UFA agrees, in a sense, with the comments of the AFN lawyer               
and the Tanana Chief's lawyer.  The current language, which talks              
about place of residence, is not specific enough to tell the                   
public, in terms of policy, what it really means.  UFA has always              
felt that the best thing was to use the definition of "rural" that             
the Legislature has already adopted.                                           
Number 355                                                                     
SENATOR TAYLOR said the package before the committee becomes kind              
of a take it or leave it deal.  He questioned if somebody has a                
commitment that the Secretary of the Interior has bought off on                
this thing in the way it is worded.                                            
MR. MATTHEWS responded that the Legislature has already defined                
most of these things, they are just not in the statute.  His                   
suggestion was to put the definitions into the statute, not                    
necessarily to change past definitions.  He said if it is a take it            
or leave it situation, UFA would support the task force package                
because it accomplishes all the major goals they have set.  It                 
primarily requires the ANILCA definitions so the courts can't run              
SENATOR TAYLOR asked if UFA understands that the False Pass fishery            
will go down if this legislation passes.                                       
MR. MATTHEWS stated he didn't agree with that conclusion.  That                
fishery in question at False Pass does not spawn on federal lands              
in  any event, so the feds won't have anything to say about it.                
SENATOR ADAMS inquired as to the total number of commercial                    
fishermen in the state and how many of them are represented by UFA.            
MR. MATTHEWS related, in terms of salmon fishermen, there are                  
13,000 permits and, of those, approximately 74 percent are state               
residents.  There are 20 groups from Ketchikan through Area M that             
are current board members of UFA.  He represents the United Cook               
Inlet Drift Association, and there approximately 600 permits in the            
Inlet with about 300 of them as members.  There are also several               
groups of halibut fishermen, long line fishermen, and crab                     
fishermen in UFA.  He added that UFA knows that this is a complex              
issue and that they do not speak for every fishermen in the state              
of Alaska, commercial or otherwise.  They've always tried to look              
at it as an issue that has to be resolved in the interest of all               
users, recognizing this priority for the legal problem that it is.             
Number 430                                                                     
DICK BISHOP, Vice President, Alaska Outdoor Council, said he  was              
sorry to hear the proclamation in earlier testimony that                       
subsistence is a basic human right that doesn't apply to all of us.            
He said with regard to Mr. Cole's analysis of federal authority, he            
gave a very good advocacy statement, but he suggested getting a                
second opinion, particularly on the questions relating to the                  
property clause of the federal law, because it seems apparent to               
him that fish and game are not federal property.                               
MR. BISHOP said the comment made that the state of Alaska advocated            
a rural priority in ANILCA is absolutely not true.  He was there               
when the deal was made on that, and the deal with made as an                   
ultimatum from the Alaska Federation of Natives by their general               
counsel.  Also, the statement was made that ANILCA was an                      
unprecedented comprise in allowing state management of federal                 
lands, but that is not what ANILCA does.  It has nothing to do with            
the management of federal lands; that authority is retained by the             
federal government and it will be there regardless of what becomes             
of the subsistence priority.  They have the authority to manage                
those federal lands and the federal properties, if, in fact,                   
Congress has given them that authority.  He added that is                      
questionable because even Judge Holland, with regard to fish and               
game, couldn't find that Congress had given the federal government             
that authority.                                                                
MR. BISHOP said the Legislature is being challenged again to adopt             
a law that will guarantee the perpetuation of a culture.  He                   
cautioned not to accept that responsibility for guaranteeing the               
survival of a culture because there isn't any law that can be                  
passed that can do that.  He said that's very much dependent on the            
values of the people that live that culture, and, if those values              
change, that culture will not survive and the Legislature will be              
the scapegoat.                                                                 
MR. BISHOP referenced various distinguished people who have                    
participated in the hearing and have in various ways over the years            
and in various capacities, official or otherwise, advocated,                   
implemented, and defended the principles of fairness and equal                 
protection under the Constitution of the State of Alaska and of the            
United States for all Alaskans.  The paradox he sees is that among             
these champions of equal protection, some of them are demanding                
that Alaskan civil rights, the equal standing before the law                   
regarding the opportunity to fish, hunt and trap, be cast aside in             
favor of a zip code priority that the Alaska Supreme Court has                 
condemned as being an extremely crude tool that unfairly restricts             
non-rural people's opportunities.                                              
MR. BISHOP said this debate is simply about a couple of things.                
One is a political strategy to accomplish a couple of objectives:              
rescue the Governor's campaign promise to get a rural priority; and            
to save Senator Stevens any further political embarrassment on the             
issue.  The second is money.  The Alaskans Together Campaign is                
spawned in the Anchorage Chamber of Commerce with the apparent idea            
of insuring continued lucrative commerce with rural consumers and              
regional Native corporations.  He concluded there is nothing wrong             
with that as long as the price is not the equal access protection              
of the majority of Alaskans.  He said there simply is no longer any            
question that cash from diverse sources drives rural, as well as               
urban economies, nor is there any question that the matter of rural            
urban commerce has occupied the Anchorage Chamber of Commerce for              
many months.                                                                   
MR. BISHOP said the Legislature is being asked to let the people               
vote on a constitutional amendment providing for a subsistence                 
priority.  He said it should come as no surprise that although many            
people apparently are saying they would like to vote on the matter,            
very few know what that vote entails.  They are being told that a              
vote on a constitutional amendment will keep the feds out, but it              
is perfectly obvious that's not true.  Assuming that a rural                   
residency amendment passed and the state conformed to federal law,             
the state would be bound to (1) a zip code priority as approved by             
federal judges; (2) a priority for subsistence on renewable                    
resources, not just fish and game; (3) a rural/tribal biased                   
regional subsistence council system; (4) regulations that reflect              
customary and traditional uses, slightly modified by reasonable                
opportunity, which has been interpreted in federal court as                    
whatever was done in the past even if that means no closed season              
and no bag limit if that would constrain customary and traditional             
uses; (5) sale of commercial harvest limited by the state boards as            
approved by federal judges; (6) federal court enforcement; (7) the             
end of Alaska's constitutional protection of equal rights and                  
common use regarding fish and game uses; and (7) no legal basis for            
future arguments about state versus federal laws regarding equal               
protection, common use, or the state's rights to manage fish and               
MR. BISHOP stated that with the ANILCA amendments obtained by                  
Senator Stevens, the federal power grab is more intrusive than                 
under the original ANILCA because the Secretary's authority is                 
expanded and the Katie John decision is taken as undisputed in the             
findings of those amendments, and the state, having embraced                   
ANILCA, can no longer challenge the unwarranted federal usurpation             
of the state's rights.                                                         
MR. BISHOP further stated it is the Alaska Outdoor Council's view              
that the right thing for the Legislature to do is to clearly                   
provide for the accommodation of subsistence uses for food within              
the bounds of the existing constitution and to challenge                       
Washington, D.C. collectively to honor the terms of Alaska's                   
Constitution, which years ago they approved, instead of playing                
favorites among Alaskans and patronizing the claims for special                
privileges in law that are sought by some.  He said the Legislature            
has no obligation to put a lousy law on the ballot.                            
TAPE 98-47, SIDE B                                                             
Number 592                                                                     
SENATOR LINCOLN said Mr. Bishop had stated that it was not the                 
legislators' responsibility, as lawmakers, for the perpetuation of             
a culture.  She said that bothers her a bit because she thinks, as             
lawmakers, we should not also be a party to the demise of a                    
culture.  It has been testified over and over how critical                     
subsistence is to the culture, to the lifestyle, and that this                 
legislation is critical to that culture.  She said she does view               
that as part of her responsibility for Alaskans.                               
MR. BISHOP clarified that what he was addressing was a considerable            
doubt that any government body can pass a law that will guarantee              
or ensure the perpetuation or survival of a culture.  He said he               
thinks it is equally incumbent upon any government body to insure              
that the laws that they create or enforce are not detrimental to               
cultures.  In other words, there should not be cultural                        
discrimination through statutes, that the laws passed should make              
sure that there is every opportunity for all cultures to survive               
and prosper in a very tolerant atmosphere.  But he thinks to take              
on the additional responsibility of saying that you will guarantee             
their survival is hopelessly unrealistic because the survival of               
any culture depends solely upon the values which the people of that            
culture place upon it.  He added that it is his personal opinion               
that there are numerous factors in Alaska today that have a much               
greater effect on the survival of Alaska Native cultures than                  
whether there is a subsistence priority law.                                   
Number 549                                                                     
SENATOR ADAMS asked Mr. Bishop the Outdoor Council's solution to               
the potential problem of dual management in Alaska without a vote              
of a constitutional amendment.                                                 
MR. BISHOP responded the solution the Outdoor Council has favored              
and advocated in the past is that first of all they don't think                
there needs to be a priority in order to provide for subsistence               
uses.  It has been done in the past through conventional                       
regulations of various kinds.  But if the political will is that               
there be a priority, then he thinks it should be done consistent               
with the Alaska State Constitution and the decision of the Supreme             
Court that elaborated on that.  He said there is absolutely no                 
question, having gone through this drill on Governor Hickel's                  
Subsistence Advisory Council, that it can be done within the bounds            
of the existing constitution and that subsistence uses can be                  
adequately provided for without a constitutional amendment.                    
SENATOR ADAMS noted the Legislative Council has filed a lawsuit in             
hopes that there won't be dual management, and he asked Mr. Bishop             
if his group would gamble on that particular lawsuit.                          
MR. BISHOP answered that the Outdoor Council has filed as an                   
intervener in that lawsuit, and the principle reason being is                  
because they feel one of the major factors driving this lack of                
resolution is the lack of clarity about the interpretation of                  
federal law.  He  thinks it is absolutely essential that there be              
a serious effort made to determine what the reality of federal law             
is in relation to  the state's authorities and responsibilities.               
Unless and until that is cleared up, there is always going to be               
uncertainty, but that does not necessarily deny, though, reaching              
a political compromise if that compromise was fair and just to all             
Number 520                                                                     
SENATOR HOFFMAN said he didn't think anybody  was saying that the              
reason that we're voting for a rural priority is to perpetuate any             
culture, and he thinks that if anybody uses that as an excuse for              
not voting for this they are highly mistaken.  He said what we are             
saying is that there is a lifestyle that is unique to Alaska, and              
as several people testified, they came to Alaska and moved out to              
rural Alaska and lived a subsistence lifestyle.  In order for that             
to happen, we have had to address the rural preference in order to             
give them, in times of shortage, the means to survive.  He also                
pointed out that when there are over 90 percent of the people                  
saying that they want to vote on something, then he thinks they've             
done their research and are highly educated on the issue because it            
has been around for so many years.                                             
MR. BISHOP disagreed, saying that his comment that the subsistence             
priority is available in times of shortage is one of the most                  
persistent myths about the mandate of the federal law that exists              
today.  He said it reflects the pervasiveness of the errors that               
have been perpetuated on the Alaskan people via the legislators or             
otherwise.  He said most of the Alaskan people don't have a clue               
about the what the baggage is that comes with the federal rural                
priority and the state obligating itself to administer that law.               
Number 480                                                                     
CHAIRMAN HALFORD thanked Mr. Bishop for appearing before the                   
committee and then invited Peter Page to the table to make his                 
PETER PAGE, representing the Stikine Sportsmen's Association, noted            
the majority of its members live in the Wrangell area, and he                  
thinks it is important to express their views on the issues before             
the Legislature, in part, because Wrangell, by definition, is rural            
and the members of the organization who live there would receive               
the benefits of a rural preference to the extent that benefits                 
attach to it.  Their position is that they believe that the                    
subsistence gathering of resources is and always should be a part              
of the Alaskan lifestyle and they would deny it to no one.  They               
feel that the rural preference does not work fairly, is flawed in              
its application, and should not be the criteria and before the                 
people of Alaska.                                                              
MR. PAGE stated the Association objects to the constitutional                  
amendment before the Legislature because it has the effect of under            
cutting the equal protection provisions that are found in four                 
different places in the Alaska Constitution.  He said we should                
remember that the constitutional provisions that are in the                    
constitution were crafted during a period of time when equal                   
protection was for many Americans, including Alaska Native                     
Americans, nothing more than a prayer of hope on their list.  Since            
then, it has become a cornerstone of our constitutional provision              
that governs all of us.   He thinks it is something that should not            
be lightly tampered with, and to suggest that we can vote on it and            
come up with a change is true, but as earlier stated, the                      
Association would be most reluctant to submit to a vote of the                 
populace on a change that might deprive us of the other fundamental            
rights.  He observed that, in his view, the provisions for equal               
protection, equal rights and responsibilities, are as sacred now as            
the day they were ratified and they should not be tampered with.               
MR. PAGE said the Wrangell members of the Association recognize the            
dangers if the preference should kick in, to their very tenuous                
economy where all commercial fishing, all commercial processing,               
all commercial entertainment of visitors who want to come there to             
fish and hunt would die, and with it, probably the economy of the              
City of Wrangell.                                                              
MR. PAGE stated the members of the Association believe that the                
Legislature can provide adequately for the subsistence rights of               
all Alaskans by adjustments of seasons, bag limits, and regional               
regulation and that it should do that.  Then the Legislature should            
turn its efforts towards persuading Congress that ANILCA, as                   
drafted, is flawed and should be changed.                                      
CHAIRMAN HALFORD thanked Mr. Page for his presentation and then                
invited Tom Scarborough to the table to testify.                               
Number 407                                                                     
TOM SCARBOROUGH of Fairbanks said as an individual who has been                
deeply in the subsistence debate for the past 20 years, it is                  
inevitable that this day would come again.  Those being                        
discriminated against will be unhappy just as those having their               
rights deprived will also be unhappy.  The beneficiaries of the                
discrimination will also  be unhappy because they believe they are             
not getting enough, so we are dealing with a lose/lose proposition.            
MR. SCARBOROUGH said the U.S. Constitution and its management                  
system was put together on a basis of equality, which has permitted            
this nation to become the most powerful country in the world.  This            
understanding of equality has permeated all aspects of our society,            
except for one facet, and that is how we have dealt with Native                
Americans.  When the Native issue was attempted to be settled in               
Alaska with ANCSA, the Native people of Alaska were to be equal                
with everyone else.  On top of that, ANCSA extinguished all                    
aboriginal hunting and fishing rights.  Special privileges from the            
federal government were put in place by ANILCA for rural residents,            
which, he said, was not Indian law.  The state of Alaska proceeded             
on that same course, using equality, in the state constitution, and            
then passed a subsistence law in 1986.                                         
MR. SCARBOROUGH said the request to institutionalize the                       
discrimination option is before the Legislature once again.  He                
said he agreed with Senator Taylor that the 14th Amendment of the              
U.S. Constitution absolutely prohibits a state from passing a law              
or putting something in their constitution which discriminates or              
violates the rights of other U.S. citizens.  He suggested the only             
solution is to take this question to the U.S. Supreme Court and                
determine where the sovereign powers start and stop.  He said the              
Legislature, collectively, has already put this question before the            
Court, and he urged continuation of that effort, as well as                    
requesting an injunction to put any further action on hold until a             
decision is made by the Supreme Court.                                         
MR. SCARBOROUGH referenced Section 810 of Title VIII, and he said              
this section provides that the federal government would have to                
determine if any action taken by the state, whether it is paving a             
highway, building a road, etc., is going to affect somebody's                  
subsistence rights.  He said this is economic control and this is              
what the issue is really all about.  What the Legislature is toying            
with is turning the total economic future of Alaska over to a                  
minority of 15 percent, where the urban residents will have no say             
in what the outcome is.                                                        
Number 288                                                                     
SENATOR TAYLOR asked Mr. Scarborough if he had any idea why the                
Governor wouldn't support the Legislature in it lawsuit, because he            
has told the people he really wants to keep the federal government             
out of Alaska and he is fighting to prevent a federal takeover of              
the state's fish and game management.                                          
MR. SCARBOROUGH replied that he thought it was to his benefit to               
maintain the controversy, it may help him get elected.                         
Number 274                                                                     
CHAIRMAN HALFORD thanked Mr. Scarborough for appearing before the              
committee and then invited Bill Hagar to the table to make his                 
presentation to the committee.                                                 
BILL HAGAR, a 40-year resident of Fairbanks, commented he is very              
proud of this state, the Legislature, and the departments, and he              
believes everyone has, for quite some time, gone the extra mile to             
conform and contribute to the demands of the subsistence issue.                
However, he believes that equal protection is at risk, not the                 
subsistence issue.                                                             
MR. HAGAR directed attention to a research document prepared by                
himself and four other individuals on the Supreme Court's handling             
of the subsistence issue.  He said they did the document out of                
defense and discovery, and they feel the Administration has not                
disclosed and refuses to disclose all of the information available             
to the public to consider any kind of vote on any position that is             
presently before it.  They have discovered there is a national                 
constitution and a state constitution, and these are the people's              
constitutions.  The main thing they have discovered is that                    
administrations, congressional people, and legislative and                     
administrative people being at a state or a federal level, must act            
within constraints of the constitution.  He said they do recognize             
the existence of opposing pressures and opinions, and have equal               
respect for both.  He said they feel we all may be searching for a             
compromise in lieu of an impasse, and he suggested it is time for              
a third party.                                                                 
MR. HAGAR said he would advocate for the Legislature to take action            
on the constitutional amendment by voting it down, calling  a time             
out, and putting our trust in the highest authority we can seek out            
in the land, which he has identified as the Supreme Court as                   
perhaps an arbitrator or a final solution to this dilemma.                     
CHAIRMAN HALFORD thanked Mr. Hagar for his testimony and then                  
invited Lynn Levengood to the table to address the committee.                  
Number 134                                                                     
LYNN LEVENGOOD, a Fairbanks resident serving on the executive board            
of the Alaska Wildlife Conservation Association, stated he believes            
that there is no acceptable substitute for equality, and he firmly             
believes that the equal protection clauses of the U.S. Constitution            
and Alaska's Constitution are at risk if the proposed                          
constitutional  amendment is pursued.                                          
He said he listened to most of the previous testimony and that he              
respectfully disagrees with many of the answers provided by former             
Attorney General Cole and the current Attorney General.  However,              
he thinks there are some common threads in which there is some                 
unanimity of opinion.  First of all this should not be a political             
issue, but, unfortunately it has been politicized by the current               
Administration, and the reason for this dilemma today is because               
the Babbitt suit was dropped for political reasons, causing the                
current stalemate.                                                             
MR. LEVENGOOD observed that all of the individual rights found in              
the federal constitution, as well as equal treatment, equal                    
protection under the law, and the common use and ownership of all              
wildlife resources is guaranteed to each individual Alaskan, past,             
present and in the future.  The legislative body of Alaska has the             
trust responsibility of protecting that right for future Alaskans,             
and one of the trust responsibilities is that of impartiality.  So             
to try to discriminate among Alaskans for the allocations when                 
there is no shortage, is a violation if its trust responsibilities.            
MR. LEVENGOOD said it has been testified that Alaskans just want to            
vote on the issue, but just wanting to vote is not enough because              
we are a country of individual guaranteed rights; there are certain            
rights, individual rights that are not subject to majority rule.               
Alaskans have been told they are going to vote to keep out the                 
federal government, but under the legislation before the                       
Legislature, the federal government is not going to be kept out.               
Alaskans are not being told that the vote they are going to be                 
given is a vote to take away the rights of other Alaskans.                     
TAPE 98-48, SIDE A                                                             
Number 001                                                                     
MR. LEVENGOOD believes that Alaskans are united in that they want              
final resolution, and that final resolution is required and will be            
required before all Alaska's people can be united under law as one             
people.  He urged that no solution be attempted if it violates any             
of these principles.                                                           
Addressing the Stevens' amendments to ANILCA, MR. LEVENGOOD said               
they would give up our sovereign ability to challenge this package             
of legislation, which he believes would be a grave mistake.  The               
legislation before the committee does not provide finality, and he             
suggested to get finality is to seek final resolution on the merits            
with the U.S. Supreme Court.  He agrees with previous speakers that            
the constitutional amendment and the statutory legislation should              
be voted down by the Legislature, and then to ask that the                     
Administration join the Legislature in seeking an injunction to                
provide a time out to allow for judicial finality.  Considering the            
state sovereignty issues are at issue and the difference of opinion            
between the legal conflict of laws issue, he believes a federal                
court would provide such a moratorium to allow legal finality.                 
When such a time out is provided, Alaska should then assert its                
10th and 11th amendment rights in a direct action lawsuit taking               
the issue directly to the U.S. Supreme Court.  With such a suit,               
the Supreme Court is obligated to take the case and finality would             
occur within one Supreme Court cycle.                                          
In closing remarks, MR. LEVENGOOD said he believes a preference can            
be crafted broadly defining "subsistence" as "the reliance on                  
Alaska's wildlife resources for basic sustenance."  If subsistence             
is defined that way and provides a preference in times of shortage,            
then Alaska state law would protect rural residents who relied upon            
wildlife resources for their basic sustenance, as well as other                
residents who relied upon wildlife resources for their sustenance.             
State law would protect the class of people that federal law                   
protects, and the state would be in compliance with ANILCA without             
changing the state constitution.                                               
CHAIRMAN HALFORD thanked Mr. Levengood for his testimony and then              
invited Mary Bishop to the table to make her presentation to the               
MARY BISHOP of Fairbanks, representing the Golden North Archery                
Association and the Interior Alaska Air Boat Association, stated               
she thinks the basic assumptions made by Mr. Cole and Mr. Penney               
are wrong.  The first assumption was that the most important thing             
is to get back fish and game management, and the second is that we             
cannot change ANILCA.  She agrees it is important to get back fish             
and game management, but it is not the most important thing.  The              
most important thing is a resolution of this issue that won't tear             
apart the people of Alaska.  A zip code priority tears apart the               
people of this state.                                                          
The second assumption is that ANILCA cannot be changed, but Senator            
Stevens changed it almost overnight with his amendments.  Senator              
Murkowski has said the Legislature has the opportunity to provide              
him with recommendations on amendments to ANILCA, and his intention            
is to conduct hearings on those recommendations and to legislate               
any additional changes to ANILCA.                                              
Also, Mr. Penney and others have indicated that if the state were              
to comply with federal law, the results would be innocuous.  She               
referenced the Bobby case as an example of complying with federal              
law, which she said is the kind of innocuous thing we are working              
toward if we accept a rural priority with customary and traditional            
use as the basic formula that has to be met.                                   
MS. BISHOP stated that if the Governor and the state's                         
congressional delegation really want state management, then they               
should agree to make efforts to substantially amend ANILCA so that             
we have a result that won't tear apart the people of this state.               
Number 415                                                                     
There being no further witnesses to appear before the committee,               
Chairman Halford closed the public hearing portion of the meeting.             
RESIDENCE was before the committee for its consideration.                      
SENATOR LINCOLN offered and moved adoption of Amendment No. 1.  She            
explained the amendment deletes  the language in Section 19 and                
replaces it with language from SJR 2, which contains the five                  
criteria for subsistence eligibility.                                          
In discussion on the amendment, SENATOR TAYLOR expressed his fear              
that in expanding the list, it also expands the  opportunities for             
challenge to this list on the equal protection clause of both the              
U.S. Constitution and the Alaska Constitution because they probably            
all lack sufficient definition.                                                
SENATOR TORGERSON objected to the adoption of Amendment No. 1.  A              
roll call vote was taken with the following result:  Senator                   
Lincoln voted "Yea" and Senators Green, Leman, Sharp, Taylor,                  
Torgerson and Halford voted "Nay."  CHAIRMAN HALFORD stated                    
Amendment No. l failed on a 1-6 vote.                                          
SENATOR LINCOLN offered and moved adoption of Amendment No. 2,                 
which on line 7 deletes the word "may" and inserts "shall" in its              
SENATOR GREEN objected to the adoption of Amendment No. 2.  A roll             
call vote was taken with the following result:  Senator Lincoln                
voted "Yea" and Senators Leman, Sharp, Taylor, Torgerson, Green and            
Halford voted "Nay."  CHAIRMAN HALFORD stated Amendment No. 2                  
failed on a 1-6 vote.                                                          
SENATOR LINCOLN offered and moved adoption of Amendment No. 3,                 
which on line 9 deletes "place of residence" and inserts "rural                
preference" in its place.  She explained this change will make it              
clear to the general public what they are voting on, especially                
since it is in conjunction with a statutory change that speaks to              
the preference being a rural preference.                                       
SENATOR TORGERSON objected to the adoption of Amendment No. 3.  A              
roll call vote was taken with the following result:  Senator                   
Lincoln voted "Yea" and Senators Sharp, Taylor, Torgerson, Green,              
Leman and Halford voted "Nay."  CHAIRMAN HALFORD stated Amendment              
No. 2 failed on a 1-6 vote.                                                    
There being no further amendments,  CHAIRMAN HALFORD requested a               
motion on SJR 101.                                                             
SENATOR TORGERSON moved SJR 101 pass out of committee with                     
individual recommendations.  SENATOR LEMAN objected for the purpose            
of stating that he believes there are some amendments that can be              
made to the resolution to narrow the scope and that he would like              
to offer them to the body when the legislation is on the Senate                
floor.  He then removed his objection.  There being no further                 
objection, CHAIRMAN HALFORD stated SJR 101 moved from committee                
with individual recommendations.                                               
before the committee.  He explained the legislation was introduced             
by the Senate Rules Committee at the request of the Senate                     
President, and it simply extended the sunset date on the 1992 law              
for one year.  He directed attention to a Resources CS which                   
repeals that sunset provision so that 1992 law would go on.  He                
said when it was passed originally, it was thought it needed                   
another review, but just continuously extending the sunset date one            
year at a time doesn't seem to make a lot of sense.                            
SENATOR GREEN moved the adoption of CSSB 1002(RES).  SENATOR                   
LINCOLN objected, stating she wasn't sure what was being repealed.             
CHAIRMAN HALFORD explained the section in the session law contains             
a repealer which was being amended from 1998 to 1999, and instead              
of extending that by one year, the committee substitute is                     
repealing  the repealer, which, in effect, makes it permanent law,             
but it is not changing the existing law.  He stated he would make              
sure that a side-by-side analysis of the session law and the                   
committee substitute is included in the members' packets when the              
legislation goes to the Senate floor.                                          
A roll call vote was taken on Senator Green's motion to adopt the              
Resources CS with the following result:  Senators Taylor,                      
Torgerson, Sharp, Leman, Green and Halford voted "Yea" and Senator             
Lincoln voted "Nay."  CHAIRMAN HALFORD stated the motion to adopt              
CSSB 1002(RES) carried on a 6-1 vote.                                          
SENATOR LEMAN moved CSSB 1002(RES) be passed out of committee with             
individual recommendations.  SENATOR LINCOLN objected.  The roll               
was taken with the following result:  Senators Torgerson, Taylor,              
Sharp, Leman, Green and Halford voted "Yea" and Senator Lincoln                
voted "Nay."  CHAIRMAN HALFORD stated the motion to move CSSB
1002(RES) carried on a 6-1 vote.                                               
There being no further business to come before the committee, the              
meeting adjourned at 1:10 a.m., Wednesday, May 27.                             

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