Legislature(2001 - 2002)
05/16/2002 09:20 AM House RES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
May 16, 2002
9:20 a.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Peggy Wilson
Representative Ken Lancaster
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 41
Proposing an amendment to the Constitution of the State of
Alaska relating to providing for priorities for and among
subsistence uses in the allocation of fish, wildlife, and other
renewable resources.
- HEARD AND HELD
PREVIOUS ACTION
BILL: HJR 41
SHORT TITLE:CONST. AM: PRIORITY FOR SUBSISTENCE USES
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/15/02 2279 (H) READ THE FIRST TIME -
REFERRALS
02/15/02 2279 (H) RES, JUD, FIN
02/15/02 2279 (H) FN1: (GOV)
02/15/02 2279 (H) GOVERNOR'S TRANSMITTAL LETTER
02/15/02 2279 (H) REFERRED TO RESOURCES
03/27/02 (H) RES AT 1:00 PM CAPITOL 124
03/27/02 (H) -- Meeting Postponed to
4/5/02 --
04/05/02 (H) RES AT 1:00 PM CAPITOL 124
04/05/02 (H) Heard & Held
04/05/02 (H) MINUTE(RES)
05/15/02 (H) MINUTE(RES)
05/16/02 (H) RES AT 9:00 AM CAPITOL 124
WITNESS REGISTER
SENATOR JERRY WARD
Alaska State Legislature
Capitol Building, Room 423
Juneau, Alaska 99801
POSITION STATEMENT: Offered proposed amendment to HJR 41.
DICK BISHOP
Alaska Outdoor Council (AOC)
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified in opposition to HJR 41.
FRANK C. WHITE, SR.
Leader, Wolf Clan;
Member, Alaska Native Brotherhood (ANB), Camp 2;
Delegate, Central Council of the Tlingit and Haida Indian Tribes
of Alaska (CCTHITA)
320 West Willoughby
Juneau, Alaska 99801
POSITION STATEMENT: During hearing on HJR 41, testified about
people's right to hunt and fish, and the necessity of that
ability in small towns where there are few jobs.
GREG ROCZICKA
P.O. Box 927
Bethel, Alaska 99559
POSITION STATEMENT: During hearing on HJR 41, testified on his
own behalf and on behalf of the Orutsararmiut Native Council;
encouraged members to look at the proposed wording offered by
Senator Ward; cautioned about attempts to amend ANILCA.
GEORGE RIDLEY
Sitka ANB Camp 1
456 Katlian Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified against provisions in [HJR] 41
because of the desire to continue what is customary and
traditional, including barter and trade.
BUDDY BROWN, President
Tanana Chiefs Conference, Inc. (TCC)
122 First Avenue, Suite 600
Fairbanks, Alaska 99701
POSITION STATEMENT: Conveyed TCC's opposition to HJR 41 and
support for a Native preference because trust in the legislature
has eroded, but spoke about including non-Native rural residents
and having co-management involving the tribes, the state, and
the federal government; emphasized a need for reconciliation on
all issues affecting Alaska Natives.
CARL ROSIER
Territorial Sportsmen, Inc.
P.O. Box 20761
Juneau, Alaska 99802
POSITION STATEMENT: Testified in opposition to HJR 41; voiced
support for subsistence for all Alaskans, and for having the
effective date of any constitutional amendment coincide with the
repeal of provisions of Title VIII of ANILCA.
PATRICK WRIGHT
P.O. Box 90386
Anchorage, Alaska 99509
POSITION STATEMENT: During hearing on HJR 41, presented letter
from the Anchorage fish and game advisory committee in
opposition to amending the constitution to comply with ANILCA;
testified on his own behalf, asking that specific sections of
the constitution not be changed, and that there be fairness.
MARGARET ROBERTS, Interim Executive Director
Alaska Inter-Tribal Council (AITC)
431 West 7th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: During hearing on HJR 41, presented AITC's
position on behalf of chairman Mike Williams that there be no
compromises to ANILCA, that customary and traditional
subsistence use be a priority, that there be a Native
preference, and that there be tribal co-management.
GLEN BIEGEL
5957 Barry Avenue
Anchorage, Alaska 99507
POSITION STATEMENT: During hearing on HJR 41, presented an
alternative proposal for resolving the subsistence issue that
doesn't require changing the constitution.
ANNA P. KATZEEK
421 West 10th
Juneau, Alaska 99801
POSITION STATEMENT: Testified during hearing on HJR 41 about
the subsistence lifestyle; spoke about the need for Natives,
both urban and rural, to have subsistence foods.
SELINA EVERSON
Alaska Native Sisterhood (ANS) Grand Camp
(No address provided)
POSITION STATEMENT: Testified during hearing on HJR 41,
indicating the governor's proposed constitutional amendment will
guide this issue in the right direction.
ALFRED McKINLEY SR.
Alaska Native Brotherhood (ANB) Grand Camp
P.O. Box 21713
Juneau, Alaska 99802
POSITION STATEMENT: Testified in support of HJR 41.
JULIE KITKA, President
Alaska Federation of Natives, Inc. (AFN)
1577 C Street, Suite 300
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in support of HJR 41 with some
amendments; expressed support for full implementation of Title
VIII of ANILCA.
CAROL DANIEL, Legal Counsel
for Alaska Federation of Natives, Inc.
8141 Alatna Avenue
Anchorage, Alaska 99507
POSITION STATEMENT: Offered that HJR 41 could work, depending
on the implementing laws; discussed concerns and suggested
amendments to comply with Title VIII of ANILCA.
PAT JACOBSON
P.O. Box 8707
Kodiak, Alaska 99615
POSITION STATEMENT: Testified in opposition to HJR 41;
expressed concerns about equal rights and asked members to
support the Bondurant v. Norton lawsuit instead.
JAKE JACOBSON
P.O. Box 1313
Kodiak, Alaska 99615
POSITION STATEMENT: Testified in opposition to HJR 41 and asked
members to support the Bondurant v. Norton lawsuit.
EILEEN NORBERT
P.O. Box 1858
Nome, Alaska 99762
POSITION STATEMENT: Testified in support of HJR 41, suggesting
that any amendment should be to provide co-management of hunting
and fishing resources.
RAY NIELSON, JR.
208B Kogwonton Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified on HJR 41.
BILL TEGOSEAK, Executive Director
Inupiat Community of the Arctic Slope (ICAS)
P.O. Box 934
Barrow, Alaska 99723
POSITION STATEMENT: Testified in support of HJR 41.
DALE BONDURANT
31864 Moonshine Drive
Soldotna, Alaska 99669
POSITION STATEMENT: During hearing on HJR 41, emphasized his
belief in a constitutional democracy that provides equality for
everyone, and that he doesn't want the constitution changed.
MERLIN KOONOOKA
(No address provided)
Gambell, Alaska 99742
POSITION STATEMENT: During hearing on HJR 41, testified about
the subsistence lifestyle and the cost of transporting goods to
his village.
DONALD WESTLUND
P.O. Box 871
Ward Cove, Alaska 99928
POSITION STATEMENT: Testified in opposition to HJR 41 and
suggested supporting the Bondurant v. Norton lawsuit.
ROGER SMITH
P.O. Box 2473
Kodiak, Alaska 99615
POSITION STATEMENT: Testified in opposition to HJR 41;
suggested either a change in ANILCA or a supreme court decision
on the equal protection clause is needed.
JOE WILLIAMS, President
Organized Village of Saxman;
Vice Chairman, Alaska Inter-Tribal Council
R2 Box 2
Ketchikan, Alaska 99901
POSITION STATEMENT: Testified during hearing on HJR 41,
speaking against further compromises and asking where the
equality is in the schools, roads, and police protection in
rural Alaska.
TOM DOOLEY
P.O. Box 2175
Kodiak, Alaska 99615
POSITION STATEMENT: Testified in opposition to HJR 41;
expressed concern for the rights of his children and
grandchildren; suggested leaving the state constitution alone;
asked legislators to look after all Alaskans.
ACTION NARRATIVE
TAPE 02-47, SIDE A
Number 0001
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 9:20 a.m. Representatives Masek,
Scalzi, Fate, Green, Stevens, and Kapsner were present at the
call to order. Representatives Kerttula, Chenault, and McGuire
arrived as the meeting was in progress.
HJR 41-CONST. AM: PRIORITY FOR SUBSISTENCE USES
CO-CHAIR MASEK announced that the committee would take testimony
on HOUSE JOINT RESOLUTION NO. 41, Proposing an amendment to the
Constitution of the State of Alaska relating to providing for
priorities for and among subsistence uses in the allocation of
fish, wildlife, and other renewable resources. [HJR 41 had been
heard on April 5 and discussed during the committee's work group
session on subsistence on May 15.]
Number 0152
SENATOR JERRY WARD, Alaska State Legislature, came forward,
offering a proposed amendment in the form of a work draft for an
unnumbered Senate joint resolution labeled 22-LS1693\L,
Utermohle, 4/18/02, which read:
Proposing an amendment to the Constitution of the
State of Alaska relating to subsistence use of fish
and wildlife.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF
ALASKA:
* Section 1. Article VIII, Constitution of the
State of Alaska, is amended by adding a new section to
read:
Section 19. Subsistence Use of Fish and
Wildlife. The legislature may provide a
preference to residents to take a fish or
wildlife population for subsistence use when the
harvestable surplus of the fish or wildlife
population is not sufficient to provide for all
beneficial uses of the fish or wildlife
population. The preference shall be accorded to
residents who reside in the vicinity of the fish
or wildlife population and have customarily and
traditionally used the fish or wildlife
population in a rural area for subsistence.
* Sec. 2. The amendment proposed by this resolution
shall be placed before the voters of the state at the
next general election in conformity with art. XIII,
sec. 1, Constitution of the State of Alaska, and the
election laws of the state.
CO-CHAIR MASEK called an at ease at 9:23 a.m. and called the
meeting back to order at 9:24 a.m.
Number 0291
SENATOR WARD remarked that as urban Native legislators, he and
Co-Chair Masek, who had discussed this amendment previously,
have been at odds with some other Native people over this issue.
He also said he has been approached by U.S. Senators Ted Stevens
and Frank Murkowski, Congressman Don Young, Governor Tony
Knowles, and Lieutenant Governor Fran Ulmer, all who said, "Find
an Alaska solution." Senator Ward told members he has spent a
lot of time trying to do so. Acknowledging that this is
delicate ground, he said that according to the 2000 census,
62,646 rural Alaska Natives qualify for subsistence, and 35,243
urban Natives do not.
Number 0544
SENATOR WARD talked about divisions among people and said this
is not about dividing; he acknowledged it perhaps won't make
everyone happy, either. He noted that at both an [Alaska]
Outdoor Council meeting and at AFN [Alaska Federation of
Natives], people promoted the same language: subsistence is a
God-given right and is the highest priority for fish and game.
He explained, "That's the basis of my amendment. My own
personal view is that if you catch a fish to eat it, you have a
priority over anybody who catches a fish to sell it." He noted
that the basis of his proposal is not to manage people, but to
manage a resource, with a local priority triggered during a time
of shortage.
Number 0739
SENATOR WARD told members that in the four and a half years he
and [Co-Chair Masek] have been working on this, not one
legislator has stated opposition to somebody's living off the
land. He said if someone lives in an area and there starts to
be not enough to go around, then anybody who lives off the land
and has lived off the land should get "first crack at it," which
is what his proposal does.
SENATOR WARD urged members to look for the positive aspects of
the proposal and to find areas of commonsense agreement for "an
Alaska solution"; he suggested it has a real possibility of
working. He pointed out that this proposal contains ideas from
others including Representative Dyson, [Senator] Halford;
[former governor] Jay Hammond, and the late Don Bennett. He
said:
This is ... kind of a combination of ... my life,
being a Republican legislator and also being an Alaska
Native and, foremost, being an Alaskan, and
understanding one overriding principle: ... I'm Alaska
Native. Nobody in this world will ever discriminate
against me; I will not allow it to happen, and I will
not allow anybody to discriminate against anybody
else. I have a God-given right to subsistence. And
so does [Representative] Mary Kapsner.
Number 0937
SENATOR WARD asked that members not start by thinking of changes
to his proposed wording, but by thinking whether this is
something all sides can live with, and whether any dispute can
be resolved in the statutes themselves. He expressed
appreciation to Co-Chair Masek for taking this stand, as well,
on equal rights for all Alaskans. He concluded by saying he was
willing to compromise in order to reach a solution, but not to
compromise his moral values. He offered his belief that this
proposal doesn't compromise anybody's moral values.
Number 1302
REPRESENTATIVE GREEN suggested hearing from testifiers and then
reading the proposal, at which point it would make more sense.
He asked whether Senator Ward would return to answer questions
after testimony was heard in the upcoming special session.
SENATOR WARD answered in the affirmative. He noted that he and
Co-Chair Masek were the only people who had seen the proposed
amendment.
Number 1383
REPRESENTATIVE FATE thanked Senator Ward, mentioning that his
own wife is an urban Native who has dealt with this for many
years. He also paid tribute to Bill Hager (ph), recently
deceased, who he said was one of the driving forces behind this
issue.
SENATOR WARD indicated Mr. Hager, whom he knew, was on the
Alaska Outdoor Council and believed subsistence is a God-given
right. Senator Ward remarked, "That's our common thread we have
to have; he also agreed, if you catch a fish to eat it, you
[have] a priority over anybody that catches a fish to sell it.
It's the highest priority."
Number 1516
DICK BISHOP, Alaska Outdoor Council (AOC), testified that he
lives just outside Fairbanks "in a rural setting but in an urban
area" and therefore wouldn't qualify for a subsistence priority
under HJR 41; he said that describes the basic problem with this
proposition. Mr. Bishop said [HJR 41], like the federal law to
which it is designed to conform, "discriminates among Alaskans,
and does so unfairly." He offered his belief that the priority
is in effect all the time, not just when there is a shortage,
because it is in effect whenever there are restrictions or
regulations. As a biologist, he said, it is clear to him that
"regulations are there to enable management on a sustained yield
principle and avoid shortage," and that they are rarely in
reaction to shortage. He said:
It's also not based on a need for the resources, a
dependence on the resources, a lifestyle that is
living off the land, as Senator Ward referred to,
which really does, in a thumbnail, summarize it.
There's no relationship in the federal law or in HJR
41 that ties it to the dependence on those resources
for one's livelihood or lifestyle.
Number 1606
MR. BISHOP addressed what he said would be imposed on all
Alaskans by [HJR 41]. At its most basic level, he said, it
violates all Alaskans' civil rights and establishes "two and a
half classifications of Alaskans: the 'haves' who will get a
rural priority; the 'half-haves' who may get a [lesser] priority
[if] they live in an urban area, according to this proposition,
and if they have the right background ...; and then there's the
larger number that will receive no priority at all." He
continued:
One of the questions is whether there needs to be a
priority at all in order to accommodate subsistence
uses. I would point out to you that until 1978 there
was no subsistence law in the State of Alaska, and it
is a tribute to Alaska Natives that they ... have
succeeded in maintaining and perpetuating their
cultures. And I think that is a tribute to the really
important part ... of sustaining and perpetuating
cultures, and that is, it really depends on the values
that people place on that culture. I would ...
discourage the legislature ... from accepting the
challenge to pass a law which is presumed to ensure
the survival of a culture, because you can't pass a
law that will ... provide that guarantee.
A couple of years ago, three years ago, in testimony,
I believe, to this committee - maybe it was longer ago
- the president of AFN said that no law would be
acceptable to AFN if it didn't guarantee the survival
of their communities and cultures. And ... I
encourage you to examine ... that challenge very
carefully and, again, do not be deceived that you can
pass a law that will guarantee the survival of
communities and cultures. There isn't such a law.
Number 1758
MR. BISHOP continued:
I would like to point out that ... HJR 41 is a unique
proposition in that it's the first time, to the best
of my knowledge, that anywhere in Alaska's
constitution ... there is special recognition of a
policy by the state to a particular racial group of
Alaskans. I think that's totally inappropriate. It
says that the state policy will be to recognize the
subsistence tradition of indigenous peoples of Alaska.
My question is, if this is not ... a tilted treatment,
and if it is intended to sustain the subsistence
lifestyle and subsistence uses, why should it not
recognize the subsistence traditions of all Alaskans?
If it's going to recognize and ... provide for the
perpetuation of subsistence, let it recognize the
subsistence traditions of all Alaskans. And as
Senator Ward said, we do share those values.
You'll find, if you look in the uncodified ...
statutes of the State of Alaska, that there are
findings from 1992 that discuss and describe those
shared values among various people in Alaska of all
extractions and all backgrounds, that say these are
shared values that have to do with the respect for the
resources and the pride ... and self-respect that
comes from providing for oneself and contributing to
your own self-sufficiency as a subsistence user. And
at that time, ... the committee that prepared that
submitted it ... to [then] Governor Hickel as part of
state law. I provided the initial draft of that
language. I urge you to look at those findings and
see if they don't express what we've been trying to
convey in reaching a solution on this issue.
Number 1868
MR. BISHOP concluded by saying [AOC] is not opposed to
subsistence uses or a subsistence priority if it deals with all
Alaskans fairly and equitably. In response to Representative
McGuire, he offered to provide the committee with a copy of the
1992 findings he'd mentioned.
Number 1934
FRANK C. WHITE, SR., Leader, Wolf Clan; Member, Alaska Native
Brotherhood (ANB), Camp 2; Delegate, Central Council of the
Tlingit and Haida Indian Tribes of Alaska (CCTHITA), testified
that he'd received an honorable discharge from the U.S. Marine
Corps in 1963 after graduating from Mount Edgecumbe High School
in 1955. He indicated his people came out of Glacier Bay with
the other three main tribes pushed from there during the Small
Ice Age some 9,000 years ago; until about 1600 or 1700, when
Europeans arrived along with their diseases, they numbered in
the thousands.
MR. WHITE emphasized that his primary food, perhaps 90 percent,
has been from living off the land; he cited seal and deer meat
as examples. Some food, put aside for potlatches in memory of
loved ones, he characterized as spiritual food, especially when
it comes out of Glacier Bay and then is provided to the elders
first, followed by those with big families; what remains after
sharing with the foregoing is for the general population, he
explained. If the food comes from Glacier Bay, it is spiritual
because they are eating the same foods their ancestors ate, and
those who are given foods from the homeland are especially
grateful because of where the food comes from.
Number 2190
MR. WHITE noted that food has been obtained from the whole of
Icy Strait - in Tlingit called "the big dish" because of the
ability to get any kind of food there. He said the entire town
of Hoonah depended on the Inian Islands for fish, especially,
but that is no longer true because the area was closed "without
representation." He pointed out that the grocery store was a
source of salt, sugar, rice, and flour.
MR. WHITE questioned comparing small villages with big towns;
for example, there are only 20 or 30 people in a village who
have jobs, whereas the rest need to live off the land. That is
why people come to the big cities looking for jobs, he noted.
Before the Europeans arrived, he said, his people survived over
10,000 years without welfare; he mentioned an archaeologist who
had dug up artifacts at Home Shore dating to after the Small Ice
Age. He concluded with the following story:
There was an elder who was gaffing fish with ... a
ten-foot-long gaff hook. And while in the process of
doing this [someone from the Alaska Department of]
Fish and Game came up to him and asked him for his
permit. He said, "Before I show you mine, you go
around that bend of the river there, and you ask my
brother there ... for his permit." That fish and game
[person] ran ... around the bend, and he come running
right back down, and he was running fast. ... And
there was a bear walking behind him. He ran all the
way to his boat.
We have the same right as that bear of living off the
land. That's the [moral] of that story. ... I'd like
to echo Senator Ward's comment about a God-given
right. And that's our God-given right.
Number 2434
REPRESENTATIVE McGUIRE noted that she lives in an urban area,
but her father moved from Oregon to Alaska because he loves to
be outside and to hunt and fish; she said their freezer is full
of fish and game to eat during winter, and that her father has
felt passionate about his ability to live off the land. She
asked, "Where do we place people like my father, or people who
live in my district who have chosen to live in a city, but in
their hearts and in their roots, they, too, want to live off the
land and want to continue to do that, and that's the reason why
they chose to come to Alaska in the early days, to be a part of
this great land?"
MR. WHITE replied:
Well, there's a lot of Caucasians living among us, and
they have the same rights as we do to live off the
land, because it is God-given, whether you live ... in
a big city or ... in a small town. But the small
towns, we totally - over half ... or three-quarters -
really depend on this, more than the big cities,
because ... there's jobs in the big cities. There's
not enough jobs in the small towns.
Number 2580
GREG ROCZICKA, representing himself and the Orutsararmiut Native
Council (ONC), testified that he has wrestled with this issue
for 20-some years and spent two terms on the Board of Game, a
portion as chairman. He said he'd struggled and failed,
throughout the years, in finding a logic to his being able to
use game populations on the Koyukuk River or the Copper River,
or to take Sitka black-tailed deer; he has no dependence on
those. Rather, his dependence is on the Kuskokwim drainage. He
encouraged members to look at what Senator Ward had proposed.
MR. ROCZICKA said that since the McDowell decision, the state
has been in an unworkable situation, exacerbated by
administration over the last decade that hasn't pursued
management for sustained yield. He indicated management should
be for Tier II, for shortage. He said:
Earlier this week, I was at federal subsistence board
meetings, and I have to tell you, frankly, that they
frighten me. There's ... no onus on them to manage
for the resource or try to come up with some kind of a
scheme or ... a management structure that can provide
and balance for the most users possible. Their switch
is either on or off; ... there's no in-between.
They're also, given the nature of their appointment
for sitting on their seats, they're essentially
division heads, and they're under directive out of
Washington, D.C.; it comes down through the Department
of Interior. You've got the head of the BLM [Bureau
of Land Management]; you've got the head of the
[National] Park Service; you've got the BIA [Bureau of
Indian Affairs]; the [U.S.] Fish and Wildlife Service;
and the [U.S.] Forest Service. And it's a quasi-
military regime.
MR. ROCZICKA cautioned against changing Title VIII of ANILCA
[Alaska National Interest Lands Conservation Act], which at the
beginning says that "this is in response, to ... address the
obligations that were left unfulfilled by ANCSA [Alaska Native
Claims Settlement Act] when aboriginal hunting and fishing
rights were extinguished." He expressed concern that lessening
that priority would be asking people to open up ANCSA again,
which he suggested the Native community perhaps would be happy
to renegotiate.
Number 2909
GEORGE RIDLEY, Sitka ANB Camp 1, testified before the committee,
noting that he is a Raven from the Tongass tribe. He said,
"We're not in favor of [HJR] 41 in that we would like to see the
customary and traditional ways carried on; along with that would
be the barter and trade...." He said subsistence is such a
small portion of the fish or any kind of harvesting; he
mentioned gathering food for oneself, one's family, and one's
community, as is done in Sitka with giving to the elders, for
example.
TAPE 02-47, SIDE B
Number 2989
MR. RIDLEY noted that coastal people say that when the tide goes
out, the table is set. He expressed hope that it would continue
as it is. He said the food, gathering, language, and customs
all go together, and that this is a small but very important
part of the customary and traditional way of life. He expressed
hope that the legislature would come to "a fair and equitable
consensus" on this.
Number 2874
BUDDY BROWN, President, Tanana Chiefs Conference, Inc. (TCC),
testified on behalf of the 42 member tribes of TCC, as well as
the 16 (indisc.) predominantly Athabascan Indians "that are in
our territory." He offered TCC's current position of wanting to
press for a Native preference, "whereas before we had been much
more part of the process, working with the governor, working
[with] various members of the legislature, where we had gone
along with a rural preference." He explained:
Because of some of the decisions and some of the
attitudes that have been directed at us and at our
areas, it's forced us to really start to protect
ourselves. And I appreciate the comment from
Representative Green yesterday pointing out that the
Native way of life, the Native culture, really is a
vulnerable one. And it is. It's an open way of life,
that we have essentially opened our arms to the rest
of Alaska, and those who wish to come to Alaska to
live here, to participate in our way of life. ...
We are now in a position, though, where we're having
to sort of protect ourselves to preserve our way of
life because of that vulnerability. And as a part of
that, we are now to the point [where] our leadership
has directed me to start advocating for a Native
preference, recognizing, of course, that there are
rural non-Natives who choose to live in our
communities that also deserve our protections, so that
they would be a part of a scheme of things that we
would like to put in place.
And another component would be co-management between
the tribes, the state, and the federal government.
Currently, we are engaging in some federal co-
management between the ... tribal governments in our
area and the federal government. And I appreciate the
remarks from a previous testifier about some
discomfort with the federal system, but it's a system
that we have been living with for well over ten years
now, and with every passing year have grown more and
more accustomed to it, much more comfortable with it.
We've come to learn all the nuances with the federal
system. Yes, we do have our struggles with them, but
we've learned how to overcome those and get past those
to where we now feel much, much more comfortable with
the federal system because it has been much more
inclusive, taking input from us, allowing us to
provide input into the decision-making process, [and]
much more open to addressing our issues.
Number 2733
MR. BROWN continued:
... While we do thank the governor for his efforts, we
are at this time not in support of HJR 41. And I say
this for a reason, and let me back up a little bit, if
I may, just in closing. I think something has started
this morning, and it's really the beginning, and it's
not the end, and it's a reconciliation. And as a part
of that reconciliation, we do need to incorporate
everyone's needs, address everyone's needs, and then
address all the issues that are out there. But you
have to recognize, also, that we are talking about a
Native way of life. ... We are now talking about an
Alaska way of life, but it began as a Native way of
life.
I'd venture to say that if there were not Natives
living in Alaska, you would not be here deliberating
on this issue; we'd be deliberating on something else
- maybe sports versus commercial. But since you are
talking about subsistence, it really originated from
the Native culture. And I heard Mr. Bishop correctly
say last night to the religious leadership, at a
meeting last night, that he made a choice to
participate in that Native way of life, but
fundamentally he did point out that it's a Native way
of life that he has chosen to participate in. And
it's a system that is very open, very inclusive, and
it points to the vulnerability that I just talked
about, and the need for us to begin protecting
ourselves. But there is a reconciliation that needs
to ... begin.
Number 2666
MR. BROWN continued:
And this subsistence debate here doesn't happen in
vacuum. ... We've had a whole legislative session that
has really led us to not trust the legislature, as a
Native people, as much as we used to. ... And
unfortunately that trust has been lost. ... And until
you earn it back, it points to the need for any sort
of a mandatory constitutional amendment, if you are to
deliberate on one.
MR. BROWN, who called himself "a born and bred subsistence
person" from Huslia, emphasized subsistence as a way of life,
and that religion isn't separate but is incorporated into all
aspects and activities, all day, including the teaching of
values to children when hunting and fishing, for example. He
mentioned that the creation stories go back to the time when
people were animals, and referred back to Mr. White's story
about the elder and the bear. He said it is a way of life that
"we've opened up to the rest of Alaska, and now, unfortunately,
is in danger of no longer being a part of Alaska." He suggested
that a reconciliation process relating to all issues affecting
Alaska Natives is needed before there can be a truly "Alaska
solution."
Number 2485
CARL ROSIER, Territorial Sportsmen, Inc. (TSI), testified that
TSI is a Juneau-based sportsman's organization, a "true
conservation group" that has supported strong, hands-on
management of fish and game resources since 1945; with about
1,200 members, it is active statewide on fish and game issues.
He stated:
We support this concept of protecting subsistence uses
for all Alaskans. We strongly oppose ... the
governor's proposed solution to the subsistence
crisis, on the basis [that] the proposal will extend
bad federal law, which currently only applies to
federal lands, to include all state and private lands
and waters, including all navigable waters. Federal
court jurisdiction, which now only applies to federal
lands, ... would be extended to all state and private
lands and waters, including all navigable waters.
MR. ROSIER said [HJR 41] permanently modifies the most basic
principles of the state constitution - equal protection and
common use of the resources - with no guarantee ANILCA will be
changed. Simply amending the constitution won't return state
management. Rather than solving the "urban-rural crisis," he
said, [HJR 41] further divides Alaskans through an arbitrary
standard, with some users becoming third-class citizens; it also
discriminates against many Alaskans who have cultural ties to
resources, including Natives and non-Natives. He asked the
committee to keep in mind that those promoting HJR 41 are the
same people "who promised to appeal the Katie [John] case to
finality."
MR. ROSIER offered a basic tenet, that if there is to be a
change in the constitution, the effective date must coincide
with the removal of "the discriminatory provisions of Title VIII
of ANILCA that [have] created this mess that we're in here
today." He quoted from an unspecified source, questioning
whether the return of state management would allow more
protection for the interests of non-Native urban hunters and
fishermen; federal law will still be supreme, he said, and the
state might have to correct any action if it strays [according
to federal law], or might have to give management back to the
federal government. He also suggested that modifying the
constitution will cause people to give up "a number of our basic
human rights." He indicated HJR 41 doesn't even come close to
meeting the requirements for a long-term, workable solution.
Number 2186
PATRICK WRIGHT testified before the committee, saying he was
speaking on his own behalf, but noting that he serves as an
elected member on one of the 80-some local fish and game
advisory committees statewide. He read the following letter to
legislators, signed by the chairman of the advisory committee:
The Anchorage fish and game advisory committee
requests that you protect individual civil liberties
in our Alaska constitution. Therefore, this advisory
committee asks that you represent all Alaskans
equally, and do not promote any constitutional
amendment that would diminish those civil liberties
for access to fish or wildlife. We do not support
amending the Alaska constitution to comply with the
Alaska National Interest Lands Conservation Act. Our
position was taken by unanimous vote in the January
15, 2002, meeting of the Anchorage fish and game
advisory committee.
MR. WRIGHT offered his own testimony as follows:
Now, I'm here today to tell you that Alaska has a
model constitution. Specifically, I'm saying not to
change these sections: Inherent Rights section, Due
Process section, the Common Use section, Sustained
Yield section, No Exclusive Right of Fishery section,
and Uniform Application section. I'm also asking you
to champion states' rights, because I'm confident that
we, as Alaskans, can be good stewards through our open
public regulatory process in adjusting seasons, bag
limits, and methods and means. Let's maintain a
fairness for all, and leave a legacy that will not
fractionalize or hamper future generations. It's an
Alaskan heritage.
Number 2060
MARGARET ROBERTS, Interim Executive Director, Alaska Inter-
Tribal Council (AITC), noting that AITC is composed of 189
federally recognized tribes within Alaska, informed the
committee that she was presenting the position [of AITC] for
chairman Mike Williams, who was unable to attend. She said AITC
applauds the efforts of Governor Knowles to resolve the issue,
but nevertheless has stood firm for ten years in its position
that there not be any compromises to ANILCA, that customary and
traditional subsistence use be a priority, that there be a
Native preference, and that there be "tribal co-management."
She offered [Resolution 2002-03] from AITC, which had passed
three days before.
MS. ROBERTS told members that the tribes in Alaska have come a
long way in working with the state through the Knowles
Administration; she said the Millennium Agreement has really
been working. She suggested the state could have doing a lot
more for [the people] instead of spending so much on lawsuits
fighting subsistence. She stated hope that the legislature
would resolve the issue, but said, "Whether you do this year or
next year, Alaska Natives will continue to hunt and fish, and we
will continue to work on our efforts for tribal co-management."
Number 1701
GLEN BIEGEL testified before the committee, presenting an eight-
page alternative to HJR 41 [titled "Solution to subsistence in
Alaska"] and a one-page synopsis [titled "Solution to fishing
subsistence in Alaska"]. Acknowledging that his proposal
contains new ideas and doesn't change the constitution, he
highlighted the goals: guarantee access to fish for all
Alaskans; provide for a subsistence preference; provide a
preference for the poor; provide for personal and community
charity, and for community-to-community partnerships; forge
legislative priorities; and minimize impact on commercial and
sports fishing.
CO-CHAIR MASEK called an at-ease at 10:36 a.m. to distribute
copies. She called the meeting back to order at 10:49 a.m.
Number 1591
MR. BIEGEL, noting that he is from Anchorage, told members his
proposal is that every Alaskan be eligible to claim an allotment
of fish, with the ability to do one of four things: claim a
subsistence allotment; claim a recreational allotment; transfer
the allotment to a nonprofit; or return the allotment to the
state to be managed as directed by the legislature. He offered
his expectation that nonprofit groups will form community-to-
community partnerships to provide for additional subsistence
needs in times of shortage; nonprofits may also distribute fish
directly to the poor. The state-managed "pool" will be
distributed to subsistence users, the poor, and sports
fishermen, and finally be returned to the commercial pool once
all public-use needs are met.
MR. BIEGEL, noting that the current split is about 98 percent
for commercial uses and 2 percent for "other public uses,"
estimated that the amount of fish to be split up in this
allotment would be no more than 5 percent of the total. The
commercial fish allocation wouldn't lose out except in times of
shortage. He pointed out that the written document contains
questions and answers; he said Rynnieva Moss [staff to
Representative Coghill] was assisting him in getting it written
as a bill. Reiterating that it doesn't change the constitution,
he said he'd heard that it might not even require a law, but
perhaps can be implemented through regulation.
MR. BIEGEL offered his belief that providing a preference for
the poor is critical in any solution. He also suggested his
plan can be used to manage all renewable resources. For fish,
he pointed out, allocation between commercial and public use is
at issue; for other renewable resources such as big game, there
is always a shortage, he said, but in this case, the preference
for subsistence "would be greater than that for fish under this
plan." He noted that he'd talked to Representative Fate about
this briefly, and said he would appreciate any further
discussion or getting this alternative into bill form.
Number 1353
REPRESENTATIVE GREEN remarked that this has a possibility to
answer not only the subsistence problem, but also the
commercial-private use [dispute]. He asked Mr. Biegel whether
he has addressed the fact that the time during which a school of
fish passes a particular area might last only a day or two.
MR. BIEGEL answered:
When you form a community-to-community partnership,
you're going to have peaks and valleys of takings that
go on all over the state. And, really, the formation
of those partnerships between people who have a much
larger spread and people who are very dependent on a
local resource is going to help spread out and address
those shortages, because the shortages that we're
talking about will be very brief, in general, and
they'll be very localized for any subsistence shortage
that goes on. ... What will help in addressing that is
by having a different community which can also provide
resources - [that] you have a partnership with, to
help you with providing that subsistence resource -
you're going to have a better chance at smoothing
those peaks and valleys in your [takings], and getting
you what you need to get through the winter, and
getting the takings that you require.
Number 1257
REPRESENTATIVE GREEN asked whether that would be triggered by
[the Alaska Department of Fish and Game], what the trigger would
be, and whether it would only relate to a stock in a certain
area, rather than being statewide.
MR. BIEGEL answered:
Shortages would occur just in a local area, ... here
and there. And ... I'm not proposing changing the
management. I want the resource maximally allocated.
We don't want escapement to exceed what it needs to
be, and that should be a goal of any plan that
addresses subsistence. We don't want to waste fish
... or any game.
Number 1218
REPRESENTATIVE KAPSNER said:
This is a really intriguing idea, Mr. Biegel. I was
just wondering: the litmus test for all of the
proposals that are before us is whether or not it's in
compliance with ANILCA. And one of the benefits that
other proposals have had is that they've been in the
hopper all session, and many of the sponsors have had
a chance to talk to Drue Pearce in the Secretary of
the Interior's office, and their solicitors have
looked at them to see if it's in compliance with
ANILCA. I was wondering if you've done that.
MR. BIEGEL reiterated that he isn't proposing a constitutional
amendment and added:
I think our constitution will survive a court test,
but I'm willing to take whatever the courts say on
that whenever it is tested. So this solution is a
solution to the Alaskan problem. If the feds, indeed,
can force us to change our constitution, although it's
a related issue, it's an issue I think we should
fight. I think that this state has a responsibility
to fight for its right to take care of its citizens in
the way it sees fit. ... And [Representative] Fate has
a lot of the ideas and court citings, and so on and so
forth, relating to that. ... I'm not an expert on law,
haven't talked to anybody about this, and I'm not
trying to answer ANILCA. To me, I think ANILCA does
not survive the court challenge if it's taken to the
[U.S.] Supreme Court.
REPRESENTATIVE KAPSNER said the whole idea is to get state
management back.
Number 1052
CO-CHAIR MASEK announced at 10:58 that the committee would
recess to a call of the chair in order to attend the House floor
session. She apologized for not yet getting to the testifiers
waiting on teleconference.
[End of this tape; no testimony is missing.]
TAPE 02-48, SIDE A
Number 0001
CO-CHAIR MASEK reconvened the House Resources Standing Committee
meeting at 2:15 p.m. Members present at the call back to order
were Representatives Masek, Fate, Kerttula, Kapsner, Stevens,
McGuire, and Green; Representatives Scalzi and Chenault rejoined
the meeting as it was in progress.
Number 0134
ANNA P. KATZEEK testified that she is Tlingit and belongs to the
Thunderbird Clan of Klukwan in Haines, where she grew up.
Speaking of her cultural upbringing, she said the Tlingit people
had respect for the salmon; for the land, which provided trees
that enabled them to have houses; and for every living thing.
Noting that she teaches Tlingit language and cultural stories,
she pointed out that most cultural stories are character
building - "counseling with the little ones." She emphasized
respect for the salmon and animals, citing stories relating how
an animal can hear a person hunting it in the woods, for
example, or noting that her father would speak in Tlingit to the
salmon: "It is so nice of you wanting to come to us so we could
have a portion of you."
MS. KATZEEK spoke about the need for quiet on the lakes because
of the tiny, young salmon, which will return after going out to
sea; she recalled how her father took her to Chilkoot Lake for
sockeye salmon and taught her to paddle slowly so as not to
disturb the young fish. Today, however, [floatplanes] land and
outboard motors are used on the lake; she said it has brought
tears to her eyes as she thinks of the effect on the young
salmon, which she fears may disappear. She emphasized respect
for the animals and the food, not taking more than is needed,
and sharing with those people who cannot get their own food.
Stressing that culture is a way of life, and that "subsistence
is the way of our culture," she concluded by saying:
No matter how rich we are, we're still going to be
hungry ... for our foods. ... The urban people, the
urban Natives, should also have a right to it. And
because I said "Natives" ... you say it's racial.
Can't help it - it was our Native food. ... We can't
help but hunger for those things, and that's what I'm
here for. And, like I say, I'm representing the
senior citizens and the future generation.
CO-CHAIR MASEK noted the presence of Representatives Wilson and
Lancaster.
Number 1046
SELINA EVERSON, Alaska Native Sisterhood (ANS) Grand Camp, came
forward to testify. She told members her subsistence lifestyle
doesn't depend on how much money she has in the bank, or where
she lives. "It is who I am," she said, noting that Natives have
lived off the renewable resources of the land for thousands of
years. She said:
We are not here to demand the whole pie. We are
simply asking for your understanding, your knowledge,
your compassion for the subsistence lifestyle of the
rural Natives, of Alaskans everywhere. You may not be
able to legislate our survival or my survival as a
person. By the same token, you cannot legislate my
subsistence lifestyle out of existence. As long as we
are alive, the generations following us will wonder
what we did to defend and protect our lifestyle.
Subsistence is an integral part of our existence.
Number 1248
MS. EVERSON indicated the governor's constitutional amendment
will guide this issue in the right direction; she urged
legislators to do so. Noting that the constitution is made "to
defend us," she concluded, "By the same token, you have to
defend the Native people under the Constitution of the State of
Alaska. Let history remember you, your understanding, your
fairness as you debate and decide where the subsistence issue
will go."
Number 1351
ALFRED McKINLEY SR., Alaska Native Brotherhood (ANB) Grand Camp,
testified in support of [HJR 41]. He told members he was born
in Hoonah and raised there and in Excursion Inlet, where he and
his parents lived off the land and got king salmon; they also
got mountain goats from Glacier Bay, although that is now
forbidden. Mr. McKinley said he is also an executive committee
member of the ANB and a delegate to the central council
[CCTHITA]. Referring to testimony the previous day about equal
rights, he said he'd served in the armed forces against his
will; he asked how equal that is. He also referred to
appropriation bills passed [by the legislature] and asked
whether there is discrimination against rural communities that,
to his belief, get hardly any money, although they need money
for schools.
Number 1646
MR. McKINLEY referred to ANCSA. Saying ANILCA is the law of the
land, he mentioned resolutions from the ANB Grand Camp and the
CCTHITA that state the position of no compromise and no
amendment with regard to ANILCA. He said, "We're only going to
move forward ... [and not] backwards." He said the fight is for
2 percent for subsistence. He referred to statistics that 1
percent [of fish is allocated] for sports, and 97 percent for
commercial fishermen. He indicated that according to testimony
about priorities, however, subsistence is supposed to be on the
top, with sports second and commercial fishermen last.
MR. McKINLEY mentioned the construction industry, jobs in
offices, discrimination, and that his people aren't working. He
suggested the law in 1978 was a good one, although unfortunately
the Alaska Supreme Court cited the wrong record, making only one
reference to the state constitution. He remarked, "Our people
voted for statehood so that they can manage their own resources
in Alaska and elect our own [legislators]. ... But here we are
today: now we're going backwards again." He expressed hope
that legislators would support [HJR] 41 and let the citizens of
Alaska vote on this issue. He pointed out that the recent
[advisory] vote in Anchorage was in favor of letting the people
vote on it.
Number 2201
JULIE KITKA, President, Alaska Federation of Natives, Inc.
(AFN), came forward to testify, accompanied by AFN's in-house
counsel, Carol Daniel. She urged legislators to ensure maximum
involvement and participation from people around the state,
including participation via teleconference. She said many
people hadn't come to Juneau [for this hearing] because of
discouragement about how long this conflict has gone on, but
that if there were a show of a good-faith effort by the
legislature, those people would weigh in.
MS. KITKA referred to a 13-page document, "Requirements for
State Re-assumption of Subsistence Management on the Public
Lands." Calling it "our best analysis of what needs to be done
in order for the state to regain management," she urged
legislators to look at this point-by-point legal analysis and
have their own counsel review it. She said it isn't the
solution, but is the "parameters of the universe of how to solve
this." Referring to proposals and ideas presented by Senator
Ward and others, she suggested AFN's document would help in
determining whether to move forward with those.
Number 2520
MS. KITKA suggested Alaskans are stuck in a conflict that has
its roots in a gross misunderstanding among peoples, topped with
layers of political agendas and so forth over the years. She
urged a nonpartisan approach in trying to reach a resolution and
move forward as a state. She discussed three aspects of the
gulf among peoples. First, she said, this is a life-and-death
issue for Alaska Native people; it is at the heart of Native
culture and the way of life, which they will do everything they
can to protect for the next generation. She urged legislators
to make a conscious effort to understand, and she remarked,
"Many of our people are highly offended how politicized a
subsistence way of life has become, and feel like what they have
been passed on by their parents and grandparents is just being
tossed around lightly."
MS. KITKA next discussed miscommunication about what people
aspire to. She told members, "Native people are not aspiring to
have all the fish and game; as Al McKinley Sr. mentioned
earlier, we're only talking about 2 percent of the resources."
She said it doesn't make sense for it to be so difficult an
issue to resolve, and to put in place protections in the
constitution, statutes, and regulations for this way of life.
Third, she mentioned the range of options, suggesting that
sometimes people get stuck in ruts, partly because of
miscommunication.
Number 2923
CO-CHAIR MASEK clarified that the 2 percent refers to fish, not
game at this time.
MS. KITKA noted that Mary Pete [Director, Division of
Subsistence, ADF&G] had put together a very good briefing on how
much of the resource is being talked about, and that ADF&G has
detailed village-by-village [statistics] with regard to the
poundage of wild game that people depend upon, as well as
statistics on fish. She indicated the statistics aren't perfect
because of budgetary problems, but emphasized that there is hard
data for the committee to use.
MS. KITKA pointed out that the State of Alaska is a recent form
of government in Alaska, whereas people have been here thousands
of years. She suggested reflecting on Article XII, Section 12,
of the state constitution and asking what it means that the
Native people are "not to be disturbed in their fishing." She
said people have been reflecting on the McDowell decision, but
not reflecting about other commitments in the constitution, and
to see whether the state, in good faith, is honoring those. Ms.
Kitka said she would be very interested in the legislature's
response on that.
Number 3237
MS. KITKA urged new members, especially, to review the statement
of policy preceding the beginning of Title VIII of ANILCA, with
regard to what Congress intended Title VIII to do. She noted
that at statehood Alaska had about 225,000 people; based on
talking with people involved in the constitutional convention at
that time, she said, there wasn't a lot of concern about impacts
on subsistence hunters and fishermen because of the low
population. However, increased population and competition for
resources now drive this issue. She urged reflection on Native
peoples' needs for certainty in the legal framework - both in
the state constitution and in statutes - that their way of life
will be protected permanently.
Number 3424
MS. KITKA offered her understanding that in part Congress
enacted Title VIII of ANILCA because Alaska Natives are
virtually the only indigenous peoples in the U.S. still living
on their lands that haven't been forcibly removed to
reservations. She said this recognizes a national interest in
continuing this way of life and these land-based cultures, and
she characterized the way of life as a national treasure. She
mentioned participating in the national arena, including a U.S.
Senate Committee on Indian Affairs oversight hearing on
subsistence hunting and fishing. She explained:
They held that at our urging because we urged them to
take a look at how people are doing on the ground in
our communities, how are people being impacted by the
fish shortages, how [is] their way of life being
impacted by this continuing conflict between the
state, the state legislature, and all this - what is
happening on the ground. ...
The second reason we asked them to hold the hearing is
the Native people have not, over these years, just sat
on the sidelines as the state has dealt with this
conflict; we have continually put forward ideas and
suggestions on ... ways to resolve that. And in that
congressional hearing, we laid out a number of
different ways that this conflict can get resolved,
different components that would strengthen the state's
management of fish and game, ... proposals such as the
co-management, which is what is on the leading edge in
fish and game management across the Arctic in Canada
and other places, on that.
Number 3675
MS. KITKA said although co-management is treated as unusual in
Alaska, where there are 200-plus villages, it is a well-accepted
practice of involving the local people and their way of life in
management in Canada, where there are more than 1,000 villages.
She told members:
We believe that as you look at the pieces of bringing
together a resolution of this conflict, ... co-
management will come right to the forefront as one of
those pieces that need to be adopted by the state and
implemented in the solution. It's not the only
solution, but it's a very important component if ...
you believe in devolving government and involving
people at the most local level; that's what you have
to look [at] in terms of co-management, is that it is
... involving the people most affected by this,
involved at the most local level, and involving things
that affect their lives. And I urge you to consider
that when you look at the mix of things as far as
bringing resolution to this.
Number 3790
MS. KITKA requested inclusion in the record of the document
mentioned earlier, "Requirements for State Re-assumption of
Subsistence Management on the Public Lands." She offered the
belief that the conflict is way beyond just regaining
management, and is about protecting the traditional way of life.
However, many people have been working toward regaining state
management, she noted, adding, "This is our analysis of what it
takes. ... If you disagree with it or if your counsel disagrees
with it, we'd sure like to know, but ... that's our best
thinking, and I think that you'll find it very helpful."
Number 3938
MS. KITKA turned attention to HJR 41, noting that AFN had
participated in good faith in the governor's subsistence summit.
She expressed appreciation for observations from the churches
and the religious community, especially, which recognized that
they have a fundamental interest in protecting the subsistence
way of life on moral grounds, human rights grounds, and
religious freedom grounds. She said although not everyone
agreed during the summit, it was constructive; she pointed out a
new development, saying one of the most surprising and pleasing
agreements was a recognition that co-management had to be a
piece of this resolution.
MS. KITKA offered her preference for having all the pieces on
the table - a constitutional amendment, a statute, and
regulatory changes - so people can see what they are getting
into. She noted, however, that only one component was addressed
by the drafting committee appointed by the governor. She
suggested this will be easier to resolve for the long term with
all pieces viewed at once, but acknowledged it might not be
possible because drafting statutes takes a lot of time. She
explained:
When you deal with constitutional amendment language,
some of the words and terms are so vague that they
mean different things to different people, or they're
undefined on that, and state statutes is the only way
you're going to give people an idea of what you really
mean by that, and what you're intending to do. And,
again, to pull people together to have consensus on
that, resolve that, you need that type of work and
that type of specificity in order to move forward. ...
Most of the different groups, from our experience on
that, would be very hesitant on signing on to
something in which there were so many ... unknown
blocks, and what that meant.
Number 4243
MS. KITKA told members AFN supports [HJR 41] with some
amendments because of perceived gaps. She said, "We have, in
fact, drafted some amendments which we think will strengthen
that proposal on that. And so, we would urge that you consider
looking at that constitutional amendment as a possible part of
... the solution." She offered to discuss the proposed
amendments, but said:
Basically, the bottom line of our position is, we're
in full support of the full implementation of Title
VIII of ANILCA, both the spirit and the letter of the
law, and we'll be looking at any solutions and
determining our positions on any solutions based on
whether or not it fulfills the spirit and the intent
... of that law.
And then the secondary thing we'll be looking at is,
how will it actually impact people on the ground? ...
Our people have tried to make the state system work
for years and years; in areas in which we've not been
able to make it work, we've been involved in court
cases and trying to litigate different aspects, to try
to protect different people's interests or different
areas' interests on that. And so we're very
interested in - ... whatever you consider - how it
really works on the ground and how ... lives will be
affected, and whether or not this truly does provide
protection for the long term, or is it just a Band-Aid
that is not really going to solve anything, or just an
exercise.
Number 4458
CO-CHAIR MASEK requested clarification about concerns related in
a letter sent from Nelson [Angapak] when Ms. Kitka was unable to
attend the [April 5] hearing.
MS. KITKA deferred to Carol Daniel.
Number 4612
CAROL DANIEL, Legal Counsel for Alaska Federation of Natives,
Inc. (AFN), agreed the testimony submitted by [Mr. Angapak]
outlines some of the problems AFN sees with the current wording
of HJR 41. First, she said, [subsection] (a) is not strong
enough because it is just a policy statement and doesn't
guarantee "a protection for a way of life." Second, subsection
(b) could be interpreted to mean that customary and traditional
uses are only protected when there is a resource shortage, and
that people's customs and traditions cannot be protected through
regulation unless there is a shortage. Under federal law and
cases that interpret the federal law, [customary and traditional
practices are protected through regulation]. [Part of the
bracketed portion isn't on tape, but was taken from the
committee secretary's log notes.]
TAPE 02-48, SIDE B
Number 4724
MS. DANIEL said without seeing the statute or regulations, it's
difficult to know whether the law would protect customary and
traditional patterns of taking and use of subsistence resources.
Also, under ANILCA all rural residents who live in communities
that have customary and traditional uses of a resource are
entitled to the priority; however, it's unclear in the wording
of [HJR 41] where the boundaries of this new local priority
would be drawn. If the statute were written to encompass a
community's customary and traditional harvest areas, she
offered, it might comply with Title VIII of ANILCA, which is
implemented to have a priority for all the rural residents who
harvest in the area; if it were drawn narrowly, however, she
thinks it wouldn't comply if it cut out some residents who
customarily and traditionally harvest in certain areas.
MS. DANIEL also noted that [HJR 41] doesn't ensure that
communities such as Eklutna or Saxman that have become
surrounded by an urban population would qualify as a community;
she suggested the original idea behind subsection (c) was to
provide "the plus of a rural-plus-type priority." She expressed
concern that the current wording might not adequately address
residents of surrounded communities; she said subsection (c)
appears to require an individualized permitting system whereby
each individual in a surrounded community would have to prove
eligibility for subsistence. She added, "It was far from clear
to us whether those communities could collectively qualify ...
as tribal communities, which is the way they've always practiced
their hunting and fishing, and it's a communal activity; it's
not something one does alone."
MS. DANIEL said those are the basic concerns, although she could
go into a more extensive legal analysis. She concluded,
"Basically, we think ... that the amendment could work,
depending on the implementing laws, ... but there need to be
some amendments to the language of the actual constitutional
amendment in order, we think, for it to ... be in compliance
with Title VIII of ANILCA."
Number 4314
CO-CHAIR MASEK asked Ms. Kitka whether she'd had a chance to
look at the proposed Senate joint resolution presented by
Senator Ward that morning [text provided previously].
MS. KITKA affirmed that, indicating an analysis was in progress;
she offered to have [Ms. Daniel] go over it. Ms. Kitka
suggested the bottom line, from one assessment, is that a
constitutional amendment isn't needed for the legislature to do
what Senator Ward is suggesting. In addition, it won't allow
the state flexibility to come into compliance with ANILCA in
order to regain management. Addressing specifics, she said the
preference would be in place only in times of shortage; unless
there were a shortage, the boards of game or fish would have no
means to provide special "sessions" or seasons or bag limits to
local residents. Also, the priority isn't mandatory, but when
the legislature does grant a subsistence priority, it goes to
those in the "vicinity", which to her belief is vague and, from
an initial reading, isn't a legal term of art or defined in
state or federal law. She suggested, therefore, that unless one
looked at the statute and saw whether it was narrowly or broadly
defined, for example, one wouldn't know what it meant.
Number 4024
MS. KITKA continued with Senator Ward's proposal. She said that
without the implementing statute, it isn't clear whether the
priority would apply to every individual who lives in the
vicinity in which there is a shortage, or whether it is based on
"some set of individual characteristics" of demonstrated use of
the fish and game resource; there are a lot of vagaries and,
without the statute to see what is intended, a lot of unknowns.
Furthermore, she said, it sounds as if there would continue to
be "subsistence non-use areas." Referring to mention by Senator
Ward of urban Natives and Natives living in areas surrounded by
urban growth, she said it's hard to see how Ninilchik, Saxman,
or Kenaitze would benefit, for example. She said it isn't clear
whether those goals meet with regard to this language or are
opposite goals.
Number 3928
MS. KITKA also noted the use of "customarily" as opposed to
"customary and traditional", which is defined; "customarily" is
an undefined term that could have a totally different meaning.
She concluded:
We take very seriously Senator Ward's suggestion to
look at things in a positive light and not just pick
things apart. ... But what we're looking at is, does
it comply with the spirit and the intent of Title VIII
of ANILCA and the congressional policy that the
Congress laid out, or does it fall short, and if it
falls short, is it even better than what we have
there? And it's our assessment here that there's just
too many vagaries in there, too many unknown things.
Without a statute to see how it really would work, or
even ... a further outline of what a [statute] would
look like, it would be hard to say that this would be
better than ... just keeping Title VIII of ANILCA and
its protections, and trying to work [towards a]
constitutional amendment that allowed the state to
have the flexibility to do that route.
MS. KITKA commended Senator Ward for coming up with ideas to put
on the table, and encouraged others to do the same.
Number 3746
REPRESENTATIVE McGUIRE referred to Ms. Kitka's mention of
Article XII, Section 12, of the state constitution. She said,
"I'm curious to know why you believe in the McDowell decision
that the supreme court ignored that, if it has the meaning ...
that you're saying it does."
MS. KITKA offered the belief that the McDowell decision is
wrong, and that there is flexibility in the state constitution.
She said, "But there is not a lot we can do if the state supreme
court says no, there isn't the flexibility." She added, "That's
why we've been working all these years to try to get that
flexibility to the legislature." Ms. Kitka continued:
If the legislature doesn't want the flexibility to be
able to pass laws on that, ... we just want full
implementation of the federal law; we want those
protections and those commitments that the Congress
made fully implemented, and we want our people's way
of life protected ... for a long time. So we've
always believed that the McDowell decision was wrong.
We've also looked at avenues - is there a way to bring
that issue back up to the supreme court, basically
pass the statute that ... was struck down on that and
bring it back up there on that. And that doesn't
really look like an option, but we sure wish we could
figure out a way for them to revisit that and reverse
that.
Number 3605
REPRESENTATIVE McGUIRE referred to AFN's handout, "Requirements
for State Re-assumption of Subsistence Management on the Public
Lands." Noting that a section defines customary trade, she
pointed out that this is an area of contention. She also noted
that the document mentions differences in definitions in ANILCA,
the statutes adopted in 1992, and regulations. She said:
Your position paper ... reflects upon Section 803 in
ANILCA, which does say for barter or for sharing, for
personal or [family] consumption, and for customary
trade. And ... we have defined customary trade to
mean for personal or family consumption. And ... you
say, accurately, that we were able to resolve the
inconsistency, but that should we act again, we would
now need to resolve that by statute in any
implementing legislation; we'd need to resolve that
inconsistency.
REPRESENTATIVE McGUIRE asked Ms. Kitka whether it is AFN's
position or hers that customary trade ought to be unqualified,
or whether there ought to be some definition such as the state's
notion, so far, that it ought to be sharing for personal or
family consumption, or whether it should be broader.
MS. KITKA replied that she would ask [Ms. Daniel] to address
that, but said there are big, broad issues that need attention,
as well as lower-tier issues such as customary trade, which is
still important to the Native people. She said the major issue
before the legislature is because the state constitution doesn't
have the flexibility for the state to pass a law to regain
management; therefore, federal law is being implemented under
court order.
Number 3251
REPRESENTATIVE McGUIRE explained why the issue of barter and
trade is important to her. She agreed the issue before the
legislature is whether to comply with ANILCA to regain state
management; she said her constituents in Anchorage, overall,
support resolution of this issue. However, a fundamental
sticking point relates to the "pyramid" she'd discussed that
morning: the top use in times of shortage is that necessary to
maintain one's lifestyle, followed by customary and traditional
use; under HJR 41, there is then the ability to enact a statute
for urban dwellers who can prove a customary and traditional
use, and the rest of the uses follow.
REPRESENTATIVE McGUIRE said because there always are bag limits,
there is always a shortage. She said she wants rural and Native
Alaskans to be able to live off the land as they have for years;
however, if the category is too broad and the resource becomes
so depleted that the bottom tiers aren't included, then she
won't be doing a good job for her constituents who see hunting
and fishing as a fundamental part of their lives and culture and
traditions, too, albeit in a different way. She said this is a
critical sticking point for some urban Alaskans who fear their
ability to hunt and fish will be minimized because the use at
"the top" will be so broad that there won't be enough left.
Number 2944
MS. KITKA responded that she thinks Native people, at least many
she works with and represents, have a lot of respect for other
Alaskans and their traditions for hunting and fishing. She
said, "We are very well aware that a lot of people have moved to
the state to continue hunting and fishing. But it is not the
same as the Native subsistence way of life. And it doesn't mean
that we have any less respect for them and their families and
their desire to pass on what they're doing."
MS. KITKA reiterated that she believes this conflict is
overpoliticized, and that the amount of resources taken [by
Alaska Natives] is so little. She offered her perception that
objection to customary [barter and] trade stems mostly from
commercial interests, which already get 96-97 percent of the
resources. She said it appears unbalanced and unfair, and that
the issue is overblown. Ms. Kitka remarked, "We're not saying
we want it all." She suggested the legislature must look at the
big picture. She offered her belief that Native people aren't
abusing customary trade; citing Canada as an example, she said a
lot of customary trade goes on among communities as part of the
way of life. She indicated perhaps this is overpoliticized
because of some of the court cases, for instance.
Number 2655
REPRESENTATIVE McGUIRE clarified that the people in her district
who are concerned aren't commercial fishermen, hunters, or
guides. Rather, they are ordinary folks who fish and hunt to
put food in their freezers; it isn't a monetary issue, but
relates to personal users who are afraid that [having barter and
trade be part of the subsistence priority] will eliminate use at
the bottom part of the tier, and eliminate what these people
believe to be a fundamental part of their lives. She said she
wasn't advocating for commercial use.
CO-CHAIR MASEK asked members to avoid debate in order to have
time to hear from all the testifiers.
Number 2511
REPRESENTATIVE STEVENS referred to subsection (b) of [HJR 41],
which says there will be a priority when restrictions are
necessary. Referring to testimony by Nelson Angapak [on behalf
of AFN at the April 5 hearing] and Attorney General Botelho and
Charles Cole [at the May 15 hearing], he asked, "What is the
point of having a priority in times of abundance? Is it really
necessary?"
MS. KITKA replied by noting that in the Bobby case, the courts
ruled that the regulatory system must do everything it can to
have the least impact on people "as they continue to do what
they're doing." She called it an important court case, a
recognition that government shouldn't interfere in people's
lives and should adjust seasons and bag limits "around people
the way that they live." She asked Representative Stevens to
take a look at that.
REPRESENTATIVE STEVENS requested that Ms. Kitka provide it to
the committee.
Number 2249
MS. DANIEL added that the concern is more with the
interpretation of the priority. The court cases have
interpreted the federal statute to provide the legislature or
federal subsistence board - whichever state or federal agency is
implementing the law - a means for people to continue to live a
subsistence way of life that continues their patterns of harvest
and use. In the Bobby case, the state regulations at the time
imposed individual bag limits on a village that had no village
store; not every individual there hunted, and a few hunters in
the village hunted for everyone. So the court recognized that
the Board of Game should take that into consideration when
adopting bag limits for that particular village. And because
there is a subsistence priority, subsistence should be given a
priority, and it should reflect people's customs and traditions
in terms of how they harvest (indisc.). Therefore, the concern
is that if there isn't a subsistence priority in place during
times of abundance, then under what law would the boards of fish
or game be justified in imposing different bag limits or seasons
for different users?
Number 2049
CO-CHAIR SCALZI asked, "Would you support amendments to ANILCA
that clarify, but not weaken, ANILCA, for purposes of this
particular legislation?"
MS. KITKA replied, "I think that we're of the view that we don't
want ANILCA opened up." She said [AFN] has testified over the
years of its concerns that if ANILCA were opened up, national
interests such as the environmental community and others would
weigh in on different issues. She said:
And so we are very hesitant about opening up ANILCA at
all, and especially we're hesitant about opening it up
at all if there is a way for the state to resolve this
here in the state, by Alaskans - and there is a way to
do that. And so we're not inclined to support any
opening up of ANILCA, even on defining terms or things
like that.
MS. KITKA expressed interest in being involved in discussions of
how the pieces will fit together - a constitutional amendment,
statutes, and regulations - and looking at definitions of terms
in that context. She again conveyed concern that once ANILCA is
opened up, it will be uncontrollable, and she reiterated the
desire for full implementation of ANILCA, both the spirit and
the letter of the law.
Number 1820
CO-CHAIR SCALZI returned to the issue of commercial fishing and
offered his belief that the dispute isn't with allocation among
different user groups so much as it is concern about shutting
down a [commercial] fishery until the subsistence needs are met
a thousand miles upstream.
Number 1740
REPRESENTATIVE FATE referred to Ms. Kitka's testimony that this
issue relates to approximately 2 percent of the resources. With
regard to game, he said ADF&G's records show the take for human
consumption is 3 to 5 percent; other documents indicate it might
be closer to 3 percent, and it varies according to the area. He
asked:
How do you mitigate the problem ... of taking at 2
percent? If it is 3 percent, for example, it only
leaves 1 percent for the rest of the consumers; if
it's the 5 percent, which is the upper end of that
scale, it still only leaves 3 percent. The ...
statistics show that probably about close to 80
percent is taken by predators. How do you mitigate
this problem, because even at 2 percent there may be
not enough, based on present statistics, ... of the
game animals to satisfy both.
Number 1632
MS. KITKA, noting that she didn't have the ADF&G report in front
of her, said Mary Pete of ADF&G's Division of Subsistence had
testified before a congressional hearing and included a lot of
data on use of fish and game. She mentioned that there are
figures with regard to the replacement value if the state's lack
of action in protecting subsistence destabilizes the whole
subsistence economy. Urging Co-Chair Scalzi to look at the
state figures on that, she remarked, "To me, it's a very
compelling thing about how fragile the subsistence economy is,
and people's dependency on that. And this continuing
uncertainty has the potential to destabilize that." After
apparently obtaining figures, she then said:
They're saying that the replacement value - this is
the state figures - in the subsistence economy, if you
had to replace what subsistence people take on an
annual basis, you're talking between 131.1 million to
218.6 million dollars, if you translated the poundage
of fish and meat, and the subsistence economy was
destabilized to the point where you saw these big
crashes. That's ... dollar amounts that the state
estimates, that economy.
MS. KITKA said it really is more than just management of fish
and game. It is a whole, separate economy, a mixture of
subsistence and cash that provides people a means of sustaining
themselves and their families; she mentioned pride and self-
sufficiency. She said:
I really believe it's in the state's policy to do
everything that they can to sustain that and solve
this conflict and not put at risk this economy and
destabilize it by policies that are not clear, that
policies don't have in the strongest terms possible
the strength and importance of the subsistence way of
life. As I've said, the replacement value is very
high, and especially [if] you look on the national
level, where they're debating welfare reform and all
these other things on that. The subsistence economy
is a very strong economy that should be backed by the
state. But it also helps people survive.
MS. KITKA offered to submit the ADF&G report for the record.
She urged members to look at it, and emphasized the need to look
at how people are being impacted on the ground.
Number 1207
PAT JACOBSON testified via teleconference, noting that she lives
in Kodiak. She questioned how Section 19 [proposed by HJR 41],
which recognizes the traditions of indigenous people and accords
priority to customary and traditional uses, also recognizes the
rights and privileges of all U.S. citizens as being equal. She
emphasized civil rights and the possibility of disassociating 85
percent of the state's citizens. Ms. Jacobsen expressed
discomfort with the vagueness and subjectivity of the phrase
"whenever it is necessary" [subsection (b)]; she questioned who
would determine it, and how. She mentioned limits placed in
Kodiak on sport-caught king salmon without any biological
foundation, and said politics often play too large a role,
without a sound, logical reason. She conveyed concern that
"whenever it is necessary" could turn into "always".
MS. JACOBSON recounted how a Native friend had related her
concerns about subsistence, mentioning outboard motors, snow
machines, rifles with ten-bullet clips, and so forth, but also
wanting to retain the old Native ways. Ms. Jacobson said, "They
wanted subsistence rights above all over people, and they wanted
to continue to not have to pay taxes ... on much, if anything.
She said they can't have it both ways." Saying this is an issue
of fairness, Ms. Jacobsen suggested the settlement in 1972 was
to concede, forever more, any issue of compensation to [Alaska
Natives]. She asked whatever happened to [ANCSA] and mentioned
the conveyance of 96 percent of the privately owned land in the
state, as well as other privileges. Referring to testimony that
morning about wanting to preserve Native ways, she asked whether
that should be facilitated at the expense of other groups and
their rights to equality. She said, "We are all U.S. citizens
and deserve to be treated equally. This is a very polarizing
issue, and if this resolution passes, I believe it will polarize
citizens of this state even more."
Number 0902
MS. JACOBSON asked members, rather than supporting HJR 41, to
support the lawsuit Bondurant v. Norton "in its journey to be
heard by the U.S. Supreme Court, which I believe will be the
only possibility for a fair solution to this issue." Ms.
Jacobson concluded by saying she believes in the U.S.
Constitution and equality for all; a 32-year resident of Kodiak
and "a 26-year retired teacher," she said it has been customary
and traditional for her to hunt and fish all her life.
Number 0814
JAKE JACOBSON testified via teleconference in opposition to
HJR 41, noting that he'd lived in Alaska since 1967, "always as
a rural Alaskan following subsistence pursuits." He said
subsistence is a lifestyle and way of life that takes many
forms. He read from Section 19(a) [of HJR 41], pointing out
that nobody is mentioned beyond the indigenous peoples of
Alaska. He said the constitution specifically forbids
prioritizing the users - rather than the uses - of the
resources, and protects all citizens from action that
disenfranchises many to provide special rights to others.
MR. JACOBSON read from subsection (b) and commented, "Clearly
put, any season or bag limit for any species is a restriction on
taking, and therefore customary and traditional use priorities
for indigenous people shall be in effect all the time if HJR 41
passes, in times of abundance and in times of shortage." He
continued:
Section 19(c) allows for lower priorities to other
residents of the state so long as they do not diminish
the subsistence priority of rural residents of the
state. Here again, most Alaska citizens are
disenfranchised. Their constitutionally guaranteed
equal rights and equal access are denied. And we see
the commercial sale of subsistence-caught salmon and
halibut becoming legal for those select few who
qualify, at the expense of everyone else.
Should this become law, a legalized cap system will be
created. Far from bridging the urban-rural divide,
this will increase the polarization visited upon our
state by Title VIII of ANILCA. The only just and
final solution to this issue is that the
constitutionality of Title VIII of ANILCA be
adjudicated in the U.S. Supreme Court. ... A suit to
do just that is in progress, and I urge you to lend
your legislative support to that suit, known as
Bondurant v. Norton, in hopes that it will receive
prompt attention of the federal courts, for the good
of all Alaskans.
Number 0540
EILEEN NORBERT testified via teleconference in strong support of
HJR 41, urging its adoption as submitted by Governor Knowles.
She told members:
You've heard many times over the years how dependent
rural residents are on subsistence hunting and fishing
or customary and traditional practices that include
vital aspects of our social, economic, spiritual, and
cultural lifestyle. Rural Alaskans take only a
miniscule percentage of the total harvest of fish and
game in the state, as you've heard mentioned - these
figures are available from your own Department of Fish
and Game; I believe it's only 4 to 6 percent - yet we
rely in rural Alaska most heavily on these resources
to feed our families and for our cultural viability.
I'd like to tell you a sad but true story that affirms
the importance [of] and reliance [on] subsistence for
our people. When subsistence fishing was closed here
in Nome for the first time in 1991, an elder was so
hungry for fish, she searched the beach for dead fish
to eat. She found two that were partially decayed.
She picked them up anyway and later ate them. This is
totally, totally unacceptable, degrading, unhealthy,
and inhumane, but she was so hungry for her
traditional diet.
If our way of life is not protected, we have no other
alternative but to request perpetual subsistence
protection from the federal government. I urge the
legislature to adopt [HJR] 41, and if any amendments
are made to the governor's resolution, it should be to
provide co-management of hunting and fishing
resources.
Number 0321
RAY NIELSON, JR., testified via teleconference that he is a
Tlingit and a Kiksadi who sits on the "customary and
traditional" committee for the Sitka Tribe of Alaska, is on the
subsistence committee for ANB Camp 1, and holds a subsistence
seat on the fish and game advisory committee. Mr. Nielson told
members he teaches the lifestyle of subsistence - "hunt, fish,
gather, advocate, cook" - and has a favorite saying: "To cook
it tomorrow, you have to fight for it today." On the advisory
committee, he represents Natives and non-Natives, and all in
Sitka qualify under federal management and federal jurisdiction.
Calling Anchorage the largest village in Alaska for those Native
people who choose to live there, he said the ballot measure will
(indisc.); if not, the status quo is fine.
MR. NIELSON told members he exercises his right to have a
customary and traditional subsistence lifestyle, including his
right to trade, barter, sell, share, and give away, "as granted
by the public court in the Jackson versus U.S. government
[case]"; he said only the Supreme Court can take that away from
him. He asserted that the state lets the charter [fishing]
industry run free but makes it difficult for those who depend on
subsistence foods and natural resources for survival as their
ancestors did. He said the federal system allows for
participation, co-management, and cooperation with the tribes,
and asked, "Who knows better than the local tribal people?" He
concluded by saying he doesn't plan on changing who he is; what
he does; or what he cooks, eats, hunts, fishes for, or gathers.
"I will still advocate for my people and elders," he said,
adding that he'd learned from elders who are gone, and advocates
as liaison to his people, and to the young, for the future.
Number 0020
BILL TEGOSEAK, Executive Director, Inupiat Community of the
Arctic Slope (ICAS), testified via teleconference in support of
HJR 41, noting that ICAS is the regional tribal government for
eight tribal villages above the Arctic Circle. A 58-year-old
resident of Alaska and the North Slope, he began by offering
some personal history.
TAPE 02-49, SIDE A
Number 0001
MR. TEGOSEAK noted that he is a Vietnam War veteran. He then
highlighted the importance of subsistence at the village level
and said, "The soul of the Native community is to provide
subsistence for all, on the basis of need." Today, he sees a
real need to pass on a message indicating Native communities
aren't so much against the right of urban Alaskans to go out and
hunt for the natural resources in Alaska; the important issue is
that the Native people in Alaska, wherever they are, have always
depended on "the subsistence provided by the Creator of this
world and this universe," and that there is a grand design. He
concluded by stating that he supports HJR 41 and believes it is
important that the voters make this decision.
Number 0409
DALE BONDURANT testified that he has been involved in this issue
"about as long and as hard as anybody in the state." A 55-year
state resident and a 78-year U.S. citizen, he expressed pride in
having a constitutional democracy that believes in equality for
everybody. Noting that he is president of the Alaska
Constitutional Legal Defense Conservation Fund, he remarked, "We
don't go after anything for ourselves personally; we go after
constitutional rights for everybody." He told members:
I think we all value our customs and traditions, and I
think that's important. But when one group and one
exclusionary class demands that their "customary and
traditionals" are better than the others, I am against
it. And that's one of the things that our
constitution says.
MR. BONDURANT reported that he'd done a quick analysis of the
state and federal constitutions, finding that "the proposals
that are coming across the board to change our constitution
would violate 22 articles of the state constitution and 59
points within those articles." He commented, "Now, that's a
heck of a way to destroy the best constitution of any state in
the United States"; he added that many constitutional scholars
have said it is the best. He also said more time was spent on
adopting Article VIII than any other part. He continued, "It
would also violate 8 sections of the U.S. Constitution and 40
points of it, and we've got a very good U.S. constitution." He
urged legislators to uphold their oath of office to protect and
defend the state and federal constitutions to the best of their
ability.
MR. BONDURANT offered four documents, noting that he'd brought
70 copies to distribute to legislators.
Number 0731
CO-CHAIR SCALZI asked Mr. Bondurant to inform the committee
about the other states "that are joined in this."
MR. BONDURANT replied:
Well, during this Katie John case, I'd claimed the
governor tried to lose the case, and he was doing a
good job: he never questioned the state changing
their position or anything like that, and he could
have got the ... the federal government [to] throw it
out of the court, if he had done that. But he was
designing this case to fail. Well, he got in a bind,
as 14 other states walked in and handed amicus briefs
to the United States Supreme Court to defend the
states' rights to manage their own resources. And
with those 14 states submitting amicus briefs to the
United States Supreme Court, [Governor] Knowles
decided that he didn't want it appealed to the Supreme
Court of the United States. And after promising
everybody that, he dropped it.
CO-CHAIR SCALZI indicated he'd wanted to show that the
information Mr. Bondurant was presenting has been backed up by
other entities.
MR. BONDURANT added, "There are 14 states that sent amicus
briefs, and we're asking 49 states to come in ... and defend
Alaska's right to manage their fish and game, and not the
federal government."
Number 1005
MERLIN KOONOOKA testified that he is from Gambell and serves as
one of the two elder representatives on the Kawerak Inc. board.
He pointed out the rural nature of his village and the strong
subsistence lifestyle there. He said he is always concerned
about "the failure of organizations such as this ... to realize
the legitimacy of our cultural and traditional way of life."
Offering to illustrate with his own day-to-day life, he told
members:
When I walk out to the point on the edge of the sea,
or when I climb up the mountain in the back of the
village to observe the conditions on the land and the
sea, to plan our daily subsistence activities, I stand
there and I come to realize that my father, my
grandfather, and our ancestors have stood on the same
spot doing what I am doing. And as long as I am
standing there, as long as I am alive and there are
others like me in the other villages in rural Alaska,
we represent [an] alive subsistence lifestyle. And I
feel that no one can stop this way of life and take it
away from us. ...
I think we all agree on one thing, that when we call
this land "The Great Land," if you look at the map,
also, you come to realize that rural Alaska comprises
a vast area geographically in the state. And you also
come to realize that we've done this in a 10,000-year
time span. And when you look at the other side, where
the population center of Alaska is located, you come
to see that it comprises only a small portion of the
geographic area, and ... this has been in existence
only for a couple of hundred years. But I think we
should get together and work on living together, and
... truly make it a great land for all of us.
MR. KOONOOKA told of traveling with his wife to Nome: although
food costs much more there than in Anchorage, it is a savings
[compared with prices in Gambell]. He mentioned the high
excess-baggage rates at the Nome airport when returning home.
Furthermore, he told of buying a small piece of carpet in
Anchorage at a good price; however, the airline charged more
than twice the purchase price. He expressed frustration and
asked, "How can we justify equal access when we have to pay for
our lifestyle in the villages? How can you justify equal access
to our resources for what little we have? And it's the other
way around also: you can't justify equal access from our point
of view - economic opportunities of the Western world."
Number 1617
DONALD WESTLUND testified via teleconference in opposition to
HJR 41, noting that he has lived in Southeast Alaska for more
than half of his 51 years. Indicating he isn't Native but has
reviewed [ANCSA], he remarked, "They have 44 million acres." He
said the 2000 census indicates there are 98,000-some [Alaska
Natives]; he said an individual gets 440 square acres, which for
a household of three people is 1,320 acres or 2.2 sections of
land, since a section is 640 square acres, equivalent to one
square mile. This is private land for subsistence purposes, he
said, land that others cannot hunt or fish on [without
permission]. He expressed concern and thanked Representative
McGuire for understanding what is going on. He said only the
governor can settle this, but hasn't. He stated opposition to
HJR 41. He also suggested it is counterproductive for AFN
members and other Natives to segregate themselves out by saying
"our people." He said he would like the representatives of the
state to all sign on to the Bondurant v. Norton lawsuit.
Number 2035
ROGER SMITH testified via teleconference, noting that he is a
Kodiak resident and has lived in Alaska since 1968; his wife and
sons were born in Alaska. He stated opposition to HJR 41,
offering his belief that it would enshrine a form a
discrimination in the state constitution. He said that to him,
the resolution says the majority of Alaskans, "when they get on
the fish and wildlife bus, must ride in the back."
MR. SMITH commended the state for a terrific job managing fish
and wildlife, and told members that if he believed this
constitutional amendment alone would bring the state back into
the management "driver's seat," he would support it in a minute;
however, he believes the federal government won't give up
management as long as Title VIII [of ANILCA] reads as it does,
and as long as somebody who is aggrieved "can go immediately to
a federal judge." He offered that either a change in ANILCA or
a decision by the supreme court on the equal protection clause
would be necessary to straighten this out. Mentioning greed and
divisiveness caused by the subsistence problem, Mr. Smith said
he didn't have the answer but that HJR 41 wasn't it.
Number 2237
JOE WILLIAMS, President, Organized Village of Saxman; Vice
Chairman, Alaska Inter-Tribal Council (AITC), testified via
teleconference, noting that he is a full-blooded Tlingit born
and raised in Ketchikan. He referred to AITC's testimony that
morning against any more compromise and said, "As my brother ...
Representative Bill Williams would say, 'A deal is a deal. No
more compromises.'" He asked where the equality is in the
schools, roads, and police protection in rural Alaska; he asked
those who are talking about equality to address those issues
first, "and then we'll talk about just the 2 percent of what
this whole issue is all about." He also asked why Article XII,
Section 12, of the state constitution isn't being addressed; he
read from that section, saying that forever is a long time. He
concluded by reiterating, "A deal is a deal."
Number 2513
TOM DOOLEY testified via teleconference in opposition to HJR 41,
noting that he is a 39-year resident of Kodiak; has been fishing
commercially for 37 years; has been a member of the fish and
game advisory board in Kodiak for 23 years; and is one-quarter
American Indian - Creek, Choctaw, Chickasaw, and Cherokee. He
said that his big concern is for his children and grandchildren,
whose rights would be sold down the river by this. Mr. Dooley
reminded legislators that they are put into office to represent
the people of Alaska, not just one group or entity. Alluding to
ANCSA, he said 96 percent of the state's private land now
belongs to the Native 15 percent of the population. He said
most rural Natives receive housing assistance if they apply for
it, heating-fuel assistance in winter, and free medical and
dental care; they also receive quarterly or annual checks [from
their Native corporations], and many draw other assistance. He
said these make a big difference in being able to survive and
live in Alaska. He suggested protecting the state constitution,
one of the best in the Union because [the drafters] had so many
other constitutions to pick the best parts from. He closed by
asking legislators, "Please do your job and look after us all."
Number 2924
CO-CHAIR MASEK announced at 4:20 p.m. that the meeting would be
recessed to a call of the chair. She noted that two testifiers
remained on teleconference and one remained locally.
Number 2925
Co-CHAIR MASEK called the meeting back to order at 6:20 p.m.
Present at the call back to order were Representatives Masek and
Stevens; Representatives Scalzi, Stevens, Fate, McGuire, and
Green joined the meeting shortly thereafter.
CO-CHAIR MASEK announced that some members weren't able to
attend because of the closing of the session. She thanked
testifiers, apologized to the two people remaining on
teleconference, and requested that people submit written
testimony. [HJR 41 was held over.]
ADJOURNMENT
Number 3253
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 6:05 p.m.
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