Legislature(1997 - 1998)
03/13/1997 01:20 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE March 13, 1997 1:20 p.m. MEMBERS PRESENT Representative Bill Hudson, Co-Chairman Representative Scott Ogan, Co-Chairman Representative Beverly Masek, Vice Chair Representative Ramona Barnes Representative Fred Dyson Representative Joe Green Representative William K. ("Bill") Williams Representative Irene Nicholia Representative Reggie Joule MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 138 "An Act relating to the Board of Storage Tank Assistance; and providing for an effective date." - MOVED HB 138 OUT OF COMMITTEE * HOUSE JOINT RESOLUTION NO. 21 Relating to amendment of Title VIII of the Alaska National Interest Lands Conservation Act. - HEARD AND HELD HOUSE BILL NO. 19 "An Act relating to licensing of sport fishing services operators and fishing guides; and providing for an effective date." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 138 SHORT TITLE: BOARD OF STORAGE TANK ASSISTANCE SPONSOR(S): RULES BY REQUEST OF BUDGET AND AUDIT COMMITTEE JRN-DATE JRN-PG ACTION 02/13/97 334 (H) READ THE FIRST TIME - REFERRAL(S) 02/13/97 335 (H) RESOURCES 03/11/97 (H) RES AT 1:00 PM CAPITOL 124 BILL: HJR 21 SHORT TITLE: REQUESTING CONGRESS TO AMEND ANILCA SPONSOR(S): REPRESENTATIVE(S) MASEK, Ogan JRN-DATE JRN-PG ACTION 02/12/97 314 (H) READ THE FIRST TIME - REFERRAL(S) 02/12/97 314 (H) RESOURCES, STATE AFFAIRS 03/13/97 (H) RES AT 1:00 PM CAPITOL 124 WITNESS REGISTER JOHN C. BARNETT, Executive Director Board of Storage Tank Assistance 410 Willoughby Avenue Juneau, Alaska 99801 Telephone: (907) 4665-5219 POSITION STATEMENT: Testified on HB 138. JOHN BORBRIDGE 603 West 10th Street Juneau, Alaska 99801 Telephone: (907) 586-2132 POSITION STATEMENT: Testified on HJR 21. CARL L. ROSIER Territorial Sportsmen 8298 Garnet Street Juneau, Alaska 99801 Telephone: (907) 789-9117 POSITION STATEMENT: Testified in support of HJR 21. APRIL FERGUSON Kawerak, Incorporated P.O. Box 1545 Nome, Alaska 99762 Telephone: (907) 443-5231 POSITION STATEMENT: Testified in opposition to HJR 21. NOEL WOODS P.O. Box 827 Palmer, Alaska 99645 Telephone: (907) 745-3027 POSITION STATEMENT: Testified in support of HJR 21; suggested amendment. BEN HASTINGS P.O. Box 8432 Ketchikan, Alaska 99901 Telephone: (907) 225-5014 POSITION STATEMENT: Testified on HJR 21. ART IVANOFF, Subsistence Coordinator Maniilaq Association P.O. Box 254 Kotzebue, Alaska 99752 Telephone: (907) 442-7690 POSITION STATEMENT: Testified in opposition to HJR 21. DALE BONDURANT HC1, Box 1197 Soldotna, Alaska 99669 Telephone: (907) 262-0818 POSITION STATEMENT: Testified on HJR 21. HERBERT SMELCER, Board Member Tazlina Village Council P.O. Box 373 Glennallen, Alaska 99588 Telephone: (907) 822-5146 POSITION STATEMENT: Testified in opposition to HJR 21 but suggested statewide hearings on it. DICK BISHOP, Executive Director Alaska Outdoor Council P.O. Box 73902 Fairbanks, Alaska 99707 Telephone: (907) 455-4262 POSITION STATEMENT: Testified in support of HJR 21. MICHAEL PEDERSON Arctic Slope Native Association, Ltd. P.O. Box 1232 Barrow, Alaska 99723 Telephone: (907) 852-2762 POSITION STATEMENT: Testified in opposition to HJR 21. HEATHER KENDALL, Staff Attorney Native American Rights Fund 310 K Street, Number 708 Anchorage, Alaska 99501 Telephone: (907) 276-0680 POSITION STATEMENT: Testified on behalf of Alaska Inter-Tribal Council in opposition to HJR 21. JULIE KITKA, President Alaska Federation of Natives 1577 C Street, Number 201 Anchorage, Alaska 99501 Telephone: (907) 274-3611 POSITION STATEMENT: Testified in opposition to HJR 21. SID SMITH P.O. Box 591 Dillingham, Alaska 99576 Telephone: (907) 842-3325 POSITION STATEMENT: Testified in opposition to HJR 21. JOHN AMIK, Tribal Administrator Kipnuk Traditional Council (No address provided) Kipnuk, Alaska 99614 Telephone: (907) 896-5515 POSITION STATEMENT: Testified in opposition to HJR 21. ANTHONY CALOI, Tribal Administrator Native Village of Quinhagak P.O. Box 149 Quinhagak, Alaska 99655 Telephone: (907) 556-8167 POSITION STATEMENT: Testified in opposition to HJR 21. GEORGE YASKA, Executive Officer Tanana Chiefs Conference, Incorporated 122 1st Avenue, Suite 600 Fairbanks, Alaska 99701 Telephone: (907) 452-8251 POSITION STATEMENT: Testified on HJR 21. KAY ANDREW P.O. Box 7211 Ketchikan, Alaska 99901 Telephone: (907) 225-2463 POSITION STATEMENT: Testified on HJR 21. LUKE SAMPSON, Special Assistant to the Mayor Northwest Arctic Borough P.O. Box 1110 Kotzebue, Alaska 99752 Telephone: (907) 442-2500 POSITION STATEMENT: Testified in opposition to HJR 21. NICK JACKSON P.O. Box 123 Gakona, Alaska 99586 Telephone: (907) 822-3869 POSITION STATEMENT: Testified in opposition to HJR 21. ACTION NARRATIVE TAPE 97-26, SIDE A Number 0001 CO-CHAIRMAN SCOTT OGAN called the House Resources Standing Committee meeting to order at 1:20 p.m. Members present at the call to order were Representatives Ogan, Hudson, Masek, Green and Williams. Representative Nicholia was present prior to the call of order but left, returning at 1:21 p.m. Representatives Joule, Dyson and Barnes joined the meeting at 1:22 p.m., 1:23 p.m. and 1:30 p.m., respectively. HB 138 - BOARD OF STORAGE TANK ASSISTANCE Number 0135 CO-CHAIRMAN OGAN announced the first order of business was House Bill No. 138, "An Act relating to the Board of Storage Tank Assistance; and providing for an effective date." JOHN C. BARNETT, Executive Director, Board of Storage Tank Assistance, came forward to testify. Number 0191 CO-CHAIRMAN OGAN referred to the zero fiscal note by the Department of Environment Conservation (ADEC) and said he had requested clarification. The explanation had been that the costs associated with the board's activities are already in the ADEC's FY 98 budget request. However, the fiscal note extends beyond that, to the year 2000. He asked whether it should reflect those costs. MR. BARNETT said current statutory provisions for underground storage tank owners allow them to appeal costs related to financial assistance. In addition, they allow owners who have a disagreement with the ADEC to appeal costs for cleanup plans for a leaking tank site. The ADEC believes those appeals would still have to be dealt with, resulting in hiring an unbiased hearing officer and other costs to deal with appellants over the next few years. MR. BARNETT said those costs have already been considered while the board is in place. If the board were not in place, those costs would be carried forward in the ADEC's budget. It would not be an increase to the existing budget but would basically maintain the status quo over the next few years. Number 0375 REPRESENTATIVE JOE GREEN suggested there should be a savings. He asked whether this meant the allocated time and expense would be borne by the ADEC. He further asked whether there was so much leeway in the ADEC that it could either operate the program or not. MR. BARNETT said the board contains volunteer members who serve without compensation. He himself is the sole employee. In addition, there is a travel budget, plus minor miscellaneous costs. If the board did not exist, the ADEC would hear appeals through an independent hearing officer. That would probably cost more than the combined expenses for travel and the executive director. MR. BARNETT advised members there was a review the previous summer by the ADEC. Hearing officers are predominantly attorneys, and those appeals would take place in communities statewide. On the other hand, the board has tried to minimize costs by conducting teleconferences. Only when an appeal is complex or involves a serious issue does the board go to that location. Adding a hearing officer when needed, on an on-call basis, plus the costs associated with that, was determined to cost the same as the existing configuration. In addition, Mr. Barnett believed if he were a tank owner, he would rather talk to private-sector members, who were volunteers and somewhat unbiased, than to an attorney. NUMBER 0547 REPRESENTATIVE BEVERLY MASEK referred to a letter by Michele Brown, Commissioner of the ADEC, explaining the zero fiscal note is appropriate because costs associated with the board's activities are already in the FY 98 budget request. Representative Masek asked what the total budget request is for FY 98. MR. BARNETT said the total annual cost is $110,000. This has been pretty much the same since the board's inception in 1990. Number 0606 CO-CHAIRMAN OGAN said it seems the fiscal note should be zero for 1998 and $110,000 for every year past that. There being no House Finance Committee referral, he would take it upon himself to see whether a zero fiscal note is appropriate. He said from a resources standpoint, he has no opposition, and he believes it is a good program. Number 0640 CO-CHAIRMAN BILL HUDSON made a motion to move HB 138 from the committee with a zero fiscal note. He asked unanimous consent. There being no objection, it was so ordered. HJR 21 - REQUESTING CONGRESS TO AMEND ANILCA Number 0681 CO-CHAIRMAN OGAN announced the next order of business was House Joint Resolution No. 21, relating to amendment of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA). He called on Representative Masek to present the resolution. Number 0760 REPRESENTATIVE MASEK, sponsor, said HJR 21 shifts the emphasis for resolving the subsistence issue from a debate over whether to amend ANILCA or the state constitution to one in which the legislature and the Alaskan people must decide what the terms in ANILCA mean and how they should be applied. REPRESENTATIVE MASEK said it also requests that the U.S. Congress clarify such issues as what is meant by "public lands"; who has management authority on state and private lands; whether navigable waters should be managed by the state or the federal government; whether subsistence-taken resources should be allowed to be sold for cash; and what the terms "rural" and "customary and traditional" mean. Number 0812 REPRESENTATIVE MASEK said HJR 21 requests the U.S. Congress to eliminate the federal court oversight provisions for subsistence management in Alaska that apply to state and private lands. REPRESENTATIVE MASEK explained that HJR 21 also requests an amendment to ANILCA that would continue to provide a preference for subsistence but provides a "reasonable opportunity." If Alaskans cannot agree to this approach, a constitutional amendment may eventually be required to allow for the rural preference required by ANILCA, she noted. REPRESENTATIVE MASEK indicated additional provisions return authority to the state to define rural preference. Currently, there is debate over amending ANILCA or the state constitution. The resolution gives a good outline of where to start making changes. The subsistence issue has been debated for 20 years, including the question of whether the federal government, the state or the Alaskan people should take charge. She believes Alaskans must all work on this issue together. REPRESENTATIVE MASEK concluded by saying HJR 21 sends a message to the congressional delegation that they must act to change ANILCA before the state can start making management decisions on how to solve the subsistence issue. Number 1008 REPRESENTATIVE IRENE NICHOLIA expressed concern that only one village was on teleconference because of a shortage of lines. She hoped there would be an additional hearing. Her district has 75 communities. She has received numerous letters, telephone calls and public opinion messages from people wishing to testify. REPRESENTATIVE NICHOLIA read Resolution No. 97-03-01 from the Village of Kwethluk into the record. The heading included Kwethluk Joint Group; Kwethluk Indian Reorganization Act Council; Kwethluk City Council; and Kwethluk, Incorporated. She read: "A Resolution opposing Alaska Legislature House Joint Resolution 21 Requesting Amendments to Title VIII of Alaska National Interest Lands Conservation Act. "Whereas, the Kwethluk Indian Reorganization Act Council (IRA) is the lead entity in various areas of concerns covering land, water, fish and wildlife, sanctuaries and habitats in the permanent subsistence Kwethluk River and tributaries upon which its tribal members heavily depend on for their keeping of cultural integrity of traditional and customary subsistence way of living; and "Whereas, in 1959 when Alaska became a state, many Alaska Native residents living in rural villages were, and still are, intelligent in the way of their respective cultures and their Native language during the period when the English language could be barely spoken or understood, and this brings to question who voted for statehood, and which included the management of fish and wildlife natural renewable resources; and "Whereas, HJR 21 insults the Alaska Native community way of life by seeking that the State of Alaska define the terms `rural,' `subsistence uses' of the natural renewable resources when the State of Alaska has done dismally poor with respect to these concerns; and "Whereas, since 1959 the Alaska Native community has experienced poor `reasonable opportunity' to practice customary and traditional subsistence way of life; and "Whereas, Kwethluk has a history of elder tribal members having had their subsistence fishing nets wrapped around holding poles, dragged onto beach with fish catches, creating wanton waste, which truly is suppression of `reasonable opportunity' to practice customary and traditional subsistence way of life; and "Whereas, public law 96-487, ANILCA, enacted 1980, Title VIII of which is providing positive protection to Alaska Natives' subsistence way of life, legally encourages Alaska Native entities for co-management agreements with the federal and Alaska state agencies involved, enhances fish and wildlife conservation with sustained yield principles; and "Now, therefore, be it resolved that the Kwethluk Joint Group composed of the Kwethluk IRA Council on behalf of its tribal members, the Kwethluk City Council on behalf of its residents, and the Board of Directors of Kwethluk, Incorporated on behalf of its shareholders oppose passage of House Joint Resolution 21 in the Alaska State Legislature; and "Be it further resolved that copies of this resolution are sent to Tony Knowles, Governor of Alaska, and then other members of the House and members of Congress." Number 1234 CO-CHAIRMAN OGAN, referred to item (2) on page 2 of HJR 21, which reads, "prohibit federal preemption of state fish and wildlife management on state and private land and water unless expressly authorized by the Congress". He noted that the statehood compact guarantees the state the right to manage its fish and wildlife. He believes it was an egregious breech of that compact for the federal government to have preempted state management, which is one reason he is a cosponsor of HJR 21. CO-CHAIRMAN OGAN referred to item (4), which requests repeal of federal court oversight of state subsistence management programs. Because he does not believe lawyers are necessarily qualified to make biological and socioeconomic decisions in the state, he is very supportive of that. Number 1305 CO-CHAIRMAN OGAN referred to item (5), regarding definition of "rural" and "customary and traditional". He believes Alaskans can work together to decide their fate as a state, rather than having decisions by a judge in California or the U.S. Congress, 5,000 miles away. CO-CHAIRMAN OGAN commented that Alaskans need not fear each other. He believes there is more than enough fish and game resources to go around. The people he knows personally believe that someone who has traditionally used a resource, and who is dependent on it, should have first shot at it. "And I think we can accommodate that as Alaskans, rather than having the federal government do it for us," he said. Number 1372 CO-CHAIRMAN OGAN referred to item (7), which requests clarification that ANILCA neither affirms nor denies the existence of tribal sovereignty and Indian country in Alaska. He does not believe ANILCA is the place to define that. CO-CHAIRMAN OGAN referred to item (10) on page 3, requesting elimination of commercial use and sale of fish and wildlife taken for subsistence uses. He believes subsistence means taking what one needs to subsist, to live and to eat. Commercial sale and taking under subsistence is, to him, frankly criminal. "I know if I did it, I would be charged with a crime," he said. "And I don't think any class of people should have that privilege above and beyond what other Alaskans have." Number 1444 REPRESENTATIVE BILL WILLIAMS suggested listening to public testimony and indicated much could be said in defense of the current subsistence law. He asked for a short recess. CO-CHAIRMAN OGAN called for an at-ease at 1:41 p.m. He called the meeting back to order at 1:42 p.m. He opened the meeting for public testimony. Number 1558 JOHN BORBRIDGE came forward to testify on behalf of himself and his family. He said his observations and opinions largely derived from past experience as a lead lobbyist for Southeast Alaska Natives; president of the central council of the Tlingit and Haida Indians of Alaska during congressional consideration of Alaska Native Claims Settlement Act (ANCSA) legislation; and thereafter as president and chairman of the board of Sealaska Corporation during congressional consideration of Title VIII of ANILCA. Number 1587 MR. BORBRIDGE said the subsistence provisions of ANCSA and ANILCA are integrally related. The three primary Alaska Native objectives sought to be realized in ANCSA legislation were lands, subsistence and compensation. Just prior to 1971, the U.S. Senate enacted its version of ANCSA legislation, which contained detailed provisions relating to protection of Alaska Native subsistence uses. MR. BORBRIDGE said the U.S. House of Representatives bill enacted at approximately the same time contained no provisions to protect subsistence uses. Members of both bodies agreed Native subsistence uses should be protected. However, the views of the House prevailed in that "they did not want the statutes unnecessarily cluttered with laws that were already being addressed, in that the Secretary of the Interior was assumed to have sufficient authority to act, given his authority, in such a manner as to protect the Native subsistence rights," he said. MR. BORBRIDGE said as a consequence, when ANCSA became law, it not only did not contain specific provisions protecting subsistence, but one needed to read the report of the joint conference committee to see subsistence mentioned. That committee had declared, in a joint statement, that the Senate amendment to the House bill protected the Native people's interest in the subsistence resources on public lands. That report concluded that they expected both the Secretary of Interior and the state to take necessary action to protect subsistence needs of Natives. MR. BORBRIDGE said in the four-to-six ensuing years, Natives believed subsistence uses were being protected by neither. The U.S. Congress agreed. Consequently, Title VIII of ANILCA came about. It provided a subsistence priority for rural Alaskans, "of whom a large part all knew would be Alaska Natives," he said. Number 1741 MR. BORBRIDGE believes this is important partly because Section 4(b) of ANCSA extinguishes any aboriginal hunting or fishing rights. He noted that Section 4 does not apply to subsistence. MR. BORBRIDGE said it would be a mistake to say the Natives made a deal, and that they had ANCSA, and that they had no right to come before Congress for a particular treatment on subsistence. In fact, Congress promised they would accord the Native people, the subsistence users, the protections of Title VIII, which is derivative of ANCSA. MR. BORBRIDGE said, "And I feel that all of these things are important because we want to have our assertion of our subsistence uses and rights as something that is not a misreading of the law. We want it understood that we did not, in ANCSA, give up our rights to subsistence." He stated that a strong starting position is important in negotiations. MR. BORBRIDGE said, "ANCSA is Indian legislation, and thus a cannon of construction derives from the trust relationships existing between the federal government and the Native Americans. And this means that statutes affecting Indian rights are to be liberally construed, doubtful expressions being resolved in favor of the Indians. And Congressman Udall, the prime mover of Title VIII, declared that Title VIII is Indian legislation in all of its aspects." Number 1843 REPRESENTATIVE RAMONA BARNES asked whether Mr. Borbridge believes that if subsistence were simply feeding one's family, rather than barter and trade, the current problems would still exist. MR. BORBRIDGE said he was not prepared to answer completely. He noted, however, that he had written on the bill's margin: "Wouldn't it be better to say that not all sales will be prohibited, but that a certain level of sales would be prohibited?" MR. BORBRIDGE stated, "The first thing I thought of is that I, as a city Tlingit, am heavily dependent upon my relatives and friends, who actually put up the food in the traditional manner. And some of we city Indians have to buy our smoked fish, for example. And so we have a processed food there that is available only if we buy it. We know that up high, the significant commercial enterprise would be bothersome to everyone. But I'm also equally concerned as to the possible barring of any kind of sales, because I think that would start to handicap and deprive a lot of us who are in a city situation and are not able to benefit from the subsistence priority set out in Title VIII." Number 1936 REPRESENTATIVE BARNES replied that therein lies the problem. The reference in Title VIII is not to city dwellers. In discussing subsistence under Title VIII, she believes if it were simply about feeding people in rural areas without a cash economy, today's problems would not exist. Number 1963 CO-CHAIRMAN HUDSON said HJR 21 seeks clarity on definitions that are ambiguous or not described at all. Over the years, that has been a major problem. Even the Alaska Federation of Natives (AFN) policy resolving the subsistence issue contains definitions that the AFN would like to subscribe to as a final solution. To find a solution, everyone must work together. To do so, there must be definitions all agree upon. CO-CHAIRMAN HUDSON requested that Mr. Borbridge provide the committee, in writing, some of his ideas on defining those ambiguous areas. Number 2045 REPRESENTATIVE WILLIAMS asked whether, during negotiations over ANCSA, subsistence was something "we wanted to keep for sure, that we weren't going to negotiate that away?" He also asked for confirmation that Mr. Borbridge had helped negotiate ANCSA. MR. BORBRIDGE said yes. He explained, "First of all, subsistence was one of the three major objectives that we who were lobbying for a settlement act sought to advance and to protect, land and compensation being the other two. And thus when the proposal, which became a provision in ANCSA, to extinguish aboriginal hunting and fishing rights was brought forward, we on the Native side, representing the various organizations, opposed it. Notwithstanding our opposition, it was inserted into and became a part of ANCSA." MR. BORBRIDGE continued, "However, we, at the same time, were successful on the Senate side in having a bill with very detailed protective provisions as to subsistence. And that was enacted by the House. And so we sought to have subsistence protected all the way through the whole process. And as a consequence, when we had the final statement inserted into the record to indicate what the intent of the Congress was, it made clear, because we were insisting on the side, that subsistence would be protected. It would not in effect be extinguished or lost because of the Section 4, which speaks of extinguishing aboriginal hunting and fishing rights. It is a delicate thing because yes, aboriginal hunting and fishing rights are extinguished. No, subsistence rights continued." Number 2150 REPRESENTATIVE WILLIAMS referred to the conference committee report of December 13, 1971, which said that committee expected the Secretary of Interior and the state to take action necessary to protect subsistence needs of the Natives. He asked how "rural" came into ANILCA. MR. BORBRIDGE replied that in early lobbying for Title VIII, Native representatives were pretty much pushing for a Native preference. However, then-governor Jay Hammond urged a compromise between the state and the Native people. The language "rural Alaskans" rather than "Native Alaskans" resulted. Number 2217 CO-CHAIRMAN OGAN said it seemed a logical conclusion because aboriginal hunting and fishing rights had been extinguished and could not be reestablished. MR. BORBRIDGE replied, "The position that we take is that, with respect to the subsistence rights, it was clearly the intention of the Congress, in enacting ANCSA, that it was not necessary to have a specific provision preserving the Native subsistence use rights simply because it was felt that the Secretary had sufficient authority to do just that. And in the statement from the conference committee, the Congress again made it very clear that what they wanted was to see the Native rights protected as a matter of national policy and a realization that the Natives in the bush depend a great deal on a subsistence lifestyle. And it is the lifestyle they've enjoyed from time immemorial." MR. BORBRIDGE said there is a distinction between 1) the extinguishment of aboriginal hunting and fishing and 2) subsistence hunting and fishing. Clearly, subsistence uses under Title VIII were not aboriginally based, but depended on expressed desire and the statutory provision of Title VIII of ANILCA itself. "It becomes a delicate little thing," he added. Number 2305 REPRESENTATIVE FRED DYSON asked how to best balance the rural subsistence priority with good, sound game management and not be discriminatory on a racial basis. MR. BORBRIDGE said because the tribes are identifiable politically and legally, this is not an act that runs afoul of anti- discrimination laws. "Particularly crystal clear is when an act of the Congress is directed at, as beneficiaries, federally recognized Indian tribes, and of course, that's what we have in Alaska," he said. In that case, as long as it is directed at the tribes and their members, it is not subject to a negative finding in the event of a constitutional challenge. Looking at Title VIII and congressional intent in dealing with Alaska Natives, they are on a very sound footing constitutionally, he asserted. MR. BORBRIDGE suggested they were discussing how to come up with provisions, regulations and definitions that serve all Alaskans. One problem is that Title VIII clearly provides a preference for subsistence hunting and fishing. However, it only applies in the event of a shortage of the resource. The system in place on the federal side, where he served for seven years, seems to work because there seems to be a genuine concern about the management of the resource, so that there will always be a resource left to enjoy in the following years. Number 2461 REPRESENTATIVE DYSON asked in the case of migratory game such as caribou, how Mr. Borbridge would envision handling an instance where one tribal group overhunted the stock [question cut off mid- speech by tape change]. TAPE 97-26, SIDE B Number 0006 MR. BORBRIDGE cited his own experience. There had been ten regional advisory councils, each with members knowledgeable about subsistence living within the area encompassed by that council's boundaries. In specific situations, one council might allow a hunt but another would say no. "And we'd have to convene them over a larger area because of the very thing you say," he said. The movement of the herds necessitated going beyond a small jurisdiction. Mr. Borbridge acknowledged that was only part of the answer. Number 0061 REPRESENTATIVE BARNES disagreed with Mr. Borbridge's assertion that ANILCA was Indian legislation or federally recognized as tribal legislation. She stated, "I believe very specifically in ANILCA, Metlakatla was recognized. The other Native groups around the state were called Native entities, not tribes." REPRESENTATIVE BARNES said in talking about the intent of Congress, as with intent of the Alaska legislature, if something is not part of the law itself, it has no bearing in law. Furthermore, in talking about Indian law, Congress voted as Alaska did on the statehood compact and the Constitution of the State of Alaska, which gives the state jurisdiction over those resources. Number 0150 CARL L. ROSIER, Territorial Sportsmen, came forward to testify in support of HJR 21. Formed in 1945, the organization numbers 1,500 to 2,000 members. Referring to fish and wildlife management and the state constitution during the establishment of statehood, he noted, "They saw the state as one people, with equal access to the fish and wildlife resources. And that's what they stood for, and that's what we still stand for today." MR. ROSIER said his organization, which strongly supports HJR 21, believes amendments to ANILCA are the means to resolve the subsistence issue. Modifying the state constitution under conditions that exist today is not reasonable. Without changes to ANILCA, the state is destined for a future of conflict. MR. ROSIER said HJR 21 addresses most of the problems they see with ANILCA. However, it still does not make Alaska "a first-class citizen in the hall of states" regarding fish and wildlife management. He is convinced Alaskans can settle the subsistence issue if the federal government is not involved. Otherwise, he foresees a future of conflict and polarization of Alaskans. Number 0282 CO-CHAIRMAN OGAN concurred that Alaskans can solve the problem. "If Congress allows us to, I'd be one of the first to come to the table," he added. MR. ROSIER referred to page 2, item 7) of a document he had provided, entitled, "AFN Policy on Resolving the Subsistence Issues." He noted it says: "The subsistence priority applies at all times, not just when there is a resource shortage." REPRESENTATIVE NICHOLIA asked the source of that document. MR. ROSIER said it had been provided to him by Dick Bishop, Executive Director of the Alaska Outdoor Council. REPRESENTATIVE NICHOLIA asked whether the AFN had sent it to Mr. Bishop. MR. ROSIER said he did not know. He noted that the document was an official record from the AFN board meeting of March 4, 1996. Number 0374 REPRESENTATIVE WILLIAMS agreed something must be done with the subsistence issue to regain management that Alaska is losing. He indicated ANCSA protects Native subsistence. He asked for Mr. Rosier's thoughts on that. MR. ROSIER said that seems to be the crux of the problem. The state constitution provides everyone access to the resources. He does not believe allocating resources to one group or another in Alaska is the way to go. He understands that under ANCSA, and ultimately ANILCA, those aboriginal rights had in fact been extinguished. Number 0434 REPRESENTATIVE BARNES asked whether Mr. Rosier is familiar with HB 960, passed in 1977. MR. ROSIER said he remembered it vaguely. REPRESENTATIVE BARNES explained that was the subsistence law that passed and was then supported by the Special Committee on Subsistence. She served on that committee in 1979. From the beginning, she believed that law was unconstitutional, which it was later found to be. The legislature had been advised during testimony that if HB 960 passed, establishing a subsistence priority for rural residents, there would no longer be a need to bring this to the federal level. REPRESENTATIVE BARNES said it first became an issue at the federal level under that debate. After passage, HB 960 was used in Washington, D.C., as ammunition to get subsistence into Title VIII of ANILCA by saying, "See, this what the Alaska legislature wants." She asked if that refreshed Mr. Rosier's memory. MR. ROSIER said it did. As he recalled, that was the avenue the state was moving down until the Supreme Court decision. Number 0559 REPRESENTATIVE MASEK pointed out that HJR 21 is looking for an avenue to resolve the subsistence issue. The federal government is taking over management of the state's fish and wildlife. Although a Native who grew up in rural areas, she had taken an oath to uphold the state constitution, which gives equal treatment to all Alaskans, not depending on where they live or come from, nor on what racial or other background they have. REPRESENTATIVE MASEK believes it is important to all work together. She suggested looking to the future rather than getting caught up in the past. She believes HJR 21 will help build a bridge, resulting in fair and equal treatment. Number 0677 MR. ROSIER complimented Representative Masek and Co-Chairman Ogan, as cosponsor, on the resolution. He said the federal government would be "in our hair," messing in fish and wildlife management in Alaska, from here on. However, he does not believe that is desirable. Number 0720 CO-CHAIRMAN OGAN announced there were time constraints. However, he would try to take testimony from all communities signed up. Number 0747 APRIL FERGUSON, Kawerak, Incorporated, testified via teleconference from Nome. She personally believes HJR 21 is not in the long-term best interests of Alaska nor that it proposes constructive mechanisms for Alaskans to remedy the current impact of management. It proposes changes in ANILCA that will dissolve the fragile protections of the subsistence way of life. MS. FERGUSON questioned the viability of returning management to the state. She said HJR 21 proposes disenfranchising the most successful component of federal management, the regional advisory council. In addition, it portrays our state legislature as extremists to all members of Congress to whom it has been faxed. MS. FERGUSON concluded by saying with the singular exception of Representative Masek, the Native community of Alaska would accept no more compromise on subsistence. Number 0822 REPRESENTATIVE MASEK pointed out that subsistence is being protected right now. She asked whether Ms. Ferguson understands the problems they would face if the federal government took over management of Alaska's fish and wildlife. She believes the state is providing that opportunity for fishing and hunting, and that HJR 21 in no way would take away protection for all Alaskans, including Natives, both rural and urban. MS. FERGUSON said she respectfully disagrees. She feels more comfortable with the responsiveness of the federal management system than with the state or the legislature. Number 0895 NOEL WOODS testified via teleconference from Mat-Su, saying he fully supports HJR 21. He believes some of the terms in the existing laws are ill-defined or not defined at all, and thus subject to misconception or misusage by the federal government on this matter. MR. WOODS referred to item (9) on page 3, line 4. He suggested inserting the phrase "if established" between "provide that regional subsistence advisory councils" and "are only advisory to regulatory boards". He concluded by saying HJR 21 is a good start on a needed discussion. CO-CHAIRMAN OGAN concurred that part of the problem is that much of the language in ANILCA is subjective. Number 0980 BEN HASTINGS testified via teleconference. A third generation Alaskan, he had lived in Ketchikan 45 years. He thanked the sponsor for introducing HJR 21. He noted that in October, the federal government is threatening to take over management of our fish and game. He had observed the federal advisory council in action, on the Prince of Wales Island deer hunting issue concerning the harvesting of does. The council had not considered any biological input from state or federal biologists. He had concluded that the state, not the federal government, should deal with fish and game issues, as it has since statehood. The state constitution should not be changed to comply with ANILCA, which is a law. Rather, ANILCA should be changed. MR. HASTINGS said a deal is a deal only if ANILCA meets with Alaska's state constitution. He emphasized that all Alaskans are created equal. He offered to assist. He believes it is the most important issue to surface since statehood. Number 1094 REPRESENTATIVE WILLIAMS invited Mr. Hastings to attend the informational meeting on subsistence he planned for Tuesday, March 18, at 5:30 p.m. at the Ketchikan Civic Center. CO-CHAIRMAN HUDSON said Mr. Hastings brought up an interesting point. No Alaska law can go on the books without being constitutional, both under the state and federal constitutions. He presumed the former had been found constitutional in accordance with the latter. He suggested an attorney address the question of what responsibility the federal government has with its laws to the constitutionality of the existing states, for example, if a federal law is passed to essentially nullify a provision within Alaska's constitution, which obviously was established under the federal constitution. He believes this is an important element in ultimately solving the issue. Number 1173 REPRESENTATIVE MASEK said the state cannot act now because it is not complying with Title VIII of ANILCA. One or the other must change. A change to ANILCA would give the state authority to define "rural" and "customary and traditional." CO-CHAIRMAN OGAN said these issues had been headed for the Supreme Court, which would have provided some answers. However, that was headed off by the state Administration. Number 1243 ART IVANOFF, Subsistence Coordinator, Maniilaq Association, testified via teleconference from Kotzebue in opposition to HJR 21. He referred to Article XII, Section 12 of the state constitution, which states in part: "The State and its people agree that, unless otherwise provided by Congress, the property, as described in this section, shall remain subject to the absolute disposition of the United States." MR. IVANOFF then read from a preceding portion of Article XII, Section 12, which states: "The State and its people further disclaim all right or title in or to any property, including fishing rights, the right or title to which may be held by or for any Indian, Eskimo, or Aleut, or community thereof, as that right or title is defined in the act of admission." MR. IVANOFF said Article XII, Section 12, implies the state realized and honored the right of the federal government to protect the property rights of any Indian, Aleut or Eskimo and help in the development of aboriginal rights that were wrongly extinguished by ANCSA. ANILCA is a compromise between the Natives, the state and the federal government. He believes Alaska Natives are now being asked to compromise again. MR. IVANOFF stated, "We find it necessary for the federal government to live up to its legal, moral and political relationship it shares with Alaska's first people," he stated. "HJR 21 attacks the only real protection the rural communities have against pressure from effective and powerful interest groups like the commercial and sport interests." MR. IVANOFF referred to item (5) on page 2 of the bill. He said defining "rural" and "customary and traditional" for purposes of the definition of "subsistence uses" under 16 U.S.C. 3113 must remain in the hands of tribal government. MR. IVANOFF opposes item (10) on page 3, where proposed language would eliminate commercial use and sale of fish and wildlife taken for subsistence uses. He said customary trade among Alaska Natives has been an essential part of the economics in rural Alaska since time immemorial. The cost of living there is extremely high, and opportunities to trade must be provided so that revenue generated can provide for rural families. Number 1449 REPRESENTATIVE MASEK asked whether Mr. Ivanoff or his family had ever been denied the right to hunt or fish in the Kotzebue area. MR. IVANOFF said no. However, he believes there is a problem in some areas. He mentioned Nome in particular, where he believes state practices preclude adequate escapement or a sustained population that would allow for a subsistence take. Number 1173 REPRESENTATIVE MASEK said HJR 21 would return to the state the right to manage fish and game. The current dual management is not working. Amendments to ANILCA would allow all Alaskans to work on it, with more local control, rather than having the federal government come in and make regulations with no idea of what it is like to live in Alaska. Number 1618 DALE BONDURANT testified via teleconference from Kenai, stating he supports equal rights for all people. He believes the federal and state constitutions support and obligate all citizens to these standards of equality. He had testified before Congress that ANILCA was a moral and legal obligation of the nation. However, he believes Title VIII of ANILCA violates the validity of (indisc.) of ANCSA, which was an agreement between the federal and state governments and the Native people. MR. BONDURANT opposes any amendment to Alaska's constitution that would give special privileges to any identity of people. Giving privileges to one group denies equal rights to the others. MR. BONDURANT believes the Native people realize there is no longer a Native preference in subsistence. He said Congress had reasoned that giving a Native preference would make it a racial issue, which is improper. It was required that the state first vote for a constitution during the statehood act, and that the state have a fish and wildlife management program, before the Secretary of Interior would give up federal management. "And he did qualify that our management program met that requirement," he said. "Now, they're coming back and saying Alaska does not have ... this right to manage all of Alaska's fish and wildlife." He commended Representative Masek for living by her belief that all people are equal here on the earth. Number 1806 HERBERT SMELCER, Board Member, Tazlina Village Council, testified via teleconference from Glennallen in opposition to HJR 21. He said they would support more hearings on this resolution throughout the state, and they support a subsistence priority for rural Alaska. MR. SMELCER said local people had been denied subsistence use or opportunity, including seeing their fish wheels shut down. New people in the state had obtained permits to hunt caribou or moose, whereas locals had been unable to. "So we've had an impact by state regulations, and we feel that dual management is working for us, and we depend on it," he concluded. Number 1882 REPRESENTATIVE MASEK pointed out that HJR 21 preserves the federal requirement for a rural preference in order for Alaska to maintain management. She asked whether Mr. Smelcer had seen that. MR. SMELCER said yes. However, he believes taking away requirements under ANILCA, and putting decisions on definitions under state jurisdiction, will not benefit the subsistence priority for rural Alaska. Number 1955 DICK BISHOP, Executive Director, Alaska Outdoor Council, testified via teleconference from Fairbanks. His organization is a statewide umbrella group with 50 member clubs, plus individual members, totally 11,000 members. It promotes sound scientific management of Alaska's fish, wildlife and habitats, as well as public access to public resources, provided that an allocation is consistent with the state constitution as presently written. MR. BISHOP said the council supports HJR 21. It opens a new avenue of discussion and catalogs most of the major flaws in the federal law that demand amendment in order to have sound conservation and reasonable rules relating to resource uses. MR. BISHOP explained that the council has consistently opposed amending the Alaska constitution by including a rural priority for subsistence. It continues to do so on two grounds. First, it would violate the common use and equal protection provisions of Alaska's constitution. Second, it would be arbitrary and discriminate against the majority of Alaskans, solely on the basis of the postal zip code. The council maintains a subsistence priority is not needed to accommodate Alaskans who depend on personal use of fish and game for their livelihood. MR. BISHOP said if there were such a priority, it should be based on how people live, not where. The federal priority is not based on need, nor on how dependent people are on fish and game. Furthermore, it is absolutely not triggered by a shortage that is in place at all times, he said. Number 2081 MR. BISHOP said in 1992, the Alaska Outdoor Council agreed to a compromise in state law on workable priorities. However, that was defeated in the legislature through efforts of proponents of the federal rural priority. Now, the federal government is grinding along in its plan to preempt state management of all fish and wildlife, everywhere in Alaska, urged on by the AFN and other political entities. MR. BISHOP cautioned that the federal management regime will serve nobody well. Even the federal rural subsistence priority comes in a distant second because ANILCA puts nonconsumptive use as a higher priority. MR. BISHOP concluded that there cannot be meaningful Alaskan management unless federal court oversight is removed. He said HJR 21 provides a context to discuss the subsistence priority issue and identifies many of the functional flaws of Title VIII of ANILCA. Number 2172 REPRESENTATIVE REGGIE JOULE asked whether the Alaska Outdoor Council existed when ANCSA and ANILCA were passed. MR. BISHOP said it was formed around 1954 or 1955 by a coalition of the Territorial Sportsmen, the Matanuska Sportsmen and the Tanana Valley Sportsmens Association, and it had a slightly different name. About 1983, it took its present configuration as the Alaska Fish and Wildlife Federation and Outdoor Council, commonly known as the Alaska Outdoor Council. He noted that the Tanana organization went back as far as 1915. Number 2257 REPRESENTATIVE JOULE asked whether the council had supported or opposed ANCSA and ANILCA. MR. BISHOP did not know whether the council had been active on those issues. However, he did know, however, that groups associated with the council were concerned with ANILCA in general, not just with the subsistence priority but also, probably more important at that time, with establishment of the extensive federal conservation system units that threatened to reduce opportunity for hunting, fishing, trapping and so forth. MR. BISHOP believed it was reasonable to say that those same groups, and most likely the council, probably opposed a rural subsistence priority. He did know that members at least advised Congress that the federal provision for a rural priority was undoubtedly inconsistent with the Alaska state constitution. "However, Congress, in its wisdom, chose to not take a close look at that and passed it anyway," he commented. "That I am personally familiar with." Number 2420 REPRESENTATIVE BARNES recalled that the Alaska Outdoor Council was involved, as were a number of other groups. Having been in Washington, D.C., at the same time they were, she had personal knowledge on that subject. TAPE 97-27, SIDE A Number 0006 MR. BISHOP commented that the legislative history of ANCSA includes reference to the fact that lands intended to be transferred to Native corporations were to be transferred not only for economic gain but for the support of subsistence uses. Number 0077 MICHAEL PEDERSON, Arctic Slope Native Association, Ltd., testified via teleconference from Barrow. An Inupiat Eskimo who had lived in Barrow and Unalakleet, he opposes HJR 21. He believes it will destroy existing federal subsistence protections that Alaska Natives have. One reason land selections under ANCSA were made near villages was so people could practice their subsistence lifestyles. He believes HJR 21 would change that and would overturn the Katie John decision. "We've tried working with the state, and we're just not getting anywhere," he said. "And you want us to have a weaker standard of reasonable opportunity to catch fish and wildlife." MR. PEDERSON said HJR 21 would also make the regional subsistence advisory councils under the federal management program ineffective. "But that's one of our only strongholds that we have," he said. "We're lucky that the federal subsistence board listens to us." MR. PEDERSON asked what time line there was for submitting written comments for the public record. Number 0228 CO-CHAIRMAN OGAN confirmed that the committee would accept written testimony and submit it to future committees and to the floor. He had no set deadline but suggested a week or two. He said his door is open to anyone at anytime to discuss this. He noted that the intention with HJR 21 is to get everyone to the table to discuss and settle this issue as Alaskans. CO-CHAIRMAN OGAN explained his intention of hearing from a broad variety of people from around the state that day. Number 0462 HEATHER KENDALL, Staff Attorney, Native American Rights Fund, testified via teleconference from Anchorage on behalf of the Alaska Inter-Tribal Council, which opposes HJR 21. She said the council is a consortium consisting of the majority of 220 federally- recognized tribes in Alaska. She called HJR 21 ill-conceived. She said rather than address specifics, she would make general observations. MS. KENDALL said HJR 21 attempts, very broadly, to repeal many of the most important provisions of ANILCA's protections. She referred to the sponsor statement, which indicates HJR 21 is intended to bring people to the table to discuss the importance of subsistence and to allow Alaskans to decide how to resolve this issue. However, Ms. Kendall believes that is not occurring. MS. KENDALL stated, "You, as a body, have already determined what provisions of ANILCA you believe to be important in terms of repealing them," she said. "You have not opened this debate up to the public, and in fact, most of the Native communities that have a vested interest in this debate have been excluded from giving their testimony here today because there are insufficient lines for them to be able to testify." She urged another hearing at least and suggested that "bush Alaska" be able to testify in person. Number 0577 REPRESENTATIVE BARNES disagreed that the committee was excluding anyone. MS. KENDALL said the committee would not hear testimony that day on behalf of the Native community because they were only plugged into urban centers. She suggested they were not allowing a broader forum for debate. Number 0694 REPRESENTATIVE BARNES replied that this debate had been going on 20 years. She suggested getting testimony in writing from any community they were unable to reach by teleconference. MS. KENDALL referred to discussion about whether ANILCA was Indian legislation. She claimed the Alaska State Legislature has little respect for federal law, especially for 9th Circuit Court of Appeals opinions on federal cases. She said 11 or more 9th Circuit cases refer to Title VIII of ANILCA as Native legislation. Title VIII was a response to extinguishment of aboriginal hunting and fishing claims through ANCSA. It is remedial legislation and a treaty substitute. It is federal law that protects federal rights, and it has been repeatedly upheld in the 9th Circuit. "That law is not subject to this body's termination or amendment," she concluded. Number 0745 CO-CHAIRMAN OGAN concurred with Representative Barnes. He resented the implication that the committee was not hearing from people around the state. "I have deliberately gone to every community that is hooked up to teleconference," he said. "We have not, other than for technical reasons because of the lack of capacity for phone lines, not hooked anybody up." REPRESENTATIVE NICHOLIA noted that only one community in her district was able to be on teleconference. CO-CHAIRMAN OGAN acknowledged that. He said he especially wanted to hear from anyone with testimony that stands out or offers something new. Number 0857 JULIE KITKA, President, Alaska Federation of Natives (AFN), testified via teleconference from Anchorage. She said one common ground is the need to protect habitat for Alaska's fish and game. She urged the committee to seek to improve the state's management of fish and game. MS. KITKA suggested increasing appropriations for a management system that would be world-class, state-of-the-art and the envy of the Arctic and the United States, if not the world. She believes there is much room for improvement and that Alaska has the resources, should that be a priority. MS. KITKA suggested an appropriation to enable the House Resources Standing Committee to develop into the group in the legislature with the greatest expertise on this issue. She urged them to meet with people face-to-face in 25 or 30 rural communities. MS. KITKA said subsistence is an economy in rural Alaska. She suggested the legislature strengthen this economic system however it can, realizing many people depend on it. Subsistence is the sole reason why many people can live on such low cash incomes. With recent federal welfare reform and its negative impacts, those most dependent on subsistence would have even more difficulty providing for basic needs. She expressed concern that the economic component could get buried by political issues. Number 1160 MS. KITKA indicated the AFN's main concern is that Natives depending on subsistence be allowed to continue doing in peace what they have done for many, many years, and that they not be undercut in their ability to provide for their families and live their lives, in any way, by the legislature or anybody else. MS. KITKA said the AFN adamantly opposes HJR 21. A more appropriate approach would be seeking common ground and acting on some of the suggestions she had made. MS. KITKA expressed concern that the state would lose credibility with the U.S. Congress if the legislature adopts HJR 21. The AFN believes HJR 21 guts Title VIII of ANILCA. A more constructive approach would be building expertise as she had suggested, and then going forward to address the issue. Number 1267 REPRESENTATIVE BARNES responded that she and other committee members have been to the rural areas. She believes all areas of Alaska must be held as one, and all people treated fairly. REPRESENTATIVE BARNES said the preferential use of Alaska's fish and game should be allowing subsistence for anyone in Alaska, no matter where they live, who needs to feed themselves and their families. However, it should not be for one segment of Alaska's population over another. REPRESENTATIVE BARNES had brought committees to rural areas and enjoyed a great friendship with people living there. She believes thinking there is only one way misses the point. She said Ms. Kitka is saying, "If you don't do it our way, then we support federal management of fish and game or a dual management system," and then she is asking the state to pay for it through habitat and appropriations for increased resource management. Representative Barnes said she cannot agree with that. She asked why not let the dual management, i.e., the federal government, pay for it. Number 1422 MS. KITKA clarified that she was not saying the committee had no expertise on this issue. She was suggesting they might want to build it up. Rural parts of the state would invite the committee to come out and engage in discussions, with the goal of seeking common ground. MS. KITKA restated earlier suggestions on the state management system. She believed it would do a lot of good if all citizens could point towards the state management system as being the very best, even better than the federal system. However, the AFN's experience with the federal subsistence board had been very positive. She suggested people would rather work with the state system than the federal system if the former did not fall short. Number 1570 CO-CHAIRMAN OGAN commented that he had traveled and worked extensively throughout rural Alaska. REPRESENTATIVE MASEK concurred with Representative Barnes on having more expertise. She asked Ms. Kitka how much money the AFN had spent in the past few years on the subsistence issue. MS. KITKA replied she did not have a dollar amount. To her knowledge, there had been no state general fund money spent. REPRESENTATIVE MASEK asked how much had been spent on attorney fees and travel costs to Washington, D.C., and to statewide hearings. She asked for a round figure and specified she was asking about Natives' money, not state funds. MS. KITKA said she did not know. "That's not how we keep track of things," she said. Number 1713 REPRESENTATIVE MASEK asked Ms. Kitka to provide, in the future, how much the AFN has spent on battling this issue. She also wanted to know what the AFN has done constructively to work with all the entities in the state to resolve it. She said she would follow up with Ms. Kitka at a later time. MS. KITKA noted that Representative Masek had served on the Alaska Native Commission, a joint federal-state commission. The AFN had been very much involved in creating that. The commission produced a three-volume report to the U.S. Congress and the state legislature, one volume of which was on the subsistence issue. She recommended the committee review that. Number 1776 CO-CHAIRMAN OGAN commented that he would be more than happy to spend time in the interim traveling around rural Alaska. REPRESENTATIVE WILLIAMS asked Ms. Kitka to have an AFN attorney look at the conference committee report of December 13, 1971. "What I'd like to know is, we gave up our aboriginal fishing and hunting rights," he said. "And I'd like to see how the other portion, where the conference committee expects both the Secretary [of Interior] and the state to take necessary action to protect the subsistence needs of the Natives. I'd like to know ... if we did give up the subsistence issues ... in that conference committee." MS. KITKA replied that the AFN would gladly provide a short paper on that specific issue. She agreed with John Borbridge's recitation of the history on that process. Number 1866 REPRESENTATIVE JOULE asked what impacts, if any, the proposed amendments to ANILCA would have on ANCSA. He suggested an answer could be provided in writing or at another hearing. MS. KITKA said the AFN would be glad to provide an analysis. REPRESENTATIVE BARNES said ANCSA had passed first, and ANILCA was in no way tied to it. And it is the latter that HJR 21 addresses. MS. KITKA said she was uncertain whether Representative Joule was asking about impact on Native land. She said HJR 21 negatively impacts Native lands, which comprise 12 percent of the entire state and the bulk of private land in the state. Number 2014 CO-CHAIRMAN OGAN noted the time constraints and asked that further questions be brief. MS. KITKA extended an invitation to the committee and offered to help plan a trip "to further the search for common ground." CO-CHAIRMAN OGAN indicated the desire to stay in touch on that issue. Number 2079 CO-CHAIRMAN HUDSON referred to his earlier request to John Borbridge to provide the committee with an assessment. He stated his belief that everyone ultimately wants control of the management of Alaska's fish and wildlife to be by Alaska residents. He stated, "It seems to me where we break down is when we try to define what the description or definitions are on one side, that seems to create almost a total, exact opposite on the other side. And what I'd like to find out is where the common ground is, and then, if we can, try to find a common solution to ultimately gaining back ... our control here." He believes the solution is changing ANILCA, not the state constitution. CO-CHAIRMAN HUDSON requested that Ms. Kitka critique the elements of the resolution and providing specific justification, reasons or citations as to her position, as a beginning of finding common definition. MS. KITKA offered to provide a written statement or meet with the committee later. CO-CHAIRMAN OGAN asked that she submit it in writing. Number 2233 SID SMITH testified via teleconference from Dillingham. He noted he was the first president of the subsistence committee "that also passed in Washington, D.C., in 1978." He provided a brief history. Representative Barnes had been at many meetings he attended. In the late 1970s, the state management was poor. The federal government wanted to take over, and there had been much discussion of local control. It was decided to let the state do the management. MR. SMITH said from 1978 to 1992, there was supposed to be a regional board set up, funded by the federal government. "The only time the thing changed is when Babbitt came to Dillingham and I mentioned it, that we do have tribes, and also, we need to set up regional boards around the state," he said. "And it took 14 years. And my question is, ... why didn't the state set up these boards when they had the opportune time in 1979?" Number 2313 MR. SMITH referred to dual management. He said what he opposes in HJR 21 relates to changing the definitions. He suggested that if there was a vote, it should be by majority of the users of the "reasonable resource." He was bothered by emotionalism on the issues. He agreed with Julie Kitka that the committee should come to the rural areas. He advised members that he had put out two movies. He indicated rural people depend on the economic system just like others depend on a cash economy. MR. SMITH asked about the phrase "State of Alaska" versus "Alaska state." CO-CHAIRMAN OGAN said he interprets both to be the same entity. Number 2431 JOHN AMIK, Tribal Administrator, Kipnuk Traditional Council, testified via teleconference. Opposed to HJR 21, they do not want regulations that would prevent Native people from hunting and fishing "in our traditional and cultural way." They depend on the resources and have little income for store-bought foods, which cost sometimes double or more those in Anchorage. MR. AMIK stated, "It is complicated for us to put our own regulations in writing, but it's ... easy enough for us to learn from our elders as they teach us to respect our land and the resources we depend on." He indicated such knowledge allows self- regulation that enables them to put food on their tables and to share it with neighboring villages. TAPE 97-27, SIDE B Number 0006 MR. AMIK said they want a diversified diet that they can depend on and are used to eating. He invited the committee to visit his village for a month to live as they do. CO-CHAIRMAN OGAN said he would work on getting to rural Alaska this interim. Number 0070 ANTHONY CALOI, Tribal Administrator, Native Village of Quinhagak, testified via teleconference. With him were Wassilie Bavilla, President; Henry Small, General Manager; and Frank Fox, Natural Resources Director. Also with him, from the village corporation of Qanirtuuk, Incorporated, was George Pleasant, board member. MR. CALOI said in Quinhagak, the city and tribal councils operate under a memorandum of agreement by which the administrations are consolidated. The Native Village of Quinhagak and the village corporation oppose HJR 21. MR. CALOI discussed the trend away from guaranteed rural and indigenous preference for subsistence. In the international arena, there is a trend of international treaties deteriorating indigenous subsistence rights. Eliminating federal oversight and the threat of federal preemption will remove the only force protecting subsistence. It will also eliminate the "federal avenue for ensuring co-management of the resources with the tribes," he said. MR. CALOI stated, "Our experience is that state management of the resources is biased towards sport and commercial fisheries at the expense of subsistence resources." In his village, they sued the state and the federal government in order to take rainbow trout for subsistence, because under state law it is illegal. However, it is not illegal for sport fishermen. Number 0129 MR. CALOI said co-management is the key to sustained resources in the future. The state alone cannot succeed. Title VIII is the vehicle through which the tribes can co-manage. "We all know that the state has been reluctant to co-manage with the tribes," he said. "Therefore, we must not diminish or weaken Title VIII in the law. Rather, we should strengthen it." MR. CALOI said, "In Quinhagak, we have demonstrated the indispensable role that tribes are playing in the management of the resources. In our village, where thousands of salmon have been harvested without sufficient escapement data, we were told by the state's Sport Fish division that accounting time would be a waste and doomed to failure. But we prevailed. We secured the funds. And in conjunction with Fish and Game and the Fish and Wildlife, we successfully operated (indisc.) in the (Indisc.) River. That success was a result of the collective knowledge of tribal members participating in the project." MR. CALOI said under state management, there has been fecal contamination of a local river because of a dramatic increase in sport fishing. Although they have wanted to support the Department of Fish and Game restrictions to deal with this problem, they had been told if they restrict sport fishing, they must also restrict their own subsistence. MR. CALOI read a statement from Frank Fox, Natural Resources Director: "Subsistence way of life is not a matter of law. It is a matter of the right to live. (Indisc.) bring food to the table. Hunting, fishing, berry picking, egg gathering, all forms of food gathering bring food to the table. Maybe it is time that we change our strategy. Maybe it is time that we look at subsistence as a right-to-live issue. No one can argue that we, as Native people, actually have a right to live. Right to live means that we can go out and harvest and gather food when it is around, so that we can feed our families. Without a guaranteed rural protection for subsistence hunting and fishing, we will not survive as a people." Number 0297 GEORGE YASKA, Executive Officer, Tanana Chiefs Conference, Incorporated, testified via teleconference from Fairbanks. He said recent actions within the Native subsistence movement and HJR 21 may represent some progress towards a meeting of minds on the subsistence issue. In February, the Rural Alaska Community Action Program (RuRAL CAP) sponsored a subsistence round table in Anchorage, which produced a proclamation on subsistence representing a shift in positions. MR. YASKA explained that prior to the proclamation, the consensus in the Native community favored return to state unitary management and a constitutional amendment that would comply with ANILCA. However, the round table produced a new recognition that Alaskans have reached an impasse and that dual management will be a permanent feature of fish and game management in Alaska in the foreseeable future. MR. YASKA said the proclamation calls upon the Native community to refocus efforts to make the dual management system work, through development of greater cooperation between land managers and development of co-management systems that will meet subsistence users' needs. MR. YASKA said interestingly, HJR 21 is premised upon a similar realization that dual management is likely to continue in the near future. It may signify progress that both sides acknowledge this. Rather than focusing on co-management, however, HJR 21 calls for amendment to ANILCA, which would erect an impenetrable wall between state and federal game management. MR. YASKA urged the committee to consider co-management options. Conservation is the greatest concern. Under dual management, someone must ensure conservation goals are met. Generally, the federal subsistence board is restricted to making allocation decisions on federal land. However, federal regulators may go outside federal lands to regulate migratory species for conservation purposes. MR. YASKA said recent actions by that board had extended federal restrictions on state and private lands to prevent overharvest on state lands that adversely affect game populations found on federal lands. The resolution proposes to prohibit federal regulation on state land. It begs the question of how conservation goals will be coordinated and attained on federal-state land. MR. YASKA acknowledged the time limits and indicated he had further written testimony. Number 0433 KAY ANDREW testified via teleconference from Ketchikan. A lifelong Alaska resident, she is being denied subsistence because of where she chooses to live. To Representatives Masek and Ogan she said, "You're the only ones that are guarding my rights as an Alaskan." MS. ANDREW said she was hearing that some rural residents do not care about her rights. With the federal government taking over fishing management in October, and the recent proposal to the federal subsistence board by the federal advisory committee for closing all of Prince of Wales Island, including all adjacent islands and waterways, she believes she is being denied her civil rights as a United States citizen because of where she chooses to live. MS. ANDREW referred to item (10) on page 3 of the bill, which requests elimination of commercial use and sale of fish and wildlife taken for subsistence use. She believes this is the most important issue. Under no circumstances should sales be allowed. She wants the state to initiate a new lawsuit and said Ketchikan residents are pursuing that. She would also like the committee to visit her way of life. Number 0539 REPRESENTATIVE WILLIAMS informed Ms. Andrew of the upcoming meeting in Ketchikan. MS. ANDREW thanked Representative Williams for putting that together. Number 0566 The teleconference operator from Kotzebue advised members that Pete Schaeffer had departed but had left testimony. LUKE SAMPSON, Special Assistant to the Mayor, Northwest Arctic Borough, testified via teleconference from Kotzebue on behalf of Mayor Chuck Greene. He said he had probably been in the same room as Representative Barnes, discussing the same issue, 20 years ago. MR. SAMPSON said the borough opposes HJR 21. He stated, "In any form whatsoever, it does not represent the sentiment of our constituents in the Northwest Arctic Borough and the 11 communities we serve." He said it takes away a significant Alaskan way of life necessary to both indigenous and rural Alaskans. These citizens are being deprived of local control by deceptive use of a "legislative mechanism called a joint resolution." MR. SAMPSON said HJR 21 only creates more conflict for all Alaskans. It is either insensitive, by ill-informed legislators, or deliberately ignores the needs of constituents most directly impacted. He concluded that the borough's past record on the issue of protecting subsistence still stands. Number 0726 CO-CHAIRMAN OGAN confirmed that all off-net testifiers had been heard. Number 0777 NICK JACKSON testified via teleconference from Glennallen. He had spent two terms on the Board of Game and listened to rural residents testify. Mr. Jackson opposes HJR 21. He agrees with testimony by John Borbridge, Art Ivanoff and Julie Kitka. He believes HJR 21 would make rural people second-class citizens. CO-CHAIRMAN OGAN announced that public testimony was concluded. He apologized to those unable to testify because of the long list. However, he believed a fair representation from around the state had been heard. Referring to Representative Nicholia's complaint that not enough people had been hooked up, he noted that her office had only begun attempting to hook up sites the previous day. He suggested that with earlier notice, more lines could be arranged. He emphasized that the lack of hook-ups was not deliberate. Number 0887 REPRESENTATIVE BARNES made a motion that HJR 21 move from the committee with individual recommendations. REPRESENTATIVE WILLIAMS objected. He had excerpts from the ANCSA conference committee report and from ANILCA. When he asked to have it copied for committee members, Co-Chairman Ogan replied that the conference committee was not the law of the land that was passed. Representative Williams said he does not think that is relevant. He said it was passed and is the law of this land. ANILCA was started because of what was said in ANCSA. REPRESENTATIVE WILLIAMS read from the ANCSA Conference Report, dated December 13, 1971, "C. Other Issues," item 2, which states: "The Senate amendment to the House bill provided for the protection of the Native people's interest in and use of subsistence resources on the public lands. The conference committee, after careful consideration, believes that all Native interest in subsistence resource lands can and will be protected by the Secretary through the exercise of his existing withdrawal authority. "The Secretary could, for example, withdraw appropriate lands and classify them in a manner which would protect Native subsistence needs and requirements by closing appropriate lands to entry by nonresidents when the subsistence resources of these lands are in short supply or otherwise threatened. The Conference Committee expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the Natives." REPRESENTATIVE WILLIAMS read from Title VIII of ANILCA, "Findings," subsection (4), saying it explains why Title VIII was added. It states: "in order to fulfill the policies and purposes of the Alaska Native Claims Settlement Act and as a matter of equity, it is necessary for the Congress to invoke its constitutional authority over Native affairs and its constitutional authority under the property clause and commerce clause to protect and provide the opportunity for continued subsistence uses on the public lands by Native and non-Native rural residents". Number 1052 REPRESENTATIVE WILLIAMS said he looks at that as an agreement with the Native people of Alaska. When the Trans-Alaska Pipeline was being built, there was a great push to get it built. A land-freeze was put on land throughout Alaska. He said this bill passed on December 18, 1971. He said at the end of any session, things pass quickly. He would like to think that through all of this, that this is the law of the land. He looks at this as a deal that has been made, and he would hope the committee would recognize that. Number 1123 CO-CHAIRMAN OGAN said under the settlement, all aboriginal titles, if any, and claims to aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas both inland and offshore, and including any aboriginal hunting and fishing rights that may exist, are extinguished. "That was what was passed in the law," he stated. "I didn't mean to be disrespectful. It's just that the conference committee was what was debated in the conference committee. Unless I misunderstand it, that was what was debated. This was what was settled." Number 1160 REPRESENTATIVE BARNES referred to the first statement read by Representative Williams and said that was not part of the law. It was intent language, which does not carry the force of law. "And it very clearly said that if you were to limit the taking of fish and game, it would be done to nonresidents," she stated. "We aren't talking about nonresidents here, we're talking about Alaskans." She said ANILCA was a follow-up to ANCSA. And HJR 21 specifically speaks to Title VIII of ANILCA, which goes to the heart of Alaska's constitution and statehood compact. Number 1228 REPRESENTATIVE JOULE objected to moving HJR 21 at this time. A small sampling of people had testified. He hoped the committee could hear it over the next couple of weeks, which had been his understanding. CO-CHAIRMAN OGAN indicated he had not committed to further hearings. Number 1309 CO-CHAIRMAN OGAN called an at-ease at 4:09 p.m. He called the meeting back to order at 4:11 p.m. He announced he would hold HJR 21 until the next meeting. REPRESENTATIVE BARNES asked to leave the motion to move HJR 21, which includes a zero fiscal note, pending. CO-CHAIRMAN OGAN advised members that there could be discussion in the meantime. ADJOURNMENT CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee meeting at 4:12 p.m.