Legislature(1997 - 1998)
10/07/1997 01:07 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
October 7, 1997
1:07 p.m.
Anchorage, Alaska
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman (via teleconference)
Representative Scott Ogan, Co-Chairman
Representative William K. ("Bill") Williams (via teleconference)
Representative Ramona Barnes
Representative Fred Dyson
Representative Joe Green
MEMBERS ABSENT
Representative Beverly Masek, Vice Chair
Representative Irene Nicholia
Representative Reggie Joule
OTHER HOUSE MEMBERS PRESENT
Representative Gail Phillips (via teleconference)
Representative Norman Rokeberg
Representative John Cowdery
COMMITTEE CALENDAR
Informational Hearing: Review of latest Alaska National Interest
Lands Conservation Act (ANILCA) Amendments
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 265-2450
POSITION STATEMENT: Discussed changes to ANILCA.
DAVE STANCLIFF, Legislative Administrative Assistant
to Representative Scott Ogan
Alaska State Legislature
600 East Railroad Avenue, Suite 1
Wasilla, Alaska 99654
Telephone: (907) 376-4866
POSITION STATEMENT: Reviewed committee packets.
WAYNE ANTHONY ROSS, Attorney
Ross and Miner, PC
327 East Fireweed Lane, Suite 201
Anchorage, Alaska 99503
Telephone: (907) 276-5307
POSITION STATEMENT: Discussed changes to ANILCA.
ACTION NARRATIVE
TAPE 97-65, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:07 p.m. Members present at the
call to order were Representatives Green, Dyson and Ogan in person
and Representative Hudson via teleconference. Representative
Barnes arrived after the call to order, and Representative Williams
joined somewhat later via teleconference. Co-Chairman Ogan noted
that Representative Masek was unable to attend because of an injury
to her hand. Speaker Gail Phillips listened via teleconference.
INFORMATIONAL HEARING: REVIEW OF LATEST ANILCA AMENDMENTS
Number 0033
CO-CHAIRMAN OGAN said he would like to keep the meeting strictly to
a factual and orderly review of the changes passed the previous
week by U.S. Senator Ted Stevens to the Alaska National Interest
Lands Conservation Act (ANILCA) and to compare changes recommended
by the Governor's task force with any differences in the ANILCA
amendments that were actually passed. Co-Chairman Ogan indicated
his intent of reconvening the meeting within the next ten days,
when both their legal counsel and their consultant on the issue
were available. He asked Mr. Utermohle to brief the committee on
the changes to ANILCA.
Number 0218
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, testified via teleconference,
saying he would briefly review the amendment proposed by Senator
Stevens relating to subsistence hunting and fishing in Alaska. He
noted the amendment is to the appropriations bill for the
Department of the Interior. It contains four sections. The first
section merely continues the existing moratorium against the
Department of the Interior adopting regulations extending the
federal subsistence preference to navigable waters subject to a
reservation.
CO-CHAIRMAN OGAN requested that Dave Stancliff review with members
the information in their files.
Number 0324
DAVE STANCLIFF, Legislative Administrative Assistant to
Representative Scott Ogan, indicated the committee files contain a
copy of the agenda; a general outline of events; a side-by-side
comparison of the changes to ANILCA [which refers at least in part
to an earlier version of the Stevens amendment], as well as a short
narrative comparison; the actual amendments sent by Senator
Stevens' office; and the final recommendation of the Governor's
task force. He said Senator Halford and Co-Chairman Ogan had taken
substantial public testimony prior to the ANILCA amendment.
CO-CHAIRMAN OGAN advised members they would begin with the document
titled, "Amendment to Be Offered by Senator Stevens to H.R. 2107."
Number 0423
MR. UTERMOHLE explained, "Section 01 of Senator Stevens' amendment
continues the current moratorium against the federal government
adopting regulations to extend control over navigable waters for
the purposes of regulating subsistence. The actual amendments that
Senator Stevens proposes to ANILCA are contained in Section 2 of
the bill. He makes a series of eight amendments to ANILCA."
MR. UTERMOHLE said in the first amendment to ANILCA, in Section 02,
it amends the definitions in the general provisions of ANILCA. In
particular, it amends the definition of "Federal land" to provide
that "Federal land" does not include lands the title to which is in
the state, a Native corporation or under private ownership. While
the task force provides for a similar amendment, the wording is
slightly different in that federal land is not to include "state
land, corporation land or other private ownership land, as well as
land subject to selection by the state."
Number 0615
MR. UTERMOHLE explained that the next amendment that Senator
Stevens proposed to ANILCA was to the findings section. He adds an
additional series of six findings, which basically summarize the
history of subsistence issues since ANILCA was passed; they make
reference to the McDowell case, to the fact that the "Secretary of
the Interior and Agriculture" had taken over subsistence management
in the state, and to the Babbitt decision. The state task force
proposal has no similar provision.
Number 0702
MR. UTERMOHLE referred to the side-by-side comparison in committee
packets. He said he noticed there is concern about "paragraphs (4)
and (5) of these findings." He stated, "In particular, paragraph
(4) recognizes that the Secretary of the Interior has been required
to assume management of subsistence due to the failure of the state
to provide for a rural preference. This essentially ratifies the
action of the Secretary of the Interior in doing so. In the early
stages of the Babbitt case, it was an issue whether or not the
Secretary of the Interior had the authority to assume management of
fish and wildlife in the state." He said this finding would seem
to ratify the action of the Secretary of the Interior and would
essentially remove that issue from litigation.
Number 0808
MR. UTERMOHLE stated, "The second issue raised by your counsel ...
relates to the Babbitt decision. This finding merely states that
the Ninth Circuit in the Babbitt decision did recognize that public
lands for ... purposes of subsistence applies to navigable waters
in which the United State has reserved water rights. I don't see
a particular problem with this; this merely sets out what the court
did, without ... making a judgment as to whether it was good or
bad."
Number 0850
MR. UTERMOHLE said the next amendment proposed by Senator Stevens
is to the definitions for Title VIII, which deal with subsistence.
In particular, Senator Stevens proposes three additional
definitions: "customary and traditional uses," "customary trade,"
and "rural Alaska residents." There is some variance between the
language proposed by Senator Stevens and that of the task force,
particularly in regard to the definition of "customary and
traditional uses." Senator Stevens provides that the definition
means the noncommercial, long-term and consistent use of or
reliance upon fish and wildlife. Under current state law, that
language says "the taking or use of and reliance upon." Mr.
Utermohle indicated he couldn't say whether substituting the word
"or" for "and" in that context is particularly significant;
however, it is a change that was noted as being significant by
"your counsel."
MR. UTERMOHLE stated, "The important change I see in the definition
of `customary and traditional uses' is that Senator Stevens has
identified that `customary and traditional uses' includes patterns
and practices of taking or using of fish and wildlife that have
been established over a reasonable period of time. The task force
and, I think, under provisions under existing law in this state,
(indisc.) `customary and traditional' recognizes patterns of taking
or use. By adding `practices,' we may be excepting certain methods
and manners and means which are not provided for by state statute.
It may make it difficult for the state to regulate certain means of
taking game."
Number 1117
MR. UTERMOHLE stated, "In a recent case, the Totemoff case, it was
an issue whether or not the state had authority to regulate a
subsistence hunter on federal land who was spotlighting for deer.
As I recall, the court found that spotlighting may have been a
traditional means of taking deer, but the traditional means weren't
protected under state law and thus were illegal. This change,
here, I think it may affect the ability of the state to outlaw
traditional means of taking."
Number 1150
MR. UTERMOHLE said the next definition is "customary trade." The
language of the task force and of Senator Stevens varies somewhat,
and both definitions are somewhat ambiguous. They basically
provide that customary trade is a limited noncommercial exchange
for money of fish and wildlife and their parts in minimal
quantities, with an exception provided for sales of furs and
furbearers.
MR. UTERMOHLE explained that the "rural Alaska resident" definition
has minor variations between the task force's and Senator Stevens'
versions, but not necessarily with any particular significance.
[He said the only difference is that a rural resident is a person
of a rural community or area which is substantially dependent on
fish and wildlife for nutritional or other subsistence uses,
whereas the task force proposed the language, "for nutritional and
other subsistence uses" (emphasis provided). However, this
language difference relates to an earlier version addressed in the
side-by-side comparison, not the final version of the Stevens
amendment which was now before the committee.]
Number 1315
MR. UTERMOHLE explained that the next provision recommended by
Senator Stevens makes a significant change to the subsistence
preference. It adds a provision that the subsistence preference
provides only for a reasonable opportunity consistent with
customary and traditional use. This provision may alter the
state's ability to impose seasons and bag limits.
Number 1419
CO-CHAIRMAN OGAN asked for clarification.
MR. UTERMOHLE explained that customary and traditional use includes
those patterns and practices of taking or use that have been
established over a long period of time. If subsistence users can
document that there is a long-standing pattern of taking fish and
game year-round, then the state may have to provide that kind of
opportunity.
Number 1502
CO-CHAIRMAN BILL HUDSON suggested the word "practice" may be the
concern. By combining patterns and practices established over
reasonable periods of time, it might preclude the state from
limiting or regulating, through bag limits and seasons which the
state currently has, because of the combination of those two words
or the "potentials of them" in a court determination.
Number 1540
CO-CHAIRMAN OGAN said he thinks one goal of the task force was to
fix the Bobby case, which did not allow the closing of seasons and
bag limits around Lime Village. He said his concern is that maybe
this language didn't fix that; he asked Mr. Utermohle whether that
is reasonable.
Number 1608
MR. UTERMOHLE replied that it seems it is intended to approach that
issue. He stated, "The task force didn't address the issue of
practices of taking and use. It just (indisc.) the patterns, which
has been formally recognized and addressed in our state law, by
allowing practices that ... may be enshrining certain traditional
practices which the state has perhaps restricted in the past."
Number 1634
CO-CHAIRMAN OGAN asked about fish traps or herding caribou into an
enclosure and slaughtering them. He asked whether they could say
that in years past these were customary, traditional ways, for
example. He asked whether this would be opening a Pandora's box.
MR. UTERMOHLE said he couldn't answer that question; all he could
say was that the function of the subsistence users' establishing
that they have a long-term practice of taking or use involves that
as a practice.
Number 1720
CO-CHAIRMAN OGAN noted the presence of Representative Rokeberg.
Number 1755
MR. UTERMOHLE explained that the next amendment by Senator Stevens
addresses "supersedure, which is the process by which the state
gets the ability to supersede federal regulations in the management
of subsistence provisions relating to the establishment of regional
councils and membership of regional councils." He said the
language is significantly different between the task force's
version and Senator Stevens' version, but the effect of the
language is essentially the same.
MR. UTERMOHLE said the next amendment proposed by Senator Stevens
is to provisions relating to traditional enforcement; it provides
standards of review and standards for deference to decisions of
state agencies.
Number 1857
CO-CHAIRMAN OGAN referred to the issue of regional councils and
said essentially the federal government is telling Alaska that we
need to amend our statutes to say that the Governor shall appoint
ten members, as he recalls it, four of which will be from tribal
councils. He said he knows that at times there have been
appropriations to tribal entities with a savings clause that is a
waiver of sovereign immunity, as he understands it. He asked
whether a precedent is being set here. He explained that the
Attorney General, in the Anchorage Daily News, said it is a great
departure from past practices. Co-Chairman Ogan asked Mr.
Utermohle to speak to the implications of recognizing tribal
councils in statute. He noted that Article I, Section 1, of the
Alaska Constitution talks about equal protections, and the
Fourteenth Amendment to the U.S. Constitution indicates that states
shall not make laws that discriminate and such.
Number 2029
MR. UTERMOHLE noted that there were several issues in that
question. He said, "The state, ... as far as I can tell, has never
dealt with a tribal entity as a tribal entity. Indeed the state,
on a regular basis, deals with village councils and through a
number of enforcements, a number of laws giving certain ... powers
to regulate certain activities in a village or allowing them to
receive state aid for construction of capital facilities, et
cetera. But the state does that not necessarily as a government-
to-government situation, but as a basis, ... the ... village
council being the one identifiable entity in a particular area of
the state which the state can deal with. There is no implied
recognition of their tribal status, and many of these village
councils may well ... have tribal status."
MR. UTERMOHLE pointed out that the fact that the state deals with
village councils does not necessarily mean it recognizes their
tribal status or any attributes that tribal status may have,
including sovereign immunity. The state, in a defensive posture,
without necessarily recognizing sovereign immunity, provides that
in dealing with village councils, they do waive any sovereign
immunity that they may have.
MR. UTERMOHLE noted that requiring certain members to be nominated
by tribal councils is a significant departure from past practice.
He stated, "The Department of Law has always cautioned us, whenever
the legislature recommends that someone be nominated by a group and
appointed by the Governor, that it's an infringement on the
Governor's appointment powers to limit the choices of people from
which the Governor can select."
Number 2241
CO-CHAIRMAN OGAN asked, "So, would you say this amendment allows us
to discriminate based on race for nominations to panels?"
MR. UTERMOHLE responded that he doesn't see that at all. It just
allows tribal councils to make recommendations of people to serve.
The only restrictions on the people they select to be nominated to
serve on the regional council is that "they reside in the area in
which the subsistence council is in control." He pointed out they
could be members or nonmembers of tribes, Natives, non-Natives or
people living in the rural area.
Number 2318
CO-CHAIRMAN OGAN said, "But a racially defined organization makes
the appointment."
MR. UTERMOHLE replied that a tribal organization would submit the
nomination.
Number 2346
REPRESENTATIVE FRED DYSON referred to page 1, section 02(b)(2), and
he asked Mr. Utermohle whether he'd said that federal land does not
include land that is subject to state selection. He stated, "It's
not on my page." He asked whether he was missing information or
whether it was an inference.
CO-CHAIRMAN OGAN said he thought it was an inference. He stated
his understanding that it was a difference between the task force
wording and the actual version passed by Congress. He asked
whether that is correct and whether the task force version had, "as
well as lands selected by the state".
Number 2452
MR. UTERMOHLE said that is true. He said it is in the first page
of Senator Stevens' proposal under (b), definitions. Senator
Stevens' proposed definition of federal land excluded state, Native
corporation and private land. The task force went further to say
that it also excluded lands selected by the state and, he believed,
by Native corporations.
MR. UTERMOHLE commented, "I must admit, though, I don't see the
need for either the task force's amendment or Senator Stevens'
amendment in regard to the definition of federal land. I think
this provision that they're adding is overkill because it's already
covered by the definition of public lands in ANILCA." He pointed
out that ANILCA has a three-level scheme for dealing with land.
There is a definition of "land," a definition of "Federal land" and
a definition of "public land." Subsistence applies on public land.
Public lands are those federal lands that are not in state, federal
or private ownership, including lands selected or tentatively
approved for transfer to the state or a Native corporation. While
this particular amendment does no harm, he doesn't believe it adds
anything.
Number 2633
CO-CHAIRMAN OGAN referred to public lands and said one area of
concern is that the amendments give deference to the Secretary of
the Interior to identify what navigable waters are. Co-Chairman
Ogan noted that Colorado had a tremendous amount of litigation
about what was considered navigable water. He'd been told by a
reliable source that "maybe two were identified after all the
litigation." He expressed concern that there is actually an
expansion of federal power and "these amendments that were passed
by ANILCA, it broadens the authority of the Secretary ... in
statute." He asked whether that is a fair characterization.
Number 2745
MR. UTERMOHLE explained that the expansion of the authority of the
federal government arises not necessarily from the changes proposed
by Senator Stevens, but by the decision of the Ninth Circuit Court
of Appeals in the Babbitt/Katie John case. Senator Stevens'
amendments do nothing to override or change that expansion of the
federal government's power arising out of that decision.
CO-CHAIRMAN OGAN suggested it just codifies it in federal law.
MR. UTERMOHLE said he wouldn't say it codifies it, but it
definitely does nothing to change the outcome.
Number 2823
CO-CHAIRMAN OGAN noted Representative Barnes was in attendance.
MR. UTERMOHLE referred to Section 2, subsection (h), page 6 of
Senator Stevens' amendment, titled "Regulations." He said this
amendment to ANILCA provides authority in federal law for the state
to adopt regulations necessary to implement the subsistence
preference. It also prohibits the Secretary from adopting certain
regulations while the state has management authority.
Number 2930
MR. UTERMOHLE informed members that the next amendment proposed by
Senator Stevens is a new addition to the savings clause existing in
ANILCA. It adds a provision to the effect that any changes made by
Senator Stevens' amendment do nothing to prohibit co-management.
CO-CHAIRMAN OGAN asked whether co-management is not basically a
stepping stone to sovereignty.
MR. UTERMOHLE replied that he'd have to understand Co-Chairman
Ogan's definition of co-management before he could answer.
CO-CHAIRMAN OGAN asked him to use the federal definition of co-
management.
Number 3017
MR. UTERMOHLE said, "I know that the federal government has entered
into co-management agreements with certain organizations, but as to
the extent or nature of authority involved in that, I couldn't say
what they were. A co-management agreement ... could be no more
than just merely allowing a state or federal biologist to trespass
on your land or, up to a certain extent, surrendering a certain
degree of management authority."
CO-CHAIRMAN OGAN asked whether a state or federal biologist who has
the authority to manage the fish and game has to get permission to
trespass.
Number 3100
MR. UTERMOHLE answered, "Yes, Mr. Chairman. Any private citizen
has that right."
Number 3125
REPRESENTATIVE RAMONA BARNES asked Mr. Utermohle to repeat that,
saying if she understood correctly, a state biologist could not do
so, but anyone else could trespass on private land.
MR. UTERMOHLE replied, "What I said was that it is in the power of
a land owner, public or private, to prohibit trespass on their
land. And that would go to the extent of prohibiting a federal
officer or state officer from entering on your land."
Number 3206
CO-CHAIRMAN OGAN referred to Section 815. He said earlier, in the
original Section 815, it said nothing in this section is to be
construed as limiting, or increasing or decreasing, the power of
the state to manage fish and game or that we should amend our
constitution. He stated, "Yet the federal law seems to contradict
itself because we're being, in the same federal law in ANILCA,
being told that if we don't amend our constitution to give a rural
priority, we're in violation. But earlier in the savings clause it
says basically that nothing requires us to amend our constitution."
He asked whether that is oxymoron.
MR. UTERMOHLE said that provision was in the original ANILCA. It
preceded a series of events that occurred as the state attempted to
manage subsistence on state and federal lands. He indicated he
assumed it is still the intent of Congress that nothing in the Act
is intended to change the state constitution. He said, "On the
other hand, there is nothing in that language that means that the
state would not ... have the power to amend its constitution if it
wished to reassume subsistence management on public lands. There
is no requirement by the federal government. But if they want it,
it may be a necessary step."
CO-CHAIRMAN OGAN said it sounds like an oxymoron to him.
Number 3346
CO-CHAIRMAN HUDSON referred to page 6 of the draft, relating to
explicitly recognizing the co-management concept or agreements with
Native organizations or other local entities. He said it implies
it may violate either "federal law or the Alaska Constitution or
its own constitution." He asked Mr. Utermohle where in the
constitution the constitutional problem is and whether there is a
specific provision in the constitution, such as "appropriations
only applies to, say, the legislature or the Administration and the
legislature and not a tribal co-management." He referred to the
third paragraph on page 6; he asked what it refers to where it says
that a co-management arrangement may constitute an improper
delegation of legislative and/or executive authority.
Number 3506
REPRESENTATIVE BARNES said, "I would like Mr. Utermohle, when he
answers, to answer about three sections of the constitution at
once, so that we're clear on what is going on. My understanding in
reading of the law and the constitution, clearly says that there is
equality under the law for the people of our state and is thus
afforded that same constitutional provision under the United States
Constitution. Then we go to the common use section, which also
guarantees ... through our constitution that the resources of our
state are held ... for the people for their common use; and that's
the one that we always pay the most attention to. But getting to
the section that specifically has been raised, which I was going
to, by Representative Hudson, is the appropriation clause. And Mr.
Utermohle, I would take you back to the time that we had the Beirne
homestead initiative, for example, that tried to appropriate land.
And the supreme court held that the only the legislature has a
right to appropriate the people's resources. And that is the crux
here of the three sections of ... the constitution."
REPRESENTATIVE BARNES continued, "Certainly, the fish and wildlife
resources are a common property resource held in trust by the
legislature for the people. And for somebody to try to amend one
section of the constitution, to me, they have to get to three
sections, and especially the appropriation section that says that
nobody (indisc.) unless the legislature has the right to
appropriate for the people. Thus, we delegate a portion of our
authority to manage the fish and wildlife to the Board of
Fish[eries] and Game, but that it's not an explicit authority.
It's only in the cases that we give to them explicitly. So, with
my thoughts, I'd like you to comment on the whole question at
once."
Number 3716
MR. UTERMOHLE first referred to equal protection and common use.
He said most of those provisions in the constitution are brought
into issue by the current subsistence debate. He explained, "The
federal government would like us to have a rural preference that's
not provided for in our constitution because of the two provisions
you mention. In order to allow for a rural preference, ... at
least the common use provision in the constitution would have to be
amended. If it was amended, the common use provision, the equal
protection provision would come along and (indisc.) amended also."
MR. UTERMOHLE referred to the appropriation issue. He stated, "The
Beirne Initiative and, more recently, the F.I.S.H. [fairness in
salmon harvest] Initiative, the Pullen v. Ulmer case, both decided
in the context of an initiative that the people did not have the
power to appropriate assets of the state. In the constitution,
there are limits on the power of the people to do things by
initiative referendum. One of the powers denied to the people by
initiative referendum is the power to make appropriations. In
order to ... implement that provision of the constitution, the
state supreme court has determined that appropriation includes not
only money but also assets of the state, land being an asset of the
state. And ... the state has sufficient interests in fish and
wildlife that they are also an asset of the state and, therefore,
cannot be given away or even allocated by the people ... by
initiative."
MR. UTERMOHLE informed the committee that the term "appropriation"
is not construed so broadly for other purposes of the constitution.
The legislature retains its power to appropriate monies of the
state and to provide for the conservation, development and
utilization of the replenishable natural resources of the state by
constitution. When the state provides for management of fish and
wildlife, including the allocation of fish and wildlife, it can do
so either directly, by act of the legislature, or through
delegation of that power to a state agency.
Number 4016
REPRESENTATIVE BARNES indicated a state agency, the Board of
Fisheries or the Board of Game does not have that power without the
legislature delegating it.
MR UTERMOHLE said that is correct. They would not have any power
unless it had been given to them by the legislature
REPRESENTATIVE BARNES asked, "How in the name of God do they think
they can force us to delegate that power to a regional council
that, quote, `must have people from tribal governments which were
in the supreme court?'"
Number 4058
MR. UTERMOHLE indicated he doesn't see any provisions that requires
a delegation to a regional council or a tribal council, nor does he
see even a mandate that there be co-management.
REPRESENTATIVE BARNES said, "Well, Mr. Utermohle, I would direct
your attention specifically to the provisions of the, quote,
`Governor's task force' and played on also by this, that says that
there will be established regional councils. Now, Mr. Utermohle,
those regional councils are, quote, `have to be made up of members
of tribal governments,' which we don't have. But secondly, it says
that when they will send forth to the Board of Fish[eries] and the
Board of Game their proposal, that those proposals have to be
accepted by the Board of Fish[eries] and the Board of Game unless
the Board of Fish[eries] and the Board of Game find capriciousness
and another whole line of adjectives ... which would be most
difficult for the Board of Fish[eries] and the Board of Game to
turn down. So, don't tell me that's not a delegation of
responsibility, because it certainly is and one that I will never
surrender."
Number 4228
MR. UTERMOHLE replied that the Governor's proposal does provide for
an allocation of responsibilities between the boards of fish and
game and the statutorily created regional councils. The regional
councils have a position somewhere intermediate between our
existing local fish and game advisory committees and the Board of
Fisheries. The proposal is that they have a greater role and a
greater say in the rule-making process.
Number 4302
CO-CHAIRMAN OGAN noted that Representative Cowdery had joined the
meeting some time previously.
REPRESENTATIVE BARNES said she appreciates Mr. Utermohle's answers.
Number 4324
MR. UTERMOHLE referred to Senator Stevens' amendment in Section 03,
which adds new provisions to the savings clause. The amendment is
neutral on the tribal status of any entities in the state. It is
also neutral on the existence of Indian country in the state and on
the issue of ANILCA as Indian law. He said those three things are
contained in the task force proposal. Senator Stevens' amendment
is also neutral on the ability of the Secretary of the Interior to
regulate subsistence in the national park system.
Number 4424
REPRESENTATIVE JOE GREEN asked, "George, several times to
questions, you responded that since there is a neutrality of
statement that it doesn't add or detract from the sovereignty
issue. But sometime back, we were advised that even something such
as a private party where there was -- well it wasn't a private
party, sorry, but it was not-monitory-gambling-type thing ... that
passed the (indisc.), Fur Rendezvous and (indisc.), that because of
that, it could be construed by a court that that constitutes
gambling, and if sovereignty was ever granted to a Native
corporation or village that they too, then, could incorporate
gambling in their make-up. Now, if something that's kind of
obscure as that could be held by a court, don't you feel as an
attorney that by not prohibiting, by just purely not addressing,
that anything we do as a state that would indicate our acceptance
of a sovereignty of a village, this or any other type of action
would in effect or could in effect (indisc.) and lead the states
into sovereignty of Native villages?" [Note: Representative
Green's comments are difficult to discern on tape throughout
because of poor sound quality.]
TAPE 97-65, SIDE B
Number 0029
MR. UTERMOHLE replied, "The status of tribes, the existence of
Indian country and the powers of tribes are all matters of federal
law. The state has virtually no role in determining who has tribal
status and what powers they might have and ... what areas might be
Indian country. The state has legitimate reasons for dealing with
a number of entities which may ultimately be determined to be
tribes, such as village councils, for reasons other than
acknowledgment or ... anything related to their sovereignty or
their tribal status. The village councils we deal with because
they're just the only entity available to perform those functions
the state needs to be done. They're performing a state function,
not a tribal function. The state is treating them no differently
than they would treat a neighborhood association in the city of
Anchorage."
MR. UTERMOHLE continued, "Certainly, anyone favoring (indisc.) a
particular group has tribal status would certainly try and use that
as a makeweight argument that the state has acknowledged them as
tribes. But I think in looking at it, ... however states treat
tribes is largely irrelevant in the federal scheme and, two, in
looking at the reason the state acknowledged existence of a village
council, you'll have to look (indisc.) to see why the state is
doing it, and which I think would be important and largely
(indisc.) of any such argument the state is acknowledging that
tribes exist."
Number 0221
CO-CHAIRMAN OGAN noted he had asked Wayne Anthony Ross to testify,
as the committee's legal counsel was on vacation. Mr. Ross had
some experience as a lawyer in the McDowell suit.
Number 0251
REPRESENTATIVE BARNES referred to Mr. Utermohle's response to
Representative Green's question; she directed his attention to
ANILCA, where it specifically says that there are no tribes
existing in Alaska other than the Metlakatla Indians. She stated,
"And the reason why that we, as a state, when we revenue-share, we
specifically revenue-share to nonprofit organizations in the rural
areas, which are absolutely not like community councils. We make
them say that if they accept this money that they do not hold us -
whatever the language is - liable, et cetera, et cetera, et cetera.
But they're acting as nonprofit corporations."
REPRESENTATIVE BARNES continued, "We have made absolutely sure,
over and over again, that we do not set ourselves up to, in any
way, recognize tribes by giving revenue-sharing funds to nonprofit
corporations and making certain that we never violate the intent of
ANILCA that set up the regional corporations in lieu of tribes, and
that at the time they were set up, it was very clear under ANILCA,
and under all existing law then and since, that the Alaska Natives
were called `entities' because we did not want to recognize any
tribes other than those that presently existed, which was the
Metlakatla Indians. Would you comment, please?"
Number 0429
MR. UTERMOHLE said he would agree with Representative Barnes. The
policy of the state has been reflected in the way that the
legislature has dealt with Native entities in the state, which is
not to take any position on their tribal or sovereign status but to
only treat them as entities.
REPRESENTATIVE BARNS said, "As they are recognized under ANILCA,
entities."
Number 0502
CO-CHAIRMAN OGAN referred to Representative Green's point. As he
recalled it, at a briefing to the caucus, the Attorney General
said, "It's not necessarily ... what you say about them in law,
it's how you treat them." Co-Chairman Ogan said that was why
they'd banned casino-type nonprofit gambling, so that there isn't
a precedent in having that established in Alaska. He asked whether
that is correct.
Number 0544
REPRESENTATIVE GREEN said that was how he'd heard it also. He
said, "... because of that, it was being so different to it that it
seems to me that's something we want to ... guard zealously."
Number 0600
CO-CHAIRMAN asked Mr. Ross to come before the committee.
Number 0625
WAYNE ANTHONY ROSS, Attorney, explained that although he was one of
the attorneys in the McDowell case, he was there testifying on his
own. He said Senator Stevens has provided a wonderful opportunity
for the Governor to show his leadership. He stated, "After being
told for over a decade that amendments to ANILCA were impossible,
we now see from Senator Stevens that he has created a legislative
miracle and created it basically overnight. ... After telling us
for ten years he couldn't do it, he has assured us now that he has
amended ANILCA. And I think that's a good indication that he has
achieved a lot of importance ... in the recent years since the
Republicans have taken over Congress."
MR. ROSS continued, "Senator Stevens has gotten the state of Alaska
additional time to allow the Governor to get off the dime and
challenge the federal takeover. Unfortunately, the Governor has
thus far shown no intestinal fortitude to stand up for the state
and its people against the federal takeover. Also, unfortunately,
... many of the amendments by Senator Stevens just cause more
problems, but perhaps this is just the best that Senator Stevens
could do. After all, for ten years he couldn't amend ANILCA at
all."
Number 0819
MR. ROSS said he is reminded of a robber who comes up to a citizen
and threatens to use a gun and shoot the citizen in the kneecap if
the citizen doesn't turn over his treasure. He stated, "We were in
the position similar to that with the federal government being, in
effect, the robber and wanting us to turn over management of our
fish and game resources. Now, the robber has said, `Well, I'm not
going to shoot you right now; I'll shoot you a little further down
the trail. In the meantime, you've got a little more time to
decide whether you want to surrender your treasure.'"
MR. ROSS continued, "The Governor suggests that we comply meekly
and surrender our treasure, our treasure being the management of
our state resources, our treasure being the states' rights that we
have under the constitution. The Governor says, `Let's just turn
it over to this robber.' And I say we ought not to do it until
we've had a chance to resist. And maybe the robber has no bullets
in his gun. Is it possible that the feds realize that these
threats are somewhat empty and they want to coerce us into
complying because they're afraid that further down the trail we may
have a Governor with fortitude to challenge the matter?"
Number 1008
MR. ROSS continued, "If we change our constitution without firing
a shot, we've given up the battle completely. Now, I was asked to
kind of take a look at these amendments of Senator Stevens. And
the Section 01, Moratorium on Federal Management, that's the first
paragraph, Senator Stevens should have probably just stopped right
there, at least at this time. That basically says that there
aren't going to be any funds until December 1, 1998, to implement
the regulations. And if he would have stopped right there, that
would have been quite an accomplishment. We would have had another
year. Maybe we ... would have had a Governor with a little more
fortitude, a little more courage, a little more willingness not to
divide Alaskans but to retain our rights. So, he should have
stopped right there, but he did go on a little further. And as I
said, I got this yesterday, and so my comments will be kind of
cursory. And I apologize for not being able to submit it to you in
writing so that you'd have a record."
Number 1135
MR. ROSS said under the Section 02 amendments, paragraph (d)(2),
the term "Federal land" repeats the prior ANILCA definition.
Senator Stevens had a chance to clear up some of the problems under
the Katie John case. He could have put in amendments that said the
term "Federal land" doesn't apply to navigable waters and doesn't
apply to adjacent state and Native lands that may be affected by
subsistence. "That certainly would have saved us some problems and
court challenges," Mr. Ross added.
Number 1235
MR. ROSS referred to page 2 and said there are approximately seven
findings. There was, in his opinion, an unfortunate choice of
words in those findings. For example, finding (3) says, "since
that time, repeated attempts to restore the validity of the State
law through an amendment to the Alaska Constitution have failed".
Mr. Ross said, "It seems to me that state law does have validity,
and it doesn't need to ... have its validity restored by amendments
to the state constitution. The state constitution is valid state
law. And the fact that the Governor and Attorney General don't
want to uphold the constitution, that's their problem. And of
course, ... it's caused us problems."
Number 1335
MR. ROSS said paragraph (3) also uses the phrase, "the people of
Alaska have not been given the opportunity to vote". He commented,
"I think the questions asked by Representative Barnes clearly have
brought out the fact that people don't have the right to vote to
take away some resources from one group and give it to another
under the Public Trust Doctrine. ... The state has our resources in
trust for all of the public, and you can't just delegate to one
group the right to ... the resources away from another."
Number 1422
MR. ROSS said paragraph (4) again refers to failure of state law to
provide a rural preference. He stated, "And I would submit to you
that that isn't a failure at all, that anyone in Alaska who has the
need for subsistence has had the opportunity to subsist for as long
as I've been here, and I've been here 30 years. And I don't
consider it a failure when we don't provide for a rural preference.
... Paragraph (4) also seems to ... codify the improper authority
of the Secretary. The Secretary, under that paragraph, is required
to manage fish and wildlife subsistence uses. ... It may appear
that the Secretary has the authority, but in his opinion, a proper
challenge will show that the Secretary does not have that authority
at all."
Number 1518
CO-CHAIRMAN OGAN asked whether Mr. Ross would consider that a
violation of the (indisc.) constitution.
Number 1531
MR. ROSS said, "I considered that, and I also considered even more
so a violation of the Statehood Compact because in point of fact,
we agreed to statehood. We voted ... for statehood. We were given
management of our fish and game. Our constitution was approved by
the Congress, and our constitution provided for the resources to be
used by all of the people of the state of Alaska. And then to have
Congress come in and, in effect, ignore the very constitution that
it had approved of, and submit to something else with regard to
management of our fish and game, is simply outrageous. And it's
even more outrageous that our Governor and our Attorney General,
who have raised their hands and taken a[n] oath to support and
defend our constitution, have dismissed the Babbitt case and have
refused to take up the federal challenge with regard to states'
rights."
MR. ROSS continued, "It's outrageous that our Attorney General and
our Governor should advocate amending Alaska's constitution when
they haven't done anything to defend it. And it's people like Mr.
McDowell and other individuals, including some Natives from the
largest Native village in the state, to wit, Anchorage, who have
had to fight the battles for the state because the Governor
wouldn't do it. It's outrageous that the private citizens have to
fight the battle. But you are, of course, aware of that because
you attempted to also keep the lawsuit alive that the Governor
dismissed."
Number 1731
CO-CHAIRMAN OGAN said, "The courts ruled we couldn't do it because
we don't have (indisc.-- simult. speech) Executive Branch.
Number 1734
MR. ROSS said that was some of the problem in the federal cases,
also. He said the problem here, in his opinion, is the Governor.
Number 1756
REPRESENTATIVE BARNES referred to Mr. Ross's commenting on the
Tenth Amendment. She asked whether he'd also looked at it in the
frame of the Fourteenth Amendment where it says citizens' rights
are not to be abridged by the states.
Number 1813
MR. ROSS replied, "I have not looked at it recently with that
regard. I think that that gets more to the ... individual
citizen's rights. And I would like to see ... the state enforce
its rights. We would have to use the Fourteenth Amendment if we
were going to, again, try and bring a lawsuit on behalf of the
individual citizens of the state of Alaska. But I have to tell you
that the people who have brought these lawsuits are tired and are
very poor and wish that the Administration would bring some of
these suits, instead of ... requiring individuals, because the
state has much more authority under the constitution, in my
opinion, ... to bring such an action challenging the law, than some
poor individual or group of individuals."
Number 1931
REPRESENTATIVE BARNES referred to Mr. Ross's statement that he
wishes the Governor would do his duty and bring these suits on
behalf of the people. She said she personally feels that the
Governor, the Lieutenant Governor and Senator Stevens had violated
their oath of office to uphold the constitutions of Alaska and the
United States. She said, "And to propose that we violate our own
constitution and the United States Constitution, trying to force us
to do it through blackmail, is not only a violation of their own
oath of office, but trying to force us to do the same."
Number 2021
MR. ROSS responded, "I have said that the only people that seem to
be living up to their oath of office at the present time was the
members of the Alaska Supreme Court who have (indisc.) decision
after decision, attempting to provide guidance on what Alaska's
constitution means, and the members of the Alaska legislature who
have stood in favor of the constitution, in support of the
constitution, and ensured that all citizens of Alaska, no matter
what their race or creed, can enjoy the resources of the state."
Number 2119
REPRESENTATIVE GREEN commented, "This is actually a tag-on to what
Representative Barnes said. It has been a concern of mine since we
began this controversy that there are (indisc.) to get people who
go against the federal constitution (indisc.) and all these other
things. I'm not supposed to talk about treason, but isn't there
accountability for those of us who (indisc.), and then, for
whatever reason, whether it's origin or guidance or whatever, if we
don't do that to the utmost of our ability, aren't we possibly
subjecting ourselves -- maybe legal action? Certainly sanctions,
I would think."
Number 2208
MR. ROSS responded, "I have always believed that when a person
makes a promise, they ought to keep it. When a person raises their
hand and makes an oath, that's even more serious a promise. And
when you take a public oath to support and defend the constitution,
I don't think you ought to be talking about amending that
constitution and talking about just bowing to federal threats. ...
And if you believe that you ought to amend it and bow to federal
threats, maybe you ought to just quit, quit your job, because
you're not doing what you promised to do. Maybe that's old
fashioned. Believe it or not, I've heard that we have other people
in high political slots that don't always (indisc.) promises,
either. I just wish that the people would do something about it."
Number 2317
CO-CHAIRMAN HUDSON said, "Wayne, since we've had several rounds of
hearings, the question of the failure to take this issue as to
whether or not the federal government can preempt the management in
the state of Alaska and the dropping of the lawsuit that would have
satisfied that and ..., I guess, the lower courts that have made
determinations, for example, in the Katie John case, navigable
streams, I asked the Attorney General just the other day, you know,
why don't we, and how would we, pursue that in the federal court?
And I thought his answer to me, informal as it was, was that in
order to challenge the federal government, you have to have their
approval at the Supreme Court level. Is that your understanding?"
Number 2415
MR. ROSS stated his understanding that in order to take a case to
the Supreme Court directly, one must have the Supreme Court's
approval. He said, "But don't forget ... we had a challenge
mounted, and if you look at ... paragraph number (5) of the
findings, it says, ...`the Ninth Circuit Court of Appeals
determined in 1995 in State of Alaska v. Babbitt that the
subsistence priority required on public lands under Section 804
[misstated on tape as Section 1804] of this Act applies to
navigable waters'. It seems to me that with the record of the
Ninth Circuit - and I think it was overturned 27 out of 27 times -
that if the Ninth Circuit came out with a ruling that was against
us, ... we should have applauded and immediately gone to the
Supreme Court, because it was a pretty good indication that we
would win in the Supreme Court. For Senator Stevens, for example,
to rely on the Ninth Circuit Court of Appeals' opinion before we've
had a chance to take it to the Supreme Court ...."
Number 2541
CO-CHAIRMAN HUDSON said, "I guess what I hoped that we could try to
concluded is that there is a logical avenue for us to pick this up
and take it forward to some - probably the U.S. Supreme Court or
maybe a district court or maybe the admiralty courts, I mean, I
mentioned that as well ...."
Number 2603
MR. ROSS said, "How do we get there is what you're asking."
Number 2605
CO-CHAIRMAN HUDSON answered in the affirmative. He asked what the
practicality is on the timeliness of doing that. "Dinkum Sands
took us 17 years to finally get an answer, and it was wrong; I
mean, it was wrong for us," he added.
Number 2616
MR. ROSS stated, "Well, remember now that I have not done the
research on how we get there completely, even though ... the last
time I testified in front of the legislature, I was called a
`constitutional scholar,' which has really made me feel good."
CO-CHAIRMAN HUDSON said that was the reason he'd asked Mr. Ross the
question.
MR. ROSS expressed his understanding that the state can sue the
federal government and take the matter immediately to the U.S.
Supreme Court. However, the Supreme Court doesn't necessarily have
to hear it but can turn down making the decision, which in some
cases it has done. For example, California and Arizona were turned
down in some litigation relating to "illegal immigrants or
something." As he understands it, if the Supreme Court doesn't
take it up, it would be filed in the appropriate state district
court.
MR. ROSS said the Governor hasn't tried either method. He stated,
"When Governor Hickel did file the Alaska v. Babbitt case, Governor
Knowles just pulled the pin on the thing before we could have
gotten to the Supreme Court. And had we gotten to the Supreme
Court, this whole thing might have been resolved by now. So, it's
a very divisive issue. People who protest up against rural
subsistence are called racists. We used to be really glad to be
called Alaskans, and we were all united in being called Alaskans.
And as long nobody resolves this issue - and that nobody is the
Governor - we're going to continue to be divided."
Number 2845
REPRESENTATIVE BARNES said, "In this morning's paper, I read an
interesting article as well. And you say those of us that oppose
amending our constitution are called racist. I don't believe that
I'm a racist."
MR. ROSS said he doesn't believe he is, either.
REPRESENTATIVE BARNES said she strongly believes in protecting the
equality of the individual, no matter where that person lives in
this state. She asked, "But what do you call somebody that goes in
front of the chamber of commerce and says if all of you businesses
don't get onto these urban legislators and tell them if they don't
amend the constitution, well, we may practice civil disobedience,
we may boycott, we may do this, we may do that? Now, what if some
of us went before the chamber of commerce and made such statements?
Then we would be called racists and bigots for sure. But since it
wasn't us, what do you call the person that made those statements?"
Number 2941
MR. ROSS said he'd call it extortion.
REPRESENTATIVE BARNES said she calls it blackmail.
MR. ROSS said, "And I think it's the same thing, in many ways. But
I firmly believe that many of the people that are ... making
threats like that are doing it to simply continue themselves in
power and authority. And I cannot believe that the average person
would go along with such shenanigans. ... I can't believe that the
chamber of commerce went along with it last year."
Number 3033
REPRESENTATIVE BARNES informed committee members that as a young
military wife, she raised her children all over the world, having
no roots until she came to Alaska. As a military wife, she
believes very strongly that what the military men were doing was
right. They were going to foreign countries and fighting wars,
fighting for the individual rights of people of other countries.
She indicated an example is the Vietnam War. Representative Barnes
said, "At the very height of the Vietnam war, as a young military
wife, I lived in Philippines. And I saw our young men and women
come and go back and forth to Vietnam on a daily basis. And we
were over there fighting for the individual rights (indisc.)."
REPRESENTATIVE BARNES continued, "And one day, I broke my little
finger and I was at the hospital, and the day I die I will always
remember this. We were a dropping-off point (indisc.) had been
wounded in Vietnam, and they were staged back into (indisc.) prior
to the time they were sent to depart for the United States. And I
was over there, and I walked through one of the wards where they
disembarked any number of these young people. And here is this one
on a stretcher and - it's just a rounded thing like this; his
bottom side is upwards because his guts has all been shot (indisc.)
- and he looks up at me and says, `Thank God I'm home.' Now, I
believed then and I believe now that we, as a country, fight to
defend the individual rights, not only our citizens but the citizen
of other parts of the world, so that we can all be treated as
equals. And how in the name of God can somebody come and ask me,
with this kind of background, to vote to discriminate? Would you
answer that to me?"
Number 3303
MR. ROSS commented that some people stand and fight, while others
run. He said, "And unfortunately, we have a Governor that ran and
got elected and continues to choose to run."
Number 3325
REPRESENTATIVE BILL WILLIAMS informed the committee he was
listening via teleconference, having arrived 20 minutes or a half-
hour before.
Number 3330
REPRESENTATIVE DYSON indicated the discussion had been helpful and
enjoyable. While he appreciated all of the comments that had been
made, he respectively suggested the committee ought to probably
stick to getting through the rest of the package.
Number 3430
CO-CHAIRMAN OGAN said he tends to admit that they'd drifted a
little bit. However, he thinks the discussion of the committee,
while it had drifted from the specific amendments of ANILCA, had
gone into a relevant area of the long-term effects. He asked that
comments and questions be saved for the end of the hearing unless
they were very important.
Number 3507
REPRESENTATIVE WILLIAMS informed Mr. Ross that he also took an oath
to uphold the Constitution of the State of Alaska. He said he
would also like to be able to take care of the subsistence issue,
whether by a constitutional amendment or by going to court. He
doesn't want to have the federal government managing Alaska's
resources. He stated, "I have yet to talk to an attorney, I have
yet to talk to anyone on this committee or in the caucus that I
belong to, to tell me that I am off base. Representative Williams
pointed out that he is listening and has been trying to get an
answer.
REPRESENTATIVE WILLIAMS referred to information he'd received that
says Mr. Ross is an attorney, expert on the McDowell case. He
asked, "Let's say that we go to the Supreme Court. How would the
Supreme Court look at the Alaska Native Claims Settlement Act's
conference report? ... How would they hold that up in court?"
Number 3700
MR. ROSS said if he recalls correctly, he and Representative
Williams had a similar discussion the last time they spoke. He
said attorneys' opinions are a lot like noses, as they all differ.
Some run and some smell. In his opinion, the Supreme Court would
state that the ANILCA law ...
Number 3735
REPRESENTATIVE WILLIAMS interjected that he was talking about the
conference report.
Number 3738
MR. ROSS replied that he was talking about the law that passed
Congress; that law was in violation of the Statehood Compact act,
at least as far as Title VIII went. He said subsistence is a use
that can be prioritized under Alaska law, but users cannot be
prioritized. He has no problem with a subsistence use being
prioritized, because it is one of the things that makes Alaska
great, but he does have a real problem, and he thinks the Supreme
Court would have a real problem, with allowing the federal
government to tell Alaska how to manage its fish and wildlife
resources, in view of the Statehood Compact and the state
constitution.
MR. ROSS agreed with Representative Williams' statement that we
need to get this resolved. He said, "And I'd submit that it ought
to be resolved in an orderly fashion. And the first is to
challenge the law and get the feds out of our back yard. And then
Alaskans of good will can all sit down and resolve the matter
amongst ourselves: Should we make a subsistence use priority or
should we do something else? But as long as we have the gun held
to our head by this federal legislation, we are just going to fight
amongst ourselves, and we're going to weaken the unity that exists
among Alaskans, and we're going to keep our state from achieving
the promises that have been made to both of us."
Number 3946
REPRESENTATIVE WILLIAMS indicated he agrees with keeping a promise.
He said the conference report promises that the Secretary and the
state will take any action necessary to protect the subsistence
needs of the Natives.
Number 4005
MR. ROSS responded, "Sir, if you'll recall, that legislation was
federal legislation. And it's my opinion that it's
unconstitutional federal legislation. And it doesn't matter what
promises were made in that law. If the law is illegal, and I think
it is, then those promises may not be kept. However, that doesn't
mean ...."
Number 4029
REPRESENTATIVE WILLIAMS said it was in a negotiated settlement of
the Alaska Native Land Claims Settlement (ANCSA).
Number 4036
MR. ROSS said the fact that attorneys negotiated such a settlement
does not absolve it of its foolishness.
REPRESENTATIVE WILLIAMS informed Mr. Ross that it was negotiated by
the U.S. Congress, the state and the Natives.
Number 4049
CO-CHAIRMAN OGAN said, "He's talking about the Native Claims
Settlement Act, and I think he might have been referring to
ANILCA."
MR. ROSS said he believes ANCSA is a wonderful thing. The idea
behind that was to resolve many of the issues that existed and to
bring the Native peoples from the status of being dependents and
wards into the 20th and 21st centuries.
Number 4122
REPRESENTATIVE WILLIAMS said right now he looks at the Alaska
Native Claims Settlement Act as just that, a negotiated settlement
agreed to by the U.S. Congress, the state and Alaska Natives.
There were promises made in that, one of which was subsistence.
"For us to renege on our promise on that is something else," he
said. "I still have not received an answer on this conference
report, Mr. Chairman."
Number 4150
MR. ROSS indicated he may have misunderstood Representative
Williams' question, as he thought he was talking about ANILCA. He
said ANCSA was a good Act and a proper settlement. If there were
promises for subsistence, the state can prioritize subsistence use
and that should be done. "But you cannot prioritize subsistence
users," he stated.
Number 4228
CO-CHAIRMAN OGAN said, "I have to just ... comment briefly on that,
Representative Williams. I think we've given you several answers
that maybe you haven't accepted. And what matters is ... what was
put into law. And it was a settlement, and aboriginal hunting and
fishing rights were extinguished in exchange for forty-four million
acres of land and a billion dollars - close to a billion dollars,
including the subsurface rights to the forty-four million acres.
And so, ... if the conference committee promised one thing and the
law extinguished that promise, I think we would have to -- you
know, we give deference in the legislature to the law, not
conference committee reports."
Number 4305
REPRESENTATIVE WILLIAMS said, "I agree, Mr. Chairman, and I'm not
going to debate this issue (indisc.). I thought we had an expert
on the McDowell case who is an attorney and who could talk on this.
And ... whether or not I agree with this or not, Mr. Chairman, ...
it's beside the point. I'm trying to ... get this answered, at
least talked about and answered, and you still haven't answered it.
You and I talked about it for quite awhile, and I'd like to talk
again maybe on the phone, on a one-to-one. Thank you."
Number 4400
MR. ROSS directed the committee to page 3, paragraph (7), which
says, "it is necessary to amend portions of this Act ... to protect
and provide the continued opportunity for subsistence uses on
public lands". Mr. Ross said he'd submit that it is certainly not
necessary, that in point of fact, he doesn't know of any
subsistence uses that the state has not met. He thinks people who
need subsistence have got it throughout the years. He doesn't
think it's necessary for Congress to ensure that the state looks
after its own people, as he believes the state of Alaska is
perfectly competent and capable of looking after the needs of its
own people.
Number 4504
CO-CHAIRMAN OGAN said that to amend our constitution for a
subsistence priority for rural residents is a priority for
subsistence users. However, in the findings section, it says, "it
is necessary to amend portions of this Act ...."
Number 4525
MR. ROSS pointed out that it uses the term "uses."
CO-CHAIRMAN OGAN agreed.
MR. ROSS stated, "But then you see the words after that, that says,
`uses ... for Native and non-Native rural residents', and that, in
effect, makes it `users.'
CO-CHAIRMAN OGAN asked whether that is another legal oxymoron.
MR. ROSS replied, "I think it is." He said, "It talks about
protecting the opportunity for subsistence uses on public land.
And we can, as I told Representative Williams, we can provide for
subsistence uses. But then it adds the words, `for Native and non-
Native rural residents', and in effect, it says only those users
get those uses. And it's ... very tricky wording, in my opinion."
TAPE 97-66, SIDE A
Number 0008
MR. ROSS continued, "... because it makes it look a lot more
reasonable if you put in `uses' instead of `users.'" Mr. Ross said
it is legally useful "in that it can get the thing passed."
Number 0047
REPRESENTATIVE DYSON said it doesn't really serve the people in
giving a clear signal of what the law intends.
MR. ROSS said it makes it as ambiguous as possible, and this is a
make-work project for people in his own profession.
Number 0127
MR. ROSS referred to page 4, paragraph (d)(1), and said, "It allows
us to immediately assume management for the taking of fish and
wildlife." He directed the committee to the top of page 3 and
explained that all 50 states have the opportunity to manage their
resources. He stated, "Once we change our constitution, we're
going to have the same rights as all of those (indisc.) 49 states.
Unfortunately, we're not going to have the same responsibilities as
those other states, and we're not going to have the same freedom,
and we're going to be under far more control than those other
states."
MR. ROSS continued, "So, it sounds like it's a good deal, but in
point of fact, it makes Alaska a second-class state in the
management of its fish and game. It makes Alaska a state in which
we have far less right to manage our fish and game than any other
state in the Union. That paragraph, (d)(1), also provides for
federal court review again. And this time, again, it puts it ...
in stone, in effect, and litigation. And if you look at the bottom
of the page, page 4, it even allows the Secretary to sue the state
of Alaska. And it's, again, (indisc.) in federal law."
Number 0319
MR. ROSS referred to page 5, paragraph (B), and said it sets up a
board of ten people, four of whom are selected, as he understands
it, on racial grounds. He submitted that if he applied to be a
member of the tribal council, he probably would get turned down,
yet tribal councils in a particular region can fill four of the ten
spots. Mr. Ross said subsistence users comprise another three, and
then sport and commercial users can be the other three. He can see
a situation where commercial users, commercial fishermen, would not
have a spot on these regional advisory councils.
MR. ROSS referred committee members to the bottom of paragraph
(2)(B), which says, "A quorum shall be a majority of the members of
the council." He said this means that commercial and sport users
could be left out entirely. Mr. Ross stated, "It would be merely
necessary to get the four members of the tribal council and one or
two of the other subsistence hunters in the area, and sport,
commercial users wouldn't have to be considered at all (indisc.).
In effect, my opinion that these are racial quotas, I wouldn't call
them affirmative action programs of any kind, but they have
provided for racial quotas, and I don't think the state of Alaska
ought to be managing its fish and game based on race in any way,
shape or form."
MR. ROSS continued, "I consider this kind of a stacked deck: four
Natives, three other subsistence users; and a sport and a
commercial users are the losers. It could also be interpreted as
recognizing tribal sovereignty, i.e., that the tribal councils have
a legitimate role in state government and have a legitimate role in
the management of fish and game. And it could even be interpreted
as Indian legislation, and Indian legislation is a different can of
worms entirely."
Number 0633
MR. ROSS referred members to page 6, line 2, which says, "or
otherwise not in accordance with law." He said the reason a person
goes to court is to determine whether or not something is in
accordance with the law. Mr. Ross stated, "This is such a broad
phrase that it gives activist courts a free hand in managing
Alaska's fish and game. And in point of fact, the federal
oversight - this time, judicial oversight - would exist even if we
amended our constitution. `Not otherwise in accordance with the
law' is another one of those weasel-word phrases that allows ...
not only the nose of the camel to get in the tent but the whole
camel."
Number 0722
MR. ROSS referred to regulations under paragraph (h)(5). He said
there are co-management agreements with Native organizations or
other local or regional entities. Again, this may foster Native
sovereignty. It appears, in his opinion, to be racist, favoring
one race over another, and it could constitute Indian law.
Number 0750
MR. ROSS referred to the savings clause and said it attempts to be
neutral on a number of the issues that have been raised. He
stated, "It purports to say ... we're not going to take a position
one way or another on those issues. But in point of fact, by even
mentioning those issues, you give some of those issues credibility,
and that could lead to things that we don't want, by giving
credibility to the question of whether or not there is Indian
country in Alaska. And the legislature, in my opinion, has taken
the position that there isn't. And this merely gives credibility
to the questions."
Number 0825
MR. ROSS said, "Thanks to Senator Stevens, the threatened strong-
arm robbery of Alaska's right to manage its fish and game resources
has been delayed until December 1st of next year. And, again,
unfortunately, Senator Stevens and Governor Knowles propose we
avoid the loss of those rights by surrendering them. And ... I
would submit to you that you've gotten another year. I wished
Senator Stevens had given us to the year 2000, because by 2000, we
might have gotten an Administration that would have the moxie to do
what's necessary to resolve this issue once and for all."
Number 0944
REPRESENTATIVE DYSON asked whether there is any way that any group
in Alaska can "reinstitute the loss that Governor Knowles dropped."
Number 1003
MR. ROSS responded that there are portions of the lawsuit
continuing, "what we call `McDowell 2' and `McDowell 3.'" He
stated, "But real standing issues remain in those lawsuits because
the people that are the plaintiffs are, in effect, individuals,
(indisc.) organizations, and the ... legal entity that should be
raising those issues is the state of Alaska itself."
Number 1045
REPRESENTATIVE DYSON said the court has held that the legislature
itself, as a representative of the people of Alaska, does not have
standing.
MR. ROSS said that is his understanding. He continued, "It all
depends on whether the legislature can convince the Governor to
actively pursue litigation - and pursuing litigation halfheartedly
is just as dangerous as not pursuing it at all - or whether the
legislature can sit tight long enough, and not blink, until you can
get an Administration that is willing to have a little cajones, as
they say."
Number 1137
REPRESENTATIVE GREEN said, "Wayne, I had a constituent call me a
few weeks ago and suggest that perhaps we, through our
Administration, lost or stepped aside from the litigation that a
prior governor had started. So, we have lost standing on that
basis. But his concern was that if we were to be forced into
following this line (indisc.--coughing) in effect, as has been
discussed here, another issue could be used that it is prejudicial
in favor of an ethnic group. If that's the case, then that issue
would constitute Governor Hickel's original lawsuit. Is there any
merit to that line of reasoning? And also, the other question that
(indisc.) as the legislature, we don't have standing; but could we
(indisc.) individual within the legislature to have standing?"
Number 1239
MR. ROSS replied, "The answer to your questions are: yes and
probably no."
Number 1255
REPRESENTATIVE BARNES referred to the question of standing and said
it is clear that the legislature can sue anybody it chooses to sue.
She pointed out the Governor can't sue the legislature, as the
constitution forbids it. She stated, "I know that we can sue
because we have sued many times over many things. In this case, we
simply asked to be a joiner. The Administration had filed the
suit. Is there not a distinction there that we could sue
ourselves, rather than becoming a joiner to a suit?"
Number 1424
MR. ROSS responded, "The legislature tried to get involved as the
door was closing in ... the Babbitt case. And the legislature can
always bring suit. In my opinion, the legislature may be able to
get a[n] injunction, keeping the federal takeover -- while the
issues are being decided. They may even be able to get an
injunction while the issues are being decided as to whether they
have standing or not. I think that by November of 1998, the
results of that election will determine perhaps whether the state
of Alaska will take on the responsibility of challenging the
section VIII of ANILCA in court or not. And you certainly could
perhaps cause some consternation and some delay by taking such an
action. But how it would be done would be best left to study and
eventual determination."
Number 1603
REPRESENTATIVE BARNES said it is clear that fish and wildlife have
some value to the state, that it is an appropriation of the
people's resource. Someone is trying to force the legislature to
delegate a portion of its appropriation. She asked whether it
would not, then, be feasible to ask for an injunction based on
three things: first, the equal protection clause of the
constitution; second, the uses clause; and third, the appropriation
(indisc.), based already on clear-cut court cases on those issues.
Number 1702
MR. ROSS suggested he'd like to see a fourth one: the public trust
issue. All of those resources of Alaska have been placed in the
care of the legislature, in trust for all of the public of the
state. The legislature and the state now being threatened by the
federal government that they will take over those assets and run
them unless the state allocates them the way the federal government
wants them to be allocated.
MR. ROSS stated, "If you allocate them the way the federal
government proposes, in my opinion, you've breached your duty to
maintain the assets according to the Public Trust Doctrine. And
so, I think you would have good standing to file a lawsuit because
of the federal threats of takeover. Perhaps Senator Stevens'
amendments might have even given you stronger cause to bring such
an action."
Number 1830
REPRESENTATIVE HUDSON said he'd been listening carefully, trying to
figure out what the original Congressional people intended here.
He believes there is ambiguity in the definitions of "public lands"
and "Federal lands." Representative Hudson stated, "And I notice
in Senator Stevens', he does define `Federal lands,' and then
throughout the ANILCA provisions itself, it talks about providing
for subsistence uses on public lands. But I don't see any
definition of `public lands,' and I don't see anything even in the
exchange, and I've been pouring through this. But if you look
under, I think Mr. Ross indicated on page 3, number (7), `it is
necessary to amend portions of this Act to restore the original
intent of Congress to protect and provide for the continued
opportunity for subsistence uses on public lands'. And I don't
know if that really was their original intent or whether it was to
be on federal lands." He said that is an area they need to try to
figure out, and certainly they need a better definition of "public
lands," unless somebody else sees it in there.
Number 1955
MR. ROSS said the way it is written, public lands could be state or
federal land. This in effect says what the intent of Congress is,
even though it may not have been the intent of Congress at the
time.
Number 2027
CO-CHAIRMAN OGAN asked whether there were further questions of Mr.
Utermohle or Mr. Ross.
Number 2042
MR. ROSS noted that he'd enjoyed speaking with Representative
Williams.
Number 2057
CO-CHAIRMAN OGAN extended his personal thanks, especially to Mr.
Ross, who had donated his time to attend the meeting.
ADJOURNMENT
Number 2127
CO-CHAIRMAN OGAN then adjourned the House Resources Committee
meeting.
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