Legislature(1999 - 2000)
09/22/1999 05:12 PM Senate RES
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* first hearing in first committee of referral
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SENATE RESOURCES COMMITTEE
Second Special Session
September 22, 1999
5:12 p.m.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Lyda Green
Senator Sean Parnell
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Robin Taylor
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 201
Proposing an amendment to the Constitution of the State of Alaska
relating to subsistence use of renewable natural resources by
residents of the state; and providing for an effective date.
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SJR 201 - No previous Senate action.
WITNESS REGISTER
Julie Kitka, President
Alaska Federation of Natives
1594 C Street, Suite 300
Anchorage, Alaska 99501
POSITION STATEMENT: AFN does not support any amendments that might
weaken ANILCA or any lawsuits pertaining to ANILCA. AFN does
support placing a constitutional amendment on the ballot.
Chris Lyon, Chairman
Korean American Coalition
Los Angeles, CA
POSITION STATEMENT: Supports placing a constitutional amendment
before the voters.
Reverend Doctor William Green
Eagle River Missionary Baptist Church
10421 VFW Road
Eagle River, AK
POSITION STATEMENT: Supports placing a constitutional amendment
before the voters.
David Olivera
Anchorage Latino Lions Club
4233 Mountain View Drive
Anchorage, AK
POSITION STATEMENT: Supports placing a constitutional amendment
before the voters.
The Venerable Mark A. Boesser
Archdeacon of Southeast Alaska for the Episcopal
Diocese of Alaska
17585 Lena Loop Rd.
Juneau, Alaska 99801
POSITION STATEMENT: Reverend Boesser's written testimony supports
a subsistence priority for Alaska Natives.
Bruce M. Botelho, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
POSITION STATEMENT: Supports SJR 201
Frank Rue, Commissioner
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802
POSITION STATEMENT: Answered questions regarding fisheries
management.
Mike Williams, Chairman
Alaska Inter Tribal Council
Box 27
Akiak, Alaska 99552
POSITION STATEMENT: Supports ANILCA as written and a constitutional
amendment that mandates the legislature to provide a rural
priority.
Shirley Demientieff, FNA
229 Second Avenue
Fairbanks, Alaska 99701
POSITION STATEMENT: Supports allowing the people to vote on a
constitutional amendment.
Rob Holt, President
Alaska Professional Hunters Association
PO Box 489
Fairbanks, Alaska 99701
POSITION STATEMENT: APHA would like to see the federal law
rewritten.
Cecilia Koontz
Juneau, Alaska
POSITION STATEMENT: Discussed her subsistence lifestyle.
Mary Bishop
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Asked legislators to protect her civil rights
and oppose a constitutional amendment and believes ANILCA is
flawed.
David Bedford
United Fishermen of Alaska
531 Main Street
Juneau, Alaska 99801
POSITION STATEMENT: UFA supports placing a constitutional amendment
before the voters and opposes federal management.
Eileen Norbert, Vice President
Kawerak Incorporated
P.O. Box 1858
Nome, Alaska 99762
POSITION STATEMENT: Supports a constitutional amendment that
mandates a rural priority.
Caleb Pungowiyi
Kawerak Incorporated
P.O. Box 948
Nome, Alaska 99762
POSITION STATEMENT: Commented on the status of fish and game
resources in the Nome area and cautioned that the people in that
area will expect state management to be as responsive as federal
management has been.
Dan Coffey
Alaska Board of Fisheries
207 E Northern Lights Blvd. No. 200
Anchorage, AK 99503
POSITION STATEMENT: The Board of Fisheries supports legislative
action that will prevent a federal takeover.
David Kelleyhouse
P.O. Box 81452
Fairbanks, Alaska 99708
POSITION STATEMENT: ANILCA needs to be amended to avoid
discrimination among Alaskans.
Dick Bishop, Vice President
Alaska Outdoor Council
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Opposed to a rural priority; believes changes
need to be made to ANILCA
Jesse Vanderzanden, Executive Director
Alaska Outdoor Council
PO Box 73902
Fairbanks, AK 99701
POSITION STATEMENT: Discussed his experience working on federal-
state issues.
Thomas Tilden
Box 786
Dillingham, Alaska 99576
POSITION STATEMENT: Supports a rural priority.
ACTION NARRATIVE
TAPE 99-34, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 5:12 p.m. Present were Senators Green, Parnell, Mackie
and Halford. The committee took up SJR 201 and asked Julie Kitka to
address the committee first.
SJR 201 CONST AM: SUBSISTENCE PRIORITY
JULIE KITKA, President of the Alaska Federation of Natives (AFN)
introduced Ms. Yoh Yon Pharr, President of the Korean American
Coalition, a national organization based in Los Angeles; Mr. Chris
Lyon, Chairman of the Board of the Korean American Coalition;
Reverend Doctor William Green, Pastor of the Eagle River Missionary
Baptist Church; and Mr. David Olivera, a representative of La Raza
de Alaskan Anchorage Latino Lions Club. MS. KITKA noted that
members of her panel needed to catch a plane shortly, therefore she
asked that they address the committee first.
CHAIRMAN HALFORD announced that he would like to accommodate first
those people wishing to testify who have to meet airline schedules.
MR. CHRIS LYON, Chairman of the Board of the Korean American
Coalition, thanked committee members for providing him with the
opportunity to state the Coalition's unequivocal support for AFN's
position on this unique opportunity for the State of Alaska to
maintain management of fish and game on federal lands. The
Coalition provides communication liaisons for racial, ethnic and
minority groups. It believes subsistence is one of the fundamental
rights to which the first citizens of Alaska are entitled. The
Coalition is hopeful that the legislature will see fit to fashion
an amendment to the Alaska Constitution that will enable the people
of Alaska to voice their view on the matter.
REVEREND DOCTOR GREEN, Eagle River Missionary Baptist Church,
testified on behalf of AFN and appealed to the legislature to come
up with an amendment that coincides with the federal government's
position on subsistence. This issue is a human rights issue;
subsistence is a right of survival for villages. He very strongly
supports AFN and the Native communities on this issue. He asked
legislators to come to a consensus and to support the law that the
federal government established on this issue.
DAVID OLIVERA, Anchorage Latino Lions Club, informed committee
members that the Hispanic community in Alaska strongly supports
giving the people of Alaska the opportunity to vote on the
subsistence preference. They are overwhelmingly concerned that
our country has a history of cultural genocide, and see the
subsistence issue as an opportunity for Alaska to start the next
millennium by reconciling some of the past wrongdoings. The
Hispanic community feels very strongly that the people should be
able to decide this issue.
MS. KITKA asked that the following written statement by Reverend
Mark Boesser, Archdeacon of Southeast Alaska for the Episcopal
Diocese of Alaska, be incorporated into the record.
A Statement from the Bishop of Alaska (Episcopalian), 9/21/99.
The Episcopal Church in Alaska, a part of the 70 million-
member worldwide Anglican Communion, recognizes and endorses the
God given authority to self-determination, sovereignty, and
subsistence priority of Alaska Natives. We note that these Rights
are also enshrined in the many solemn agreements between Alaska
Natives and the State of Alaska and the United States of America.
We believe that the inherent authority of Alaska Natives, clearly
articulated in the many people to people agreements that endorse
it, are a matter of primary and fundamental moral commitment.
Further, these God given Rights have been affirmed by many church
councils over the past two centuries and the absolutely consistent
moral teaching of virtually all the churches throught the ages. We
join with Alaska Natives in the basic and just request that the
State of Alaska honor the authority to self-determination,
sovereignty, and subsistence priority that belongs to Alaska
Natives by Right and by law. We believe that peace, prosperity,
and justice for all Alaskans is not possible unless the first
rights of Alaska's first peoples are honored and observed.
The Rt. Rev. Mark MacDonald
The Seventh Bishop of Alaska
******
Diocesan Convention Resolution 98-3
Whereas: The Anglican Tradition has consistently upheld the
spiritual and wholesome doctrine of Scripture (e.g. Ezekiel
35:10-11; Acts 17:24-25) that God has acted for the peoples of
the Earth to determine "the times set for them and the exact
places where they should live," so that people "would seek him
and find him;" and
Whereas: Our elders and teachers have consistently recognized
the spiritual connection and relationship established by God
between lands and people, as affirmed by The Preface of our
Book of Common Prayer (BCP, pp.9-11) and The Articles of
Religion (XX,XXXIV); and
Whereas: Our leaders have consistently endorsed this doctrine
in the councils of the Church; and
Whereas: Our missionary and Native saints in Alaska have
courageously and heroically defended the social equality and
civil rights of Alaska Natives;
Therefore,
Be it resolved: The Episcopal Family of Alaska joins with our
Orthodox Brothers and Sisters by endorsing their "Statement of
Native Alaskan Sovereignty, Diocese of Sitka and All Alaska"
which states:
Whereas: The Holy Scriptures define human beings as created
in "the Image and Likeness of God" (Genesis 1:27); and
Whereas: the Holy Fathers, particularly St. Gregory of Nyssa
and St. Maximus the Confessor, have identified the image of
God in each human person with the inherent freedom of choice,
will and creativity with which each is divinely endowed; and
Whereas: The earliest missionary saints in Alaska courageously
and heroically defended the social equality and civil rights
of Native Alaskans, even risking their lives in the defense of
the Native Peoples; and
Whereas: The Orthodox Church in Alaska has always championed
the enhancement of Native Alaskan cultures and languages,
using them liturgically and ordaining Native Alaskans to
leadership positions throughout the state; and
Whereas: The Spiritual well-being of every human soul
requires that each person be free to express his/her cultural
identity without the intrusion of or coercion by external
agencies, programs, restrictions or regulations devised by an
alien or hostile culture; therefore,
Be it Resolved: The Orthodox Church in Alaska expresses its
solidarity with Native Alaskans in their continuing struggle
to maintain their cultural integrity, personal and collective
autonomy and spiritual freedom.
*******
From the Alaska Christian Conference Biennial Assembly meeting
in Fairbanks, Alaska, March 15-17, 1999:
The "1994 Final Report" of the Alaska Native Review
Commission, after an exhaustive two year review of tribal,
federal and state activities, found the strengthening of the
governmental role of Alaska Native tribes to be crucial to the
future success of Alaska Native communities.
These recommendations were heartily endorsed by the
Congressional delegation, the Governor, the Alaska Federation
of Natives, and the legislature. However, little progress has
been made toward implementation of the commission's
recommendations.
We urge the legislature to negotiate with Native Tribes and
discuss these issues and the positive impact tribal
governments can bring. Tribes in the lower 48 states have
worked with their states for years and are able to co-exist
amicably.
Those delegates assembled at the Alaska Christian Conference
Biennial Assembly wish to go on record that we encourage
Alaska Natives in their efforts and stand with them in their
desire to maintain their cultural heritage including their
subsistence way of life and to exercise stronger control over
their own communities as the Alaska Native Review Commission
has recommended.
(The original resolution was passed unanimously by the 13th
Biennial Assembly in Wasilla, Alaska, February 24, 1997). D.
Fison.
MS. KITKA discussed AFN's position. AFN supports the passage by
the legislature, and then by the people of the State of Alaska, of
a constitutional amendment and a state statute that complies with
Title VIII of ANILCA as currently written and without any
amendments that will weaken federal subsistence protection. AFN
opposes the filing by the Governor or by the legislature of a
lawsuit challenging the constitutionality of Title VIII of ANILCA,
the authority of the Secretaries and/or any other arguments for
state management in the absence of compliance with ANILCA. AFN
does not support any more delays. The legislature has failed to
resolve this dilemma for 10 years. Every Alaskan understands the
real issue and deserves to vote on it in the year 2000. Title VIII
is sound public policy which must remain in place. It has been
litigated many times and has consistently withheld such
challenges. The demand for another lawsuit is a delaying tactic to
block a prompt resolution of this conflict. AFN urges the
legislature to get on with the public's business and to resolve now
the most bitter issue dividing Alaskans. If this special session
cannot produce an amendment to the Constitution for the people to
vote on, two things will happen: Alaskans will have to live with
federal management for subsistence fisheries, and the Alaskan
people will know who failed them.
MS. KITKA informed committee members that AFN held a national forum
on the future of Alaska Natives earlier this month in Washington,
D.C. A number of distinguished people participated in the forum.
Representative Mark Udall, the son of the late Morris Udall, former
Chairman of the House Interior and Insular Affairs Committee which
had jurisdiction over this issue when Title VIII was written, spoke
to forum participants. Representative Mark Udall articulated three
principles regarding this issue that he felt the national audience
should be aware of. The first principle is that of memory: we need
to remember that one of the main goals of the Alaska Native Claims
Settlement Act (ANCSA) was to prevent the shortcomings of the way
that the government has dealt with Native Americans in the lower
48, and to avoid future errors. When Congress considered ANCSA,
one of the issues debated was whether the law should include
provisions to protect the ability of Alaska Natives to continue
subsistence activities after the law made major changes in the
legal status of Alaskan lands. The conferees finally decided not
to include such provisions in ANCSA. They did so because of their
explicit expectation, stated in the conference report, that the
Secretary of the Interior could, and would, protect continued
subsistence activities. We need to remember that it was the
realization that the conferees' expectations were overly optimistic
that has led to the revisiting of this issue as part of the debate
over the future of the lands in Alaska remaining in the national
ownership after ANCSA. We also need to remember that Title VIII,
the subsistence title, is a key part of the legislation that has
shaped our government's relationship with Alaska's Native people.
MS. KITKA noted the second principle articulated by Representative
Mark Udall was the principle of national responsibility. Under the
Constitution, the federal government is responsible for dealing
with Native Americans. ANCSA was an exercise of that
responsibility, as was Title VIII of ANILCA. There is more
involved here than just a statewide issue - a point very important
to former Chairman Udall, and one that Congressman Mark Udall takes
very seriously. Title VIII is considered Indian legislation by
Congress, the Executive Branch and the Courts, with all of its
implications. It is also a matter of national importance.
MS. KITKA described Representative Mark Udall's third principle as
the principle of respect. The federal government must respect the
dignity of Alaska's Native people and respect its obligation to do
what it can to assure that, as far as possible, Alaska's Native
peoples will be able to decide the future of their relationship to
Alaska's land and resources. Government cannot, and should not,
seek to lock them into greater dependence on those resources than
they would otherwise seek but it can and should do what it can to
allow them to determine for themselves the extent to which
traditional dependence to the land may evolve over time.
Representative Udall understood that principle to be the
overarching purpose of the subsistence provisions in Title VIII of
ANILCA. He believes that is the right national policy, and that it
should be pursued.
MS. KITKA stated that those three principles struck a responsive
note with forum participants. She informed committee members that
President Clinton participated in the forum, and she asked that a
three minute video of the President's message be shown to committee
members.
[THE VIDEO WAS SHOWN TO COMMITTEE MEMBERS]
MS. KITKA stated that she asked that the video be played not
because she thought the message would convince committee members to
take a specific action, but to indicate that there is national
interest in what is being deliberated by the Alaska Legislature.
Furthermore, Secretary of Interior Bruce Babbitt and Secretary of
Agriculture Dan Glickman also spoke at the forum and both stated
unequivocally that they are prepared to move forward and fully
implement Title VIII. Participants at the forum included members
of Congress and high level Administration officials. Congressman
James Clyburn, Chair of the Congressional Black Caucus, supports
subsistence rights, as does the Congressional Spanish Caucus and
the Congressional Asian Pacific Caucus. There is tremendous hope
on the national level that the Alaska Legislature will be able to
resolve this issue. She repeated that her main reason for asking
that the video be shown is so that legislators can see how others
are viewing this issue.
MS. KITKA pointed out that AFN is constantly asked why this issue
is so difficult to resolve. She answers that AFN has been working
for ten years to get the legislature to put the issue before the
voters. AFN is now prepared to accept federal involvement after
October 1 because AFN only wants the federal law to be implemented.
102 villages are in economic distress and need the protections of
that federal law. AFN cannot support another moratorium that
blocks access to the rights granted under Title VIII. This
conflict is affecting communities; this legislature needs to deal
with it now. AFN pleads with legislators to take their
responsibilities very seriously, but it will do everything it can
to protect its people's rights and the integrity of Title VIII of
ANILCA.
Number 339
SENATOR MACKIE noted SJR 201, introduced by the Governor, contains
permissive language. He asked if AFN supports a permissive
constitutional amendment.
MS. KITKA noted that over many special and regular legislative
sessions the constitutional amendment that AFN preferred to have
adopted by the legislature was a resolution introduced by Senators
Adams, Hoffman and Lincoln (SJR 1). SJR 1 contained a list of
categories that would be identified in the Constitution. AFN
prefers that approach because it does not want to see this issue
revisited time and again. AFN fears that a poorly worded
resolution will result in litigation and eventually be thrown out
of court on a technical issue. AFN supports passage of a
constitutional amendment by this legislature that allows the state
to come into compliance with ANILCA. It is her understanding that
the Governor's legislation does that.
CHAIRMAN HALFORD asked if AFN supports SJR 201 although it is not
AFN's first choice.
MS. KITKA said she has not actually seen a letter of verification
from the Secretary of the Interior but she understands that SJR 201
will bring the state into compliance with Title VIII.
SENATOR HOFFMAN noted that former Congressman Mo Udall believed
that Title VIII is Indian Law. He asked Ms. Kitka to expound on
the significance of that designation.
MS. KITKA offered to give a layman's view of the significance but
deferred to Chris McNeill, Special Counsel to AFN for the legal
aspects. She said that when a law is considered federal Indian
legislation, the federal courts are required to give additional
deference to Native Americans in their interpretation of gray
areas. The justices are required to view such legislation from the
standpoint of what will benefit Native people.
CHRIS MCNEILL stated that Ms. Kitka explained the significance
correctly.
Number 379
SENATOR LINCOLN asked Ms. Kitka to discuss some of the statements
made by Senator Inouye at the forum regarding subsistence in
Hawaiian legislation.
MS. KITKA offered to provide to committee members copies of key
statements made at the forum. She said the Hawaii example is
particularly interesting because Hawaii and Alaska both came into
statehood within a matter of months of each other. Alaska and
Hawaii have gone in different directions on issues dealing with
their indigenous people. Senator Inouye explained that in Hawaii,
the Hawaiian language is one of the official languages of the
state; Native subsistence hunting and fishing rights are embedded
in the Hawaiian Constitution; a strong emphasis is placed on
strengthening the culture of the Native Hawaiians; and a law was
passed that requires all street names to be Hawaiian. The Hawaii
Legislature has supported the preservation of the Hawaiian culture.
SENATOR LINCOLN asked Ms. Kitka to provide her with copies of the
key statements.
CHAIRMAN HALFORD thanked Ms. Kitka for her remarks and asked
Attorney General Bruce Botelho to address the committee.
Number 427
ATTORNEY GENERAL BRUCE BOTELHO, Department of Law, introduced Frank
Rue, the Commissioner of the Department of Fish and Game. Mr.
Botelho made the following comments.
The current federal statute provides that the moratorium on the
final implementation of federal regulations dealing with fish and
game management for subsistence purposes on public lands will be
lifted unless the Secretary of the Interior certifies, before
October 1, that a bill or resolution has been passed by the Alaska
Legislature to amend the Constitution of the State of Alaska that,
if approved by the electorate, will enable the implementation of
state laws of general applicability consistent with, and which
provide for, the definition, preference, and participation
specified in Sections 803, 804, and 805 of the Alaska National
Interest Lands Conservation Act (ANILCA). The Governor has
introduced a constitutional amendment which he believes satisfies
all requirements of federal law that would prevent a federal
takeover. The language is very simple, short and straightforward.
ATTORNEY GENERAL BOTELHO pointed out this special session is the
fifth on this issue. Many people have taken the view that
something might be pulled out of the hat, however he believes there
is no ambiguity on the part of Alaska's congressional delegation or
the federal executive branch and that another moratorium will not
occur. From the Administration's perspective, two issues are of
primary importance. One is Alaska's assertion of its sovereignty
of the state and its independence from federal regulation and
control. The second issue is that of the high value placed on
subsistence as a way of life, particularly for rural Native
Alaskans. SJR 201 will allow Alaskans to achieve both purposes.
He urged legislators to support SJR 201 to allow the question to be
placed on the ballot so that the state may move forward.
Number 467
CHAIRMAN HALFORD stated that it was reported to him in the last
week or so that Marilyn Heiman, representing the Department of the
Interior, said that regardless of what this legislature does on the
issue, the federal government will proceed with the takeover and
then theoretically give it back if the amendment passes on the
ballot. He asked Attorney General Botelho if that information is
correct.
ATTORNEY GENERAL BOTELHO replied that he has no knowledge of any
such statement made by the Department of Interior. He believes the
statute is quite clear in that the Secretary of the Interior may
not implement subsistence regulations if, by October 1, the Alaska
Legislature has taken the requisite action to place the matter
before the voters.
SENATOR MACKIE asked Attorney General Botelho if he received
confirmation from the Secretary of the Interior that his
interpretation coincides with the Attorney General's.
ATTORNEY GENERAL BOTELHO said he has not, but he had no occasion to
because that question has never been an issue for the Department of
Law.
COMMISSIONER RUE noted he was available to answer questions.
CHAIRMAN HALFORD asked if Commissioner Rue was a resident of a
village in the Lower Yukon - Lower Kuskokwim area, and had his
subsistence ability to harvest continuously cut off year after year
under state management, whether he would support further state
management.
COMMISSIONER RUE noted there is a pending lawsuit on that issue,
but noted that a lot of subsistence users on the Yukon are also
commercial fishermen and they understand the importance of having
a unified management system so that they have an opportunity to
subsistence and commercial fish.
CHAIRMAN HALFORD asked if there is any urban-rural conflict in any
of the fisheries in the Lower Yukon - Lower Kuskokwim areas or
whether the conflict is between rural areas and between harvest
types.
COMMISSIONER RUE said the primary conflict he is aware of in that
area is the upriver-downriver conflict. The escapement issue
begins in Canada, with whom Alaska has a treaty, and then involves
upriver subsistence, sports and commercial fisheries. In addition,
interception is a bone of contention. That is the nature of
fisheries.
CHAIRMAN HALFORD thanked Attorney General Botelho and Commissioner
Rue and announced that the committee would take public testimony.
Number 519
MIKE WILLIAMS, Chairman of the Alaska Inter-Tribal Council (AI-TC),
read the following testimony into the record.
Mr. Chairman, members of the Committee:
Thank you for this opportunity to testify on behalf of the
Alaska Inter-Tribal Council. AI-TC is a statewide tribal
consortium that was established in 1993, around the time the
Department of Interior published its list of 226 federal
recognized Alaskan tribes. 178 of those tribes are members of
the AI-TC.
As you know, the issue of subsistence is of critical interest
to Alaska's tribal peoples. I think it is important in this
forum to draw your attention to the intent of Congress in
including Title VIII as part of the Alaska National Interest
Lands Conservation Act. The best and most accurate record of
the legislative intent for ANILCA's subsistence title is
contained in the presentation made to Congress on November 12,
1980 by the House Manager for ANILCA, the late Congressman
Morris Udall.
Congressman Udall made reference to the fact that Title VIII
grew directly out of Congress' wish to fulfill the promise it
made to Alaska's Native people even as it extinguished our
aboriginal hunting and fishing rights with the passage of the
Alaska Native Claims Settlement Act of 1971. Udall said:
'I am particularly proud of the subsistence language in
ANILCA because it fully reflects the commitment that was
made to the Alaska Native people at the beginning of the
95th Congress. At that time, we promised that any law
would recognize the importance of subsistence and would
contain management provisions which recognize the
responsibility of the federal government to protect the
opportunity from generation to generation so that Alaska
Natives now engaged in subsistence uses, their
descendants and their descendants' descendants will
determine for themselves their own cultural orientation
and the rate and degree of evolution, if any, of their
Alaska Native culture.'
For those who have criticized ANILCA's subsistence protections
as a violation of the rights of Alaska's non-Native citizens,
I wish to point out the next point made by Congressman Udall
as he laid out Congress' intent in adopting Title VIII of
ANILCA. He said:
'Although there are many non-Natives living a subsistence
way of life in rural Alaska (which may be an important
national value), the subsistence title would not be
included in the bill if non-Native subsistence activities
were the primary focus of concern. Rather, the
subsistence title and the other subsistence provisions
are included in recognition of the on-going
responsibility of the Congress to protect the opportunity
for continued subsistence uses in Alaska by the Alaska
Native people, a responsibility which is consistent with
our well recognized constitutional authority to manage
Indian affairs.'
In other words, Mr. Chairman, Title VIII of ANILCA did not
happen in a vacuum, nor was it an arbitrary step by the
federal government to move in on the State's authority to
manage its own fish and game. Alaska's tribes view Title VIII
as a demonstration of the federal government's awareness of
its trust responsibility to Alaska's indigenous populations,
our Alaska tribes.
Mr. Chairman, members of the Committee:
You all have been sworn to uphold the State's laws and its
Constitution as part of your service to the people of the
State of Alaska. Among Alaska's citizens are some 80,000
members of 226 Alaskan tribes. Each of those tribes has a
government of some sort that is distinct and separate from the
city and borough governments established under Title 29 of
state law. Some tribes re-established their governments with
councils created according to the Indian Reorganization Act of
1936. Some tribes maintained their ancient traditional
councils rather than re-organize as IRA councils. Some tribes
call themselves the "Native Village of Akiak" for example.
What they all have in common, however, is a government to
government relationship with the United States that is
mandated by the Indian Commerce Clause of the United States
Constitution.
What does that have to do with subsistence, you may ask. A
great deal, is our response. Title VIII was included in
ANILCA after a hard fought battle between those protecting
Native interests and those who said they stood for the State
of Alaska's interests. In the end, Native people settled in
good faith with the Congress and the State of Alaska accepting
the agreement to institute a rural rather than a native
subsistence preference on Alaska's federal public lands.
Title VIII was Congress' way of living up to that agreement.
The state, on the other hand, has yet to fulfill its own part
of that agreement. Instead we have seen Title VIII attacked
as some sort of un-American or un-Alaskan conspiracy to rob
non-Native Alaskans of their hunting and fishing rights.
We Alaskan tribes stand on our inherent right to maintain our
communities, our tribal members and our way of life, which is
supporting ourselves and enriching ourselves from our
traditional lands and resources. We respect the authority of
the State of Alaska inasmuch as it touches our lives - but we
do not support the State of Alaska when it attempts to
undermine our authority as tribes, as tribal governments, nor
do we support any attempt to diminish our tribal hunting,
fishing and gathering rights.
For this reason, on September 21 I wrote to Secretary Babbitt
to inform him of AI-TC's opposition to any legislative
resolution that would "permit" rather than "require" the
Alaska Legislature to bring state laws into compliance with
the federal subsistence protections contained in Title VIII of
ANILCA. Mr. Chairman, I would like to submit a copy of that
letter along with my testimony, to be included in the record
of this hearing.
Alaska's tribes wish you, Mr. Chairman, members of the
Committee, and the rest of your colleagues in the Alaska
Senate and the Alaska House, the best of luck and the guidance
of your God as you address the subsistence issue this week.
Thank you once again for this opportunity to testify.
The letter written by Mr. Williams to Secretary Babbitt reads as
follows:
September 2, 1999
Secretary Babbitt
U.S. Department of the Interior
Washington, D.C.
Dear Secretary Babbitt:
As you know Governor Tony Knowles has called for a special
legislative session on subsistence to be convened at 1:00 p.m.
on September 22, 1999. At that time the Governor is expected
to propose that the legislature adopt a resolution allowing
the question to be placed before Alaska's voters in the 2000
general election, in the form of a constitutional amendment.
The constitutional amendment proposed by Governor Knowles
contains language that permits rather than requires the
Legislature to enact State statutes to comply with the current
federal subsistence protections contained in the Alaska Lands
Act [ANILCA, Title VIII]. The Alaska Inter-Tribal Council
cannot and will not support this (or any other permissive
amendment to the State constitution) for the following
reasons:
~ A permissive constitutional amendment does not require
the passage of a statute to bring the State into compliance
with ANILCA, and thereby moves the onus for protection of
tribal hunting and fishing from its proper place within the
Department of Interior to the discretion of the Alaska State
Legislature. This would directly violate the government-to-
government relationship between Alaska's tribes and the federal
government and would amount to an abrogation of your responsibility
and authority to take action on behalf of the tribes in this
matter.
~ It is futile to expect the current legislative majority
to take action based on a permissive direction from Alaska's
voting populace, given their inability to succeed in
addressing the question over the past decade. A permissive
constitutional amendment begs [the] question, "Why should
Alaska's voters direct the Legislature to use their own
discretion?"
~ The adoption of a permissive constitutional amendment
will create a defacto extension of the current moratorium on
federal subsistence management to December 1, 2000. Alaska's
tribes opposed the initial moratorium and have been vociferous
in their opposition to its three extensions. The prospect of
allowing a hostile Legislature to have an additional fourteen
months to pursue amendments to ANILCA does not tempt us to
support a permissive constitutional amendment.
~ A permissive constitutional amendment will effectively
put the question of subsistence "on hold" to be decided by the
next (and potentially Republican) administration. That is a
daunting prospect for Alaska's tribes, who have supported your
efforts to ensure that this issue is settled "on your watch".
We recognize this has been a more than difficult issue for
your administration to deal with. We are aware that Governor
Knowles would view almost any constitutional amendment adopted
by the current Legislature as a positive step - but we would
like to remind you and the Governor of what is at stake for
those who will be most directly impacted by any resolution of
this matter. Thank you for your attention and consideration.
TAPE 99-35, SIDE B
CHAIRMAN HALFORD asked Shirley Demientieff to testify.
SHIRLEY DEMIENTIEFF, a resident of Fairbanks, informed committee
members she was born and raised in Nenana in a subsistence
lifestyle. Nenana was truly a village at that time. Like
legislators, she is now forced to come to Juneau to defend what she
believes in. Like legislators, she is looking at the federal
government taking over on October 1 which causes her concern. She
asked legislators to allow the people to vote on this issue so that
they can have their say.
Number 554
ROB HOLT, President of the Alaska Professional Hunters Association
(APHA) made the following comments. APHA consists of 600 members,
75 percent of whom are Alaskans who are actively involved in
guiding non-resident hunters. Hunting guides make their livelihood
from payment from clients and from the meat from the hunt, which
they distribute among their families and to other communities as
well. APHA is the only group which has lost opportunities based on
the federal priority, and that loss appears to be escalating.
APHA's short position on subsistence is that its members have
consistently supported the continuation of the subsistence
lifestyle, particularly by Alaska's Native people. APHA members
cannot, however, continue to survive under the federal priority as
it will eventually allocate 100 percent of the opportunity to
subsistence users, regardless of their take. APHA has never been
particularly vocal on either side of the issue because its members
believe in subsistence for Alaska Natives but its members' ability
to hunt will be eliminated under federal law. APHA is concerned
that the argument is only two sided: whether or not to change
Alaska's Constitution. Changing Alaska's Constitution will not
necessarily serve APHA members any better unless there is some way
that hunting guides have an allocation built into that change. If
amending the Constitution means that the State is administering
federal law, APHA will not be able to survive. In fact, if the
state's Tier II legislation becomes part of that implementation, it
may be worse for APHA because no allocation will have been set
aside for the hunting guides.
MR. HOLT noted that APHA believes it is reasonable for our Governor
to ask the U.S. Supreme Court whether or not this is the road we
should go down. Regardless of the outcome, Alaska would be better
off knowing that whichever road it was traveling on was
constitutionally sound. He asked legislators to consider that the
hunting guide industry has great potential to diversify the
economies of Alaska's rural communities. If, however, the
resources are allocated for subsistence, that potential is removed.
MR. HOLT said that if he could have what he wants, he would like
the leaders of our state, Alaska's congressional delegation, and
the Alaska Native community, and all other concerned individuals in
Alaska, to come together to design a new federal law. He noted
that the social and political concerns of the Alaska Native
community are finally being listened to due to their ability to
draw attention to themselves with this issue. He thought it is
possible that those issues could be separated from the federal
government's death grip on his heritage as a hunter. He does not
believe that his son's ability to fish and hunt in this state and
to provide for a family through guiding should be connected to our
federal or state government's inability to listen to the needs of
Native people. If that issue can be separated, then everyone can
move forward rapidly.
Number 469
SENATOR LINCOLN asked about APHA's membership.
MR. HOLT replied that APHA has 600 members; not all members are
guides.
SENATOR LINCOLN asked if the members are primarily non-residents.
MR. HOLT answered that the guides' access to the resource is
through the non-residents' ability to come to Alaska to hunt
because APHA guides do not guide many resident hunters.
SENATOR MACKIE asked about APHA's position on placing the issue
before the voters on the ballot. He also asked if APHA is more
comfortable with the process used by the Alaska Boards of Fish and
Game and state management than with a federal scheme.
MR. HOLT replied there is some level of comfort in state management
in that it is recognizable, however he believes that if subsistence
is afforded the priority, the only difference will probably be in
the amount of time that hunting guides are out of business.
SENATOR MACKIE stated that under the federal management system,
decisions about the guide industry could be made in Washington,
D.C.. He asked Mr. Holt if he thought a federal management system
would be more likely to eliminate the guide industry.
MR. HOLT replied that his preferred approach is something down the
middle; something that recognizes APHA's needs.
CHAIRMAN HALFORD interjected that federal subsistence management of
game has been in place for awhile.
MR. HOLT noted that hunting guides have already lost the ability to
hunt sheep in the Western Brooks Range because the federal board
and the state board were working against each other. No allocation
for non-resident use in that herd will ever be given because that
decision was based on biological factors. That particular scenario
could have played out differently if no federal board existed. A
section of the Eastern Brooks Range is closed to all sheep hunting
other than for subsistence use. That area does not have a high
density of animals, but the reason for the closure was not
biological. A state board could never reopen that area because it
was not closed for biological reasons. The last loss that APHA
suffered was on the Alaska Peninsula. The caribou herd dropped
down to a level of concern and conservation measures were
necessary. The Federal Subsistence Board closed all of the federal
land to non-subsistence use, and then the state board made it a
Tier II area. After the state permits were issued, the federal
land managers issued more permits of their own. Therefore, acting
together, the boards have guaranteed that no guide will ever hunt
for caribou in that area ever. He noted had the federal board not
been in existence, APHA guides would only be dealing with Tier II,
however a Tier II system with no allocation set aside for non-
resident use is one that APHA has not been able to come out of. He
noted that hunting guides take a very small number of wildlife yet
the benefit to the guiding industry is significant.
Number 390
SENATOR MACKIE remarked that the legislature is looking at an
October 1 deadline. He asked Mr. Holt if the legislature should do
nothing or whether it should allow the people to vote.
MR. HOLT answered that APHA could support a vote but it has to be
able to figure its needs into that process. He noted that he would
like the legislature to tell the federal government that it is
going to work on a different federal law that works for everyone.
SENATOR HOFFMAN asked Mr. Holt whether, given the lawsuit by the
guiding industry in May, he envisions that guided fisheries will
receive additional losses under federal management as well.
MR. HOLT said he would imagine the commercial fishermen will be hit
first, but that the sport fish guides will be knocked out also. He
added that he sat in on the Federal Subsistence Board's meetings
and that board members have tight blinders on. They have one
client, subsistence users, and that client can be very persuasive
given the abilities that ANILCA affords them.
Number 362
CECILIA KOONTZ, a Juneau resident, made the following comments to
committee members. She is a full-blooded Tlingit Indian and she
wanted legislators to see her. She has lived on Indian food most
of her life: fish, meat, seagull eggs, etc. Many of the foods she
was raised on she is no longer able to get. The new generation
does not know how to prepare Tlingit foods. She noted she is now
89 years old. White man's food often makes her sick. She told the
following joke to illustrate what the white man is doing to Tlingit
people. One time an Indian had a good friend who was a white man.
The white man took him to a restaurant and told the Indian to order
anything he wanted. The white man watched the Indian eat and said,
"Gee, you have a good appetite. I wish I had it." The Indian told
him, "You took all of my land and now you want my appetite."
MARY BISHOP, a Fairbanks resident testifying on her own behalf,
made the following comments. Quite recently, the Ninth Circuit
Court ruled that Title VIII is not Indian Law, however an earlier
case ruled that it is, therefore it is likely an appeal will occur.
She strongly supports subsistence use and the continuation of
Native cultures and other cultures that make up the diverse
lifestyles in Alaska. To maintain one's culture, people must teach
their children about them. Her family's diet consists of all wild
meat and fish. This issue is a civil rights issue and her culture
is shown grave disrespect by the federal law. Conforming to ANILCA
provides no solution for her family. In response to Ms. Kitka's
statement that 102 villages need the protection of Title VIII
because they are in economic distress, economic need is not a
priority in Title VIII. Adoption of the rural priority will affect
far more residents than those in the 102 villages. Ms. Bishop
cited part of a decision made by Judge Holland in 1986 or 1987, to
illustrate that economic need is not a factor in the rural priority
in Title VIII. Judge Holland stated:
If bag limits and seasons are imposed on subsistence hunting
there must be substantial evidence in the record that such
restrictions are not inconsistent with customary and
traditional use. Need is not the standard. It matters not
that other food sources may be available. The standard is
customary and traditional use of game.
MS. BISHOP maintained that customarily and traditionally people
used fish and game year round, and it was customary to sell game in
the 1920's and 1930's. Once again, need is not the standard. The
result of implementation of the federal law will be that soon rural
residents will have exclusive use of the resources because there
are not enough to fulfill all needs under that kind of management.
She asks those who are priority advocates why their rights are more
important than her own. She might understand if the priority was
need based, but it is not. She asked legislators, as the guardians
of her civil rights, to not surrender those rights because they
feel pressured to conform to a flawed federal law. She asked
legislators to look at situations around the world in which nations
put one group over another. She also asked legislators to look
ahead seven generations and think about whether our grandchildren
will respect each other's rights at that time if the federal law is
implemented.
Number 162
SENATOR WARD stated that whenever something is allocated, one group
will be pitted against another somewhere along the line. He asked
Ms. Bishop if she believes that a person who hunts or fishes for
money should have a priority over those who hunt or fish for food.
MS. BISHOP replied that she thinks putting food on the table is
more important, but on the other hand the guides put food on their
tables too.
SENATOR WARD asked Ms. Bishop if she had to pick sides in an
allocation scenario, would she consider those who use the resource
for money in a lesser group than those who use the resource for
their food source.
MS. BISHOP said she does not like the word "lesser." She stated
the difficulty with the federal law is that it does not provide
room for everyone.
Number 135
DAVID BEDFORD, Chairman of the Subsistence Committee of the United
Fishermen of Alaska (UFA), gave the following testimony. In the
State of Alaska, 15,000 permit holders and 21,000 crew members in
the commercial fisheries depend on the fisheries for their
livelihood. UFA supports placing a constitutional amendment before
the voters that will permit the state to retain management of its
resources on all of its lands and waters in the state. The State
of Alaska has effectively managed the resources for 40 years; it
has preserved very healthy resources and it has managed to provide
for all uses of those resources by all Alaskans. We are now facing
the choice of whether to maintain that management or whether to
take the risky step of permitting the federal government to assert
jurisdiction and control over Alaska's fish and game. If the
Alaska Legislature does not place a constitutional amendment on the
ballot the people, the federal government will assume management on
October 1, and the results will be grim. In the face of the
federal managers' unwillingness to clearly define what is required
for subsistence harvests, our department of fish and game will be
compelled to manage in a particularly conservative fashion.
Alaskans will lose opportunity in the initial phase of a federal
takeover because the federal government will not cooperate with the
state in the management structure. Alaskan managers will not only
have to provide for unspecified subsistence uses, but will also
have to provide for conservation purposes as well. That is one way
that the commercial and sport fisheries will suffer in the very
near term. Second, the federal government will not be content to
manage only on federal public lands. It has made it clear in
published regulations that it intends to exert authority over
Alaska lands and waters as it sees fit. Federal government
officials have recently held closed door meetings to discuss
exactly what the contours of that federal authority will be and how
they will exert it. The key distinction between state and federal
management is that the latter will deal with a single client; it
will look only to the needs of subsistence users. Alaska's Boards
of Fish and Game know well the full range of uses that Alaskans
make of the resource. They have been able to provide for
subsistence, and when there is a conflict they have dealt with it
surgically so that the pain experienced by others is as minimal as
possible. The federal government has no commitment to, knowledge
of, nor an interest in, the commercial or sport fisheries in this
state. There is no reason it should be cautious in the way it
deals with other uses.
MR. BEDFORD continued. Some complain that compliance with ANILCA
amounts to surrender of the entire game, and at that point the
federal government will, in fact, manage all lands in Alaska. He
places a great deal of faith in the Alaska Department of Fish and
Game managers who have handled our resources and he believes there
is a tremendous distinction between those people and the federal
managers. By the same token, Alaska has a widely acknowledged and
extremely effective public process for dealing with its fish and
game resources. The Federal Subsistence Board, with its closed
meetings dealing with extra-territorial jurisdiction, and the
Alaska Boards of Fish and Game, with their open public meetings,
are distinctly different entities. He trusts Alaskans to take care
of their resources and the people of Alaska. He does not trust
federal managers to do that. As a consequence, on behalf of UFA
members and the fishermen of this state, he urged legislators to
pass a constitutional amendment to the people for a vote.
SENATOR LEMAN noted that written testimony submitted by UFA
included support for a constitutional amendment and support for
definitional changes to ANILCA. He asked Mr. Bedford if he did not
mention the changes to ANILCA in his oral testimony for a
particular reason.
MR. BEDFORD stated that UFA definitely supports some minor
technical modifications to ANILCA, similar to the definitional
changes put into place by Senator Stevens last year. However, at
this juncture, Alaskans have an opportunity to take the first step
toward preventing federal management, and the key element at this
point is to get the constitutional amendment on the ballot. Senator
Murkowski has said that if we do that, we will then have the
opportunity to pursue minor modifications to ANILCA.
TAPE 99-36, SIDE A
SENATOR LEMAN expressed concern that SJR 201 contains no linkage
between passage of a constitutional amendment and changes to
ANILCA, which previous legislation contained. He asked Mr.
Bedford's position on the inclusion of a linkage.
MR. BEDFORD said that he believes the first step the state needs to
take is to put forth a constitutional amendment.
SENATOR LINCOLN asked Mr. Bedford if UFA supports SJR 201.
MR. BEDFORD said it does.
CHAIRMAN HALFORD asked whether UFA supports the current Area M chum
cap and the management policies for that area.
MR. BEDFORD replied that UFA does not generally embroil itself in
particular allocation disputes. Those disputes are undertaken by
specific member organizations; UFA tends to deal with statewide
issues.
Number 036
SENATOR MACKIE asked if UFA and its individual member organizations
are comfortable with the state management system and the Board of
Fish process regarding access to and fair treatment.
MR. BEDFORD replied, "Absolutely."
CHAIRMAN HALFORD asked Mr. Bedford if he lived in Kwethluk, whether
he believes he would get more fish under state or federal
management.
MR. BEDFORD said he did not know where Kwethluk is located.
CHAIRMAN HALFORD responded it is near Bethel.
MR. BEDFORD replied that the first question is whether that area is
on federal lands in which case residents would, at the first
instance, get more fish under federal management. If not on
federal lands, the question of whether extra-territorial
jurisdiction would apply to Kwethluk would have to be answered.
SENATOR MACKIE noted that UFA has not always supported a
constitutional amendment for subsistence. For many years, varying
views were expressed from those in the fishing industry, and for
several years, most were opposed to amending the Constitution
because they feared the State would give a preference to
subsistence users thereby affecting commercial use. He asked if
that fear pales to the fear that commercial fishermen now have of
federal management.
MR. BEDFORD apologized for not having the same history with UFA
that Theo Matthews had. In terms of where UFA stood in the past,
he could not answer. He did say that for a number of years UFA had
a policy supporting a three-part resolution: a constitutional
amendment; technical changes to ANILCA; and statutory changes to
put the constitutional amendment into effect. He does not believe
UFA has made a fundamental change in its position over the years,
and in terms of his history with the organization, he does not
believe that the immediate fear of federal management has caused
any changes in UFA's position.
Number 100
SENATOR WARD asked if a person who catches a fish to eat should
have a priority over a person who catches a fish to sell.
MR. BEDFORD said generally speaking yes, however some distinctions
need to be drawn. For example, someone who fishes for the fun of
it and eats the fish is in a different tier than a person who
fishes for food out of necessity.
SENATOR WARD asked whether a person who fishes for food out of
necessity yet lives in Kenai, such as a Kenaitze Indian, should
have priority over a person who catches a fish to sell.
MR. BEDFORD said again it comes down to the question of what the
need is for it.
SENATOR WARD remarked that he does not know the answer either.
There being no further questions of Mr. Bedford, CHAIRMAN HALFORD
asked Caleb Pungowiyi and Eileen Norbert to testify.
Number 128
EILEEN NORBERT, Vice President of Kawerak, Inc., introduced Caleb
Pungowiyi, Kawerak's Director of Natural Resources.
MS. NORBERT submitted a resolution adopted by the Kawerak Board of
Directors last year containing Kawerak's official position on
subsistence. Resolution 98-04 reads:
WHEREAS, Kawerak, Incorporated is the regional Native non-
profit consortium authorized by the region's twenty federally
recognized tribes to provide services throughout the Bering Straits
Region of Alaska;
WHEREAS, the Alaska Native people of the Bering Straits Region
have depended on animal and plant resources for thousands of
years to provide sustenance for themselves and their families;
WHEREAS, to this day the cultures of Alaska's indigenous
people continue to be based on hunting, fishing and gathering
activities, while the technology has changed, our dependence
on the resources has not;
WHEREAS our non-Native friends, family members and neighbors
in rural Alaska also depend on subsistence resources to feed
their families;
WHEREAS, subsistence is primary and essential to the economy
of rural Alaska;
WHEREAS, our ability to gather food and live off the land
today and on into the future is core to our identity as Native
peoples, our culture and spiritual well being;
WHEREAS, our ability to live our culture is a basic human
right, one which Congress sought to protect when it passed the
Alaska National Interest Conservation Act in 1980 which
provided a preference for subsistence use of resources on
federal lands in rural Alaska;
WHEREAS, in 1989 the Alaska Supreme Court ruled that the
Alaska subsistence law which provided a rural preference was
unconstitutional;
WHEREAS, in 1990 the federal government took over management
of subsistence hunting on federal lands;
WHEREAS, since 1990 we have had dual management in the State
of Alaska with the federal government managing subsistence on
federal lands and the State of Alaska managing fish and game
on state lands and navigable waters;
WHEREAS, in 1994 the Ninth Circuit Court of Appeals ruled that
the subsistence priority applies to those navigable waters in
which the United States has reserved water rights;
WHEREAS, for the past two years, the Alaska Congressional
delegation has placed a moratorium on spending federal funds
to implement final federal regulations for managing
subsistence fishing in federal reserved water;
WHEREAS, even though a majority of Alaska's voters favor a
constitutional amendment for subsistence, the Alaska State
Legislature has consistently refused to place a constitutional
amendment on the ballot and has abrogated its responsibilities
to deal with this issue at the State level for the past seven
years;
WHEREAS, under state law, all Alaska residents in the State of
Alaska are considered to be subsistence users and all are
eligible to apply for a Tier II hunting permit during times of
resource shortage;
NOW THEREFORE BE IT RESOLVED that Kawerak opposes any
amendments to ANILCA except those that strengthen rural and
Native subsistence protections;
BE IT FURTHER RESOLVED that Kawerak will support a state
constitutional amendment if one is placed on the ballot which:
1) contains language that a rural preference shall be
provided,
2) will strengthen rural and Native subsistence
protections;
BE IT FURTHER RESOLVED that Kawerak shall seek to insure that
the accompanying legislation shall:
1) provide for a strong regional council system similar
to the federal model;
2) allows co-management initiatives between rural and
Native Alaskans, their representative bodies and the
State of Alaska.
BE IT FURTHER RESOLVED that Kawerak will strongly object to
any constitutional amendment that would adversely affect a
rural subsistence priority;
BE IT FURTHER RESOLVED that Kawerak will appropriate necessary
resources to protect the rural subsistence priority.
PASSED AND APPROVED by Kawerak Board on the 9 day of April,
1998 at a regularly scheduled quarterly meeting.
MS. NORBERT stated that the resolution speaks to Kawerak's members'
continued reliance on natural resources; it is their way of life
even though they have adopted modern technology. The resolution
points to how subsistence is essential to the economy in rural
Alaska. Kawerak agrees with Ms. Kitka, and urges the legislature
to use the language, "a rural preference shall be provided," on the
ballot. This issue will continue to be debated if the definitive
word "shall" is not used. Nome is unique in that last year it was
the first community in which the Tier II system was applied to the
fishery resources.
MR. CALEB PUNGOWIYI, Director of Natural Resources for Kawerak,
Inc., explained that Nome was one of the first areas in the state
to apply the Tier II fisheries program. The population of fish in
that area has declined since the mid 1970's to the point at which
in the early 1980's commercial fishing in the Nome area ceased. In
1989, fishing permits were issued. Last winter the Board of Fish
adopted a Tier II fishery for the Nome area and issued 20 permits
to 20 of 75 applicants. 19 permit holders were from Nome, one was
non-Native, and one applicant was from Anchorage. Of the 20 permit
holders, one caught one fish, the other caught 20 fish. The
remainder of the permit holders caught nothing either because they
did not fish or there were no fish at all. The Nome area is
surrounded by the least amount of federal land among rural areas.
The Nome area also has a Tier II permit system for the taking of
musk oxen. In that system, permit holders are picked by a
computer, usually applicants from the villages of Golovin,
Shishmaref, Brevig Mission, Wales, Teller and White Mountain. No
permits were issued to Anchorage, Nome or other applicants. In
other areas where conflict of taking occurs, such as guided moose
hunting, guided caribou hunting, and sport fishing, no permitting
system exists. This year, sport fishing guides were told that
clients had to release any and all fish caught by their clients.
MR. PUNGOWIYI said that if federal management occurs around the
Nome area, federal officials will look down river to find
interception points. Steps may be taken to protect the fish that
should be returning to the Nome area. Kawerak has not advocated
federal management; it has tried to work with the Alaska Department
of Fish and Game to determine the reasons for the decline in fish.
Kawerak is also working with Senator Stevens to start a research
initiative for its fisheries. The life cycle of a salmon and the
ecosystem and habitat of that region will be studied in an attempt
to discover what is causing the problems with the fisheries. He
noted that many people believe that federal management will be more
responsive to the needs of rural people. He questioned what will
happen to regulations adopted under federal management of game if
that management is returned to the state. He noted that people
will expect the same level of responsiveness from state managers
that they have received from federal managers.
Number 269
DAN COFFEY, Vice-Chairman of the Alaska Board of Fisheries, noted
he provided the Board's position paper to the Senate and House
leadership. The Board of Fisheries has weighed in on this issue
because board members have seen what will happen if a federal
takeover occurs. A federal takeover will create a system that will
be detrimental to the resource, to those subsistence users who
remain under state jurisdiction, to personal use fisheries users
and to commercial and sport fisheries users. The Board believes
that the consequences to users, other than subsistence users, under
a federal management scheme will be "horrific." Federal managers
will have only one constituency and will manage a resource that is
subject to harvest by many users and that passes through state and
federally-owned areas. They will only be concerned with
subsistence users on federal lands and navigable waters resulting
in a disaster for the resource and harvesters.
MR. COFFEY noted the Board of Fisheries spent hours in meetings
with the Federal Subsistence Board over the past six months and
attempted to work out a system that would answer some of the cross-
jurisdiction questions. After all of that work, Board of Fisheries'
members were told in June that they would have no input in the
federal board or federal subsistence fisheries. Closed door
meetings then occurred and decisions have been made that no one
else participated in. The Board of Fish process is an open and
accessible one; days of public testimony are taken and proposals
are accepted from anyone. None of that will happen in the federal
system. He is sympathetic to those who are concerned about equal
rights and access and he hopes there are ways to address those
concerns, however in eight days the federal officials will take
over, and from the Board of Fisheries' point of view, that will be
damaging to everyone. The Board of Fisheries supports legislative
action to prevent a federal takeover.
Number 340
SENATOR WILKEN asked Mr. Coffey if he has shared his views with the
Governor and Secretary of the Interior, and any other interested
parties.
MR. COFFEY replied that he has not spoken to the Secretary of the
Interior but he spoke to Alaska Department of Fish and Game
officials and with the Governor's Office.
DAVE KELLEYHOUSE stated that although he is a member of the Board
of Directors of the Alaska Outdoor Council, he is testifying on his
own behalf based on 20 years of professional wildlife management
experience in Alaska. As a former director of the Division of
Wildlife Conservation from 1991-1994, his greatest challenge was to
maintain a level playing field for all of the user groups that he
had to deal with. His other challenge was to ensure that Alaska's
wildlife resources were managed for abundance, according to the
sustained yield principle; a mandate set forth in Alaska's
Constitution. What is at stake today is the ability to provide a
level playing field for all Alaskans for access to the fish and
wildlife resources upon which they all depend. He distributed
copies of an editorial he wrote that was published in a Fairbanks
newspaper today to committee members. His proposal reads as
follows.
Section 1. Article VIII, sec. 4, Constitution of the State of
Alaska, is amended to read:
(b) Consistent with the sustained yield principle, non-
wasteful and non-commercial use of wild native fish and game
resources for personal and household nutrition shall be the
preferred use of these resources whenever there is a historically
unusual shortage.
Whenever it is determined that an unusual shortage of a wild
native fish or game resource exists in a local area
characteristically dependent upon subsistence use of that
resource, subsistence use for human nutritional purposes may
be accorded a preference among uses of that resource until
such time that abundance can be restored.
MR. KELLEYHOUSE noted any solution that does not result in
discrimination, resource damage, or divisiveness among Alaskans
will require that ANILCA be amended because it is the root of the
problem. Without changes to ANILCA, future state management will
only be an extension of federal management mandates on every piece
of land and water in Alaska. Federal courts will be enforcing the
federal law. He believes the legislature should consider forging
an Alaskan solution to put before the people for a vote which will
provide a good mandate for Alaska's congressional delegation to do
what it can. His bottom line is that he does not want to be
discriminated against because of who his parents were, nor does he
want anyone else to be. The Alaska Constitution is one of the
finest state constitutions in the nation in terms of resource
protection and equality and it is worth defending.
Number 396
SENATOR MACKIE asked Mr. Kelleyhouse if his approach would comply
with ANILCA.
MR. KELLEYHOUSE said it would not; it would require that ANILCA be
amended. The intent of his proposal is similar to that in ANILCA -
it is to protect subsistence uses. He has been dealing with this
issue since 1978 as a professional and he sees the problem as
chronic.
SENATOR MACKIE asked if Mr. Kelleyhouse's proposal is not
achievable, whether he would prefer a constitutional amendment be
put before the voters or that the federal government take over
management.
MR. KELLEYHOUSE said he would prefer that SJR 201 not pass. He
would prefer to let the federal government make the first move to
take over Alaska's sovereign state rights and he would like to see
how the Governor responds to such an overt act. He believes a
lawsuit on this question would make it to the U.S. Supreme Court,
but Alaskans need leadership to challenge the constitutionality of
ANILCA.
SENATOR MACKIE asked Mr. Kelleyhouse if he believes that the
federal government should be allowed to manage the resources of the
state versus retaining state management.
MR. KELLEYHOUSE said if there is a threat of a federal takeover,
everyone is due the opportunity to fail miserably. He does not
think such a failure would cause irreparable harm to Alaska's
fisheries but it would cause an uproar.
SENATOR MACKIE asked where the expense would be if federal
management were to fail.
MR. KELLEYHOUSE replied that the failure would be more in an
economic arena rather than in the resource arena. He believes
federal managers will tend to err on the conservative side and
there could be a tremendous over-escapement. Unless our
Administration offers to help, he does not believe the federal
government can manage effectively.
SENATOR MACKIE asked if Mr. Kelleyhouse believes the commercial
fishing industry will be hit the hardest.
MR. KELLEYHOUSE said yes and that he thinks that will be the case
in either "fix."
Number 445
SENATOR HOFFMAN suggested that at this eleventh hour the
legislature does not have the luxury of dealing with Mr.
Kelleyhouse's solution, and that Mr. Kelleyhouse should take his
case to the people when they are trying to decide how to cast their
vote on the ballot measure contained in SJR 201.
MR. KELLEYHOUSE remarked that he would like to have something go to
a vote of the people, but not SJR 201.
DICK BISHOP, Vice President of the Alaska Outdoor Council (AOC),
gave the following testimony. The AOC does support subsistence
uses and subsistence lifestyles. Many people have participated in
that lifestyle to one degree or another over the years, himself
included. The AOC, however, does not support a discriminatory
priority such as "rural." The Alaska Supreme Court did an
exhaustive analysis of the discriminatory nature of that priority
in 1989. That court determined that not only did the priority
violate common use and equal protection clauses of our Constitution
but it went far beyond what was appropriate to accomplish the main
purpose of the law, which was to provide people who need food the
opportunity to get it. One judge said in his opinion that it was
an equal protection issue and an easy one at that.
MR. BISHOP said a number of reasons exist to oppose conforming to
the federal law. First and foremost, ANILCA violates Alaskans'
civil rights. He paraphrased Chuck Robinson, a lawyer from
Soldotna who is involved in many natural resource issues, when Mr.
Robinson testified before a former legislature on a similar bill
put forth by former Governor Cowper. Mr. Robinson said he was
opposed to a rural priority amendment because it violates his civil
rights as well as those of the majority of Alaskans, and as a black
man, he knows something about civil rights.
MR. BISHOP said AOC's second concern is that SJR 201 is poor
conservation law. It is not set up to manage fish and game on the
sustained yield principle. The two parameters that it mentions are
healthy populations in the case of federal refuge lands and perhaps
forest lands, and healthy and natural populations, neither of which
are defined in federal law. It allows for no closed seasons and no
bag limits, it eliminates other uses before customary and
traditional uses are constrained, and it allows the commercial sale
of resources taken under the subsistence priority. Under the
Marine Mammal Protection Act, another disastrous federal law, the
Cook Inlet beluga population has been virtually decimated because
of the taking by Alaska Natives who are authorized to sell those
products. AOC's third objection to SJR 201 is that it restricts
Alaskans' opportunities for common use of the fisheries and
wildlife resources. Fourth, no other state has the threat of
federal preemption of state responsibility for management of
resident fish and wildlife. If the state conforms to the federal
law, it will have no grounds for future legal challenges to
elements of ANILCA that are counterproductive. Once the state
complies, the argument is over and there will be no basis for
corrections to be made to ANILCA. Litigation regarding ANILCA has
occurred in court many times but never has ANILCA's substance been
challenged. The State of Alaska v. Babbitt suit would have gotten
to the point, but that case was dismissed with prejudice by
Governor Knowles, making it virtually impossible for the state to
assert its rights.
MR. BISHOP expressed concern about hearing the argument that if the
state conforms to the federal law it will keep state management
when the state will only be implementing federal law.
Implementation of federal law will be enforced by the federal
courts; the state will not have the option to take into
consideration the concerns of other resource users because the
subsistence priority will drive the entire fish and game management
system. He noted that all waters in the state will be subject to
federal law enforced by federal courts if the state complies with
ANILCA.
MR. BISHOP stated that it is imperative that the legislature take
whatever measures it deems necessary to strengthen the protection
of subsistence uses and reassure people that subsistence uses and
the subsistence lifestyle will be fairly and adequately
accommodated, but that it be done within the existing Constitution
and its protections. The Supreme Court in the McDowell case
engaged some guidelines to do so when it said that a subsistence
priority was not unconstitutional but that it had to allow Alaskans
who need food to have a priority and opportunity to get it.
SENATOR MACKIE asked if the AOC would support a constitutional
amendment with changes to ANILCA.
MR. BISHOP said he did not say that.
SENATOR MACKIE asked if Mr. Bishop had a list of the changes AOC
wants to see made to ANILCA.
MR. BISHOP said he did and that he would provide it to committee
members.
SENATOR MACKIE asked the number of AOC members.
MR. BISHOP replied AOC has about 1200 individual members plus the
membership of about 45 member groups, for a total of about 10,000.
TAPE 99-36, SIDE A
SENATOR MACKIE asked how one becomes a member of the AOC.
MR. BISHOP said one signs up and pays dues.
SENATOR LINCOLN asked why the AOC does not want to let the issue be
put on the ballot and then try to persuade Alaskans to vote no
based on AOC's position, especially if AOC has 12,000 members.
MR. BISHOP replied that first, it is the legislature's
responsibility to decide what issues should be put on the ballot.
Therefore, it is incumbent upon the legislature to decide whether
or not this question should go on the ballot and what it should
ask. Second, in 1990 an intense campaign over essentially the same
proposal ensued. Those who favored the rural priority amendment
spent at least $500,000 urging people to adopt a rural priority to
retain state management. The advertisements were very misleading.
The myths circulating today are much the same, such as, we will get
state management back if we conform to the federal law, or, the
priority is only in place during times of shortage, which are
false. Whoever can buy the most thirty-second sound bytes can
persuade a majority of voters to vote a particular way.
Number 552
SENATOR LINCOLN stated that argument might have been valid had it
not been for the September 14 vote in which a much higher
percentage of the advertisement dollars were spent on a yes vote
while an overwhelming majority of Alaskans voted no on that ballot
measure. She maintained that letting the people vote on the
subsistence issue will be the first step toward resolution if we
really want state management of our resources.
MR. BISHOP repeated we will not have state management, we will have
a federal law that will tell the state how to manage fish and game
with a federal court system ensuring that the state does so. He
cited the Bobby case as an example. Regarding the September 14
advisory vote, he noted the one thing the people knew was that
their wallets would be affected and they did not want to lose
money.
Number 524
SENATOR PETE KELLY indicated that the members of the AOC and many
others do not support placing the issue on the ballot because they
do not believe it would have been appropriate for the people in the
South to have voted in 1955 on whether or not Rosa Parks should
have been forced to sit at the back of the bus. He maintained that
some questions are not appropriate for a ballot, especially civil
rights issues.
SENATOR LEMAN asked whether one of AOC's concerns would be removed
if SJR 201 was modified by inserting language to limit the rural
priority to federal lands and navigable waters subject to federal
reserve water rights.
MR. BISHOP agreed that would geographically restrict the imposition
of this discriminatory priority to federal lands and waters which
would be better than having it apply universally in Alaska.
SENATOR LEMAN asked that the Department of Law respond at a later
time to whether the priority would have to be universal throughout
the state.
MR. BISHOP said that Alaskans use federal public lands quite often,
which comprise 60 percent of the state. If the priority applied to
those lands, then 60 percent of the state would be subject to the
same restrictions and loss of opportunity and equity.
Number 480
JESSE VANDERZANDEN, Executive Director of the Alaska Outdoor
Council, stated he comes to this issue as a newcomer but also as
someone with fresh eyes. As a former staff person to U.S. Senator
Gordon Smith in Oregon covering natural resource issues, he is
familiar with government policy, state and federal relationships,
and the authorities carried under each. When he began working at
AOC, he was alarmed to learn that the federal government has a much
more significant role in the management of fish and wildlife in
Alaska than in any other state he has done policy work in such as
Montana, Idaho, California, or Washington. As a matter of
comparison, all game species in Oregon, regardless of whether they
are on federal, state or private land, are managed almost
exclusively by the state. This state authority remained intact and
accepted until the federal government threatened to take over
Oregon's fisheries under the auspices of the Endangered Species
Act. At the time, Oregon was faced with two, not exact but
similar, choices as Alaska is now faced with: one was to accept
the federal law and conform or to develop and submit its own plan
to the federal government for consideration. The paradigm was not
one of conforming state law to federal law to avoid a takeover, it
was one of drafting state law to retain state responsibility and to
put the burden of proof in their court. The State of Oregon was
essentially asking why and how the federal government would do
better than the State of Oregon. In the final analysis, the
federal government could not. He urged legislators to find the
parallel in his story.
SENATOR LINCOLN asked Mr. Vanderzanden if he is a newcomer to the
state.
MR. VANDERZANDEN said he moved to Alaska eight or nine months ago
and that he is very sensitive to people with a much more thorough
history of this issue. He noted his intention was to offer his
perspective on policy making.
SENATOR LINCOLN stated that this issue is about a rural lifestyle.
She asked Mr. Vanderzanden if he had been out to rural villages.
MR. VANDERZANDEN said he has traveled to some villages.
SENATOR LINCOLN remarked that she hopes Mr. Vanderzanden was not
referring to residents of rural Alaska as an endangered species
because the subsistence issue is about people being able to live
off of the land culturally and historically as they have for
generations.
MR. VANDERZANDEN said he offered that as a means to analyze the
policy making process and he did not mean to draw a parallel
between endangered species and subsistence.
SENATOR LINCOLN asked if he has worked on any subsistence issues in
other states.
MR. VANDERZANDEN replied that his work has been more administrative
in nature than legislative.
Number 375
THOMAS TILDEN, a commercial fisherman and the president of his
village corporation, a member of the AFN Board, a member of the
Bristol Bay Native Association, and the director of his church
council, made the following comments. In 1963, when he was growing
up, his village ran out of all food. The villagers reached out to
the federal and state government and were given surplus peanut
butter. The villagers survived because they subsisted off of the
land. They hunted, fished, picked berries, and ate bark. His
people have survived because they have lived collectively. Prior
to that time, residents of that area had generated money through a
fish tax for the State of Alaska. In 1997, the Bristol Bay fishery
crashed. Again the village reached out for help. No help came.
Once again, the people banded together and helped themselves. They
did job rotations in their villages. They lived off of the land
and made sure that their elders were cared for. In 1998, the state
government decided to do something: legislators redefined the word
"disaster." Once again village residents survived because they
were able to subsist off of the land. The villagers' definition of
subsistence differs from legislators'. Regarding the issue of
equality, Mr. Tilden remarked that equality between rural and urban
areas does not exist in many arenas from education to the
availability of a criminal justice system.
MR. TILDEN noted that he attended the forum in Washington D.C. and
listened with envy to Senator Inouye when he talked with pride
about the measures the Hawaiian legislature has taken on behalf of
Hawaiian Natives. The State of Hawaii is as great as it is because
people are working together. He told legislators if we are going
to make any headway, Alaska's Constitution must be amended. He
noted that when the Alaska Constitution was drafted, rights to fish
and game were not addressed because Alaska's population was very
small. He expressed concern that people oppose a rural priority
because, "there's a doctor out in rural Alaska that makes $80,000
per year and flies a Supercub and can go out there and catch a
moose under a rural priority." He noted that people think, by that
statement, that there are hundreds of doctors running around rural
Alaska. He noted there are only a handful in the Bristol Bay area
and only one owns a Seacraft. He asked legislators to do the right
thing, and that is to pass a constitutional amendment that complies
with ANILCA.
CHAIRMAN HALFORD announced that the committee would reconvene on
September 23 at 2:00 p.m. and that the first person to testify
would be Gloria Stickman. He then adjourned the meeting at 7:03
p.m.
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