HB 406 - SUBSISTENCE USES OF FISH AND GAME CHAIRMAN GREEN announced the committee would hear HB 406, "An Act relating to subsistence uses of fish and game." He noted that the hearing was a continuation from the previous day, and there were several people to testify. Number 0075 PATRICK DALTON testified via teleconference from Delta Junction, saying the original of HB 406 seemed a fair bill, with the exception of some responsibilities placed on the boards. However, he had serious objections to the work draft provided the previous week, in which the focus had changed completely. He finds seriously unfair the limiting of subsistence qualifications by geographical area. He provides 90 percent or more of his family's meat requirements from hunting or fishing; with six children and a wife, it is a huge responsibility. To meet those requirements, he must travel through three different fish and game areas. He fishes in Copper Center and hunts caribou near Tok. He cannot obtain those wildlife resources near Delta Junction, and he objects to a person being required to live where that resource is in order to qualify for subsistence. Number 0210 CHAIRMAN GREEN asked whether Mr. Dalton was aware that the only time he would be restricted by not living in the area would be in a time of shortage. MR. DALTON replied that as he understands it, this could affect him even next year, because the Forty Mile caribou hunt is designated as a subsistence hunt for which he has qualified under the subsistence rules. If it were changed to include just the Tok area or the Taylor Highway, he would no longer be able to hunt there for caribou. The most reasonable and fair thing he had come up with would be to pre-qualify users in an area, but also to provide that others who would have to travel could still qualify if the species were endangered. CHAIRMAN GREEN pointed out that if a person has customarily traveled to an area to get fish or game, and if the person can show that and show reliance on that resource, there is a rebuttable presumption that can be overcome by showing the historical need and use. In addition, a person can go to areas that are not designated as subsistence and hunt there. Number 0430 MR. DALTON said it still seems that is giving a select group of citizens more rights than others, although he sees what they are getting at. Local people would benefit more anyway, because they would know better where those resources are. He still disagrees somewhat on that area. Furthermore, it would place a large burden on the boards, and he doesn't think the boards are qualified to determine economic needs of individuals; they are experts in fish and wildlife. He suggested there should be objective criteria established, which could not be influenced by personalities on the board. It should be a truly fair system, and Mr. Dalton questioned whether the board members could be fair in this regard. CHAIRMAN GREEN said that is a good point. He asked Mr. Dalton which version he was addressing, noting that there have been revisions of the work draft. He said the next-to-last draft was Version R, and now there is a more recent one, Version X. "And your concerns about the individual's economic situation has been removed," Chairman Green said. Number 0574 MR. DALTON asked what kind of objective criteria they had ended up with to establish whether a person qualifies for subsistence. CHAIRMAN GREEN explained that the first pass at the subsistence priority would be by area, not by individual. If there were enough surplus animals or fish to satisfy the needs of the area, but not enough to allow personal use and other conditions to take place, that area is called a subsistence area. He said, "Now, if there are even fewer specific species within the area designated for subsistence, then there is a litany of conditions that the Fish and Game department would use to determine who, among those who are residents, have the priority. It may be they reduce everybody in there to a certain take. They may reduce some based on ... having had a longer period of need, or, like in your family, they may say, 'Well, gee whiz, here's Patrick Dalton and he's got nine mouths to feed; he would have a priority over Joe Green, who might only have two mouths to feed,' that sort of thing. That would be left to Fish and Game's discretion, but it would be only after the area has been determined, and not by cause of the individual's economic or any other particular condition." Number 0671 MR. DALTON mentioned a third point. The original version of HB 406 had a $5 hunting license for people on welfare or making up to $8,200 per year gross income. Mr. Dalton said he had never taken welfare payments, but if his income fell a little above that, he still wouldn't qualify for that license. Furthermore, the income requirements don't take into account the number of mouths a person has to feed. It is unfair in some circumstances. CHAIRMAN GREEN concurred and said that condition has been removed. Number 0788 JAKE OLANNA, Kawerak, Incorporated, testified via teleconference from Nome. He commented on the section titled, "Subsistence use and allocation of fish and game," mentioning that "accommodation" had been penciled in on the draft he had. In his view, accommodation provides less protection than reasonable opportunity does. He then referred to "portion of the residents" and mentioned subsistence users in the Nome region. Under the qualifications, it lists a community with fewer than 1,000 residents; he believes that would discriminate against people living in Nome, Bethel or other large hubs. Mr. Olanna said he also hears that this doesn't meet the requirements of ANILCA, which addresses customary and traditional uses and the protection of those needs. He mentioned the elderly, as well as widows, who don't have the resources to go out and hunt. CHAIRMAN GREEN asked whether Mr. Olanna had received Version X, noting that in that version, Mr. Olanna's concerns had been removed. He asked that Mr. Olanna contact the committee on Monday if he still had concerns after reading that. Number 0950 PERRY MENDENHALL, Sitnasuak Native Corporation, testified via teleconference from Nome, saying he basically has the same concerns. Raised in Nome, he said there are quite a few projects in the area whereby they are trying to teach their children how to subsist as well. He also has concerns about the 1,000 population limit. Nome is 60 percent Native, and they hunt and fish in that region, with 350 fish camps, for example. He mentioned shortages and the Tier II procedures, indicating the Board of Fisheries had left them to handle it, with review scheduled for March 1999. He said this is a test case, and he would like the bill to accommodate the process they are going through, and to acknowledge the work they will be doing to deal with the allocation of fish for subsistence use. MR. MENDENHALL expressed concern that the people of Nome have access to that process. Many people in the area will be facing welfare reform and losing jobs; they will be more dependent on fish and game than ever, going back to the old ways. He pointed out that Bering Straits Region has always been an economically depressed area, according to the Department of Community and Regional Affairs papers and files; it has been on the books since statehood in that manner, to show that they are a subsistence community. Number 1045 MR. MENDENHALL told members they have no foreseeable economic development that is secure, to replace jobs being lost through state and federal budget cuts and because of the dropping price of gold. He said 65 jobs have been lost for the next year, and people are leaving Nome. He suggested that people there tend to run for office, make projects, impose taxes and laws, and then leave. Those who remain have to live with those rules and regulations. He questioned whether people in power understand the subsistence lifestyle, saying it is not a matter of choice, but a way of life, which the Alaska Federation of Natives (AFN) has tried to bring out. CHAIRMAN GREEN asked that Mr. Mendenhall look at Version X and told him that is exactly what they are trying to do, to return it to being somewhat like it was before, "and that we want to get out of your way and allow you to do this." He explained that when it gets down to being close to the sustained yield level, Mr. Mendenhall and his area would still have a priority. MR. MENDENHALL said he doesn't have Version X. CHAIRMAN GREEN replied that it is at least en route. He asked that Mr. Mendenhall contact the committee if he still had concerns after reading it. Number 1232 DONALD WESTLUND testified via teleconference from Ketchikan, suggesting they may be going a little farther than necessary. He said the agents of the federal government in Ketchikan have said that the state of Alaska has done a very good job in supplying subsistence resources for the subsistence users. It is the 9th District federal court that has ruled that Alaska is in violation of ANILCA. It is not whether there is enough resource out there, or whether we're providing enough, but it is the decision based on whether a person in Alaska is a rural or nonrural person; that is what violates the state constitution. MR. WESTLUND said he had the proposed constitutional amendment in front of him; it will create two different entities in the state, the "haves" and the "have nots." He said he kind of agrees with Mr. Bishop's testimony the previous day, that maybe the state should draw a line and say, 'Cross it.' He stated, "I'm not sure that's the way to go, but I have tendencies to go that way." MR. WESTLUND acknowledged that up north there may be areas where people subsist off the land. However, in most areas, that is no longer true; there are stores and people buy things. He referred to the 1990 federal census and noted that Ketchikan is 75th and Anchorage is 32nd in average household income. Mr. Mendenhall suggested it is ridiculous to say people subsist off the land if they buy staples from the store. ANILCA should be changed in a way that allows for personal use only by state residents. MR. WESTLUND questioned how, once a priority is given to somebody or the constitution is changed, the state could take back that privilege if it prevails in its lawsuit. He concluded by saying the work draft of HB 406 has come a long ways from the original; he believes is it better as an alternative to the lawsuit. However, he would like to see the lawsuit be tried before they convey this privilege, which will be very difficult to take back. Number 1464 CHAIRMAN GREEN pointed out the direct tie between the constitutional change and the requirements to get some relief from ANILCA: If the state doesn't get those changes in ANILCA, then the constitutional amendment would become null and void. He also emphasized that when talking about the subsistence preference, they are only talking about that area which is adversely impacted, and it is only for the length of time when that adversity exists. It could be a season or part of a season, unless the low surplus just above the sustainable yield continued. CHAIRMAN GREEN noted that both HB 406 and the lawsuit are going forward. If the state wins on the three-point suit against the federal government, that also would negate any need to change the constitution. Furthermore, if they were to vote to change the constitution but should win the lawsuit in 1999, that would still negate that change. They are trying to do both and are not putting all their eggs in one basket. MR. WESTLUND agreed. He cited a Dr. Seuss book, Yertle the Turtle, with its good moral, and suggested that many an Alaskan is a "Mack" from that story. Number 1600 TOM LACKOSH testified via teleconference from Anchorage, saying there seem to be a number of arbitrary measures here for assessing the right to partake in subsistence hunting and fishing, as well as in the establishment of nonsubsistence areas. He stated, "I think you're going to find that you've created a circumstance here where you will create strife between all sorts of communities because there is no clear delineation of what an area should be, and that there are some 14 different criteria which will possibly exclude any given area from the ability to be a subsistence area. And then, you have criteria here which set up the ability to be a subsistence area by the harvest level of fish and game, of those domiciled in the area." MR. LACKOSH continued, "And then, you have essentially created a nonsubsistence area by the allocation policies of Fish and Game. So, what you have here is a set of arbitrary criteria, which not only does it create strife but a disharmony among the citizens of the state for this particular issue; but we may be finding ourselves in a situation later where, because some area doesn't have [a] cash-based economy, that they might not be entitled to their permanent fund [dividend] because they don't use cash, or they might not be entitled to their longevity bonus." MR. LACKOSH concluded, "And to disparately treat the decisions of this state in such a manner ... contradicts directly the terms of the common use and equal protection under the law that was set up in the constitution, specifically because there was a disproportionate harvest by commercial interests, and that there was not only a control of the resources but of the political base as well to those companies who had fish traps. And I most strongly advise that the committee go back and look at Dick Fisher's (ph) books on the constitution and how it was espoused, and look at the constitutional history to see exactly why we have such strong provisions for common use and equal protection under the law." CHAIRMAN GREEN noted that those were the only testifiers on teleconference. He called on John Borbridge from the audience. Number 1723 JOHN BORBRIDGE came forward to testify, specifying that he is a Juneau resident and a Tlingit Indian whose tribal roots trace back to Yakutat. His testimony would represent his personal views on subsistence, as well as his experience and training as they relate to subsistence. He related that he was elected president of the central council of the Tlingit and Haida Indians of Alaska; later, he was president and chairman of the board of Sealaska. In addition, he was one of the principal architects of the Alaska Native Claims Settlement Act (ANCSA), and was president during the early shaping of Title VIII of ANILCA, as well as being a congressional appointee as commissioner to the American Indian Policy Review Commission, where they conducted a comprehensive review of the federal government's historical and special legal relationship with the American Indian people. MR. BORBRIDGE said he intended in the future to comment specifically on the evolving bill. In both this committee and the House Resources Standing Committee, he had come to appreciate that a number of statements have been made about Congress' authority to evolve such a law as Title VIII and whether there is sort of a racial question being raised by having the Alaska Natives as beneficiaries. MR. BORBRIDGE stated, "And this is why I've come today. My direct participation in the subsistence lifestyle - not on a steady basis but over the years - ranged from Southeast Alaska to Bristol Bay. And as a subsistence specialist for the Bureau of Indian Affairs from 1989 to 1996, I was involved from the outset in federal management of subsistence uses of resources on public and other lands in Alaska. And I hope to be able to state, later in my testimony, that one of the untold and little-appreciated genuine success stories of federal management has been the functioning and participation in the role of the various regional advisory councils in that system." Number 1846 MR. BORBRIDGE told members it is beyond argument that the United States Congress has the power to set up a resource management regimen for the Alaska Natives and to confirm their right to subsist on the public lands of Alaska owned by the people of the United States. He stated, "The Indians, Eskimos and Aleuts and non-Natives are simultaneously fellow Alaskans and fellow U.S. citizens, and a people who, as Alaska Natives and Native Americans or American Indians, enjoy a special and unique relationship with the federal government. And I think it's unfortunate, Mr. Chairman, that we Alaska Natives have not explained that more. I know that it ... has been related to a number of friends in a very sincere way that they don't understand how there can be differences when we are on one hand fellow Alaskans and fellow U.S. citizens, and on the other hand, we have a unique relationship with the federal government. And they've asked, 'What does it mean? And how does it impact on subsistence?' And this relationship, this special relationship, has been little understood, sometimes ignored, and attacked as racist by those who lack a complete understanding of the provisions of the U.S. Constitution, which gives Indians a unique status." MR. BORBRIDGE continued, "The federal government owes the Native Americans, of whom the Alaska Natives are a part, the obligation of its trusteeship, not because of our poverty or the government's wrongdoing in the past, but because within the federal system the government's relationship with the Native Americans are of the highest legal standing, established through solemn treaties and a series of judicial decisions and legislative actions. This responsibility originated largely from the following three sources: (1) the treaties negotiated with the Indian tribes, in which the United States acquired vast areas of land in exchange for its solemn commitment to protect the members of the tribes and their property from encroachment by U.S. citizens; (2) statutory enactment dating from the Continental Congress to the present, regulating transactions between U.S. citizens and members of the Indian tribes; (3) innumerable transactions in which, in the latter half of the nineteenth century, the United States imposed a complex and vast array of regulatory authority over Indians and their property, coincident with its assumption of control over the people and property of the Indian tribes." MR. BORBRIDGE told members the assumption of this authority over Indian people was accomplished by responsibility to the Indian people. Despite the foregoing, litigants have argued that federal law singling out Indians, inclusive of Alaska Natives, as a class violate the equal protection standard of the Fifth Amendment. Others have contended that state actions recognizing the distinct status of Indians or particular tribes under federal laws and treaties violate the equal protection of the Fourteenth Amendment. Number 1984 MR. BORBRIDGE reported that the power of Congress to enact legislation singling out Indian lands or rights for special treatment was upheld in Morton v. Mancari (1974), in which the U.S. Supreme Court held unanimously that, "The plenary power of Congress to deal with the special problems of the Indian is drawn both explicitly and implicitly from the Constitution itself." Additionally, the court said, "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." MR. BORBRIDGE said similarly, in United States v. Antelope (1977), the court revisited the subject of Native rights in the Constitution. In a unanimous decision, they stated, "The decisions of this court leave no doubt that federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classification. Quite the contrary, classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the federal government's relations with Indians." Number 2040 CHAIRMAN GREEN, noting that Mr. Borbridge was reading from a document, asked whether he could provide a copy for the record. MR. BORBRIDGE explained that he was hitting facets that had come up in meetings of the various committees. Number 2077 MR. BORBRIDGE referred to statements and questions he had heard about ANCSA, such as whether there was an end to aboriginal hunting and fishing rights, and how the Natives can now come in and talk about rights in terms of subsistence. He said Congress in this regard has followed the usual pattern by creating new rights and new land titles for the aboriginal rights cancelled as part of the general settlement. For example, it extinguished the aboriginal land title but in return gave the Natives a fee-simple title to 40 million acres of Alaska land. While with one hand it extinguished all aboriginal use rights, including the aboriginal right to hunt and fish, with the other it took steps to confirm the existing subsistence rights of Alaska Natives by directing the Secretary of the Interior to take "any action necessary to protect the subsistence needs of the Natives." MR. BORBRIDGE said the legislative history of ANCSA further reveals that it was anticipated that the state of Alaska could and would assist the Secretary of the Interior in evolving policies, which likewise would protect the subsistence activities that Natives on the lands granted to the state under the Alaska Statehood Act. He stated, "In 1968, prior to passage of ANCSA itself, there was a massive compendium of information contained in Alaska Natives of the Land, as compiled by the federal field committee for development and planning in Alaska. That document concluded, 'There is no dispute that the right of Alaska Natives to go upon federal lands for the purpose of taking fish and game should continue.'" Number 2158 MR. BORBRIDGE continued, "And so, during the consideration of ANCSA, Congress looked hard at the subsistence provision. There were three things that we Natives brought before the Congress: land, subsistence, compensation for lands which would be lost as a consequence of passage of the settlement Act." He said the Senate committee report, which deals with Senate Bill 35, the last bill that the Congress passed on the Senate side, concluded that the Natives did not need to own the land they use to harvest subsistence resources. It likewise determined that one reason these lands should remain in federal ownership was to ensure the protection of Native subsistence rights. Mr. Borbridge commented, "So, clearly the Senate didn't think this would be impossible, but then I guess they didn't have to deal with the administration, as we did." MR. BORBRIDGE informed members that in the report, the Senate committee stated, "Despite the passage of control and management over resident fish and wildlife to the state, the federal government still holds the power to control the disposition of and entry upon the land." He indicated that Senate Bill 35 would have directed the Secretary of the Interior to classify lands for habitat and to consider closure for purposes of protection for subsistence. Mr. Borbridge stated, "And there were differences, again, between the Senate and the House version, and of course, this committee has had brought to its attention the conference committee report which made reference to the different bills and the different approaches to subsistence." Number 2235 MR. BORBRIDGE told members that in his individual capacity, he is coming before them to say this is the unfinished chapter of ANCSA. "We tend to see it as separate from that," he commented. "I don't see it that way, as one involved from the outset, from the first bill to the final bill. This is the final unfinished chapter. The Natives sought land, and we received the land, although it's still being processed. We sought compensation, and that has been forthcoming. It is subsistence that is the unfinished chapter." MR. BORBRIDGE continued, "We feel that there is an express and implicit ... promise that there will be, as part of the settlement package, the right of the Natives to enjoy subsistence. What I've sought to do today is to remove the thought that this is a racial issue. Clearly, it is not. Unfortunately, [the] unique status we enjoy in our relationship with the federal government, Mr. Chairman, is not well-understood, and it gives rise to intemperate remarks about racism and treatment of a special class differently. Actually, I feel - and as I conclude my comments - that the United States is to be complimented, however imperfect the legislation was, for seeing to the passage of the claims settlement Act as a way of doing justice. I feel also that the Native people are seeking the fulfillment of those promises that were made in ANCSA. And I've heard Representative Bill Williams comment on this; he is exactly on target, Mr. Chairman. This is a promise, and we want to see it to its fulfillment." MR. BORBRIDGE concluded, "Since the Alaska Natives use subsistence resources to supply both physical and cultural needs, Congress clearly has the authority to set up a subsistence system giving preference to the Natives, which satisfies the U.S. Constitution and is, quote, 'tied rationally to the fulfillment of Congress' unique obligation toward the Indian, and inclusive of the Alaska Natives [no end quote provided]. Particularly, there can be no doubt when this authority is combined with the plenary power Congress also has under the property clause to regulate the use of the renewable resources of the public lands." MR. BORBRIDGE expressed appreciation for the committee's efforts and complimented members for seeing the importance of discussing the kinds of things he had presented that day. He expressed hope that the information he had provided would allow people to feel more comfortable about the federal power and the relationship of the Alaska Natives to the federal government. Number 2388 CHAIRMAN GREEN responded, "John, thank you. I think you bring an insight that a lot of us really don't understand. Certainly, if we even approach understanding, it's because we've read about it or heard about it; we haven't lived it." He noted the difference between Alaska and the Lower 48, as well as the large numbers of non-Natives in many villages. He suggested that perhaps Alaska is ahead of the Lower 48 in that the majority of people don't feel there is a class distinction. Crafting something that would give some village residents a preference over others would, he believes, create a wedge. Chairman Green stated his belief that most Alaskans would like to see that wedge removed and to look at each other as Alaskans, "and if we have a problem with the federal government, we as Alaskans want to solve that problem, rather than having the federal government come in [ends mid-speech because of tape change]." TAPE 98-48, SIDE B Number 0006 CHAIRMAN GREEN noted that rural Alaska isn't for the most part agricultural, which people in the Lower 48 might not understand. He asked whether in reading this, Mr. Borbridge sees that the effort truly is to continue to provide village residents with the way of life they have. The only time this would kick in is when there is a threat to that way of life, in order to protect it. MR. BORBRIDGE said he appreciates that, then noted that we have functioned as a state under Title VIII, the aims and intentions of which he considers very laudable. Mr. Borbridge stated, "They do a compliment to this country, in that as it sought to do justice through the passage of ANCSA, the same was in mind with the enactment of Title VIII, which really came about solely because Alaska Native people sought it, and because the chairman of the House Interior and Insular Affairs, Representative Udall, agreed to be prime sponsor; and that's why there is a Title VIII." Number 0077 MR. BORBRIDGE continued, "The main concern I have ... is this: We are in the very ironic situation - and I don't lay this on the committee one bit; we're all a part of what's happening - and that is the Alaska Natives didn't come in and say, 'Well, we've been enjoying Title VIII and the priority under Title VIII, and we need some help.' We have been calmly going about enjoying the benefits intended to be ours under Title VIII, and now these changes are being considered. And I've always thought, maybe in an ideal world, that if we looked at Title VIII and looked at how we were benefiting from its implementation, it'd be far better if the committee were to come in and then say, 'Here's how we want to improve it.'" MR. BORBRIDGE continued, "What I see, and what really concerns me - and this is not at all with respect to the bill that's come - is that I always have this uneasy feeling that we are going to lose some more rights, Mr. Chairman, and that before things are done, we're going to enjoy less rights under Title VIII than we did before. I appreciate their concerns about 'should we have a constitutional amendment or not,' and I'm puzzling myself over that, along with the rest. But while we're concerned about that, I think the real thing - and the number one thing to me - is what is the intention of Title VIII, is that there be a subsistence preference, and that a way of life be allowed to continue and be protected. That's what Congress said." Number 0154 CHAIRMAN GREEN responded, "That's what we're trying to say as well." MR. BORBRIDGE said he appreciates that, and also appreciates people who come in on a Saturday and are willing to work on it. REPRESENTATIVE PORTER expressed appreciation for Mr. Borbridge's testimony as well. He then said, "I think that it's painfully evident that if we're going to reach a solution that's going to work for the entire state, that the Native community has to be a part of that solution. Having said that, I especially appreciate your kindness to the United States; I don't particularly share it, with relationship to their treatment of Indian relations over the years, right up to ANILCA." REPRESENTATIVE PORTER continued, "Representative Williams made us all read the report of the conference committee, that we certainly have read and agree with, that these statements were made. Unfortunately, they were made at a time -- as if this were the forum that they were made in; we would be telling you something now, but we wouldn't back it up by putting it in the bill that we passed. They didn't. They just said somebody should, later. And then they passed ANILCA, and they still didn't do it; they said a rural preference, they said nothing about the relationship which they certainly - and we agree - have the authority to do with Indians and Alaska Natives. They didn't do it. So, here we are, stuck with a conflict with our constitution and that federal law, and don't have the tools that the United States Congress has to resolve them." REPRESENTATIVE PORTER continued, "Having said all that, let me say that I think this committee's goal is to try to come up with something that will provide you with just what you've asked for. It may not be said as precisely as we'd like to, but we're precluded, because of Congress' action, from saying it specifically. That's the goal, and I really appreciate your being here to help us with it." MR. BORBRIDGE indicated he anticipates revising his written testimony somewhat and then handing it in to the committee. CHAIRMAN GREEN encouraged Mr. Borbridge to come back before the committee. He apologized for the absence of five members, noting that three were out of town. [HB 406 was held over.]