HJR 201-CONST.AM: RURAL SUBSISTENCE PRIORITY [NOTE: Although this is a Joint House Resources Standing Committee and House Judiciary Standing Committee meeting, HJR 201 is technically only before the House Resources Standing Committee for action.] CO-CHAIR OGAN announced that the only order of business is HOUSE 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. He informed everyone that today public testimony would be taken and limited to three minutes. Co-Chair Ogan requested that committee members not debate the witnesses. Number 0390 DALE BONDURANT, testifying via teleconference from the Kenai, pointed out, "The Alaska Supreme Court in a number of decisions recognized that the fish, wildlife, and waters are common property resources that are held in trust for the equal benefit use of all the people." He noted that the court made over 20 references to the states trustee duties, the public trust doctrine, and common use of renewable resources in the Owsichek case. In the McDowell case, the court noted that several other jurisdictions have struck down residential preferences in fish and game statutes. The court also said that laws may be passed on the manner of taking and using common property resources. However, this must be done upon the same terms for everyone; there can be no special privileges or immunities. He pointed out that in Payton, the court stated, "... subsistence uses have been defined in terms of customary and traditional uses, according[ly] we consistently intrepret this customary and traditional to refer to uses and rather than users. Section 4, Article VIII allows for a preference among beneficial users, but the equal protection clause allow[s] for no exclusive right or special privileges among users." Furthermore, the Alaska Supreme Court stated, in Totemoff, "that the federal government's change of position in the reserve water doctrine during Katie John litigation deserves no deference in court decisions." He also noted that the Ninth Circuit Court admitted that their decision was inherently unsatisfactory. Upon re-examination, one judge filed a descenting opinion that the U.S. doesn't have any interest in Alaska's navigable waters since given away with statehood in 1959. Mr. Bondurant quoted the other two judges as saying, "Our interpretation of the term 'public lands' in the case will not allow the United States to usurp state power over navigable waters elsewhere." Mr. Bondurant said, "Such irresponsible court position, in fact and intent, usurped Alaska's sovereignty under the equal footing doctrine, state police powers, Submersed Lands Act, privilege and immunity, due process, and legal [indisc.]." He returned to Totemoff in which the supreme court gave six reasons and cited over 40 court decisions, regulations, and acts regarding why Alaska has the authority to regulate hunting and fishing in Alaska's navigable waters. MR. BONDURANT informed the committee of his conversation with the Governor, during which he asked the Governor why he didn't accept the authority identified by Alaska's "highest legal authority." He said the Governor responded that several attorneys didn't agree with the decision. Mr. Bondurant pointed out to the Governor that this was a unanimous decision by the court. Mr. Bondurant then asked why the Governor didn't declare his authority to manage Alaska's fish and wildlife and challenge the federal government to take the state to the U.S. Supreme Court. The Governor replied that he needed to speak with someone else. Mr. Bondurant said, "In two pertinent U.S. Supreme Court cases, they found that Congress is without power to enlist the state's cooperation in a joint federal-state program by legislation to aurthorize the state to violate the equal protection clause of the Fourteenth Amendment. This is exactly what they are saying that they're going to do." Number 0670 MIKE MILLIGAN testified via teleconference from Kodiak. He began by saying that the question before the committee is regarding which constitution, the Alaska Constitution or the U.S. Constitution, is more powerful. He pointed out that before the Bill of Rights was written, the U.S. Constitution stated that power allocated to Congress under Section 8 would be "to regulate commerce with foreign nations, and among the several state, and with Indian tribes." When the Alaska National Interest Lands Conservation Act (ANILCA) was written, the word "rural" was used versus "Native" because the word "Native" would not have fallen under the legal parameters of the Fourteenth Amendment. Mr. Milligan said that there is no solution that could resolve that problem. He saw the committee as having to decide who it would prefer to sort out the solution - the federal government or the state. Mr. Milligan concurred with U.S. Senator Murkowski that it would be better for the state to sort out the solution. He indicated that the word "rural" could be changed to "local," but he was unsure as to whether that would pass muster. He felt that the bigger national issue will become the consumptive use of wildlife. Therefore, without the foundation for subsistence use, for the consumptive use of wildlife, those Alaskan rights are placed at risk on the national level. In conclusion, Mr. Milligan encouraged the committee to find a solution that allows the problems to be sorted out by the state not the federal government. Number 0849 DONALD WESTLUND testified via teleconference from Ketchikan. He predicted that no matter what the legislature does, the federal government will continue to manage under either system. Mr. Westlund suggested that there be a vote of Alaskans regarding whether the Governor should file a lawsuit on this issue. He acknowledged that there have been two lawsuits, one of which was rejected by the Governor and the other by the courts. Mr. Westlund recalled Governor Knowles statement that no governor has contested this. However, one of Governor Knowles first actions in office was to drop the lawsuit by Governor Hickel. Therefore, the public should vote on whether the state should sue the federal government. Without a hearing in court, the state's constitution can't be changed. CO-CHAIR OGAN commented that Mr. Westlund's idea was excellent, but that many legislators are a bit shy of having an advisory vote. MR. WESTLUND emphasized that a vote is the only way to get the Governor in line because he continues to not support a lawsuit. The only way to settle this issue is to determine whether Title VIII of ANILCA is constitutional. CO-CHAIR OGAN concurred with Mr. Westlund. Number 1059 PERRY MENDENHALL, Sitnasuak Native Corporation, testified via teleconference from Nome. He informed the committee that economics in Northwest Alaska has not changed for the better since statehood. He pointed to the Bering Straits' villages and Nome and commented that most villagers remain dependent upon wildlife and fisheries. With regard to the decline of the chum salmon in the Nome area rivers, he believed that illustrated the state's inability to help people survive in a time of economic hardship and the state's inability to manage fish and game for subsistence. He noted that villages and Native Alaskans have been galvanized to look forward to and expect the federal government to take over subsistence. Rather than laying blame, it is time for the election process. Mr. Mendenhall expressed the need to resolve the subsistence dilemma by passing HJR 201. REPRESENTATIVE BARNES read the following statement : "Norm-based Bering Strait Native Corporation road the stock market to revenues of [$]5.229 million and a net income of [$]1.538 million for the nine months that ended March 31, 1998. The corporation is expanding its real estate holdings, ...." She asked if that statement is correct. MR. MENDENHALL answered yes, but noted that not all of that trickles down to the shareholders. Furthermore, not all the people in the region belong to the Bering Straits Native Corporations. He commented that anything that is productive in the region has been hampered or slowed down. Mr. Mendenhall also stated that there is a lack of funds for economic development planning. Recently, some of the villages have had water and sewer installed, but others are still working toward that goal. Mr. Mendenhall clarified that the Native corporations manage the land and much of the mentioned revenue is utilized to help protect the land, future taxation, and buy outs. REPRESENTATIVE BARNES clarified that her point was that Mr. Mendenhall would be proud that the corporation is doing so well. The article seems to indicate that most of the Native corporations are doing well, as they paid out $53 million in dividends. Number 1326 MARK JACOBS, JR., testified via teleconference from Sitka. Mr. Jacobs stated that the current constitutional language is adequate to protect subsistence. He referred to Article XII, Section 12 of the Alaska State Constitution. He recalled that at the time of statehood, Article IV mandated that the language in Article XII, Section 12, be included in the state constitution. Mr. Jacobs stressed that the Alaska State Constitution is the highest and most authoritative law in the state. The Alaska State Constitution recognizes Indian rights. He commented that the state and federal people refuse to use the word "aboriginal rights" and "inherent rights." Those are rights that can't be legislated. Currently, laws and regulations are created which are not lawfull. It violates human rights to take away food. He referred to the equal rights protection portion of the Alaska State Constitution and commented the state is not following Section 8.15. He commented that currently, there are a flood of charter boats in Alaska sending tons of fish to the Lower 48, while the local fleets are forced to tie up. Number 1580 PETER JACK, SR., testified via teleconference from Angoon. He informed the committee that he has lead a subsistence lifestyle his entire life. He recalled going to a fish camp twice a year as a child. Mr. Jack believed that ground has been lost on subsistence as he knew it. Subsistence users are being regulated more than other users of our natural resource. For example, subsistence users must obtain a permit to take fish and report to the state on how much fish was taken. On the other hand, the sportsfisherman are not regulated with regard to reporting their take which he felt to be discriminatory. MR. JACK discussed how the elders have always referred to the land as having a spirit which must be treated appropriately in order for it to support the people. He considered Native Alaskans, perhaps, all Native Alaskans, to be conservationists. He indicated that it would not be the fault of Alaska Native's if there is a shortage of fish and game resources. There are other users in Alaska. He inquired as to whether other users are required to report in because if not, that is discriminatory against subsistence users. CO-CHAIR OGAN informed everyone that charter boats are required to keep a record of the catch. Sportsfishermen, whether residents or nonresidents, have a simple limit. MR. JACK recognized that, but asked if those users are monitored; do they have to report on their catch daily? CO-CHAIR OGAN said he wasn't certain, but believed that guiding sportsfishermen are required to report their catch at the end of the season. Number 1877 JULIE KITKA, President, Alaska Federation of Natives (AFN), noted that she is accompanied by two legal counsels, Chris McNeil, Jr. and Norman Cohen. Ms. Kitka stated: For the record, AFN supports passage, first by the legislature and then by the people of the State of Alaska of a constitutional amendment and state statute complying with Title VIII of ANILCA as its currently written without amendments to ANILCA that weaken the federal subsistence protection. AFN ... opposes the filing by the Governor or the legislature of a federal court suit challenging the constitutionality of Title VIII of ANILCA, the authorities of the secretaries, or any other arguments for state management in the absence of compliance with ANILCA. There should be no more delays. MS. KITKA noted that the legislature has failed to resolve this dilemma for over ten years. Every Alaskan knows the real issue of this special session. She said that Title VIII is sound, responsible public policy that has consistently withstood litigation; Title VIII must remain in place. She viewed the demand for another suit as a delaying tactic and urged the legislature to resolve "the most bitter issue dividing Alaskans today." Approving an amendment would unite Alaskans, therefore, Alaskans must be allowed to vote in November 2000. If this special session can't produce a constitutional amendment, Ms. Kitka predicted that everyone will face federal management in subsistence fisheries and the Alaska public will know who has failed them. Number 1984 MS. KITKA commented that there has been increasing national attention to what is happening in Alaska, especially this special session. Ms. Kitka asked to enter a New York Times article on the subsistence issue into the record. She informed the committee that recently the AFN and other groups sponsored a national forum in Washington, D.C., on the future of Alaska Natives. Many who spoke at the forum were on point with regards to subsistence. She also requested entering into the record, the videotaped message of President Clinton to the forum. She quoted President Clinton as saying: Tonight I reassure you that our administration stands with you to improve the recognition of your religious and cultural practices to increase your sovereignty and self-determination to support the subsistence rights of all Alaskan Natives. If Alaska Natives are to continue their way of life and maintain their culture, Alaska must comply with the Alaska National Interest Lands Conservation Act. This federal law protects subsistence fishing. Our position is not simply one of words, we're ready to take action. Secretary of Interior Bruce Babbitt is moving to take over fisheries management in order to maintain your subsistence rights. I sincerely hope the Alaska Legislature enacts a constitutional amendment which will make it unnecessary to take this action. REPRESENTATIVE SANDERS interjected that President Clinton is a self-admitted liar and purgerer. President Clinton lied when saying that he would protect all of the Native rights. Representative Sanders emphasized that he isn't protecting his wife's rights, his son's rights, or his daughter's rights all of which are Alaskan Natives. MS. KITKA clarified that her quotes from President Clinton are demonstrative of the national interest on this issue which raises the importance of this legislature to grasp this issue and place a resolution before Alaskan voters. Number 2151 REPRESENTATIVE BARNES pointed out that the national attention is not just from one point of view. People around the United States are concerned that if the rights of some Alaskans can be denied while giving those rights to a special group of Alaskans, then that can occur anywhere in the United States. Representative Barnes said she didn't think President Clinton is much of a president. MS. KITKA reiterated that the intention was to demonstrate the national focus and interest in this issue which she hoped would indicate to the committee the serioiusness of their actions. She continued by noting comments at the forum from U.S. Senator Daniel Inouye of Hawaii. She said that Senator Inouye noted that the Native rights to hunt, fish, gather for subsistence purposes, to practice the traditions and customs of their culture have been recognized in the laws of Hawaii. He further noted that Hawaii's constitution specifically addresses Native subsistence rights and extends protection of these rights exclusively for Native Hawaiians. Secretary of Interior Bruce Babbit also spoke at the forum. MS. KITKA quoted Secretary of Interior Bruce Babbit as saying, "There will not be another moratorium. There will be no amendments to ANILCA on my watch. On October 1st we'll make the transition to a new subsistence regime." She turned to comments made by the Secretary of Agriculture, Dan Glikman(ph), as he has jurisdiction on implementation of the federal law due to forest service lands that are under the Department of Agriculture. She quoted Secretary of Agriculture Dan Glikman(ph) as saying: The very future of Alaska Natives is what's at stake in this long running dispute over subsistence fishing rights. Let me say, unequivocably, that if the state does not move forward with a constitutional amendment, 22 days from now I'm prepared to work with Secretary Bruce Babbitt to provide the resources necessary to manage these fisheries on the federal lands, thus, upholding ANILCA. Preserving the rural priority and protecting the Native Alaskan way of life. MS. KITKA noted that these statements were made in the last couple of weeks. TAPE 99-40, SIDE B MS. KITKA informed the committee that U.S. Congressman Lewis was in support of Native people and subsistence rights. Ms. Kitka said that she senses, in the legislature and in the state, there isn't recognition of the growing awareness of this issue in the country. She quoted Congressman Lewis as saying: Our struggle for justice and civil rights has always had a strong attachment to the land. When Fedrick Douglas raised his voice against the injustices of slavery, he spoke of a man's right to throw off the yoke of slavery and work his own land. And as the struggle for justice continues, this sacred connection between people and the land remain strong. We now fight for the right to live in a land free of pollution, ...to know what is in the food we eat, the water we drink, the air we breathe. But as the movement drives forward to capture new ground in the fight for justice, we must not forget the ancient battles that are yet to be won. Indeed, the right of the Eskimo, the Indian, the Aleut people of Alaska to gather food and feed their children is not a special right, it is a human right. The fight for the right to hunt and fish and to carry on the ancient traditions of their ancestors, is not a fight for dollars and cents. It is a fight for the survival of a people to preserve a way of life. Number 0157 MS. KITKA announced the support of the National Association for the Advancement of Colored People (NAACP). She commented that she could continue to illustrate the growing support in the country and the state to resolve this in a manner fair to Alaskan Natives. Ms. Kitka said that AFN would like for the state to regain management, but will not support any amendments to ANILCA which weaken the federal subsistence protections. Ms. Kitka urged the legislature to wrestle with the issue of a constitutional amendment, stop this decade-long conflict, and allow Alaskans to vote on this. CO-CHAIR OGAN requested that Ms. Kitka clarify AFN's position on ANILCA amendments. He asked if the ANILCA amendments included in the Governor's task force during the last special session on subsistence were not on the table now. MS. KITKA reiterated that AFN supports no amendments to ANILCA. She understood that the reason those amendments disappeared from federal law was because the legislature didn't act on those amendments last year. CO-CHAIR OGAN asked if the AFN supports a federal takeover of fisheries management. MS. KITKA answered that AFN supports the state coming into compliance with ANILCA as well as a constitutional amendment on the ballot in the year 2000. If the legislature is unwilling to allow such a vote, then AFN supports full federal implementation of the federal law. Number 0350 CO-CHAIR OGAN inquired as to whether AFN, in its national forum and media, is explaining that aboriginal hunting and fishing rights were extinguished with the [Alaska] Native Claims Settlement Act (ANCSA). MS. KITKA commented that people are still learning. CO-CHAIR OGAN referred to the Declaration of Settlement, Section 4, paragraph b which reads: All aboriginal titles, if any, and claims to aboriginal title in Alaska based on use and occupancy, including submerged land beneath all water areas both inland and offshore, and including any aboriginal hunting or fishing rights that may exist are hereby extinguished. CO-CHAIR OGAN recalled that at the time, the AFN signed off on the deal in exchange for 44 million acres of land, fee simple title. He asked if it is being explained that aboriginal hunting and fishing rights are extinguished. MS. KITKA informed the committee of comments made by Congressman Mark Udall, whose father authored Title VIII of ANILCA. She said Congressman Mark Udall addressed the AFN forum and cited several principles important to the subsistence issue. She quoted Congressman Mark Udall as saying: Specifically in connection with subsistence, we need to remember that when the House and Senate considered the settlement act, one of the issues was whether or not the law should include provisions to protect the ability of Alaska's Native people to continue those subsistence activities after the law made major changes in the legal status of Alaskan lands. We need to remember that while the conferees finally decided not to include such provisions in the settlement act, they did so because of their explicit expectation stated in the Conference Report that the Secretary of Interior could and would be able to protect continued subsistence activities. We need to remember it was the realization that the conferees expectation had been over optomistic that led to the revisiting of the issue as part of the debate over the future of the lands in Alaska remaining in national ownership after the settlement act. And we 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. Number 0622 CO-CHAIR OGAN noted that he has commitments from three Republican Presidential candidates that Alaska shouldn't amend its constitution, not to mention that George W. Bush is a strong Tenth Amendment, state's rights advocate. MS. KITKA interjected that AFN has worked with both Democratic and Republican Administrations. She believed that this is a bipartisan issue. It was a Republican Adminsitration that sent the Secretary of Interior to testify before the legislature in the first special session. Number 0714 REPRESENTATIVE MASEK said that the comments indicating that placing the amendment before the voters would bring state management back are false and misleading due to the judicial oversight provisions in ANILCA. She indicated that everyone in the state should have equal access to the resource regardless of residence, place of birth, or zip code. MS. KITKA agreed that there is federal court oversight and federal involvement with the implementation of the law. The AFN supports that because it provides part of the protections for subsistence. REPRESENTATIVE MASEK recalled that there has never been a case won in federal courts on the subject of subsistence. Representative Masek recalled hearings on the Kenai Peninsula, during the time when Deborah Williams was Secretary for the State of Alaska and the Bureau of Indian Affairs(BIA). She had asked Ms. Williams what actions would be taken by Congress, if the state put forth a constitutional amendment which was subsequently voted down. The indication was that the federal government would take over regardless of the vote. REPRESENTATIVE MASEK noted that she now lives in Willow and that everything here could effect her son and his children. She felt that her son is left out of this process with regard to access to fish and game. There are a large number of Alaska Natives that live in urban areas. She didn't understand how those at the national level can believe they are protecting every Alaska Native person in the state. Representative Masek believed the truth should be brought out with regard to the federal court oversight. True state management would require some ANILCA amendments. CO-CHAIR OGAN commented that he is becoming increasingly frustrated with the lack of compromise from the AFN with regard to no amendments to ANILCA. Co-Chair Ogan noted his evolution in becoming willing to consider constitutional protection for subsistence and most recently, voting to consider proximity to residence. In order to solve this, a solution which accommodates both sides will have to be made. Co-Chair Ogan said that he could not accept the creation of two classes of people in the state, but noted that he is available to negotiate. Co-Chair Ogan predicted that with the AFN pulling back, the state would become Balkanized into different classes of people. Number 1120 REPRESENTATIVE JOULE returned to Co-Chair Ogan's reference to Section 4, paragraph b of ANCSA and said that there was no opportunity for compromise. That was something that was done to Alaska Native people at the last minute. In the development of ANILCA, it was the State of Alaska that objected to Alaska Natives and settled for "rural." Again, Alaska Natives were not at the table. Representative Joule stressed that Alaska Natives have been compromised many times and along the way, promises were made. It is unfair to say that Alaska Natives have not compromised. CO-CHAIR OGAN summarized that if a solution cannot be reached that all sides can live with, Alaska faces federal allocation of Alaska's resources and in the process the state will become divided. Co-Chair Ogan reiterated that he is willing to discuss the constitutional protection for subsistence. Number 1282 MS. KITKA acknowledged that Co-Chair Ogan's willingness to consider a constitutional amendment and Representative Barnes committee substitute is movement which she applauded. She wondered as to the circumstances that allowed the legislature to initiate a process to amend the constitution to allow the ownership of 97 percent of all the fishery resources with the limited entry program. Subsistence use of fish and game is so minuscule, three to four percent, in the large picture which is frustrating. She indicated that AFN doesn't understand why this is so difficult to get on the ballot. Ms. Kitka emphasized that AFN's position is so firm because, "our backs are against the wall, we can't go back any further." Title VIII is the only federal protection that offers protection. Ms. Kitka said, "We have, from our perspective, a hostile state government on that, that is hitting us from all angles on that and it wouldn't make any sense for us to offer up key portions of the federal protections that we have." CO-CHAIR OGAN announced that he was willing to discuss a constitutional amendment which would place subsistence use before commercial fisherman, providing constitutional protection in the highest court of Alaska; if there are times of shortage, commercial fishermen would have to wait until subsistence use is met. He noted that a prominent Native legislator agreed that such would work, but this legislator was unable to support such politically. Co-Chair Ogan reiterated that he was willing to disucss that. He believed that a subsistence preference would place Alaska Natives before commercial fishermen which would meet the intent of Morris Udall, ANILCA, and the Conference Committee Report. He asked if AFN is willing to compromise. MS. KITKA responded that AFN is always willing to talk. Part of the difficulty, is the short time frame that currently exists. Ms. Kitka pointed out that the constitutional amendment merely provides the legislature with the ability to pass a law. The next steps of designing the law, the management system, the regulatory system, and making it work remain. She turned to previous constitutional amendments from the Governor, Senator Adams, and Senator Hoffman and noted that the AFN prefers Senator Hoffman's constitutional amendment. Those constitutional amendments allow the legislature to make distinctions between people and areas which she viewed as providing the legislature with more flexibility to design a system that works. Placing a constitutional amendment on the ballot would merely provide the flexibility to the legislature to do another step. If the legislature doesn't want to give itself that flexibility, then it doesn't have the legal ability to do a law implementing something. Ms. Kitka reiterated her willingness to talk. CO-CHAIR OGAN reiterated that his door is open. There being no further questions from the members of the House Resources Committee, he turned the gavel to the House Judicary Committee Chairman. Number 1610 REPRESENTATIVE ROKEBERG asked Ms. Kitka if she had discussed this issue with her Representative, assuming she still lived in District 11. MS. KITKA replied no and noted that she lives in District 11, Representative Rokeberg's district. REPRESENTATIVE ROKEBERG said that he shared Co-Chair Ogan's concern with AFN's lack of desire or policy to enter into good faith negotiations or compromise. He was happy to hear Co-Chair Ogan's offer to discuss this, but noted his disappointment that it hasn't previously occured. He turned to Ms. Kitka's comments that some of the members of the committees were aware of what happened during the first special session on subsistence. With the exception of Representative Barnes, no other member of the House Resources Committee or House Judiciary Committee were present during that first special session on subsistence. He believed that there is a great willingness to reach some consensus and indicated that the House Judiciary Committee would be interested in an amendment that AFN would be amenable to. Representative Rokeberg noted his perception that AFN tends to go straight to Washington, D.C., to accomplish things in Juneau. There is little interaction with the legislature which has some very strong Native leadership. He asked if AFN is willing to work with the legislature to illustrate some good faith in bargaining and possibly make some concessions. MS. KITKA reiterated that the constitutional amendment, SJR 1, sponsored by Senators Adams, Hoffman, and Lincoln is a constitutional amendment that AFN believes would work. She urged that be distributed to the committee in order to receive a sense of where AFN is. She indicated that she was amenable to discussing this. Number 1835 REPRESENTATIVE ROKEBERG inquired as to under what circumstance, if any, Alaska could regain state management of it's fish and game resources, if the legislature fails to act. If state management were lost, would AFN support or work to regain state management? MS. KITKA commented that she really couldn't speculate. However, she noted that many of the AFN are tired of feeling like a political football. Many Alaska Natives are surrounded by federal lands and don't have many state lands in the area. In those cases, they already work with federal fish and wildlife managers on a regular basis and know it can work. Many feel that if the state can't come into compliance, they can work with the federal managers. Ms. Kitka said if the state fails to place a constitutional amendment on the ballot, the AFN would do all possible to ensure that federal implementation fully protects Alaskan Natives' needs. REPRESENTATIVE ROKEBERG asked Ms. Kitka of her opinion of CSHJR 201, Version D, with regard to problems in the resolution and possible suggestions. MS. KITKA said that she understood the committee was waiting for an opinion from the Secretary of Interior which she was also waiting to review. CHAIRMAN KOTT announced that no information had been received yet. Number 1988 NORMAN COHEN, Legal Counsel, Alaska Federation of Natives, recalled that Alaska Attorney General Botelho had a thorough discussion with regard to what Version D would and would not accomplish. Mr. Cohen agreed with Attorney General Botelho that the portion regarding proximity would be helpful in resolving the Tier II problem. However, the question remains as to whether that would provide the legislature the flexiblity to pass a law consistent with ANILCA. As written, Mr. Cohen didn't believe that necessary flexibility was provided. Therefore, other changes would have to be made. In further response to Representative Rokeberg, Mr. Cohen didn't believe the language "other resources" in Version D would hurt the situation and may solve some future problems. REPRESENTATIVE JAMES complimented Ms. Kitka on her calm demeanor. Representative James said she has studied this issue for some time and didn't believe there was any portion that she didn't understand. She expressed her admiration for all aboriginal people in Alaska, but noted that doesn't mean that all Natives are flawless. Representative James believed that legislation could be drafted under the state's existing constitution which would recognize the intent of ANILCA better than ANILCA. However, no one seems to be willing to help define the needs in order to provide for a priority. She understood that when one feels one is in the best position one thinks one can get, one wouldn't give away anything. Representative James believed that if the state submits to the federal government's definition of "rural," which is unfair on both sides, both Natives and non-Natives will be damaged more than if an agreement could be reached. She also believed that Secretary of Interior Babbitt doesn't have anything to do with this, but noted that he is a spokesman for Native American's needs. TAPE 99-41, SIDE A MS. KITKA pointed out that it is a federal court order that has been litigated in federal court. With regard to improvements to the situation, the Native community would agree there are many improvements necessary. The Tier I issue is giving the legislature the constitutional authority to enact the law. Ms. Kitka mentioned the notion of co-management which she believed the state would do well to implement. If the legislature won't give itself the constitutional authority to enact the law, how can the next steps of building improvements occur. Number 0141 REPRESENTATIVE JAMES inquired as to Ms. Kitka's feelings regarding those folks who don't live in a designated rural area, but are as qualified and should be able to have subsistence as a way to support themselves. MS. KITKA answered that if there was a way for Congress to enact a Native priority, that would be addressed quickly. During the ANILCA process, AFN testified in Congress as wanting a Native priority. REPRESENTATIVE JAMES informed everyone that she has been on the record for more than 15 years, as supporting a Native priority. Although that may be the intent of ANILCA, that isn't what it does. She said that ANILCA draws a line between Native and non-Native and discriminates. Those people in rural areas aren't the only people who depend upon subsistence; therein, is why she can't support a rural priority. Representative James offered to work to make the situation better. REPRESENTATIVE GREEN asked if there is a problem with the way that the Alaska Department of Fish & Game (ADF&G) has handled the situation thus far which wouldn't allow a priority among rural people in an area where a need or shortage exists. MS. KITKA noted that there are 102 villages in economic distress due to the salmon shortage. She understood that the state doesn't have the legal ability to give the priority for those distressed communities in times of shortage. That illustrates the need for the implementation of the federal law. That also illustrates why the moratorium has harmed people in the villages. REPRESENTATIVE GREEN clarified that he was referring to the subsistence use not the commercial use. Number 0491 MR. COHEN explained that the subsistence law for ANILCA expected a small group to qualify. However, the "All Alaskans" policy has resulted in changing the hunts to the Tier II system which is inequitable in its current implementation. The issue is really how to address those people that you really want to during those times and allow others to enter under general hunting rules, personal use fishing rules, or sportfishing rules. The system hasn't been working well and this has been a time of high populations across the state. REPRESENTATIVE GREEN asked if the yields of the small Native villages were placed ahead of commercial fishing, but not instead of them necessarily would satisfy the needs of the Native communities? MR. COHEN stated: If subsistence was in the constitution as the highest use as compared to the statute which presently has it as the highest use, would mean there would absolutely be no difference from the way it's implemented now. ... So the fact of putting it in the constitution that it's the highest use would just prevent the legislature from repealing the existing state subsistence law. So it doesn't address the problems at all. It just strictly puts into place what's already there by statute. REPRESENTATIVE GREEN commented that it alters the constitution to actually embody that rather than to do it by legislation. MR. COHEN pointed out that the supreme court has found the existing statute to be acceptable since it has eliminated the portion it doesn't like. For that portion, it could be the exact same system as there would be with a constitutional amendment. The constitution has to be executed by statute, therefore, the statute could look the same as the current statute. REPRESENTATIVE GREEN interjected that the statute could be different and more favorable to the Native villages, if in constitutional form. MR. COHEN said, in his opinion, this was addressed ten years ago and it was determined that things can't be done that would benefit one area of the state over other areas of the state because it has to be open equally to all Alaskans. Therefore, no changes could be made that would provide for a higher priority than is currently provided by statute. Number 0831 REPRESENTATIVE GREEN clarified that his point was that there would be a nuance to the constitution which would allow that versus being opposed to the constitution. However, not a broad stroke providing that all rural villages have a priority over urban areas. This is a Tier II situation. MR. COHEN explained that a constitutional amendment saying that subsistence is the highest priority would result in the exact situation that currently exists. REPRESENTATIVE GREEN commented that he agreed with Co-Chair Ogan that there doesn't seem to be even an attempt to solve this. REPRESENTATIVE ROKEBERG understood Mr. Cohen's testimony to indicate that existing statute providing for Tier I subsistence is not workable and can't be implemented based on the McDowell ruling. Therefore, there can't be a needs based, proximity type of grant from the board or the department during a time of shortage in a specific area. MR. COHEN clarified that the statutes don't allow use of proximity to the resource as a basis for making distinctions. Therefore, if there is a shortage in Sleetmute, anyone that has gone to that area has an equal opportunity whether they live there or not. REPRESENTATIVE ROKEBERG asked if the herd in Sleetmute can be limited to subsistence users only. MR. COHEN replied no and specified that everyone in the state is a subsistence user now. He agreed with Representative Rokeberg that, in effect, there isn't currently a Tier I that could work in such a circumstance and therefore, it would default to Tier II. When returning to Tier II, the result is anyone who has entered the area has the same opportunity, in theory, to go after the resources. That doesn't obtain the local need. The local need can't be reached due to the Kenaitze II case where "proximity to resources" was thrown out. REPRESENTATIVE ROKEBERG asked if proximity was included in the constitution, as in Version D, would that solve that problem. MR. COHEN answered that it would solve the Tier II problem. Therefore, in the earlier example only those from Sleetmute would qualify. However, it would not solve the problem regarding who is eligible for subsistence in the first place. Number 1025 REPRESENTATIVE CROFT complimented Ms. Kitka with regard to how much AFN has been willing to compromise. Historically, ANCSA was an important compromise for the state which helped the state to obtain the pipeline. Part of it was clearly a promise of subsistence rights. When that didn't occur, ANILCA, a compromise itself, was put in place. If Alaska wanted to be on an equal footing with every other state with a significant Native population, Alaska would have Indian country and treaties with something close to a Native preference. More recently, the willingness to be a part of the task force illustrates more compromise. He emphasized that the continued willingness to support a constitutional amendment by the state is, in itself, a continued compromise. Therefore, there has been nothing but good faith from the Native community and AFN. REPRESENTATIVE CROFT turned to federal court oversight. He noted that there is a significant difference between federal court oversight when in compliance versus when in noncompliance. He explained: Federal court oversight when you're certified in compliance, the only question the federal courts would look at is, is this such a big error by the state that you're no longer in compliance? ... Ordinary state management would be handled at the state court level and that happened in the era of the '80s when we, for a brief time, had that combined. So, instead of every decision going to federal court, it would be just the largest ones; are you in compliance with ANILCA? REPRESENTATIVE CROFT addressed whether the committee substitute (CS) complies with ANILCA and quoted George Utermohle's opinion as saying: "The constitutional amendment proposed by CSHJR 201(RES) would not satisfy the prerequisite of Title VIII of ANILCA. The proposed amendment does not authorize the legislature to enact a rural preference." Representative Croft believed that the Secretary of Interior's comments would be similar to those of Mr. Utermohle. He then turned to the notion of making everyone in Alaska a subsistence user which would essentially immortalize the current practice. That would be problematic in a situation when a small amount of the resource is passing by a large amount of people. In that case, any other use is pre-empted which is the fundamental problem solved through ANILCA by limiting it to certain areas. Number 1305 REPRESENTATIVE MURKOWSKI recalled Ms. Kitka's comments regarding that some Alaskan Natives already deal with federal management. Is there a point at which those Alaskan Natives feel more comfortable with federal management and would vote as such, if the constitutional amendment were on the ballot? Representative Murkowski acknowledged that AFN's first preference would be SJR 1 as proposed by Senator Adams. However, she inquired as to whether AFN would be supportive of a constitutional amendment if it is less than SJR 1 or the Governor's resolution. MS. KITKA said she hesitated to respond due to its hypothetical nature. Constitutional amendments are complex. She hoped that if a constitutional amendment were to be produced by the legislature, that it would be one the Native community could fully support. REPRESENTATIVE MURKOWSKI stressed the importance of obtaining the Alaska Native support for a constitutional amendment. MS. KITKA agreed. CHAIRMAN KOTT requested that House Judiciary Committee members proceed with questions only. Please reserve comments and opinions for a later time. MS. KITKA noted that she and her counsel would be available throughout this session. SHIRLEY DEMIENTIEFF, FNA, suggested the committee consider "shall" rather than "may." She also expressed the need to allow a vote. REPRESENTATIVE ROKEBERG asked if the AFN could agree with any specific amendments to ANILCA as part of this process and carry those amendments to Washington, D.C. Could that occur in this time frame? Number 1624 MS KITKA reiterated that AFN would not support any amendments to ANILCA in the next seven days because the AFN believes that Title VIII is good public and national policy. The amendments to ANILCA would basically overturn court cases that Alaskan Natives have won in federal court on specific conflicts. People aren't discussing amendments to ANILCA that improve the situation such as enhancing co-management opportunities. REPRESENTATIVE KERTTULA thanked the AFN and commented that she had personally seen the work that AFN has put into this issue. Representative Kerttula turned to the problem of "proximity" in Version D which seems to skip Tier I and leaves out "rural." MR. COHEN replied yes. CHAIRMAN KOTT returned the gavel to Co-Chair Ogan. REPRESENTATIVE BARNES inquired as to how Ms. Kitka would suggest amending Version D, short of inserting "rural." MS. KITKA acknowledged the work on the constitutional amendment and commended Representative Barnes. MR. COHEN agreed that this provision does seem to deal with Tier II, as the discussion with Attorney General Botelho clearly indicated. However, it doesn't deal with who qualifies for subsistence in the first place as mentioned by Representative Kerttula. There could be language changes that could achieve that in the confines of this proposal. REPRESENTATIVE BARNES questioned whether the AFN wants to work it out and if so, how far is the AFN willing to go to achieve what is desired? MS. KITKA understood that the committees had requested an opinion for the Secretary of Interior on this proposal. She said that she was waiting, as is the committee, on that response. Ms. Kitka offered to discuss changes to the proposal, but the AFN would want the state to come into compliance with ANILCA with no amendments to ANILCA. She believed there are ways to change the proposed constitutional amendment to achieve that. REPRESENTATIVE BARNES emphasized that the proposed constitutional amendment certainly speaks to the spirit and intent of ANILCA. Furthermore, it could be made to work if people were willing to come forward to make it work. CO-CHAIR OGAN concurred with Representative Barnes. Number 1919 CO-CHAIR SANDERS said that he respected Ms. Kitka and her position, although he disagreed with her position and didn't feel that the AFN has made a compromise in his seven years or ever. REPRESENTATIVE WILLIAMS rebutted that "we" have been compromising all the time. He expressed the desire to hear from the naysayers with regard to the reasoning behind not wanting to live up to an agreement made in 1971. He was reminded of the Boldt decision. He commented that the oil is practically gone. Perhaps, something else is necessary. He stressed that Alaska Natives have compromised since day one. REPRESENTATIVE WILLIAMS turned to ANCSA and stated that oil pushed ANCSA. He informed the committee that after 1969, the oil pipeline which was being made in Japan and shipped to Alaska was rusting. At that time, there was a big push to settle the issue or else the pipeline would have to be returned to Japan. Once again, he asked members to tell him why they don't want to live up to the agreement once the oil is gone. REPRESENTATIVE MASEK stated that the discussion should remain on the CS before the committee since there are many who wish to testify on this issue. REPRESENTATIVE BARNES offered to debate Representative Williams at an appropriate time. REPRESENTATIVE WILLIAMS commented that thus far there has been only debate, "nothing has been said." Number 2125 REPRESENTATIVE JOULE reminded the members that during the last special session on this issue, there was compromise to the point of considerations to ANILCA. MS. KITKA reiterated that the AFN has worked closely with those Native and rural members in the Bush caucus. CO-CHAIR OGAN commented that there hasn't been movement enough to arrive at a compromise. Co-Chair Ogan stated that he was willing to place a constitutional amendment on the ballot that placed subsistence over any other use. Number 2228 MIKE WILLIAMS, Chairman, Alaska Inter Tribal Council (AITC), informed the committee that AITC is a statewide tribal consortium that was established in 1993. That was around the same time that the Department of Interior published its list of 226 federally-recognized Alaskan tribes. Of those 226 federally-recognized Alaskan tribes, 180 are members of AITC. Mr. Williams emphasized the importance of the Congress' intent, including Title VIII as part of ANILCA. The best and most accurate record of the legislative intent for ANILCA is embodied in a presentation to Congress by the Congressman Morris Udall on Novermber 12, 1980. He informed the committees, "Congressman Udall referred 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." Mr. Williams quoted Cogressman Morris Udall as saying: 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 Ninety-fifth Congress. At that time, we promised that any law would recognize the importance of subsistence and would contain management provision which recognize the responsibility of the federal government to protect the opportunity from generation to generation so that Alaska Natives now engage 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. MR. WILLIAMS acknowledged that some criticize ANILCA subsistence protections as a violation of the rights of Alaska's non-Native citizens. In response to those critics, Mr. Williams quoted Congressman Morris Udall as saying: 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 ongoing responsibility of the Congress to protect the opportunity for continued subsistence uses in Alaska by the Alaska Native people. A responsibility which is consist with our well-recognized constitutional authority to manage .... TAPE 99-41, SIDE B MR. WILLIAMS continued Congressman Morris Udall's quote: ... as a demonstration of the federal government's awareness of its trust responsibility to Alaska's indigenous populations or Alaskan tribes. Number 0031 MR. WILLIAMS pointed out that all the members have sworn to uphold the state's laws and its constitution. Among Alaskan citizens, are some 80,000 members of 226 Alaskan tribes each of which has a distinct and separate government from city and borough governments. Some tribes reestablished their governments with councils based on the Indian Reorganization Act of 1936, while other tribes maintain their ancient traditional councils. All of those tribal governments have common a aspcet, a government to government relationship with the U.S. which is mandated by the Indian Commerce Clause of the United States Constitution. He emphasized that history has much to do with ANILCA. Title VIII was a good faith settlement with the Congress and the State of Alaska to accept a "rural" rather than "Native subsistence preference" on Alaska's federal public lands. Mr. Williams said that the state has yet to fulfill its part of that agreement. Instead, Title VIII has been attacked as if it were a conspiracy to rob non-Native Alaskans of their hunting and fishing rights. Alaskan tribes stand on an inherent right to maintain their communities and way of life. He said that Alaskan tribes respect the authority of the state in as much as it touches their lives. However, they don't support the State of Alaska when it attempts to undermine tribal authority. Nor do tribal governments support any attempts to diminish hunting, fishing and gathering tribal rights. Therefore, Mr. Williams wrote to Secretary of Interior Babbitt informing him of "...AITC'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. Williams submitted a copy of his testimony and letter to Secretary of Interior Babbit for the record. Number 0320 MR. WILLIAMS turned to the CS before the committee. He agreed that subsistence use should be recognized in the Alaska Constitution as the highest and best use of Alaska's renewable natural resources. Mr. Williams stated that he couldn't support the CS for many reasons. Firstly, the CS doesn't comply with Title VIII of ANILCA which doesn't restrict the subsistence priority to indigenous species nor does ANILCA use the term "reasonable opportunity." He pointed out that ANILCA provides a priority for subsistence uses which are defined as "customary and traditional uses by rural Alaska residents of wild renewable resources." Under Title VIII, when there isn't enough fish and game to satisfy sustained yield and provide for all beneficial uses, other uses must be eliminated before subsistence uses of rural Alaskans can be restricted. Under the CS, all Alaskans would qualify as subsistence users. Their uses along with sport and commercial uses could continue unabated to the point at which there is a shortage such that the state would be forced to restrict subsistence uses of everyone, except those that live closest to the resource. Therefore, the hunters from Anchorage would have the same the right, for example, to hunt moose in the Yukon Kuskokwim Delta as rural residents of that region; even if there were not enough moose to meet the needs of the residents in that region. That is not what ANILCA requires. He explained that, in the above example, ANILCA would say that the urban users should be eliminated before the uses by rural residents can be restricted. "In other words, the priority under ANILCA is restricted to those living closest to the resource, only if the resource in question is not adequate to satisfy the subsistence needs of the rural residents." Furthermore, ANILCA requires customary and direct dependence on the resource as well as the lack of an available alternative resource in order for rural residents to require a subsistence priority. In conclusion, Mr. Williams noted that he has attached to his testimony a point by point analysis of AITC's position on the CS. Number 0632 ROB HOLT, President, Alaska Professional Hunters Association (APHA), informed the committee that APHA has 600 individual members. The APHA represents about 75 percent of Alaskans who are actively involved in guiding. He noted that these people bring into the state's economy $70-$100 million per year due to the access to the resource afforded to nonresident hunters. What the APHA does is an important heritage belonging to all Alaskans. Mr. Holt stated that APHA has consistently supported continuance of the subsistence lifestyle, especially by Alaska's Native people. However, we [guides] can't survive under federal management. He noted that many losses have occured due to federal meddling. For example, the people in Hoonah can't hunt seals in Glacier Bay, but a cruise ship can enter Glacier Bay. Access to over 50 million acres has been lost due to the two land acts by the federal government. Mr. Holt said that through federal management, the Native people have lost the ability to guide people for polar bear, walrus, and other sea mammals which would be a large economic benefit for people living in those areas. Due to the language of ANILCA and the way federal land managers operate, there is the loss of access to hunting on federal land as a guiding industry. He explained that is not related to anything the federal board does, but rather the interpretation by federal land managers. All of the recent losses were incurred under the guise of providing for the subsistence priority whether through the state or the federal government. MR. HOLT stated that changing Alaska's constitution will not necessarily serve us any better, unless something can be set aside for nonresidents supporting the guiding industry. Therefore, guides should be recognized as Alaskans utilizing a resource to support their family. With regard to the constitutionality of Title VIII, he believed it was reasonable for the Governor to ask the U.S. Supreme Court whether this is in the framework of the Constitution of the United States. If that were done, the state could determine which path to take and achieve more rapid progress. MR. HOLT pointed out that the guiding industry has great potential with regards to economic diversity in rural Alaska. However, giving 100 percent of the opportunity to a user excluding a nonresident would not achieve the aforementioned economic diversity. Mr. Holt pointed out that involving Alaskan Natives in the guiding industry isn't easy, but those in the industry are interested in pursuing that. He didn't want to lose that opportunity. Although Mr. Holt didn't want to speak for Alaskan Natives, he observed that Alaska's Native people have social, political, and self-determination needs as well as the need to have more control in determining their own fate. That desire is just now being heard due to their ability to draw attention with this issue. Therefore, he believed subsistence is being used to bring other things to the table. He said that if he could have things his way, the people of Alaska would come together to design a federal law answering those questions. Perhaps, that would result in a better law for Alaskan Natives and release the grip the federal government has on his hunting heritage. Mr. Holt commented that he would like to go to Washington, D.C, to fight for the needs of Alaskan Natives in return for the continued existence of his lifestyle. Mr. Holt didn't want to be a position to fight against the needs of Alaskan Natives in order for his survival. MR. HOLT surmised that there are two decisions. The guiding industry will not fare well under continued federal managment. Furthermore, the guiding industry won't fare much better under state management, unless it is recognized as an industry needing an allocation share. He predicted the guiding industry in Alaska will ended within 10-15 years under one scenario. If the state's constitution is changed without recognition of some things, the guiding industry will end in 15-20 years. CO-CHAIR OGAN acknowledged the contribution guiding makes to the economy of the state, specifically in rural Alaska. He noted that he has worked on legislation to make it easier for those in rural Alaska to become assistant guides by eliminating testing. Number 1293 DAVID BEDFORD, United Fishermen of Alaska (UFA), informed the committees that there are 15,000 permit holders and 21,000 crew members who participate in Alaska's commercial fisheries. Commercial fishermen recognize the importance of subsistence and many commercial fishermen are also subsistence fishermen. The UFA supports placing a constitutional amendment on the ballot which would permit Alaska to come into compliance with ANILCA. The state has 40 years of effective preservation of the resource and effective management which has provided for all of the uses of the resource in the state. Now the question is whether to choose the path that would hand much of that to the federal government. In Mr. Bedford's opinion, a federal take over would have grim results. He explained that federal managers aren't willing to define subsistence harvest, therefore, ADF&G will be required to provide for conservation as well as the unspecified subsistence requirements. He predicted that at first there will be reductions in Alaskan harvests in commercial fisheries and possibly in sportsfisheries as well. Furthermore, the federal government has made it clear in published regulations that it will be satisfied to manage only on federal lands. Mr. Bedford pointed out that federal managers have a single client and are charged by ANILCA to provide for subsistence uses only. Federal managers have no knowledge or commitment to any other use by any other Alaskan. Therefore, sportsfishermen, commercial fishermen, and commercial sportsfishermen will have little relevance to federal managers. MR. BEDFORD commented that the status Alaskans will have if the federal government takes over was illustrated in the Federal Subsistence Board's consideration of the circumstances under which the board would exert extraterritorial jurisdiction. He informed the committees that no commercial fisherman or representative of the state was invited to these discussions which was a closed door meeting. He believed such could be expected under federal management. Mr. Bedford acknowledged that many believe that if Alaska comes into compliance with ANILCA, Alaska will have surrendered management of its resources. He disagreed with that belief because if Alaska assumes authority, Alaskans will publish regulations and Alaskan managers will implement those regulations. Mr. Bedford expressed much faith in ADF&G which has done a good job managing Alaska's resource over the past 40 years. He recognized that, due to the absolute priority in ANILCA, there will be times when there will be conflicts and other uses of the resource will be curtailed. He indicated that the Alaskan boards of fish and game would be able to do that with the least impact to the other uses of the resource. However, he had no such faith under federal managers. In conclusion, Mr. Bedford urged the committee to seriously consider passage of an amendment to Alaskans that will effectively maintain state management. Number 1545 MR. BEDFORD, in response to Representative Croft, addressed the CS before the committee. In reading the CS, Mr. Bedford didn't clearly understand the language. He didn't see a definition of the subsistence users. The CS appears to be an "All Alaskans in Alaska" priority which he predicted would end commercial fisheries, commercial sportsfisheries, and marine sportsfisheries. He provided the following example: If we try to trace a stock of fish through on proximity to the resource, and we start with King Salmon that go to Cook Inlet. Those are fist harvested in small numbers in Kodiak. So, if proximity to the resource means harvest in a terminal area, then we must assure that none are caught in Kodiak. Therefore, the Kodiak fisheries fall. They are then harvested in commercial fisheries and sport fisheries, marine sportsfisheries in Cook Inlet. If proximity to the resource means the terminal area, then those fall. Then, once they get back to that terminal area, the question is who then has access to the resource. And it appears to me, rather than zip code it's by tape measure. How far are you from that river? Number 1623 KATHLEEN GRAVES testified via teleconference from the Kenai. She complimented the Republican Majority for taking a strong stance and pursuing a reasonable solution while being vilified in the media. Ms. Graves commented that some of the comments Mr. Williams quoted of Congressman Morris Udall were actually entered in the congressional record after the passage of ANILCA. She noted the Ninth Curcuit Court of Appeals case in which Judge Kleinfeld declared the following: "That the subsistence provisions of the Alaska National Interest Land Conservation Act of 1980 are not Indian legislation." Furthermore, Mr. Williams use of Congressman Morris Udall's statement that the statute was primarily developed for the benefit of Alaska Native residents of Alaska's rural villages, who are dependent upon subsistence uses is an illegitimate use of the quote. Mr. Graves quoted Congressman Morris Udall as saying: Contrary evidence abounds in the Senate committee report on this bill which is at pains every time it mentions rural subsistence to make it clear that it is not only speaking only of what Natives do. Better guidance is available from the words of the law (indisc.) wrote. That law expressly rejected the proposition that subsistence provision was only for Natives. The statute says that its purpose is to protect subsistence uses by rural residents of Alaska, including both Natives and non-Natives. There could not be a plainer declaration that Congress was not passing Indian legislation. MS. GRAVES noted that quote was from the April 28 Fairbanks Daily News Miner. Ms. Graves informed the committee that Congressman Morris Udall's brother Stewart Udall produced a pamphlet entitled, "Alaska Natives and Their Subsistence Rights" in 1977 when she was in Washington, D.C. She quoted Stewart Udall as saying: It is not suprising that the Alaska Legislature dealt gingerly with Native subsistence issue and made no effort to deal with the rights of the Alaska Native as a special class of citizens under its constitution it's patent that the Alaska Legislature cannot grant meaningful subsistence rights to the Alaska Natives or to any other group of citizens. Thus, the State of Alaska cannot under its constitution, single out its Natives or any other distinct class of citizens and grant them special subsistence rights. This is particularly true with respect to fishing for Article VIII, Section 15 of the constitution prohibits the legislature from creating any exclusive right or special privilege of fishery. MS. GRAVES observed, while in Washington, D.C., that there was discontent with the extinguishment of aboriginal hunting and fishing rights. A way to get around that was to create a situation in which the state was accused of not providing for the subsistence needs of aboriginals. There was an effort to stimulate the Congress to step up to its responsibilities to Indians. There was also an effort to stimulate more involvement of IRA councils under the Indian Reoganization Act of 1936. Ms. Graves viewed that as basically a political move for sovereignty. MS. GRAVES commented that she didn't believe the AFN desired equality, but instead preferred the special legal prescription they have been given. She believed that ANILCA should be litigated and changed to refer to "personal consumption priority." Furthermore, ANCSA should be enforced. She also noted the federal trust owed under the Fourteenth Amendment as well as the need to maintain Alaska's statehood in tact. Number 1876 DICK BISHOP, Alaska Outdoor Council (AOC), stated that the legislature must do what is right for Alaska. The legislature has the opportunity and responsibility to devise a solution which addresses the needs of Alaskans, including those needs related to the uses of fish and wildlife resources and Alaskan's civil rights. The AOC does support subsistence uses and lifestyles, but not a discriminatory priority such as "rural." Furthermore, AOC opposes conforming to federal law on subsistence. Mr. Bishop presented a map that displayed in red the areas that would be under federal fisheries management if the federal government takes over. If the state conforms to the federal law, he predicted that all fisheries management would come under federal management. The statement used by the Governor that the state must conform to federal law in order to have state management is an oxymoron and will not happen. Furthermore, the state will be obligated to implement federal law and the federal courts will oversee the implementation of that. Mr. Bishop addressed an earlier comment that matters related to state regulation will simply go to state court. He said that isn't true and pointed to the 1989 Bobby case which was taken to the federal court directly. Judge Holland ruled that the state wasn't regulating correctly and clarified how the federal law works even under state implementation. Judge Holland said that need, the availability of alternate resources, or a shortage of the resource isn't the standard. "The standard is customary and traditional use by rural subsistence users." Judge Holland instructed the state, the Boards of Fish & Game, to rewrite the regulations for his review as to whether the state was properly implementing the federal law. That illustrates the nature of federal implementation of the law. MR. BISHOP said that he believed the most fundamental reason for objecting to conforming to the federal law is that it is a violation of Alaskan civil rights. Mr. Bishop turned to a similar situation under Governor Cowper. He paraphrased comments during that time from a Soldotna lawyer, Chuck Robinson. Mr. Bishop paraphased Mr. Robinson as saying, "I oppose conforming to the rural subsistence priority in federal law. It violates my civil rights. It violates the civil rights of the majority of Alaskans. I'm a black man. I know something about civil rights." The then chairman of the Anchorage NAACP inquired as to the discussion about civil rights for the majority and commented, "Civil rights are for the minorities." Such comments were of great concern to Mr. Bishop. MR. BISHOP continued by saying that the federal law is a poor conservation law. The federal law allows for the sale subsistence priority taken resources with no monetary limit. Furthermore, the federal law restricts nonrural Alaskans opportunities for common use. Mr. Bishop said, "No other state has the threat of federal pre-emption of state responsibility for the management of resident fish and wildlife such as we are faced with." He reiterated earlier comments with regard to the belief that Alaska will face federal court enforcement whether the state or federal government operates the system. Also there will not be grounds for future challenges of the federal law if the state adheres to the federal law. Mr. Bishop indicated that if the federal government can't be kept out then they should be invited in which would be the case if the constitution is changed to conform to federal law. In conclusion, Mr. Bishop emphasized the importance of amendments to ANILCA which are linked to the constitutional amendment, if a constitutional amendment occurs. TAPE 99-42, SIDE A Number 0031 THOMAS TILDEN, a Dillingham resident, came forward to testify. He informed the committee that he is president of his village corporation, a commercial fisherman, an AFN board member, a Bristol Bay Native Association member, a church board member, a former mayor of Dillingham and a former city councilman. He commented that he and many Alaska Natives have lived in small communities where they were taught to share and think collectively. Therefore, he found it difficult to understand why others don't realize what Title VIII of ANILCA does for the Alaska Native people. He said he believes that the proposed CS does not address the Alaska Native culture. The CS does not talk about culture or traditional use, both of which are needed by the Alaska Native people. He shared Representative Williams' thoughts regarding compromise; the Alaska Natives have compromised. He also shared Mr. Bishop's thoughts regarding equality and wished this was an equal world, but it is not. Number 0240 MR. TILDEN pointed out instances of inequities between rural and urban areas. He indicated that rural residents are accustomed to living with unequal attention and funding from the State of Alaska. Recently, in Anchorage a woman ran down 15th Avenue with a child in her hands being pursued by a batterer. That woman was helped by a passerby and taken to a shelter. The assailant was taken to jail and justice was served. That same incident has happened in one of the communities Mr. Tilden's represents, and it didn't have a happy ending. There was no Village Protection Safety Officer (VPSO) in that village. The nearest law was 100 miles away. When the VPSO was contacted on the phone and told of the domestic violence incident, he said he had other pressing things to do, but he would come down as soon as he could. Three days later, he responded and asked whether or not he was still needed in that community. That woman and the children who fled in that village felt the very same thing as the woman in Anchorage, but there is no equal justice. MR. TILDEN turned to subsistence in regards to what it means to Alaska Natives and what it means to urban people. Between those two there is a vast difference in the interpretation of the meaing of subsistence. He believed that if October 1 arrives and the legislature has not passed an amendment that complies with ANILCA, the legislature will be blamed for letting the federal government in. It is the responsibility of the legislature to come into compliance. He noted a recent trip to Washington, D.C., during which he heard and saw the tape of the President saying that time is running out. He also heard Secretary Babbitt and Secretary Glickman say there will be no amendments to ANILCA. He heard Senator Stevens and the congressional delegation say there will be no more moratoriums. He firmly believed all of them. Mr. Tilden hoped that the legislature would take this issue seriously, vote on it, comply with ANILCA and take care of more pressing problems like education, alcohol abuse, domestic violence and jobs. Number 0573 CO-CHAIR OGAN agreed that different groups think differently and that Native culture has learned to share collectively, while the Caucasian culture is oriented more towards individual rights. Number 0730 JOHN PALMES, a Juneau resident, came forward to testify. He commented that it is not the zip code that is important, but rather community membership and the expectation of the ability to utilize local resources for personal consumption. He noted that rural communities are based on fish and game use. Mr. Palmes expressed concern about all the tourists that fish in Juneau. There are more king salmon caught by nonresidents than by residents in the Juneau area and in Southeast Alaska. Perhaps, that is acceptable since Juneau residents can obtain employment in order to purchase food from the grocery store. However, that can't be allowed to happen in rural areas. Therefore, he suggested that it is not Alaskans one has to worry about, it is the pressure from outside. He commented that just because urban residents cannot get a priority ]doesn't mean anybody shouldn't have one. It would be smart to have a community resident preference or a community member preference, not an urban or rural distincition. Residents of Anchorage, Ketchikan, Fairbanks or Juneau shouldn't be excluded from a preference. MR. PALMES said if subsistence is the highest and best use of resources, then as many Alaskans as possible should get to participate rather than as few as possible. He didn't necessarily agree that just because someone is given a priority that he/she will use it. However, there will be a time when there has to be a distinction between Alaskan use of resources and other people's uses of Alaska's resources. With regard to equal access, Mr. Palmes didn't understand what equal access would be good for when the resources have dwindled. He emphasized that the rural preference puts Alaska in the position of having to maintain an abundance of the resources in rural areas in order to support commercial fishing, sports fishing, and subsistence fishing. The resources can't be allowed to fall to equal access in times of scarcity. He said that was the wrong approach to management. In conclusion, Mr. Palmes restated that this priority would place the urban majority in the position of having to keep the resources in rural Alaska abundant. He acknowledged that there is inequality in distribution of money in Alaska. When it comes down to deciding whether schools, prisons or fish and game management will be funded, something like this federal oversight will be necessary in order to keep the state honest. Number 1123 RAY NIELSEN, JR., a member of Kiksadi clan of the Sitka Indian Village and Tlingit, testified via teleconference from Sitka. He informed the committee that he is enrolled in the federally recognized Sitka Tribe of Alaska and is a member of the local fish and game advisory committee and the Alaska Native Brotherhood (ANB) subsistence committee. Mr. Ray Nielsen said the word subsistence is the terminology of the State of Alaska, and it carries too much baggage. Alaska Natives recognize the term customary and traditional as referring to their food and resources. The customary and traditional way of life keeps him in Sitka as he is a hunter, harvester, gatherer, provider, teacher, cook and user of the traditional ways of life. Mr. Ray Nielsen noted that he maintains the customary and traditional right to trade, barter and sell Native customary and traditional foods and resources. He acknowledged that there has, is, and always will be a battle over attempts to make, legalize their on-going practices, uses and ways. MR. RAY NIELSEN recognizes, acknowledges and practices the ways and rights of the Native people. Subsistence is more than a way of life; in many cases it is life. Alaska Natives must be able to exercise their inherent rights to hunt, fish and gather in their customary and traditional lands. He commented that Alaska Native subsistence, customary, and traditional foods and resources are preferred and are enjoyed by Native and non-Native peoples. He identifed those non-Natives as those who are married to Natives or adopted into a clan, those who are active in ANB and ANS [Alaska Native Sisterhood], and those who support and attend Native functions. Because the recognized tribes of Alaska have a close working relationship with the federal government, it is only natural for them to look forward to October 1. The tribal/federal relationship far surpasses the tribal/state relationship concerning subsistence and customary traditional rights. MR. RAY NIELSEN stated he is not in favor of a compromise of Alaska Natives' subsistence and customary and traditional rights or amendments to ANILCA. He indicated the need for a consitutional amendment which provides for a subsistence, and customary and traditional priority. He specified that everything Alaska Natives fight for on their customary and traditional lands also applies to Native corporate land which is Indian country. Alaska Natives look forward to the co-management, the management, the co-enforcement and enforcement of their aboriginal rights. Tribal governments and Native peoples are ready to step in and help with the transition with the federal government. CO-CHAIR OGAN handed the gavel to Chairman Kott. Number 1308 JOHN NIELSEN, Tribal Counsel for the Sitka Tribe of Alaska, testified via teleconference from Sitka. He informed the committees of a position statement which opposed compromise related to the subsistence issue and opposed any amendments to ANILCA. He echoed Mr. Ray Nielsen's comments that a constitutional amendment must require the state legislature to pass a law providing for a subsistence priority. Mr. John Nielsen then spoke as a tribal clan member from Sitka, Alaska, who gathers for potlatches when needed. Clan leaders provide guidance to grandchildren and clan members. He commente that the Native people are taught to use, not to abuse and to take only what is needed. MR. JOHN NIELSEN pointed out that the charter boats are not regulated, and they should be on IFQ [Individual Fishery Quota] just like commercial fishermen. Charter boats are fishing in the fish stream and snagging the fish, and no one is there to check them. The ADF&G says they don't have the manpower to do such. He expressed the need for ADF&G to review a concerted measure on their management practices. Number 1456 JOE WILLIAMS testified next via teleconference from Ketchikan. He recalled earlier comments regarding the extinguishment of aboriginal rights through the 1971 Alaska Native Lands Claims Settlement (ANCSA). In that extinguishment, Alaska Natives gave up the aboriginal rights. He asked those who have a strong opposition to ANILCA what did they or their ancestors give up. "A deal is a deal. Live up to the words." Alaska Natives compromised in ANCSA in 1971, in ANILCA of 1980; it is time that the State of Alaska live up to the deal which was agreed upon in 1980. He pointed out that the governor of 1980 said that "rural" versus "Native" is the only way it is going to work. Number 1607 MARLENE ZUBOFF, Executive Director, Angoon Community Association, testified via teleconference from Angoon. She commended the legislature on their hard work on this issue. She agreed with AFN's Ms. Kitka and the AITC delegation in respect to how those groups represented the State of Alaska. She thanked her brothers in Sitka tribes and Ketchikan for what they said. She also thanked Mark Jacobs in Sitka who discussed about the disclaimer clause before Alaska could become a state. Alaska Natives have always concluded that we are the aborigines of the land, who have always taken care to be natural managers of the land without taking or using more than necessary from the land. Ms. Zuboff pointed out that Alaska Natives they use less than two to four percent of the resources within the State of Alaska. MS. ZUBOFF expressed concern that the state is looking to this two to four percent, when there are many more important issues that are not being addressed. A decade is a long time to be discussing subsistence; it is time to move on. Ms. Zuboff informed the committee that she testified in March in Juneau when the term "rural" was being looked at as to whether or not a ferry system came into Angoon. The community of Angoon argued with that. She expressed concerns about the pollution from the cruise ships and noted that communities such as Angoon weren't considered. She informed the committees of the "pus sacs" she has found inside fish. MS. ZUBOFF noted the importance of the elected officials to be very objective when listening to the people in Southeast and across the state. Alaska Natives wholeheartedly agree that there should be no amendment to ANILCA. Ms. Zuboff hoped that the legislators would listen to the Alaska Natives and review other concerns such as education. She pointed out that the Alaska Natives are not arguing about "rural." She discussed how the community of Angoon shares within the community, especially with the elders and families who don't have the wherewithal to obtain their own resources. Ms. Zuboff stressed the importance of the protection of the resources by the legislature. She commented that the commercial fisheries have caused the fisheries to be less plentiful than in the 1960s. She reiterated her concern with regard to the numerous cases of "pus sacs" in the fish. In conculsion, Ms. Zuboff appreciated the time and effort of the legislature on this issue. Number 1894 MAXINE THOMPSON, Mayor, City of Angoon, testified by teleconference from Angoon. She informed the committee that she too testified at the March meeting in Juneau and would relate those comments again today. She said that the issue of traditional and customary use of resources has been an on-going debate since the early 1900s and perhaps even earlier. She related testimony given by an elder during the early 1930s; the elder's statements were in defense of access to traditional and customary resources. That elder questioned why, after all these years of use of these resources, that Alaska Natives have to defend their actions. That continues today. Therefore, she understood testimony she heard in the Senate Resources Committee from Alaskan Natives who favored the federal takeover. At the same time, she expressed concern that this issue has become a divisive issue for Alaskans. MS. THOMPSON recalled a legislators question, "...as to why ... the people in 102 communities, as reported by Julie Kitka, said they're dependent on subsistence; that this should not be an issue of concern." As a mayor of a community that has a consistent decline in resources from the state and federal government, the community is dependent upon subsistence. The community doesn't have a cash economy, and therefore is dependent upon subsistence both by preference and by having no choice at all. MS. THOMPSON explained that the Alaska Native diet is predetermined, Alaska Natives have been eating these foods for centuries and will continue to in the future. She agreed with Representative Joule's comments regarding the continued compromise by the Alaska Natives. The legislature has had ten years to deal with this issue and now as the twelfth hour approaches, the debate continues over use of the term "rural" or use of a statement of locality. She commented on testimony heard at other hearings on subsistence in which representatives from the Alaska Association of Commercial Fishermen and the Alaska Professional Hunting Association both of which favored an amendment to come into compliance with ANILCA. She urged the legislature to look at this as an Alaskan issue; not as a rural and urban issue. Alaska Natives have already compromised on the Native subsistence allowance and opted to use "rural," and now the debate is over "rural." This is a divisive position to take. Ms. Thompson said that she didn't want to say she would prefer federal management over state management. This is a landmark decision the legislature is about to make. She urged the legislature to make the best decision for Alaska. Number 2136 PETER MCCLUSKEY, JR., testified via teleconference from Angoon. He told the committee he is a Dog Salmon from Angoon Central House. He appreciated AFN's work on behalf of Alaska Natives. He also acknowledged Representatives Croft, James as supporters of Alaska Native issues. With regard to comments about equal rights, Mr. McCluskey said that Alaska Natives have never received such from the state. Mr. McCluskey quoted from a speech by Robert Loescher of the Sealaska Corporation: A deal is a deal. Today I am addressing the topic of Native subsistence rights. Where are we now in state and national politics? Our subsistence lifestyle, hunting, fishing, trapping and food gathering is at the core of Alaska Native tribal existence. We, Alaska Natives, have continued to enjoy to this day, the elements of this subsistence lifestyle that have continued to enjoy that have been passed onto us by our ancestors and thus endured from time immemorial. The Alaska Native traditional subsistence lifestyles are characterized in part by the teaching and passing on of respect for the environment to fish and wildlife, survival in harvesting skills, tribal ceremonies, spiritual belief, shared trade and bartering and other cultural values. It describes in our real sense who our ancestors were, and who we are and what we intend to pass on to those who come after. Our tribal way is to show concern by our actions for the well-being of those who will come after. The unanimous U.S. Court claimed this decision of October 1959 governing Tlingit and Haida claims of aboriginal title to virtually every acre of land in southeast Alaska and in effect confirmed that both the use and occupancy of the land and utilization of the subsistence lifestyles were from time immemorial. He continued by informing the committees that the tribe in Angoon is also federally recognized. He urged the legislature to support a good decision. He commented that there are non-Native subsistence users in Angoon, and residents have no objection to that because it is a lifestyle. Those non-Natives are trying to survive as well, and that is where sharing and bartering come in. STEVE GINNIS, President, Tanana Chiefs Conference, Incorporated, came forward to testify. Prior to being President of the Tanana Chiefs, he was the Chief of the Native Village of Fort Yukon. He informed the committees that for five years he has been a board member on the National Congress of American Indians and is the former president of the Alaska Inter-Tribal Council. He noted that for many years he has been actively involved on the local level in the Yukon Flats. From that experience, he gained much knowledge about this issue. TAPE 99-42, SIDE B Number 0001 MR. GINNIS expressed pride that he is a Kutchin Koyukon Athabaskan and a chief. He noted that it is interesting that this whole issue has boiled down to a lawyer's haven. All those definitions that are included in that law certainly don't reflect the Native lifestyle. Number 0071 MR. GINNIS thanked those on the committee who support a constitutional amendment. He invited those who don't support a constitutional amendment to the Yukon Flats to see for themselves the devastation from high unemployment, alcohol, drugs, domestic violence, et cetera in the villages. If this issue is defeated, the Alaska Native people will be severely hurt. This is an issue of survival. Mr. Ginnis viewed the subsistence lifestyle as the only way to alleviate the aforementioned devastation in the villages. He noted that his grandfather, who is a respected chief in the Yukon Flats, didn't envision this kind of thing happening to their people. MR. GINNIS encouraged the committee to seriously think about what would happen to the Native people. He represents over 14,000 Athabaskan people in the Interior, some 42 villages spread out over the Interior of Alaska which would be the most impacted by this issue. He reiterated his invitation for members to come out to the villages and take a look at what they are making major policy decisions on. The gavel was returned to Co-Chair Ogan. Number 0331 REPRESENTATIVE BARNES told Mr. Ginnis that she has visited quite a few rural villages. She asked if at any time in the Yukon Flats area, any people have been denied their subsistence rights. MR. GINNIS replied absolutely not. He explained his involvement on the "fish and game committee" and why he thinks that system works. There was a serious decline in the moose population in the southwestern part of the Yukon Flats National Wildlife Refuge which involved two or three villages. Through cooperation of the state biologist and the ADF&G employees, they were able to recommend to the Board of Game a Tier II hunt area for that region. Through those actions and through the Native voice being heard, they were able to build up the moose population. From his point of view, state management offers opportunities to work through the system to ensure that the moose population and other resources sustain them. He agreed the fish issue is more difficult to address than the game issue. MR. GINNIS stressed the improtance to realize that this all refers to times of shortage, "this particular thing would kick in." Currently, anyone can come out to Yukon Flats or wherever else to hunt, trap, or fish in this state. The discrimination that people are continuously referring to just doesn't apply. REPRESENTATIVE BARNES pointed out that the discrimination being referred to is language that has been requested to be placed in the constitution. Some legislators believe the problem can be resolved without that sort of language. REPRESENTATIVE GREEN said he was impressed by Mr. Ginnis. With regard to Mr. Ginnis' comments about the drug and alcohol abuse problems in the villages, he inquired as to how such items are obtained if the community is not a cash economy. MR. GINNIS said that he didn't know how such was obtained. He emphasized that the Rural Commission Report should be followed up, the urban and rural division would be helped as well as issues such as drug and alcohol abuse. Number 0831 ALAN ZUBOFF, Chief, Dog Salmon Clan, testified via teleconference from Angoon. He stated that in the development of Alaska, things are going to happen which are not going to be sufficient in the name of compromise. The Alaska Native culture mandates that they protect the natural resources for their grandchildren. He wished the committee could make a decision that will make everyone happy that takes into effect the no compromise issue. There should be no compromise. The legislators are voted in by people who are subsistence users, whether it be Native or non-Native; therefore, the committees should listen to the people and continue the practices of the last ten years. "A deal is a deal." Number 1002 DAVID KELLEYHOUSE, a member of the Alaska Outdoor Council Board of Directors, informed the committees that his testimony is based on over 20 years of professional fish and game management experience in Alaska. He commented that after this testimony he may not remain on the AOC Board of Directors. He pointed out that the current federal subsistence law is extremely flawed. If the state complies with it, it will mean the ultimate end of subsistence in this state. While Alaska Native people believe the current federal subsistence law is their salvation, it will be the end of subsistence because federal policies will not allow for any active management. They are subject to the whims of anti-use forces in Washington, D.C. which will prevail in the end. The legislators have to forge an Alaskan solution which, in part, entails amending the state constitution to clearly identify subsistence as the highest and best use of the resource ahead of other uses, but that subsistence preference has to be during times of unusual historical shortage. Furthermore, the proximity to the resource is germane. He forwarded the idea of proximity in 1992 during that legislative attempt to construct a new subsistence law. Proximity to the resource makes sense in terms of efficiency of harvest and the development of long traditions. He pointed out that it is important that such a preference must be in areas characterized by long-term subsistence dependence on the particular resource that is in a state of shortage. MR. KELLEYHOUSE informed the committee that he had drafted some language that incorporates all of these things as well as the sustained yield principle, which the federal law does not have. Without sustained yield management, there will be no subsistence, no commercial fisheries or any opportunity for use of the resources. He encouraged the committee to take his proposed ideas, not necessarily the wording. The language would protect the interest of the Alaska Native people that are truly worried about their future. One of his most difficult jobs as director of fish and game was to maintain a level playing field for all Alaskans, and the constitution allowed him to do that. He urged the committee to forge an Alaskan solution. It will require either amendment of ANILCA or a test of its constitutionality. The state cannot live with that law. It is not in the best use of subsistence uses, anyone else, or the resources. [He provided a document but it was not distributed to the committee at that time.] Number 1294 CALEB PUNGOWIYI, Kawerak, Incorporated, came forward to testify. He shared examples of how subsistence priority has worked in the real world in the past nine years when the federal government has managed the game on federal land. When both federal and state managers feel that a game population is reduced to a point where they must restrict take, it has been due to a conservation concern, not to protect subsistence. In most cases, the take is restricted to Tier II level. In such a case, the population is at the point where the departments must take stringent actions so that a very limited number of animals can be taken by a very limited group of people. For example, the federal and state governments have decided that 35 Musk Ox can be taken on the Seward Peninsula. That is allocated on the basis of one's community and the applications for the Tier II permits. In the cases where hunters within communities obtain such a permit, it becomes a community allocation or resource and the hunters share with the community. He related other instances of such limits placed on fish and game because of conservation concerns, not to protect subsistence. MR. PUNGOWIYI reported that Nome is in a Tier II fishery for the first time in Alaska's history. Since 1989, Nome has been under Tier I fishery and people get permits to subsistence fish in marine and inland waters. The Tier I permit allows the taking of 100 fish. However, the fish population has been declining such that last year the Board of Fisheries limited Nome area fisheries to Tier II. The board limited the fishery to 20 people with a take of 100 fish each. This year the Nome area fisheries are limited to Tier II. They have 20 people who were selected out of 75 who applied. Nineteen were from Nome and one was from Anchorage. Out of the nineteen in Nome, one was a non-Native family. The fishing was so bad that of those 20 with the Tier II permits, only one family got one fish and another family got 20 fish; the rest didn't get any fish because ADF&G closed the fishing because no fish were getting into the waters. He emphasized that when the stage of subsistence priority is reached, it becomes very limited. He also informed the committees of the conservation concern in Nome in Unit 22B, the ADF&G staff in Nome will make a proposal to the Board of Game this coming fall that will eliminate nonresident hunting. Again, the department is not because protecting subsistence, the proposal is a result of conservation concerns regarding the decrease in population of large bulls to the point where the department feels the need to limit the number taken. He commented that it is a long process of getting to Tier I or Tier II. In Nome where the ADF&G has concerns regarding the game populations, the department either restricts the number of days that one can hunt or restrict an area where one can hunt. The other areas with more population have a more liberal season. To say that the sky is going to fall because of subsistence is totally erroneous. Number 1635 ALEX SINYON, President, Tetlin Native Corporation, came forward to testify. He noted that he has been listening four hours to the committee talk about his lifestyle. He said he thinks that many of the committee don't seem to understand the way of life lived in his area as well as other villages. MR. SINYON referred to earlier testimony in which various members said they had come a long way on this issue, but he noted that they haven't come his way yet. The legislature has been cutting alcohol programs and school funding and other programs. He informed the committee that he has been looking for a job the last two years trying to work with the alcohol program, and he couldn't even get hired from his own corporation. This is the life he has had to live. He said that he eats muskrat, porcupine, ducks, moose and caribou just as he always has. He asked if they were trying to take all that away from him and his family. Subsistence lifestyle is the way of life for many of his people. Mr. Sinyon stated that there is a difference, to him, between rural and urban. He referred to a situation in Fairbanks where someone shot a moose down and just left it. That hurt him because that is a waste of his food. In conclusion, Mr. Sinyon commented that without work, they go hungry and have to live off the land. CO-CHAIR OGAN assured Mr. Sinyon that no one in the legislature wants to take away one's ability to live off the land. MR. SINYON responded that by not complying with Title VIII, he believed that the legislature is taking away the ability to live off the land. Number 1876 HERBERT EDWIN, Tanana Tribal Council, came forward to testify. He informed the committee that he grew up in a culture that taught him a religion about the land. He wore a medicine bag, sang Indian songs, has gone into the woods and prayed to the spirits because that is what his grandfather and father did. He asked the legislature to simply protect his right to do that so he will be able to teach his children and grandchildren. He discussed how his daughter has expressed the desire to learn those things as well. The spiritual concept comes from the land and the animals that he eats and respects every day in his prayers. MR. EDWIN urged the committees to bring this to a constitutional amendment in some manner so all Alaskans can vote on this. Alaska Natives have to protect their natural right to fish out of the rivers and lakes. Alaska Natives need to be able to do so without being thrown in jail or ostracized by anybody. He clarified that he is asking for an indigenous right that has been passed on. It is a basic human right to provide for a family; it is a religious right to practice his religion which is protected under the U.S. Constitution. He asked the legislature to protect those rights and pointed out that the federal government mandates such protection. CO-CHAIR OGAN commented that he has the deepest respect for Mr. Edwin's beliefs and culture. If it is a basic human right and a religious right, he asked why Mr. Edwin would want that to apply only to people based on where they live. MR. EDWIN answered he is not asking for that right to be placed racially on a person. There are non-Native people in Tanana who practice a subsistence lifestyle, we don't ask them to stop. CO-CHAIR OGAN inquired as to how this issue can be addressed for all Alaska Natives when only providing the preference to those in rural areas. MR. EDWIN recalled that his grandfather told him if the earth, the rivers and the ocean were destroyed, then man would disappear. He grandfather asked him to uphold his side of his culture which he does everyday. Mr. Edwin specified that he is asking for respect for the natural lifestyle of the aboriginal people within Alaska. The Alaska Natives have compromised since day one on everything the state has requested. Alaska Natives have their backs against the wall and cannot and should not compromise again. This is the deepest feeling from an Alaskan Native as to where they are going to draw the line. Number 2186 WOODY SALMON came forward to testify on behalf of his people in Chalkyitsik. He echoed comments regarding the Native people being backed into a corner. He informed the committees that first it was gold, then it was fur, timber, land, oil, Native languages, cuts in education, and lack of village law enforcement which lead to alcohol and drug abuse. Now it is fishing and hunting that Alaska Natives are fighting over. He explained that although his people are poor, they have a rich culture, and are a happy and proud people. There are few jobs in the villages and those in the villages face high transportation costs and substandard housing. He discussed how if the legislators were in the private sector they would have all been fired over how this issue has lingered. Mr. Salmon urged the legislature to place the issue before the people for a vote. The Native lifestyle is very important to Alaska Natives. Number 2341 KENNETH RICHARDS, First Chief, Holy Cross, came forward to testify voluntarily on behalf of his people. He defined subsistence as living off the land, taking care of the land and respecting the creations of God. Mr. Richards believed that the subsistence lifestyle is a healthy lifestyle. TAPE 99-43, SIDE A MR. RICHARDS defined subsistence as respect. REPRESENTATIVE GREEN agreed with Mr. Richards' healthy lifestyle. He noted that his wife is part Cherokee and commented that he also looks to this issue as important to his personal lifestyle. Number 0165 ROBERT WALKER, Mayor, City of Anvik, recalled a discussion about 15 years ago in which he asked someone in the Department of Community & Regional Affairs to define "rural" and "urban." The person explained that "urban" is defined as a first class city, first class borough, and a home rule community. While "rural" was defined as second class cities, third class boroughs, et cetera. Therefore, the terms "rural" and "urban" are defined. REPRESENTATIVE JAMES said that Mr. Walker went to the heart of her concern on this issue in that "rural" doesn't define the subsistence lifestyle. She admitted that she didn't know how to overcome that hurtle. The subsistence lifestyle is the act of the person and it is the person's life, religion, and culture, all of which make no difference with regard to place of residence. Those things go with the person wherever the person is. MR. WALKER indicated agreement. REPRESENTATIVE JAMES commented that her extreme respect of the subsistence lifestyle comes from her childhood growing up raising her food off of the land. She noted that she missed that lifestyle. Number 0426 KEN JOHNS, President, Copper River Native Association, considered his area ground zero for subsistence. Mr. Johns said that he wasn't present to advocate for a constitutional amendment. His areas are comfortable with federal management. He noted that he wouldn't have advocated for federal management ten years ago. With regard to wanting equality, he commented that villages fall to the wayside when others come in for the resource. Such villages aren't protected. It has hard to compete with the state government which has many resources with regard to lawyers. Therefore, it is hard for villages to compete or bring suits. MR. JOHNS informed the committee that one year the Board of Game restricted the Copper River area to a five day moose hunt. He cautioned the committee with regard to the language and exemplified that with a supreme court decision regarding the language "reasonable opportunity" in which the supreme court deemed a five day moose hunt provided a "reasonable opportunity." He expressed the need to keep the politics and lawyers out of this issue. Mr. Johns said he would stand by and fight for the state, but when it results in a fight for the allocation in his area there isn't equality. Mr. Johns pleaded for the committees to protect the Native villages in the areas bordered by larger cities which dominate boards and make regulations. Number 0787 McKIE CAMPBELL informed the committee that he was staff to the Senate Resources Committee in 1986 when the statute was drafted and has since worked on several revisions of the statute. Mr. Campbell has worked on subsistence as the Facilitator to Governor Hickel's task force as well as Deputy Chief of Staff in the Governor's office and the Deputy Commissioner of Fish & Game. He commented, "The one thing that I've found, for sure, about subsistence is no one walks away unwounded." Mr. Campbell expressed his passion with regard to what happens on this issue. He suggested the need to focus on the management of fish and game and the affects on people. MR. CAMPBELL said he believed there are three parts to the solution. First, no permissive constitutional amendment alone will bring the state into compliance with ANILCA. Such an amendment will allow the legislature to pass a statute bringing the state into compliance with ANILCA. Certainly, the Governor's amendment does that. He also beleived Representative Barnes' amendment does that as well, but the language on page 1, line 13, of Version D, "the highest beneficial use of the resource is subsistence use", doesn't have to be placed in the constitution to achieve what is being attempted. Furthermore, it sets up much potential for mischief in the courts. He believed Version D would allow the legislature to pass a statute, thus, resulting in compliance. Passage of either constitutional amendment would allow insertion of the word "local" in four places in AS 16.05.258 which would bring the statute into compliance. Mr. Campbell believed there should be a third part with the constitutional amendment and statute. There have to be some amendments to Title VIII. There are some simple drafting issues in Title VIII which have been problematic for the state government, federal government, and all subsistence users. He pointed out that there are many undefined terms such as "rural" and "customary trade." MR. CAMPBELL, in conclusion, stated that this must be fixed. He commented that there will not be any horrible changes in the immediate future if the federal government takes over. However, it is like cancer in that if it isn't dealt with while it can be, then when the real effects arrive it is too late to fix the problem. If anyone wonders what federal management will look like in 20 years, look at Glacier Bay now. Number 0163 LYNN LEVENGOOD, Attorney; Member, Alaska Wildlife Conservation Association, informed the committees that he is from the second largest Native village in Alaska, Fairbanks. He identified the issue as how each Alaskan provides for the sustenance of their family which is an individual right no matter the individual's place of residence. That is a natural, God-given right as are all the rights guaranteed by the constitution. Most importantly, individual rights aren't the appropriate subject for a popular vote. Mr. Levengood turned to Attorney General Botelho's comments at the September 22, 1999, meeting and commented that what Attorney General Botelho didn't say is more important than what he did. Mr. Levengood said: This issue isn't--should not be about dividing Alaskans against Alaskans, it should be about this body and this government defending Alaska's sovereignty against the federal government's intrusion. This issue should go directly to the U.S. Supreme Court and it could go there on October 2nd because on October 1st there will be 600,000 brand new causes of action; one for each man, woman, and child in this state, against the federal government for their taking of Alaskan sovereign rights. MR. LEVENGOOD addressed the U.S. Supreme Court case, United States v. Alaska which was over the submerged lands in Cook Inlet. The U.S. Supreme Court said that the case appeared to qualify under Article III, Section 2 of the U.S. Constitution for original jurisdiction. The Submerged Lands Act and the statehood compact provide that the State of Alaska owns all navigable waters, the water itself, and all natural resources therein. Therefore, when the federal government stops one fishing boat and takes one fish this state would have a cause of action to bring at the U.S. Supreme Court level. Finality on the issue would occur in less than a year or year and a half. Number 1242 CO-CHAIR OGAN recalled a statement from Attorney General Botelho that the submerged lands do belong to the state. Co-Chair Ogan interpretted that to mean that the federal government doesn't have power in that area. MR. LEVENGOOD hoped that the members had received a discussion of the ownership of Alaska's submerged lands. He also mentioned an analysis of the Bess v. Ulmer decision which quantitatively and qualitatively affects the Alaska Constitution in 13 different places; it wouldn't make it to a popular ballot. Although Attorney General Botelho indicated it could go either way, Mr. Levengood pointed out that the issue of reapportionment was placed on the ballot. The reapportionment issue was a procedural issue that didn't speak to fundamental, individual constitutional rights as does the amendment before the committee. The amendment before the committee violates Bess v. Ulmer; it is a revision of the constitution. CO-CHAIR OGAN noted that the committee members should have the opinion on that from Legislative Legal. MR. LEVENGOOD addressed the question to Attorney General Botelho from the September 22, 1999, hearing regarding urban Natives becoming second class citizens. Mr. Levengood said that Attorney General Botelho responded that such a situation would be dealt with through proxy or educational permit. He viewed that as a legal admission of second class citizenship, apartheid. Attorney General Botelho did not read the committees the entire federal register. He said that Attorney General Botelho read the following: Should the Secretary of the Interior, certify before October 1, 1999, that the Alaska State Legislature has passed a bill or resolution to amend the constitution of the State of Alaska that, if approved by the electorate would enable the implementation of state laws of general applicability consistent with and which provide for the definition, preference, and participation described in Sections 803, 804, and 805 of ANILCA. MR. LEVENGOOD pointed out that Attorney General Botelho didn't read the remainder of the sentence which reads: "Then these regulations will be held in abeyance until December 1, 2000." Mr. Levengood said that the question isn't whether the federal regulations would be implemented, but rather when the federal regulations would be implemented - October 1, 1999 or December 1, 2000. If nothing happens by October 1, 1999, the regulations will be enforced by the federal government with their dollars on federal lands only. If the federal government attempts to take extraterritorial jurisdiction, the state should bring a suit as quickly as possible -- according to his legal analysis and previous supreme court decisions. CO-CHAIR OGAN asked if the language in the federal register reading, "state laws of general applicability" meant that the laws must be applied evenly to everyone. MR. LEVENGOOD said that was what he is getting at. He noted an amendment by U.S. Senator Stevens placed right before the last moratorium. He interpretted that language to mean that a state law would have to be a law which includes the entire State of Alaska in order to pass muster. Therefore, an amendment attempting to come into compliance would have to cover all lands in Alaska, not just federal lands. So, if the federal government takes over, the federal government would manage on federal lands with federal money and officers. On the other hand, if the state retains a right to manage, it would be under federal rules implemented and promulgated by a federal subsistence board. Those rules would apply to the entire state and would be enforced with Alaska's dollars and troopers. In such a case, the state wouldn't have any management decisions. Mr. Levengood informed the committee that basically Commissioner Rue, Department of Fish & Game, was thrown out when the state's Co-Management Team went to the Federal Subsistence Board with their plan. MR. LEVENGOOD stated, "The affirmative choice is not to surrender before there is a fight." If Alaska's constitution is changed, the ability to bring action against the federal government will be diminished. He believed that even if nothing is done, the ability to comply with ANILCA remains because the federal law hasn't changed. After a suit goes to the U.S. Supreme Court, Alaska could lose and return back to come into compliance. He noted that his research indicates such a suit would result in Alaska winning. In conclusion, Mr. Levengood said that all the individual rights of all Alaskans need to be protected. Number 1635 DEWEY SKAN, President, Rural Community Action Program (RurAL CAP); and Tlingit Indian, explained that RurAL CAP is a service agency which has represented the 10 regions throughout the state. Mr. Skan informed the committees that at the Haines convention in 1929 the Tlingit tribe decided to sue the federal government because their land had been taken and sold to Russia. It took about 60 years to resolve that issue; it was resolved December 18, 1971. He emphasized that only 12 percent of the land was returned. Mr. Skan informed the committees that he has lived in Alaska all his life, he is a commercial fisherman, and has hunted, subsisted, and gathered all his life. He noted that he owns two boats because the state mandates that subsistence and commercial fishing can't be done from the same boat. He discussed the history of RurAL CAP and its achievements in Alaska. He stated that RurAL CAP's Board of Directors is opposed to any changes to ANILCA. MR. SKAN turned to April 1989 when this was litigated. At that time, the Southeast Native Subsistence Commission was created in Juneau. The Southeast Native Subsistence Commission's first action was to express the desire for a Native preference. Although that was not really what was desired, it was determined that would get attention. Mr. Skan then turned to the urban Native problem which he didn't view as a problem. He noted that in Representative Kookesh's district there are probably 70 percent of other races, but everyone subsists in harmony. In his opinion, there are two classes of people because there are 110 villages without safe water and sewage. MR. SKAN noted that he was on the Federal Subsistence Board representing Klawock for three years. His first action was, in October 1992, implementation of a doe season for the Sitka Blacktailed Deer. Within a month the mayor of the neighboring town called Mr. Skan to express his dismay. That mayor likened killing a doe to killing a mother. To that Mr. Skan asked if it is alright to kill his father. Mr. Skan said that the Federal Subsistence Board works in his area. In summary, he commented that RurAL CAP is trying to create a healthy environment and is concerned about all rural Alaska residents. Number 1990 GILBERT BEN, Council Member, City of Allakaket, commented that Alaska Natives are having difficulty with subsistence. He expressed the importance of subsistence to his family and the other members of the village. He noted that he has done much traveling and observed the hunting that seems to be cleaning out the country. Mr. Ben didn't see a future for Native people. Therefore, he recommended a Native priority, a subsistence priority. He indicated that there is too much hunting and overpopulation. For example, when Mr. Ben came to Juneau via Alaska Airlines he saw many hunters with merely horns. That is not appropriate; too much game is being given up. With regard to all Alaskans being equal, Mr. Ben said that isn't true. He informed the committees that he doesn't have running water and sewer. Mr. Ben stressed that by the time the legisalture comes to a decision, nothing will be left. CO-CHAIR OGAN commented that he pays 100 percent for his water and sewer. REPRESENTATIVE MASEK inquired as to how Mr. Ben would define protection. MR. BEN stressed that there should be Native authority. Number 2188 SHARON LEE, a Juneau resident and Tlingit Indian, informed the committee that she is an Eagle from the Eagle's Nest House. She recalled her childhood and noted that her family was very poor, without subsitence food she said she would have been very malnourished. She believed she was fortunate to have been raised in Juneau and had the opportunity to obtain an education. Now she makes a good living and doesn't have to rely on subsistence food. Ms. Lee was sad to hear that many villages still live at the level she grew up at. She said that there is more to the Native heritage than dancing, singing, subsistence food, and potlaches. That heritage also involves turing to God. She recalled the many times her ancestors looked to God before doing anything. Therefore, Ms. Lee urged the committees to seek God. CARL RUE, an Anvik resident, indicated that his sister is a legislator. He noted that he has been involved with the Anvik tribal council, courts, and government for the past nine years. Anvik has been successful in taking care of itself and its natural resources, although the fisheries have been deleted for the past three years. TAPE 99-43, SIDE B Number 0030 MR. RUE commented that pressure is coming from everywhere, such as guiding. Therefore, everyone must work together to manage the resources to ensure that there isn't a shortage. Mr. Rue said that this should be put before Alaskan voters. He didn't have any problem with equal access. The village of Anvik welcomes those coming in to hunt. He related a story in which Anvik residents helped hunters from Arizona who were hunting in Anvik. He was open to managing the resources with the state, but now there is so much pressure from various people. CO-CHAIR OGAN concured with regard to what can be achieved away from the cameras, lawyers, et cetera. Number 0261 DON BRIMNER informed the committees that he is originally from Yakutat. He reviewed his mixed descent and how his father, part Scottish and Tlingit, was forced to live in two worlds. Mr. Brimner said that he would address the proximity issue encompassed in the resolution. He identified the following four areas in which the criteria would fall short with regard to coming into compliance with ANILCA. First, the language "proximity of residence" is a contradiction in terms of relating to the Native community and way of life as understood by ANILCA. He informed the committees of the definitions of the words "proximity of residence" found in Webster's and recommended the committees keep that definition in mind. Mr. Brimner said that the interpretation, application, and use of this criteria doesn't embody the spirit of the Native way of life in Alaska or the interpretation, application, and use of ANILCA. For example, "proximity" means many things to a Native. To a Native, "proximity" means our bodies, minds, and spirits being close to one another. He said that we, Alaskan Natives, are near to things and things are near to us. There is no division in an Alaskan Native's existence. He then turned to the notion of compassion and said one must enter into the thing that one has compassion for; therefore, he has, as a Alaskan Native of mixed blood, compassion in his Native people. Keeping that in mind, "residence" is moot. The fourth shortfall of "proximity to residence" is that it is a short-term solution which doesn't recognize a Native's existence as a whole being. If the "proximity to residence" criteria is utilized it will merely divided the Alaska Native community into haves and have nots as exemplified in the Alaska Native coroporations. CO-CHAIR OGAN asked if Mr. Brimner supported the Governor's resolution which includes a rural priority. MR. BRIMNER clarified that he supported a rural preference. He returned to the issue of creating haves and have nots in the Native community. Mr. Brimner didn't believe that the intent of the federal government with the adoption of ANILCA was to divide the Alaska Native community in spirit or physically. Therefore, he indicated the need for the legislators to have compassion and understand the Alaska Natives' "Nativeness" in order to do what is right. Number 0763 ROBERT SILAS, President, Northway Village Council; President, Dineega Corporation; Member, Doyon Board of Directors; informed the committees that when he speaks he represents himself, his tribal members, shareholders, and the corporation. Mr. Silas noted that he was present in the first legislative special session in 1990. He hoped this would be the last legislative special session on this issue. He turned to the frequently mentioned issue of equality and noted that there are often jobs in rural communities that are funded by state projects and dollars. In those cases, construction companies come in and bring their own employees, urban residents. Therefore, in order for there to be equality the rural residents should have the first opportunity to obtain those jobs. Furthermore, funding for schools is not equal. CO-CHAIR OGAN interjected that the people in his district pay for sending their children to schools. Number 0905 MR. SILAS said that he had a problem with "rural" versus "proximity." He explained that he takes his salmon from Holy Cross, Galena, and Ruby and inquired as to how the term "rural" versus the term "proximity" would effect him. Mr. Silas viewed it as cutting out some of the places from which he takes resources. He related how his mother and siblings survived by people sharing food with them. Sharing is often the case in rural areas, furthermore, families in rural areas often share with those in urban areas. If the federal government takes over management, it won't be because the Alaska Native people didn't compromise. He stated that this body hasn't put forth a good faith effort to resolve this issue. CO-CHAIR OGAN commented that he respectfully disagreed. MR. SILAS pointed out that at the 1990 legislative special session, the Alaska Native people did compromise quite a bit. Number 1039 ANNA DAVIDSON, an Anchorage resident, informed the committees that she is originally from the village of Akiachuck. Ms. Davidson said that the current discussion of subsistence ignores existing state fish and game laws that have created special classes for resource users in Alaska. She pointed to the limited entry permit system and licenses for sport hunting and fishing guides as examples. If everyone was truly equal in Alaska, everyone would be eligible to fish commercially and to act as guides. If enacting a rural subsistence priority in times of resource shortage is unconstitutional, then so is the limited entry permit program as is the state's practice of licensing certain individuals as guides for sportsmen. Ms. Davidson continued by saying that Alaska Natives gave up their land and rights when ANCSA was developed. Furthermore, the state has laws that don't make sense with respect to the traditional laws of Alaska Natives. Number 1208 FRANK BENJAMIN, a Shageluk resident, recalled testimony about the discrimination of those entering villages to hunt. He said that his village doesn't discriminate. Mr. Benjamin noted that Shageluk completely depends upon subsistence fishing. LOTHA WOLF, a Mentasta resident, commented that she isn't comfortable with the language being used such as "subsistence" and "rural." She informed the committee that her father, Houston Sanford, was one of the leaders who fought for schools to be placed in the villages. Her father also fought for the right to hunt during funerals and potlatches. Mr. Sanford's sister is Katie John and she also fought for her human right. Ms. Wolf discussed the entrance of assistance programs such as the Alaska Temporary Assistance Program (ATAP) into the villages. Such assistance programs crippled those living in the villages and people began to depend upon that for their lifestyle. MS. WOLF said she respected the members, but indicated that she would like for people to come to the table and understand where she is coming from. She inquired as to what resource would be left in urban areas if the luxuries of light, indoor plumbing, and stores were taken. Number 1490 DEWEY GEORGE provided the committee with a letter that he wrote to the Lieutenant Governor. He expressed concern that this issue will have a major impact on the future of a culture of people. Mr. George believed that the current federal policy misses the mark in focusing on rural residents as does the current state policy. He expressed the desire to see the state adopt a policy which focuses on Alaska Native people; a policy that allows the Alaska Native people to practice the subsistence way of life. The policy should also provide non-Native people the right to practice subsistence by a state license or other agreement. He pointed out that the current federal policy now segregates between rural and nonrural residents. He said that no one's rights are being cut off, the future of a Native culture is merely being preserved. Mr. George encouraged the committees to consider the people. CO-CHAIR OGAN closed the public testimony. The committees then took an at-ease from 4:10 p.m. to 4:30 p.m. Number 1631 REPRESENTATIVE BARNES commented that the committee members should have a copy of the opinion from the Office of the Solicitor in the Department of the Interior. She said that she and others had set out to work on this in good faith, however, she didn't believe the Solicitor's opinion dealt with it in good faith. Certainly, the intent and spirit of the compromise goes to the heart of ANILCA. Anyone wishing to make it work should jump at the opportunity to use this compromise to solve the problem. She quoted the following from the Solicitor's opinion: "Because many fish and wildlife populations in Alaska range over extensive geographical areas, it would mean, for example, that residents of an urban area downstream on a river would be legally entitled to take all the fish available for subsistence, preventing the fish from swimming upstream to where rural residents are waiting to harvest them." Representative Barnes disagreed with that statement, saying Alaska's current law allows exactly what the Solicitor is saying cannot happen. Therefore, the Solicitor is saying that what is currently going on with the ADF&G and the Board of Fisheries doesn't work. There hasn't been any testimony that one rural resident has been denied his or her subsistence rights, she stated. She reiterated that she had offered a good faith compromise that wasn't dealt with in good faith. Therefore, Representative Barnes expressed her wish to withdraw CSHJR 201, Version D. Number 1736 REPRESENTATIVE BARNES moved that the committee rescind its action in adoption of CSHJR 201, Version GH1071\D, Utermohle, 9/22/99. There being no objection, it was so ordered. REPRESENTATIVE JOULE moved that the committee report HJR 201 from committee. REPRESENTATIVE BARNES objected. She commented that she didn't believe the Governor's bill, HJR 201, was any more workable than the CS, Version D. She didn't believe that HJR 201 would help resolve the problems. CO-CHAIR OGAN commented that he has been opposed to a "rural priority." He noted that the bill doesn't have any amendments to ANILCA. He then asked if anyone had any amendments to offer. No amendments were offered. The committee was at-ease from 4:29 p.m. to 4:30 p.m. Number 1805 Upon a roll call vote, Representatives Morgan, Joule, Kapsner, and Harris voted in favor of reporting HJR 201 from committee and Representatives Barnes, Whitaker, and Masek, voted against reporting HJR 201 from committee. Representative Sanders was not present for the vote. Therefore, the motion failed with a 4-4 vote. CO-CHAIR OGAN recessed the committee at 4:40 p.m. to the call of the chair. Number 1833 CO-CHAIR OGAN reconvened the meeting at 9:25 p.m. He noted there was a quorum present. Those House Resources Standing Committee members present were Representatives Ogan, Sanders, Masek, Harris, Morgan, Barnes, and Whitaker. Representatives Joule and Kapsner arrived shortly after the meeting reconvened. House Judiciary Standing Committee members present when the meeting reconvened were Representatives Kott, Green, James, Murkowski, Croft, and Kerttula. Other House members present were Representatives Austerman, Berkowitz, Bunde, Davis, Foster, Kohring, Mulder, Phillips, Porter, and Williams. Present from the Senate was Senator Taylor. REPRESENTATIVE BARNES moved that the committee rescind its action in failing to report HJR 201 from the House Resources Standing Committee. She asked for unanimous consent. There being no objection, it was so ordered. Number 0068 REPRESENTATIVE BARNES moved that the committee adopt CSHJR 201, Version GH1071\K, Utermohle, 9/23/99, for discussion purposes. CO-CHAIR OGAN objected. Upon a roll call vote, Representatives Whitaker, Harris, Morgan, Barnes, and Sanders voted in favor of the adoption of CSHJR 201 and Representatives Masek and Ogan voted against the adoption of CSHJR 201. Representatives Joule and Kapsner were not present for the vote. Therefore, the motion passed with a 5-2 vote. REPRESENTATIVE BARNES addressed the CS, Version K, before the committee. She referred to the new language on page 1, lines 9-15 which seemed to have an awkward flow. She asked Mr. Utermohle if he had a suggestion in order for the language to flow better. The bottom part of subsection (b) seems to be out of context with the rest of that subsection. Number 2062 GEORGE UTERMOHLE, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, agreed that it is a long sentence containing a couple of subordinate clauses that are hard to follow. REPRESENTATIVE BARNES asked if it would be better to place the language "consistent with the sustained yield principle and sound resource management practices," at the beginning rather than at the bottom. MR. UTERMOHLE pointed out that moving that phrase would affect the meaning. He explained, "As cumbersome as it is, that phrase, 'consistent with the sustained yield principle and sound resource management practices,' modifies the amount available to be taken for beneficial uses. If that phrase was moved to the beginning, then there would not be that modifier for determining the amount available for beneficial uses." He commented that the language could be broken into two sentences. REPRESENTATIVE BARNES recalled that in earlier discussions, we had moved a portion of it to the beginning. CO-CHAIR OGAN called a brief at-ease at 9:35 p.m. The committees came back to order at 9:37 p.m. REPRESENTATIVE BARNES announced that having spoken with Mr. Utermohle with regard to the language, she had no further questions. Number 2202 CO-CHAIR OGAN inquired as to the meaning of "to and among residents" and "local residence." MR. UTERMOHLE explained that "local residence" refers to locality of residence as opposed to the term "resident of the state." Therefore, the preference given by the legislature would be based on local residency within the state. CO-CHAIR OGAN asked then if a statute that would provide a "rural priority" would be ruled constitutional under this amendment. MR. UTERMOHLE replied yes. He then explained: The phrase "to and among residents" provides the state to grant this preference not just to a particular class of Alaskans, but ... to also further provide that preference to certain or divide it or allocate it among members of that class. ... In a sense, in the current system we have now, in Tier I ... they provide a preference to rural residents. That's the "to". The to provide a preference among rural residents under the Tier II criteria, the customary dependents on the resource, the local residency and the availability of alternative resources. That's the--provides for allocation "among" rural residents. CO-CHAIR OGAN inquired as to whether this would pass the "red face test" with regard to the Bess decision or revision versus amendment. MR. UTERMOHLE said that he believed that Version K would raise the same issues as any of the other versions considered to this point. Mr. Utermohle commented that, in his mind, it is unknown with regard to how the court would rule as to whether it is an amendment or a revision. He clarified that Version K does, as the other versions, raise concerns under the Bess decision. There is a risk that the court may find this to be a revision. CO-CHAIR OGAN asked if Version K affects the same areas of the constitution. Does Version K affect equal protection, due process, common use, uniform application, no exclusive fishery, as in the other versions. MR. UTERMOHLE answered yes. "Any proposed constitutional amendment that would provide for the allocation of a resource among residents of the state based on criteria such as in-state residency would raise each of those issues." TAPE 99-44, SIDE A Number 0035 REPRESENTATIVE JOULE pointed out that Version K speaks to "indigenous species" and inquired as to what that language refers. REPRESENTATIVE BARNES pointed out that language has been in all of the versions before the committee thus far. She explained that the language "indigenous species" is used because there have been species such as elk which have been brought into the state. She said that "indigenous species" refers to those species that have been commonly in Alaska. REPRESENTATIVE JOULE inquired as to whether the species would be indigenous to a particular area or Alaska. REPRESENTATIVE BARNES responded that it would be indigenous to the State of Alaska. Number 0161 REPRESENTATIVE KAPSNER referred to page 1, lines 14-15 and asked if the language "sound resource management practices" and "reasonable opportunity" are in ANILCA. If that language is not included ANILCA, she inquired as to how that language may conflict with ANILCA. MR. UTERMOHLE replied that, to his knowledge, neither of those terms are included in ANILCA. With regard to possible conflicts with ANILCA, Mr. Utermohle said that he couldn't speak to the significance. Mr. Utermohle stated: The present situation that the legislature is faced with that ... in the next ten days and having to provide a particular amendment that might be subject to certification by the Secretary [of Interior]. I think this language does do that. And to provide him with the basis for certifying an amendment ... that would potentially allow the legislature to meet the requirements of ANILCA, though, it's possible also that the Secretary [of Interior] might balk at its language such as "reasonable opportunity" and just say that it doesn't go far enough. CO-CHAIR OGAN commented that the "reasonable opportunity" language may deal with the Bobby case. He explained that the Bobby case dealt with the need for "...all other uses have to be eliminated before a season and bag limit can be placed on a subsistence use user." Number 0348 REPRESENTATIVE BARNES directed her comments to Representative Kapsner. Representative Barnes said she couldn't imagine that anyone would object to the language "consistent with the sustained yield principle and sound resource management practices". She inquired as to why Representative Kapsner would not want such. REPRESENTATIVE KAPSNER responded that she was merely curious and didn't mean to imply she objected to the language. She noted that those terms can be interpretted as vague and can be viewed differently by different groups. REPRESENTATIVE JOULE recalled that "reasonable opportunity" was part of a package during the last session regarding subsistence. When that package was left, so was that language. He pointed out that the language "reasonable opportunity" isn't found in ANILCA. Representative Joule asked if this, Version K, has been forwarded to Washington, D.C. for review. CO-CHAIR OGAN said he wasn't sure he could answer, but didn't believe that it had been forwarded. REPRESENTATIVE KAPSNER said, with regard to the "reasonable opportunity" language, that the Solicitor's opinion states: "By focusing on criteria like these which are not oin the federal law, the proposal risks new conflicts with ANILCA." Representative Kapsner felt it worthy of discussion now in order to eliminate the possibility of a discussion regarding "reasonable opportunity" in the next ten years. Number 0570 REPRESENTATIVE BARNES commented that the mere fact that some are willing to make another attempt seems very reasonable. She indicated that the language in Version K contains language that was included in the version for which the Solicitor gave his opinion. Representative Barnes quoted the Solicitor's opinion as follows: Other difficulties with the proposed wording of the amendment may also render it inconsistent with ANILCA. As one example, the amendment includes proximity to the resource as a primary factor for eligibility whereas ANILCA has three specific criteria for applying the priority in rural Alaska in times of shortage: (1) customary and direct dependence upon the populations as the mainstay of livelihood; (2) local residency; and (3) the avialabilitiy of alternative resources. The amendment also adopts the "reasonable opportunity" approach to providing the subsistence priority which was previously contained in amendments to ANILCA enacted by Congress in 1997, but which expired in 1998... REPRESENTATIVE BARNES said, "Once again, that if you find difficulty with this language that's in here then all you're asking for is for all of use to bow down and I'm not ready to do that." CO-CHAIR OGAN asked if the Judiciary Committee had any questions. CHAIRMAN KOTT said that the Judiciary Committee would hold its questions. REPRESENTATIVE BARNES requested the presence of Attorney General Botelho. CO-CHAIR OGAN recognized that Attorney General Botelho was not present. He asked if Attorney General Botelho could be called. Co-Chair Ogan noted Commissioner Rue's presence and availability for questions. Number 0897 MR. LEVENGOOD commented that Version K, as a whole, doesn't comply with ANILCA for a number of reasons. Version K has the same Bess v. Ulmer problems as did the Governor's original proposal. Furthermore, the language doesn't seem to convey the intent. He directed the committees to page 1, line 9, and said, "The word 'may' is volitional, it makes the preference voluntary whether the legislature provides it or not and that alone would make it not in compliance with ANILCA." He then turned to page 1, line 9, and the word "preference" which would result in discrimination because someone would be provided a preference. MR. LEVENGOOD addressed the language "to and among" as follows: The "to" is to "residents", means --is individuals. ... The "among" modifies "residents" as well, and the "among residents" is both inclusive ... or exclusive. Inclusive "among residents" would connate a collective right as in the groups of people, the residents among them. So, we have a collective right where the preference could be spread around among a group of residents. The exclusive use of the word "among" could mean that we divide the preference between the group of all qualifiers which means you would end up having, the possibility of having multiple layers of people with preferences; some with greater preferences and some with lesser preferences and arguable how they would get greater or lesser preferences is based upon the qualifying factors that are listed in the lines below. MR. LEVENGOOD continued by addressing the language specifying the qualifying factors for the preference. He believed the qualifying factor of "customary and traditional use" is already defined in state statute. He indicated that "direct dependence" isn't defined. He pointed out the language, "or the availability of alternative resources," and explained, "The way that sentence is constructed, to get a preference you can either have, for subsistence you can either have a customary and traditional use, a direct dependence, local residence or if you don't have any of those, if you happen to have the availability of alternative resources you can qualify for the preference." Mr. Levengood believed the committee wanted to make that factor a disqualifier rather than a qualifier. MR. LEVENGOOD referred to page 1, lines 13 and 15, the words "beneficial uses" and interpretted that to mean any use other than waste. He pointed out that the language on line 14, "sound resource management practices" was not defined to his knowledge. MR. LEVENGOOD explained that this is problematic in the Bess v. Ulmer case because the language "to and among residents" creates an exclusive group of a subset of Alaskans based on residents falling under one of the discriminating factors. Then there is the additional factor of "the availability of alternative resources." In other words, if those in town have grocery stores or any kind of resource available that excludes them from a natural resource in the state, that creates equal opportunity and equal protection problems in the constitution. He commented that using all these qualifying and exclusionary factors appears to try to define the word "rural" without actually saying the word "rural." The committees were at-ease from 10:03 p.m. to 10:19 p.m. Number 1361 DAVID BEDFORD, United Fishermen of Alaska (UFA), expressed the importance to Alaskan fishermen to find a resolution that will prevent federal management. He also expressed appreciation for the efforts to find a resolution. He commented that he too would like to hear from Attorney General Botelho as well as from the Solicitor on this new CS. Upon review of Version K, Mr. Bedford observed that much of it is crafted directly from ANILCA which would appear to appeal to the Secretary of Interior. However, he was confused with the following language, "consistent with the sustained yield principle and sound resource management practices". It would seem that if it was "consistent with the sustained yield principle", by neccesity it must also be consistent with "sound resource management practices". Therefore, he surmised the two must be separate things or else the phrases wouldn't be separate. Mr. Bedford expressed concern with the "reasonable opportunity" language. MR. BEDFORD, in response to Co-Chair Ogan, stated that the UFA has long held that a subsistence solution would require the following: a constitutional amendment, statutory changes, and amendments to ANILCA regarding technical deficiencies. However, now having to deal with all of those things as a package has become impractical. He clarified that Alaska is in a position where those things must be pursued one at a time because the Secretary of Interior faces an obligation to certify whether the State of Alaska has placed a constitutional amendment on the ballot permitting the state to come into compliance with ANILCA, as written. CO-CHAIR OGAN closed public testimony. He then recessed the committees to the call of the chair at 10:25 p.m. He announced the meeting would reconvene September 24, 1999, at 8:00 a.m.