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