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