SENATE RESOURCES COMMITTEE Fairbanks AK September 24, 1997 3:40 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Loren Leman Senator Bert Sharp Senator Robin Taylor Senator Georgianna Lincoln MEMBERS ABSENT Senator Lyda Green, Vice Chairman Senator John Torgerson ALSO IN ATTENDANCE Senator Jerry Mackie Senator Gary Wilken Senator Jerry Ward Senator Drue Pearce Senator Jim Duncan COMMITTEE CALENDAR Interim Hearing on Subsistence WITNESS REGISTER Mr. Julian Mason Governor's Task Force on Subsistence POSITION STATEMENT: Presented the Governor's Task Force subsistence proposal. Representative Al Kookesh, Co-Chairman Alaska Federation of Natives (AFN) State Capitol Building Juneau, AK 99801-1182 POSITION STATEMENT: Delivered Native Subsistence Summit of August 26 - 28 comments on Governor's Task Force. Mr. Byron Mallott, Executive Director Alaska Permanent Fund Corporation Member/Governor's Subsistence Task Force P.O. Box 25500 Juneau AK 99802-5500 POSITION STATEMENT: Answered Task Force proposal questions. Ms. Mary Pete, Director Division of Subsistence Department of Fish and Game P.O. Box 25526 Juneau AK 99802-5526 POSITION STATEMENT: Answered questions regarding Governor's Task Force proposal. Mr. David Kellyhouse, Wildlife Biologist P.O. Box 81452 Fairbanks AK 99708 POSITION STATEMENT: Commented on the subsistence issue. Tentatively supported the Governor's Task Force proposal if substantially amended. Ms. Cesa Sam P.O. Box 70 Huslia AK 99746 POSITION STATEMENT: Commented on the subsistence issue. No comment on Governor's Task Force proposal. Ms. Patrice Salmon P.O. Box 53 Chalkyitsik AK 99788 POSITION STATEMENT: Commented on the subsistence issue. No comment on the Governor's Task Force proposal. Ms. Marjorie Attla P.O. Box 136 Galena AK POSITION STATEMENT: Commented on the subsistence issue. No comment on the Task Force proposal. Mr. Patrick Saylor P.O. Box 624 Healy Lake AK 99706 POSITION STATEMENT: Commented on the subsistence issue. Ms. Milly Bergman Allakaket AK POSITION STATEMENT: Opposed the Task Force proposal. Mr. Benedict Jones P.O. Box 47 Koyukuk, AK 99754 POSITION STATEMENT: Supported Governor's Task Force proposal. Mr. Gerald Walker Tribal Council Holy Cross, AK 99602 POSITION STATEMENT: Commented on subsistence issues. Mr. Gerald Oldman Hughes Village Council General Delivery Hughes AK 99745 POSITION STATEMENT: Concerned with trophy hunters. Mr. Randy Mayo Stevens Village Tribal Government P.O. Box 13 Stevens Village AK 99774 POSITION STATEMENT: Opposed Governor's Task Force proposal. Mr. Vernon Joseph P.O. Box 07663 Fairbanks AK 99707 POSITION STATEMENT: Opposed Governor's Task Force proposal. Mr. Roger Nicholas Kaltag Tribal Council P.O. Box 41 Kaltag AK 99748 POSITION STATEMENT: No position on Governor's Task Force proposal. Commented on subsistence issues. Said he personally opposed the proposal. Ms. Anna Pickett P.O. Box 82354 Fairbanks AK 99708 POSITION STATEMENT: Opposed Governor Task Force proposal as written. Mr. Gideon James Arctic Village AK 99722 POSITION STATEMENT: Commented on subsistence issues and supported AFN position. Ms. Annie James Fairbanks AK 99708 POSITION STATEMENT: Commented on subsistence issues. Mr. Walter Flitt P.O. Box 232 Fort Yukon AK 99740 POSITION STATEMENT: Opposed Governor's Task Force proposal. Mr. Tom Scarborough 1678 Taroka Dr. Fairbanks AK 99709 POSITION STATEMENT: Opposed Governor's Task Force proposal. Mr. Gabe Sam Tanana Chiefs Conference 122 First Ave. Fairbanks AK 99701 POSITION STATEMENT: Supported the Native Subsistence Summit proposal. Ms. Clara Joseph Beaver Village Council First Street Beaver AK 99724 POSITION STATEMENT: Commented on subsistence issues. Mr. David James Gwich'in Fort Yukon AK 99740 POSITION STATEMENT: Commented on subsistence issues. Mr. Curtis Tindall 276 Le Ann Fairbanks AK 99701 POSITION STATEMENT: Commented on subsistence issues. Mr. Byron Haley 1002 Pioneer Rd. Fairbanks AK 99701 POSITION STATEMENT: Opposed Governor's Task Force proposal. Supported Alaska Outdoor Council position. Mr. Dick Bishop Alaska Outdoor Council 1555 Gus's Grind Fairbanks AK 99709 POSITION STATEMENT: Opposed Governor's Task Force proposal. Mr. John Coady, Northwest Regional Supervisor Division of Wildlife Conservation Department of Fish and Game 1300 College Rd. Fairbanks AK 99708 POSITION STATEMENT: Supported the Governor's Task Force proposal. Ms. Bonne' Therriault-Wolstead P.O. Box 56702 North Pole AK 99705 POSITION STATEMENT: Commented on the subsistence issue. Ms. Mary Bishop 1555 Gus's Grind Fairbanks AK 99709 POSITION STATEMENT: Opposed the Task Force proposal. Mr. John Miller 1260 March Dr. Fairbanks AK 99709 POSITION STATEMENT: Commented on the subsistence issue. Mr. Joe Mattie P.O. Box 18 Ester AK 99725 POSITION STATEMENT: Commented on the subsistence issue. ACTION NARRATIVE TAPE 97-36, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order in Fairbanks, Alaska at 3:40 p.m. and announced the presentation of the Governor's Task Force Proposal on the current subsistence situation. MR. JULIAN MASON, Governor's Task Force on Subsistence, explained that the proposal is structured around ANILCA which provides a subsistence priority for rural residents that is managed by federal managers. If the State wants to manage federal land, it needs to create a priority on State land. This option was elected by the State shortly after ANILCA was passed in the form of a rural priority. There was a referendum to repeal the rural priority in 1982 which failed. In 1989 the Alaska Supreme Court said that it is unconstitutional to grant a subsistence priority based on where someone lives. Once the Supreme Court said it was unconstitutional to grant a priority based on where a person lived, we were out of compliance with ANILCA and there was obligatory litigation and the federal government came in and began managing subsistence on federal lands. For all practical purposes this meant game management on federal lands. Initially the federal government adopted what the State had been doing. Recently, they have deviated from that more and more. The Boards of Fisheries and Game, at the request of the legislature, created non-subsistence areas in Alaska. They are Anchorage, Mat- Su, and Kenai; Valdez, Ketchikan, Juneau and Fairbanks. The rest of the State, translated into ANILCA terms would be rural areas. But this is not the way it is in State law. SENATOR HALFORD asked if that meant that there really wasn't any priority. He asked if it was true there was nothing in any of the non-subsistence areas that says someone can't live a subsistence life style, if they can do so without a priority. MR. MASON responded that was right. SENATOR HALFORD said he thought this issue was sometimes being misrepresented as a priority issue and he thought that subsistence was an inalienable right. He thought it was important that the lack of a priority didn't stop subsistence activity. MR. MASON agreed that that point was often confused in the debate. There is nothing prohibiting people from practicing subsistence activities in non-subsistence areas, but there's no priority. MR. MASON continued saying that the next event was probably the Katie John Case, the result of which is a determination by the Federal Appeals Court, Ninth Circuit, in San Francisco, that the federal government has the right to manage fish in reserved navigable waters. The idea is simple, but the implementation is very complex. The moratorium that we have now is on the Department of Interior spending money on implementing regulations to comply with the decision in Katie John regarding defining navigable water. This moratorium expires on October 1. Mr. Mason referred the Committee to a map showing the waters the federal government proposes to classify as being subject to subsistence management. He said that October 1 is not an apocalyptic day, but the federal government has said if the moratorium expires, it will begin to take the steps necessary to comply with the court order to make the regulations to implement the management that is on this map so they will be in place in time for next year's fishing season. MR. MASON said the Governor's Task Force had two basic goals - to recognize the importance of subsistence and to ensure State management. No one knows how simultaneous management of both fish stocks and wildlife that move without regard to boundaries would work. Number 1008 CHAIRMAN HALFORD asked how long this had been going on for game. MR. MASON replied that the McDowell case holding the rural preference unconstitutional was decided in 1989. He thought the federal government began to become active around 1991. We have had dual management on the game for at least five or six years. How well it has worked depends entirely on who you ask. He added that he thought a third objective was to do something without the long period of dual management, meaning no long stream of litigation. MR. MASON said he would comment on the proposal dated 9/23. He said the proposed amendment simply authorizes the legislature to create a subsistence priority based on where a person lives. It does not require the legislature to do that and does not require a rural priority. Number 1606 CHAIRMAN HALFORD asked if that came back to the equal protection question from one of the members of the Supreme Court. MR. MASON replied yes. He added that at one point this permitted the creation of a rural preference which was changed by the committee to place of residence. He thought the reasoning was if you say rural priority as a constitutional amendment, you create a constitutional question about what is rural and you don't want to do that. SENATOR TAYLOR asked if he thought that the proposed constitutional amendment satisfied the intent of ANILCA. MR. MASON replied yes, if coupled with State Statutory amendments. Alone, the amendment doesn't do anything. He noted that ANILCA creates the priority on federal land and also has a section saying if the State does the same thing, none of the federal priority takes place. SENATOR TAYLOR asked if this required any change in ANILCA. MR. MASON replied no; however, there are changes to ANILCA required by this proposal, but not required by the constitutional amendment. SENATOR TAYLOR said he thought part of the package was that the constitutional amendment did not take effect until ANILCA was changed. MR. MASON said the constitutional amendment would be the last in a chain. The ANILCA amendments and the State Statutory amendments would be passed, but would only become effective if the people passed the constitutional amendment. That's why there is a reference on page 1, line 29 saying there is a linkage function. It's impossible to write it until you know which piece is going to happen first. The concept has always been that nothing would happen unless the constitutional amendment was passed. Number 2205 CHAIRMAN HALFORD asked if there was an enforcement mechanism that makes that work if the constitutional amendment was approved in the fall of 1997. MR. MASON replied it could be written to do that. It's not that way now because as a drafting problem they would have to know which would happen first. He thought the best way to do it would be to have ANILCA amendments first with those contingent upon a constitutional amendment, then do the State statutory amendments contingent upon passage of a constitutional amendment. Put the constitutional amendment in 1998. Number 2401 CHAIRMAN HALFORD asked if the legislature would be called on to vote to authorize the constitutional amendment without knowing what the changes to ANILCA would be. MR. MASON replied that it is conceivable. In that instance the legislature would have to put the constitutional amendment on the ballot contingent upon a specific set of ANILCA amendments being passed. The problem with that is that if for some reason that exact set of ANILCA amendments is not passed by Congress, you defeat the constitutional amendment and you would have to come back and reauthorize the constitution. He said it would be better in terms of making it all work to have the ANILCA amendments pass. SENATOR TAYLOR said he was informed by participants in the Governor's Task Force that on two different occasions the Secretary of Interior was called to participate in the behind closed doors meetings by teleconference and his comments were that the President would not tolerate any changes to ANILCA and that was one of the reasons they make certain we could do this without any significant changes to ANILCA. MR. MASON responded that to the best of his knowledge there was no such pronouncement by the Secretary of the Interior. SENATOR TAYLOR asked if the Secretary of Interior had had a chance to review this language and had he signed off on it. MR. MASON replied that the Secretary's staff had this language, but he did not think he had signed off on it. He thought the Department of Interior would acquiesce on amendments to ANILCA. There had been no lines drawn about amendments to ANILCA. In ANILCA the term "customary and traditional" is important because subsistence uses are defined in those terms. However "customary and traditional" are not defined in ANILCA. State law has a definition for customary and traditional. The proposal of the Committee is to define customary and traditional, customary trade, and a rural Alaska resident. The proposed customary and traditional definition is different in two ways. Instead of saying, "and reliance upon" it now says "or reliance upon." The reason is that some people take, some people use, and some people take and use, but all people don't necessarily do all things. This recognizes that subsistence activities include using, but not necessarily taking. CHAIRMAN HALFORD asked if the State law uses "and." MR. MASON replied affirmatively. CHAIRMAN HALFORD asked if that, then, expanded the existing State law. MR. MASON replied he didn't know the intent of existing State law. He had talked with people who said that State law is administered as if it were an "or." MR. MASON said that "customary trade" was also defined, but had not changed from the last draft. He noted that the State definition on page 48 "as restricted by the appropriate board" is not in the ANILCA definition, but the reason is for that is later in ANILCA there is a general provision for the State to manage and make regulations. So the intent is the same. CHAIRMAN HALFORD asked if the regulation could be more stringent than the ANILCA language itself. He thought giving the court the authority to limit it could become more stringent than the ANILCA language. Doesn't that create a conflict between State management policy and ANILCA through regulation instead of statute. MR. MASON said he didn't think so, because the authorizing power in the ANILCA amendments is to make it clear that the State can make regulations to implement the definition which is the Boards of Fisheries and Game exercising power not inconsistent with the statutory limit. Number 3346 CHAIRMAN HALFORD asked him to review the Peratrovich case and the problems with that. MR. MASON responded that the perceived problem was that people using a subsistence priority take and sell (Peratrovich was roe and kelp, probably) fish or wildlife for substantial amounts of money. ANILCA was meant to accommodate non-commercial sales of that type, but not in commercial quantities. Federal regulations say that customary trade means cash sale of fish and wildlife resources for personal family needs and does not include a significant commercial enterprise. This is in harmony with this regulation. The Peratrovich Case was taken because the amount involved was around $70,000 and what the jury believed they proved was that they had customarily and traditionally sold in Seattle. So the concern is that fish and game taken under the subsistence priority in good size quantities will be sold for substantial amounts of money. This is meant to limit that. The reason the committee wanted to leave it to the Boards of Fisheries and Game is that it is hard to deal with the issue in terms of dollars as a statutory matter because over time the dollar amount would change with inflation or deflation. That is why the emphasis is on the quantity as opposed to cash. Number 3624 CHAIRMAN HALFORD asked if this change was changing that standard. MR. MASON said he didn't know because the problem was that the defendants did a brilliant job in proving they had customarily and traditionally done that. This does not change the possibility that someone could prove they customarily and traditionally sold large quantities. The federal regulation prohibits large quantities, not just the customary and traditional ones he didn't understand why the case went that way. CHAIRMAN HALFORD noted that it was a federal case and was tried in Seattle. MR. MASON elaborated that the proof was that they had traveled by boat to Seattle for the trade. Number 3900 SENATOR TAYLOR asked why they would want to broaden ANILCA if their goal was to take care of Peratrovich and did they want Congress to put in words like minimal quantities. MR. MASON replied yes it was the intent to flip the control from the amount of cash to the amount of the fish or game. CHAIRMAN HALFORD said he thought the thing that has redefined subsistence is the federal court case which has gone beyond that of what the original advocates would have considered under rural priority and he thought the Peratrovich Case and the Bobby Case were the two biggest examples. Number 4157 SENATOR MACKIE asked if he thought the Governor's proposal would take care of the Peratrovich problem. MR. MASON replied yes. He explained that that case was tried with no regulation limiting the quantity of the dollar amount. SENATOR MACKIE asked if the Governor's proposal does not allow the commercial sale of subsistence. MR. MASON replied yes, that is the intent. CHAIRMAN HALFORD asked if the intent was that the $15,000 individual and $70,000 aggregate limit would no longer be the standards and would it be more like the intent of the original legislation. MR. MASON was affirmative and said he thought it could be accomplished with these words through regulations. CHAIRMAN HALFORD asked if success or failure would be decided by a State court. MR. MASON replied that a criminal violation would remain in State court. Regulations could be challenged in federal court. Number 4531 SENATOR WARD asked where the rural preference fit into the fish allocation negotiations between Alaska and Canada. MR. MASON said he didn't think it applied at all. SENATOR WARD asked why the federal regulation for rural preference wasn't part of the treaty process with Canada. MR. MASON assumed that negotiators for the United States were aware of the need for subsistence, but he didn't think the priority, itself, was part of the negotiations. TAPE 97-36, SIDE B Number 001 MR. MASON said he understood the negotiations were for allocations of fish between Canada and the U.S. In response to Senator Ward, he said that he had no way of knowing this should be explored. MR. MASON continued saying that the third definition of a rural Alaska resident is a change from State law. Currently State law defines everything in terms of non-subsistence areas. To fully understand the law, you have to read the definition of subsistence uses which has been State law for some time. That in turn describes customary and traditional. Everything under State law technically is under State regulations. Everything currently outside the non-subsistence areas are treated as rural. The current State division between rural and non-rural would be initially in State law. Changes to those designations would be made by the Boards of Fisheries and Game acting jointly which is what the legislature authorized the Boards to do when it created the non-subsistence areas five or six years ago. The Boards of Fisheries and Game define non-subsistence areas. There are some odd things outside of these areas like the Kodiak Coast Guard Base and Prudhoe Bay. These will get a subsistence priority in the short term, but that is only because they are outside the current non-subsistence areas. Subsistence areas, as such, have never been reviewed by the Boards - only non-subsistence areas. Number 535 CHAIRMAN HALFORD asked if it worked the other way against Eklutna and Chickaloon. MR. MASON replied that Elkutna would be urban. He said there is a provision in State Statute that has the Boards meeting jointly to reclassify to the extent necessary. They haven't done that yet, but the proposal authorizes them to do so. Under current State law what matters is what goes on in the non-subsistence areas. In a sense they have never looked at the list of subsistence areas. Number 710 SENATOR LINCOLN asked if the areas had to be reclassified before any of this took place. MR. MASON replied that there is no requirement in the proposal that the Boards do that before all this goes into effect. They are authorized to do it after. The reasoning is that the Boards have at least defined the non-subsistence areas. What is rural under the proposal and what is rural under the federal scheme are very close. Under this proposal they would know in advance what the list was going to be on the day this all goes into affect. Going forward, the Boards of Fisheries and Game, acting jointly, would be authorized to move communities around as they changed. The same thing is true under the federal system which uses population (2,500 or less is rural; 2,500 - 7,000 has no presumption; 7,000 and above is presumed to be urban). The resumption of 2,500 or less is rebutted if the community or area possesses significant characteristics of a non-rural nature or is considered to be socially and economically part of an urbanized area. In making that determination, the federal managers look at community infrastructure and educational institutions. There is a requirement in the federal system that there be a rolling 10-year review. So under the federal system there are communities classified now as rural that would fall out very soon if the federal regulations are followed. It would be unfair to say that the Task Force had made it too easy to toss communities out. Number 1207 MR. MASON said that Sitka is outside a non-subsistence area. Saxman is in a non-subsistence area. The Task Force did not make any judgements about what was rural and non-rural. It decided to start with existing State law and to give the Boards, and not the legislature, the power to change it. SENATOR TAYLOR asked if federal regulations defining rural and non- rural had been passed. MR. MASON replied yes, that was the existing federal regulation, but he didn't know when that was passed. The only reason Saxman is affected is because the Boards of Fisheries and Game once concluded that Ketchikan, including Saxman, was a non-subsistence area. SENATOR TAYLOR said that many people from Saxman testified at a House Resources Committee hearing that they wanted to make certain their community qualified as subsistence. MR. MASON explained that Saxman does not qualify initially, but it doesn't prohibit the Board from doing that. One of the criticisms the Task Force has received is that Saxman will no longer be considered rural. His understanding is that there is concern about whether the subsistence priority effectively guarantees that people will take fish or game or whether it's supposed to create a reasonable opportunity. State law now has a provision that says you get a reasonable opportunity and it's not a guarantee. The provision on page 5 is a change in the current State definition of reasonable opportunity. A proposed amendment to ANILCA is to put that concept in ANILCA. The last draft did not have "consistent with customary and traditional use" and this one does. The intent was to pick up what people thought was the intent of ANILCA. Number 1925 CHAIRMAN HALFORD asked how this affected the Bobby Case. MR. MASON explained that in that Case the Board of Game determined that certain game had been customarily and traditionally harvested for subsistence purposes, but it did not create a subsistence opportunity for taking that game. When the federal court got the case, it said it would like to follow the determination of the State Board of Game, and was willing to do so, but the Board had made no factual findings and had no evidentiary record to support its decision. He thought the Bobby Case was no more than a court interpreting an agency decision with an inadequate record. Some people read Bobby as establishing the proposition that a subsistence priority includes the right to hunt without seasons and bag limits; and it just does not mean that. CHAIRMAN HALFORD asked what the current moose seasons were around Lime Village. He thought they were wide open - under State regulations, specifically under the Bobby Case. If the Bobby Case is reversed, he didn't think they could tell rural communities there were no net-loss definitions, because there's clearly a difference. The same goes for the Peratrovich case. MR. MASON said from a legal perspective that it's not required if it conflicts with sustained yield. Number 2333 CHAIRMAN HALFORD said the precedent that's argued from that case is that you can in no way restrict subsistence taking until you have eliminated all other taking and to avoid the elimination of all other taking in that particular case under the jurisdiction of that particular judge, they took out all the restrictions on subsistence taking. Number 2406 SENATOR MACKIE asked if it was the intent of the Task Force to overturn the Bobby Case. MR. MASON replied that it was never discussed in those words. He thought the intent was to further clarify what is and is not allowed. CHAIRMAN HALFORD noted that he had the federal season before him and it was July 1 through June 30 with no individual limit. He said that the State actually did it first, before the federal take- over. MR. MASON said he didn't know why the State would do that. He reiterated that there were no express words to reverse the Bobby Case. Number 2521 CHAIRMAN HALFORD asked in defining reasonable opportunity that goes back to terminology used in the Bobby Case, that it does, in fact, reverse the Bobby Case. MR. MASON replied that he just didn't know. SENATOR TAYLOR said he understood that sustained yield was only used in State law and under ANILCA we would be held to a liability standard. He asked if that was another amendment to ANILCA. MR. MASON replied there was no amendment to ANILCA like that. It says "consistent with sound management principles and the conservation of healthy populations of fish and wildlife" which is essentially a conservation-driven standard. He said that you have to understand the "lands" includes water and though it is used in Title 8 of ANILCA, it is not defined there, but is defined in Title 1 of ANILCA. The proposal reproduced that definition from Title 1. People wanted to be sure that the term "federal land" did not include State land or private land so that the proposed amendment to ANILCA doesn't actually change ANILCA. The proposal simply amalgamates pieces of the definition that show up in a number of places. This debate is driven by the Katie John decision and the fact that land includes water and does it include reserved water rights also. The Task Force considered, but did not intend, to try to overturn the Katie John Case. The reason is if the State is managing, Katie John doesn't make any difference because. SENATOR TAYLOR asked if there was any attempt to overturn the Babbit Case. MR. MASON replied no, that was not discussed. SENATOR TAYLOR asked if we were truly trying to take over management, why would leave the federal government with the regulatory authority. MR. MASON said there was an important change on page 25. Any time that the State is managing, it makes the regulations to implement the rural priority on federal and in case that's not clear, it says that any time the State does comply with 805, the Secretary shall not make and enforce any regulations implementing the federal subsistence priority. The intent of this was to make a very clean break and to clearly authorize the State to make subsistence regulations for both federal and State land and to deprive the Secretary, at the time the State was the authority to do that. In the State management scheme there are some changes made in the ANILCA management scheme. So pages 10 - 14 are the amendments to ANILCA that are necessary to accommodate the State management scheme. Number 3627 SENATOR LINCOLN noted that the council in the proposal was to be advisory and asked if these provisions would weaken the provisions in ANILCA as to whether the councils are advisory or policy-making. MR. MASON said he couldn't answer that because the answer depends on your point of view of the problem. The federal system is in many respects a fragile system because it is done by regulation which is implemented by political appointees. The proposal is a much more State-driven system. So weakness is in the eye of the beholder. MR. MASON said there are two things on page 17 that relate to the Babbit Case. The notion is that if the State passes the State statutory limits and those are enabled by constitutional amendments, the State immediately regains management authority. TAPE 97-37, SIDE A Number 001 He said that under present federal law the Secretary of the Interior believes that he has the authority to declare the State out of compliance with ANILCA. This takes away that power and gives it to a court. Whether the Secretary really has that power today is also a question that this would clarify. However, the Secretary of Interior could sue to find the State out of compliance. SENATOR TAYLOR commented that he thought one of the goals was to ensure State management and to eliminate federal oversight. MR. MASON agreed. SENATOR TAYLOR said they needed to keep in mind that an aggrieved party who believes the State regulation is in violation of their understanding of ANILCA would first probably go to State court and then end up in a federal court where a federal judge would interpret it. MR. MASON responded that Judge Holland said in the Bobby Case the standard he would apply is arbitrary, capricious, or an abuse of discretion. That case went against the State because the Board had no factual findings. That standard is now incorporated in 807; so the ability of the federal judge to just free-lance is limited. More importantly, there is the addition of the requirement that the federal judge give the same deference to the State agency as they would to a federal agency of the same sort. This means primarily the extent to which you will defer to the State agency interpretation of federal law. Agencies do interpret federal law up to a point if it is a statute that they are charged with administering and knowing the interpretive meaning. This simply acknowledges what many people felt about ANILCA in the first place - that the State would be managing. And this implements that intent. He said this does not take away the ability of an aggrieved party to go to federal court. MR. MASON said that issues of sovereignty was a big topic and it was decided early to be neutral on those and that's what the neutrality clauses say. A technique that has been used in federal law before is that the fact of these changes can not be used to argue for or against Indian country or sovereignty. These issues are before the court now and there is an argument about whether ANILCA, Title 8, is Indian law and that is significant because if a statute is Indian law or remedial Indian legislation, any ambiguities in it are resolved in favor of the Indians who are the beneficiaries of the statute. There was a Supreme Court case years ago involving AMOCO Oil Company that said ANILCA Title 8 is Indian law. That case was overturned by the Supreme Court and vacated without ruling on that issue. Later three associate solicitors for the Interior Department wrote and opinion that said that ANILCA Title 8 is Indian law citing that Supreme Court case. That opinion was never adopted, so it is simply that - an opinion. The Justice Department has the final say in litigation about the position the Interior Department will take and it has taken the position that Title 8 is not Indian law. Number 1235 CHAIRMAN HALFORD said reference to tribal recommendations for appointment may be the only provision in all of ANILCA that makes a specific definitional difference between rural residents and as such may be problematic. MR. MASON explained that provision was added in response to comments from some groups of people that the committee is aware of. SENATOR TAYLOR asked if the neutrality provision he was discussing had new language. MR. MASON said he didn't think it had changed at all. He noted the next change from the last draft was on page 25. CHAIRMAN HALFORD announced a 15-minute break. Number 1507 REPRESENTATIVE AL KOOKESH said the AFN had not seen the final Task Force document. He said he appreciated having the hearing on the issue. He said ANILCA extinguished aboriginal hunting and fishing rights, but did not immediately replace such right to statutory protection of native subsistence practices. In the rush to open land for the pipeline, Congress was given the authority to take any action necessary to protect the subsistence needs of natives. ANILCA was enacted in recognition of the fact that the Secretary and the State had failed. REPRESENTATIVE KOOKESH from written testimony cited alleged actions taken by the State contrary to subsistence priority. He said in 1980 Congress enacted a rural preference including rural non- natives and excluded non-rural natives. Their prime motive was to protect the subsistence way of life in native village and federal courts ruled in 1984 that Title 8 was Indian Law. Concern for native villages is also why Title 8 rural preference is based on customary and traditional harvest and use patterns established over time. Native people were disappointed by the 1980 exclusion of non-rural natives from the preference, particularly those who lived in historically rural native places, that through no fault of their own had been swallowed up by non-native majorities and were now defined as urban. The State of Alaska regulatory bodies were dominated by commercial interests and refused to regulate in a way consistent with customary and traditional subsistence practices. The State never fully funded or empowered the regional subsistence councils required by federal law. In 1989 the Alaska Supreme Court threw the rural preference out in the McDowell Case. For the next eight years the State legislature has refused to allow the voters to consider a constitutional amendment. The Native Subsistence Summit recommend the following changes to the Task Force proposal: The Task Force rural preference must include better protection for non-rural natives, particularly those of formerly rural native communities that have been or could be pulled out of the preference by non-native population growth or socio-economic change. The optimal solution would be a native or tribal preference or a rural plus preference that would include all rural residents plus all non-rural natives. Such options would also protect natives who have voluntarily moved from villages to urban centers. At a minimum formerly rural native communities must get full protection of statutory preference and be allowed to practice subsistence in their local, customary and traditional use areas. The inclusion of proxy hunting and fishing opportunities for people who voluntarily moved to urban ares and periodically return to their home and educational permits at the discretion of the State Boards are inadequate. Customary and traditional as defined by the federal subsistence board and the Summit unanimously supported ANILCA's present requirement that subsistence regulations mirror local, customary, and traditional patterns with no statutory definition. None of their regional caucuses supported the Task Force definition. Eleven of the 12 caucuses supported the present federal requirement that subsistence regulations accurately mirror local, customary and traditional practices. No caucus supported reasonable opportunity in the Task Force proposal. ANILCA does not define customary trade, but allows the federal courts to adjudicate individual cases of possible abuse. The Task Force proposal leaves most of the discretion to State Boards and no caucus supported that. The Task Force proposal has a list of five protected uses which is the same as in ANILCA now. State law has the same list and adds uses for potlatches. The Task Force requires that at Tier II the Boards must eliminate all customary and traditional uses other than food. The Summit recommended cultural and religious uses be added to the list of five and the Tier II limitation be dropped. The Summit unanimously agreed on the need for comprehensive reform of the State's regulatory and management systems and endorsed the Federal Regional Subsistence Council. The caucus also requested significant reform of the State Boards proposing a restructuring of the Board, the use of a Subsistence Board, and regional councils as regional regulatory boards. AFN recommends that a Task Force strengthen its proposal by adding such reforms to create a level playing field for subsistence users. All 12 caucuses insisted on inclusion of co-management as an essential element of any subsistence management system. AFN recommends that when the State fails to comply with ANILCA now and in the future, federal jurisdiction would include all public lands including the maximum extent of reserved, navigable waters as currently being provided in federal law, all selected, but unconveyed laws under the Statehood Act and ANCSA, by act of Congress, and federal extraterritorial authority to impact regulatory decisions on State and private lands when necessary to provide for subsistence hunting or fishing on federal lands and waters by action of the federal agencies. REPRESENTATIVE KOOKESH said that all caucuses agreed that no changes should be made to ANILCA which reduce the power of federal courts and agencies to enforce the statute. Federal law and oversight are the only reason why native subsistence practices survive in the present day. AFN recommends dropping the limitation of the federal courts to arbitrary, capricious, and abuse of discretion and the requirement of deference to State court decisions and elimination of Secretarial authority when the State is in compliance. The caucus recommended mandatory language "the legislature shall." Seven caucuses opposed any amendments to Title 8's current provisions. Three favored amendments that strengthened current federal protections. One caucus supported an amendment to recognize tribal subsistence rights. No caucus supported the weakened amendments proposed in the Task Force draft. All caucuses supported the position that federal and State laws must recognize and permit a subsistence defense in court. REPRESENTATIVE KOOKESH cautioned the committee that all caucuses reiterated their strenuous opposition of the native community to any attempt to operate a subsistence preference by means of individualized needs-based permitting. Basing subsistence on a lack of cash would turn it into a welfare program. He said the Subsistence Summit adopted a general resolution in appreciation of everyone's efforts on this issue and stated their willingness to use all their energy to resolve this problem. Number 324 SENATOR LINCOLN asked if he supported the legislative permissiveness of using "may" and using place of residence. REPRESENTATIVE KOOKESH responded that the AFN hadn't taken a position on that issue. SENATOR LINCOLN said the Senate President had been quoted as saying he needed the native support in order to go forward with this and asked if native people are keeping the legislature from going forward with a constitutional amendment. REPRESENTATIVE KOOKESH replied that he didn't think native people were holding any group back and they think this is an Alaskan problem, not a native problem and they are only 16% of the population. So if the majority wanted to do something without their blessing, they could. CHAIRMAN HALFORD said one of the considerations for potential change of direction was that the preference be a local preference versus urban preference. REPRESENTATIVE KOOKESH replied that in 1971 there was a native preference before ANCSA was passed. It was changed to a rural preference with everyone agreeing because that's the only way it could go forward. The question of local preference is just in the definition. There are some groups in his organization that want a native preference, but they support a rural preference because it takes care of most of the people of this State. He does not have a definition for local preference. Number 3827 CHAIRMAN HALFORD said he brought up the issue because he didn't think it was the original intention for someone from the Alaska Peninsula to be able to hunt in the Nelchina caribou herd 500 miles away. REPRESENTATIVE KOOKESH said he didn't think they would come up with a perfect document, but they should get as close as perfect as they can. SENATOR MACKIE said a solution might involve some changes to ANILCA as part of a package to try to address the diversity in the State and asked if he thought AFN would be willing to come to the table with the different interest groups to try to formulate a resolution that might include some changes to ANILCA. REPRESENTATIVE KOOKESH answered that they are reasonable people and want to sit down and be reasonable. This document is only recommendations and to be considered in the same light as the Governor's Task Force recommendations. Number 4145 CHAIRMAN HALFORD referenced the previous (second) draft and asked which proposals he supported. REPRESENTATIVE KOOKESH replied that they didn't want to shoot anyone's proposal out of the water, but they wanted to have a native position. SENATOR PEARCE asked what he meant by co-management. REPRESENTATIVE KOOKESH explained that there are areas that want to work with the State in an equal partnership. TAPE 97-37, SIDE B WAS NOT RECORDED TAPE 97-38, SIDE A SENATOR WARD asked if his proposals had been submitted to the Governor's Task Force. REPRESENTATIVE KOOKESH said that was correct, but he didn't know if they accepted any of them. SENATOR WARD asked if he stated native people were "gobbled up by other populations" they still wanted a priority for subsistence. REPRESENTATIVE KOOKESH said that if Saxman is considered urban, they would like them to be considered rural. Number 258 SENATOR LEMAN asked if he expected rejection of the most recent proposal of the Task Force by the AFN. REPRESENTATIVE KOOKESH said he didn't want to comment on the proposal, but he thought that they should go forward and work on solving the problem. SENATOR LINCOLN said she didn't know how the bush voice was going to be heard if they were going to hold hearings in the four scheduled in urban areas. REPRESENTATIVE KOOKESH responded that AFN said they would come together with anyone to try and resolve this Alaskan issue and he pointed out that there are more non-natives that live in rural Alaska than natives. So the problem will be solved for them as well. SENATOR TAYLOR said he believed subsistence was a universal human right and asked if they both agree it is a fundamental right, who are they asking him to exclude from that universal human right. REPRESENTATIVE KOOKESH replied in times of shortage only those who live in urban areas. He elaborated that there are many existing exclusions like limited entry and the longevity bonus. He said the scary thing about federal law is that they are allowed to discriminate by basis of race in their constitution. His concern is that there are people who are becoming very comfortable with that federal law. SENATOR TAYLOR said he had difficulty understanding how he could exclude this universal human right from 60% of the qualified native population (what the federal law does currently), because he believed that there was a cultural imperative out there that needed to be addressed. REPRESENTATIVE KOOKESH said the people of Alaska could vote on the issue as a constitutional amendment. SENATOR TAYLOR said if the constitutional amendment does exactly the same thing that the federal law does, the same people will be excluded on the very same basis. REPRESENTATIVE KOOKESH said Alaska is the only state that recognizes subsistence as a use. SENATOR TAYLOR said he also thought they both had concerns with the equal protection clause and that it not be based upon a racial definition. MR. BYRON MALLOTT, Executive Director, Alaska Permanent Fund Corporation and member of the Subsistence Task Force, joined the committee. SENATOR TAYLOR asked if the Task Force had voted on each of the proposals as amendments. MR. MALLOTT said they had adopted the package in a series of meetings which included recommendations made by the AFN, AITC, and several other organizations. When they began developing this proposal it was intended to be presented to the legislature. They did not think it would be the only proposal under consideration. They heard two weeks ago that this hearing would focus only on the Task Force proposal. They, therefore, expedited their process so they could have a work product. He acknowledged there were substantive changes and he would be glad to answer their questions about them. Number 1906 SENATOR LINCOLN asked if all seven members voted unanimously on this proposal. MR. MALLOTT replied yes and explained that the ANILCA amendments had been forwarded to the congressional delegation for their review. Copies of the proposed constitutional amendment and the statutory changes were sent to the State. Regarding the local issue, he referred the committee to page 42 of the proposal. He noted that former Governor Jay Hammond had raised this issue repeatedly and said because of the McDowell decision all references to local as places of residence have been stricken out of the State regulatory scheme. The words on page 42 make it clear that to be eligible to take fish or wildlife in a rural community or area a person must be a resident domiciled in that area. Number 2253 SENATOR LINCOLN asked if this is a final proposal from the Task Force and that it is now up to this body to consider all the proposals. MR. MALLOTT replied that they were done with the development of the proposal and added that they were an ad hoc group. The members have said they would be available to for purposes like this. Number 2548 SENATOR SHARP asked about subsistence qualified people taking game in a subsistence area and shipping it to family members in a non- subsistence area. MR. MALLOTT replied they did not deal with that in the context of a qualified rural subsistence user taking a subsistence resource and restricting where that resource might ultimately be used. With respect to the proxy-hunting section where a person from an urban area can go to a subsistence area and on behalf of a qualified subsistence person, they have required that the majority of that resource stay in the area where it was taken. Number 2817 SENATOR MACKIE asked him to explain why they think a constitutional amendment by itself would not solve the problem and why changes to ANILCA won't happen alone, and why it was necessary to package a deal. MR. MALLOTT said that other paths had already been tried and early on they had discussion with the Department of Interior and our congressional delegation on these specific questions. They were told in an unqualified way that they would not be able to amend ANILCA in ways that fundamentally disturb the present scheme. They were told if they want to amend ANILCA to reduce the possibility of continuing litigation that congress could be responsive to that. If they wanted to create definitions in ANILCA that had plagued the implementation of the rural subsistence priority, they would be considered. Hearing all those things, it became clear to them that a constitutional amendment would be necessary. Getting State management of all of its lands back without any further encroachment of federal management and to recognize the importance of subsistence to Alaskans through minimal changes in each area were the two motivating forces behind the Task Force, Mr. Mallott said. SENATOR WARD asked if the Task Force ever discussed possibilities of litigation in the U.S. Supreme Court. MR. MALLOTT replied that they looked at all of the litigation before and after the McDowell litigation and that is why the Task Force formulated their proposal - to avoid federal litigation as much as possible. Number 3718 SENATOR TAYLOR asked who told them they could not amend ANILCA. MR. MALLOTT replied that it was the product of several discussions, both with the congressional delegation and the Secretary (in Fairbanks this summer). He explained that the notion of amending ANILCA and the direct response of no had to do with changing the fundamental rural priority. SENATOR TAYLOR asked if it also had to do with returning full fish and game management to the State of Alaska without federal oversight. MR. MALLOTT replied that the administration and the congressional delegation didn't say it couldn't be achieved; they said it would become a divisive battle. SENATOR TAYLOR said he heard that the Secretary of Interior stated that any substantive change to ANILCA would be met with a presidential veto. MR. MALLOTT said he didn't recall that language. He recalled that the Secretary said he felt very strongly that he had a special trust relationship with Alaskan natives and he took that very seriously and a subsistence priority for both natives and non- natives would require him to consider that very seriously. So they took it to understand that would be a veto. SENATOR TAYLOR asked if he thought this was as close as they could come to compliance with the federal law. MR. MALLOTT replied yes; they have clarified definitions that were sticking points - clarified judicial oversight, clarified the direct role of the Secretary during State management; and in the State system they have created the clarity that did not exist before. SENATOR WARD asked if someone goes to Fairbanks from Minto, how many days can they stay before they are no longer rural residents. MR. MALLOTT said he didn't know and that they had only looked at it in the reverse. MR. MASON returned to testify again and added that Lime Village has a 25 day season with a one-bull limit to Tier II. He also added that the State has no right to sue the federal government in the U.S. Supreme Court. On whether the ANILCA amendments are possible, he understands that the sorts of amendments proposed here are not the kind that would be blocked by presidential veto. MR. MASON said the management provisions are pages 35 - 40. Then he suggested starting on page 28. The changes there are simply mechanical to defining non-subsistence areas using the same basic language to create a process for defining subsistence areas and then implementing the rural priority. CHAIRMAN HALFORD asked if every area classified as rural became a subsistence area even if they currently don't have a subsistence determination. MR. MASON replied that he understood that there are some that would be classified that way, but because they currently have no subsistence use, they have no subsistence priority under State law. However, they are eligible for it. MR. MASON said term "wildlife" was changed to "game." TAPE 97-38, SIDE B Number 001 CHAIRMAN HALFORD asked if we still have a Tier I and Tier II system. MR. MASON answered yes. CHAIRMAN HALFORD said the difference between Tier I and Tier II in the past was local and if what Mr. Mallott says is correct, it would apply to everything. He asked how that coincided with language on page 42 saying a person must be a resident domiciled in the community or area. He asked if that only applied in Tier II and if they still have Tier II. MR. MASON replied that he just didn't know the answer. CHAIRMAN HALFORD noted that under the old system Tier I was not local-area determined. Tier II was local- area determined. He said if the amendment adopted on page 42 is correct, both would be local area-determined. And yet we still seem to have two tiers. MR. MASON said that provision literally read that the hunter in a rural area had to live there and that's not the intent. This sentence should be read in conjunction with other text. It's possible it needs to be changed, but the intent is to be eligible to take fish or wildlife in a rural community area using a subsistence priority that you got by living there. CHAIRMAN HALFORD said he didn't think that was a bad change. MR. MASON said there are other criteria for Tier II which have to do with availability of other resources and that would still apply. That's the reason you would still have Tier I and Tier II in theory. He didn't know whether there was any practical Tier I and Tier II distinction. MS. MARY PETE, Director, Subsistence Division, added that Tier I referred to Alaskan residents only. You go through a series of steps to determine whether you're providing what's reasonably necessary for subsistence. All uses can be accommodated. In other words there's a harvestable surplus that can accommodate everyone in the State. It doesn't matter where you live. If there's a general hunt in an area, all Alaskan residents qualify. Number 408 CHAIRMAN HALFORD asked if there would still be that priority. MS. PETE replied that a Tier I would concern all Alaskan residents. CHAIRMAN HALFORD said he thought the tier system was created by the Supreme Court for everyone to get into. MS. PETE informed them that Tier I and II existed before McDowell. CHAIRMAN HALFORD said that Tier I didn't include all Alaskan residents; it included all Alaskan rural residents and asked why that was being reversed. MS. PETE said he was correct, but that was not being reversed. She explained that Tier I is for all Alaskan residents even before McDowell. CHAIRMAN HALFORD said that prior to McDowell Tier I was rural residents and the second tier priority was rural residents in the area where they caught the resources. MS. PETE restated that Tier I is Alaska residents. If you have to determine among subsistence uses using rural residency, that's pre- Tier II. It's still within Tier I. CHAIRMAN HALFORD asked if current Alaskan residents who apply for a Tier I permit to hunt Nelchina caribou, if we pass this law, will they be able to apply for a Tier I permit to hunt Nelchina caribou. MS. PETE answered rural residents only. CHAIRMAN HALFORD asked, then, the Fairbanks and Anchorage residents who apply for a Tier I permit for Nelchina caribou will no longer be able to apply for that permit. MS. PETE answered that was correct. Number 617 MR. MASON said that she was describing the season provisions that are already a part of State law. Nothing is changed there. CHAIRMAN HALFORD said it didn't work the same way, because now it only applies to rural residents. Currently, the court says that applies to all Alaskan residents. MR. MASON said he meant the process the Boards go through in determining what's available would work the same. There is no intent to change that. MR. MASON said that page 35 begins the management provisions which create the regional subsistence councils which were in regulations before. It does give them a very strong voice in the management of subsistence. Page 46 has a proxy provision and he said it does accommodate the AFN points. It is meant to accommodate the urban native in conjunction with a provision that appears a little later for educational permits. Provisions from there to the end are definitional changes that he has already talked about. SENATOR TAYLOR said he understood Representative Kookesh said that the majority of people living in rural areas are non-natives and asked if that took care of non-native families who also have family members in Anchorage. MR. MASON said it does. Specifically the Task Force was concerned about the AFN concern with urban natives. SENATOR TAYLOR asked if it took care of urban natives who don't have a family member living in the bush. MR. MASON replied that was correct and said that there was a permit provision for the urban native and educational provision without a priority for subsistence activities. SENATOR LEMAN asked if there was a definition of family. MR. MASON said there is although there might be a glitch because family includes people who are not blood related, but live in the household. He didn't think the Task Force meant to pick up the extended family. The definition is the same as in federal law. MR. DAVID KELLYHOUSE, Wildlife Biologist, started his testimony with a quote from U.S. Supreme Court Justice Scalia in a recent majority opinion. "The federal government may not compel the states to enact or administer a federal regulatory program." This was in Prince and McVie v. U.S. regarding the Brady bill. Nevertheless this is the uncomfortable position the Alaska legislature is placed in now. As a former director of the Wildlife Conservation Division, he urged them to make changes to the Task Force proposal. The changes address racial neutrality throughout, fish and game conservation protections, and some of the practical consequences of the proposal for a constitutional amendment. If there is an amendment, it should provide for a preference rather than a priority and that language would be more consistent with language in ANILCA and our own constitution. It should provide for the consideration of eligibility factors such as personal nutritional need and regional economics in addition to simple rural residency. It should specifically prohibit the consideration of a race either directly or indirectly as a basis for subsistence preference. Under the statutory changes he thought customary and traditional should be deleted from State definitions of reasonable opportunity proposed by the Task Force. Federal Judge Holland in the Bobby Case has ruled that customary and traditional is the standard for providing a subsistence preference and that has been applied by federal and State Boards to mean essentially no seasons, no bag limits or individual harvest reporting requirements. It has lead to instances of localized over-harvests, unacceptable harvesting practices and other abuses. Examples include excessive seasons and harvest of moose and caribou and herd shooting at concentrations of wintering deer from boats in coastal Alaska. Other activities which have characterized either in court or in front of the Board of Game as customary and traditional include jack-lighting deer at night, road hunting, shooting swimming animals, and running animals down with snow machines. It's also been argued that obtaining harvest permits and reporting harvests are not customary and traditional and, therefore, should not be required of subsistence hunters. In his professional experience, seasons, bag limits, restriction of methods and means, and harvest reporting are necessary conservation tools and must not be jeopardized by including the term "customary and traditional" in the definition of what constitutes reasonable opportunity for subsistence taking. In AS16.05.258 the definitions "human consumptive" should be inserted before subsistence use wherever that term is used to clarify that subsistence preference is only for human nutrition and not for dog food or other intangible or lesser uses. The role and composition of the regional subsistence councils are particularly egregious. No new quasi-regulatory bodies are needed and should not have the power to keep regulation proposals generated by the public from being presented to the Boards of Fisheries and Game. Mandating that seven of the 10 members of such councils represent subsistence and tribal counsel interests is grossly unfair and racially discriminatory. If need at all, he suggested naming them the Regional Fish and Game Advisory Councils; their role be limited to resolving and considering inter-regional issues; and their members be the chairmen of all local fish and game advisory committees within each region. Federal funding should pay for all of the cost of these things. MR. KELLYHOUSE also took exception with proxy-taking because the Task Force said they wouldn't put anything on the table that wasn't needed to restore management. The liberalization of proxy should be debated separately. He noted that the rural population would continue to increase and the fish and game resource is finite and he hoped the committee would take all due precautions to ensure that urban and non-rural Alaskans are not ultimately bled-out of our outdoor heritage. MS. CESA SAM, Huslia Tribe, asked Senator Lincoln why she didn't have any hearings in the villages she represents (over 92 villages). CHAIRMAN HALFORD noted that Senator Lincoln had requested hearings and times were being coordinated. Number 1855 MS. SAM said she thought it was very important for the villages to have a say in this issue because they are seriously affected by it. She wanted to know who will decide what the word rural means and she wanted it voted on by all Alaskans. She said her tribe supports tribal co-management because they know their area very well. They are more than willing to work with anyone. Number 2619 MS. PATRICE SALMON, Chalkytsik Tribe, said she didn't understand the response to why they weren't holding hearings in the bush villages. CHAIRMAN HALFORD explained the difficulties of transportation, time constraints, and housing. MS. SALMON said she would like the subsistence management to be done by the local residents in co-management with the State. She increased pressure on our resources from outside hunters hurts the bush villages. She said she hadn't seen the Task Force proposal. MS. MARJORIE ATTLA said her tribe was taught to take care of their stuff and if they work together and hand it down to generations it would be good for the resources. She said she hadn't seen the Task Force proposal. She asked why they were not having hearings in the villages. She wanted to see Alaskan residents decide on which preference they were going to use. She pointed out that they are asking for only 4% of the resources and only to feed their families. MR. PATRICK SAYLOR, Healy Lake, said they don't have salmon up in his area and are basically big game hunters in the upper Tanana which means they have to hunt all year round and when they kill, they use all of it. Hunters are getting to be fewer because they are getting older and a lot of them are getting game violations which makes them a felon which means they can't get regular jobs like anyone else. They are just trying to feed their families. This is wrong. He asked who was going to take care of a hunter's family while he is in jail for 10 days for a game violation. He said his village had many years of consistent use of game. He also noted that as a rite of passage a young person has to hunt and when he kills something, he gives it to the whole community. This is a religious belief. MS. MILLY BERGMAN, Allakaket Village, said the subsistence proposal would have a deadly impact on the very core of their traditional native life style. She asked them who gave them the right to make decisions about their lifestyle which they have practiced for centuries. She said they did not take them into consideration in the proposal. SENATOR LINCOLN explained that subsistence is not food, but a lifestyle and asked her to explain the lifestyle. MS. BERGMAN said her grandma would say if she put food before her and it was beef, "What the heck is this?" and she wouldn't want it. She would not eat it ever. You cannot change an old person. She needs game, fish, rabbit, beaver, etc. TAPE 97-39, SIDE A Number 001 MR. BENEDICT JONES, Koyukuk Native Tribal Council, stated he has been a subsistence user all of his life. He said the Native people have traditionally been living a subsistence lifestyle since before statehood and before the Russians ever claimed Alaska. He said subsistence users not only hunt game and fish, they also use edible plants. He voiced his support for the Alaska Federation of Natives' position on subsistence, which, he said, is much the same as the Governor's Task Force proposal. Number 435 MR. GERALD WALKER of Holy Cross stated they have been having a lot of trouble with trophy hunters coming into their area, Game Management Unit 21-E, which is a controlled area. Over the past three to four years numerous calls have been made to the Alaska Department of Fish and Game about these violations, but the department says they don't have the airplanes or personnel to police that area. He said his people don't mind subsistence hunters coming into Unit 21-E, but there have been too many times when hunters have come in just for the racks and maybe just a little bit of meat. He asserted this problem is making people lean more towards federal control because the feds at least answer the phone and talk to them, even though there is nothing they can do because this is happening on state land. Number 740 MR. GERALD OLDMAN, Hughes Village Council, also spoke of concerns with big games hunters and the impact they will have on moose breeding stocks in years to come. He would like to see the moose population in his area continue for generations to come. Number 949 MR. RANDY MAYO, First Chief, Stevens Village Tribal Government, said they can in no way accept a proposal, be it State or federal, that would compromise the federal trust responsibility to them through the treaties and agreements that were made. He stated his people view the federal government as the lesser of the two evils. Their village is located near the North Slope haul road and they have seen firsthand the lack of response from the Department of Fish and Game and the State Troopers, and he questioned how the agencies responsible for these areas can get out and patrol them if their budgets keep getting cut. MR. MAYO also pointed out there are weaknesses in the Alaska National Interest Lands Conservation Act (ANILCA) relating to rural preference because there is no mention of tribal governments or tribal areas. He also said the Alaska Native Claims Settlement Act (ANCSA) was the worst legislation for the tribal governments because it did away with a lot of their rights and they lost 80 percent of their land because of it. He concluded that a lot of deficiencies with the current system is the lack of the tribal governmental hand in the decision and policy making in co- management scenarios. Number 1633 MR. VERNON JOSEPH, born in Tanana, but a resident of Fairbanks since 1985, said he is raising his five children as close to traditional and cultural respectfulness to their people as he can. This is hard to do living in an area where cultural awareness, in a Native sense, is viewed as not appropriate, but he still has to maintain an obligation to a sense of moral, spiritual and emotional well being to his children, to teach them in a way that is going to be conducive for them to get along in a world that doesn't teach them that. He noted the large influx of hunters coming in from the Anchorage area with air boats and four wheelers to hunt for moose and bear. This affects people like himself in the Fairbanks area who have to hunt in order to feed their families because they don't have the necessities to do that. MR. JOSEPH said he does not believe the Governor's Task Force proposal is really sensitive to Natives or non-Natives, instead it has turned into more of a political deal than a human aspect as it should be. He said no matter which way this goes he is going to hunt, even if he has to go to jail because he knows his relatives will take care of his children. Number 2240 MR. ROGER NICHOLAS, representing the village of Kaltag, said the Alaska Constitution will be amended to permit, but not require Alaska legislation to grant a subsistence priority based on place of residence. He pointed out that part of his extended family comes from Unalakleet, which is an Eskimo area across on the coast. They get seal oil from there and trade Native foods back and forth, but he has heard that they will not be able to ship Native food from one place to another. He said that is like giving everyone a Jewish yellow star and telling them that they are going to live here, but they are not going to be able to eat their Native foods anymore. Responding to the earlier question on whether he believes in the package proposal before the committee, he said he can't do it without the majority opinion of the residents of Kaltag. However, his own opinion is that he disagrees with it. Number 2717 MS. ANNA PICKETT, Fairbanks, said her mother is from Nome and Koyuk and her father is from Tanana and Unalakleet. She said the subsistence issue is about human rights; it's not just subsistence. She does not live a subsistence lifestyle because of the way she was raised, but she does know what subsistence is. She said it is a matter of sharing, bonding, getting along together and survival. It is not just food. It is a lifestyle passed on from generation to generation, and while she agrees that management belongs within the State of Alaska, she would just as soon have federal management if the State continues to squander away the Alaska Native peoples' rights. She said if the state would give consideration to co-equal management with the very people who know the land, know the resources, the State may find that the resources would grow. MS. PICKETT also expressed concern that hearings on the subsistence issue are not being held in the rural areas of the state. Number 3647 SENATOR TAYLOR asked Ms. Pickett if she was in support of the Governor's Task Force proposal, and MS. PICKETT responded that she does not support it as it is currently presented. She suggested there could be some changes made such as "permitting" versus "shall" in the state constitutional amendment. Number 3759 MR. GIDEON JAMES of Arctic Village said each area of occupancy for subsistence use has been in existence for many generations of Native people, and it has always provided a way of life for each community in rural Alaska. He said the state of Alaska and the Legislature need to understand that this existence or way of life in the rural areas is where Alaska Natives raise their families, and it is a continuous life cycle. He estimated it is somewhere around only two percent of the game resource in Alaska that is being addressed here, and he believes that the Alaska Natives have done no harm to the game resource and have used it wisely. He said that instead of attacking their way of life, the State needs to control the existence of uncontrolled hunting in many areas of Alaska. MR. JAMES said he strongly recommends that Alaska Natives fully support the principle adopted at the AFN's subsistence summit. He also suggested subsistence task force meetings need to be held in the villages because a lot of times laws are passed with very little input from the people who will be impacted the most by its passage, as well as the need to explain these proposals to the elders in the villages. TAPE 97-39, SIDE B MS. ANNIE JAMES, the teenage daughter of Gideon James now living in Fairbanks, said as she understands this issue, they want to take her culture away. She lived in Arctic Village most of her life and moving into the city was very hard because the lifestyle is so different. She loves the subsistence lifestyle and it will be hard for her if she can't live that way anymore. Number 042 SENATOR TAYLOR asked Ms. James who is she being told is trying to take that lifestyle away from her. MS. JAMES responded that is how it sounds to her. SENATOR TAYLOR said he keeps hearing the phrase "They want to take away our lifestyle," but he doesn't know who "they" is. GIDEON JAMES interjected that he believes it is him. SENATOR TAYLOR asked Mr. James if he supports the Governor's Task Force proposal. MR. JAMES answered that he doesn't support it because he has not seen it. He added that a lot of the time these task forces meet secretly and don't talk to the people, so by the time they have designed something it is too late for the people to do anything about it. Number 343 WALTER FLITT of Fort Yukon said for his people subsistence has been and will continue to be their way of life. His concern is that planning is being done on his way of life without his input. He believes the solution to this issue is to work together on a rural preference in a constitutional amendment and to let the people vote on it. Until this happens, he is inclined to go with the federal management. He added that he hasn't heard anyone address the possibility of extending the moratorium, which he is against because the State has had 16 years to address the subsistence issue. Number 547 TOM SCARBOROUGH of Fairbanks said the real issue is not about subsistence, instead there is another agenda entirely behind all of this. He said he feels sad that the people addressing the committee believe that their subsistence lifestyle is going to be taken away from them, but that is not the issue and no matter what the outcome of this, their lifestyle is going to stay the same. He said he can't name one non-Native group that has come forward in support of the Governor's proposal. He said the Alaska Constitution will not allow the Legislature to put into effect the statutes that are being proposed. He believes the proposal is a delaying tactic and a giant con job. It is an attempt to violate one of the most basic principles that this nation is founded upon, which is equality, and Alaska's people are not going to allow this attempt to set up an apartheid system of discrimination between rural and urban, which will come forward if this issue is put on the ballot. SENATOR LINCOLN asked Mr. Scarborough what the agenda is about if it is not about subsistence. MR. SCARBOROUGH responded that the issue is who is going to manage Alaska in the future: is it going to be managed under the federal government and the east coast elitists that dictate that, or is it going to be managed as a state on an equal footing with the rest of the states. SENATOR LINCOLN also asked if he views the 56 page document as the governor's document or the task force's document. MR. SCARBOROUGH answered that he thinks it is a document that was probably put together behind the scenes by Senator Stevens and forwarded to the task force. Number 1233 MR. GABE SAM of Fairbanks testifying on behalf of the Tanana Chiefs Conference (TCC) stated their support for the seven guiding principles in a resolution adopted by the Native Subsistence Summit during their August summit. Those principles are: (1) Full participation and consent of Alaska Native communities including hearings in the region; (2) A subsistence priority based on Alaska Native community religious, spiritual, nutritional, medicinal and cultural practices rather than on an individual needs basis; (3) Only amendments which enhance subsistence rights, maintain federal oversight, at least to its current level; (4) Co-management including state, federal, tribal and co-equal involvement; (5) Full recognition of customary, traditional uses including religious, spiritual and ceremonial; (6) Effective, comprehensive reform of the state management system; and (7) Recognition that subsistence is a basic human right. Mr. Sam questioned if the Native Summit's proposal and guiding principles will be incorporated into the governor's final plan, and he pointed out there was not strong Native involvement on the task force nor has Native input been actively solicited. He stressed the need to talk and listen to the Native communities because they are well informed on subsistence. He said the governor's proposal fails to recognize either a Native subsistence priority or a tribal right to co-manage. Number 2203 MS. CLARA JOSEPH, representing the Beaver Village Council, stated all of the people in her village have lived a subsistence lifestyle for many seasons for fish and game, in fact, they are busy hunting and gathering right now. She said she knows that if people in her village could testify they would say the "higher ups" don't know anything about their way of life and some of them are not too concerned about their village and their future. Number 2402 MR. DAVID JAMES of Fort Yukon, speaking on behalf of the Gwich'in' people, stated his people do not support the Governor's Task Force proposal. It does not recognize tribal government authority; it only makes reference to tribal councils or organizations or corporations, which, he said, do not have tribal authority. He said the same secretive process that was used when the Alaska Constitution was written without any input from the tribal people is being used in putting together the governor's proposal on subsistence. MR. JAMES stated there is nothing wrong with ANCSA and ANILCA and they should be left as they are. He also noted that the tribal government in the Yukon Flats is moving toward a co-management agreement with federal managers and with the State in order to maintain the fish and wildlife and other natural resources. Number 2955 MR. CURTIS TINDELL of Fairbanks said he attended the Native Subsistence Summit, but he does not think there was a Native consensus, that it was more of a Native compromise. He said this is a very emotional issue and it took him several days after the summit to get back to normal. He went to the summit with a pro- federal stance and he thought all the Native people there would have the same stance, but he heard a lot of pro-State management and a willingness to work with the State. However, now he sees it shifting back to a more pro-federal stance. He said the Native people want to be able to co-manage and have a strong equal voice in the management of the fish and game. He also stressed the importance of legislators going to the villages so that they will have a better understanding of the Native people and their lifestyle. MR. BYRON HALEY of Fairbanks stated the Alaska Constitution gives every resident an equal right to fish and game and other renewable resources by the common use clause in it, and he strongly rejects any change to the constitution by adding the word "rural" to it. He questioned why the subsistence task force hearings were held when the consumptive users of moose were in the field hunting for their winter meat. He said it seems like they did not want to hear from urban consumptive users or sport hunters. He stated he does not support the subsistence task force proposal or recommendations on subsistence, but he strongly supports a statement on the subsistence issue prepared by the Alaska Outdoor Council. He concluded subsistence needs, if any, should be a preference not a priority. Number 3756 DICK BISHOP of Fairbanks, representing the Alaska Outdoor Council, stated the council does not support the task force report, as written, and suggested that it needs substantial revision. He said they thoroughly agree with the statement that subsistence is a basic human right and the Alaska Supreme Court made that point eight years ago in the McDowell Case when is said subsistence is an important value running to every Alaskan, too important to discriminate on the basis of zip code. One Justice said that this was an equal protection case and an ease one at that. The Alaska Outdoor Council has repeatedly stated that subsistence uses and lifestyles are integral values of Alaska and Alaskans, but a law saying that no one but those of an arbitrary closed class group can hope to qualify for those important value or for those basic human rights is wrong. MR. BISHOP said this is a civil rights issue; it's not about who or culture. It's about whether the law of the land, State or federal, should continue to ratify discrimination against a majority of Alaskans and against a majority of Americans regarding the use of fish and game and other natural resources. He thought Secretary of Interior Babbit was blowing smoke when he said they couldn't do anything about it. He said he would like to hear Senator Stephens say to Congress that the opportunity to pursue subsistence should not be discriminated on the basis of zip code. He thought Congress would listen. The Governor's Task Force proposal ignores the premise that subsistence is a basic human right. It says it's a basic human right only for a privileged few. It attempts to make a rural priority palatable by some much needed tightening up, but it begs the Alaska public and legislature to vote for discrimination and against equal protection before the law. MR. BISHOP said they think it is possible to adequately accommodate the needs of people who rely on personal consumptive uses of fish and wildlife for their livelihoods and lifestyles without compromising the common use and equal protection provisions of Alaska's constitution. We have suffered through 20 years of bad political compromise on subsistence. Adding one more will only make matters worse. The ball is in the legislature's court and someone must stand up for the values and rights of all Alaskans and the use of our common property fish and game resources or our congressional delegation will keep dodging the issue. There is no difference in long term results voluntarily buying into the federal law or having it stuffed down our throats. The last time Alaska agreed with a hasty political compromise on subsistence we got into this mess and it's time to get out. SENATOR LINCOLN asked if they had reviewed the amended Task Force proposal to make their recommendation and asked how he defined subsistence. She then asked what he thought was the right direction. MR. BISH0P said he received a copy of the revised version a short while ago and had looked at the changes that were made, but the basic problem with the proposal is that it starts from a flawed position because it does not recognize what the native subsistence summit stated which is that subsistence is a basic human right. However, they went on to recommend discrimination against some humans for a basic human right which is illogical and unfair. He recommended that they should start with the fact that subsistence is a basic human right and that all people are equally entitled to qualify for that right and go from there. This is the thrust that our constitution gives. SENATOR TAYLOR asked if he knew of anyone in the State who has been prevented from practicing or participating in a subsistence lifestyle if they wish to do so. TAPE 97-40, SIDE A Number 001 MR. BISHOP said some people who may in fact rely just as heavily on those resources for a better lifestyle, as rural people do, are being precluded from hunting in some areas. CHAIRMAN HALFORD said they would have to put that back in context and said in real hard-core subsistence areas in western Alaska where it is illegal to harvest waterfowl that no one would be convicted because they need something to stay alive. MR. BISHOP said there is a law that says if you need food to survive, it's legal to take it. However, in many cases what is being taken is so-called customary and traditional take. It's not even a matter of adequate nutrition, just preference. MR. JOHN COADY, Division of Wildlife Conservation, said he is speaking not for the Department, but as a department biologist. He is deeply committed to State management of our wildlife resources. He said it's obvious that centralized management by the Department without public participation is not longer effective. In his areas the Department has never had a better understanding of our wildlife resources than they do now. They have worked to earn the trust and confidence of all Alaskan hunters. Their attributes of assessing populations, resources use patterns, recommending harvest levels to the Boards, and providing public services have never been attributable to any other wildlife organization. Dual management bears a high cost to the State. It insures continued conflict with federal managers and continued risk to wildlife resources because of unfortunate decisions by the federal subsistence board, it insure continued confusion and frustration among all hunters caused by two overlapping often conflicting regulatory systems, and it insures continued loss of hunting opportunity for urban hunters as areas are closed to non-local residents whether it is necessary or not. He thought it also brought an uncertain commitment to subsistence hunters by the federal government as national constituencies exert greater influence on management decisions in Alaska. Dual management will result in continued erosion of Alaska's responsibility and management authority and more polarization among stake-holders. No action by the State is a melt-down position. He thought the same thing would eventually be applied to fisheries management, as well. He urged them to use the Governor's package to resolve the subsistence impasse immediately. MS. BONNE THERRIAULT-WOLSTEAD said she believed Alaska's fish and game resources are it's second permanent fund. Subsistence means something different to every person and due to our geographic and cultural, and economic diversity we, as a State, will never completely satisfy all people as to the definition of subsistence. She said the use of the fish and wildlife and plant resources have played a significant role in her family and for many pioneer families. The emotional power the resources have for her family are just as strong as any other person's who will testify before the committee. If the State maintains control it may be possible to work out seasons and bag limits. For those who advocate federal management she asked them to consider what happened to Alaskan fisheries and marine mammal, the subsistence seal hunts on the Aleutian Island, before statehood. She asked if they truly wished to have people unfamiliar with Alaska imposing fish and wildlife usage. The laws recently passed relating dog tethering is a perfect example of how a simple act passed outside has a differing impact on Alaskans. When the D2 lands bill was originally proposed, simply flying over large areas of the State was going to be outlawed. She asked the legislature to fully fund a review of the use of the local fish and game advisory boards which were set up so that people who were directly involved in the resources could make recommendations based on local knowledge and needs. She said we must all recognize that life is not a stagnant force, change will happen. We can rail against it or work with it. She thought the federal take-over needed to be avoided the most. MS. MARY BISHOP said they should consider an increase in the budget for the protection division. She did not think it was appropriate for any government to find who is and who is not a subsistence user. The term has taken on a life of its own. Many people in the bush believe this will take away their subsistence rights. She wanted them to use "priority use" because the term subsistence could not correctly be applied to what they are talking about. MR. JOHN MILLER said there are many Alaskans who are neither native or rural who have a long history of wildlife-oriented consumptive use and feel it is an important part of their culture which is just as important as anyone else's. MR. JOE MATTIE said his family was licensed to hunt and trap. These activities have allowed his family to visit many remote areas and meet many wonderful people who have chosen to live off the land. He said the issue of subsistence had turned their eyes away from the real issue at hand which is responsible and active wildlife management. He thought we needed to return to being a land with abundant wildlife populations. He thought the subsistence dilemma was because of inactive wildlife management. He noted that he was part of a local organization called the Caribou Calf Protection Program that was dedicated to restoring and maintaining wildlife populations. In the two years they have been in existence their focus has been on restoring the Forty-mile caribou herd. The herd is coming back at an unprecedented rate and the people are united in this cause regardless of race, residency or occupation empowered by the prospect that there will be plenty of game for all - recognizing that having a first priority for game where there is no game is a meaningless pursuit. He thought everyone felt very threatened because they didn't think they'd get a chance to hunt anymore. He thought if they could deal with the concept that they are talking about 2% of the animals that are killed (the rest being killed by predators), they could have a solution well in hand. SENATOR TAYLOR asked of the 15 people who were left if anyone supported the Governor's plan. There was one hand he announced. SENATOR LINCOLN noted that most people said they did not have a chance to read the Governor's proposal. CHAIRMAN HALFORD said the committee would be having more meetings and adjourned the meeting.