SENATE RESOURCES COMMITTEE Anchorage AK September 27, 1997 1:13 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Robin Taylor Senator Georgianna Lincoln Senator John Torgerson MEMBERS ABSENT Senator Lyda Green, Vice Chairman Senator Loren Leman Senator Bert Sharp ALSO IN ATTENDANCE Representataive Scott Ogan, Co-chairman, House Resources Committee Representative Bill Hudson, Co-chairman, House Resources Committee Representative Con Bunde Representative Reggie Joule Representative Bill Williams COMMITTEE CALENDAR Interim Hearing on Subsistence WITNESS REGISTER Mr. Byron Mallott, Member Task Force on Subsistence Office of the Governor P.O. Box 110001 Juneau AK 99811-0001 POSITION STATEMENT: Reviewed Governor's Task Force on Subsistence proposal. Mr. Julian Mason, Staff Task Force on Subsistence Office of the Governor P.O. Box 110001 Juneau AK 99811-0001 POSITION STATEMENT: Reviewed Governor's Task Force on Subsistence proposal. Mr. Ed Earnhart 1043 W 74th Ave. Anchorage AK 99516 POSITION STATEMENT: Commented on and supported subsistence issues. Mr. Wayne Ross, Committeeman National Committee, Republican Party P.O. Box 101522 Anchorage AK 99510 POSITION STATEMENT: Opposed Task Force proposal. Mr. Charles McKee P.O. Box 243053 Anchorage AK 99524 POSITION STATEMENT: Commented on world issues. Mr. Hank Ostrosky 320 H Lane, Apt G Anchorage AK 99508 POSITION STATEMENT: Opposed Task Force proposal. Mr. Dale Bondurant HC 1, Box 1197 Soldotna AK 99669 POSITION STATEMENT: Opposed Task Force proposal. Ms. Patty Ginsburg, Executive Director Commonwealth North 810 N St., #202 Anchorage AK 99501 POSITION STATEMENT: No position on Task Force proposal. Mr. Charlie Edwards 211 McCarrey, #16 Anchorage AK POSITION STATEMENT: Commented on subsistence issues. Mr. Joel Blatchford 1983 Waldron Dr. Anchorage AK 99507 POSITION STATEMENT: Commented on subsistence issues. Ms. Tuqalik Hepa North Slope Borough P.O. Box 69 Barrow AK 99723 POSITION STATEMENT: Commented on subsistence issues. Mr. Jerry McCutcheon Anchorage AK POSITION STATEMENT: Opposed Task Force proposal. Mr. Griffin Quenton 2020 Muldoon Rd. Anchorage AK POSITION STATEMENT: Opposed Task Force proposal. Ms. Terry Burrell P.O. Box 665 Sitka AK 99835 POSITION STATEMENT: Commented on subsistence issues. Mr. Bob Juettner Aleutians East Borough 9550 Basher Anchorage AK POSITION STATEMENT: Supported Task Force proposal. Mr. Randy Kubitz 18124 Meadow Creek Eagle River AK 99577 POSITION STATEMENT: Opposed Task Force proposal. Mr. Landis Tew 19415 Skyline Dr. Eagle River AK 99577 POSITION STATEMENT: Opposed Task Force proposal. Mr. Warren Olson 5961 Orth Circle Anchorage AK 99516 POSITION STATEMENT: Opposed Task Force proposal. Mr. Gary Masog 7610 Old Harbor Rd. Anchorage AK 99507 POSITION STATEMENT: Opposed Task Force proposal. Mr. Doug Pope, Member Board of Game 3940 Clay Products Anchorage AK 99517 POSITION STATEMENT: Commented on subsistence issues. Mr. Vic Fischer P.O. Box 201348 Anchorage AK 99520 POSITION STATEMENT: Commented on subsistence issues. Mr. Chuck Graham P.O. Box 11 Hope AK 99605 POSITION STATEMENT: Opposed Task Force proposal. Mr. Randy Bjorgan 3038 Donnington Dr. Anchorage AK 99504 POSITION STATEMENT: Opposed Task Force proposal. Mr. Ray Metcalfe P.O. Box 233809 Anchorage AK 99523 POSITION STATEMENT: Opposed Task Force proposal. Mr. Fritz Pettyjohn P.O. Box 110912 Anchorage AK 99523 POSITION STATEMENT: Opposed Task Force proposal. Mr. Ron Barnes Tununic Traditional Elders Council 8301 Rangeview #1 Anchorage AK 99504 POSITION STATEMENT: Commented on subsistence issues. ACTION NARRATIVE TAPE 97-49, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 1:13 p.m. and announced the Interim Hearing on Subsistence. MR. BYRON MALLOTT, Task Force member, briefly reviewed the history of ANCSA and ANILCA making subsistence use of Alaska's resources a priority. He said that Alaska began managing with a subsistence priority after a vote of the people in 1982 which could have overturned the subsistence priority, by a 60% vote. The State managed subsistence on all lands in Alaska until 1989 when the McDowell decision held that Alaska's management of rural priority was unconstitutional under the equal access provision of our State Constitution. Since that time the federal government has somewhat reluctantly, but steadily, assumed management for fish and game on federal lands. There has been a series of litigation mostly in federal court which has continued to essentially increase the federal authority. Most recently the Katie John decision substantially expands federal management authority to navigable waters in a way that was of concern to our congressional delegation. Federal funding for that expanded authority was held in abeyance by statutory language and Interior Department appropriations bills. That federal statutory moratorium will expire on October 1. The State of Alaska was informed by Senator Stevens that unless there was action at the State level as of October 1, the expanded management of fish and game resources on public lands in Alaska (under the Katie John ruling) also, would begin. The Department of Interior during this time has implemented certain regulations and has assumed direct management particularly for game, but in some instances fish, on federal lands in Alaska and have promulgated more expansive regulations that would take effect or be published at the start of the next fiscal year should the moratorium not be continued. MR. MALLOTT explained that there were two primary goals that were discussed and adopted by the group: to insure effective State authority over fish and game management on all lands and waters of Alaska and to recognize the paramount importance of the subsistence way of life to Alaskans. The group thought one of the problems with previous efforts was that the adoption of a constitutional amendment did not have the other pieces that would implement the rural priority either in- place or under discussion. They decided that it made sense to develop the proposed amendments to ANILCA which the State believed were in its best interests to assume management for subsistence management on all lands in Alaska and to change Alaska State statute which would clarify and strengthen the State's management of subsistence resources should the constitutional amendment be adopted. The package was structured in such a way that by a vote of the people of Alaska in the 1998 election on the constitutional amendment, the other two pieces would have been approved and have effective dates that coincided with adoption of the State constitutional amendment. If it didn't pass, the others would go away. It was thought that if we could structure a good-faith effort to be responsive, the federal government would not begin to implement management. The best way to do that was with minimal changes and the group adopted that process. The areas of concern in the federal statute included prior litigation and regulatory and management contention over the meaning of key phrases in ANILCA: customary and traditional, barter, customary trade, the notion of least adverse impact versus reasonable opportunity, the thorny issue of judicial oversight, a definition of the word "rural," the need for some clear recognition by congress and the Secretary what would trigger State management and then keep federal oversight at a bare minimum. He said there was a lot of internal debate and discussion about the issues. Number 234 MR. MALLOTT said they had prepared a draft resolution which provided a constitutional amendment creating a section 19 saying that the legislature may, consistent with the sustained yield principle provide a priority for subsistence uses and taking fish and wildlife and other renewable natural resources based on place of residence. He noted that this version of a constitutional amendment has fewer words than any other proposed, but they thought it was sufficient for the job. SENATOR SHARP said he was concerned that the simple wording would give the average voter the illusion that everyone in Alaska may be eligible for some kind of preference, if it would arise. He thought if they are trying to address a rural preference, they should say this only applies to rural residents. MR. MALLOTT said they did have a rural priority right up to their last draft, but took it out based on the notion that this was a linked package. They also thought a lot of people would react to the word "rural." It was not an attempt to fudge the issue. Number 286 REPRESENTATIVE HUDSON asked why they used "priority" over "preference." MR. MALLOTT said that was discussed. MR. JULIAN MASON, staff to the Subsistence Task Force, commented that both words are in federal regulation, but the group thought either one would do the job. MR. MALLOTT added that former Attorney General Charlie Cole said six of one, half a dozen of the other. SENATOR LINCOLN said one of the questions raised in other communities was why the words on 23 and 24 "and other renewable natural resources" was added. MR. MALLOTT answered that their understanding was that other renewable resources had to do with natural resources that had been used for subsistence purposes like berries and plants, etc. SENATOR LINCOLN asked if there was a definition of that somewhere. MR. MALLOTT answered that much of what is in this package already exists in State or federal statute or regulation. They tried to not do violence to those terms even if they felt there were better words or phrases. Only for a very specific reason would they use different language. SENATOR LINCOLN asked why on line 22 the language is the permissive "may." MR. MALLOTT replied that was discussed in detail and recognized that it was a trip-wire issue for some folks, but because this was a linked package, the implementing State statutes and the authorizing federal statute would have to have been adopted before a State constitutional amendment could be adopted. The practical affect is the trigger to the other actions. Number 363 REPRESENTATIVE OGAN said he didn't think there was any real linkage there once the constitutional amendment is passed. He thought the may language was a smoke screen because we "may" amend the statutes or give a rural priority, but if we don't, we get federal management. So it's not really an optional may. MR. MALLOTT said in recognition of these fears, they tried to structure this in a way that the various actions were linked. He wasn't sure about the linkage language. The congressional delegation said that it was impossible to repeal the rural preference and they indicated they could at least be allowed the time to get the ANILCA amendments passed during the next congress in January if the Alaska legislature were to be able to pass the statutory changes to State law in their next session. His understanding is that if one or the other or both of the pieces don't happen, the constitutional amendment would not come up on the ballot. CHAIRMAN HALFORD said he thought his attorney would tell him that's not the linkage that's in this package. MR. MASON said it wasn't in there now, but it could go in. One scenario is that the ANILCA amendment passes first, then the State statutory amendments pass, then the constitutional amendment goes on the ballot with the ANILCA amendment's effective date and the Alaska statutory amendment effective date being the passage of the constitutional amendment. The concept is when the people vote on the constitutional amendment, they will know what the State statutory amendments are and what the ANILCA amendments are and can vote up or down based on how they see it. To write the linkage so it's complete requires some knowledge of what the first step is and the Task Force did not take the time to write it in the blind. It doesn't matter what the sequence is, the linkage can be made either way. MR. MALLOTT said his understanding is exactly as he stated which is why language like "may" versus "shall" becomes important. This amendment wouldn't appear if the other two weren't in place. He said their imperative is to get State management back at the earliest possible date. So they were looking at the November '98 election. REPRESENTATIVE OGAN followed up by reading the 14th Amendment of the U.S. Constitution, the equal protection amendment. He said he took an oath to uphold the Constitution and ANILCA seems to create a couple of different classes of people basically defined on residence and he wants to make sure he doesn't violate that oath. MR. MALLOTT said one of the core tenets for the group was that this law was a reality and if it was unconstitutional on the federal level, it would have been challenged already. He said the Alaskan Constitution makes a big differentiation between Alaskans with passage of the limited entry law. He said the group tried to move away from having a "street brawl" as we have had over the last decade over subsistence to at least get folks in the ring with rules using the State regulatory system. CHAIRMAN HALFORD said he thought it was important to remember what the Supreme Court said about the limited entry amendment that it only just got by because of the buy-back provisions which have never been used. He thought the limited entry provision was our biggest constitutional mistake since statehood. You can hardly use that to justify another one. He and most people here believe the last person to lose a resource should be the person who depends upon it to eat and gets it in his backyard and the first person to lose the resource all across the country, throughout the hunting of buffalo, ducks, or anything else, was the person who sold it. That is the logical progression of population and we're trying to work against that and hold out a complete class. MR. MALLOTT responded that the fact is the federal legislation is what it is. The notion of establishing a priority based on place of residence which could be argued by some does have a certain public policy symmetry especially in Alaska where those resources exist in rural areas. It is principally rural people for who it could be demonstrated there is a need. There is also the fact that in 1982 Alaskans voted to have a rural priority. Their only desire was to create a mechanism within which over time they could move down the road. REPRESENTATIVE BUNDE said he shares concerns about the illusionary nature of the word "may." TAPE 97-49, SIDE B Number 001 SENATOR TAYLOR asked who set the parameters and guidelines for their group. MR. MALLOTT responded that this is the work product of the group of seven and no one else; and the key parameters were developed by them. There was the deadline of November 1; and the Senator Stevens and Senator Murkowski said they didn't believe they could extend the moratorium. They also were advised by both senators that repealing the rural priority that that wouldn't work at all. The group thought it was important to try to demonstrate to congress and the federal government that the State was seeking to come into compliance either at or near October 1 so they would recognize a good faith effort and would not implement increased federal take-over. They wanted to respond in a way to get the State back into compliance in a responsible way and allow us at the State level to wrestle with the number of issues that would still be extant. This led to the notion of using the minimalist approach. The group was made up of people who had been intimately involved with all phases of this issue. He said it was the State of Alaska, at a time when the congress was seriously considering a native priority, who went to the federal government and said this will not stand. SENATOR TAYLOR said someone made the decision about whether it was possible to ask for an injunction enjoining the Secretary and federal agencies from enforcing this law until the State can find out if it is constitutional. Someone made a decision about whether or not an amendment to ANILCA could pass in the congress. He asked who gave them these guidelines because most everything was taken off the table when they sat down. He felt someone had assured them that every one of these amendments are greased and going to pass and all other amendments hadn't been considered. He insinuated that Secretary Babbitt instructed them what to do. Number 105 MR. MALLOTT said that he and the public don't know anything about it because nothing of what he said happened, period. This was an independent group. The kind of people in the group were very independent: Former Governor Jay Hammond, former Attorney General Charlie Cole, House Speaker Phillips, Senate President Miller, Lieutenant Governor Ulmer, and himself. He said it just didn't happen. They thought they had something folks could work with, something in the middle that would allow us to move ahead. Many other approaches were discussed and he was surprised to find that this package was going to be the only basis for these hearings. It was not thought that this package would be the only thing on the table. REPRESENTATIVE MASEK said she didn't think there was anything in the constitutional amendment that would return management to the State. It would allow the State to conduct federally directed management. She thought the package wanted them to change our Constitution for that and she didn't think it was right. The State is going against simple justice as far as treating all Alaskan people equally under our State Constitution. She pointed out that there was nothing in the constitutional amendment like a hold- harmless clause that keeps it from violating any public trust doctrine which is the responsibility of the State and federal government to uphold. She asked if giving a right to a small group of people was justice. MR. MALLOTT replied that this was designed to be responsive to a federal statute that is, he assumes, constitutional. REPRESENTATIVE MASEK asked again if he thought changing our State constitution served all Alaskans justly. MR. MALLOTT answered that when he pledges allegiance to the United States of America, he doesn't say except for ANILCA or anything else. He operates within a framework and he believes this is decent public policy, although not the best. REPRESENTATIVE MASEK said she thought it was a serious matter to give up our Constitution as it's written now to comply with a federal law. That's why Alaska became a state; so we could govern at the State level. She wanted his opinion because he was important enough to serve on the Governor's Task Force and recommend to the legislature who represents all people. MR. MALLOTT said he recognized the importance of the responsibility. He said the rural priority is available to all Alaskans. REPRESENTATIVE MASEK interrupted saying that is what's defined under federal statute. MR. MALLOTT said they tried to respond to the needs of Alaskans over time. They recognize that the majority of Alaskans living in rural areas are non-native. He reiterated that they had to operate within the mandate of putting a responsible public policy before the federal government. If they had done anything else, there wouldn't be anything. Number 222 REPRESENTATIVE JOULE wanted an idea of how the population racially breaks out in rural Alaska. MR. MALLOTT responded that the information he received from ADF&G is that under the rural definition in this bill and the subsistence areas (all of those areas outside of the non-subsistence areas defined in this bill) there is somewhere between 55% - 60% of the population that is non-native. SENATOR LINCOLN said she wanted to remind them that this is only a report from the group of seven. She thought many people have forgotten that they have attempted, as a legislature in the past, to let the people vote if there should be a rural preference. Then they could move on to another arena. She said she saw this as a plan to bring the question to the people. She said she appreciated him admitting it wasn't a perfect document and the fact that he was the one of the seven who had guts enough to sit in this hot-seat. MR. MALLOTT said on top of all his other remarks, he marvels about how they got through the first week because there was a wide range of diverse non-partisan opinions. SENATOR HALFORD commented that the constitutional amendment would be placed in the natural resources article and asked if it's there, did he think it would supersede the concern of one of the expressions of the Supreme Court with regard to equal protection in the first article of the Constitution. MR. MALLOTT replied that during the course of discussions legal counsel said this would work. MR. MASON responded that his view is that it would permit the legislature to create a rural priority. If the question is does the amendment violate the Constitution, the answer is no. CHAIRMAN HALFORD asked if it does violence to the rest of the Constitution that precedes it. MR. MASON answered no. SENATOR TAYLOR noted that on page 36 is a State statute they are proposing the legislature pass. That State statute mirrors an amendment to ANILCA (on page 10). That State statute on lines 3 - 4 is that 10 members, four of whom shall be selected form nominees who reside in the region submitted by tribal councils in the region. So we're not just talking about the allocation of fish and game; we are talking about putting a restriction on membership on a State board that is restricted solely to one racial group or sect. MR. MASON said that wasn't correct. SENATOR TAYLOR asked how to define tribal councils if not racially. MR.MASON replied that the nominees would be submitted by tribal councils. It does not require any particular racial composition. SENATOR TAYLOR said the outcome could have that impact and asked if he believed the contemplated amendment has to be broad enough at least to allow the legislature to pass a statute that would discriminate between all candidates in the State and only allow passage onto that board after going through a group that is racially defined. He said it looks to him like the only way you could get on the board is through a violation of equal protection under our State Constitution. MR. MASON asked him to put the amendment aside for a minute and asked whether the State Constitution would permit a selection of members of the State's existing advisory boards based on nominations from, among others, tribal councils. CHAIRMAN HALFORD said if four members have to come from a specific nominating entity, and that nominating entity controls those four members in total. MR. MASON said he understands the question and that they do that now in other contexts like the specific requirements for being appointed to various boards and commissions. CHAIRMAN HALFORD asked if they were based on suspect classes. MR. MASON responded that he didn't know if tribal councils were suspect classes. CHAIRMAN HALFORD asked if they were racial. MR. MASON responded yes, but he didn't think that would make them suspect. He commented that the group didn't expect the legislature to accept every word in the package blindly. MR. MALLOTT commented in their discussion, it was simply recognition that tribal councils are the reality out there and that the total board is 10 and the majority would come from other groups. Tribal councils represent a significant, and in many instances, the only leadership policy structure that exists for many subsistence users. The group recognized the groups that exist presently for their representational qualities and nothing more. SENATOR TORGERSON said the Tyonek decision said the tribal councils could control who stays within the boundaries of their organization. He thought that decision applied to about 56 areas in the State. There are other lawsuits that might make it apply to 226 regions. He, therefore, thought it was a valid point to look at. MR. MASON said that wasn't addressed or thought about. SENATOR TAYLOR asked what impact would a declaration by the State through the legislative process of passing a bill that utilized tribal councils as the only nominative authority have on the question of sovereignty and indian country. He also asked by placing a racial barrier upon selection for that group, which then allocates fish and game resources which certainly has impact on the ADF&G budget if that impacts the distribution of Pittman/Roberts Wallop/Bureaux funds which make up about 40% of our current budget. It has strong restrictions in it that we are not allowed as a State to make distribution of any of those funds along racial lines. He is fearful it does both and wants assurances from someone that this is not going to place 40% of our ADF&G fund in jeopardy and will not contribute to the question of sovereignty. MR. MALLOTT replied that they would ask the Department of Law to look at those issues and they do also have neutrality clauses dealing with the indian country issue. The tribes now are recognized by the federal government and have substantial involvement with the use and structure and management and the relationship of folks in the rural areas to fish and game. He repeated that the group was just trying to deal with an on-the- ground operational reality. Number 550 REPRESENTATIVE HUDSON asked if the current proposal has the Governor's endorsement. He really wanted to know where he stood on this matter. MR. MASON responded that the Task Force voted on this final document and all voted yes. They each agreed to affix their signatures to the transmittal letter and he has not heard Governor Knowles exhibit any reservations about the document. His was one of the signatures. TAPE 97-50, SIDE A Number 001 CHAIRMAN HALFORD said one way to avoid a constitutional amendment would be to establish need as an established method of differentiating among Alaskans with regard to certain rights. He thought Senator Murkowski and Representative Young sent a letter to the commission on July 23 suggesting that needed to be one of the criteria used. What was the discussion on that and what happened to their discussion, he asked. MR. MALLOTT replied that after some discussion it was believed that approach was not within the framework of minimal change of trying to come into compliance recognizing the importance of the October 1 deadline. There is also strong opposition to that idea in the native community. He said they even discussed this with the congressmen and asked if they should continue to seek a solution along their lines and they strongly indicated yes. CHAIRMAN HALFORD said the committee report on HR 39 contains a limitations clause on section 815 which basically provides that "nothing in this act is intended to be construed as:....nothing in this act is intended to be construed as amending the Alaskan Constitution." He wondered what Congress meant by that because at least our delegation knew about the provisions in our Constitution and were vitally and directly involved in drafting the committee report. MR. MALLOTT said he can only speak from recalling various conversations with State administrators of the time, but there were grave concerns about the native priority language, about this being indian legislation, and about this being unconstitutional. He supposed that being told by the State that a native priority would not be acceptable, but a rural priority might be, there was a general acceptance that would not require an amendment to the State Constitution. SENATOR TAYLOR asked him to get back to the committee with opinions from someone on all three of those issues. CHAIRMAN HALFORD asked also for a definition of other renewable natural resources. Number 94 REPRESENTATIVE WILLIAMS said the way he understands ANILCA is that subsistence was part of the negotiated settlement. He explained that back in the 1970's, in order to get a land freeze lifted so the pipeline could be built, there had to be an Alaska Native Claims Settlement Act (ANCSA). He asked if this was part of a negotiated settlement and what does the conference report mean when it says the conference committee expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the natives. He asked if we need a constitutional amendment because Senators Murkowski and Stevens and Representative Young don't want to go back on the deal they made in 1971. MR. MALLOTT said he concurred with much of the historical perspective except that Senator Murkowski was not there then. The reason subsistence was not dealt with in ANCSA itself was because during conference there was a clear belief on the part of conferees that particularly the Secretary, but also very likely the State of Alaska, already had the requisite authority (and in the person of the Secretary, the responsibility) to provide for the subsistence needs for Alaska's native people. It was one of the issues that was left to administrative discretion, but with clear intent in the ANCSA debate and conference report that it would be maintained and dealt with responsibly as a significant public policy of the United States. Reference to the commerce clause, etc., in the language of ANILCA, recognizing that in many ways this was being responsive to a specific native need, but it also includes other Alaskans. The entire framework of those acts bring us to where we are today. His understanding of the role of our congressmen is that they are working with us to try to accommodate that role based upon their perceptions of the issue and their discussions with them on this package. REPRESENTATAIVE WILLIAMS asked if our rights were part of the compromise in ANCSA and if they were, should we live up to that settlement. MR. MALLOTT responded that congress abolished hunting and fishing rights as part of the settlement act. It was very clear to recognize the importance of subsistence as a remaining and continuing public policy duty of the federal government. REPRESENTATIVE WILLIAMS stated that the abolishing of hunting and fishing was a property right; it was not an individual right. MR. MALLOTT answered that was right. REPRESENTATIVE WILLIAMS asked if it was part of the negotiated settlement of ANCSA. MR. MALLOTT replied that it was part of the negotiated settlement to ANCSA to the extent that there has been a continuing federal recognition as to its importance; a sense of federal obligation. The federal government felt it was so important that it was willing to assume the exercise of management of fish and game resources on public lands in Alaska should the State choose to be in compliance with those federal imperatives. REPRESENTATIVE OGAN said that ANCSA was a settlement in exchange for 44 million acres, including the subsurface rights and $1 billion for any claims of aboriginal titles based on use and occupancy including submerged land underneath all water areas both inland and offshore including aboriginal hunting or fishing rights that may exist. He said he is confused about why they are talking about the conference committee report which is part of the legislative record that's built as legislation is passed; and what has passed and enacted into law is what is law. A solicitor in the Department of Interior said that ANILCA is recognized as remedial indian land legislation. REPRESENTATIVE WILLIAMS said ANILCA recognized the deal that was made in ANSCA and we're trying to go back on the deal that was made, we should talk about that. Number 236 REPRESENTATIVE JOULE asked if the Governor hadn't appointed the Task Force, did he think as many people would be discussing the issue today. MR. MALLOTT said he assumed activity would be taking place because getting management of our fish and game back is so important. Most groups indicated they believe this could have been a more open process, but he knew for certain they wouldn't have been able to come up with this middle ground if it would have been an open stakeholder process. Number 283 CHAIRMAN HALFORD said he wanted him to review the changes on page 4 regarding customary and traditional and which ANILCA changes deal with the Peratrovich case, the Bobby case, and those kinds of things that have been ANILCA problems for the last 15-years. MR. MALLOTT continued explaining that customary and traditional is essentially what is in State statute. Its purpose was to get the definition into federal law to avoid opportunities for litigation. CHAIRMAN HALFORD asked specifically why they changed "and reliance upon" to "or reliance upon" which means that the window of customary and traditional opened up to any one of instead of all the criteria. The State statutory provision is much narrower than that. MR. MASON said he remembered discussions that not all people engaged in subsistence uses take, use, and rely on and that was the reason. CHAIRMAN HALFORD noted that this language changes the federal mandate statute to make a stronger mandate on the State than the existing State definition. MR. MALLOTT replied that wasn't their intent and he recalled that ADF&G staff discussed this. CHAIRMAN HALFORD asked if it was the intent of the section to limit cash sales and cash trade, and if so, to what extent. MR. MALLOTT replied that their whole discussion had to do with non- commercial needs and that it should be strictly limited. They felt the exact amount should be left to the discretion of the Boards of Fisheries and Game because one number would not work everywhere. REPRESENTATIVE HUDSON asked if this applies also to the Subsistence Advisory Board. MR. MALLOTT replied they would be the responsibility of the Boards of Fisheries and Game by regulation. The subsistence councils have the ability to recommend to the boards. Number 385 SENATOR LINCOLN said she understood the intent was to mirror language in State statute. MR. MASON added that determining what is non-commercial is done by the Boards of Fisheries and Game. The ANILCA definition on page 4 doesn't have "as restricted by the appropriate board" because of the regulation making power. CHAIRMAN HALFORD says they have two different interpretations that are subject to a court's interpretation and that's what we are trying to avoid. MR. MASON said he didn't think it was a problem, but it wouldn't offend anyone on the committee if anyone added "as restricted by the appropriate board." MR. MALLOTT said their concern was that if they limited the rule making scope in the federal statute, that could hamper State management. REPRESENTATIVE MASEK asked if the group took into consideration the changes that have happened in the State from 1920 - 1997 as far as their definition of what is customary and traditional - with the taking of game and fish with today's advanced technologies and still protecting the resource. MR. MALLOTT replied the whole structure works within the constitutional requirement of sustained yield. They know the Boards and Department have constructed a system that has been proven as working on the ground. They recognize that even things that are customary and traditional evolve. REPRESENTATIVE MASEK asked if he had taken into consideration the many Alaskan natives who live in Anchorage and Fairbanks, those who do not live in a rural area who claim traditional and customary. They can't go back to hunt and fish in the areas they came from. MR. MALLOTT answered that several members were strongly opposed to the notion of rural plus (the definition this has been given) and he acquiesced and they moved on. They moved to the point that in order to qualify for subsistence, an individual must be a resident domiciled in the community or area in which the subsistence resource is taken. They try to deal with that prohibition in a modest way by expanding the proxy provision in State statute without impacting the resource or subsistence priority by allowing an immediate family member of a qualified subsistence user that might live in an urban area to come to an urban area to take a subsistence resource on behalf of a qualified subsistence user who would not be able to exercise that opportunity. They restricted it by saying the majority of the resource taken had to remain in the subsistence area. REPRESENTATIVE MASEK said it seemed that he was trying to extend privilege in this manner to individuals and she didn't think they should continue on that course, because everyone should be treated as Alaskans. She brought that up because there is a big population of natives in Anchorage who can't go back to where they came from to hunt and fish. She thought that changing our State Constitution would be like getting into quicksand because once you are in it, you can't get out. She thought the State should be able to decide how we can manage our resources because it's been granted by mother nature to everybody. Native people must recognize that we are in 1997 and we can move forward if we work together, but we can't continue to say we need this and we need that and it's our right. We are all Americans. We need to look forward to 20-years from now and see where we are going to be. CHAIRMAN HALFORD said that as long as the proxy question is not adding to the federal mandate and increasing the things you have to do in State statute to comply, at least the proxy system is a question that will be made at home among Alaskans. MR. MALLOTT said again that the proxy system already exists in State law and they are trying to make minimal changes to existing law. CHAIRMAN HALFORD said that's probably the least damaging of any kind of proposal you could make because it's up for consideration always at the State level. MR. MALLOTT said the State standard is reasonable opportunity. The native people believe the current standard has the least adverse impact and that should be the standard and for the Task Force to act differently would result in a diminution of the federal priority. TAPE 97-50, SIDE B MR. MALLOTT said he didn't remember any discussion of the Bobby case while talking about reasonable opportunity. CHAIRMAN HALFORD said just reading from the Department of Law packet, that they cite the Bobby case. Judge Holland said, "must first eliminate other consumptive uses before restricting customary and traditional uses of game for subsistence purposes." He assumed it was the intent of the Task Force that a reasonable opportunity doesn't mean a year-round season if, when equipped with a dog team, it would have taken a year-round season to harvest one moose per family, but now, equipped with snow machines and four-wheelers, it takes 45 - 90 days to harvest one moose per family. MR. MALLOTT said that was not their intent. They believe reasonable opportunity should have a plain meaning and that the Boards can provide that, that this is based on sustained yield, that the history of subsistence taking and use has been one of only in rare instances precluding other uses of the same resource, and to the maximum possible, they want that to continue. MR. MASON explained that someone on the Task Force wanted the definition of federal land to show up in one place and there was a correction that needed to be made of deleting, "or native corporation in State land selections," in subsection 38. However, it was not the intent to change any definition and not the intent to overturn Katie John. It was simply an effort to make the definition of federal land all in one place. CHAIRMAN HALFORD asked then it was not intended to exclude State land or navigable waters from the definition of federal public land or public land that appears throughout ANILCA. MR. MASON responded that it is not meant to change the current definition of federal lands which includes waters. SENATOR TAYLOR said it appeared to him from the map distributed in Fairbanks that through this classification they recognized the federal definition which he thought was still being argued as including reserves regarding navigable waters. MR. MASON responded that the map was simply a document prepared by the Interior Department to show the scope of the regulations that it will propose. It has nothing to do with this proposal. CHAIRMAN HALFORD said we might challenge a number of those in the process. SENATOR TAYLOR commented that we can't if we adopt their definition. MR. MASON reiterated this definition is not intended to change anything; it was intended to corral pieces of a definition that go on for three or four pages. It would please him if they were not there, because it confuses things. SENATOR TAYLOR said he didn't want to see us forfeit any opportunity to challenge some of the definitions regarding waters that have been proposed by the federal government and appear on that map. SENATOR TAYLOR asked if they included other definitions within this packet that might result in the same outcome. MR. MASON answered that he didn't believe so. CHAIRMAN HALFORD said it looks like they are adding to the federal mandate. MR. MASON responded that the State statutory amendments propose regional subsistence councils which are currently required by ANILCA. The regional councils as proposed are constituted a little differently than under ANILCA. Therefore, if you use the Task Force proposal, ANILCA needs some amendment. CHAIRMAN HALFORD noted they were amending the mandate and asked why they don't just amend the State law and leave the mandate as simple as it is, because any time you add to a mandate, it seems you are adding to the dictates of the federal government to us. MR. MASON replied that, for instance, there was commentary received by the Task Force that it would be wise to have people who use the resource, but not resident of the region, have a voice on some regional subsistence councils. They cannot under ANILCA, because it requires that all members be from the region. CHAIRMAN HALFORD asked why they didn't just include the amendment, "shall be composed of residents of the region and," and then delete all the additions they are making. MR. MALLOTT said he agreed with him. SENATOR LINCOLN asked how they would propose to change it if you don't have residents of the region. CHAIRMAN HALFORD answered, "Each regional advisory council shall have the following authority:" SENATOR LINCOLN asked if they wouldn't even say what the composition is. CHAIRMAN HALFORD said it wouldn't be in the federal mandate, but it could still be dealt with in State statute. MR. MALLOTT commented that the whole discussion surrounding whether or not the subsistence council language should be incorporated into the federal statute had everything to do with their desire to have out-of-region representation in the federal statute specifically prohibiting it. Number 112 CHAIRMAN HALFORD directed the Committee to go on to 806. MR. MASON explained that there are two things here and first is the linkage. How they link depends on which one goes first. The second half is to make it clear that it requires a court as distinct from the Secretary of Interior to say the State is out of compliance. So it would take another court case to be out of compliance. MR. MASON said section 807 makes sure the federal courts, if they are reviewing actions of the Boards of Fisheries and Game, treat them with respect. There were no question on section 813 and page 27 had the disclaimer. Number 148 SENATOR TAYLOR questioned the make-up of the regional councils and does that not violate this section and thought they should wait for a legal opinion before they know they could successfully do that. CHAIRMAN HALFORD explained that the third leg is a whole series of statutory changes, but they generally follow the ANILCA changes and the committee had already been through those. So he wanted to take pubic testimony. MR. ED EARNHART, 23-year Alaskan resident, said he was a long-time student of constitutional law and said he supported the Task Force recommendation. The Preamble of the U.S. Constitution says that we are supposed to be concerned with general welfare, and all this nitpicking about provisions in the Constitution that would lead to more strife and more enmity that would lead to more cheap politics, that would lead to more special interests pressing hard for its bit. He didn't think this should be and he thought the Task Force worked hard to try to move toward a settlement of this issue. He had no opinion about who would manage the fish and game because many times they are both lousy. He worked with BLM for 17 years in land conveyances and knows that ANCSA is a mess. He knows the problems with defining public and private lands. But he thought it would be simple to say, as the civil war proved, that the feds would be dominant in finally deciding what the law means. He wanted to stick to the theme of Alaskans living together and continue to get supported by the federal government which is one of the reasons we are such a great state. He urged them to resolve the issue without spending the $40 million in litigation. MR. WAYNE ROSS said we've had the federal government stick a gun in our ear saying he wants to take over our car, ie. the management of our fish and game. The Task Force proposal says we're to drive the car, but go wherever the federal government takes us. He said the Governor and Attorney General took an oath of office to support and defend the Constitution of the United States and of Alaska. And now instead of supporting our Constitution, our Governor proposes to change our Constitution and bow to the threats of the Clinton administration. He referred to Article 1 saying all persons are entitled to equal rights, etc. and section 15 saying no law making any irrevocable grant of special privileges or immunity shall be passed. Article 8, section 3 says fish and wildlife are reserved to the people for common use. It doesn't say to rural people. He said that Alaska chose statehood because it would transfer management of fish and wildlife on all lands and waters from federal agencies to the State. In 1971 congress and Alaskan natives agreed to ANSCA which stated, "all aboriginal title, if any, and claims of aboriginal title in Alaska based on use and occupancy, and including any aboriginal hunting or fishing rights that may exist are hereby extinguished." For this waiver the Alaskan natives received $962 million and 44 million acres of land. This settlement settled all claims "with certainty" and "without establishing any permanent racial defined rights or privileges." He thought some people were coming back to the well for a second drink and he thought that was improper when other people can't drink at the same well. ANILCA in 1980 congress included a subsistence priority for rural residents only on national lands and mandated federal management of fish and wildlife on federal lands if Alaska's subsistence law doesn't conform with ANILCA. In passing ANILCA, congress ignored Alaska's Constitution which they had approved under the statehood compact. Instead of challenging this congressional violation, the State first opted to get along by enacting subsistence laws providing for a rural preference. The McDowell case in the Alaska Supreme Court, held that a rural subsistence preference violated Alaska's Constitution. MR. ROSS said the only way to resolve this problem is to get congress to repeal section 8 of ANILCA or challenge it in court as violative of the statehood compact. Number 350 REPRESENTATIVE OGAN asked if he thought it would take amendments to four sections of the Constitution to incorporate a rural priority. MR. ROSS answered he didn't think we wanted to do that, but we need to remove Title 8 of ANILCA or challenging it in court. SENATOR LINCOLN said the Task Force proposal was part of a solution to a long-standing dilemma we've been in for years, but this was not to be the only proposal. She said this isn't the Governor's proposal, but was signed off by House Speaker Phillips, Senate President Miller, and others who were on the committee. She said we can't divide the State on racial lines. She said it is defined as rural, not native and asked him to define rural. MR. ROSS defined rural as out in the country. He thought using the terms rural and urban was divisive. The point he was trying to make earlier is there were payments made as part of ANSCA and he thought the issue was settled about whether natives have any more rights. The question now is do the rural areas have any more rights than the urban people. REPRESENTATIVE OGAN asked if he thought they would be in violation of three other provisions of the Constitution if we adopted the rural preference. MR. ROSS answered that having taken McDowell to court he could assure them they would be taking them to court again. SENATOR TAYLOR mentioned suggesting to former Attorney General Charlie Cole bringing a direct action suit before the United States Supreme Court and challenging the constitutionality of ANILCA. And considering the make-up of the court which truly advocates for states rights, did he believe it would have a good chance of prevailing and he said, yes, he thought it could. He also asked if he thought we could get an injunction enjoining the federal agencies from enforcing the federal mandate until the Supreme Court could make a determination on constitutionality. Mr. Cole agreed that would be a good idea. SENATOR TAYLOR asked Mr. Ross if he had thought of that as a solution. MR. ROSS said he represents a group of people who tried to carry the State's argument in McDowell 2 case in federal court. The problem is that the administration is not willing to take on the issue for political reasons. Number 563 REPRESENTATIVE WILLIAMS said he appreciated his remarks and he is not trying to make this a racial issue. He said they had negotiated away their rights with ANSCA. He explained that they gave up their aboriginal rights which were property rights, but further down they were still negotiating for subsistence, and this they can see in the conference report. SENATOR ROSS asked if he was talking about rural or native peoples. REPRESENTATIVE WILLIAMS answered he was talking about the State of Alaska when they negotiated the ANILCA. SENATOR ROSS responded that we should all have subsistence rights. REPRESENTATIVE WILLIAMS told him to refer to the conference report to ANILCA which states it expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the natives. This was part of a negotiated settlement in ANSCA. MR. ROSS said he reads ANSCA differently. REPRESENTATIVE HUDSON asked him if changing Title 8 of ANILCA to take out the rural requirement was what he suggested. TAPE 97-51, SIDE A Number 001 MR. ROSS replied yes. He thought the Governor should take the feds to court. He added that a lawsuit was filed by the previous governor and this governor pulled back on that suit. The legislature tried to stay in the lawsuit, but it requires the governor or the attorney general of the State to do something. SENATOR LINCOLN restated that neither does the Republican Speaker of the House or the Republican President of the Senate say to take the feds to court or to "butt out." MR. ROSS said they realized that we have a weak governor and they are willing to try to do something to resolve the problem and he submitted that we need to get a governor with some backbone. MR. CHARLES MCKEE referenced an article in September 24, 1997 Anchorage Daily News wherein World Bank and international monetary fund leaders commented on monetary issues. He said the article explained who mandated the package they are discussing. MR. HANK OSTROSKY said the issue is the fact that the President has assumed a public trust over the indigenous people of Alaska. Under his mandate he is not subjected to the Supreme Court decisions or the U.S. Senate or subject to the State of Alaska or the United States. He has to assert himself on human rights. He called Title 8 of ANILCA a violation of apartheid, genocide, and holocaust. He did research on this issue in Hawaii and came up with the term allodial rights and came up with a definition of the sacred undivided common interests of the people to the resources. They looked at human rights and human equity, not corporate rights and corporate equity. He said they were involved in constructive fraud if they continue to force the corporate form of the United States on the indigenous holders of the allodial title. MR. OSTROSKY suggested that the Governor's Task Force on Subsistence be called the Governor's Trash Force because they are talking about a subsistence economic system, not a lifestyle. He said they are talking about semantic distortions coming in from the term indian, Eskimo and American in the desire to grab the resources of the North and South American continents by colonial intruders. He summarized that the legislature really needed to look into the fact of a constructive fraud. MR. DALE BONDURANT said the proposal would not recognize most of the Kenai Peninsula as rural. He asked why the commercial fishermen support destruction of the common use clause and answered it is because they are no longer common users since limited entry and make a lot of money off the resource. He thought that Governor Knowles appointed this Task Force solely in an attempt to give the look of an honest public endeavor. MS. PATTY GINSBURG, Executive Director, Commonwealth North, said they haven't taken a position on this proposal. However, in 1992 their Board did take a position that is still applicable. They believe that Alaska must regain unitary management authority over fish and game resources from the federal government and the citizens of Alaska need to develop a consensus on the issue of access to fish and game resources for subsistence purposes. She urged the legislature to put a constitutional amendment to a vote of the people. The amendment should designate subsistence as a priority use of Alaska's fish and game resources and authorize the legislature to grant a preference to and among Alaska residents based on criteria such as: customary and traditional use, direct dependence, local residence, availability of alternative resources or some combination thereof. They support the protection of Alaskans who survival depends most directly on the continued harvest of fish and game resources and whatever actions are necessary to ensure State management of all fish and game resources. The 1992 resolution was adopted by Commonwealth North with the goal of creating unity among Alaskans so we could channel all of our efforts towards the development of a productive future unencumbered by regional or ethnic division. REPRESENTATIVE BUNDE asked if she thought the proposal before them would remove federal domination of management and if it would pass, did she think there would be more unity among Alaskans. MS. GINSBURG said speaking for herself she understands for the linkage everything has to happen and no one part can happen without the other and she thought that would remove federal management. The answer to the second question is that we have to keep trying to put this issue behind us and Alaskans should have the right to vote on it. MR. CHARLIE EDWARDS said that this year's management of fish was so disastrous and that's why the federal government will take over management of all the migratory species. He informed the plaintiffs in the McDowell case that they do have responsibility to Article 12, Section 12 of the Constitution. The State of Alaska does not act in a vacuum and it is supposed to uphold the Constitution of the United States with other states. These rights of the Alaska natives under Article 12, Section 12 say the State of Alaska and its people forever disclaim all right or title to any property belonging to the United States subject to the disposition not granted or confirmed to the state and its political subdivisions....The State and its people further disclaim all right and title to any property including fishing rights and the rights or title to which may be held by any Eskimo, indian, Aleut, or community, therefore, as that right is defined in the Act of Admission. He said this is the price of statehood. The people gave up something for the right to coexist with the Alaska native people. The statehood compact is a three-legged stool: the State, the federal government, and the Eskimos, indians, and Aleuts. He said that customary trade was established in 1824 by Secretary of State, John Quincy Adams in a treaty between the U.S. and Russia. Customary trade is a foreign policy declaration of the United States and there are no dollar caps. He said, "Don't take our commerce rights that are protected under the Constitution. He didn't want the legislature to trash their international trading rights. MR. JOEL BLATCHFORD, a native commercial fishermen also using subsistence, said he didn't trust the State to protect our subsistence resource because he doesn't have a say in protecting the resource that he uses which is fish. The Governor appoints only oil people for an oil issue. He said that many natives don't speak the language so they can't vote. He said he can't trust amending the Constitution or ANILCA because the motivation behind it is money and everybody wants to change things to suit themselves. REPRESENTATIVE BUNDE asked if he was the person who hunts belugas. MR. BLATCHFORD replied yes. REPRESENTATIVE BUNDE asked if he did that for money. MR. BLATCHFORD replied no. REPRESENTATIVE BUNDE said he heard some of the meat was sold. MR. BLATCHFORD replied that his family didn't sell any meat, but his father did sell some to pay for motor parts. He said it has been the European way to sell the food they grow to keep their farm going. He said he didn't think it was commercial to sell a little bit of what he catches to pay for parts to keep a boat going. MS. TAQULIK HEPA, an Inupiat person, said she came from a family of whaling captains. She grew up in a camp south of Barrow where her family has been captaining for many many years. She learned to live the subsistence way of life there. She also works for the North Slope Borough Department of Wildlife Management for six years and has been doing research for subsistence. She said there are eight villages on the North Slope and haven't really felt the impact of other Alaskan residents. TAPE 97-51, SIDE B MS. HEPA said that federal management has worked well on the North Slope and she thought the main reason was because of the active, well-funded local advisory system and the federal subsistence Board which has been real responsible to their concerns and input. Their history with State management has not been as good. Their advisory system was not successful although it was tried. She thought the Board of Game was somewhat insensitive to people of the North Slope. She said they do not support dual management in the long run nor do they think federal management is best for Alaska either. They do support the Governor's Task Force proposal with some modifications. The first one is that there needs to be at least 10 advisory councils which is how many there are now under federal management. They want to see maximum support for co-management arrangements of local user groups, including tribal and native organizations. She thinks on the North Slope they have demonstrated they can successfully manage their own resources. SENATOR LINCOLN asked her to explain how she views subsistence as customary and traditional and continuing beyond 1997. MS. HEPA answered that subsistence is still very strong on the North Slope in all the villages. SENATOR TAYLOR said he didn't see why they would embrace a policy that would exclude their family members from coming home. MS. HEPA said they had a subsistence workshop in the middle of July and one of their recommendations was for a subsistence priority for Alaska native people and other residents of rural communities who have over time established customary and traditional uses of and dependency on fish and wildlife for subsistence. REPRESENTATIVE JOULE said this is why the subsistence summit has taken a position of supporting the Alaska native plus rural preference and putting the question of priority to the voter. REPRESENTATIVE OGAN commented that they couldn't give the Alaska native preference if they wanted to, because it would violate ANCSA. SENATOR LINCOLN asked if there is a rural preference and it is voted on by the general public, would all the subsistence foods remain in the village or does it get shared with other relatives. MS. HEPA answered that they share different foods like muktuk and berries from within the community and from different communities as well. MR. JERRY MCCUTCHEON said there are provisions in the law that allow a private pilot to charge for his services to pay for the cost of the plane. He said he was for the federal take-over. He thought they should have impeached Governor Knowles when he withdrew the lawsuit. He said we need to know what evils will be done to us when the feds take over. He thought that the Division of Commercial Fish will continue to screw the sportsfishermen, the subsistence fishermen, and the small commercial fisheries. The federal take over appears to be the only way Alaskans can circumvent Knowles and the gang of seven. In summary he said they should impeach the governor sending a message to all future governors that the failure to uphold the Constitution is a serious offense that won't be tolerated; second they need to get control of the Division of Commercial Fish; and third they need to amend the Constitution so that the personal use fishery has a higher priority than commercial fisheries. What's left should be for commercial fish. REPRESENTATIVE OGAN stated for the record that the day the governor dropped the Babbitt suit, his staff worked up a memo to him asserting it was his sworn duty to defend the Constitution and he was the third person in two days he has heard of talking about impeaching the governor and the news media hadn't picked it up yet. MR. GRIFFIN QUENTON said he lived in Alaska all his life and he couldn't understand why the people of Alaska weren't making a concerted effort to take congress to court regarding the constitutionality of ANILCA. He said subsistence has meant that you were entitled to take it if it was a matter of life or death. Now lawyers looking for work through ANCSA has created divisiveness. He thought that rural people were trying to garner a rural way of life under the guise of subsistence. There is nothing customary and traditional about an airplane or four-wheel ATVs and snow machines. He felt strongly that they should bend every effort to prove that ANILCA was not created legally because the people of Alaska already governed by their Constitution which was duly ratified by congress 20 years earlier. MS. TERRY BURRELL said she had lived here for 38 years and said she thought we were having hard times becoming a cohesive State because of the various land ownerships. The federal government, private, native sources, and State sources have made us into a feudal kingdom and we don't have the ability to have loyalty to our State. She agreed that we needed to take action in the Supreme Court with an injunction. She did not want to see our Constitution changed. She thought welfare was wiping out subsistence. MR. BOB JUETTNER said they supported Governor Knowles Task Force proposal and the State management of fish and game resources. The Borough Assembly is dominated by natives and their decision to support a rural preference is because there are a large number of non-natives in the region and they think this is the easiest way to get past the October 1 deadline. Speaking from his heart and for the Borough he would like to see this issue resolved. A guarantee of the opportunity for subsistence is a very important issue since it's a risky proposition just like commercial fishing. He said that he now hears real polarization which he didn't see in the State 20-years ago. REPRESENTATIVE OGAN asked if he considered Dutch Harbor rural. MR. JUETTNER said no, but he would have considered it rural three years ago. SENATOR TAYLOR asked how he perceived the State would manage commercial fisheries different than the feds when both bodies are held to the same ANILCA standards and subject to the same triggering device and appeals and litigation. He commented that commercial fishermen just wanted to go with the proposal because otherwise they would be shut down in Cordova and False Pass, but he just didn't see a difference in what would ultimately happen. MR. JUETTNER said most people don't even think that the federal government manages with the sustained yield principal like we do. They manage on the basis of a healthy ecosystem and what that means. He has spent many years and meetings trying to make headway with the feds and he thought it was impossible. SENATOR TAYLOR asked again why the commercial fishermen thought this was a better alternative. MR. JUETTNER answered that they probably haven't thought it all the way through and also they don't want to sit in front of five federal bureaucrats or go back to Washington D.C. on an issue of how many fish, what gear, what fish, etc. CHAIRMAN HALFORD said he thought it would also give them another shot at the Bobby case and changing the definition from least adverse impact to reasonable opportunity. People won't be sitting under a mandate that says you have first eliminate other consumptive uses before restricting the customary and traditional uses of game for subsistence purposes. TAPE 97-52, SIDE A MR. RANDY KUBITZ said he shot his moose this year and shared it with his family. He used the whole thing; and he has done this every year. He didn't see how curtailing his rights would benefit anybody. He opposed the proposal to change the Constitution because it weakens our position as a State and the support we have for the Alaskan people. He was afraid that a constitutional amendment would divide the people of Alaska. This plan is not middle ground, but it is admitting defeat. Putting one choice before the voters is a very bad idea. They should put more than one good proposal on the same ballot. He also questioned the definition of other renewable natural resources. He thought they could possibly give rural preference to permanent fund recipients because money can be considered life-sustaining. He thought natives might be fearing general population growth instead of everyone's rights being protected. He thought we needed to treat everyone equally into the future because the population will continue to grow. It might be a little inconvenient for some people if their subsistence rules are changed so all Alaskans can share equally, but it is subsistence and he thought there was a difference between that and personal use. He said they need to define the roll of ADF&G and get them out of politics. They should be scientifically in charge of fish and game in Alaska. MR. LANDIS TEW said he has been a federal employee for 25-years and he didn't like the proposal at all. He didn't understand how we've gotten to this point. He said there is no argument between the State and U.S. Constitution. He said no one will take anything from him any more and if they try, that is where he draws the line. REPRESENTATIVE MASEK commented that the federal government already took over management in game in 1990 and said the only problem she sees with the linkage in the proposal was that there is still federal court oversight. MR. TEW agreed with her. She thought we really needed to change ANILCA, but our congressional delegation has been reluctant to do that and she urged him to contact them and let them know how he thinks. MR. WARREN OLSON said he is a 39-year resident and a plaintiff in McDowell 1 and McDowell 2, and Olson 3 coming up October 31 in front of Judge Holland. He is probably the only Alaskan who has taken the appeal process through the United States government because of being removed from hunting activity in 1981 and being told that he should seek relief in federal court. MR. OLSON said he believes it is a legislative responsibility, through the Boards of Fisheries and Game, to manage fish and game in Alaska. The means and methods are through police powers of regulation and the expertise through the Boards. The reason he believes this is because of the public trust and public trust doctrine responsibility which resides above subsistence; it resides above rights. Rights come through many years of judicial law, not legislative law which has created public trust (uplands) and public trust doctrine (waterways). The federal government, according to the top attorney in the United States, cannot create public trust and public trust doctrine in regards to users (although they can create it in regards to use). He has a book with a thousands cases in it that back that up. He wanted the legislators to force the Ninth Circuit Court into determining whether or not public trust and public trust doctrine is going to prevail on renewable resources or is the obligation to indian land going to prevail. REPRESENTATIVE OGAN said they had a fiduciary duty, not an obligation, to manage the resources in the best interests of the public trust and according to the best information he's read, to amend the Constitution to give a rural priority would be a violation of it. He thought it went back as far as the Magna Carta. MR. OLSON said that public trust doctrine has four fundamental bases: navigation, commerce, fishing, and fowl lands. Hunting and fishing aren't a privilege; they are fundamental rights. They can be regulated, but the reason they can do so is to enhance those resources for all users. In a tape by Joseph Sax, lead guru on public trust and public trust doctrine, he discloses that the federal government cannot create public trust and public trust doctrine in regards to users. They can do it in regards to use. He said he didn't see legislators elevating themselves to the level of participation that is needed. He said they have a fiduciary responsibility to the people of Alaska to deal with this issue. He also said the Governor did not have the authority to drop the lawsuit with prejudice. He said subsistence is a problem between the United States government, the federal government, and the Supreme Court of Alaska who is not going to backup on public trust and public trust doctrine. SENATOR TAYLOR asked what specific action did he want the legislature to take to assert this right. MR. OLSON said they had removed the State subsistence law of 1978 which abandoned the public trust, public trust doctrine. He would pass fish and game regulations to have seasons and bag limits and let the federal government come to them. CHAIRMAN HALFORD asked about the provisions of the Constitution that says subject to preference among beneficial uses. MR. OLSON replied that we can do predator control and enhance something versus another. Legally the idea is there that the highest and best use of fish and game is for consumption. SENATOR TAYLOR said he thought they needed to clarify that. MR. GARY MASOG said when he went to the federal hearing he couldn't testify at the meeting in Anchorage. He said they were basically divided into little groups with two federal employees to tell them how they were going to do it. This is telling the lie over and over again. MR. MASOG said he didn't think we needed subsistence. He thought the problem is natives were told to select land adjacent to their communities to keep their way of life and they did that. They got 40 million acres; 1,000 acres per man, woman, and child and most of them live in Anchorage. The people who actually live in the village have 10,000 acres per man, woman, and child. Most people in the villages don't hunt, so the average hunter probably has 100,000 acres of his own land ready to hunt on. So why do we need them to take over the federal lands. He overheard some natives talking to a young man on a plane and he said he would do anything to get to go and live a subsistence life- style in a village for one year. He was told repeatedly that that doesn't exist any more. They don't sit out there and hunt seals 12 months a year. They get a welfare check or they get a job. They like hunting and fishing just like we do; and they eat it and enjoy it just like we do. He asked them what they envisioned for Alaska in 10 years and thought the subsistence issue was really about power. TAPE 97-52, SIDE B CHAIRMAN HALFORD said he thought enjoying a subsistence lifestyle should be thought about in the positive. It is a battle over unconstitutional discrimination that should be considered. MR. MASOG said the real problem with subsistence is that people in Anchorage who get a lot of the game now fly out to rural remote areas because they can't go to their traditional highway places. They get their moose still and they are really impacting subsistence. He said another bad thing about subsistence is that the idea about game management is to get shortages and the subsistence rules kick in. He thought it was all a waste of time and it should just be game management and they could skew the season to let the people in Barrow do their thing, etc. SENATOR LINCOLN said she was terribly offended by some of his racial remarks as an Alaskan and a citizen of this State. She said this is not a perfect package and as a member of a village corporation, she doesn't have the privilege of going on her village corporation land and killing animals unless there is a permit or the season is open. MR. MASOG responded that he couldn't hunt on that land at all. MR. DOUG POPE, 52-year resident of Alaska said he is an attorney who serves on the Board of Game. He was chairman of the Board when the McDowell decision came down. He said that a lot of people here had testified before him, too. MR. POPE said he favors a rural preference although he didn't necessarily favor this package. The reason he favors a rural preference while he was chairman because of what happened in Nelchina. He said they had some problems dealing with the Nelchina caribou herd, but they worked together and figured out a way so everyone could have an opportunity. They may not have had the best opportunity, but they had access. This is when there was a rural preference clause in the State statute. Once the McDowell decision came down, they had a lot of meetings and initially the Board voted to open it up to everybody because it was too confusing. Finally, they were told by lawyers that they had to do it this way. He voted against taking Nelchina into the subsistence program because it was pretty obvious what was going to happen there. It was an area of great abundance of caribou, a lot of demand from both rural and urban areas. It was obvious that applying the State subsistence law without a rural preference to the Nelchina caribou herd situation was going to result in an underharvest which it did for about three or four years. As a result there is great stress in the herd and the range is being overgrazed. All the signs of an imminent collapse are before them. He thought the most significant reason for this was that they didn't solve the problem. He also observed that essentially when the subsistence system is based on historic use, you end up with just as discriminatory a situation as you do when it's based on a rural preference. He didn't think they could go to a system based upon need under the State Constitution without amending it. He said he agrees with many people here that the resource belongs to every Alaskan and if you are going to limit access one way or the other, you are offending that notion. He said if they, as legislators, have sworn to uphold the oath, they should repeal the State subsistence statute because it discriminates against just a few less people than the rural preference law does. The rural preference clause discriminates against 80%. The historic use approach discriminates against 75%. He said that no one has become before them to say that they have been denied the right to hunt and he thought the real question was how they guarantee a reasonable opportunity and protect the resource at the same time. He said he does care if the feds come in because, going back to the Nelchina situation, the combination of federal management and the customary and traditional historic use preference has resulted in damaging the biological productivity of that area. There is no question about that. His solution, as distasteful as limiting access is, is that they do have to limit access under some circumstances. When he was chairman he became convinced that they could address 95% of the fears they had heard in this room through the regulatory process. It takes a department that's committed to supporting the Board and seven members with an open mind. However, there is that 5% that can't be addressed through the regulatory process and that's what this preference is about. If a rural preference were in place right now, he could fix Nelchina in about 15 minutes if he were chairman. He explained that if you look at the Nelchina Basin data, of the rural harvest (not subsistence) 98% occurs within two to three miles of the road system. If there were a rural preference there now, they could designate an area within three to four miles of the road system as a rural harvest area and open up the whole rest of the Nelchina Basin to everybody else and the problem would be solved. He said that he tried to do that without legislative action, but he couldn't get the Department because they didn't want to mess around with it, because it would have taken adjusting the game management units and there's a lot of resistance to that. He said there is no way his two boys would ever qualify for a State subsistence permit because he quit hunting large mammals 15-years ago. This is why this system is unconstitutional. He said that something has to be done; doing nothing is not an option because it endangers the resource and is creating another system that is just as unfair as the rural preference. The only reason he prefers rural preference over other solutions is so his boys could move to the bush if they wanted to. CHAIRMAN HALFORD asked him to clarify why he thought need would be an unconstitutional method of determination of preferential rights. MR. POPE answered that he didn't see how it could be any more of a basis for discriminating that historic use or place of residence. If it's a fundamental right, how can you take it away from someone because you think someone else needs it more. CHAIRMAN HALFORD asked if they didn't already use need as a mechanism of granting deferential rights in all sorts of programs. MR. POPE responded that they weren't fundamental rights. Welfare and medicaid is not a fundamental right. CHAIRMAN HALFORD said he thought a rural preference would tell someone born and raised in Eklutna that they could never harvest while a new judge can fly out there, buy his house in Bethel or Dillingham, and he immediately has a preference to hunt in any rural area of the State. The two things that are the most egregious to people are the total lack of sensitivity to need and the other is that it is all rural as opposed to all urban with no sensibility as to where it ends up occurring. He said maybe that's only the 5%, but those perceptions are what stand out in people's minds. He thought a local preference would be less egregious than a state-wide preference. MR. POPE agreed with that. He also said that after discussions with native members of the Board, he finally decided that he couldn't tell the native people what's good for them; they have to tell him what's good for them and he has to live with it. This was especially after an especially contentious battle over helping Lime Village which resulted in the Bobby case. MR. VIC FISCHER said that 45 years ago we were fighting for statehood and one of the overriding issues was to get control over our resources and he thinks that should be a major goal today. He said it is terrible to hear the divisiveness that has permeated so much of the testimony today. There were a lot of inaccuracies, for one thing. ANCSA has been talked about as something we gave to the natives, but it was a settlement of Alaska native claims to land and claims covering all of Alaska. The natives were authorized to select 44 million acres and to receive $962,500,000 for land they didn't receive. The State was so eager to get the pipeline going at that stage, that that's the deal we made with the natives. The other issue he heard was to go to court to annul ANILCA. He asked what if Alaska would win such a case. Congress has a right under the U.S. Constitution to pass any indian law they wish. They could turn around and do anything they want across the board. State sovereignty won't have any meaning at that point. MR. FISCHER said that there is a big difference between subsistence use and personal use. To him subsistence should be a use that relates to survival and he thought there should be a lot more emphasis on personal use. The constitutional amendment before them is as cleanly written as anything he has seen since Mr. Terry Miller passed the right to privacy legislation back int 1972 - 74, although he didn't agree the whole thing. He suggested that the constitutional amendment which he favors should read, "The legislature may, consistent with the sustained yield principle, provide a priority for subsistence and personal uses in the taking of fish and wildlife and other renewable resources, including such taking based on place of residence." MR. CHUCK GRAHAM said the proposed system of subsistence is discrimination at its ugliest. He said we are all in this room today because of the impending federal assault on our resources which would set up and enforce a system of racial discrimination. He said the root of the crisis is the rural preference clause of ANILCA. He said we don't have to discriminate. The solution is a legal challenge to the rural preference clause that is now making its way through the court system. MR. GRAHAM said that he has heard a lot of selfish testimony and hasn't heard one person speak on behalf of the healthy, sustainable herds of wildlife and fish. The question of subsistence and the health of the wildlife are not separate items. What works is when professional biologists assess what can be harvested and what can't and where, etc. He thought the system we have now of certain open seasons and bag limits that are open to everybody works for everybody. He didn't think it was humanly possible to establish a system based on race or length of residency or place of residence that would work and not be discriminatory that will protect the wildlife resources of this State. SENATOR LINCOLN asked if he viewed rural preference as a racial preference. MR. GRAHAM answered that he viewed rural preference as being utterly undefinable. He felt that a moose is a god-send. He looks forward to the life-style of taking and harvesting game, of respecting the animal and acknowledging that it wants to live as much as we do, that it was put on this earth as we are; the taking of this animal is a deliberate act of self and by doing so it teaches a person and gives him a viewpoint of his own life and time on this planet that can be found in no other way. It's not based on race. He looks upon hunting as a privilege; there are alternatives like Costco and jobs, etc. In answer to her question he said he didn't see rural as a native preference. He thought race was at the core of the subsistence issue and he thought it was as damaging to the native people as it is to the people who enforce it. He also thought the legislators were naive if they let the federal government coerce the State of Alaska into changing our Constitution and that they are going to grant us autonomy. They will subject the State of Alaska to intense oversight; and the first time we depart from what they feel to be their guidelines, they're going to descend on us like flies on a dead dog. MR. RANDY BJORGAN said he thought the proposal should go no further than the discussion stage. He opposed changing the Constitution and didn't think we should allow ourselves to be blackmailed by the federal government into actions that pit Alaskan residents against each other. This issue should not go to the voters either, he said, because it is just manipulation by the federal government through our administration to further pit the people of Alaska against each other. SENATOR LINCOLN asked what his solution was. MR. BJORGAN answered that the constitutionality of ANILCA should be challenged. He felt he might go along with rural preference because people have chosen to live that kind of life-style and he chooses to live in Anchorage for other reasons. TAPE 97-53, SIDE A MR. RAY METCALFE said he is litigant in the North Star litigation and in this process has found out a lot about public trust and resource management. He said he is convinced we don't need a constitutional amendment. Our problems of subsistence and the goals of the rural community and native community are totally solvable within statutes changes. He thought the Supreme Court was ready to rule that personal use comes first and subsistence is a form of personal use. He thought the State should pass legislation that puts it first in a manner that solves the subsistence needs. He thought the Supreme Court would rule that is the correct thing to do. MR. METCALFE had copies of the publication by Greg Cook on public trust and resource management which he thought was imperative reading for anyone on this committee. REPRESENTATIVE OGAN said he had read it and recommended it as well. MR. FRITZ PETTYJOHN pointed out that the Task Force proposal wants to amend the Constitution which is a multi-generational document. It's not some thing you can change here and there. If you put in the Constitution some sort of separation based on residence, then the State is divided essentially which is the worst kind of public policy. It also is a permanent division which would be even worse. SENATOR LINCOLN said she was glad to hear he thought she had so much power. She didn't think the proposal was a perfect document and that they needed to look at all proposals and what is good for all of Alaska. She didn't think we were managing our fish and wildlife in a manner such that anyone's great great grandchildren will have the same opportunity as we do today. MR. PETTYJOHN said he had no argument with that. He restated he just didn't understand why we would want to draw a line between rural and urban in the Constitution which would lead to statutory and regulatory divisions. SENATOR LINCOLN said she didn't want to gamble on her grand childrens' future. We have to look at all of our options and she didn't know if "we rolled the dice" and took the federal government on, that they were bluffing. She didn't know if Senator Stevens was bluffing. She wants to hear what all Alaskans have to say and what bothers her is that they are not willing to put that out for the people to vote on. She would be willing to take the gamble of asking them if they want a rural preference. MR. RON BARNES, Tununic Traditional Elders Council, said has resolutions from other elders' councils asserting, for one thing, that they had never been politically recognized. He noted that the indigenous people's did not get to participate in their settlement and they have a right to self-determination. Reducing the subsistence issue to something personal that someone needs reduces the indigenous people's right to development because this right is based on their resource and fishing rights. CHAIRMAN HALFORD noted that Mr. Barnes had done a lot of work on indigenous issues in an international sense and a lot of things he says are accurate, but in a State sense the disclaimer in the Constitution is followed by the disclaimer in the preamble of ANILCA and if you put the two together, everybody has disclaimed any exclusive rights they may have of fisheries and game. That means they become common rights. The problem with subsistence is in the transition communities like Nenana and Glennallen. Mr. Barnes is talking about political rights and the distinction is always made between political and racial rights in American indian law. MR. BARNES responded that he didn't think they had dealt with the problem. He mentioned their needs to be fulfilled through certain foods because that is in indigenous peoples' genetic makeup. He said the assertion has been made that the way the State's Constitution was written and the way the deal was struck with ANCSA were both illegal. SENATOR LINCOLN said, using Rampart as an example, that lands were not always selected for game purposes or gathering purposes. The majority of the 173 people who are shareholders from Rampart do not reside within Rampart proper. You still must abide by State and federal fish and game laws. There is a checkerboard effect among the State, federal, and private land holdings. There are very few villages that have actually posted their areas. It's expensive as heck to monitor 93,000 acres of land. REPRESENTATIVE MASEK asked him if he worked with AFN, the non- profit organizations, the IRA, or an organization that has political recognition or power. MR. BARNES answered straight from Resolution 742, Section 8, he said that AFN's voice is bought and paid for. The parameters for what they can argue is already set. For statehood and in order for them to not get the vote, they had to not follow some of these provisions which requires them to have an indigenous representative, to have all this explained in the indigenous language, and to have international monitors to sit there and make sure that process is followed through. REPRESENTATIVE MASEK said she had a copy of the native subsistence summit in August 28, 1997, Resolution 9701 concerning the subsistence rights of the Alaskan native people. The back of the section directs the leadership of the AFN, the Alaska Intertribal Council, and the Rural Communities Action Program to continue to work to resolve this issue. MR. BARNES said he was invited to the Subsistence Summit, but he couldn't make it for personal reasons. And as far as the three mentioned groups having the total say-so in the rights of indigenous peoples of Alaska, it also states you can't make a decision unless they are fully informed and you've received the consent. There are still a lot of indigenous peoples who don't look to AFN for leadership and this is a growing trend. REPRESENTATIVE MASEK recommended that he tell that to Kevin Speak at the AFN because that's very important since they are the policy makers for Alaskan natives. CHAIRMAN HALFORD thanked everyone for their participation and adjourned the meeting.