SENATE RESOURCES COMMITTEE Second Special Session September 23, 1999 2:20 p.m. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Robin Taylor, Vice Chairman Senator Pete Kelly Senator Jerry Mackie Senator Lyda Green Senator Sean Parnell Senator Georgianna Lincoln MEMBERS ABSENT None COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 201 Proposing an amendment to the Constitution of the State of Alaska relating to subsistence use of renewable natural resources by residents of the state; and providing for an effective date. - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SJR 201 - See Resources minutes dated 9/22/99. WITNESS REGISTER Gerry Hope ANB Sitka Camp 1 PO Box 72 Sitka, AK 99835 POSITION STATEMENT: Supports a constitutional amendment; opposes any changes to ANILCA. Eleanor Demert PO Box 4 Cantwell, AK 99729 POSITION STATEMENT: Prefers state management of fish and game resources but supports federal management if state management means her culture must be suppressed. Paul White, Jr. Huna Totem Corporation PO Box 22356 Juneau, AK 99802 POSITION STATEMENT: Opposes any changes to ANILCA. Carl Rosier 8298 Garnet St. Juneau, AK 99801 POSITION STATEMENT: Opposed to a constitutional amendment; believes changes need to be made to ANILCA. Lonnie Tyone PO Box 761 Glennallen, AK 99588 POSITION STATEMENT: Supports a rural priority. Ken Johns Copper River Native Association Copper Center, AK POSITION STATEMENT: Federal management has been more responsive to the needs of subsistence users. Dewey George PO Box 210225 Auke Bay, AK 99821 POSITION STATEMENT: Supports a state policy provides for a Native subsistence right based on ancestry and a permit system for non- Native subsistence users. Gloria Stickwan Copper River Native Association PO Box 264 Copper Center, AK POSITION STATEMENT: Supports a rural priority. Lynn Levengood Alaska Wildlife Conservation Alliance 931 Vide Way Fairbanks, AK POSITION STATEMENT: Opposed to amending the Constitution and supports changing ANILCA. Gabe Sam Tanana Chiefs Conference 122 1st Ave. Suite 600 Fairbanks, AK POSITION STATEMENT: Supports a rural priority. Gilbert Bent PO Box 614 Allakaket, AK 99720 POSITION STATEMENT: Native people need a subsistence priority. Richard Lundahl PO Box 718 Pelican, AK 99832 POSITION STATEMENT: Provided proposed legislation to committee members. Donne Fleagle McGrath, AK POSITION STATEMENT: Supports the continuation of Native subsistence lifestyles and the override of the Governor's veto of SB 74. Hjalmar Olson PO Box 456 Dillingham, AK 99576 POSITION STATEMENT: Expressed concern about the negative impact on villages caused by an increased number of non-resident hunters. ACTION NARRATIVE TAPE 99-37, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 2:20 p.m. Present were Senators Green, Taylor, Parnell, Mackie, Lincoln and Chairman Halford. Other legislators present were Senators Ward, Hoffman, Wilken, Leman and Torgerson and Representative Cowdery. SJR201-CONST.AM: RURAL SUBSISTENCE PRIORITY CHAIRMAN HALFORD announced that at the request of Senator Ward, he sent a letter to President Clinton requesting him to clarify his position on protecting subsistence rights for all Alaska Natives rather than for Natives who live in rural areas. CHAIRMAN HALFORD informed participants that the committee would continue to take testimony on SJR 201. He asked Gerry Hope to testify. GERRY HOPE, President of the Alaska Native Brotherhood (ANB) Sitka Camp Number 1, gave the following testimony. ANB Sitka Camp supports the Alaska Native Brotherhood and Alaska Native Sisterhood Grand Camp Convention resolution that has been consistent since 1991. That resolution supports no changes to Title VIII of ANILCA and it supports a state constitutional amendment to reflect the language in Title VIII. In regard to SJR 201, Mr. Hope said he supports changing the word "may" to "shall." He hopes that the dialogue taking place during this special session on subsistence will convince enough legislators to pass a constitutional amendment to the voters. Mr. Hope stated that ANB Sitka Camp No. 1 prefers local control, and it would prefer that the state manage fish and game resources, however Alaska Natives cannot give up any more than they already have. ANILCA is one of the few legal tools left that helps to protect Alaska Natives' lifestyle. Alaska Natives use very little of the resources, about four percent. If the choice is federal control versus the loss of ANILCA and Title VIII provisions, then he would regretfully choose federal control. Number 074 SENATOR TAYLOR indicated that President Clinton and Ms. Kitka stated they would support no changes to ANILCA in earlier testimony, and then they stated that further relationships and negotiations would occur on a government to government basis. He asked what the President and Ms. Kitka meant by the term "government-to-government." MR. HOPE responded that he cannot speak for AFN, however he assumed the federally recognized tribes would have more direct involvement with the Department of Agriculture and the Department of Interior. SENATOR MACKIE asked about the membership of Sitka's ANB and ANS organizations. MR. HOPE replied the two organizations have a combined membership of 200 paying members. The federally recognized tribe of Sitka has an enrollment of around 3,400, which is a significant portion of the 8,500 residents as estimated in the 1990 census. CHAIRMAN HALFORD asked if Sitka is considered to be rural under the federal definition. MR. HOPE said it is. CHAIRMAN HALFORD asked if Sitka is the largest rural community under the federal definition. MR. HOPE said he believes it is. SENATOR MACKIE clarified that Kodiak is the largest rural community. Number 148 ELEANOR DEMERT, a resident of Cantwell, presented written testimony to committee members and said she will not vote for a constitutional amendment that contains the word "may" instead of "shall" because she does not trust that the state will provide for a rural preference otherwise. SENATOR LEMAN asked Ms. Demert why legislators would want to go through this painful exercise to put a constitutional amendment on the ballot if the legislature did not intend to enact the amendment if it passes. MS. DEMERT noted the public voted on moving the capital, however the legislature did nothing. SENATOR LEMAN pointed out that the funding portion of the vote failed. MS. DEMERT said that is her opinion. SENATOR LINCOLN remarked that the issue of subsistence has been a painful one for 16 years. She asked, if it is the legislature's intention to listen to the people's vote, why not change the word "may" to "shall." SENATOR TAYLOR maintained that he is troubled by Ms. Kitka's and President Clinton's use of the term "government-to-government" because it sounds as though they believe it will be preferable for tribal leaders to negotiate directly with the federal government rather than to make any changes to ANILCA. He asked Ms. Demert to comment on that statement. MS. DEMERT said she believes that is true because the federal government recognizes tribal governments while the state has made no efforts to work with them so far. As Cantwell Village Council president for many years, she has never seen the state recognize the Village Council while the federal government has. She added that she agrees with Mr. Hope that she would prefer that the state retain control of its fish and game resources, but she would prefer federal management if her culture is going to be suppressed. She stated that her people are and have been hunters, and her 8 year old grandson asks when he can hunt with his grandfather. She noted hunting is just part of her life and she cannot imagine changing that. She wants her grandson to be comfortable in his village and to live the way she has if that is what he chooses. Number 223 PAUL WHITE, JR., representing the Huna Totem Corporation, made the following comments. His ancestors came out of Glacier Bay well over 10,000 years ago. The vest he is wearing has been handed down through generations, so he has his ancestors with him. The Huna Totem Corporation has over 1400 shareholders who support non- diminishment of ANILCA. His group also supports the word "shall" as opposed to "may" because the word "may" can be used as an administrative tool, while the word "shall" states a policy. Mr. White said that the word "subsistence" means a lot more than food gathering to his people. His family worked year round putting up food. Four of five families fished cohos at a specific Point each summer. They sold the cohos so that they could buy coffee, salt, and flour. The remainder of the food was gathered from the land. He noted that bartering is a valuable tool in a subsistence lifestyle. In his lifetime, he is only able to live a "limited" subsistence lifestyle. The subsistence way of life has been diminished. He asked committee members to seriously consider allowing for a subsistence lifestyle. SENATOR LINCOLN asked Mr. White his opinion of the lack of a subsistence right for urban Natives under this proposal and whether that is discriminatory toward urban Natives. She noted that during the times that she lived in an urban area, she did not worry about a lack of subsistence foods because her relatives sent her as much of those foods as they could. She asked Mr. White to comment on the concern that SJR 201 could result in discrimination against Alaska Natives living in urban centers. MR. WHITE said it is a dilemma for urban people who will no longer be able to practice a subsistence way of life, however he noted that villagers have always shared, and probably will continue to share, food. Number 378 MR. CARL ROSIER, testifying on his own behalf, informed committee members that he has been associated with utilization and management of Alaska's fish and game since 1955. Mr. Rosier gave the following testimony. He began working for the Alaska Department of Fish and Game as an assistant area biologist in 1959, then advanced through the various management positions of the department and was appointed deputy commissioner in 1979. He left the department in 1980 to work for the National Marine Fisheries Service, until he was appointed as commissioner of ADFG in 1991. He retired in 1995. Over those years, the salmon resources of the state responded to good management after Alaska had inherited a severely depleted resource at statehood. Today's bounty of salmon statewide is no accident and many professionals have the scars of public opposition to decisions made in the interest of conservation. Management of fish and game resources requires making tough decisions on a timely basis. Those decisions often affect people's income and lifestyle, but the resource must be considered first, otherwise it will be depleted, as in 1959. Over the years, far-sighted legislators established state laws for emergency provisions for harvesting fish and game resources for food. The legislature provided for reduced-fee licenses in recognition of data collection needs of ADFG and low income individuals, use of fish and game for education purposes, ceremonial taking in recognition of some cultural needs, and it established the state's subsistence priority based on a sustained yield. That system has worked well for all Alaskans, but now, thanks to poorly crafted federal legislation, Alaska is on the threshold of losing a major part of this system that was so carefully crafted over the years to a new system of fighting among Alaskans and placing the resource at major risk under federal management. It is discouraging to hear Alaskans talk about supporting federal management of subsistence because they believe it will be more sensitive to its needs. Many people are being misled for political reasons. Although we learned something about the federal system of management during the pre-statehood days, we have people supporting a return to that system who watched the devastation of the beluga whale population in Cook Inlet just recently. The Vice-Chair of the Alaska Board of Fisheries mentioned yesterday that efforts to develop an integrated subsistence management program between the state and federal government was trashed by federal participants in late June of 1999. ADFG documents from that meeting indicate that the federal members no longer endorse the concept of integrated management but instead maintain a separate program approach at the direction of the federal regional advisory council. MR. ROSIER said he strongly opposes SJR 201 and he is appalled at the statements made in the Governor's letter of transmittal. In his view, the state gains absolutely nothing from the passage of SJR 201 and it will be no more than a federal puppet as far as fish and game management is concerned. The state will not get management back by letting the voters vote. SJR 201 does not protect state's rights, it denigrates the state's constitution, and if passed, it will lead Alaskans to a future of dispute, rivalry, and ultimately loss of fish and game resources. The real problems are the provisions of Title VIII of ANILCA and the Governor recommends no changes to that legislation. It is a shame that SJR 201 shows no political courage. Number 442 SENATOR MACKIE commented that he believes Alaska has the best resource management system in the world. He asked Mr. Rosier if he is comfortable with a federal takeover on October 1, and what Mr. Rosier predicts the outcome of that system to be. MR. ROSIER replied that he is not comfortable with federal management at all. He noted that he worked for the federal government in a management capacity, and that the structure of federal organizations is such that they cannot be sensitive to the types of things that the Board of Fisheries and the Board of Game are sensitive to. They generally take things in large bites, such as the closure of Glacier Bay to commercial fishing. Mr. Rosier maintained that there is no biological basis for closing Glacier Bay to fishing. Likewise, the federal government stopped the taking of seagull eggs for subsistence purposes until they did a study to find out whether any impact had occurred. He noted that the federal government will have to do a study every time it has to say no to someone. Alaska is turning over a resource in good condition, therefore the federal government has not had to say no. In the long term, however, Alaska will lose its resources and will be where it was in 1959. SENATOR MACKIE asked Mr. Rosier why the legislature should not take the issue to the people, given that the federal government is poised and ready to take control. He asked Mr. Rosier how Alaska can get "out of this box" of a federal takeover on October 1. MR. ROSIER said the key is what the public wants regarding state's rights. The crux of the statehood activity was that Alaska was to be put on equal footing with all of the other states, and now Alaska is backing away. The job that needs to be done now, because the Administration is not showing leadership, is to go after the state's rights. No options should be precluded for future Administrations to take on this issue. Alaska must take this issue to the U.S. Supreme Court to get it resolved. Once its Constitution is modified, Alaska will be at the complete mercy of the federal government. SENATOR MACKIE noted the Alaska Legislature spent a lot of money taking this issue to court, but the case was thrown out, and the Governor is not willing to take that route. He asked what the Legislature can do before October 1. MR. ROSIER noted the case was thrown out of court for technical reasons. He said the Legislature cannot do anything before October 1, however the world will not come to an end. This issue will have to go back to Alaska's congressional delegation and the legislature will have to put together a program that meets the needs of all Alaskans. SENATOR MACKIE noted the world will not come to an end, state management will. Number 509 SENATOR TAYLOR asked Mr. Rosier if there is one iota of a difference between the enforcement that will take place under state management and the enforcement that will take place under federal management because ANILCA will remain the same. He emphasized that the idea that state enforcement will differ from federal enforcement is a complete misnomer. MR. ROSIER agreed with Senator Taylor completely. SENATOR TAYLOR maintained that if no changes are made to ANILCA, Desa Jacobsson will get arrested by a state trooper rather than a federal agent for putting a net in a particular stream. Either way, Desa Jacobsson will go to jail because she is a Juneau resident and ANILCA only gives the priority to rural residents. He repeated that this "federal takeover" is a total misnomer. Number 518 LONNIE TYONE, a resident of Gulkana Village, said he has lived in Gulkana Village for a good portion of his life. He has never shared his feelings about this issue with anyone. His definition of the word "subsistence" is very different from legislators'. TAPE 99-37, SIDE B Mr. Tyone continued. Urban hunters have come into his area and have depleted the game population. He fears that the day will come when all game populations are depleted, and not until that time will Natives be given a priority to what is left. He stated the traditional and cultural aspect of subsistence is very important to Native peoples. He asked what kind of future Alaska Natives will have without a rural priority. SENATOR LEMAN commented that Title VIII does not provide for a traditional and customary priority, which he believes is a shortfall of that legislation. He asked Mr. Tyone if he would support changes to ANILCA that would provide for a traditional and cultural priority rather than one that is solely based on residence. MR. TYONE replied that it depends on whether there are any strings attached that will be detrimental to Alaska Natives. SENATOR LEMAN thought a better solution would be to incorporate traditional and customary use into the array of criteria for qualification. Unfortunately, the state cannot incorporate that criteria without changing the federal law. MR. TYONE said there has to be a way to accommodate Native peoples and that something needs to be done before the animal populations are depleted. Number 502 CHAIRMAN HALFORD noted that game management has been under federal subsistence control for nine years. He asked if game management has improved in the last nine years in Mr. Tyone's view. MR. TYONE replied that the management is worse and many people who solely lived a subsistence lifestyle are no longer able to. He noted that many people who work "9 to 5" jobs also want priority access to a subsistence lifestyle, and that the problem is a conglomeration of many things that come down hard on the Native people. CHAIRMAN HALFORD agreed with Mr. Tyone's description of the problem. With regard to fisheries, the conflict is not so much rural versus urban as it is with game. He pointed out that the conflict in the Lower Yukon-Lower Kuskokwim area is between rural residents. He asked Mr. Tyone if he believes a local preference would work better than a statewide rural preference so that the person who is closest to the resource would have the priority. MR. TYONE did not respond. Number 445 KEN JOHNS, President of the Copper River Native Association (CRNA), made the following comments. His area is known as the Unit 13 Area, which he considers the ground zero area for the subsistence issue because of the pressure on the Nilchina caribou herd and Copper River salmon runs. He asked legislators to protect the Native villages. His village has been limited to a five day moose hunt at times. Right now, the Nilchina caribou herd is off limits to hunters under state management, however under federal management one can take two caribou. Also, with a federal subsistence permit, one can take any bull moose but the state only allows the taking of a spike four or 50 inch bull. Because of that, many villagers prefer federal management because it is more concerned with the needs of the people in their areas. CHAIRMAN HALFORD asked if the state law now allows any bull to be taken in Unit 13 with a subsistence permit while under a non- subsistence moose hunt, one must take a spike four or 50 inch or better. MR. JOHNS said they have separate seasons and that only 150 permits are given for the early season. Hunters must compete with everyone in the state for those permits. He said it is very tough and the attractiveness of federal management is evident to Native villages. He cautioned legislators to be careful of the wording in a constitutional amendment because no one wants to spend two or three years in court over terms like "reasonable opportunity." Villagers have fought the state for ten years on that definition. He also cautioned that the Legislature needs to resolve this issue with the Native people now. SENATOR PETE KELLY maintained that the topic of shortages caused by poor management has been raised several times during this special session, such as the five day moose hunting season. He asked Mr. Johns to encourage rural lawmakers to support the override of the Governor's veto on SB 74, which would give a preference to good game management over wolves in Alaska. MR. JOHNS said he is with Senator Kelly on that but his Native brothers will not be at the table because the subsistence issue is still under discussion. SENATOR KELLY remarked that Alaska will have subsistence for wolves rather than subsistence for the Native people. He noted that he is concerned that rural lawmakers should be at the table. MR. JOHNS maintained that rural lawmakers need the Native coalition to stand behind the issues that should be discussed, one of them being predator control. SENATOR MACKIE asked Mr. Johns if he served on the Board of Game. MR. JOHNS said he served one term. SENATOR MACKIE stated that Mr. Johns is uniquely qualified to comment on this topic. He asked Mr. Johns what red flags he sees if the federal government takes over management of Alaska's fisheries on October 1. MR. JOHNS replied he sees years of non-cooperation between state and federal managers and he feels the younger generation will be the losers. The federal managers are likely to implement laws and regulations that will provide for grandfather rights which will make many ineligible. He noted that may be good for today's villagers, but not future generations, which is why he feels it is critical that the state protect Native villages now. SENATOR LINCOLN referred to Senator Kelly's comment about rural legislators support of SB 74, and commented that she has not been pressured by the Governor and she objects to that kind of a blanket statement. She also noted that a statement was made that implied that ANILCA does not provide for cultural and traditional aspects of subsistence. She asked Mr. Johns whether he believes that Congress would open up ANILCA to make only those changes. MR. JOHNS said he does not believe so because too many things are tied to ANILCA, for example mining and development. SENATOR TAYLOR asked Mr. Johns, as a former member of the Board of Game, who is taking care of the resource if, under federal management, the Nilchina caribou herd has crashed yet subsistence permit holders can still take two caribou per season. He asked how far the herd will have to be depleted before the federal government decides there are not enough animals left for anyone to kill. MR. JOHNS said if you invite Fairbanks and Anchorage in to hunt, as in the days of state management in the 1960's, the herd will be cut to nothing. SENATOR TAYLOR said that the only people who can hunt that herd today are subsistence qualified people. MR. JOHNS remarked that the problem in that area is that there are too many hunters for that herd and that urban hunters come in. He noted there was a four day open registration hunt one year and during that hunt 4,000 caribou were shot in 3+ days. CHAIRMAN HALFORD interjected and said he thought both Senator Taylor and Mr. Johns are right. He clarified that Senator Taylor is saying that the state closed hunting of that herd while Mr. Johns is saying that when it was open, there was so much capacity in hunters that they could take the harvestable surplus in no time at all. SENATOR TAYLOR remarked that he agrees with Mr. John and said that as a Wrangell hunter, he qualifies under subsistence to go shoot two of the Nilchina caribou under federal law. He said he does not believe it is his place to go to that area and shoot a caribou out of someone's backyard. He repeated that his concern was who will take care of the resource and, that under ANILCA, the federal managers will work off of a viability standard rather than a sustained yield standard. He explained that a viable population can be considered a handful of breeding cows and bulls. That aspect of ANILCA frightens him and he agrees that the next generation will suffer. MR. JOHNS asked committee members not to make the assumption that he is in total support of federal management. He clarified that he was saying that federal management is better suited for the five villages in his area at this time because the state has not been doing its job in doe protection. He stated that he encourages everyone to hunt, but when there is so much pressure on a herd that the hunt must be shut down, it is not the urban people who suffer, it is the villagers within that area. He repeated that his concern is one of protection for villagers so that they can put food on the table. Number 207 DEWEY GEORGE, testifying on his family's behalf, made the following comments. Mr. George distributed copies of a letter he wrote to Lt. Governor Fran Ulmer to committee members. His concern is for the preservation of a culture and for the preservation of wildlife populations. The federal policy focusses on protecting rural residents, Native and non-Native alike. The state policy leans toward protecting economic interests. He proposes a state policy that focuses on the protection and preservation of the Native cultures of the State of Alaska. Such a policy may force federal managers to rewrite their own policies. He has no interest in excluding non-Native residents of the State of Alaska. His proposal would give all Natives the right to subsistence as a way of life by virtue of their ancestry. For non-Natives who wish to continue practicing a subsistence way of life, they should be given the right to continue their lifestyle by way of a license or permit. He does not believe any Alaska resident, Native or non- Native, does or should have any intent to harm what remains of the Native culture. The present federal and state policies are both missing the target. CHAIRMAN HALFORD commented that he does not believe that the state can differentiate between Natives and non-Natives in its Constitution and provide a different licensing scheme. The federal government can because of specific provisions in the federal Constitution. There may be ways that the state could deal with the federal mandate. MR. GEORGE informed committee members that he left a more detailed proposal with the Attorney General's Office yesterday. He said that he does not believe that anyone wants a federal takeover, so he urged legislators to make their decisions based on principle. Number 132 GLORIA STICKWAN, subsistence coordinator for the Copper River Native Association, made the following comments. She lives in the Ahtna region and believes federal management will work best for that area, however she believes a legislative solution on the subsistence priority needs to be found. The Southcentral Regional Advisory Council currently submits proposals to the Federal Subsistence Board and those proposals are accepted unless a sound conservation reason not to accept them exists. Seven villages in her area will be directly affected by federal management because they are adjacent to the Wrangell St. Elias Park Preserve. She believes the word "may" in SJR 201 should be changed to "shall" so that the legislature does not have the option of granting the rural priority. She agrees with Mr. Johns that the term "reasonable opportunity" does not ensure protection to villagers. Her area is heavily impacted by urban hunters who use ATVs to cover many off- road miles. The villagers do not use those so must hunt along the road system. The villagers are afraid they will be shot at if they venture off the road. Number 42 LYNN LEVENGOOD, a member of the Alaska Wildlife Conservation Association and Fairbanks attorney, distributed a copy of a proposed constitutional amendment and a paper regarding Alaska's sovereign authority to manage its resources within its submerged lands and waters. TAPE 99-38, SIDE A MR. LEVENGOOD gave the following testimony. The issue at hand is Alaska's sovereignty versus federal intrusion. The proposed solution by this Governor is that we divide Alaskans among Alaskans. The Attorney General testified yesterday before the House Resources Committee, and what he did not say was much more important than what he did say. The Governor's transmittal letter says that on October 1, Alaska will lose the right to manage a significant portion of Alaska's fish and wildlife. That is not a true statement. With the Statehood Compact and the Submerged Lands Act, Alaska received sovereignty and the sovereign ability and ownership of the submerged lands and the water, and all of the wildlife resources contained in those lands and waters. Alaska's sovereignty gives it the ability to manage and allocate those resources. Congress does not have the ability to take away the sovereignty of the State of Alaska. Moreover, ANILCA does not provide for any management authority within it. The only authority the Secretary of Interior has if Alaska is not in compliance with ANILCA is to go to the federal courts. Yesterday, Attorney General Botelho was asked a question by a House Resources Committee member regarding the member's wife who was of Native heritage. He asked whether his wife, who lives in Juneau, would become a second class citizen. The Attorney General replied that her ability to harvest wildlife resources will come via some sort of proxy or educational permit. MR. LEVENGOOD noted that was a judicial admission that the scheme created by SJR 201 is to, in fact, create second class citizens because to require one group of citizens to get a special educational or proxy permit automatically determines that their citizenship and equality is of a lesser standard than others. Attorney General Botelho did not tell the committee that a very viable alternative is for the Legislature to do nothing and, if the federal government attempts to take over fisheries management in the State of Alaska on October 2, a direct action should be filed in the U.S. Supreme Court. MR. LEVENGOOD cited U.S. Supreme Court v Alaska, USA 4-1975, a case brought by the United States government regarding the submerged lands beneath Cook Inlet: It would appear that this case qualifies under Article III Section 2 of the U.S. Constitution for original jurisdiction. MR. LEVENGOOD cited United States v West Virginia 295 U.S. 463- 1935: We are not enlightened as to why the United States chose not to bring this as an original action in the U.S. Supreme Court. MR. LEVENGOOD said the issue before the Legislature, which is the title and ownership of the submerged lands and waters, has already been to the Supreme Court who said any future disputes should come to them directly. If Alaska goes that route, finality will be reached within two years. If SJR 201 is passed by the Legislature, it will not reach a vote of the people because it qualitatively and quantitatively touches at least 13 sections of the Alaska Constitution. Most importantly, it does not satisfy ANILCA. SJR 201 contains the word "may" which makes it volitional; and it contains the words "to" and "among" which creates additional divisions. Furthermore, Mr. Levengood read a portion of the final regulations in the Federal Register: Should the Secretary of the Interior certify before October 1, 1999 that the State of Alaska has passed a bill or resolution to amend the Constitution of the State of Alaska that, if approved by the electorate would enable the implementation of state laws consistent with and provide for the definition, preference, and participation described in Sections 803, 804, 805 of ANILCA, then these regulations will be held in abeyance until December, 2000. MR. LEVENGOOD maintained that the federal regulations will come into effect on either October 1, 1999 or December 1, 2000. If they come into effect October 1, there will be a potential 600,000 causes of action against the federal government, one for each Alaska resident, for taking Alaska's resources away from its citizens. More importantly, the federal government will be attempting to manage on only federal lands, with federal dollars, and federal personnel. If Alaska passes a constitutional amendment, the Stevens Amendment requires that amendment be of general applicability. To even attempt to satisfy the Stevens Amendment, Alaska's law would have to be a general law incorporating all of the lands within the State of Alaska, not just federal lands. Then, Alaska would be regulating based upon the federal rules and federal regulations, with state dollars, state payrolls, state enforcement but no state management because the Federal Subsistence Board will set the hunting and fishing seasons. Mr. Levengood noted that the Federal Subsistence Board has already shown that it is not interested in cooperative management with the state. MR. LEVENGOOD indicated that the mechanism to divide pits Alaskans against Alaskans and implicates 13 sections of the state constitution. Most of those sections contain the individual constitutional rights of each and every Alaskan. Those rights are recognized by our constitution, and provided by our constitution. They cannot be taken away by our government and they are not subject to popular vote. MR. LEVENGOOD asserted that the best action is to take no action and to keep open every avenue available to this government to challenge federal intrusion on Alaska's sovereignty. If this issue goes before the Supreme Court and it decides that ANILCA, or portions of it, are constitutional, Alaska can always comply at a later date. Mr. Levengood emphasized that the only result of a vote by the electorate would be the delay of implementation of federal regulations, and that the only way to get state management back is for Congress to amend ANILCA. He believes the Legislature has no choice but to defend Alaskan sovereignty, its Constitution, and the individual rights of its citizens. SENATOR TAYLOR asked Mr. Levengood to explain what the word "takeover" means when associated with the federal takeover on October 1. MR. LEVENGOOD remarked that term of art probably has as many meanings as the number of speakers who utter it, however, according to the federal register, federal regulations will take effect, but as far as subsistence goes, the regulations say there will be very little initial impact by the federal government. SENATOR TAYLOR asked, assuming SJR 201 is adopted even though it is not in compliance with ANILCA and violates Ulmer v Bess, what law the state will be enforcing if a constitutional amendment passes. MR. LEVENGOOD replied that all state lands would be affected, not just federal lands. SENATOR TAYLOR asked if, by passing the constitutional amendment, the jurisdiction of the federal law will be expanded, so that the same discriminatory enforcement will apply to state and private lands. MR. LEVENGOOD said, "Absolutely, and that basically then closes the door to then challenge the state-federal sovereignty issue because we have now passed state law that adopts the federal law and regulations into state law, so the state-federal issue goes away. Some legal scholars will tell me that portions of it still exist, but large portions of it would be lost and would not be able to be litigated in court." SENATOR TAYLOR asked if we go along with this group that wants to embrace the federal law, we will end up having to enforce the same law that the federal agencies would have to enforce. MR. LEVENGOOD said they are the same and are spelled out in the Federal Register and they will be enforced in either October of 1999 or December of 2000. Thereafter, changes will be made by the Federal Subsistence Board and regional boards set up under the program. Because these regulations provide for discriminatory treatment of citizens, the State of Alaska is subject to lose up to $40 million per year in Dingell-Johnson-Pittman-Robinson funds because those funds cannot be utilized in areas where equality is not the rule of law. The State of Alaska may still be able to receive the funds but not expend them on certain areas. SENATOR TAYLOR asked Mr. Levengood if he knows of any legal scholars in Alaska who disagree with the legal statements Mr. Levengood made about ANILCA and the congressional record. He noted that lawyers read ANILCA to say that people, of any racial background, living in a community that is too large, who attempt to exercise their right of subsistence, will be arrested. He added that he would rather resist federal encroachment and protect the citizens of Alaska. MR. LEVENGOOD said he does not know of any contrary interpretations regarding implementation of ANILCA, however regarding extra- territoriality, the buzz word is Kleppe v. New Mexico, and in the appeal of the Katie John case before the Ninth Circuit Court. Kleppe enabled the federal government to protect an endangered species on state, federal and private lands in New Mexico. It provided the federal government with protective authority only, no management or allocation authority. The issue in Alaska is one of title: who owns the wildlife resources. The Submerged Lands Act and the Statehood Compact are clear on that question but no case law exists that allows the federal government an allocation authority. In the Katie John appeal, the Court determined that the federal government only has an interest in unappropriated, or reserved, waters. That decision clearly avoided any title or allocation issues. Number 358 SENATOR WILKEN asked Mr. Levengood to expand on the information on page 5 regarding two recent U.S. Supreme Court decisions on navigable waters. He asked if the premise is that the power of Alaska's Constitution trumps the power of Congress or the Governor or a Legislature. He noted if that is the case, the Legislature should not be meeting in special session. MR. LEVENGOOD said the strongest case is the 1992 U.S. Supreme Court case of New York v. United States. That court decided that Congress cannot expand its authority nor do the states have the ability to diminish their authority. That case determined that neither the Governor, Legislature, nor the people have the power to expand or contract sovereignty. He noted that the only way that he is aware of extending sovereignty is through a purchase. There is no overlap of sovereign authority, there is only a dividing line. Regarding the navigable waters issue, two Supreme Court cases address that issue: the 1997 Idaho-Coeur d'Alene case which says that the lands underlying navigable waters have historically been considered sovereign lands to which state ownership is considered an essential element of state sovereignty; and almost identical language was contained in the decision in the Dinkum Sands case (United States v. Alaska), written by Supreme Court Justice Sandra Day O'Connor. Since 1996, the U.S. Supreme Court has been states' rights oriented in its decisions, and clearly so on the submerged lands issue. Number 408 Gilbert Bent (ph) from Allakaket made the following comments. Watching how this system works has been an unbelievable experience for him. Subsistence is very important for Native people, and the Legislature must understand that because Native people must live under legislative guidelines. The system is in decline; the number of hunters versus the number of game will not allow the current system to last for long. And, by the time the Legislature makes a decision, no game will be left. Native people need the subsistence priority. His lifestyle is completely different from legislators and he needs his rights. GABE SAM, Director of Wildlife and Parks for the Tanana Chiefs' Conference (TCC), gave the following testimony. Information is being exchanged rapidly and everyone is trying to decipher what it means, but he has been hearing about a federal takeover and co- management, and for the record, the program that he supervises is working on a co-management project with the U.S. Fish and Wildlife Service already, and the venture has been successful. On the other hand, he has been having a difficult time working with ADFG in sorting out the problems he is having with the big game populations, for example predator control. He hopes the Legislature will overturn the Governor's veto of the predator control bill. However, in some areas of the state, particularly 19D East, even if the wolf predation control program is implemented, it may be too late. Other parts of the region are feeling the effects of the lack of strict regulations on the big game guiding industry and the problems are escalating. He has been unable to make any headway on the issue with state officials, but has been promised by the U.S. Fish and Wildlife Service that they will be responsive. VICE-CHAIR TAYLOR asked if TCC has a co-management agreement with the U.S. Fish and Wildlife Service to do some predator control. MR. SAM said not for predator control, the co-management agreement is on fisheries and had been in existence for three years. TCC is also working on some projects on the Yukon River with the Canadians. He added that the subsistence way of life for Natives is hanging in the balance right now, and it is up to legislators to make the decision. Many villagers paid their own way to come to Juneau to speak on this issue, and more wanted to come but could not afford to. VICE-CHAIR TAYLOR asked, on the wolf control issue, whether TCC has faith that the U.S. Fish and Wildlife Service will do something to help TCC on that issue. He noted that the same agency took away about half of the timber harvesting ability in the Tongass National Forest to protect it as a habitat conservation area to preserve the Southeast Archipelago wolf. MR. SAM replied that he was speaking of the big game guiding operations in the refuge. One of the main problems in that area is that there are too many hunters. He said the rural subsistence right to hunt and fish will be protected under the terms of ANILCA and the U.S. Fish and Wildlife Service will enforce that. He added that federal implementation is looking more attractive to TCC. SENATOR WILKEN commented that Mr. Sam's testimony troubles him because the Governor's proposal will prevent Mr. Sam and his son from hunting because they do not live in rural areas. He asked Mr. Sam if that bothers him. MR. SAM stated that he gave up a lot when he left his village in 1992 to attend the University of Alaska Fairbanks. He said he gave up his right to hunt and fish in his village. He wanted to work to protect rural peoples' way of life because they choose to live that way of life. He said that now that he lives in Fairbanks, he sits on the Board of the Fairbanks Native Association, in hopes of building better community relations among Native people and the community. He noted that he has made the choice to remain in Fairbanks, but he is willing to protect the rights of the people who have chosen to live a subsistence lifestyle. Number 583 RICHARD LUNDAHL, a commercial fishermen from Pelican, made the following comments. He first became aware of ANILCA in 1977 when a public hearing was held by the Forest Service in Pelican. He became involved politically with the issue when the state had a meeting for advisory committee chairs about subsistence, in about 1980. Pelican residents were opposed to the idea of subsistence at the time because they disapproved the return to federal management. He believes the state must do four things: it must take action immediately which means that the state cannot wait to amend the Constitution; it must pass legislation that satisfies all constituents; it must pass legislation that satisfies the federal courts; and fourth, it must pass legislation that satisfies the state court. He presented a bill that he drafted that meets the four criteria. The bill's premise is that a priority is to be made for personal or family consumption of the resources for food, fuel, transportation, clothing, etc. The second priority is that the uses of the non-edible portions of the resources are to be used for handicrafts, and the third premise is that the resources should be used for barter. Barter is defined as a non-commercial activity. The fourth use listed in the bill is customary trade. MR. LUNDAHL noted that the bill he drafted considers rural to mean "isolated" and he divided than into two categories. The first is a location which requires a person to take a plane or boat to a city with any size population. The second is a semi-isolated town in which a person could get on a major airline with one boarding and go to Seattle. MR. LUNDAHL noted the second major point of contention is customary trade, because half of the people in this state make their living from the wild resources. Pelican would have no residents after one year if commercial fishing were to cease. Two-thirds of Pelican's population has left since its cold storage closed three years ago. If, on the other hand, sport fishing were to close tomorrow, a few people would be hurt but the town would continue just the same. MR. LUNDAHL explained that he defined the four subsistence uses in the draft bill as personal subsistence use fishermen, personal handicraft subsistence use, subsistence barterer, and a customary subsistence trade commercial fisherman. He defined customary trade as being anything the state has legally allowed, licensed, or permitted up to this date. For example, the state has issued limited entry permits, therefore commercial fishing with such permits would be considered customary trade. In 1960, ADFG had a commercial fisheries division and that division had a subsistence section. That was changed with the advent of ANILCA; commercial fishing became a part of subsistence rather than the other way around. Mr. Lundahl's proposed bill also sets up criteria for a priority of who would be able to fish during different closures. In Pelican, for example, the personal use fishers who use the catch for food for their families or for clothing would be given top priority. The second priority would go to both the Juneau personal use fishers, which would include handicraft subsistence users and barterers. Customary trade of the commercial fishers would kick in at the same time as the Juneau personal use fishers. The third priority would be given to the Pelican sports fishers and the Juneau commercial fishers. MR. LUNDAHL said that his plan would meet the requirements of ANILCA because the priorities fit under the four uses for livelihood. He noted the limited entry program complies with ANILCA. He emphasized that many problems would be eliminated by placing commercial fishing under customary trade. CHAIRMAN HALFORD asked Mr. Lundahl what would happen to the sale of limited entry permits under this scenario. MR. LUNDAHL stated, "I think they would migrate back to the villages because if you ever had a subsistence priority and started to kick out people, you wouldn't kick them out, you'd just say, well you've still got your permit but you can't fish it this year because we've got a real problem." CHAIRMAN HALFORD surmised that the sale of limited entry permits would disappear. MR. LUNDAHL said he thinks the Seattle fishermen would not be able to fish and the value would go down, but the Angoon or Pelican fishermen would want to buy those permits. MR. LUNDAHL commented that he thinks such a bill would comply with Alaska's Constitution because it was amended in 1970 when limited entry was established. That amendment created the "no exclusive right of fishery" provision. He stated his proposed bill would comply with ANILCA because it is designed to prevent economic distress. When limited entry was established, many people involved in the fishery were suddenly excluded because they did not fish during the qualifying years. CHAIRMAN HALFORD asked Mr. Lundahl to provide the committee with a copy of his proposal so that it could be distributed to members and analyzed. MR. LUNDAHL remarked that his proposal is capable of solving the subsistence dilemma this week. He said he fears a federal takeover because it could destroy the commercial fishing industry and the town of Pelican. CHAIRMAN HALFORD thanked Mr. Lundahl for his presentation. Number 449 DONNE FLEAGLE, a resident of McGrath, made the following comments. She was raised five miles from McGrath on her late mother's Native allotment. Historically, indigenous people worldwide have not had equal opportunities or the ability to govern themselves once a dominant society moved in. During a visit to Botswana two years ago, she saw the bushmen being moved out of wildlife refuges because their cultures are incompatible with the rules of the refuges. She is from game unit 19D East which is on state land. The moose population has declined and four years ago the Governor visited the area and worked the Board of Game process. An initiative went into effect and removed one of the most successful management tools available to that area based on terrain. The ADF&G has failed to manage that area based on a sustained yield principle. She would like to believe that all men are created equal, however in reality, a person's ability to hunt where they want depends on how much money they have and what their resources are. She sees state government as a centralized, political structure; one that is disenfranchising more and more people. She finds it sad that more money has been spent on Minnesota Drive in Anchorage than in all of rural Alaska. The intellectual debate that has occurred over the last years regarding subsistence does not concern her because she will continue to teach her children as she was taught, despite whether she is a law-abiding citizen or not. Her way of life was practiced before statehood, and will be practiced in the future. She asked Senators to vote to override the Governor's veto of SB 74. She noted the moose to wolf ratio is as bad as it can get and she faults state management. Number 376 HJALMAR OLSON, a resident of Dillingham, gave the following testimony. He has been hunting and fishing in the state for almost 60 years. In the late '60s through the '70s, the Alaska Peninsula was a haven for hunters. The villagers got all of the meat they wanted. As the population of the state increased and non-resident hunters came into the area on booked hunts, the caribou and moose herds declined. Villagers now have to travel a long way to get a moose, and some do not get them. This year, he heard several complaints about the tier 2 hunt in that area. CHAIRMAN HALFORD asked Mr. Olson if he was referring to the Northern Peninsula caribou herd. MR. OLSON said yes, before they merged with the Malchatna (ph) caribou herd. As the pressure on the herd increased, the hunters moved to the King Salmon area. As that area declined, the two herds mingled, and the herd now consists of about 250,000 animals that have moved West toward Dillingham, Togiak, and Holy Cross. The upper part of Unit 17B, around the Malchatna River and Nushagak River, has become a haven for big game hunters. The locals do not go to that area anymore. He urged Senators to look at what will happen to the people who live in these areas and the herds if the people are not given a preference when the game numbers are down. He noted the same impact is happening caused by the sport fishery in rural areas. He believes the local people in an area should have the first right to take fish and game when those populations are down. CHAIRMAN HALFORD clarified that Mr. Olson was speaking to a local preference rather than a rural preference. MR. OLSON said that he was referring to a rural preference. CHAIRMAN HALFORD explained that under the federal law, Senator Taylor, who is a resident of a rural area in Southeast Alaska, would be given the same rural preference as any other rural resident in an area north of Fairbanks. He noted that the question of a rural preference versus a local preference has been discussed and that the House looked at providing a local preference. MR. OLSON said that the fish and game belong to Alaskans first, not non-residents. That industry is exploding. CHAIRMAN HALFORD stated that ADF&G says that the increase in the volume in the number of hunters and fishers is from air taxi operators. He asked Mr. Olson if he had any thoughts on what the regulatory structure should be to limit that harvest. He added that some air taxi operators transport 300 hunters. MR. OLSON replied the Upper Alchatna (ph) is a haven for hunters and rafters and one sees hunters rafting all of the time. They go on a nine-day hunt but the meat from their prey spoils because they do not have any way to preserve it during the trip. He noted that one air taxi operator transports about 50 hunters in one day. Number 258 CHAIRMAN HALFORD pointed out that some of the operators are local people. CHAIRMAN HALFORD noted that no other participants wish to testify at this time. He tentatively scheduled a Senate Resources meeting for 2:00 p.m. on September 24. He thanked all participants for attending. SENATOR GREEN referred to SJR 201, the Governor's letter of transmittal and the accompanying statute, and noted the phrase "Alaska Native" is never mentioned, yet most of the testimony focussed on subsistence for Alaska Natives. She pointed out that she represents an extraordinarily rural district, however it would not be considered rural under the scheme of SJR 201. She expressed concern about how to provide a rural preference that could encompass rural residents in the Mat-Su Borough so that those people would be afforded the same ability to hunt as a resident of Wrangell. She pointed out that the only reference she has found to rural residents was overturned in the McDowell case so that reference in Alaska statute is ineffective. She questioned what the definition means at this time. She noted that the only reference to Alaska Natives is in ANILCA which refers continually to the residents of Alaska. ANILCA does distinguish between residents and non-residents as far as who should be given priority in licensing, permitting, etcetera, but there is no mention that there should be a distinction between constituents in varying districts. She asked for help to clarify that issue. CHAIRMAN HALFORD announced that the committee is tentatively scheduled to meet the next day. He then adjourned the meeting at 5:14 p.m.