[Senate Hearing 113-118]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 113-118
 
                              SUBSISTENCE

=======================================================================


                                HEARING

                               before the

                              COMMITTEE ON

                      ENERGY AND NATURAL RESOURCES

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                                   TO

EXAMINE WILDLIFE MANAGEMENT AUTHORITY WITHIN THE STATE OF ALASKA UNDER 
  THE ALASKA NATIONAL INTEREST LANDS ACT AND THE ALASKA NATIVE CLAIMS 
                             SETTLEMENT ACT

                               __________

                           SEPTEMBER 19, 2013


                       Printed for the use of the
               Committee on Energy and Natural Resources




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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                      RON WYDEN, Oregon, Chairman

TIM JOHNSON, South Dakota            LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana          JOHN BARRASSO, Wyoming
MARIA CANTWELL, Washington           JAMES E. RISCH, Idaho
BERNARD SANDERS, Vermont             MIKE LEE, Utah
DEBBIE STABENOW, Michigan            DEAN HELLER, Nevada
MARK UDALL, Colorado                 JEFF FLAKE, Arizona
AL FRANKEN, Minnesota                TIM SCOTT, South Carolina
JOE MANCHIN, III, West Virginia      LAMAR ALEXANDER, Tennessee
BRIAN SCHATZ, Hawaii                 ROB PORTMAN, Ohio
MARTIN HEINRICH, New Mexico          JOHN HOEVEN, North Dakota
TAMMY BALDWIN, Wisconsin

                    Joshua Sheinkman, Staff Director
                      Sam E. Fowler, Chief Counsel
              Karen K. Billups, Republican Staff Director
           Patrick J. McCormick III, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Anderson, Robert T., Professor of Law, University of Washington 
  School of Law, Director, Native American Law Center, Seattle, 
  WA.............................................................    35
Fleener, Craig, Deputy Commissioner, Alaska Department of Fish 
  and Game,on Behalf of State of Alaska; Accompanied by Douglas 
  Vincent-Lang, Deputy Commissioner, Alaska Department of Fish 
  and Game, Juneau, AK...........................................    15
Hoffman, Ana, President/CEO, Bethel Native Corporation, Bethel, 
  AK.............................................................    33
Isaac, Jerry, President, Tanana Chiefs Conference, Fairbanks, AK.    55
Murkowski, Hon. Lisa, U.S. Senator From Alaska...................     2
Peltola, Gene, Assistant Regional Director, Office of Subsistence 
  Management, Fish and Wildlife Service, Alaska Region, 
  Department of the Interior.....................................     6
Pendleton, Beth, Regional Forester for the Alaska Region, Forest 
  Service, Department of Agriculture.............................    10
Worl, Rosita, Chair, Subsistence Committee, Alaska Federation of 
  Natives........................................................    46
Wyden, Hon. Ron, U.S. Senator From Oregon........................     1


                              SUBSISTENCE

                              ----------                              


                      THURSDAY, SEPTEMBER 19, 2013

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:36 a.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Ron Wyden, 
chairman, presiding.

 OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM OREGON

    The Chairman. The purpose of this morning's hearing is to 
review the management of fish and wildlife in the State of 
Alaska under the Alaska National Interest Lands Conservation 
Act, commonly known as ANILCA, and the Alaska Native Claims 
Settlement Act.
    I'm particularly pleased that Senator Murkowski asked that 
we hold this hearing. This topic is of great importance to her 
constituents. We heard a lot about it during our visit in 
Alaska, and I'm very pleased that Senator Murkowski has made 
this a priority for the committee.
    While the role of the Federal and State management of fish 
and wildlife resources may be an issue that the rest of the 
country has little knowledge about, in a State like Alaska, 
with over 60 percent of its lands under the jurisdiction of the 
Federal Government, it is clear this is a matter of great 
importance and it has certainly generated strong feelings, 
especially among Native Alaskans and rural residents who depend 
on hunting and fishing for their food.
    I also understand there are unique management and legal 
issues involved as a result of the subsistence language in 
ANILCA and a long line of Federal and State court decisions and 
any changes to the existing management authorities would be 
quite challenging.
    In my home State of Oregon, we have a number of issues 
regarding the salmon runs on the Columbia and the Klamath 
Rivers. I understand that the issues in Oregon are different 
than those facing the people of Alaska, but the importance of 
having a healthy and sustainable fishery is something that we 
Westerners certainly understand and I have supported in my home 
State of Oregon.
    Now, we look forward to learning more about this issue this 
morning, to work with both of the Alaska Senators to explore in 
greater detail some of the ideas that I hope will come out of 
the hearing.
    The Chairman. With that, I'd like to recognize my friend 
and colleague, Senator Murkowski, for her opening remarks.

        STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. We've known one 
another for a long while. I think you know me as Lisa or 
Senator Murkowski or colleague, but for some here in the room, 
they know me by my adopted name when I was adopted as a member 
of the Deisheetaan Clan several years back, Aan Shaawatk'I, and 
the Tlingit translation of Aan Shaawatk'I is Lady of the Land.
    It is probably a title or an honor that exceeds all others 
of which I have been really honored with. It is a reminder to 
me that the responsibilities that I have to the people of the 
State of Alaska, so many of them, come back to our lands, very 
special to each and every one of us.
    So the opportunity today to have a discussion, to begin a 
dialog about what happens with the management of our lands, the 
management of our lands that sustain our people, is really 
quite significant.
    So I thank you, Mr. Chairman. I know that this is a very 
State-specific issue, and the fact that we are holding this as 
part of a full committee I think is indicative of your 
willingness to recognize the high priorities that are assigned 
in specific states, the high priority that we see as it relates 
to the issue of subsistence in Alaska. So thank you for 
accommodating my request.
    To those, many of you Alaskans who are gathered here in the 
room today, thank you for being here this morning, thank you 
for coming all the way to Washington, DC.
    I know that for some of you this is the end of moose-
hunting season. I had a group of whalers in my office yesterday 
who were itching to get back because there was still time to go 
out and get yet another whale for the community of, I think, 
Barrow had not yet gotten all of theirs.
    Our reality is is this is the time of gathering for so many 
of our people, and to take the time to come to Washington, DC, 
while your families, your friends, your neighbors are engaged 
in a time of subsistence activity preparing for winter is 
greatly appreciated.
    Now, some have asked about why we are having a subsistence 
hearing in the energy committee, and I think it's important to 
remind folks that it is this committee that has jurisdiction 
over ANILCA, the Alaska National Interest Lands Act, and over 
ANCSA, the Alaska Native Claims Settlement Act.
    Mr. Chairman, I think it's important to point out that, to 
my knowledge, a hearing of this nature has never occurred in 
this committee. Even though this is the committee of 
jurisdiction, it hasn't occurred in this committee since the 
enactment of these statutes decades ago.
    So with the passage of the statutes nearly 40 years ago 
now, and the history that has unfolded since then, I would 
suggest that it's long overdue that we examine whether or not 
these statutes reflect our priorities as Alaskans today.
    Now, prior to this full committee hearing in Washington, 
DC, I have held two public meetings in the State this past year 
on the issue of subsistence. I was out in the Bethel area and I 
was out in the Ahtna Region.
    The goal of these meetings was for me to listen firsthand, 
to gather testimony directly from residents of rural Alaska on 
these issues, understanding that not everyone can make it to 
Washington, DC.
    Even the many of you who made it here to Washington, DC, 
will not be invited to testify at the table. Given the relative 
format and the formal format that we have here for Senate 
hearings, it just simply doesn't afford everyone who wishes to 
to be on the record to do that. So the purpose of those very 
public roundtables and listening sessions was to gather as much 
as we possibly can.
    In both of those public meetings that we held, there was 
much discussion about what subsistence really means. Do we use 
the word subsistence or do we refer to customary and 
traditional use?
    One of my strong takeaways was that, at the core of the 
discussion, subsistence is about a way of life, pretty basic, 
pretty elemental. People, our Native people around the State 
identify with a food source, and perhaps, unlike any others in 
the country, when you think about the Gwich'in people who 
identify themselves as the caribou people or the Inupiat up 
north who identify so closely and wholly with the whale. So 
many identify themselves with salmon, with moose, as they do in 
the Ahtna Region, Athabaskans.
    So to identify your, not only your cultures, but, really, 
your spirituality with your food source, I think, is something 
that is important when we talk about subsistence because it is 
more than just putting food on the table.
    When we were in Bethel, I heard from many folks who were 
very troubled, very upset by the low Chinook salmon runs and 
the subsistence fishing closures that came along with those.
    The meeting that was in Glenallen up in the Ahtna Region, 
the issues of priority were different than in the Y-K Delta, 
but the passion that people spoke to was much the same, and, 
Mr. Chairman, you note that. The people in your State, your 
region, care about what is happening with management of our 
salmon resources.
    So as we deal with these issues, I think it's important to 
recognize it doesn't make any difference what part of the State 
you are from, the passion really is very similar. Alaska 
Natives, who continue to hunt and fish in their traditional and 
customary manners, face regulatory and management challenges 
under the current structure.
    In the Ahtna Region, we heard so many residents speak about 
the issue of trespass that's occurring on their lands. Ahtna 
community members on the road system experience what they 
referred to as combat hunting--one elder put it that way--as 
outsiders compete for the limited hunting opportunities in the 
region.
    Mr. Chairman, I do think it is appropriate for me to 
acknowledge on the record my thanks to all those who did speak 
at our public meetings and enter into the record all of those 
statements that we collected, make them part of this official 
energy committee.
    The Chairman. Without objection, that's ordered.
    Senator Murkowski. Thank you, Mr. Chairman.
    The dual management and differing management regimes on 
State and Federal land causes both confusion and frustration 
for so many rural Alaska residents.
    The Federal Subsistence Board was created through 
regulation and continues to be a point of contention among 
Alaskans.
    We recognize in Alaska that the Federal Government fails to 
prioritize land-management decisions for subsistence to ensure 
healthy and abundant populations for consumption. A very direct 
example of this--and I think we'll hear from Mr. Fleener on 
it--is the situation out on Unimak Island with the caribou 
population. Unimak is located out in the Alaska Maritime 
National Wildlife Refuge.
    When the State attempted to act to ensure that the caribou 
populations were not going to be wiped out for subsistence 
purposes, the Fish and Wildlife Service blocked access to the 
State and stated publicly that natural selection is the best 
course. This, it's not an acceptable outcome here.
    I mentioned before the issues of trespass. How can we work 
together to find ways to address these? How do we find a way to 
ensure that residents will be able to continue to hunt in their 
customary and traditional manner?
    Mr. Chairman, I think it's fair to say that, over the 
years, there has been heated debate. That's probably a polite 
way to put it, but subsistence and wildlife management has 
generated a great deal of contention and frustration and really 
turmoil at times, and it has been evident back home. It's been 
evident here in Washington, DC.
    I don't have any illusions that by holding this hearing 
today we're going to solve, with one fell swoop, the issues as 
they relate to management of our wildlife in this State, but my 
goals, really, in advancing this hearing, are to get this 
discussion started again, bring the stakeholders together from 
the government, from the Native community to educate my 
colleagues here on the Energy Committee and within the Senate 
to find specific areas of agreement where we can move forward 
and address some targeted fixes.
    We've done a few very, very small things. We've got the 
Glacier Bay gull-egg harvest. We're moving forward on the Tonga 
subsistence use cabin act. We've got the duck-stamp provision, 
really quite small in scope, very small in scope.
    There's so much that I think we recognize needs to be done, 
but it can't be done unless we're willing to sit together, 
listen to one another, engage in a respectful manner, identify 
the flaws in the laws and figure out how we can move together 
truly as one people with a common goal in mind.
    So with that, Mr. Chairman, I look forward to the testimony 
from those who have joined us here today, not only our 
government officials, but the many friends who will step 
forward and provide their words.
    Again, my thanks to you for being a good partner in this 
and listening.
    The Chairman. Senator Murkowski, you make a number of 
important points, and I'm struck by some parallels that we all 
share when we're from the West.
    What we know is to do this job properly, as it relates to 
Western resource issues, as you touched on, you go home, you 
spend a lot of time listening to people, and then we have these 
official hearings--and I see many from your home State here--
and you listen some more. That's really the only way you can do 
Western resource issues responsibly.
    I'm struck, again, by the parallels, because, in a few 
hours, like you, I'm going to sprint to the airport, and I'm 
going to go to the Klamath Basin and Klamath Falls where we're 
right on the cusp, after all those citizens have worked and 
worked and worked trying to cut through some of the old battles 
with respect to resources and have water and healthy fish runs 
and help for our farmers, all the issues that we deal with in 
the West.
    Because of their good work at home in the Klamath Basin, 
we're on the cusp of what I think could be a historic agreement 
as relates to water and healthy fish runs and eggs and the 
like.
    Listening to your statement, I think we know that the 
formula is listen at home, listen here, try to bring everybody 
together. People always walk away.
    Senator Murkowski and I say this on resource issues, you 
usually can't get everything you want. You usually can't get 
everything you deserve, but with Western resource issues, where 
people work together, the way I saw folks in Alaska do, in the 
way I'm going to see once again in the Klamath Basin, people 
can get what they need and----
    Senator Murkowski. Isn't there a song about that?
    The Chairman. I guess. Senator Murkowski is also my 
cultural advisor on things like music.
    But part of what we need to do in the West is we need to 
have sustainable fish runs. What works in Alaska may not 
necessarily be the strategy for Oregon. That may not be the 
strategy for another part of the country.
    But we're here because Senator Murkowski thought it was 
important for us to listen and learn, and I do think it's part 
of the strategy we have in the West to do resource issues well. 
So I'm really glad your constituents are here and great to be 
teaming up again.
    So let's go right to our first panel. Mr. Gene Peltola, 
Assistant Regional Director, Office of Subsistence Management 
at the Fish and Wildlife Service in Alaska.
    Ms. Beth Pendleton, Regional Forester, Alaska, Department 
of Agriculture, the Forest Service.
    Craig Fleener, Deputy Commissioner, Alaska Department of 
Fish and Game in Juneau. I believe, Mr. Fleener, yes, you are 
accompanied by Mr. Douglas Vincent-Lang, who's also with Fish 
and Game in Juneau.
    So we'll welcome all of you. We'll make your prepared 
remarks a part of the record. It has become part of the lore 
around here that we do everything we possibly can to get you to 
summarize your remarks. We'll make your prepared remarks a part 
of the record, every single word.
    I know Senator Murkowski has a number of questions, and I'm 
going to support her in the effort to build this record. So 
let's begin with you, Mr. Peltola.

STATEMENT OF GENE PELTOLA, ASSISTANT REGIONAL DIRECTOR, OFFICE 
 OF SUBSISTENCE MANAGEMENT, FISH AND WILDLIFE SERVICE, ALASKA 
               REGION, DEPARTMENT OF THE INTERIOR

    Mr. Peltola. Chairman Wyden and Senator Murkowski, I am 
Gene Peltola, Jr., the Assistant Regional Director for the 
Office of Subsistence Management with the United States Fish 
and Wildlife Service in Alaska Region.
    I'd like to tell you a little bit about myself before I get 
into a few program specifics. I am a Tlingit Indian and Yup'ik 
Eskimo born and raised in Bethel, Alaska. I have lived a 
subsistence lifestyle the majority of my life.
    Until about 6 weeks ago, I was the Refuge Manager at the 
Yukon Delta National Wildlife Refuge also in Bethel, Alaska, 
and also the Federal In-Season Fisheries Manager for the 
Kuskokwim Region. I'm a nearly 30-year service employee and a 
former federally qualified user.
    I've served on Alaska Native Corporation Board of 
Directors. I've been an Alaska Native Corporation officer, and 
I've served in the capacity as a vice mayor in a municipality 
in Western Alaska.
    I thank you for the opportunity to come before this 
committee and present a perspective on the Federal Subsistence 
Program.
    Alaska Native peoples have relied on subsistence harvest 
for thousands of years. They have relied on natural resources 
for food, shelter, to make clothing and handicrafts, but, more 
importantly, as a means of cultural identity and a mechanism by 
which a livelihood is maintained. More recently, the non-Native 
rural user has been added to the equation.
    Management of subsistence harvests and natural resources is 
very complicated. It is governed by many laws that are not 
always in agreement, at times have conflicting mandates and may 
have differing eligibility criteria.
    For example, marine mammal harvests are governed by the 
Marine Mammal Protection Act. Under the act, the coastal-
dwelling Native may harvest marine mammals for the creation of 
authentic Native handicrafts or as a food source.
    Another law, the Migratory Bird Treaty Act, governs the 
harvest of migratory birds by indigenous inhabitants of 
identified subsistence harvest areas in Alaska.
    Subsistence management of land mammals, fisheries and 
upland birds is governed by the Alaska National Interest Lands 
Conservation Act, which allows for a subsistence preference for 
rural residents of Alaska.
    I should also note that State of Alaska law governs the 
management of subsistence harvests on Alaska Native Corporation 
and other private lands, including Native allotments and State 
lands.
    The Federal Subsistence Management Program began in 1990, 
after the Alaska Supreme Court ruled that rural subsistence 
priority required under ANILCA violated the State constitution.
    Federal management of fisheries was initiated after the 
Ninth Circuit Court of Appeals ruled in a case commonly 
referred to as the Katie John Case.
    The program coordinates management of subsistence resources 
and promulgates the regulation of subsistence use by rural 
Alaskans on millions of acres of public lands.
    As I previously mentioned, subsistence management in Alaska 
is very complex. I'd like to highlight an example of this 
complexity for my time as the Refuge Manager, Yukon Delta 
National Wildlife Refuge.
    I was the Federal In-Season Manager for Fisheries along the 
Kuskokwim drainage. The Kuskokwim Chinook run is one of 
approximately 12 populations in the State of Alaska which has 
been experiencing reduced returns over the last several years. 
This salmon run, like numerous others throughout the State, is 
managed in conjunction with the Alaska Department of Fish and 
Game.
    As in-season management occurs, the option, we, as 
managers, are presented with are to assimilate a State action, 
act concurrently or take independent action.
    Both the State and Federal Governments have the same 
hierarchy with regard to restricted access to a resource. The 
first restrictions are to commercial users, then sport and 
finally the subsistence user.
    Despite the similar hierarchy, differing mandates between 
the parties involved may yield a different management action. 
Fortunately, this has only occurred 8 times since the inception 
of the Federal Fisheries Program in Alaska, 4 independent 
management actions occurring along the Yukon and an additional 
4 along the Kuskokwim River.
    There are many hundreds of management actions taken with 
regard to the Federal Subsistence--Federal Fisheries Management 
Program have had a concurrent or similar State action.
    In closing, subsistence management in Alaska is not an 
exact science. It's not perfect, and it is very complex. We 
must balance the differing mandates and policies of the parties 
involved, yet remain true to our charge of providing for the 
continued subsistence use by local rural residents.
    Throughout my nearly three-decade natural-resource career, 
I have been exposed to numerous individuals who are very 
passionate about subsistence management. I am confident that 
through their passion and capabilities we will ensure a 
sustainable future for subsistence in Alaska.
    I'd like to thank the committee for allowing me this 
opportunity to testify and be willing to address any questions 
I may be able to.
    [The prepared statement of Mr. Peltola follows:]

Prepared Statement of Gene Peltola, Assistant Regional Director, Office 
of Subsistence Management, Fish and Wildlife Service, Department of the 
                                Interior
    Good morning Chairman Wyden, Ranking Member Murkowski, and Members 
of the Committee. I am Gene Peltola, Assistant Regional Director for 
the Office of Subsistence Management, with the U.S. Fish and Wildlife 
Service in Alaska. Thank you for the opportunity to testify before the 
Committee regarding harvest of subsistence resources on federal public 
lands in Alaska under the Alaska National Interest Lands Conservation 
Act (ANILCA).
    The mission of the U.S. Fish and Wildlife Service is to work with 
others to conserve, protect, and enhance fish, wildlife, plants, and 
their habitats for the continuing benefit of the American people. We 
take management actions to ensure that these natural resources are 
available now, and for future generations of Americans. In Alaska, we 
have a special responsibility is to ensure these resources are 
available now and in the future for rural Alaskans who rely on 
subsistence harvest.
                      alaska subsistence overview
    The customary and traditional harvest and use of natural resources 
for food, shelter, clothing, transportation, handicrafts, and trade, 
commonly called ``subsistence,'' has a long history in Alaska. Alaska 
Native peoples have depended on subsistence for thousands of years. In 
more recent history, non-Native peoples living in rural Alaska have 
come to rely on natural resources for their livelihoods as well.
    The management of subsistence harvests of natural resources is 
complicated. It is governed by many laws and statutes that are not 
seamless in their mandates, and have differing provisions for who is 
eligible to harvest. For example, management of subsistence harvest of 
marine mammals is governed by the Marine Mammal Protection Act (MMPA). 
Under the MMPA, coastal dwelling Alaska Natives may harvest marine 
mammals for subsistence purposes or for the creation and sale of 
authentic native handicrafts or articles of clothing. Management of 
subsistence harvest of migratory birds is governed by the Migratory 
Bird Treaty Act (MBTA). The MBTA was amended to allow for spring/summer 
subsistence harvest of migratory birds by Alaska Natives and permanent 
resident non-natives with legitimate subsistence hunting needs living 
in designated subsistence hunting areas in Alaska.
    Within the MBTA Protocol Amendment of 1996, Congress charged the 
Secretary of the Interior to promulgate annual regulations for 
migratory bird subsistence hunting in Alaska for the purposes of 
conserving migratory birds and perpetuating subsistence hunting customs 
and cultures. Congress also provided Alaska Natives a meaningful role 
in management decisions affecting the customary subsistence hunting 
opportunities. The MBTA Protocol Amendment also invited the State of 
Alaska to participate in a management body that included Alaska Natives 
and the Secretary of the Interior, represented by the U.S. Fish and 
Wildlife Service. This led to the creation of the Alaska Migratory Bird 
Co-Management Council (AMBCC).
    Subsistence management of land mammals, fisheries and upland birds 
is governed by Title VIII of ANILCA, which allows for a subsistence 
preference for rural Alaskans. In addition, Alaska State laws govern 
management of subsistence on State lands and on private lands, 
including Alaska Native Corporation lands.
                         historical background
    ANILCA is a wide-ranging law that established 106 million acres of 
federal lands as conservation units, including national wildlife 
refuges, national parks, preserves, national monuments in the national 
forest system and wild and scenic rivers, thereby enlarging federal 
holdings dedicated to conservation in Alaska to more than 131 million 
acres. Eighty percent of the lands in the National Wildlife Refuge 
System are in Alaska and sixty-five percent of all National Park 
Service lands are in Alaska. Fifty-six percent of all National 
Wilderness Preservation System lands (within national parks, national 
wildlife refuges, and national forests) are in Alaska.
    Recognizing the unique characteristics of Alaska, and the unique 
history of subsistence users in Alaska, Congress also provided in Title 
VIII of ANILCA, a priority for rural subsistence uses on federal public 
lands in Alaska-well over 230 million acres comprising over 60 percent 
of the State.. It is important to note that even though subsistence is 
a priority use identified in ANILCA, maintaining healthy populations of 
fish and wildlife is the top priority. ANILCA fulfilled the intent of 
Congress after passage of the Alaska Native Claims Settlement Act to 
provide for a subsistence priority on federal public lands. That 
priority was provided to rural residents, rather than to Alaska 
Natives, an issue repeatedly raised by the Alaska Native community 
since the law passed.
    The State of Alaska managed subsistence on federal lands until 
1989, when the Alaska Supreme Court ruled that the rural residency 
preference required by ANILCA violated the equal access clause of the 
Alaska Constitution. As a consequence, from 1992 to the present, the 
federal government has engaged in subsistence management on federal 
public lands, and assumed additional subsistence responsibilities for 
management of subsistence fisheries in 1998.
    In 2009, the Secretary of the Interior conducted a review of the 
federal subsistence management program. The intent of the review was to 
``ensure that the program is best serving rural Alaskans and that the 
letter and spirit of Title VIII are being met.'' As a result of the 
review, the Secretary of the Interior, with the concurrence of the 
Secretary of Agriculture, made recommendations for changes which were 
adopted by federal regulators and administrators, or are in the process 
of being adopted.
               the federal subsistence management program
    The Secretaries of the Interior and Agriculture delegated authority 
to manage the subsistence priority use on federal public lands to the 
Federal Subsistence Board (FSB). The FSB is comprised of eight members, 
including: the Regional Directors of the U.S. Fish and Wildlife 
Service, the National Park Service, and the Bureau of Indian Affairs; 
the State Director of the Bureau of Land Management; and the Regional 
Forester of the U.S. Forest Service. Three public members who represent 
rural subsistence users are also members of the board, and one serves 
as the FSB's chair. These board members are appointed by the Secretary 
of the Interior, with the concurrence of the Secretary of Agriculture.
    The Federal Subsistence Management Program is multi-faceted. It 
involves five federal agencies, a federal and public-member decision-
making board, 10 Subsistence Regional Advisory Councils, and 
partnerships with Alaska Native and rural organizations as well as with 
the State of Alaska.
    The Office of Subsistence Management, administratively housed in 
the U.S. Fish and Wildlife Service, is responsible for facilitating and 
providing administrative and technical support to implement the 
program. In addition, the U.S. Fish and Wildlife Service provides 
fisheries expertise that focuses on in-season management and conducting 
biological assessments and monitoring to ensure that subsistence 
harvests are consistent with conservation goals. The U.S. Fish and 
Wildlife Service is also responsible for extensive outreach and tribal 
consultation responsibilities. Other agencies within DOI and the US 
Forest Service, represented on the Federal Subsistence Board, have 
similar conservation, enforcement, outreach, and consultation 
responsibilities.
    The Subsistence Regional Advisory Councils are a unique feature of 
federal subsistence management. Each of these councils represents a 
region of the state. The councils have the authority to develop 
proposals for regulations, policies, management plans, and other 
matters relating to subsistence uses of fish and wildlife. The councils 
hold two or more public meetings every year to gather local 
information, and make recommendations to the Federal Subsistence Board 
on subsistence issues. The board seriously considers council 
recommendations, and routinely defers to the local wisdom of these 
councils in making decisions about subsistence regulations affecting 
the councils' regions.
    In addition to promulgating subsistence regulations, the Federal 
Subsistence Board contributes substantially to fisheries knowledge by 
funding research on the status of fish stocks, subsistence harvest and 
use patterns, and the collection and analysis of traditional knowledge.
                             current issues
    The Secretaries of the Interior and Agriculture recommended that 
the Federal Subsistence Board revisit the process for determining rural 
status in Alaska. The current process for determining rural status may 
not accommodate demographic, economic and infrastructural changes in 
Alaska. The Federal Subsistence Management Program is currently 
involved in a review of the rural determination process, starting with 
public input, and will provide the Secretaries with a report and 
recommendations in 2014.
    The federal program is also involved in a number of pressing 
natural resource issues. Prominent among these are declining Chinook 
salmon stocks within the Yukon and Kuskokwim River Drainages.
    The 2013 Chinook salmon returns on both the Yukon and Kuskokwim 
Rivers are among the worst on record. Reasons for the unprecedented low 
returns are not known, although ocean conditions, by-catch in high seas 
fisheries, and in-river harvests are likely contributing factors. Rural 
Alaskans are highly dependent on salmon runs, and Chinook salmon are an 
especially valued and important resource. Subsistence harvests have 
declined in recent years, consistent with reduced runs and commensurate 
restrictions on harvests. In preparation for the 2013 season, the U.S. 
Fish and Wildlife Service and the Alaska Department of Fish and Game 
worked throughout the year to ensure local people have a meaningful 
voice in management. The agencies held numerous public meetings, tribal 
consultations, and teleconferences. Nonetheless, the 2013 Chinook 
returns were very poor, escapement (the number of fish reaching the 
spawning grounds to provide for future returns) goals have not been 
met, and subsistence and other users have been adversely affected. 
Preliminary indications are that the Kuskokwim River Chinook salmon 
escapement may be the lowest on record and none of the tributary 
escapement goals will be achieved. On the Yukon River, despite the 
season-long restrictions on the U.S. portion of the river, the Canadian 
border passage and escapement goal for Chinook salmon will again not be 
met this year. This has consequences for the future of the run, as 50 
percent of U.S. harvests are of Canadian origin.
                        successes and challenges
    Since 1990, the Federal Subsistence Program has ensured that rural 
residents in Alaska have the opportunity to pursue a subsistence way of 
life, as envisioned by Congress and enacted in ANILCA. Our success has 
been demonstrated by our ability to hear concerns of the user groups 
and craft regulations that meet subsistence needs while ensuring 
sustainable resources. We are balancing the demands of the subsistence 
user with multiple legal mandates, and other public interests. 
Decisions are carefully weighed, with public involvement, to consider 
harvest limits that comply with federal and state laws and 
international treaties while providing subsistence use whenever 
possible.
    Challenges regarding sustainable resource management are compounded 
by multiple jurisdictions (state, federal, international) governing the 
same resources. Management challenges shift with Alaska's changing 
economy, demographics, and infrastructure. Alaska is experiencing 
decreased runs of Chinook salmon, changes in the migration patterns of 
caribou, and changes in the arrival date of migrating birds to their 
breeding grounds. There are also changes to habitat such as the 
salinity of water and the successional stages of vegetation. The 
uncertainly of current and future effects of climate change also add to 
the complexity of resource management. Although future challenges are 
unknown, we do know they will occur and we must be responsive to them 
if we are to be successful in conserving fish, wildlife and their 
habitat for current and future generations.
                               conclusion
    The Department of the Interior thanks the Committee for its 
interest in this important issue and for its leadership in protecting 
our nation's natural resources. Achieving ANILCA's intent to conserve 
natural resources in Alaska for the long term, and to ensure that 
robust subsistence opportunities are also preserved, is a key component 
of the broader goal of maintaining America's wildlife heritage for 
future generations. We welcome the opportunity to work with the 
Committee on subsistence management issues and are happy to provide 
additional information at the request of the Committee. This concludes 
my testimony and I am happy to answer any questions the Committee may 
have.

    The Chairman. Very good. Ms. Pendleton.

STATEMENT OF BETH PENDLETON, REGIONAL FORESTER, ALASKA REGION, 
           FOREST SERVICE, DEPARTMENT OF AGRICULTURE

    Ms. Pendleton. Good morning, Chairman Wyden and Senator 
Murkowski, and thank you for inviting me here today to testify 
about the Federal Subsistence Management Program in Alaska.
    I'm Beth Pendleton, and, as the Regional Forester, I have a 
delegated authority by the Secretary and through the Chief of 
the Forest Service to act on the Secretary's behalf as it 
relates to the statewide implementation of Title VIII of 
ANILCA.
    Subsistence or customary traditional hunting, fishing and 
gathering is both the livelihood and a way of life for many 
rural residents.
    In ANILCA, Congress found that subsistence way of life by 
rural Alaskans is essential to their physical, economic, 
traditional, cultural and social existence.
    Although many Alaska Native people object to the use of the 
term subsistence, as do I--because, to many, it suggests just 
getting by--I'll use the term, since that is what is used in 
ANILCA.
    My statement will emphasize the Forest Service role and 
discuss the program review conducted by the Secretaries of the 
Interior and Agriculture in 2009 and 2010.
    My detailed testimony has been submitted to the committee.
    For Alaska, the Forest Service has a substantial role in 
determining population levels and in developing appropriate 
harvest regulations for wildlife and fish on the national 
forests.
    Sustainable management requires accurate and timely 
information about the abundance, health and distribution of 
fish stocks and wildlife populations that contribute to the 
subsistence use by rural residents. Much of this information is 
developed through Forest Service-issued competitive contracts 
with tribes and other Native and local organizations.
    In addition to providing essential biological data, these 
contracts create local jobs, build capacity within communities, 
incorporate traditional ecological knowledge and involve 
subsistence users in meaningful stewardship roles.
    For example, in Hydaburg in Southeast Alaska, there are 5 
fisheries monitoring jobs that employ community members through 
the subsistence program.
    In my experience, the 10 Regional Advisory Councils are why 
this program works so well. The councils are made up of citizen 
representatives appointed by the Secretary of the Interior with 
concurrence of the Secretary of Agriculture.
    The councils represent a bottom-up management where local 
people have a real and substantial role in guiding this 
program. For example, the Southeast Alaska Regional Advisory 
Council Subsistence Harvest Recommendations for Sitka Black-
Tailed Deer on Prince of Wales Island ensures a rural priority, 
yet continues to allow for use by and through others for sport 
hunting.
    Next, I'd like to talk a little bit about the Forest 
Service delivery of the program. Since fiscal year 2000, 
Congress has had an appropriation line item for the Forest 
Service Subsistence Program. Funding has ranged from a high of 
$5.9 million in 2005 to the current lowest level of 
approximately $2\1/2\ million.
    With those funds, the Forest Service establishes a 
regulatory program, supports operations of the Regional 
Advisory Councils, monitors populations, and, when possible, 
undertakes education and enforcement activities. It has become 
increasingly difficult to deliver the subsistence program on 
National Forest System lands as those funds have decreased.
    Finally, I'd like to speak just briefly on the Secretary's 
review. I want you to know that, among other things, the 
Secretary has directed increasing the size and representation 
on the Federal Subsistence Board to include two subsistence 
users and expand deference provided to the Regional Advisory 
Councils.
    In the year since we've added the two board members, Tony 
Christianson from the community of Hydaburg and Charlie Brower 
from the community of Barrow, and given that expanded deference 
to the RACs, in my view, we have substantially increased 
accountability to our rural communities.
    Another area that the Federal program has vastly improved 
is in our tribal consultation. We have developed a tribal 
consultation policy in collaboration with Federal managers and 
tribal representatives.
    This concludes my statement, and I would be happy to answer 
any questions that you might have. Thank you.
    [The prepared statement of Ms. Pendleton follows:]

Prepared Statement of Beth Pendleton, Regional Forester for the Alaska 
           Region, Forest Service, Department of Agriculture
    Mr. Chairman, Ranking Member Murkowski and Members of the 
Committee, thank you for inviting me here today to testify about the 
Federal program in Alaska that provides a rural priority for the 
customary and traditional harvesting of fish and wildlife on federal 
public lands, otherwise known as subsistence. As the Regional Forester, 
I am delegated authority by the Secretary of Agriculture, through the 
Chief of the Forest Service, to act as the Secretary for all aspects 
associated with the implementation of Title VIII of the Alaska National 
Interest Lands Conservation Act, also known as ANILCA.
    The Mission of the Forest Service is to sustain the health, 
diversity and productivity of the Nation's forests and grasslands to 
meet the needs of present and future generations. Wildlife and 
fisheries management under ANILCA contribute to the Forest Service 
fulfilling its mission in Southeast and South Central Alaska.
                              subsistence
    Subsistence, or customary and traditional hunting, fishing and 
gathering, is both the livelihood and a way of life for many rural 
residents of Alaska. It is protected by ANILCA, as signed into law in 
1980. Although many Alaska native people object to the use of the term 
`subsistence,' as do I, because to many it suggests `just getting by,' 
I will use the term since it is used in ANILCA. The Federal 
jurisdiction over subsistence hunting and fishing extends to 
approximately 60 percent of the State's land base, including the 
Tongass National Forest in Southeast Alaska and the Chugach National 
Forest in South-central Alaska.
    In ANILCA, Congress found that continuation of the subsistence way 
of life by rural Alaskans is essential to their physical, economic, 
traditional, cultural and social existence. This applies not only to 
Alaska Native people, but to non-Native rural residents as well. 
Hunting and fishing reflect vital relationships of people and land that 
are woven into the history, cultural identity, and community life of 
rural Alaskans. As well, the lack of roads in Alaska means that many 
rural people have little or no access to grocery stores, and even if 
they did, those foods are likely to be unaffordable and lacking in 
variety.
    the establishment of the federal role for subsistence management
    Prior to late 1989, the State of Alaska had management authority 
over subsistence, sport, and commercial uses of Alaska's wildlife and 
fish resources across all lands. Eligibility for subsistence use under 
State of Alaska management, based on the concept of rural preference, 
was consistent with the Federal requirement in Title VIII of ANILCA. In 
1989, the Alaska State Supreme Court ruled in McDowell v. Alaska that 
the rural priority for subsistence use violated the Alaska State 
Constitution. Mr. McDowell had challenged whether the state could give 
a subsistence priority only to rural people when the Alaska 
Constitution calls for common use of fish and wildlife resources by all 
Alaskans. The court found in Mr. McDowell's favor, which placed the 
State out of compliance with ANILCA. Pending the State's resolution of 
its constitutional conflict, the Federal government, since 1990, has 
administered the rural subsistence priority for wildlife resources on 
nearly all Federal lands in Alaska.
    Federal responsibility to manage subsistence fisheries was 
subsequently added following the Ninth Circuit Court of Appeals 
decision in Alaska v. Babbitt, commonly referred to as the Katie John 
case, in 1995. That decision resulted in Federal management of 
subsistence fisheries in waters associated with most federal lands and 
added significant responsibility and cost to Federal subsistence 
management. Federal subsistence fisheries regulations became effective 
October 1, 1999.
    No legislative or judicial solution is expected in the foreseeable 
future that would enable the State of Alaska to comply with ANILCA 
provisions and to thereby resume management of subsistence hunting and 
fishing on federal public lands and waters.
                     federal subsistence management
    The Secretaries of the Interior and Agriculture are legally bound 
to manage fish and wildlife for the rural subsistence priority on 
Federal land and water because the State of Alaska is not able to do so 
in accordance with the provisions of ANILCA. To that end, the 
Secretaries created the Federal Subsistence Board, made up of the 
Alaska agency heads of the U.S. Fish and Wildlife Service, National 
Park Service, Bureau of Indian Affairs, Bureau of Land Management, and 
the U.S. Forest Service, and an appointed chair and two members 
representing rural subsistence users. The Board establishes all federal 
subsistence hunting and fishing regulations. The Board is generally 
required to follow the recommendations of 10 regional advisory councils 
in decisions concerning the taking of fish and wildlife (ANILCA Sec.  
805). The councils are made up of citizen representatives appointed by 
the Secretary of the Interior, with the concurrence of the Secretary of 
Agriculture, under the terms of the Federal Advisory Committee Act.
    The Alaska Region Subsistence Program represents a unique Forest 
Service role in wildlife and fisheries management. Normally, the Forest 
Service role is confined to habitat management, with the state 
conducting population management. In Alaska, the Forest Service and 
other Federal agencies have a substantial role and workload in 
determining population levels and developing appropriate subsistence 
harvest regulations for wildlife and fish on almost all federal lands 
and waters within the State of Alaska, and enforcing those regulations. 
The USDA and Forest Service fully accept our responsibilities toward 
subsistence users and resources and have made significant progress 
toward meeting the ANILCA commitments over the past 23 years.
    Among the Federal agencies implementing the program, my Agency, the 
U.S. Forest Service, has a unique role. For all the Federal agencies, 
the Office of Subsistence Management, housed in the U.S. Fish and 
Wildlife Service's Regional Office in Anchorage, manages technical and 
administrative aspects of the program. Four agencies of the Department 
of the Interior participate in the program (Bureau of Indian Affairs, 
Bureau of Land Management, U.S. Fish and Wildlife Service, and National 
Park Service); however there is only one U.S. Department of Agriculture 
agency; the Forest Service. The Forest Service supports all regulatory 
action on Federal public lands in Southeast Alaska including: 1) 
providing funds for the Southeast Alaska Subsistence Regional Advisory 
Council: 2) through the Regional Forester providing support to the 
Secretary of Agriculture, paralleling the role of the Secretary of the 
Interior; and, 3) funding all fish and wildlife population assessment 
and monitoring on National Forest System lands.
    Since the year 2000, Congress has appropriated funds by line item 
to the Forest Service for the Subsistence Program. Funding has ranged 
from a high of $5.9 million in 2005 to the current level of 
approximately $2.5 million. With those funds, the Forest Service 
implements a comprehensive regulatory program, monitors fish and 
wildlife populations, and when possible undertakes education and law 
enforcement activities.
    Wildlife and fisheries monitoring is accomplished in part through 
R&D efforts in Sustainability and Resource assessments, which provide a 
national context for local decision-making as well as key indicators of 
resource conditions over time. For example, the 2010 USFS National 
Report on Sustainable Forests provides a comprehensive picture of 
forest conditions in the United States as they relate to the 
ecological, social and economic dimensions of sustainability. At the 
local level, sustainable management of subsistence hunting and fishing 
requires accurate and timely information about the abundance, health, 
and distribution of fish stocks and wildlife populations. Much of this 
critical information is developed through competitive contracts with 
Tribes and other Native and local organizations that undertake harvest 
monitoring, possess traditional ecological knowledge, and perform stock 
assessment field projects. In addition to providing essential 
biological data, these contracts create local jobs, build capacity 
within communities, and involve subsistence users in meaningful 
stewardship roles. For example, the Hydaburg Cooperative Association, 
Sitka Tribe of Alaska and Organized Village of Kasaan (among others) 
each have functioned as principle investigators, hired local residents, 
and have been able to merge modern science of fisheries management with 
traditional ecological knowledge, thereby sharing in the stewardship of 
salmon runs with federal managers.
    A key aspect of the Federal Subsistence Program is the role of the 
Regional Advisory Councils. The councils were formed, as required by 
Title VIII of the ANILCA, to provide recommendations and information to 
the Federal Subsistence Board, to review policies and management plans, 
and to provide a public forum for subsistence issues. Councils 
represent bottom-up management, where local people have a substantial 
role in guiding the program. Each of the State's ten regions has an 
advisory council consisting of local residents who are knowledgeable 
about subsistence and other uses of fish and wildlife in their area. 
The councils meet at least twice each year. A representative of each 
council attends each Federal Subsistence Board regulatory meeting 
providing council recommendations. Council recommendations concerning 
the take of fish and wildlife must be followed unless the Board 
determines that the recommendation is not supported by substantial 
evidence, violates recognized principles of fish and wildlife 
conservation, or would be detrimental to the satisfaction of 
subsistence needs.
      the comprehensive review of the federal subsistence program
    In 2009, the Secretary of the Interior undertook a comprehensive 
review of the Federal Subsistence Program. With the concurrence of the 
Secretary of Agriculture, the Secretary of the Interior directed a 
number of actions in 2010. Key direction from the Secretaries included: 
expand the Federal Subsistence Board with addition of members 
representing subsistence users, expand deference to the Regional 
Advisory Councils, and review with Council input the Memorandum of 
Understanding with the State of Alaska, the customary and traditional 
use determination process, and the rural/non-rural determination 
process. Selection of additional Board members and expansion of the 
Board's deference are complete, with the other items underway.
    Of considerable interest to many Alaskans is the Board's review of 
the rural determination process. In 2007 the Board determined that a 
number of currently rural areas should become non-rural and therefore 
ineligible for the Title VIII subsistence priority. That highly 
controversial decision has been put on hold pending the outcome of this 
rural review. Following public comment and tribal consultation in a 
pre-rule-making process, the Board will make a recommendation to the 
Secretaries on the rural process in the spring of 2014, after which the 
Secretaries may commence rule-making which would include additional 
public comment and Tribal consultation.
    The Federal Subsistence Board has spent considerable time over the 
last few years developing tribal consultation policy and implementation 
guidelines. All policy and guideline development has been developed by 
an equal team of Federal managers and Tribal representatives from 
around the State. The tribal consultation policy is complete, and 
implementation guidelines are anticipated to be finalized by the 
Federal Subsistence Board in January. Recognizing that the Board must 
generally defer to the recommendations of the Regional Advisory 
Councils, the program is doing its best to balance Council 
recommendations and the results of Tribal consultation. The Program is 
also working on Alaska Native Claim Settlement Act (ANCSA) corporation 
consultation policy and implementation guidelines. That policy is in 
draft form while guideline development has not yet started. Consistent 
with Public Law 108-199, as amended by Public Law 108-447, consultation 
with ANCSA corporations is required on the same basis as with tribes.
                         summary and conclusion
    Federal subsistence management achievements include developing the 
staff infrastructure and expertise needed to carry out critical 
subsistence management functions and the establishment of regional 
advisory councils to facilitate the meaningful participation of 
subsistence users. We have built strong relationships with Alaska 
Tribes, with other subsistence user organizations, and with communities 
in Alaska. The Forest Service is well integrated with the other federal 
agencies with which we share responsibility for subsistence management, 
while we maintain a lead role on National Forest System lands and 
waters. We work closely with State of Alaska natural resource managers 
and support cooperative State-Federal projects.
    Sustainable management of subsistence hunting and fishing requires 
accurate and timely information about the abundance, health, and 
distribution of fish stocks and wildlife populations. Much of this 
critical information is developed through service contracts with Tribes 
and other Native and local organizations. In addition to providing 
essential biological data, these contracts create local jobs, build 
capacity within communities, and involve subsistence users in 
meaningful stewardship roles.
    In summary, the USDA and Forest Service fully accept our 
responsibilities toward subsistence users and resources and have made 
significant progress toward meeting this commitment over the past 23 
years. Subsistence management, a Forest Service program unique to the 
Alaska Region, is a key program for fulfilling the Agency's mission.
    This concludes my statement and I would be happy to answer any 
questions that you may have.

    The Chairman. Ms. Pendleton, thank you. Let's welcome now 
Mr. Fleener. Mr. Vincent-Lang, do you desire to make any 
comments, too?
    Mr. Vincent-Lang. Mr. Fleener will be making our comments. 
I'm available for questions.
    The Chairman. Very good. Mr. Fleener.

    STATEMENT OF CRAIG FLEENER, DEPUTY COMMISSIONER, ALASKA 
DEPARTMENT OF FISH AND GAME, ON BEHALF OF THE STATE OF ALASKA; 
   ACCOMPANIED BY DOUGLAS VINCENT-LANG, DEPUTY COMMISSIONER, 
         ALASKA DEPARTMENT OF FISH AND GAME, JUNEAU, AK

    Mr. Fleener. Good morning, Chair Wyden, Senator Murkowski. 
I am Craig Fleener, the Deputy Commissioner for the Alaska 
Department of Fish and Game, and with me today is Doug Vincent-
Lang, Director for the Division of Wildlife Conservation.
    Thank you for this opportunity to testify.
    [Speaking in the Gwich'in language]
    Mr. Fleener. I am from Fort Yukon, Alaska, located in the 
Yukon Flats National Wildlife Refuge about 8 miles north of the 
Arctic Circle, and I've hunted and fished my entire life, and 
subsistence is a critical component of my life.
    I've served on the Eastern Interior Federal Regional 
Subsistence Advisory Council. I've served on the Board of Game 
and a wide number of other panels and committees that have 
basically led to the position I'm in today.
    Alaska, the last frontier, is unique in that fish and 
wildlife are important not only to our economy, but to our 
quality of life. Alaska's wild resources provide us critical 
sources of food, clothing and materials.
    Imagine living life in the coldest, darkest, furthest 
north, most remote locations in America where nearly no roads 
or industry exist and where development, jobs and grocery 
stores are far removed from communities. Imagine your income, 
the survival of your family, your very existence tied to your 
ability to obtain fish and wildlife.
    These images lay the foundation of a very unique aspect of 
the Alaskan constitution that requires the department to 
actively manage wildlife to provide ample populations for the 
sustenance and benefit of our people.
    To fulfill our mandate, we employ active management tools, 
for example, predator control and habitat manipulation, to 
sustainably increase the abundance of species that provide 
important hunting opportunities for Alaskans. We cannot take a 
passive, hands-off approach, which would risk the future 
viability of essential populations that feed our families.
    The State program is highly responsive to the needs of 
Alaskans. When a community identifies an inability to meet 
their needs or opportunity for improvement that should be 
considered, our boards, the Alaska public and the Department of 
Fish and Game work collaboratively to identify the concern 
through scientific analysis, community-based anthropological 
subsistence surveys and public discourse to reach a solution. 
If the proposed solutions are lawful, the department and 
regulatory boards almost always support allowing additional 
opportunity.
    Our objective is to maximize harvest opportunity within the 
limits of biological sustainability. The Alaska Native Claims 
Settlement Act and the Alaska National Interest Lands 
Conservation Act, ANCSA and ANILCA, require the Federal 
agencies to manage wild resources in Alaska to meet the 
substance needs of rural Alaskans.
    Federal agencies have the authority to implement active 
management on their lands, although they have not done so, to 
meet subsistence needs.
    Interestingly, there are Federal active management programs 
throughout the rest of the country to kill predators to enhance 
threatened bird populations. They employ hatchery programs that 
enhance fishing opportunities, and they even use supplemental 
feeding of non-native species like horses and burros, but no 
such program exists in Alaska to meet subsistence users' needs.
    Furthermore, the authority and responsibility for Federal 
active management was strengthened under both ANILCA and ANCSA. 
We believe Congress definitively spoke in these acts on the 
importance and priority of ensuring that subsistence needs are 
met.
    It is our view that the Federal agencies should be viewing 
the National Park Organic Act and Refuge Improvement Act 
through the lens of ANILCA and ANCSA instead of vice-versa as 
is currently being done. Congress needs to ensure this 
direction is implemented by Federal land-management agencies.
    In most cases, when it comes to meeting the necessities of 
life, the Federal agencies have forgotten or neglected the 
promises made under these laws. ANCSA and ANILCA were written 
to ensure subsistence holds a special place requiring special 
dispensation and that wild resources in Alaska must be actively 
managed in order to meet the basic food requirements of 
Alaskans.
    You can't provide a season without providing the wildlife 
necessary to meet people's needs and think you were being 
successful.
    The Federal subsistence framework in Alaska has been a 
source of great consternation amongst federally qualified 
subsistence users since its inception. They've pleaded for 
active management on Federal lands and for Federal land 
managers to work with the State to improve important 
populations like moose, caribou and deer.
    Perhaps the greatest complication for a subsistence 
community is dual regulation of fish and game resources. 
Conflicting regulations, divergent agency mandates and 
different management strategies create confusion for the 
hunting and fishing community in Alaska, and every year new or 
duplicative regulations are created to address situations where 
Federal managers have disagreed with the Alaskan Board of Game. 
This is not improving subsistence in Alaska.
    With over 60 percent of the land in Alaska under Federal 
ownership, it is nearly impossible to provide adequate 
subsistence foods to Alaskans, people that live near national 
parks, refuges or forests. Thus, State managers have been 
hobbled in their attempts to achieve management goals.
    In conclusion, the State has 4 recommendations to ensure 
subsistence needs are being met in Alaska. One is to clarify 
the importance of subsistence and allow State managers to 
conduct active management programs on Federal lands.
    No. 2, maintaining adequate funding necessary for research 
to support subsistence users, rather than maintaining 
unnecessarily duplicative regulations.
    No. 3, Federal agencies must fund the incorporation of 
State data, research and expertise into the Federal regulatory 
process.
    Finally, avoiding expensive and duplicative programs, 
especially during this time of Federal austerity.
    Thank you very much for the opportunity to testify.
    [The prepared statement of Mr. Fleener follows:]

   Prepared Statement of Craig Fleener, Deputy Commissioner, Alaska 
     Department of Fish and Game, on Behalf of the State of Alaska
    Good morning, Chairman Wyden, Ranking Member Senator Murkowski, and 
members of the Senate Energy and Natural Resources Committee. My name 
is Craig Fleener. I am a Deputy Commissioner for the Alaska Department 
of Fish and Game, hereinafter referred to as the Department. With me 
today is Doug Vincent-Lang, Director for the Division of Wildlife 
Conservation. Thank you for the opportunity to testify regarding 
wildlife management authority within the State of Alaska under the 
Alaska National Interest Lands Conservation Act and the Alaska Native 
Claims Settlement Act.
    Alaska--the ``Last Frontier''--is unique among all the states in 
that our fish and wildlife are essential to our quality of life, 
providing critical sources of food, clothing, and materials to our 
people. Alaskans inhabit the coldest, darkest, and most remote 
locations in the United States. In many communities there are no roads, 
industry, development, jobs, or grocery stores.
    Imagine your existence and the survival of your family being tied 
to your ability to obtain sustenance from nature. Also imagine your 
income being tied to hunting and fishing. Unlike in much of the lower 
48, wildlife conservation in Alaska is a matter crucial to our quality 
of life.
    So crucial in fact that subsistence hunting and fishing are a vital 
food source for Alaskans. They provide about 44 million pounds of wild 
foods taken annually by residents of rural Alaska, or about 375 pounds 
per person per year. Ninety-five percent of rural households consume 
subsistence-caught fish.
                      state subsistence framework
    The unique realities of Alaskan life are reflected in Alaska's 
Constitution, which requires the Department to actively manage fish and 
wildlife to provide ample populations for the sustenance and benefit of 
our people (Article VIII, Sections 1, 2, 3, and 4). To fulfill our 
mandate, we employ active management tools (e.g. predator control or 
habitat manipulation) to sustainably increase the abundance of species 
that provide important hunting and fishing opportunities. We cannot 
take a passive, hands-off approach, which would risk the future 
viability of essential populations that feed our families.
    The State of Alaska relies on a strong statutory, regulatory, and 
management framework, designed to meet the needs of Alaskans. Because 
fish and wildlife are critical for so many Alaskans, our system 
provides extensive opportunity for user input. It allows for each 
Alaskan to identify a management issue and submit a proposal to address 
the issue. The proposal will then receive the attention of one of more 
than 80 Fish and Game Advisory Committees throughout the state, where 
the author of the proposal can garner support or improve the proposal. 
Finally, Alaskans can argue the merits of proposals before the Alaska 
Board of Game or Fisheries for approval and codification into 
regulation.
    The State program is highly responsive to the needs of Alaskans. 
When a community identifies an inability to meet their needs or an 
opportunity for improvement that should be considered, the Alaska 
Boards of Game and Fisheries, the Alaskan public, and the Department 
work collaboratively to identify the concern through scientific 
analysis, community based anthropological subsistence surveys, and 
public discourse, to reach a solution. If the proposed solutions are 
lawful and will not harm wildlife or fish populations, the Department, 
and Game and Fisheries Boards almost always support allowing additional 
opportunity.
    The State's objective is to maximize harvest opportunity within the 
limits of biological sustainability. Whenever fish or wildlife 
populations are not sufficient to meet all uses, subsistence takes 
priority. Further, if deemed necessary, the Board of Game will 
authorize the Department to actively manage wildlife populations 
important for subsistence.
    Alaska has an excellent record for managing its fish and game 
resources. Our system relies on the best available information based 
upon data, research, and local and traditional knowledge, along with 
science-based adaptive decision making and a transparent public 
process. We are recognized as worldwide leaders in the field of 
wildlife research and management.
                examples of successful state management
    The State's subsistence management framework produces positive 
results for subsistence users. The Southern Alaska Peninsula caribou 
herd serves as a clear example. This herd, once numbering in excess of 
10,000 animals in 1983, fell to 1,500 in the 1990s. Further decline 
resulted in hunting closures, including subsistence hunting, and in 
unmet subsistence needs. When the herd bottomed out at some 600 animals 
in 2007, a tipping point was reached. Without active management 
intervention, extirpation became the likely outcome.
    Department research determined that sufficient forage was available 
and was not a limiting factor for the herd. Disease also was ruled out. 
A 2007 survey indicated the caribou were reproducing normally and that 
pregnancy rates were moderately strong, yet young animals were all but 
absent. Something was stifling herd growth and accelerating its decline 
by killing caribou calves at an alarming rate. Biologists identified 
wolves, the region's most efficient wild predators, as the likely 
culprit. Opportunists by nature and necessity, wolves had set up 
denning operations in the midst of the Southern Alaska caribou calving 
grounds.
    In 2008, the Department launched a scientifically designed, 
targeted, active management program to reduce wolf numbers on the 
calving grounds. At the time, some 60 to 80 wolves in nine to 13 packs 
were estimated to occupy the region of concern. Twenty-eight wolves 
were removed from the area during the caribou calving season in 2008, 
eight in 2009, and two more in 2010. The combined take represented an 
average of 19 to 25 percent of the area's original wolf population.
    By the time the active management work was completed, caribou calf 
survival had rebounded and the perilous decline in the Southern Alaska 
Peninsula caribou had been reversed. As a result, the Department was 
able to reestablish regional hunting opportunities, benefitting 
Alaskans in communities such as Nelson Lagoon, Sand Point, King Cove, 
and Cold Bay. Meanwhile, wolf numbers in the region remain at healthy, 
biologically sound levels. Notably, our federal partners declined to 
join this effort by denying State managers access to federal lands.
    Many similar examples exist across Alaska, from Nelchina and 
Fortymile caribou, to North Slope muskoxen, to Yukon River moose. In 
total, the State's active management programs comprise less than 10 
percent of the State's land area, but the benefit to subsistence users 
has been immense. In each case, the Department has taken proactive 
steps to ensure populations can meet the needs of our people. Overall, 
our programs have shown success and are providing additional hunting 
opportunities for Alaskans, including rural Alaskans dependent upon 
these resources for subsistence. Given this success, we are committed 
to our active management program.
                     federal subsistence framework
    The Alaska Native Claims Settlement Act (ANCSA) and the Alaska 
National Interest Lands Conservation Act (ANILCA) require the federal 
agencies to manage wild resources in Alaska to meet the basic food 
requirements of rural Alaskans.
    According to Section 801(4) of ANILCA:

          ``[I]n order to fulfill the policies and purposes of the 
        Alaska Native Claims Settlement Act and as a matter of equity, 
        it is necessary for the Congress to invoke its constitutional 
        authority over Native affairs and its constitutional authority 
        under the property clause and the commerce clause to protect 
        and provide the opportunity for continued subsistence uses on 
        the public lands by Native and non-Native rural residents . . 
        .''

    The federal government has attempted to create a parallel 
subsistence program to the State's with ten advisory councils and a 
decision making board. The Federal Subsistence Board, however, does not 
have the authority to compel federal land managers to employ active 
management on federal land. It only possesses the authority to set 
seasons, bag limits, and methods and means of harvest for federally 
qualified users hunting and fishing on federal lands in Alaska.
    The federal agencies that can authorize active management, like the 
U.S. National Park Service (NPS) and U.S. Fish and Wildlife Service 
(FWS) have typically rejected active management measures in Alaska. 
They have based their decisions on agency interpretations of the 
National Wildlife Refuge System Improvement Act of 1997 and the 
National Park Service Organic Act of 1916, and their emphasis on 
``natural diversity'' and ``park values,'' respectively. As a result, 
the federal agencies have not actively managed wildlife populations to 
meet subsistence needs.
    Interestingly, there are federal active management programs 
throughout the rest of the country that kill predators to enhance 
threatened bird populations, employ hatchery programs that enhance 
fishing opportunities, and even used the supplemental feeding of non-
native species like horses and burros. However, no such programs exist 
in Alaska to ensure that federally qualified subsistence users have 
adequate moose, caribou, and deer to feed their families.
    The federal subsistence framework in Alaska has been a source of 
great consternation amongst federally qualified subsistence users since 
the inception of the program in 1990. Qualified users have pleaded for 
active management on federal lands and for federal land managers such 
as the FWS and the NPS to coordinate with the State to increase 
important subsistence wildlife populations like moose, caribou, and 
deer.
    Federal agencies have the necessary authority to implement active 
management on their lands. The authority and responsibility for active 
management was strengthened under both ANILCA and ANCSA. We believe 
Congress definitively spoke in these acts on the importance and 
priority of ensuring that subsistence needs are met. It is our view 
that the federal agencies should be viewing the National Park Organic 
Act of 1916 through the lens of ANILCA and ANCSA, instead of vice 
versa, as is currently being done. Congress needs to ensure this 
direction is implemented by federal land management agencies.
    With over 60 percent of land in Alaska under federal ownership, it 
is nearly impossible for the State managers to provide adequate 
subsistence foods to Alaska's people that live in or near National 
Parks, Refuges, or Forests without the assistance of federal managers. 
Thus, State managers have been hobbled in their attempts to achieve 
their management goal.
                     failures in federal management
    The failure of the federal agencies to employ active management 
practices on federal land has produced negative consequences. This is 
best exemplified on Unimak Island. Like caribou on the South Alaska 
Peninsula, the caribou population on Unimak Island plummeted with the 
likely cause being wolf predation. Hunting, including subsistence 
hunting, was closed, affecting the residents of the island's community 
of False Pass who have a demonstrated history of subsistence use of 
this herd. In response, the State attempted to work with the FWS, the 
principle land manager, to reduce predation and improve calf 
recruitment through an active management, wolf reduction program, in 
hopes of reopening caribou subsistence hunting. The FWS declined and 
instead warned the State in a letter that if we took action, we would 
be arrested and charged in federal court.
    In July 2010, the FWS and the State entered into a cooperative 
agreement to develop an Environmental Assessment related to management 
actions needed to provide for the sustainability of the Unimak Island 
caribou herd. In March 2011, the FWS selected the ``No Action'' 
alternative, which prevented any State sanctioned program to ensure the 
native caribou would not be extirpated from the island. The FWS 
determined that provisions of the Wilderness Act of 1964 and the 
agency's Biological Diversity Policy trumped refuge purposes, including 
the conservation of caribou and the provision of subsistence 
opportunities to sustain a remote population of indigenous peoples. 
Quite disturbingly, State managers were informed that allowing the 
caribou to become extirpated from the island, or ``blink out'' as the 
FWS leadership described it, was not considered inconsistent with the 
refuge management plan.
    In May 2011, the State requested the FWS to reconsider its decision 
and allow the effort to proceed based on new information suggesting 
extirpation of the herd was likely without intervention. The FWS said 
it would not do so. The State and FWS remain deadlocked, while the herd 
continues its decline towards likely extirpation.
    In the meantime, the residents of False Pass continue to have their 
caribou hunting opportunities unnecessarily restricted.
    Unfortunately, similar examples exist across Alaska on federal 
lands. The NPS recently preempted State subsistence harvest regulations 
for the documented customary and traditional harvest of bears in two 
Alaska National Park units. The NPS also preempted State wolf seasons 
in two other National Park units, despite a lack of conservation 
concerns and acknowledgment that the practice would not affect other 
park visitors. The NPS also closed a State wolf trapping season in 
another park unit, even though the Department documented such a closure 
was not necessary due to an absence of any conservation concern for the 
sustainability of wolves in the area. The State continues to assert 
that these restrictions are an unnecessary infringement on State 
sovereignty and unnecessarily impact subsistence users.
              complications resulting from dual management
    Perhaps the greatest complication for our subsistence community and 
State managers is the dual regulation of fish and game resources where 
state and federal jurisdictions intersect. Conflicting regulations, 
divergent agency mandates, and different management strategies create 
confusion for the hunting and fishing community in Alaska. Every year, 
new or duplicative regulations are created to address situations where 
federal managers disagree with the Alaska Board of Game. This is not 
improving subsistence in Alaska.
    State regulations stand on federal land unless a contrary action is 
taken and a federal regulation is developed. Many federal regulations 
have been developed to provide a mere perception of preference for 
rural users despite the federal program recognition that there was no 
shortage of the resource or inability to meet rural users' needs at the 
time the regulation was developed. These slight variations only burden 
Alaskans without any clear benefit.
    For example, subsistence users must determine which patchwork of 
land they are standing on along an access route to know whether they 
can take 15 or 20 birds. In some instances the possession limits for 
small game or trapping or fishing may be only a difference of one or 
two animals. In other areas, season dates may vary by a day depending 
on your zip code. In an area with abundant populations, this 
unnecessarily restricts subsistence.
                         state recommendations
    The following are the State's recommendations to ensure subsistence 
needs are met in Alaska. These include federal agencies allowing State 
managers to conduct active management programs on federal lands, 
addressing duplicative programs, ensuring adequate support for 
necessary research, and the incorporation of State data into federal 
regulatory processes.
1. Active Management on Federal Lands
    As described above, active management on federal lands is essential 
to ensure adequate subsistence foods are available to Alaska's people 
to meet federal obligations under ANCSA and ANILCA. While the Federal 
Subsistence Board has managed hunting seasons, seasons do not fill 
freezers. Fish, moose, caribou, and deer, made available through active 
management, fill freezers and feed families.
    State managers are also eager to cooperate on habitat enhancement 
with a goal of increasing wildlife populations. The State has success 
stories of working with ANCSA corporations. This past spring we teamed 
with Kenai Natives Association to improve their lands for moose 
production. This involved physically manipulate lands by cutting mature 
trees and scarifying the land to grow more willows that serve as food 
for moose. We are reaching out to the FWS in the hopes of extending 
this effort onto federal lands. However, initial efforts with federal 
managers have not been successful.
    Given the importance of fishing and hunting to the Alaska's people, 
we will continue to pursue these efforts. We need congressional 
guidance to the federal land management agencies to allow predator 
management and habitat enhancement on federal lands.
2. Duplicative Programs
    In this time of tight federal fiscal constraints, we must avoid 
expensive and duplicative programs. Since the inception of the Federal 
Subsistence Board in Alaska, federal agencies have unnecessarily 
duplicated State programs, suggesting they must have duplicative 
programs and regulations in place to meet federal mandates. This has 
resulted in increased cost with little direct benefit to the 
subsistence users in Alaska. Instead it has needlessly increased 
regulatory complexity without putting additional meat into Alaskans' 
freezers.
3. Funding Necessary Research
    Rather than unnecessarily duplicating regulations, the federal 
government should be assisting Alaskan subsistence users by maintaining 
adequate funding for important research and data collection. In recent 
years, federal support for subsistence research has diminished, 
especially funding to support needed research.
    While species research programs are cut, funds have been diverted 
towards ``landscape and surrogate species'' programs. These landscape 
and surrogate species programs do not feed people. We need research on 
species of import to subsistence in Alaska, not just on a few select 
surrogates. The State as the principle manager of fish and wildlife is 
best positioned to collect this information. Federal support for 
subsistence use surveys across Alaska has also been cut. This 
information is needed to determine population levels necessary to 
support reasonable subsistence opportunity. The Department has long 
been recognized as the expert at assessing subsistence data needs. 
Federal Subsistence Board decisions are often based on State data. Yet, 
federal support for state data collection programs has decreased in 
recent years. We believe a better use of federal funds is to support 
State work on species important to subsistence.
4. Incorporating State Data into Federal Processes
    Financial support for incorporating State data into federal 
decision processes at the Federal Subsistence Board has also been 
reduced. The State, as the primary management entity, has significant 
information to inform federal decision processes. And as stated before, 
the State is recognized as a worldwide leader in wildlife research. 
Though instead of supporting a proven, successful program, this year, 
the Federal Office of Subsistence Management cut the grant to the State 
from $480,000 to $50,000 while expecting the State to continue to 
provide the data to inform Federal Subsistence Board decisions. This 
has limited the State's ability to ensure the best available data is 
considered.
                               conclusion
    Alaska's commitment to subsistence is rooted in the life sustaining 
needs of our people and our Constitution. We have an excellent record 
of providing for subsistence opportunities and taking proactive 
measures to increase harvestable surpluses to ensure needs are met, 
despite being foreclosed from managing on over 60 percent of the land 
mass of the state.
    Rather than duplicating State efforts, the federal government 
should support State active management programs. Failure to follow this 
path will result in diminished subsistence hunting and fishing 
opportunities for all Alaskans over time. Federal land managers must 
realize that designating subsistence seasons is meaningless unless it 
comes with a reasonable opportunity to harvest resources.
    Despite increasingly differing subsistence goals, Alaska continues 
to seek common ground with our federal partners.

    The Chairman. Thank you very much, Mr. Fleener. Let's go to 
Senator Murkowski for her questions.
    Senator Murkowski. Thank you, Mr. Chairman, and thank each 
of you for your testimony here this morning, what you have 
delivered and what you have provided in writing.
    We may have a lot of issues as it relates to subsistence in 
areas of disagreement, but it seems that the one area where we 
agree is things aren't working as promised, and there are some 
proposals that are out there we're going to be hearing in the 
next panel about some suggestions that AFN has proposed in 
terms of demonstration projects.
    I guess I would ask both you, Mr. Peltola, and you, Mr. 
Fleener, your comments, your thoughts on the two proposed 
demonstration projects that AFN is putting forward.
    One is an intertribal fisheries commission for the Yukon 
and the Kuskokwim. The second is this co-management proposal on 
Ahtna lands that would allow Ahtna to work jointly to manage 
those lands.
    Why don't we go first to you, Mr. Peltola, for your 
comments on it, and then I'd like to hear the State's position 
on these two demonstration projects.
    Mr. Peltola. OK. Thank you, Senator Murkowski. I think we, 
as an agency and as a program, seek to increase cooperative 
management relationships with subsistence users. We would look 
toward the Regional Advisory Councils to facilitate the 
engagement on the ground or--which we're giving more deference 
to those Regional Advisory Council recommendations.
    I personally cannot make specific comments on a particular 
plan. I have not reviewed or seen any of these copies, but the 
service and the Federal subsistence program would be more than 
ready--readily available to review such plans on a case-by-case 
basis.
    Senator Murkowski. Do you think that it would be helpful, 
obviously, I mean, you live and work and breathed the fisheries 
incidents not only this past summer out there in the Bethel 
region, but in years prior.
    Do you think that it would be helpful, given what you know, 
to have greater inclusion of Native peoples through a proposal 
like AFN has suggested?
    Mr. Peltola. Yes, Senator, and, generally speaking, anytime 
we can incorporate a local knowledge base or a local user base, 
it could only lead to a better product and better management in 
the long run.
    Senator Murkowski. Let me ask you, Mr. Fleener, in terms of 
the State's position on these two proposals.
    Mr. Fleener. Thank you, Senator Murkowski. I think that 
there is a complicating factor with the proposal from the State 
perspective, and that is that the State has a responsibility to 
manage fish and wildlife resources for all Alaskans, and 
because of that complication, it makes it difficult to focus 
benefits for one group of people, so, for example, Alaska 
Natives, and----
    Having said that, though, I think that our ultimate 
objective is to work as much as possible with any group of 
Alaskans.
    Alaska Natives being tremendous landowners in the State and 
being so closely tied to subsistence, our ultimate goal is to 
work as closely with Alaska Natives as possible. We try to 
engage, as much as possible, on improving the situation.
    So we are always open to the idea of improving the 
situation, trying to work toward any kind of a cooperative 
relationship, and we're looking now at working with tribes 
throughout the State, corporations, on corporation land to 
improve subsistence opportunities.
    We're looking at habitat improvement, and, if possible, we 
are doing some--or when possible, I should say--we are doing 
some predator-management programs and are looking for other 
opportunities.
    Those get to the end result that I think we're all looking 
for and that is to be able to sustain subsistence opportunities 
in those Native communities.
    Senator Murkowski. I'll find different ways to ask probably 
the same question, maybe, in a little bit here, but I think we 
recognize that when it comes to the active management, we're 
dealing with enormous spaces and almost always limited 
resources. So where we can collaborate and cooperate, seems to 
me, we're money ahead.
    You used the words complex management. I think we recognize 
that it is complicated. Quite honestly, our land disposition in 
the State of Alaska is very complicated, and so how we manage 
that is very challenging.
    But I guess I'm trying to find ways that, working together, 
we not only get more value for the dollars that we put into it, 
but we get the desired outcome, which is greater resource for 
all.
    Let me ask a question here a different way. You have 
suggested, Mr. Fleener, that one of State's recommendations is 
greater active management on Federal lands. We tried to do that 
with Unimak. We got sued.
    What's our path forward here? Because litigation is not 
going to deliver more caribou, more fish or more moose. How can 
we be working better with our Federal partners on the 
management of even the habitat side?
    It seems to me that even in that area we're not seeing much 
participation from our Federal partners. Would you disagree 
with me on that or do you concur that this also is an issue?
    It's not only the management of, for instance, the caribou 
out in Unimak, but it's working with the feds to even enhance 
habitat so that we can see more resource.
    Mr. Fleener. Thank you, Senator Murkowski. Actually, I can 
give some opening comments, but I'd like to allow our Wildlife 
Division Director to comment.
    We have a lot of, I would call them opportunities to 
partner with our Federal counterparts. We typically approach 
the agencies with projects that we're working on, and the 
answer is usually no, because of either the natural diversity 
mandate or other mandates that push the possibility of working 
together out of the way.
    We have examples like habitat improvement on the Kenai 
Refuge. We have examples like the Yukon Flats National Wildlife 
Refuge, where I'm from, where the moose population is about one 
moose every 10 square miles. There are quite a few people that 
live in the Yukon Flats that depend on that moose population, 
and it's been in a downward trend for more than 20 years, and 
nothing is being done about it.
    The State hasn't been able to go in and work there, because 
it's been very difficult to get into the door with the Fish and 
Wildlife Service.
    Unimak Island is another great example, and because 
Director Vincent-Lang is so much more familiar with that 
subject, I'd like to ask him to provide some comments.
    Mr. Vincent-Lang. Thank you, Senator. The State of Alaska 
recognizes that providing subsistence is more than just 
providing a season. It has to come along with the reasonable 
opportunity to harvest an animal, and, as such, we just don't 
sit back and passively manage our wildlife populations.
    We actively manage them to provide for, to assure that 
there's actually animals out on the landscape. Then, when 
there's a season open, somebody has a reasonable expectation to 
get them.
    A prime example of an action we took was on the South 
Alaska Peninsula. In that case, we had a herd of caribou that 
once numbered 10,000. That herd crashed, and, as a result, 
subsistence opportunities had to be closed under both the State 
and Federal system.
    The State identified the primary cause of that to be wolf 
predation and went in with a very strategically , 
scientifically designed program, actually requested the Fish 
and Wildlife Service's participation as the primary land 
manager in that area to cooperate with us to actually, you 
know, do our predator control program and to increase the 
abundance of caribou.
    They chose not to participate in that effort. We went it 
alone in a very limited patchwork of State land and actually 
turned that herd around to a point right now where we have, 
now, a season and people in local communities are taking 
caribou to meet their subsistence needs.
    Compare and contrast that with Unimak Island, which you 
mentioned in your talk. We had the very similar circumstance. 
We have a declining caribou population, and that caribou 
population could likely become extirpated from that island, 
and, right now, it's not providing any subsistence opportunity, 
because subsistence hunting for caribou is closed.
    Again, we requested to go meet with our Federal land 
management partners to go out and actually conduct a predator-
control program to, hopefully, turn that herd around and 
increase the abundance so we can have the subsistence-hunting 
opportunity again.
    Instead of cooperating, we were denied access into the area 
and told that that caribou population could blink out of 
existence and that would be OK under their natural-diversity 
guidance.
    The short of it is we believe we have to actively manage to 
provide for subsistence-hunting opportunities, regardless of 
which pool of people that is.
    We think that under ANILCA and under ANCSA Congress spoke 
clearly about the importance to actively manage, and we think 
that the Federal Land Management Agencies have the necessary 
tools at their disposals. They are just choosing not to use 
them. We plead with Congress to give them further direction to 
use those tools to increase the abundance of animals on the 
landscape.
    Senator Murkowski. I appreciate those comments and your 
observations.
    Let me ask you, Mr. Peltola, because when Secretary Salazar 
took over as Secretary of Department of Interior, he had some, 
I think, good conversations with Native leaders around the 
State on the issue of subsistence.
    He directed the Federal Subsistence Board to undertake a 
number of administrative actions as a result of his review of 
the Federal Subsistence Management System. This was, now, well 
over 3 years ago.
    My sense is that there was a review. There was a request to 
do something about it, but, in fairness, we really haven't seen 
much, if anything, from that request coming out of the 
Secretary for something that goes beyond just the review of the 
Federal Subsistence Management System. Where are we with 
regards to any of those recommendations?
    Mr. Peltola. Thank you, Senator. If you look at the 
recommendations coming out of the Secretary of Interior with 
Secretary of Agriculture's concurrence, there are numerous 
actions which were recommended, and it's a lot for me to 
memorize and go through here, so I have a list of what the 
recommendations were and I'll follow up with those.
    There was a recommendation to add new public board members 
on the Federal Subsistence Board. That action has occurred with 
the addition of Anthony Christianson from Hydaburg and Charlie 
Brower from Barrow.
    We expanded the deference from the Federal Subsistence 
Board to the Regional Advisory Councils. That is in the process 
and has been occurring.
    Historically speaking, the Federal Subsistence Boards 
looked to the Regional Advisory Council to guard the fish and 
game or fish and wildlife proposals. We're doing more than 
that, currently, in initiating more deference to those by 
looking toward direction from the Regional Advisory Councils on 
the rural determination process.
    We're also looking to the recommendation from the Regional 
Advisory Council with regard to the customary and traditional 
determination process.
    The Federal Subsistence Board was given some direction to 
minimize the use of executive session to allow for a feeling of 
a more transparent process. This is in the process of 
occurring. A policy has been written to minimize these sessions 
and report to the public the subject matter of those executive 
sessions when they do occur.
    We're directed to review the MOU with the State of Alaska. 
That is in process. We have held two rounds of review with 
Regional Advisory Councils and the MOU was revised via a State-
Federal working group, and that was forwarded to the State of 
Alaska, who, I understand, is working on their own draft of it 
at this time.
    As I mentioned, the Rural Determination Comprehensive 
Review, starting this fall with our fall rounds of Regional 
Advisory Council meetings in the different regions of Alaska, 
we are holding public hearings on what to utilize in that 
process.
    Also, I can mention the customary and traditional use 
determination process also in review.
    Some of those that we have not proceeded forth is where the 
Federal Subsistence Board submits recommendations for funding 
for the annual budget for the Federal Subsistence Program.
    There's a couple of others. One is to utilize an 809 
cooperative agreement authority to expand using tribes and 
other local entities for fulfilling subsistence-program 
elements. That is considered somewhat in progress. This 
authority is used for the Fisheries Resource Monitoring 
Program, and there may be other opportunities within 809 
authority we could expand upon.
    Those are a few of the direct secretarial review items that 
we have proceeded forth with.
    Senator Murkowski. Let me ask you about the RACs. Ms. 
Pendleton, you can join in as well, because it seems that that 
is cited as this is an indication in terms of how we bring in 
the local people and solicit their input.
    Currently, the Regional Advisory Councils provide 
recommendations and information to the Federal Subsistence 
Board, but, beyond that, there is not that much authority, if 
you will. I don't think that our RACs actually have any power 
or authority beyond just providing recommendations and 
information, and it may or may not be regarded or taken into 
account.
    What can we do to empower the RACs to be more than just 
somebody that presents some ideas? How do you actually make 
sure that it's the local people that are providing not only 
more than just information, but helping to advance some of the 
decisions based on that local input?
    We see back here it's pretty top heavy. The system is 
pretty top heavy. I'm fearful that, oftentimes, what we get is 
we're able to check the box with a level of consultation.
    We're able to check the box because we have in place these 
entities that, if you look at the name and the hometown, you 
say, OK. We've got Native participation and representation. It 
really ends up being very little, at the end of the day. This 
is what I'm hearing from folks. So how do you make the Regional 
Advisory Councils more meaningful?
    Ms. Pendleton. Thank you, Senator. As Gene, Mr. Peltola 
mentioned, the Regional Advisory Councils, the makeup of those 
councils are individuals from local communities.
    Many of those individuals are active subsistence users. 
They have a good understanding of the importance from a 
cultural, traditional, spiritual importance of the use of the 
resource. So they bring that perspective, I think, to the 
councils.
    Council meetings are held close to communities within those 
regions. There's opportunities for residents to come together 
to share their perspectives, to bring proposals, of course, to 
the Regional Advisory Councils and for those councilmembers to 
consider and then provide input, recommendations on up to the 
board.
    As Mr. Peltola mentioned, those recommendations from the 
councils, the Federal Subsistence Board gives deference to 
those, so they are weighed and considered very importantly and 
that deference is provided. So I think----
    Senator Murkowski. I think that's where----
    Ms. Pendleton [continuing]. That that provides some 
strength----
    Senator Murkowski [continuing]. That's where it appears to 
me that folks aren't believing that we're getting that level of 
input, because they don't see the deference being shown to what 
is coming from the local people, the local input.
    They've got an opportunity to participate, and that's 
absolutely important, but when you say, then, deference is 
afforded, I think you would have most folks saying, OK. Show me 
how that actually translates into a recognition that those 
local concerns had actually been addressed. I think that's 
where we're seeing some breakdown.
    Mr. Peltola, you want to comment?
    Mr. Peltola. Yes, Senator Murkowski. One thing I would add 
is that outside of the secretarial program, out of the review, 
we have a couple of other steps, so to speak, that have taken 
place in the last year-and-a-half or so that may contribute 
significantly to the way we interact with the local individual.
    One of those is being the recent Department of the Interior 
tribal consultation policy and also the--I guess it preceded 
that--is the Fish and Wildlife Service where my experience and 
career has been placed is the Fish and Wildlife Service tribal 
consultation policy.
    In my capacity as Refuge Manager of the Yukon Delta over 
the last five, 5\1/2\ years, I served on two different 
functions within the Fish and Wildlife Service regarding tribal 
consultation. One being is I helped draft the step-down plan 
from Interior for the Fish and Wildlife Service, and I also 
served on the Native American Policy Review Team for the Fish 
and Wildlife Service nationwide and provided input there.
    If you look at the way we have historically done business, 
the Yukon Delta Refuge is one of the largest refuges in the 
system, and because of that we have one of the largest 
village--tribal-entity bases. We have 56 villages on and 
adjacent to. The refuge there has always spoke with tribes, 
even before it was actually dictated to be a policy.
    Under my tenure as Refuge Manager there, we were doing 70 
to 90 consultations a year with regard to different fisheries 
or wildlife proposals or different management actions.
    Now, with implementation of, you know, the secretarial 
review within the Office of Subsistence Management, there also 
is an OSM or Office of Subsistence Management tribal 
consultation policy.
    That could be overwhelming in the sense that we deal with 
hundreds and hundreds of fisheries and wildlife proposals every 
year. In order to reach out to every potentially affected 
tribe, it could be overwhelming.
    One thing I'd like to say is that looking upon my role as a 
refuge manager, now within Assistant Regional Director with the 
program, we're going to take very seriously those 
responsibilities to communicate with individual tribes in the 
affected regions via our proposals, and that is a means that 
the service and myself as an individual have utilized in order 
to try to provide more local input into the process.
    Senator Murkowski. Just for the information of those here 
testifying and those that will be part of the second panel, 
Senator Wyden and I are actually trying to manage an energy 
bill on the floor as we speak. So he is actually on the floor 
and is hoping to be able to come back as soon as he is able.
    So he wanted me to make sure that you knew it was not for 
lack of interest, but we're trying to juggle multiple balls in 
the air at the same time.
    I note that my colleague and friend from West Virginia has 
joined the committee, and I appreciate that. Senator Manchin is 
a man who I think understands hunting and fishing as well as 
anybody here in the Senate and has an appreciation for so many 
of the issues.
    Senator Manchin, I'm just going through a series of 
questions, so if you would like to make a statement or ask 
questions now, I'd certainly defer to you, because I've had the 
mic for a while.
    Senator Manchin. Thank you, Senator. I appreciate it. First 
of all, I appreciate both Chairman Wyden and particularly 
Ranking Member Murkowski, who are both dear friends of mine, 
for holding this hearing.
    Last year, I had the great pleasure of hosting both of them 
in my home State of West Virginia. They took time out, and it's 
very precious time that they have, to come to West Virginia to 
look at an all-of-the-above energy policy and showing them the 
aspects of my State.
    I look forward to visiting both their states, Oregon and 
Alaska. Maybe next year, then, I can make it up to Alaska for 
the moose-hunting season, too. I've heard about that. Of 
course, the salmon fishing is always good. So I'm looking 
forward to all of those things.
    I can say this, as a former Governor, I know some of the 
frustrations that come from the differing and sometimes 
competing management of State and Federal lands. I know in 
Alaska the issue is even more complex, when you consider the 
role and needs of Native Corporations.
    I had the opportunity yesterday to meet with 
representatives from the Alaska Native Village CEOs Association 
in my office, to hear directly about some of their concerns.
    While Alaskans face a number of issues that are not faced 
elsewhere, West Virginians certainly understand what it means 
to rely on our land for food, for energy and for many of our 
basic needs.
    I'm happy that today I have the opportunity to discuss the 
unique management issues facing Alaskans. It is terrific how 
much effort--and it really is, and I mean that. You should be 
so proud that you have a Senator that works so hard in both 
Senator Murkowski and what she puts into reaching out to all 
Alaskans to ensure that they have a voice in Washington.
    I look forward to learning more about this issue and to 
learning about how, as members of our committee that we have 
here, that we can help the people of Alaska find a commonsense 
solution to the concerns that we hear today.
    Let me just say, the commonsense solution, there's a 
balance to be found. There's a balance in everything, and up 
here you're seeing the extremes play out on television and 
policy, truly. We're having a hard time. You don't live your 
life this way.
    You know, I tell people, and back home, in West Virginia, 
every morning you get up, you try to find that balance 
immediately, and, boy, if you can go to bed and you've found a 
little bit of balance it was a pretty good day. Up here, we 
haven't found many good days, and there are so many good 
people, it's a shame.
    So I can assure you my mind is open to help you find the 
balance, and I'm sure the government should be your partner and 
not your adversary.
    I believe very strongly in the Tenth Amendment to the 
Constitution. Being a former Governor, I will protect that 
position until my last breath is taken.
    So, with that, I really do, I look forward to working with 
you, learning more and seeing how I can be of help and knowing 
that reasonable people can make reasonable decisions. So, Madam 
Chairman, thank you.
    Senator Murkowski. Senator Manchin, thank you for your 
statement. Thank you for your good work and your commitment to 
learn.
    As I mentioned in my opening statement, I greatly 
appreciate the Chairman of the Committee agreeing to have a 
hearing, a full committee hearing on an issue that is so local 
to one State, but so integral to who it is that we are as 
people.
    So your statement that you're willing to listen and work to 
find reasonable solutions is very, very meaningful. Know that 
you will always have an open invitation to come to Alaska, and 
if I'm not there to act as your host, I'm sure you would have 
any number of the folks that are assembled here to escort you 
around the State. So we look forward to that.
    Senator Manchin. Would it be possible to ask a question?
    Senator Murkowski. Absolutely.
    Senator Manchin. I'll just start--we'll start with--Is it 
Peltola?
    Mr. Peltola, in your testimony, you mention that the 
Secretaries of Interior and Agriculture recommend that the 
process for determining rural status in Alaska be revisited, 
and you're currently involved in a review of the process.
    Maybe you can explain the rural status in Alaska and how it 
is currently determined and what your position would be to 
change things or how your input would be.
    Mr. Peltola. With regard to the rural determination----
    Senator Manchin. It can be improved upon. I'm sorry.
    Mr. Peltola. Improved upon. OK. With regard to rural 
determination, a few years back the Federal Subsistence Board 
made the recommendation to set a hard--more or less a hard 
figure with regard to population size with regard to what 
determines a rural or a non-rural area.
    Some of our communities in rural Alaska are approaching 
that population threshold. There have been some concerns 
expressed and through the secretarial direction about that 
process starting this fall, which I mentioned earlier to 
Senator Murkowski.
    During our fall round of Regional Advisory Council 
meetings, we're also having a Rural Determination Process 
Public Hearing where we are initiating public comment about 
what to utilize as a determining factor in the rural 
determination process, because there is a lot of significance 
involved in what constitutes a rural and a non-rural area with 
regard to subsistence-management Alaska.
    In the meantime, those recommendations made a few years 
back by the Federal Subsistence Board have been put on hold 
until this next round of public hearings have been initiated 
and completed.
    Senator Manchin. Mr. Fleener, if I may just skip around if 
I can, in your testimony, you suggest that duplicative Federal 
programs should be eliminated to save money and better serve 
Alaskans. Can you identify the duplicative programs that you 
would recommend?
    Mr. Fleener. Thank you, Senator Manchin. I think probably 
the one that is at hand today, what we're talking about right 
now, would be the Federal Subsistence Management Program.
    Really, some of the management programs that are either 
being implemented now or being talked about to be implemented 
in the future on Federal lands, there really isn't a good 
reason to have two separate systems managing the same moose or 
the same caribou or the same subsistence user. It would be a 
much better, much more cost-effective method if we had one 
system.
    So that's probably the most relevant to this discussion 
right now is the actual Office of Subsistence Management 
Federal Subsistence Board Program.
    We have advisory committees, more than 80 advisory 
committees around the State, that I'd probably have to say the 
majority of them are comprised of subsistence users. Throughout 
the State, we have a very functional board structure that takes 
into account all of the remarks.
    Folks can submit proposals. They can argue the merits of 
their proposal before the advisory committees and before the 
boards. They can work together with the department, the boards 
and other members of the public to improve a proposal that they 
submit, and then we can turn that into an actual regulation.
    We have a very good and open system in the State of Alaska 
that you don't necessarily always get what you want. I 
submitted quite a few proposals to the Board of Game or the 
Board of Fish before I was a State of Alaska employee. Some of 
them were adopted and some weren't, and so you don't always get 
what you want, but we have a really good and open system.
    So the idea that we have duplicated that with the Federal 
Subsistence Program really is a tremendous expenditure of 
money. It creates a lot of conflict and probably the worst 
thing, as I testified earlier, is the confusion and the 
complications for the hunters or the fishers.
    So you have people that live out in the country and they 
have to be aware of whether or not they're hunting on Federal 
land. Often the Federal land and State authority areas are 
interspersed. It's like a patchwork quilt, and in 1 hour you 
can be under State regulations, the next hour you can be under 
Federal regulations, and then you have to understand the 
special situations within each of those regulations, not just 
the standard regulations themselves. So that's a very 
complicated set of situations.
    One example that makes it even more complicated is with the 
National Park Service and the compendium process. So you not 
only have to understand the Federal regulations from the 
Federal Subsistence Board, you also have to understand the 
regulations through the Alaska Board of Game or Board of Fish, 
Department of Fish and Game, now, you also have to read the 
National Park compendium to understand if they've decided to 
pull something out and no longer have it legal for you to 
participate in.
    So I think those are plenty of examples. I can give many 
more, but I don't want to hog the microphone.
    Senator Manchin. Thank you.
    Senator Murkowski. Thank you, Senator Manchin.
    Let me ask a question following on Senator Manchin's 
comment and your comments, Mr. Fleener, about the Federal 
Subsistence Management Program and your suggestion that we've 
got some overlap and duplication.
    Mr. Peltola, how many funding requests from Native 
organizations does the Federal Subsistence Management Program 
receive on an annual basis? If you can give me the number, are 
we able to fund all of them?
    Mr. Peltola. Senator Murkowski, I apologize, but I don't 
recall the exact number of proposals coming from Alaska Native 
organizations throughout the State.
    But what I can tell you is that of those funding requests 
we receive in the Office of Subsistence Management about 42 
percent of those go to the Alaska Department of Fish and Game, 
their Wildlife Conservation Program or the Commercial Fisheries 
Program, and then a lesser percentage of those--I believe, it's 
12 to 18 percent--go to the Alaska Native organizations.
    Senator Murkowski. Are you able then to provide funding for 
all of the requests? You meet the requests?
    Mr. Peltola. The majority of the funding requests that come 
to the Office of Subsistence Management fall under the 
Fisheries Research Monitoring Program. Of that, the way the 
process works--and I think it's very beneficial to some Alaska 
Native organizations. The way the process works is we have a 
call-for-proposal period, and then the whole packet of all the 
proposals are put together in a group and they're reviewed by 
what we call the Technical Review Committee.
    That committee is comprised of a representative from Alaska 
Department of Fish and Game Commercial Fisheries Division, 
Alaska Department of Fish and Game Sport Fishers Division, 
Alaska Department of Fish and Game Subsistence Division, a 
Forest Service, a Park Service and a Fish Service member. Those 
proposals are then ranked out----
    Senator Murkowski. What's the ranking criteria?
    Mr. Peltola. I shouldn't say ranked. They're reviewed and a 
recommendation is given to fund or not fund a particular 
proposal.
    Senator Murkowski. How do you determine the priority for 
allocation of funding between State and the tribes?
    Mr. Peltola. One would hope, and what I've gleaned of the 
system by reviewing it here, since my arriving in the position, 
is that we look at priority subsistence data management needs 
and necessities and those are then forwarded.
    We have a recommendation from the TRC, Technical Review 
Committee. The way the process is designed, and as far as I can 
tell, has not been implemented to date, is that once that 
recommendation goes from the TRC to the Regional Advisory 
Council, the Regional Advisory Council can recommend altering 
the order that they're presented by the TRC or, the majority of 
the time, the Regional Advisory Councils just concur what has 
been recommended at the time.
    Then those are forwarded on to the Federal Subsistence 
Board to--the board themselves decide whether to fund or not 
fund the proposal.
    Senator Murkowski. I'm going to finish up with one last 
question here, and it was prompted by a comment that you made, 
Mr. Fleener, about the fact that in other parts of the country 
our Federal agencies actually use active management either 
through some form of predator control, habitat enhancements.
    So I guess the question for our Federal representatives is 
why the Federal agencies have been reluctant to employ active 
management, whether it's predator control or whether it's 
habitat management, to meet the statutory mandates?
    Because I would agree with Mr. Fleener, I don't think we 
see that here in the State. So it's required in ANILCA and 
ANCSA, why have we seen reluctance within the State of Alaska 
by our Federal agencies to engage in active management?
    Mr. Peltola. Yes, Senator Murkowski. We're looking at, 
generally speaking, actions allowing for the control of 
predators on Federal public lands fall under the jurisdiction 
of each land-management agency.
    Each agency has different missions and mandates, and, then, 
through the Federal Subsistence Program, the Secretaries have 
chosen to leave predator management to the individual agencies.
    As for specifics to Unimak, which you mentioned before, I 
have somewhat of an understanding about the situation there. I 
was not directly involved in the decisions that were made with 
regard to Unimak, but I understand that the service, through 
the Division of Refuges in Alaska, determined that predator 
control there was inconsistent with ANILCA and the Wilderness 
Act.
    It was also contrary to ANILCA's purposes for establishing 
the refuge. That purpose states that wildlife population on 
Unimak could be managed with their natural diversity and that 
subsistence be carried out in a manner that is consistent with 
the natural diversity purposes of the refuge.
    So I can speak to generalities of and I can't get in--I am 
unable to address the specifics that each individual bill or 
decision that has been made.
    Senator Murkowski. I guess that I would take it back to the 
comment that Mr. Fleener made that we need to be viewing this 
through the lens of ANILCA and ANCSA, rather than whether it's 
the Wilderness Act or whether it's the other organic acts that 
you have cited to.
    It seems to me we have Federal statutes, Federal laws and 
you've got an administration, and I won't necessarily just 
blame this particular administration, but you have an 
administration that is choosing to interpret or give priority 
again to some Federal statutes at the expense of others, and we 
see conflict there, and I think the Unimak example is a pretty 
stark example of just that.
    Ms. Pendleton, do you want to add anything to that before I 
give up my time here?
    Ms. Pendleton. I really don't have any further comment, 
other than to say that, on the National Forest System, we 
haven't had any request or need or proposal for predator 
management to date that I'm aware of.
    Senator Murkowski. But what about the wildlife habitat? 
Because that's clearly in your domain.
    Ms. Pendleton. Thank you. It is. We have worked extensively 
with the State, under a memorandum of understanding and through 
the Federal Subsistence Program, to coordinate substantially as 
it relates to monitoring information, population information 
and that is all brought forward into the proposals and 
considerations, not only of the Regional Advisory Councils, but 
of the Federal Subsistence Board as well.
    Senator Murkowski. Mr. Chairman, I've had a lot of time 
here to ask questions, and I'd like to get to our second panel, 
but, certainly, would turn to you, turn the gavel back to you.
    The Chairman. Thank you, Senator Murkowski.
    Just on that point, because, for the two Federal agencies, 
that was something I was going to ask about as well.
    Ms. Pendleton, you said that you all at the Department of 
Agriculture, at the Forest Service, are working with the states 
in terms of a more active approach in managing for increased 
wildlife populations and controlling predators.
    But, obviously, the states aren't getting it right, so if 
we come here and we say, Gee, there are a variety of different 
reasons why this has taken place, which is what I understood 
Mr. Peltola to say, and Ms. Pendleton says we are working with 
the states, but the states don't seem to think we're getting it 
done, we've got some work to do to get this right. So I want to 
make sure you understand that I share Senator Murkowski's 
concern.
    Here's, of course, another big issue throughout the West. 
We're going to be following up at the staff level, so that we 
can ensure that more active approach in managing for increased 
wildlife populations and make sure that it's consistent with 
what I'm sure are other Federal directives and strike that kind 
of balance, but this is an area where we've got to get it 
right.
    Senator Manchin, any questions?
    Senator Manchin. I already had----
    The Chairman. OK. Very good. Let's go to our next panel, 
which is Ms. Ana Hoffman, President/CEO, Bethel Native 
Corporation; Mr. Robert T. Anderson, professor of law, 
Director, Native American Law Center; Dr. Rosita Worl with 
Sealaksa; Mr. Jerry Isaac with, if I'm pronouncing it right. 
Senator Murkowski, is this Tanana, Tanana----
    Senator Murkowski. Tanana.
    The Chairman. Tanana Chiefs Conference in Fairbanks, 
Alaska.
    All right. We will make your prepared remarks a part of the 
record. Why don't we begin with you, Ms. Hoffman?

    STATEMENT OF ANA HOFFMAN, PRESIDENT/CEO, BETHEL NATIVE 
                  CORPORATION, BETHEL, ALASKA

    Ms. Hoffman. Quyana keleglua mana arrcaralria 
qalaruteksartusqelluka. The closest word in Yup'ik for 
subsistence is nerangnaqsaraput, our method of gathering food.
    On September 7 of this year, my son shot a bull moose. Once 
we got all of the meat into the boat, including the heart, 
liver, tongue and nose, we waited while he tossed the moose 
beard into the tall trees to ensure continued success of future 
hunts.
    We were able to spend a week upriver because the school 
district, recognizing attendance drops dramatically during 
moose-hunting season, has established a fall break to 
accommodate subsistence.
    The length of the Kuskokwim River that we traveled from 
Bethel to McGrath required one General Harvest Tag 13 years 
ago. Today, it requires four: A General Harvest Ticket, 
Registration RM 615 Tier II, Registration RM 650 and one 
section is closed.
    The subsistence hunter in rural Alaska works hard to stay 
informed about governing laws and regulatory changes. Without 
monuments or landmarks, hunters and fishermen learn the unit 
boundaries and the applicable harvest restrictions in order to 
be in compliance. By and large, we are a regulation-following 
people.
    Last summer, there was an act of civil disobedience near 
Bethel. After having observed a 7-day closure, a number of 
Yup'ik fishermen decided to fish for Chinook salmon. This was 
the first significant incidence in Alaska in over 60 years.
    During the State court trials, the judge found that 
subsistence activities related to hunting and fishing are 
deeply rooted in the religious beliefs of the Yup'ik culture 
and that subsistence fishing for Chinook salmon and the 
attendant activities are religiously based conduct.
    Despite these findings, the district court affirmed the 
State's authority to restrict subsistence fishing and the case 
is now on appeal.
    The State's subsistence law requires the Board of Fisheries 
and Game to establish an amount necessary for subsistence of 
fish and game resources. In essence, this should be the 
baseline.
    What we see happening oftentimes is achieving the amount 
needed for subsistence is not known until we are subsisting. As 
a result, the subsistence user, whose cultural, social, 
economic and physical livelihood is at stake, is bearing the 
brunt of conservation.
    Bethel is the hub community of villages along the Yukon, 
Kuskokwim and Johnson Rivers. Each of these villages is 
strategically located in direct relationship to specific food 
sources.
    Forty years ago, Senator Edward Kennedy visited my mother's 
village of Nunapitchuk. He had dry fish and tea with my 
grandparents. The village is known for its proximity to white 
fish, black fish and pike. It is because of the continued 
access to subsistence hunting and fishing that the villages 
remain in existence today.
    If you walk into any classroom in rural Alaska and ask the 
students what they ate for dinner, they will likely answer 
soup. But it is not French onion or vegetable beef. It is fish 
soup, moose soup, caribou soup, seal soup, swan soup, walrus 
soup, goose soup, beaver soup and crane soup, all accompanied 
with dry fish. This is our sustenance.
    In 2010, the State of Alaska gathered statistics about 
subsistence harvesting. Subsistence food harvests represent 
just over 1 percent of the fish and game harvested annually in 
Alaska. The commercial fisheries harvests over 98 percent.
    Of the non-commercial harvests of food, the studies showed 
the average urban resident harvests 23 pounds per person per 
year, the rural resident harvests 316 pounds per person per 
year. In Western Alaska, where I am from, we harvest 490 pounds 
per person per year. There is no Costco or Walmart in our area 
of Alaska. It is the rivers, the lakes, the oceans and the 
wilderness that feed us.
    Last week, I walked out to my mom's native allotment just 
outside of Bethel to pick berries. Along the way, I came across 
Fritz Jimmie, Neal Japhet and Ray Landlord. They were bird 
hunting. They noticed my bucket and pointed out which way I 
should go to find the biggest blackberries.
    As I walked across the tundra, I looked back at them and 
saw them, 3 boys, ages 10, 11, and 12, sitting at the edge of a 
lake in the middle of Southwestern Alaska waiting for the 
migratory birds to land. It is their rights we aim to protect.
    If I may, I'd like to enter into the record the photo of 
Ray, Fritz and Neal that I took last Friday evening. Thank you.
    [The prepared statement of Ms. Hoffman follows:]

    Prepared Statement of Ana Hoffman, President/CEO, Bethel Native 
                        Corporation, Bethel, AK
    Quyana keleglua mana arrcaralria qalaruteksartusqelluku. 
Subsistence in Yup'ik is nerangnaqsaraput. It means our way of 
gathering food.
    On Sept 7 of this year, my son shot a bull moose. Once we got all 
of the meat into the boat, including the heart, liver, tongue and nose, 
we waited while he tossed the moose beard into the tall trees to ensure 
continued success on future hunts. We were able to spend a week up 
river because the school district, recognizing attendance drops 
dramatically during moose hunting season, has established a fall break 
to accommodate subsistence.
    The length of the Kuskowkim River we traveled from Bethel to 
McGrath required only one general harvest tag thirteen years ago. 
Today, it requires four: general harvest ticket, registration RM 615, 
tier II, registration RM 650 and one section is closed. The subsistence 
hunter in Rural Alaska works hard to stay informed about governing laws 
and regulatory changes. Without monuments or land marks, hunters and 
fishermen learn the unit boundaries and the applicable harvest 
restrictions in order to be in compliance. By in large, we are a 
regulation following people.
    Last summer there was an act of civil disobedience near Bethel, 
after having observed a seven day closure, a number of Yup'ik fisherman 
decided to fish for Chinook salmon. This was the first significant 
incidence in Alaska in over sixty years. During the state court trials, 
the judge found that subsistence activities related to hunting and 
fishing are deeply rooted in the religious beliefs of the Yup'ik 
culture and that the subsistence fishing for Chinook salmon and the 
attendant activities are religiously based conduct. Despite these 
findings the District court affirmed the State's authority to restrict 
subsistence fishing and the case is now on appeal.
    The State's subsistence law requires the Boards of Fisheries and 
Game to establish an amount necessary for subsistence of fish and game 
resources. In essence, this should be the baseline. What we see 
happening oftentimes is achieving the amount needed for subsistence is 
not known until we are subsisting. As a result, the subsistence user, 
whose cultural, social, economic, and physical livelihood is at stake, 
is bearing the brunt of conservation.
    Bethel is the hub community of villages along the Yukon, Kuskokwim 
and Johnson rivers. Each of these villages is strategically located in 
direct relationship to specific food sources. Forty years ago, Senator 
Edward Kennedy visited my mother's home village of Nunapitchuak, he had 
dry fish and tea with my grandparents. The village is known for its 
proximity to white fish, black fish and pike. It is because of the 
continued access to subsistence hunting and fishing that the villages 
remain in existence today.
    If you walk into any classroom in rural Alaska and ask the students 
what they ate for dinner, they will likely answer soup. But it is not 
French onion or vegetable beef. It is fish soup, moose soup, caribou 
soup, seal soup, swan soup, walrus soup, goose soup, beaver soup, and 
crane soup all accompanied with dry fish. This is our sustenance.
    In 2010 the State of Alaska gathered statistics about subsistence 
harvesting. Subsistence food harvests represent just over 1% of the 
fish and game harvested annually in Alaska, the commercial fisheries 
harvests over 98%. Of the non-commercial harvests of food, the studies 
showed the average urban resident harvests 23 pounds per person per 
year, the rural resident harvests 316 pounds per person per year. In 
Western Alaska, where I am from, we harvest 490 pounds per person per 
year. There is no Costco or Walmart in our area of Alaska, it is the 
rivers, lakes, ocean and wilderness that feed us.
    Last week, I walked out to my mom's native allotment just outside 
of Bethel to pick berries. Along the way, I came across Fritz Jimmie, 
Neal Japhet and Ray Landlord they were bird hunting. They noticed my 
bucket and pointed out which way I should go to find the biggest black 
berries. As I walked across the tundra, I looked back and saw them, 
three boys ages 10, 11, and 12 sitting at the edge of a lake in the 
middle of southwestern Alaska waiting for the migratory birds to land. 
It is their rights we all aim to protect.

    Senator Murkowski. Thank you, Ana. The photograph will be 
entered into the record. I think it is a beautiful example of 
what we see in Western Alaska, where our children are taught 
and trained to provide for the family, even at a very early 
age. Thank you for your comments.
    Mr. Anderson, welcome.

 STATEMENT OF ROBERT T. ANDERSON, PROFESSOR OF LAW, DIRECTOR, 
NATIVE AMERICAN LAW CENTER, UNIVERSITY OF WASHINGTON SCHOOL OF 
                        LAW, SEATTLE, WA

    Mr. Anderson. Thank you, Senator Murkowski, Senator 
Manchin. I appreciate the opportunity to talk with you this 
morning about the legal issues implicated by any amendments to 
ANILA, Title VIII, and to ANCSA, and the fact that this 
committee has jurisdiction over both statutes is very telling.
    The history of Federal law regarding hunting and fishing in 
Alaska is an important personal history to people, first and 
foremost, but it also has a rich legal history, in the sense 
that it's part of our tradition in American Indian law, in 
Federal law of recognizing and protecting Native Aboriginal 
rights to hunt, fish, gather and occupy their traditional 
lands.
    When Alaska was purchased from Russia in 1867, the treaty 
provided that aboriginal peoples in Alaska would be subject to 
and protected by the same laws that governed Indian tribes 
throughout the rest of the United States.
    Really, without exception, up until 1971, nearly every 
Federal statute made applicable to Alaska either had an 
exception for Native subsistence uses of fish, game, migratory 
birds or had some sort of an affirmative protection for those 
rights, recognizing the importance, even in the early 
territorial days, of Native aboriginal rights to hunt, fish and 
gather.
    The Solicitor and Secretary of the Interior in 1942 
recognized that aboriginal occupancy establishes possessory 
rights in Alaskan waters and submerged lands and that such 
rights have not been extinguished by any treaty, statute or 
administrative action.
    As we know, the Statehood Act, 1958, provided that the 
State would disclaim any jurisdiction over aboriginal rights in 
Alaska. It wasn't until the discovery of oil at Prudhoe Bay in 
the late 1960s that things really got moving with the adoption 
of ANCSA in 1971.
    ANCSA was really an aberration in the history of the 
dealings between the United States and Indian tribes in a 
couple of senses. One, we have the corporate scheme, which is 
different, but, most importantly, there was no substitute 
provision for the aboriginal hunting and fishing rights that 
were extinguished.
    Every other treaty or statute or agreement that was made 
with an Indian tribe provided for protection on a continuing 
basis for those important hunting, fishing and gathering 
rights. That was not included.
    Rather, the conference committee indicated an expectation 
that the Secretaries of the Interior in the State would provide 
for subsistence uses by Alaska.
    That didn't happen and we ended up with Title VIII of 
ANILCA as a substitute for those aboriginal rights that were 
extinguished, the expectation being that the State would have a 
rural preference in place and would manage fish and game with a 
rural priority throughout Alaska on Federal and State lands, 
and that happened for a brief period. It was 7 years that the 
State was managing fish and game.
    It was during that time that Katie John, who we all have 
heard a great deal about, and I was honored to be able to 
represent her, went to the State Board of Fisheries to get her 
fishery opened that had been closed shortly after statehood.
    The Board of Fish refused. She went to Federal court, as 
contemplated under ANILCA, and the Federal court ordered the 
fishery opened. That was 24 years ago, and that litigation 
still rages on with the State attempting to displace Federal 
management on the limited basis that the Federal Government 
manages now.
    The failure to adopt the rural preference because of the 
State constitution has really broken ANILCA. I know Governor 
Knowles and Senator Stevens worked tirelessly to try to get a 
constitutional amendment on the ballot to provide a rural 
preference, so that we could have a unified management regime 
again in Alaska, but that failed.
    The State's program since that McDowell decision in 1990 
has, you know, developed this non-subsistence component, so 
that there'll be large non-subsistence-use areas in the State, 
and has moved further and further away from providing a true 
priority.
    So, in sum, I would say that Title VIII was intended to 
protect these aboriginal rights through a rural preference that 
would be fulfilled with the State's cooperation.
    The State is disabled from cooperating because of its own 
constitution and hasn't been able to amend it. ANCSA's 
corporate scheme was experimental. This committee and Congress 
have revisited that scheme many times and made substantial 
changes in how ANCSA operates.
    AFN's resolutions and the two experimental programs 
indicate that now is the time for Congress to consider a 
possible Native subsistence preference in all of Alaska. The 
Federal Government has power in this area, has exercised it in 
the past, and it would be constitutional to do so as set out in 
my full testimony. Thank you.
    [The prepared statement of Mr. Anderson follows:]

Prepared Statement of Robert T. Anderson, Professor of Law, University 
  of Washington School of Law, Director, Native American Law Center, 
                              Seattle, WA
    Good afternoon, my name is Robert Anderson and I am a Professor of 
Law at the University of Washington School of Law, Director of its 
Native American Law Center. I also have a long-term appointment as the 
Oneida Indian Nation Visiting Professor of Law at Harvard Law School. I 
have worked on Alaska Native hunting and fishing issues since 1984 when 
I was one of two attorneys who opened the Anchorage office of the 
Native American Rights Fund. I spent six years in the Clinton 
Administration working on many Native rights issues, among other 
matters. I have been a law professor for the past thirteen years. I am 
a co-author and member of the Board of Editors of COHEN'S HANDBOOK OF 
FEDERAL INDIAN LAW (Lexis/Nexis 2005 and 2012 Editions). I am also a 
co-author of a casebook used in many law schools, Anderson, Berger, 
Frickey & Krakoff, AMERICAN INDIAN LAW (2008 & 2010 Editions). My CV is 
attached to this testimony.
    My testimony addresses the history of federal law regarding 
hunting, fishing and gathering rights in Alaska, the subsistence 
management regime under Title VIII of ANILCA, and the power of Congress 
to adopt a Native tribal preference for access to fish and game. For 
the reasons explained below, I believe a Native tribal preference would 
easily withstand any federal constitutional challenge.
    i. legal history of native hunting and fishing rights in alaska
    Since Alaska was purchased by the United States in 1867, the 
hunting and fishing rights of Alaska Natives have been affirmatively 
recognized and protected in various forms by Congress, the Executive 
Branch, and the federal courts. See generally D. CASE & D. VOLUCK, 
ALASKA NATIVES AND AMERICAN LAWS 270-290 (3rd Ed. 2012). The leading 
scholarly treatise on Native American law and contains the following 
summary of the legal treatment of Alaska Native rights to fish and 
game.

          From the time of Alaska's purchase in 1867 until the present 
        day, all branches of the federal government have protected to 
        some degree the fish and wildlife uses of Alaska natives 
        through exemptions from conservation laws, land reservations, 
        and withdrawals.\1189\ In its first action to protect wildlife 
        resources in the new territory from over-exploitation, Congress 
        restricted the taking of fur seals, but exempted native hunting 
        for food, clothing, and boat-manufacture.\1190\ Alaska's first 
        game law\1191\ restricted the taking of game animals, but 
        exempted hunting for food or clothing by ``native Indians or 
        Eskimos or by miners, explorers, or travelers on a journey when 
        in need of food.'' The 1916 Migratory Bird Convention with 
        Great Britain exempted natives from the closed seasons for 
        certain species.\1192\ The 1925 Act creating the Alaska Game 
        Commission authorized ``any Indian or Eskimo, prospector, or 
        traveler to take animals and birds during the closed seasons 
        when he is in absolute need of food and other food is not 
        available,''\1193\
---------------------------------------------------------------------------
    \1189\ Before Alaska's purchase, Native subsistence rights were 
protected by the ``laws of an antecedent government [Russia].'' United 
States v. Berrigan, 2 Alaska 442, 446 (D. Alaska 1905); see also 
Russian Administration of Alaska and the Status of the Alaska Natives, 
S. Doc. No. 81-152 at 45, 50-51 (1950) (reprinting Second (1821) & 
Third (1844) Charters of the Russian American Company). See generally, 
David S. Case, Subsistence and Self-Determination: Can Alaska Natives 
Have a More ``Effective Voice''? 60 U. Colo. L. Rev. 1009 (1989).
    \1190\ Act of July 1, 1870, 16 Stat. 180.
    \1191\ Act of June 7, 1902, 32 Stat. 327, amended, Act of May 11, 
1908, 35 Stat. 102.
    \1192\ Migratory Bird Convention, U.S.-Gr. Brit., 39 Stat. 1702, 
1703, T.S. No. 628. Migratory Bird Treaties with Canada and Mexico were 
amended by protocols in 1997, which exempt the taking of migratory 
birds and their eggs by Alaska natives. Treaty Doc. No. 104-28 and 
Treaty Doc. No. 105-26. 143 Cong. Rec. S11,167 (Oct. 23, 1997).
    \1193\ Alaska Game Commission Act, 43 Stat. 739, 744 (1925), 
amended by Act of Oct. 10, 1940, 54 Stat. 1103, \1104\ and Act of July 
1, 1943, 57 Stat. 301, 306.
---------------------------------------------------------------------------
          The 1925 Act also imposed a one-year territorial residency 
        requirement,\1194\ amended in 1938 to authorize a three-year 
        requirement, for trapping licenses whenever ``the economic 
        welfare and interests of native Indians or Eskimos, or the fur 
        resources of Alaska, are threatened by the influx of trappers 
        from without the Territory.''\1195\ The Reindeer Industry Act 
        of 1937\1196\ was intended to provide for native subsistence 
        needs and establish a native monopoly over the reindeer 
        industry.\1197\
---------------------------------------------------------------------------
    \1194\ Alaska Game Commission Act, 43 Stat. 739, 740.
    \1195\ Act of June 25, 1938, Sec.  2, 52 Stat. 1169, 1170. The 
foregoing territorial statutes were omitted from the United States Code 
on Alaska's admission as a state. 48 U.S.C. Sec. Sec.  192-211 (note).
    \1196\ 25 U.S.C. Sec.  500 et seq.
    \1197\ See Gigi Berardi, Natural Resource Policy, Unforgiving 
Geographies, and Persistent Poverty in Alaska Native Villages, 38 Nat. 
Resources J. 85, 98-99 (1998); cf. Williams v. Babbitt, 115 F.3d 657 
(9th Cir. 1997) (interpreting statute narrowly to permit non-native 
ownership of imported reindeer).
---------------------------------------------------------------------------
          As to fisheries, the 1924 White Act exempted from methods and 
        closed-season restrictions ``the taking of fish for local food 
        requirements or for use as dog food.''\1198\ The 1934 amending 
        act\1199\ further excepted the ``Karluk, Ugashik, Yukon, and 
        Kuskokwim Rivers'' from the restrictions on devices such as 
        fish fences, traps, and fish-wheels, as well as other methods-
        and-means restrictions. The amendment stated that the exception 
        for the Kuskokwim and Yukon Rivers, ``shall be solely for the 
        purpose of enabling native Indians and bona fide permanent 
        white inhabitants along the said rivers'' to take king salmon 
        ``for commercial purposes and for export,'' but ``no person 
        shall be deemed to be a bona fide permanent inhabitant of the 
        said rivers who has not resided thereon, or within fifty miles 
        thereof for a period of over one year.''\1200\ In 1943, the 
        Secretary established the Karluk Indian reservation on Kodiak 
        Island, designating adjacent tidelands and coastal waters under 
        the Indian Reorganization Act's authority to reserve ``public 
        lands which are actually occupied by Indians or Eskimos'' in 
        Alaska.\1201\ The Supreme Court rejected a challenge to the 
        Secretary's inclusion of navigable waters in the reservation, 
        noting that for natives ``the adjacent fisheries are as 
        important, perhaps more important than the forests, the 
        furbearing animals or the minerals.''\1202\
---------------------------------------------------------------------------
    \1198\ Act of June 6, 1924, Sec. Sec.  4, 5, 43 Stat. 464, 466 
(codified in part as amended at 48 U.S.C. Sec. Sec.  232-234).
    \1199\ Act of Apr. 16, 1934, Sec. Sec.  3, 4, 48 Stat. 594, 595.
    \1200\ Act of Apr. 16, 1934, Sec.  3, 48 Stat. 594, 595.
    \1201\ Act of May 1, 1936, Sec.  2,49 Stat. 1250 (extending 
portions of the IRA to Alaska).
    \1202\ Hynes v. Grimes Packing Co., 337 U.S. 86, 114 (1949). The 
Court held, however, that the White Act could not serve as the basis 
for regulations prohibiting non-Indian fishing within the reservation.

    COHEN'S HANDBOOK OF FEDERAL INDIAN LAW Sec.  4.07[3](c)(i ) (Lexis/
Nexis 2012) (footnotes as in original text).
    This summary of congressional actions demonstrates consistent early 
recognition by the United States of Alaska Native rights and the 
importance of access to fish and wildlife resources.
                   ii. the aboriginal rights question
    Native aboriginal rights, which include the right to hunt, fish and 
gather natural resources, are recognized as belonging to all indigenous 
Indian tribes, including Alaska Native tribes. See, COHEN'S HANDBOOK OF 
FEDERAL INDIAN LAW at 10-22, 326-329 (Lexis/Nexis 2012); D. CASE & D. 
VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 62, 79-80 (3rd Ed. 2012). 
These legal principles are premised on international law recognizing 
indigenous rights to use and occupy their traditional territories, but 
subject to negotiations with the colonizing nations. No modern land 
title is secure unless it can be demonstrated that Native aboriginal 
title to that area was somehow extinguished, or accommodated by treaty, 
agreement, or statute. Most of those treaties, agreements and statutes 
reserved rights to the affected tribe to a land base, as well as 
hunting, fishing and gathering rights both on and sometime off of the 
reserved lands.
    For Alaska, application of these legal principles began with the 
Treaty of Cession in 1867, 15 Stat. 539, by which the United States 
acquired Russia's rights to Alaska. The Treaty provided that federal 
law pertaining to Indian tribes in the United States would likewise 
apply to Alaska Natives. This naturally included the law governing 
Native aboriginal rights. The Secretary of the Interior and his 
Solicitor addressed the question of aboriginal hunting and fishing 
rights in Alaska in a 1942 decision. The question presented was 
``Whether Indians of Alaska have any fishing rights which are violated 
by control of particular trap sites by non-Indians under departmental 
regulations. . .'' Secretary Harold Ickes concurred in the Solicitor's 
``opinion that this question must be answered in the affirmative.'' He 
reasoned as follows.

          Although the Natives of Alaska did not enter into formal 
        treaties with the United States, such treaties are not 
        essential to the maintenance of rights based upon aboriginal 
        occupancy. As the Supreme Court said in United States v. 
        Winans, 198 U.S. 371 (1905), ``the treaty was not a grant of 
        rights to the Indians, but a grant of rights from them--a 
        reservation of those not granted.'' (at p. 381.) Thus, unless 
        the rights which Natives enjoyed from time immemorial in waters 
        and submerged lands of Alaska have been modified under Russian 
        or American sovereignty, it must be held that the aboriginal 
        rights of the Indians continue in effect.

    Aboriginal Fishing Rights in Alaska, 57 Interior Dec. 461, 462-63, 
1942 WL 4531 (1942).

          Finally, it must be noted that the allowance of non-Indian 
        fishing in areas subject to Indian possessory rights is a 
        continuing wrong, rather than a wrong which, once committed, 
        creates supervening and inalienable rights in third parties. It 
        is well settled that by allowing and licensing the use of 
        particular areas for fish traps the Federal Government does not 
        recognize any permanent or proprietary interest therein. Thus 
        while preexisting Indian proprietary interests have been 
        violated they have not thereby been permanently extinguished. 
        The Indian who has been forbidden from fishing in his back yard 
        has not thereby lost his aboriginal title thereto.
          I conclude that aboriginal occupancy establishes possessory 
        rights in Alaskan waters and submerged lands, and that such 
        rights have not been extinguished by any treaty, statute, or 
        administrative action.

    Id. at 476.
    The 1958 Statehood Act further acknowledged the existence of Native 
rights. It provided that ``all right and title . . . to any lands or 
other property (including fishing rights), the right or title to which 
may be held by any Indians, Eskimos, or Aleuts . . . or is held by the 
United States in trust for said Natives . . . shall be and remain under 
the absolute jurisdiction and control of the United States until 
disposed of under its authority, except to such extent as the Congress 
has prescribed or may hereafter prescribe.'' Pub. L. No. 85-508, Sec.  
4, 72 Stat. 339 (1958). Corresponding language appears in the Alaska 
Constitution. Alaska Const., art. XII, Sec.  12; see Organized Village 
of Kake v. Egan, 369 U.S. 60, 65-67 (1962) (Statehood Act preserved 
status quo respecting Native aboriginal title).
    Section 6(b) of the Statehood Act, however, granted the State of 
Alaska the right to select 102.5 million acres for its own use from 
``vacant, unappropriated, and unreserved'' public lands. As the new 
State began to select lands, Native tribes protested to the Secretary 
of the Interior, and on January 12, 1969, Secretary Stewart Udall 
imposed a freeze on further patenting or approval of applications for 
public lands in Alaska pending the settlement of Native claims. Pub. 
Land Order No. 4582, 34 Fed. Reg. 1025 (1969); see Alaska v. Udall, 420 
F.2d 938 (9th Cir. 1969). Pressure to resolve Native claims in Alaska 
also came from the State and from oil companies wishing to exploit the 
state's newly discovered petroleum resources. See Mary Clay Berry, THE 
ALASKA PIPELINE: THE POLITICS OF OIL AND NATIVE LAND CLAIMS 123, 163-
214 (Ind. U. Press 1975). Oil development could not progress as long as 
Native claims clouded state authority to lease lands or transfer rights 
to the companies and hindered federal capacity to authorize 
construction of the Trans-Alaska Pipeline, to transport the oil. See R. 
Arnold, ALASKA NATIVE LAND CLAIMS 137-147 (2d ed. Cambridge Univ. Press 
1978); Native Village of Allakaket v. Hickel, No. 706-70 (D. D.C. April 
6, 1970) (enjoining construction of trans-Alaska pipeline over Native-
claimed lands).
    Finally, in 1971, Congress confronted the issues it had postponed 
for a century and enacted the Alaska Native Claims Settlement Act 
(``ANCSA''). Section 4(b) explicitly extinguished hunting and fishing 
rights based on aboriginal title: ``All aboriginal titles, if any, and 
claims of aboriginal title in Alaska based on use and occupancy. . . 
including any aboriginal hunting and fishing rights that may exist, are 
hereby extinguished.'' 43 U.S.C. Sec.  1603(b). The ANCSA Conference 
Report, however, expressly provided that the Secretary of the Interior 
(presumably by virtue of his on-going trust obligations) could 
``exercise his existing withdrawal authority'' to ``protect Native 
subsistence needs and requirements,'' from ``nonresidents when 
subsistence resources for [the public lands] are in short supply or 
otherwise threatened.'' H. Conf. Rep. No. 92-746, 92d Cong., 1st Sess. 
37 (1971), reprinted in 1971 U.S. Code Cong & Ad. News 2247, 2250. 
``The Conference Committee expects both the Secretary and the State to 
take any action necessary to protect the subsistence needs of the 
Natives.'' Id.
    ANCSA's extinguishment clause as it relates to fish and wildlife is 
arguably inconsistent with current international law, which the United 
States supports. The United Nations Declaration on the Rights of 
Indigenous Peoples, includes the following:

          Article 20

                  1. Indigenous peoples have the right to maintain and 
                develop their political, economic and social systems or 
                institutions, to be secure in the enjoyment of their 
                own means of subsistence and development, and to engage 
                freely in all their traditional and other economic 
                activities.
                  2. Indigenous peoples deprived of their means of 
                subsistence and development are entitled to just and 
                fair redress.

    See, Announcement of U.S. Statement of Support for the United 
Nations Declaration on the Rights of Indigenous Peoples (Dec. 16, 
2010). http://www.state.gov/s/tribalconsultation/declaration/
iii. post-ancsa treatment of hunting and fishing rights often included 
                           native preferences
    After ANCSA, Congress and the executive branch continued to afford 
federal protection to specific subsistence rights, largely through 
exemptions from federal laws, or international treaties governing 
migratory birds or marine mammals. The Marine Mammal Protection Act of 
1972 (MMPA) exempted from the moratorium on taking marine mammals any 
Alaska Native ``who resides in Alaska and who dwells on the coast of 
the North Pacific Ocean or the Arctic Ocean,'' if the taking is for 
``subsistence purposes'' or for ``creating and selling'' handicrafts 
and clothing. 16 U.S.C. Sec.  1371(b); see Beck v. U.S. Dep't of 
Commerce, 982 F.2d 1332 (9th Cir. 1992) (interpreting Native 
handicrafts exception favorably to Alaska Natives); United States v. 
Clark, 912 F.2d 1087 (9th Cir. 1990); People of Togiak v. United 
States, 470 F. Supp. 423 (D.D.C. 1979). See generally Marine Mammal 
Protection Act of 1972, 16 U.S.C. Sec. Sec.  1361 et seq. Congress thus 
preempted state authority over marine mammal hunting throughout 
Alaska's territorial sea and coastal inland waters. Cf. Alaska v. 
Arnariak, 941 P.2d 154 (Alaska 1997) (narrowly construing the Marine 
Mammal Protection Act's preemptive scope to allow state prohibition of 
firearms to take marine mammals on state wildlife refuge). Under a 1981 
amendment to the MMPA, the Secretary of the Interior was prohibited 
from transferring marine mammal management authority to Alaska unless 
the State adopted a subsistence priority law. 16 U.S.C. Sec.  1379(f); 
see also 50 C.F.R. Sec.  18.23 (2013) (implementing regulations). The 
MMPA was amended in 1996 to provide for comanagement with Alaska 
Natives. See 16 U.S.C. Sec.  1388. The Alaska Eskimo Whaling Commission 
annually obtains subsistence bowhead whaling quotas pursuant to the 
International Whaling Convention. See David A. Case & David A. Voluck, 
Alaska Natives & American Laws 276-78 (3d ed. 2012). Polar bear 
management agreements and treaties also contain special provisions 
dealing with Native harvest. 16 U.S.C. Sec.  1423c,. See Agreement on 
the Conservation and Management of the Alaska-Chutkotka Polar Bear 
Population, U.S.-Russ. Fed. (Oct. 16, 2000). See also 50 CFR Sec.  
300.65 (``A person is eligible to harvest subsistence halibut if he or 
she is a member of an Alaska Native tribe with customary and 
traditional uses of halibut listed in the following table.'' ); http://
alaskafisheries.noaa.gov/ram/subsistence/halibut.htm
    In 1973, the Trans-Alaska Oil Pipeline Act imposed strict liability 
for any harm to the subsistence resources of Natives or others, 43 
U.S.C. Sec.  1653(a)(1), and the Endangered Species Act (ESA) 
presumptively exempted subsistence uses by Natives and ``any non-Native 
permanent resident of an Alaskan Native village'' from its coverage. 16 
U.S.C. Sec.  1539(e)(1); the Secretaries of the Interior and Commerce 
issued an order requiring early and substantial consultation between 
federal agencies implementing the ESA and affected Alaska Native 
tribes. Secretarial Order No. 3225 (Jan. 19, 2001).
    The 1978 Fish and Wildlife Improvement Act authorized the Secretary 
``to assure that the taking of migratory birds and the collection of 
their eggs, by the indigenous inhabitants of the State of Alaska, shall 
be permitted for their own nutritional and other essential needs.'' 16 
U.S.C. Sec.  712(1). Finally, executive land withdrawals in the decade 
following passage of ANCSA contained expansive subsistence-protection 
mandates: 14 of the 17 national monument proclamations signed by 
President Carter on December 1, 1978, noted the presence of ``the 
unique subsistence culture'' and directed the Secretary to protect it. 
43 Fed. Reg. 57,019 (Dec. 5, 1978), reprinted in 1978 U.S. Code Cong. & 
Ad. News 9589-9628; see 43 Fed. Reg. 60,252-60,258 (Dec. 26, 1978) 
(interim implementing subsistence regulations, providing for 
``subsistence fishing'' in ``monument area waters''). These efforts to 
protect Native subsistence access to marine mammals, migratory birds 
and halibut in offshore waters were beneficial, but too limited in 
scope. Fish and game, which are critical for Native subsistence uses, 
were not generally protected and the need for congressional action was 
apparent.
    By the late 1970's, it was obvious that in order for the federal 
government to be faithful to its policy of dealing honorably with 
Alaska's indigenous peoples, Congress would have to devise a new means 
of protecting Native customary and traditional hunting, fishing and 
gathering in Alaska. Resurrecting language earlier deleted from drafts 
of the Claims Settlement Act, Alaska Natives returned to Congress 
asking that explicit comprehensive protections for Native customary and 
traditional hunting and fishing be included in the Alaska National 
Interest Lands Conservation Act (ANILCA). The original Committee drafts 
of Title VIII of ANILCA proposed a Native-only subsistence preference 
on all federal public lands in Alaska and allowed the State to manage 
the priority on those lands if it passed a law of general applicability 
that provided the same preference on state lands. Before the bill was 
passed, Congress recast the priority as one for ``rural'' residents in 
order to appease the State of Alaska, which argued that a Native 
priority would violate the State's Constitution. The State's argument 
was incorrect as a matter of law, for states may implement federal laws 
regarding Native American tribes if authorized to do so. See Washington 
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 
658 (1979) (rejecting Washington's argument that it could not implement 
federally protected Indian treaty rights).
        iv. current state of affairs under title viii of anilca
    The State came into compliance with Title VIII of ANILCA in 1981 
and thus obtained authority to manage subsistence uses on federal 
public lands in Alaska. Even then, however, the State program did not 
provide a meaningful priority for subsistence uses by rural residents. 
The Alaska Board of Game applied sport regulations to moose and caribou 
hunting in the Lime Village area and Federal District Judge Holland 
declared that the state rules were invalid because they did not 
adequately accommodate customary and traditional subsistence use 
patterns. Bobby v. Alaska, 718 F. Supp. 764 (D. Alaska 1989). The 
situation with fisheries management was even worse. Under state 
management many traditional upriver subsistence fisheries had been shut 
down shortly after Statehood in favor of downriver commercial fisheries 
highlighting the need for comprehensive legislation to protect 
subsistence uses of fish and game. These upriver closures were the 
genesis for the Katie John litigation, which was commenced in 1985 
after the Alaska Board of Fisheries refused the request from Katie John 
and Doris Charles that the fishery at the site of Batzulnetas be 
opened. In 1987 the fishery was opened as a result of the litigation, 
and Judge Holland ordered the State to promulgate regulations that 
complied with Title VIII's rural priority. Katie John, et al. v. 
Alaska, No. A85-698 Civil, Order on Cross Motions for Summary Judgment 
(D. Alaska Jan. 19, 1990) (striking down state regulations that 
restricted subsistence fishing at an historic Native fish camp). See, 
United States v. Alexander, 938 F.2d 942 (9th Cir. 1991) (setting aside 
a federal Lacey Act prosecution on the ground that state law 
prohibiting cash sales from being considered subsistence uses was in 
conflict with ANILCA's protection of customary trade as a subsistence 
use); Kwethluk IRA Council v. Alaska, 740 F. Supp. 765 (D. Alaska 1990) 
(striking down state regulations governing subsistence hunting of 
caribou in western Alaska as inconsistent with the customary and 
traditional harvest patterns of Yupik Natives).
    In 1989 the State Supreme Court set aside the State's ability to 
provide a rural subsistence preference when it declared that the rural 
priority violated the Alaska Constitution. Consequently, the State lost 
regulatory authority over subsistence uses on federal lands pursuant to 
federal regulations adopted in 1992. Because the federal government 
refused to assert jurisdiction over most navigable waters, Katie John 
and others filed a successful lawsuit to obtain federal management over 
many navigable waters in the state. That decision was handed down in 
1995, and federal agencies were charged with developing rules to 
implement the court decision.
    Governor Knowles made several attempts to convince the state 
legislature to place a rural preference constitutional amendment on the 
ballot, but was unsuccessful. Senator Stevens secured a series of 
appropriations riders that held proposed final federal rules in 
abeyance to secure time for the state legislature to act, but no action 
was taken. See Pub.L. 105-277, Div. A, Sec.  101(e) [Title III, Sec.  
339], 112 Stat. 2681 (1998); and Historical Note, 16 U.S.C.A. Sec.  
3102.
    Federal regulations to implement the Katie John court decision thus 
became final in 1999, and all was relatively quiet until the State 
brought a new lawsuit in 2005 challenging the new rules on several 
grounds. Since then, much time and expense has been spent in litigation 
by both the United States and the Native community in defending the 
federal priority from attack by the State of Alaska. These attacks 
focus on the scope and mechanics of the federal management regime on 
federal public lands. The Katie John case is now in its third 
generation of litigation. In the latest decision, the Ninth Circuit 
Court of Appeals rejected the State's challenge to the federal 
subsistence rules promulgated to implement that court's 1995 and 2001 
decisions. Katie John v. Alaska, 720 F.3d 1214 (9th Cir. 2013) (Katie 
John III). Set out at the end of this document is a summary of the 
decision. The State has until early October to ask the United States 
Supreme Court to review the case.
    Secretary of the Interior Ken Salazar initiated a review of the 
federal subsistence program in 2009, and AFN urged that the 
Administration recommend congressional action toward a Native priority, 
or ``Native plus'' priority for subsistence uses. Instead, the 
Administration made a few changes in Board structure, which are best 
characterized as window dressing.
    As of now the federal-state subsistence divide is as follows.

          1. The federal priority (Title VIII) applies on all 
        federally-owned uplands. It also applies to all non-navigable 
        waters within such federally-owned lands.
          2. The federal priority also applies to navigable waters that 
        are located above submerged lands that were retained by the 
        United States at Statehood in 1959 (most submerged lands passed 
        automatically to the State of Alaska at the moment of 
        statehood).
          3. The federal priority also applies to navigable waters that 
        are covered by the federal reserved rights doctrine. This 
        includes all waters within and adjacent to federal conservation 
        system units, such as National Forests, Parks, Preserves, 
        Monuments, Recreation Areas, and so on. Litigation continues 
        over whether the federal government has included too few, or 
        too many waters within its interpretation of the federal 
        reserved rights doctrine. That litigation, Katie John v. United 
        States, 720 F.3d 1214 (9th Cir. 2013), was decided in July and 
        the court rejected all of the State's challenges to the federal 
        rules governing the scope of the subsistence priority. Any 
        appeals to the U.S. Supreme Court must be taken by early 
        October.
          4. All other non-federal lands (including Alaska Native 
        corporation lands and tribally-owned lands) are subject only to 
        the state's subsistence law.
          5. The State's own subsistence program, on the other hand, 
        has lost meaningful protection for subsistence by rural Alaska 
        Natives. See Alaska v. Kluti Kaah, 831 P.2d 1270 (Alaska 1992) 
        (upholding state ``subsistence season'' of seven days duration 
        in order to accommodate the requirement that all Alaskans were 
        eligible to hunt moose in the road-accessible Unite 13 
        management area); State v. Morry, 836 P.2d 358 (Alaska 1992) 
        (state not mandated to take into consideration traditional and 
        customary methods of subsistence takings in their formulation 
        of subsistence regulations). Aside from the fact that the state 
        ``priority'' is available to all Alaskans, state regulatory 
        boards have exercised their authority to declare large areas as 
        ``non-subsistence use areas'' to preclude application of even 
        the state's watered-down subsistence preference. Most of the 
        areas around Anchorage (including the Kenai Peninsula and Mat-
        Su Valley), Fairbanks, and Juneau have been designated non-
        subsistence areas by the Joint Boards of Fisheries and Game. In 
        addition, areas around Ketchikan and Valdez have been 
        designated as non-subsistence areas. The State would have 
        considerable work to do in order to come back into compliance 
        with Title VIII.
             v. constitutionality of native preference laws
    A tribal preference for Alaska Native hunting, fishing and 
gathering rights would be consistent with a long line of Supreme Court 
cases upholding federal legislation providing separate treatment for 
indigenous tribes and their members in the United States. The Supreme 
Court summarized the law in this area:

          The decisions of this Court leave no doubt that federal 
        legislation with respect to Indian tribes, although relating to 
        Indians as such, is not based upon impermissible racial 
        classifications. Quite the contrary, classifications expressly 
        singling out Indian tribes as subjects of legislation are 
        expressly provided for in the Constitution and supported by the 
        ensuing history of the Federal Government's relations with 
        Indians.
          ``Indian tribes are unique aggregations possessing attributes 
        of sovereignty over both their members and their territory, 
        Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 557, 8 L.Ed. 483 
        (1832); they are `a separate people' possessing `the power of 
        regulating their internal and social relations . . ..' '' 
        United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 
        42 L.Ed.2d 706 (1975).
          Legislation with respect to these ``unique aggregations'' has 
        repeatedly been sustained by this Court against claims of 
        unlawful racial discrimination. In upholding a limited 
        employment preference for Indians in the Bureau of Indian 
        Affairs, we said in Morton v. Mancari, 417 U.S. 535, 552, 94 
        S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974):
          ``Literally every piece of legislation dealing with Indian 
        tribes and reservations . . . single(s) out for special 
        treatment a constituency of tribal Indians living on or near 
        reservations. If these laws . . . were deemed invidious racial 
        discrimination, an entire Title of the United States Code (25 
        U.S.C.) would be effectively erased . . ..''
          In light of that result, the Court unanimously concluded in 
        Mancari:
          ``The preference, as applied, is granted to Indians not as a 
        discrete racial group, but, rather, as members of quasi-
        sovereign tribal entities . . ..'' Id., at 554, 94 S.Ct., at 
        2484.

    U. S. v. Antelope, 430 U.S. 641, 645 (1977).
    These rules were applied to reject Washington State's attack on the 
treaty fishing rights of Indian tribes in off-reservation areas. The 
Supreme Court stated that it ``has repeatedly held that the peculiar 
semisovereign and constitutionally recognized status of Indians 
justifies special treatment on their behalf when rationally related to 
the Government's `unique obligation toward the Indians.''' Washington 
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 
658, 673, (1979). In a recent case challenging Congress's power to 
restore tribal criminal jurisdiction, the Supreme Court noted that it 
has traditionally identified the Indian Commerce Clause, U.S. Const., 
Art. I, Sec.  8, cl. 3, and the Treaty Clause, Art. II, Sec.  2, cl. 2, 
as sources of federal power and that ``at least during the first 
century of America's national existence ... Indian affairs were more an 
aspect of military and foreign policy than a subject of domestic or 
municipal law.'' United States v. Lara, 541 U.S. 193, 200-202 (2004). 
Those sources of power are also sufficient to restore or reform the 
federal regime governing Alaska Native hunting, fishing and gathering 
rights.
                             vi. conclusion
    Until ANCSA passed in 1971, Native aboriginal rights were protected 
under federal law. In addition, many statutes, treaties and executive 
actions provided protections for Native hunting and fishing rights. The 
Congress that passed ANCSA intended that subsistence uses be protected, 
and when that aim was not fulfilled Title VIII of ANILCA was passed. 
Title VIII was intended to protect those rights through a ``rural'' 
preference that would be fulfilled with the State of Alaska's 
cooperation. The State has refused to cooperate and the intended 
federal subsistence protections have not been fulfilled. ANCSA's 
corporate scheme was experimental and Congress has revisited it with 
substantial amendments on many occasions. Now is the time for Congress 
to act to fulfill the promise that Native subsistence rights be 
protected.
    The undeniable federal power in this area, coupled with the federal 
action since acquisition of Alaska to the present time, demonstrates 
that the proposed Native preference is consistent with federal law. The 
question here is whether Congress has the authority, consistent with 
equal protection values embodied in the Due Process clause of the 5th 
Amendment, to establish a Native priority for access to fish, game and 
other natural resources. The answer, based on over two hundred years of 
congressional, judicial and executive branch precedent, is yes.
                 addendum.--the katie john iii decision
    Katie John v. United States, 720 F.3d 1214 (9th Cir. 2013).
    Senior Judge William C. Canby, Jr. and Judge Consuelo Callahan 
joined Senior Judge Kleinfeld's opinion. Senior Judge Betty Fletcher 
was on the panel when the case was argued in Anchorage in July of 2011, 
but passed away in 2012 and was replaced by Judge Canby.
    The lengthy opinion begins with a discussion of the history of the 
State's unsuccessful efforts to obtain management over federal public 
lands under Title VIII of ANILCA, and the current litigation over the 
geographic scope of federal management authority. The opinion then 
recounts the basic parameters of the federal reserved water rights 
doctrine, which is the primary issue in the litigation. Judge Kleinfeld 
correctly notes that the reserved rights doctrine has previously been 
applied to protect or quantify actual federal or Indian water use. 
Here, instead, it is being utilized to determine the geographic 
boundaries of federal public lands. Judge Kleinfeld observed that:

          ``We, and perhaps the Secretaries, failed to recognize the 
        difficulties in applying the federal reserved water rights 
        doctrine in this novel way, and in retrospect the doctrine may 
        provide a particularly poor mechanism for identifying the 
        geographic scope of ANILCA's rural subsistence priority 
        management when it comes to water. *** Of course, we had the 
        opportunity to revisit Katie John I in Katie John II, and while 
        a majority of the en banc court agreed for diverging reasons 
        that Katie John I was incorrectly decided, we could not come to 
        a controlling agreement about why that was true. We accordingly 
        concluded that the decision `should not be disturbed or 
        altered.' Katie John I therefore remains controlling law, and 
        we must attempt to apply it in this case.''

    [Katie John I was decided by a three-judge panel of the Ninth 
Circuit in 1995 and determined that the federal reserved rights 
doctrine should be utilized to delineate federal jurisdiction over 
navigable waters under ANILCA].
    Despite the difficulties in applying the federal reserved rights 
doctrine, the court moved on to the merits of the challenges to the 
1999 federal subsistence rule. Set out below are short descriptions of 
the issues and language from the court's opinion resolving each matter 
presented in the case.

    1. What Process: The State argued that the federal determination of 
waters subject to the federal reserved rights doctrine should have been 
decided in a judicial proceeding instead of through an administrative 
rule-making. Judge Kleinfeld rejected the State's argument.
    We hold that the Secretaries appropriately used notice-and-comment 
rulemaking, rather than adjudication, to identify those waters that are 
``public lands'' for the purpose of determining the scope of ANILCA's 
rural subsistence priority. The use of rule making is consistent with 
ANILCA, which requires the federal government to ``prescribe such 
regulations as are necessary,'' and with our decision in Katie John I, 
where we expressed our ``hope that the federal agencies will determine 
promptly which navigable waters are public lands subject to federal 
subsistence management. * * * Logically, we intended the agencies to 
act through rulemaking, where doing so was feasible.

    2. Which waters: Federal District Court Judge H. Russel Holland 
presided over the lower court proceedings and directed the parties to 
frame any challenges to the federal rules through particular test cases 
when appropriate. Judge Holland and the court of appeals addressed the 
following issues.

    a) Adjacent waters: The State argued that the rules should not 
apply to waters that are adjacent to the boundaries of federal CSUs. 
These boundary streams include long river segments, such as the 
portions of the Copper River technically outside the Park and Preserve 
boundaries. The court agreed with AFN, the United States and Katie John 
that such waters were subject to the reserved rights doctrine and thus 
subject to the subsistence priority. The court stated:

          Accordingly, the Secretaries reasonably concluded that the 
        United States has an ``interest'' in these adjacent waters by 
        virtue of the federal reserved water rights doctrine sufficient 
        to qualify as ``public lands'' for purposes of Title VIII.

    b) Sixmile Lake: This lake is adjacent to the Lake Clark National 
Park and Preserve. The State argued that because the Lake's shoreline 
is non-federal, non-public land owned by the Native Village Corporation 
for Nondalton, the lake could not be considered as adjacent to the 
Park. The court deferred to the federal determination that the boundary 
of the Park was adjacent to the shore of Sixmile Lake and thus the lake 
is covered by the subsistence priority.

          [T]he agency map of the Lake Clark National Park and Preserve 
        places the Park's boundary at the shoreline of Sixmile Lake. 
        ANILCA provides that, ``[i]n the event of discrepancies between 
        the acreages specified in this Act and those depicted on such 
        maps, the maps shall be controlling.'' The Secretaries 
        therefore properly concluded that Sixmile Lake was in fact 
        adjacent to the Lake Clark National Park and Preserve. 
        Moreover, under the federal reserved water rights doctrine, the 
        Secretaries must show only that the waters are positioned such 
        that the United States may need to exercise its rights upon 
        them. For that reason, the formal ownership of the land 
        immediately along the shoreline of Sixmile Lake is not 
        dispositive, so long as the lake contains water that is or 
        might be necessary to fulfill the primary purposes of the Lake 
        Clark National Park and Preserve.

    c) Seven Juneau-area streams: The State argued that several streams 
near Juneau were either outside of the Tongass National Forest, or were 
surrounded by private and state inholdings and thus could not be 
considered subject to federal reserved water rights. The court 
concluded the U.S properly considered the rivers to be within the 
Tongass.
    d) Water flowing through inholdings: The court rejected the State's 
general arguments that waters that ran between State and private 
inholdings within the 34 CSUs could not be subject to federal reserved 
water rights.

          [W]ater rights that the United States impliedly acquires are 
        not forfeited or conveyed to third parties when the government 
        conveys to another party land within a federal reservation. 
        Furthermore, federal reserved water rights can reach waters 
        that lie on inholdings as long as those waters, based on their 
        location and proximity to federal lands, are or may become 
        necessary for the primary purposes of the federally reserved 
        land. Because these water bodies are actually situated within 
        the boundaries of federal reservations, it is reasonable to 
        conclude that the United States has an interest in such waters 
        for the primary purposes of the reservations. We therefore 
        uphold the Secretaries' inclusion of these waters within 
        ``public lands.''

    e) Coastal waters and the ``headland-to headland method'': The 
State argued that the federal government's subsistence rules unlawfully 
included marine waters at the mouths of rivers. A prime example was the 
Yukon Delta National Wildlife Refuge where the river meets the sea. The 
federal government determined the outer limit of public lands by 
drawing a boundary across the water from the bank of one side of the 
river to the opposite bank where the river meets the sea. The court 
agreed that this was a reasonable way to determine where the federal 
subsistence priority applies and rejected the State's arguments.

          As discussed above, a federal interest by virtue of the 
        federal reserved water rights doctrine may exist in waters 
        adjacent to, but outside the boundary of, a federal 
        reservation, as long as these waters are appurtenant to the 
        reservation. Because the headland-to-headland method includes 
        tidally influenced waters that are physically connected to, and 
        indeed practically inseparable from, waters inland of the high 
        tide line (or waters on the federal reservations themselves), 
        drawing of the boundary line in this manner is consistent with 
        the federal reserved water rights doctrine. Finally, as the 
        Secretaries explain in the 2005 amendments, ``the regulations 
        use the methodology found in the Convention on the Territorial 
        Sea and Contiguous Zone from the United Nations Law of the Sea 
        for closing the mouths of rivers.'' For these reasons, using 
        the headland-to-headland approach for purposes of determining 
        the boundaries of rural subsistence priority management is a 
        reasonable way to administer ANILCA.

    f) Upstream and downstream waters: Katie John argued that because 
some adjacent waters were included, the federal priority should also 
apply to waters farther upstream and downstream of the various 
conservation system units. The court agreed that this was a reasonable 
way to apply the reserved water rights doctrine, but that it was up to 
the federal agencies to make that determination in the first instance. 
Importantly, the court recognized that the expansion advanced by Katie 
John might be appropriate in a particular situation. However, because 
the argument was made in general terms, the courts deferred to the 
federal agency decision. The court stated:

          In short, we agree with the district court that the 
        Secretaries reasonably determined that, as a general matter, 
        federally reserved water rights may be enforced to implement 
        ANILCA's rural subsistence priority as to waters within and 
        ``immediately adjacent to'' federal reservations, but not as to 
        waters upstream and downstream from those reservations. We also 
        agree with the district court that the federal reserved water 
        rights doctrine might apply upstream and downstream from 
        reservations in some circumstances, were there a particularized 
        enforcement action for that quantity of water needed to 
        preserve subsistence use in a given reservation, where such use 
        is a primary purpose for which the reservation was established. 
        But the abstract claim that all upstream and downstream waters 
        are necessary for all the federal reservations in the 1999 
        Rules cannot withstand ANILCA's text or history, the joint 
        decision of the two cabinet secretaries to whom administration 
        of the complex statute has been delegated, our decisions in 
        Katie John I and Katie John II, or the facts established in 
        this litigation.

    g) Allotments: In the lower 48, allotments are generally recognized 
as including reserved water rights to allow full use of the land. In 
Alaska there is a strong argument that Native allotments include 
reserved waters to allow for full use of the allotment. The United 
States agrees, but has deferred determination of which waters are 
reserved to a case-by-case process. The court agreed with the federal 
position.

          Determining which waters within or appurtenant to each 
        allotment may be necessary to fulfill the allotment's needs is 
        a complicated and fact-intensive endeavor that is best left in 
        the first instance to the Secretaries, not the courts. We are 
        mindful that Katie John I expresses the hope that the federal 
        agencies will ``determine promptly which navigable waters are 
        public lands subject to federal subsistence management,'' and 
        that the parties to this litigation have an interest in a final 
        determination of how the Secretaries will manage ANILCA's rural 
        subsistence priority. Accordingly, while we defer to the 
        Secretaries' determination in the 1999 Rules regarding how best 
        to identify federal reserved water rights for Alaska Native 
        settlement allotments, we encourage them to undertake that 
        process in a reasonably efficient manner.

    3. Selected-but-not-yet-conveyed lands: The court rejected the 
State's argument that land selected by the state or a Native 
Corporation, but not yet conveyed from the United States, was not 
federal land for purposes of the subsistence priority.

          [B]ecause the title to the selected-but-not-yet-conveyed land 
        remains with the United States, there is no practical reason to 
        exclude these lands from federal rural subsistence priority 
        management before they are formally conveyed to the State or a 
        Native corporation.

    Senator Murkowski. Thank you, Mr. Anderson. Dr. Rosita 
Worl, welcome.

  STATEMENT OF ROSITA WORL, PRESIDENT, SEALAKSA CORPORATION, 
                           JUNEAU, AK

    Ms. Worl. Aanshaawatk'I, Deisheetaan, Senator Murkowski, 
Senator Manchin.
    Gunulcheesh Aan Yatgu Saani. Thank you, Noble Leaders, for 
this opportunity to testify in my capacity as the chair of the 
Alaska Federation of Natives Subsistence Committee.
    I have also submitted written testimony for the record.
    I would first like to share my identity with you, to 
demonstrate our spiritual relationship to the land and wildlife 
and to demonstrate our ancient ties to the land.
    Ch'aak' naa xat sitee, I am an eagle.
    Shangukeidi aya xat. I am a thunderbird.
    Kawdliyaayi Hit aya xat. I am from the house lowered from 
the sun.
    Lukaaz.adi aya xat. I am a child of the sockeye clan.
    My spirits are the white bear and the shark.
    Subsistence is not an easy concept to define. Subsistence 
has been defined under Federal law to include traditional and 
customary hunting and fishing.
    Alaska Natives have simply defined subsistence as our way 
of life. Subsistence activities, in fact, are integrated into 
the economic, cultural, religious and social systems of Alaska 
Native societies.
    The definition of subsistence aside, it is critical that we 
acknowledge that subsistence is the foundation of Alaska Native 
cultures. Subsistence is the mainstay of food security in 
Native villages. Subsistence contributes to the cultural and 
physical survival of Native peoples on a daily basis.
    Protection of subsistence is part of Federal law throughout 
the United States. Nowhere are these protections more critical 
than in the State of Alaska.
    You have heard my colleague, Ana Hoffman, report on the 
significance and the importance of Alaska Native consumption of 
foods, subsistence food.
    We are here to ask this committee to fulfill the Federal 
Government's trust responsibility to protect Alaska Native 
subsistence, to protect our communities and our cultures, our 
food and our way of life.
    You have also heard my colleague, Mr. Anderson, review for 
you the history of ANCSA and ANILCA. ANILCA did not explicitly 
protect Alaska Native subsistence users, and ANILCA's rural 
priority did not extend to the State--to State or private lands 
or lands conveyed to our Native Corporations pursuant to ANCSA.
    Today, Federal laws protecting subsistence have been 
efficiently gutted and the State has further enacted measures 
adverse to subsistence. The State has declared all Alaskans to 
be subsistence users, and the State has declared large areas of 
land adjacent to communities as non-subsistence-use areas.
    As just one example, Alaska's Board of Game, which 
regulates hunting on State lands and on Ahtna's land, has 
limited the subsistence moose hunts to only a few days in the 
traditional territory of the Ahtna Tribe.
    Yet, as I understand, the Board of Game allowed as many as 
20,000 recreational hunters to sign up for the hunt during the 
2013 season. The Ahtna people, who have depended on moose for 
their livelihood since time immemorial, were only able to take 
18 moose for their 1,700 tribal members.
    The Federal Government has also failed to take meaningful 
steps to protect Alaska Native subsistence users. The United 
States and this government have a trust responsibility to 
Alaska Natives. Congress can act to protect Alaska Natives 
subsistence rights.
    In fact, Congress has, in the past, enacted or amended laws 
like the Marine Mammal Protection Act that explicitly protects 
Alaska Native subsistence users.
    We understand that achieving a meaningful reform of the 
legal framework for the subsistence management in Alaska may 
take some time, and we ask this committee to take a series of 
steps toward reform during the Congress.
    First, we ask that Alaska Native leaders work with us to 
draft legislation that would protect the Alaska Native's 
customary and traditional hunting and fishing way of life.
    Second, we ask that you work with Alaska Native leaders to 
develop and quickly pass legislation to implement two 
innovative subsistence demonstration projects that my colleague 
will be talking about.
    Third, we ask that a report from the Secretary of Interior 
on the status of the department's efforts to implement actions 
outlined following a 2009 secretarial review for the Federal 
Subsistence Management Program.
    Fourth, we urge the Secretaries of Interior and Agriculture 
to review and, to the extent possible, implement AFN's 
recommendations on administrative action that would 
significantly improve the ability of Alaska Native tribes to 
pursue their customary and traditional subsistence activity.
    On behalf of our Alaska Native people and communities, 
which depend on subsistence hunting and fishing to maintain our 
health, wellbeing and way of life, I thank you for holding this 
important hearing.
    I would be pleased to answer any questions you may have. 
Gunulcheesh.
    [The prepared statement of Ms. Worl follows:]

Prepared Statement of Rosita Worl, Chair, Subsistence Committee, Alaska 
                         Federation of Natives
    Chairman Wyden, Aanshaawatk'I, Deisheetaan, Senator Murkowski, and 
Members of the Committee:
    Gunulcheesh Aan Yatgu Saani. Thank you Noble Leaders for inviting 
me to testify today. Today I testify in my capacity as Chair of the 
Alaska Federation of Natives Subsistence Committee.
    I would like to first share my identity with you to demonstrate our 
spiritual relationship to the land and wildlife and to demonstrate our 
ties to the land:

          Ch'a1ak' naa xat sitee--I am Eagle
          Shangukeidi aya xat--I am a Thunderbird
          Kawdliyaayi Hit aya xat--I am from the House Lowered from the 
        Sun
          Lukaax.adi aya xat--I am a Child of the Sockeye Salmon
          My Spirits are the White Bear and the Shark

    The concept of ``subsistence'' is not an easy concept to define. No 
one definition of subsistence fully captures the meaning of the term.
    Alaska Natives have simply defined subsistence as their ``way of 
life.'' Social scientists affirm this definition through their analyses 
that demonstrate that indeed subsistence activities are integrated into 
the economic, cultural and social systems of Native societies.
    The Alaska National Interest Lands Conservation Act of 1980 
(ANILCA), uses the following definition, which is important from a 
legal standpoint:

          The term ``subsistence uses'' means the customary and 
        traditional uses by rural Alaska residents of wild, renewable 
        resources for direct personal or family consumption as food, 
        shelter, fuel, clothing, tools, or transportation; for the 
        making and selling of handicraft articles out of nonedible 
        byproducts of fish and wildlife resources taken for personal or 
        family consumption; for barter, or sharing for personal or 
        family consumption; and for customary trade.

    Aside from the definition of subsistence, it is critical that we 
acknowledge that

          Subsistence is the foundation of Alaska Native cultures.
          Subsistence is the mainstay of food security in Native 
        villages.
          Subsistence contributes to the cultural and physical survival 
        of Native communities on a daily basis.

    Protection of subsistence, including traditional and customary 
hunting and fishing rights, is a part of federal law throughout the 
United States. Nowhere are these protections more critical than in the 
State of Alaska.
    A vast majority of Alaska's 120,000 Native people (nearly 20% of 
the population of Alaska) still participate in hunting, fishing and 
gathering for food during much of the year. The average harvest of 
subsistence resources in pounds per person in rural Alaska is estimated 
at 544 pounds annually, equivalent to 50% of the average daily caloric 
requirement.
    Today, we are finding, more so than ever, that subsistence is 
threatened on multiple fronts:

   Global warming is altering our environment and diminishing 
        the availability of subsistence resources. For example, the St. 
        Lawrence Islanders are requesting that an economic disaster be 
        declared since they were unable to harvest their normal number 
        of walruses, which provide both food and a source of income.
   The management of high sea fisheries fails to consider the 
        subsistence priority, and thousands of Natives along our major 
        riverine systems face decreasing availability of salmon that is 
        so vital to our food security.
   High energy costs hinder the ability of Natives to harvest 
        subsistence foods, again diminishing a major source of food 
        security in our communities.
   The Federal Subsistence Board\1\ declared the Village of 
        Saxman to be non-rural in 2007 by aggregating it with the 
        larger community of Ketchikan and declaring the whole area non-
        rural. Saxman should have been evaluated on its own 
        characteristics and population. Unless the Board revises its 
        method of making rural/nonrural determinations, Saxman will 
        lose its rural status, a loss that will ripple through rural 
        Alaska as more and more of our villages face the loss of the 
        rural preference under federal law.
---------------------------------------------------------------------------
    \1\ The Federal Subsistence Board is the decision-making body that 
oversees the Federal Subsistence Management Program. It is made up of 
the regional directors of the U.S. Fish and Wildlife Service, National 
Park Service, Bureau of Land Management, Bureau of Indian Affairs and 
U.S. Forest Service. Two public members appointed by the Secretary of 
the Interior with concurrence of the Secretary of Agriculture. The 
Regional Advisory Councils provide recommendations and information to 
the Board; review proposed regulations, policies and management plans; 
and provide a public forum for subsistence issues. U.S. Department of 
the Interior, Federal Subsistence Management Program, About the 
Program, available at http://www.doi.gov/subsistence/about/index.cfm.

    These are just a few examples of the challenges we face to our way 
of life. Unfortunately, the Federal Government's legal framework for 
subsistence management in Alaska further undermines the ability of 
Alaska Natives to access their traditional foods.
    In the 1960s, the Alaska Federation of Natives and Alaska Native 
leaders sought federal protections for hunting and fishing rights as 
part of a settlement of Alaska Native aboriginal land claims. Instead, 
Section 4(b) of the Alaska Native Claims Settlement Act (ANCSA) of 1971 
extinguished those rights:

          All aboriginal titles, if any, and claims of aboriginal title 
        in Alaska based on use and occupancy, including submerged land 
        underneath all water areas, both inland and offshore, and 
        including any aboriginal hunting or fishing rights that may 
        exist, are hereby extinguished.

    Rather than define explicit protections for Native hunting and 
fishing rights in Alaska at that time, Congress in 1971 expected the 
State of Alaska and the Secretary of the Interior ``to take any action 
necessary to protect the subsistence needs of Alaska Natives.'' S. REP. 
NO. 92-581, at 37 (1971) (Conf. Rep.). Neither the Secretary of the 
Interior nor the State of Alaska fulfilled that expectation. As a 
result, Congress enacted Title VIII of ANILCA in 1980. ANILCA's Title 
VIII envisioned State implementation of the federal priority on all 
lands and waters in Alaska through State law. Again, the Alaska 
Federation of Natives and Alaska Native leaders sought explicit 
protections for ``Native'' hunting and fishing rights, but the State 
objected.
    Ultimately, ANILCA was crafted to provide a subsistence priority 
for ``rural residents''. Again, Congress expected that the State of 
Alaska would enact State laws that conformed to federal requirements 
and manage subsistence on state and federal lands in Alaska.
    Alaska did enact laws that allowed the State to manage subsistence 
on state and federal lands in Alaska, but that system operated for less 
than a decade before the Alaska Supreme Court ruled that the State 
Constitution precluded State participation in the program. In 1989, the 
Alaska Supreme Court held, in McDowell v. State, 785 P.2d 1 (Alaska 
1989), that the Alaska Constitution's equal access clauses, which 
guarantee that all Alaskans have equal access to fish and wildlife, 
preclude the State from implementing a rural subsistence priority 
consistent with ANILCA.
    After the 1989 McDowell decision, Alaska Native leaders and leaders 
in the Alaska Legislature attempted to bring Alaska law into compliance 
with ANILCA, which would have enabled the State to reassume 
responsibility for managing subsistence hunting and fishing on federal 
lands. The Alaska Legislature (through 20 regular sessions and six 
special sessions) was not able to accomplish this goal, falling just 
short of required number of votes. Today, State law generally 
prioritizes subsistence uses of fish and game but provides no 
preference for rural or Alaska Native residents.
    Forty-two years after ANCSA passed, and 33 years after ANILCA 
passed, neither the Department of the Interior nor the State of Alaska 
has lived up to Congress's expectation that Alaska Native subsistence 
needs would be protected. Today, the Federal Government manages 
subsistence on federal lands in Alaska. The State of Alaska generally 
manages subsistence on state and private lands in Alaska, including 
private lands owned by Alaska Native Corporations formed pursuant to 
ANCSA.
    After more than 20 years of ``dual'' federal and state management, 
it has become clear that the State will not do what is required to 
regain management authority over subsistence uses on federal lands and 
waters. The State subsistence laws have effectively been gutted--large 
areas of the state have been classified as ``non-subsistence use 
areas,'' where subsistence users receive no priority and ``all 
Alaskans'' have been declared eligible for the subsistence priority on 
all remaining state and private lands. This change is completely 
inconsistent with ANILCA's rural preference. This inconsistency is 
getting worse rather than better and the purpose, intent, and ``letter 
of the law'' in both ANCSA and ANILCA are not being met.
    We hope this Committee will recognize that ANCSA and ANILCA failed 
to provide the long-term protections for Native subsistence needs that 
Congress intended, and take the actions necessary to provide those 
protections. Subsistence harvests have been marginalized, both by 
competing users of fish and game and by ineffective and irreconcilable 
federal and state management regimes. In some cases, Alaska Natives 
have been made criminals for feeding their families and communities, 
and penalized for practicing ancient traditions. Alaska Natives were 
given only a very limited role in the management of their hunting and 
fishing rights under ANILCA-even on their own lands-undermining all 
efforts to protect customary and traditional uses, practices and needs. 
Only Congress can make the changes necessary to protect subsistence in 
Alaska.
            the administration's role in subsistence reform
    In 2009, in light of the erosion of federal protections, and after 
more than twenty years of dual (state and federal) management of 
subsistence, former Secretary of the Interior Ken Salazar initiated a 
review of the Federal Subsistence Management Program. In doing so, he 
called for a ``new approach''--one that would recognize and respect the 
voice of subsistence users in subsistence management. The Native 
community participated in the review, and submitted extensive comments 
and recommendations.
    The Secretary completed his review on October 5, 2010, and 
subsequently outlined a number of actions which could be accomplished 
by Secretarial directive or policy or through regulatory changes 
requiring formal rule making. To date, very few of those actions have 
actually been implemented. AFN believes the administrative actions 
taken to date, as a result of the review, are inadequate. Very little 
has changed since the review.
    AFN recommended, and continues to recommend, that the Secretary of 
the Interior pursue a number of administrative actions that would 
improve the current federal management system and better protect our 
way of life. We ask this Committee to join us in urging the President 
and his Administration to take whatever policy and administrative 
measures they can to better protect our subsistence way of life. 
Attached to my testimony is a list of the actions we believe the 
Administration can take right now that would require little or no 
funding. We shared this list with the new Secretary of the Interior, 
Sally Jewell, in our meeting with her in late August. Our 
recommendations include the following:

   Effective Implementation of Section 809 of ANILCA: Title 
        VIII of ANILCA mandates that the Federal Government provide 
        rural residents a meaningful role in the management of 
        subsistence fisheries. To increase the quality and quantity of 
        information available to subsistence fisheries managers, 
        Secretary Babbitt established the Fisheries Resource Monitoring 
        Program within the Office of Subsistence Management in 2000. 
        While the Monitoring Program offers tremendous opportunities 
        for partnerships and participation by Alaska's tribes and their 
        organizations, very little of the budget goes to Alaska Native 
        organizations. In FY 2012, the total budget for the Monitoring 
        Program was $4,538,150. Only 19% of that funding ($861,526) 
        went to Native organizations while 42% went to the State of 
        Alaska and another 11% to private organizations. Alaska's 
        tribes have historically received very little of the funding 
        under the Monitoring Program.
   Regional Advisory Councils\2\: Section 805 of ANILCA 
        mandates that the Federal Subsistence Board follow the 
        recommendations of the RACs unless a recommendation is ``not 
        supported by substantial evidence, violates recognized 
        principles of fish and wildlife conservation or would be 
        detrimental to the satisfaction of subsistence needs.'' The 
        Federal Subsistence Board takes the position that it need only 
        give deference to recommendations that involve the ``taking'' 
        of fish or wildlife; the Board does not defer to RACs on other 
        critical decisions, for example, whether a community should 
        qualify as ``rural'', or whether a specific practice qualifies 
        as a ``customary and traditional'' use of fish or wildlife 
        within the RAC's region. The Federal Subsistence Board should 
        be directed to give deference to RAC recommendations on all 
        matters related to subsistence uses, including, among other 
        things (1) rural determinations; (2) customary and traditional 
        use determinations; (3) issues that arise out-of the normal 
        regulatory cycle; and (4) special actions and emergency 
        regulations.
---------------------------------------------------------------------------
    \2\ The Regional Advisory Councils were formed, as required by 
Title VIII of ANILCA, to provide recommendations and information to the 
Federal Subsistence Board, to review policies and management plans, and 
to provide a public forum for subsistence issues. For purposes of 
Federal Subsistence Management, Alaska is divided into 10 geographic 
regions. Each region has an advisory council consisting of local 
residents who are knowledgeable about subsistence and other uses of 
fish and wildlife in their area. U.S. Department of the Interior, 
Federal Subsistence Management Program, Regional Advisory Councils, 
available at http://www.doi.gov/subsistence/councils/index.cfm.
---------------------------------------------------------------------------
   Composition of the Federal Subsistence Board: During the 
        Secretarial review, AFN recommended that the Federal 
        Subsistence Board be replaced with a federally-chartered or 
        federally-authorized body composed of twelve subsistence users 
        from the twelve ANCSA regions, or the chairs of each of the 
        RACs. There is nothing in Title VIII of ANILCA that prohibits 
        the Administration from creating a Board structure composed of 
        non-federal members. While the Secretary recently added two 
        public members to the Board, the majority of the members are 
        still federal employees.
     the committee on energy and natural resources should advance 
        legislation to protect alaska native subsistence rights
    We ask that this Committee commit to work with the Alaska Native 
community to formulate legislation that will restore and protect Native 
hunting and fishing rights in Alaska, and provide a co-equal role for 
Alaska Natives in the management of fish, wildlife and other renewable 
resources that we rely upon for our economic and cultural existence. 
Rather than simply defending and repairing a broken system that no 
longer serves its intended purpose, we believe it is time to consider 
options that reach back to Congress's original expectation that Alaska 
Native hunting, fishing and gathering rights be protected. Congress has 
the authority to enact legislation that ensures a ``Native'' or 
``tribal'' subsistence preference on all lands and waters in Alaska, 
and to provide a co-management role for Alaska Natives.
    We are not asking this Committee to undertake unprecedented action. 
Congress has amended federal law to provide explicit protections for 
Alaska Native subsistence rights in the not-so-distant past. In 1972, 
Congress passed the Marine Mammal Protection Act (MMPA), imposing a 
general ban on the taking and importation of marine mammals or their 
parts, and conferred jurisdiction on the U.S. Fish and Wildlife Service 
and the National Marine Fisheries Service for the management of marine 
mammals in U.S. waters. However, recognizing that Alaska Natives have 
relied on marine mammals for food, clothing and culture for centuries, 
Congress exempted from the ban those takings by Alaska Natives who 
dwell on Alaska's coast, provided that such takings are for 
``subsistence purposes'' or to create ``authentic Native handicrafts 
and clothing'' and provided that such takings are not wasteful.
    When the MMPA was reauthorized in 1994, Congress amended the 
statute to authorize the Secretaries of the Interior and of Commerce to 
enter into Marine Mammal Cooperative Agreements in Alaska with Alaska 
Native Organizations ``to conserve marine mammals and provide co-
management of subsistence uses by Alaska Natives.'' 16 U.S.C. Sec.  
1388 (Section 119 of the MMPA). Implicit in Section 119 is the belief 
that a cooperative effort to manage subsistence harvests that 
incorporate the knowledge, skills and perspectives of Alaska Natives is 
more likely to achieve the goals of the MMPA than is management by the 
federal agencies alone. And that has proved to be the case.
    We are here to ask Congress to fulfill the Federal Government's 
trust responsibility to protect the Alaska Native subsistence culture 
and economy. The Committee on Energy and Natural Resources should work 
with the Alaska Native community to design federal legislation that 
will protect Alaska Native subsistence rights. By embracing co-
management with Alaska Natives, the Federal Government could administer 
a much more responsive and cost-efficient management program. It would 
reduce the litigation that has plagued the implementation of Title VIII 
of ANILCA since its passage more than 30 years ago.
    We commend Senators Lisa Murkowski and Mark Begich, and this 
Committee, for introducing and considering legislation targeted to 
resolve unique problems and to address region-specific challenges. For 
example

   Senators Begich and Murkowski have previously introduced 
        legislation that would allow Alaska subsistence hunters to 
        receive a waiver from the general requirement that hunters 
        purchase duck stamps from the Federal Government. This 
        legislation would enable many of our people to maintain their 
        subsistence way of life without facing burdensome fees that 
        many cannot afford.
   The Huna Tlingit Traditional Gull Egg Use Act, recently 
        reported out of this Committee, would authorize the Secretary 
        of the Interior to allow members of the Hoonah Indian 
        Association to collect the eggs of glaucous-winged gulls up to 
        two times a year within Glacier Bay National Park. This 
        legislation was developed after working closely with the 
        National Park Service, and will enable the community to 
        continue a traditional and customary practice on the basis of 
        sound science.

    As you work with the Alaska Native community to design a 
comprehensive and holistic approach to federal subsistence reform, we 
hope the Committee will also continue to pursue smaller bills that 
address specific problems or region-specific challenges.
 subsistence demonstration projects: two focused projects that require 
                          congressional action
    Two focused demonstration projects, described below, represent 
important and worthwhile efforts to improve subsistence management. 
Both would require federal legislation to implement. We urge this 
Committee to support these projects.
A Demonstration Project Establishing Authority in Ahtna to Manage 
        Wildlife on Ahtna Lands and a Creating a Federal-State-Tribal 
        Co-Management Structure
    This demonstration project would authorize the tribes in the Ahtna 
region of Alaska to manage wildlife on lands conveyed to Ahtna under 
ANCSA (``Ahtna lands'') as well as on Native allotments held in trust 
by Ahtna tribal members.The legislation would create a Federal/State/
Tribal co-management structure that would apply to Ahtna's traditional 
territory.
    Over the years, in order to accommodate the growing number of non-
rural hunters, the State Board of Game has repeatedly taken away the 
Ahtna peoples' opportunity to continue their customary and traditional 
(C&T) hunting way of life.
    For example, under the current dual management the Alaska Board of 
Game, which regulates hunting on state lands and Ahtna lands, adopted a 
regulation limiting the hunting season in the tribes' traditional 
territory to a single 7-day season, and through imposition of antler 
restrictions limited their take to only those moose with very large 
antlers or very young moose--neither of which were traditionally taken 
by the Ahtna people.
    Less than five years ago the State Board took up a proposal to 
classify vital parts of Ahtna's hunting territory as a non-subsistence 
use area. Under State law, in a non-subsistence use area it is illegal 
to provide a priority for subsistence hunting or to provide greater 
hunting opportunity to subsistence users to meet essential nutritional 
and cultural needs. While section 804 of ANILCA requires a subsistence 
priority on all federal lands, federal lands comprise only a small part 
of Ahtna's traditional territory. Thus, Ahtna relies significantly on 
State lands and Ahtna lands to meet C&T hunting needs. The proposal to 
deny Ahtna's basic subsistence hunting rights, even on their own lands, 
failed by a single vote. Each time this State Board meets the opponents 
of meaningful C&T hunting opportunities petition for a non-subsistence 
use area. Ahtna faces a continual battle to hang on to essential 
hunting rights.
    Ahtna's problems arise from the two central facts. First, Alaska's 
major population centers, and the roads that connect these centers, 
surround Ahtna's traditional hunting area. The moose and caribou 
populations upon which Ahtna depends are highly desirable and 
accessible to these large urban populations. The competition is fierce 
and the hunting grounds are crowded. Urban hunting groups apply 
constant pressure on State institutions to optimize their sport use and 
minimize protection for Ahtna's C&T hunting practices.Federal law and 
regulations provide minimal protection due to the small amount of 
accessible federal lands within Ahtna's traditional hunting territory.
    Second, Ahtna has no meaningful role in regulating hunting, even on 
Ahtna lands. Their traditional and local knowledge is given no weight 
in decision-making. Elders and tribal leaders are reduced to a mere 
three minute period of public testimony to try to influence the 
regulation of their C&T hunting practices. Ahtna has no influence over 
how the State manages wildlife populations for conservation, and 
federal agencies are passive and reluctant to take on the State over 
its management practices.
    The proposed demonstration project would authorize Ahtna to manage 
hunting on Ahtna lands and Native allotments held in trust by Ahtna 
tribal members. Ahtna has created a tribal conservation district made 
up of the eight federally recognized Ahtna tribes that would manage 
hunting on Ahtna lands. All lands within Ahtna's traditional territory 
(State, federal and Native lands), would be managed through a co-
management structure through which the mandates of State law, federal 
law, and the traditional knowledge of the Ahtna would be unified and 
coordinated to achieve the mutual goal of ensuring the conservation of 
wildlife populations, and to ensure that Ahtna tribal members have the 
hunting opportunities necessary to continue their tribal hunting way of 
life. The practical impact of Ahtna's proposed solution on other 
Alaskan hunters would be minimal since the amount of moose, caribou and 
other wildlife resources necessary to meet Ahtna's needs is only a 
small percentage of the total take of wildlife within Ahtna's 
traditional territory.
    Ahtna's proposal would replace the ineffective dual federal-state 
subsistence management system with a unified Federal-State-Tribal co-
management structure. Such co-management has proven highly successful 
for conservation and management in many parts of the U.S., for example 
the Northwest Indian Fisheries Commission, in western Washington State. 
Co-management would be more efficient than the current dual federal-
state system, thereby saving federal dollars. Co-management would 
advance tribal self-determination, build tribal capacity and create 
opportunities for tribal youth to work for their tribal communities.
Demonstration Project Creating an Inter-Tribal Fish Commission for the 
        Yukon River and Establishing Federal-State-Tribal Co-Management 
        for the River
    The second demonstration project would create an Inter-Tribal Fish 
Commission for the Yukon River, modeled after the Northwest Indian Fish 
Commission and the Columbia River Inter-Tribal Fish Commission. The 
Commission would provide a tribal voice within a Tribal-State-Federal 
co-management regime for salmon management on the Yukon River. Federal 
legislation would be needed to establish the co-management regime and 
replace the current dual federal-state management system.
    The Chinook salmon stocks on the Yukon River are in a steep, steady 
decline. If a new, more effective direction for management is not taken 
soon, these stocks, some of the last left in the United States, may 
become endangered. This would be a huge loss for many across the 
country, not just the tribes who depend on this resource for their way 
of life. There are likely several causes for the decline, global 
warming, for example. However, the current, ineffective and 
controversial system of dual federal-state management, with its 
checkerboard pattern of jurisdiction, is certainly a major problem, and 
one that should be fixed.
    The Tribes located in the Yukon River drainage have depended on the 
Yukon salmon stocks since time immemorial to sustain their nutritional, 
cultural and spiritual way of life. This year's run looks like it will 
be the lowest on record. There has not been a commercial Chinook 
fishery for years, and Tribal harvests are far below the minimum 
required to meet their subsistence needs. Fish camps that a few years 
ago were alive with children, elders and extended family now sit empty. 
Tribal members are bearing the loss and sacrifice of this fishery. They 
have knowledge gained over countless generations about the river and 
salmon. The Lower Yukon Chinook directed commercial fishery was valued 
in 1992 at over $10 million dollars. That fishery is virtually non-
existent today. Given the energy crisis in rural Alaska, where Yukon 
villages are paying extremely high transportation costs, the absence of 
such a valuable fishery has far reaching effects. Tribal members are 
facing choices between paying for food and fuel. Despite these impacts, 
and despite the availability of such a valuable knowledge base that 
could inform sustainable management, Tribes are completely excluded 
from the dual federal-state salmon management system in place today for 
the Yukon.
    The Federal Subsistence Board manages salmon on the parts of the 
Yukon that flow through or adjacent to federal lands such as fish and 
wildlife refuges. The Board receives recommendations for management 
from three regional advisory councils--downriver, middle river and 
upriver--thus splitting the river and pitting users on one end against 
users on the other end. The State of Alaska manages all other parts of 
the river. This disjointed system of dual management is failing to 
conserve and rebuild the Chinook run, and has failed to provide for 
management of the Chinook harvest in a way that fully considers tribal 
needs.
    The Association of Village Council Presidents, joined by the Tanana 
Chiefs Conference, represents the federally recognized tribes in the 
Yukon River Drainage. AVCP and TCC have begun the process of creating 
the Yukon River Inter-Tribal Fish Commission (YRITFC), which would 
provide the Tribal voice for a Federal-State-Tribal co-management 
regime for salmon management on the Yukon. Modeled after the Northwest 
Indian Fish Commission and the Columbia River Inter-Tribal Fish 
Commission, YRITFC would include a strong science arm that incorporates 
traditional knowledge. The Yukon tribes are already a leading partner 
for a Tribal-State-Federal salmon research organization, the Arctic-
Yukon-Kuskokwim Sustainable Salmon Initiative, and would bring this 
scientific expertise to the co-management table. Billy Frank, Chairman 
of the Northwest Indian Fish Commission, has participated in 
discussions with the Yukon Tribes about forming the YRITFC and has 
offered his full support. The Tribes' goal is to incorporate the 
Canadian First Nations into the YRITFC, since they also depend upon 
these fish for their way of life, and because there is a treaty between 
the United States and Canada that informs salmon management for the 
Yukon.
    Creating the YRITFC and authorizing a Tribal-State-Federal co-
management regime for salmon management for the Yukon River will result 
in greater cooperation and better management, which is critical for the 
future of the Yukon Chinook salmon stocks.YRITFC would advance self-
determination for the Yukon Tribes over a resource that is vital to 
their way of life. YRITFC would help build Tribal capacity and create 
jobs and opportunity for young people, enabling them to stay in their 
villages and work for their Tribes on issues of great significance. Co-
management would unify management throughout the river, thereby 
discarding ineffective, controversial and artificial jurisdictional 
boundaries that have nothing to do with the best salmon management 
practices.
    Co-management also would allow the Tribes and First Nations 
throughout the drainage to come together and decide among themselves 
how best to share the scarce available harvest of Chinook, or to stop 
fishing altogether if necessary. Conservation and rebuilding of the 
Chinook stocks would be the controlling goal for the co-management 
structure, and would be the common goal for all parties, Federal, State 
and the Tribes. Tribal involvement and
                               conclusion
    The right to food security for oneself and one's family is a human 
right enumerated in the Universal Declaration of Human Rights of the 
United Nations Charter. Article 20(1) of the United Nations Declaration 
on the Rights of Indigenous Peoples also provides that ``Indigenous 
peoples have the right . . . to be secure in the enjoyment of their own 
means of subsistence and development, and to engage freely in their 
traditional and other economic activities.''
    In the United States, Native hunting, fishing, and gathering rights 
are protected by federal law. Nowhere are those federal protections 
more critical than in the State of Alaska, where subsistence hunting 
and fishing keeps food on the table and customary and traditional 
hunting and fishing serves as the foundation of Alaska Native society 
and culture.
    Unfortunately, the current dual management of subsistence uses in 
Alaska significantly hampers our ability to access our traditional 
foods. Congress did not intend this result when it passed ANCSA in 1971 
or when it passed ANILCA in 1980.
    Congress can fix the problem. As I have noted in this testimony, 
Congress has acted proactively to protect Alaska Native subsistence 
rights, even after ANILCA passed in 1980.
    Federal legislation that provides express protections for Alaska 
Native hunting and fishing and gives us a co-equal role in the 
management of those resources would do much to fulfill the Federal 
Government's trust responsibility to the Alaska Native community. By 
embracing co-management with Alaska Natives, the Federal Government 
would administer a much more responsive and cost-efficient management 
program. It would reduce the litigation that has plagued the 
implementation of Title VIII of ANILCA since its passage.
    We ask you to commit to work with the Alaska Native community to 
formulate legislation that will restore and protect Native hunting and 
fishing rights in Alaska, and provide a co-equal role for Alaska 
Natives in the management of fish, wildlife and other renewable 
resources that we rely upon for our economic and cultural existence.
    Achieving meaningful reform of legal framework for subsistence 
management in Alaska may take some time. We recommend that the 
Committee take the following interim steps towards reform, which can be 
achieved during the 113th Congress:

          1. Work with Alaska Native leaders to develop legislative 
        language that will provide lasting protection for the Alaska 
        Native customary and traditional hunting and fishing way of 
        life and that will provide a co-management role for Alaska's 
        tribes and organizations. By embracing co-management with 
        Alaska Natives, the Federal Government would administer a much 
        more responsive and cost-efficient management program. It would 
        reduce the litigation that has plagued the implementation of 
        Title VIII of ANILCA since its passage.
          2. Work with Alaska Native leaders to develop and quickly 
        pass legislation to implement the two subsistence demonstration 
        projects detailed above. We commend Senators Lisa Murkowski and 
        Mark Begich, and this Committee, for recent efforts to pass 
        federal legislation targeted to resolve specific problems and 
        to address region-specific challenges.
          3. Require a report from the Secretary of the Interior on the 
        status of the implementation of proposed actions outlined as a 
        result of the 2009 Secretarial Review of the Federal Management 
        System. Former Secretary Ken Salazar completed a review of the 
        Federal Subsistence Management Program in 2010 and subsequently 
        outlined a number of reforms which could be accomplished by 
        Secretarial directive or policy or through regulatory changes 
        requiring formal rule making. To date, very few of those 
        actions have actually been implemented. The Alaska Federation 
        of Natives believes the administrative actions taken to date, 
        as a result of the review, are inadequate. Very little has 
        changed since the review.
          4. Urge the Secretaries of the Interior and of Agriculture to 
        carefully review and, to the extent possible, implement AFN's 
        recommendations on administrative actions that can be taken to 
        improve the ability of Alaska's tribes to pursue their 
        customary and traditional subsistence activities. Attached to 
        my testimony is a list of the actions that we believe the 
        Administration can take right now that do not require 
        legislation and would require little or no funding. We shared 
        this list with the Secretary of the Interior, Sally Jewell, in 
        our meeting with her in late August.

    On behalf of our Alaska Native people and communities, which depend 
on subsistence hunting and fishing to maintain our health, well-being 
and way of life, I thank you for holding this important hearing today. 
It represents an important step in the journey to build a better 
subsistence management system in Alaska, and to protect the nutritional 
and cultural needs of Alaska Native people, from our elders to 
generations to come. We stand ready to work with you, and this 
distinguished Committee, to accomplish these critical objectives.

    Senator Murkowski. Gunulcheesh, Dr. Worl.
    Mr. Jerry Isaac, nice to have you here.

STATEMENT OF JERRY ISAAC, PRESIDENT, TANANA CHIEFS CONFERENCE, 
                         FAIRBANKS, AK

    Mr. Isaac. Senator Murkowski.
    [Speaking an Athabaskan language].
    Mr. Isaac. Thank you, Senator Manchin.
    I have come across a wide piece of land, if you want to 
call it that, to come here to appeal to you to listen to what 
we have to say.
    My name is Jerry Isaac. I'm Athabaskan from Tanacross, and 
I'm currently the President of the Tanana Chiefs Conference, a 
tribal consortium representing 37 federally recognized tribes 
of Interior Alaska.
    Earlier, you head testimony that during the passage of 
ANCSA, the State of Alaska and the Secretary of Interior 
promised to protect Alaska Native hunting and fishing.
    You also heard that during the passage of ANILCA the State 
of Alaska urged Congress to provide for a rural priority, 
rather than a Native priority.
    Today, it is necessary to hold this hearing because the 
promise of ANCSA has gone unfilled, and the promise of ANILCA 
has failed.
    Finally, you heard it's well within your congressional 
authority to act to protect Alaska Native hunting and fishing 
by passing into law preemptive legislation providing for a 
Native subsistence priority on all lands and waters in Alaska 
and allowing for Alaska Native co-management of hunting and 
fishing resources.
    In the current system, a subsistence priority is only 
trigged when the resource is so low in numbers that there is 
not enough for commercial and sport take. If the resources were 
better managed, there would be fewer incidences in which 
subsistence priority is necessary.
    Under the current checkerboard management in Alaska in 
which Alaska Native tribes have little to no influence, 
sustainable yield for Alaska's hunting and fishing resources 
will continue to be unattainable for many species.
    I have been directed by the tribes I represent to ask you 
to allow the Alaska Native tribes to fix the failed management 
by ending the checkerboard system and allowing Alaska Native 
co-management.
    Today, we proposed two possible solutions. First, I will 
speak about the demonstration projects of the Yukon and 
Kuskokwim Rivers. Second, I will speak about the co-management 
proposal for Ahtna's lands.
    A good example of the broken checkerboard system is the 
Chinook management of the Yukon River. The State of Alaska is 
the primary in-river manager, and so the State Board of Fish 
implements most regulations applying to Yukon River Chinook.
    Tens of thousands of acres of Federal lands and waters are 
also within the Yukon River drainage, and so the subsistence 
board and the Office of Subsistence Management, which receives 
advice from two separate advisory councils, also implement 
regulations. Two separate systems manage the same fish swimming 
up the Yukon. This does not make sense.
    The most disturbing fact, there is no official role for 
tribal governments in the salmon management on the Yukon, but 
tribal members are, by far, the most dependent and 
knowledgeable of the resource. It is no wonder the Yukon River 
Chinook runs have been on the decline for over a decade.
    We propose a demonstration project to authorize intertribal 
fish commissions for both the Yukon and Kuskokwim Rivers and 
establish a State-Federal tribal co-management structure that 
would focus on rebuilding the Chinook stocks and traditional 
fishing way of life.
    The fish commissions would be composed of users most 
dependent and knowledgeable of the Chinook representing 93 
federally recognized tribes, which clearly are the people to 
manage this precious resource.
    Next, it is my honor to speak to you about our next 
proposal concerning co-management of Ahtna's lands, lands which 
are traditionally owned by my clan cousins.
    Like all village corporations, the Ahtna villages selected 
their corporation lands based on the value for subsistence 
hunting, fishing and gathering. But decades later, the Ahtna 
people struggle to provide for their families' hunting and 
fishing needs because Ahtna lands are poorly managed.
    The lack of authority to manage hunting and fishing on our 
own ANSCA lands is one of the greatest existing injustices for 
Alaska Natives. Imagine, for my own corporation, the animals 
living on the 12-million acres of toyon lands owned by Alaska 
Natives are managed by outsiders with little knowledge of the 
needs of the Athabaskan people.
    This demonstration project would remedy this injustice, 
greatly advance effective wildlife management and help resolve 
the growing divide over subsistence management in Alaska. It 
would authorize Ahtna tribes to manage wildlife on lands Ahtna 
was conveyed through ANCSA.
    I have been asked by the tribes I represent to tell you it 
is your duty to address the broken promise of ANCSA and the 
failure of ANILCA and pass legislation establishing an Alaska 
Native priority on all Alaska lands and waters, an Alaska 
Native co-management authority.
    The demonstration projects I have testified to today are 
projects that can be passed into legislation this year.
    Protection of Alaska Native hunting and fishing will 
continue to be the Alaska Native people's No. 1 priority until 
we see implementation on the ground of legislation establishing 
an Alaska Native priority and Alaska Native co-management.
    The strength of our resilience to pursue this priority is 
given to us by the spirits of the animals themselves and shall 
not waiver until the divine relationships between the Alaska 
Native people and our cousin animals are reconciled.
    I thank you for this time.
    [The prepared statement of Mr. Isaac follows:]

Prepared Statement of Jerry Isaac, President, Tanana Chiefs Conference, 
                             Fairbanks, AK
    Good Morning, my name is Jerry Isaac. I am Athabascan from 
Tanacross and I am currently the President of Tanana Chiefs Conference, 
a tribal consortium representing 37 federally recognized tribes of 
Interior Alaska.
    Earlier you heard testimony that during the passage of ANCSA the 
State of Alaska and the Secretary of Interior promised to protect 
Alaska Native hunting and fishing. Today it is necessary to hold this 
hearing because that promise has gone unfulfilled.
    You also heard during the passage of ANILCA, the State of Alaska 
urged Congress to provide for a rural priority rather than a Native 
priority. Today it is necessary to hold this hearing because the 
compromise of ANILCA has failed and there is currently not a rural 
priority on state lands and waters to the detriment of the rural Native 
people-those most dependent on subsistence resources.
    Finally you heard that it is well within your Congressional 
authority to act to protect Alaska Native hunting and fishing, by 
passing into law preemptive legislation providing for a Native 
subsistence priority on all lands and waters in Alaska and allowing for 
Alaska Native co-management of hunting and fishing resources.
    In the current system, a subsistence priority is only trigged when 
the resource is so low in numbers, that there is not enough for 
commercial and sport take. If the resources were better managed there 
would be fewer instances in which a subsistence priority is necessary. 
Under the current checkerboard management, in which Alaska Native 
tribes have little to no influence, sustainable yield for Alaska's 
hunting and fishing resources will continue to be unattainable for many 
species. I have been directed by the tribes I represent to ask you to 
allow the Alaska Native tribes to fix the failed management system. 
Fixing the management issues will include ending the checkerboard 
system and allowing Alaska Native co-management.
    You have the opportunity under two proposed demonstration projects 
to provide a small scale solution to the problem established by ANCSA's 
broken promise and ANILCA's failure. First I will speak about the 
Demonstration Project for Establishment of Inter-tribal Fish Commission 
and Tribal-State-Federal Fisher Co-Management for the Yukon and 
Kuskokwim Rivers and Second I will speak about the co-management 
proposal for AHTNA's lands. Both demonstration projects should be 
passed into legislation this year.
demonstration project for establishment of inter-tribal fish commission 
    and tribal-state-federal fisher co-management for the yukon and 
                            kuskokwim rivers
    A good example of the broken checkerboard system is the Chinook 
management of the Yukon River. The State of Alaska is the primary in-
river manager and so the State Board of Fish implements most 
regulations applying to Yukon River Chinook. Tens of thousands of acres 
of federal lands and waters are also within the Yukon River drainage 
and so the Federal Subsistence Board and the Office of Subsistence 
management which receives advice from two separate advisory councils 
also implement salmon regulations. Two separate regulation systems 
manage the same fish swimming up the Yukon-it does not make sense. The 
most disturbing fact-there is no official role for tribal governments 
in the salmon management on the Yukon, but tribal members are by far 
the most dependent and knowledgeable of the resource. It is no wonder 
the Yukon River Chinook runs have been on the decline for over a 
decade.
    We propose a demonstration project to authorize inter-tribal fish 
commissions for both the Yukon and Kuskokwim Rivers and establish a 
state/federal/tribal co-management structure that would focus on 
rebuilding the Chinook stocks and would ensure fishery management 
consistent with the tribe's customary and traditional fishing way of 
life. Co-management will unify management throughout each river, 
thereby discarding ineffective, controversial and artificial 
jurisdictional boundaries that have nothing to do with the best salmon 
management practices.
    The demonstration project would unify the current dysfunctional 
split of the federal Office of Subsistence Management regional advisory 
council (RAC) system for the Yukon and Kuskokwim, providing for one RAC 
for each river. The project would give preference to the Fish 
Commissions when awarding ANILCA section 809 agreements and include 
funding for research pursuant to ANILCA section 812. In addition the 
project allows for the commissioners to influence the impacts of both 
the Yukon River Salmon treaty with Canada and the Magnuson-Stevens Act 
by mandating commissioners participate in both the implementing bodies.
    We have draft legislation prepared to implement the Fish 
Commissions. These Commissions are supported by Tanana Chiefs 
Conference and the Association of Village Council President, 
representing a total of 93 federally recognized tribes.
                     ahtna's demonstration project
    Next it is my honor to speak to you about our next proposal 
concerning co-management of Ahtna's lands. While I do not officially 
represent the Ahtna, Ahtna lands are located not far from my home of 
Tanacross and I am clan cousins with many tribal members from the Ahtna 
region. Because Tanacross is on the road system, I understand the 
struggle experienced by the Ahtna Athabascans when outside hunters take 
away from the subsistence and cultural needs of the Native people. 
Ahtna's traditional hunting area is surrounded by Alaska's major 
population centers, Anchorage, Fairbanks, and the Mat-Su and the roads 
that connect these centers.
    The Ahtna villages selected village corporation lands based on 
their value for subsistence hunting, fishing and gathering, but decades 
later the Ahtna people struggle to provide for their families hunting 
and fishing needs because their traditional lands are poorly managed by 
the State of Alaska. The federal rural subsistence priority does not 
help the Ahtna because there are little federal lands in their 
traditional lands. The lack of authority to manage hunting and fishing 
on our own ANSCA lands is one of the greatest existing injustices for 
Alaska Natives.
    This demonstration project would remedy this injustice, greatly 
advance effective wildlife management, and help resolve the growing 
divide over subsistence management in Alaska. It would authorize Ahtna 
tribes to manage wildlife on lands Ahtna was conveyed through ANCSA.
    The proposed Ahtna demonstration project would only include Ahtna 
lands and it would not apply to other regions. The legislation would 
also authorize Ahtna, the State and the Department of the Interior to 
develop a co-management agreement for the coordination of wildlife 
management on ALL lands traditionally used by the Ahtna.
    I have been asked by the tribes I represent to tell you it is your 
duty to address the broken promise of ANCSA and the failure of ANILCA 
and your sacred trust responsibly to the Alaska Native people AND wait 
no longer and pass legislation establishing an Alaska Native priority 
on all Alaskan lands and waters and Alaska Native co-management 
authority.
    The demonstration projects I have testified to today are projects 
that can be passed into legislation this year.
    Protection of Alaska Native hunting and fishing will continue to be 
the Alaska Native people's number one priority until we see 
implementation on the ground of legislation establishing an Alaska 
Native priority and Alaska Native co-management.

    Senator Murkowski. Thank you, Jerry. Thank each of you for 
your comments here this morning and, additionally, for making 
the long haul across country to come before the committee and 
enter your recommendations, your stories and your concerns.
    I'm going to start with you, Ana. I thought that your very 
personal story helps to kind of frame what we're talking about 
here. When it's a discussion of management of subsistence, I 
think we can get into some pretty technical terms and talk 
about RACs and boards and differing management systems, but, at 
the end of the day, it pretty much comes down to how one feeds 
one's family.
    I had the opportunity to visit you and your family at your 
family's fish camp there just outside of Bethel, and it is more 
than just kind of hanging out together in the summertime. It is 
about providing for your family.
    Your comment that your family harvests 490 pounds of 
subsistence foods per year, I haven't checked the price of 
hamburger in Bethel. I can't imagine what it is, but when we 
take into account that so many in our rural villages simply 
don't have the ability to afford to buy their food--as you 
point out, there's no Costco near Bethel and Bethel's a pretty 
large town. So when we talk about the significance of the food, 
it is so much of what we do.
    When I was in Galena inspecting the community after the 
floods, people were going into the winter season and the 
concern was moose season is next week. I might be able to get a 
moose, but if I don't have a freezer to put my moose in, then 
what am I going to do? How am I going to make it through the 
winter?
    So I think it is important that we understand what we're 
talking about here when we're talking about a subsistence 
lifestyle, and how Alaska Natives, rural Alaskans are feeding 
their families when you don't have access to a store.
    I wanted to ask you, and you can comment about that if you 
will, but I wanted to ask you about the Regional Advisory 
Councils, because I was trying to understand from those on the 
Federal and State representatives just really how well these 
are working. How much deference is given to those with local 
knowledge?
    So if you can just give me your perspective on this. To 
what extent does the Office of Subsistence Management work with 
the local people out in your region and in the RACs to 
integrate that traditional knowledge that we've been speaking 
about? How much deference, then, is actually given to the 
locals?
    Ms. Hoffman. Thank you, Senator Murkowski. First, about the 
food harvest, the figure of 490 pounds per person represents 
the Western Alaska Region, so that's in our area where I live.
    You're right, the food source that we gather from the land, 
there is really no functional way to replace it otherwise.
    My family owned a family store in Nunapitchuk for many, 
many years, and the freezer that we had at the store for meat, 
it was one chest freezer, and this is a community of 350 
people. Each one of them has, you know, numerous chest freezers 
in their home, and if they weren't able to fill those freezers 
from hunting and fishing off of the land, that one chest 
freezer at the village store is not going to feed the 
community. There's no other way to replace the food source, 
and, really, it is the essence of subsistence and the rural 
preference is food security.
    So we have so many challenges out there with the 
infrastructure, with our distance, with the cost of living. 
Western Alaska is one of the highest cost-of-living in the 
Nation, and we have, you know, water and sewer is still an 
issue. There are so many basic challenges we have, and, yet, we 
still have to plead for food security. So I appreciate you 
having the hearing to help us express that need.
    As far as your question about community involvement and 
input in the process, I heard the panelists before and it is 
good to have those opportunities for input.
    I'll speak to the Chinook salmon incident, and that 
happened out in Bethel last year. You know, we had been 
working, the working group had been working in collaboration 
with the fish managers for about 10 years, had been building 
this understanding, this buy-in, this teaming relationship, and 
the working groups were actively involved.
    Last year, when the 7-day closure was extended an 
additional 5 days without having the working groups buy into 
that, I feel like there was really an erosion of the 
relationship that had been built.
    So there is potential to continue to building that co-
management aspect that I think is hoped to be achieved through 
RACs and through the working groups, but there are many 
instances where the input of the local community and the local 
users is not weighed into the final decisions, and that was 
felt out in our region last year.
    Senator Murkowski. Thank you. Senator Manchin, why don't I 
turn to you here? I've used up 5 minutes already.
    Senator Manchin. Just hearing all of you speak makes me 
want to visit sooner than later.
    Senator Murkowski. That's a good thing.
    Senator Manchin. A good thing.
    I come from West Virginia, so hunting and fishing is 
prominent in our lives, too. A lot of people do it for 
subsistence the same as you, but not at that scale, not where 
it's the dependent and no other alternatives or options.
    I'm trying to understand because I would be probably more 
in tune with the environment of hunting and fishing and 
outdoors than maybe a lot of other Senators.
    But coming from the place I come from, you know, we have 
different seasons, and we have different people that come from 
other States that come to our--and buy their license for 
recreational.
    We have people that own land, and, basically, they're 
allowed to harvest a little differently, and I'm trying to get 
it in the grander scheme of things and understanding, so that 
maybe I can help Senator Murkowski and to be more of a 
proponent of where I think you're coming from.
    I can't figure out, and Ana, you were just talking, and Dr. 
Worl, I wanted to hear from all of you all, anybody that wants 
input on this, how can we make it better? How can we find that 
balance?
    I would assume the Department of Fish and Wildlife in 
Alaska would want to make the revenue. People coming in, that's 
revenue to your State. I would assume that's a big part of your 
tourism and revenue base.
    But at the expense of someone's subsistence of livelihood, 
there's got to be a balance. We can't put that in front of what 
you all and the heritage you have and basically the need.
    How do we help? How can we find out--you're telling me is 
it the Federal Government's encroaching more? Is it the State 
government that's encroaching more, taking away your 
opportunities?
    It sounds to me like there should be a way to work this 
out, but--and I don't know where--Are we putting out too much 
recreational hunting licenses and people are coming in for the 
sport of it taking away from the necessity of the people that 
live there? Doctor, you might want to start on that.
    Ms. Worl. Thank you, Senator. First of all, I think it's 
important to go back to I think what Ana said, that subsistence 
hunting and fisheries takes just a small portion of all of the 
take.
    Subsistence fisheries, what is it? One percent, 1 percent 
of the fisheries, that's all we take for subsistence. I just 
don't think that that's, you know, that's even balance, you 
know. If we want to talk about equity or want to talk about 
equality, you know, it seems----
    Senator Manchin. Is this in competition with the 
commercial?
    Ms. Worl. Yes. In competition with commercial and----
    Senator Manchin. So the commercial----
    Ms. Worl. Commercial and----
    Senator Manchin [continuing]. Is maybe taking more than 
what they can sustain itself.
    Ms. Worl. Right. Commercial fisheries takes more than 90 
percent of all the fisheries.
    Senator Manchin. Is that regulated by the State or by the 
Federal?
    Ms. Worl. That's by the State, by the State and Federals.
    Senator Manchin. We don't think the State is doing the job 
it should be doing to make sure that there's a coexistence.
    Ms. Worl. The subsistence priority is not being recognized 
in the management of fisheries.
    Senator Manchin. It's all about the commercial.
    Ms. Worl. Right. Right.
    Senator Manchin. Got you.
    Ms. Worl. But if I could go back to----
    Senator Manchin. Sure, whatever. You go everywhere you want 
to go.
    Ms. Worl [continuing]. Senator Murkowski's question about--
There's a lot more we could do about that. I really do think 
that if we, if Native people were able to sit down at the table 
and have an equal voice in the management, I think we could 
work things out. But, as it is, right now, we're not at the 
table.
    Senator Manchin. What's the percentage of Native Alaskans 
that are serving in government, in State government? Are there 
any Native Alaskans on Fish and Wildlife that understand?
    Ms. Worl. There are about 16,000 Alaska Native people. I 
don't think that we're equitably represented in the Fish Board, 
on the Federal Subsistence Board, and even on the Federal 
Subsistence Board. Even with the addition of the two rural 
Native people who are appointed, the Federal Subsistence Board 
is still largely managed by Federal representatives.
    Senator Manchin. But the 1-percent of the fish subsistence 
that takes care of the Native Alaskans is encroached upon by 
the expansion of commercial fishing.
    Ms. Worl. Right. We're just----
    Senator Manchin. Is that the same of hunting, too?
    Ms. Worl. Yes. Right.
    Senator Manchin. Hunting, is it commercial hunting or is it 
basically recreational hunting?
    Ms. Worl. It's recreational.
    Senator Manchin. So the recreational people like myself who 
would buy a license and come up, because I want to see 
beautiful Alaska and be part of it, that's gotten to the point 
where it's encroached on the people who depend on their 
livelihood.
    Ms. Worl. That's correct. I really do believe that if we 
were at the table, I mean, we're reasonable people, I think 
that if we could develop a formula that would take care, you 
know, take care of all interests, our interests are----
    Senator Manchin. Is moose hunting a lottery? Is there a 
lottery for moose hunting?
    Ms. Worl. Yes.
    Senator Manchin. Ana.
    Ms. Hoffman. It varies across the State, and some regions 
deal with the commercial take more readily, like in Ahtna 
Region that we spoke about earlier. They're on the road system.
    Where I live, in Bethel, you have to pay $500 to fly out to 
Bethel and return, so we don't have the same kind of intrusion 
of non-regional users as they would in the Ahtna Region.
    As I explained, when we went moose hunting, different 
sections are under different authority. There's Tier II 
Registration Permits where you have to be in person to get your 
ticket. That often reduces the number of people that will be 
out hunting.
    But the Ahtna Region is really the forefront of what we're 
talking about when it comes to game harvests and the lack of 
subsistence harvests being available for the users.
    Senator Manchin. Mr. Isaac, you all are on the same page on 
this? You all are in agreement of the commercial overreach, if 
you will, and the pressure on the subsistence? The same in 
hunting and fishing for recreation and commercial?
    Mr. Isaac. Thank you, Senator. My feelings is the fact 
that, No. 1, the systems employed to manage fish and game has 
not worked.
    Senator Manchin. Lack of personnel? Lack of budget?
    Mr. Isaac. Just the system. Just the system----
    Senator Manchin. The system itself.
    Mr. Isaac [continuing]. As a method to manage fish and game 
in terms of increasing the population of the moose, the 
caribou----
    Senator Manchin. We have, and, again, just my lack of 
knowledge from the moose arena, but I do understand the 
whitetail deer. We have buck season, buck only. We have open 
doe season sometime, depending on what our count is.
    Our DNR people go out and survey and basically take a 
wildlife count and they say, OK. We're not going to open up doe 
season or we're going to limit buck--you follow me? We manage 
that way, so we have a healthy deer population.
    Then sometimes we underestimate and we have a very healthy 
deer population where the farmers get so mad because they're 
eating all their crops, so then we've got to kind of weed that 
down. So it's a kind of chess game back and forth. You're 
saying your Fish and Wildlife don't do the same?
    Mr. Isaac. I'm saying that there's a lot of opportunities 
that can be taken to help improve the current condition. I'm 
saying that there are too many rules and regulations that are 
not working.
    One is the element of cooperation is such a feared idea 
that nobody wants to try it. For example, the RACs, for 
example, there is no meaningful input by the Native groups to 
participate in the RACs in such a way that there is meaningful 
participation in this for one purpose and one purpose only, to 
increase and maximize animal and fish populations at a healthy 
level that it would be adequate for the use of all.
    What I'm saying is the fact that, with the two proposals, 
we're saying let's try it this way. I know it will work.
    Senator Manchin. Somebody's got to be responsible for 
overharvesting. Somebody has got to be responsible, and if 
you're overharvesting, that means you're not controlling and 
monitoring the crop, whether it be the moose or whatever, and 
that's what I'm saying. I'm looking for an answer that----
    Mr. Isaac. Senator, you know, if I may----
    Senator Manchin. I'm sorry. I'm----
    Senator Murkowski. No, no, no.
    Senator Manchin. You sure?
    Senator Murkowski. Yes.
    Mr. Isaac. If I may, the subsistence takers of the Chinook 
salmon----
    Senator Manchin. OK.
    Mr. Isaac [continuing]. Have been regulated to the point 
where we cannot get nothing. This summer, we have seen very 
devastating situation with the Chinook salmon, the harvests 
along the Yukon River. We have taken steps to contribute toward 
the saving of future salmon population.
    There are other elements that affect the Chinook salmon. 
One of the elements is the high-seas fisheries. For example, 
the Pollack fishing industry, nobody says nothing about those 
things. Nobody addresses these things in a collective way, so 
that we can all agree to one thing, something is affecting the 
return of the Chinook salmon.
    Senator Manchin. Got you.
    Mr. Isaac. Thank you.
    Senator Manchin. That helps me. I understand that.
    Ms. Worl. The subsistence priority is not recognized there. 
In the management of the high-sea fisheries, subsistence is not 
recognized.
    Senator Manchin. I understand.
    Ms. Worl. We do have a law that says subsistence priority 
should be recognized, and it doesn't come into play until the 
fish are going up the river, and there's not that many----
    Senator Manchin. I see. The whole cycle. You're saying the 
whole cycle is not taken into consideration----
    Ms. Worl. Right.
    Senator Manchin [continuing]. Under the regulatory system 
we have not.
    Ms. Worl. Right.
    Senator Manchin. That makes sense to me. I'm learning.
    Senator Murkowski. Good.
    Senator Manchin. I'm learning.
    Ms. Worl. Senator, if I could just finish on the----
    Senator Manchin. Oh, I'm sorry. I am so sorry.
    Senator Murkowski. Go ahead.
    Senator Manchin. I cut----
    Ms. Worl. I really wanted to finish this on the Federal 
Subsistence Board. You had asked the question, you know, is the 
system working and is the RAC working? The major issue is that 
the Federal Subsistence Board itself has taken the position 
that it needs to give deference to RAC recommendations only in 
the taking of fish and wildlife. It does not take deference in 
other areas.
    For example, should a community qualify as rural, the RAC's 
recommendations aren't considered or given deference in those 
points.
    I did note, you know, that the Federal Subsistence Board is 
made up primarily of Federal representatives. I know, from the 
State of Alaska, I don't think the State of Alaska would allow, 
you know, have State officials, you know, serving on that 
management board. There should be, you know, the balance 
between the users and the managers.
    So I think that's one of the areas that we'd like to see is 
that we'd like to see that the Federal Subsistence Board 
members be 12 rural subsistence users. That's one 
recommendation that we might offer.
    Senator Murkowski. So that's the AFN recommendation, that 
the subsistence board should be restructured to include the 
chairs of each of the RACs, so that we make sure that we've got 
that local input throughout.
    Senator Manchin.
    Senator Manchin. We have some, our first panel, right?
    Senator Murkowski. Um-hum. Um-hum.
    Senator Manchin. I'd love to hear--do they object to what 
the sensible requests are?
    Senator Murkowski. I tried to get an answer----
    Senator Manchin. Now that we've heard both sides, but----
    Senator Murkowski [continuing]. From the feds and the State 
on these two demonstration projects, and I think it's probably 
fair to say that the response was unresponsive.
    Senator Manchin. Yes, you shouldn't be afraid to talk, I 
mean, because I'm trying to--I have a great interest, and this 
is my dear friend, so I even have more of an interest of 
understanding.
    But this is fascinating, but I'm saying you're putting a 
very logical request out. I haven't heard anything that I would 
consider that's irrational. On that, I'm sure they have a job 
to do and they're doing the job the best that they think is 
described for them to do their job.
    Somehow, we've got to break that logjam and say, OK. 
There's got to be a compromise. How do we do that? You've got 
to speak up from the other side, from the Federal side or State 
side. You've got to let us know, because, if not, we might 
intervene. You might not like anything we do, and we don't want 
to do that. We want to find that balance, but so that was 
interesting.
    Senator Murkowski. Senator Manchin, I think it was said 
here earlier that part of the complication here is you have two 
very distinct management systems. You've got a Federal 
management system and you have a State management system, and 
they're both managing the same fish that's going up the Yukon 
River, and----
    Senator Manchin. I understand, and they're managing it in 
different places.
    Senator Murkowski. Different places.
    Senator Manchin. One out in the ocean where it originates. 
One when it comes back, and then when it gets into the water.
    Senator Murkowski. But depending on where you are, 
upriver--you know, quite honestly, the fish could care less 
whether it's State management----
    Senator Manchin. Yes.
    Senator Murkowski [continuing]. Or Federal management, but 
what it puts in place for the user, for the consumer is a 
complexity that makes management almost ridiculous.
    So when we talk about the concept of co-management, as long 
as everybody's talking and working with one another, I think 
that we can make some good headway there, but it's really how 
this is translated.
    This is why I've asked so much about, you know, how we are 
incorporating the input from the local people, the local 
knowledge, and the significance of a RAC, and, again, making 
sure that these actually function as intended, and it's not 
just having the right folks be there, but not, then, giving any 
weight, any credence to their input.
    So much of this is how it's actually translated, and so 
some of the suggestions about how we give greater empowerment, 
I think, is key to our discussion here.
    Mr. Anderson, I appreciate what you've given us in terms of 
the legal perspective and some of the, just the historical 
analysis here with ANILCA and ANCSA.
    If the State of Alaska today were to pass a constitutional 
amendment that allows for a rural priority, would that, in and 
of itself, bring the State into compliance with Title VIII 
under ANILCA?
    Mr. Anderson. I don't think it would. They'd have to----
    Senator Murkowski. Why would it not?
    Mr. Anderson. They would have to amend their statute that 
allows them to designate rural areas as non-subsistence zones. 
They've got a statute that provides for a reasonable 
opportunity, which has been interpreted by the State Supreme 
Court as to allow restrictions that are greater than are 
allowed under the Federal subsistence statute, so that might 
have to be taken care of.
    So there are probably about 5 or 6 other statutory fixes 
that would have to be made in order to get back in compliance, 
so then ANILCA would allow the Secretary to certify the State.
    But I would say that if they had the political will to put 
a constitutional amendment on the ballot, they could certainly 
do these other fixes as well.
    Senator Murkowski. Understood.
    Mr. Anderson. I would say, just on the RAC issue, you know, 
just fixing the RACs would be helpful for the Federal lands 
now, but, you know, the big problem is that we have differing 
priorities on different lands and waters in the State, and 
that's why we have this multiplicity of regulation.
    So if you had a single standard applicable in all rural 
areas under, say, the Federal standard, as was originally 
intended, then everyone would manage to that goal and we had 
the Federal courts overseeing that implementation, and we just 
have lost that with the McDowell case and the divide between 
State and Federal lands now.
    Senator Murkowski. Dr. Worl raised the issue that when it 
came to deference to the locals through the RAC process that it 
doesn't include issues like determination of rural versus non-
rural. So recognizing that the Federal Subsistence Board is in 
the process of reviewing how it determines these, if there were 
a more inclusive regulatory definition of rural adopted would 
that eliminate the need for statutory changes to ANILCA?
    Mr. Anderson. I think so, if the agencies were willing to 
do that. I think that's the problem is that the agencies, you 
know, interpret the grant of authority to the RACs in such a 
way that minimizes the role of the RACs, and that just results 
in the agencies having or retaining more power over all these 
other ancillary matters that are important to subsistence 
users, but don't bear on the actual seas that are bag limit 
that might be before the board where they do say they allow 
deference.
    Senator Murkowski. OK. So, Dr. Worl, you, in your, I think, 
4 recommendations, and, Jerry, also, in your comments, you've 
identified a few areas where you think that we could make a 
difference.
    Legislative changes, I think we all recognize, are tough to 
achieve anymore. We've been working to try to get an energy-
efficiency bill through the floor now for almost 2 weeks, and I 
think the reason that the Chairman is not here today is because 
it's probably going to be announced that we can't even move a 
simple energy-efficiency bill.
    I don't mean to be discouraging, but I'm being very 
practical about or pragmatic about what's happening with 
legislation in this body and on the other side.
    So let's just set off the table right now discussion about 
legislative amendments. I put this out to each of you, are 
there specific ideas that we can--or specific suggestions that 
we can advance, move administratively through the regulatory 
process, just all stakeholders sitting together?
    I want our comments that you might bring up on this right 
now to extend to the work session that we're going to have this 
afternoon, because I want to try to explore some areas where we 
can improve the issue of management at all levels.
    I understand that that requires just greater discussion, 
greater dialog, greater commitment to be working with one 
another, rather than our very siloed world, which I think is 
where we are. But just setting off the table right now the 
issue of specific legislation, what suggestions might any of 
you have about some things that we could specifically look to 
now? Ana.
    Ms. Hoffman. In my comments I made reference to the amount 
needed for subsistence, and I think that that really should be 
the baseline, as I said, for the management efficient game.
    If we start with that figure and get a real, you know, 
comprehensive figure of what the amount needed for subsistence 
is and involve--you know, we've heard about the Intertribal 
Fish Commission--utilize the local knowledge to come up with 
the amount needed for subsistence for all the fish and game 
resources, and then begin management from there.
    Senator Murkowski. OK. Rosita.
    Ms. Worl. ANILCA does mandate the Federal Government to 
provide for a meaningful role in management. That's what ANILCA 
says.
    It was Secretary Babbitt that actually created that 
Fisheries Resource Monitoring Program, and, as I understand, 
there's not a lot of money in there. I think last year there 
was about $5 million, but only 19 percent of that money went to 
Native organizations, and the State got near half of it, and 
then the private sector got--I can't figure out where the 
private went, but I only came up with 73 percent. I don't know 
where the rest of the money went.
    But if we were able to implement, you know, that mandate in 
ANILCA to provide for a meaningful role in the management of 
subsistence, I think that could bring us to the table. That's 
one recommendation.
    The second recommendation I had already made was make that 
Federal Subsistence Board a real management board of 
subsistence users. Two recommendations I would offer.
    Senator Murkowski. Thank you. Jerry or----
    Mr. Isaac. Thank you. If I could be so bold to mention some 
real observations that I have had in my participation in terms 
of the fish and game management.
    In my view, there's never been any meaningful cooperation. 
The meeting halls and the conference tables have always been 
gathered about with an attitude of withholding and not being so 
foregoing, and not being so forthcoming, rather.
    RACs, you know, the Rural Advisory Councils, could be 
composed in such a way that it is more fairly comprised.
    You know, dialog, simple things like dialog, let's sit down 
and talk about the differences. That has never been had. If it 
has been, the dialog has been approached with a very biased 
opinion, unyielding opinion.
    Now, we're going to have to quit that. If we're going to 
solve the issue of fish-and-game management on the basis of 
sustained yield, we all have to give and we all have to take.
    The other thing is divisiveness. You're very aware of it. 
I'm aware of it. I mean, there is such divisiveness about the 
very subject matter about fish-and-game management in Alaska, 
and yet we all claim that we're concerned about the stocks of 
the fish-and-game populations. Now, if we are so moved about 
the concern, why not we go step forward and meaningfully 
engage?
    The other thing that I see as lacking is respect. People 
would rather dislike or hate each other rather than to sit down 
and try to understand each other.
    Like I have never met Senator Manchin. I am impressed with 
the character of the man because he stepped forward to say that 
he's interested in hearing more about this discussion here. 
Now, I really respect a man for having stepped forward to 
listen to the differences I may have. Thank you.
    Mr. Anderson. I have two quick ones. One would be to 
increase the cooperation with the Native community through non-
profits and tribes by funding more contracts and cooperative 
agreements.
    That was a big part of the original implementation plan 
when Secretary Babbitt set up this structure was to do as much 
contracting as possible and that has contracted under both of 
these last two administrations.
    It simply has become more of a Federal program in 
cooperation with the State. So I would say that they should 
revisit that, if they could do it on their own in conjunction 
with the Native community.
    Then, second, the fact that this program is housed within 
the Fish and Wildlife Service, rather than the Secretary's 
office, makes it, you know, it's got the Culture of the Fish 
and Wildlife Service, which tends to be more top down than this 
should be.
    In addition, with reforming the board composition, I would 
think that, you know, moving that box outside of the line 
control of the Fish and Wildlife Service Director in that 
budgetary process would be a positive aspect.
    Both of those are contained, I think, in the attachments to 
Rosita's testimony from AFN, and there were a number of others 
that I'm sure we'll talk about this afternoon. Those are two I 
can think of right now.
    Senator Murkowski. Good. I look forward to that. I'm going 
to let Senator Manchin ask a couple of more questions. We're 
going to have to wrap it up because I've got to be--
    Senator Manchin. No. I think the doctor wanted to say 
something.
    Senator Murkowski. Go ahead.
    Senator Manchin. I think she wanted to say something.
    Ms. Worl. Senators, I would be remiss in my duty if I did 
not say that we really need to deal with the Saxman rural 
determination, and that's something that we can do 
administratively.
    Then the next one was that Secretary Salazar did outline a 
number of reforms. None of them, except for the appointment of 
the two people to the Federal Subsistence Board, none of them 
have been implemented. So that's something where we could start 
with that.
    Senator Manchin. If I could, I saw Mr. Fleener out in the 
hallway and I just asked him, just trying to learn as much as I 
can as quick as I can, and he was telling me about 60 percent 
of the land is owned by the Federal, 40 percent by the State.
    With that being said, then there's primacy, you know, 
because I'm thinking, and my State has a lot of regulations, 
too, but, then, as a former Governor, I'm very much protective 
of the Tenth Amendment, States' rights.
    With that being said, I believe that the Federal Government 
should be my partner. In saying that, the Federal Government 
and the State, since they both have vested interests, should 
come up with a set of guidelines that we think are reasonable.
    The Federal Government could have a contract with the State 
for the State agencies to basically have one regulatory agency 
that's responsible. The feds could have oversight. If the State 
doesn't do its job, then the fed moves in and takes basically 
primacy away because they haven't earned the right to keep it. 
I don't think we're that balanced right now. That's what I'm 
understanding. Those are things that maybe we can help you work 
out. That's what we're hoping for.
    But it makes sense to me that if we come to an agreement--
and somebody might want to chime in here, and feel free to do 
so--if we can get an agreement to where, first of all, the 
State should take the enforcement primacy, responsible for the 
enforcement, once the feds and the states come to an agreement. 
Does that sound reasonable? Mr.----
    Ms. Worl. Senator, Alaska is our State also. It is our 
State, and we want to have a State that works for all Alaskans.
    Senator Manchin. Sure.
    Ms. Worl. We, as Alaska Native people, had lobbied 
strenuously, lobbied the legislature to try to get it to resume 
management of Federal lands by recognizing the Federal 
subsistence priorities.
    Senator Manchin. Yes.
    Ms. Worl. We tried, without any success. We were saying, 
Why are we doing this? You know, we shouldn't be doing this, 
except we cared for our State. We thought a dual-management 
system is really not in the best interests of its citizens, but 
we were unable to convince the State to recognize----
    Senator Manchin. In all fairness to the Federal Government, 
the Federal Government has had situations where they've had 
oversight or review process and saw that the states weren't 
doing the job they were supposed to do, either they didn't want 
to or they weren't capable of it or weren't financed well 
enough to do it, and then the feds had to feel like they moved 
back in, so I've seen that.
    Mr. Anderson, you wanted to say something, I'm sure.
    Mr. Anderson. I just wanted to say that, Senator, that that 
deal was made in 1980 in Title VIII of ANILCA for the State to 
be the manager on all Federal lands and waters in Alaska, if 
they would adopt a rural priority, and they did, and the State 
Supreme Court said that was unconstitutional as a matter of 
State law.
    As Rosita said, the Native community expended thousands of 
hours of effort and probably millions of dollars trying to get 
that amendment passed.
    Senator Manchin. Everybody was in agreement on that in the 
1980s.
    Mr. Anderson. That there should be a rural priority, and 
then the----
    Senator Manchin. In the State. Did you go to the Federal, 
the U.S. Supreme Court?
    Mr. Anderson. State Supreme Court said the State 
constitution meant the State could not have a rural priority. 
They would have to amend our constitution to do that.
    Senator Manchin. You can't get it amended.
    Mr. Anderson. They would never put it on the--came within 
one vote once, I believe, of getting it on the ballot.
    Senator Manchin. You mean from your State legislature?
    Mr. Anderson. From the State legislature. So that's why----
    Senator Manchin. I got you.
    Mr. Anderson [continuing]. You know, they can't----
    Senator Manchin. Now, it's getting clear. By God, I knew 
politics would enter into it sooner or later.
    [Laughter.]
    Ms. Worl. But all the surveys we did of the public it 
showed that the public did support us. It was, unfortunately--
--
    Senator Manchin. You'd like to see a referendum, wouldn't 
you?
    Ms. Worl. Yes.
    Senator Manchin. I got you. I understand. I'm getting it 
now. I'm getting it.
    Thank you so--I can't tell you how much this--how enjoyable 
this has been, and how much I've learned, and I really 
appreciate this so much.
    All of you, from both panels, have been so professional, so 
sincere about where you're coming--I just think that, you know, 
if they'd let you all sit down and work it out, we'd be in good 
shape. Right? Thank you so much.
    Senator Murkowski. Senator Manchin--go ahead, Jerry.
    Mr. Isaac. Just a quick one. Senator Manchin, I would 
invite you to come to Tanacross.
    Senator Manchin. Oh, I'm coming----
    [Laughter.]
    Mr. Isaac. You don't have to pay me to take you out into 
the land. We can share the food that we can get. We can buy the 
gas together. There'd be no charging you nothing. Just come 
down in September and we'll go out on the river, and whether we 
see moose or not, doesn't matter. It's just we'll go out there 
and have a good time and enjoy life.
    Senator Manchin. The ethics is very clear here.
    [Laughter.]
    Senator Manchin. We don't want to violate them right now, 
but I would be more than happy to pay my fair share just to see 
that beautiful, beautiful place of the world. Thank you.
    Senator Murkowski. Senator Manchin, I think we're going to 
work very hard to make sure that you get to that place of the 
world. I want to thank everybody for your participation here 
today, and, again, I've mentioned that we'll have an 
opportunity to continue the discussion and the ideas. I 
appreciate the suggestions that you've provided the committee 
here as follow-on.
    I really do hope this is the beginning of good, respectful 
engagement and dialog on this issue. For decades now, we've 
fought about this. I was advised by a lot of smart folks that I 
have good respect for, Don't raise the ghosts of subsistence 
past. It will just get the issue boiling again and Alaskans 
will be fighting again.
    But the fact of the matter is that when we have in place 
Federal statutes that are not doing that which we intended, if 
they're not working, it's incumbent upon us, as lawmakers, to 
review them, to address them and to deal with them, and 
sometimes it's hard.
    In fact, if it was easy, we would have done it a long time 
ago.
    So I do appreciate my colleague from West Virginia, the 
Chairman of the Energy Committee, Senator Wyden, for their 
interest in making sure that we are able to have a dialog at 
this level, because, as local and personal as this issue is, we 
have Federal laws in place that are complicating your access to 
a resource, Alaskans' access to a resource, how we manage our 
resources, and so we've got to start working on it.
    It's not going to help if we move off to our respective 
corners and say, I don't want to deal with it because it's too 
big.
    I think we need to go back to the picture that you have 
shared of these 3 young boys out on the tundra waiting for 
birds, finding berries--thank you, Joe--and, really, this is 
about their future as well.
    So what we've begun today I hope will be good and 
constructive and purposeful, keeping in mind who we are, who 
we're working for.
    So I thank you for what you've given us today in your 
testimony. I thank you for those that have participated prior 
to this time through either oral testimony in Bethel or 
Glenallen, those who have submitted their comments in writing 
over the internet.
    Our record is going to be held open, I think, for further 
comments.
    The working group is going to be taking place this 
afternoon at 2:30 p.m. in this room. So, hopefully, we'll have 
a good number of you back with good, constructive ideas and a 
desire to do right by Alaska's people and all those of us that 
are working for her.
    So, with that, gunulcheesh. Thank you.
    [Whereupon, at 11:58 a.m., the hearing was adjourned.]

    Due to the volume of additional materials submitted for the 
record, all other statements and documents have been retained 
in committee files.

                                    

      
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