Knowles faces Katie John pressure

Decision on appeal of case puts governor into a no-win situation

Posted: Sunday, June 17, 2001

ANCHORAGE -- When Gov. Tony Knowles announced his decision to appeal the Katie John subsistence ruling last year, he called it his "clear responsibility, even in the face of a difficult political battle."

The decision angered his supporters in Native communities and won praise from sport hunting groups and most Republican legislators.

Now, with an appeals court having ordered the federal government to protect rural subsistence rights in Alaska, Knowles once again must decide whether to continue the case, this time to the U.S. Supreme Court.

As Knowles weighs his options, he's finding himself squeezed between his Native constituency and their supporters on one side and sports groups, the Legislature and his own words on the other.

If Knowles appeals, "the Native community will forever walk away from him and he will have no political future in the state," declared Heather Kendall-Miller, Katie John's attorney, in an interview this week.

If Knowles doesn't appeal, he should be impeached, declared Sen. Robin Taylor during a meeting of his Senate Judiciary Committee last week.

"He's in a very tough position -- I think he's in a pressure cooker right now," said Rep. Mary Kapsner, D-Bethel, a member of the Legislature's Bush caucus that has met with the governor to lobby against appealing.

Though he can't run for a third term next year, Knowles is widely believed to have continuing political aspirations.

"I understand the box he has put himself into," said Carl Rosier of the Alaska Outdoor Council, the state's largest sport hunting and fishing group. "But for once he has to stand up and be a governor for all people in the state instead of a few special interests."

John is an Athabaskan elder who filed a lawsuit when she was denied a subsistence fish camp on the Copper River under state law. She aimed to force the federal government to carry out the guarantee that rural residents get a priority for subsistence hunting and fishing, a right granted by the 1980 Alaska National Interest Lands Conservation Act.

The Alaska Supreme Court, meanwhile, had said that the state constitution required state officials to grant equal access to fish and game for all Alaskans, whether they lived in the city or the Bush.

John won in U.S. District Court in Anchorage. Then in 1995, a U.S. appeals court ordered the federal government to take over fisheries management in navigable waters in and next to Alaska's federal lands to ensure the rural subsistence priority. The state appealed that decision to the U.S. Supreme Court, but the petition was denied.

The case went back to the 9th Circuit Court of Appeals which, last month, reaffirmed its 1995 ruling.

Knowles has until Aug. 7 to decide the state's next move.

Taylor and others are quick to point out that the governor's silence is markedly different from last year when announcing plans to take the case to the 9th Circuit Court of Appeals for the second time.

"As Alaska's governor, I believe it is my clear responsibility, even in the face of a difficult political battle, to vigorously defend this important aspect of state sovereignty," Knowles wrote in an opinion piece published in the Anchorage Daily News.

"That was certainly my position as a candidate for this office six years ago, and it was my position in 1995 when I fought in court a federal attempt to take this authority from Alaska. And it remains my firm stand today as I appeal the same case to the 9th Circuit Court of Appeals, and to the Supreme Court if necessary," he wrote.

To that, Taylor, R-Wrangell, said in a statement: "The governor is under political pressure to go back on his commitment, but a man's word is his bond. The Judiciary Committee is prepared to do everything it can to support the governor in defending Alaska's sovereignty before the Supreme Court."

But Attorney General Bruce Botelho said things have changed since the governor made that vow.

When the appeals court, for the second time, ruled against the state, three of the judges in a concurring opinion raised an issue that Botelho found quite troubling: They said that, at least in theory, the federal government could take over all navigable waterways, not just those in the vicinity of federal land.

"If the concurring opinion was adopted by the Supreme Court, it would mean federal management of all navigable waters of the state," Botelho said in an interview last week in his office. "That is a factor that needs weighing."

Knowles has "a marvelous opportunity in his hands for leadership," Kendall-Miller said.

"Our state is so polarized," she said, citing the recent paintball attack on Natives in Anchorage. "Now is the time to work together again and begin a healing process."

Many in the Native community say they will withdraw support for a constitutional amendment on state management if the appeal is taken. That would run counter to one of Knowles' goals on the subsistence issue, Botelho said.

"The governor has always been clear that his objectives have been to return the state to a single, unitary system which would be management under state control -- and the second that there be a rural subsistence priority," Botelho said.

Until the state changes its constitution to be consistent with federal law and allows a rural preference for subsistence, the federal government will be running the fishing and hunting show, he said.

So what's the attorney general advising Knowles to do?

Botelho said he believes the state would have a "fairly strong case" if the U.S. Supreme Court took up the petition. "My major reservation today is the concurring opinion," he added.

Plus, Botelho said, the risk of petitioning for a hearing before the Supreme Court, whether it's granted or not, "means a major constituency that's been crucial in pushing for the ultimate goal of state management will drop away -- the Native community.

"If the state takes the appeal, it would be seen as an act that is directly hostile to the Alaska Native way of life."

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