Botelho: Legislature could pass subsistence plan

Posted: Friday, October 12, 2001

Attorney General Bruce Botelho says a new rough draft of a constitutional amendment to provide a rural subsistence priority could break a longstanding stalemate in the Legislature and end federal management of fish and game resources.

Botelho, chairman of Gov. Tony Knowles' Subsistence Drafting Committee, said a mandatory rural priority, with the possibility of a secondary priority for subsistence users who reside in urban Alaska, could win the two-thirds majority vote of the Legislature necessary to put the amendment on the 2002 general election ballot.

"I think it can pass," Botelho said following more than nine hours of committee deliberations in Juneau on Wednesday and Thursday.

But former Attorney General Charlie Cole of Fairbanks, a member of the committee, said the rural priority would have to be permissive, rather than mandatory, to pass the Legislature. That's because saying the Legislature "shall" enact a rural priority would be seen by some lawmakers as giving in to a controversial federal law from 1980, the Alaska National Interest Lands Conservation Act.

"I don't want to enshrine ANILCA in our constitution," Cole said in an interview. He would prefer the constitutional amendment to say the Legislature "may" enact the rural priority, preserving the possibility that state law could change if ANILCA is amended in the future.

That's a position likely to face fierce opposition from the Alaska Federation of Natives.

Now, ANILCA's rural priority for subsistence conflicts with the state constitution's guarantee of equal access to resources.

Attempts to get the Legislature to agree to a constitutional change have been stymied by lawmakers who oppose what they see as a discriminatory federal law that infringes upon states' rights. During a special session in 1999, the House passed a proposed amendment to allow a rural preference, but the Senate fell two votes short.

Due to that impasse, the federal government took over management of subsistence fisheries on navigable waters running through or adjacent to federal land, in addition to game management authority it already was exercising.

Botelho said he believes the committee "finessed" the shall-or-may issue by allowing for a secondary priority for nonlocal residents, including urban residents, who have a history of subsistence use in a rural area.

House Majority Leader Jeannette James, a North Pole Republican who has voted against the rural priority in the past, said she's trying to keep an open mind and welcomes the committee's willingness to recognize urban subsistence users.

"I think they're moving in the right direction," James said today. "The substance of the language (in the amendment) is what we ought to be doing. ... I'd like to have it less complicated in the constitution."

The wording of the draft amendment was changed continually during the committee's two-day meeting and is still tentative. Another work session has been scheduled for Oct. 20 in Anchorage.

For now, the amendment requires a subsistence priority for residents of any given rural area but would allow the Legislature to create additional, lower priorities for "other residents who demonstrate a long-term, consistent pattern" of subsistence uses and for "communities that demonstrate a customary and traditional use of resources" in that rural area.

The four groups being targeted by the secondary or "rural-plus" priorities, Botelho said, are Natives who have moved from villages to urban Alaska or who live in areas that have become urbanized in recent years, residents of adjacent rural areas, and urban non-Natives with a history of subsistence.

Still to come are attempts to define key terms such as "rural," "customary trade" and "customary and traditional use" and to develop proposed state and federal statutes around those common definitions.

Even more important, Botelho said, is developing a subsistence management structure that gives Natives a formal role. "Of particular concern to the Native community generally has been what role will villages, tribes have in formulation of that policy."

Bill McAllister can be reached at

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