Attorney: Governor made right call on Katie John

A Spectrum by Heather Kendall-Miller

In choosing to forego an appeal of the Katie John case, Gov. Knowles made a courageous decision to stand on moral principle rather than pander to political whim or expediency. His decision was not an easy one.

Faced with potential grave political repercussions associated with the choice of appealing or not, the governor wrestled with his moral compass for weeks before concluding that there was only one acceptable course of action.

On Aug. 27, 2001, he renounced the state's previous stance against subsistence and stated that the state will now work diligently to protect rural subsistence rights. The governor's surprising turnaround bears witness to his personal journey both internal and along the banks of the Copper River in the company of Katie John.

Unfortunately, not all of Alaska's political leaders are capable of such profound personal reflection, growth, and change. Some have continued to lament that the state's failure to appeal Katie John tramples upon state sovereignty and undermines the state's constitution.

This battle cry, whether motivated by deeply held ideological beliefs or the desire to gain favor with conservative voters for future election campaigns, sadly imparts the message that these political leaders cannot or will not relinquish hollow rhetoric in favor of fairness, justice, and sound policy.

Is "state sovereignty" really at issue here? Is the Alaska Constitution really at risk? If one has paid any attention to the numerous news articles, editorials, letters, and compass pieces of recent weeks (no less bothered to read at least one of the many court decisions, even one of the dissents), one would know that the Katie John case has nothing to do with the state's power to control fisheries in navigable waters.

That power has always rested with the federal government, and the state's exercise of that power has always been conditioned upon the state's willingness to comply with the federal subsistence protections guaranteed by ANILCA. But don't take it from me. Three of Alaska's former attorney generals have publicly stated that a win for the state would have had no effect on the basic federal power to manage subsistence.

The same three (Charlie Cole, Avrum Gross, and John Havelock) have also publicly stated that the only way for the state to regain exclusive management of subsistence fisheries is not through an appeal but through the adoption of a state constitutional amendment.

If the Katie John case is not about the power to control navigable waters, how does it impact state's rights? Some have argued that the case is about how far the federal government can reach into areas of jurisdiction that are better left to the states. But isn't that the point -- don't we want federal intrusion when state governments are loathe to do the right thing as required by federal law?

Take, for instance, the institution of slavery and the passage of Jim Crow legislation. These practices were always defended as exclusive areas of "states' rights." It took a civil war and years of "federal intrusion" thereafter to strip the states of their "right" to treat African Americans as something less than human.

Alaska is no different. Alaska possesses no special "state's right" that empowers it to disregard the requirement of Section 6 of the Alaska Statehood Act that Alaska forever disclaim all right and title to Native fishing rights. Those rights "shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority."

This provision exempted Native fishing rights from the submerged lands that passed to the state upon statehood. Neither the Submerged Lands Act of 1953 or any other federal law gave Alaska the right of absolute jurisdiction and control over Native fishing rights. In short, the state cannot lose (nor can the governor give away) something it never possessed in the first place.

Despite all this, some of our political leaders have developed selective memories. They seem to forget that the state managed subsistence fisheries on federal lands and waters for a decade until 1990 only because it was then in compliance with ANILCA. The state initially agreed to its part of the bargain with the federal government: to adopt laws of general applicability which provided for a rural priority.

But since the 1990 McDowell decision overturned that state law absent a constitutional amendment, "state rights" proponents have insisted that our Alaska Constitution is immutable, despite the adoption of numerous other amendments.

The Alaska voters know better. They are tired of the rhetoric, they are tired of the posturing, they are tired of politicians who place personal ambition before moral justice.

ANILCA's regime has been tested and repeatedly found to be firmly grounded in federal power. The Ninth Circuit's holding in favor of Katie John was but the latest among many rulings affirming federal protections for rural subsistence uses.

An appeal would bring the state no closer to resolving the subsistence dilemma, nor would it help bring Alaskans back together again. It is time to move on.

To those political leaders who still don't get it, maybe it's time for you to take a trip to Batzulnetas and sit on the banks of the Copper River in the company of Katie John. You might learn something.

Heather Kendall Miller is the attorney for Katie John, Native American Rights Fund in Anchorage.