February 27: Anchorage Daily News on the Katie John case:

Posted: Sunday, February 27, 2000

Gov. Tony Knowles and the Alaska Federation of Natives have squared off over the Katie John case. The governor believes he has an obligation to again appeal the case, which the state has lost in federal court; AFN sees the appeal as a threat to Native people.

Before any more Alaskans pick sides, here are some of the basics.

Katie John is an Athabaskan elder from Mentasta who wishes to continue subsistence fishing on the Copper River as her ancestors have done.

She wound up in court after a tortured series of events. In 1980, Congress passed the Alaska National Interest Lands Conservation Act, which accorded rural residents a subsistence priority on public lands. The state was expected to enact laws consistent with ANILCA. It did. In 1982, the Secretary of the Interior certified the state to manage subsistence hunting and fishing.

All was well until 1989, when the Alaska Supreme Court struck down the state subsistence law as unconstitutional. The Legislature could have given Alaska voters the chance to bring the state constitution and federal law into harmony with a constitutional amendment. It did not do so then nor has it since.

In 1990, the federal government, faced with the Legislature's inaction, took over subsistence hunting management for two-thirds of Alaska, the federal land in the state.

Katie John challenged regulations that excluded navigable waters like the Copper River from these federal lands. She prevailed in U.S. District Court, setting off the appeal battle, which includes the 9th U.S. Circuit Court of Appeals 1995 decision vindicating her.

The case eventually could wind up in the U.S. Supreme Court.

With all due respect to Katie John and her struggle, this case never would have assumed such political force and symbolism if the Alaska Legislature had given Alaska voters a chance to amend their constitution to make subsistence a priority.

That is ground zero of this divisive case.

Alaska lawmakers have repeatedly criticized judicial activism, but the federal courts acted only because the Legislature, prisoner to a tyrannical minority, refused to move.

Here's what the 9th Circuit had to say: ''The issue raised by the parties cries out for a legislative, not a judicial solution. If the Alaska Legislature were to amend the state constitution or otherwise comply with ANILCA's rural subsistence priority, the state could resume management of subsistence uses. ...

The judges also pointed out that Congress could, through legislation, clarify its intent and the question of whether navigable waters are public lands. ''Only legislative action by Alaska or Congress will truly resolve the problem,'' the court said.

This is a rare instance of judges begging elected officials to act.

The court is equally frank about what will follow if Alaska or Congress does not intervene. Because the Katie John case does not apply everywhere in Alaska, federal agencies will have to inventory the navigable waters in the state to determine which should be managed by the federal government and which should not. ''We recognize that our holding may be inherently unsatisfactory,'' said the court, for ''... we impose an extraordinary administrative burden on federal agencies. We accept a complicated regulatory scheme of requiring federal and state management of navigable water. Let us hope that the federal agencies will determine promptly which navigable waters are public lands subject to federal subsistence management.''

It will take years, armies of lawyers, and tons of money to sort out the conflicting claims, all while Alaskans live with uncertainty.

This is not what Alaskans want, and they never would have faced this snarled legal mess if Congress had been clearer about its goals or the Alaska Legislature had provided Alaskans the chance to amend the Constitution.

Gov. Tony Knowles and Katie John are in a tough situation. But they have been put there primarily by the inaction of others. The 9th Circuit Court has made that much clear.


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