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May 25: The Fairbanks Daily News-Miner urges appeal of the latest Katie John decision:

Posted: Monday, June 04, 2001

It's understandable that the Alaska Native community would rally behind Katie John, the Mentasta elder whose name has become synonymous with this state's long-standing constitutional crisis over who should receive hunting and fishing priority.

But the 1991 court case over John's Copper River fish camp isn't really about subsistence. The issue at the center of Katie John's case is who shall manage fisheries throughout ''navigable'' waters in Alaska.

It's not exaggerating to point out that statehood was fought, in large measure, over similar ground. Alaska's constitutional inability to uphold the federal law's mandate for giving preference to rural subsistence users merely serves, in this instance, to renew the clash over control of a major portion of this state's water-residing resources.

In a sense, John's subsistence claim handed federal managers a legal opening, but it's a mistake to view the state's overall interest in the case through such a narrow lens. The larger implications for sovereignty have long been the focus of this state's elected leadership, not just in the Legislature, but in the governor's mansion. Thus Katie John's lawsuit has drawn an aggressive response from Alaska's attorney general, despite a mounting outcry from the Alaska Native community.

Regardless of the political backlash, irrespective of individual stands for or against amending Alaska's constitution to allow a rural subsistence preference, Alaska's leaders have, by and large, accepted the need to press the state's defense against Katie John despite a series of setbacks from federal judges.

The legal setbacks continued last month as the 9th U.S. Circuit Court of Appeals voted 8-3 to uphold a 1995 ruling supporting federal management of Alaska's navigable waters.

Dissenting judges grasped that the lower court's decision has caused federal managers to intrude well beyond anything Congress ever contemplated. They cited case law that required the federal government to have ''definitely declared or otherwise made plain an intent to diminish the state's right to control fishing and other matters on its navigable waters.''

The dissenting trio also noted that the pertinent sections of the Alaska National Interest Lands Conservation Act have more than one ''plausible'' interpretation, a situation in which this nation's legal traditions generally hold that state rights ought to take primacy.

Alaska has 90 days to file an appeal; time is not yet pressing. Given the stakes, however, Alaska's chief executive should be leaping to overturn the court current decision.

Yet, the News-Miner hears Gov. Tony Knowles is still dithering over the merits of further appeal.

''If we lose the Katie John case, we lose navigable waters to the federal government and, with it, Alaska's ability to control her destiny in so many areas,'' Knowles courageously told delegates gathered for last year's Tanana Chiefs Conference convention.

Knowles has on several occasions vowed to contest the Katie John decision all the way to the U.S. Supreme Court.

A governor with Alaska's sovereign interests at heart can do no less.



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