Dune's July 26, 1999 Oral Testimony to the House Committee on Resources

EYAK PRESERVATION COUNCIL
PO Box 460, Cordova, Alaska 99574

Written Testimony for the Hearing Record

HOUSE COMMITTEE ON RESOURCES

Rep. Don Young
Rep. George Miller

Hearing on H.R. 2547

Submitted by:

Dune Lankard
Executive Director & Spokesperson
Eyak Preservation Council
Eyak Traditional Elders Council

July 26, 1999

Introduction

My name is Dune Lankard. I am a local resident of the Copper River Delta and Prince William Sound. As an Eyak Indian, local commercial and subsistence fisherman, and shareholder of both the Eyak Corporation and the Chugach Alaska Corporation, I appreciate the opportunity to submit written and oral testimony for the Hearing Record opposing H.R. 2547.

The Eyak Preservation Council and Eyak Traditional Elders Council strongly opposes H.R.2547. The Eyak Preservation Council is a grassroots defense fund for the traditional lands of the Eyak people.We represent issues facing our Eyak Traditional Elders Council and address local and regional environmental issues and concerns that erode our subsistence relationship to our ancestral lands of the Copper River Delta. The Eyak Traditional Elders Council represents the Eyak Tribe, one of the 550 federally recognized tribes in America, we are also one of the 226 recognized tribes in Alaska, and we are one of the four distinct tribes of the Chugach region (Eyak, Chugach, Aleut and Tlingit) that own shares of stock in the Chugach Alaska Corporation (CAC), an Alaska Native Claims Settlement Act (ANCSA, 1971) corporation.

The Copper River Delta is one of the most fragile, wild and highly-productive ecosystems left intact in the Chugach National Forest and possibly the world. Our Eyak people have for thousands of generations survived off the incredible bounty of this irreplaceable region. To even consider upsetting the delicate balance of this region and the Copper River Delta salmon fishery is unacceptable- we as humans, cannot manage land better than nature does itself.

H.R. 2547 is divided into three titles, each of which is apparently intended to resolve a private dispute between CAC and the United States Government:

Title I would force the Secretary of Agriculture to grant to CAC an easement in the Chugach National Forest allowing the construction of a 55-mile logging road across the incomparable Copper River Delta.

Title II would require the Secretary of the Interior to undo certain land conveyances agreed upon by Alaska Native village corporations and the U.S. government as part of the Exxon Valdez oil spill restoration program.

Title III would effectively amend the National Forest Management Act by forcing the Secretary of Agriculture to engage in extensive "coordination" with CAC and other Alaska Native corporations before revising, developing or maintaining national forest land management plans.

Although we recognize certain rights granted to CAC by ANCSA, the Alaska National Interest Lands Conservation Act (ANILCA, 1980), and the Chugach Native's Inc. Settlement Agreement (CNI, 1982), H.R. 2547 goes beyond the intent of these agreements by attempting to exempt CAC from environmental and public laws that safeguard the public's interest in national forest land and other public resources. ANCSA sought to strike a fair balance between the rights of Alaska's Indigenous people and members of the American public. H.R. 2547 rejects this responsible approach in favor of immediate but poorly-considered action. H.R. 2547 creates hasty "solutions" to complex issues and may ultimately harm the interests of both CAC and the general public. In particular, it may threaten the health and vitality of one of our world's environmental treasures, the Copper River Delta. The Eyak Preservation Council and Eyak Traditional Elders Council therefore opposes H.R. 2547.

The Copper River Delta

The Copper River is located in a remote region of south central Alaska and drains significant portions of the Alaska, Wrangell, and Chugach mountain ranges into the Gulf of Alaska. For much of its length, the river forms the western boundary of the Wrangell St. Elias National Park, the largest national park in the country. The St. Elias mountains to the east of the Copper River are the tallest coastal mountains in the world and are capped by the greatest mantle of glacial ice outside the polar ice caps and Greenland.

The Copper River Delta lies at the confluence of the Copper River and the Gulf of Alaska. At 700,000 acres it is the largest wetlands complex on the Pacific coast of North America and an ecosystem of almost unparalleled productivity. The Copper River Delta hosts incredible numbers and varieties of fish and wildlife. Considered by biologists to be one of the most important shorebird habitats in the western hemisphere, the Delta is a critical staging area for over 16 million shorebirds and waterfowl. It supports world-renowned salmon runs and is a haven for grizzly bears, black bears, wolves, mountain goats, moose, wolverines, mink, otters, sea lions, and harbor seals.

The Copper River Delta is also a place of incredible beauty and uncompromising wildness. Ragged peaks of rock and snow crowd the watershed. Pale blue glaciers split with explosive force thrusting enormous sheets of ice into the river. Sculpted icebergs ride the silty turbulent waters along with logs, brush, and other victims of the river's erosive appetite. Seals swim inland for miles hunting salmon while enormous brown bears patrol the shore. These scenes from an almost prehistoric landscape are accompanied by the uneasy music of current, ice and wind. There are other great wetlands ecosystems in the world, but few are as magnificent, dynamic and productive in its intact wild state as the Copper River Delta.

Notwithstanding its harsh, untamed appearance, the Delta has nurtured the people of the Copper River basin for thousands of years. Thousands of generations of Eyak Indians and other tribal Nations have relied upon the bountiful fish and wildlife that thrive in the region. Today, over half of the watershed's population of 5,000 people live in the seaside town of Cordova, separated from the Delta by only the narrow Heney Range. Cordova is the region's sole community and most of its residents (many of whom are Native) continue to live a subsistence lifestyle-harvesting and sharing the area's sustainable natural resources. Commercial and subsistence fishing are the mainstays of Cordova's economy, in large part because of Copper River salmon, one of the most highly prized stocks of wild salmon in the world. The Copper River Delta is the nursery that sustains both fish, wildlife and human populations.

Almost 100 years ago Teddy Roosevelt recognized that the Copper River Delta was a unique and irreplaceable natural wonder. In 1907, he created the Chugach National Forest to help protect the Copper River Delta and Prince William Sound from corporate monopolies engaged in coal mining and other unregulated development of public resources. Today's conservationists have learned from this wise example by making the Delta a Western Hemisphere Shorebird Reserve Network Site, an emphasis area in the North American Waterfowl Management Plan, and a State Critical Wildlife Habitat Area. The Copper River Delta is one of the most productive, beautiful, and untamed wetlands ecosystems in the world. Congressional action and/or any actions affecting this area should be thoroughly evaluated and responsive to a clearly-established need.

Title I--Easement for Access

ANILCA gave CAC, formerly known as Chugach Natives, Inc., the right to select lands within the boundaries of the Chugach National Forest. To ensure that CAC shareholders obtained a just and fair land settlement, the Secretary of Agriculture and others were directed to prepare a study of the Chugach region. Eventually, the United States government, the State of Alaska and CAC signed an agreement, generally referred to as the 1982 CNI Settlement Agreement, directing the United States to convey to CAC 73,000 acres of land known as the Bering River/Carbon Mountain tract. The Bering River/Carbon Mountain tract lies approximately 30 miles east of the Copper River and 20 miles north of the Gulf of Alaska. It is bounded on three sides by the Chugach National Forest and on the fourth side by Bureau of Land Management holdings. Under ANILCA, CAC may access its land by utilizing the procedures established by 16 U.S.C. § 3210. This is exactly the same right afforded to other Alaska Native corporations for accessing their own in-holdings. In addition, the 1982 Settlement Agreement provides that CAC may "construct, at its own cost, roads, pipelines and transportation facilities for access necessary for economic utilization of the Bering River coal fields." Although CAC no longer owns the Bering River coal fields (it conveyed title to a partnership of Korean corporations in 1992), it now proposes to log the 8,000-acres of coastal rainforest on the Bering River/Carbon Mountain tract. The 55-mile access road would sever hundreds of streams that feed the pristine, eastern portion of the Copper River Delta, including the Bering and Martin Rivers which are eligible for inclusion into the federal Wild and Scenic River system. It would also degrade hundreds of acres of marsh and other wetlands. A heavily-used logging road would inevitably impair the wildlife and aesthetic values of the Delta and could even threaten the world-famous Copper River salmon fishery. Ironically, CAC may not even benefit from this potential environmental tragedy. CAC's timber is of modest quality, the market is extremely poor, and it will be very expensive to build and maintain an access road. An independent economic analysis prepared by ECONorthwest of Eugene, Oregon in 1998, concluded that the proposed logging project was unlikely to be profitable and could actually result in a substantial loss to CAC and its 1900 shareholders.

CAC and the U. S. Forest Service are both fully aware of the richness of the Copper River Delta and the environmental threat posed by a major road project. Nevertheless, they have entered into an agreement that allows CAC to plan and develop the project without an unbiased environmental impact statement or an opportunity for public notice and comment. Instead, CAC has been permitted to conduct its own environmental studies under the supervision of Koncor Forest Products, the company retained to log CAC's land. While CAC must go through the formalities of obtaining a special use permit before it can cross 27 miles of Chugach National Forest, its activities will not be subject to environmental review and public process normally required by the National Environmental Policy Act and other applicable laws.

An appropriate level of environmental review and public participation should be particularly important given CAC's dubious environmental track record. CAC built the first mile and a half of logging road last summer. This section of road crosses private land and did not require Forest Service authorization. CAC's placement of a bridge across Clear Creek, the first river in the proposed road corridor, was very controversial and prompted the Alaska Department of Fish and Game to investigate the construction for possible violations of state law. More recently, the Environmental Protection Agency is investigating potential clean water act violations. Nevertheless, CAC has said it plans to build several more miles of road this summer. The next section of roadway would cross both private and public lands and would necessitate filling gravel in Sheep Creek and bridging Sheep Creek, an anadromous and beautiful, fast-flowing braided river. The Copper River Delta is simply too important culturally, economically, and environmentally to authorize development without the careful consideration required by the nation's environmental laws. Indeed, full environmental review and public input is especially critical now. The Forest Service is in the process of updating its management plan for the Chugach National Forest and, in response to strong public sentiment, is considering recommending portions of the Delta as a special management area. It would be inappropriate, and a blow to every citizen with a legitimate interest in the Copper River Delta, to authorize an easement without taking the time to ensure that the environmental effects of road construction will be minimized.

CAC is not entitled to exercise its rights without regard to the rights and laws of other citizens of this country, especially without regard to the rights of its own shareholders. The original intent of the CNI Agreement was to provide access for CAC to its in-holdings- but not allow CAC the right to restrict public access through its private land once a public road is built. If allowed, a precedent will be established that ANCSA corporations can override the entire purpose and intent of the Federal Government that protects the public interest, and in the process evaporate public laws by enacting special interest legislation.

Until a thorough and independent environmental impact statement is completed, and CAC obtains the normal permits and authorizations, we must oppose any bill that forces the USFS to issue an easement in 90 days and to approve construction activities no matter how ill conceived. Sound public policy dictates extreme caution. The Copper River Delta is an extraordinarily complex and fragile ecosystem. It was created by forces of nature over tens of thousands of years and, once destroyed, can never be recreated by human beings. No compensation or restoration could ever replace the Copper River Delta back to its pristine state. The Delta should be treated with the care reserved for any other international treasure- preserved, not exploited with minimal environmental review and public input.

Title II--Cemetery Sites and Historic Places

This section is designed to determine the outcome of a U.S. District Court lawsuit currently pending between CAC and the USFS, filed on May 19th, 1999. This bill would give CAC the right to obtain historic areas and cemetery sites from the Federal government after the ANCSA village corporations agreed to protect these culturally sensitive area's using Exxon Valdez Oil Spill restoration funds. Ironically, these culturally sensitive lands have more protection now than when they were owned by the village corporations, however the actual titles to the archeological, historical and cultural resources still belongs to each of the village corporations because they were reserved at the time of conveyance.

The Eyak Preservation Council and Eyak Traditional Elders Council has never agreed to the fee simple title component to these "restoration acquisitions." We have always believed that conservation easements (development restrictions), could have met the goals of restoration without demanding title to our Native lands. If Congress would like to fix this restoration flaw and reverse the fee title acquisition and apply conservation easements- then, do it, but, don't let these ANCSA regional's take what they never deserved to own in the first place.

According to ANCSA, CAC has certain undeniable rights. However, we believe it is premature for Congress to decide the issues raised in H.R 2547 without first allowing the federal court to issue a ruling. Leaving aside the propriety of asking Congress to intervene on behalf of a private litigant, the courts are generally in the best position to decide complex issues of statutory construction. CAC has sat around since 1991, without taking any action or intervening in any meaningful discussion to disrupt this acquisition process, until now. They were repeatedly invited to participate, but refused.

We are also concerned with the practical effects of H.R. 2547. The bill focuses on lands sold by ANCSA Native village corporations to the federal government as part of the ongoing efforts to restore Prince William Sound to its pristine pre-spill condition. The ANCSA village corporations, whose shareholders are also shareholders of regional Native corporations such as CAC, voted to approve the sales and were somewhat reasonably compensated. Allowing CAC to reclaim the properties (apparently without payment) would create a windfall for some ANCSA regional corporations and would threaten the integrity of the Exxon Valdez Oil Spill restoration efforts.

The Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, National Historic Preservation Act and Alaska State Historic Preservation Act establishes a process for protecting culturally sensitive lands of Alaska Natives that were acquired by the Exxon Valdez Oil Spill Trustee Council. In actuality, these cemetery sites and historic lands now have state and federal protections that were not afforded to Alaska Natives under ANCSA. A clearcut example is when the Eyak Corporation clearcut our Eyak village and burial sites along the Eyak River in 1992.

If Congress finds under section 14(h)1 of ANCSA, that the Secretary has the authority to withdraw and convey to the appropriate regional corporation fee title to existing cemetery and historical places, and pursuant to section 14(h)7 of ANCSA, lands located within a National Forest may be conveyed for the purposes set forth in section 14(h)1 of ANCSA- then, why not incorporate into this legislation, that section 14(c)1 of ANCSA be carried out by these concerned ANCSA regional corporations. And that is, that our ancestral lands of Alaska's Native people be reconveyed to the Alaska Native people immediately, once the regional corporations receive title from the federal government.

Title III--Forest System Land Management

This section of H.R. 2547 attempts to amend the National Forest Management Act and other laws prescribing the process for developing or revising national forest plans. Specifically, it would require the Secretary of Agriculture to "coordinate" with CAC and other ANCSA Native corporations by, among other things, "assessing the impacts of Alaska Native Corporation land use plans on National Forest land and resource management planning, and determining how to address those impacts" and "identifying conflicts between National Forest land and resource management plans and the land use plans of Alaska Native Corporations, and considering alternatives for resolving those conflicts." We oppose this section for three reasons.

First, changes to existing practice are unnecessary. The U. S. Forest Service is required by law to provide interested parties with ample opportunity to influence the development or revision of a national forest management plan. The revision of the Chugach National Forest land management plan, which apparently prompted this bill, is a good illustration. The U. S. Forest Service has utilized an extensive public process involving dozens of open meetings for all affected stake holders. Notably, CAC representatives have attended and participated in many of these public meetings.

Second, the "coordination" required by H.R. 2547 would give CAC undue leverage in which to influence forest plan revisions. National forests are supposed to be managed for the benefit of all Americans and to accommodate multiple uses. H.R. 2547 requires the Forest Service to work around CAC's development plans and gives the corporation a privileged status that is inconsistent with the public purposes of national forest land.

Finally, H.R. 2547 treats similar parties unequally. There are many individuals businesses and private entities other than Alaska Native corporations, that have lands "which are intermingled with, adjacent to, or dependent for access upon National Forest System lands." A fundamental tenet of legislation is that it should be fair and even handed. H.R. 2547 is neither.

This bill would also give ANCSA Native corporations "preferential treatment" to determine land status and zoning processes for environmentally and culturally sensitive lands that the entire public should be a part of, including CAC's share-holders. CAC has never provided a "land use plan" for its CAC shareholders that shows not only the environmental impacts but, the economic impacts of CAC's natural resource extraction projects. Nor, has CAC ever created a process in which to identify and settle internal conflicts with its distinct tribes, or attempted to settle ANCSA section 14(c)1 re-conveyance claims of its 1900 shareholders.

CAC's Eyak Shareholder Concerns

As ANCSA shareholders, we Eyak Natives feel it is necessary for Congress to understand that we are not being well served by CAC or the Eyak Corporation. ANCSA was a way of creating dependency by Alaska Natives on the "money culture." Also it is important to point out that the "access issue" has nothing to do with inherent rights of Chugach Natives- it is a way for CAC to gain access to our ancestral land and exploit its abundant natural resources.

After oil was discovered on the north slope in the 1960's, and as the construction of the pipeline was proposed, it was deemed necessary to settle the Alaskan Indian land claims. ANCSA's original intent was to settle these land claims, in the simplest of terms, by transferring Indian land claims into "for-profit only" corporations. Approximately 500 Alaskan Natives voted on ANCSA, out of a population of over 65,000 Natives at the time. We are the only minority race of people in America who have been forced into corporations in order to receive a "just and fair land settlement" from the Federal Government.

Unlike the lower 48 states, where the Indian problem was dealt with by creating "reservations" (land reserved for Indian people), the Indigenous people of Alaska were deprived of sovereignty over their ancestral land and inherent rights by being placed in corporations and given non-transferable stock. 100 shares were issued to "applicable" Indigenous people in 1971, with no new shares to be issued, according to the ANCSA law. Shareholders with less than 100 shares are not allowed to vote. Shares are transferred by virtue of inheritance.

It is only a matter of simple math to realize that ANCSA was designed to take the power and land away from Alaska's Indigenous people over time, therefore creating a legalized form of cultural genocide. ANCSA for-profit corporations also jeopardize Alaska Native ancestral lands, because the land is either clearcut, stripmined, drilled or sold- allowing cultural ecocide. If Congress wants to truly help Alaska's Native people, in this case CAC, then it should enact legislation that benefits all CAC shareholders equally, while providing opportunities and choices to natural resource extraction- as the only fix-all to corporate failings. CAC's entire history is filled with corporate mismanagement, poor/bad judgment by Board of Directors (CAC has yet to recover from it's 91' bankruptcy) and tens of millions of dollars in net operating losses.

An immediate GAO investigation of all the ANCSA regional corporations should be implemented by the House Committee on Resources, starting with CAC. These findings would give Congress the information it needs to make educated, timely and sound decisions as to how to proceed with proposed ANCSA legislation or ANCSA implementation amendments. ANCSA is a social and cultural experiment that has failed miserably by any stretch of one's imagination. Congress needs to rewrite ANCSA and implement laws that helps preserve our inherent rights- laws that also compliment our inherent rights as stewards- rather than just ANCSA shareholders of our land.

The Eyak Preservation Council and the Eyak Traditional Elders Council wants to emphasize to Congress that ANCSA corporations has not and does not represent the true interests and concerns of Alaska's Native people. Ironically, it is ANCSA corporations that are the one's who can ultimately protect subsistence rights and our inherent rights of self-determination for Alaska Natives. By preserving our ANCSA lands and keeping them "roadless and wild" will preserve our unique way of life that has provided for us since time immemorial.

It is our wish that Congress stay out of Native politics and let us settle our intra-corporate affairs on our own. CAC has never proven to its shareholders that it is worthy of deserving access to our ancestral land in the Copper River Delta region. CAC has been fiscally, environmentally and culturally irresponsible ever since they were created in 1971. Many of our shareholders are embarrassed to report that we have never received dividends from any of CAC's ill conceived development schemes. Congressional legislation should help us become solvent, not liquidate our remaining assets, drive us further into poverty and place us right back into the bankruptcy court.

This legislation is unacceptable and unnecessary. It allows CAC to have dominion over our ancestral land and inherent tribal rights. Congress should be enacting legislation that strengthens our bond to our ancestral land and clearly enhances our right to self-determination as independently recognized tribes in Alaska.

I would offer that there is not a place in Indian Country on the planet, where a road has not permanently changed the management of fish and wildlife, allowed irresponsible natural resources development and adversely affected Native people's subsistence lifestyle forever.

Conclusion

We and numerous other Alaska voters strongly oppose H.R. 2547. This bill takes a slap-dash approach to complex situations in which many Alaskans and numerous ANCSA corporations have a passionate interest. This is particularly true with respect to the Copper River Delta. It requires finesse, not a sledge hammer, to responsibly evaluate a 55-mile road project through one of the world's intact and most unique and spectacular wetlands.

There are numerous stake holders and world wide consumers who depend on the returning Copper River Delta salmon. There is a value to intact wild places and what they mean to the world- wild places are priceless and simply become more valuable each day as more wild places are developed and lost to progress.

Protected watersheds are some of the most valuable and rich ecosystems left on our planet. Last year, when Congress decided to assist the Chalista Corporation, this was a similar situation. near bankruptcy, both financially and spiritually- Congress intervened and basically created a conservation unit that helped them financially and socially.

We would obtain a greater financial and social return in preserving the Bering River/Carbon Mountain tract in its pristine state, in perpetuity- while maintaining our ability to preserve our needed traditional subsistence activities and unique way of life on the Copper River Delta.

By helping us to implement a comprehensive conservation easement (without any fee title transfers) and helping preserve the entire Copper River Delta region for all future generations to enjoy is the best way to settle this controversial dilemma on the Delta.

Thank you for this opportunity to comment.

In Spirit of Wild Places,

Dune Lankard, Executive Director & Spokesperson
Eyak Preservation Council
Eyak Traditional Elders Council

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