P.O. Box 201

Hydaburg, Alaska 99922

907-285-3939

Email: <a_lecornu@hotmail.com>

May 13, 2008

Sue Salveson, Assistant Regional Administrator

Sustainable Fisheries Division

**National Marine Fisheries Service**

*[Attn]{.smallcaps}: Ellen Sebastian*

P.O. Box 21668

Juneau, Alaska 99802

**Re: RIN 0648-AU14 -- Proposed Rule to Amend a Program Authorizing
the**

**Subsistence Harvest of Pacific Halibut in Waters In and Off Alaska**

Dear Ms. Salveson:

Please place this letter in the record of comments on the proposed
regulations to amend the subsistence fishery rules for Pacific halibut
in waters in and off Alaska.

We understand that the proposed rule changes will take six (6) actions;
we are particularly concerned with the fifth action to be taken, the
proposed revision of the regulations regarding customary trade. We
believe that only allowing subsistence users to defray the expense of
their fishing is not the same as customary trade. The preferred
alternative does nothing to provide for the subsistence needs of our
tribal members and is detrimental to subsistence uses. The newly defined
"customary trade" is certainly "insignificant" and by this action, the
Council is effectively eliminating customary trade as a subsistence use.
This is detrimental to customary and traditional subsistence uses and
needs and is unjustified by analysis of the real needs of Alaska Native
villages.

**Background on Hydaburg**

Hydaburg was established on October 18, 1911 when members of the three
Haida villages of Howkan, Klinkwan and Sukkwan moved to the present
townsite of Hydaburg to begin building the town with the encouragement
and support of the U.S. Bureau of Education.

According to the Division of Community and Regional Affairs website,
Hydaburg is presently 89.5% Haida and has a fishing and timber-based
economy. Thirty-nine (39) residents hold commercial fishing permits. A
number of residents are employed with Southeast Stevedoring part-time in
shipping and loading timber; the City of Hydaburg, the Hydaburg City
School District, Haida Corporation and South East Regional Health
Consortium are the other leading employers. The median household income
in Hydaburg is shown to be \$31,625 that is well below the median
household income of the State of Alaska, which is \$56,234. Twenty-one
percent of Hydaburg's populations live below the poverty level, and
thirty-one percent of its people are unemployed. Allowing real customary
trade can only help rectify this dismal situation.

**Customary Trade and Hydaburg**

Customary and traditional trading has been identified among the Haida
since the very first meeting between Europeans and the Haida. In July
1774, Juan Perez noted that the Haida had articles that could not have
been manufactured in Haida Gwaii and must have been obtained by trading.

> "All afternoon these canoes, twenty-one in all, were about the ship,
> their occupants trading with the ship's people, for which purpose they
> had brought a great quantity of mats, skins of various kinds of
> animals, and fish, hats made of rushes and caps made of skin, bunches
> of feathers arranged in various shapes, and above all, many
> coverlets..." Juan Perez, 1774.

University of Alaska Anchorage professor, Steve J. Langdon, Ph.D.,
stated in his article, *Tlingit and Haida Indian Harvest, Use and Trade
of Herring Roe on Kelp in Southeast Alaska*, that "\[t\]rade was a
central element of the traditional culture through which locally
abundant resources were exchanged for items of food, clothing and wealth
objects from other regions and peoples." The Alaska Department of Fish &
Game has recently published Anne-Marie Victor-Howe's Technical Paper No.
225, entitled: *"Subsistence Harvest and Trade of Pacific Herring Spawn
on* Macrocystis *Kelp in Hydaburg, Alaska,"* in which she states that
"If we had to select only two words to portray traditional Haida
society, "maritime" and "mercantile" would certainly be appropriate."

Hydaburg, like so many other rural Alaska Native villages, is struggling
for its survival as a Haida community. The ability to work for cash is
very important today. There was a time when the Haida would not accept
cash because there was nowhere to spend it; today, a person in the
village is required to pay for everything with cash, or its equivalent,
for such things as: heating fuel, groceries, utilities and other
necessities of modern civilized life. It is no small task to stay
current with the bills each month when work is sporadic, seasonal or
nonexistent.

In the late 1980s and early 1990s, many members of our community
attempted to exercise their rights to customary trade, but were thwarted
by the State of Alaska and the Federal government by means of persistent
prosecutions, such as: *U.S. v. Sakurai,* No. A88-026 CR; *U.S. v.
Alexander,* No. CR-89-019-AJK*;* and *U.S. v. Thomas H. Abel,* No.
A91-014 CR.; and *U.S. v. Harold N. Frank.* Although the courts says
that the Haida have the right to customary trade, the State of Alaska
has said that they will continue to prosecute persons involved with
customary trade. This policy is creating a chilling effect among our
people, and they are becoming more hesitant to exercise their right to
customary trade to the detriment of their economy, their culture and
their community.

When the laws and regulations become as complicated as Title VIII of
ANILCA has become, with its numerous courts, federal and state agencies'
interpretations, it has become very difficult to understand and laws
that are too many to be read and too obscure for anyone to understand
are useless. As has once been said*, "There might as well be no law at
all, as laws which can be interpreted only by devious minds after
endless disputes. The average, common man cannot understand this legal
chicanery, and couldn't even if he devoted his whole mind to studying
it, since he has to earn a living in the meantime."* We would urge the
Council to consider that "\[t\]he end of law is not to abolish or
restrain, but to preserve and enlarge freedom." This action is certainly
not of this nature.

> "People, crushed by law, have no hopes but from power. If laws are
> their enemies, they will be enemies to laws; and those who have much
> to hope and nothing to lose, will always be dangerous, more or less."
> Edmund Burke (1729-1797), Letter to Charles James Fox, October 8,
> 1777.

**The Change of Definition for *Customary Trade Not Justified***

The discussions concerning the need to change the definition of
customary trade show that the only concern is with enforcement. Nowhere
is there discussion of the dire economic needs of rural Alaska.
Consideration of the economic needs of the Alaska Native villages should
be very important in the deliberations about what needs changing under
ANILCA. Where is "local knowledge?" Are rural residents who have
personal knowledge of local conditions and requirements enabled to have
a meaningful role in the management of fish and wildlife and of
subsistence uses on the public lands in this instance.

The *Environmental Assessment and Regulatory Impact Review* express its
concerns that a provision for any exchange for cash for subsistence
harvested food may establish an "undesirable precedent," but states that
"\[a\] regulation restricting customary trade to Alaska Native tribal
members might prevent the development of new subsistence harvest
patterns for customary trade." In light of Congress' need to fulfill the
policies and purposes of the Alaska Native Claims Settlement Act and as
a matter of equity, it is necessary for Congress to invoke its
constitutional authority over Native affairs and its constitutional
authority under the property clause and the commerce clause to protect
and provide the opportunity for continued subsistence uses. This
distinguishes Alaska Natives from rural residents.

As for the economic benefits and costs in the *Regulatory Impact Review
and Initial Regulatory Flexibility Analysis for Six Proposed Amendments
to Subsistence Halibut Fishery Regulations*, there was insufficient data
to make a credible determination. As stated the primary motivation for
changes to the definition of customary trade was enforcement. The State
of Alaska and the federal government should look to the tribes for a
proper solution for this issue and once subsistence needs are seriously
considered, authorize the tribes to enforce the regulation of their
tribal members.

Where does it say in ANILCA that customary trade shall not constitute a
significant commercial enterprise? By what authority is this further
restriction of subsistence uses being undertaken, when it is done for
enforcement and not for conservation of the resource? ANILCA says that
"\[w\]henever it is necessary to restrict the taking of populations of
fish and wildlife on such lands for subsistence uses in order to protect
the continued viability of such populations, or to continue such uses,
such priority shall be implemented through appropriate limitations based
on the application of the following criteria: (1) customary and direct
dependence upon the populations as the mainstay of livelihood; (2) local
residency; and (3) the availability of alternative resources." If the
subsistence use, called customary trade, must be further restricted,
what commensurate restriction applied to commercial and sports fishing?
Where is the priority or preference?

When ANILCA was passed in 1980, the Congress defined certain terms which
might have caused confusion, i.e., "family" and "barter", but "customary
trade" was not one of them. The need to narrow the definition of
customary trade in not justified as proposed by the National Marine
Fisheries Service. When the NMFS takes into account the economic
hardship under which many of our people live, they should realize that
the need for customary trade is a legitimate subsistence use.

Please consider the economic needs of Alaska Native villages, and leave
customary trade as an option for those who have no alternative.

Sincerely,

Adrian & Vicki LeCornu