Legislature(2019 - 2020)BARNES 124
02/27/2020 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB221 | |
| HB193 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 221 | TELECONFERENCED | |
| *+ | HB 193 | TELECONFERENCED | |
HB 221-STATE RECOGNITION OF TRIBES
8:03:36 AM
CO-CHAIR HANNAN announced that the first order of business would
be HOUSE BILL NO. 221, "An Act providing for state recognition
of federally recognized tribes; and providing for an effective
date." [Before the committee was CSHB 221(TRB).]
8:04:07 AM
REPRESENTATIVE CHUCK KOPP, Alaska State Legislature, as prime
sponsor of HB 221, first introduced his staff, Ken Truitt,
before addressing the proposed legislation. He then said
Alaska's Native people have been here for many thousands of
years, and CSHB 221(TRB) would give the honor and respect and
self-determination that any people "cry out for." He said
Alaska Natives make up 20 percent of the state's population, and
the proposed legislation would ensure that "Alaska's indigenous
people are no longer invisible in the narrative of our state
history."
REPRESENTATIVE KOPP, regarding sovereignty, said, "We can't, on
one hand, pretend that tribes don't exist but on the other hand
insist that they waive their sovereign immunity before the state
will partner with them ...." He remarked upon the great size of
Alaska and opined that Alaska needs to collaborate with its
tribes to overcome significant challenges related to education,
public safety, and healthcare, and said the proposed legislation
is a move in that direction. He acknowledged that change is
difficult in that it encompasses emotional and spiritual
dimensions. He added, "But it's time that we acknowledged that
tribes are in the best position to deliver many of the services
the state has not been able to successfully deliver over many
decades and that these are Alaskans that are closest to the
people to deliver the services in their region."
8:07:48 AM
REPRESENTATIVE KOPP said he would address "issues that may cause
some to stumble." The first is the issue of granting special
privileges to tribal people that non-tribal people do not get.
He said the issue of state sovereignty sometimes gets in the way
of consideration of tribal recognition. In terms of what is
special, he proffered that from a tribal perspective that notion
evokes questions about having one's land taken away without
consent, being told one cannot remain in a certain place and
must relocate when there has been no declaration of war or
hostilities, and having a tax imposed on villages in Southeast
Alaska. He said he views "special" as the U.S. Government
making good on its solemn promises to the indigenous people for
the taking of land and imposed relocations, as well as on the
promise of providing for the health, education, and welfare of
the indigenous people in return for them having to abandon their
claims to the land. He said there were many social, political,
and property relational changes, which took Europe "over 300
centuries to absorb." He compared that to the rapid change
brought to indigenous people in the U.S. and said it is
incredible that those changes have not destroyed them. He cited
[the third paragraph] uttered by President Richard Nixon during
his 1970 Special Address on Indian Affairs, which read as
follows:
But the story of the Indian in America is something
more than the record of the white man's frequent
aggression, broken agreements, intermittent remorse,
and prolonged failure. It is a record also of
endurance, of survival, of adaptation and creativity
in the face of overwhelming obstacles. It is a record
of enormous contributions to this country - to its art
and culture, to its strength and spirit, to its sense
of history and its sense of purpose.
8:11:05 AM
REPRESENTATIVE KOPP reviewed that before the Revolutionary War
the British government had left colonies to regulate Indian
trade and land concessions, which resulted in disparate policies
and approaches. Under the Articles of Confederation an attempt
was made to consolidate these policies; however, this proved
unsuccessful. He explained that these failures led directly to
Article I Section 8 of the Constitution of the United States,
which states that Congress shall have the power to regulate
commerce with foreign nations and among the several states and
with the Indian Tribes. He said it is significant that Congress
was given that power, because a single state, acting improperly
on its own, "might lead to needless wars and compromise the
interest of other states." He said 11 of the 13 states voted to
ratify the Constitution, agreeing that abdicating their
sovereignty over Indian affairs was good and necessary for the
success of the nation. He stated that the erosion of state
sovereignty was settled at the time the Constitution was
ratified, and [Alaska] "has harmed itself as a state by fighting
against this idea for many years since statehood."
8:14:06 AM
REPRESENTATIVE KOPP pointed out the supporting materials in the
committee packet, including the aforementioned address by
President Nixon, a supreme court case, Baker v. John, and a
memorandum from former Attorney General Jahna Lindermuth to
former Governor Bill Walker on the legal status of tribes in
Alaska. Alaska obtained statehood during the termination era of
Indian policy "when the nation was struggling with that trust
relationship with tribes and walking away from the treaties that
had long [been] established." Under President Nixon, the nation
moved into the era of self-determination and "honoring that
trust relationship with federal tribes." He said the court case
is when Alaska "began turning from the idea of terminating that
trust relationship to embracing it" and recognizing tribes'
existence. The memorandum to Governor Walker is when the
executive branch recognized the existence of tribes in Alaska.
REPRESENTATIVE KOPP explained that even with the existence of
these background materials, the proposed legislation is still
necessary because while it is the [Alaska] Supreme Court's role
"to declare what the law is in the state," it is the
legislature's role to declare state policy. The purpose of CSHB
221(TRB), he said, is to declare that Alaska will no longer, as
a matter of policy, ignore the existence of tribes in Alaska;
that it is the end of the termination era; and that that
thinking is part of the state's policy. Although not explicitly
stated in the proposed legislation, this means the state is
taking a step toward self-determination. What that will look
like on the state level will take a more in-depth conversation
than what CSHB 221(TRB) seeks to address, he said. He
concluded, "But the conversation cannot begin until the state
stops and is at least willing to acknowledge that tribes are in
the room with us and that they have a proper place in this
room."
8:17:02 AM
KEN TRUITT, Staff, Representative Chuck Kopp, Alaska State
Legislature, on behalf of Representative Kopp, prime sponsor,
offered a sectional analysis of CSHB 221(TRB). He said Section
1 was added regarding legislative findings and intent about
indigenous people's history of being in Alaska since time
immemorial and "the legislature exercising its policy power."
The operative provision of the bill is now in Section 5, he
noted. The provisions between Sections 1 and 5 are conforming
and technical changes. He drew attention to a sentence on page
2, beginning on line 27, which read, "The state recognizes the
special and unique relationship that the United States
government has with federally recognized tribes and specifically
recognizes the relationship between the United States government
and federally recognized tribes in the state." He noted that
"special" and "unique" are words used in the previously cited
address by President Nixon and describe the nature of the
relationship that tribes have in the country - "recognition
being primarily a federal function." The following sentence, he
noted, refers to the Recognized Tribal List Act. He said it is
clear that CSHB 221(TRB) is not seeking to create a separate
state recognition but to recognize federal function and
recognition. Mr. Truitt referred to the next sentence, which
read, "Nothing in this section diminishes the United States
government's trust responsibility or other obligations to
federally recognized tribes in the state or creates a concurrent
trust relationship between the state and federally recognized
tribes." He said this language is important, because the
proposed legislation should not be read as "giving the federal
government an excuse to end that relationship or in any way
diminish it." Further, the bill is not pointing to any intent
of the State of Alaska in "intending to create a separate state
trust relationship with tribes." He clarified that this is a
federal issue that the state is recognizing. Mr. Truitt stated
that CSHB 221(TRB) would not create any additional rights that
tribes do not already possess.
8:22:32 AM
REPRESENTATIVE CLAMAN indicated that people had asked what
effect CSHB 221(TRB) may have regarding gambling. He noted that
federally recognized tribes [in the Lower 48] have the power to
open casinos on their lands.
REPRESENTATIVE KOPP echoed Mr. Truitt's previous statement that
the proposed legislation would not change any standing rights
tribes currently have on tribal land or any existing authority.
8:23:46 AM
REPRESENTATIVE KREISS-TOMKINS referred to "the millennium
agreement" and asked to hear about "the policy juxtaposition
between what Governor [Tony] Knowles did and what the impact of
this bill would be ...."
8:24:24 AM
MR. TRUITT noted that there would be presenters who would cover
that, but offered in brief that the proposed legislation "would
not make an executive order like that unnecessary" but would
prevent a succeeding administration from withdrawing such an
executive order. He explained, "So, we're not leaving it up to
the executive branch to declare what the policy is."
8:25:18 AM
CO-CHAIR HANNAN initiated invited testimony.
8:25:39 AM
NATASHA SINGH, General Counsel, Tanana Chiefs Conference, as co-
presenter of a PowerPoint presentation, entitled "Recognition of
Alaska Tribes," prefaced her presentation by stating that Tanana
Chiefs Conference is a tribal consortium representing the 37
federally recognized tribes of Interior Alaska.
MS. SINGH directed attention to a quote, which shows on slide 2,
as follows:
"Before the coming of the Europeans, the tribes were
self-governing sovereign political communities." -John
v. Baker, Alaska Supreme Court
MS. SINGH pointed out that "the existence of a tribe or tribal
government does not require federal determination, and federal
sovereignty does not originate with the federal government."
She continued:
The tribal form of government is something that you or
I likely can't comprehend, mainly because we are not
Native language speakers. ... The Native languages
really, really encompass everything our government was
about. Take all your notions of government and
economy that you learned in college and throw them
out. Tribal governments were based on a rule of law
determined by the creator, the land, and the animals.
Our tribal governments are religious and spiritually
based, and that continues today.
Tribal leaders created tribal governments in
reflection of laws of the creator. The present-day
tribes have remnants of these traditional governments
despite hundreds of years aimed at extinguishing
tribes.
MS. SINGH said she has been told that today tribes are tasked
simply with protecting the land and the children.
8:28:38 AM
JOY ANDERSON, General Counsel, Association of Village Council
Presidents, as co-presenter of the PowerPoint presentation,
having related that the association is a tribal consortium
located in Southwest Alaska representing 56 federally recognized
tribes, reported that there are 573 federally recognized tribes
in the U.S., almost half of which are in Alaska. She said a
federally recognized tribe is an American Indian or Alaska
Native tribal entity that has a government-to-government
relationship with the U.S. described as "a domestic dependent
nation."
MS. ANDERSON discussed the points on slide 3, which read as
follows:
What are Tribes?
Domestic Dependent Nations
Inherent powers and authorities with self-governance
of internal affairs, e.g. type of government; tribal
membership
Tribes exercise all powers, unless those powers have
been expressly limited by Congress
Regulate matters pertaining to tribal members, e.g.
taxes, property, members' conduct
Immune from lawsuits
Tribes are not state or local governments; political
subdivisions or agencies or instrumentalities of the
federal or state governments; tax exempt organizations
8:30:19 AM
MS. SINGH brought attention to slides 4 and 5 and gave a brief
history of the Federal Indian Policy Period. As shown on slide
5, that period includes:
Colonial 1492-1820
Removal/Relocation 1820-1850
Reservation/Treaty Making 1850-1887
Allotment & Assimilation 1887-1934
Indian Self-Government 1934-1953
Termination 1953-196?
Self Determination 196?-Present
MS. SINGH said the first four policy periods were so detrimental
to tribes that "we entered into" the Indian Self-Government
policy; however, despite good intentions, the federal government
was dictating to tribes what was best for them, so it did not
work. During the Termination Policy, the U.S. government wanted
to do away with its relationship with tribes, but this ended up
hurting the U.S. and tribes alike. Under President Nixon's
leadership, it was recognized that the best thing is to "return
authority to local control."
8:33:25 AM
MS. ANDERSON brought attention to slide 6, "Domestic Dependent
Nations." She said that at the beginning of U.S. history,
tribes were recognized as powers in authority of individual
governments, even though they were subject to the authority of
the U.S. government and widespread oppression and laws were
inflicted on the tribes. In 1831, a few decades before Alaska
became a territory of the U.S. and only 55 years after the U.S.
came into existence, the U.S. Supreme Court and Chief Justice
John Marshal determined that Indian tribes were "Domestic
Dependent Nations." She shared the quote on slide 6, which
read:
... a weaker power does not surrender its independence
- its right to self-government - by associating with a
stronger, and taking its protection. A weak state, in
order to provide for its safety, may place itself
under the protection of one more powerful, without
stripping itself of the right of government, and
ceasing to be a state.
8:36:09 AM
MS. SINGH, moving to slide 7, "The Marshall Trilogy," cited
Article I, Section 8, Clause 3, of the Constitution, which
states Congress shall have power:
To regulate commerce with foreign nations, and among
the several states, and with the Indian tribes;
MS. SINGH said Congress is the only entity that has the right to
terminate the rights of [Indian tribes] - a [state]
administration does not. She stated that the Marshal Trilogy
formed the framework of federal Indian law; there were three
cases circa 1830 dealing with tribes on the East Coast. These
cases are reflected on slide 7 as follows [original punctuation
provided]:
Aboriginal land claims: Aboriginal people retain the
rights of use and occupancy that only the United
States government can settle aboriginal land claims,
and that the U.S. has a legal duty to protect
aboriginal title until land claims are officially
settled.
Tribal Authority: Tribes are nations with the
authority to govern themselves. The source of their
authority to govern is "inherent", meaning that it
comes from tribes being self-governing long before
explorers and settlers came to the Americas.
Federal Trust Responsibility: The Federal Government
has a responsibility to protect Indian lands and
resources, and to provide essential services to Indian
people. This comes from the fact that the federal
government took away the vast majority of Indian
lands, and in return promised to provide these things.
MS. SINGH indicated that the Marshall Trilogy is the foundation
on which the U.S. Supreme Court implements the Commerce Clause.
8:39:52 AM
MS. ANDERSON reviewed that in 1867 Russia sold its claim to
Alaska to the U.S. through The Treaty of Cession, aka "The
Alaska Purchase," an excerpt of which is shown on slide 8, as
follows [original punctuation provided]:
The uncivilized tribes will be subject to such laws
and regulations as the United States may, from time to
time, adopt in regard to aboriginal tribes of that
country.
-Treaty of Cession aka The Alaska Purchase
MS. ANDERSON stated that the premise of the treaty was that
Native peoples were uncivilized; thus the colonial government
had the power to "civilize them with laws." She said Russia
considered it was passing its authority over Alaska Native
tribes to the U.S. She stated, "What's key for our presentation
today is the fact that from the very beginning, there was the
awareness that tribes existed in Alaska."
8:40:59 AM
MS. SINGH turned to slide 9, which shows the previously cited
Article I, Section 8, Clause 3. She said the plenary control of
Congress over Alaska Natives is evident in the Alaska Native
Claims Settlement Act (ANCSA), where Congress used its plenary
power to extinguish Alaska Native rights to "hundreds of
millions of acres of land" and hunting and fishing rights.
MS. SINGH moved on to slide 10, "Self-Determination," which read
as follows [original punctuation provided]:
The only policy that has worked to make significant
progress in reversing otherwise distressed social,
cultural, and economic conditions in native
communities.
The policy of self-determination reflects a political
equilibrium which has held for four decades and which
has withstood various shifts in the party control of
Congress and the White House.
The first major piece of legislation, Public Law 93-
638, the Indian Self-Determination Act of 1975.
Tribes identify federal government services that
they wish to provide to their own tribal members and
contract for the federal funding to provide those
services themselves.
MS. SINGH said the Alaska Tribal Health System is based on this
Act. She said the relationship between Alaska tribes and the
State of Alaska is still in the policy era of termination,
because although the courts recognize tribes, the administration
sometimes tries to deny the existence and rights of tribes. She
shared, "We would like this bill to take us out of that
termination era ... and move us into the self-determination era,
the only successful policy that has worked with tribes."
8:44:03 AM
MS. ANDERSON brought attention to slides 11 and 12, "Executive
Order 13175 (2000)," and said the executive order was issued by
President Bill Clinton on November 6, 2000. Nine years later,
on November 5, 2009, President Barrack Obama issued a
presidential memorandum directing "the agency" to submit a
detailed plan of action detailing how the agency would implement
the policies and directives of the executive order. She said
highlights of the executive order are on slides 11 and 12, as
follows [original punctuation provided]:
Established regular and meaningful consultation and
collaboration with tribes in the development of
federal polices that have tribal implications.
Recognizes that the United States has a unique legal
relationship with Indian tribal governments as set
forth in the U.S. Constitution, treaties, statutes,
Executive Orders, and U.S. Supreme Court decisions.
Confirms that the U.S. recognizes Indian tribes as
"domestic dependent nations under its protection."
Recognizes a trust relationship with Indian tribes.
Recognizes the right of Indian tribes to self-
government, tribal authority, and self-determination.
All federal agencies are to respect Indian tribal
self-government and authority.
8:46:04 AM
MS. SINGH directed attention to slide 14, "Brief History of the
Relationship Between the State of Alaska and Tribes," on which
is a map depicting the indigenous peoples and languages of
Alaska. She moved on to slide 14, "Previous Alaska Position:
Tribes Did Not Exist." She talked about litigation on this
issue that tribes continually win because of the plenary
authority of the Constitution and the clarity of federal Indian
law. She said when tribes have taken action to protect their
children, the state has denied that authority, which has been
detrimental. She said the opportunity to educate law makers can
provide "an out from this [termination] era" and CSHB 221(TRB)
would [assist in the effort].
MS. ANDERSON brought attention to slides 15 and 16, "Federal
Government Response" and "Current Position of the State of
Alaska on Recognition of Tribes." Slide 15 read as follows
[original punctuation provided]:
Department of Interior (DOI) - The "Sansonetti
Opinion" (1993) disagreed with the Alaska Supreme
Court's historical analysis in Stevens Village,
observed that for over fifty years Congress and the
DOI treated Alaska Natives as members of tribes, and
concluded there were federally recognized tribes in
Alaska. Nine months later, DOI issued a list of
federally recognized tribes in Alaska.
Congress - Federally Recognized Tribe List Act of 1994
(1994 List Act) directed the BIA to publish lists of
recognized tribes which included Alaska Tribes. The
list is published annually, and all subsequent lists
of the List Act have continued to include Alaska
Tribes.
MS. ANDERSON spoke to slide 16, which read as follows:
Alaska Supreme Court - "If Congress or the Executive
Branch recognizes a group of Native Americans as a
sovereign Tribe, we 'must do the same.'" John v.
Baker (1999).
State of Alaska's Executive Branch - "[W]e will
improve government -to-government relations with
Alaska Tribes [...]." Alaska Admin. Order No. 300
(2018). See also Alaska Department of law 2017
Opinion - Legal status of tribal governments in Alaska
("[T]here are no unresolved legal questions regarding
the legal status of Alaska Tribes as federally
recognized tribal governments.")
MS. ANDERSON offered her understanding that included in the
committee packet was "a copy of the Department of Law opinion in
2017 that has a thorough analysis, as well."
8:51:04 AM
MS. ANDERSON covered slide 17, "HB 221," which read as follows
[original punctuation provided]:
Will bring the Alaska State legislature in-line with
the other two branches of State government regarding
the status of Alaska tribes.
Will modernize the policy towards Alaska Native tribes
by officially moving the State legislature out of the
Termination Era and into the Self-Determination Era.
Create the potential for the State of Alaska to lead
the country in creation of State-tribal relations.
MS. ANDERSON commented on the strength of the state and tribes,
and she said there is so much that can be done by establishing a
partnership. In response to Representative Claman's previous
question about gaming, she said federal law requires states to
pass their own laws allowing tribes to [run] gaming. She
predicted that Alaska tribes and the State of Alaska together
would "show the rest of the country ... what can be done when
the state and the tribes work together." She spoke of elevating
tribal communities in poverty, the justice system, and public
safety. In conclusion of the PowerPoint presentation, she
opined that CSHB 221(TRB) would stimulate conversation to that
end.
8:54:01 AM
REPRESENTATIVE KREISS-TOMKINS asked for more detail regarding
how CSHB 221(TRB) would result in Alaska being the leader of
other states in state/tribal relations. He further queried
which state is currently the leader in this area and what laws
are on the books that make it so.
8:54:59 AM
MS. SINGH responded that she does not have the information
regarding which states have passed "recognition" bills. She
said she knows there are tribes that have not been federally
recognized but whose state legislatures recognize them. She
reiterated that Alaska has a long history of litigation between
its administration and its tribes. States that do not have that
long history of litigation have partnerships in areas such as
fishing and public safety - Washington State being an example of
the latter. She said she would have to find out which state is
currently in the lead on recognition of tribes.
8:56:40 AM
MS. ANDERSON added that Alaska has 229 recognized tribes - the
most of any state in U.S. - so, "by default," if the state were
to build on what is already in place, such as the Tribal Child
Welfare Compact, then it could become the leader among states.
8:57:18 AM
REPRESENTATIVE KREISS-TOMKINS expressed his appreciation for
CSHB 221(TRB). He said he would like to know whether the number
of tribes in Alaska has changed since the 1994 Act. He further
queried as to which tribe had been "omitted by DOA" and
established by Congress as a federally recognized tribe under
the List Act.
MS. ANDERSON replied that the List Act has been published since
1994, and she would have to research to find out how the Alaska
tribe numbers may have changed and which tribe had been omitted.
8:59:09 AM
MR. TRUITT proffered that Central Council Tlingit & Haida Indian
Tribes of Alaska was the entity omitted from the list and by a
special act of Congress was restored to the list. He offered
his understanding that the list has remained at 229 ever since.
9:00:28 AM
HOLLY HANDLER, Child Welfare Attorney, Central Council Tlingit &
Haida Indian Tribes of Alaska ("Tlingit & Haida"), Alaska Legal
Services Corporation (ALSC), relayed that she has been a staff
attorney with ALSC for the past 14 years, and in the last year
has been doing full-time Indian Child Welfare Act work for
Tlingit & Haida. She said she would give a presentation on
tribal litigation. She spoke about a timeline spanning about
150 years since the Alaska Purchase. She said during this time
the tribal litigation in Alaska has been an anomaly and
"recognition of tribes in Alaska has been the norm."
MS. HANDLER said it is remarkable that despite on-going attempts
over the last 150 years to assimilate indigenous populations,
terminate tribal identity, and resist recognition of Indian
people as such, there has been a recognition that tribes do
exist. They are recognized under federal law, and were
recognized under territorial law and since statehood under state
law. She said CSHB 221(TRB) will help people come to terms with
the fact that "there are differences in the histories of the
people of Alaska." In other states where tribes have been
recognized, state governments have been able to build state
tribal commissions and working groups so that state and tribal
courts can pool resources. In Maine, tribes and the state work
together through a Truth and Reconciliation Commission to deal
with the state's history of "removing children."
9:04:13 AM
MS. HANDLER directed attention to the aforementioned timeline
[included in the committee packet], entitled "Tribal Litigation
in Alaska," which lists the following points. [The information
below is excerpted from the timeline, with some formatting and
punctuation changes.]
? Over the past 153 years, recognition of sovereign
Alaska Native Tribes has been the norm
? Recent legal battles fighting recognition have been
a painful and expensive aberration
? Federal and Alaskan authorities have recognized the
existence of Alaska Native Tribes as independent,
self-governing political groups via:
o 1867 Treaty
o Early 1900s federal reserves, allotments and
townsites
o 1930s Indian Reorganization Act
o Public Law 280 extension of state jurisdiction to
Indian Country in Alaska
o 1970s inclusion of Alaska Native Tribes in ICWA,
Indian Self-Determination and Education Assistance
Act, Indian Financing Act
o Creation of corporate entities in addition to
governmental entities in ANCSA
o 1990s Interior and Congressional Lists
o Kaltag Adoption Case: sovereign tribal authority to
adjudicate adoption of tribal citizen children
o John v. Baker: sovereign tribal authority to
adjudicate custody
o Tanana/Parks: sovereign tribal authority to
adjudicate child protection
o T&H Child Support: sovereign tribal authority to
adjudicate child support
MS. HANDLER said the Treaty of Cession does not distinguish
between tribes in Alaska and those in the Lower 48; they are
treated as "self-governing political groups with inherent
sovereignty to decide their own affairs." Indigenous people are
citizens of their tribal government, their state government, and
their federal government. She noted that the Acts related to
federal reserves, allotments, and townsites treat tribes in
Alaska as tribes and would not have been possible without the
recognition of Alaska tribes as sovereign governments. In the
1930s there was federal recognition of tribal marriage laws, as
well as the Indian Reorganization Act (IRA), which recognized
that tribes in Alaska have the same rights as those in the Lower
48 to establish tribal constitutions, work through policies of
self-determination and economic development, and be treated as
"fathering governments."
MS. HANDLER said Public Law 280 was passed in the 1950s, often
cited by anti-tribal advocates as "a reason to think tribes
ceased to exist in Alaska." Public Law 280 extended state
jurisdiction over Indian country in Alaska. She said, "You
can't have Indian country unless you have sovereign tribes, and
so what Public Law 280 did is yet reaffirm ... that we do have
sovereign tribes in the state of Alaska." Ms. Handler said the
Acts specifically refer to Alaska Native tribal government. All
the Acts from the early 1900s through the 1970s specifically
recognize village and other tribal governments. She stated that
despite the overt racism and institutionalized discrimination in
this period, where children were removed from their homes and
sent to boarding schools and there was state sanctioned
discrimination in public institutions, one constant was the
recognition of tribal governments.
9:07:54 AM
MS. HANDLER said that after the passage of the Alaska Native
Claims Settlement Act (ANCSA) in 1971, anti-tribal advocates
tried to manipulate and misinterpret ANCSA to support an idea
that tribes had been extinguished in Alaska. She spoke of "the
Nenana case" in 1886 where the village council had asked the
state court to transfer a child protection proceedings case from
state to tribal court. She said this case and so many others
are about Native villages trying to protect their children from
abuse, neglect, and harm. She pointed out that the majority of
Alaska communities, including Nenana, do not have state courts.
In the Nenana case, she said, anti-tribal advocates litigated
against the tribes to say that because they are without land, in
large part, they have lost their governing authority over their
citizens. She said from the late '80s to the early '90s, the
state court system agreed that there was something in ANCSA that
implicitly terminated the existence of tribal government in
Alaska. She said that "the Stevens Village" case "affirmed that
attitude." She talked about the John v. Baker case where a
disgruntled father did not like the tribal court's decision and
took his case to state court; the Alaska Supreme Court reviewed
the history and the List Act, reversed the decisions from the
Nenana and Stevens Village cases, and found that "ANCSA's
experiment of resolving land claims through economic development
did nothing to distinguish tribal government in Alaska"; tribes
still exist and are able and have the authority to protect their
own children and families. She said in the John v. Baker case,
both the State of Alaska and the U.S. Department of Justice
issued amicus briefs in support of the tribe. She said there
was a millennium agreement that followed up on that, and it
tried to "delve into the practicalities of how we have
government to government relations in Alaska." On the heels of
that agreement was an issuance of new policies and procedures in
the state's Office of Children's Services to coordinate
protective services in the state with limited resources through
cooperation and the pooling of resources. She indicated the
hope was that this type of litigation was done; however, the
Reinke's opinion in 2004 "tore up" all the work that had been
done by the Office of Children's Services with tribes and
started a new wave of litigation in Alaska against the state's
own people.
9:12:54 AM
MS. HANDLER named further cases: the Tanana case, a child
protection case in which tribal government sought to protect
abused and neglected children in their community; another case
in which a tribal government sought to approve the adoption of a
child in a community where there was not access to a state
court; the Tlingit & Haida Child Support case, in which ALSC was
involved and the Native American Rights Fund issued an amicus
brief about the state recognizing tribal child support orders to
ensure that "there's family responsibility for families in
Alaska"; and the Simon v. Parks case, which was about protecting
a child from violence in the home. All these litigations were
painful and costly, Ms. Handler said. Tribal members were
coming to court where their existence was not even recognized.
The State of Alaska lost all the cases and it damaged the
state's reputation nationally and with its own people, as well
as hurting the state's finances. She said the state lost out on
opportunities for a variety of federal grants for states and
tribes cooperating, to work on matters related to education,
child welfare, transportation, education, law enforcement, and
healthcare, because it focused all its energy on litigating
against tribes.
9:15:24 AM
MS. HANDLER concluded by stating that CSHB 221(TRB) would
benefit Alaska by committing the state to follow a path of
cooperation with tribes instead of litigating against them; and
to choose a path to pursue opportunities to work with tribes "to
fill in gaps in the state where we need assistance" and "to move
forward in creative and exciting ways."
9:16:33 AM
CO-CHAIR HANNAN announced that HB 221 was held over.