Legislature(2003 - 2004)

05/08/2004 01:11 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 132 - MINTO FLATS GAME REFUGE & TOWNSITE                                                                                   
Number 0059                                                                                                                     
CO-CHAIR  DAHLSTROM announced  that  the only  order of  business                                                               
would be  CS FOR SENATE BILL  NO. 132(RES), "An Act  removing the                                                               
Old Minto  townsite from the  Minto Flats State Game  Refuge; and                                                               
authorizing  the  Department  of   Natural  Resources  to  convey                                                               
certain  land  at the  historic  Old  Minto  site to  the  Native                                                               
Village of Minto."                                                                                                              
Number 0077                                                                                                                     
REPRESENTATIVE  STEPOVICH  moved  to  adopt  the  proposed  House                                                               
committee  substitute  (HCS)  for SB  132,  Version  23-LS0578\U,                                                               
Bullock, 5/6/04, as the work draft.                                                                                             
Number 0086                                                                                                                     
REPRESENTATIVE KERTTULA  objected.   She turned attention  to the                                                               
language on page  3 of Version U, lines 13-15,  which read:  "(4)                                                               
the Native  Village of  Minto may  not transfer  the land  to any                                                               
other private or governmental entity  for any purpose or duration                                                               
unless   approved  in   advance  by   the  legislature.".     She                                                               
characterized  this  language  as   unusual  and  asked  why,  in                                                               
conveying the land, they would  want to preclude further transfer                                                               
without legislative approval.                                                                                                   
Number 0213                                                                                                                     
TED  POPELY,  Majority  Legal  Counsel,  Majority  Legal  Office,                                                               
Alaska  State  Legislature,  acknowledged that  the  language  is                                                               
unusual, but  pointed out that  the whole  context of the  bill -                                                               
transferring land to the Native Village  of Minto - is unusual as                                                               
well; he  opined that the  language in paragraph (4)  is included                                                               
as a protective measure.  The  Bureau of Indian Affairs (BIA) and                                                               
the U.S.  Department of  the Interior  (DOI) consider  the Native                                                               
Village of Minto  to be a federally recognized  Indian tribe and,                                                               
as such, its status is in a state  of legal flux, and so the land                                                               
transfer  proposed via  SB 132  is not  a typical  land transfer.                                                               
The legislature  regularly challenges  the notion that  there are                                                               
federally recognized  Indian tribes in Alaska,  though the Alaska                                                               
Supreme Court  has, in several cases,  acknowledged the existence                                                               
of such.                                                                                                                        
MR. POPELY relayed that when  land has been transferred to Native                                                               
corporations  under  the  Alaska  Native  Claims  Settlement  Act                                                               
(ANCSA) format, there  hasn't been a lot of  problem with respect                                                               
to jurisdiction over the land,  governmental powers, or things of                                                               
that  nature.   Senate  Bill  132  proposes something  different,                                                               
however, and  it would be  hard to predict all  the ramifications                                                               
of such a  unique transfer; therefore, the  language in paragraph                                                               
(4)  is intended  to ensure,  in giving  the land  to the  Native                                                               
Village  of  Minto,  that  the  state doesn't  cede  any  of  its                                                               
authority or  create any hybrid  jurisdictional problems  that it                                                               
can't later correct.                                                                                                            
REPRESENTATIVE  KERTTULA remarked  that  the simple  fact that  a                                                               
tribe exists, in  and of itself, doesn't  seem like justification                                                               
for saying  that it  can't alienate  land.   She opined  that the                                                               
language in paragraphs (1) and  (2) of page 3 should sufficiently                                                               
address the concerns Mr. Popely has  expressed.  In response to a                                                               
comment  regarding paragraph  (2),  she asked  whether the  term,                                                               
"sovereign  jurisdiction", which  is  used in  CSSB 132(RES),  is                                                               
broader  than   the  term,   "civil,  criminal,   and  regulatory                                                               
jurisdiction", which is used in Version U.                                                                                      
Number 0599                                                                                                                     
MR. POPELY  acknowledged that the term,  "sovereign jurisdiction"                                                               
is broader,  but said he is  uncomfortable with it because  it is                                                               
not often used  in state statutes and has a  different meaning to                                                               
different  people.    He  opined that  using  the  term,  "civil,                                                               
criminal,  and  regulatory   jurisdiction"  will  better  address                                                               
concerns regarding inadvertently ceding  any state authority.  He                                                               
suggested that part of the  reason that the language in paragraph                                                               
(4) has been  added is because there is "a  possibility that land                                                               
can  be transferred  and it  will  change its  status in  federal                                                               
Indian law, partially, with respect  to trust land, for example":                                                               
if land is  transferred to the DOI,  to be taken in  trust by the                                                               
federal  government,  it raises  a  new  level of  jurisdictional                                                               
questions about the land itself.   He reiterated his opinion that                                                               
the language in paragraph (4) is a protective measure.                                                                          
REPRESENTATIVE KERTTULA  surmised that the issue  is really about                                                               
maintaining  state sovereignty  over the  land rather  than about                                                               
whether the  Village of Minto  will at  some later time  elect to                                                               
transfer the land.                                                                                                              
MR. POPELY  concurred, adding that  without somehow  ensuring the                                                               
state's sovereignty over this land,  the state might someday face                                                               
the possibility of preemption by the federal government.                                                                        
REPRESENTATIVE KERTTULA reiterated her  belief, however, that the                                                               
language currently  in paragraphs (1)  and (2) are  sufficient to                                                               
address the issue, and thus paragraph  (4) is not needed and goes                                                               
a step  too far.   She asked  why, if the  Village of  Minto does                                                               
decide to  transfer the  land later, they  should be  required to                                                               
obtain legislative  approval rather than departmental  approval -                                                               
by the commissioner, for example.                                                                                               
MR. POPELY  indicated that the  latter would be  acceptable, just                                                               
so long as  at least some type of  public decision-making process                                                               
is undertaken.  In response  to questions, he mentioned that part                                                               
of  the  land that's  being  transferred  is cemetery  land,  and                                                               
reiterated his earlier comments  regarding the concern over state                                                               
sovereignty  and  the  legal  problems  that  might  result  from                                                               
transferring lands to a federally recognized Indian tribe.                                                                      
Number 1271                                                                                                                     
SENATOR  GEORGIANA LINCOLN,  Alaska  State Legislature,  sponsor,                                                               
expressed appreciation to the committee  for holding a hearing on                                                               
SB  132.   She  turned attention  to CSSB  132(RES)  and said  it                                                               
underwent  a   lot  of  scrutiny  during   its  Senate  hearings.                                                               
Language of particular importance is  on page 3, lines 7-9, which                                                               
says, "(1) the Native Village of  Minto waives for itself and for                                                               
its  lessees,  successors,  and  assigns  forever  any  claim  to                                                               
sovereign immunity with respect to  the land or activities on the                                                               
land;"    She  opined  that  this  language  will  be  more  than                                                               
sufficient to address Mr. Popely's concerns.  She elaborated:                                                                   
     "Forever" ...  the claim to  any sovereign  immunity is                                                                    
     gone,  that  the  land   remains  under  the  sovereign                                                                    
     jurisdiction of  the state -  very clear.  And  then it                                                                    
     goes on to  say that the Native Village  of Minto shall                                                                    
     submit  the  waiver  required  under  this  in  writing                                                                    
     before the land is conveyed.                                                                                               
SENATOR LINCOLN referred  to a map in members'  packets, and said                                                               
that  in 1969,  the State  of Alaska  said to  the people  of Old                                                               
Minto, "You must  move to higher ground; we're not  going to give                                                               
you  an  option because  your  land  is  subject to  erosion  and                                                               
flooding, and  we're not  going to  put any  more money  into the                                                               
airport,  we're  not  going  to  put  any  more  money  into  the                                                               
facilities here - you have to move."   They did not want to move,                                                               
but  they  agreed  to  move  to  higher  ground  40  miles  away.                                                               
Meanwhile, the ancestral gravesites and  church at Old Minto have                                                               
remained,  and  are still  used  and  maintained by  the  people.                                                               
Additionally,  the  people  also  maintain a  youth  camp  and  a                                                               
recovery camp at Old Minto.                                                                                                     
SENATOR LINCOLN  pointed out  that back  in 1999,  the Matanuska-                                                               
Susitna Borough  received 160 acres  of state land that  had been                                                               
part  of  the  Hatcher  Pass   Public  Use  Area,  and  that  the                                                               
authorizing Act read in part:                                                                                                   
     The legislature  finds that making the  lands specified                                                                    
     in sec.  2(b) of this  Act available to  the Matanuska-                                                                    
     Susitna  Borough   for  selection  and   conveyance  is                                                                    
     consistent  with  the  testimony and  position  of  the                                                                    
     Department  of  Natural  Resources   at  the  time  the                                                                    
     Hatcher   Pass    Public   Use   Area    was   created.                                                                    
     Furthermore,  the  selection  is consistent  with  that                                                                    
     area of  the public use  area that is  contained within                                                                    
     the  development lease  and authorized  for development                                                                    
     purposes  in  the  Hatcher  Pass  Management  Plan,  as                                                                    
Number 1582                                                                                                                     
SENATOR LINCOLN said that "this"  is exactly what [CSSB 132(RES)]                                                               
proposes, and noted that of the  over 500,000 acres of land [that                                                               
make up] the  Minto Flats State Game Refuge, Minto  is asking for                                                               
less than  32 acres.  "This  is the elders that  requested this -                                                               
it wasn't  [the] 'Native  Council for Sovereignty'  - I  mean, my                                                               
goodness, that  was the  last thing in  their mind;  what they're                                                               
thinking of is to have  their ancestral lands for their gravesite                                                               
and what  they're doing  on that  land," she  remarked.   The way                                                               
that CSSB 132(RES)  is written, she opined, there  is neither any                                                               
way  the land  can  be transferred  nor any  way  for the  Native                                                               
Village of Minto to claim sovereignty.                                                                                          
SENATOR LINCOLN  said she  is not supportive  of the  language in                                                               
Version U, and  reiterated her belief that  Mr. Popely's concerns                                                               
are adequately addressed by the language in CSSB 132(RES).                                                                      
REPRESENTATIVE HEINZE  asked whether  the spirit camp  is located                                                               
at the Old Minto site.                                                                                                          
SENATOR LINCOLN said yes.                                                                                                       
REPRESENTATIVE STEPOVICH asked how many  people live in Old Minto                                                               
and how many people live in Minto.                                                                                              
SENATOR LINCOLN  said that a  little less than 300  people reside                                                               
at  the  new  Minto  site,   and  the  population  in  Old  Minto                                                               
fluctuates  depending  on how  many  clients  are at  the  youth,                                                               
recovery, and  spirit camps.   In  response to  another question,                                                               
she indicated  that the goal  of the bill  is to ensure  that the                                                               
people of  Minto retain the  use of the  area where Old  Minto is                                                               
located.   She relayed that  the Department of  Natural Resources                                                               
(DNR)  and the  Alaska Department  of  Fish &  Game (ADF&G)  have                                                               
testified in complete favor of the [transfer].                                                                                  
REPRESENTATIVE  GATTO offered  his belief  that Version  U merely                                                               
puts one more protection in place.                                                                                              
CO-CHAIR MASEK  relayed that there  are other  similarly situated                                                               
villages -  for example, the people  of Grayling used to  live in                                                               
[Holikachuk]  but had  to move  because of  flooding.   She asked                                                               
whether the bill would have any impact on those villages.                                                                       
SENATOR  LINCOLN  indicated that  it  wouldn't  because of  ANCSA                                                               
stipulations; the people of Minto,  on the other hand, moved from                                                               
Old Minto before ANCSA and so,  unlike the people of Grayling and                                                               
other similarly  situated villages, they didn't  have the ability                                                               
to select that land under ANCSA.                                                                                                
Number 1976                                                                                                                     
REPRESENTATIVE GUTTENBERG said he opposes adopting Version U.                                                                   
CO-CHAIR DAHLSTROM asked Mr. Popely to  comment on the use of the                                                               
word "forever" on page 3, line 8, of CSSB 132(RES).                                                                             
MR.  POPELY, acknowledging  that that  language has  been removed                                                               
from  Version U,  opined  that it  is  statutorily impossible  to                                                               
waive  sovereign  immunity,  if  it turns  out  that  the  Native                                                               
Village  of  Minto actually  has  such,  to any  future  lessees,                                                               
successors, or assigns.                                                                                                         
REPRESENTATIVE KERTTULA  argued, "If you've got  immunity, you've                                                               
got immunity; the language really won't change that."                                                                           
MR. POPELY said  he supposes that to be true,  but opined that by                                                               
referring to  sovereign immunity in statute,  someone could argue                                                               
that sovereign immunity does exist.                                                                                             
REPRESENTATIVE  KERTTULA, in  response  to a  question, said  she                                                               
maintains her  objection to the adoption  of Version U as  a work                                                               
REPRESENTATIVE STEPOVICH  opined that the  spirit of the  bill is                                                               
still  maintained in  Version U.    He surmised  that the  Native                                                               
Village of Minto  has no intention of ever  transferring the land                                                               
in the future.                                                                                                                  
SENATOR LINCOLN expressed concern that  changing the bill at this                                                               
late date  could cause it  to fail simply because  there wouldn't                                                               
be time  for concurrence.   She  opined that  Version U  does not                                                               
guarantee  the state  any more  protection than  what is  in CSSB                                                               
132(RES).   She  agreed  with Representative  Stepovich that  the                                                               
Native  Village  of  Minto  will  not  be  selling  or  otherwise                                                               
conveying the land described in the bill.                                                                                       
REPRESENTATIVE HEINZE called the question.                                                                                      
Number 2312                                                                                                                     
A  roll call  vote  was taken.    Representatives Gatto,  Heinze,                                                               
Lynn,  Stepovich, Masek,  and  Dahlstrom voted  in  favor of  the                                                               
motion  to adopt  Version U  as  a work  draft.   Representatives                                                               
Guttenberg and Kerttula  voted against it.   Therefore, Version U                                                               
was before the committee by a vote of 6-2.                                                                                      
Number 2348                                                                                                                     
REPRESENTATIVE KERTTULA moved  to report the proposed  HCS for SB                                                               
132, Version 23-LS0578\U, Bullock,  5/6/04, out of committee with                                                               
individual recommendations and the accompanying fiscal note.                                                                    
Number 2351                                                                                                                     
CO-CHAIR DAHLSTROM objected for the purpose of discussion.                                                                      
REPRESENTATIVE  KERTTULA indicated  that  she'd like  to see  the                                                               
bill move on to House floor.                                                                                                    
Number 2369                                                                                                                     
CO-CHAIR  DAHLSTROM withdrew  her [objection]  and asked  whether                                                               
there were  any further objections.   There being none,  HCS CSSB                                                               
132(RES)  was   reported  from   the  House   Resources  Standing                                                               

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