Legislature(1995 - 1996)
12/04/1995 10:00 AM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT HOUSE AND SENATE JUDICIARY COMMITTEE
December 4, 1995
10:00 a.m.
Anchorage, Alaska
HOUSE MEMBERS PRESENT
Representative Brian Porter, Chairman (Via teleconference)
Representative Joe Green, Vice Chair
Representative Cynthia Toohey
Representative Al Vezey
HOUSE MEMBERS ABSENT
Representative Con Bunde
Representative Bettye Davis
Representative David Finkelstein
SENATE MEMBERS PRESENT
Senator Robin Taylor, Chairman (Via teleconference)
Senator Lyda Green, Vice Chair
SENATE MEMBERS ABSENT
Senator Mike Miller
Senator Johnny Ellis
Senator Al Adams
OTHER HOUSE MEMBERS PRESENT
Speaker Gail Phillips (Via teleconference)
OTHER SENATE MEMBERS PRESENT
Senator Rick Halford
Senator Georgianna Lincoln (Via teleconference)
COMMITTEE CALENDAR
Impact of Venetie Case to Tribal Status in Alaska
WITNESS REGISTER
BRUCE BOTELHO, Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Gave testimony and answered questions
GARY HARRISON, Chairman
Chickaloon Village and
Traditional Chief of the
Athabascan Nation
Box 1105
Chickaloon, Alaska 99674
Telephone: (907) 745-0707
POSITION STATEMENT: Gave testimony
CHARLES COLE, former Attorney General
406 Cushman Road
Fairbanks, Alaska 99701
Telephone: (907) 452-1124
POSITION STATEMENT: Gave testimony
ART SNOWDEN, Administrative Director
Alaska Court System
303 K Street
Anchorage, Alaska 99501
Telephone: (907) 264-0547
POSITION STATEMENT: Gave testimony
MATTHEW NICOLAI, President
Calista Corporation
601 West 5th Avenue
Anchorage, Alaska 99501
Telephone: (907) 279-5516
POSITION STATEMENT: Gave testimony
KARI BAZZY GARBER, representing
Garber & Bazzy
189 C Street, Suite 211
Anchorage, Alaska 99501
Telephone: (907) 258-2260
POSITION STATEMENT: Gave testimony
DORCAS STEIN, Executive Director
Native Village of Barrow
P.O. Box 1139
Barrow, Alaska 99723
Telephone: (907) 852-4411
POSITION STATEMENT: Gave testimony
GERALD HOPE, President
Tribal Council
Ketchikan Indian Corporation
429 Deermount Street
Ketchikan, Alaska 99901
Telephone: (907) 225-5158
POSITION STATEMENT: Gave testimony
GEORGE EDWARDSON, Vice President
Inupiat Community of the Arctic Slope
P.O. Box 934
Barrow, Alaska 99723
Telephone: (907) 852-3746
POSITION STATEMENT: Gave testimony
DICK BISHOP, Executive Director
Alaska Outdoor Council
1555 Gus's Grind
Fairbanks, Alaska 99709
Telephone: (907) 455-6151
POSITION STATEMENT: Gave testimony
MARY BISHOP
1555 Gus's Grind
Fairbanks, Alaska 99709
Telephone: (907) 455-6151
POSITION STATEMENT: Gave testimony
JACK SCHAEFER
P.O. Box 109
Point Hope, Alaska 99766
Telephone: (907) 368-2330
POSITION STATEMENT: Gave testimony
ACTION NARRATIVE
TAPE 95-62, SIDE B
Number 000
NOTE: Nothing recorded on the first side of the tape.
UNIDENTIFIED SPEAKER: Going on to the -- the list of powers that
are held by a tribal entity without regard to a land based Indian
country determination, would you go through the specific list of
what those powers are as they apply in Alaska -- or as they apply,
in your opinion, following recognition of these tribes in Alaska.
BRUCE BOTELHO, ATTORNEY GENERAL, DEPARTMENT OF LAW: Madam
Chairman, they would generally include, as I said....
SENATOR RICK HALFORD: Generally include....
CHAIRMAN LYDA GREEN: Excuse me, Attorney General, Senator Halford
would like the specific answer, not the general answer.
MR. BOTELHO: Madam Chairman, I'm not sure what the distinction is.
SENATOR HALFORD: Well, there are a number of specific acts.
Obviously, Public Law 280 -- it's -- it's, I think your opinion, it
doesn't apply. The Indian Child Welfare Act I think does apply, in
your opinion. But there are a number of other things, rather than
just the general statement that entities have a right to determine
their membership and deal with domestic relationships and I would
kind of like you to go through the specific list of what they --
what they are.
MR. BOTELHO: Madam Chairman, the answer to that is, I think,
already given. Those are the -- those are the powers. There are
specific acts of Congress that have already extended on an act-by-
act basis, tribal status to villages and there is a laundry list,
a fairly extensive laundry list - I do not have it in front of me,
but would be akin to the Indian Child Welfare Act, where the
specific powers are granted by Congress. The distinction here is
that a list itself indicates that quite apart from all the specific
federal acts that confer -- (indisc.) use the word try -- to
provide the opportunity for Alaskan villages to access specific
programs that for all purposes -- all federal purposes, these
tribes would (indisc.) establish a sufficient government-to-
government relationship with the federal government. So, I guess
the long and short of it is, I would be pleased Madam Chairman, to
submit a list of specific federal acts. I don't have them in hand.
I don't think that they are particularly relevant in the sense that
they pre-existed (indisc.) both the federal (indisc.) recognized
Indians Tribal (indisc.) Act of 1994 and our posture in this
litigation.
SENATOR HALFORD: Well, it would seem that if you were -- you were
taking an action that allowed something to occur, you would know
what -- what the result of your action was. And granted, the
listing is a federal function but, I mean, I would like to see
exactly what we're talking about. I think there are some conflicts
-- had there not been for example, do we not have a state Supreme
Court case that goes directly in contradiction to the Indian Child
Welfare Act just in the last couple of years.
MR. BOTELHO: Let me answer again, Madam Chairman. I think we have
a good sense of what this decision not to challenge means and what
the effect is and they are stated generally because that's exactly
what they are. With regard to specific acts of Congress that have
already denominated for the purposes of those respective acts that
Alaska villages are tribes, this position is entirely irrelevant
and I again submit that if this is of interest to members of the
committee, I will be delighted to submit that list to you. I don't
have it at hand. With regard to the powers of a tribe not
occupying Indian country, the areas are generally as I have
outlined. There is nothing more specific to say.
SENATOR HALFORD: I am kind of amazed that you don't have a list.
I -- I assume you expected to -- to deal with the legislature and
the people of Alaska in explaining the effect of your action and I
am amazed that you don't have -- really a presentation that says
these are the powers, these are why they are not a problem in your
opinion, and just the ability to do that. Because I think that's -
- that's an important consideration in your advocating the position
you're taking. I would hope that you would, possibly during the
lunch break or something, get somebody on your staff, or if you can
get them started now putting together a list so you can fax it to
us so we have it for this afternoon's consideration. Because I
think, you know, we get sucked into an after-the-fact consideration
and one of the things that I don't like about the way it happens is
because we generally -- I mean, or at least I'll speak for myself -
- all the things that -- that accrue as benefits in terms of tribal
powers, I have no objection to. All the things that accrue as
powers over people and allocation and these sorts of things, that's
where I think we have a constitutional obligation to all of our
citizens. If the federal government will provide medical care for
a group of our citizens, we should be very grateful and only wish
they would provide it for all of us. But by the same token, what
we are talking about is differences and I guess the Indian Child
Welfare Act and some of the cases that have come out of it have
really brought to -- to the forefront some very, very distinct
problems with equal protection. I mean, we have an obligation to
protect all of our citizens equal and the Indian Child Welfare Act
makes it hard to do that. And because most of it's worked very
well, you know, it hasn't been a problem. But when you expand it
and you put three or four or five different tribal entities in an
inter-family argument and then say that you have different rights
based on that, I think it's -- it's very dangerous. So, I would
hope you'd get a list to us as quickly as you can.
MR. BOTELHO: Madam Chairman, we -- we will endeavor to do that
over the noon hour and to the extent that Senator Halford is
referring or, you know, expressing concern about whether the state
is going to be involved in -- in jurisdictional disputes with
tribal entities, I think the answer is (indisc.) yes, and the
Indian Child Welfare Act is -- is probably a good example. It's
been in play long pre-dating this issue of the listing in the
state. The state has -- had conflicts with tribal entities over
placement of children. At the same time, we've also worked
agreements with several that I think have in more recent years,
proven that we are able to, at the state, work with tribal entities
towards the best interests of the child within -- within the terms
of the act. It doesn't mean that it's without dispute and we'll
continue to have conflicts.
CHAIRMAN GREEN: Representative Toohey.
REPRESENTATIVE CYNTHIA TOOHEY: Are you finished Senator?
SENATOR HALFORD: For now.
REPRESENTATIVE TOOHEY: Mr. Botelho, what happens if a -- if a
gentleman or a woman from Venetie comes to the city - let's say
kills somebody - whose -- whose laws are they breaking? Are they
breaking ours or are they breaking the tribal and who has
jurisdiction over those -- those members?
MR. BOTELHO: Madam Chairman, Alaska is known as a Public Law 280
state. That is that the federal government has granted Alaska
exclusive jurisdiction over federal matters in the state whether or
not occurring on Indian land.
REPRESENTATIVE TOOHEY: Thank you.
SENATOR HALFORD: Just a thought. Years ago under the, I think the
Sheffield Administration, Bob Price put together a manual of
basically precedents in Indian law in the rest of the country. I
wonder, I think the Attorney General's Office should still have
those and it might be very effective to get copies of that. He now
works for one of the corporations, I believe. I'm not sure that he
agrees with his old opinions, but this Attorney General doesn't
agree with his last year's opinion, so it's probably okay. But I
wonder if we could get a copy of that for every member of the
committee. Are you familiar with the manual I'm talking about.
MR. BOTELHO: Madam Chairman, if Senator Halford is referring to
the joint work that he and Don Mitchell put together, the answer is
yes.
SENATOR HALFORD: Could we....
MR. BOTELHO: If there's another document that's being referred
to, I'm not sure.
SENATOR HALFORD: Well, this was done -- it was during the
Sheffield Administration and there was actually a commission
appointed on....
MR. BOTELHO: Yes, this would be the report that I'm referring to
then.
SENATOR HALFORD: Ya. It's not the report, it's -- it's the
information background that explained the significance and it went
through things like 280 and what states were in and what states
were out and all the other powers that were in question.
MR. BOTELHO: That's the report I'm referring to.
SENATOR HALFORD: Ya, I -- I would appreciate it if you would make
that available to the -- to at least the members of this committee.
CHAIRMAN GREEN: Representative Green.
REPRESENTATIVE JOE GREEN: Thank you, Madam Chairman. Bruce, I
know I'm probably unrelentingly hammering on this concern that I
have about what happens in act two of this thing, but I'm wondering
also if you would mind answering a situation that as elected
officials we have an obligation to the Constitution of the state of
Alaska, and that if we either collectively or unilaterally give up
that which we are sworn to uphold, do we run the risk of perhaps
abrogating our -- our responsibility as elected officials of the
state. And, of course, I'm talking about the fact that this was
what, at least on the appearance, was a rather unilateral decision
by the Administration. Where do you go to the point of saying
that's enough and if I go beyond that, now I'm abrogating my sworn
responsibility to the state.
MR. BOTELHO: Madam Chairman, I think that's an issue that's
entrusted to each of us individually as we take our oaths of
office. But we're sworn to uphold both the Constitution of the
United States and the Constitution of the state of Alaska. Now the
Constitution of the United States is supreme. My judgment, given
the actions of the Congress last year in acknowledging itself, the
list -- the list process, our chances of prevailing on appeal were
virtually nil. (Indisc.) it clearly supports the decision by this
Administration, reached for other reasons, that this is the right
answer; that it is clearly fulfilling the oaths of office that this
Administration has undertaken. And that's not to say that others,
such as yourselves, who have taken the same oath could reach a
different conclusion.
REPRESENTATIVE GREEN: And I think that's the concern that I'm
expressing which has been expressed to me by others of the
legislature that by eliminating us, the decision that was made may
have -- I mean all of us are subject to error and maybe a better
decision might have been made had there been a little more dialogue
between the various branches of government. And so my concern then
is, and certainly you're far more legally trained than I am, but it
seems to me that when you make an oath that you take a certain
personal obligation that -- I think it transcends your own
individual interpretation of that oath. I think it's pretty plain
and I think you have a very strong obligation to stay with that
oath and I don't -- I disagree with you; certainly I don't stand on
legal ground but morally sir, I think you -- you don't have an
individual right. You have a right that's spelled out in that oath
you take.
CHAIRMAN GREEN: Senator Halford.
SENATOR HALFORD: Follow up. Was there a request made to Judge
Holland to reconsider his decision?
MR. BOTELHO: There was.
SENATOR HALFORD: Could we have faxed copies of that request to the
members of the committee for this afternoon's meeting as well?
MR. BOTELHO: Yes, we could.
REPRESENTATIVE GAIL PHILLIPS, SPEAKER OF THE HOUSE: Madam Speaker,
this is Representative Phillips. Would you have one of those faxed
to me, also.
CHAIRMAN GREEN: Yes, we will.
SENATOR HALFORD: Was there an appeal prepared that was then
dropped prior to the -- the decision not to pursue the case?
MR. BOTELHO: No, the appeal had not been sufficiently (indisc.)
because Judge Holland had not yet entered a final judgment.
SENATOR HALFORD: Is there a draft of an appeal plan?
MR. BOTELHO: Not that I recall. And I'm informed here no, there
was not.
SENATOR HALFORD: Thank you. Another topic.
CHAIRMAN GREEN: Yes, Senator Halford.
SENATOR HALFORD: What are the -- the cases where the state has
granted -- or agreed to immunity from lawsuit by entities claiming
sovereign immunity?
MR. BOTELHO: I can only recall two cases where the issue even
arises. One that the state was not involved in, and that was the
Nenana Fuel v. Venetie and the Stevens Village situation, where
the issue is even arisen in litigation.
SENATOR HALFORD: Well, what is the -- I mean are there any places
where the state recognizes any sovereign immunity to any quasi-
governmental entity?
MR. BOTELHO: Any quasi-governmental entity?
SENATOR HALFORD: Of a tribal nature or that would be included in
this list.
MR. BOTELHO: I can't recall any. I think that for the most part
where the state has, at least formally, the state has not
consistently but we have as a department urged departments of state
government that enter into agreements, grants, and the like to seek
a specific waiver of sovereign immunity as a condition of receiving
the grants.
SENATOR HALFORD: So it is -- it is still the opinion of the
Department of Law that there should be a specific waiver of
sovereign immunity in any case where any grant brings up the
question?
MR. BOTELHO: That has been the position we have taken. Whether
agencies have done so consistently, I think the answer is no, they
have not.
SENATOR HALFORD: So, where do we have sovereign immunity questions
outstanding, then? Or do we know?
MR. BOTELHO: We don't know; we don't administer programs. We have
advised agencies to seek such waivers when granting monies, and
those could range from Community & Regional Affairs, Education,
Health & Social Services, and the like. Many departments
administer such grants.
SENATOR HALFORD: Isn't there an administrative hierarchy that says
when the Department of Law comes down with a clear standard, it has
to be followed in a legal question.
MR. BOTELHO: I'd sure like to believe that, Senator.
SENATOR HALFORD: Well, I think -- I seem to come up with more
questions than answers, but -- but I'd kind of like to know where
the sovereign immunity questions are outstanding. And if there is
any correlation between that list and this list.
MR. BOTELHO: Well, Madam Chairman, the state is not currently
involved with any litigation, that I am aware of, involving
sovereign immunity.
UNIDENTIFIED SPEAKER: (Indisc.) the question?
SENATOR HALFORD: If we don't litigate and it's asserted, I
suppose surrender avoids the battle.
CHAIRMAN GREEN: Representative Vezey.
REPRESENTATIVE AL VEZEY: Thank you, Madam Chairman. Mr. Botelho,
I'd kind of like to go back and -- over some of the ground I -- I
started on earlier because I don't have an answer yet. You gave us
a definition for what a tribe was. Well, in the context that we're
talking about Alaska, what does it take to be a -- for lack of a
better word -- a member or a citizen of a tribe? What is the
definition?
MR. BOTELHO: Madam Chairman, I'm not sure I quite heard the
question. Is the question (indisc.) reiterate what is the
definition of a tribe?
REPRESENTATIVE VEZEY: No, you gave us the definition of a tribe
earlier this morning, but in the context of Alaska, what
constitutes a tribe -- what is the definition of a tribe -- how
does one become a member of a tribe. I mean, let's take for
instance 1 of the 226 villages that have been established by the
federal government and the state has concurred in, is Evansville -
Evansville Village. How does one become a member of that tribe?
What constitutes that tribe?
MR. BOTELHO: Well, this may be somewhat redundant, Madam Chairman,
but a tribe is what the federal government has decided is a tribe
and again, that could be accomplished in one of several ways. It
could be done by executive action, it can be done by Congressional
action, and it can be done by judicial determination. If it's done
by judicial determination, there is a common law test, which I went
through. The federal government, the Executive Branch, has had a
regulations process for groups who do not believe that (indisc.)
previously recognized to assert that they are in fact a tribe. In
Evansville, not otherwise being on the list, might use that
process; might also simply go to Congress and ask for an act, just
as Tlingit Haida Central Council did. And that determination is
conclusive in the eyes of the law.
REPRESENTATIVE VEZEY: If I may continue - I'm assuming that you're
-- you're through with your answer, Mr. Botelho. Okay, there -- I
know of no legal entity, such as Evansville Village. We refer to
villages in Alaska, in my opinion, it's for lack of a legal entity
name, but there is an entity, an Evansville Village Corporation
under the Alaska Native - ANCSA. What is the -- is there a
correlation between Evansville Village that the federal government
has recognized as a tribe and Evansville Village Corporation?
MR. BOTELHO: Not -- not according to the list. It may, in fact
have been a (indisc.) relationship and it's quite possible that
Evansville Village Corporation, Inc. would have appeared in the
1988 list. (Indisc.) don't know.
REPRESENTATIVE VEZEY: Okay, so you're -- you're -- if I understand
your testimony correct is, the members of these tribes have not
been established by law yet. Is that your testimony?
MR. BOTELHO: No, it is not, Madam Chairman. Memberships is
determined by the tribe, itself. Presumably, the tribe has already
made that determination in almost all cases. And I say that in
part, because the list is largely made up of villages listed in --
in ANCSA, itself.
REPRESENTATIVE VEZEY: Madam Chairman, I'm -- I'm a little
confused. It seems like I'm getting the answer that I don't know
what comes first, the chicken or the egg. You -- you really have
managed to confuse me. I mean, you say that this tribe already
exists, but it hasn't been defined -- I mean, if it already exists,
what is -- who does it consist of, what is it? Who are the people
that in Evansville Village, whoever that might be, that are going
to have the power to deal directly with the federal government, the
power to accept federal monies, and the power to adjudicate people
that that village has authority over, whoever that might be.
MR. BOTELHO: Madam Chairman, if we're talking about if Evansville
appears on the list, again I can take a moment to see whether it
does....
REPRESENTATIVE VEZEY: It -- it does, I assure you and I happened
to pick Evansville because I know most of the people that live
there but.
MR. BOTELHO: Then the question of who the federal government deals
with in Evansville is a matter between the federal government and -
- and the tribe called Evansville. I do not know whether it has an
IRA council, traditional council, or some other form of government.
REPRESENTATIVE VEZEY: Well, what if one of the people living in
the area, in Evansville, wants to be a member of the tribe and the
federal government says they can't be a member, I mean, what --
what -- where do we draw the line here.
MR. BOTELHO: Madam Chairman, the federal government will not
determine who is and is not a member of the tribe. The tribe will
make that determination and if a person wishes to challenge that
would have to do it first to the tribe.
REPRESENTATIVE VEZEY: Well okay, then who is this tribe? If we
haven't formed this tribe yet, but you say it already exists and it
will determine who is a member, where does this tribe come from?
Who does it include and who does it, more importantly, exclude?
MR. BOTELHO: Madam Chairman, I realize this is somewhat circular.
The list is a list of tribes which the federal government has
already determined, has a government-to-government relationship
with it. This is not a list of entities that (indisc.) into
existence as a result of the list.
REPRESENTATIVE VEZEY: Well, let me -- let me ask this then. Could
I buy my way into this tribe? Is membership for sale?
MR. BOTELHO: Madam Chairman, I think that would be a matter
between Representative Vezey and the tribe. I don't know the
answer because I do not know the basis on which they determine
membership.
REPRESENTATIVE VEZEY: Well okay, you don't know the basis on which
they determine membership so birthright or material possessions or
residency are not a requirement for being a member of a tribe.
MR. BOTELHO: Madam Chairman, I do not know with regard to
Evansville, what the basis of tribal membership is.
REPRESENTATIVE VEZEY: Madam Chairman, thank you. I won't belabor
that (indisc.). I do have -- I have a whole bunch more questions,
but I would like to ask one more at this time and that is, quite
frankly, I mean, nobody has convinced me that there's a lot of
logic into the establishment of these 226 new government entities
and they have been granted power, but they have been granted power
by the Secretary of the Interior, who does not have the power to
arbitrarily create these quasi-government entities. Now do not you
think that the fact that apparently, from everything that's said,
I can only assume that this has been arbitrarily, that that is a
violation of the law and the power of the Secretary of the
Interior? The fact that it is arbitrary is that not grounds to
contest the establishment of these government entities?
MR. BOTELHO: Madam Chairman, the difficulty is this. In 1994,
Congress specifically reviewed the 1993 list which we have
contested. (Indisc.) that no entity on the list may be removed,
except by act of Congress. The second aspect in the act made clear
that the Secretary of Interior had erred by failing to include in
the 1993 list the Tlingit and Haida Central Council. As one looks
at the committee report attached to the act, one is quite clear
that Congress specifically deliberated over the status of Alaska
tribal entities and made clear that this act was not to interfere
with the controversy in existence in Alaska, then and today, with
regard to the existence or nonexistence of Indian country. So
whatever our views, collectively or individually about the
arbitrariness of the Secretary of Interior's list, Congress has
expressly acknowledged it. The consequence of that is that there
has been (indisc.) no more than Congressional acquiescence in the
acts of the Secretary of the Interior.
CHAIRMAN GREEN: Representative Green.
REPRESENTATIVE GREEN: Thank you, Madam Chairman. Bruce, I mean
when you -- when you really stop and look back at this -- this
whole thing as was indicated by the former question, that we have
within the state of Alaska, as many tribes as essentially as there
are in the Lower 48 with a fraction of the population and those
could be confrontational to say the least, certainly they could
argue with state law, doesn't this create a morass of problems as
opposed to a more orderly form of government. And the concern I
have is that wouldn't it be better if -- if the Department of the
Interior can arbitrarily decide to not follow its procedures for
establishing what constitutes a tribe, wouldn't we be better off as
a state with so many of these, to force some litigation to
determine whether or not it would be better in the state's ultimate
interest to find out what constitutes a tribe rather than just an
arbitrary decision by the Secretary of the Interior. And wouldn't
it also perhaps be better for the state down the road, because you
and I both may disagree on whether or not there will be any further
slippery slide that I've referred to earlier, we can almost be sure
that there is going to be some litigation at some time, that it
would be better than to have just a single judge, and no disrespect
to Judge Holland, but perhaps it would be better to have an
appellate court where you have more than one judge to determine
something so important to a single state. I mean, the consequences
of this what may appear to be just a rather nominal act in
Washington for this way off refrigerator called Alaska, may not be
of much concern to them, but it's of vital concern to us and it
seems to me we need to take appropriate steps to stop that rather
than to acquiesce.
MR. BOTELHO: Madam Chairman, Representative Green raises
(indisc.). There is no doubt that there will be a great deal of
work involved in sorting out over time, what relationship the state
will have to these entities. I know it's of no surprise that we've
seen several local governments in the state deactivate -
deincorporate as it were - disincorporate - at state chartered
local governments in favor of traditional councils and the like to
govern, and that's something we intend to sort through and we're
going to have to sort through and would have had to sort through
regardless of this particular decision. The decision I'm referring
to is the decision of this Administration not to pursue the appeal,
not the decision of Judge Holland per se, and it gets back to the
fact that the Governor - this Administration has chosen not to have
a battle over this issue which (indisc.) counterproductive and
which again to an extent has been validated by Judge Holland's
decision but was not the basis for the conclusion that the state
should try to develop a better, happier relationship with the
villages throughout Alaska. I guess I want to again re-emphasize
that this is not a judge-driven policy call; it is one that is
committed to the Governor, and his Administration has made that
call and (end of tape).
TAPE 95-63, SIDE A
Number 000
MR. BOTELHO: ...Administration before the Hickel Administration
and beyond.
SENATOR ROBIN TAYLOR: Madam Chair.
CHAIRMAN GREEN: Yes.
SENATOR TAYLOR: I think we all understand that the (indisc.)
nature of politics and the decisions that may often be made for
political purposes. The part that I think of the Attorney
General's testimony that concerns me was Senator Halford's question
when he said, "(Indisc.) that the Attorney General had dramatically
changed his legal opinion which appears to be different today from
what it was only a short time ago." I think the question is one of
legal interpretation that he might best render a decision for a
(indisc.) or render an opinion on and that is has your opinion
legally changed? We all understand an election took place, but how
has your legal opinion changed?
MR. BOTELHO: Madam Chairman, with regard to Indian country, that
position has remained quite consistent and with regard to the
question of the challenge to tribal status, based on change in
federal law this last year my judgment is that we would lose on
appeal the question of tribal status. I think prior to
congressional action last year, our chances of prevailing on the
question of tribal status and the listing was a much, much more
viable case.
CHAIRMAN GREEN: Senator Halford.
SENATOR HALFORD: Just a follow up on that. Did you or the state
have any input or interaction on that congressional action?
MR. BOTELHO: I'm aware of no involvement directly by the
Governor's Office - Washington, D.C. Office - on the list and my
office was not involved.
SENATOR HALFORD: You said no involvement directly, is an
interesting qualifier. Did...
MR. BOTELHO: Let me be specific. To my knowledge, no person in my
department was involved at all in the congressional action and I'm
unaware of any activity by this Administration with regard to that
legislation.
SENATOR HALFORD: But the action was just the next year's list, was
it not? I mean the list comes out every year does it not?
MR. BOTELHO: The list, Madam Chairman, is now required to come out
every year. That is a result of action taken by Congress in 1994.
Prior to that time, there was a five-year gap between the 1988 and
93 listing.
SENATOR HALFORD: But wasn't that the whole substance of the change
that there had to be a list every year?
MR. BOTELHO: Madam Chairman, the answer is no. I'll reiterate
that Congress expressly considered the list of 93, found that the
list was wanting with respect to Alaska, because of the (indisc.)
between 1988 and 1993 of the Tlingit and Haida Central Council and
the act also specifically provided that the Secretary may not
remove an entity on the list, that only Congress may do so.
CHAIRMAN GREEN: One of the things Bruce -- this is Lyda -- that I
would kind of like to have a description of is once the tribal
status of a village or a group is implemented, what would be the
practical difference in viewing that village and the way it
operates the day after tribal status and the day before tribal
status. What functions would they literally be taking over and how
would their relationship with state and other local officials
change?
MR. BOTELHO: Madam Chairman, I think for the most part we haven't
noticed and we didn't expect to see any -- any changes. Where it
is most likely to arise is the situation, which I think both
Senator Halford and Representative Vezey have alluded to, and
that's going to be in the context of the Indian Child Welfare Act;
perhaps in terms of the state formally registering birth
certificates or adoption orders by tribes. The state has, in fact
accommodated that issue for the most (indisc.) Indian Child Welfare
related actions for the last several years. There are a lot of
tribal adoptions that have taken place without the involvement of
the state. That perhaps has been an action of acquiescence in
part. My guess is that one could expect to see more formal
relationships develop. We have agreements with several communities
dealing with ICWA - the Indian Child Welfare Act. I suspect we'll
see more of those in terms of how (indisc.) state social workers
will relate with tribal social workers. We'll have the issue of
how to deal with registrations of domestic relations acts.
CHAIRMAN GREEN: Senator Halford.
SENATOR HALFORD: Aren't you also going to have a new issue in the
tribal set aside provisions of the Welfare Reform Act that's just
coming out?
MR. BOTELHO: That's clearly an issue right now pending in
Congress. I don't think it's at all affected by this decision. I
think most of the discussions have focused on the twelve regional
nonprofits who have been providing those social benefits, do not
see it related directly to this position at all.
CHAIRMAN GREEN: Do we see in the future then as -- as you referred
to it awhile ago is that you acquiesced and certain things came
forward and the state did not oppose it; therefore, it was
implemented. As we have granted then (indisc.) adoption and other
what are called sort of soft legal issues, does that naturally then
begin to spread like ink on the sponge and just be absorbed as part
of the function without the state further opposing any taking of
those types of powers.
MR. BOTELHO: Madam Chairman, I think if I understood your question
- because it broke up here - my understanding is concern about
creeping expansion of authority?
CHAIRMAN GREEN: That would -- that's fair.
MR. BOTELHO: It's breaking up here in Juneau. All of us are
perplexed - the technician is out of the room.
CHAIRMAN GREEN: I'm concerned that the precedent is set with the
even limited definition of what tribal status affords to a tribe to
govern. Is that going to continue to expand?
MR. BOTELHO: Madam Chairman, the basis for what a tribe without
land may do is pre-circumscribed; it's also, I think, fairly --
fairly static. That does not mean that Congress could not decide
to expand the powers available to a tribe, as such. There is no
way of predicting that it would not do that. I'm not aware of any
legislation in that area, but it is an area of great activity and
perhaps the most dramatic example in the last several years was the
creation of the Indian Gaming Regulatory Act, (indisc.) where
Congress has specifically expanded a power towards tribes. But
again in that particular context, it requires a land base. So, I
guess the long and short of it is, I can't give you the assurance,
Madam Chairman, that there won't be additional powers, but they are
powers that, in my view, are almost exclusively powers that could
only be extended by Congress and not by Executive or Judicial
(indisc.).
Number 109
REPRESENTATIVE BRIAN PORTER: Madam Chairman.
CHAIRMAN GREEN: Yes, Representative Porter.
REPRESENTATIVE PORTER: Bruce, at a State Affairs Committee hearing
earlier this summer on another issue the situation in Tyonek was
described by people on both sides of their issues and (indisc.)
these concerns are the basis for the suit you mentioned that
involves Tyonek or not, but if I understood their situation they
have - the village - whatever entity they have - has decreed that
non-village members give 24 hours notice before entering the
village geographic dimensions that are defined I guess by their
village corporation, and may be rejected -- that 24-hour notice can
be then acted on and their (indisc.) could be disallowed entry into
that village. (Indisc.) questions. One, I'm certainly assuming
and would like your agreement or not, that what we're doing here by
not filing this appeal, would not allow that to happen; and two,
that they can't do that anyway. Am I off base on that?
MR. BOTELHO: Madam Chairman, Representative Porter, you are not.
The Tyonek situation is the facts which have bounced between the
district court, the Ninth Circuit I think twice, and once to the
U.S. Supreme Court, are perhaps even more egregious - I won't say
perhaps, I think they are, at controversy initially was passage of
Tribal Ordinance No. 4 is my recollection, which prohibited members
of the tribe from renting property to non-tribal members; in
particular, two sets of school teachers, or two families, and in
essence evicting them from -- from the community on the basis of
not only tribal status, but the existence of Indian country and
that matter is currently pending in front of Judge Holland on
remand with the court - Ninth Circuit directed that Judge Holland
make specific findings with regard to the existence of Indian
country. And that the case has been actually ongoing for several
years and again, my guess is that his decision when it issues, will
parallel those that he reached in the Venetie and Kluti Kaah cases.
REPRESENTATIVE PORTER: Thank you. I hope that is the case.
CHAIRMAN GREEN: Representative Green.
Number 152
REPRESENTATIVE GREEN: Thank you, Madam Chairman. Bruce, when I
asked you earlier about the possibility of going beyond just the
local jurisdiction and getting into the possibility of Indian
country, you said no, that in fact, there would be a line in the
sand - a barrier would be put up, not to worry, and yet I think I
heard you say to Senator Green's question that there was no
guarantee that there wouldn't be the sponge effect of creeping
jurisdiction. My question now is if that's possibly a not as
strong a wall as we thought, what would the state's position be if
we were to get a bad decision in the Ninth Circuit Court on the
issue of Indian country. Would the state acquiesce again, or would
they come to the -- come to the table?
MR. BOTELHO: Madam Chairman, were the state to not prevail on the
question of Indian country in the Ninth Circuit, we would take
appeal to the U.S. Supreme Court.
CHAIRMAN GREEN: Pardon me. Senator Taylor, did you have
something?
SENATOR TAYLOR: Pardon?
CHAIRMAN GREEN: Did you have a question?
SENATOR TAYLOR: No -- no.
CHAIRMAN GREEN: Okay, thank you. As previously announced, we'll
be adjourning...
UNIDENTIFIED SPEAKER: Madam Chairman.
CHAIRMAN GREEN: Just a moment. Gary, did you have -- you have one
-- about 30 seconds. Come to the table.
Number 172
GARY HARRISON, Chairman, Chickaloon Village and Traditional Chief
of the Athabascan Nation: Yes, Ma'am. My name is Gary Harrison;
I'm chairman of Chickaloon Village and I'm also been made a
traditional chief of the Athabascan Nation and pretty hard to do in
30 minutes what the 5-minute limit said. But first of all, many
people need to understand the treaties which have been made in
regards to Alaska. (Indisc.) was one of the first treaties that
were made and these treaties are supposed to be the highest law of
the land, as been pointed out previously. And in this particular
treaty it was pointed out prior that -- that Russia did not own any
land so this treaty was not a land sale. And it also made mention
to the fact that they were supposed to protect the Natives, the
indigenous inhabitants, from both foreign and domestic abuses. I'd
also like to point out another treaty which has been made and it's
the U.N. Treaty and in it, it has Article 73. And in it, the
United States and its people were supposed to uphold that they were
supposed to bring the inhabitants of the territories at that time
which Alaska was one, up to self-government in regards to their
social, political and economic which is only part of what it is,
but they took this as a sacred trust. And in it they were supposed
to also protect us from foreign and domestic abuses. What the
state of Alaska did when they had a prerequisite before they held
the vote in 1958 to write and speak English basically was not
upholding these rights which they took a sacred trust to uphold.
And I understand most of you people who have taken a sacred oath to
uphold these treaties. I also wanted to point out that in there,
there is Article 12, Section 12 of this Constitution of the state
of Alaska, which everyone has taken an oath to uphold that's
supposed to be at this hearing -- these House and Senate
representatives. I also wanted to point out that the Land Claims
Act, which was not a jurisdictional act -- 2 F of that shows that.
Also, it's been noted that this act is nothing more than the
Hawaiian Homes Act has been over in Hawaii and Hawaii now has a
bill in Congress which recognizes their homelands have been usurped
by many people, the state of Hawaii being one of them, and it
hasn't been done properly. Just like here in Alaska, the lands and
the jurisdiction of the indigenous population has not been legally
terminated, which I can point out and probably will have to in
courts of law. Allotments -- Native allotments have been
determined as Indian country in the Sakinaw (sp) case, which was a
Supreme Court case, which now they're saying applies to the tribal
governments in Alaska. In 1982, there was a Tribal Tax Status Act
passed which gave the tribes throughout the United States, the
ability to lay and collect taxes. Most people say, well they don't
own any land. Well, I want to know what government around here
lays taxes on itself. They do not. They lay taxes on other
people. The borough doesn't tax itself, it taxes the people in the
borough. The state does not tax itself, it taxes the people in the
state. You want to talk about equal protection. Well, I'd like to
see a little bit of the equal protection. I'd like to see a lot of
the Natives' rights upheld here. I feel like I broke into a Ku
Klux Klan meeting here. I'm not sure what the heck's going on
here, but many people here do not understand the sacred trust and
rights which they have taken upon themselves and what I've heard
here today is not it. They're only talking about how they can
suppress these people, which they've taken a sacred oath to protect
-- this is domestic abuse.
Number 223
CHAIRMAN GREEN: Gary, if you could give the rest of your testimony
in paper, I will see that it gets in to the record.
MR. HARRISON: I'm almost done here, Ma'am. Two-eighty -- some
people say a 280 state, but they forget to read the retro-session
of jurisdiction in the back of it. It says if they have a
disclaimer in their constitution, such as Article 12, Section 12
then they do not get jurisdiction -- that retro (indisc.) away from
them. Two eighty four says since then they must get tribal
consent. There has never been any tribal consent given in the
state of Alaska -- not for the land claims act, not for the state
of Alaska, not for anything -- there's never been any tribal
consent. You want to talk about who the membership is. The Santa
Clara Pueblo (sp) suit is a supreme court decision which happens to
say that the tribes make up who their membership are and if many
people would just take a quick judicial course, they might have a
lot of these questions answered for them instead of beating it
about here like many people that don't know nothing. And the state
has assumed jurisdiction and it needs to have an education so that
people like me don't feel like we're in a prejudiced place here,
because this -- we are the first people of the land, we've welcomed
you people, we've helped you build your homes, and now the only
thing we get from you is abuse. Thank you.
CHAIRMAN GREEN: Thank you, Gary.
SPEAKER PHILLIPS: Madam Chairman.
CHAIRMAN GREEN: Yes, Speaker Phillips.
SPEAKER PHILLIPS: This is Speaker Phillips. Would you please
announce for myself and other members on teleconference, what time
you (indisc.) you reconvene.
CHAIRMAN GREEN: We will be reconvening in 1 hour and 10 minutes.
It will be 1:15 here.
SPEAKER PHILLIPS: Thank you very much.
Number 245
CHAIRMAN GREEN: This meeting is recessed until 1:15 p.m.
Number 251
CHAIRMAN GREEN: Okay, Senator Taylor.
UNIDENTIFIED SPEAKER: Juneau is on-line.
CHAIRMAN GREEN: Senator Taylor, are you there?
UNIDENTIFIED SPEAKER: Point Hope is on-line.
CHAIRMAN GREEN: Good.
UNIDENTIFIED SPEAKER: Kotzebue is on-line.
SPEAKER PHILLIPS: Speaker Phillips is on-line.
CHAIRMAN GREEN: Okay. Welcome.
UNIDENTIFIED SPEAKER: Barrow LIO is on-line.
CHAIRMAN GREEN: Thank you.
UNIDENTIFIED SPEAKER: Fort Yukon is on the line.
CHAIRMAN GREEN: Thank you.
SENATOR GEORGIANNA LINCOLN: Senator Lincoln is on the line.
CHAIRMAN GREEN: Welcome, Senator Lincoln.
UNIDENTIFIED SPEAKER: Ketchikan (indisc.) on-line.
CHAIRMAN GREEN: Thank you. We'll go ahead...
UNIDENTIFIED SPEAKER: Point Hope's here, also.
CHAIRMAN GREEN: Thank you. Okay, we'll go ahead and begin the
afternoon session by asking a guest in our -- the audience, former
attorney general, Charlie Cole is here, who has agreed to give some
historical perspective on the issue of tribal status and various
other things that may affect this and to help us in our information
gathering. Mr. Cole, if you would please come forward.
Number 270
CHARLES COLE, former Attorney General, Department of Law: Do I
have to be sworn?
CHAIRMAN GREEN: Just for the record, give your name.
MR. COLE: My name is Charles Cole. I served as attorney general
for the state of Alaska from December 1990 to early January 1993.
I had some involvement in decisions with respect to tribal status
taken during the Hickel Administration, although not during the
last 10 or 11 months of Governor Hickel's term. At the outset as
Judge Holland says in his decision in the Venetie case, the issue
of tribal status in Alaska has nagged, as he put it, both the
state, Indian groups, courts for years. And essentially what Judge
Holland said, with respect to tribal status in general, in that
decision was that the action of the Department of the Interior in
promulgating a list of groups of Natives in Alaska to be recognized
as tribes was a valid exercise of executive power. The issue arose
really in an adoption case and the issue was whether the state was
required to recognize an adoption done by the group to -- which
concluded that it had status as a tribe. And in the litigation,
the state with respect to the exercise of powers by the Secretary
of the Interior in this regard, contended 1) that the Secretary did
not have statutory authority to recognize tribes in the fashion in
which he did; and secondly, that in the process of recognizing
tribes, the Secretary was required to follow administrative
procedures for the recognition of tribes which had been adopted
validly by the Department of the Interior. In somewhat of a novel
rule of law, the court, acting through Chief Judge Holland, said
that if an executive officer acts illegally without exercising
valid powers long enough, that that becomes evidence that the
executive officer, in fact, holds those powers. I want to clarify
that a little bit, because the United States Supreme Court
decision in which -- to which Judge Holland makes reference says
that that is entitled to weight in determining whether the
executive officer in fact has those powers. Case did not say that
if you act illegally long enough you will eventually acquire the
power to act. And in this context, Judge Holland said look, the
Secretary has exercised the power to recognize tribes and Congress
has never called the Secretary up short and said look, you really
don't have those powers. And they made reference to the exercise
of the powers by the President of the United States in issuing
Executive Orders which Congress really accepts and may not be any
clearcut authority for the President of the United States to issue
a lot of those Executive Orders, which historically over the years,
the Presidents of the United States have exercised. So, that's
what Judge Holland said in that regard. And Judge Holland also
said that the regulations for procedures to be followed by the
Secretary of the Interior -- regulations adopted by the Secretary
of the Interior need not provide the exclusive means for the
regulation of -- or for the recognition of Native tribes, and found
that the recognition of tribes issued by the Secretary of the
Interior through Ada Deer, 1993 was valid and henceforth the groups
which that proclamation recognized as tribes are, in fact, tribes
recognized by the government of the United States. And Secretary -
- I mean and Attorney General Botelho was correct in that it is
within the power, and essentially the exclusive power of the United
States to recognize or not to recognize tribes - states do not have
that power. And of course, he's also correct in saying that the
recognition of tribes by the United States may be done by
legislative action, may be done by executive action as was done
here, or it may be done by judicial action in which a court finds
that the various tests established at common law for the
recognition of tribes have been fulfilled. So, tribes may be
recognized by the United States by those three means. And so here
the recognition of tribes has been done by executive action and
that action has been approved judicially by Judge Holland in two
decisions which he has rendered within essentially the past year.
MR. COLE: Let me just say a word about the motion for
reconsideration which was the galvanizing point for, you might say,
this hearing. Following issuance of Judge Holland's decision, the
state moved for reconsideration; in other words that's a term which
is used by lawyers in the judicial process, for asking the judge to
take another look at what you've done, we think you've overlooked
some controlling issue of law, or have misapplied it, or have
overlooked some significant relevant facts. And so, the state did
that in this case and it said in a motion for consideration filed
before Judge Holland on October 20, look the court overlooked the
material rule of law that federal agencies are required to comply
with their own legislative regulations in the exercise of their
delegated powers. You know, it says look, you know, you set up
after an elaborate process, a procedure published in the federal
register, validly adopted regulations for the recognition of tribes
throughout the United States. And you have to follow those. You
know, it sort of makes a little sense that if the legislature, for
example, sets up legislative rules to conduct certain hearings,
proceedings, one expects that they would be followed. Otherwise,
I mean, you know, why go through this elaborate process of adopting
regulations to be followed. And you know, it makes a lot of sense
because the regulations are sound and they provide, you know, for
a fact finding process, so that when the whole proceeding or
process is followed, you come presumably to a rational -- rational
result. But here that wasn't followed. There was apparently, so
far as I can see but I haven't studied this issue fully, that the
recognition of tribes largely came from ANILCA and by and large if
you look at what's designated to be a tribe or found to be a tribe
in the Secretary's 1993 proclamation or determination, there are
these various groups which were recognized in ANILCA. That may or
may not, depending on how one looks at it, sort of skirted some of
the fundamental inquiries which are prescribed at common law for
the determination of what is a tribe. But anyway, that's been done
and it -- and it's been approved.
Number 433
MR. COLE: Now getting back to the motion for reconsideration filed
by the state in Venetie case, the Attorney General testified that
the motion for reconsideration was withdrawn and the state is now
saying well, we don't want the court to act on this motion for
reconsideration; we accept Judge Holland's decision on the validity
of the procedures followed by the Secretary of the Interior in
finding these various entities or groups to be tribes. I think
it's important for the legislative group here today to bear in mind
that the Attorney General made it quite explicit that that decision
was not a litigation-driven decision. He had his own views on one
of the issues there which I will mention in just a moment, but what
he really said is -- is that the fundamental impetus for the
decision to accept the opinion of Judge Holland was, you might say
in the broad sense, political - it isn't a legal decision. It's an
effort to see if we can have a new dawning of relationships between
the state of Alaska and various groups and divisions in rural
Alaska - the Native groups - that's what he said, I think broadly.
And that's a policy decision made by, as he said, the
Administration. Because if one looked at this opinion of Judge
Holland's strictly from a legal standpoint, one certainly could
question it. And I think it would be accurate to say that Judge
Holland himself, found no clear charted course that he was to
follow. This is new ground in many ways and so was the legal
proposition. If the decision were legally-driven, it would say, I
imagine, that you would want Judge Holland to act on the motion for
reconsideration, that you would probably rather summarily deny
because I mean, he's considered that issue at length I'm certain,
before he rendered his 50-page decision. But you would also want
to take Judge Holland's decision to the Court of Appeals for the
Ninth Circuit or such further appellate court as you may be able to
persuade to accept jurisdiction, and have them lay these issues to
rest because these are fundamental issues - legal issues - to the
extent they're litigation-driven to the state of Alaska and
although Judge Holland is a careful judge, does a fine job on the
bench, obviously one looks to the decisions of appellate courts to
finally resolved issues of this nature. I mean, and the state, I
think historically has demonstrated that as a litigation policy.
I think one comment on the Attorney General's testimony is that
Congress in 1994, so far as I can determine in somewhat cursory
fashion, did not explicitly say we find that the action of the
Secretary in designating these 224 perhaps at that time, entities
as tribes is valid and affirmed that, I don't think Congress did
that. I'm not certain of that, but I don't think so. I think that
this Judge Holland found, I think, that (indisc.) perhaps one
implication of what Congress did when it added two more entities as
tribes to "the list" but I strongly suspect that few, if any, of
those members of Congress who voted on that act viewed it as a
validation of the earlier list. You may want to look into that a
little bit. The Attorney General may be right on -- on that
analysis, but certainly it is not explicit. Let me say a couple
words for your guidance, should you see fit. This recognition of
tribes in Alaska promulgated by the Department of the Interior has
consequences which are more than simply saying well, these are
tribes and these are tribes. But as the Preamble to -- to this act
says, this is a recognition that these entities are -- are tribes
for all purposes, not just tribes for the purpose of receiving
health, monies, and services under various appropriations, or
narrowly defined statutes, or terms, or purposes, but this is a
recognition of these entities as tribes for all purposes and that -
- that they should have the same rights and privileges and
immunities as tribes in the Lower 48 - Outside - as we call it and
that they become sovereigns -- sovereigns. As Judge Holland says
in his opinion, an Indian tribe is a sovereign entity. It's the
first sentence of his opinion, you know in the Venetie case, and so
I think it's important for the legislature in understanding what
has transpired, that we now have 226, according to the testimony
of the Attorney General, sovereigns in the state of Alaska that the
state of Alaska and all its governmental capacities are required to
deal with; having the same privileges and immunities as sovereigns,
to the extent that the tribes formally recognized by the United
States and the Lower 48 have. And you will want to look into that.
The Attorney General has offered to furnish you with -- with the
other various statutes in which the recognition of tribes in Alaska
has application. And there must be an immensity of federal
statutes dealing with tribes. I -- I have recalled that under the
Clean Water Act some of these most recent congressional statutes
dealing with pollution, for example, Section 1377, Policy, says
"nothing in this section shall be construed to affect the
application of 1251(g) of this title and all provisions of this
section shall be carried out in accordance with Section 1251(g) of
this Title. Indian tribes shall be treated as states for the
purposes of Section 1251(g) of this Title." And so, I'm not going
to deal with 1251(g) here, but I'm -- I'm simply saying that -- I
haven't read this whole statute so I'm not going to go into it in
detail, other than to say that's an illustration of the existence
of federal statutes which refer to Indian tribes here under this
statute confers on them all the powers of states under the act, and
I don't know how far that goes, but it's there. The state, of
course, and I'm confident that Attorney General Botelho will look
into that type of thing and advise you of that type of effect of --
of the existence of Indian tribes in Alaska. I think it's clear
also that you should be aware of, that these sovereigns likely have
sovereign immunity from suit and -- by the state, and (end of tape)
TAPE 95-63, SIDE B
Number 000
MR. COLE: ... and I'm sure be glad to provide it to you. The
Department of Law's views on the extent of the privileges and
immunities of Indian tribes. Let me say one other quick word. For
example, and I'll -- the Attorney General has made it clear that
the state will resist the designation of lands within the borders
of the state of Alaska's Indian country. But the type of things
that become -- that you'll want to look into is for example, - and
I don't know the answers to these things - but it's clear that --
that this in certain areas, as Judge Holland has held, that -- that
the state is required to give full faith and credit to these
determinations of Indian tribes in matters in which they have the
power to act. Adoption is a clear example. I'm not certain about
marriage - I'm not certain divorce -- you'll want to look into
that. Is Judge Snowden here? Oh, there he is. Well, he would
want to see if Section 93 of the Civil Rules are applicable to
determining the amount of child support out there.
UNIDENTIFIED SPEAKER: Thank you, please....
MR. COLE: Anyway, there. I've tried to give you a balanced
summary of what's happened to this point and what some of the
consequences are that the Attorney General will advise you of. If
you had any broad questions of similar vein, I would be glad to try
to respond to them.
UNIDENTIFIED SPEAKER: Thank you very much, Charlie.
CHAIRMAN GREEN: Any questions? Thank you very much, Mr. Cole.
Senator Halford.
SENATOR HALFORD: Since Art Snowden is here, he may be able to tell
us what actually happens in the Indian Child Welfare Act in terms
of concurrent jurisdiction, what the deference requirements of the
state are with regard to tribal adoptions, et cetera, cause that's
an area that, you know, in some cases it works very well. I had
thought that the -- that the cases that the state referred to that
were all handled successfully through that, were cases where there
wasn't any real complaint or appeal to the state system. But I
know the state has had an appeal and a Supreme Court decision in
the last year or so on one of those cases. Tell us how it works.
Number 035
ART SNOWDEN, Administrative Director, Alaska Court System: Mr.
Chairman -- Madam Chairman, for the record, I'm Art Snowden,
Administrative Director of the Court System. I can't give you a
specific answer on a case by case. The Indian Child Welfare Act as
you know, does involve the adoption of Native children and our
courts are required to follow it by federal law - we do. There are
best interest qualifications also that came up. They are ruled on
by our courts and there are appeals, based on factual situations,
not on applicable situations. So there's not a lot of brightness
I can throw on -- on to the table with regard to that specific
area. I would state however, that when we are talking about tribal
courts, Native law, so on and so forth, our Constitution says
there'll be a unified court system, and we recognize that. But I
would recognize that if we are looking at tribal court, I think
some of the things that the Attorney General seems to be saying is
things that the court system's been doing for years. I don't want
you to think that a lot of this is new. We have looked into tribal
mediation for many years, Native dispute panels - but that's the
same thing we do in the cities when we allow mediation and
arbitration. So I see no difference there. The criminal side --
the criminal side's a whole different area. But I would note that
you've heard about Youth Court and what Youth Court is, is not a
court system program, it's a prosecutorial program - it's called
prosecutorial deferral. They defer prosecution to allow people to
go in to a court of their peers and try to get solutions. If they
did that on the criminal side, that's a deferred prosecution. That
has nothing to do with court systems. The only time we would get
involved is if one of those people that went to one of these
programs come in and said I've been denied equal protection. And
then the questions, such as Senator Halford has been raising and
others this morning, would arise. But I would point out that many
of the things that are happening today are the same things
happening in the cities under different tags. So, I'm not overly
concerned. In fact, if we can remove some of the burden from the
court system, I'd be delighted. But I think that the real issue in
the long run is going to be the criminal law and I don't have an
answer for you. And there will be rulings by federal courts and
probably state courts and there have been as Senator Halford has
noted in many areas that -- that touch upon these areas. That
would be the only thing I could offer this panel. I'm trying to
learn as much as you are. I've attended this hearing because I --
I would, as director of the court system, I'm trying to get a
better feel for what the Attorney General's policy will do and how
it will affect us and my conversations with the Attorney General
thus far have been candid and frank, yet cordial. And everything
I see that they're doing is within the purview of the Executive
Branch and falls either under mediation, arbitration, or
prosecutorial deferral.
Number 064
CHAIRMAN GREEN: Rick.
SENATOR HALFORD: I would just ask so -- because I can't remember
the details I read something about it -- I would like a copy of the
Supreme Court case that....
UNIDENTIFIED SPEAKER: Can you state the name of the person that's
talking?
CHAIRMAN GREEN: Senator Halford is speaking right now.
UNIDENTIFIED SPEAKER: Thank you.
SENATOR HALFORD: ...that went against the determination under the
Indian Child Welfare Act.
MR. SNOWDEN: Do you think it's the Palmer case you're talking
about, Senator?
SENATOR HALFORD: I'm not -- I think it was a Mat Valley case.
MR. SNOWDEN: I think I remember the one. I will look for it....
SENATOR HALFORD: ....Supreme Court and the Supreme Court upheld
the....
MR. SNOWDEN: Non-Native parent?
SENATOR HALFORD: Right. Against the tribal determination. And
wasn't -- that was the end of the case and I don't know....
MR. SNOWDEN: I will find the opinion and I will get it to this
committee for distribution.
REPRESENTATIVE EILEEN MACLEAN: I have a question to ask.
CHAIRMAN GREEN: Yes, who's speaking?
REPRESENTATIVE MACLEAN: And who is the chairman, or chair person?
CHAIRMAN GREEN: Senator Green.
REPRESENTATIVE MACLEAN: Lyda Green?
CHAIRMAN GREEN: Yes.
Number 078
REPRESENTATIVE MACLEAN: Senator Green, this is Representative
MacLean. I've been listening to your conversation and listening to
the testimony and I would like to say Merry Christmas to Charlie
Cole, Art Snowden and Bruce Botelho, but I would not say Merry
Christmas to any of you guys. But in the meantime, let's get to
the discussion. I would like to know why you're having this
meeting without any Native legislators involved. This is a
Judiciary meeting concerning Native people of Alaska and you don't
even have any Native people of Alaska in that committee.
CHAIRMAN GREEN: Senator Adams is on...
REPRESENTATIVE MACLEAN: Can you answer that question?
CHAIRMAN GREEN: Senator Adams has been on-line from...
REPRESENTATIVE MACLEAN: So am I -- so am I.
CHAIRMAN GREEN: Thank you. I really don't know...
UNIDENTIFIED SPEAKER: When will the villages be able to speak? It
seems like you guys have your own agenda, your own session, you're
not even asking villages to make a comment.
CHAIRMAN GREEN: As I noted earlier, we won't be having any public
testimony until about 3 o'clock and we're trying to get through our
questioning of Attorney....
UNIDENTIFIED SPEAKER: Okay.
CHAIRMAN GREEN: ...General Botelho and the number of participants
here in the room, and the questions that have been raised here have
taken the bulk of the time. We will be reconvening probably once
we get to Juneau. There will be ample opportunity for every
question to be asked at some point in time.
REPRESENTATIVE MACLEAN: Senator Green, I have one other question.
Why are you having this hearing right now, when we're not in
session, about tribal government, when we're not even involved.
CHAIRMAN GREEN: That's sort of the opinion we had too when we read
the news article in the newspaper and we felt like we weren't
involved either, and we wanted to ask the Attorney General some
questions about why this Administration had made the action and
done the action they had on dropping that case. We have some
further questions for Bruce Botelho. Senator Halford.
SENATOR HALFORD: Bruce, are you back on?
MR. BOTELHO: Madam Chairman, I'm -- I'm available.
SENATOR HALFORD: The question I had with regard to Indian Child
Welfare, that specific act has a specific provision that applies it
to Alaska. Now if we assume that tribal recognition includes all
domestic relations, does that include marriage, divorce, property
settlement, child support, et cetera. Does it -- I mean, Indian
Child Welfare has primarily been dealing with custody. Do all
those other things go with tribal recognition?
MR. BOTELHO: For the most part they do, but not -- not necessarily
without having to take specific steps. For example, child support
enforcement issues require separate arrangements. A duty to assume
responsibility and a demonstration of the ability to take
responsibility for tribal members from the federal child support
enforcement administration.
SENATOR HALFORD: Would you explain to me how that works? When you
have -- you have a tribal member and a non-tribal member who have
all the issues of a divorce following a 15-year marriage, including
children, a joint economic partnership, and so forth, how does that
work?
MR. BOTELHO: First of all, I think it will depend on forum. If
they choose to file in the state court, then the state clearly has
jurisdiction to rule. That's -- then it will follow the state --
state law. If there is a decision by the couple to have the
disposition in a tribal court forum, the procedures that apply
there, in addition to the Indian Civil Rights Act of 1968, would
apply. If there's a dispute, it will be a matter that will be
litigated.
SENATOR HALFORD: It will be litigated in what court?
MR. BOTELHO: In whatever forum that the person chooses to contest
the jurisdiction (indisc.) Alaska -- it's a matter of a forum
choice.
SENATOR HALFORD: Assuming this is a conflict between two people
who do not get along, which usually is the case at that point, and
they choose the opposite forums and proceed as far as they can go
with as much diligence as they can in each of those opposite
forums, what happens?
MR. BOTELHO: The state of Alaska has -- the state Supreme Court
has asserted that it has exclusive civil (indisc.) over those
matters.
SENATOR HALFORD: Is that consistent with the Indian Child Welfare
Act?
MR. BOTELHO: The Indian Child Welfare Act -- the answer is the
Ninth Circuit has said the Alaska Supreme Court is wrong.
SENATOR HALFORD: And what has happened in relation to that?
MR. BOTELHO: Nothing at all. People continue to do their
business. The Alaska Supreme Court had issued a couple of
decisions asserting again that it had exclusive jurisdiction -
holding that, I shouldn't say asserting it - that was the finding
of the Alaska Supreme Court. The Ninth Circuit has ruled to the
contrary.
SENATOR HALFORD: Have those cases been appealed?
MR. BOTELHO: They have not to my knowledge.
SENATOR HALFORD: And what is the -- what is the outcome with
regard to the particular situation, the particular individuals
involved?
MR. BOTELHO: Senator, perhaps on a break I will endeavor to find
out the specific disposition of each case. I don't know the answer
here.
SENATOR HALFORD: But it would seem that that whole series of
questions is going to get much broader when it now involves
divorce, property settlement, marriage, as well as just child
custody, is that not right?
MR. BOTELHO: I don't think there's any doubt about that.
SENATOR HALFORD: With regard to the state's position on tribal
recognition, one of the issues that we went through in prior years
and one of the forums that was used was the approval of IRA (Indian
Reorganization Act) constitutions by the state and federal
government. The IRA constitutions were proposed by local entities,
they were objected to in some part, not objected to in other parts,
is the state going to be involved in the -- the review of IRA
constitutions in the future and are these going to be at least one
vehicle that lays down some of the powers and duties of tribes.
Number 170
MR. BOTELHO: I'm -- Madam Chairman, I'm unaware of any situation
where the state specifically approved - reviewed IRA constitutions.
That has been a federal function of the Department of Interior vis
a vis Alaska Native entities under the IRA Alaska Act of 36.
SENATOR HALFORD: The state has, under the Cowper Administration,
objected to specific powers requested in IRA constitutions, I
recall and I don't know what they had in other -- other times. I
realize it's a federal determination, but the state has made formal
requests to the federal government not to approve certain powers.
UNIDENTIFIED SPEAKER: (Indisc.). Can I speak up?
CHAIRMAN GREEN: We're in the midst of a question to Mr. Botelho,
can you hold please.
UNIDENTIFIED SPEAKER: Yes, ma'am.
CHAIRMAN GREEN: Go ahead. Go ahead, Rick.
UNIDENTIFIED SPEAKER: Thank you, thank you.
SENATOR HALFORD: Are...
CHAIRMAN GREEN: Go ahead, Senator Halford.
SENATOR HALFORD: I think I was waiting for a response from Bruce.
CHAIRMAN GREEN: Mr. Botelho, do you want to go ahead and answer
that response -- that question, please.
MR. BOTELHO: Madam Chairman, the answer is that I don't think the
Administration -- this Administration has any present plans to
review IRA constitutions on behalf of the federal government or on
behalf of the state.
SENATOR HALFORD: Is there any other method through which the state
plans to learn what or interact and understand what the -- the
constitutions or the statements of powers and purpose of these
tribal entities are going to be?
MR. BOTELHO: Madam Chairman, I do not expect the state to, in the
normal course, attempt to receive copies of organizational
documents or the approvals from the Secretary of the Interior.
That's not to say that the state will not on a case-by-case basis
be working on memoranda of understanding or other kinds of
agreements that deal with the specific areas where the state would
normally interact with a tribal entity; particularly, in the ICWA,
the Indian Child Welfare Act kind of context.
SENATOR HALFORD: Well, in the context of the Indian Child Welfare
Act, there are agreements of concurrent jurisdiction negotiated,
are there not?
MR. BOTELHO: There are a variety of agreements. My understanding
is that there may be as many as eight right now, where there is
such concurrent jurisdiction, in writing at least, that pre-dates
1990. My understanding is, however, that most agreements that have
been entered into have not dealt with the jurisdictional questions
but have focused solely on how tribal ICWA workers will relate to
state social workers.
SENATOR HALFORD: Well, I'm just -- I'm just trying -- trying to
figure out what forum there is to have some kind of coordination.
I mean, if we are talking about government-to-government action,
even if it's limited to dealing with members and we've set aside
the question of the voluntary nature of membership or not, I mean
there needs to be some coordination to understand and I mean, now
you have it with regard to birth certificates, but when you apply
it marriage certificates, when you apply it to the prohibition on
multiple marriage at the same time, when you apply it to all the
other recognitions as to whether an entity will recognize a
marriage in another tribe, another state, or another jurisdiction -
it just seems there's a huge number of things that there should be
some coordination on.
MR. BOTELHO: Madam Chairman, I can't disagree with that, but I
think the question is probably properly posed to the Commissioner
of Health and Social Services, who has entered into such agreements
and who is responsible for the management of vital statistics.
SENATOR HALFORD: Another topic.
CHAIRMAN GREEN: Yes, Senator Halford.
Number 228
SENATOR HALFORD: With regard to criminal law, are there not
provisions under which a state can opt out of the provisions of
Public Law 280 and in fact, seed jurisdiction back to or to a
tribal entity within the state.
MR. BOTELHO: I'm not aware of that provision. I don't say that it
doesn't exist, I'm not aware of it.
SENATOR HALFORD: I think that provision does exist and the
question is, would there be any case in which the state would ever
consider doing that.
MR. BOTELHO: Madam Chairman, I am unaware of any plan for the
state to seed it's authority with regard to criminal jurisdiction.
Having said that and to pick up on the Administrative Director
Snowden's comments, which I think do deserve elaboration, the
Administration is discussing with various communities in both the
Yukon-Kuskokwim-Delta region and in the Tanana Chiefs regions,
pilot projects which would allow for alternative dispute resolution
of conflicts to which right now law enforcement personnel normally
would not intervene. Again, on the theory that if we have
community-based intervention with early infractions, particularly
(indisc.), that we can find a way to stem a number the people who
ultimately have to enter our justice system for more serious
offenses, meaning misdemeanors or felonies. So, in that respect,
the state will be actively looking for models in a prosecutorial
diversion approach, not unlike the Anchorage Youth Court.
CHAIRMAN GREEN: Senator Halford.
SENATOR HALFORD: Are there -- another topic -- are there any
provisions that tie to tribal recognition that can help the now
recognized tribe of Barrow reverse the recent alcohol vote?
UNIDENTIFIED SPEAKER: I hope so.
MR. BOTELHO: I don't believe its status one way or another would
affect that, but my understanding is that a settlement has been
reached in that matter which would lead to the scheduling (indisc.)
of another vote by the city of Barrow as early as February of 1996.
SENATOR HALFORD: Well, I just think that's -- you know, if there's
anything positive in that area, that's certainly an area that I'd
like to see them succeed at.
MR. BOTELHO: Madam Chairman, we could not but agree. The dramatic
drop in reported crime, domestic violence, alcohol abuse and the
things that stem from it, were dramatic during the one year dry
status. It has unfortunately been equally dramatic to see the post
dry -- post election consequences of that community in both violent
crime and other incidences that are again going to put a major
strain on our state criminal justice system.
SENATOR HALFORD: Well, there are specific provisions that allow
tribal entities to deal with alcohol with special deference, are
there not?
MR. BOTELHO: My understanding, Madam Chairman, is that there --
there are several federal acts that confer authority on tribes to
deal with alcohol. But as they apply to Alaska, I cannot answer
that.
SENATOR HALFORD: I would -- I would encourage you to research that
one and make that information available to all the people that may
want to use that to their benefit.
MR. BOTELHO: Madam Chairman, we're taking note of that suggestion
and we will follow through.
CHAIRMAN GREEN: Representative Toohey.
Number 293
REPRESENTATIVE CYNTHIA TOOHEY: Thank you. Bruce, then you will --
you will make an effort to follow through on the questions that
were posed by Mr. Cole, will you - on the validity of the list and
on the -- sovereign -- are all 226 sovereign entities and the Clean
Water Act and the rest of the -- the rest of the questions -- if
you would come back to us, I'd really appreciate it.
MR. BOTELHO: Madam Chairman, I'll be glad to follow through on
Representative Toohey's request.
REPRESENTATIVE TOOHEY: Thank you, Bruce.
SENATOR HALFORD: Well, I would just --
CHAIRMAN GREEN: Senator Halford.
SENATOR HALFORD: I would just to amplify -- the whole question of
immunity from lawsuits is one that can't get less complicated, it
just seems like it will get more complicated as we deal with
welfare administration and everything else. So, I -- I have heard
about three different conflicting opinions today on what the degree
of immunity is and I would hope you'd really be able to give us an
in-depth review of that at some future date.
MR. BOTELHO: Madam Chairman, again, I would be delighted to do so.
There -- there clearly -- there is U.S. Supreme Court law on the
subject and I think we can probably discuss it in several different
contexts.
CHAIRMAN GREEN: Thank you. Representative Porter, do you have any
more questions for Mr. Botelho? Representative Phillips.
SPEAKER PHILLIPS: Thank you, Madam Chairman, no I don't.
CHAIRMAN GREEN: Okay, thank you. We have some people here in the
room who have signed up to testify. We have some time for
testimony. We are somewhat limited. I think we have Betsy --
Matthew Nicolai (indisc.). Please state your name for the record
please and who you represent.
Number 322
MATTHEW NICOLAI, PRESIDENT, CALISTA CORPORATION: Thank you. My
name is Matthew Nicolai. I'm the president for Calista
Corporation. We're one of the 13 regional corporations established
under the Alaska Native Claims Settlement Act. Thank you for
allowing us to speak before the committee and I think it's -- it's
time that the state and the Native organizations start working
together and placing on record of issues that do affect our
futures. I'm here to speak in favor of Governor Knowles' position
of recognizing Indian tribes in Alaska and for the reason of the
ability to try to work with the problems that we have in our
villages. Our region -- and I want to speak on the experiences of
our region, not the other regions of Alaska Natives that are living
within their own districts. As an example, in social services,
when I'm talking of social services, I'm talking about Indian
health, I'm talking about village IRA governments, we received
$57,200,000 that do go to our organizations such as the Yukon-
Kuskokwim Health Corporation, Association of Village Council
Presidents, and 48 IRA tribal governments. These are positive
influences that do reach into urban areas. Much of the funding
formulas that we receive from the federal government do come in to
urban areas. Anchorage is the largest receiver of the funds that
you see in front of you that we do receive out of the federal
bureaucracy. One positive factor I think that's got to be
addressed in the future is the ability for Alaska Natives to govern
themselves is coming out of the work out of the villages that
they've been working toward sovereignty. And I think that is many
times misunderstood in the urban settings of how that sovereignty
is going to affect issues such as subsistence, issues such as
governing politics in the villages. I think a lot of the negative
issues that have come out of that have not been truly represented
in the public. We, Alaska Natives, have the ability and that
ability to work is spelled out in the U.S. Constitution
irregardless of history. History has shown and our forefathers who
weren't Natives that wrote the Constitution, were fortunate to
write a clause. In the Commerce clause of the Constitution that
spells out the Indian clause. And our ability today that we've
been working forward as Alaska Native - as Native Americans - in
trying to work out our solutions to our problems in our villages.
And you've heard today from the testimony from a former Attorney
General that talked about his experiences in the judicial system.
Our ability to work with the federal government is through the
Constitution that we have the ability to go to the Executive Branch
and out of those three branches of government, our ability to
legislate issues that affect our lives and the lives that the
funding that we receive are in large amounts of money to the state.
I think there's a way for this committee here to start looking
forward. How can we work together in resolving issues that affect
our people, not just Alaska Native people, but Alaskan people. We
will always and regardless of - I'm not here today for the future -
Alaska Native will always have a special privilege of legislating
our issues through the Executive Branch of the federal government
because it's spelled out in the Constitution Indian Clause. And I
want to point out as an issue to the (indisc.) Indians that went
through a termination process in the 1940s where the (indisc.)
Indians voted to terminate and most recently, five or six years
ago, the (indisc.) Indians got recognition again and that's the
ability of Native Americans having that special privilege and it's
spelled out in the Constitution and many times it's not read that
our ability to talk about issues of our lives. And I'm here to
basically spell out that issue that we've been trying to resolve
our problems in our villages by ourselves and many times it's just
a matter of how sovereignty's spelled out. It's a misunderstanding
that many times that our urban people try to stretch the meaning of
sovereignty. All our villages want to do is the ability to govern
themselves of every day issues just like the municipality of
Anchorage does, or any other urban government. And that's why we
want to work at our own solutions as we hear them every where. I
want to thank you today for allowing me to speak to you and our
organization that we belong to, the Alaska Federation of Natives,
of the issues that you're raising today, we've been working at
those issues for many years. So, we will be going through a
process of -- of testimony when this committee does reaffirm down
in Juneau sometime next year in 1996. I thank you very much.
CHAIRMAN GREEN: Thank you, Matthew. Okay, Kari Bazzy Garber.
KARI BAZZY GARBER, Garber & Bazzy: My name is Kari Bazzy Garber
and I represent Garber & Bazzy, PC, a Native-owned law firm in the
state of Alaska and also myself individually, as a mixed blood
Native and White person.
UNIDENTIFIED SPEAKER: Speak up.
CHAIRMAN GREEN: If you could just speak up a little louder so the
mikes can catch you and so the people in the back can hear you.
MS. GARBER: I'm sorry. I'll try my best. Thank you, Madam Chair.
I came to this hearing today not planning to testify at all, but
coming just to listen and to see what the discussion involved. And
after sitting through this morning, I -- I couldn't help myself,
but to come forward and to say a few things. I noticed there's a
lot of questions being asked - the same questions that were asked
some five years ago when I began practicing law in the state of
Alaska. I came to Alaska by way of California, where I was a
licensed attorney practicing as a tribal attorney, representing
Southern California Indian tribes. I'm also a mother. My children
happen to be Native. My husband is Native and my children are also
tribal members of the Native Village of Tyonek, where I own a home.
My elders instructed me that words are very sacred, so if sometimes
I tend to think slowly, it's not for lack of anything to say, but
it's because I choose my words very carefully.
CHAIRMAN GREEN: Just as a reminder, there is a five minute time
limit.
MS. GARBER: I understand that and I'll try to make the most of my
time. Some of the questions that have come up over and over again
involve the Indian Child Welfare Act and that is the particular
area of law that I specialize in in representing tribes and Native
individuals. Some of the issues that I face on a daily basis have
to do specifically with full faith and credit and jurisdiction of
tribes involving Indian children. One thing that you should all
keep in mind is the fact that the Indian Child Welfare Act is
remedial legislation. It's legislation designed to correct wrongs
of the past and the thing that we must keep in mind is that it's
federal law that sets forth minimum standards for state court
compliance. Okay, just base minimum. And the bottom line with the
Indian Child Welfare Act is it's a federal law codification of a
Native person's inherent birth right to be raised as a Native
person. And when a person gets old enough to make that decision
for themself whether they would like to be a tribal member or not,
then they can make that decision. And I've heard it said by
opposing counsel and one of my cases that they find a tribal
membership provision in the Constitution that says any descendant
of a tribal member shall become a tribal member. Well, he said
that's coercive - it's against all laws of equal protection - the
federal Constitution -- I said sir, it's no more or less coercive
than the United States Constitution or the laws of the United
States that say that if I am born in this country and my parents
are here and my parents are citizens of this country, then I'm a
United States citizen. Is that not coercive? I don't think so.
Each tribe's memberships vary from constitution to constitution --
their layout, whether it's an IRA or a traditional constitution.
One can't buy their way to membership. I have not seen a tribal
constitution yet that says you can be a member of this tribe if you
pay x amount of dollars. Several tribes also have provisions that
deal with dual enrollment. This is another question that was
raised - Mr. Halford, you stated, what if I have children who are
involved with three, four, possibly five tribes in an Indian Child
Welfare Act matter. Well, there's two things: 1) Tribes have
constitutions that deal with dual enrollment that say you gotta
pick or that say that if you're living in this village, then this
will govern or you will lose your membership of another tribe if
you enroll in this tribe. That's how it works. The second part to
that is the Indian Child Welfare Act says specifically dealing dual
enrollment issues, if you have two tribes or more involved, the
tribe with which the child has the most significant ties is the
tribe that governs in Indian Child Welfare Act cases. I've never
seen a problem yet that could not be resolved between the tribes.
That's not where the conflict usually arises. The conflict usually
arises between the state court system and the tribe. The tribe
also has the power to establish priorities for placement
preferences by tribal resolution. No other party in a court case
has such authority to do so. Once the tribe reorders the placement
preferences, it's a done deal. That is a tribal action that is an
exercise of tribal power and there's nothing scary about tribes
wanting to take care of their own children. The biggest problem
that we face is trying to raise Native children with that inherent
birthright to be who they are. Once a child is -- is kept within
the tribe, that person's a tribal member and none of these
subsistence cases or ANILCA or any of this means a hill of beans
unless we have people left to exercise those rights. And to me
there's nothing more important than Native children and their right
to be raised as Native children. One of the areas that I
understand people have issue with or have a fear about is the fact
that well, what do we do if we have all these conflicting things or
how do we know what to do. Many states have a state tribal liaison
officer or a state tribal liaison office. Hopefully, that's the
way of the future for the state of Alaska as well, so that we won't
have a Rudy James situation, so that state judges won't be put in
a position of being embarrassed. We'll have somebody in an office
here that will have copies of all the tribal codes throughout the
state, knows what the tribal clerk's seal looks like, it has a
number, it has a name, so the judge tells his clerk or her clerk,
I need to know is this a valid tribal court order, verify this for
me or if somebody's doing legal research they go to the law
library, they can look up the tribal code - they can look up the
constitution. It becomes a known, the fear element is removed and
we can begin to work cooperatively and positively. That's what I
see for the future. I don't see this fear of Oh my God, sovereign
immunity - people are gonna do bad things. The big question that's
unanswered and unspoken here is what are we all so afraid of. What
is it. Are we afraid that all hell is going to break lose that
Native people are going to run wild and you know, havoc is going to
ensue. I don't think so. I think that people are going to
continue to do what they've always done - what we've always tried
to do - take care of our children, take care of our families. You
-- you know take (indisc.) stray dog out of your yard or call the
dog catcher or tell somebody who's sleeping in your back yard, you
can't sleep here. This is my home. And it's no different for
tribes or tribal people. And I keep hearing people refer to we're
getting sovereign immunity or these -- when constitutions says this
or that - this is nothing new. I keep thinking of when President
Nixon finally made the decision to recognize China. That didn't
mean that billions of people in China ceased to exist for a period
of years and then all of a sudden when President Nixon said the
United States recognizes China -- bing, all these people magically
appeared. This is not the case with tribes also. There are tribal
constitutions out there - we're not getting sovereign immunity.
There is conflict between the Alaska Supreme Court case law and
federal case law. We pointed that out several times. Most
recently in the Totemoff (sp) case, the Alaska Supreme Court said
basically, hey we don't care about your stinking federal decisions,
we don't have to follow them. This is the law that we have
decided. It's right there in black and white. Now of course I'm
paraphrasing, but that's basically what the decision says. We
don't have to listen to the federal court's decision. This sets up
for a serious conflict of laws. Sometimes it makes business for me
but unfortunately a lot of my cases are pro bono so it doesn't
matter. I'd rather not have the business. A lot of these
questions that have been brought up are most basic federal Indian
law questions and I would suggest that, you know, maybe sometime
you'd like to sit down and take a copy of Felix Cohen (sp) and read
a few of the chapters. It's very simple, it's very easy to
understand and if you understand the history, it will bring you to
today and to understand and I think that's what we're really,
hopefully, all here for is to start understanding each other a
little bit more. We have the report of the Alaska Native's
Commission to back a lot of this up. Ask people - make up your own
mind, but ask people. Please, let's try to get rid of this fear
element. I would really love to work together with a lot of you.
The marriage and divorce issue - this is all jurisdictional. The
Indian Child Welfare Act does not apply to child custody in divorce
cases, it's specifically excluded from the application of the act.
There are several issues in child-in-need-of-aid cases where the
state is having to expend a lot of money that could be resolved
through cooperative actions with tribal court systems. I have a
lot more ideas on it. I'll conclude with President Clinton, this -
- I think it was this last year, signed into law an act regarding
child support enforcement. It's federal law which requires that
tribes enforce child support awards of other states. The federal
government sees what's going to happen. Why can't we do the same?
We should be able to, under federal law of the Indian Child Welfare
Act, take tribal court orders into the state court and say look,
nobody's bothered to deal with the welfare of this child. We have
a child that's being neglected or abused. Help us. We want to
work together. If you have any questions, I'd be happy to answer
them. And hopefully, I look forward to working cooperatively
together to build a future for all Alaskan people. Thank you.
CHAIRMAN GREEN: Thank you, Kari. Senator Halford's going to ask
you....
SENATOR HALFORD: Well, before you go, I want to say thank you for
your testimony and some of your answers are the answers that I
wanted to hear from the Attorney General. Because that's exactly
the way -- the way the system should work. I think one of the
concerns is that the legislature gets this thing after the fact -
after we're requested to appropriate money to argue a case. So we
appropriate the money, they get halfway through the case, they
spend the money, they change their mind. We'd like to know why.
I mean we realize that lawyers have a way of changing their mind
and not making it look like they changed their mind, but that's --
if he'd answered a lot of the things that you answered there would
have been a lot less follow up questions. I mean, I think the
Indian Child Welfare Act generally is a positive in Alaska. It
does get some real serious conflicts. I think when it finally gets
to the state Supreme Court and you get equal protection arguments,
you've got some problems. But what my concern was expanding that
to other things. If you can tell us what the real list is, what
the things are, that's the kind of questions we need to know. And
that's the questions I would have liked to have the Attorney
General run down the list. These are the powers of association,
these are the powers of membership, these are the basic guidelines
of what tribal recognition without Indian country means. We didn't
get that. That's the problem.
UNIDENTIFIED SPEAKER: Is there such a thing?
SENATOR HALFORD: We'd like to know.
MS. GARBER: Well, I think there are some hard and fast answers,
very black and white answers, but then like anything else, laws may
look finite and like you said, lawyers can sometime change their
minds and so can legislators and everybody else. And especially
when you have laws that are open to interpretation. How far can
that go. Maybe one court decision will open the door to a whole
other interpretation of this law. The area that I specialize in is
the Indian Child Welfare Act. There are things that maybe three
years ago I thought were acts, are not acts anymore. Based upon
all these other court decisions have opened up a whole new way of
thinking. I think the Indian Child Welfare Act is a perfect area
to focus on cooperative ventures between states and tribes. I
really am very seriously looking forward to doing something.
UNIDENTIFIED SPEAKER: And the state has been trying to do that.
TAPE 95-64, SIDE A
Number 000
SENATOR GEORGIANNA LINCOLN: I can say to the -- let me back up a
minute -- so the council determined how the membership was going to
look, they put that then out to a vote and a hearing was held here
in Rampart as whether to adopt us or not. Once that was adopted
into the bylaws - the constitution of our community - then all of
those members were enrolled. Now I could opt out of it. I could
say I'm sorry Rampart, but I don't like what you're doing so
therefore I don't want to be (indisc.) the tribe (indisc.). So --
and my children as well, so I wanted to answer that question, that
it is up to each council, which I think has been stated several
times, to determine how you can get on the rolls - your tribal
rolls. I also want to point out when you were discussing this and
in the future, please look at all of the other very positive things
that the villages are doing in assuming their tribal status and one
of those is the Village Public Safety Officer program, which you
are all familiar with. Many, many disputes, other than criminal
disputes that are -- have to go through the courts, many of those
are resolved at the local level and resolved by council or an IRA
and there's a whole list of those areas that is within the purview
of the village public safety officer. (Indisc.) is contracted out
here by the community themselves directly or through the regional
nonprofit corporation. But there's many examples of those that I
think we could look at as very positive and so we need to as -- ask
your committee to review all of those things and see if it has been
positive to the state or if it's been negative. Because I think we
can come to agreements here on -- so that everybody is comfortable
with what tribal status means and that it's not taking over the
state or one having more power than the other, but to having a
healthy state of Alaska. And I appreciate, Madam Chairman, you
allowing me the time to say a few things to this committee.
CHAIRMAN GREEN: Thank you very much.
REPRESENTATIVE TOOHEY: Just a quick notice -- Georgianna, we were
-- we're just here hearing testimony from the Attorney General as
to why they dropped the case. We're not here to make any other
determination. We are being educated today. This is the first
I've heard of the case and the dropping of the case. So I think
this is an education for a lot of people not only in this room, but
for the whole state. Thank you.
SENATOR LINCOLN: And I've been on-line since it began this morning
and I've been listening to all the testimony and I think there's a
lot of misunderstanding as to what's going on in the villages. But
again, I think we all have to educate one another and it's been a
very learning experience for me to listen to some of the questions
that have arose in this meeting. So, thank you very much and I
wish each and every one of you a Merry Christmas, if I don't see
you before.
CHAIRMAN GREEN: In Barrow, Dorcas Stein. Dorcas?
DORCAS STEIN: Yes.
CHAIRMAN GREEN: Would you like to testify? If you'd give your
name and who you represent. There is a five minute time limit,
please.
Number 044
DORCAS STEIN, Executive Director, Native Village of Barrow: Yes,
Madam Chairman. My name is Dorcas E. Stein. I'm the executive
director of the Native Village of Barrow and I am reading this
statement on behalf of the Native Village of Barrow Tribal Council.
I'd like permission -- I think my statement here must be about
seven minutes -- can I read it in its entirety.
CHAIRMAN GREEN: Well, we're on a kind of a time limitation, but if
you will submit that, you can highlight it and then submit it and
we will see that it is part of the record.
MRS. STEIN: Okay fine. I'll just try to read it as fast as I can
here. `The most fundamental and far reaching issues confronting
Alaska Natives over the past two decades have in one way or another
centered on the capacity of our villages to assume responsibility
for their own problems and move towards self-determination. The
central legal issue has been whether our villages possess the same
federally recognized tribal status and powers as tribes in the
lower 48 states. Most past state administrations have insisted
that they possess neither, but rather are merely racially based
social entities with no governing powers whatsoever. While the
federal government has at times waffled on these issues, the
Secretary of the Interior has now finally published a comprehensive
list of federally recognized tribes that expressly and
unequivocally recognizes the tribal status of 226 Alaskan Native
villages and regional tribes. And the Congress has ratified such
recognition in the federally recognized Indian Tribal List Act of
1994. The Secretary's affirmation of tribal status is final and
binding upon both state and federal courts and the state of Alaska.
It was recently confirmed when the federal district court for
Alaska recently upheld the federally recognized status of Fort
Yukon based upon the Department of Interior's federal register
list. Finally, the Knowles Administration apparently recognizing
the inevitable, agreed not to appeal the court's decision and
thereby implicitly recognized the tribal status of Fort Yukon. The
Governor has not, however, recognized the tribal status of the
other 226 villages on the Secretary's list, nor has he revoked
Administrative Order 125 issued by Governor Hickel on August 16,
1991, which expressly denies the villages tribal status. The newly
published federal list (indisc.) Governor Knowles apparent
willingness to change his position presents the state with a
(indisc.) opportunity to embark upon a new era of cooperation and
partnership with Alaska's tribes. While questions remain as to the
existence of the Indian country and the scope of tribal territorial
powers, those questions should not prevent the state from expressly
acknowledging the political status of Alaska's tribes and dealing
with them on a government-to-government basis. The benefits of
doing so will directly and beneficially affect (indisc.) lives in
the villages. State recognition of the villages tribal status
would reverse the racially discriminatory policy of past
Administrations and affirm the state's constitutional right and
duty to treat tribes as political bodies and not as racial groups.
Unless the Governor and the Attorney General take action, there is
every reason to believe the legislature will be unwilling to
appropriate funds towards local tribal governments and (indisc.) a
critical village services. Tribal governments, just as municipal
corporations, require a financial base; yet, the state currently
appropriates more funds to state municipal corporations than he
does to villages of similar size governed by traditional councils.
Persons living in unincorporated federally recognized tribal
communities end up receiving less state funding and services simply
because of their form of local government. (Indisc.) easily
correct this inequity by funding communities of an equal per capita
basis regardless of the community's chosen form of government.
Since the state of Alaska is currently involved in a number of
lawsuits which challenge the tribal status of Alaska Natives
tribes, state recognition of tribal status would necessarily
require the Attorney General to immediately reveal and reconsider
the state's position in those cases. This should also be part and
parcel of this Administration's efforts to strength its government-
to-government relationships with Alaska's Native tribes and to
launch a new partnership of tribal-state relations. To implement
a new policy on tribal-state relations, we make the following
recommendations: 1) That Governor Knowles revoke Administrative
Order 125 issued by Governor Hickel; 2) that the Governor issue a
new Administrative Order expressly recognizing the political status
of those Alaska villages included on the October 21, 1993,
Secretary of the Interior's list of federally recognized tribes and
direct all state departments and agencies to deal with and to
respect tribes as political bodies and not as racial groups and
that they do so both generally and in the context of specific
statutes as the Indian Child Welfare Act, the Indian Self-
Determination and Education Assistance Act, the Clean Water Act,
and other similar legislation; and 3) that the Attorney General,
consistent with the Governor's new policy on tribal-state relations
issue a comprehensive Attorney General's Opinion acknowledging the
tribal status of Alaska Native villages and the state's
constitutional right and duty to treat such tribes as political
bodies rather than racial groups; and 4) ....
REPRESENTATIVE TOOHEY: Dorcas?
MRS. STEIN: Could I just finish, I just have one more paragraph.
REPRESENTATIVE TOOHEY: Yes, go ahead.
MRS. STEIN: Okay, 4) that the Attorney General immediately review
all pending litigation involving tribal rights issues for
consistency with the Governor's new policy on tribal-state
relations. In conclusion, these are issues of over-riding
importance to both the state and Native community and for that
reason, should be given highest priority by Governor Knowles
Administration as well as the legislature.' Thank you very much.
REPRESENTATIVE TOOHEY: Thank you, Dorcas. If you would please
send that in, I'd appreciate that. We next go Ketchikan. Gerald
Hope, are you on?
GERALD HOPE: Ya, I'm here.
REPRESENTATIVE TOOHEY: Gerald, if you would for the record, state
your name and then keep -- please keep your testimony to five
minutes.
Number 127
GERALD HOPE, President, Tribal Council, Ketchikan Indian
Corporation (KIC): Okay. Thank you, Madam Chairman. My name is
Gerald Hope and I'm president of the Tribal Council at the
Ketchikan Indian Corporation and the Ketchikan Indian Corporation,
although it has corporation in its name, has never been a
corporation; it's a federally recognized tribe based on the 1934
Indian Reorganization Act passed by Congress, amended in 1936 to
include Alaska and KIC was first organized in 1940. Currently, we
have over 1,500 tribal members that is recognized by the Bureau of
Indian Affairs (BIA), based on the 1990 federal census; although,
we have over 3,000 tribal members enrolled. Our enrollment list is
certified both by the BIA and the Indian Health Service.
Primarily, in our tribe we have three different tribal groups. We
have the Tlingits, we have the Haidas, and we have the (indisc.);
although, we have those three main groups in our tribal enrollment,
we also have in our constitution no minimum blood quantum, nor do
we have a specific Indian or Alaska Native type that you have to
be. So as a consequence, we do have some Inupiats, some Yupiks,
some Athabascans, and then we also have any number of Lower 48
members on our enrollment list. (Indisc.) basically, what I wanted
to go on the record as stating is two things, while I'll expand on
a couple of other items based on the discussions this morning and
the questions of some of the testimony. We, at KIC, firmly believe
that there -- we support the Governor's decision and we hope that
through a learning process the legislature comes to understand and
appreciate the wisdom of the Governor's decision on recognizing
tribal status in Alaska. We exist - we're here - we've been here
for 10,000 years - we're not going to go anywhere regardless of
what a state, legislature, or Governor, or federal court or state
court decides. This is our country, this is our home; it always
has been and always will be. And just the fact that the Governor
however, has decided to recognize the tribal status of the tribes,
makes us feel that there is the acknowledgement that we do exist.
I guess we (indisc.). However, we feel that it's not gone far
enough because Indian country does exist in Alaska. If you look at
the federal Constitution, which we all are sworn to abide by,
there's a constitutional requirement to take care of Indian tribes
and based on the Act of 1936, as amended, we exist. So I think --
I think we need to look at those kinds of documents - we've got to
look at the historical treatment of the state of Alaska and the
federal government to those of us who are Alaska Natives and
American Indians descent. It seems like we've gotten less and less
from (indisc.) been taken away from us from (indisc.) what was
taken away originally and the treatment has been harsh and so we
need to extend to each other how can we work through this together.
So, me as president of the tribal government in Ketchikan look
forward to working with the state legislature in giving a warm,
amiable, and amicable understanding of how we can coexist. Thank
you, Madam Chairman.
REPRESENTATIVE TOOHEY: Thank you, Gerald for your testimony. I
appreciate that. We have three more people signed up and then
Senator Taylor would like to make a statement and then we will
close to -- unless there's really great objection from the -- from
the teleconference, we will close the testimony.
SPEAKER PHILLIPS: Madam Chairman, after Senator Taylor has had his
say, I'd like to just make a closing comment also.
REPRESENTATIVE TOOHEY: That's fine. Is the Attorney General --
are you still on Attorney General Botelho?
MR. BOTELHO: Madam Chairman, I am.
REPRESENTATIVE TOOHEY: Oh, you're sticking to it. Thank you, I
appreciate it. We would like to hear from George Edwardson.
Number 189
GEORGE EDWARDSON, Vice President, Inupiat Community of the Arctic
Slope: Hello, my name is George Edwardson. I'm the vice president
for Inupiat Community of the Arctic Slope. We're a regional tribal
government, federally recognized. The eight villages we consist of
are Barrow, Atqasuk, Wainwright, Point Lay, Point Hope, Anaktuvuk
Pass, Nuiqsut and Kaktovik. And I had a couple of questions before
I started -- before I get started.
REPRESENTATIVE TOOHEY: Go ahead if you want, George.
MR. EDWARDSON: Okay. The first question I have is do we have to
follow -- do you have to follow federal regulation, like I do?
REPRESENTATIVE TOOHEY: I'm not exactly....
MR. EDWARDSON: ...it is over, you know recognition. The federal
government has no trouble recognizing tribes and don't get involved
with saying who exists and who don't exist. And under the state of
Alaska's Constitution, under Section 4, you know you're not even
supposed to have any say so on who you recognize or not pertaining
to tribes, under your Constitution -- the Statehood Act, I mean,
excuse me.
REPRESENTATIVE TOOHEY: Attorney General, can you answer that
question.
MR. BOTELHO: Madam Chairman, I'll quickly grab the Constitution
and the Statehood Act -- the state is obligated to follow federal
regulations to the extent that those regulations apply.
MR. EDWARDSON: Right. Under the Statehood Act, Section 4, you
have a disclaimer....
MR. BOTELHO: And we're -- we're about to grab it. Madam Chairman,
perhaps if we could wait one moment and I could perhaps have the
answer for you at the conclusion of the testimony.
REPRESENTATIVE TOOHEY: Alright, that'll be fine. If you did --
did you have another question, George? If not, we'll move on to
your statement.
MR. EDWARDSON: (Indisc.) then I'll just keep right on.
REPRESENTATIVE TOOHEY: Thank you and if you...
MR. EDWARDSON: Under the U.S. -- under the U.S. Codes -- U.S.
Federal Codes, Title 25, subsection 112, Jurisdiction on (c), could
I read that?
REPRESENTATIVE TOOHEY: If you would. If you'll keep it under five
minutes, I'd appreciate it because it's almost at the close of our
day.
MR. EDWARDSON: Okay, great. I won't even take three minutes.
REPRESENTATIVE TOOHEY: Oh wonderful.
MR. EDWARDSON: For the purpose of the enforcement of the federal
regulations in this part an Indian shall be deemed to be any person
of Indian descendant who is a member of any recognized Indian tribe
now under federal jurisdiction and a reservation shall be taken to
include all territory within reservation boundaries, including fee
patented lands, roads, waters, bridges, and lands used for agency
purposes. That means under that section -- that means my Native
townsites can be classified as Indian country, my Native allotments
can be classified as Indian country, plus any fee patented lands
can be classified. And the other question I had was did you get in
contact with the Bureau of Indian Affairs or the U.S. Attorney
General (indisc.) for, you know what are -- who are the tribes.
REPRESENTATIVE TOOHEY: If that question is addressed to me, I
think I can answer no on that. But I think the Attorney General,
if he doesn't have that information, he will have it shortly.
MR. EDWARDSON: Okay. The reason I ask that is because that is
their responsibility to notify, you know, all parties interested or
all states interested in Indians and Indian country. And in my
constitution, my boundaries lie 68 degrees north and that has been
federally approved and that is if you want classification, Indian
country even though we are not Indian.
REPRESENTATIVE TOOHEY: Thank you, George. Is that the end of your
testimony?
MR. EDWARDSON: I have more, but I'll leave it at that.
REPRESENTATIVE TOOHEY: I appreciate it, thank you very much. If
you'd like to submit that to the -- to the committee, I'd
appreciate it.
MR. EDWARDSON: Okay, I'll write to you.
REPRESENTATIVE TOOHEY: Okay. Mr. Botelho, if you have the answer,
I'll let you squeeze in here. Otherwise, I would like to hear from
the Bishops from Fairbanks, who are the last two on our
teleconference list.
MR. BOTELHO: Madam Chairman, Section 4 of the Alaska Statehood Act
is simply a reservation in terms of federal lands that the state of
Alaska will not attempt to impair future opportunities for Alaska
Natives who seek compensation for the lands. A matter ultimately
resolved by the Alaska Native Lands Claim Settlement Act. And that
is, in essence, also the effect of Article 12, Section 12 of the
Alaska Constitution that was referred to earlier today.
REPRESENTATIVE TOOHEY: Thank you very much. Thank you, George for
your testimony. If we could go to Fairbanks, please -- the
Bishops, Dick and Mary, if you'd like to go ahead.
Number 264
DICK BISHOP, Executive Director, Alaska Outdoor Council: Thank
you, Madam Chair. This is Dick Bishop, Executive Director of the
Alaska Outdoor Council. I'm testifying on behalf of the Alaska
Outdoor Council, a statewide umbrella organization of over 10,000
members. The council's purposes are to advocate sound, scientific
management of fish, wildlife and their habitat; to advocate public
access to public lands and waters; and to advocate fair allocation
of fish, game and other common use resources consistent with the
Alaska State Constitution. Federal tribal recognition, by itself,
is not an issue that directly affects the interests of the Outdoor
Council members. However, tribal recognition in combination with
other federal laws is of concern. For example, with tribal
recognition plus Indian country recognition tribal members in
Indian country are exempt from state law relating to fish and game
management. Indian country may include lands and waters owned by
the federal government, or even state and private lands, in
addition to tribally owned lands. Or, in the case of Alaska,
perhaps Native corporation owned lands. Tribal recognition in
combination with the federal subsistence law, Title VIII of ANILCA,
and the Indian Child Welfare Act was, in part, the basis for the
federal Ninth Circuit Court of Appeals in 1992 to declare that
Tyonek is a dependent Indian community or Indian country. That
decision was withdrawn and a lower court told to re-examine the
facts supporting the dependent Indian community determination.
However, the process illustrates the potential that still exists --
and will until the U.S. Supreme Court finally rules on the case.
Recognition of tribal status thus can contribute to loss of state
fish and game management authority if and when Indian country is
recognized. Annette Island Reservation, the only reservation in
Alaska, provides a good example of how fish and game management is
affected in Indian country. The reservation includes the entire
island, some adjacent small islands and nearshore waters.
Commercial and other fishing is not subject to state laws, federal
laws, or international treaties such as the Pacific Salmon Treaty
regulating use of king salmon. Yet the Annette Island commercial
fisheries exploits the same fish stocks used by fishermen operating
elsewhere under state and federal law and international treaty.
The Alaska Outdoor Council is deeply concerned about the fate of
sound fish and game management, about general public access to fish
and game resources, and about fair allocation resulting from
erosion of state management authority. Finally, we understand that
there is a federal public process for deciding upon tribal status.
We also understand that the federal government did not follow that
process when it designated over 200 villages as tribes in 1993.
The state of Alaska should insist that the federal agencies follow
their own law instead of making new law by political proclamation -
- as Ada Deer did. Thank you.
REPRESENTATIVE TOOHEY: Thank you, Dick. Mary, did you have a
comment?
Number 305
MARY BISHOP: Yes. My name is Mary Bishop. Thank you for the
opportunity to testify and I'm testifying for myself. I wish to
make two points. First, as has been obvious today, to all of us
I'm sure, a lot of education about this issue is necessary. The
public, businesses, tribal and non-tribal members should understand
its impact. Second, I personally have no problem with tribal
recognition if that's all the further it goes. However, I do have
a severe problem with using tribal recognition as a stepping stone
to federal recognition of Indian country. I would like to urge the
state legislature to pass legislation making limited waiver of
sovereign immunity mandatory whenever the state provides any type
of grant or loan or other business transaction with a tribal or
village entity. Several villages have dissolved their municipal
governments in favor of tribal governments. I presume they still
receive state revenues through -- state revenue sharing and grants.
The state has absolutely no legal control over how those dollars
are spent and how they are distributed by the tribal governments
unless there is waiver. The village government can discriminate in
whatever manner it chooses in allocating funds and benefits.
Tribal actions are not (indisc.) by either the state or the federal
Constitution. Without a waiver, the state would have no power to
intervene. You might want to be aware of the fact that in 1978,
the U.S. Supreme Court ruled that the Indian Civil Rights Act
cannot be applied by a state or federal court. So, any claims that
that is useful (indisc.). The state of Nome -- the city of Nome
was unable to foreclose on tribally owned property for which no tax
had been paid over several years. This is another consideration we
should have. Will tribal recognition encourage transfer of
property to tribal entities in order to avoid municipal taxation.
Tribal members should be aware that the dictate of a tribal
government do not have to be valid under the U.S. Constitution. A
tribal member loses civil rights. Just one example, Indian tribes
are not subject to the federal civil rights laws prohibiting
employment discrimination -- whether that discrimination is based
on sex, race, religion, or anything else. Again, I urge you and I
believe the state has a duty to inform its citizen - both tribal
and non-tribal - of the consequences of this federal tribal
recognition. It's really no skin of my nose if a group of people
vote to lose their constitutional protections by organizing under
a tribal government. I wouldn't do it; but each to his own.
REPRESENTATIVE TOOHEY: Mary, is that -- is that concluding your
testimony?
MS. BISHOP: I would like to mention that....
REPRESENTATIVE TOOHEY: Mary, Mary.
MS. BISHOP: Yes, I just want to reiterate the necessity of
education.
REPRESENTATIVE TOOHEY: I appreciate that, Mary. We're running --
really running late. If you'll conclude -- have you concluded?
Note: There was no response from Ms. Bishop.
REPRESENTATIVE TOOHEY: Thank you very much. I understand there
was one more gentleman from Kaktovik. John Schaefer, are you there
to testify? Then we will close it to public testimony. John, are
you there?
Number 362
JACK SCHAEFER: (Indisc.) Jack Schaefer.
REPRESENTATIVE TOOHEY: Well, that'll be fine. Jack Schaefer, go
ahead.
MR. SCHAEFER: I found that the -- the hearing today was very
interesting. I kind of had a misunderstanding as to exactly what
this hearing was about. I thought it had to deal with housing.
There were a lot of interesting points that have been brought
forth. Incidentally, I'm the President of the Native Village of
Point Hope, which is a federally recognized tribe. I also find it
interesting as to the definition of Indian country, as indicated by
George and also the AG - the Attorney General. Our land status is
somewhat different. The land has been transferred from the village
corporation which is under the laws of the state of Alaska, you
know, its Constitution -- its bylaws are formed under that. And so
now it belongs to the Native Village of Point Hope, which is a, you
know, a federally recognized tribe. So, I think sometimes that
needs to be looked at. Also, the recovery of property. There's
been overlapping of our claims that have taken place. There still
is the need for title recovery which are otherwise known as valid,
existing rights. Some of the experiences that the Native Village
of Point Hope has felt and the types of (indisc.) in dealing with
ICWA for example and the state court system, is that there are
times where we have elders lose their grandchildren and have been
denied the ability to take care of their kids because they have
been accused of being too old. There has been an occasion where
the state judge had said, well, we're not going to get anywhere on
this so, we're gonna go ahead -- and I'm gonna go ahead and state
that we agree to disagree -- end of conversation. And you're gonna
have to lose out, Grandma as she sits there crying. And so there's
a real need for -- for respect by the state and also the state
judicial system. That particular case had dealt with more or less
egotistical type of tendencies and attitudes that really directly
affected a particular family. And the Native Village of Point Hope
had lost out even though it had its constitution and its
responsibility for the well-being of its members. To this day, we
still haven't recovered those kids. However, it has been appealed
to the federal court system and so it's now under the federal court
jurisdiction as to what had happened. These kids were taken out of
the state of Alaska - they were living with someone else - the only
type of cultural recognition that they were able to receive was a
pair of mukluks and a bunch of photographs - and that's it. And
it's really sad to see something like that happen. I really hope
that the state could come out with more respect than it has been
practicing in the past. We cannot really stand for hostility and
we don't have the resources to defend ourselves. And that's one of
the reasons why we lost. We had to pay out of our own pockets for
the telephone bills dealing with that seven-day trial. It was very
hurtful. To this day, I still cannot look at Grandma straight in
the eyes. And so, I strongly urge that you put this egotistical
stuff aside and respect who we are, what we are and deal with us.
We've been willing to deal with you. And so, that's all I have to
say for now. But you got to have that respect.
REPRESENTATIVE TOOHEY: Jack, thank you for your testimony. I
appreciate it. Mr. Botelho, will you also put on your list that
last request from the Outdoor Council on the overlapping of the
effects of tribal sovereignty on the management of fish and game?
I'd appreciate that.
MR. BOTELHO: Yes, Madam Chairman.
REPRESENTATIVE TOOHEY: Thank you. Senator Taylor, I'm going to be
closing to public testimony. If you have testimony you'd like to
submit, if you'd please submit to the LIOs or send it to Senator
Lyda Green's office. And Senator Taylor, if you'd like to make a
closing statement, we will then call it a day.
SENATOR ROBIN TAYLOR: Thank you very much, Representative Toohey.
I really appreciate the wonderful assistance you've given this
afternoon, and I wanted to thank everyone who had testified because
this is a very controversial matter. It's a matter of -- I think
people have properly characterized it as a historic change in
Alaska that has occurred, and I think many people were unaware of
the -- of the ramifications. I think many of us are still unaware
of -- of where this -- this will now lead us to as we move along
together. I -- I felt and I know that my -- my good colleague and
co-chair of this committee, Brian Porter, shared with me the
concerns that we had about the -- the Alaskan people and that all
of Alaska's people deserve and needed to know what rationale was
being followed by this Administration in the decision that it made
to unilaterally withdraw the appeal. I think that we still have
some confusion as to what generated that decision, but at least
we've now had some explanation that did not exist before. So as a
consequence, I think that part was very good. I think it was very
good that people had an opportunity to question the Attorney
General and I appreciate very much his participation before the
committees today. And I would also, again, emphasize that we all
need to be better educated about what this process will mean in the
future and where it is going. There are many people who have
advocated here today that this process should turn in to 226
separate entities, regulating themselves, having their own laws,
and their own territorial regimes. I hear that -- I heard that
frequently today in the discussion. I think that that might be a
very difficult concept to work with and certainly a concept that
would radically change any Democratic concerns or beliefs that
people may have -- at least those Democratic philosophies would be
ultimately changed in this process, and I think it's one that we
all need to be aware of as we move forward. So again, I wanted to
thank Senator Green and the other members of the Senate that have
participated; in particular those members of the House that have
worked so hard and long today. I know this will not be the last
hearing on this subject and hopefully, we have all learned
something from it. And thank you again for allowing me to close -
I appreciate that very much. Sorry I couldn't be here for all of
the hearing today, but I had to attend a funeral. With that, I
would close and thank you again, Representative.
REPRESENTATIVE TOOHEY: Thank you, Senator Taylor. I appreciate
your comments. Representative Phillips, did you have a closing
statement?
SPEAKER PHILLIPS: Yes, I did. Thank you, Representative Toohey
and thank you very much for taking over and running the meeting at
that end. I also wanted to express my appreciation to Attorney
General Botelho and to Charlie Cole for their comments and their
input today. This was something that had caused a great deal of
concern to members of the legislature that a decision of this
magnitude was made in the state, for the state, without explaining
ahead of time to the legislature, even notifying the legislature,
that this was being done. And I appreciate the Attorney General
being here today and answering the questions that -- the concerns
that the legislature had. I also wanted to express my appreciation
to everybody that did come on-line and put their input in and as
Senator Taylor has very eloquently stated, this was the first step
we'll be taking and -- and I know that there will be more follow-
up. But in the meantime, I just -- I wanted to express my
appreciation to everybody for being on-line. And thank you again,
Representation Toohey, for taking over.
REPRESENTATIVE TOOHEY: My pleasure and I'd just like to make a
(indisc.) note to the staff of the Attorney General, you now have
your work cut out for you, even twofold. So, have a good time
while you research all those questions, which I know you'll come up
with brilliant answers.
SPEAKER PHILLIPS: And happy holidays to everybody.
REPRESENTATIVE TOOHEY: And Merry Christmas to everybody. Happy
holidays. Thank you very much. This teleconference is adjourned.
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