Legislature(1995 - 1996)
02/21/1996 01:00 PM 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 SENATE AND HOUSE JUDICIARY MEETING
February 21, 1996
1:00 p.m.
SENATE MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice Chair
Senator Mike Miller
Senator Johnny Ellis
Senator Al Adams
SENATE MEMBERS ABSENT
None
HOUSE MEMBERS PRESENT
Rep. Brian Porter, Chair
Rep. Joe Green, Vice Chair
Rep. Con Bunde
Rep. Cynthia Toohey
Rep. Al Vezey
Rep. David Finkelstein
HOUSE MEMBERS ABSENT
Rep. Bettye Davis
OTHER MEMBERS PRESENT
Senator Rick Halford
COMMITTEE CALENDAR
Impact of Tribal Status Recognition in Alaska
PREVIOUS SENATE COMMITTEE ACTION
See Joint Senate and House Judiciary Committee meeting minutes
dated 12/4/95.
PANEL MEMBERS
Attorney General Bruce Botelho
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Don Mitchell
1335 F Street
Anchorage, AK 99501
Tom Tobin
422 Main Street
Winner, South Dakota 57580
Gary Oskoloff, Vice Chair
Alaska Inter-tribal Council and
Ninilchik Native Association
703 W. Tudor Rd.
Anchorage, AK 99503
David O. David, Chair
Association of Village Council Presidents
Box 219
Bethel, AK 99559
Julie Kitka
Alaska Federation of Natives
1577 C Street #100
Anchorage, AK 99501
Lloyd Miller
900 West 5th, Suite 400
Anchorage, AK 99501
David Getsches
University of Colorado Law School
Fleming Law Building
Campus Box 401
Boulder, CO 80309-0401
Jim Johnson
1110 South Capitol Way, Suite 225
Olympia, WA 98501
Niles Cesar
Bureau of Indian Affairs
U.S. Department of the Interior
P.O. Box 25520
Juneau, AK 99820
ACTION NARRATIVE
TAPE 96-12, SIDE A
Number 000
CO-CHAIRMAN TAYLOR: The Joint Judiciary Committee hearing will
come to order. The Senate members are present with a quorum, those
members being Senators Adams, Miller, Green and Taylor, Chair.
Senator Halford is also sitting in from the Senate. I would
declare that we are open for business, so to speak, and Co-Chairman
Porter, if you would like to please mention the names of the House
members that are present, and we will proceed.
CO-CHAIRMAN PORTER: Thank you Mr. Chairman. Representative Toohey,
Representative Bunde, Representative Vezey are present, the other
members will be forthcoming as we just got off the floor.
CO-CHAIRMAN TAYLOR: And we have a quorum within each body so, as
a consequence, we can proceed. To begin with, let me start off by
just saying that since the last opportunity that we had to discuss
this matter with the Attorney General and others, many questions
still linger and it is in response to those questions that the
hearing has been called to try to determine if we can -- how this
decision may impact the legislative process that we're in the
middle of if there are in fact pieces of legislation that may need
to be submitted, or clarification that needs to be done concerning
the relationships between the state and other entities with the
tribal entities that have so been created. In addition to that,
there are members who wish to inquire as concerns the justification
for the decision itself. With that, let me just lay out a few
ground rules that I think will help us all. Members of the panel,
if you could limit yourselves to about two to three minutes with a
brief opening statement, that would be very helpful because I think
the primary purpose today is to provide for a questioning and an
answering period. We're going to be limited. We can go until
about 3:30 at which time we start losing membership to other
committee hearings that have previously been scheduled. With that,
I would also suggest when we get into questions and answers, if in
fact, as there are apparently at least two sides to these issues,
and there may be more. It's a many faceted concern, what would be
very helpful to the Chair is if whoever the question is addressed
to could respond to it, and then if there's a person on the other
side of that issue who wishes to respond we could take that also
with maybe a comment back or a concluding comment from the first
person answering. If I attempt to have everyone of the members at
the table today ask all the questions they'd like and have all the
respondents answer every one of those questions, we won't be out of
here within 120 days, so with that, let me just first start off by
asking the panel members to hold yourselves, if you can, to within
a brief statement - two to three minutes - and I think much of the
other comments you want will come out through questioning. In
deference to the Attorney General, it's nice to have you here sir,
and if you'd like to key off, please do so.
ATTORNEY GENERAL BOTELHO: Thank you Mr. Chairman. Again, I
welcome the opportunity to be before you again to talk about the
decision of the Administration to no longer challenge tribal
status, a decision that we discussed at the December 4, 1995
hearing on this matter and to which I followed up in early January
in writing to explain somewhat further to you the basis for the
decision. Let me simply state once again that the overriding
purpose and principle that drove the Administration to no longer
appeal, or withdraw the appeal, of tribal status in the Fort Yukon
case, was one not primarily driven by an assessment of the law,
that is our chances of prevailing though clearly -- the status of
the law in my view clearly supports that decision. The Governor
has repeatedly stated even before being elected - as a candidate -
his concern with developing a new paradigm for solutions to
problems facing rural Alaskans: one that does not provide a focus
at what happens in Juneau or what happens in Washington, D.C. but
what could happen at the community level. Looking at solutions
that are family based, that are community based, and when one looks
at the concept of a tribe, we are talking about communities that
are based on families. That's the root of it. It's that simple.
The Governor recognizes that the state and tribal entities have had
to devote substantial legal resources - divert substantial legal
resources - to a battle that does not serve anyone. The state is
not the only, nor the best, way of delivering services to rural
Alaskans. We should be finding ways to partner with communities
and community governments whether they be chartered by the state,
or by the federal government, or have independent existence to try
and find local solutions. That is the significance of the decision
in our view, and is one that we should see as a great opportunity,
not as something to be afraid of, or to see some great conspiracy
to work against the people of Alaska.
CO-CHAIRMAN TAYLOR: Thank you very much. If I could now turn to
my friend Mr. Mitchell.
MR. DON MITCHELL: Thank you Mr. Chairman. For the record my name
is Don Mitchell and I think there are a couple of preliminary
matters. First, I have appeared in front of a number of
legislative committees over the years and usually I have done that
as a representative of some organization and I'd like to make it
clear I appreciate having been invited down to participate in this
particular hearing but that I'm here not representing anyone other
than myself. Secondly as the years have come and gone, for a
variety of reasons that will soon be apparent, I have never
represented any Native organizations or other groups with respect
to this subject matter. It is my view that, with all due respect
to both the Governor and the Attorney General, I believe that the
decision not to continue to litigate the tribal status question was
probably a policy mistake. I have come to that conclusion after a
lot of thinking but for the following reasons. One - let me back
up a second - if we assume that Native residents of Native villages
are in fact federally recognized Indian tribes, and if we assume
further that there is Indian Country in Alaska, are those two facts
a good policy result both for Alaska in general and Alaska Natives
in particular. I think that reasonable people can disagree about
that. My personal view, for reasons that are far beyond the
ability of this hearing to really probe this afternoon, is that I
think it is a mistake. I think that if the aspirations of the
sovereignty advocates prevail that a generation from now it will be
viewed as a historic mistake. However, as I said, I think
reasonable minds and people of goodwill can seriously differ with
that conclusion. To have that policy debate it seems to me you
have to know where you're starting from and the Attorney General
has indicated that the decision not to get a Circuit Court review
of Judge Holland's holding is based upon policy considerations -
not because of the Department of Law's changing the view that
they're with me - that Congress has not recognized Alaska Native
groups as federally recognized tribes. If we assume that the
Department of Law and I are right, then what is being proposed here
is to start off on a policy course to develop a policy that is
based upon a legally incorrect assumption. If, in fact, Judge
Holland is correct, that in fact Alaska Native residents of Native
villages are federally recognized Indian tribes, then it seems to
me that the error would have well served to be cleared by having
that fact made apparent to everybody so that whether people like it
or not, that's where we start from. And what you have now, Judge
Holland, for a variety of reasons, does not publish his opinions.
So now we have a very complicated situation with what Ada Deer and
the Department of Interior did, compounded by one unreported
decision by a United States District Court Judge and we have
foregone the ability of the Circuit to review that and to certainty
to be brought to this matter so that you policy makers can go
forward. Finally, having overstayed my three minutes, I'd like to
say it is my ultimate solution to all of this, for what it's worth,
that where this should go is to the Congress. Everyone agrees that
the United States Congress can recognize any Native American groups
it wants as Indian tribes, and Congress can decide what the
authority of those organizations are. Congress has, on many
occasions, for specific purposes, such as the Indian Child Welfare
Act and a whole list of statutes, Congress has indicated that for
the purpose of administering this statute, that Alaska Native
villages are tribes. That's great. That's perfectly within
Congress' prerogative. It seems to me that to knock all this off,
and to sit down with everyone and hold a policy discussion as to
whether or not this is a good or bad idea, and if people think it's
a good idea, fine, then let's go to Congress and have every
Congress -- Congress recognizes different groups of Native
Americans as tribes. Let's have Congress do it. Let's have some
meeting of the minds as to how these tribes will fit into the
larger puzzle of public policy in Alaska and stop creating all
these hard feelings. It's my view that at the moment, that policy
is a wrong one, but more importantly is a matter of law, that this
whole situation has been created from [indisc.].
CO-CHAIRMAN TAYLOR: Thank you Don. Julie Kitka?
MS. KITKA: Thank you Mr. Chairman. Good afternoon. For the
record my name is Julie Kitka and I am the President of the Alaska
Federation of Natives. Thank you for the invitation to join you at
this Joint House-Senate Judiciary Committee hearing. To my left is
Lloyd Miller, who is counsel to the Alaska Federation of Natives on
this issue and following my opening statement I will ask he be
allowed to make a statement also, primarily because I am not a
lawyer. Before I begin I would like to raise a procedural issue
which I believe warrants your attention. First of all, because of
the subject of this hearing, from our view, it's essentially on
educating the State Legislature, and by extension, the Alaskan
people, on the complex dual political status of Alaska Natives as
both U.S. citizens and as aboriginal Americans. I believe there
needs to be a greater opportunity and effort to expand the
involvement of the villages in the process: the Yupik villages, the
Inupiat villages, the Athabascan villages, the Aleut villages, the
Tlingit and Haidas and the Tsimshians. All the Native
organizations and institutions should be invited to the table. The
Alaska Inter-Tribal Council, which works with tribal governments,
should be invited to participate. Our Native elders should be
invited. Those who know our history and have much to share from
their experience. Translators should be available for those elders
whose first language is not English. In addition to
teleconferencing this hearing to all of the LIO sites, and inviting
open dialogue from each region in this state, this committee -
joint committee - should go out into the rural areas and meet with
the people and their leadership. The committee should at least go
out to the regions of Dillingham, Bethel, Kotzebue, Nome and Sitka
and meet face to face on these issues. This hearing should not
just be a legal debate among lawyers, to lawyers. We're talking
about people's lives and aspirations here. If this committee is
unable to travel, another way to accomplish this education process
and sharing of information would be for the Alaska State
Legislature to invite an elected representative from each tribe in
Alaska to come here to Juneau and join a roundtable discussion on
these issue - both issues facing our people and issues facing the
state as a whole - and let's get on with solving problems. I know
I speak for many Alaskans when I say, "We deserve to see in our
State Legislature leaders who are real in their approach to
politics, leaders who take the time to listen to our fellow
citizens and learn from them, who believe what they have to say,
and make commitments, and follow through on those commitments. We
deserve leaders in the legislature who seek to understand what
their fellow Alaskans live, the challenges they face, their needs
and their dreams. This Joint House-Senate Committee has the
opportunity to make great headway in communications within our
state if you would open up the process and begin a genuine dialogue
with our tribes. As Alaskans we face many problems which are
common to us, five examples I'll share include: our shared concern
over our children's education and life opportunities; our shared
concern over the trends of disintegrating families and values and
what this means to our common future; third, our shared concern
over our continuing ability to provide for our families, in a
period of rapid social, cultural and economic change; fourth, our
shared concern over the devastating effects of alcohol and drug
abuse in our communities, and how to end the death and suffering of
our people; fifth, our shared desire to build an economic base for
our people and break the bonds of dependency that reliance on
government programs and funding entails. We do not believe that a
brighter future will come easily or quickly or that it should. We
are not looking for bandaids for broad, deeply ingrained problems.
Our people are ready for the hard work of determining Alaska's
future. They want to find a coherent direction we can all buy
into. They believe it's time to begin sorting out the
responsibilities of individuals: what we need to do ourselves, our
personal responsibilities as citizens, and what government should
be doing at the tribal level, the regional level, the state level,
and the national level. Like members of the 104th Congress, our
people want to see more decision making initiated and carried out
close to home. As the United States struggles with its future, it
only makes sense that those closest to the challenges should be
more involved in working out ways to meet them. As the federal
government devolves more to the state governments, we believe it
makes a lot of sense for the state to continue to devolve more to
the local community level in all aspects of governance. Our
people's desire for greater self governance is truly a reflection
of our willingness to assume greater responsibility for our daily
lives and communities. We recognize the inherent difficulties and
complexities of the challenges we face. We want the chance to
regain competence and trust in our own abilities to solve our own
problems and build an economic base for our people. This concludes
my opening statement. AFN will be submitting additional comments
and legal analysis for the record. We will also be submitting, for
the record, a copy of the Executive Summary of the Alaska Native
Commission's Report. Consideration of the findings and
recommendations of this report must not be ignored by this
legislature. AFN stands willing to work with this legislature and
the Knowles Administration to advance recommendations from this
report, which are urgently needed and which have broad support.
I'd like to now ask our counsel, Lloyd Miller, to make a brief
statement.
CO-CHAIRMAN TAYLOR: Before you begin Mr. Miller, Julie ran over
quite aways. I'm going to turn instead to Mr. Johnson. I'll come
back to you, and we'll move back and forth through the panel. Mr.
Jim Johnson are you on in Olympia?
MR. JOHNSON: I am.
CO-CHAIRMAN TAYLOR: If you'd please proceed and try to hold your
remarks to about three minutes.
MR. JOHNSON: Chairmans Taylor and Porter, members of the
committee, my name is James Johnson and I am an attorney in
Olympia, Washington. My resume has been submitted from which you
would see, if you had one in front of you, I have done nearly 100
Appellate cases, up to, and including, the U.S. Supreme Court,
approximately half of which involved Indian jurisdictional and
related matters. In most of that practice I was the head of
special litigation for the State of Washington. I am now in
private practice. As a matter of conflict disclosure, I have
several cases pending - one in the U.S. Supreme Court in which I
represent commercial and sports fishermen, joined by the State of
California and most Western states, although Alaska has not
supported us, challenging a non-treaty Indian claim in California.
I also represent counties and I work with the State of Minnesota in
a case of the Eighth Circuit presently pending in the District
Court involving treaty Indian hunting, fishing, and gathering
rights and finally a Washington State case. I represent private
landowners with the State of Washington in an Indian treaty claim
to tidelands and shellfish. My earlier experience for almost 20
years with the states, as shown in the resume, an important part of
the work that we did in the late years of that, was the authorship
of a American Indian Law deskbook. I take a moment to digress on
this subject because as we put together that deskbook, which should
be made available to you, a chapter was originally written for
Alaska by Alaska, and then we decided not to include either Alaska
or Hawaii for two reasons: one, you were very unique, and your
problems were largely resolved by the statutory structure, in
particular ANCSA, in particular the fact that you didn't have
tribes in Alaska and only one reservation, so it is with some irony
that I see Alaska voluntarily entering into this quagmire of
litigation we have had in the northern 48 states. A specific
comment about the action that you were discussing in this
legislative hearing today. It is much to my surprise that that
action, deciding that Alaska would not proceed to appeal, came
within days of a successful case from South Dakota in the 8th
Circuit. I hope that you have been advised of that case. I'm
surprised that I see it in none of the disclosures from the
Governor's Office. In November 7, 1995, the 8th Circuit ruled that
the same Secretary of Interior was beyond his discretion and
authority in taking lands into trust for Indians. Of course the
effect of taking those lands into trust was to deprive the state of
jurisdiction for tax and land use planning. Within the last three
weeks you should also be advised that the full Circuit Court has
declined reconsideration and as I say, many of the states joined in
supporting South Dakota, as was our practice, by the way, for many
years, trying to work in commonality on jurisdictional issues so I
am very surprised that Alaska decided to drop a related argument
with respect to the same Secretary of Interior when other states
were having success in these related arguments. As a lawyer's
digression, the conflict between Circuits could have been cause for
U.S. Supreme Court review of these important jurisdictional issues.
So I better conclude, as I realize the time is long and you have a
lot of witnesses. I am surprised to see Alaska getting into the
same quagmire of litigation that the southern 48 states have faced
in the past. I commend you, the legislature, for having this
hearing, by the way. Like the United States constitutional system
setting up Congress, as [indisc.] or required to address long term
issues, I think the Alaska Legislature appropriately must engage in
this long term policy oversight. Such decisions are not in the
U.S. government form of government, maybe by a four-year executive,
and similarly you have a responsibility, but it's a real hard one
I must acknowledge for you to get into, but it is a responsibility
the legislature must exercise and I commend you for doing that.
I'll terminate now and answer any questions that are addressed to
me.
CO-CHAIRMAN TAYLOR: Thank you Mr. Johnson. Lloyd if you could
keep your comments brief we'll get, I'm sure get a good response
out of you when the questioning starts.
MR. MILLER: Thank you Mr. Chairman. Chairman Taylor and Chairman
Porter I do have prepared remarks for the committee.
CO-CHAIRMAN TAYLOR: Great, we'll see that they are distributed.
MR. MILLER: I will not read them. Chairman Taylor and Chairman
Porter I understand that the purpose of the hearing and our
attendance here was really focused on the decision of the Attorney
General to no longer challenge the tribal status of the village of
Fort Yukon in the particular case involving Fort Yukon. I really
must say that I find the issue unremarkable as a legal proposition.
As my prepared testimony indicates, I think that is well supported
in the law, and let me just briefly summarize it. First, these
issues that we discussed, federal recognition of Indian tribes,
federal recognition of a Native group to be a tribe, is a federal
question under the Constitution. It's not a state law question,
it's a question committed to the Congress under Article 1 of the
Constitution. Congress' power in this area is broad. Congress'
power includes the power to recognize tribes. Now Congress, as the
other speakers have noted, can do this itself. And Congress, in
the alternative, can delegate that power to the Secretary, just as
this legislative body often delegates its power to the Executive
Branch. Here Congress actually did vote. In the 1830's, Congress
delegated authority to the Secretary of the Interior over the
general management of Indian affairs, and in 1994 Congress again
delegated authority to the Secretary of the Interior specifically
to issue the sorts of lists that the Secretary has issued, and
later Congress blessed what the Secretary had done. So, number
one, Congress has delegated the authority to do what the Secretary
has done, issue a list of federally recognized tribes, and then
Congress has come back in 1994 legislation and blessed what the
Secretary has done, although he has corrected what the Secretary
has done. The Secretary omitted a couple of tribes and Congress
directed the Secretary to add the two tribes that had been omitted.
It is difficult for me to understand how, in this circumstance,
there could be any colorful argument left, other than a frivolous
argument, frankly, and I want to be candid.
CO-CHAIRMAN TAYLOR: Let me be candid with you. We are not here
solely to discuss the decision that the Attorney General made.
We're here to talk about the questions Julie was raising which I
think are very important to every single one of us at this table:
where do we go from here, and what are the impacts of this decision
going to be on the future? It's probably going to take a lengthy
educational process and transition process, just as Ms. Kitka
indicated, and I think we're all prepared and ready to move into
that process. Before we begin that process we need to know at
least what the ground rules are, what federal law requires us to
do, what state laws we may have that are in conflict, etc. I don't
really consider that frivolous.
MR. MILLER: No, no - not at all - that is not frivolous at all.
I think that's very, very well spoken. I understood, from reading
the testimony of the last hearing, which I did not attend, that
there was some debate about whether or not the Attorney General had
acted properly as a matter of law and I was confining my remarks to
that alone.
CO-CHAIRMAN TAYLOR: He's already answered that. He didn't act as
a matter of law, he acted as a matter of policy, and he has written
that to us, and each person before you has commented on that.
MR. MILLER: But as a matter of law, what he did was compelled.
Congress spoke on this issue and it binds the Attorney General and
it binds the legislature. Now the job is, as you have very
eloquently said, now how do we deal with the issue? How does the
State of Alaska deal with the presence of 200 tribes in the state?
That concludes my prepared remarks.
CO-CHAIRMAN TAYLOR: Thank you Lloyd, and I'm the one that caused
you to run over a little bit, not you, so - let's move now to Mr.
Tobin.
MR. TOBIN: Yes, Mr. Chairman. My name is Tom Tobin. I'm an
attorney in private practice in Winner, South Dakota. For the past
twenty some years I've been involved in questions of federal Indian
law. Most of that time the questions dealt primarily with the
nature and extent of tribal sovereignty and the nature and extent
of Indian country. Again, in most instances I represented either
state or local governments in the Western states as opposed to the
tribal governments or the federal governments on the other side of
the question. I'm here today as I was asked by the legislature to
look at the status of this particular question, and make some type
of a preliminary assessment on what this particular decision poses
for the State of Alaska. My preliminary assessment is that it's
been a very bad decision for the State of Alaska, and in the
questioning period I will try to explain why I feel that is the
case.
CO-CHAIRMAN TAYLOR: Thank you, Tom, for keeping your comments
brief. Is it David?
MR. CESAR: No, my name is Niles Cesar. I'm the area director for
the Bureau of Indian Affairs.
CO-CHAIRMAN TAYLOR: Oh Niles, yes, thank you for coming. I didn't
have your name listed down with an arrow pointing at it. Please
go.
MR. CESAR: I just have a couple of remarks. One is that the
Bureau of Indian Affairs is a bureau within the Department of
Interior, as we all know, and the Secretary, in publishing the
list, has made the Bureau of Indian Affairs the government's main
spokesperson to tribal governments. We try to carry out that
function in a variety of fashions - in the last 15 years mostly by
contract and compact. Currently of the $70 million plus that comes
in to the Bureau of Indian Affairs, we contract or compact out
about $63 million. A large measure of what we do is under contract
or compact already and so we do not carry out many direct services.
Our job is basically to assist the tribes in their own destiny. In
other words, if they want to contract for federal government
services, then it's my responsibility to help them do that, so
primarily that's where we get involved. The questions, as Lloyd
has pointed out, the Secretary has made the decision for the Bureau
of Indian Affairs. All we do now is carry out the policy of the
Interior Department. I think that we are guided in large measure
by what the Secretary has said in terms of the Sansonetti Opinion
in '93, tells us what his feelings about Indian country in Alaska
are. We try not to get into the debate of what is the policy. But
once the policy is set by the federal government the Bureau carries
out that policy. Thank you.
CO-CHAIRMAN TAYLOR: Thank you very much. At the end of the table
- Gary Oskoloff - is it? Go right ahead please.
MR. OSKOLOFF: Thank you Mr. Chairman. My name is Gary Oskoloff.
I am the Vice Chairman of the Alaska Inter-tribal Council which is
a treaty organization of 160 plus tribes in the State of Alaska of
the 226 or 227 tribes that are in the State of Alaska. I am also
the Chairman and President of the Ninilchik Traditional Council, a
tribe of about 450 members on the Kenai Peninsula, located
approximately half-way between Kenai and Homer. My goal today is
to try and give you a very brief description of generally what a
tribe is from the standpoint of the Chairman, and from the
standpoint of an administrator, and essentially what it does.
Nearly all policies that the tribe operates by were generated
originally by the federal government, that is, most of the tribes,
their areas, their membership, to some degree, were defined. The
federal government went through in the 1950s, the 1960s and '70s,
at various different times and various locations, and actually
quantified, to some degree, what they felt was a tribe that they
were going to recognize. I'm sure you'll get a lot of legal
analysis to exactly how this happened but I won't delve into that.
However, upon doing that, they also felt it was necessary that we
operate by some defined democratic principles, therefore our
election process, to a very large degree in nearly all areas, was
dictated by documents that were sent to us by the federal
government and how that process works very similar to the election
process you all have gone through. Our Constitution is just that.
We also have a set of by-laws that go along with that. We have a
great deal of government oversight. We spend approximately 95
percent of our time, and our funds, on health and welfare issues,
that is through the Bureau of Indian Affairs, and also through the
Indian Health Service - although you tend to see us in those rare
instances when another type of issue, more controversial comes up.
Most of our work is relatively mundane and straightforward, and
very similar, I might add, to what goes on in the State of Alaska
or perhaps in city governments and boroughs. We are subject of
course to a yearly audit of all our funds, including those funds
which are not given to us by the federal government. With regard
to the necessity of recognizing the tribes, or recognition of the
tribes by the State of Alaska, I'll leave that also to legal
discussion but I do see that over the years there has been a great
deal of opportunity missed by the people in the State of Alaska and
the tribal members in particular, by the state and the tribes
working together. I'm talking about social impact as well as
economic impact. I'll give you one short for instance in the last
minute that I have. That is, in the case of the Kenai Peninsula
Borough in which we are located, the town of Ninilchik, if you
will, has had a small boat harbor for many a year. We've never
been able to expand that. Millions of dollars worth of federal
government and state government dollars poured into studying that
issue, and what to do about it, and always the funding is short.
The borough does not have harbor powers, attempted to get harbor
powers, and was turned down by the voters. The city is not likely
to form in Ninilchik for a number of years. We have two people,
out of more than 100 people that were interested in discussing it,
actually in favor of forming a city so I don't think that's likely
to come about in years to come. So we were left with a vacuum.
That vacuum of the ability to expand our economic base and relieve
our bottleneck could have been taken up by the tribe in partnership
with the state and the federal government, however, that was not
done. This is only one example and I just wanted to get that out
to you as quickly as possible. Thank you.
CO-CHAIRMAN TAYLOR: Thank you Gary. We've now heard from all the
panel members and ...
SENATOR ADAMS: Mr. Chairman - don't we still have one on
teleconference - David Getsches?
CO-CHAIRMAN TAYLOR: Yes, I thought he was going to be available to
answer questions.
SENATOR ADAMS: He might have a statement to state.
CO-CHAIRMAN TAYLOR: Mr. Getsches - he's down in Colorado, I
believe. David can you hear us?
MR. GETSCHES: Yes I can, thank you.
CO-CHAIRMAN TAYLOR: Would you like to give a brief opening
statement please?
MR. GETSCHES: [Indisc.] make a couple of minutes of comments and
then maybe that will suggest some questions within it. I was in
for the call the last few speakers and I don't want to run the risk
of reiterating anything so I will keep it brief. I think it might
be useful to make a couple of points here. I, in my experience,
have been involved in Indian matters, as a lawyer, for almost
thirty years and have a great respect and feel for this area called
Indian Law. One of the things that strikes anybody who gets in
even for a short while, is how complex it is. We've been
litigating these issues of jurisdiction and tribal status and
tribal powers in the lower 48 for 150 years, and more than that.
Many of the principles are somewhat clear, but we always find
enough to keep lawyers busy. We managed to litigate more cases in
the Supreme Court than you would ever imagine an area like Indian
law occupying in the business of the court. What we've ended up
with is more unsettled issues and a tremendous legacy of
bitterness, and I'm saying this about a field that I really love
from the standpoint of a lawyer, and now law professor. I've been
involved in some cases, just to take one example, the Washington
fishing rights dispute, where we were in more than a decade of
litigation. I spent much of my life in that case and saw how
destructive that kind of litigation can be. Every legal point
conceivable was litigated. The state fought it as a matter of
policy to make sure that indeed it did have to concede to the
tribes every point that was ultimately won by them. The result has
been a little happier and, well let me just mention one other case
before I tell you about where we are in the Washington cases now.
Another case that you may have heard about is the Water Rights
litigation in Wyoming involving the Wind River Reservation. There
they have litigated now for more than a decade over water rights.
The state has spent over $8 million for its own attorneys, I don't
know how much the tribes have spent. They have several court
decisions, including an even split decision out of the U.S. Supreme
Court, but they still don't know how to manage the water. I think
that brings me to the one point that I want to be sure is on the
table, and that is that there are alternatives to our unfortunate
experience in intergovernmental relations with tribes. What we're
seeing in just the last half dozen to dozen years here is the wide
use of cooperative agreements and contracts. Tribes are now
sitting down and negotiating arrangements with the states to run
child welfare programs, to maintain roads, to do law enforcement.
There's cross-deputization agreements in Washington State, which I
mentioned before. Now that the dust from all that litigation has
settled, the parties are sitting down and they jointly decide
matters of fish biology and who gets to fish when, and for how many
fish. Unfortunately, by the time they got down to that table, most
of the fish had been wiped out while we were in court. In short I
think there's some real benefits to putting aside the legal sabres
and finding ways to govern [indisc.]. It will save money. People
who are governed in a way that they are satisfied with - and I
think in the villages that may mean, in a lot of cases - with some
tribal function of government are going to respect that government
better. You don't have duplication if you can work things out and
you're going to avoid a lot of the problems we've had. It's just
good government and it really is the trend finally, here in the
lower 48. We're now getting down to the practical business of
government, rather than continuing this courtroom combat that has
only served to enrich lawyers. I guess I'd say, in closing, that
if I had any advice to give, I'd respectfully say that Alaska has
the advantage of being able to learn from the mistakes of the lower
48 and to avoid being dragged into this divisive and expensive and
inconclusive set of battles that have occupied us. The costs of
our conflict have been enormous in both financial terms, but also,
and I think mattering more to me, in the ill-will and the kind of
lasting divisions that we have among neighbors and fellow state
citizens. Thank you.
CO-CHAIRMAN TAYLOR: Yes Mr. Getsches, thank you. I assume now
that concludes at least introductory comments by the panel. We've
got approximately an hour and five minutes or so for questions. If
I just took the questions and read them to you that have been
submitted to me, it would take over an hour and five minutes. We'd
have no time for answers. Let me just handle it in this fashion.
I'll ask a question and then turn it over to my co-chair and then
we'll just work our way down the table with the members and
hopefully if we get a second shot we'll have that, but please try
to keep your answers as brief as you can. Mr. Tobin, can you
summarize for me your view of this Knowles' decision? You said
earlier that you would be in opposition to that decision, that it
would cause some problems, and could you cite us, maybe, a couple
specific examples. We've heard a lot of comments about social
concerns, and partnering and other things. Can you tell us what
problems we, as a legislature, may be facing in the future as the
result of this decision?
MR. TOBIN: First of all let me say that I would certainly share
the view of any Governor that was looking for ways to partner up
and help families in any fashion, except for this particular
fashion. In my view, by creating, or recognizing, 220 separate
sovereign entities within the State of Alaska, without having done
so in a public and open manner, where the issue could be discussed,
is totally inexcusable. Apart from that, apart from that as an
historical matter, I think it also breaks what was in essence the
understanding and the original 1991 Settlement Act. I haven't had
an opportunity, other than to briefly [indisc.] that document and
the other documents that have been recently submitted to the court,
but I do know that that document said that it was not the intent of
Congress in 1991 - excuse me, 1971 - to create any special racial
institutions in Alaska, nor to create any special trust
responsibility with respect to the land settlement. While the Act
itself dealt with simply the settlement of the aboriginal claims,
Congress made it clear, in as clear a terms that it could state,
that at that particular point in time there hadn't been a history
of treaty relationships with these - for the most part with Alaska
Natives - and they saw no sense in 1971 to - when everyone was a
citizen of the State of Alaska, a citizen of the United States, to
take that step backwards, evidently, in light of what their
experience had been in the lower 48 states and set up that, or
create that situation in Alaska. I think in every major piece of
legislation since that time they maintained at least a neutral
position on that issue. Secondly, from strictly a legal point of
view, to have done so, to have recognized 220 sovereign entities in
one single state, without having defined the territorial
jurisdiction involved of the Indian Country that's involved when
there are presently conflicting claims on that issue, to me is
having got the cart before the horse. You could end up with having
a sovereign tribe, with a sovereignty of 40 acres, is a far
different thing than a sovereignty of 40 million acres. The third
thing is that while - I know it's been said in documents submitted
to this committee - that the nature and extent of Indian country
define the nature and extent of tribal sovereignty. I don't think
that's necessarily true. There are in this area - I think Mr.
Getsches made the point - there's so much litigation on every point
that there is very little that is settled and that's what this
particular decision, by not defining the scope of tribal
sovereignty itself, promises another two decades of litigation on
that point alone in the State of Alaska in my view. The fourth
thing goes to the system itself - and I'll try to be as brief as I
can. By its very nature, I have fundamental problems with tribal
sovereignty and I have those problems for the following reasons.
The United States Supreme Court has above its pillars, you know,
"Equal Justice Under Law." This system is not founded on those
principles. Now in the lower 48 states, initially treaties were
entered into with Indian tribes because they were not citizens of
the United States. Those treaties carried forward certain
obligations and we ended up with a separate set of laws that are
not equal justice under the law. So we come full fledged,
turnabout in the 1970s, that we have a system, I think the law on
this point is clear, is we have a system where the Constitution of
the United States does not protect anybody's rights. The Supreme
Court has held, on a number of occasions, that tribal governments
are not bound to offer or afford anyone any constitutional
protections other than those that the Congress of the United States
has seen fit to impose upon them by statute. Now that means that -
well in 1970 - '68 I think it was - the Congress said there should
be an Indian Civil Rights Act passed basically guaranteeing
statutory constitutional rights, that these institutions would have
to respect those. I noticed in the Attorney General's letter there
was a reference to that particular statute but there wasn't a
reference to a case that interpreted that statute that said
subsequently that these rights are not constitutional rights and
they cannot be enforced in any forum other than in a tribal forum.
So you get due process of law in each of these separate 220
institutions, but you get only that due process that that
institution wants to give you. You do not have the right to go
into federal court. There are also other things in the whole
concept of Federal Indian Law that are continuing to develop and
pose very difficult questions to the states and other entities that
have to deal with these. For example, the new - within the last
ten years or so there's been a doctrine called - that the United
States Supreme Court has [TAPE ONE, SIDE TWO] called - the
Exhaustion of Tribal Remedies. What that doctrine means is that
even if you assume that the tribal government does not have the
jurisdiction to ultimately resolve a particular question even if,
for example, Congress had passed a law saying that that particular
activity was forbidden for the tribal council to have jurisdiction
over, you must first have to go back and exhaust your remedies in
tribal court before you can go into federal court to protect your
rights or to make your point. Now that whole process, the
exhaustion of tribal remedies process, stacks another layer of
court and lawyers on top of resolving any of these questions.
We've been in court - I think - three or four years on the
exhaustion question alone - been to the Court of Appeals on at
least one, probably two occasions - and we never got to the - never
got to the merits of the issue and here just last month the federal
court said, well - and this by the way is a taxation issue
involving taxation of an non-Indian entity - well, even if Congress
would have said in the statute in question that the taxes couldn't
be imposed, this particular entity would still have to exhaust its
tribal remedies. In essence what I see is two, at least two,
decades of litigation sorting out these problems no matter how
cooperative people want to be. We're just as cooperative in the
lower 48 states, I would think, as they are in other instances.
States have tried cooperative agreements. Mr. Getsches made the
point there's been more litigation in this area than you can
possibly imagine in the last 20 years. It promises to continue
forward. For one state to have to deal with 220 of these deals is
completely beyond me.
CO-CHAIRMAN TAYLOR: How many do you have in the areas that you're
working in?
MR. TOBIN: We have seven or eight real Indian reservations in the
State of South Dakota.
CO-CHAIRMAN TAYLOR: We went on way too long. We're going to have
to make them a lot more brief but I know people wanted to do
follow-up. If you could just kind of note them and I'll let each
...
SENATOR ADAMS: Follow-up.
CO-CHAIRMAN TAYLOR: Got you Senator Adams.
SENATOR ADAMS: Yes, I've worked in Pine Ridge so I'm familiar with
the reservations there, and also Rosebud. Is it true that a large
part of your practice is to litigate against tribes there and what
portion of your practice is to litigate - litigate - against
tribes.
MR. TOBIN: As I stated in my - do you want me to respond to the
question? As I stated in my opening statement, I am an attorney in
private practice. This particular area of the law has generated so
much litigation that most of my time in private practice for the
past 20 years, as well as other lawyers that I've been associated
with - and employed - have involved questions of Federal Indian Law
which I think speaks exactly in part to the point I was trying to
make to the committee. Secondly, its just not in South Dakota -
that's throughout the West. And as a result of that, in terms of
importance of the cases, or the amount of litigation, I think as
pointed out by the fact that we have participated in eight cases in
the United States Supreme Court in the last 20 years.
SENATOR ADAMS: Just to follow-up ...
CO-CHAIRMAN TAYLOR: Go ahead Mr. Adams.
SENATOR ADAMS: I've got a list of your court cases here. You lost
quite a few. Are you prejudiced against tribal rights?
MR. TOBIN: I have a - I have very, very profound and deep feelings
about the nature of tribal sovereignty as it's employed in this
particular set of circumstances and I don't believe those can be
defined as a prejudice.
SENATOR ADAMS: Thank you.
CO-CHAIRMAN TAYLOR: Thank you. Did anybody wish to respond on
behalf -- yes go - if you would - if - I'll have you respond on
behalf of the remainder of the panel so we can move on for another
question.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I will only be responding
on behalf of the entity I represent. I don't purport to speak for
either side.
CO-CHAIRMAN TAYLOR: I know, you're just going to end up doing it
at this point so go right ahead.
ATTORNEY GENERAL BOTELHO: I'll give it a try. Mr. Chairman I
think Tom's - much of what Tom was describing is a situation not
extant here, and that is assumptions battles that really relate to
an issue not before us and that is the issue of Indian Country and
the powers that derive from it. It conflicts either with the Civil
Rights Act, the question of taxation, the battles that he is
fighting are not the battles that arise out of the decision of the
federal government to recognize tribes in Alaska. And the decision
- when we emphasize recognition as not a state function - it is a
federal function and I think it's one that all the panelists would
agree. Where we perhaps disagree is whether - whether - the
federal government has actually spoken on the issue and spoken
definitively with one voice and a point that I believe the - my
[indisc.] colleague, Don Mitchell, has not spoken about - he's
suggested that the answer lies with Congress and where we
fundamentally disagree is whether Congress has, in fact,
definitively spoken on the Tribal List Act of 1994. Congress was
presented with a list. Congress was - basically said, no tribe
will be removed from the list except by Congressional action. The
list in front of Congress at the time was 1993 and the other
specific issue related here were that there were two tribes in
Alaska that were admitted - omitted - from the list and Congress
specifically determined that the Secretary of Interior in
developing the 1993 list had erred in failing to list the Central
Council - the Tlingit and Haida tribes of Alaska - and directed
that those two entities be added on. So it strikes me that a very
important issue that needs to be discussed is the view of those who
believe our decision to withdraw our appeal was an error for
failure to demonstrate sufficient federal action - they need to
address specifically the Congressional action - the Congressional
Act of 1994 and how that should be regarded.
MR. MITCHELL: Mr. Chairman - could I do that briefly?
CO-CHAIRMAN TAYLOR: Well, let me just follow-up with Bruce. You
criticized Mr. Tobin saying that he's really talking about issues
that only involve the question of Indian Country and that's been
most of his involvement in his work. Let me ask you this question.
Who will make the decision about what is, or is not, Indian country
in the State of Alaska?
ATTORNEY GENERAL BOTELHO: Those decisions ultimately are going to
be made by a federal court - that's - and those decisions are being
made as we speak. We've had decisions ...
CO-CHAIRMAN TAYLOR: It's not a question of us running off to some
federal court and saying please do it or please don't. The initial
action and the declaration of Indian Country's done by the
Secretary of the Interior of the federal government - isn't it?
ATTORNEY GENERAL BOTELHO: Mr. Chairman - the - there's been no
determination in Alaska with the exception of the Annette Island
Reserve, that Indian Country exists in Alaska - quite the contrary.
The reason we're in federal court today is because of an assertion
by the Venetie tribal government to tax non-members on the grounds
the assertion that they occupy Indian Country. We have the same
situation with the Kluti Kaah in the Copper River Valley - again no
federal action, action by a tribe asserting that it occupied Indian
Country and the state taking the position that it did not.
[Indisc.] similar issue the state is not directly litigating but is
in amicus in, involving the Tyonek tribe - the Plunkett case that
has been pending for the last 14 years.
CO-CHAIRMAN TAYLOR: Don, you wish to go ahead ...
MR. MITCHELL: I wanted to make two brief comments that probably
won't be too brief. The first is - the first is - that the
assumption is that we don't have a problem if there's no Indian
Country in Alaska and the Governor and the Department of Law, as I
understand it, is still quite vigorously litigating the issue that
there is not Indian Country in Alaska. I agree with the Department
of Law, that as a matter of law there is no Indian Country.
However, and I agree with Judge Holland's analysis, which I think
is one of the best pieces of work that he's done in this area, with
the exception of Judge Holland saying that he didn't think that the
folks that enacted the Claims Act thought about this. In fact,
they thought about it very deeply and I've never seen really, on
paper, a serious work up of why they thought what they did but they
did - so he's wrong about that. But the point I would make is that
I was one of the people that lost the McDowell subsistence case.
When the Department of Law and I litigated that case in front of
the Superior Court in Alaska we thought the Superior Court decision
was absolutely excellent. If you had told us we were going to lose
that case in the Alaska Supreme Court we would have bet the
mortgage. In the same way with Judge Holland - you know the
Kneitze subsistence case about where rural Alaska is - Judge
Holland decided that case down below in what I thought was - I
wasn't involved in that litigation but I was in close contact with
the folks in the Department of Law who were. We thought that was
an absolutely excellent opinion and it was a total slam dunk. We
would have bet the mortgage on that one too. So when you get up to
the panel on the Circuit, maybe the fact that you're right means
that you prevail and maybe the fact that you're right means that
you don't. And if, in fact, the state loses the Indian Country
situation in the Circuit, then I think the Attorney General would
probably even admit that the state is in some pretty thick soup.
But returning to the List Act, that is one of the reasons that I
think this needs to be litigated because Judge Holland - I believe
there was somebody earlier on the panel said that any arguments to
the contrary that this hadn't been settled were spurious or
trifling or something - Judge Holland said, in his opinion, that
the federal government had not recognized any Alaska Native groups
as tribes. He also indicated, as I have long maintained, that the
Secretary never had any delegated authority from Congress to enact
the methodology for doing so administratively but he said hey, what
the heck, he did it anyway and Congress never slapped his hand so
that counts as a delegation from Congress. That's a very
interesting issue and much bigger than Alaska sovereignty that some
day the U.S. Supreme Court is going to have to decide for us all.
So he then gets to the fact that nevertheless, even though this
group has never been federally recognized, they've been recognized
by common law. And I would suggest - and I can spin us all off for
an hour with Lloyd and I arguing about it - that there is no common
law recognition. There's a lot of confusion because Congress has
a right not to know what it's doing and Congress has enacted
generic statutes, such as the Non-Intercourse Act, where they just
used the word "tribe" and the courts have decided that Congress,
for those statutes, intended both federally recognized tribes and
tribes that exist as a matter of reality, to be included within the
purview of that term. That is not the common law. So as far as
I'm concerned there has never been any recognition by Congress of
anyone which brings us to the List Act. The List Act did not come
from Moses on a tablet. Without violating confidences of
communications that I've had with the House Resources Committee, it
is truly ironic that if it turns out that Congress has, in fact,
recognized all Alaska Native villages as federally recognized
tribes by validating Assistant Secretary Deer's unlawful inclusion
of them on the List Act, when in fact that statute came out of a
committee of which our Congressman, Mr. Young, was the ranking
minority member, and it came out of the Senate Indian Committee of
which our Senator, Senator Murkowski, was not the ranking minority
member at the time, but was a senior member of that panel and I
guess violating the confidences a little - I got a call, from some
people that can be nameless, saying that this had shown up on their
desk in the committee and I can tell you that Mr. Miller - a lot of
people in this body are not very fond of George Miller - but I can
tell you that Mr. Miller and his staff are not aficionados of
Native sovereignty in Alaska being a good policy result. They like
Alaska Natives - they've done wonderful things - they're record is
exemplary with respect to doing good stuff for the Native community
but they think - they're with me in terms of this being a policy
mistake and they basically said, well you know, this is Don's
problem. If Don doesn't want to take care of this in this bill,
well, you know, we don't represent Alaska - we represent Martinez,
California. So, my point is is that if you read the text of the
List Act, it is very ambiguous, as to how it's drafted and one of
the things it also says is that Congress expected this list to be
accurate. I'd love to litigate the validity of the List Act with
Lloyd, if somebody wants to just turn our meters running. It would
be a very interesting question - maybe he wins, maybe I win - but
to say that this has been settled definitively because of the List
Act, in my view, I think is a [indisc.] and it's wishful
conclusions.
CO-CHAIRMAN TAYLOR: Mr. Tobin, would you respond to that?
MR. TOBIN: I have just three quick points. Number one, the state
did an excellent job of briefing this question. Those briefs were
submitted after the List Act so I think that the position initially
that the Attorney General made that this decision was based on
other than - the decision not to pursue the litigation - was not
based on litigation reasons are sound. The briefs submitted were
excellent briefs and all of these statutes that have - etcetera -
have already been passed and addressed in those briefs. Now along
those lines, I agree with the gentleman to my left, and in fact
there's a specific paragraph that I'd like to read to the committee
with respect to the 1994 Act that's being put forth as having
constituted the recognition. This is out of the House report or
Senate report. I'll get the exact cite but it's verbatim and it's
just five or six lines.It says: [begins reading]
"The committee recognizes that the Solicitor's Opinion
back in 1993 has generated controversy and there's
extensive litigation on the subject of the precise
sovereign powers of Alaska Native tribes. While these
issues deserve further review by Congress, which is a
separate point, nothing in this Act should be construed
as enhancing, diminishing, or changing, in any way, the
status of Alaska Native tribes. It is the intent of the
committee that it's previous position taken in the 1987
amendments to the Alaska Native Claims Settlement Act,
which was to take no position, be maintained, and that
nothing in this Act shall confer on, or deny to, any
Native organization any degree of sovereign governmental
authority over lands or persons in Alaska." [ends
reading]
So the committee itself made very clear that they hadn't resolved
the question, which is not to say that maybe they shouldn't have,
one way or another, or that Congress hasn't ducked the issue for a
considerable period of time but this particular committee should be
under no misconception that the State of Alaska had anything other
than strong, legal, meritorious positions to pursue in Court. Now,
oftentimes, in this particular area of litigation, you often lose,
as the gentleman says. Sometimes you think you're going to win and
sometimes you don't, but not very often do you concede substantial
questions on the basis of a single federal district court decision.
We've had more cases that we've participated in, cases that we did
participate in by the way, with respect to a comment earlier, is
that of the eight cases that we've participated in the United
States Supreme Court case we've been successful on seven. And in
most of those instances, the federal courts of appeals have been
reversed by the United States Supreme Court so this is a very
unusual area of law, and if you have a solid argument, and if
you're correct historically and have the Congressional
documentation, then in an instance like this, were there just one
tribe to deal with in Alaska, I could see the political sense in
skipping some of the litigation and getting on with the people
problems but when you have the potential of 220 tribes to deal
with, I see that as a very different situation.
CO-CHAIRMAN TAYLOR: Julie - did you wish to respond to - I don't
want to keep that one question going [indisc.]...
MS. KITKA: I just wanted to note something for the record, Mr.
Chairman. The previous speaker raised specifically the question of
Tlingit and Haida Central Council being added to the list, and I
wanted to note for the record that the President of the Central
Council of Tlingit and Haida Indians, Mr. Ed Thomas, is in the
audience and I'm sure that he would be more than willing to address
the committee to talk about both what the error was in the list on
why that they weren't included on the list as far as the process
for getting the Central Council recognized, either today or to
supplement the record for the written record. I just wanted to
bring that to the Chair's attention that he is in the audience.
CO-CHAIRMAN TAYLOR: I knew Mr. Thomas was here. I appreciate that
fact and I don't know that there's a real question about that. It
was an error. The error was corrected and I don't think that's
probably really determinative of that issue. Senator Halford -
just be...
MR. THOMAS: The reason why it was important was because of the
governmental powers that would be lost by not being on the list.
I think the important question of to the value of tribes needs to
be brought forth at some point in time. If none of us were
recognized as aboriginal tribes, all of those programs from the
Department of Interior, the Indian Health Service, and HUD, and the
Department of Labor would go away and so then we 'd need to amend
the state budget to include those services of people. Now I
understand that listening to Mr. Mitchell here, his lobbying for a
job to fight these rights - and don't hire him because he lost all
of our issues when he was on the AFN - maybe I should say hire him
so we can [indisc.].
CO-CHAIRMAN TAYLOR: Ed if you'd stay there for a minute I think
Senator Halford has a question for you.
SENATOR HALFORD: I mean I think there's a difference in Congress'
correspondence on the list. For years the list said Native
entities, it didn't say tribes. It referred to entities in Alaska
because we have been schizophrenic all along in that we have all
collectively wanted the maximum benefit for any segment of Alaska's
population so of course we want to maintain those benefits. But
the difference is a list for the benefits versus a list for the
powers in conflict with the State Constitution that we have trouble
with. I don't think anybody wants to see any entity come off the
list for federal benefits but that's the root of our own duality in
the way we deal with those lists and the lists were actually
separated for years in the '80s under the Reagan and Bush
Administrations. They were actually separated and called a list of
entities instead of a list of tribes to avoid the powers arguments
that we seem to be in today.
MR. THOMAS: That's exactly right and much of that is to our own
demise. We never had tribes. This is a non-Indian term. Tribes
is something that belongs back - you know the tribes of Europe or
wherever else. We don't have such animals here in our aboriginal
state but we were eligible for those programs because of our
aboriginal ties to the use and occupancy of the land and many other
constructions of law - Indian Law, of course. So I think you're
absolutely right in so much as the use of entities was terms that
we, as Alaska Natives, insisted being there because we all didn't
have tribes like you do in certain parts of Europe. And I think
that entities was more of a generic term that is now used fairly
commonly in referencing lower 48 tribes, particularly in places
like Colville where they have consortiums of tribes very much like
the Tlingit and Haida was in its recognition. I want to make one
more point too, it's that the ANCSA did not have language to create
recognition because that recognition was already there through the
Indian Reorganization Act and other Acts such as the Tlingit and
Haida Act. So what - it did not get rid of those - it did not
create them nor did it get rid of them. It just did - it remained
silent on that and federal law will say that those other laws would
prevail so long as they are not litigated by subsequent law so yes,
ANCSA did not create anything, they didn't want to create anything
because it was already there - they didn't need to create anything.
SENATOR HALFORD: Well, I just want to clear this - I think every
Governor since Statehood has opposed the power side of this
argument but always supported the benefit side of the argument, and
I think it's important that we be on record as supporting the
entities question and all those benefits that are provided to a
portion of our population. It would be very foolish not to be in
support of that. The question is the powers in conflict with our
own Constitution.
CO-CHAIRMAN TAYLOR: Maybe we could eventually even get to some
questions concerning what powers are in conflict and which ones are
we going to have to worry about. Let me turn it over to my Co-
Chair. I only intended to take a few minutes - I think we took 15
or so just on that one - but I think it was a very good discussion.
And Ed, thank you for stepping forward. I appreciate your
comments.
CO-CHAIRMAN PORTER: Thank you Mr. Chairman. I guess I'd like to
say just something by way of basis of why I think I'm here and why
I think most of the people on the legislature that I've talked to
are here. Having been one of the people, like so many in the room
that have been in this state for a long time, I can remember,
albeit some years ago, when I think what I hear people saying
they'd like to do was done and worked: to sit down between
individuals, talk it out, reach a conclusion, and get on with
business and everybody recognized, and had no dispute, with the
results of those agreements. Unfortunately in the 45 years since
Statehood, it's been my experience that now, someone will feel put
upon, put out, disenfranchised, somehow in disagreement with those
kinds of agreements and will take advantage of those kinds of
agreements and will take advantage of their individual rights to
take those issues to court and there we are having a court decide
the kinds of things that we should be deciding. That unfortunately
is reality and that's why I feel uncomfortable with the decision to
drop this suit - not because I agree or disagree with tribal status
in Alaska - I don't know what it means. It's pretty easy to slip
into a us or them attitude when you're discussing these things.
I'm not approaching it from that standpoint. It is all of us, who
I think don't know what this decision means. The only thing that
it was from my benefit was to answer the questions that we don't
have time to even ask here. All of the jurisdictional, conflicting
government, constitution and statutory provisions, regulatory
provisions - there are so many of them that will affect each and
everyone of us regardless of our racial status. But that is why
I'm here and that's why I think the concern exists. To that
degree, I guess, I would just ask the Attorney General -- I
disagree also with the premise that the decision to not go forward
with a suit was a legal mandate. I think in my lay review of it
your position was very good legally and I think the decisions were
made arbitrarily and I think they were made without following their
own regulations, which I think is a requirement. Notwithstanding
that, I don't know what the status would result if this stays in
place. To that degree, to that end, has the state, in any way,
endeavored to sit down with individual villages and establish a
relationship of commingling as it was discussed - government
powers, and is it the intent of the Administration to share that
with the legislature if they have?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, those kinds of agreements
do exist and have for a long time in various contexts. Let me give
an example. At the last hearing I think there was a great deal of
concern about the Indian Child Welfare Act and possible conflicts
with tribes. And it was my impression that ICWA, as we know it,
was somewhat of a revelation, but in fact, the state has been
working with tribes identified as such in specific federal
legislation since it was enacted in 1978 and in many cases we have
formal agreements with tribes about how we're going to interact in
the investigation of children's matters. We've litigated, we've
been in the courts, both state and federal, at times at odds with
tribes, but the vast majority of the cases we have - there is
resolution in a very positive way. And I use that as a specific
example of where I think there's been a long term good
relationship, and an improving one, a much more sophisticated
relationship, many times where tribes will not get involved because
they believe that the state - Health and Social Services Department
- in an appropriate manner and has no reason to try and second
guess it, and vice versa. In the area of rural justice, as I
indicated in my letter to you, we are looking at ways of working
with local communities, in particular tribes in two regions of the
state, to talk about ways that we can make sure that there's more
accountability in a system where we as a state have very limited
resources. Take for instance, the Y-K Delta Region. We have VPSOs
in many, but not all, communities, and certainly not State Troopers
available, state courts, probation officers, and the like, and
we've discovered that there is a major frustration with the
inability of local communities to deal with criminal behavior that
doesn't initially arise as something you would fly a trooper into
a village and bring a person to Bethel for prosecution. And we're
now engaging in dialogue about the area and how we can get
alternative kinds of community resolution - not unlike the Youth
Courts in Anchorage - to deal with offenses. We are obviously very
cognizant of the sovereignty issue and we made clear that we do not
want to do anything that will abrogate the state's premier role in
the criminal justice system, but we also want to work with
communities and so those are two instances that I would put forth
as I, of what I, believe are very constructive ways of working with
tribal entities, and which, particularly the case of ICWA, for the
most part, have been a very positive experience and the conflicts -
given the volume of activities - conflict is relatively minor.
CO-CHAIRMAN PORTER: Could I ask - I recognize that the - or I
believe what you said is - the agreements that you have reached do
not recognize any sovereign authority of the groups that you're
dealing with, or ask that they not assert it but would the court be
able to recognize this agreement? Would the courts have the
authority to recognize a sovereignty issue?
ATTORNEY GENERAL BOTELHO: In the context of the criminal justice
system, this is really an executive prosecutorial diversion
approach so it is not one the courts would be dealing with. On the
other hand, you have taken actions yourselves, as a legislature,
in, for example, grants to unincorporated communities that might go
to a tribe but then there's a specific requirement that any
sovereign immunity would be waived. And there are several Alaska
Supreme Court cases in addition which deal with waiver of sovereign
immunity for purposes of lawsuits between entities, tribal
entities, in Alaska. That is a source of conflict between what the
Ninth Circuit would say and what the Alaska Supreme Court has said
but there are a variety of contexts where waiver has come into
play.
CO-CHAIRMAN PORTER: Mr. Chairman if I could use the ability to sit
at this end of the table for just one more follow-up. Is it state
policy in forming these agreements or in other relationships with
villages, for lack of a better term, to establish a waiver of any
perceived sovereign immunity on their part before you transfer an
asset or reach an agreement or ....
ATTORNEY GENERAL BOTELHO: To the extent that this Department of
Law is involved in developing contracts, the answer is yes. What
I can't tell you categorically, whether that is the case in all
instances. We're not involved with every relationship that evolves
between state agencies and tribal entities.
CO-CHAIRMAN TAYLOR: In fact though Bruce, they can't waive
sovereign immunity if they possess it, can they?
ATTORNEY GENERAL BOTELHO: The law is that, with respect to tribal
lands, they cannot waive without Congressional approval. The
Alaska Supreme Court has made clear that in other contexts they can
voluntarily waive, and as I said, that is where there is a conflict
of authority between the Alaska Supreme Court and the Ninth
Circuit.
SENATOR HALFORD: The Ninth Circuit says they can't waive what they
do have. The State Supreme Court says they can waive what they
don't have.
ATTORNEY GENERAL BOTELHO: I don't think it's quite that
simplistic, Mr. Chairman. The waiver issue arises specifically
with regard to lands and in that respect I think there is unanimity
that with, absent Congressional authorization, tribes cannot
voluntarily waive. With regard to other contractual matters, the
Alaska Supreme Court says yes.
SENATOR HALFORD: And does the Ninth Circuit agree?
ATTORNEY GENERAL BOTELHO: No, it does not.
SENATOR HALFORD: Thank you.
CO-CHAIRMAN TAYLOR: Did you want to respond, Mr. Mitchell, on that
point? Just briefly please.
MR. MITCHELL: No I don't wish to respond to that particular point.
I would say, however, having happily been given the floor, that I
probably should say something about Mr. Thomas' remarks. For the
record, in case it's - in case he missed my opening statement - I
did not volunteer for this grim work. I believe the committee
invited me down and I do, however, think that Mr. Thomas' remarks
were instructive because this is a very difficult policy area that
has lots of ramifications for everybody, including the Native
community, and I have noticed no one ever mentioned the word
sovereignty in my presence 'til 1982 and I have hung around a fair
number of years prior to that point and it has gone from that to
now being a litmus test. I have not seen a thorough vetting of
this issue inside the Native community about what the ramifications
are. You know we're not going to have a fishery on the Kuskokwim
River this spring, and if everybody on the Kuskokwim River is a
sovereign Indian nation, that ain't going to fix the problem. It's
not going to fix any of the problems that Julie listed in her, in
her, list of concerns, and Vine Deloria [ph], who is a colleague of
Mr. Getsches, wrote a very interesting book about the Indian
Reorganization Act ten years ago, and he is certainly viewed as a
much better friend of the Native American community than I am, and
it was his view that, which I wholeheartedly endorse, which is that
this entire affair is a sham unless a Native government has its own
working economy. That's the dilemma of rural Alaska. You've got
80,000 Alaskans living out there with no economy and it doesn't
make any difference whether they're a sovereign Indian nation. We
have a collective responsibility to do something about it.
CO-CHAIRMAN TAYLOR: Let me interrupt everybody here for just a
second, Don. I know how strong everybody feels about these
different sides....
MR. MITCHELL: My point, Mr. Chairman, and then I will conclude,
thank you, is that I don't think that it's helpful to be attempting
to engage in this kind of policy analysis in an environment in
which motive is questioned with respect to folks that might not
have reasoned to your favored result - and I'll let it go at that.
CO-CHAIRMAN TAYLOR: I appreciate it. Julie, before we get to you,
and I will, it's very obvious we're never going to get to
everybody, and even have a chance at their questions the way things
are happening here. What I'm going to ask everyone to do is to
submit to the members of the panel, and those other members who
have questions, so that no one is excluded from the legislative
process, to please submit the questions in writing. Many of them
have prepared them in writing - I mean I've got several pages here
before they came to the meeting - and that I will have Ted collect
those, he'll make copies of them, and those will be sent to each of
you and to anyone else you would like them to have so that they
might respond back so we can begin the very process that we've
started here. I think it's a healthy one, and one that we need to
continue with if we're going to find out the answers to some of
these things that have people concerned and it's hoping, at least
through this beginning process, that we can start finding out.
We've had a lot of discussion now about philosophies and laws and
technical things, but maybe we can start finding out who is going
to have jurisdiction over a Native child who happens to be 1/8th
blood, and happens to have three overlapping tribal groups now that
have been handed to them by this decision, and are also represented
in their parental heritage by at least two different Native groups,
linguistic or cultural. We may literally have children out there
today who have a parent that is Tlingit, on the one side, Aleut on
the other side, and each of those parents were 1/4 blood or less.
The child is now 1/8th blood. Who has sovereignty? To whom do the
parents turn in a Superior Courtroom in Alaska so they can comply
with the federal Indian Child Welfare Act? Those are the kind of
practical questions that I think many of us wanted to get to and
there's not going to be time to do it, and I think we need to know
those kind of answers to those questions because if we are setting
up 220 some tribal courts or if people have even an intent to set
up 10 new ones, or 15 new ones, we certainly need to know that, or
people's lives may very well become complicated and get tied up in
some lengthy litigation that goes for a long time, so it's those
types of questions, the overlap questions about what group - I've
had several of my friends call me and said, well, I think I belong
to at least two or three different tribes, and I couldn't answer
it. I really couldn't and I'm hoping you people can answer those
kinds of questions because I think they're important questions, at
least to the people I'm hearing from so gather up all the questions
that we can, we'll get them all to you, and hopefully you can
respond back and we can set up further times when we can sit down
and talk like this because I do believe it's very important to all
of us. Julie, you're up.
MS. KITKA: Yea, I was going to suggest to the committee of one way
that I believe that the committee can go forward, in a very
positive, constructive way, but also in a framework in which the
committee and the legislature can get things done, and I
respectfully suggest the structure of the Alaska Native
Commission's report, for those of you that are not familiar with
that - that was a joint federal-state commission funded by the
legislature - $750,000 - funded by the U.S. Congress by $750,000;
half of the commission members appointed by President Bush, half of
the commission members appointed by Governor Hickel. They came out
with extensive recommendations, a huge hearing process. The
legislature has not yet put that on their agenda to deal with. On
the Congressional side we have had a unprecedented joint hearing,
this past year, by all the committees that have jurisdiction over
Alaska Native issues. On this subject, it's a very timely,
appropriate subject for this legislature, and maybe in a joint
House-Senate forum on that we can make some progress. A lot of
these issues on the self-governance issue and the desire of Native
people to have greater control of their lives, are expressed in
that report in the Findings, and that's a structure and framework
that you might be to proceed, which I would view - you're going to
have disagreements, you're going to have people agreeing to
disagree - but at least it is a structure and a framework in
looking at some of these issues to frame it for the committee and
the legislature to make some progress.
CO-CHAIRMAN TAYLOR: I think that's an excellent idea too, Julie -
good place to start - and these questions are just another way to
start.
MR. THOMAS: I just wanted to make the comment for the record...
CO-CHAIRMAN TAYLOR: Go ahead, Ed.
MR. THOMAS: Tlingit and Haida Central Council was recognized in
1935 and we've been recognized and operating as a tribe ever since,
and there's still fishing going on in Southeast Alaska. People are
still hunting. We've entered into numerous contracts with the
State of Alaska. We have set up mechanisms for disputes, which are
resolved in state or federal courts, depending on the issue, but
most the time the state courts, so we outline - we have the ability
to outline - how we will function within the state and within the
communities we serve. There are other smaller tribes within our
region that manage their own Bureau of Indian Affairs contracts.
We separate the jurisdiction issue. They have first priority, we
will take the second one. There are many ways in which we can sit
down, where the Chairman was saying, your Co-Chairman was saying,
working out some of these things in a gentlemen fashion. I think
that we have gone a long ways with very few lawyers. You know if
we had some of these lawyers from, that you're listening to from
down south, instead of doing the things we're doing cooperatively,
we'd be in court all the time, making more lawyers rich, but we can
- we have demonstrated that we can - work out good cooperative
agreements for by we can manage our problems, manage our issues,
much like what you do with the municipalities, much like you do
with your boroughs, even though boroughs and cities oftentimes,
like - I was in Ketchikan for 10 years and I know that they don't
get along for the most part, and the jurisdiction issue comes up.
Now we don't say, well let's get rid of all the boroughs now
because they're fighting with the cities or let's get rid of all
the cities because they're fighting with the boroughs. We try to
mitigate those problems. I served on some of the committees down
there and it works. We can't just say, well, because one system
has a different jurisdictional structure than another, let's get
rid of one or the other. I think there's a lot of value to having
some of these tribes identified by - that worked very well with the
people, and I think that many of the tribes do. I think our tribe
works very well with the people we serve and I think we work very
well within the parameters that are set by the state. I think we
can continue to do that. I don't think we need to have all the
animosities that are being generated over somebody's perception
that all of a sudden we're going to take over everything. That's
not going to happen and I think most everybody knows that.
CO-CHAIRMAN TAYLOR: Gail...
SPEAKER PHILLIPS: Thank you Mr. Chairman. About two hours ago we
started out on this hearing. The legislature started out on this
hearing wanting to know a couple of things. We wanted to know, Mr.
Attorney General, why this decision was made, and what were the
facts behind this decision being made, and we have not gotten
there, to that point. We don't have any of those answers. I think
it's crucial that the legislature get that information. I have
five or six pages of questions here that deal with the facts that
went into your decision and we don't, Mr. Chairman, we don't have
the answers to that question. It is imperative that the
legislature has that information.
ATTORNEY GENERAL BOTELHO: Mr. Chairman I will repeat the remarks
I made at the outset. I'm not sure what I can add in terms of
fundamental policy consideration that led the Governor to direct
the Department of Law to withdraw its appeal on the point of Ft.
Yukon's tribal status, other than again, I guess I could give you
a little more context. The Governor became aware of the issue of
that appeal, I think, around the time of the AFN Convention, at the
very time that he was publically calling for a better working
relationship between the state and tribal entities. I think he was
caught short realizing that we were charging ahead on this
particular case, and it lead to an opportunity for extensive
discussion, within the Cabinet, within the Administration, about
where the state was headed, and whether it was an appropriate use
of state resources to continue to battle this issue when the
Administration's viewpoint was that tribal entities provided a
great vehicle to accomplish the kinds of changes that he would like
to see, indeed the Administration - and I suspect the legislature
would like to see - in rural Alaska and they are summarized by the
issues that Julie identified at the outset as issues that we all
share in common for improving lives of Alaskans.
SPEAKER PHILLIPS: Just a brief follow-up, Mr. Attorney General.
Would the state support asking Congress to delineate the powers of
tribes in Alaska? Have you done that and would you do that?
ATTORNEY GENERAL BOTELHO: Again, Mr. Chairman, in our view,
Congress has already spoken on the issue. I'm not in a position to
indicate whether there's any reason why we would want to - to
request a restatement of tribal status. If you're asking
specifically whether Congress should enact - to ask Congress to
delineate the powers of tribes [indisc.] - I think those are fairly
clear and I'm not sure it's [TAPE TWO, SIDE ONE] one of the
questions and I'd like to have a moment to talk about it. Again,
I'm troubled that some members are under the misperception - or
[indisc.] under the misperception - that the decision to withdraw
the appeal in any way affects the Indian Child Welfare Act, again,
which has been operating nationwide since 1978, including the
state, and with the delineation of tribal entities recognized by
not only federal law, but incorporated into the rules of court, of
this court, in which, you Mr. Chairman, I suspect, while serving on
the bench were also occasionally forced to deal with. Your example
earlier, are indeed difficult questions, in terms of conflicts of
laws perhaps, or who belongs to which tribes. The Act does
attempt to sort those out, just as we have to sort out who has
jurisdiction when you have a parent living and residing in one
state, and another in another over custody battles.
CO-CHAIRMAN TAYLOR: Should we be requiring, as an example, or
encouraging people, through legislative process, to register?
ATTORNEY GENERAL BOTELHO: To register as?
CO-CHAIRMAN TAYLOR: To register as members of given tribal units,
so that we know which tribal unit has the following people within
it, which has another group within it, so that people would then
have a way of knowing themselves which jurisdiction they would turn
to. Is that something you would encourage?
ATTORNEY GENERAL BOTELHO: I can't conceive that this is a role for
state government, just as I would find it strange that the
legislature would require people to enroll with any entity in order
to reap benefits. Those are questions, again, that are determined
by the entity itself. Rules of membership is a matter of federal
law, is a question resting exclusively with the tribes themselves,
and not with the legislature or any other state body.
CO-CHAIRMAN TAYLOR: So you wouldn't encourage us to try and help
people find out where they're at through such a process?
ATTORNEY GENERAL BOTELHO: Mr. Chairman, again, I do not believe it
is a prerogative of the legislature to do so as a matter of federal
law.
CO-CHAIRMAN TAYLOR: Okay, I may be under a misunderstanding. I
thought you said that everything had been worked out on the Indian
Child Welfare Act and it's my understanding that we are, in fact,
operating in a fashion that is satisfactory to our Supreme Court,
but is in direct conflict with the federal law and nobody has ever
challenged that.
ATTORNEY GENERAL BOTELHO: Mr. Chairman if I have conveyed the view
that everything is working out, I don't mean to imply that. Let me
make clear, however, that whatever happened in November of 1995,
has not changed how we've worked since 1978 under ICWA. There are
conflicts between the Alaska Supreme Court and the Ninth Circuit
over the degree of jurisdiction. Those battles are thoroughly
unaffected by the decision not to take the appeal.
CO-CHAIRMAN TAYLOR: Go ahead Senator Halford.
SENATOR HALFORD: Cooperation doesn't mean recognition of
jurisdiction. I think our Supreme Court has directly said that
they recognize no other jurisdiction and will not recognize any
other jurisdiction, but they will cooperate with virtually anybody
on input. Isn't that kind of what they said?
ATTORNEY GENERAL BOTELHO: With regards to the Indian Child Welfare
Act, the U.S., or the Alaska, Supreme Court has directly
incorporated the federal ICWA - Indian Child Welfare Act -
acknowledges the list published in that Act as the tribal entities
with which it must relate, and to which the state is required to
give notice when an Indian child is involved.
SENATOR HALFORD: Do they, do they recognize any jurisdiction at
all, other than their system, or do they recognize only
information?
C0-CHAIRMAN TAYLOR: Do you want to try that one too?
MR. MILLER: Yea, the issue on jurisdiction doesn't turn - I think
the Attorney General is correct - doesn't turn on this issue of
tribal recognition It's a little more complicated than that. The
issue of jurisdiction turns on what the Alaska Supreme Court calls
the Reassumption Petition Process, which is a special process under
the Indian Child Welfare Act. Without getting too technical, the
Alaska Supreme Court and the Ninth Circuit disagree on the
relevance of the Reassumption Petition Process. It's an
interesting issues for lawyers, but not directly relevant to the
issue of tribal status, recognition of tribal status.
CO-CHAIRMAN TAYLOR: What is the impact, though Lloyd, when the new
tribal status has occurred, and 20 or 30 new tribal court entities
are now created. Doesn't that directly impact the very question I
asked the Attorney General?
MR. MILLER: I think what the Alaska Supreme Court would say, in
the next Indian Child Welfare Act case, is we accept that there are
federally recognized tribes, we see the law in 1994 Congress says
there are, it doesn't change our view that even though there are
tribes, and even though they have tribal courts, they must go
through the Reassumption Petition Process to participate in the way
you're discussing, jurisdictionally, in an Indian child case. I
think the Alaska Supreme Court would not change its mind on that.
They pretty thoroughly considered it in the F.P. case very
recently.
CO-CHAIRMAN TAYLOR: Sooner or later though, some tribe takes them
up, don't they, to a federal court?
MR. MILLER: Sure, and the federal court has ruled the other way,
that the tribal courts do have jurisdiction.
CO-CHAIRMAN TAYLOR: And so what we'll very likely end up with, if
conflicts do arise, and we can all assume they will over time, is
that someone will take the State of Alaska to a federal court,
challenge this, and the federal court will very likely - I think we
all agree with your statement - will very likely rule against the
State of Alaska at which point in time all 20 or 30 of those tribal
courts gain primary jurisdiction as concerns the placement of that
Alaskan child. I think that becomes quite relevant then to all of
this, and it isn't just some esoteric discussion among attorneys.
MR. MILLER: No, I agree with the Chair that that eventuality is
possible. What I thought was more helpful to me, was to reflect,
actually if I could digress for a moment, on Mr. Tobin's remarks.
Mr. Tobin has been very active in South Dakota and the midwest
states, as has my colleagues in my firm are, opposite sides of the
case, lots of very bitter litigation. You know, what impressed me
13 years ago, when I came to this state for the first time, is on
the one hand, Federal Indian Law was not very well developed, and
hardly anybody understood the principles. All of you are so much
more educated than anybody was back then. On the other hand, this
state, including this legislature, had a much more enlightened
approach, toward Indian tribes within the state. You didn't call
them tribes, you called them Native groups, you called them
villages, but you had a much more - and I believe you still have a
much more - enlightened approach. Most states don't so quickly go
into these Indian Child Welfare agreements that the Attorney
General talked about. You brought in a mediator and the mediator
helped the two sides come together. It was admirable. You provide
enormous grant support to your villages. You require waivers of
sovereign immunity. That's appropriate to protect your interests,
but you do it. Many states don't provide any financial support to
their tribes. I think there's a lot to praise in the way the
legislature and the Governor and the Executive branch deal with
villages, not since November of last year, but for many, many
years. And however the law goes, in terms of federal recognition
of tribal powers, I believe you will continue to set a standard
that very few states have met in having an excellent relationship
with the villages. I think you should be praised, and I think that
Indian Child Welfare process, that - I think it occurred about
seven or eight years ago - ought to be duplicated. Look at law
enforcement. Chairman Porter [indisc.] with law enforcement. Why
not have a mediator come in and explore what are the legitimate
local interests in law enforcement? What can VPSOs do and not do?
What is their training capable - what isn't their training capable
to let them do? Is there some common ground? Maybe there wouldn't
be but maybe there would, and if so, maybe you would have some new
agreements in the law enforcement area to deal with minor matters
that don't justify flying out a state trooper. I think it's an
exciting area for you to build on what you've done before. I don't
view you as ...
CO-CHAIRMAN TAYLOR: We're all in agreement, aren't we, that the
decision dismissing the case rendered that issue really moot at
this point. It's interesting to discuss it but the question of
whether or not there are 226 new tribal entities within this state
is now resolved. That cannot be appealed by anyone else. The time
in which you could do so has passed, hasn't it?
MR. MITCHELL: Mr. Chairman that's true with respect to this
particular lawsuit. I would certainly encourage -- there are a lot
of other procedural vehicles kicking around, including, if it
hasn't been dismissed yet, the lawsuit out of Barrow to declare of
downtown Barrow as Indian Country. There are a variety of places
in which this argument can be raised, and as I said at the
beginning of our discussion, all we have is a unpublished opinion
of one District Court judge as to what the situation is. But I
just wanted to make one quick comment about the Indian Child
Welfare Act because I think the conversation got skewed, because I
think it is not whether the state should be doing any of the kinds
of things that the Attorney General quite appropriately says they
shouldn't be doing, but whether or not it is appropriate to ask
Congress. Think about it. All of the litigation about ICWA that
I understand that's in conflict basically when you get down to the
heart of the matter, it's the Alaska Supreme Court and the Ninth
Circuit disagreeing about what the Congress did enact in what ICWA
intended. And if there's a disagreement about Congress' intent,
then obviously the place to have that disagreement resolved is in
Congress. There's one other angle that, in addition to the one
that Senator Halford raised, or I guess it was the Chair raised,
about, about Indian tribes have certain rights with respect to
children within their tribal membership, and now all of a sudden
you have this plethora of potential groups that can each claim a
single child. One of the most interesting things that crossed my
mind coming down here, is the whole issue of quitting the club.
CO-CHAIRMAN TAYLOR: Can you?
MR. MITCHELL: In 1934, after John Carter and Felix Cohen didn't
get everything they wanted out of the Indian Reorganization Act,
they went back to the office and wrote a Solicitor's Opinion that
gave everything else back, which has been sort of the baseline
document about what the inherent powers of Indian tribes are and
again, my good friend Mr. Deloria [ph] says it was a scam from
start to finish because Congress wouldn't give tribes inherent
[indisc.] but as part of that Solicitor's Opinion, they say,
without citing to any authority, and maybe if Mr. Getsches is on
the phone, I think he would - he probably of us all would know the
answer to this if there is one - they say in that Solicitor's
Opinion that of course it's a two-way street, and that anybody who
no longer wants to be a member of the tribe could basically quit
the club just the way if we don't want to be a United States
citizen we go through this process for that where you go to the
Department of State and you - Lee Harvey Oswald said I quit and
moved to Moscow. And if you - that article in the paper, two
Sundays ago in the Anchorage Daily News, about the woman with the
voluntary placement who'd had only the most marginal contact with
the Native tribe in Unalakleet. The easiest way for her to have
gotten out of that jam was to say, if somebody made me a member of
a club I never joined, I hereby quit. And, there is no process
that I'm familiar with. All of the cases, generally, are
associated with people that want to be members of tribes, not
people that don't. And then you have the interesting question of,
if she could quit but what the tribe's really interested in, is its
view of the welfare of the two year old child - can the child quit?
And if not, does - can the parent - that obviously has quit, make
that decision for the child or in every case does a guardian ad
litem have to be appointed for the two year old, and if so, does
the tribal court appoint that guardian ad litem or does the state
do this? I mean, I can spin you on this stuff all afternoon.
CO-CHAIRMAN TAYLOR: I guess that's our frustration ...
MR. MITCHELL: But the point is, is that would this be an
appropriate policy area for Congress to revisit and think about
some of this stuff and give some definitive rules regardless of
what those rules should be? I don't care what the rules should be.
CO-CHAIRMAN TAYLOR: I think, I think, Mr. Mitchell, many of us in
this room are not yet ready to turn over all of our domestic
relations law in the State of Alaska as concerns children and their
custody to a Congress. We might like to think that we'll still
have some input left in it but it's very obvious to me that we are
fast running towards the federal courts and towards the Congress
for all of our solutions and we're not solving them as Alaskans,
we're solving them as litigants in federal courts and as lobbyists
in the halls of Congress, and that to me is very disappointing. I
know Senator Halford you wanted to make a brief question, but I
wanted to turn to Senator Green next to have an opportunity for a
question and I'm losing my people here real quick so ...
SENATOR GREEN: One of the things, I think, that concerns the
legislature is when we look forward what is to be anticipated and
if I'm looking in the appropriate part of the federal law, it gives
[beings reading]
"For purposes of this section, the term `Indian tribe' means
any Indian tribe, band, group or community recognized by the
Secretary of Interior and exercising governmental control or
authority over federal Indian reservations. [ends reading]
Since the naming and the recognition of the 226 tribes came as
somewhat a surprise, and was not anticipated, through sort of an
omission, because their hands weren't slapped and Congress didn't
overtly go in and interfere, is there the possibility that this
definition, or any definition that implies, Indian tribes can only
be named if we have recognized that there is also land that goes
with that? I know we have repeatedly, as you have, made the
statement that is not the case in Alaska, but I think we're in a
real circular system here and we're relying on one definition to
justify something else and going back and forth, and I think many
of us are concerned over the implication that might be drawn from
this, that we will, some, one, day be looking at Indian lands and
Indian Country, thus sovereignty.
CO-CHAIRMAN TAYLOR: Bruce did you wish to respond and then I'll
turn to Mr. Tobin?
ATTORNEY GENERAL BOTELHO: Perhaps I'll let Tom speak first and
then I'll come right back to that.
CO-CHAIRMAN TAYLOR: Tom, how would you answer her question?
MR. TOBIN: As your questions go to -- I think, first of all, the
recognition of tribal status, the withdrawing the appeal, that
acknowledges that there are sovereign powers in these particular
entities. That's apart from the land question. Even without the
land they have powers, powers over their own members, and they
arguably would have other powers when given consent situations.
For example, for example, consent might be required in order to do
business in a given area and then you would have consented to their
jurisdiction. The powers are there, irrespective of the Indian
Country question. Now, were you saying that by this process that
you would somehow become involved with the federal government
making the final decision on the definition basis? I think that's,
I think that's exactly where you're at; that you bought into by
recognizing tribal sovereignty the Governor's Office has bought the
State of Alaska into intensive federal involvement in every aspect
of this question from here on out unless you get it straightened
out.
CO-CHAIRMAN TAYLOR: Bruce, you wanted to comment after Tom did,
you said?
ATTORNEY GENERAL BOTELHO: Yes, Mr. Chairman. In the state's view
is that we're not at risk. There are several reasons for that,
although again I think everyone has mentioned here that we think
we've got something to take to the bank but our view, again, of the
law with regard to Indian Country is really - has several feet to
the - or several legs to the chair as it were. Both the history of
ANCSA itself, which in our view makes clear that it isn't there,
the Solicitor's Opinion - actually several opinions over time -
which have concluded that it does not exist in the state as various
forms of law, or land status, not just ANCSA lands, and one again
takes heart at the decisions by the U.S. District Court. Once
again, those matters are on appeal. I don't think a statement, and
again, if we look at the list promulgated by the Secretary of
Interior, there is no presumption in those lists with regard to the
question of territoriality. They're identified as sovereign tribal
identities irrespective of a land base, and again I think the List
Act that Tom - a portion of the record read earlier - was to make
clear that it did not confer any land status. One issue that Mr.
Johnson raised at the outset was the South Dakota decision, which
had to do with the challenge of a attempt by a tribe to give land
to the Secretary of Interior in trust in accordance with a federal
statute and thus create Indian Country...
CO-CHAIRMAN TAYLOR: ...so that they could create a casino. Let's
be frank about what's going on...
ATTORNEY GENERAL BOTELHO: ...yes, absolutely.
CO-CHAIRMAN TAYLOR: Okay...
ATTORNEY GENERAL BOTELHO: ...and, that attempt to, in essence,
create Indian Country was struck down as being an unlawful,
unconstitutional delegation to the Secretary of Interior. That was
taken into the Eighth Circuit in the late fall. It again affirmed
the lower court decision, and rehearing resulted in a reaffirmation
of that point. In Alaska there is an additional protection against
- there's a specific federal regulation that bars that kind of
transfer quite apart from the federal statute which was declared
unconstitutional and which would allow, in other circumstances,
that kind of transfer to take place.
CO-CHAIRMAN TAYLOR: Senator Halford?
SENATOR HALFORD: Did you tell the Governor about the Eighth
Circuit Court opinion when he told you to drop the request for
reconsideration?
ATTORNEY GENERAL BOTELHO: I did not. I didn't think ...
SENATOR HALFORD: Did you know about the Eighth Circuit opinion?
ATTORNEY GENERAL BOTELHO: Yes, yes. I don't believe now, nor
would I then, believe that it was relevant to the question of
tribal status. It clearly is an important issue with regard to
Indian Country.
CO-CHAIRMAN TAYLOR: Senator Halford?
SENATOR HALFORD: A whole other question. Your letter to the
President said that the decision was motivated by a commitment to
working with Alaska villages to achieve healthier, safer
environments in which communities could - in which a community is -
an active participant in solutions. Now that's three or four
months ago. What do you see as this decision having done to, in
some way, further that goal? It seems to me that the decision may
have been exactly opposite in its effect toward that goal in that
we in the state have always tried to come up with waivers of
sovereign immunity, ways to deal with Alaska Native entities,
recognition that generally the people that are closest to the needs
are the people that have the best choices, and we've always tried
to go around the constitutional conflicts and we all know that
Kipnuk does [indisc.] that are contrary to the Constitution of the
State of Alaska. They are trying to keep alcohol out of their
community and we are willing to be quiet about some things. When
we take a huge step into powers beyond benefits, I wonder if your
action, in fact, was negative to the Native communities of Alaska,
and to all the non-Native communities in its effect on the very
process itself. Now, today, when we know there's a conflict
between the Supreme Court and our state in the Ninth Circuit on
being able to deal with entities that may have new sovereign
powers, how are we going to feel about being able to appropriate
money to them? I mean, it seems that you may have taken a giant
step backward and I wonder what you see as the benefits that have
come out of your decision so far.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, that's a very fair
question though I'm probably not the person to answer it, or most
appropriate to answer it. I think in part, we have a
representative of the Alaska Inter-Tribal Council, as well as AFN,
who must also have a perspective on what the changes have been. My
sense is, again primarily, it is a matter of a sense of seeing
someone that you, as a person, as an entity, that perhaps they
perceived you to have been blind to before. I don't want to be too
metaphysical but in the sense of dignifying entities that have
existed here long before we were here, that there's a tradition and
that there's a role to play and not being the `Great White Father,'
as it were, in terms of having all the answers, all the solutions,
and being willing to admit that we're not always the appropriate
answer. I think initially, at least, this is -- the benefits are
intangible. There may be examples where it has been quite
tangible. In terms of your own actions, again if one looks to the
past, I don't expect that the legislature should feel any less
secure today that you stipulate in grants that you dispose of that
they be conditioned on a waiver, that should affect your judgments
in that regard at all. That hasn't changed.
CO-CHAIRMAN TAYLOR: Go ahead...
SENATOR HALFORD: I'm afraid it has changed and I'm sad to see that
change because I think it makes it harder to be able to use all the
entities that can provide services efficiently and can respond to
needs of local and, particularly, rural communities. You know,
when you put it in the context of a conflict of powers, then the
definition of tribes becomes a question of conflict, the definition
of sovereignty becomes a question of conflict when it didn't have
to - I mean - I think every Alaskan in every community would love
to have just as much sovereignty as they can get and I think every
individual in every family would like to have all the tribal powers
that they can get, regardless of their background. When it's
looked at that way, it was a positive, when it's looked at as a
direct conflict with the Equal Rights provisions of the
Constitution, then we take a giant step backward and instead of
being able to appropriate to housing authorities, to projects, to
entities that are now tribal, we find it much more difficult to be
able to protect the equality of all citizens and still provide the
services because the fact is that those entities are often the very
most efficient at providing services in rural Alaska.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, I think the question is,
what on the ground is different today than it was six months ago,
or nine months ago? What changes have you seen in your lives that
is different?
CO-CHAIRMAN TAYLOR: [Indis.] be asked but you said ...
SENATOR HALFORD: I'll answer one - one - and that is that if you
go from tribe to Indian Country and then you try to reach Indian
Country through the traditional mechanisms of either an allotment
or a reservation, then you could add to it a dependent Indian
Community and all the case law on the definition of a dependent
Indian community says that it's not just what you say, it's not
your reservations and your statements, it's how you treat them
and if you, in fact, treat an entity as a government on a
continuing basis, over and over again, and you use them to provide
services as a government, that can then be turned around and that
can be one of the definitional ways that you get right back into a
definition of Indian Country. So things that we would want to do,
things that we would like to do, things that we have done in the
past, now may be considered dangerous to do because they may be a
stepping stone toward a geographic base of powers in conflict with
our Constitution. That's why I'm worried.
CO-CHAIRMAN TAYLOR: Mr. Bunde was up next and then I was turning
to Senator Adams who had a question.
REPRESENTATIVE BUNDE: Well just to tack on with what Senator
Halford had to say -- I think what he's getting down to is in a
state where we're rapidly approaching a general level of taxation,
do you feel that the majority of the people in the state are going
to eagerly pay taxes to support 226 separate sovereign identities?
I can answer for myself: no.
CO-CHAIRMAN TAYLOR: I don't know that that's necessarily how
they're funded but go ahead -- yes, Julie?
MS. KITKA: I'd like to turn that around. I think that there's a
lot of positive contributions that the Native community provides to
the State of Alaska through all our institutions and through the
use of our land and resources. How many of our Native regional
corporations are on the top list of employers of Alaskans, not
Alaska Natives, Alaskans? [Indisc.] economic impact to the state,
and I really take exception to the fact that the Native community
is some kind of drain on the state when in fact that we are trying
to build an economic base for our people, we are trying to use the
tools and institutions that we have at our disposal, and nobody is
perfect. We are trying to do something and make life better for
not only our people, but for the state, and we are trying to do it
in ways that are -- build harmony in the state as opposed to build
divisions and we would like to see the debate continue in a way
that how can we approve things on the ground for people and their
lives.
CO-CHAIRMAN TAYLOR: I want you to know the Chair certainly didn't
take those comments in that fashion.
SENATOR HALFORD: They weren't intended that way.
CO-CHAIRMAN TAYLOR: I don't think they were ...
MS. KITKA: The one example - when you talk about what's the
practical impact of some of these recognition issues - I look
towards a conference that we sponsored on taking community
responsibility. The ground rules we set, when we set that
conference, was: if you didn't have one more federal dollar, if you
didn't have one more state dollar, if you didn't have to have any
change in federal law, federal law or state law, how can people
work together to overcome our problems and make life better in our
communities? We had an outstanding participation of our village
leaders in this conference. They came up with very practical
things that they could do to make life, things, better. There was
no confrontation in that. People are looking at trying to improve
life, not just to try to duck and hide everything and pit Alaskans
against other Alaskans so from a concrete standpoint the state's
recognition that there are Native tribes in the state on that, and
the state's willingness to work with us on that, I think that there
is a lot of positive opportunities in this state as we use all our
institutions and resources to do a collective problems solving. I
just want to say that there are some real positive things going on
and I wouldn't want people to leave with the idea that we're just
a drain on the state or that there's nothing positive going on.
CO-CHAIRMAN TAYLOR: I certainly don't think any of us intended to
take it that way. Did you have any follow-up, Mr. Bunde, on your
comments because it may have been misinterpreted?
REPRESENTATIVE BUNDE: Thank you, and we ought to -- I hear the
word tribe used a great deal and I have concern that, again, if an
entity is treated in a particular way or labeled in a particular
way then that becomes common law, if you will, and I did have a
question how tribe was defined in opening statements, but I think
the ensuing conversation has defined it for me as 226 various
villages that the gentleman here had listed how the tribal entity
goes through the governmental process. My question was - it
sounded a great deal like a city council or village council - how
would it, a tribal entity, be different than an existing city
council or village council?
CO-CHAIRMAN TAYLOR: Well one of the -- I don't think they are any
different because they're all going to have to follow the same kind
of rules and regulations just that we do in grouping together in
trying to resolve questions among ourselves. Those social aspects
will still be the same. There is one unique difference: this group
will be racially defined and that racial definition, within the
tribe, may very well place us in a position where we will be
placing some of the finest programs and some of the best providers
that we've got in the state -- those programs may very well be
placed in jeopardy, if, in fact, they are, then [indisc.]
distribution based upon a racial basis. Those things are of
serious concern and I would think would be a very serious concern
to the communities that are currently receiving those services not
to jeopardize that in that type of fashion, so there's some huge
questions here. You ask about taxes: will tribal property be
taxable? I don't know that we know the answer to that but we know
there's major litigation going on on it. The Nome case is a
perfect example. Those are the types of practical things that
Julie is suggesting I think we need to talk about and we need to
talk about them at length. I wanted to make one other passing
comment in response to you, Mr. Bunde, and that is, my good friend,
Ed Thomas, stood up and said what I have heard for over 40 years in
Southeast Alaska. I've never heard a single person in Southeast
Alaska refer to themselves as the member of a tribe and I really
appreciated his candor when he stood and says, we don't call
ourselves tribes. We don't want to be known as tribes. That's
some sort of down south cowboy Indian movie stuff. We don't want to
be a tribe. I'd kind of like to know who was it that decided to
call 226 groups in Alaska tribes? Why aren't we calling them what
they want to be called, instead of what some federal bureaucrat
decided was a neat name to call them. I think that's a fair
question.
MR. MITCHELL: Mr. Chairman - Mr. Chairman could I give a brief
comment about Mr. Bunde's, Representative Bunde's, comments as
well? I think it really gets to the heart of my concern in all of
this. Lloyd was saying earlier about the impressive track record
the Territorial and State Legislature has had in dealing with
Alaska Natives in certainly the 20th Century as opposed to the
dismal record that most state legislatures have with respect to
Native Americans elsewhere in the American West. I would suggest
to you without going too deeply into the history, it's because of
an entirely unique political experience that Native people have had
here that they have not had outside. The first member of your body
from the Native community was elected in 1924. Most Indians in
Arizona could not vote until 1948 when Stuart Udall's father, who
was on the Arizona Supreme Court, finally said enough is enough and
there were attempts to prevent people from voting in Utah and in
the Dakotas well into the '60s. It's - I'm no expert on it but I
understand that the first member of the South Dakota Legislature -
one of the Dakotas - was not elected until easily into the 1960s.
By that time - by the 1940s - having Native members of the
legislature was a routine component of the Alaskan political
community. When the Alaska Constitution was written, in the days
before Baker v. Carr, and one man, one vote, the legislature was
purposely apportioned so that Natives could participate in making
the decisions about what goes on in the Territory of Alaska and, as
you know, all through the high rolling days, when we had a lot of
dough, this body made some major investments in to the villages.
Why? Not because people were Indian tribes, but because they were
Alaskans who needed that infrastructure. I have been terrified
that some member of this body was going to eventually reason to the
quite legitimate position - I don't mean to be disrespectful to
your position - of well geez, if these people don't want to be part
of our club, we're running out of money, there's lots of people
that want to be Alaskans who need their roads paved. I'm quite
terrified of that result and I do not believe that it has been well
thought through with all due respect to what friends I have left in
the Indian community these days as to what the ramifications of
this are, and to what benefit.
CO-CHAIRMAN TAYLOR: Well, let me turn now to Senator Adams. He's
waited very patiently for questions.
SENATOR ADAMS: Mr. Chairman, thank you for having the professor
on. This question goes to Professor Getsches that's on line and
since Alaska is a PLA-280 state, how does this PLA-280 affect what
might be worked out between the State of Alaska and a particular
village?
CO-CHAIRMAN TAYLOR: Mr. Getsches, are you still there?
SENATOR ADAMS: He must be gone. Then, Mr. Chairman, ...
CO-CHAIRMAN TAYLOR: Can you tell us what you know of that subject
because I'm very curious about that one too.
SENATOR ADAMS: We'll have somebody answer, but Mr. Chairman I know
we're getting close to our time, but whether we are for or against
the issues that we have discussed today, even with the
Administration dropping the lawsuit, there are still present
lawsuits that are pending that will address probably sovereignty,
that will recognize tribes, that will also look at federal Indian
Country. I don't know why everybody's getting all worked up about
this because of the fact that there is pending lawsuits - pending
that we can still go after these issues - and perhaps you would
like to ask the panel which cases are still pending that addresses
these issues.
CO-CHAIRMAN TAYLOR: I'm sure the Attorney General could give a
response in that, just in a written form, because there's probably
a whole batch, and I agree with you Senator Adams, there are a lot
of issues yet to be resolved. Did you want to respond to Senator
Adams?
REPRESENTATIVE AL VEZEY: No, no, I'd like to ask ...
CO-CHAIRMAN TAYLOR: Okay, go ahead Representative Vezey.
REPRESENTATIVE VEZEY: General Botelho, is it not true that the
issues at law in the case we're discussing, that the Knowles
Administration decided not to, that they're gone forever, and
that's decided. We made law in court - it would take an act of
Congress to change that court ruling.
ATTORNEY GENERAL BOTELHO: With regard to tribal status, the answer
is no. I don't think the opportunity is lost; it was a specific
case. You have a finding by a U.S. District Court Judge. Another
lawsuit challenging another village could raise the same issue.
The District Court will rule identically - it's virtually certain.
Appeal could be taken to the Ninth Circuit and from there on to
court in another case.
CO-CHAIRMAN TAYLOR: Senator Adams you had a follow-up?
SENATOR ADAMS: No, it [indisc.] like pushing a PLA-280, perhaps
either Don or Lloyd can respond to that particular question, what
could be, since we are a PLA-280 state. What could be worked out
between the State of Alaska and a particular village, and that's my
[indisc.].
CO-CHAIRMAN TAYLOR: Lloyd, we didn't hear from you last time so why
don't you start this time then I'll turn back to either Don or Tom.
MR. MILLER: [Indisc.] this law, Public Law 83-280, is that convey
to the State of Alaska any jurisdiction the federal government
might have had in law enforcement in the villages. So the state is
assured, thanks to this law, which was passed in 1959, has applied
to Alaska. The state is assured in its full law enforcement
jurisdiction, in regard to any crime of any kind the state's law
enforcement machinery applies, period. Now I think how that bears
on relations between the state and the tribe, it provides an
opportunity for the state to discuss, if we go to villages, whether
or not the state wants the assistance of local villages in caring
out law enforcement functions. The state's resources are limited,
and are getting more limited. The tribes have access to some
resources that are made only available to Indian tribes, because of
certain Congressional legislation, so maybe by having the villages
capitalize on the money they can get federally, and you being able
to provide the funding that you can for your law enforcement
machinery, the two can produce a clear law enforcement result in
the villages. I think Public Law 280 means that it is up to the
legislature to work with the state and the federal government
[indis.] and keeping more with the Chairman's remarks earlier about
how inappropriate it is for these sorts of decisions that we're
talking about, to be made by Congress. They should be made by you
and by the villages.
CO-CHAIRMAN TAYLOR: I wish we could but - Mike - Senator Miller
was then up. Did you want to respond with that or disagree with
it?
MR. MITCHELL: No, other than the only interesting issue inside of
that is whether or not, assuming that there is Indian Country,
whether the governing body of a tribe would have concurrent
jurisdiction with the state and that's a whole interesting issue I
won't bore you with but after Congress, again not knowing
necessarily what it was doing, extended 280 to Alaska then they had
to go back and exempt - I'm doing this from memory so I may not
have it right - but they had to go back and exempt Metlakatla from
that grant of jurisdiction to you which would lead me to believe,
and I think the Alaska Supreme Court has reasoned to the same
conclusion, that the grant to you was exclusive - right? Otherwise
there was no -- if the grant was concurrent then there was no
reason to enact the statute giving it to Metlakatla but it's
enough.
CO-CHAIRMAN TAYLOR: It's another point. Senator Miller and then
Cynthia - Representative Cynthia Toohey. Senator Miller ...
SENATOR MILLER: Thank you Mr. Chairman. I know our time is
growing short but the question I have, which really raised some red
flags for me, in Mr. Tobin's initial remarks or subsequent remarks,
he made a statement that I'd really like to follow-up on because it
raised some major red flags and maybe I misunderstood him but the
idea of one thing that we Americans and Alaskans all hold deal is
equal protection and due process and the discussion that you said
earlier about groups being able to restrict due process and equal
protection, I may have misunderstood you but I'm hoping I did
misunderstand you but could you expand on that a little bit.
MR. TOBIN: Very few areas of Federal Indian Law are clear but this
one is and you didn't misunderstand me. None of these entities are
bound by the Constitution of United States. The Supreme Court has
made that clear on more than one occasion and when Congress passed,
in 1968, a statutory bill of rights requiring them to provide, in
essence, statutory due process and equal rights and other things as
a result of complaints from tribal members in the state having
reached Congress, they passed that Act and for ten years, although
it wasn't as much nor the same as the constitutional rights other
citizens enjoyed, for then years the federal court system
overlooked how the process was being enforced within the tribal
government system. Then in 1978 the United States Supreme Court
said that Congress certainly had the power to pass this Act because
we agree that the Constitution does not bind these particular
sovereign entities, and unfortunately Congress did not make it
clear enough that it intended the federal courts to have an
oversight role in the process and therefore with the exception of
a right to habeas corpus, there is no federal follow-up procedure
with respect to those civil rights granted in the statute. As a
result of that, whatever justice or equal protection or due process
that the tribal administrative body hands out, or the tribal court
hands out, is all that you're entitled to.
SENATOR MILLER: Just a follow-up ...
CO-CHAIRMAN TAYLOR: Go right ahead Senator Miller.
SENATOR MILLER: If I was a member of any group -- that's a scary
thought to me.
CO-CHAIRMAN TAYLOR: You literally mean no - none of the First,
Second, Third, Fourth Amendments on through ...
MR. TOBIN: That does not apply to the tribal governments.
CO-CHAIRMAN TAYLOR: And under the legal precedents that you're
referring us the only civil right that is currently protected under
a tribal court, in essence, is that - by the federal government's
oversight - is that of habeas corpus?
MR. TOBIN: No. The federal government passed a statute saying,
essentially, giving, or mandating essentially, a tribal bill of
rights against a tribal government, essentially the same
constitutional rights. Initially, one could go into that system
and say I was denied due process and take whatever result that was
the conclusion of the tribal process and then go into federal court
and say, look I really didn't get them - you said I did but I
didn't. What the Supreme Court said in 1978 was that's the end of
the process. Whatever justice you get, whatever due process you're
entitled to is all that you get with the exception of you do have
the right, in case you are incarcerated, to file habeas corpus, and
go into federal district court. There are no constitutional
rights, per se, binding before any ...
CO-CHAIRMAN TAYLOR: In other words no appeal of a constitutional
right question beyond that of the tribal court that decided it.
MR. TOBIN: That's correct, and now you have 220 of those,
arguably, in the State of Alaska.
CO-CHAIRMAN TAYLOR: That can be created. Lloyd, you were waving
your hand wanting to respond. Go right ahead.
MR. MILLER: I was pleased that the discussion went on because I
felt it got a little bit more balanced. One hears this discussion
and it prejudices the liberation so much. The Constitution doesn't
apply to tribes. What does apply? [Indisc.] United States Code.
[begins reading]
"No Indian tribe in exercising the powers of self government,
shall deny that any person within its jurisdiction the equal
protection of its laws, or deprive any person of liberty or
property without due process of law. [ends reading]
And that's one of ten provisions. That sounds familiar - it's from
the Bill of Rights. Congress has made the Bill of Rights
protections, almost all of them, not the establishment of
[indisc.]. You have the right to free counsel [indisc]. Congress
has made almost all of the constitutional Bill of Rights provisions
applicable to each tribal government. Now, in the state, we have
the State Constitution. If I feel my rights have been abridged by
the State Constitution I take it to the highest court in the state.
If I try to go over to the federal courthouse and enforce my state
constitutional rights, they'd kick me out. They'd say sorry, bud,
you are bound by the State Supreme Court and that's as far as you
can go. If you don't like it you go to the legislature. You don't
like either one of them you're out of luck. You can't go to the
federal court to enforce your State Constitution. You can't go
outside the tribal court system to enforce your tribal
constitutional rights, if you will, but that seems to me not
remarkable - appropriate - and Mr. Tobin cannot point to a history
of abuses of this system. If people don't like it, I don't
understand it. They accept it in the state's federalist system
that we have. [Indisc.] by the jurisdiction of the state to
litigate their issues in state courts. We should accept it for
tribes and [indisc.] tribal members are willing to live with that
system, to have their issues litigated in their own tribal court
system. Who are others to say no you shouldn't? That's their
decision, and as Don pointed out, [TAPE TWO, SIDE B] who doesn't
like the system they can always withdraw from being a citizen of
the tribe. [Indisc.] it is their right.
CO-CHAIRMAN TAYLOR: Can you imagine what you're saying about what
impact that's going to have on any person dealing with someone
outside of that tribal court and have that tribal court then assume
that jurisdiction and your only appeal is to the very court that
you're trying it in in some small community and there's no place
else you can go.
MR. MILLER: It depends on the facts. If the issue is a non-Indian
business matter, and I have a feeling that may be a better
hypothetical, dealing with a tribe, and the non-Indian businessman
believes that the tribe has somehow violated his rights, that
raises a question for federal law. So long as the non-Indian
businessman first goes to the tribal court and litigates the issue,
that question of federal law can go to a federal court, and there
have been a host of cases like that [indisc.].
CO-CHAIRMAN TAYLOR: I don't want to get you off the train of
thought there. This conversation came up because of a question of
The Bill of Rights. And Mr. Tobin told us the Bill of Rights, and
its application, will be solely determined by the tribal entity and
you said, well that's fine, you only have the right within the
State of Alaska. No ...
MR. MILLER: With respect to a tribal member, I said that's
correct. With respect to a non-member of the tribe, the issue of
whether or not a tribe has jurisdiction in connection with a non-
member of the tribe raises a question of the federal law so the
picture is complete now. The non-member can go to federal court,
the member of the tribe, in the Santa Clara Pueblo case, can't go
outside of the tribe.
CO-CHAIRMAN PORTER: Could I ask you, to that degree, I don't -
regardless of that issue of whether an individual non-member has
appeal rights outside or not - are you describing the system, as
you understand it, on Indian Country, or the system, as you
understand it, that would exist in Alaska under just tribal status
sans Indian Country.
MR. MILLER: Excellent question. I was articulating the rules as
they agree with the Indian Country setting.
CO-CHAIRMAN PORTER: Do you believe that tribal status here equals
Indian Country?
MR. MILLER: I don't believe that what we're discussing here is
that the enforceability of the Indian Civil Rights Act would change
even if a village did not occupy Indian Country. If a member of
the tribe thought that the tribe had violated his Indian Civil
Rights, the member of the tribe would go to the tribal court, even
if the village didn't occupy Indian Country.
CO-CHAIRMAN PORTER: Certainly. Would that member be able to
appeal outside of the tribal ...
MR. MILLER: No, he wouldn't, unless they were incarcerated.
CO-CHAIRMAN TAYLOR: I think Mr. Tobin was trying to answer your
question.
MR. TOBIN: That's correct, they would not be able to go outside
the system. The example that I gave was that the Constitution
doesn't apply to the tribal government and its own members within
the system. Obviously, if they don't have jurisdiction in the
first instance, then you can go into the federal system but then
that brings you into the second - the second - point that I
mentioned earlier on - the exhaustion of remedies. You've got to
stay in that system for - the recent Supreme Court doctrine - a
non-member has to stay in that system for whatever period of years
it takes to get through and get out of it before you can go into
federal court. There is no question, there is no question that
once recognition of tribal status has been made, that the Indian
Country issue is moot with respect to the, whether or not the lack
of a constitution applies to any given controversy that comes up in
the meantime. It applies today in the State of Alaska.
CO-CHAIRMAN TAYLOR: Representative Toohey's been very patient
waiting. If you'll just bear with us a little longer I'd
appreciate it.
REPRESENTATIVE TOOHEY: Mr. Botelho, I have a major problem with
what we've heard today and we sat here and heard: I don't know, we
don't know, it hasn't been fully tested, the law was, the law is,
the law -- There are so many issues we don't know and I agree we
need to find these out. I think we had a perfect case going now,
where we could have answered one question. Now what happens, as
Don says, we can go back to court with a specific issue just like
we've dropped. Are we going to have to start from day one, with
one dollar, and go all the way up and spend the exact amount of
money that we have dropped now? Or, I mean, is that what's going
to happen?
ATTORNEY GENERAL BOTELHO: Mr. Chairman I think the answer in part
is yes, in part no. First of all, the case that we're talking
about hasn't been dropped. That case is continuing. One aspect of
the case has been dropped. The major issue in the case is Indian
Country and we're defending the U.S. District Court's decision that
Indian Country does not exist and that is the position we fully
expect will go as far as the system will let it go: certainly to
the Ninth Circuit, possibly on to the U.S. Supreme Court. With
regard, however, to another village, not Fort Yukon, not Venetie,
one would, in essence, start at ground zero although given the U.S.
District Court's decision, should that happen, it won't happen with
this Administration. My guess is it would move fairly quickly
because the issues have been briefed, there is a decision by a
district court setting forth its reasoning. Where resources would
be expended would be in front of the Ninth Circuit, something that
...
REPRESENTATIVE TOOHEY: Just one quick more question. If you were
Health and Human Services, and you treated the state's money like
your treating the money that we're giving you now, we would have
some major problems with your department.
ATTORNEY GENERAL BOTELHO: Mr. Chairman, might I make one other
point?
CO-CHAIRMAN TAYLOR: If you let me just first follow-up on her
question.
ATTORNEY GENERAL BOTELHO: I'm following up on that question ...
CO-CHAIRMAN TAYLOR: And I will. Mr. Attorney General, I guess I'm
having a hard time understanding. I started to hear you say that
we could restart this case at some future time all over again,
challenging the manner in which the listing occurred. I have to
seriously question that. It would seem to me that Doctrines of Res
judicata and Collateral Estoppel would prevent you from being able
to raise that issue again once you've raised it and then dismissed
it and allowed the court decision to go forward. Doesn't that
court decision then become binding then upon the state since you
failed to appeal it?
ATTORNEY GENERAL BOTELHO: The issue before the court was the
status of Fort Yukon. The court has obviously made a determination
that the list is - because of the status of the list - Fort Yukon
is a tribe. That would not, in my view, preclude - although I
think there is a good argument that you've just advanced - that
there is Collateral Estoppel, in terms of the state being able to
raise the issue. I'm not convinced that that would be the case.
Certainly it would provide an opportunity for Appellate review.
CO-CHAIRMAN TAYLOR: I guess that was my fear and I think that was
her question, but Mr. Tobin you wanted to respond?
MR. TOBIN: My understanding was it had to do exactly with that and
that was, not only are you going to have to spend dollar one all
over again, you're going to have to spend equally that amount of
money just trying to refute the very point that you made.
CO-CHAIRMAN TAYLOR: Thank you. Yes, Lloyd?
MR. MILLER: I've handed out, for the benefit of the committee,
another statute that underlines what Congress has found in 1994, so
everybody can make their own judgment about what it means on this
very issue. [begins reading]
"The Congress finds and declares that the October 1993
Secretary of the Interior publish a list of federally
recognized Indian tribes."[ends reading]
We could all read the same words and interpret it as we wished.
Certainly my opinion is that to [indisc.] but Representative
Toohey, I think that the state's money has been well invested in
the Attorney General's office. They are an enormously [indisc.]
component and they have two substantial - two substantial- cases
now pending in the Ninth Circuit. Before the year is out, or
probably by next spring, but the briefs are due this [indisc.], you
will have answers to the question. If you're interested in federal
litigation, by golly, you'll get answers from the federal court.
I agree with the Chairman that maybe we don't always want to have
those answers but if that is where people are interested in
focussing their energies, I think [indisc.] a very distinguished
colleague is focussing a lot of energy there.
REPRESENTATIVE TOOHEY: And I appreciate that, but it just seems
that this Administration is dropping and dropping and dropping and
dropping. We're afraid of the answers - is that possible? Or do
we have all that kind of money to waste and then start all over
again? You and I will not be alive when they come, they solve this
issue and there's no question about it. We'll all be dead in this
room but we need to continue and get some answers going.
C0-CHAIRMAN TAYLOR: I'm sorry Don, I've got to get us all out of
here. People are begging me that they've got to go to other
meetings but the conversation is a very good one and I just hate to
cut it off but we're running out of time, we really are. Okay if
you can give a statement then Mr. Halford has a question and we'll
try and resolve it.
SENATOR GREEN: Thank you Mr. Chair. I'm reassured by your
statement that this Administration will not do that, however we
were also reassured, on October 20, when the motion for
reconsideration was filed, and less than one month later it was
withdrawn. I think that subverted - I mean that kind of ...
ATTORNEY GENERAL: Mr. Chairman I'd be very surprised that any
member here was aware of the filing at the time.
MR. MITCHELL: Mr. Chairman?
CO-CHAIRMAN TAYLOR: Yes Don ...
MR. MITCHELL: Obviously the hour is getting late and it seems that
we're going to be disbanding this session soon and I just wanted --
obviously this was a very interesting exercise but all it did was
open Pandora's box really with respect to a number of issues. One
of the issues that I'd hoped that we'd get to today, and maybe you
can think about it at some future time, is that there has been a
lot of discussion about the authority of a federally recognized
tribe, to say what goes, in certain respects, within a defined
geography but if you read the cases and if you go back to that
Solicitor's Opinion from 1935 that started all this that I
mentioned earlier, you'll see that almost all of the cases when
they talk about the inherent sovereignty of Indian tribes, they
talk about the inherent sovereignty of Indian tribes to regulate
the conduct of their members, and to assert a certain jurisdiction
in a geographical area and it's a very interesting question. The
U.S. Supreme Court has indicated that a tribe has inherent
sovereignty to control their own internal relations and preserve
their own unique customs and social order and I think it's a very
interesting question that I have never seen anywhere because it
hasn't come up in the lower 48 about extra-territorial
jurisdiction. Obviously the United States is a sovereign and is
having a very serious word with Louis Farakan about how he
conducted himself in Libya. Obviously the jurisdiction of the
United States does not extend to Libya, but because he is a member
of our club - the United States - in good standing, there is
inherent sovereignty on the part of the United States to tell Mr.
Farakan how to behave when he's visiting Libya. It would be very
interesting, in terms of Lloyd and I and others kicking it around,
if the Barrow vote had gone the other way today, or yesterday, and
Barrow was still wet, what if the Barrow Village Council passed a
statute - and by the way Lloyd missed the Eighth Amendment on cruel
and unusual punishment in terms of the things that tribes are not
bound to observe - what if the tribe said we hereby prohibit our
members, in order to preserve our own social order, quoting
verbatim out of the U.S. Supreme Court opinion, we prohibit any of
our tribal members from consuming alcohol anywhere and come up with
any punishment that they think would be fun. Now, as a policy
result because we know what's happening with alcohol in Barrow,
many of us, including Judge Holland, might be very sympathetic to
that because he's indicated his sympathy with respect to the
ravages of alcohol in the villages. Does a tribal government have
that authority? Beats me but if I can think that up I have every
confidence that my friends at NARF [ph] can think that up and it
certainly passes my bathroom mirror test. I would not be
embarrassed to argue that case to Judge Holland but the point is
that that's an entire -- this issue of what is the authority of a
tribe if there is no Indian Country. I think it's a very
analytically provocative subject matter and I just wanted to
identify it for you because obviously the discussion didn't careen
in that direction at all today but I find it something worth
considering.
CO-CHAIRMAN TAYLOR: Thank you. Senator Halford?
SENATOR HALFORD: I guess when you follow that one you say that
then this individual who was maybe of 1/4 blood goes to the state
Supreme Court, and tries to enjoin that action under equal
protections as a citizen of the state. I had one other question
for Mr. Miller. With regard to Dependent Indian Communities and
Indian Country: what is your opinion as to the extent of Indian
Country either through allotments, Dependent Indian Communities, or
Reservations, to what extent it occurs in Alaska?
MR. MILLER: Certainly there are allotments, and there are
allotments in Alaska [indisc.] need to satisfy the statutory
criteria. There is only one reservation in Alaska but it satisfies
the criteria [indisc.] The third category is a Dependent Indian
Community and it is based on a factual analysis. My own view is
that tribes in Alaska, villages in Alaska, can establish to the
satisfaction of the courts, that they meet the criteria for
Dependent Indian Community. That's my personal view. Judge
Holland has recently ruled that that's not the case and he's ruled
that Venetie is not Indian Country, he's ruled that Copper Center
is not Indian Country, he's ruled that he believes Barrow is
probably not Indian Country, and in these rulings he's ruled that
he believes probably no community in Alaska is Indian Country.
SENATOR HALFORD: Are those rulings on appeal?
MR. MILLER: All of them are - all three. I think you will have
your answers fairly quickly if that's what you're interested in.
You want answers from the federal court, you will get answers from
the federal court.
SENATOR HALFORD: But you believe in each of these cases those
communities do represent Indian Country?
MR. MILLER: That's my opinion. I think that's fair for
litigation. It can be ably litigated by other people [indisc.].
CO-CHAIRMAN TAYLOR: I want to thank all the members of the panel
and especially your patience with us today and with taking your
good time to come down. I think Ms. Kitka was absolutely correct
that this is an ongoing discussion and unfortunately the phrase was
used but I think it so aptly fits and that is that the -- an
opening of a Pandora's box has occurred. Unfortunately it wasn't
this committee or this hearing that opened that Pandora's box. It
was the Governor's decision when for his reasons, he withdrew us
from that suit, making the point conclusive. And when that point
became conclusive, we all have to find out what it's going to mean
in the future for all of us, how we can better develop
relationships that work - hopefully that's the affirmative side -
how we can make certain that we still protect the integrity of the
State's Constitution that we swore to uphold. Those are major
concerns and I appreciate so much everyone giving of their time
today to help us in this. Senator Halford?
SENATOR HALFORD: Just as Judiciary Chair, I would appreciate it if
you would request, from the Attorney General and from Legislative
Legal, an analysis of the effect of the waiver of sovereign
immunity, both in state courts and in federal courts as it applies
to the things that we have been appropriating to for years. Is
that waiver binding and you know, what should be our policy with
regard to those appropriations?
CO-CHAIRMAN TAYLOR: I think you understand the question but I'll
try to have staff draft that for you in written form so that it's
a little more succinct. I don't know that we can. Senator Halford
did a very fine job of stating it and before we leave, Bruce, I
would suggest to you on that issue, the sovereign immunity
question, it was recently just litigated when a contractor
attempted - several contractors attempted - to lien timber that was
being harvested by the community of Metlakatla on a U.S. Forest
Service sale. That judge went through extensive briefing trying to
determine do I allow those logs to go onto the community and the
island of Metlakatla with Metlakatla claiming sovereign immunity
over those logs? Because if he did, then all of our lien statutes
get thrown out the window. That case has been resolved. It could
yet be appealed by the parties but Judge Thompson rendered a
decision back in November. To say that these issues aren't around
in some of these very practical problems don't face us is really to
deny reality. People in Southeast are going to have to know what
will be our trading and commercial transaction relationship with a
sovereign immune community if Metlakatla continues to proceed with
that argument and if, in fact, we're going to have 226 others who
may have some sovereign entity unto themselves, then we certainly
need to answer the question raised by Senator Halford and a myriad
of other questions yet to be submitted to us. I wish we would've
had time to go through them today. I look at these things from a
point of view of we have an opportunity here to maybe resolve some
things and we have a problem that definitively may need to be
resolved and hopefully working from both ends of that spectrum we
can come to a better resolve. I'd like to thank everyone again, in
particular the panel for being here.
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