Legislature(1995 - 1996)

12/04/1995 10:00 AM JUD

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

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