Legislature(1995 - 1996)

02/21/1996 01:00 PM JUD

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

Document Name Date/Time Subjects