Legislature(2003 - 2004)
05/08/2004 01:11 PM House RES
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ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
May 8, 2004
1:11 p.m.
MEMBERS PRESENT
Representative Nancy Dahlstrom, Co-Chair
Representative Beverly Masek, Co-Chair
Representative Cheryll Heinze, Vice Chair
Representative Carl Gatto
Representative Nick Stepovich
Representative Kelly Wolf
Representative Beth Kerttula
Representative David Guttenberg
Representative Bob Lynn
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 132(RES)
"An Act removing the Old Minto townsite from the Minto Flats
State Game Refuge; and authorizing the Department of Natural
Resources to convey certain land at the historic Old Minto site
to the Native Village of Minto."
- MOVED HCS CSSB 132(RES) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 132
SHORT TITLE: MINTO FLATS GAME REFUGE & TOWNSITE
SPONSOR(S): SENATOR(S) LINCOLN
03/10/03 (S) READ THE FIRST TIME - REFERRALS
03/10/03 (S) CRA, RES
04/07/04 (S) CRA AT 1:30 PM FAHRENKAMP 203
04/07/04 (S) -- Meeting Canceled --
04/14/04 (S) CRA AT 1:30 PM FAHRENKAMP 203
04/14/04 (S) Moved CSSB 132(CRA) Out of Committee
04/14/04 (S) MINUTE(CRA)
04/15/04 (S) CRA RPT CS 4DP NEW TITLE
04/15/04 (S) DP: STEDMAN, LINCOLN, WAGONER, ELTON
04/19/04 (S) RES AT 3:30 PM BUTROVICH 205
04/19/04 (S) Heard & Held
04/19/04 (S) MINUTE(RES)
04/26/04 (S) RES AT 3:30 PM BUTROVICH 205
04/26/04 (S) Moved CSSB 132(RES) Out of Committee
04/26/04 (S) MINUTE(RES)
04/27/04 (S) RES RPT CS FORTHCOMING 5DP 1NR
04/27/04 (S) NR: OGAN; DP: LINCOLN, ELTON,
04/27/04 (S) WAGONER, SEEKINS, DYSON
04/28/04 (S) RES CS RECEIVED NEW TITLE
05/03/04 (S) TRANSMITTED TO (H)
05/03/04 (S) VERSION: CSSB 132(RES)
05/04/04 (H) READ THE FIRST TIME - REFERRALS
05/04/04 (H) CRA, RES
05/05/04 (H) CRA AT 9:00 AM CAPITOL 124
05/05/04 (H) Moved Out of Committee
05/05/04 (H) MINUTE(CRA)
05/06/04 (H) CRA RPT 4DP
05/06/04 (H) DP: KOTT, WOLF, CISSNA, MORGAN
05/08/04 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
TED POPELY, Majority Legal Counsel
Majority Legal Office
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 132.
SENATOR GEORGIANA LINCOLN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 132.
ACTION NARRATIVE
TAPE 04-28, SIDE A
Number 0001
CO-CHAIR NANCY DAHLSTROM called the House Resources Standing
Committee meeting to order at 1:11 p.m. Representatives Masek,
Dahlstrom, Gatto, Stepovich, Guttenberg, and Kerttula were
present at the call to order. Representatives Heinze, Lynn, and
Wolf arrived as the meeting was in progress.
SB 132 - MINTO FLATS GAME REFUGE & TOWNSITE
Number 0059
CO-CHAIR DAHLSTROM announced that the only order of business
would be CS FOR SENATE BILL NO. 132(RES), "An Act removing the
Old Minto townsite from the Minto Flats State Game Refuge; and
authorizing the Department of Natural Resources to convey
certain land at the historic Old Minto site to the Native
Village of Minto."
Number 0077
REPRESENTATIVE STEPOVICH moved to adopt the proposed House
committee substitute (HCS) for SB 132, Version 23-LS0578\U,
Bullock, 5/6/04, as the work draft.
Number 0086
REPRESENTATIVE KERTTULA objected. She turned attention to the
language on page 3 of Version U, lines 13-15, which read: "(4)
the Native Village of Minto may not transfer the land to any
other private or governmental entity for any purpose or duration
unless approved in advance by the legislature.". She
characterized this language as unusual and asked why, in
conveying the land, they would want to preclude further transfer
without legislative approval.
Number 0213
TED POPELY, Majority Legal Counsel, Majority Legal Office,
Alaska State Legislature, acknowledged that the language is
unusual, but pointed out that the whole context of the bill -
transferring land to the Native Village of Minto - is unusual as
well; he opined that the language in paragraph (4) is included
as a protective measure. The Bureau of Indian Affairs (BIA) and
the U.S. Department of the Interior (DOI) consider the Native
Village of Minto to be a federally recognized Indian tribe and,
as such, its status is in a state of legal flux, and so the land
transfer proposed via SB 132 is not a typical land transfer.
The legislature regularly challenges the notion that there are
federally recognized Indian tribes in Alaska, though the Alaska
Supreme Court has, in several cases, acknowledged the existence
of such.
MR. POPELY relayed that when land has been transferred to Native
corporations under the Alaska Native Claims Settlement Act
(ANCSA) format, there hasn't been a lot of problem with respect
to jurisdiction over the land, governmental powers, or things of
that nature. Senate Bill 132 proposes something different,
however, and it would be hard to predict all the ramifications
of such a unique transfer; therefore, the language in paragraph
(4) is intended to ensure, in giving the land to the Native
Village of Minto, that the state doesn't cede any of its
authority or create any hybrid jurisdictional problems that it
can't later correct.
REPRESENTATIVE KERTTULA remarked that the simple fact that a
tribe exists, in and of itself, doesn't seem like justification
for saying that it can't alienate land. She opined that the
language in paragraphs (1) and (2) of page 3 should sufficiently
address the concerns Mr. Popely has expressed. In response to a
comment regarding paragraph (2), she asked whether the term,
"sovereign jurisdiction", which is used in CSSB 132(RES), is
broader than the term, "civil, criminal, and regulatory
jurisdiction", which is used in Version U.
Number 0599
MR. POPELY acknowledged that the term, "sovereign jurisdiction"
is broader, but said he is uncomfortable with it because it is
not often used in state statutes and has a different meaning to
different people. He opined that using the term, "civil,
criminal, and regulatory jurisdiction" will better address
concerns regarding inadvertently ceding any state authority. He
suggested that part of the reason that the language in paragraph
(4) has been added is because there is "a possibility that land
can be transferred and it will change its status in federal
Indian law, partially, with respect to trust land, for example":
if land is transferred to the DOI, to be taken in trust by the
federal government, it raises a new level of jurisdictional
questions about the land itself. He reiterated his opinion that
the language in paragraph (4) is a protective measure.
REPRESENTATIVE KERTTULA surmised that the issue is really about
maintaining state sovereignty over the land rather than about
whether the Village of Minto will at some later time elect to
transfer the land.
MR. POPELY concurred, adding that without somehow ensuring the
state's sovereignty over this land, the state might someday face
the possibility of preemption by the federal government.
REPRESENTATIVE KERTTULA reiterated her belief, however, that the
language currently in paragraphs (1) and (2) are sufficient to
address the issue, and thus paragraph (4) is not needed and goes
a step too far. She asked why, if the Village of Minto does
decide to transfer the land later, they should be required to
obtain legislative approval rather than departmental approval -
by the commissioner, for example.
MR. POPELY indicated that the latter would be acceptable, just
so long as at least some type of public decision-making process
is undertaken. In response to questions, he mentioned that part
of the land that's being transferred is cemetery land, and
reiterated his earlier comments regarding the concern over state
sovereignty and the legal problems that might result from
transferring lands to a federally recognized Indian tribe.
Number 1271
SENATOR GEORGIANA LINCOLN, Alaska State Legislature, sponsor,
expressed appreciation to the committee for holding a hearing on
SB 132. She turned attention to CSSB 132(RES) and said it
underwent a lot of scrutiny during its Senate hearings.
Language of particular importance is on page 3, lines 7-9, which
says, "(1) the Native Village of Minto waives for itself and for
its lessees, successors, and assigns forever any claim to
sovereign immunity with respect to the land or activities on the
land;" She opined that this language will be more than
sufficient to address Mr. Popely's concerns. She elaborated:
"Forever" ... the claim to any sovereign immunity is
gone, that the land remains under the sovereign
jurisdiction of the state - very clear. And then it
goes on to say that the Native Village of Minto shall
submit the waiver required under this in writing
before the land is conveyed.
SENATOR LINCOLN referred to a map in members' packets, and said
that in 1969, the State of Alaska said to the people of Old
Minto, "You must move to higher ground; we're not going to give
you an option because your land is subject to erosion and
flooding, and we're not going to put any more money into the
airport, we're not going to put any more money into the
facilities here - you have to move." They did not want to move,
but they agreed to move to higher ground 40 miles away.
Meanwhile, the ancestral gravesites and church at Old Minto have
remained, and are still used and maintained by the people.
Additionally, the people also maintain a youth camp and a
recovery camp at Old Minto.
SENATOR LINCOLN pointed out that back in 1999, the Matanuska-
Susitna Borough received 160 acres of state land that had been
part of the Hatcher Pass Public Use Area, and that the
authorizing Act read in part:
The legislature finds that making the lands specified
in sec. 2(b) of this Act available to the Matanuska-
Susitna Borough for selection and conveyance is
consistent with the testimony and position of the
Department of Natural Resources at the time the
Hatcher Pass Public Use Area was created.
Furthermore, the selection is consistent with that
area of the public use area that is contained within
the development lease and authorized for development
purposes in the Hatcher Pass Management Plan, as
amended.
Number 1582
SENATOR LINCOLN said that "this" is exactly what [CSSB 132(RES)]
proposes, and noted that of the over 500,000 acres of land [that
make up] the Minto Flats State Game Refuge, Minto is asking for
less than 32 acres. "This is the elders that requested this -
it wasn't [the] 'Native Council for Sovereignty' - I mean, my
goodness, that was the last thing in their mind; what they're
thinking of is to have their ancestral lands for their gravesite
and what they're doing on that land," she remarked. The way
that CSSB 132(RES) is written, she opined, there is neither any
way the land can be transferred nor any way for the Native
Village of Minto to claim sovereignty.
SENATOR LINCOLN said she is not supportive of the language in
Version U, and reiterated her belief that Mr. Popely's concerns
are adequately addressed by the language in CSSB 132(RES).
REPRESENTATIVE HEINZE asked whether the spirit camp is located
at the Old Minto site.
SENATOR LINCOLN said yes.
REPRESENTATIVE STEPOVICH asked how many people live in Old Minto
and how many people live in Minto.
SENATOR LINCOLN said that a little less than 300 people reside
at the new Minto site, and the population in Old Minto
fluctuates depending on how many clients are at the youth,
recovery, and spirit camps. In response to another question,
she indicated that the goal of the bill is to ensure that the
people of Minto retain the use of the area where Old Minto is
located. She relayed that the Department of Natural Resources
(DNR) and the Alaska Department of Fish & Game (ADF&G) have
testified in complete favor of the [transfer].
REPRESENTATIVE GATTO offered his belief that Version U merely
puts one more protection in place.
CO-CHAIR MASEK relayed that there are other similarly situated
villages - for example, the people of Grayling used to live in
[Holikachuk] but had to move because of flooding. She asked
whether the bill would have any impact on those villages.
SENATOR LINCOLN indicated that it wouldn't because of ANCSA
stipulations; the people of Minto, on the other hand, moved from
Old Minto before ANCSA and so, unlike the people of Grayling and
other similarly situated villages, they didn't have the ability
to select that land under ANCSA.
Number 1976
REPRESENTATIVE GUTTENBERG said he opposes adopting Version U.
CO-CHAIR DAHLSTROM asked Mr. Popely to comment on the use of the
word "forever" on page 3, line 8, of CSSB 132(RES).
MR. POPELY, acknowledging that that language has been removed
from Version U, opined that it is statutorily impossible to
waive sovereign immunity, if it turns out that the Native
Village of Minto actually has such, to any future lessees,
successors, or assigns.
REPRESENTATIVE KERTTULA argued, "If you've got immunity, you've
got immunity; the language really won't change that."
MR. POPELY said he supposes that to be true, but opined that by
referring to sovereign immunity in statute, someone could argue
that sovereign immunity does exist.
REPRESENTATIVE KERTTULA, in response to a question, said she
maintains her objection to the adoption of Version U as a work
draft.
REPRESENTATIVE STEPOVICH opined that the spirit of the bill is
still maintained in Version U. He surmised that the Native
Village of Minto has no intention of ever transferring the land
in the future.
SENATOR LINCOLN expressed concern that changing the bill at this
late date could cause it to fail simply because there wouldn't
be time for concurrence. She opined that Version U does not
guarantee the state any more protection than what is in CSSB
132(RES). She agreed with Representative Stepovich that the
Native Village of Minto will not be selling or otherwise
conveying the land described in the bill.
REPRESENTATIVE HEINZE called the question.
Number 2312
A roll call vote was taken. Representatives Gatto, Heinze,
Lynn, Stepovich, Masek, and Dahlstrom voted in favor of the
motion to adopt Version U as a work draft. Representatives
Guttenberg and Kerttula voted against it. Therefore, Version U
was before the committee by a vote of 6-2.
Number 2348
REPRESENTATIVE KERTTULA moved to report the proposed HCS for SB
132, Version 23-LS0578\U, Bullock, 5/6/04, out of committee with
individual recommendations and the accompanying fiscal note.
Number 2351
CO-CHAIR DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE KERTTULA indicated that she'd like to see the
bill move on to House floor.
Number 2369
CO-CHAIR DAHLSTROM withdrew her [objection] and asked whether
there were any further objections. There being none, HCS CSSB
132(RES) was reported from the House Resources Standing
Committee.
ADJOURNMENT
Number 2397
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 1:46 p.m.
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