Legislature(2003 - 2004)

04/26/2004 03:40 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                  ALASKA STATE LEGISLATURE                                                                                    
             SENATE RESOURCES STANDING COMMITTEE                                                                              
                       April 26, 2004                                                                                           
                          3:40 p.m.                                                                                             
                                                                                                                                
TAPE(S) 04-43, 44                                                                                                             
                                                                                                                              
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Scott Ogan, Chair                                                                                                       
Senator Thomas Wagoner, Vice Chair                                                                                              
Senator Fred Dyson                                                                                                              
Senator Ralph Seekins                                                                                                           
Senator Kim Elton                                                                                                               
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Ben Stevens                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 132                                                                                                             
"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 Minto Village Council."                                                                                   
                                                                                                                                
     MOVED 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                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Mr. John Baker, Assistant Attorney General                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Commented on SB 132.                                                                                      
                                                                                                                                
Mr. Ted Popely                                                                                                                  
Counsel to the Majority                                                                                                         
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 132.                                                                                      
                                                                                                                                
Mr. Don Bullock                                                                                                                 
Legislative Legal Services                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 132.                                                                                      
                                                                                                                                
Mr. Dick Bishop, President                                                                                                      
Alaska Outdoor Council                                                                                                          
Anchorage AK                                                                                                                    
POSITION STATEMENT: Opposes SB 132.                                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-43, SIDE A                                                                                                            
                                                                                                                              
         SB 132-MINTO FLATS GAME REFUGE & TOWNSITE                                                                          
                                                                                                                                
CHAIR  SCOTT  OGAN  called  the  Senate  Resources  Standing                                                                  
Committee  meeting  to  order  at  3:30  p.m.  Present  were                                                                    
Senators  Thomas Wagoner,  Fred  Dyson,  Ralph Seekins,  Kim                                                                    
Elton, Georgianna  Lincoln and  Chair Scott Ogan.  The first                                                                    
order  of business  to come  before the  committee was  CSSB
132(CRA).                                                                                                                       
                                                                                                                                
SENATOR RALPH SEEKINS moved to adopt Amendment 1.                                                                               
                                                                                                                                
                                                 23-LS0578\Q.1                                                                  
                     A M E N D M E N T 1                                                                                    
                                                                                                                                
OFFERED IN THE SENATE                        BY SENATOR SEEKINS                                                                 
     TO:  CSSB 132(CRA)                                                                                                         
Page 3, following line 5:                                                                                                       
     Insert a new subsection to read:                                                                                           
          "(c) The conveyance shall also be made subject to                                                                     
     the following terms and conditions:                                                                                        
               (1) the Native Village of Minto waives any                                                                       
     claim to sovereign immunity with respect to the land,                                                                      
     activities on the land, or persons while they are on                                                                       
     the land;                                                                                                                  
               (2) the land remains under the sovereign                                                                         
     jurisdiction of the state;                                                                                                 
               (3) the land immediately reverts to the                                                                          
     state if the Native Village of Minto or a future                                                                           
     successor receiving the land or an interest in the                                                                         
     land                                                                                                                       
                    (A) claims that the land is Indian                                                                          
          country, as defined in 18 U.S.C. 1151, in an                                                                          
          administrative or judicial proceeding; or                                                                             
                    (B) takes any action relating to the                                                                        
          land that is incompatible with the state's claim                                                                      
          of sovereignty over the land."                                                                                        
                                                                                                                                
Reletter the following subsection accordingly.                                                                                  
                                                                                                                                
SENATOR GEORGIANNA LINCOLN objected.                                                                                            
                                                                                                                                
SENATOR SEEKINS  said he  fully supported  the intent  of SB
132 to  transfer the  old Minto Village  site to  the people                                                                    
who are  connected to it.  His concern is that  the transfer                                                                    
doesn't affect the issue of  sovereign immunity to the State                                                                    
of Alaska.  Amendment 1 gets  the assurance from  the Indian                                                                    
Reorganization Act  (IRA) Council  that it  will not  try to                                                                    
assert sovereign  immunity over  the land as  a precondition                                                                    
of the conveyance.                                                                                                              
                                                                                                                                
SENATOR   LINCOLN  responded   that  she   asked  both   the                                                                    
Department  of  Law  (DOL) and  the  Department  of  Natural                                                                    
Resources (DNR)  to be present  to explain  the implications                                                                    
of the  amendment. She  had two  e-mail responses;  one from                                                                    
John Baker,  DOL, and  the other from  Mr. Joiner,  DNR. The                                                                    
Department of  Law wanted  some clarification  first saying,                                                                    
"Legislative  Legal's   analysis  suggests   that  sovereign                                                                    
immunity attaches to the land. It does not."                                                                                    
                                                                                                                                
Second, Alaska  Native tribes  are not  currently recognized                                                                    
as having territorial jurisdiction over the land they own.                                                                      
                                                                                                                                
     There is,  Mr. Chairman, no sovereignty  over that                                                                         
     land.... DNR also says:                                                                                                    
                                                                                                                                
          We  are   concerned  about   a  reverter                                                                              
          clause that  would require the  state to                                                                              
          monitor  actions  involving  the  parcel                                                                              
          and  to  enforce  the reversion  of  the                                                                              
          land back  into state ownership  for any                                                                              
          reason.   We   do   not   support   this                                                                              
          provision  on the  same grounds  that we                                                                              
          oppose  the similar  one regarding  land                                                                              
          use.'                                                                                                                 
                                                                                                                                
     It  would be  potentially far  more costly  to the                                                                         
     state  to take  back contaminated  lands than  the                                                                         
     miniscule risk  of losing state  jurisdiction over                                                                         
     this tiny parcel. We're talking about 32 acres.                                                                            
                                                                                                                                
SENATOR LINCOLN  said the  findings of  fact for  the Mat-Su                                                                    
Hatcher Pass area of 1999 say that:                                                                                             
                                                                                                                                
     Making the land of this  act available to the Mat-                                                                         
     Su Borough  for conveyance is consistent  with the                                                                         
     testimony and position of the  DNR at the time the                                                                         
     Hatchery Pass  use area was  created. Furthermore,                                                                         
     the selection  is consistent  with the  public use                                                                         
     area  that  is contained  within  the...management                                                                         
     plan."                                                                                                                     
                                                                                                                                
The  Minto site  is being  secured  for Minto  people and  a                                                                    
lease exchange is  in the plan that was  developed for state                                                                    
management.                                                                                                                     
                                                                                                                                
SENATOR LINCOLN emphatically  stated that sovereign immunity                                                                    
does  not attach  to the  land in  Alaska and  Alaska Native                                                                    
tribes are  not recognized as having  jurisdiction over land                                                                    
and, therefore, not this parcel  of land. She said the Minto                                                                    
Natives moved  to the new  site because the state  said they                                                                    
had to,  but they never thought  they were giving up  use of                                                                    
the land there where it continues  to be used for an alcohol                                                                    
recovery  camp for  whole families  and as  a place  to give                                                                    
children hope.                                                                                                                  
                                                                                                                                
CHAIR  OGAN commented  that the  sponsor statement  says the                                                                    
Native Village of  Minto is the governing body  of Minto and                                                                    
is not  a political subdivision  of the state.  He predicted                                                                    
this would end up being litigated.                                                                                              
                                                                                                                                
SENATOR LINCOLN  clarified that  the Village  of Minto  is a                                                                    
recognized tribe under the Secretary of Interior.                                                                               
                                                                                                                                
CHAIR OGAN  said the Mat-Su  [Hatcher Pass] comparison  is a                                                                    
subdivision  of  the state  whereas  the  Native Village  of                                                                    
Minto is  not a subdivision  of the state, but  is federally                                                                    
recognized. That's the problem.                                                                                                 
                                                                                                                                
SENATOR SEEKINS reiterated that  he wasn't worried about the                                                                    
purity of  the intent  of the  people of  Minto to  use that                                                                    
land,   but   he   was  concerned   about   the   unintended                                                                    
consequences of the act. If there  is no ill intent, why not                                                                    
agree to the  precondition of conveyance that  they will not                                                                    
attempt to assert any sovereign  immunity over that land. He                                                                    
had no  problem with deleting paragraph  3, the reconveyance                                                                    
section.                                                                                                                        
                                                                                                                                
SENATOR ELTON  addressed his question  to the  Department of                                                                    
Law.  On line  6, provision  1 says,  "The Village  of Minto                                                                    
waives any claim  to sovereign immunity with  respect to the                                                                    
land."  He asked  if that  language is  needed if  sovereign                                                                    
immunity does not attach to the land now.                                                                                       
                                                                                                                                
MR. JOHN BAKER,  DOL, answered that the point  of his e-mail                                                                    
is to try  to draw a distinction  between sovereign immunity                                                                    
and  territorial sovereignty  by tribes,  which are  not the                                                                    
same  concept.  The  state  routinely  requires  waivers  of                                                                    
sovereign   immunity  from   private  organizations   before                                                                    
entering into  contracts with them.  However, the  extent of                                                                    
the  waiver   on  page  6,  subparagraph   (c)(1)  might  be                                                                    
questioned.                                                                                                                     
                                                                                                                                
SENATOR  ELTON  asked  why  persons   would  have  to  waive                                                                    
sovereign immunity while they are on the land.                                                                                  
                                                                                                                                
MR. BAKER answered that it  is a question of how enforceable                                                                    
the language would  be. Limiting the language  to conduct of                                                                    
the  individual tribal  officers  acting  in their  official                                                                    
capacity might work.                                                                                                            
                                                                                                                                
SENATOR ELTON asked  if it is automatically  assumed that an                                                                    
elder  acting  in his  capacity  on  state land  has  waived                                                                    
sovereign  immunity. "If  not, why  would we  want to  apply                                                                    
that to private land?"                                                                                                          
                                                                                                                                
MR. BAKER  replied that it's not  automatically assumed that                                                                    
an individual has waived sovereign  immunity. It is commonly                                                                    
asserted  as a  legal defense.  In this  case it  is just  a                                                                    
condition of land  being conveyed to a  tribe. "The efficacy                                                                    
is the legislative prerogative...."                                                                                             
                                                                                                                                
SENATOR  ELTON   asked  if  "the  land   remains  under  the                                                                    
sovereign jurisdiction  of the  state" on  line 8  meant the                                                                    
state has more liabilities.                                                                                                     
                                                                                                                                
MR.  BAKER  deferred the  intent  of  that language  to  the                                                                    
sponsor,  but legally  he couldn't  guarantee that  language                                                                    
would necessarily insulate  the state in the  future from an                                                                    
Indian  country claim.  The  status quo  is  that the  state                                                                    
retains jurisdiction  over all the  land unless it  has been                                                                    
preempted.                                                                                                                      
                                                                                                                                
SENATOR ELTON asked if the net effect of line 8 is nothing.                                                                     
                                                                                                                                
MR. BAKER  responded that line  8 doesn't provide  the state                                                                    
with any protections  that it doesn't have now,  but it does                                                                    
state the  legislature's intent that the  conveyance doesn't                                                                    
change the status quo.                                                                                                          
                                                                                                                                
SENATOR LINCOLN  asked how  deleting the  sovereign immunity                                                                    
amendment would affect the bill.                                                                                                
                                                                                                                                
MR. BAKER  replied that the  sovereignty of the  state would                                                                    
not be affected.                                                                                                                
                                                                                                                                
CHAIR OGAN  asked what  the legal issue  was in  the Venetie                                                                    
case.                                                                                                                           
                                                                                                                                
MR.  TED  POPELY, Counsel  to  the  Majority, explained  the                                                                    
court was  inquiring whether or  not Indian  country existed                                                                    
in  Alaska,  specifically  ANCSA corporation  lands  as  was                                                                    
claimed by  the Native Village  of Venetie. The  answer from                                                                    
the Supreme Court  was no. Sovereign immunity  relates to an                                                                    
organization's   ability   to   avoid  liability   and   the                                                                    
jurisdiction of other sovereign entities like the state.                                                                        
                                                                                                                                
     The  notion of  sovereign  immunity  is a  concept                                                                         
     that is not  necessarily tied to the  land. It can                                                                         
     operate  independently.  In  fact, in  Alaska,  of                                                                         
     course, we have a unique  situation in the wake of                                                                         
     the Venetie  case because we have  a state supreme                                                                         
     court   and  a   former  administration   who  has                                                                         
     determined that there  may be federally recognized                                                                         
     Indian tribes in the State  of Alaska. And yet the                                                                         
     court  has indicated  that there  is no  land base                                                                         
     for  any tribes  that  may or  may  not exist.  It                                                                         
     creates some confusion....                                                                                                 
                                                                                                                                
SENATOR LINCOLN asked Mr. Popely if he had any conflict                                                                         
with what Mr. Baker said.                                                                                                       
                                                                                                                                
MR. POPELY pondered:                                                                                                            
                                                                                                                                
     The only thing that makes  it confusing if land is                                                                         
     transferred to an IRA council  is that the land is                                                                         
     not being  transferred to a corporation.  It's not                                                                         
     being  transferred as  Indian country,  it's being                                                                         
     transferred to  what may or  may not be  an Indian                                                                         
     tribe  with  no land  base.  So,  it's created  an                                                                         
     almost  third-tier  hybrid land  ownership  status                                                                         
     that  is  unclear  and  is  unique  up  here.  So,                                                                         
     without the language that  the amendment would add                                                                         
     to the  bill, it leaves some  uncertainty from the                                                                         
     state's  jurisdiction  perspective.  The  question                                                                         
     would be, then, well what  does happen when an IRA                                                                         
     council who  is going  to argue that  it possesses                                                                         
     federally  recognized  Indian  tribe  status  with                                                                         
     sovereign  powers  of governmental  immunity  owns                                                                         
     land vis-a-vis  its position as  a self-proclaimed                                                                         
     tribe without a land  base in Indian country? It's                                                                         
     a question  I'm not sure anybody  knows the answer                                                                         
     to....                                                                                                                     
                                                                                                                                
     Without  the language  what  does  it mean?  Well,                                                                         
     without the  language in there, the  attorneys who                                                                         
     testified  are   right  to  some   extent.  Tribal                                                                         
     sovereign  immunity  would apply  conceptually  as                                                                         
     opposed to  attached to a  land base.  But without                                                                         
     the  language, what  does  it  mean? While  tribal                                                                         
     sovereign immunity  wherever it does exist  by law                                                                         
     and   a  federally   recognized  tribe   exercises                                                                         
     immunity,   it's  a   very  powerful   effect.  It                                                                         
     essentially exempts that  sovereign from liability                                                                         
     in suits  in civil court, but  also from virtually                                                                         
     any  other  state  that claims  jurisdiction  over                                                                         
     that group.  So, it  could apply  to any  land use                                                                         
     that  you might  imagine that  the state  normally                                                                         
     exercises  jurisdiction over.  That could  include                                                                         
     anything   from   access   issues   or   pollution                                                                         
     standards, transfer  of the  land, leasing  of the                                                                         
     land, injuries  that occur on the  land - anything                                                                         
     that I could  conceive of that is  closely tied to                                                                         
     the  land  could  conceivably  be  subject  to  an                                                                         
     immunity defense.  I would disagree to  the extent                                                                         
     that  if  I were  asked,  I  would say  that  it's                                                                         
     advisable  to have  the language  in there  if the                                                                         
     state  wants to  do  everything it  can to  insure                                                                         
     that  it never  loses  the potential  jurisdiction                                                                         
     over the land base that it now exercises....                                                                               
                                                                                                                                
SENATOR LINCOLN  said all the new  Minto is trying to  do is                                                                    
get  title to  32 acres  for the  old site  that they  never                                                                    
thought  they  were  giving  up. She  asked  if  there  were                                                                    
concerns over the tribal sovereignty it has now.                                                                                
                                                                                                                                
MR.  POPELY  replied no  to  the  extent  that the  land  is                                                                    
corporation land.                                                                                                               
                                                                                                                                
SENATOR LINCOLN  interrupted to clarify that  she is talking                                                                    
about the Native village of Minto, the IRA.                                                                                     
                                                                                                                                
MR.  POPELY admitted  that  he didn't  know  the answer  and                                                                    
added:                                                                                                                          
                                                                                                                                
     The  land that  exists there  now is  going to  be                                                                         
     subject  to  whatever the  courts  tell  us it  is                                                                         
     going  to be  subjected  to with  respect to  this                                                                         
     arena of questions. If there  is a lawsuit brought                                                                         
     with respect  to the  land ownership  that's there                                                                         
     now,  if the  owners  of the  land  try to  exempt                                                                         
     themselves  from state  jurisdiction, I  can't say                                                                         
     what the result  will be. That's going  to be left                                                                         
     up to  the courts....  The smartest course  is the                                                                         
     most  conservative  course,  which  is  protecting                                                                         
     yourself....                                                                                                               
                                                                                                                                
SENATOR ELTON  asked if his  concerns would be  addressed by                                                                    
deleting numbers 1  and 3 and inserting a  new subsection to                                                                    
read:  "(c) The  conveyance  shall be  made  subject to  the                                                                    
condition  that   the  land  remains  under   the  sovereign                                                                    
jurisdiction of the state."                                                                                                     
                                                                                                                                
MR. POPELY  replied that he  wasn't sure that would  cover a                                                                    
future claim.                                                                                                                   
                                                                                                                                
SENATOR  ELTON  said the  problem  he  had  is that  line  6                                                                    
essentially  says the  Native Village  of  Minto waives  any                                                                    
claim to  sovereign immunity with  respect to  persons while                                                                    
they are on the land. He  asked if it is giving up something                                                                    
now.                                                                                                                            
                                                                                                                                
TAPE 04-43, SIDE B                                                                                                            
                                                                                                                                
MR.  POPELY  answered  that  the only  thing  is  that  they                                                                    
exercise  powers  and  immunities vis-à-vis  the  land  that                                                                    
exists  there now  in  its current  legal  status. It  isn't                                                                    
clear what  changing the land  status to become part  of the                                                                    
IRA council's  potential asserted claim of  tribal ownership                                                                    
of  land, that's  not corporation  land and  not necessarily                                                                    
Indian country  would be. The  legislation as  amended would                                                                    
require that  the new  land status  would require  waiver of                                                                    
those potentially asserted powers vis-à-vis that land.                                                                          
                                                                                                                                
SENATOR ELTON asked why a  council would want to accept land                                                                    
if, in  fact, they may  be giving up  a right that  they now                                                                    
have.                                                                                                                           
                                                                                                                                
MR.  POPELY  basically  answered  that the  state  has  good                                                                    
reasons to  not want to  waive an entity from  being subject                                                                    
to state law.                                                                                                                   
                                                                                                                                
SENATOR SEEKINS asked hypothetically if  a member of the IRA                                                                    
council was traveling in  downtown Fairbanks, what sovereign                                                                    
immunity he would have.                                                                                                         
                                                                                                                                
MR. POPELY answered:                                                                                                            
                                                                                                                                
     Let me preface  my answer by saying  that there is                                                                         
     still  within this  body...  a  controversy as  to                                                                         
     whether or  not any  Native entities in  the State                                                                         
     of  Alaska possess  powers of  sovereign immunity.                                                                         
     Having said  that, if you  assume for  purposes of                                                                         
     your question  that there are powers  of sovereign                                                                         
     immunity   possessed  by   Alaska  Native   groups                                                                         
     somewhere  in  the State  of  Alaska,  and if,  in                                                                         
     fact,  they  are  the groups  that  the  Assistant                                                                         
     Secretary put  on her  list in  1993 and  that the                                                                         
     Alaska Supreme  Court has talked about  in John v.                                                                         
     Baker   in   subsequent  cases,   then   generally                                                                         
     speaking,  the sovereign  immunity  is enjoyed  by                                                                         
     the tribe and not by  the individual. So, it's not                                                                         
     a blanket  shield from  liability that  extends to                                                                         
     any Alaska Native who happens  to be a member of a                                                                         
     sovereign  tribe. It's  a shield  that exists  for                                                                         
     the  entity. In  this case  it would  be a  tribe.                                                                         
     Whether or  not those  exist in Alaska  remains an                                                                         
     open question.                                                                                                             
                                                                                                                                
SENATOR SEEKINS  asked if sovereign immunity  is transferred                                                                    
by the  IRA council, will the  amendment do any harm  to any                                                                    
one.                                                                                                                            
                                                                                                                                
MR.  POPELY  replied  no.  "You   can't  take  away  by  law                                                                    
something that does not already exist...."                                                                                      
                                                                                                                                
SENATOR LINCOLN  asked if taking  away numbers 1 and  2 take                                                                    
away  any powers  from  the  state's sovereign  jurisdiction                                                                    
over the land.                                                                                                                  
                                                                                                                                
MR. POPELY replied that no one knows the answer to that.                                                                        
                                                                                                                                
SENATOR LINCOLN asked if it happened this time.                                                                                 
                                                                                                                                
MR. POPELY replied that it might.                                                                                               
                                                                                                                                
     Without those provisions in  there, it is possible                                                                         
     this legislation  could convey  land to  an entity                                                                         
     who under the rulings  of the Alaska Supreme Court                                                                         
     and  actions of  the  Department  of Interior  may                                                                         
     then  possess  powers  that diminish  the  state's                                                                         
     jurisdiction on those lands.                                                                                               
                                                                                                                                
He explained  that the  John v. Baker  case, in  the Supreme                                                                    
Court,  recognizes  that   there  are  federally  recognized                                                                    
Indian tribes  in Alaska, yet, there  are organizations that                                                                    
believe that is still an open question.                                                                                         
                                                                                                                                
     If  we disagree  with that  contention, then  it's                                                                         
     incumbent upon  us to  prevent any  furtherance of                                                                         
     those matters that we can  control. This is one of                                                                         
     those areas....                                                                                                            
                                                                                                                                
SENATOR LINCOLN  asked Mr. Popely  if this gives  the Native                                                                    
Village of  Minto any more  powers than what  they presently                                                                    
have now.                                                                                                                       
                                                                                                                                
MR. POPELY replied, "Yes, it could."                                                                                            
                                                                                                                                
SENATOR LINCOLN asked him how that could be.                                                                                    
                                                                                                                                
MR. POPELY replied:                                                                                                             
                                                                                                                                
     Because this is  a piece of new real  estate and a                                                                         
     new  law  that is  passing  title  to land  to  an                                                                         
     organization  that exists  on the  1993 Department                                                                         
     of  Interior  list  and that  the  Alaska  Supreme                                                                         
     Court    has    recognized,   and    the    former                                                                         
     administration   has   recognized,  as   federally                                                                         
     recognized Indian country. As  a new action of the                                                                         
     state it  is advocating  a policy  of transferring                                                                         
     land to  an entity that some  very important folks                                                                         
     have said  are federally recognized  Indian tribes                                                                         
     with  powers of  sovereign  immunity.  So, in  the                                                                         
     wake of  those opinions,  passing new  real estate                                                                         
     to this  organization whose status  is fluid  - at                                                                         
     different times  in history  it may  be considered                                                                         
     many different  things - a  tribe, not a  tribe, a                                                                         
     group  within  Indian  country,  a  group  without                                                                         
     Indian  country.... It's  the conservative  course                                                                         
     to take.                                                                                                                   
                                                                                                                                
CHAIR OGAN asked if the concern is that title is being                                                                          
transferred to an entity that isn't recognized anywhere                                                                         
else in statute.                                                                                                                
                                                                                                                                
MR. POPELY replied, "Whether it's recognized anywhere else                                                                      
or not, it is in fact an organized entity under the IRA                                                                         
that is listed in the federal list of tribes."                                                                                  
                                                                                                                                
CHAIR OGAN asked if the amendment in any way acknowledges                                                                       
that existence.                                                                                                                 
                                                                                                                                
MR. POPELY said he didn't think so.                                                                                             
                                                                                                                                
     The act of  granting land is not in  itself an act                                                                         
     that federal  courts recognize as an  act creating                                                                         
     tribal status under federal law.  But, if you give                                                                         
     land to  an entity who  is a proclaimed  tribe and                                                                         
     is  listed and  if we're  wrong and  they are,  in                                                                         
     fact,  federally  recognized Indian  tribes,  then                                                                         
     they  will  have received  the  land  free of  any                                                                         
     waivers of  immunity and all the  attendant powers                                                                         
     that may  go with  land that  is transferred  to a                                                                         
     tribal entity in the United States.                                                                                        
                                                                                                                                
SENATOR  ELTON  asked if  sovereign  immunity  accrues to  a                                                                    
tribe  and not  an  individual,  why is  there  a waiver  of                                                                    
sovereign immunity on line 6.                                                                                                   
                                                                                                                                
MR. POPELY replied:                                                                                                             
                                                                                                                                
     I imagine  it was  drafted that way  because often                                                                         
     times    organizations    are    represented    by                                                                         
     individuals through  general principles  of agency                                                                         
     [acting  on  behalf  of  a  group  and  therefore,                                                                         
     enjoying  the  immunities  that group  enjoys].  I                                                                         
     imagine that the drafter  intended that this meant                                                                         
     that  any person  who does  something in  the name                                                                         
     [of the entity]....                                                                                                        
                                                                                                                                
SENATOR   ELTON  inferred   that,   therefore,  there   were                                                                    
implications  for  an  individual who  was  walking  through                                                                    
Fairbanks.                                                                                                                      
                                                                                                                                
MR. POPELY said this case  says, "vis-à-vis to activities on                                                                    
the land".                                                                                                                      
                                                                                                                                
SENATOR ELTON pointed  out that they may be  waiving a right                                                                    
they  might already  have  and lose  that  right under  this                                                                    
wording.                                                                                                                        
                                                                                                                                
MR. POPELY replied that many  in the state believe that they                                                                    
are not enjoying  any sovereign immunity right  now and this                                                                    
is a measure to prevent that assertion in the future.                                                                           
                                                                                                                                
4:50 to 4:53 p.m. - at ease                                                                                                     
                                                                                                                                
SENATOR  LINCOLN  moved to  amend  Amendment  1 on  line  6,                                                                    
inserting a  ";" after "land"  and delete "or  persons while                                                                    
they are on the land" and lines 9 - 14.                                                                                         
                                                                                                                                
SENATOR SEEKINS  objected. He asked  what the  importance of                                                                    
the words  "for persons while they  are on the land"  are on                                                                    
lines 6 and 7.                                                                                                                  
                                                                                                                                
MR. DON BULLOCK, Legislative Legal Services, replied:                                                                           
                                                                                                                                
     That language  has to do with  the relationship of                                                                         
     the  Native  Village  of Minto  as  far  as  other                                                                         
     people  coming onto  the  land.  It's not  talking                                                                         
     about  the representatives  of the  Native Village                                                                         
     of Minto. But, if somebody  is injured on the land                                                                         
     and  would  have  a positive  action  against  the                                                                         
     Native  Village of  Minto related  to that  person                                                                         
     being  on the  land, that  the sovereign  immunity                                                                         
     wouldn't apply.                                                                                                            
                                                                                                                                
SENATOR SEEKINS asked if eliminating  that phrase would mean                                                                    
someone  who was  injured by  an activity  that occurred  on                                                                    
behalf of  the tribal council enjoys  sovereign immunity and                                                                    
can't be sued for that injury.                                                                                                  
                                                                                                                                
MR. POPELY replied:                                                                                                             
                                                                                                                                
     Right, just like the state  has its own version of                                                                         
     the  Tort  Claims  Act  that  says  under  certain                                                                         
     circumstances the state  waives its immunity. What                                                                         
     this section  1 and 2  would do is  basically make                                                                         
     the  Native   Village  of   Minto  as   a  private                                                                         
     landowner.  So,   if  the  land  is   going  to  a                                                                         
     corporation  instead  of  the  Native  Village  of                                                                         
     Minto, the rules would be the same.                                                                                        
                                                                                                                                
SENATOR LINCOLN said the Native  Village of Minto would then                                                                    
be  legally responsible  for that  and considered  a private                                                                    
landholder.  However, she  didn't  believe that  any of  the                                                                    
villages are considered private landholders.                                                                                    
                                                                                                                                
MR. BULLOCK responded:                                                                                                          
                                                                                                                                
     First  of  all,  there  has   to  be  a  cause  or                                                                         
     relationship  between   whatever  injury  somebody                                                                         
     suffered on the land  linked to the Native Village                                                                         
     of  Minto being  responsible  for whatever  caused                                                                         
     harm  to that  person. There  are two  things that                                                                         
     are  happening  here  if you  look  at  what  this                                                                         
     section does, what this  amendment would do. First                                                                         
     of  all, it's  a  transfer of  land  out of  state                                                                         
     ownership to an entity.  That's the first thing it                                                                         
     does. But this  isn't just an entity;  this is the                                                                         
     Native  Village   of  Minto,   which  is   an  IRA                                                                         
     corporation. Because  it's an IRA  corporation and                                                                         
     the law  is unsettled.... I'm not  sure what other                                                                         
     issues  are  out   there.  That's  the  cautionary                                                                         
                                          rd                                                                                    
     language in my memo I wrote on the 23.                                                                                     
                                                                                                                                
     What paragraphs  1 and 2  of this  amendment would                                                                         
     be  -  it would  basically  treat  the land  as  a                                                                         
     transfer  to  just  a  regular  corporation  or  a                                                                         
     person receiving the land.                                                                                                 
                                                                                                                                
SENATOR SEEKINS  responded that his  intent is to  treat the                                                                    
transfer as  if it  was to  a private  citizen. He  asked if                                                                    
this amendment would give that assurance.                                                                                       
                                                                                                                                
MR. BULLOCK  replied that he  thought it would.  The unknown                                                                    
is what  federal jurisdiction is  involved because  of title                                                                    
being transferred to a Native corporation.                                                                                      
                                                                                                                                
CHAIR  OGAN  brought  the  committee's  focus  back  to  the                                                                    
amendment to  Amendment 1  and asked  Senator Seekins  if he                                                                    
objected.                                                                                                                       
                                                                                                                                
SENATOR  SEEKINS  replied that  he  didn't  object. He  only                                                                    
objected to the deletion in lines 6 - 7.                                                                                        
                                                                                                                                
CHAIR  OGAN divided  the question  into  Amendment A,  which                                                                    
would  delete line  6 and  Amendment B,  which would  delete                                                                    
lines 9 - 15. Amendment A was considered first.                                                                                 
                                                                                                                                
SENATOR   LINCOLN  said   she  thought   all  the   previous                                                                    
discussion had established that the  intent is not that they                                                                    
are talking about a private citizen, but an IRA.                                                                                
                                                                                                                                
CHAIR OGAN  called for  the question. A  yes vote  drops the                                                                    
language  and no  vote keeps  the language.  Senators Dyson,                                                                    
Elton, Lincoln  and Wagoner voted  yea; and  Senator Seekins                                                                    
and Chair  Ogan voted  nay; and Amendment  A to  Amendment 1                                                                    
was adopted.                                                                                                                    
                                                                                                                                
CHAIR  OGAN called  the question  on Amendment  B to  delete                                                                    
lines 9  - 14 from  Amendment 1. A  yes vote would  drop the                                                                    
language  and a  no vote  would keep  it. Senators  Wagoner,                                                                    
Elton,  Lincoln, Seekins,  Dyson and  Chair Ogan  voted yea;                                                                    
and Amendment B to Amendment 1 was adopted.                                                                                     
                                                                                                                                
SENATOR  SEEKINS  asked Mr.  Bullock  if  the waiver  should                                                                    
include  the  statement that  the  Native  Village of  Minto                                                                    
waives for  itself, its lessees, its  successors and assigns                                                                    
forever any claims, etc. as  a precondition to acceptance of                                                                    
the conveyance.                                                                                                                 
                                                                                                                                
MR. BULLOCK replied that language could be added.                                                                               
                                                                                                                                
SENATOR  SEEKINS moved  conceptual Amendment  2 to  add "for                                                                    
itself,  lessees,  successors  and   assigns  forever  as  a                                                                    
precondition   of  acceptance   of  the   conveyance"  after                                                                    
"waives" on line 5.                                                                                                             
                                                                                                                                
SENATOR LINCOLN objected  to say that that  language needs a                                                                    
legal  opinion since  it included  "forever". She  asked Mr.                                                                    
Bullock if  not having that  language in the bill  created a                                                                    
problem.                                                                                                                        
                                                                                                                                
MR.  BULLOCK stated  that  the bill  transfers  land to  the                                                                    
Village of Minto and he  didn't believe anything in the bill                                                                    
would  prevent it  from transferring  it  to another  Native                                                                    
village corporation or selling it into private hands.                                                                           
                                                                                                                                
SENATOR  ELTON said  the  state didn't  put  those kinds  of                                                                    
conditions  on  any  other  land  transfer.  "I  mean  we're                                                                    
putting something in  place here that we're  not applying to                                                                    
other entities."                                                                                                                
                                                                                                                                
MR. BULLOCK replied:                                                                                                            
                                                                                                                                
     The issue here is that  this is the Native Village                                                                         
     of Minto,  not another  corporation, and  there is                                                                         
     unsettled law  concerning what  the affect  of the                                                                         
     land will  be when  it's transferred to  this type                                                                         
     of entity.                                                                                                                 
                                                                                                                                
SENATOR ELTON  followed up  saying that  the City  of Juneau                                                                    
could  transfer land  to  the Native  Village  of Minto  and                                                                    
could do it without that condition.                                                                                             
                                                                                                                                
MR. BULLOCK agreed.                                                                                                             
                                                                                                                                
SENATOR SEEKINS  pointed out that  language is  standard and                                                                    
conforms  with   other  reservation  language  on   page  2,                                                                    
paragraph (b).                                                                                                                  
                                                                                                                                
CHAIR OGAN explained that the  section in question preserves                                                                    
the mineral rights.                                                                                                             
                                                                                                                                
MR. BULLOCK  said that  was right, but  noted if  the Native                                                                    
Village of  Minto sold  this land  to a  private individual,                                                                    
then   sovereign   immunity   wouldn't  apply   because   an                                                                    
individual doesn't  have any grounds for  claiming sovereign                                                                    
immunity.                                                                                                                       
                                                                                                                                
SENATOR LINCOLN  pointed out  that language  on line  8 says                                                                    
that the  land remains  under the sovereign  jurisdiction of                                                                    
the state.                                                                                                                      
                                                                                                                                
MR. BULLOCK replied  the sponsor's intent was  to have state                                                                    
law continue to apply on that land.                                                                                             
                                                                                                                                
SENATOR LINCOLN  asked if that wasn't  enough protection for                                                                    
the state.                                                                                                                      
                                                                                                                                
MR.  BULLOCK replied  that there  are two  different issues.                                                                    
The Venetie  case had to  do with  what its powers  over its                                                                    
land were as a government. The  second issue was what is the                                                                    
relation of the  Native Village of Minto as  a government in                                                                    
the John v. Baker case.                                                                                                         
                                                                                                                                
SENATOR  ELTON  encouraged a  no  vote  for this  amendment,                                                                    
because it  raises new  issues that can  be explored  by the                                                                    
sponsor later and amended on the floor.                                                                                         
                                                                                                                                
CHAIR OGAN  asked for  the roll to  be called  on conceptual                                                                    
Amendment  2. Senators  Seekins,  Wagoner,  Dyson and  Chair                                                                    
Ogan voted  yea; Senators Elton  and Lincoln voted  nay; and                                                                    
conceptual Amendment 2 was adopted.                                                                                             
                                                                                                                                
SENATOR ELTON  called for  the question  on Amendment  1 am.                                                                    
Senators Wagoner,  Dyson, Seekins and Chair  Ogan voted yea;                                                                    
Senator Lincoln and Elton voted  nay; and Amendment 1 am was                                                                    
adopted.                                                                                                                        
                                                                                                                                
MR. DICK BISHOP, President, Alaska  Outdoor Council, said he                                                                    
did  not support  the  bill  because of  the  high level  of                                                                    
uncertainty  about  the  consequences of  transferring  land                                                                    
under these  conditions and  that is not  in the  state's or                                                                    
the public's best interest.                                                                                                     
                                                                                                                                
TAPE 04-44, SIDE A                                                                                                            
                                                                                                                              
SENATOR SEEKINS  moved to pass CSSB  132(RES) from committee                                                                    
with individual  recommendations and attached  fiscal notes.                                                                    
There were no objections and it was so ordered.                                                                                 
                                                                                                                                
There  being   no  further  business  to   come  before  the                                                                    
committee, Chair Ogan adjourned the meeting at 5:20 p.m.                                                                        
                                                                                                                                
                                                                                                                                

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