Legislature(2003 - 2004)
04/26/2004 03:40 PM Senate RES
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* first hearing in first committee of referral
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+ 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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