Legislature(2021 - 2022)GRUENBERG 120
04/17/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB123 | |
| HB157 | |
| HB148 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 123 | TELECONFERENCED | |
| *+ | HB 157 | TELECONFERENCED | |
| *+ | HB 148 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 123-STATE RECOGNITION OF TRIBES
3:07:14 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 123, "An Act providing for state
recognition of federally recognized tribes; and providing for an
effective date."
3:07:31 PM
REPRESENTATIVE TIFFANY ZULKOSKY, Alaska State Legislature, prime
sponsor, introduced HB 123. She noted that the proposed
legislation began as a bipartisan effort in the previous
legislature. It would for the first time, formally recognize
Alaska's Tribes in state law, she said. She explained that
Tribes had been recognized by the federal government, as well as
the executive and judicial branches of Alaska's government;
however, the Alaska State Legislature had yet to officially
recognize them in statute. She cited a memorandum from
Legislative Legal Services, Legislative Affairs Agency (LAA),
which affirmed that passing HB 123 would not substantively
change the state's existing relationship with Tribes and would
serve as a first step towards recognizing their existence and
history in Alaska's legal statutes. Further, as Alaska looked
to its Tribal partners to provide a myriad of essential services
to Alaskans living in remote parts of the state, she emphasized
the importance of healing historic political division. She
reported that in 2017, the State of Alaska entered its first
compact with Tribes by signing the Tribal Child Welfare Compact
to address the significant disproportionate number of Alaska
Native children in state custody. More recently, Tribes and
Tribal nonprofits provided timely, expanded COVID-19
vaccinations well before the state had the ability to do so.
She believed it was difficult for the legislature to have
meaningful discussions about expanding relationships with Tribes
when their existence was not formally acknowledged in the first
place. She recalled testimony from the House Special Committee
on Tribal Affairs (HTRB) that acknowledged the difficulty of
discussing progress without resolving some of the historical
trauma that occurred in Alaska. In closing, she maintained that
the time had long come for Alaska to acknowledge its Tribes and
offer a path towards reconciliation by recognizing Alaska's
first people for the first time in state law.
3:13:24 PM
LOGAN BASNER, Staff, Representative Tiffany Zulkosky, Alaska
State Legislature, on behalf of Representative Zulkosky, prime
sponsor, provided a sectional analysis of HB 123 [included in
the committee packet], which read as follows [original
punctuation provided]:
Section 1: This section adds legislative finding and
intent language.
Section 2: This section is a technical change and
could have been included in a revisor's bill. In 2016,
provisions from chapter 14 of title 25 of the United
States Code were reorganized. As a result, the
Federally Recognized Indian Tribe List Act of 1994
received a different section number in the U.S. Code.
The operative provision of this bill in Section 4 of
the bill references this act. The proposed new statute
in Section 4 cross references AS 23.20.520 and so
Legislative Legal is suggesting that the new section
number in the U.S. Code be updated in this statute.
Sections 3 and 4. Sections 2 and 3 are technical
changes. The proposed new statute of this bill was
deemed to be codified in AS 44.03 by Legislative
Legal. This chapter of title 44 contains only four
statutes that deal with state ownership and
jurisdiction of offshore water and submerged lands and
rules of statutory construction for the chapter.
Because the proposed new statute of this bill is a
completely different concept than the existing
statutes within AS 44.03, clarifying language was
inserted to accommodate the proposed new statute
within this chapter.
Section 5. This section contains the proposed new
statute which acknowledges the unique status tribes
have with the federal government and makes it the
State's official policy that the State recognizes the
federally recognized tribes within the state of
Alaska. The list of federally recognized tribes is
codified in the U.S. Code and this statute references
that act. This section makes clear that this
recognition is in no way intended to affect the
federal trust responsibility the U.S. Government
extends to tribes nor is it an attempt to create a
state trust responsibility to tribes.
Section 6: Adds an immediate effective date.
MR. BASNER emphasized that the proposed legislation would not
create additional rights or privileges for Tribes, nor would it
lead to the creation of casinos. He referenced a letter from
the Alaska Oil and Gas Association (AOGA) [included in the
committee packet], later adding that the bill would not
interfere with access to natural resources or resource
development.
3:16:56 PM
NATASHA SINGH, General Counsel, Tanana Chiefs Conference (TCC),
informed committee members that TCC represented 37 federally
recognized Tribes in interior Alaska. She explained that TCC
was a Tribal consortium that assisted Tribes with their federal
relationships. She introduced a PowerPoint presentation, titled
"Recognition of Alaska Tribes" [hard copy included in the
committee packet]. She briefly discussed the historical context
of Tribes in Alaska on slide 2 before defining Tribes in further
detail on slide 3, titled "What are Tribes," which read as
follows [original punctuation provided]:
• Domestic Dependent Nations
• Inherent powers and authorities with self-
governance of internal affairs, e.g. type of
government; tribal membership
• Tribes exercise all powers, unless those powers
have been expressly limited by Congress
• Regulate matters pertaining to tribal members,
e.g. taxes, property, members' conduct
• Immune from lawsuits
• Tribes are not state or local governments;
political subdivisions or agencies or
instrumentalities of the federal or state
governments; tax exempt organizations
3:21:38 PM
MS. SINGH continued to slides 4-5, which reviewed the historical
relationship between Tribes and the United States Government via
federal Indian policy periods. She conveyed that these periods
of federal policy reflected the different approaches that
Congress took to what they termed "the Indian problem." She
explained that the colonial period [1492-1820] established the
initial government-to-government relationship. The
removal/relocation period [1820-1850] gave rise to the Trail of
Tears, as the United States expanded its territory pushing East
Coast Tribes westward. The reservation/treaty period [1850-
1997] saw the development of numerous treaties between Lower-48
Tribes and the federal government; many reservations were also
created. Subsequently, during the allotment and assimilation
period [1887-`1934], the United States rolled back the promises
made in its treaties and the effort to culturally assimilate
Native Americans ensued. The Indian self-government period
[1934-1953] consisted of a paternalistic dynamic wherein the
United States provided services to Tribes with stipulations.
The termination period followed [1953-1960s], which essentially
ended the government-to-government relationship and the
political existence of some Tribes. Lastly, the prior failed
policies culminated in the successful self-determination period
[1960s - present] under President Richard Nixon, which
originated from the concept of local control
3:28:32 PM
MS. SINGH proceeded to slides 6-7 and discussed a set of three
Supreme Court decisions referred to as the Marshal Trilogy,
which affirmed the legal and political standing of Tribes and
established them as domestic dependent nations. She touched on
the Alaska Purchase and the Treaty of Cession on slide 8. Slide
9 emphasized that the relationship between the federal
government and Tribes was constitutionalized in Article I,
Section 8, Clause 3 of the U.S. Constitution, which also
specified that Congress has the authority to regulate Tribes.
She advanced to slide 10, titled "Self-Determination," which
read as follows [original punctuation provided]:
• The only policy that has worked to make
significant progress in reversing otherwise
distressed social, cultural, and economic
conditions in Native communities.
• The policy of self-determination reflects a
political equilibrium, which has held for four
decades and which has withstood various shifts in
the party control of Congress and the White
House.
• The first major piece of legislation, Public Law
93-638, the Indian Self Determination Act of
1975.
-Tribes identify federal government services
that they wish to provide to their own tribal
members and contract for the federal funding to
provide those services themselves.
MS. SINGH noted that Tribal recognition and the pursuit of
Tribal self-determination was a bipartisan effort.
Additionally, she explained that the two federal compacts held
by TCC were made possible by the authority in the Indian Self-
Determination and Education Assistance Act championed by
President Nixon.
3:34:32 PM
MS. SINGH provided an overview of Executive Order 13175 on
slides 11-12. The executive order further recognized the United
States' unique legal relationship with Tribal governments and
established regular consultation and collaboration with Tribes
in the development of federal policies that had Tribal
implications. Slides 13-16 examined the historical relationship
between Tribes and the State of Alaska. She explained that a
large portion of the state's Tribal population was either wiped
out or forced into settlements and boarding schools. There was
also no acknowledgment of Tribes in both the Alaska Constitution
and the Alaska Native Claims Settlement Act (ANCSA) [1971]. She
conveyed that the lack of dialogue between the State of Alaska
and Tribes caused confusion, and in Native Village of Stevens v.
Alaska Management & Planning [1988], the Alaska Supreme Court
indicated that there had never been tribes of Indians in Alaska.
Additionally, a 1991 Alaska administrative order (No. 125)
opposed the expansion of Tribal government powers. She relayed
that in response to the "Sansonetti Opinion" [1993], which
disagreed with the Alaska Supreme Court's historical analysis of
Tribes in Stevens Village, the U.S. Department of Interior (DOI)
issued a list of federally recognized tribes in Alaska. One
year later, Congress passed the Federally Recognized Indian
Tribe List Act of 1994 that directed BIA [Bureau of Indian
Affairs] to publish lists of recognized Tribes that included
Alaska's. She stated that eventually, case law with a better
understanding of Tribes and their political and legal standing
developed. Slide 16, titled "Current Position of the State of
Alaska on Recognition of Tribes," read as follows [original
punctuation provided]:
• Alaska Supreme Court - "If Congress or the
Executive Branch recognizes a group of Native
Americans as a sovereign Tribe, we 'must do the
same.'" John v. Baker (1999)
• State of Alaska's Executive Branch - "[W]e will
improve government-to-government relations with
Alaska Tribes []." Alaska Admin. Order No. 300
(2018). See also Alaska Department of Law 2017
Opinion - Legal status of tribal governments in
Alaska ("[T]here are no unresolved legal
questions regarding the legal status of Alaska
Tribes as federally recognized tribal
governments.")
3:41:37 PM
MS. SINGH continued to slide 17, titled "HB 123," which read as
follows [original punctuation provided]:
• Will bring the Alaska State Legislature in-line
with the other two branches of State government
regarding the status of Alaska Tribes.
• Will modernize the policy towards Alaska Native
tribes by officially moving the State legislature
out of the Termination Era and into the Self-
Determination Era.
• Create the potential for the State of Alaska to
lead the country in creation of State-tribal
relations.
MS. SINGH concluded that the 37 federally recognized Tribes of
Interior Alaska favored the proposed legislation. She expressed
excitement for the opportunity to grow the relationship between
state government and Alaska's Tribes and an interest in fixing
existing state issues together.
CHAIR KREISS-TOMKINS invited questions from committee members.
3:43:43 PM
REPRESENTATIVE EASTMAN speculated that if Alaska would lead the
country in state and tribal relations with the proposed
legislation, there must be bipartisan [opposition] to this idea.
He asked what was keeping all 50 states from going this route.
MS. SINGH clarified that Alaska was in last place with Tribal
relations, but it had the potential to lead the nation. She
indicated that other states were in various stages of
relationships with Tribes: some had entered into sophisticated
compact agreements that addressed criminal justice, child
protection, and education, while others acknowledged Tribes that
were not even federally recognized. She reiterated that the
mere recognition of Alaska's Tribes would allow the state to
lead the nation and could move Alaska out of last place.
REPRESENTATIVE ZULKOSKY noted that there were roughly 12 states
that had recognized Tribes through legislation. She offered to
provide that information to the Chair's office for distribution.
She pointed out that of the 571 federally recognized Tribes in
the country, 229 subsisted in Alaska; therefore, Alaska had the
potential to be a leader for improved state and Tribal
relations. She opined that with so many Tribes in Alaska, it
was unfortunate that the state had yet to acknowledge Tribes in
state law.
3:46:50 PM
CHAIR KREISS-TOMKINS, referring to the bill language, inquired
about the change in federal citation on Page 2, line 2.
REPRESENTATIVE ZULKOSKY offered to follow up with the requested
information.
3:48:20 PM
REPRESENTATIVE EASTMAN observed that Section 3 looked as if it
would restrict applicability to a smaller portion of statute as
opposed to the entire chapter. He asked why that change was
necessary.
REPRESENTATIVE ZULKOSKY offered to follow up with the requested
information.
3:49:01 PM
REPRESENTATIVE VANCE sought to clarify the meaning of self-
determination versus a domestic dependent [nation].
REPRESENTATIVE ZULKOSKY returned to slide 6, titled "Domestic
Dependent Nations," which read:
a weaker power does not surrender its independence -
its right to elf-government - by associating with a
stronger, and takings its protection. A weak state,
in order to provide for its safety, may place itself
under the protection of one more powerful, without
stripping itself of the right of government, and
ceasing to be a state.
REPRESENTATIVE ZULKOSKY indicated that the slide captured the
issue of inherent sovereignty that was often discussed in
association to the relationships that Tribes have with federal
or state government. She expounded that while Tribes may have
aligned themselves with stronger governments, there was also an
opportunity for the federal government, through self-
determination policy, to allow them to make decisions for
themselves. She suggested considering Tribes as the most local
form of government, adding that the term "Tribal sovereignty"
should not be a scary word. She pointed out that it was the
"domestic dependent nations" framework with which Tribes
exercised their self-determination. She considered the example
of Tribal health, explaining that the federal compacts allowed
Tribes to offer healthcare in the stead of the federal
government; however, she noted that the federal government also
seeded decision making authority to Tribes to allow them to
create culturally relevant, locally appropriate programs that
worked best in their communities. She believed self-
determination was a policy framework that provided decision
making authority to domestic dependent nations that had aligned
with the federal government.
3:53:13 PM
MS. SINGH agreed with Representative Zuloksky, adding that
"domestic dependent nation status" was a legal status
established in the Cherokee Nation v. Georgia decision. The
case outlined the sovereign nature of Tribes as unlike states
and quasi-sovereign. Alternatively, she said self-determination
was a policy, which implemented the legal status of domestic
dependent nations.
3:54:46 PM
REPRESENTATIVE VANCE claimed that there was an underlying fear
of Tribes becoming legally recognized by the state and pondered
"what lies at the heart of that fear?" She asked where the
state fit in the relationship between governments and whether
the bill sponsor had addressed some of the "unknown fears."
REPRESENTATIVE ZULKOSKY in response to a previous question from
Chair Kreiss-Tomkins regarding the language in Section 2,
clarified that the reference change was a technical change.
Similarly, in response to a previous question from
Representative Eastman, she said the change in Section 3 was
also a technical change and directed attention to the sectional
analysis [included in the committee packet] for further
explanation. Returning to Representative Vance's questions, she
declined to speculate on the actions of future legislators with
respect to their opinions on Tribes in Alaska. She stated that
the beauty of HB 123 was that it would provide an opportunity in
2021, as the country was experiencing significant divisiveness
and challenges with cultural relationships, for the existing
legislature to pass straightforward [legislation] that would
establish state policy acknowledging federally recognized Tribes
in Alaska for the first time since statehood. She believed that
simple recognition would go a long way towards healing
historical and political divisions. She continued by reporting
that Alaska led the country in the number of times a state
government had sued Tribes in its attempt to diminish their
authority; further, [Alaska's] Tribes had not seen great
reparation for the colonial and extermination periods. She
opined that the bill was long overdue.
4:00:09 PM
CHAIR KREISS-TOMKINS [announced that HB 123 was held over].
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB157 Hearing Request 3.31.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB 157 Version A.PDF |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB157 Letter of Support - Kendall 4.2.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB157 Sectional Analysis 3.31.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB157 Sponsor Statement 3.31.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB 157 Additional Info - Press Release 3.31.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB 157 Legislative Legal Memo 3.31.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 157 |
| HB 123 Sectional Analysis.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 123 Sponsor Statement.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 123 Version A.PDF |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB123 Letter of Support - O’Domin 4.13.12.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB123 Letters of Support.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 123 PowerPoint Presentation - Anderson-Singh 3.30.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 123 Additional Info - AOGA Response Letter 3.26.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 123 Hearing Request Memo.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 123 Legal Memo re State Recognitin of Tribes 3.25.21.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 123 |
| HB 148 Sectional Analysis - 4.6.21.pdf |
HRES 5/5/2021 1:00:00 PM HSTA 4/17/2021 3:00:00 PM |
HB 148 |
| HB 148 Sponsor Statement - 4.6.21.pdf |
HRES 5/5/2021 1:00:00 PM HSTA 4/17/2021 3:00:00 PM |
HB 148 |
| HB 148 Version A.PDF |
HSTA 4/17/2021 3:00:00 PM |
HB 148 |
| HB 148 Additional Info - APDC Position Statement_Final_R2.pdf |
HRES 5/5/2021 1:00:00 PM HSTA 4/17/2021 3:00:00 PM |
HB 148 |
| HB 148 Fiscal Note - 4.12.2021.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 148 |
| HB 148 Hearing Request Memo - 4.6.2021.pdf |
HSTA 4/17/2021 3:00:00 PM |
HB 148 |
| HB 148 Letter of Support - ASPLS 4.8.21.pdf |
HRES 5/5/2021 1:00:00 PM HSTA 4/17/2021 3:00:00 PM |
HB 148 |