Legislature(2021 - 2022)DAVIS 106
03/30/2021 08:00 AM House TRIBAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB123 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 123 | TELECONFERENCED | |
HB 123-STATE RECOGNITION OF TRIBES
8:18:13 AM
CHAIR ZULKOSKY 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."
8:18:31 AM
The committee took an at-ease from 8:18 a.m. to 8:19 a.m.
[During the at-ease, Chair Zulkosky passed the gavel to
Representative Ortiz.]
8:19:11 AM
REPRESENTATIVE ZULKOSKY, as prime sponsor, introduced HB 123,
which began as a bipartisan effort during the Thirty-First
Alaska State Legislature and would be the first time that tribes
were recognized under state law. Tribes had been recognized by
the federal government, and by the executive and judicial
branches of Alaska's government, but the Alaska State
Legislature had yet to put forth in law formal recognition of
tribes, she said. The passage of HB 123 would not change
Alaska's relationship with tribes, as that was established under
federal statute, she shared. The executive branch executed and
implemented, and the judicial branch interpreted, policy, but
the legislature created policy. The State of Alaska has looked
to tribes to help to provide services to those living in the
most remote parts of the state, she said, from public safety and
transportation to health care and economic development. In
2017, state and tribal partners entered the first-ever tribal
compact, the Alaska Tribal Child Welfare Compact (ATCWC), and
there have been ongoing conversations about pursuing compacting
through education and other ways to expand the relationship with
tribes, but it's difficult to talk about expanding relationships
without having taken the first formal step in acknowledging
tribes' existence, she pointed out. Particularly considering
the role of tribal health during the COVID-19 pandemic,
recognition is overdue, and is an opportunity that could help
heal historical political divisions, she imparted.
8:22:50 AM
LOGAN BASNER, Staff, Representative Tiffany Zulkosky, Alaska
State Legislature, presented the sectional analysis of HB 123 on
behalf of Representative Zulkosky, prime sponsor. Section 1
added legislative finding and intent language, which was a bit
unusual, but it was determined important to provide context for
what is considered landmark legislation in the history of
Alaska's relationship with its tribes, he said. Sections 2, 3,
and 4 were mostly technical changes, he stated. Section 5
contained the proposed new statute which acknowledged the
"unique" status tribes have with the federal government, which
would make it the state's official policy that the state
recognized the federally recognized tribes within the state of
Alaska. The "heart" of HB 123 was the second sentence in
Section 5, the list of federally recognized tribes, which 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, he put forth. Section 6
added an immediate effective date, he said. What HB 123 did not
do was create any additional rights or privileges which tribes
did not already have, he stated, including the building of
casinos. Included in members' packets was a memo from the
Alaska Oil and Gas Association stating HB 123 did not affect
access to any natural resources.
8:26:20 AM
The committee took an at-ease from 8:26 a.m. to 8:28 a.m.
8:28:50 AM
NATASHA SINGH, General Counsel, Tanana Chiefs Conference,
informed the committee she and Ms. Anderson were representing 93
tribes. She said tribes needed the authority of tribal
recognition to fix the problems that plagued tribal communities.
She shared tribes existed before the State of Alaska and before
the United States (U.S.) Government. Tribes were embedded in a
strict religious government, she imparted, based on a covenant
of the air, the land, the water, and the animals, and tribal
leaders implemented laws based on that covenant. The economy
was based on a hunting and fishing lifestyle, she imparted, of
which there were still remnants, but it was different having
withstood colonialism and decades of oppression to the extent
that nationhood needed a reemergence. She said HB 123 was a key
to this reemergence. Native peoples and tribes have existed in
the Americas from time immemorial, she stated, recognized in the
Supreme Court under John v. Baker: "Before the coming of the
Europeans, the tribes were self-governing sovereign political
communities."
8:34:25 AM
MS. SINGH shared there were 574 tribes in the U.S., and 231 of
those were in Alaska. If students had been given a proper
education of U.S. history in high school, they would have
learned "Federal Indian Policy Periods" showed in the timeline
on slide 5 of her presentation: the Colonial Period, 1492 -
1820, here before the constitution and embedded therein; the
Removal/Relocation Period, 1820 - 1850, including the "Trail of
Tears" relocation of five civilized tribes to Oklahoma under
President Andrew Jackson; the Reservation/Treaty Making Period,
1850 - 1887, where the U.S. Government entered into treaties
with tribes; the Allotment & Assimilation Period, 1887 - 1934,
which resulted in the creation of allotments in Alaska in 1936;
and the Indian Self-Government Period, 1934 - 1953. She paused
to explain there were so many different periods because none of
them worked. In the Reservation/Treaty Making period tribes may
have had too much power in their treaty making, so they were
divided in Allotment/Assimilation, she offered. Indian Self-
Government period was very paternalistic; Washington, D.C.
telling tribes they knew what was best, even if the tribe was
in, say, New Mexico and orders were being issued from
Washington, D.C. Termination Era began in 1953 and went until
1967, when Self-Determination, or the notion that local people
knew best how to govern themselves, began under President
Richard Nixon. Self-Determination has been the only effective
policy to date, she stated.
8:39:16 AM
REPRESENTATIVE FIELDS asked about the term "termination."
MS. SINGH replied the term referred to the termination of a
tribe's legal status, some of which had been taken away. She
offered the Little Shell Tribe of Montana, which had its legal
status restored after having been taken away during termination.
8:40:44 AM
REPRESENTATIVE ORTIZ asked if termination was a final attempt on
the part of the federal government to complete assimilation.
MS. SINGH replied yes, but in Alaska it didn't work. In Alaska
high schools in the 1990s she was taught nothing about tribes or
tribal governments, she shared.
REPRESENTATIVE ORTIZ asked if there were any geographic elements
to the definition of tribes.
8:43:25 AM
JOY ANDERSON, General Counsel, Association of Village Counsel
Presidents, replied no, tribes were governments subject only to
the federal government and only in limited circumstances.
REPRESENTATIVE ORTIZ asked if tribes had unique cultural or
language traits in the legal definition.
MS. SINGH replied not as part of the legal definition but going
back to Little Shell Tribe as an example, when they were seeking
recognition the Bureau of Indian Affairs did have a process for
recognition, and tribes must prove ways to be recognized which
included culture and language if they had been terminated and
were seeking recognition. In Alaska, villages were recognized
as governments in the 1990s and Congress codified it. She
shared some tribes are very similar in language and culture but
remain separate legal entities.
8:46:54 AM
REPRESENTATIVE CRONK commented children were not taught about
the process of tribal government, but they should be.
8:48:52 AM
CHAIR ZULKOSKY asked whether the establishment and definition of
tribes for some areas of the U.S. predated the constitution
while others have been defined through recognition processes
throughout the various policy periods.
MS. SINGH replied yes.
8:49:33 AM
REPRESENTATIVE FIELDS shared personal family history to
illustrate history has been lost, even within his own family.
He shared cultural genocide was described politely as
assimilation. He said Alaska was on its way to doing a better
job than has been done in his home in the Southeast U.S.
8:51:17 AM
MS. ANDERSON shared in 1831, during the Relocation/Removal
Period, Chief Justice [John] Marshall coined the term "domestic-
dependent nations," in which tribes were described as distinct
independent communities under the control of the U.S. She
shared a quotation from Justice Marshall on slide 6:
"...a weaker power does not surrender its independence
- its right to self-government - by associating with a
stronger and taking its protection. A weak state, 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.
8:56:01 AM
MS. SINGH noted it was important tribes were in the Constitution
under the Commerce Clause, as stated in the Marshall Trilogy;
and, that Congress had plenary power over tribes. She
reiterated the only policy which has worked thus far to make
significant progress in reversing otherwise distressed social,
cultural, and economic conditions in Native communities has been
self-determination, a policy which reflected a political
equilibrium for the past four decades, and which has withstood
various shifts in the party control of Congress and the White
House. She imparted in the first major piece of legislation,
Public Law 93-638, the Indian Self-Determination Act of 1975,
tribes identified federal government services they wished to
provide to their own tribal members and contracted for federal
funding to provide the services themselves.
MS. SINGH put forth compacting with the Indian Health Service
(IHS) is what has enabled the smooth vaccine rollout during the
COVID-19 pandemic, she put forth. Tribes' relationship with the
federal government benefits all Alaskans in this way, she
stated. In 2000, there was an executive order which recognized
tribes as domestic/dependent entities under its protection, and
recognized tribes' right to self-governance, she stated, which
is why tribes in Alaska needed to be consulted before
regulations were written. Consultation policy has greatly
improved the complex regulations, she said. She stated that
denying tribes' existence as the status quo between the State of
Alaska and tribes has been very detrimental.
9:04:09 AM
MS. ANDERSON brought forth the case Native Village of Stevens v.
Alaska Management & Planning (1988), in which it had been stated
tribes in Alaska did not exist, and Alaska Administrative Order
No. 125, which stated the State of Alaska opposed expansion of
tribal government powers and the creation of 'Indian Country' in
Alaska.
9:05:02 AM
REPRESENTATIVE ORTIZ asked what the impact was of Stevens
Village v. Alaska Management & Planning, specifically, what
Stevens Village had been planning to do, that it were not able
to do.
MS. ANDERSON replied that Stevens Village was not able to assert
sovereign immunity; something to which all tribes were entitled
unless they waived it.
REPRESENTATIVE ORTIZ asked what they were not able to accomplish
specifically.
MS. SINGH replied that asserting immunity in court meant one
could get out of court; therefore, waived immunity meant the
business - in this case a contract dispute.
9:09:05 AM
MS. ANDERSON shared that in 1993, the "Sansonetti Opinion"
formally disagreed with the Alaska Supreme Court's analysis,
concluding there were federally recognized tribes in Alaska,
which was then confirmed by the list of federally recognized
tribes issued by the U.S. Department of the Interior (DOI). The
annually published list was also referenced in HB 123, she
stated. In the case landmark case John v. Baker (1999), in
which the case ruled for tribal jurisdiction over parent-to-
parent disputes regarding child custody, the Alaska Supreme
Court noted if Congress or the executive branch recognized a
group of Native Americans as a sovereign tribe, the Supreme
Court must do the same, she put forth. John v. Baker moved the
State of Alaska 180 degrees from Stevens Village, she pointed
out. In 2017, the Department of Law stated there were no
unresolved legal questions regarding the legal status of Alaska
tribes as federally recognized tribal governments, she stated.
9:13:13 AM
CHAIR ZULKOSKY asked about the State of Alaska suing its tribes
more than any other state in the U.S., and what has contributed
to the hostile position.
MS. ANDERSON replied that Alaska had lagged and was still
operating in the mindset of the Termination Era, but that Alaska
was getting better.
MS. SINGH added that the thought that tribes should "be done
away with" had dominated state government as benefits to local
tribal governments and the state had not been understood.
CHAIR ZULKOSKY asked whether contemporary examples of litigation
against Alaska tribes by the State of Alaska were still
available.
MS. SINGH replied yes, but HB 123 would see the Alaska State
Legislature recognizing tribes, and expansion could happen from
there.
9:17:03 AM
REPRESENTATIVE CRONK asked what was beneficial in John v. Baker.
MS. ANDERSON replied that custody cases must be resigned where
they began; in the case of John v. Baker, the custody case began
in tribal court, so the State of Alaska must recognize the
verdict coming out of the tribal court.
MS. SINGH added that because of Alaska Native Claims Settlement
Act, and tribes in Alaska being landless save Metlakatla,
jurisdiction could be based on land, but that was just one
component. In Alaska, jurisdiction was also based on government
membership, including determining who comprised the tribal
government.
9:21:57 AM
MS. ANDERSON reiterated that HB 123 would: bring the Alaska
State Legislature in line with the other two branches of state
government regarding the status of Alaska tribes; modernize the
policy toward Alaska Native tribes by officially moving the
Alaska State Legislature out of the Termination Era and into the
Self-Determination Era; and create the potential for the State
of Alaska to lead the country in the creation of state/tribal
relations.
MS. SINGH added Alaska had the most tribes in the country, the
most college-educated and the most traditional Native people in
the country, and Alaskans had the potential to lead the country
in terms of tribal/state relations. She mentioned again the
COVID-19 vaccine rollout showed tribes' interest in serving the
state and tackling issues together. In closing, she stated
tribes were to be celebrated.
[HB 123 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 123 Sponsor Statement.pdf |
HTRB 3/30/2021 8:00:00 AM |
HB 123 |
| HB 123 Sectional Analysis.pdf |
HTRB 3/30/2021 8:00:00 AM |
HB 123 |
| HB 123 Presentation.pdf |
HTRB 3/30/2021 8:00:00 AM |
HB 123 |
| HB 123 Fiscal Note.pdf |
HTRB 3/30/2021 8:00:00 AM |
HB 123 |
| AOGA Response Letter HB 123.pdf |
HTRB 3/30/2021 8:00:00 AM |
HB 123 |
| Leg Legal letter re HB123.pdf |
HTRB 3/30/2021 8:00:00 AM |
HB 123 |