Legislature(2021 - 2022)BUTROVICH 205
03/31/2022 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| HB187 | |
| SB188 | |
| HB123 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 187 | TELECONFERENCED | |
| *+ | SB 188 | TELECONFERENCED | |
| += | HB 123 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 123-STATE RECOGNITION OF TRIBES
4:46:14 PM
CHAIR SHOWER announced the consideration of HOUSE BILL NO. 123
"An Act providing for state recognition of federally recognized
tribes; and providing for an effective date."
He stated that the intention is to hear invited testimony and
try to assuage the concerns some members have expressed. He
listed the individuals who were available to testify and answer
questions.
4:47:22 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, offered his belief that it was time
that the state recognize tribes in Alaska. The federal
government recognizes both tribes in Alaska and the State of
Alaska as sovereigns; federal case law recognizes tribal
sovereignty; and state case law recognizes some levels of tribal
sovereignty. He said his largest concern was how the sovereign
immunity of tribes affects things such as torts and taxes.
However, attorneys for both the Department of Law and
Legislative Legal Services have opined that the bill only
formally recognizes tribes. It changes nothing else. The
Department of Law convinced him there was no reason for concern,
but the chair may offer an amendment to remove the enabling
sections of the bill.
MR. OGAN stated that he initially had concerns that Sections 3
and 4 placed recognition of tribes in Chapter 44.03 that talks
about sovereignty of state issues, such as ownership of water
and submerged land. He said there has been a lot of tension
about these issues over the years and his recommendation is to
place recognition of tribes in bill Section 5 in its own
chapter. He related that several attorneys familiar with the
topic have said that such an amendment would not substantially
change the policy and it would keep the initiative off the
ballot. He offered his belief that the initiative would "cause
unfortunate rhetoric and possibly exacerbate some people's
perceptions of the relationship between Natives and non-Natives,
especially as written."
CHAIR SHOWER asked Nicole Borromeo to offer her testimony.
4:55:55 PM
NICOLE BORROMEO, Executive Vice President and General Counsel,
Alaska Federation of Natives (AFN), Anchorage, Alaska, stated
that her testimony on HB 123 was intended to provide a simple
explanation of what the bill does and does not do. She would
also provide background information on federal Indian law which
should make it easier for the committee to pass the bill.
MS. BORROMEO provided the following testimony:
The United States has a trust relationship with
federally recognized Alaska Native tribes. The concept
has evolved from federal tribal treaties, the U.S.
Constitution, federal statute, Supreme Court juris
prudence etcetera. The relationship subjects the
United States to the highest degree of moral and legal
obligations and has been reaffirmed in every piece of
modern federal Indian legislation and presidential
policy statements in recent times.
The bill before the committee today, HB 123, will not
affect the tribal trust responsibility that the
federal government shares with our tribes.
Furthermore, federal recognition is a political
process that institutionalizes the government-to-
government relationship between the United States and
recognized tribes.
The process also cements the tribes' political status
as a distinct society which carries certain political
and legal powers. The vast majority of these powers
are related to the tribe's members and/or its lands.
Federal recognition can be accomplished through
treaty, statute, or other administrative means. Again,
this bill, HB 123 will not affect federal recognition
of tribes.
Sovereignty of federally recognized tribes has been a
sticking point for this committee and an issue that is
difficult for Alaskans to grapple with. American
Indian and Alaska Native tribes were self-governing
societies for centuries before European contact. As
such, the United States Supreme Court has consistently
ruled that the sovereignty powers of federally
recognized tribes are not, in general, delegated
powers from the United States. Rather, they are
inherent powers of a limited sovereignty. Sovereignty
has been limited because we have a federal government
now and state governments.
In the simplest form, sovereignty means that the tribe
has the ability to manage its own affairs. Tribes can
form their own governing structures, determine tribal
membership, make and enforce lands, license and
regulate activities on tribal lands, and exclude
certain persons from tribal lands. Most of that list
that I just read relates to tribes in the Lower 48
because Alaska settled its land claims differently
with Alaska Native tribes than Lower 48 tribes did.
Again, HB 123 will not affect the sovereignty of
Alaska Native tribes.
State recognition of tribes is possible and that is
something that is not necessarily being asked of this
committee today. What's being asked of the committee
today is to recognize in statute the list of federally
recognized tribes. However, certain states have
recognized tribes that are not recognized by the
federal government. This mainly occurs on the East
Coast where a lot of those tribes were removed so the
lands could be settled in the early turn of the
century when the United States was colonized.
Finally, taxation was brought up as is torts with the
previous testifier and questions concerning
sovereignty of tribes and whether HB 123 could affect
either the state's ability to tax Alaska Native lands
or would absolve an Alaska Native tribe or tribal
entity from a tort.
In short, HB 123 will have no bearing on the state
taxation of ANC land. Furthermore, sovereign immunity
will have to be negotiated and waived on a case-by-
case basis. And that is what currently happens right
now with tribes.
So we hope that you will move HB 123 from this
committee today if there are no more lingering
questions about the state's ability to recognize
federally recognized tribes or the benefits to the
state of Alaska for doing so.
5:00:39 PM
At ease
5:00:49 PM
CHAIR SHOWER reconvened the meeting.
SENATOR HOLLAND stated his belief that HB 123 was long overdue.
However, he said there seems to be angst and perhaps a desire to
not get along between the state and many tribal entities. He
asked how it is interpreted when people introduced themselves as
a group from an unseated land.
MS. BORROMEO replied it depends on who makes the statement, but
she interprets it as a sign of respect and acknowledgement to
the indigenous groups that occupied the land before
colonization. She does not interpret it as a sign of disrespect
to the current forms of federal or state government.
SENATOR HOLLAND said his assumption was that it is a statement
of pride. He stated support for HB 123, although he did want to
see the proposed amendment.
CHAIR SHOWER stated that he continues to think that HB 123 is
the path forward, although with some changes that do not alter
the bill but assuage some member's concerns.
He asked Ms. Kitka if she had testimony of offer.
5:04:29 PM
JULIE KITKA, President, Alaska Federation of Natives, Anchorage,
Alaska, thanked the chair for inviting Ms. Borromeo to testify
and said she would be available to answer further questions. She
highlighted that Ms. Borromeo had passed the Bar in multiple
states and had a depth of experience on legal issues pertaining
to Indian law and Alaska Natives.
5:04:58 PM
CHAIR SHOWER asked Ms. Moor if she had closing comments.
5:05:11 PM
BETTY JO MOORE, representing self, Anchorage, Alaska, stated
that she liked what Mr. Ogan said about focusing on the
recognition of tribes. She also articulated support for
additional references to comity, due diligence and sovereignty.
She noted that she had been reading about the trust
responsibility and obstruction of justice within tribal
government. She suggested that the bill needed more work to
clarify the meaning of jurisdiction. She said she would like
more assurance that within tribal governments, the
constitutional rights of tribal and nontribal citizens will be
protected, as what Michael Geraghty did on behalf of Edward
Parks. She stated support for HB 123 "with the recommendation of
recognition of tribes and jurisdiction deleted."
5:08:39 PM
CHAIR SHOWER held HB 123 for future consideration.