Legislature(2021 - 2022)BUTROVICH 205
05/06/2021 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB108 | |
| SB109 | |
| SB82 | |
| SB1 | |
| SB4 | |
| SB115 | |
| SB83 | |
| HB3 | |
| SJR12 | |
| SB91 | |
| SB117 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 3 | TELECONFERENCED | |
| += | SB 83 | TELECONFERENCED | |
| + | SB 82 | TELECONFERENCED | |
| *+ | SB 115 | TELECONFERENCED | |
| *+ | SB 1 | TELECONFERENCED | |
| *+ | SB 4 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 108 | TELECONFERENCED | |
| += | SB 109 | TELECONFERENCED | |
| += | SJR 12 | TELECONFERENCED | |
| += | SB 91 | TELECONFERENCED | |
| += | SB 117 | TELECONFERENCED | |
SB 108-STATE RECOGNITION OF TRIBES
3:36:14 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 108
"An Act providing for state recognition of federally recognized
tribes; and providing for an effective date."
3:36:37 PM
SENATOR DONNY OLSON, Alaska State Legislature, Juneau, Alaska,
sponsor of SB 108, stated that this legislation proposes to
formally recognize the tribes in Alaska, which are already
recognized by the federal government and listed in the Federally
Recognized Tribal List Act of 1994. He highlighted that the
Alaska Supreme Court and the executive branch already have
recognized tribes in Alaska. In the 1999 Baker v. John case, the
Alaska Supreme Court made this the law of the state and in 2017
the Alaska attorney general issued a memo outlining tribal
recognition.
SENATOR OLSON stated that the intent of SB 108 is to reconcile
the government of Alaska with its First Peoples and declaring
this formal state policy is the first step into the future with
tribes as partners rather than adversaries.
SENATOR OLSON stated that SB 108 does not expand the current
rights of established tribes, it does not obligate any more
state resources to tribes, and it does not diminish the state's
ability to manage its public resources. SB 108 simply dignifies
the tribal citizens of Alaska by recognizing them as tribal
people.
3:39:04 PM
At ease
3:40:10 PM
CHAIR SHOWER reconvened the meeting.
3:40:31 PM
KEN TRUITT, Staff, Senator Donny Olson, Alaska State
Legislature, Juneau, Alaska, advised that while SB 108 has just
three operative sentences, it has some large concepts to
consider. He reviewed the supporting materials in members'
packets starting with President Nixon's 1970 special address on
Indian affairs, which he said is still the most succinct and
insightful statement of the federal Indian policy of self-
determination. The Baker v. John case that the sponsor
referenced, was a landmark moment when the Alaska Supreme Court
determined the existence and recognition of federally recognized
tribes in the state. He noted that former Attorney General Jahna
Lindemuth's exposition of tribes in Alaska was also in the
packets.
MR. TRUITT spoke to the sponsor statement for SB 108 that read
as follows:
Senate Bill 108 proposes to formally recognize the
tribes in this state and the peoples who governed
themselves for multiple millennia before statehood.
The federal government has a special and unique
relationship with tribes that through this bill the
state would acknowledge.
Alaska obtained statehood during the era of federal
Indian policy where the federal government sought to
terminate its trust relationship with its tribal
people and force them to abandon their tribal
identity, cultures, languages, and ways of life. While
the federal government embraced needed change and went
on to pass the Self Determination and Education
Assistance Act in 1975, Alaska's state constitution,
and state policy, are still relics of the painful
past. We have clung to this policy to our collective
peril as all the peoples of this state have suffered
because of it.
Many of the struggles facing Alaska today, from the
public safety crisis, suicide, the epidemic of sexual
assault and domestic violence have only been
reinforced by the state's policy of telling its tribal
peoples that their form of government has no
existence, no standing, and no recognition.
It is time to stop this policy and break from the past
and usher in a new era that seeks to reconcile all the
state's peoples one to another.
Senate Bill 108 serves as a first step, by making it
the formal state policy that the state's indigenous
peoples have their own governments and that the
government of the state of Alaska will no longer deny
their existence. This provides for not only formal
recognition in our statutes, but a roadmap for
healing, wholeness, and restoration of all Alaska's
people and communities.
3:43:22 PM
R. TRUITT emphasized that this legislation is still needed,
despite the Supreme Court's declaration of the law in the state,
because it is the legislature's role to establish and declare
the official policy of the state. It is not the governor's role
to declare state policy, despite former Governor Hickel's
statement that Alaska was one people and did not have tribes.
While that might have been what the governor felt, Mr. Truitt
said it was not the governor's role to declare state policy.
Making state policy is the legislature's role and that is part
of the reasoning behind the formal recognition of tribes in
statute.
3:45:55 PM
MR. TRUITT explained that SB 108 declares the end of termination
era thinking as the official state policy, which is a step
toward aligning with the federal Indian policy of self
determination. What self determination looks like on the state
level will take some conversation, he said, but it needs to
start by acknowledging that tribes not only exist in Alaska, but
they are also properly here. He posited that this session
underscores that point given that the legislature received its
vaccinations from the tribal health provider for this region.
3:47:35 PM
MR. TRUITT presented the following sectional analysis for SB
108:
Section 1 contains legislative findings and intent that will be
uncodified. This was added to the bill that was introduced in
the previous legislature.
Section 2. This 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 3 and 4 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
states 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 is the effective date.
3:51:17 PM
CHAIR SHOWER asked the sponsor how he would respond to those who
feel this legislation would infringe on state rights.
3:52:53 PM
SENATOR OLSON replied the intent is not to cause conflict
between state rights and tribal rights. He deferred further
comment to Mr. Truitt
MR. TRUITT offered an historical perspective. He explained that
one reason the framers of the U.S. Constitution replaced the
Articles of Confederation was because it granted supreme rights
to each of the colonies, including the issue of Indian affairs.
Because there was no uniformity among the 13 colonies as to how
to work with the tribes, the framers of the constitution wrote
the Indian Commerce Clause. The colonies relinquished their
exclusive control over Indian affairs and made it a federal
question, which it has been to this day.
He confirmed the sponsor's statement that SB 108 does not expand
any rights that tribes have now by virtue of their recognized
status.
CHAIR SHOWER commented that this will be well debated because of
the strong feelings on the issue. He opined that it was past
time for the discussion.
3:56:03 PM
SENATOR KAWASAKI thanked the sponsor and expressed appreciation
for the history lesson from Mr. Truitt.
3:56:54 PM
SENATOR REINBOLD asked the sponsor if Alaska Native history is
required in public schools.
3:57:31 PM
SENATOR OLSON replied he was not aware of that requirement and
the bill has nothing to do with any curriculum the state may
require.
SENATOR REINBOLD said she just wondered if tribal issues were
discussed in the curriculum at any time.
SENATOR OLSON restated his previous answer and said he was not
aware of any discussion about curriculum.
3:59:51 PM
NATASHA SINGH, General Counsel, Tanana Chiefs Conference (Tanana
Chiefs), Fairbanks, Alaska, co-delivered a presentation titled
Recognition of Alaska Tribes. She stated that Tanana Chiefs
represents 37 federally recognized tribes, and she was co-
presenting with Joy Anderson, general counsel for the
Association of Village Council Presidents that represents 56
federally recognized tribes. She began the presentation by
paraphrasing the text on slide 2 that read as follows:
Native peoples and Tribes have existed in the Americas
from time immemorial.
"Before the coming of the Europeans, the tribes were
self-governing sovereign political communities."
-John v. Baker, Alaska Supreme Court
4:01:55 PM
JOY ANDERSON, General Counsel, Association of Village Council
Presidents, Bethel, Alaska, co-delivered the presentation titled
Recognition of Alaska Tribes. She explained that tribes are
domestic dependent nations, which is the legal term for all
federally recognized tribes, including those in Alaska. They are
sovereign governments that are subject only to the authority of
the United States. She suggested the members read the list on
slide 3 that describes the characteristics of tribes. The slide
read as follows:
xrhombus Inherent powers and authorities with self-governance
of internal affairs e.g. type of government; tribal
membership
xrhombus Tribes exercise all powers, unless those powers have
been expressly limited by Congress
xrhombus Regulate matters pertaining to tribal members, e.g.
taxes, property, members' conduct
xrhombus Immune from lawsuits
xrhombus Tribes are not state or local governments; political
subdivisions or agencies or instrumentalities of the
federal or state governments; tax exempt organizations
4:02:54 PM
MS. ANDERSON said the name of the bill is very important because
it recognizes that tribes are already in Alaska. It does not
create tribes or expand any powers.
4:03:10 PM
MS. SINGH briefly reviewed the history of tribes since Columbus
arrived in the Americas and emphasized the point that tribes
have rights and a relationship with the federal government with
or without SB 108 and recognition by the legislature. She
directed attention to the timeline on slide 5 that identifies
the progression of the federal Indian policy periods, starting
with the 1492-1820 Colonial Era where tribes were specifically
referenced in the constitution. The subsequent federal Indian
policy periods were the removal/relocation era from 1820-1850;
the reservation/treaty making era from 1850-1887; the allotment
& assimilation era from 1887-1934; the Indian self-government
era from 1934-1953; the termination era from 1953-1960s and the
self determination era from 1960s-present. She noted the
committee's time constraints and said she would not detail each
policy period
MS. SINGH related that the Alaska Native Claims Settlement Act
was negotiated and signed at the end of the termination policy
period, which was followed by the self determination policy that
was championed by President Nixon. She said the point is that
the current policy is the only successful federal Indian policy
in the history of the relationship between tribes and the
federal government.
4:04:47 PM
MS. ANDERSON reviewed slides 6-8. She stated that in 1831, the
Marshall court issued a trilogy of decisions that established
the principles that are the foundation for the relationship
between tribes and the federal government. She noted that one of
the decisions established the definition of "Domestic Dependent
Nation." She directed attention to slide 7 that encapsulates the
three cases: Johnson v. M'Intosh, Cherokee Nation v. Georgia,
and Worcester v. Georgia. The slide read as follow:
4:05:33 PM
xrhombus Aboriginal land claims: Aboriginal people retain
the rights of use and occupancy, that only the
United States government can settle aboriginal
land claims, and that the U.S. has a legal duty
to protect aboriginal title until land claims are
officially settled.
xrhombus Tribal Authority: Tribes are nations with the
authority to govern themselves. The source of
their authority to govern is "inherent," meaning
that it comes from tribes being self-governing
long before explorers and settlers came to the
Americas.
xrhombus Federal Trust Responsibility: The federal
government has a responsibility to protect Indian
lands and resources, and to provide essential
services to Indian people. This comes from the
fact that the federal government took away the
vast majority of Indian lands, and in return
promised to provide these things.
4:06:13 PM
MS. ANDERSON stated that in 1867 Russia sold the United States
its claim to Alaska through the Treaty of Cession, which
included the following statement:
The uncivilized tribes will be subject to such laws and
regulations as the United States may, from time to time,
adopt in regard to aboriginal tribes of that country.
It is an example of the way that colonialism treated indigenous
people as inferior, but it is also clear evidence that tribes
existed in Alaska. The treaty recognized that Russia had
exercised power over tribes in Alaska and it ceded that power to
the United States.
4:07:08 PM
MS. SINGH emphasized that the United States recognizes tribes
because it is in the constitution. She described that point and
the success of the current self-determination policy as
important takeaways. That policy has had bipartisan support for
four decades and it has worked to improve Native communities.
The Indian Self-Determination Act of 1975 was a major piece of
legislation that allows tribes to identify services the
government is obligated to provide and contract for those
services through either the Bureau of Indian Affairs or the
Indian Health Service. Tribes are doing that in Alaska and that
is why the rollout of the COVID-19 vaccine was so successful in
Alaska's tribal communities.
4:08:41 PM
MS. SINGH directed attention to the bulleted points of Executive
Order 13175 of 2000. It read as follows:
xrhombus Established regular and meaningful consultation
and collaboration with tribes in the development
of federal policies that have tribal
implications.
xrhombus Recognizes that the United States has a unique
legal relationship with Indian tribal governments
as set forth in the U.S. Constitution, treaties,
statutes, Executive Orders, and U.S. Supreme
Court decisions.
xrhombus Confirms that the U.S. recognizes Indian tribes
as "domestic dependent nations under its
protection."
xrhombus Recognizes a trust relationship with Indian
tribes.
xrhombus Recognizes the right of Indian tribes to self-
government, tribal authority and self-
determination.
xrhombus All federal agencies are to respect Indian tribal
self-government and authority.
MS SINGH restated that Alaska tribes have had a relationship
with the federal government and will continue to have a
relationship with or without passage of SB 108.
4:09:40 PM
MS. SINGH credited Mr. Truitt with giving a brief history of the
earlier position of the executive branch in Alaska, which was
that tribes did not exist. She said the cases cited on slide 14
demonstrate that part of the termination era was an effective
shift to eliminate tribes in Alaska. However, history
demonstrates that only Congress has that power; the State of
Alaska is unable to do that. Slide 14 cited the following cases:
xrhombus Native Village of Stevens v. Alaska Management &
Planning (Alaska 1988)-"There are not now and
never have been tribes of Indians in Alaska as
that term is used in federal Indian Law."
xrhombus Alaska Administrative Order No. 125 (1991)-"State
of Alaska opposes expansion of tribal
governmental powers and the creation of 'Indian
Country' in Alaska."
She highlighted that these cases were overturned and reversed as
lawmakers became educated about federal Indian law.
4:10:54 PM
MS. ANDERSON reviewed the federal government responses to the
cases cited on slide 14, starting in 1993 with the Department of
Interior (DOI) Sansonetti Opinion. It controverted the Alaska
Supreme Court analyses, observing that the federal government
had recognized tribes in Alaska for many years and treated them
as such. She reported that DOI issued a list of federally
recognized tribes in Alaska nine months later. Then in 1994,
Congress required the lists of recognized tribes, including
those in Alaska, to be published annually. That was the List Act
and all versions since 1994 have included the federally
recognized tribes in Alaska.
4:11:54 PM
MS. ANDERSON reviewed the current position of the State of
Alaska as to the recognition of tribes that is outlined on slide
16. She said the state's position has shifted over the last
several decades. Baker v. John was a landmark case where the
Alaska Supreme Court reversed itself on the Stevens decision and
recognized the existence and sovereignty of tribes and some of
the powers they exercise. In 2018, an Alaska Administrative
Order by Governor Walker recognized tribes by stating that there
was a need to improve government to government relations with
Alaska tribes. She said that was preceded by the 2017 Department
of Law opinion that, "[T]here are no unresolved legal questions
regarding the legal status of Alaska Tribes as federally
recognized tribal governments."
MS. ANDERSON read the important points about SB 108 that were
bulleted on slide 17, which read as follows:
xrhombus Will bring the Alaska State Legislature in line
with the other two branches of state government
regarding the status of Alaska tribes.
xrhombus 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.
xrhombus Create the potential for the State of Alaska to
lead the country in creation of state-tribal
relations.
4:13:40 PM
MS. SINGH concluded the presentation stating that should SB 108
pass, it will be a first step in developing a formal
relationship between the State of Alaska and its 230 tribes. "We
can determine together what that relationship should become and
how we should learn from the federal self-determination policy."
SB 108 presents a great opportunity, she said.
4:14:38 PM
CHAIR SHOWER thanked the presenters and apologized for rushing
the presentation due to the eight additional bills on the
schedule. He said he looked forward to debating some of the
questions.
CHAIR SHOWER held SB 108 in committee.