Legislature(2021 - 2022)GRUENBERG 120

04/17/2021 03:00 PM STATE AFFAIRS

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**Streamed live on AKL.tv**
              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                                                               
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                                                                    
        • The first major piece of legislation, Public Law                                                                      
          93-638,  the  Indian  Self  Determination  Act  of                                                                    
               -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                                                                    
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                                                                    
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                                                               
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                                                               
REPRESENTATIVE ZULKOSKY  offered to follow up  with the requested                                                               
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