Legislature(2021 - 2022)DAVIS 106

03/30/2021 08:00 AM TRIBAL AFFAIRS

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Audio Topic
08:17:29 AM Start
08:18:13 AM HB123
09:28:03 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Meeting Postponed to 8:15 am --
*+ HB 123 STATE RECOGNITION OF TRIBES TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
               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.                                                                       
                                                                                                                                
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  31st Legislature                                                               
and would  be the  first time that  tribes were  recognized under                                                               
Alaska  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  put forth.                                                               
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 to  Representative Tiffany  Zulkosky, Alaska                                                               
State  Legislature,  presented  sectional  analysis  on  HB  123.                                                               
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 (US)  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  US, and  231 of                                                               
those  were in  Alaska.   If  students had  been  given a  proper                                                               
education of US  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 from 1492 - 1820, here                                                               
before the constitution  and embedded therein; Removal/Relocation                                                               
Period  from  1820  -  1850,   including  the  "Trail  of  Tears"                                                               
relocation of  five civilized tribes to  Oklahoma under President                                                               
Andrew  Jackson; Reservation/Treaty  Making  Period  from 1850  -                                                               
1887, where the US government  entered into treaties with tribes;                                                               
Allotment  & Assimilation  1887  - 1934,  which  resulted in  the                                                               
creation of allotments in Alaska  in 1936; Indian Self-Government                                                               
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.   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 element                                                               
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 US 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 US.                                                                         
                                                                                                                                
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 US.  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 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 vs. Alaska  Management & Planning; what  Stevens had been                                                               
planning to do, that they were not able to do.                                                                                  
                                                                                                                                
MS. ANDERSON  replied Stevens  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 asserting  immunity in  court meant  one could                                                               
get out of  court, so waived immunity meant the  business in this                                                               
case a contract dispute.                                                                                                        
                                                                                                                                
9:09:05 AM                                                                                                                    
                                                                                                                                
MS.  ANDERSON shared  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 Department  of 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 US, and what has contributed to                                                               
the hostile position.                                                                                                           
                                                                                                                                
MS. ANDERSON  replied Alaska had  lagged and was  still operating                                                               
in  the mindset  of  the  Termination Era,  but  that Alaska  was                                                               
getting better.                                                                                                                 
                                                                                                                                
MS.  SINGH added  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 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  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  HB  123 would  bring  the Alaska  State                                                               
Legislature  in  line  with  the  other  two  branches  of  State                                                               
government  regarding   the  status   of  Alaska   tribes,  would                                                               
modernize the  policy toward Alaska  Native tribes  by officially                                                               
moving the State legislature out  of the Termination Era and into                                                               
the Self-Determination  Era, and  would 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.                                                                                                   

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