Legislature(1997 - 1998)
02/12/1997 01:45 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
FEBRUARY 12, 1997
1:45 P.M.
TAPE HFC 97 - 23, Side 1, #000 - end.
TAPE HFC 97 - 23, Side 2, #000 - end.
TAPE HFC 97 - 24, Side 1, #000 - end.
TAPE HFC 97 - 24, Side 2, #000 - end.
TAPE HFC 97 - 25, Side 1, #000 - #360.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 1:45 P.M.
PRESENT
Co-Chair Hanley Representative Kelly
Co-Chair Therriault Representative Kohring
Representative Davies Representative Martin
Representative Davis Representative Mulder
Representative Grussendorf
Representative Moses and Representative Foster were not
present for the meeting.
ALSO PRESENT
Representative Albert Kookesh; Representative Irene
Nicholia; Representative Ramona Barnes; Representative Bill
Williams; Dan Spencer, Budget Analyst, Office of Management
and Budget, Office of the Governor; Bruce Botelho, Attorney
General, Department of Law; Ted Popely, Counsel, Senate &
House Majority; John Hope, Tribal Member, Juneau; Katherine
Miyascoto, President, Douglas Camp #3, Juneau; Selina
Everson, Past President, Alaska Native Sisterhood (ANS),
Juneau; Al Ketzler Sr., (Testified via teleconference),
Chief Administrator Officer, Tanana Chiefs Council; Loretta
Bullard, (Testified via teleconference), President, Kawerak
Inc., Kawerak; Joan Dangeli, Alaska's First Nation Native
Rights Alliance, Juneau; Delores Cadiente, Self, Juneau;
Caleb Pungowiyi, (Testified via teleconference), Executive
Director, Knowles Commission, Kawerak; Lloyd Miller,
(Testified via teleconference), Attorney, Tribal Citizen;
Zach Brink, (Testified via teleconference), AVCP, Bethel;
Luke Sampson, (Testified via teleconference), Kotzebue;
Representative Don Long, (Testified via teleconference),
Inuit Community of Arctic Slope, Barrow; Paul Swetzof,
(Testified via teleconference), Aleut Tribal Council; Alfred
McKinley, Alaska Native Brotherhood (ANB), Juneau; Diane
Wirth, Self, Juneau; John Martin, Teinna Gey Tlingit Nation,
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Juneau; Burt Prist, (Testified via teleconference),
Kotzebue; April Ferguson, (Testified via teleconference),
Nome; John Borbridge, Lobbyist, 1st President Sealaska Corp,
Juneau; Sharon Lee, Self, Juneau.
SUMMARY
CSSB 74(FIN) An Act extending lapse dates for certain
prior year appropriations; making
supplemental, capital, and special
appropriations; and providing for an
effective date.
CSSB 74(FIN) was reported out of Committee
with a "do pass" recommendation.
HB 113 An Act extending lapse dates for certain
prior year appropriations; making
supplemental, capital, and special
appropriations; and providing for an
effective date.
HB 113 was HELD in Committee for a later
hearing.
SENATE BILL 74
"An Act extending lapse dates for certain prior year
appropriations; making supplemental, capital, and
special appropriations; and providing for an effective
date."
BRUCE BOTELHO, ATTORNEY GENERAL, DEPARTMENT OF LAW, provided
the Committee an overview of the proposed legislation,
speaking in favor of it's passage. He noted that the
legislation would provide funding for the Department of Law
to advocate the State's legal position on the sovereign
powers of Native tribal governments in Alaska addressing the
Venetie issue. Attorney General Botelho suggested that the
Venetie decision would raise questions about the proper
interpretation of the 1971 Alaska Native Claims Settlement
Act (ANCSA) in providing a basis that Indian country exists
in the State. A circuit court decision requires a
realignment of inter-government relations throughout Alaska.
He continued, a subject as important as the issues raised in
the Venetie case should be taken to the Supreme Court so
that it will be the final arbitrator of what Congress
intended when it passed ANCSA in 1971. Attorney General
Botelho noted that in order for the Department of Law to
adequately cover the case, the entire $500 thousand dollars
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appropriation would be necessary. The Department is
requesting the entire amount in one appropriation, rather
than an increment to cover only the initial expenses. The
Legislature will have adjourned before the Supreme Court has
made their final decision. The allocation will cover all
anticipated costs for both FY97 and FY98.
Attorney General Botelho elaborated, the Supreme Court
receives petitions for 7.5 thousand cases per year,
although, only hears between 80 and 90 of them. He added,
this is a matter of great importance to all Alaskans and as
it will address a fundamental examination of Indian law in
the United States. He believed that this case could be one
that the Supreme Court would take, given the overall
ramifications to the State.
Attorney General Botelho continued, additional concern has
been voiced as to why the Department of Law would seek
additional funding, knowing that an appropriation had been
allocated for statehood defense. Statehood defense money
was never allocated to the Venetie case. That case has been
supported by the General Fund budget, while the statehood
defense money has been directed to other significant cases.
JOHN HOPE, PAST PRESIDENT OF TLINGIT-HAIDA CENTRAL COUNCIL,
BOARD OF DIRECTORS - SEALASKA, JUNEAU, spoke in opposition
to the proposed legislation. He noted that the Indian
Health Service (IHS) had appropriated to Alaska, $3.1
million dollars; the Bureau of Indian Affairs (BIA)
appropriated $92 million dollars; and SEARCH received $35.7
million dollars. He noted that there is at least an
additional $100 million dollars spent in Alaska for Indian
housing. Mr. Hope stressed that Alaska receives
approximately $500 million dollars a year because of the
tribe status. The Federal government has no legal
obligation to distribute funding to Natives; their
obligation is to fund tribes.
Mr. Hope reiterated that if the State of Alaska was
successful in this case, there would be no obligation from
the federal government to make annual appropriations. He
voiced fear, that within a few years, U.S. Congress would
note Alaska's action and realize that they have no financial
obligation to the Natives of the State.
KATHERINE MIYASCOTO, PRESIDENT, DOUGLAS CAMP #3, JUNEAU,
spoke in opposition to SB 74. She stated that the amount of
money being appropriated belongs to both Native and non
Native people of Alaska and that she opposed her portion
being spent on negotiations against Native people. Ms.
Miyascoto suggested that the appropriation be used for
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education and other interests that cover the entire State.
SELINA EVERSON, PAST PRESIDENT, ALASKA NATIVE SISTERHOOD
(ANS), JUNEAU, testified in opposition to the proposed
legislation, agreeing that concerns of education and
subsistence should be funded at greater levels.
AL KETZLER SR., (TESTIFIED VIA TELECONFERENCE), CHIEF
ADMINISTRATOR OFFICER, TANANA CHIEFS CONFERENCE, spoke
against SB 74 as currently written. He stated that the
Tanana Chiefs Conference specifically opposes the $500
thousand dollars appropriated to the Legislative Operating
Budget. He reminded Members of the case presented two years
ago, State versus Babbitt legislation that went before the
Circuit Court. That case challenged the ability of the
State Legislature seeking to represent the State in
litigation. Any attempt of the Legislature to represent the
State, in State Court, is a violation of the Constitution in
doctrine and separation of powers.
Mr. Ketzler believed that inclusion of Section (b) would be
"unwisely used" to determine policy grounds. He stressed
that political legislative intervention, divides the
elements and creates racial overtones. The relationship
between a tribal state and the federal government is a
political relationship. Intervention by the Legislature on
this bill brings unwarranted and vindictive actions which
will be counter productive. Mr. Ketzler urged the Committee
to strike the appropriation to the Legislative Operating
Budget.
LORETTA BULLARD, (TESTIFIED VIA TELECONFERENCE), PRESIDENT,
KAWERAK, INC., KAWERAK, voiced opposition to SB 74. She
asked why the appropriation was on a "fast" track. Ms.
Bullard reiterated previous concerns that the Supreme Court
will only hear a small number of cases brought before them;
thus, questioned the $1 million dollar appropriation for a
1% chance of being successful.
Ms. Bullard questioned how the Legislative leadership
proposed to use the $500 thousand dollar suggested
appropriation. She pointed out that Senator Al Adams had
proposed an amendment that would grant the $500 thousand
dollar appropriation if the Supreme Court agreed to hear the
case. She stated that her agency supported that amendment.
Ms. Bullard continued, State funding for social services has
been cut for the past four years. Because of limited
funding, Village Public Safety Officers (VPSO's) have "their
lives on the line" for $11.71/hour. With welfare reform and
the infrastructure changing throughout the State, Ms.
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Bullard surmised that there are more appropriate places to
put the money.
JOAN DANGELI, ALASKA'S FIRST NATIONAL NATIVE RIGHTS
ALLIANCE, JUNEAU, voiced concern with the proposed
legislation, reiterating that Native Alaskan's tax money
would be used to fight against themselves. She stated that
the bill was "aggressive" and the issues confusing.
DELORES CADIENTE, SELF, JUNEAU, testified in opposition to
SB 74. She requested that Members of the Finance Committee
consider a better spending plan for the proposed allocation.
Ms. Cadiente suggested addressing health, education and
social issues in the light of welfare reform.
She continued, a national study rating schools in the United
States for quality of teaching, fair distribution of money
and student achievement rated Alaska very low. The $1
million dollars could be used more meaningfully than to
fight tribal governments and their inherent rights. Ms.
Cadiente questioned why tribal governments should not
receive the same rights that municipal governments do.
CALEB PUNGOWIYI, EXECUTIVE DIRECTOR, KNOWLES COMMISSION,
KAWERAK, spoke in opposition to the $500 thousand dollars
being appropriated to the Legislature for the purpose of
supporting the State's interest on the issue of sovereign
powers of the Native tribal governments. He concurred that
there were more appropriate places to spend that allocation.
LLOYD MILLER, (TESTIFIED VIA TELECONFERENCE), ATTORNEY,
TRIBAL CITIZEN, voiced strong opposition to the legislation.
He asserted that $1 million dollars was a very generous
amount allocated for outside consultation for a Supreme
Court case. Mr. Miller stressed that once again, the public
has been kept in the dark as to how the funds would be used.
He commented that the $500 thousand dollar portion which
would be used to support the Legislature, would be ten times
more than necessary; the Legislature, independent of the
Executive Branch, has no constitutional standing to
participate in the case. Mr. Miller added that the $1
million dollar appropriation is an "outrageous" expense to
make when the Legislature is seeking to cut the budget by
such proposed large amounts. He suggested that the bulk of
the appropriation would be much better used to establish a
thoughtful process for working out a State plan of
cooperation.
LUKE SAMPSON, (TESTIFIED VIA TELECONFERENCE), BETHEL, spoke
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on behalf of Mayor Chuck Green, North Slope Arctic Borough,
in opposition to SB 74. He suggested that money be spent on
water and sewer concerns which exist in the rural
communities.
He pointed out that the legislation would be harmful to the
State. Mr. Sampson noted that when village areas receive
1/10th of the amount requested to bring jobs to those
places, they are required to have feasibility and marketing
studies as a portion of the business plan. Using that
request standard, this legislation would not pass.
DON LONG, (TESTIFIED VIA TELECONFERENCE), FORMER
REPRESENTATIVE -STATE OF ALASKA, PRESIDENT, INUIT COMMUNITY
OF THE ARCTIC SLOPE, BARROW, spoke in strong opposition to
the proposed legislation. He suggested that a $1 million
dollar allocation should be used to cover problems that
exist in the village areas. He pointed out his concerns
with the depleted municipal aide and revenue sharing.
(Tape Change, HFC 97-23, Side 2).
PAUL SWETZOF, (TESTIFIED VIA TELECONFERENCE), ALEUT TRIBAL
GOVERNMENT, AFN BOARD OF DIRECTORS, ALEUT VILLAGES, noted
that every village which he represents opposes to the
appropriation. He stated that this was the modern day
equivalent of a "war chest" against the Indian people. Mr.
Swetzof suggested the money be used to set up a dialogue
with tribal governments working cooperatively. He stressed
that the legislation takes a stance against Native people.
ALFRED MCKINLEY, SR., EXECUTIVE COMMITTEE MEMBER, ALASKA
NATIVE BROTHERHOOD (ANB), JUNEAU, spoke in opposition to the
proposed legislation. He pointed out that the money
appropriated by the Legislature to the rural communities was
matched with federal dollars. Each year, close to $1
billion dollars are appropriated. He thought that the State
would not continue funding that amount without receiving
federal incentive.
Mr. McKinley questioned why the language "sovereign
immunity" was being included in the legislation. He
concluded that SB 74 would not be in the best interest for
all Alaskans.
DIANE WIRTH, SELF, JUNEAU, spoke against the proposed
legislation. She suggested that a sense of equality and
cooperative living should be encouraged. Ms. Wirth warned
that the people from Venetie had begun a drain of money, and
now other Native groups are implicated. She suggested that
the proposed action could create 250 individual governments.
Those concerns had been addressed in 1972 with the Alaska
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Native Claims Settlement Act (ANCSA).
JOHN MARTIN, TEINNA GEY TLINGIT NATION, JUNEAU, spoke in
opposition to SB 74. The Tribal Council is not in favor of
the appropriation. He suggested that if the State
government would like to spend the money on Indian issues,
they should designate funds for health and education
concerns in the rural communities.
BURT PRIST, (TESTIFIED VIA TELECONFERENCE), KOTZEBUE, spoke
in opposition to SB 74 and concurred with statements made by
those testifying against SB 74. Mr. Prist reiterated that
the State has a 1% chance of being heard on the issue. The
legislation contains racial overtones.
Mr. Prist explained that Alaska villages see self-
determination and self-governing as a necessary and
fundamental step in gaining control over the devastation
caused by alcohol in the Indian communities. He added, most
Native villages disagree with the Venetie Tribal
Government's intent, noting that village tribal sovereignty
is inherent and that tribal government has the
responsibility to deal with Native social issues, although,
over the years have been undermined by State policies.
APRIL FERGUSON, (TESTIFIED VIA TELECONFERENCE), NOME, spoke
against SB 74. She stated that the legislation was fiscally
irresponsible. She mentioned the challenges faced by the
State in addressing welfare reform and questioned how the
State could justify not allocating the $100 thousand dollars
to Alaska Legal Services. The justification for pursuing
the course of action would be an "all out declaration of
war" on the Native community throughout the State. She
recommended that the money should be used on educating the
public in how to work with Native communities.
Ms. Ferguson asked how the Legislature intended to use the
$500 thousand dollars and demanded that the Legislature be
held accountable for those expenditures.
JOHN BORBRIDGE, PAST LOBBYIST, 1ST PRESIDENT OF THE SEALASKA
CORPORATION, JUNEAU, emphasized that Natives want to focus
on their land rights because the State selection of
entitlement is seen as a "danger" of those lands claimed.
Selection of lands should not proceed and the corpus of the
controversy should be preserved until Congress has the
opportunity to work it's will.
He continued, to date, Alaska had been seen as the one area
in which there is no conquest. As a consequence of that
realization, the worth of the settlement was raised as the
values would determine how much in general would be received
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for compensation and lands.
The settlement act contains no provision that specifically
states the intention by Congress to due away with and not
recognize Indian tribes. Mr. Borbridge continued, at this
time, tribal status is being addressed and he asked that
there be more communication with the tribal communities
regarding tribal responsibilities.
Representative G. Davies asked what powers, Mr. Borbridge
would anticipate a "tribe" to have. Mr. Borbridge responded
that a tribe has inherent certain powers and spoke to the
additional powers in the signing of Indian country. Absent
the defining of Indian country, there exists the powers of
the tribes over the membership to administer benefits. With
the presence of the Indian country, they would then have the
increased opportunity to address the status of the lands
where there would be a finding of Indian country.
Presently, these are not identified. Given that definition,
there would be an exercise of greater powers. He was unsure
of the powers that would result in addressing the resources
of the land.
SHARON LEE, SELF, JUNEAU, spoke against the proposed
legislation and applauded the words shared among previous
testimony regarding this concern.
(Tape Change, HFC-24, Side 1).
REPRESENTATIVE RAMONA BARNES commented on previous
testimonies requesting that the allocation represented in SB
74 be distributed for "additional services" in the State.
She reminded the Committee members that $500 million dollars
had been paid to establish the regional Native Corporations.
Representative Barnes referenced Alaska Constitution,
Article #10. The purpose of the article was to provide for
maximum local self government and to prevent duplication of
tax levying jurisdictions. The article clearly establishes
how the local governments are identified. The Legislature
identified those governing bodies. She emphasized that the
body was appropriated on a constitutional provision back-up
by law in Title #29.
Attorney General Botelho replied that the constitutional
framers devoted substantial energy to looking at the type of
government structure which should be in Alaska. As a
consequence, Article #10 came into being. It demonstrated
municipal government existing in either two forms, boroughs
or cities. Individuals in those communities should be
empowered to have as much control over their lives as
possible. That is the resulting structure which the
Legislature "flushed out" in adopting Title #29. Attorney
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General Botelho reiterated that the State Legislature has
continued to fulfill it's obligation to support local
funding.
Representative Barnes spoke to the State's obligation to
uphold any challenges to the Constitution or legislation.
She questioned if the rural areas were sovereign entities,
would the State then be precluded by law from giving them
additional State funds.
Attorney General Botelho suggested that question needs time
and care to explain, because it brings forth questions
regarding the terms of tribal status. This concern needs
more dialogue and education. He added, we unfortunately
tend to look at tribes as a racial entity rather than a
political entity. What is not clear, is the type of
relationship that the State would wish to pursue with the
sovereign entities. He suggested that a written response to
Representative Barnes' query would be more appropriate.
Representative Barnes requested additional attention
regarding the Alaska National Interest Lands Conservation
Act (ANILCA) recognition.
Attorney General Botelho pointed out that Representative
Barnes had raised issues that would be informative to
everyone regarding the question of tribal status. He noted
that there has been an evolution in the State regarding
tribal status. The State Supreme Court has rejected the
concept of tribes in Alaska, which formed a basis that the
State had inappropriately responded in not pursuing the
Babbitt appeal.
Attorney General Botelho continued, many things have
occurred which change the status of what existed in the
past. Under our Constitutional system, we look to Congress
to be the authority. In 1993, the Department of Interior
issued the list of federally recognized tribes for all
purposes. As a consequence of the failure to include the
Central Council, the issue went to Congress. Congress
endorsed the list the Department of Interior had created.
They then added the Central Council to that list of
recognized tribes.
The second issue of the Venetie case revolves around whether
there exists a land base which would allow those tribes to
exercise powers and activities within the boundaries of that
tribe. The courts have three criteria in recognizing Indian
country in the United States:
1. A result of a reservation;
2. Allotment, which does exists in Alaska;
3. Whether the State has a dependent Indian
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community.
For there to be a dependent Indian community, there must be
land which has been set aside for Indians under the
superintendents of the federal government. He stated that
the question at hand is whether ANCSA contributes to that
land base and could it be used.
Attorney General Botelho continued, the State of Alaska set
aside twelve reserves for Alaska Natives. The land was not
established as villages, but rather corporations ordered
under State law, not federal law. That land was given in
fee. The initial act provides for two square miles which
was to be reserved for municipal governments and if there
was not a municipal government, that land was to be taken by
the State in trust for local state chartered government. He
reiterated, it is important to recognize that this is a
clear legal issue, where reasonable people can differ. The
fundamental question is what Congress intended in the 1971
Act. If the decision is upheld, and there is Indian
country, the State will be looking for a redefinition of
that relationship.
Co-Chair Hanley interjected that if the State wins the case,
it is important to understand that federal money would
continue to "flow" into Indian communities. At this time,
Indian country is not recognized in Alaska. Attorney
General Botelho pointed out that if Indian country is found
to exist, there will be additional federal monies that the
tribes can access.
Co-Chair Hanley reiterated that the legislation was not an
attempt to take away money that is currently flowing into
the communities. He pointed out that Judge Holland ruled
that there was not Indian country in Alaska. A 9th Circuit
Court, three judge panel has ruled that there is Indian
country, although, he advised that one of the judges did
have a dissenting opinion. Because there have been
different opinions regarding the case, he felt it was
appropriate that a final hearing be made to determine which
direction the State will go.
Attorney General Botelho responded to comments regarding the
possibility of the Supreme Court hearing the case. The
Court does accept 80 to 90 cases per year. It takes those
cases which have a significant impact on politics. The
Court has taken a great interest in any Indian law cases,
provides more of a possibility that the case will be heard.
He commented that the issue is creating division within the
State, and the public would like finality from the highest
court in the land. Absent the intent, the Department would
feel they had not done their duty to protect State
sovereignty. He reiterated that it would be worth the
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expenditure of public funds.
Attorney General Botelho agreed that the legislation is on a
"fast track". The deadline for filing the petition is in
early April, 1997. Immediately following, those who oppose
must file a document noting their concerns; it is
appropriate that this is treated as a supplemental request
and placed on a high priority.
Representative J. Davies noted his concern that Alaska
Natives are left with the feeling that the State has
declared "war". He asked how can the State could increase
dialogue for a more comfortable course of action. He
inquired if public funds could be used to argue the other
side of the brief. Attorney General Botelho advised that
would be a legislative call to determine if it could satisfy
a legislative purpose. Adding that conceptually, it could
be done.
Co-Chair Hanley commented that it would not be good business
for the Legislature to appropriate money in order that the
other party could sue the State. He acknowledged that there
have been suits by municipalities against the State.
Attorney General Botelho rebutted that the court is
structured in a way so that good advocacy takes place on
both sides, and that the truth will prevail or at least the
issues will be more sharply presented to the Court. He
summarized that everyone has an interest that this concern
be resolved.
Representative Grussendorf inquired how the Department of
Law would use the $500 thousand dollar request. Attorney
General Botelho outlined how the funds would be used. The
first stage would be the petition, the work product
enlisting the petition outside support. The second phase
would be the actual hearing on the merits. The
appropriation would include funds for more extensive
research and hiring of an Indian law expert. There will
also be funding for a delegation to meet with the U.S.
Alaskan Congressmen and the Justice of Interior.
REPRESENTATIVE BILL WILLIAMS agreed that everyone in the
State would appreciate a sense of finality on the issue. He
asked how the case could affect selection of village lands
in the out-skirt areas surrounding the villages.
Attorney General Botelho acknowledged that until precedent
is established, it is clear that the 9th Circuit Court would
be dealing specifically with the Venetie case. He advised
that Venetie is a specific case, opting out of ANCSA,
accepting the land and then the corporation basically
11
dissolving itself in favor of a regional government.
(Tape Change, HFC 97-24, Side 2).
Attorney General Botelho continued, addressing the act
distinguished between urban corporations and village
corporations. It is difficult to state with precision how
far reaching the opinion will be.
Representative Williams questioned how people living on
lands that belong to the State or federal government would
be addressed. He understood that it was the intent of
Congress that those lands would go to the villages in order
that they have a land base. Co-Chair Hanley clarified,
there are recognized tribes which have certain status
throughout the State. An additional term would expand the
ability and rights of those tribes and how they manage their
lands. He added, there exists a difference between tribal
status and Indian country; he stressed that through the
court case all the monies currently being received by the
Native Alaskans would continue.
Attorney General Botelho noted that ANCSA was not a
termination to tribes. Subsequent events have caused
Congress to acknowledge the federal recognition of tribes.
ANCSA was intended to be a bold experiment in developing a
relationship between the federal government and tribes,
doing away with a trusteeship.
REPRESENTATIVE IRENE NICHOLIA referenced Section #1(a) of
the proposed legislation, and asked how many firms would be
hired under the appropriation. Attorney General Botelho
responded that one law firm would be hired out of
Washington, D.C., under the leadership of Mr. John Rogers.
He stipulated that it was the intent of the Department to
hire an Indian law expert who could write a brief, at the
State's expense, on behalf of the other party.
Representative Nicholia asked if Hogan & Hartson was the
firm involved. Attorney General Botelho replied Hogan &
Hartson was the law firm in which John Rogers was a partner.
Representative Nicholia asked for copies of all the
documents used in determining that selection. Attorney
General Botelho spoke to the selection process, stating that
Hogan & Hartson was a firm which had extensive Supreme Court
experience. He continued, a list was prepared of seven
individual firms which had the necessary credentials and was
then narrowed to three. Each of those were asked if they
had an interest in representing the State. Of the two firms
which did, the State choose Hogan & Hartson.
Representative Nicholia asked if any lobbyists would be
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hired by the State for this purpose. Attorney General
Botelho stated that it was not the intent of the Department
of Law or the Executive Branch to hire any lobbyists.
Representative Nicholia queried if such would be a violation
of the State Constitutional separation of powers doctrine.
Attorney General Botelho noted that the original statement
made by Mr. Ketzler was in reference to the Babbitt case.
He made the decision to drop the 9th Circuit Court, at which
point the Legislature intervened and made the attempt to
carry the appeal in the name of the State of Alaska. The
9th Circuit Court expounded that it would be inappropriate
for the Legislature to do so. The Alaska Supreme Court has
acknowledged that there may be cases in which the
Legislature may sue the Executive Branch. Attorney General
Botelho's judgement was that on balance, there is legal
authority for the Legislature to expend monies on legal
services and to participate, although, it is not a clear-cut
question.
Co-Chair Hanley explained that the State Constitution would
not prohibit the State Legislature from spending money on
the case. Attorney General Botelho added that the
characterization of the Babbitt Case was an issue of
standing and not of State law.
In response to Representative J. Davies, Attorney General
Botelho noted that one third of the Department's allocation
would be spent in phase #1. Representative J. Davies noted
that as of the end of January, 1997, there was about $500
thousand unencumbered dollars remaining in the Department of
Law's fiscal appropriation. Attorney General Botelho
responded that those funds were for legal services,
allocated internally by the Legislature and not for funding
the proposed case. He stressed it would be an inappropriate
use of funds.
Co-Chair Hanley asked if the Department would proceed in
doing the research before the Supreme Court had made it's
decision whether they would be willing to hear the case.
Attorney General Botelho stated that there would be no
hiatus of activity; there will be a slowing down until the
Supreme Court decides, although, there research concerns
regarding ANCSA would continued. Co-Chair Hanley agreed,
referencing a prior discussion with Senator Murkowski
regarding other existing cases affecting Native rights in
the future.
Representative Nicholia requested that the Legislature be
briefed regularly regarding the case. Attorney General
Botelho agreed to do so.
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Representative J. Davies requested an overview of the tribal
powers and rights at this time and how those that would be
changed, if Indian country were to be granted status.
Attorney General Botelho offered to provide a written
overview with that information to Committee members.
Representative Grussendorf MOVED to adopt Amendment #1.
[Attachment #1]. Representative Mulder OBJECTED.
Representative Grussendorf asked what the Leadership
expected to achieve with the funds appropriated to the
Legislature.
TED POPELY, COUNSEL, SENATE & HOUSE MAJORITY, stated that
the Leadership had consulted with various experts in the
area of concern, concluding that there is a significant role
which the Legislature could play in getting the case to the
Supreme Court. Representative Martin pointed out that the
Attorney General would represent the Governor and the
Executive Branch. The Legislature does not have their own
legal council.
Representative J. Davies asked specifics regarding the
intended use of the $500 thousand dollars. Mr. Popely
replied that there was no breakdown of how those funds would
be spent. He added that it would be an ongoing effort,
although, a broad plan does exist. There will be a second
stage and should the Supreme Court not hear the case next
fall, a portion of the funds would not be needed to cover
the expenditures. He added that there has been ongoing
discussion regarding the educational effort drawn from those
funds. Fund spending will be broken into three stages.
Representative Nicholia asked if Mr. Popely would be the
only lawyer hired to address the Leadership position. Mr.
Popely stated that there would be other lawyers hired for
drafting the briefs. He did not know if non-lawyers would
be involved.
A roll call vote was taken on the MOTION.
IN FAVOR: J. Davies, Grussendorf
OPPOSED: Kelly, Kohring, Martin, Mulder, G.
Davis, Hanley, Therriault
Representatives Foster and Moses were not present for the
vote.
The MOTION FAILED (2-7).
Representative Grussendorf MOVED to adopt Amendment #2.
[Attachment #2]. Representative Mulder OBJECTED.
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Representative Grussendorf stated that the amendment would
create a new Section #2, to address the lapse date if the
Supreme Court denies the case. Representative Mulder argued
that if the case was not heard by the Supreme Court, it
could be handed down to a lower court and that adopting the
proposed amendment would tie their hands. He suggested that
current language would allow flexibility.
A roll call vote was taken on the MOTION.
IN FAVOR: J. Davies, Grussendorf
OPPOSED: Kohring, Martin, Mulder, G. Davis,
Kelly, Therriault, Hanley
Representatives Foster and Moses were not present for the
vote.
The MOTION FAILED (2-7).
Representative J. Davies MOVED to adopt Amendment #3.
[Attachment #3]. Representative Kelly OBJECTED.
Representative Davies explained that Amendment #3 would
tighten up the purpose for which the appropriation would be
made, and then to require a report on how the monies were
expended.
(Tape Change, HFC 97-25, Side 1).
Representative Mulder commented that he was not comfortable
with the language of the amendment as it would eliminate
necessary flexibility. He added, the Legislature always
requests accounting statistics from the Department of Law.
Representative J. Davies pointed out that the language
includes both federal and State courts and he felt it
provided flexibility.
A roll call vote was taken on the MOTION.
IN FAVOR: J. Davies, Grussendorf
OPPOSED: Martin, Mulder, G. Davis, Kelly,
Kohring, Hanley, Therriault
Representatives Foster and Moses were not present for the
vote.
The MOTION FAILED (2-7).
Representative J. Davies MOVED to adopt Amendment #4.
[Attachment #4]. Representative Mulder OBJECTED.
Representative J. Davies stated that Amendment #4 would
apply to Section (c). The amendment would make a certain
15
portion of the appropriation contingent on the Supreme Court
accepting the case.
Co-Chair Hanley asked what would happen if they did not
review the case, but instead sent it back to the Ninth
Circuit Court of Appeal's. Representative J. Davies agreed
and MOVED a "friendly" amendment, $100 thousand dollars be
appropriated in case it was remanded. There was NO
OBJECTION to the conceptual amendment.
Representative Mulder voiced support of the $500 thousand
dollar appropriation from the General Fund to the
Legislative Operating Budget, noting that it indicated bi-
partisan support for the activity.
A roll call vote was taken on the amended Amendment #4
MOTION.
IN FAVOR: J. Davies, Grussendorf
OPPOSED: Mulder, G. Davis, Kelly, Kohring,
Martin, Therriault, Hanley
Representatives Foster and Moses were not present for the
vote.
The MOTION FAILED (2-7).
Representative Mulder MOVED to report CSSB 74(FIN) out of
Committee with individual recommendations. Representative
J. Davies OBJECTED.
Representative G. Davis noted for the record his concern
with the lack of information provided on a detailed budget
plan for the appropriation. He requested more information
on those numbers. Co-Chair Hanley guaranteed an accounting
of the funds appropriated.
Representative J. Davies spoke to his objection regarding
the legislation. He recommended that the legislation needs
further discussion to address some essential concerns. He
objected that there are no details or plans regarding the
proposed expenses. Representative Davies believed that as a
result from the poorly thought out concept, it created a
divisive impact amongst Alaskan people, leaving the Native
Alaskans in an angry and fearful position.
Representative Grussendorf noted his support for the
appropriation to the Department of Law, although, voiced
dissent with the appropriation to the Legislative Operating
Budget. He stressed that this "piggy-back" has caused a lot
of concern throughout the State.
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A roll call vote was taken on the MOTION to move the bill
from Committee.
IN FAVOR: Mulder, G. Davis, Kelly, Kohring,
Martin, Hanley, Therriault
OPPOSED: J. Davies, Grussendorf
Representatives Foster and Moses were not present for the
vote.
The MOTION PASSED (7-2).
CSSB 74 (FIN) was reported out of Committee with a "do pass"
recommendation.
ADJOURNMENT
The meeting adjourned at 4:50 P.M.
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