Legislature(2019 - 2020)CAPITOL 106
05/07/2019 08:30 AM House TRIBAL AFFAIRS
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| Presentation(s): State and Tribal Consultation Opportunities | |
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON TRIBAL AFFAIRS
May 7, 2019
8:32 a.m.
MEMBERS PRESENT
Representative Tiffany Zulkosky, Chair
Representative John Lincoln
Representative Dan Ortiz
Representative Chuck Kopp
Representative Dave Talerico
Representative Sarah Vance
MEMBERS ABSENT
Representative Bryce Edgmon, Vice Chair
COMMITTEE CALENDAR
PRESENTATION(S): STATE AND TRIBAL CONSULTATION OPPORTUNITIES
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
MATT NEWMAN, Esq., Staff Attorney
Native American Rights Fund (NARF)
Anchorage, Alaska
POSITION STATEMENT: Provided testimony during the presentation
on state and tribal consultation opportunities.
ELIZABETH SAAGULIK HENSLEY, Esq.
Landye Bennet Blumstein LLP
Anchorage, Alaska
POSITION STATEMENT: Provided testimony during the presentation
on state and tribal consultation opportunities.
NATASHA SINGH, Esq., Co-Lead Negotiator
Alaska Tribal Health Compact (ATHC);
General Counsel, Tanana Chiefs Conference (TCC)
Fairbanks, Alaska
POSITION STATEMENT: Provided testimony during the presentation
on state and tribal consultation opportunities.
PATRICK ANDERSON, Esq., Chief Executive Officer
Rural Alaska Community Action Program, Inc. (RurAL CAP);
Member, Alaska Federation of Natives (AFN) Council for the
Advancement of Alaska Natives
Juneau, Alaska
POSITION STATEMENT: Provided testimony during the presentation
on state and tribal consultation opportunities.
ACTION NARRATIVE
8:32:57 AM
CHAIR TIFFANY ZULKOSKY called the House Special Committee on
Tribal Affairs meeting to order at 8:33 a.m. Representatives
Talerico, Lincoln, Ortiz, Vance, and Zulkosky were present at
the call to order. Representative Kopp arrived as the meeting
was in progress.
^PRESENTATION(S): State and Tribal Consultation Opportunities
PRESENTATION(S): State and Tribal Consultation Opportunities
8:33:29 AM
CHAIR ZULKOSKY announced that the only order of business would
be presentations on state and tribal consultation opportunities.
She invited Mr. Matt Newman to speak as the first witness.
8:34:14 AM
MATT NEWMAN, Esq., Staff Attorney, Native American Rights Fund
(NARF), stated that NARF is nonprofit law firm that serves
Alaska's 229 federally recognized tribes as well as tribal
individuals and organizations. He said he will provide the
committee with an overview of what government-to-government
consultation is, what it means, where the idea comes from, and
the practicalities of it in Alaska.
MR. NEWMAN noted that tribal consultation and government-to-
government consultation is not a new idea. Its origins go back
very far and stem from the 1600 and 1700 Law of Nations. The
expectation of that doctrine included that the newly minted
United States in the 1700s would meet with representatives of
other governments to talk about mutual interests and
obligations. The Law of Nations was made applicable to the
relationship of the United States with Indian tribes, tribal
nations. Some of the first treaties the United States entered
as a newly independent nation were with Native nations, not
European nations. Language in these early treaties included
obligations for business by the sovereigns that they would
consult and meet to negotiate with each other on a government-
to-government basis on issues and concerns of mutual interest
between the nations.
8:37:08 AM
MR. NEWMAN said this concept has evolved over the centuries to
now be the modern government-to-government consultation system.
Because it is described and laid out through executive orders,
court decisions, and inter-agency policies, the notion of it is
not solely federal. As the title implies, it is government to
government and there is no limitation or restriction that that
government-to-government consultation be solely between federal
governments. (Indisc. - audio difficulties) ... consultations
with city/municipal governments throughout Alaska, which means
state governments as well as international. For example, on the
North Slope there are international institutions like the
Whaling Commission that involve international meetings between
Alaska tribal nations and other representatives. So, it's a
broad category that reflects those origins of mutual interests
and issues that require the meeting of government officials.
8:39:12 AM
MR. NEWMAN explained that consultation, in a meaningful sense,
is a process. It cannot be effective if it's reduced to solely
one meeting and handshake. It is an ongoing process of
gathering government officials to discuss topics, to identify
areas of concern or agreement. It can result in a best
practices model of policy and decision making where multiple
levels of government or multiple governments are involved. It
provides a forum where those governments can discuss and work
out thorny legal issues.
MR. NEWMAN stated that as an attorney one of his jobs is to
assess and identify risk for his clients and advise as to how to
avoid those risks. Consultation, he continued, is powerful in
doing the same thing. For example, the modern permitting system
for a resource development project is exceedingly complex and is
a mishmash of federal, state, and borough ordinances. When it
is a complex system, particularly a legal system like resource
development permitting, it is to everyone's mutual benefit to
meet and identify risky or thorny issues as soon as possible.
From a risk analysis point of view, having the decisionmakers or
the government policymakers in the room together having an
ongoing dialogue is better for everyone and is going to make
this complex system more efficient and work more smoothly. That
is something that only governments can do.
8:43:02 AM
MR. NEWMAN pointed out that a common misperception of tribal
consultation is that tribes are stakeholders or that their views
and interests can be adequately represented in the written or
oral public comment process. That perception, he advised, does
not capture, reflect, or understand the status of a tribe as a
government. Consultation is therefore critical, in his opinion.
It cannot be the case where a borough, city, or tribe, or the
State of Alaska can be dismissed or told by a government agency
that its concerns should be written down for future review by
the agency. No one would appreciate a situation where the
Fairbanks North Star Borough was told that the Bureau of Land
Management (BLM) has a project in the borough's region and BLM
is not going to meet or talk with the borough about this project
or its impact on the borough's citizenry, but the borough is
welcome to send the BLM a letter. That situation would be
unacceptable by any point of view.
MR. NEWMAN specified that that standard should be universal for
all the governments that operate and exist within Alaska,
including the state's 229 tribal governments. They are
operating, functioning governments providing services to their
citizenry. For them to represent the interests of the citizenry
in any arena or respect, that ability to meet directly to
consult on issues affecting their operations and their people is
necessary. Consultation by and large is the means and the
method that has been developed in the modern legal system. It
provides that avenue for governments to come together to discuss
issues and make it ongoing because no one wants a system in
which boxes can be checked and one meeting held. Consultation
is an effective medium and tool, but it must be meaningful.
Results have been seen in Alaska and across the U.S. that when
consultation is done meaningfully the outcomes are better.
Those better outcomes serve the interests of both government and
people, which is what everyone is after.
8:47:12 AM
REPRESENTATIVE LINCOLN requested Mr. Newman to elaborate on some
of the risks he sees being mitigated through effective
consultation on resource development and permitting.
MR. NEWMAN replied that one risk is that there are myriad laws
and regulations that are applicable to and can be evoked by
tribes. These are laws that go to the evaluation and protection
of cultural resources, of tribal subsistence resources. One
would like to think that agencies have good attorneys who are
familiar with these laws and know the agency must comply with
the provisions of law, but that often isn't the case. On the
many issues that happen in Bush Alaska, tribal governments are
very familiar with the unique laws because they live them every
day and must deal with them every day. Obscure subsections of a
federal law might be an interesting unknown thing to lawyers in
Anchorage, but people in villages are living with and dealing
with them every day and they can provide and do provide those
kinds of necessary reminders early in the process. If that
consultation occurs, they can tell folks from federal agencies
that there is an issue that needs to be addressed. The
consequences of not addressing have been seen time and again -
if a process gets too far down the line and those legal
requirements are not dealt with or addressed, it can derail
everything and stop the work and the progress that was made.
Consultation is a means and the method to avoid those kinds of
situations and outcomes because government officials were
talking and exchanging information earlier. That is the kind of
best practices that consultation can achieve.
8:50:31 AM
CHAIR ZULKOSKY, regarding dispelling misperceptions around
tribal consultation, requested Mr. Newman to elaborate on how
treating tribes as public comment stakeholders is problematic.
MR. NEWMAN responded that it is problematic at the outset
because it diminishes the role of what a government is, whether
it is a tribal, city, or other government. A stakeholder is
someone who has stakes or "skin in the game." But governments
and tribal governments are larger than that, they play a more
important role than that because tribes are not just operating
for their own benefit. They are governments that have a
citizenry that they must serve and act on behalf of. A tribe
seeking to hold a consultation session is trying to represent
its citizenry. Reducing a tribal body politic to the same
treatment as a person in Anchorage where both have the ability
to write a letter, is not a system by which the tribal
government is being treated as a government; it's being treated
as just an organization, like, say, a Rotary club. An analogy
would be that no one would find it acceptable that an elected
city council would be told or asked to just participate in the
comment process and fill out a letter. If the city council were
to request a meeting with the policymaker at the state or
federal level, it would be a situation in which everyone would
expect that the city council's request would be honored because
that council is working on behalf of the people who elected the
members. The same is true for tribal government.
8:54:20 AM
REPRESENTATIVE KOPP submitted that the task of raising public
knowledge and understanding of what tribal governments are,
comes back to textbooks speaking of federalism. It's federal,
state, and local government and the separation of powers and
there isn't good discussion of treaties that didn't have
expiration dates and where tribes and nations of Indian people
were recognized in that status through treaties. A good start
would be to have a more conscious push to recognize the federal
layer of government, and then the state/tribal layer of
government, and then local government because in that whole
education of government and separation of powers, rarely does
the subject of tribal powers as they are understood within a
context of a government come up. In Alaska there is the unique
situation of only one designated piece of land that belongs to a
specific group of Indigenous people in Metlakatla. Then the
state is divided up into Native corporations, but really no
other tribes having designated land. So, the question is in
what sense those tribes are a government without a connectedness
to a land in the sense of a tribe in a Lower 48 state.
8:56:28 AM
MR. NEWMAN replied that the answer here is a unique one.
Governments are entities that can exercise two forms of power,
or power over two things - they can exercise sovereignty over a
place, and they can exercise sovereignty over people. With its
one-of-a-kind institutions, Alaska has tribal governments that
do not by and large exercise sovereignty over a place. But, as
confirmed by many court opinions and federal and state laws,
Alaska has tribes that may exercise sovereignty over people.
Tribal governments that existed before the Alaska Native Claims
Settlement Act, and after the Act, perhaps do not have a land
base, but they do have a citizenry to whom they are accountable
and that elects them to govern. The exercise of sovereignty
over people continues even with the absence of that land base
that is pointed to in the Lower 48 context with the creation and
boundary lines of reservation or Indian country.
8:59:17 AM
CHAIR ZULKOSKY invited Ms. Elizabeth Saagulik Hensley to speak
as the next witness. She noted that Ms. Hensley's law practice
focuses on meeting the unique legal needs of Alaska Native
corporations, tribes, and tribal nonprofits.
8:59:29 AM
ELIZABETH SAAGULIK HENSLEY, Esq., Landye Bennet Blumstein LLP,
said the State of Alaska has a fabulous policy on the books in
terms of supporting the government-to-government relationship
between tribes and the state and consultation. It goes back to
2000 with Administrative Order No. 186 by Governor Knowles,
followed up by the 2001 Millennium Agreement between the state
and tribes. In 2017, Attorney General Jahna Lindemuth issued an
opinion establishing that the State of Alaska understands there
are federally recognized tribes in Alaska, and that the state
itself recognizes the tribes and that they are separate
sovereigns with inherent sovereignty and subject matter
jurisdiction over certain matters. In 2018, Administrative
Order No. 300 stated that it is a policy of the state to
recognize Alaska tribe sovereignty by interacting and engaging
with Alaska tribes on a government-to-government basis.
9:01:26 AM
MS. HENSLEY noted that various administrations over the past 19
years have done work to ensure that consultations happen between
the state and tribes because why not have the right people in
the room at the right time to talk about things of mutual
concern? In broader legal context, consultation as practiced in
the U.S. is a slightly lesser standard than the gold standard
established by the United Nations (UN) Declaration on the Rights
of Indigenous People (DRIP). The UN DRIP sets the gold standard
for state interactions with Indigenous people. It requires
consultation and cooperation in good faith with the Indigenous
people through their own representative institutions in order to
obtain the tribe's free, prior, and informed consent before
adopting and implementing things that will impact the tribe.
That free, prior, and informed consent element of the UN DRIP is
the gold standard. As has been seen, consultation in the U.S.
typically doesn't have consent on the part of the tribes as the
desired outcome. It often is a process, and consultation is
something that will happen to ensure that tribal considerations
are taken into account, but it doesn't tend to require consent.
So, there is a. big difference between the gold standard and
what is done.
MS. HENSLEY said the UN DRIP has various articles and clarifies
where free, prior, and informed consent should happen. It
includes the adoption of legislation, administrative policies,
or things like the undertaking of projects that affect
Indigenous people, their right to land and caring for their
resources, and so forth. She said she is sharing this to
provide some context on what people and tribes in Alaska may be
asking for in the U.S. context versus a global context where
free, prior, and informed consent is mandated. It is not to say
that Alaska's tribal consultation is not a positive thing. It
is a very positive thing, it's a good business decision. It
gets the right people in the right room together around the
table or walking on the land and ensuring that the needs of
tribal citizens will be served by the action being contemplated.
9:05:08 AM
MS. HENSLEY said there are millions of examples of where tribal
consultation only makes sense and she will provide a few. The
Violence Against Women Act (VAWA) requires the state to enforce
tribal protection orders as if it were the order of the
enforcing state. Protection orders are defined as any order
issued "for the purpose of preventing violent or threatening
acts or harassment against, sexual violence, or contact or
communication with or physical proximity to, another person, or
for the protection of victims of domestic violence, sexual
assault, dating violence, or stalking." Ms. Hensley commended
the committee's work regarding missing and murdered Indigenous
women (MMIW). People may be asking what they can do to prevent
murder from being the number three killer of Native women such
as herself. So, VAWA is a tool for [Native women]. How can the
section of VAWA that she just read be implemented without tribal
consultation? How can the state implement a program of
enforcing tribal protection orders if the state and the tribes
don't consult and don't communicate about what that looks like
and how to make it successful and how to ensure Native women are
safe through VAWA? That is one arena where boots-on-the-ground
tribal consultation is critical.
9:07:19 AM
MS. HENSLEY said another example is hunting and fishing, a
subject matter that people feel very passionately about because
they carry profound physical, cultural, and spiritual
components. Many of the cultures around the state don't see
fish and game and birds as resources to be allocated, in many
communities they are relatives. Tremendous amounts of conflict
arise around fish and game allocations. So, when it is known
that there is an area that is rife with conflict, what can be
done about it? One thing that can be done is to get around the
table and consult. The state and tribes can sit down as
governments and discuss how to do this better, how to make sure
that people can hunt and fish without feeling like criminals,
and how to make a system where people understand the
regulations, and where hunters are not confused because there is
such a broad array of regulations that are extremely hard to
follow. This is an area where tribal consultation can really do
some good things for tribal citizens as well as for Alaska
residents. There are some pilots in place where tribes, the
state, and the federal government have sat down and signed
agreements to work together to cooperatively manage fish; for
example, on the Kuskokwim and Yukon rivers. These are ways for
better serving the people of the state.
9:09:42 AM
REPRESENTATIVE KOPP recalled that in 2013 or 2014 the Kuskokwim
River had a very low run of king salmon. King salmon are a
substantial portion of the subsistence lifestyle of [Native]
families on this river. Even though the fishery was closed the
families took salmon anyway, for which the administration then
wrote misdemeanor tickets. He asked Ms. Hensley how this
debacle could have been prevented. In this instance the state
and its regulatory agency, the Alaska Department of Fish and
Game (ADF&G), were managing a fishery running in direct conflict
with traditional use. It resulted in one group of people being
treated as criminals for trying to maintain a traditional use
during a time of low returns.
MS. HENSLEY answered that that is exactly where tribal
consultation needs to happen. Issues of resource shortage occur
around the state periodically, but people still need to eat.
Sometimes there is conflicting information about how healthy the
stock is, how accurate the counts are, and so forth. Sometimes
people will make the choice to continue to harvest and sometimes
they won't. Concern about the population of a stock is exactly
the type of situation where the state would want to call the
tribes and ask that consultation take place to figure out how to
partner to ensure that the stock is healthy and that people get
the food they need. On a couple of rivers, communities have
taken some significant measures when they were concerned about
stocks and, through their tribes, they imposed fishing
moratoriums on themselves; it wasn't a state or federal agency
coming and saying the tribes needed to stop fishing. This is
exactly the time to place a phone call and get people together.
9:13:40 AM
REPRESENTATIVE KOPP concurred there are other examples but said
that one stood out in his mind as a deeply troubling
circumstance. Many people felt a significant injustice had
occurred but there was a lack of understanding of how to move
forward. He surmised there wasn't much state-tribal
consultation at that time.
MS. HENSLEY replied it has been seen that when people come to
the table, they can hammer out an agreement for cooperative
management. When the Kuskokwim fishery crashed, an agreement
for cooperative management was hammered out and people are
implementing it. It hasn't been an easy thing, but people have
been trying to stay the course and work together. People have
very different perspectives on those types of things. The
people who were fishing probably had a wildly different
perspective from the enforcement officer who gave them the
ticket. Getting to the table to ensure all those perspectives
are shared before people get penalized, or fish when they aren't
supposed to, is a very beneficial thing to do.
9:15:28 AM
CHAIR ZULKOSKY asked whether lack of state law requiring
consultation precludes the state from engaging in tribal
consultation.
MS. HENSLEY responded, "Absolutely not ... you don't need a law
that says you have to consult." It is something inherent in a
sovereign entity. The state is a sovereign, the tribes are
sovereign; they can consult. There is nothing that precludes
that in the state constitution or any state laws. It is 100
percent permissible. She offered her belief that had there been
a constitutional problem, Governor Knowles, his administration,
and his legal advisors would not have put in place the
Millennium Agreement; Attorney General Jahna Lindemuth would not
have issued an opinion that conflicted with state constitution
or state law; nor would Governor Walker's Administrative Order
No. 300 have been put in place mandating government-to-
government consultation. She noted that Governor Walker himself
is an attorney and that he had a fleet of lawyers advising him,
and she doesn't imagine he would have done something in direct
conflict with the state constitution or laws.
9:17:36 AM
CHAIR ZULKOSKY invited Ms. Natasha Singh to speak as the next
witness.
9:17:49 AM
NATASHA SINGH, Esq., Co-Lead Negotiator, Alaska Tribal Health
Compact (ATHC); General Counsel, Tanana Chiefs Conference (TCC),
said she will discuss the collaboration between [Alaska tribes]
and the [federal] Indian Health Service (IHS) and the [federal]
Department of Health and Human Services (HHS), how that plays
out in Alaska, and how this consultation, negotiation, and work
group with Indian Health Service plays out.
MS. SINGH stated that tribal self-determination is the only
policy in U.S. history that has been successful. It recognizes
that Native people know best how to solve their own problems and
implement programs in their communities. It was championed by
President Nixon and a Republican Congress. Tribal self-
determination has historically been bipartisan and has developed
over the decades since passage of the [Indian Self-Determination
and Education Assistance Act in 1975]. It is where things are
today with the Alaska tribes fully taking over the services
provided to the tribes by the Indian Health Service.
9:20:00 AM
MS. SINGH explained that the tribes in Alaska were offered a
demonstration project. Rather than competing against each
other, the tribes decided in the 1990s to come under one
demonstration so that all Alaska tribes were under one contract
with the federal government. [Under the ATHC], the tribes speak
with one unified voice with the Indian Health Service, which has
benefitted the tribes. Alaska's tribes have taken over all
services and annually negotiate the contract, which in federal
terms is a compact, but really it comes up to an agreement where
Alaska tribes say "yes, Indian Health Service, we know what's
best for our people ... you don't know what's best ... and we're
going to negotiate with you on how we take over the authorities
and responsibilities to do that." In the responsibilities of
taking over the contracts, [ATHC] follows consultation policy
with both the IHS and the HHS, each of which has separate
consultation policies. There are negotiation rules and work
groups, which isn't necessarily consultation, but the work
groups get the discussion going. All work groups trigger a
formal consultation if necessary.
9:22:18 AM
MS. SINGH related that the experience of Alaska tribes is that
on the federal side the best consultations occur starting with a
consultation policy. The policy should be written out with both
the state and the tribes working on the purposes and then the
policy itself. Even if it is working, it is important to
revisit the policy for improvements. Just this week HHS will be
revisiting its tribal consultation policy and the tribal side
has many suggestions for improvements. Within a consultation
policy, the purpose can be explicitly stated. In renewing
consultation policies for different agencies in preparation for
this discussion, the goal of eliminating health and human
services disparities for Native people is what stands out. She
urged that the state focus on that goal as well and that it is a
reason why a formal tribal consultation policy should be had
outside of regular public comments. Native people face extreme
disparities, she advised, whether it be education, health care,
or child protection. The state should be hyper-focused on the
Native population because it should be wanting to fix these
issues and asking how it can partner with the tribes to do so.
9:24:22 AM
MS. SINGH noted that that is how consultation works with IHS and
[HHS], but negotiation is a little different. [The ATHC] sits
down annually with the Indian Health Service to negotiate
contract language and how funding is distributed. It is a very
important process of the relationship as basically Congress
mandated that IHS hire [the ATHC] to carry out IHS services and
[the ATHC] negotiates with IHS the language on just how to do
that. Each year [the ATHC and IHS] sit down for the equivalent
of two weeks and hammer out the language.
MS. SINGH pointed out that in addition to negotiation and
consultation there are work groups on a variety of issues, such
as an information technology (IT) work group, facilities work
groups, and the budget formulation work group. The budget
formulation work group is important because it gets to the
details of how the agency will reflect funding from Congress.
This is in recognition of health disparities in Indian country,
so the agency gives a lot of weight to what the tribes say is
needed to improve these disparities. This kind of budget
formulation work group will be very helpful with the State of
Alaska as the state considers its budget crisis.
MS. SINGH added that there are specific work groups for anything
a statute might require, and that the agency would like guidance
on how to implement. For example, if the facilities work group
comes up with an issue that it cannot get beyond in its
discussions, the work group will recommend a formal consultation
where tribes will submit formal comments for the record. The
Indian Health Service will then formally review the comments and
will describe in its report how IHS considered each comment in
creating a solution to the problem or a new regulation. It
makes it very meaningful when the agency must respond directly
to those comments.
9:28:17 AM
CHAIR ZULKOSKY recalled Ms. Singh's description that the best
consultations begin with conversations about a consultation
policy and that the policy include the purpose and goals. She
asked whether there are any other aspects of consultation policy
that would be helpful for the committee to know and understand.
MS. SINGH replied that because of the large number of tribes in
Alaska it can be difficult to effectively communicate. So, it
is helpful and important for a successful policy to lay out
exactly how the consultation procedures will happen, including
how a tribe will receive notice in the communication. Also
important is to know the responsibilities on the specific
agencies that the tribes are working with.
CHAIR ZULKOSKY recounted Ms. Singh's statement that there are
negotiation rules that are set out between both parties. She
requested Ms. Singh to briefly describe what some of those
agreements are at the front end between both parties.
MS. SINGH responded that the rules have developed over time; the
rules are organic and continually being updated each year.
After negotiations the tribes and the agency will meet to talk
about what worked and what didn't work and amend the rules. The
foundation of negotiation is based on good faith and trust in
the government-to-government relations. It sets out the rules
of each player in the negotiation, including the lead
negotiators for the agency and the tribes. It describes how a
tribe will submit a negotiation package. It sets out deadlines
for language as it has been seen that if strict deadlines are
not adhered to the grey area causes angst between the parties.
It sets out other rules in the process of negotiation and
timelines and sets out the rules for the funding tables, which
get highly technical in how funding is distributed.
9:32:10 AM
MS. SINGH resumed her presentation, moving to discussion of the
experiences that the Tanana Chiefs Conference (TCC) has had with
various state departments in the past. She said one example is
how the Office of Children's Services (OCS) improved once it
grabbed ahold of the idea that Native tribal self-determination
is what will work best for Native people to improve child
protection disparities. She said she isn't sure OCS has a
formal tribal consultation policy, but in the past OCS has taken
discussions with tribes very seriously and really considered
tribal comments and really implemented those comments throughout
the department's policies.
MS. SINGH related that last week TCC met with [HHS Secretary]
Price on issues of enforcing VAWA protection orders that TCC has
had in its region. As well, TCC met with officers from the
Alaska State Troopers. The informal discussion informed both
sides of situations and it was agreed to have regular meetings
between [Secretary Price] and TCC going forward because the
discussion helped so much. Ms. Singh expressed her hope that
other commissioners will do the same in reaching out and working
with tribes, which has not always been the case in past
administrations. Without a formal consultation policy that
requires these commissioners to meet with tribes and consider
their comments, it might not happen. In past administrations
the department wouldn't even agree to meet with TCC or, when
they did, they were unable to take TCC's comments seriously.
9:35:08 AM
MS. SINGH stated that a crisis of king salmon has also occurred
on the Yukon River. The Yukon is perhaps one of the most
challenging rivers in the nation on which to manage fisheries
because the watershed covers so much area. Commissioner
Vincent-Lang of the Alaska Department of Fish and Game (ADF&G),
along with ADF&G's Yukon River manager, met with TCC and the
Yukon River communities and only then were they able to have
proper discussions and get the feedback that was needed to
change how the Yukon River is managed. Commissioner Vincent-
Lang has agreed to continue these visits this summer.
MS. SINGH concluded by stating that tribal consultation is good
government. A tribal consultation policy would recognize that
there are 200 tribes within the state. These tribes have the
same goals that the state does for trying to improve the health
of Native communities and reverse the disparities that are
faced. Alaska Native people make up almost 20 percent of the
state and a tribal consultation policy would recognize that
Natives are a special population.
9:37:48 AM
CHAIR ZULKOSKY invited Mr. Patrick Anderson to speak as the
final witness.
9:38:11 AM
PATRICK ANDERSON, Esq., Chief Executive Officer, Rural Alaska
Community Action Program, Inc. (RurAL CAP); Member, Alaska
Federation of Natives (AFN) Council for the Advancement of
Alaska Natives, stated he will talk about the value of having an
actual discussion with tribes. As the Tribal Health Director
[of the Makah Nation] he received under the rules of diplomacy
for Indian country within the state of Washington consultation
policy the authority to speak on behalf of the tribe. Under the
protocols, if the chairmen were present the chairmen spoke, if
the vice chair or a council member were present they had
priority, and when it came to health matters he was, as the
Tribal Health Director the official representative for the Makah
Nation, able to speak to all matters. The process was very
structured.
MR. ANDERSON related that the Northwest Portland Area Indian
Health Board became the health experts. The board applied for
grants on behalf of the 32 tribes in the state of Washington and
did the research. The leadership, of which he was an alternate,
consisted of tribally appointed officials who directed the
executive director of the board to work in very complex,
interrelated, and interdependent, matters. The last initiative
he worked on while there was the Medicaid Section 1115 Waiver
that Washington state had received. It ended up being a process
that involved regular hospitals, health care institutions,
county governments, and a variety of interrelated entities that
were dealing with the issues of the heavy usage of Medicaid by
Medicaid patients. It was basically around addressing needs on
a coordinated care basis.
9:41:00 AM
MR. ANDERSON said he was involved in the policy setting of the
Indian Child Welfare Act, an Act that has been in place for
longer than the 40 years he has been a member of the Alaska Bar.
The issue is incredibly complex and every year more is found out
about why Indian children do not thrive. Recently under the
Trump Administration the issue of foster care was dealt with
through a bipartisan effort. The goal is to keep foster
children in stable families, preferably relatives. Knowledge
has advanced during the 45 years of conversation, but it is
because of having that conversation. He was on the Tribal Law
and Order Commission several years ago when the commission was
dealing with the Indian Child Welfare Act. He wrote
Representative Geran Tarr's resolution of several years ago that
dealt with adverse childhood experiences and childhood acquired
trauma. That topic emerged in 1998 and advanced very quickly in
Washington than in Alaska. Washington was more advanced than
Alaska as the result of having had conversations that brought to
light the complex issues.
9:42:54 AM
MR. ANDERSON referenced the work of Dr. Edgar Shein, a professor
at the Sloan School who wrote about the concept called "humble
inquiry." In health care it was realized that when people slide
into chronic disease the most important attribute that can be
had with them is a relationship - trust and a belief that their
medical providers have their best interests at heart. In that
context the concept of motivational interviewing was coined and
the practice of it began in behavioral health. Motivational
interviewing is the act of asking about the best interests of
the individual being spoken to. When a relationship is formed
with a physician the patient tends to trust that physician more.
Members of this committee spend time in discussion and even if
discussions are heated committee members have a relationship
with each at the end of day and are able to understand each
other's motivations and can perhaps discuss how to collectively
come to the point of doing something about the incredibly
complex relationships that people have.
MR. ANDERSON noted that Dr. Shein's concept of motivational
interviewing changed and Dr. Shein began calling it humble
inquiry. Mr. Anderson related that when he was a practicing
lawyer one of the inquiries he did was cross examination, which
doesn't make anyone feel good. Humble inquiry, he continued, is
what he believes tribal consultation should be all about. It is
forming the relationships after successive leadership changes in
government, including tribal governments, but having a
foundation where difficult issues have been discussed and a
structure has been established similar to what the Northwest
Portland Area Indian Health Board came up with where issues can
be discussed without anger or animosity and with an
understanding of the limited resources that are available and
knowledge is advanced.
MR. ANDERSON allowed he comes at this a bit differently than
some of his tribal members. He has been involved in
consultation and one issue was trying to convince the Indian
Health Service to move away from the old Resource and Patient
Management System (RPMS) Electronic Health Record (EHR) and to
go to a commercial platform. However, the leadership decided to
put over $100 million into revising the old RPMS platform.
Today he reads that, like the Veterans Administration, those
platforms don't serve the needs of the customers or the patients
and moving to a commercial platform is now happening.
9:46:07 AM
MR. ANDERSON said humble inquiry takes an individual away from
the belief that he or she knows the best answer for solving a
complex problem. He has lots of conversations with his staff on
how to address some of the intractable issues that are being
experienced - high levels of alcohol addiction, high levels of
cocaine addiction, high rates of sexual violence, high rates of
children's violence. A great approach is having a platform to
discuss how to find solutions without wagging fingers about who
is at fault, and that is where tribal consultation can take
everyone. Humble inquiry means accepting that there are gaps in
one's knowledge and that it takes great self-introspection and a
conversation. Consultation goes both ways, but the start is
being interested in the other's point of view.
MR. ANDERSON stated that as the executive director of two tribal
organizations and one non-tribal organization over the last 15
years, he has been involved in a lot of the battles. In
addition, he has served as parliamentarian for the Alaska
Federation of Natives where policy resolutions are made and for
the National Congress of American Indians where resolutions from
tribal representatives are introduced. They are well thought
out and the organizations go into Congress they get listened to.
However, they don't always get listened to in consultation but
that just depends on the individual and his or her orientation,
and by doing this a lot of problems have been addressed.
9:47:46 AM
MR. ANDERSON added that he administered the Village Public
Safety Officer (VPSO) program for several years. While there
are great difficulties in that program, it is one of the very
few presences of police authority in a community; in many places
it helps a community feel safe. That is connected to trauma and
to a lot of negative issues that occur and to have a forum where
tribal leadership can come in and in the context of a caring
administration to actually be heard. Having the structure set
up outside consultation to look at and discuss resolution of
those issues is wonderful.
MR. ANDERSON said that RurAL CAP is currently in 60 villages.
It is very difficult, so he understands the prior testimony
about getting 229 tribes together. In the state of Washington
he saw tribes come together and have the discussions framed by
people who were very knowledgeable, essential to what [RurAL
CAP's] diplomats do today. Ambassadors conduct a lot of [RurAL
CAP's] formal protocols and then the state service, the
diplomatic corps, are the ones who engage in attempting to
problem solve and then they bring it back up. Mr. Anderson
stated it would be wonderful to have that process, but he knows
the committee has a hard deadline. He urged the committee to
think about humble inquiry on the part of state. It is not a
mandate, he pointed out, it is something that comes from the
heart when talking and trying to find solutions to these
incredibly complex problems that are faced by people every day.
9:49:47 AM
REPRESENTATIVE KOPP related that he is interested in the time
that Mr. Anderson spent with the VPSO program, an area of
special interest to committee members. He said the committee
may be calling on Mr. Anderson for his thoughts on that program.
MR. ANDERSON replied he would like to share his ideas. He said
it is very difficult in a community where everyone is related to
have someone there addressing negative behaviors. That is a
complex area - there is a huge corrections budget, but negative
relationships are not managed very well. He reiterated that he
would be happy to discuss his experience in the future.
9:50:47 AM
CHAIR ZULKOSKY said Mr. Anderson's statements about humble
inquiry and making sure to ask about the best interests of the
individuals being spoken to really resonated. For example, the
state always wants the federal government to ask the state what
is in the state's best interest. It seems appropriate to be
able to extend that same type of relationship with local
governments and federally recognized tribes in Alaska.
MR. ANDERSON responded that it is very important the Native
community have a voice, but it is very important for the state
as well. He served on the Sealaska Corporation board of
directors for years and he has represented Alaska Native Claims
Settlement Act (ANCSA) corporations. The billions of dollars in
revenue that they bring to the total gross product for the State
of Alaska is critical and important and it depends on the
sovereign relationships that Alaska tribes have with the federal
government. It is the same way with the Indian Health Service
in that huge dollar amounts are being brought into the state.
It is a benefit to the state to nurture that relationship and
try to grow it because he believes it can be grown.
9:52:40 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Tribal Affairs meeting was adjourned at
9:52 a.m.
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