Legislature(2019 - 2020)DAVIS 106
02/27/2020 08:00 AM House TRIBAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Equity in Rural Alaska | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON TRIBAL AFFAIRS
February 27, 2020
8:04 a.m.
MEMBERS PRESENT
Representative Tiffany Zulkosky, Chair
Representative John Lincoln
Representative Dan Ortiz
Representative Dave Talerico
Representative Sarah Vance
MEMBERS ABSENT
Representative Bryce Edgmon, Vice Chair
Representative Chuck Kopp
COMMITTEE CALENDAR
PRESENTATION: EQUITY IN RURAL ALASKA
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
HOWARD TRICKEY, Attorney
Holland & Knight
Anchorage, Alaska
POSITION STATEMENT: Provided information and answered questions
during a presentation on Equity in Rural Alaska.
BARBARA BLAKE, Director
Alaska Native Policy Center
First Alaskans Institute
Juneau, Alaska
POSITION STATEMENT: Provided information and answered questions
during a presentation on Equity in Rural Alaska.
ACTION NARRATIVE
8:04:20 AM
CHAIR TIFFANY ZULKOSKY called the House Special Committee on
Tribal Affairs meeting to order at 8:04 a.m. Representatives
Vance, Lincoln, Ortiz, Talerico, and Zulkosky were present at
the call to order.
^PRESENTATION: EQUITY IN RURAL ALASKA
PRESENTATION: EQUITY IN RURAL ALASKA
8:04:56 AM
CHAIR ZULKOSKY announced that the only order of business would
be a presentation on Equity in Rural Alaska.
8:05:34 AM
HOWARD TRICKEY, Attorney, Holland & Knight, relayed that he has
done a lot of work in the education field during his over 40
years practicing law in Alaska. He said he successfully argued
the Kasayulie v. State case, which was filed May 1998, and he
described to the committee the historic funding issues related
to urban/rural school construction. Mr. Trickey said he would
provide committee members the history and context of the case:
why it was brought, what the court ruled in the case, how the
state responded to the court's ruling, and what the current
state of compliance with the Kasayulie settlement is today.
8:06:47 AM
MR. TRICKEY listed the plaintiffs in the case: Willie & Sophie
Kasayulie; Paul & Maryann Mike; Arthur & Ruth Heckman; the
Bering Strait School District; the Iditarod Area School
District; the Kashanamiut School District; the Lower Kuskokwim
School District; the Lower Yukon School District; the Yupiit
School District; and Citizens for the Educational Advancement of
Alaska's Children (CEAAC). Mr. Trickey noted the plaintiffs
were listed up front to show how much support there was for the
case. He also noted that the breadth and depth of support was
in response to the deplorable condition of schools prior to the
case. In general, schools were found in a deteriorated state,
with present physical and other dangers, having suffered
structural deficiencies, and frequently in non-compliance with
various electrical codes, fire codes, health and safety codes,
or environmental guidelines, he stated.
MR. TRICKEY informed the committee that several professionals
who had been prepared to testify indicated that if the state had
enforced building codes uniformly around the state, many of the
schools would have been closed and deemed unsafe and unfit to
conduct school and learning activities, depriving students of
meaningful learning opportunities. Many schools were also found
to be overcrowded, he continued, some in excess of 180 or 200
percent capacity, and consequently lacking adequate
instructional space to meet curriculum and accreditation
guidelines.
8:10:35 AM
MR. TRICKEY spoke about what the state had been doing in 1998 to
fund schools. There was a dual funding system, he explained:
one system was automatically funded through a reimbursement
program, and the other system was funded through a Community
Initiatives Program (CIP) grant. The former received constant
funding by the Alaska State Legislature while the latter, which
supported Regional Educational Attendance Area (REAA) school
districts, received none. In 1990 the state adopted a new law,
he related, to prioritize construction and maintenance needs in
schools throughout the state. Prior to 1990, he added, schools
had been funded based "pretty much solely" on political power
and political whim. When it was realized that this way of
funding was neither equitable nor meeting the construction
needs, the new law ensured that capital projects were funded on
a basis of need rather than on a political basis. The new
legislation, he continued, required the Department of Education
& Early Development (DEED) to review and evaluate, and
recommend, projects for approval. The projects would also be
granted based on priority.
MR. TRICKEY said that even though the new system was adopted,
and the debt reimbursement program continued, the legislature
failed for at least six fiscal years to fund the CIP program at
all. The money from the debt reimbursement program goes to
districts which have bonding capacity and taxing authority, he
explained, but the REAA school districts do not have taxing
authority, and Article 10 Section 2 of the U.S. Constitution may
prohibit the legislature from granting taxing authority to REAA
schools.
8:14:50 AM
MR. TRICKEY offered a scenario in fiscal year 1995 (FY 95),
between the 1990 legislation and the time it was decided the
dual system of funding was unconstitutional in 1999. Most of
the major maintenance projects on the priority list were to take
place at REAA schools. The aggregate amount for these projects
was $103 million. Of the $103 million, the state funded zero,
Mr. Trickey imparted. In FY 95, the state paid almost $94
million in debt reimbursement for school construction and major
maintenance, which was 100 percent of the debt reimbursement
entitlement for city and borough school districts in FY 95.
This continued to be the pattern for FY 96, FY 97, FY 98, and
what was proposed for FY 99 until the state decided the dual
system of funding was unconstitutional.
8:19:31 AM
REPRESENTATIVE VANCE asked Mr. Trickey to explain the difference
between Kasayulie v. State and Molly Hootch [Hymes] case [a 1972
lawsuit in which Hymes, plaintiff, sued Alaska for not providing
high schools in Alaska Native villages].
8:20:07 AM
MR. TRICKEY replied that the Molly Hootch case dealt with the
issue of whether or not the state by general law shall establish
and maintain a system of public schools "open to all children of
the state." In the Molly Hootch case, the plaintiffs argued
that the state was not meeting its constitutional obligations
because the state didn't provide any schools in many rural parts
of the state. When the case went to the Alaska Supreme Court,
the Bureau of Indian Affairs (BIA), within the U.S. Department
of the Interior (DoI), still operated some schools which were
transitioning to state-operated systems, but many communities
had no secondary education school option available for Native
Alaskan children, so those children were either sent to regional
boarding schools or to the Lower 48 to attend school in a BIA
facility. Mr. Trickey stated that the Molly Hootch case dealt
with whether the state had an obligation to provide schools in
rural communities.
MR. TRICKEY related that the Molly Hootch case was resolved by
an admittance of denial of equal protection. The state resolved
and settled that case and embarked upon a great program of
building a public school system in rural Alaska and started
building and constructing schools. That was 1976, he pointed
out. He then asked the committee to fast forward to 1998.
Kasayulie vs. State had to do with the state's continuing
obligation to adequately fund schools so schools may be built
and maintained to standards that allowed for access to an
educational program.
MR. TRICKEY said the court ruling in Kasayulie vs. State was
made by summary judgement, a technical point that is valid
because summary judgements are made in cases where there are no
disputed errors of fact or need for trial. The key ruling in
the case under the education clause by Judge Reese, Mr. Trickey
continued, was to place an affirmative duty on the state to
provide public education, of which facility funding is an
integral part.
8:24:14 AM
MR. TRICKEY imparted that along with the duty to provide
educational facilities came the duty to fund said facilities,
and all schools must have equal access to funds. The court
acknowledged, according to Mr. Trickey, the CIP grant program's
never being funded and, as a result, rural schools not being
funded, that the bond reimbursement program was available only
for boroughs and municipalities, and that REAAs had no access to
those funds. Failing to provide funds violated the education
clause of the Alaska constitution, he related. The court also
made rulings as to the equal protection clause of the state
constitution, he said, recognizing in its analysis that
education is a fundamental right and that the state could not
justify the funding inequality between urban and rural districts
based on the dual system of funding.
MR. TRICKEY said the state had argued that the district needed
to form boroughs and that that had been its
rationale/"incentive" for withholding funding. The state had
also argued that it could not be responsible for fixing all
problems at the same time, and that rural school districts would
have to wait their turn. The problem, Mr. Trickey pointed out,
was that rural schools' turn never came. After the rulings in
favor of rural schools in 1999, the state for a couple of years
did increase funding to rural schools. As a result, the state
went back to court and asked the court to determine that it was
in compliance with its constitutional obligation, because in
2000 and 2001 appropriations for rural schools were increased.
In doing so, however, the law had not been changed. The state
felt that it was doing enough, and the court rejected the
argument, saying that the fact that the state had not addressed
the problems with the flawed dual funding system were severe in
that they were racially discriminatory in the least.
8:28:26 AM
MR. TRICKEY related that the court said in 2001 that the
education, health and safety of Alaska's youth, the dignity of
fellow citizens, and the respect for public officials had
suffered, further aggravating the racial divisions within the
state. The court said that the legislature needed to respond by
taking real action that provided access to funding for rural
schools. This was March of 2001, Mr. Trickey told the
committee. Over the nine years until 2010, the legislature
sporadically funded schools but there was no change in the law,
which was still subject to political whim, although the court's
decision did put some pressure on the legislature to increase
the amount of funding. Eventually what occurred, Mr. Trickey
continued, is that Kasayulie v. State was resolved as a result
of efforts in the legislature to come up with a remedial scheme
for providing substantial access to funding for REAA school
districts for major maintenance and construction. The mechanism
for doing so was Senate Bill 237 [passed during the Twenty-Sixth
Alaska State Legislature], which provided the formula for
determining, on an annual basis, the amount of funding that
would be available each year. The statutory formula and the
creation of the REAA construction and major maintenance fund was
the basis for what become known as "the Kasayulie settlement."
8:31:46 AM
MR. TRICKEY addressed where Kasayulie v. State left folks in
2020 and what Governor Mike Dunleavy's veto and former Governor
Bill Walker's reduction of REAA construction funds had wrought.
Mr. Trickey put forth that the state was "perilously close" to
violating the constitutional obligations that were established
in the Kasayulie case. It might look like urban schools and
rural schools were being treated equally when they were being
equally harmed by 50 percent reduction of debt reimbursement and
REAA construction funds, respectively.
MR. TRICKEY said that as a result of Governor Dunleavy's vetoes,
which took place in the first session of the Thirtieth Alaska
State Legislature and have not been overridden, the situation is
being revisited. Governor Dunleavy had been written a letter
outlining concerns about the state's pattern of funding/ignoring
rural school construction needs and had [at the time of this
meeting] not responded.
8:35:18 AM
The committee took a brief at-ease at 8:35 a.m.
8:35:43 AM
REPRESENTATIVE ORTIZ asked whether Mr. Trickey had mentioned
rural districts' incentives or directives for REAA districts to
form boroughs as part of the solution to getting adequate
funding for school construction purposes.
8:36:25 AM
MR. TRICKEY answered that in the Kasayulie case there were three
legal claims: the violation of the education clause, violation
of Title VI, and equal protection. Regarding the last claim,
equal protection, after it had been determined that education
was a fundamental right, the state had to offer a compelling
reason why it had two systems of funding schools. To justify
its compelling reason for doing so, the state argued that the
system was designed so that rural areas could form boroughs,
that over time these areas would realize they needed to form
boroughs and generate revenue through taxes.
REPRESENTATIVE ORTIZ asked for confirmation that the court had
rejected the state's argument.
MR. TRICKEY confirmed that is correct.
8:38:36 AM
CHAIR ZULKOSKY confirmed that the letter sent to Governor
Dunleavy was included in the documents Mr. Trickey provided.
8:40:40 AM
BARBARA BLAKE, Director, Alaska Native Policy Center, First
Alaskans Institute, related that Native Alaskans' forced removal
shifted the trajectory to an extent that is not reflected today.
The inequity is so built into the system that folks often do not
realize it is happening until after the fact, she related.
8:44:53 AM
MS. BLAKE pointed out by way of example the robust natures of
Native people and of pioneers, who came to a land where they had
to learn how to survive very quickly. Native Alaskans did what
the pioneers did for 10,000 years before the latter came, but
that is a subject that is rarely taught, much less celebrated,
in schools. Ms. Blake related that she was asked to give four
lectures as a guest lecturer for a Walt Disney Company cruise,
one of which was to be on glaciers; the rest were at Ms. Blake's
discretion. She sent in her presentations to the cruise's
director, who said another lecture should be about the gold rush
in Skagway. Ms. Blake said that she was happy to oblige but
would give her presentation on the gold rush from a Native
perspective. She said the director backpedaled, telling her she
was allowed to speak on any topic of her choosing. She did
speak on the gold rush in the end, she related, but gave a
coinciding historical account.
8:47:18 AM
MS. BLAKE related that there were multiple stories that could be
told, and that it was important to be able to reflect multiple
perspectives. She told the committee that she moved back to
Alaska from Washington, D.C., bringing her young son. Ms. Blake
said they traveled to Fairbanks where she started a teaching
position. She described being shocked that the kindergarten had
neither representation of the Native Athabascan people who
resided in Fairbanks nor any Alaska Native culture represented
in her son's school. In Juneau, Alaska, however, she expressed
her happiness at finding artwork that reflected Northwest Coast
culture, Inupiat culture, Athabascan culture, and a portrait of
Elizabeth Peratrovich. Signs welcoming students were also
written in Tlingit in addition to English, she stated.
8:49:55 AM
MS. BLAKE questioned which cultures children today learn in
schools, and she made a point of noting her son's confidence
boost upon seeing himself reflected upon the walls of his own
school. She lamented the lack of reflection of Native cultures
in most of Alaska when compared with Hawaii, where visitors seem
almost automatically immersed. Visitors to Alaska think about
the gold rush and "a land untouched," she stated. Ms. Blake
referenced the 2020 film Call of the Wild, which she said,
sadly, is an example of the erasure of Alaska Native people.
8:52:00 AM
MS. BLAKE told the committee that schools in rural communities
that fall under 25 students will have to close. Another problem
is overcapacity, she pointed out, as is the case with some
schools in Anchorage. She suggested that kids from crowded
urban schools be transferred to rural schools. If serious
consideration must be put into whether one's child would be safe
in a rural community, said Ms. Blake, the vast inequity built
into the public safety system should become readily apparent.
Every legislator is elected to think and act and provide votes
based on the entirety of Alaska, but this is often not the case
thanks to an implicit bias or inability to see that certain
votes actually do communities a disservice.
8:54:16 AM
MS. BLAKE stated that rural communities' lack of a Division of
Motor Vehicles is harmful, because people cannot get a REAL ID,
which [as an alternate to a passport] is required in order to
fly. She questioned how people would travel, especially without
the Alaska Marine Highway System ferries. She recommended folks
look at the State of Alaska Seal, which contains no
representation of Alaska Native people. She related anecdotally
how even changing the state dog to the Alaska Malamute from the
Siberian Husky had been a challenge because of the latter's role
in the pioneer history, whereas the former represented history's
long view.
8:58:02 AM
MS. BLAKE related anecdotally that systems which were supposed
to be equitable were not so, as members in her immediate family
were effectively prevented from participating in those systems,
and chances to participate were given instead to others from 300
miles away. Such systems are in place in the public safety, and
water and wastewater sectors, to name two, despite an excess of
funding so great U.S. Senator Lisa Murkowski was hired to try to
figure out how to spend it all and fast, Ms. Blake related. The
percentage of the money that went to communities without water
and wastewater, despite the fact that one in four homes in rural
communities were without running water, was 20 percent, she
said. The rest went to communities which already had water and
wastewater systems in place. The system was meant to provide
equality throughout the system, but it didn't make sense, as Ms.
Blake pointed out, that over $50 million from the fund went to
communities which already had water systems.
MS. BLAKE told the committee that beginning in Nome, Alaska, in
June, First Alaskans Institute would be embarking on a series of
week-long truth, racial healing, and transformation tribunals
throughout the state over the next two years. The purpose of
the tribunals is that the stories of inequity that have been
buried and causing trauma will come to the surface where healing
can take place. In order to reconcile, one must start from a
good place, Ms. Blake pointed out. The transformation component
will deal with the policy shifts that need to take place and
have needed to for quite some time, she added.
9:05:06 AM
MS. BLAKE mentioned that there is also a dialogue series on
racial equity at First Alaskans Institute. She brought to the
committee's attention the book In the Courts of the Conqueror by
Native attorney Walter R. Echo-Hawk, in which it is described
that Native people can be seen as the canary in the mine shaft,
and how if a culture can exist for 10,000-plus years, or 450
generations, living in one place, it is at the very least
deserving of some recognition, respect, and appreciation. Not a
lot of other cultures can say that, she added.
9:07:20 AM
CHAIR ZULKOSKY asked Ms. Blake to expand on her comment about
how policymakers ought to reflect not one perspective but
multiple perspectives, especially with regard to the way in
which implicit bias can impact one's ability to see multiple
perspectives and become unintentionally ingrained in the
decision making process.
9:08:11 AM
MS. BLAKE replied that she had been told she was the one Native
person in a representative's district; she knew this was not the
case. The representative did not have an implicit understanding
that Native people were spread throughout. If it were the
belief that there were no Native people in that district,
decisions were not being made that would benefit the well-being
of the ones whose ancestors had been there since time
immemorial, she added.
9:10:22 AM
CHAIR ZULKOSKY asked Ms. Blake why it may be problematic for the
state to discuss equity and inequity in lawsuits.
9:10:45 AM
MR. TRICKEY answered that one of the things learned from the
Kasayulie case was that the perpetuation of the conflict
diminished the perception of the political leadership of the
state and contributed to some of the racial antagonism.
Litigation polarizes, Mr. Trickey continued, and does make it
difficult for people to work together.
9:12:26 AM
MS. BLAKE answered that any time equity or inequity is
addressed, one group is being favored over another, and perhaps
saying that the value of one's education or rights are greater
if a student lives in urban versus rural Alaska. The issues
could use more finesse, she added.
9:13:47 AM
REPRESENTATIVE VANCE said that she appreciated the presentation
of information via storytelling format as opposed to facts and
figures because it was more personal and showed the decisions
were affecting people. She also said in her district she has
about 4 percent Alaska Native, and that her constituents have
had to fight, because of the inequity, for their subsistence
rights in the Cook Inlet after having fished there for
generations. She also mentioned the Russian community in her
district and their own struggle for school funding, in which
they feel discriminated against. She explained that addressing
issues of equity and inequity initially tells us that the way we
do things is wrong, and no one likes to be told they're wrong.
REPRESENTATIVE VANCE illustrated, by way of analogy, the way it
is beneficial to stand quite literally in another person's - in
this case a village inhabitant's - place to be able to see what
that person sees. She acknowledged the challenging and
difficult questions, and asked for patience for those trying to
understand. Representative Vance related a story about her
father, who had been gone for months at a time working for
Native corporations, and who told her that the work he was doing
provided for the needs of generations of Alaska Natives.
Representative Vance said she hoped [the state and Alaska
Natives] could walk together to heal.
9:21:16 AM
REPRESENTATIVE ZULKOSKY said that many of the conversations have
been theoretical, and she would be interested in pivoting back
to the firm policy positions as they relate to equity. She
asked Mr. Trickey to speak to what may happen if the vetoed REAA
construction dollars from last year are not restored.
9:22:10 AM
MR. TRICKEY stated that in his opinion the failure to fund the
REAAs at an adequate level was leading toward future litigation.
He reiterated that it only appeared on a superficial level that
the rural and urban schools were being treated the same way as
urban schools that had the bonding capacity and taxing authority
to proceed with construction programs and meet the needs of
school facilities. He added that the vetoes in effect would not
only reduce funding but stop sustainable funding for rural
school new construction and major maintenance as well as put the
state in violation of its constitutional obligations again.
9:24:29 AM
REPRESENTATIVE VANCE said that she had also recognized
inequality in grant distribution, and she asked what could be
done to ensure the grants were being equally distributed.
9:26:02 AM
MR. TRICKEY answered that it was a grant-by-grant basis and had
to do with numbers of students and daily membership, and there
were several other factors having to do with supplemental
funding provided.
9:27:14 AM
REPRESENTATIVE VANCE said she had assumed grant recipients were
based upon need, but learned funds were granted based on who had
the best idea. She said it wasn't the best measure of the best
use of the money because often schools with the best idea
already had enough resources.
9:30:45 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Tribal Affairs meeting was adjourned at
9:31 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| AS 14.11.005-.102.pdf |
HTRB 2/27/2020 8:00:00 AM |
|
| Judge Reese 3-27-2001 Order in Kasayulie v. State_34980786_1.PDF |
HTRB 2/27/2020 8:00:00 AM |
|
| Judge Reese 9-1-1999 Order Granting Plaintiffs_ Motions for Partial Summary Judgment on Facilities Funding in Kasayulie v. State case_34980789_1.PDF |
HTRB 2/27/2020 8:00:00 AM |
|
| Judge Reese 9-1-1999 Order Regarding Plaintiffs_ Motions for Partial Summary Judgment on Breach of Trust Issues in Kasayulie v. State case_34980790_1.PDF |
HTRB 2/27/2020 8:00:00 AM |
|
| Kasayulie Consent Decree and Settlement Agreement.pdf |
HTRB 2/27/2020 8:00:00 AM |