Legislature(1997 - 1998)
02/10/1997 09:10 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
10 February 1997
9:10 a.m.
TAPES
SFC-97, #32, Side 1 (000 - 476)
CALL TO ORDER
Senator Drue Pearce, Co-chair, convened the meeting at
approximately 9:10 a.m.
PRESENT
In addition to Co-chair Pearce, Senators Sharp, Torgerson,
Parnell and Adams were present when the meeting convened.
Senators Donley and Phillips were absent.
ALSO ATTENDING: Senator Jerry Ward; Senator Georgianna
Lincoln; Bruce M. Bothelo, Attorney General, Department of
Law; Fred Fisher, Director of Administrative Services,
Department of Law; Ted Popely, legal aide, House Majority;
Mike Greany, Director, Division of Legislative Finance;
Susan Taylor, Fiscal Analyst, Division of Legislative
Finance; and aides to committee members and other members of
the legislature.
SUMMARY INFORMATION
SB 74 APPROPRIATIONS: SUPPLEMENTAL/CAPITAL/SPECIAL
Senator Sharp moved CSSB 74 (FIN) "E" version be adopted for
working purposes and with the objection of Senator Adams
being noted it was adopted for working purposes. Senator
Torgerson moved amendment #1 but after discussion, without
objection, the amendment was withdrawn. Senator Torgerson
moved amendment #2 (page 1, line 8) and without objection it
was adopted. Senator Adams moved amendment #3 (page 1,
lines 5 and 9) and upon taking a vote it failed. Senator
Sharp moved CSSB 74 (FIN) with individual recommendations
and with the objection of Senator Adams it was reported out.
CS FOR SENATE BILL NO. 74(FIN) "An Act making
appropriations concerning the state's position on the
sovereign powers of Native tribal governments in the
state; and providing for an effective date."
Senator Pearce invited Senator Jerry Ward and Senator
Georgianna Lincoln to join the committee. She introduced SB
74 which was the Governor's bill for supplemental
appropriations for FY 97. Senator Sharp moved CSSB 74 (FIN)
"E" version be adopted for working purposes and with the
objection of Senator Adams being noted it was adopted for
working purposes. Senator Adams said his objection on the
supplemental was three-fold. First, the appropriations on
sections 1(a) and (b) the amount of money under both
sections is three times too high. In overviews the
Department of Law requested $150,000 for Venetie and that is
the amount of money that should be appropriated. Second,
last year under the statehood defense approximately $1.4
million was appropriated and that was supposed to take care
of the Venetie case; also navigable waters and RS 2477.
Third, there is sufficient money left. He had not seen a
broken down detail of what the Department of Law needed to
do with that particular money, nor had he seen the
legislature's budget on how to spend this $500,000. It is
costing the attorney $320/hour. and a decision might not be
made until April or May and we do not need to spend this
much money.
By a vote of 4 to 1 CSSB 74 (FIN) "E" was adopted for
working version.
Bruce Bothelo, Attorney General, Department of Law was
invited to join the committee. He addressed specifically
section 1(a) which was directed at an appropriation to the
executive branch to present its advocacy on the Venetie
appeal. In reply to Senator Adams he said statehood defense
had incorporated monies sufficient to deal with the appeal
to the U.S. Supreme Court. Categorically, in the budget
planning, it had not been anticipated that monies would be
expended on an appeal to the U.S. Supreme Court. This was
for Alaskans as well as the Department and the extraordinary
expense that was unanticipated would require the expertise
of outside counsel. As to the question of how the
Department would intend to spend the requested amount of
$500,000, obviously, if the Supreme Court were to decide not
to take the petition the same level of expenditure would not
be seen. However, it was anticipated a budget plant would
be presented to the legislature in an amount that would
allow the Department to cover the costs through an appeal.
The petition itself if granted, has another series of
expenses and rounds of briefing in amicus. It was
anticipated in the first round spending about $125,000.
There was some extensive legal research to be done. He was
prepared in closed session to indicate how monies would be
allocated.
Senator Adams said that $1.4 million was appropriated to
take care of three things; Venetie, navigable waters and RS
2477. There should be a pot of money there just to address
the Venetie case. Mr. Bothelo said in fact there had been
monies expended on Venetie case but Senator Adams was
mistaken assuming that statehood defense only encompassed
those three cases. There are actually in excess of a couple
dozen cases that are covered in statehood defense. He would
be happy to provide a written explanation of where the
resources were being used. The appeal had not been
anticipated expense. The most dramatic area that had been
spent on under statehood defense outside of this area was
U.S. vs. Washington concerning fisheries.
Senator Adams said that the case was made for Venetie and
perhaps the money was used elsewhere. It had been stated by
the department that the money needed was approximately
$125,000 and he therefore said the only amount of money
needed at this time was $150,000. The legislature would
still be in session if more money was needed and the
department can come back with a second appropriation. A
second appropriation would have to be dealt with. He voiced
concern over appropriating funds. He further felt the
administration and the majority were wrong on this
particular case. The people should be educated on what is
really the truth in this particular case. There are flawed
statements being made concerning 227 governments being
formed. And these flawed statements were coming not only
from the Knowles administration but also the majority.
Mr. Bothelo responded saying it did not make sense for the
Legislature to appropriate only a portion of the amount
which may be required. It is nearly impossible for the
Court, just in terms of timing, to reach a decision on the
petition while the Legislature is still in session. Under
the Rules of Court there is until the end of the first week
in April to file a brief. The amicus and opposition, either
by the Native American Rights Fund on behalf of Venetie and
those who choose to join in, have a month to reply, after
which the department has a chance to file a response and
motion. That would take up to at least mid-May. The U.S.
Supreme Court will not have acted before sometime in June or
July. He said Senator Adams had indicated there was a lot
of misinformation and he concurred. It is incumbent for all
to recognize there is a great deal of uncertainty caused by
the Ninth Circuit decision that required resolution by the
highest Court. The issue fundamentally before the Court is
whether the Ninth Circuit has properly interpreted the land
claims settlement of 1971 properly. In the department's
view it had not done so. The issue is, what constitutes
"Indian Country". It can be said ANCSA
was land set aside for Alaska Natives. In the department's
view Congress had intended to do away with lengthy wardship
or trusteeship in favour of an entirely new structure and
relationship between Alaska Natives and the federal
government, such that it could not be one that would form
the foundation of "Indian Country". That was the
fundamental issue and one that should be avoided by debate
of possible horrors which might be the affect of "Indian
Country" throughout the State.
Senator Adams asked if there was a one percent chance of the
U.S. Supreme Court hearing the case, and if that was the
case, he believed the State of Alaska would be flushing
$350,000 down the toilet. Mr. Bothelo said that giving odds
made little sense. Looking at the numbers of cases which
were presented to the Court and the number of cases which
were taken each year, chances are certainly limited. The
real issue was whether or not a compelling case could be
presented to the Court about the importance of addressing
this issue. It has dramatic implications for the State of
Alaska irregardless of what side of the issue one was on.
Everyone recognized that it would mean a rethinking of some
fundamental relations particular between the State of Alaska
and tribes throughout the State. In that respect, it merits
the best efforts the State of Alaska can put forward to see
that the highest court in the land be the ultimate arbiter
of what Congress intended in 1971.
Mr. Bothelo further indicated a letter from the Governor
directed to the committee this morning which would propose a
change in section 1(a), page 1 at lines 7 and 8, deleting
after the word "state" the remaining text. It was primarily
directed to allay concerns that the department would be
prematurely attempting to avoid a court solution in favour
of a legislative one. He asked the committee's favourable
consideration of this recommended amendment.
Ted Popely, legal aide, House and Senate Majorities was
invited to join the committee.
Senator Adams asked Mr. Popely to provide the committee
operating expenses and budget regarding how the $500,000 was
to be spent. Mr. Popely responded that he could do his best
as the case developed to provide breakdowns as the money was
spent. As the Attorney General pointed out there were a
number of avenues being taken on the case, many briefs that
were going to be filed and the legislature appropriated
$500,000 as well. The Governor's office and the Attorney
General's office have agreed to do everything in their power
to get this case heard before the Supreme Court. That is
going to require a number of amicus curiae briefs that the
Legislature will oversee. It will encompass, as the Senator
earlier alluded to, an educational component for the public,
various advocacy levels from the Federal government; the
solicitor general's office and the solicitors from the
Departments of Interior and Justice in an effort to get this
case before the Supreme Court.
Senator Adams asked Mr. Popely to advise the committee and
the public as to what standing the Legislature had in this
particular case. Mr. Popely advised that the Legislature
did not have any standing. The Department of Law represents
the State of Alaska and has gone forward with this case in
an effort to overturn the Ninth Circuit decision. The
legislature, in cooperation with the government, can play a
large role in getting this case before the Supreme Court.
Senator Adams reiterated the Legislature had no standing in
this matter and noted efforts were being duplicated.
Someone is going to do research and then give that
information to the Department of Law to help them. Mr.
Popely said that was not true and Senator Adams asked if
not, then what was going to be done with the paperwork. He
responded that there were a number of amicus curiae briefs
that could be filed that would have a tremendous influence
in this case. In addition to members of the congressional
delegation, who disucssed the idea of filing amicus briefs
supporting the State's position, the Legislature plans to
have a general amicus curiae brief filed and advocated
having parties around the state sign on to that. In the
legislature's opinion that is going to help the case.
Senator Adams said he was not going to debate the issue and
he did not feel the State had a chance. The same thing
could go forth for members that are sitting here that happen
to be brown and it could be done through the Native American
Rights Fund. That would have an impact of not having a
hearing which is planned to be done if this is the way the
majority wants to do it. The Native American Rights would
be used as a rule to do this.
Senator Lincoln asked if the Attorney General advocating an
amendment to the bill by deleting "and the United States
Congress" on line 8, had the intent of putting that into the
bill and what is this legislature going to do in the
advocacy to the United States Congress.
Senator Pearce said the actual language came from the
Governor in his original bill. Senator Lincoln asked if
this was the same they were now proposing to delete and
Senator Pearce concurred. Senator Lincoln said there was no
effort presently by the Legislature to lobby the United
States Congress for any language change. Mr. Popely said
no. He believed the position of the Legislative majority
was consistent with the Department of Law. The Native
Claims Settlement Act is clear on the issue of "Indian
Country". The judicial and congressional history is clear
on this issue. It is encumbent upon the United States
Supreme Court to interpret that properly and overturn the
Ninth Circuit's decision. Congressional legislation would
be premature at this point. Senator Lincoln asked if there
was going to be any effort placed on utilizing part of that
$500,000 to travel throughout Alaska to discuss this case.
Mr. Popely said a discussion had been held. He did not know
if that would occur but felt it important the issue be
discussed as alluded to by Senator Adams and to educate as
much as possible on this issue rather than incite further
division. If the leadership feels this is appropriate and
there is a need for a state-wide educational campaign, and
that includes travelling to various areas, then yes, that
would be taken out of that portion of the budget. Senator
Lincoln asked if the Legislative body was going to be
involved in the education would both sides of the issue be
heard, both majority and minority. Mr. Popely said that
would be appropriate. The legislature should emphasize for
everyone that the leadership, in taking this role and in
appropriating this money is a support body. The Governor's
office and the Department of Law have gone forward and have
agreed that this case is of paramount importance to the
State of Alaska as a strong policy position. "Indian
Country", in fact, does not exist except for Annette Island
and the Metlakatla Reserve in Alaska. That is a policy
decision that the legislative leadership made. The
Department of Law as Senator Adams alluded to earlier, is a
party in the case. The Legislature exists and acts as a
support unit. There are a great many things this money can
be used for in order to help the Governor's office further
the State's case. It will not be an attempt at propaganda.
It will be a two-sided effort. There will be members of the
minority present.
Senator Torgerson offered amendment #2 (page 1, lines 7 and
8) delete "," and insert "." and delete the remainder of the
sentence beginning with the word "including" down through
line 8 ending with the word "Congress." Senator Pearce
objected to the amendment and Senator Parnell invited Mr.
Fred Fisher to join the committee for the purpose of
discussion.
Fred Fisher, Director, Administrative Services, Department
of Law was invited to join the committee. Senator Parnell
asked about the change in language requested by the Governor
and wanted to know what would be accomplished by this
change. Mr. Fisher said that he did not have a perspective
to share with the committee. Senator Adams said he felt
the language change was directing the department to just
stick with one certain thing and focus all their attention
on the U.S. Supreme Court, not looking after what would
happen whether the decision was made up or down and to
further the scope of work to go and lobby Congress and the
federal administration agencies. Mr. Fisher said the
proposed amendment could be somewhat problematic.
Senator Torgerson said he thought the committee was going to
be careful to not work on legislative text as long as this
is in front of the Supreme Court. That being the case, the
amendment was a good one and would not allow the
administration to run off and try to get one of the
congressional delegation to introduce an amendment thereby
jepoardizing the case. If that is not going to happen then
he said he would withdraw the amendment.
Senator Sharp said he did not object to deletion of the
language but would like to see it re-inserted back in to the
language at line 6 after "legal position" and before "the
federal courts". Otherwise it did not focus on what should
be done. The focus is before the federal courts.
Senator Parnell requested a brief at ease at 9:37 a.m.
After the brief at ease Senator Torgerson asked that his
amendment #1 be withdrawn. Senator Torgerson moved
amendment #2 and without objection it was adopted. Senator
Adams moved amendment #3 (page 1, lines 5 and 9) the sum of
$500,000 be deleted and the sum of $150,000 be inserted.
Senator Torgerson objected. Senator Adams said he felt that
was the maximum amount of money that was needed by both
sides. The outcome of the case should be known by April or
May. Even with paying an attorney $320/hour that was a
sufficient sum. If necessary and the legislature is still
in session it can be looked at again and see if there is a
supplemental that needs to be addressed.
Senator Sharp said he would agree with Senator Adams except
that the Attorney General said there would not be anything
firm until even as late as July. To come back for special
session would probably cost more than was being deleted.
Senator Adams said anytime more money was given it would
never be given back. He would yield to another amount being
inserted. The objection to the amendment was maintained.
Upon a vote amendment #3 failed by a vote of one yea and
four nays.
Senator Sharp moved CSSB 74(FIN) with individual
recommendations and with the objection of Senator Adams it
was reported out.
ADJOURNMENT
The meeting was adjourned at approximately 9:46 a.m.
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