Legislature(1997 - 1998)
02/10/1997 09:10 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= 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 Senator Torgerson moved amendment #1 but after discussion, without objection, the amendment was withdrawn.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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