Legislature(1997 - 1998)

02/10/1997 09:10 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                             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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