HB 123-STATE RECOGNITION OF TRIBES  3:07:14 PM CHAIR KREISS-TOMKINS announced that the first order of business would be HOUSE BILL NO. 123, "An Act providing for state recognition of federally recognized tribes; and providing for an effective date." 3:07:31 PM REPRESENTATIVE TIFFANY ZULKOSKY, Alaska State Legislature, prime sponsor, introduced HB 123. She noted that the proposed legislation began as a bipartisan effort in the previous legislature. It would for the first time, formally recognize Alaska's Tribes in state law, she said. She explained that Tribes had been recognized by the federal government, as well as the executive and judicial branches of Alaska's government; however, the Alaska State Legislature had yet to officially recognize them in statute. She cited a memorandum from Legislative Legal Services, Legislative Affairs Agency (LAA), which affirmed that passing HB 123 would not substantively change the state's existing relationship with Tribes and would serve as a first step towards recognizing their existence and history in Alaska's legal statutes. Further, as Alaska looked to its Tribal partners to provide a myriad of essential services to Alaskans living in remote parts of the state, she emphasized the importance of healing historic political division. She reported that in 2017, the State of Alaska entered its first compact with Tribes by signing the Tribal Child Welfare Compact to address the significant disproportionate number of Alaska Native children in state custody. More recently, Tribes and Tribal nonprofits provided timely, expanded COVID-19 vaccinations well before the state had the ability to do so. She believed it was difficult for the legislature to have meaningful discussions about expanding relationships with Tribes when their existence was not formally acknowledged in the first place. She recalled testimony from the House Special Committee on Tribal Affairs (HTRB) that acknowledged the difficulty of discussing progress without resolving some of the historical trauma that occurred in Alaska. In closing, she maintained that the time had long come for Alaska to acknowledge its Tribes and offer a path towards reconciliation by recognizing Alaska's first people for the first time in state law. 3:13:24 PM LOGAN BASNER, Staff, Representative Tiffany Zulkosky, Alaska State Legislature, on behalf of Representative Zulkosky, prime sponsor, provided a sectional analysis of HB 123 [included in the committee packet], which read as follows [original punctuation provided]: Section 1: This section adds legislative finding and intent language. Section 2: This section is a technical change and could have been included in a revisor's bill. In 2016, provisions from chapter 14 of title 25 of the United States Code were reorganized. As a result, the Federally Recognized Indian Tribe List Act of 1994 received a different section number in the U.S. Code. The operative provision of this bill in Section 4 of the bill references this act. The proposed new statute in Section 4 cross references AS 23.20.520 and so Legislative Legal is suggesting that the new section number in the U.S. Code be updated in this statute. Sections 3 and 4. Sections 2 and 3 are technical changes. The proposed new statute of this bill was deemed to be codified in AS 44.03 by Legislative Legal. This chapter of title 44 contains only four statutes that deal with state ownership and jurisdiction of offshore water and submerged lands and rules of statutory construction for the chapter. Because the proposed new statute of this bill is a completely different concept than the existing statutes within AS 44.03, clarifying language was inserted to accommodate the proposed new statute within this chapter. Section 5. This section contains the proposed new statute which acknowledges the unique status tribes have with the federal government and makes it the State's official policy that the State recognizes the federally recognized tribes within the state of Alaska. The list of federally recognized tribes is codified in the U.S. Code and this statute references that act. This section makes clear that this recognition is in no way intended to affect the federal trust responsibility the U.S. Government extends to tribes nor is it an attempt to create a state trust responsibility to tribes. Section 6: Adds an immediate effective date. MR. BASNER emphasized that the proposed legislation would not create additional rights or privileges for Tribes, nor would it lead to the creation of casinos. He referenced a letter from the Alaska Oil and Gas Association (AOGA) [included in the committee packet], later adding that the bill would not interfere with access to natural resources or resource development. 3:16:56 PM NATASHA SINGH, General Counsel, Tanana Chiefs Conference (TCC), informed committee members that TCC represented 37 federally recognized Tribes in interior Alaska. She explained that TCC was a Tribal consortium that assisted Tribes with their federal relationships. She introduced a PowerPoint presentation, titled "Recognition of Alaska Tribes" [hard copy included in the committee packet]. She briefly discussed the historical context of Tribes in Alaska on slide 2 before defining Tribes in further detail on slide 3, titled "What are Tribes," which read as follows [original punctuation provided]: • Domestic Dependent Nations • Inherent powers and authorities with self- governance of internal affairs, e.g. type of government; tribal membership • Tribes exercise all powers, unless those powers have been expressly limited by Congress • Regulate matters pertaining to tribal members, e.g. taxes, property, members' conduct • Immune from lawsuits • Tribes are not state or local governments; political subdivisions or agencies or instrumentalities of the federal or state governments; tax exempt organizations 3:21:38 PM MS. SINGH continued to slides 4-5, which reviewed the historical relationship between Tribes and the United States Government via federal Indian policy periods. She conveyed that these periods of federal policy reflected the different approaches that Congress took to what they termed "the Indian problem." She explained that the colonial period [1492-1820] established the initial government-to-government relationship. The removal/relocation period [1820-1850] gave rise to the Trail of Tears, as the United States expanded its territory pushing East Coast Tribes westward. The reservation/treaty period [1850- 1997] saw the development of numerous treaties between Lower-48 Tribes and the federal government; many reservations were also created. Subsequently, during the allotment and assimilation period [1887-`1934], the United States rolled back the promises made in its treaties and the effort to culturally assimilate Native Americans ensued. The Indian self-government period [1934-1953] consisted of a paternalistic dynamic wherein the United States provided services to Tribes with stipulations. The termination period followed [1953-1960s], which essentially ended the government-to-government relationship and the political existence of some Tribes. Lastly, the prior failed policies culminated in the successful self-determination period [1960s - present] under President Richard Nixon, which originated from the concept of local control 3:28:32 PM MS. SINGH proceeded to slides 6-7 and discussed a set of three Supreme Court decisions referred to as the Marshal Trilogy, which affirmed the legal and political standing of Tribes and established them as domestic dependent nations. She touched on the Alaska Purchase and the Treaty of Cession on slide 8. Slide 9 emphasized that the relationship between the federal government and Tribes was constitutionalized in Article I, Section 8, Clause 3 of the U.S. Constitution, which also specified that Congress has the authority to regulate Tribes. She advanced to slide 10, titled "Self-Determination," which read as follows [original punctuation provided]: • The only policy that has worked to make significant progress in reversing otherwise distressed social, cultural, and economic conditions in Native communities. • The policy of self-determination reflects a political equilibrium, which has held for four decades and which has withstood various shifts in the party control of Congress and the White House. • The first major piece of legislation, Public Law 93-638, the Indian Self Determination Act of 1975. -Tribes identify federal government services that they wish to provide to their own tribal members and contract for the federal funding to provide those services themselves. MS. SINGH noted that Tribal recognition and the pursuit of Tribal self-determination was a bipartisan effort. Additionally, she explained that the two federal compacts held by TCC were made possible by the authority in the Indian Self- Determination and Education Assistance Act championed by President Nixon. 3:34:32 PM MS. SINGH provided an overview of Executive Order 13175 on slides 11-12. The executive order further recognized the United States' unique legal relationship with Tribal governments and established regular consultation and collaboration with Tribes in the development of federal policies that had Tribal implications. Slides 13-16 examined the historical relationship between Tribes and the State of Alaska. She explained that a large portion of the state's Tribal population was either wiped out or forced into settlements and boarding schools. There was also no acknowledgment of Tribes in both the Alaska Constitution and the Alaska Native Claims Settlement Act (ANCSA) [1971]. She conveyed that the lack of dialogue between the State of Alaska and Tribes caused confusion, and in Native Village of Stevens v. Alaska Management & Planning [1988], the Alaska Supreme Court indicated that there had never been tribes of Indians in Alaska. Additionally, a 1991 Alaska administrative order (No. 125) opposed the expansion of Tribal government powers. She relayed that in response to the "Sansonetti Opinion" [1993], which disagreed with the Alaska Supreme Court's historical analysis of Tribes in Stevens Village, the U.S. Department of Interior (DOI) issued a list of federally recognized tribes in Alaska. One year later, Congress passed the Federally Recognized Indian Tribe List Act of 1994 that directed BIA [Bureau of Indian Affairs] to publish lists of recognized Tribes that included Alaska's. She stated that eventually, case law with a better understanding of Tribes and their political and legal standing developed. Slide 16, titled "Current Position of the State of Alaska on Recognition of Tribes," read as follows [original punctuation provided]: • Alaska Supreme Court - "If Congress or the Executive Branch recognizes a group of Native Americans as a sovereign Tribe, we 'must do the same.'" John v. Baker (1999) • State of Alaska's Executive Branch - "[W]e will improve government-to-government relations with Alaska Tribes []." Alaska Admin. Order No. 300 (2018). See also Alaska Department of Law 2017 Opinion - Legal status of tribal governments in Alaska ("[T]here are no unresolved legal questions regarding the legal status of Alaska Tribes as federally recognized tribal governments.") 3:41:37 PM MS. SINGH continued to slide 17, titled "HB 123," which read as follows [original punctuation provided]: • Will bring the Alaska State Legislature in-line with the other two branches of State government regarding the status of Alaska Tribes. • Will modernize the policy towards Alaska Native tribes by officially moving the State legislature out of the Termination Era and into the Self- Determination Era. • Create the potential for the State of Alaska to lead the country in creation of State-tribal relations. MS. SINGH concluded that the 37 federally recognized Tribes of Interior Alaska favored the proposed legislation. She expressed excitement for the opportunity to grow the relationship between state government and Alaska's Tribes and an interest in fixing existing state issues together. CHAIR KREISS-TOMKINS invited questions from committee members. 3:43:43 PM REPRESENTATIVE EASTMAN speculated that if Alaska would lead the country in state and tribal relations with the proposed legislation, there must be bipartisan [opposition] to this idea. He asked what was keeping all 50 states from going this route. MS. SINGH clarified that Alaska was in last place with Tribal relations, but it had the potential to lead the nation. She indicated that other states were in various stages of relationships with Tribes: some had entered into sophisticated compact agreements that addressed criminal justice, child protection, and education, while others acknowledged Tribes that were not even federally recognized. She reiterated that the mere recognition of Alaska's Tribes would allow the state to lead the nation and could move Alaska out of last place. REPRESENTATIVE ZULKOSKY noted that there were roughly 12 states that had recognized Tribes through legislation. She offered to provide that information to the Chair's office for distribution. She pointed out that of the 571 federally recognized Tribes in the country, 229 subsisted in Alaska; therefore, Alaska had the potential to be a leader for improved state and Tribal relations. She opined that with so many Tribes in Alaska, it was unfortunate that the state had yet to acknowledge Tribes in state law. 3:46:50 PM CHAIR KREISS-TOMKINS, referring to the bill language, inquired about the change in federal citation on Page 2, line 2. REPRESENTATIVE ZULKOSKY offered to follow up with the requested information. 3:48:20 PM REPRESENTATIVE EASTMAN observed that Section 3 looked as if it would restrict applicability to a smaller portion of statute as opposed to the entire chapter. He asked why that change was necessary. REPRESENTATIVE ZULKOSKY offered to follow up with the requested information. 3:49:01 PM REPRESENTATIVE VANCE sought to clarify the meaning of self- determination versus a domestic dependent [nation]. REPRESENTATIVE ZULKOSKY returned to slide 6, titled "Domestic Dependent Nations," which read: a weaker power does not surrender its independence - its right to elf-government - by associating with a stronger, and takings its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. REPRESENTATIVE ZULKOSKY indicated that the slide captured the issue of inherent sovereignty that was often discussed in association to the relationships that Tribes have with federal or state government. She expounded that while Tribes may have aligned themselves with stronger governments, there was also an opportunity for the federal government, through self- determination policy, to allow them to make decisions for themselves. She suggested considering Tribes as the most local form of government, adding that the term "Tribal sovereignty" should not be a scary word. She pointed out that it was the "domestic dependent nations" framework with which Tribes exercised their self-determination. She considered the example of Tribal health, explaining that the federal compacts allowed Tribes to offer healthcare in the stead of the federal government; however, she noted that the federal government also seeded decision making authority to Tribes to allow them to create culturally relevant, locally appropriate programs that worked best in their communities. She believed self- determination was a policy framework that provided decision making authority to domestic dependent nations that had aligned with the federal government. 3:53:13 PM MS. SINGH agreed with Representative Zuloksky, adding that "domestic dependent nation status" was a legal status established in the Cherokee Nation v. Georgia decision. The case outlined the sovereign nature of Tribes as unlike states and quasi-sovereign. Alternatively, she said self-determination was a policy, which implemented the legal status of domestic dependent nations. 3:54:46 PM REPRESENTATIVE VANCE claimed that there was an underlying fear of Tribes becoming legally recognized by the state and pondered "what lies at the heart of that fear?" She asked where the state fit in the relationship between governments and whether the bill sponsor had addressed some of the "unknown fears." REPRESENTATIVE ZULKOSKY in response to a previous question from Chair Kreiss-Tomkins regarding the language in Section 2, clarified that the reference change was a technical change. Similarly, in response to a previous question from Representative Eastman, she said the change in Section 3 was also a technical change and directed attention to the sectional analysis [included in the committee packet] for further explanation. Returning to Representative Vance's questions, she declined to speculate on the actions of future legislators with respect to their opinions on Tribes in Alaska. She stated that the beauty of HB 123 was that it would provide an opportunity in 2021, as the country was experiencing significant divisiveness and challenges with cultural relationships, for the existing legislature to pass straightforward [legislation] that would establish state policy acknowledging federally recognized Tribes in Alaska for the first time since statehood. She believed that simple recognition would go a long way towards healing historical and political divisions. She continued by reporting that Alaska led the country in the number of times a state government had sued Tribes in its attempt to diminish their authority; further, [Alaska's] Tribes had not seen great reparation for the colonial and extermination periods. She opined that the bill was long overdue. 4:00:09 PM CHAIR KREISS-TOMKINS [announced that HB 123 was held over].