SB 105-QUITCLAIM LAND TO UNITED STATES  3:31:45 PM CHAIR GIESSEL announced SB 105 to be up for consideration. 3:32:20 PM SENATOR JOHN COGHILL, sponsor of SB 105, said this "simple" bill was drafted to settle a long-standing agreement between Natives and Americans and now Alaskans over allotments that have been promised for over 100 years. Alaska can be a help in settling some of the title questions. 3:33:39 PM SENATOR COGHILL said he was raised with several people who had been involved in, claimed, or been refused Native allotments. He knows a lot of people who had other claims from the federal government, including homesteads, which were given to them fairly rapidly while many Native allotments that had the same promise were left languishing - sometimes because of the Bureau of Land Management (BLM) or because of people just not understanding how to assert their right. One of the principles that "gets his shoulder to this" is that this is private land and Alaska doesn't have much of that, and he would like to see the Natives who had these allotments potentially given to them get settled. Another issue of concern to him was that Alaska has title problems on all kinds of land with the federal government and these should be settled as a priority as well as a belated promise before we start settling some of the other issues. 3:35:08 PM SENATOR COGHILL said SB 105 takes an existing right, potentially, and asserts it. The last page of the bill, page 4, is where the state really becomes involved. It inserts: (14) quitclaim land or an interest in land to the federal government after a determination that the land or the interest in land was wrongfully or erroneously conveyed by the federal government to the state. He said the state has over-selected at statehood, but prior to that, families were given the right to select land under this Native allotment. They have already had the ability to transfer land under the Department of Natural Resources (DNR), but by saying "you shall" he is making it a directive in this bill. SENATOR COGHILL explained that some allotment lands have erroneously been transmitted to the state but now have buildings on them. So, they will hear testimony about how they will be very difficult to transfer. They will also hear that there is a lot of land that could be settled. Probably the reason it's important to settle it now - and one of the other principles - is families are dying and their claims are becoming significantly diminished. Some fight even amongst their own progeny over who should have the right to that land; now they have to make a claim and agree together to make it. It just makes it much more complex. SENATOR COGHILL noted the Aguilar Decision, a court case that sets some standards on the dispersion of this land under Tab 8. 3:38:25 PM RYNNIEVA MOSS, staff to Senator Coghill, explained the tabs: one is the sponsor statement and two is the bill itself. Section 4 is the repealer of the statute that makes the conveyance permissive. Section 1 mandates that if land is wrongfully or erroneous titled to the state, the state would quitclaim it back to BLM so that it could be titled to the allotment owner. Sections 2 and 3 are provisions that ensure subsurface rights to that allotment property and that the land will not be designated as agricultural land. 3:39:33 PM SENATOR FAIRCLOUGH asked how the term "erroneously" was arrived at. MS. MOSS explained that someone else had a claim to the property prior to BLM deeding the land to the state. The Aguilar Case actually preserved that further by saying a Native's use of an allotment took priority over land selections made to the State of Alaska under the Alaska Statehood Act. SENATOR COGHILL added that many of these were being processed by BLM under a temporary authorization when Alaska was doing the land selection. One of the things that failed to hit the trigger point was that a Native allotment is a valid existing right, and that is what is being asserted in SB 105. SENATOR FAIRCLOUGH asked if the state over-selected. SENATOR COGHILL replied that it received 103 million acres. SENATOR FAIRCLOUGH asked if that amount had been received. SENATOR COGHILL answered no; we are about 5 million short. He explained that significantly more land is being selected to have the ability to trade land and make adjustments for uses like mountaintops. A lot of it has to do with the rights-of-way for the pipeline. SENATOR FAIRCLOUGH said she was still perplexed. 3:42:46 PM SENATOR FAIRCLOUGH said she didn't see a fiscal note but the bill has a Finance referral and in her minimal search of federal transfer to the state of its remaining allotment she found that one of DNR's challenges was that any transfer had to be surveyed, but the federal government couldn't afford it; and that was somehow holding up the transfers and she wondered if changing "may" to "shall" will require the legislature to pay for it. 3:44:29 PM MS. MOSS said that is a policy call the legislature would have to make. It's quite possible that a portion of these Native allotments are not with their proper owner, because they haven't been surveyed by BLM - and they have to be surveyed by BLM before they can give title. SENATOR COGHILL said many of these had been in the making since the 1930's and he was willing to explore whose responsibility the cost was, but some of those things could maybe be negotiated. 3:45:40 PM MARTY PARSONS, Director, Division of Mining, Land and Water, Department of Natural Resources (DNR), explained the mechanics behind Senator Fairclough's question about the over-selection of land. He explained that the state was provided a certain amount of entitlement under the Statehood Act and that was amended through several pieces of federal legislation, the Alaska Native Claims Settlement Act (ANCSA) being one and the Alaska National Interest Land Claims Act (ANILCA) being the other. Each one of those provided them an opportunity to select additional lands and in ANILCA they were allowed to over-select by a certain amount as some of their selections were rejected because they were set aside for the corporations to select; the state came back and said it was really important to cover those selections. So, the federal government allowed them to select another 25 percent over the state's entitlement. That sits out there on lands that have public land orders that would keep the state from having that land conveyed to it or lands that were set aside for the corporations to select. As their entitlements are completed, the state's top filings fall into place. SENATOR COGHILL said he kept one other principal in mind, which was making sure to not restrict good access in Alaska and the RS-2477 is probably one of our best tools, but it is becoming weaker. They are hard to prove and sometimes very contentious. Probably a protocol will have to be set up for some allotments outside of the RS-2477s. He said the people who have the right to these allotments have been promised them for over a century and our RS-2477s are getting cold by two centuries. We were supposed to assert them at a drop dead time in the 1970s and the people who used those in our lifetime are no longer able to help assert them, so records are getting harder to keep. CHAIR GIESSEL asked him to define RS-2477. SENATOR COGHILL explained that it is a federal mining law from the 1800s that carries that number. It said if you wanted access to public land through private property, and you could demonstrate that you could have that right of access based on having used these old trails if they were used for commerce or trade. In Alaska, certainly dog sleds were probably the primary reason for doing that. The Richardson Road that became the Richardson Highway was a mud trail to begin with and is an example of an RS-2477. The Iditarod from Nenana to Nome is a mail trail and that is also an RS-2477. 3:50:36 PM SENATOR BISHOP asked how many parcels have yet to be conveyed. MS. MOSS answered 303 parcels according to DNR's summary. SENATOR BISHOP asked how many allotments were in Anchorage. MS. MOSS answered that she didn't have specific numbers, because they range from about 40 acres to 160 acres, but when the law was repealed in 1971, roughly 10,000 Alaska Natives filed and there were over 16,000 parcels of land. She explained that they could file on more than one parcel as long as it didn't total more than 160 acres. 3:53:16 PM MS. MOSS went on to the third tab, which was the sectional analysis. Tab four was a series of "white papers" the Tanana Chiefs had provided that would answer some of their questions about RS-2477s, which was part of the Mining Act in 1866. They have also included a summary by the Tanana Chiefs of the Aguilar Case and a map showing where the Native allotments are. Tab five has the summary report they requested from DNR. Some maps were also attached showing some of the conflicting areas that they trying to get settled through conveyance or land trades. Tab six held resolutions from different organizations supporting the bill. Tab seven was the actual federal law on Alaska Native Allotments and Tab eight was the Aguilar Case. She added that the Native allotments that Senator Coghill is trying to get resolved have already been through a full series of steps that are required by BLM and had already been approved. SENATOR BISHOP asked if that meant the surveys were completed. MS. MOSS answered no; but there are cases where the holdup is a survey. 3:54:06 PM SENATOR FAIRCLOUGH asked of the 303 allotments that have been transferred to the State of Alaska that should have recognized a Native allotment is the federal government was willing to make the state whole in the form of other acreage or cash. MS. MOSS answered the state and BLM had entered into an MOU to allow land swaps for Native allotments. However, the concern is that DNR have a real good reason for refusing to deed these Native allotments and Senator Coghill has asked for a breakdown of each allotment so they know why each one had not been quitclaimed. SENATOR COGHILL said that DNR is looking for land swaps that they can work with if - for instance - a highway has been built through or some other public use has taken that land and made it not usable. 3:55:55 PM CHAIR GIESSEL opened public testimony. 3:56:18 PM TOM HOSETH, Realty Officer, Bristol Bay Native Association (BBNA), Dillingham, Alaska, supported SB 105. He said the Alaska Native Allotment Act of 1906 gave Alaska Natives the right to obtain legal title to up to 160 acres of land that they use. Word was out that ANCSA, passed in December 1971, would repeal the Allotment Act but it didn't and there were approximately 13,000 allotment applications and ANCSA did not repeal the pending applications. Initially, the BLM rejected the allotment applications if the land was located on land already selected by the state. This continued up until 1979 when the federal court ordered the BLM to process the applications in the Aguilar Case. The court ruled that the Allotment Act provided a preference right to all subsequent claims to the same land. Several more decisions support that this preference right begins on the date the land was first used and occupied by the applicants no matter what date the application was filed. Therefore, the current rule is Allotment applicants are entitled to the land they applied for if their use began before the state selected the land. Going forward to 2013, in an attempt to resolve some Aguilar allotment cases that had been set aside, the state and BLM announced they had entered into an MOU, which offers the optional relocation of certain Native allotment parcels of lands that were conveyed in error to the state. In early December 2013, the BLM provided them maps of about 8 million acres the state opened for relocations. BBNA has prepared a more detailed map for his region. He believed along with other service providers that the relocation option would not resolve the Aguilar cases, because they were only going to be offered to certain cases and with a few exceptions the allotment applicants would not want to relocate. MR. HOSETH explained that SB 105 offers a solution to resolve Aguilar allotments that were determined valid by BLM. Once these re-conveyances are completed, Alaska will be in compliance with the Statehood Act, Alaska's Constitution, the federal court order in Aguilar v U.S., and the Alaska Native Allotment Act. Furthermore, the Department of Interior will not have to sue the state, which will save a large amount of time and resources. He thanked Senator Coghill for sponsoring the bill. 4:01:01 PM SENATOR FAIRCLOUGH asked if the state needs to re-convey back to the BLM the land to resolve the issue; it can't just give it the allotment directly? MR. HOSETH replied that the land needs to be re-conveyed and then BLM will issue certificates to the allotment applicants. SENATOR FAIRCLOUGH said that BLM has limited resources at the federal level, so she could see the state resolving its side of the issue by conveying the land back to them, but then they are stuck where there aren't enough resources to convey it back to the proper allotment. SENATOR COGHILL said the legal instrument is called a quit claim deed, which means the claim is released and BLM is able to manage it from there. SENATOR FAIRCLOUGH said the BLM hadn't been as quick to respond to other requests the state has made, quit claim or not, and she didn't want to set up false expectations. MR. HOSETH said that in his area many surveys had already been done for the cases that are still pending, so it wouldn't be such a long process. 4:03:14 PM SHEILA NEKETA, Land Management Specialist, Bristol Bay Native Association (BBNA), Dillingham, Alaska, supported SB 105. She explained that she works specifically on Native allotments in her region for about 8.5 years. She assists the applicants through the process with the BLM and the state DNR. According to a BLM document there are about 301 pending Native allotments pending throughout the state of Alaska; 43 valid Aguilar allotments are located within the Bristol Bay Service Provider boundaries. This means that BBNA Land Management Services works with the applicants and their heirs (because a majority of the heirs have been deceased; there are second heirs and sometimes even third). She explained that the BLM reviews and adjudicates the parcels of land that the Native Allotment applicants have applied for. Once they have determined that the claim is valid, if the land has been given to the state of Alaska erroneously, the BLM will request the land be returned from the state DNR. This means that the DNR will be following their generalized land conveyance policies and review the case that the BLM submits to them, although the case has already been determined valid; the BLM makes sure they do a survey before submitting the land to the DNR. This can be a very lengthy process. She noted that the Native Allotment applicants and/or heirs need to be in agreement with the state DNR. While she has been working the Native Allotment applicants have died in this process and their heirs are waiting and some of those have died. MS. NEKETA noted one compelling case, that of John Alexy who died at 83 years while waiting for title to his land; one of his heirs has died, and they did everything the DNR and the BLM had asked, but unfortunately the state declined to re-convey and the future of this case is uncertain. She said she supported SB 105 because it would assist not only this case but other cases throughout the entire state concerned with this issue. She thanked Senator Coghill for the bill and for being allowed to speak. SENATOR BISHOP asked her relationship is with the BLM. MS. NEKETA said she has a very good working relationship with the BLM; they ask for legal evidence which she helps the applicants provide. SENATOR FAIRCLOUGH asked her to explain what kind of legal evidence she provides to the BLM. MS. NEKETA replied that the Native Allotment application is valid, timely filed, and that the applicant did have exclusive valid use and occupancy. SENATOR FAIRCLOUGH asked if that meant that papers were filed a long time ago or that something active is happening now to re- assert that claim. MS. NEKETA replied that she does not provide new documentation; they follow up with existing documents that were filed originally to the Bureau of Indian Affairs (BIA) or evidence that it was submitted to the BIA. 4:10:09 PM LUCY WEEDMAN, representing herself, Dillingham, Alaska, said she was heir to the late John Alexy, who was her grandfather. At the age of 53 he had applied for his Native allotment along with some affidavits from two well-respected individuals of the community confirming that he had been using the selected property since 1930, a total of 83 years of documented use. She said he brought her to his property when she was 10 years old; she didn't realize at first that she would be inheriting it someday. They still use the property today. Her grandfather waited for the title to be transferred to him, but it never happened. Her brother worked on the land and asking questions about it and thirty-three years later she, her sister, her aunt they have received one notice after another from the state DNR and each heir had complied with all the different conditions, but yet they pulled it out from under them. It angered and hurt them, because the land is their life line. To date they have not received title to the property. 4:14:15 PM CHAIR GIESSEL asked if she has a legitimate claim that has been filed and if she is just waiting for this bill to pass. MS. WEEDMAN answered yes. SENATOR MICCICHE thanked Ms. Weedman for finding the courage to testify. 4:15:02 PM DESIREE DUNCAN, Native Lands Manager, Central Council, Tlingit Haida Indian Tribes of Alaska, supported SB 105. She said Tlingit and Haida represents the Native land owners in the Southeast region and they have over 29,000 tribal citizens. She said she is also co-chair of the statewide Tribal working Group which represents over 100 tribes; all the members in the group support SB 105, because it is resolves all the Aguilar allotment cases. The applicants and their heirs in their region and in the state have been waiting over 40 years to receive the land they used and occupied and that is rightfully theirs. 4:16:40 PM MARSHA HOTCH, representing herself, Klukwan, Alaska, heir to her father's, Willie Lee, allotment, who used the land since 1933, supported SB 105. She read a letter from her father stating their case. In 1955 he was given the certificate of allotment for 111 acres; 40 acres was excluded even though they didn't tell him until 1958 why: that it had been given to the state. When the Aguilar case was decided, the 40 acres was reinstated and it was one of the few approved during that case. And the heirs are still waiting for that 40 acres. 4:19:38 PM CHAIR GIESSEL asked if they had received the 111 acres. MS. HOTCH answered yes. 4:20:23 PM EILEEN GRANT, Allotment Specialist, Tanana Chiefs Conference, Fairbanks, Alaska, said she has 70 pending valid Aguilar allotments, and supported SB 105. For most of the cases the State of Alaska refuses to give the land back, because they don't feel that they have to; they feel it's discretionary. Once the BLM requests re-conveyance it sometimes takes the state 20 years to respond if they do at all. The few cases they do give back, they have kept part of the land for things like section line easements and rights-of-way. In most cases the applicants have died because many of the cases are 40 to 100 years old. If the applicants' use and occupancy started before the state selection, they should not have to give up any of the land. She said that some of the applicants or their heirs don't feel they have the right to use the land, because they don't have title to it. 4:24:03 PM CHAIR GIESSEL thanked them for their testimony, and finding no further questions, closed public testimony. SENATOR COGHILL closed by saying that those who testified showed the exceeding frustration of a couple of generations trying to lay claim to something. He felt that the state needed to honor those allotments where it can. Surveying is one of the barriers because of its cost, but he thought if everyone put their shoulders to it, not one person would have to bear the total cost. He was willing to work on those ways, but he was not willing to sit and let this languish any longer. CHAIR GIESSEL asked if subsurface rights go with the surface rights. SENATOR COGHILL answered yes, for the most part. SENATOR DYSON asked why someone from DNR hadn't come before the committee to explain the other side. MR. PARSONS responded that DNR staff continually works on this issue on a regular basis. He explained that in many cases they have resources, roads, and other items that either pre-date the use and occupancy of a particular allotment that then needs to be made subject to those under the Aguilar case. They have a settlement release process they go through where either the allotted or the heirs - if they don't re-convey 100 percent of the "bundle of sticks" back to the federal government who would then give it to the allotted - will not sign and return the settlement release documents. In many cases settlement releases have been sitting out for 10 to 20 years that have not been signed and returned. But they still continue to work with those individuals to try to get them signed. In many cases it's just an iterative process back and forth between BLM, the state and the allotted with the service providers trying to reach agreements on what the re-conveyance will be subject to. SENATOR DYSON asked if he had five times as many people working just these issues could he clear them up in five years. MR. PARSONS said they already have dedicated staff and he wasn't sure more staff was the answer. One thing they must look at is when land comes to the state, whether erroneously conveyed or not, the statute requires DNR to go through a process, which includes a public process and a finding to re-convey or dispose of land. Many times information is in conflict with the allotted and at that point the state has to work through the process of determining whether there is another interest the state needs to protect before giving it back to the BLM to give it to the allotted and in many cases there are third party interests to work with. SENATOR DYSON asked what the legislature can do to eliminate some of the state laws that inhibit getting these things resolved. MR. PARSONS said he couldn't think of much that could expedite the process. 4:36:29 PM SENATOR DYSON said he was sympathetic to the situation they are in, but it seems intolerable because Senator Coghill was telling them in SB 105 to do what they are already able to do. MR. PARSONS said the state has attempted through an agreement with BLM to allow an allotted voluntarily to take a parcel of land that was in a legislatively designated area, for instance, or some other area that was acceptable to them on state selected land, which is still owned by the federal government. It is a much simpler process. CHAIR GIESSEL found no more questions and remarked that she sincerely appreciated the work Senator Coghill was doing on this issue. She was thrilled that the subsurface rights would go to these property owners as a legacy. SENATOR DYSON moved to report SB 105, version 28-LS0849\A, from committee with attached fiscal notes and individual recommendations. There were no objections and it was so ordered.