SB 108-STATE RECOGNITION OF TRIBES  3:36:14 PM CHAIR SHOWER announced the consideration of SENATE BILL NO. 108 "An Act providing for state recognition of federally recognized tribes; and providing for an effective date." 3:36:37 PM SENATOR DONNY OLSON, Alaska State Legislature, Juneau, Alaska, sponsor of SB 108, stated that this legislation proposes to formally recognize the tribes in Alaska, which are already recognized by the federal government and listed in the Federally Recognized Tribal List Act of 1994. He highlighted that the Alaska Supreme Court and the executive branch already have recognized tribes in Alaska. In the 1999 Baker v. John case, the Alaska Supreme Court made this the law of the state and in 2017 the Alaska attorney general issued a memo outlining tribal recognition. SENATOR OLSON stated that the intent of SB 108 is to reconcile the government of Alaska with its First Peoples and declaring this formal state policy is the first step into the future with tribes as partners rather than adversaries. SENATOR OLSON stated that SB 108 does not expand the current rights of established tribes, it does not obligate any more state resources to tribes, and it does not diminish the state's ability to manage its public resources. SB 108 simply dignifies the tribal citizens of Alaska by recognizing them as tribal people. 3:39:04 PM At ease 3:40:10 PM CHAIR SHOWER reconvened the meeting. 3:40:31 PM KEN TRUITT, Staff, Senator Donny Olson, Alaska State Legislature, Juneau, Alaska, advised that while SB 108 has just three operative sentences, it has some large concepts to consider. He reviewed the supporting materials in members' packets starting with President Nixon's 1970 special address on Indian affairs, which he said is still the most succinct and insightful statement of the federal Indian policy of self- determination. The Baker v. John case that the sponsor referenced, was a landmark moment when the Alaska Supreme Court determined the existence and recognition of federally recognized tribes in the state. He noted that former Attorney General Jahna Lindemuth's exposition of tribes in Alaska was also in the packets. MR. TRUITT spoke to the sponsor statement for SB 108 that read as follows: Senate Bill 108 proposes to formally recognize the tribes in this state and the peoples who governed themselves for multiple millennia before statehood. The federal government has a special and unique relationship with tribes that through this bill the state would acknowledge. Alaska obtained statehood during the era of federal Indian policy where the federal government sought to terminate its trust relationship with its tribal people and force them to abandon their tribal identity, cultures, languages, and ways of life. While the federal government embraced needed change and went on to pass the Self Determination and Education Assistance Act in 1975, Alaska's state constitution, and state policy, are still relics of the painful past. We have clung to this policy to our collective peril as all the peoples of this state have suffered because of it. Many of the struggles facing Alaska today, from the public safety crisis, suicide, the epidemic of sexual assault and domestic violence have only been reinforced by the state's policy of telling its tribal peoples that their form of government has no existence, no standing, and no recognition. It is time to stop this policy and break from the past and usher in a new era that seeks to reconcile all the state's peoples one to another. Senate Bill 108 serves as a first step, by making it the formal state policy that the state's indigenous peoples have their own governments and that the government of the state of Alaska will no longer deny their existence. This provides for not only formal recognition in our statutes, but a roadmap for healing, wholeness, and restoration of all Alaska's people and communities. 3:43:22 PM R. TRUITT emphasized that this legislation is still needed, despite the Supreme Court's declaration of the law in the state, because it is the legislature's role to establish and declare the official policy of the state. It is not the governor's role to declare state policy, despite former Governor Hickel's statement that Alaska was one people and did not have tribes. While that might have been what the governor felt, Mr. Truitt said it was not the governor's role to declare state policy. Making state policy is the legislature's role and that is part of the reasoning behind the formal recognition of tribes in statute. 3:45:55 PM MR. TRUITT explained that SB 108 declares the end of termination era thinking as the official state policy, which is a step toward aligning with the federal Indian policy of self determination. What self determination looks like on the state level will take some conversation, he said, but it needs to start by acknowledging that tribes not only exist in Alaska, but they are also properly here. He posited that this session underscores that point given that the legislature received its vaccinations from the tribal health provider for this region. 3:47:35 PM MR. TRUITT presented the following sectional analysis for SB 108: Section 1 contains legislative findings and intent that will be uncodified. This was added to the bill that was introduced in the previous legislature. Section 2. This 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 3 and 4 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 states 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 is the effective date. 3:51:17 PM CHAIR SHOWER asked the sponsor how he would respond to those who feel this legislation would infringe on state rights. 3:52:53 PM SENATOR OLSON replied the intent is not to cause conflict between state rights and tribal rights. He deferred further comment to Mr. Truitt MR. TRUITT offered an historical perspective. He explained that one reason the framers of the U.S. Constitution replaced the Articles of Confederation was because it granted supreme rights to each of the colonies, including the issue of Indian affairs. Because there was no uniformity among the 13 colonies as to how to work with the tribes, the framers of the constitution wrote the Indian Commerce Clause. The colonies relinquished their exclusive control over Indian affairs and made it a federal question, which it has been to this day. He confirmed the sponsor's statement that SB 108 does not expand any rights that tribes have now by virtue of their recognized status. CHAIR SHOWER commented that this will be well debated because of the strong feelings on the issue. He opined that it was past time for the discussion. 3:56:03 PM SENATOR KAWASAKI thanked the sponsor and expressed appreciation for the history lesson from Mr. Truitt. 3:56:54 PM SENATOR REINBOLD asked the sponsor if Alaska Native history is required in public schools. 3:57:31 PM SENATOR OLSON replied he was not aware of that requirement and the bill has nothing to do with any curriculum the state may require. SENATOR REINBOLD said she just wondered if tribal issues were discussed in the curriculum at any time. SENATOR OLSON restated his previous answer and said he was not aware of any discussion about curriculum. 3:59:51 PM NATASHA SINGH, General Counsel, Tanana Chiefs Conference (Tanana Chiefs), Fairbanks, Alaska, co-delivered a presentation titled Recognition of Alaska Tribes. She stated that Tanana Chiefs represents 37 federally recognized tribes, and she was co- presenting with Joy Anderson, general counsel for the Association of Village Council Presidents that represents 56 federally recognized tribes. She began the presentation by paraphrasing the text on slide 2 that read as follows: Native peoples and Tribes have existed in the Americas from time immemorial. "Before the coming of the Europeans, the tribes were self-governing sovereign political communities." -John v. Baker, Alaska Supreme Court 4:01:55 PM JOY ANDERSON, General Counsel, Association of Village Council Presidents, Bethel, Alaska, co-delivered the presentation titled Recognition of Alaska Tribes. She explained that tribes are domestic dependent nations, which is the legal term for all federally recognized tribes, including those in Alaska. They are sovereign governments that are subject only to the authority of the United States. She suggested the members read the list on slide 3 that describes the characteristics of tribes. The slide read as follows: xrhombus Inherent powers and authorities with self-governance of internal affairs e.g. type of government; tribal membership xrhombus Tribes exercise all powers, unless those powers have been expressly limited by Congress xrhombus Regulate matters pertaining to tribal members, e.g. taxes, property, members' conduct xrhombus Immune from lawsuits xrhombus Tribes are not state or local governments; political subdivisions or agencies or instrumentalities of the federal or state governments; tax exempt organizations 4:02:54 PM MS. ANDERSON said the name of the bill is very important because it recognizes that tribes are already in Alaska. It does not create tribes or expand any powers. 4:03:10 PM MS. SINGH briefly reviewed the history of tribes since Columbus arrived in the Americas and emphasized the point that tribes have rights and a relationship with the federal government with or without SB 108 and recognition by the legislature. She directed attention to the timeline on slide 5 that identifies the progression of the federal Indian policy periods, starting with the 1492-1820 Colonial Era where tribes were specifically referenced in the constitution. The subsequent federal Indian policy periods were the removal/relocation era from 1820-1850; the reservation/treaty making era from 1850-1887; the allotment & assimilation era from 1887-1934; the Indian self-government era from 1934-1953; the termination era from 1953-1960s and the self determination era from 1960s-present. She noted the committee's time constraints and said she would not detail each policy period MS. SINGH related that the Alaska Native Claims Settlement Act was negotiated and signed at the end of the termination policy period, which was followed by the self determination policy that was championed by President Nixon. She said the point is that the current policy is the only successful federal Indian policy in the history of the relationship between tribes and the federal government. 4:04:47 PM MS. ANDERSON reviewed slides 6-8. She stated that in 1831, the Marshall court issued a trilogy of decisions that established the principles that are the foundation for the relationship between tribes and the federal government. She noted that one of the decisions established the definition of "Domestic Dependent Nation." She directed attention to slide 7 that encapsulates the three cases: Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. The slide read as follow: 4:05:33 PM xrhombus Aboriginal land claims: Aboriginal people retain the rights of use and occupancy, that only the United States government can settle aboriginal land claims, and that the U.S. has a legal duty to protect aboriginal title until land claims are officially settled. xrhombus Tribal Authority: Tribes are nations with the authority to govern themselves. The source of their authority to govern is "inherent," meaning that it comes from tribes being self-governing long before explorers and settlers came to the Americas. xrhombus Federal Trust Responsibility: The federal government has a responsibility to protect Indian lands and resources, and to provide essential services to Indian people. This comes from the fact that the federal government took away the vast majority of Indian lands, and in return promised to provide these things. 4:06:13 PM MS. ANDERSON stated that in 1867 Russia sold the United States its claim to Alaska through the Treaty of Cession, which included the following statement: The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country. It is an example of the way that colonialism treated indigenous people as inferior, but it is also clear evidence that tribes existed in Alaska. The treaty recognized that Russia had exercised power over tribes in Alaska and it ceded that power to the United States. 4:07:08 PM MS. SINGH emphasized that the United States recognizes tribes because it is in the constitution. She described that point and the success of the current self-determination policy as important takeaways. That policy has had bipartisan support for four decades and it has worked to improve Native communities. The Indian Self-Determination Act of 1975 was a major piece of legislation that allows tribes to identify services the government is obligated to provide and contract for those services through either the Bureau of Indian Affairs or the Indian Health Service. Tribes are doing that in Alaska and that is why the rollout of the COVID-19 vaccine was so successful in Alaska's tribal communities. 4:08:41 PM MS. SINGH directed attention to the bulleted points of Executive Order 13175 of 2000. It read as follows: xrhombus Established regular and meaningful consultation and collaboration with tribes in the development of federal policies that have tribal implications. xrhombus Recognizes that the United States has a unique legal relationship with Indian tribal governments as set forth in the U.S. Constitution, treaties, statutes, Executive Orders, and U.S. Supreme Court decisions. xrhombus Confirms that the U.S. recognizes Indian tribes as "domestic dependent nations under its protection." xrhombus Recognizes a trust relationship with Indian tribes. xrhombus Recognizes the right of Indian tribes to self- government, tribal authority and self- determination. xrhombus All federal agencies are to respect Indian tribal self-government and authority. MS SINGH restated that Alaska tribes have had a relationship with the federal government and will continue to have a relationship with or without passage of SB 108. 4:09:40 PM MS. SINGH credited Mr. Truitt with giving a brief history of the earlier position of the executive branch in Alaska, which was that tribes did not exist. She said the cases cited on slide 14 demonstrate that part of the termination era was an effective shift to eliminate tribes in Alaska. However, history demonstrates that only Congress has that power; the State of Alaska is unable to do that. Slide 14 cited the following cases: xrhombus Native Village of Stevens v. Alaska Management & Planning (Alaska 1988)-"There are not now and never have been tribes of Indians in Alaska as that term is used in federal Indian Law." xrhombus Alaska Administrative Order No. 125 (1991)-"State of Alaska opposes expansion of tribal governmental powers and the creation of 'Indian Country' in Alaska." She highlighted that these cases were overturned and reversed as lawmakers became educated about federal Indian law. 4:10:54 PM MS. ANDERSON reviewed the federal government responses to the cases cited on slide 14, starting in 1993 with the Department of Interior (DOI) Sansonetti Opinion. It controverted the Alaska Supreme Court analyses, observing that the federal government had recognized tribes in Alaska for many years and treated them as such. She reported that DOI issued a list of federally recognized tribes in Alaska nine months later. Then in 1994, Congress required the lists of recognized tribes, including those in Alaska, to be published annually. That was the List Act and all versions since 1994 have included the federally recognized tribes in Alaska. 4:11:54 PM MS. ANDERSON reviewed the current position of the State of Alaska as to the recognition of tribes that is outlined on slide 16. She said the state's position has shifted over the last several decades. Baker v. John was a landmark case where the Alaska Supreme Court reversed itself on the Stevens decision and recognized the existence and sovereignty of tribes and some of the powers they exercise. In 2018, an Alaska Administrative Order by Governor Walker recognized tribes by stating that there was a need to improve government to government relations with Alaska tribes. She said that was preceded by the 2017 Department of Law opinion that, "[T]here are no unresolved legal questions regarding the legal status of Alaska Tribes as federally recognized tribal governments." MS. ANDERSON read the important points about SB 108 that were bulleted on slide 17, which read as follows: xrhombus Will bring the Alaska State Legislature in line with the other two branches of state government regarding the status of Alaska tribes. xrhombus 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. xrhombus Create the potential for the State of Alaska to lead the country in creation of state-tribal relations. 4:13:40 PM MS. SINGH concluded the presentation stating that should SB 108 pass, it will be a first step in developing a formal relationship between the State of Alaska and its 230 tribes. "We can determine together what that relationship should become and how we should learn from the federal self-determination policy." SB 108 presents a great opportunity, she said. 4:14:38 PM CHAIR SHOWER thanked the presenters and apologized for rushing the presentation due to the eight additional bills on the schedule. He said he looked forward to debating some of the questions. CHAIR SHOWER held SB 108 in committee.