HB 123-STATE RECOGNITION OF TRIBES  4:46:14 PM CHAIR SHOWER announced the consideration of HOUSE BILL NO. 123 "An Act providing for state recognition of federally recognized tribes; and providing for an effective date." He stated that the intention is to hear invited testimony and try to assuage the concerns some members have expressed. He listed the individuals who were available to testify and answer questions. 4:47:22 PM SCOTT OGAN, Staff, Senator Mike Shower, Alaska State Legislature, Juneau, Alaska, offered his belief that it was time that the state recognize tribes in Alaska. The federal government recognizes both tribes in Alaska and the State of Alaska as sovereigns; federal case law recognizes tribal sovereignty; and state case law recognizes some levels of tribal sovereignty. He said his largest concern was how the sovereign immunity of tribes affects things such as torts and taxes. However, attorneys for both the Department of Law and Legislative Legal Services have opined that the bill only formally recognizes tribes. It changes nothing else. The Department of Law convinced him there was no reason for concern, but the chair may offer an amendment to remove the enabling sections of the bill. MR. OGAN stated that he initially had concerns that Sections 3 and 4 placed recognition of tribes in Chapter 44.03 that talks about sovereignty of state issues, such as ownership of water and submerged land. He said there has been a lot of tension about these issues over the years and his recommendation is to place recognition of tribes in bill Section 5 in its own chapter. He related that several attorneys familiar with the topic have said that such an amendment would not substantially change the policy and it would keep the initiative off the ballot. He offered his belief that the initiative would "cause unfortunate rhetoric and possibly exacerbate some people's perceptions of the relationship between Natives and non-Natives, especially as written." CHAIR SHOWER asked Nicole Borromeo to offer her testimony. 4:55:55 PM NICOLE BORROMEO, Executive Vice President and General Counsel, Alaska Federation of Natives (AFN), Anchorage, Alaska, stated that her testimony on HB 123 was intended to provide a simple explanation of what the bill does and does not do. She would also provide background information on federal Indian law which should make it easier for the committee to pass the bill. MS. BORROMEO provided the following testimony: The United States has a trust relationship with federally recognized Alaska Native tribes. The concept has evolved from federal tribal treaties, the U.S. Constitution, federal statute, Supreme Court juris prudence etcetera. The relationship subjects the United States to the highest degree of moral and legal obligations and has been reaffirmed in every piece of modern federal Indian legislation and presidential policy statements in recent times. The bill before the committee today, HB 123, will not affect the tribal trust responsibility that the federal government shares with our tribes. Furthermore, federal recognition is a political process that institutionalizes the government-to- government relationship between the United States and recognized tribes. The process also cements the tribes' political status as a distinct society which carries certain political and legal powers. The vast majority of these powers are related to the tribe's members and/or its lands. Federal recognition can be accomplished through treaty, statute, or other administrative means. Again, this bill, HB 123 will not affect federal recognition of tribes. Sovereignty of federally recognized tribes has been a sticking point for this committee and an issue that is difficult for Alaskans to grapple with. American Indian and Alaska Native tribes were self-governing societies for centuries before European contact. As such, the United States Supreme Court has consistently ruled that the sovereignty powers of federally recognized tribes are not, in general, delegated powers from the United States. Rather, they are inherent powers of a limited sovereignty. Sovereignty has been limited because we have a federal government now and state governments. In the simplest form, sovereignty means that the tribe has the ability to manage its own affairs. Tribes can form their own governing structures, determine tribal membership, make and enforce lands, license and regulate activities on tribal lands, and exclude certain persons from tribal lands. Most of that list that I just read relates to tribes in the Lower 48 because Alaska settled its land claims differently with Alaska Native tribes than Lower 48 tribes did. Again, HB 123 will not affect the sovereignty of Alaska Native tribes. State recognition of tribes is possible and that is something that is not necessarily being asked of this committee today. What's being asked of the committee today is to recognize in statute the list of federally recognized tribes. However, certain states have recognized tribes that are not recognized by the federal government. This mainly occurs on the East Coast where a lot of those tribes were removed so the lands could be settled in the early turn of the century when the United States was colonized. Finally, taxation was brought up as is torts with the previous testifier and questions concerning sovereignty of tribes and whether HB 123 could affect either the state's ability to tax Alaska Native lands or would absolve an Alaska Native tribe or tribal entity from a tort. In short, HB 123 will have no bearing on the state taxation of ANC land. Furthermore, sovereign immunity will have to be negotiated and waived on a case-by- case basis. And that is what currently happens right now with tribes. So we hope that you will move HB 123 from this committee today if there are no more lingering questions about the state's ability to recognize federally recognized tribes or the benefits to the state of Alaska for doing so. 5:00:39 PM At ease 5:00:49 PM CHAIR SHOWER reconvened the meeting. SENATOR HOLLAND stated his belief that HB 123 was long overdue. However, he said there seems to be angst and perhaps a desire to not get along between the state and many tribal entities. He asked how it is interpreted when people introduced themselves as a group from an unseated land. MS. BORROMEO replied it depends on who makes the statement, but she interprets it as a sign of respect and acknowledgement to the indigenous groups that occupied the land before colonization. She does not interpret it as a sign of disrespect to the current forms of federal or state government. SENATOR HOLLAND said his assumption was that it is a statement of pride. He stated support for HB 123, although he did want to see the proposed amendment. CHAIR SHOWER stated that he continues to think that HB 123 is the path forward, although with some changes that do not alter the bill but assuage some member's concerns. He asked Ms. Kitka if she had testimony of offer. 5:04:29 PM JULIE KITKA, President, Alaska Federation of Natives, Anchorage, Alaska, thanked the chair for inviting Ms. Borromeo to testify and said she would be available to answer further questions. She highlighted that Ms. Borromeo had passed the Bar in multiple states and had a depth of experience on legal issues pertaining to Indian law and Alaska Natives. 5:04:58 PM CHAIR SHOWER asked Ms. Moor if she had closing comments. 5:05:11 PM BETTY JO MOORE, representing self, Anchorage, Alaska, stated that she liked what Mr. Ogan said about focusing on the recognition of tribes. She also articulated support for additional references to comity, due diligence and sovereignty. She noted that she had been reading about the trust responsibility and obstruction of justice within tribal government. She suggested that the bill needed more work to clarify the meaning of jurisdiction. She said she would like more assurance that within tribal governments, the constitutional rights of tribal and nontribal citizens will be protected, as what Michael Geraghty did on behalf of Edward Parks. She stated support for HB 123 "with the recommendation of recognition of tribes and jurisdiction deleted." 5:08:39 PM CHAIR SHOWER held HB 123 for future consideration.