[Senate Hearing 108-163]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-163
ALASKA NATIVE ALLOTMENT SUBDIVISION ACT; CAPE FOX ENTITLEMENT ACT; AND 
               THE ALASKA LAND TRANSFER ACCELERATION ACT

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   on

                                S. 1354

    TO RESOLVE CERTAIN CONVEYANCES AND PROVIDE FOR ALTERNATIVE LAND 
  SELECTIONS UNDER THE ALASKA NATIVE CLAIMS SETTLEMENT ACT RELATED TO 
 CAPE FOX CORPORATION AND SEALASKA CORPORATION, AND FOR OTHER PURPOSES

                                S. 1421

    TO AUTHORIZE THE SUBDIVISION AND DEDICATION OF RESTRICTED LAND 
                        OWNED BY ALASKA NATIVES

                                S. 1466

  TO FACILITATE THE TRANSFER OF LAND IN THE STATE OF ALASKA, AND FOR 
                             OTHER PURPOSES

                               __________

                             AUGUST 6, 2003

                           ANCHORAGE, ALASKA

                       Printed for the use of the
               Committee on Energy and Natural Resources


                                 ______

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                            WASHINGTON : 2003
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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                                 ------                                

                Subcommittee on Public Lands and Forests

                    LARRY E. CRAIG, Idaho, Chairman
                  CONRAD BURNS, Montana, Vice Chairmaa

GORDON SMITH, Oregon                 RON WYDEN, Oregon
JON KYL, Arizona                     DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee           TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska               MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri            EVAN BAYH, Indiana
                                     DIANNE FEINSTEIN, California

   Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the 
                              Subcommittee

                         Dick Bouts, BLM Fellow
                David Brooks, Democratic Senior Counsel


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Angapak, Nelson N., Jr., Vice President, Alaska Federation of 
  Natives........................................................    23
Bisson, Henri, State Director, Bureau of Land Management, 
  Department of the Interior.....................................     6
Borell, Steven C., Executive Director, Alaska Miners Association, 
  Inc............................................................    29
Borup, Bruce, CEO, Cape Fox Corporation..........................    41
Loeffler, Bob, Director, Division of Mining, Land and Water, 
  Alaska Department of Natural Resources.........................    14
Miller, Rosa, Tribal Leader of the Auk Kwaan.....................    44
Murkowski, Hon. Lisa, U.S. Senator from Alaska...................     1
Rey, Mark, Under Secretary, Natural Resources and Environment, 
  Department of Agriculture......................................     4
Van Tuyn, Peter, Trustees for Alaska.............................    33
Verrett, Timothy C., Borough Attorney, Bristol Bay Borough.......    46

                                APPENDIX

Additional material submitted for the record.....................    57

 
ALASKA NATIVE ALLOTMENT SUBDIVISION ACT; CAPE FOX ENTITLEMENT ACT; AND 
               THE ALASKA LAND TRANSFER ACCELERATION ACT

                              ----------                              


                       WEDNESDAY, AUGUST 6, 2003

                               U.S. Senate,
          Subcommittee on Public Lands and Forests,
                 Committee on Energy and Natural Resources,
                                                     Anchorage, AK.

    The subcommittee met, pursuant to notice, at 10 a.m. in 
Loussac Public Library, Hon. Lisa Murkowski presiding.

           OPENING STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Good morning. Welcome to the Energy 
Committee's Subcommittee on Public Lands and Forests field 
hearing today in Anchorage, Alaska, where the sun shines all 
the time. Hopefully, we won't have to stay inside for too long 
on this glorious day, but I want to thank all of you who have 
come today for this hearing on some very important issues.
    I'm Senator Lisa Murkowski. With me at the dais is 
professional staff from the Energy Committee, from the 
Subcommittee on Public Lands and Forests, and individuals who 
have joined us both from Washington, D.C., and from around the 
State to listen to the legislation that we recently introduced 
and its impact on the State of Alaska, so welcome to all of 
you.
    Special welcome to Under Secretary Mark Rey who's traveled 
from Washington. His responsibility includes overseeing the 
U.S. Forest Service. We also have the director of the Alaska 
Division of Mining and Land and Water, Mr. Bob Loeffler, 
welcome. And the State Director for BLM, Mr. Henri Bisson. It's 
nice to see all of you here today. I'm looking forward to the 
testimony we will receive.
    I would like to begin by thanking both the chairman of the 
Senate Committee on Energy and Natural Resources, Senator Pete 
Domenici from New Mexico, and our subcommittee chairman, 
Senator Larry Craig, from Idaho. Both of these gentlemen will 
be traveling to Alaska later this week, but were not able to 
make this schedule as far as this field hearing, but they are 
good friends to Alaska, and they have provided good leadership 
and support to the many land and resources issues that face our 
State.
    Before we get started, I would like to comment briefly on 
the committee process. It might be different than what you 
normally experience in these assembly chambers. I know the 
committee process in Washington is far different than the 
committee process that I have experienced in the State 
legislature.
    This hearing today is the first step in what is hopefully 
an inclusive process to listen and gather information from a 
variety of perspectives to help ensure that in the end, the 
Senate passes legislation that makes sense for the country, but 
more importantly, it makes sense for us in Alaska. I expect 
that this legislation will change as it moves through the 
process, as legislation often does.
    Now, I would like to say that we would be able to include 
everyone's testimony who would like to speak out on these 
issues, but we have limited time, and we have limited the 
testimony to invited witnesses only. This is basically how it's 
done in Washington. I'm not saying because we do it Washington 
this way, that that is the right way to do it, but in the 
interests of time, and recognizing the gathering of information 
we're attempting here this morning, we have limited it to 
invited testimony from the witnesses with time limitations, but 
I would encourage any of you and those who may be here this 
morning to submit written testimony within the next 2 weeks. 
All written testimony will be included in the committee's 
official hearing record and will be available to the public. So 
this is not just an exercise. You can get out and put your 
thoughts down on paper, and it does become part of the public 
record. The committee will review it and take your thoughts and 
concerns into consideration.
    We will be hearing testimony today on three Senate bills. 
The first is S. 1466. This is the Alaska Land Transfer 
Facilitation Act. We have a panel here today to help us 
understand the provisions of the bill. But I will tell you, it 
does not require any expert knowledge for me or any other 
Alaskan to understand the real importance of this legislation. 
Under the Statehood Act, Alaska was promised 104 million acres 
of land. To date, we have received final title to only 42 
million acres. Additionally, in 1971 the Native corporations 
were promised 42 million acres of land and have received title 
to only a third of that land, 15 million acres. The legislation 
that we will be reviewing today will streamline administrative 
processes that will expedite transfer of millions of acres of 
land to the Alaska Natives, the State of Alaska, and the Native 
corporations, and will bring finality to this decade's long 
conveyance process by the year 2009, which coincidentally is 
the 50th anniversary of our statehood.
    The Federal Government has management jurisdiction of over 
63 percent of the State. It's long past time to transfer these 
public lands from Federal Government control to State and 
private ownership. This legislation will accelerate the process 
to release of lands for conveyance to Native corporations and 
the State of Alaska. It will also complete land boundaries to 
allow landowners to more efficiently manage their lands, thus 
minimizing estate problems.
    Further, this legislation will create a hearing and appeals 
process located in Alaska, which will ensure a more expedited 
process. Disputes and appeals that are likely to emerge 
requiring administrative review will be handled by judges 
located in the State. Alaska cases will no longer have to sit 
in the queue line with every other agency's appeals within the 
Department of the Interior.
    The second piece of legislation we will be considering 
today is S. 1354, the Cape Fox Land Entitlements Adjustment 
Act. This legislation addresses an equity issue for one of 
Alaska's rural village corporation.
    Cape Fox Corporation is an Alaska village corporation 
organized pursuant to the Native Land Claims Settlement Act by 
the Native village of Saxon by Ketchikan. As with other Alaska 
village corporations in the southeast, Cape Fox was given the 
ability to select 23,040 acres. But unlike other corporations, 
Cape Fox was the only ANCSA village corporation restricted from 
selecting the lands within 6 miles of the boundary of the home 
rule city of Ketchikan. As a result of this 6-mile restriction, 
only the mountainous northeast corner of Cape Fox core 
township, which is non-productive and of no economic value, was 
available for selection by the corporation. Cape Fox's land 
selections were further limited by the fact that the Annette 
Island Indian Reservation is within its selection area and 
unavailable for ANCSA selection.
    Clearly, Cape Fox was on an inequitable economic footing 
relative to other village corporations in southeast. Despite 
its best efforts during the years since ANCSA has past, Cape 
Fox has been unable to overcome the disadvantage the law built 
into its lands selection by the inequitable treatment. This 
legislation will address Cape Fox's problem by providing three 
inter-related remedies. In particular, the legislation will 
allow Cape Fox and the Secretary of Agriculture to enter into 
an equal value exchange of lands. This exchange will enhance 
the economy for southeast and allow for reconsolidation of 
forest holdings in the inlet area of Romili Island.
    Additionally, provisions in the Cape Fox Land Entitlement 
Act will allow the agency to consolidate its surface and 
subsurface estate and greatly enhance its management 
effectiveness of the fishery of the Tongass National Forest.
    The final bill we will hear today is S. 1421, the Alaska 
Native Allotment Subdivision Act. This act is the only answer 
to resolving the question of whether Native landowners have the 
authority to subdivide their own property. Individual Alaska 
Native landowners cannot subdivide their land to transfer it 
either by gift or by sale. There is no current authority that 
allows them to dedicate rights-of-way across their land for 
public access or for utility purposes. The lack of explicit 
statutory authority calls into question the legal validity of 
those lands that have been subdivided and lands that could 
likely be subdivided in the future.
    This legislation would provide the necessary authority to 
the Department of the Interior and Native landowners to 
dedicate their land for public purposes as they see fit. 
However, the bill creates no obligation of Alaska Natives to do 
anything with their allotment unless they elect to sell or 
dispose of their lands.
    By speeding up and simplifying the allotment subdivision 
process, the Native landowner, the Federal, State, and local 
governments also benefit. The Native landowner will not be 
deprived of any of the protections of restricted land status. 
This legislation will confirm the restrictive Native 
landowner's right to act in his or her best interest. The issue 
they face is the choice between being able to subdivide their 
land, obtain a much greater total compensation for sales of 
subdivided lots, or continue to be unable to subdivide. Their 
only option will be to sell one large tract that will almost 
always be a substantially total amount of compensation.
    I believe this legislation is relatively non-controversial 
and is beneficial to all affected parties and the general 
public. The State of Alaska and local government have urged 
such legislation and the Department of the Interior supports 
it.
    So with that general summary of the legislation that is 
before us, I would like to turn to our witnesses. The first 
panel consists of Mr. Rey, Mr. Loeffler, and Mr. Bisson.
    Mr. Rey, if you would like to lead us off this morning, it 
will be greatly appreciated. Welcome.

        STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL 
      RESOURCES AND ENVIRONMENT, DEPARTMENT OF AGRICULTURE

    Mr. Rey. Thank you, Senator, and thank you for the 
opportunity to appear before you here today. I'm here to 
provide the Department of Agriculture's views on S. 1354, a 
bill, as you described, to resolve certain conveyances and 
provide for alternative land selections under the Alaska Native 
Claims Settlement Act related to the Cape Fox Native 
Corporation and Sealaska Corporation.
    As introduced, the bill provides for an additional 99 acres 
of Alaska Native Claims Settlement Act selection area for Cape 
Fox and Sealaska Corporation at Clover Passage on Revillagigedo 
Island. It also requires the Forest Service to offer, and if 
the offer is accepted by Cape Fox, to complete a land exchange 
with the Cape Fox and Sealaska Corporations.
    Pursuant to the land exchanges provided for in sections 5 
and 6 of the bill, Cape Fox Corporation would receive the 
surface and subsurface of 2,663.9 acres of national forest 
system land at the Jualin Mine site near Berners Bay, north of 
Juneau. That is depicted in the light yellow area on the map 
dated March 18, 2002, which is attached to my testimony and is 
before you there on the posterboard.
    Sealaska Corporation would receive the surface and 
subsurface national forest system land to equalize values of 
Sealaska subsurface lands and interests in land it conveys to 
the U.S. Sealaska Corporation would select national forest 
system lands of equal value from within a 9,329 acre pool of 
national forest system lands at the Kensington Mine, also near 
Berners Bay. This is in the darker yellow area on the map dated 
April 2002 attached to my testimony and appearing before you.
    The Forest Service would receive lands and interests in 
lands of equal value from within a pool of approximately 2,900 
acres, including a public trail easement, offered by Cape Fox 
and Sealaska on Revillagigedo Island, which is identified on 
the map dated March 15, 2002 attached to my testimony and 
appearing before you on the poster board.
    The Forest Service would also receive 2,506 acres of 
Sealaska subsurface estate located at Upper Harris River and 
Kitkun Bay on Prince of Wales Island; and 3,698 acres Sealaska 
subsurface land interests remaining to be conveyed to Sealaska 
pursuant to the Haida Land Exchange Act and the Sealaska/Forest 
Service Split Estate Exchange Agreement of 1991. Cape Fox would 
choose the land to be conveyed to the United States from the 
2,900 acre pool in number one above.
    The Forest Service has previously worked with you and your 
predecessor's staff to clarify and improve the language when 
these changes were under consideration in the 107th Congress. 
The Department would support the enactment of S. 1354 with the 
changes outlined in my statement for the record. Those changes 
go to making sure that the estimate of market value of exchange 
land, the Uniform Appraisal Standards of Federal Land 
Acquisitions and the Uniform Standards of Professional 
Appraisal Practices are use, and we also have some suggestions 
for providing the secretary a little bit more time in making 
the final determination after Sealaska and Cape Fox have made 
their decisions.
    With these minor changes and a few others outlined in my 
statement for the record, the Department of Agriculture 
supports the enactment of S. 1354. We believe there are 
significant benefits to the government from the enactment, 
including consolidation of public lands on the southern part of 
the Tongass National Forest and elimination of split estate 
ownership.
    Thank you for the opportunity to testify. I'd be happy to 
answer any questions.
    [The prepared statement of Mr. Rey follows:]

Prepared Statement of Mark Rey, Under Secretary, Natural Resources and 
                 Environment, Department of Agriculture

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to appear before you today. I am Mark Rey, Under Secretary 
for the United States Department of Agriculture. I am here today to 
provide the Department's views on S. 1354, a bill to resolve certain 
conveyances and provide for alternative land selections under the 
Alaska Native Claims Settlement Act related to Cape Fox Corporation and 
Sealaska Corporation, and for other purposes.

       S. 1354--CAPE FOX LAND ENTITLEMENT ADJUSTMENT ACT OF 2003

    This bill, as introduced, provides for an additional 99 acres of 
Alaska Native Claims Settlement Act (ANCSA) selection area for Cape Fox 
and Sealaska Corporations at Clover Passage on Revillagigedo Island. It 
also requires the Forest Service to offer and, if the offer is accepted 
by Cape Fox, to complete a land exchanges with the Cape Fox and 
Sealaska Corporations.
    Pursuant to the land exchanges provided for in sections 5 and 6 of 
the bill:

   Cape Fox Corporation would receive the surface and 
        subsurface of 2,663.9 acres of national forest system (NFS) 
        lands at the Jualin Mine site near Berners Bay, north of 
        Juneau, which is the light yellow area on the map dated March 
        18, 2002, attached to my testimony.*
---------------------------------------------------------------------------
    * Attachments have been retained in subcommittee files.
---------------------------------------------------------------------------
   Sealaska Corporation would receive the surface and 
        subsurface of NFS lands to equalize values of Sealaska 
        subsurface lands and interests in land it conveys to the U.S. 
        Sealaska Corporation would select NFS lands of equal value from 
        within a 9,329-acre pool of NFS lands at the Kensington Mine, 
        also near Berners Bay. This is the yellow area on the map dated 
        April 2002, attached to my testimony.
   The Forest Service would receive lands and interests in 
        lands of equal value from within: (1) a pool of approximately 
        2,900 acres, including a public trail easement, offered by Cape 
        Fox (surface) and Sealaska (subsurface) on Revillagigedo 
        Island, which is identified on the map dated March 15, 2002, 
        attached to my testimony; (2) 2,506 acres of Sealaska 
        subsurface estate, located at Upper Harris River and Kitkun 
        Bay, on Prince of Wales Island; and (3) 2,698 acres of Sealaska 
        subsurface land interests remaining to be conveyed to Sealaska 
        pursuant to the Haida Land Exchange Act and the Sealaska/Forest 
        Service Split Estate Exchange Agreement of 1991. Cape Fox would 
        choose the lands to be conveyed to the United States from the 
        2,900-acre pool in (1) above.

    The Forest Service previously worked with Senator Murkowski's staff 
to clarify and improve the language when these exchanges were under 
consideration in the 107th Congress. The Department could support the 
enactment of S. 1354 with the changes below:

    1. We request that Sec. 5(d) be clarified to read ``. . . by Cape 
Fox under subsection (c) are equal in market value to the lands 
described in subsection (b) based on appraisal reports approved by the 
Secretary and prepared in conformance with the Uniform Appraisal 
Standards for Federal Land Acquisitions and the Uniform Standards of 
Professional Appraisal Practice.'' Similarly, we request that Sec. 6(b) 
be clarified to read ``. . . selected lands are equal in market value 
to the lands described in subsection (c), and may adjust amount of 
selected lands in order to reach agreement with Sealaska regarding 
equal market value based on appraisal reports approved by the Secretary 
and prepared in conformance with the Uniform Appraisal Standards for 
Federal Land Acquisitions and the Uniform Standards of Professional 
Appraisal Practice.''

    2. We request that Sec. 7(a) be clarified to read ``. . . shall be 
of equal market value.'' and ``. . . estimates of market value of 
exchange lands with supporting information in conformance with the 
Uniform Appraisal Standards for Federal Land Acquisitions and the 
Uniform Standards of Professional Appraisal Practice.''

    3. Sec. 5(f) gives the Secretary of Agriculture ninety days after 
enactment to attempt to consummate an exchange agreement with Cape Fox. 
During this ninety day period, Cape Fox (pursuant to Sec. 5(c)) has 
sixty days to identify lands to be conveyed to the U.S., potentially 
only leaving thirty days for the U.S. to complete an appraisal, obtain 
title information, and complete the exchange process. Similarly, Sec. 
6(d) only gives the Secretary of Agriculture ninety days after receipt 
of selections by Sealaska to attempt to enter into an exchange 
agreement with Sealaska. We request these time frames be extended.

    4. A normal component of a land exchange includes a provision 
requiring the exchanged lands to be subject to satisfactory 
environmental site survey and remediation pursuant to the American 
Society for Testing and Materials (ASTM) Standard Guide for 
Environmental Site Assessment E 1903. We request this requirement be 
added to Sec. 7(b).

                               CONCLUSION

    With these minor changes, the Department of Agriculture supports 
the enactment of S. 1354. We believe there are significant benefits to 
the government from enactment, including consolidation of public lands 
on the southern part of the Tongass and elimination of split estate 
ownership. Thank you for the opportunity to present the views of the 
Department of Agriculture. This concludes my testimony. I would be 
happy to answer any questions that you may have.

    Senator Murkowski. Thank you, Mr. Rey. I appreciate your 
testimony on this legislation. Just for the interest of those 
listening and observing, what we will do is hear from all three 
of the panel. They have been reminded that their time is 
limited to 5 minutes, and at the conclusion of this panel, I 
will go ahead and ask my questions to all three of you. So with 
that, we go to Mr. Henri Bisson, State director of Bureau of 
Land Management.
    Mr. Bisson.

   STATEMENT OF HENRI BISSON, STATE DIRECTOR, BUREAU OF LAND 
             MANAGEMENT, DEPARTMENT OF THE INTERIOR

    Mr. Bisson. Thank you, Senator. Senator Murkowski, I 
appreciate the opportunity to appear before you this morning to 
present the views of the Department of the Interior on S. 1466, 
S. 1421 and S. 1354.
    The Department of the Interior supports the intent of all 
three of these bills. We would also like to continue to work 
with the committee to make certain that technical amendments to 
clarify and strengthen the bills occur, and in the interest of 
time this morning, I'm going to summarize my written remarks 
that have been submitted for the record.
    Senator, as you know, the Bureau of Land Management in 
Alaska manages the largest land conveyance program in the 
United States. One that requires the survey and conveyance of 
nearly 150 million acres of Alaska's 365 million acre land 
base.
    Consistent with the requirements of applicable Alaska land 
transfer laws, including the Native Allotment Act of 1906, the 
Alaska Native Claims Settlement Act and Alaska Statehood Act, 
the BLM in Alaska has worked diligently for the past 30 years 
to implement this massive program.
    However, the pace of land conveyances has been slow for a 
variety of reasons. The original framework contained in these 
statutes and in the implementing regulations provided 
appropriate direction and guidance for the BLM to begin these 
land transfer efforts, but the current laws and regulations do 
not provide the necessary tools for the BLM to complete these 
transfers efficiently and promptly. The laws themselves have 
been amended, superseded, and re-interpreted by judicial review 
many, many times, and each time this has occurred, the BLM has 
been required to re-assess, review, resort title claims to make 
certain that our actions with respect to all land claims and 
interests are appropriate, consistent with the interpretation 
of the applicable laws, and legally defensible.
    The BLM is responsible for adjudicating land claims, 
conducting and finalizing Cadastral land surveys, and 
transferring legal land title. This land transfer work in 
Alaska is complicated both operationally, due to remote 
locations, and administratively, because of complex case law 
and processes for transferring lands from Federal ownership to 
other ownerships.
    Last fall, Secretary Norton, and BLM director Kathleen 
Clark, along with other Department of the Interior and Bureau 
officials, met with representatives of several Alaska Native 
corporations, and during those meetings, urgent concerns were 
expressed about the pace of legislatively-mandated land 
transfers. We have also heard from both Senator Stevens and 
yourself about concerns about the pace that this has taken 
place.
    We recognize these long-standing concerns and share an 
interest in completing the land transfers in an expeditious 
manner. The completion of all Alaska land entitlements and the 
establishment of land ownership boundaries are absolutely 
essential to the proper management of lands and resources in 
Alaska. We have extensively analyzed the land transfer program 
to try to streamline processes and expedite conveyances. And, 
furthermore, in responding to a congressional directive this 
year, and in an effort to further expedite the conveyances, we 
have met with the staff from the Alaska congressional 
delegation, with Native entities, with environmental groups, 
with industry, and the State and other Federal agencies to 
discuss innovative ideas to get feedback on the land transfer 
process.
    This bill was introduced as a legislative solution to begin 
to resolve many of these issues. In our opinion, S. 1466 will 
eliminate many of the delays that currently exist in the 
adjudication and conveyance of Native allotments, State and 
ANCSA entitlements. It also provides flexibility that we need 
in negotiating final entitlements.
    Senator Murkowski, the Department of the Interior supports 
the intent of the bill, and we look forward to continuing work 
with you and your staff on it. S. 1421 would authorize Native--
Alaska Native owners of restricted allotments, subject to the 
approval of the Secretary of the Interior, to subdivide their 
land in accordance with State and local laws governing 
subdivision plats, and to execute certificates of ownership and 
dedication with respect to these lands, and would confirm the 
validity of past Secretary-approved dedications upon which many 
concerned parties have relied.
    We also support enactment of that legislation, and we have 
provided a recommended modification in my written testimony to 
that bill. S. 1354 extends benefits to Cape Fox that were not 
available under the original terms of ANCSA. The Department has 
carefully considered the merits of this proposal and agrees the 
Cape Fox situation is sufficiently unique to warrant a 
legislative remedy that is provided in S. 1354. We are 
concerned about the conveyance deadline in the bill, and we 
have recommended a modification to it that is described in my 
written testimony.
    In closing, I would like to reiterate that the Department 
of the Interior supports the intent of all three bills 
addressed at today's hearing. We look forward to working with 
the committee on these bills, and I'd be happy to answer any 
questions you many have.
    [The prepared statement of Mr. Bisson follows:]

          Prepared Statement of Henri Bisson, State Director, 
         Bureau of Land Management, Department of the Interior

    Senator Murkowski, I appreciate the opportunity to appear before 
you today to present the views of the Department of the Interior on S. 
1466, the Alaska Land Transfer Acceleration Act of 2003; S. 1421, the 
Alaska Native Allotment Subdivision Act; and S. 1354, the Cape Fox Land 
Entitlement Act of 2003. The Department of the Interior supports the 
intent all three of these bills. We would like to work with Committee 
to make certain technical amendments designed to clarify and strengthen 
the bills.

         S. 1466, ALASKA LAND TRANSFER ACCELERATION ACT OF 2003

Background
    The Bureau of Land Management (BLM) is the Department of the 
Interior's designated land survey and title transfer agent. The BLM in 
Alaska manages the largest land conveyance program in the United 
States--one that requires the survey and conveyance of nearly 150 
million acres of Alaska's 365 million-acre land base.
    Consistent with the requirements of applicable Alaska land transfer 
laws, including the Native Allotment Act of 1906, the Alaska Native 
Claims Settlement Act (ANCSA), and the Alaska Statehood Act, for the 
past 30 years, the BLM in Alaska has worked diligently to implement 
this massive program. However, the pace of land conveyances has been 
slow for a variety of reasons. The original framework contained in 
these statutes and in the implementing regulations provided appropriate 
direction and guidance for the BLM to begin these large land transfer 
efforts, but current laws and regulations do not provide the necessary 
tools for the BLM to complete the transfers efficiently and promptly. 
The laws themselves have been amended, superceded, and re-interpreted 
by judicial review many times. Each time this has occurred, the BLM has 
been required to reassess, review, and re-sort land title claims to 
make certain that the BLM's actions with respect to all land claims and 
interests are appropriate, consistent with the interpretation of the 
applicable laws, and legally defensible.
    Last fall, Secretary Norton, Bureau of Land Management (BLM) 
Director Clarke, along with other Departmental and Bureau officials, 
met with representatives of several Alaska Native corporations. During 
those meetings, Alaska Natives expressed urgent concerns about the pace 
of the legislatively-mandated land transfers. The Alaska congressional 
delegation and officials of the State of Alaska have raised similar 
concerns and have expressed an interest in accelerating the land 
conveyances so they are completed by 2009.
    The Department of the Interior recognizes these long-standing 
concerns and shares an interest in completing the land transfers in an 
expeditious manner. The completion of all Alaska land entitlements and 
the establishment of land ownership boundaries are essential to the 
proper management of lands and resources in Alaska.

``Allotments''  Background--Native  Allotment  Act  of  1906/Alaska  
        Native  Veterans Allotment Act of 1998
    In order to fully understand the status of Alaska land transfers, 
it is necessary to understand the interconnected nature of the 
underlying transfer legislation, the complexity and range of issues 
involved in the BLM's Alaska land conveyance program, and related 
terminology.
    Land ``allotments'' are land conveyances from the Federal 
Government to qualified individual applicants as authorized by law. The 
Native Allotment Act of 1906 authorized individual Indians, Aleuts, and 
Eskimos in Alaska to acquire an allotment consisting of one or more 
parcels of land not to exceed a total of 160 acres. Alaska Natives 
filed approximately 10,000 allotment applications for almost 16,000 
parcels of land statewide under this Act before its repeal in 1971.
    The Alaska Native Veterans Allotment Act of 1998 (Veterans 
Allotment Act) provided certain Alaska Native Vietnam-era veterans, who 
missed applying for an allotment due to military service, the 
opportunity to apply under the terms of the 1906 Native Allotment Act 
as it existed before its repeal. There were 743 applications filed for 
approximately 992 parcels under the Veterans Allotment Act, before the 
application deadline closed on January 31, 2002.
    The BLM's total allotment workload remaining to be processed 
consists of 3,256 parcels--including 2,491 parcels filed under the 1906 
Act and 765 parcels filed under the 1998 Act. Each of these individual 
remaining parcels must be separately adjudicated based on its unique 
facts and, if valid, surveyed and conveyed. Furthermore, of these 
remaining 3,256 parcels, approximately 1,100 parcels are on lands no 
longer owned by the United States. On these 1,100 parcels, the BLM is 
required by law to investigate and attempt to recover title to each 
parcel in order to convey the lands to the individual Native applicant.

``Entitlements'' Background--Pre-Statehood Grants/Alaska Statehood Act 
        of 1958
    Land acreage ``entitlements'' are specified amounts of land that 
are designated by law for conveyance to the State of Alaska or to 
qualified Native entities. In order to receive its land acreage 
entitlement, a qualified entity or the State must file land 
``selection'' applications that identify the specific lands to be 
conveyed to meet the authorized entitlement.
    Pre-Statehood grants and the Alaska Statehood Act of 1958 entitle 
the State of Alaska to 104.5 million acres. Of this total acreage to be 
conveyed, the BLM has taken final adjudicative action on, surveyed, and 
patented over 41 million acres. Final adjudication and title transfer 
have taken place on an additional 48 million acres, but final survey 
and patent work remains to be completed on this acreage. The remaining 
15.5 million acres to be conveyed have not been prioritized for 
conveyance by the State, and thus conveyance work on this acreage has 
not yet begun. Over 4,400 applications must still be addressed and 
approximately 3,000 townships (an area roughly the size of the State of 
Colorado) must be surveyed before the State's entitlements can be 
completed by issuance of final patents.

``Entitlements'' Background--Alaska Native Claims Settlement Act of 
        1971 (ANCSA)
    The Alaska Native Claims Settlement Act of 1971 (ANCSA) and its 
amendments were enacted to settle aboriginal land claims in Alaska. 
ANCSA established 12 regional corporations and over 200 village 
corporations to receive approximately 45.6 million acres of land. This 
is the largest aboriginal land claim settlement in the history of the 
United States. Of these 45.6 million acres to be conveyed under ANCSA, 
the BLM has issued final patents on over 18 million acres. Final 
adjudication and title transfer have taken place on an additional 19 
million acres, but final survey and patent work remains to be completed 
on this acreage. The BLM is unable to adjudicate, survey and convey the 
remaining 8.6 million acres because many Native corporations have 
significantly more acres selected than remain in their entitlements, 
and the corporations must identify which selections will be used to 
meet their remaining entitlements.

Impediments to Completing Conveyances (Allotments & Entitlements)
    The BLM is responsible for adjudicating land claims, conducting and 
finalizing Cadastral land surveys, and transferring legal land title. 
The land transfer work is complicated, both operationally, due to 
remote locations and extreme weather conditions, and administratively, 
due to complex case law and processes for transferring lands from 
Federal ownership to other ownerships.
    The vast majority of the 3,256 remaining Native allotment claims 
must be finalized before the ANCSA corporations and the State can 
receive their full entitlements authorized under law. This is primarily 
because most lands claimed as allotments are also selected by at least 
one ANCSA corporation and may also be selected (or ``top-filed'') by 
the State of Alaska. In order to determine whether these lands are 
available for conveyance as part of the State's or an ANCSA 
corporation's entitlement, and to avoid creating isolated tracts of 
Federal land, there must first be final resolution of the allotment 
claims.
    The adjudication of the 3,256 Native allotments is arduous and 
time-consuming for a variety of reasons, including evolving case law 
and complex land status. In addition, statutory deadlines imposed in 
subsequently enacted legislation also can have the effect of delaying 
work on existing priorities and previously-made land transfer 
commitments. The filing of reconstructed applications, requests for 
reinstatement of closed cases, the reopening of closed cases, changes 
in land description, and the recovery of title also cause lengthy 
delays in completion of the Native allotment program. Finally, delays 
in the scheduling of due process hearings, the need to await the 
outcome of prolonged administrative appeal procedures, and litigation 
in the Federal court system can add years to the process. All of these 
issues unduly complicate completion of the remaining 3,256 Native 
allotments claims.
    The processing of ANCSA entitlements also can be delayed for 
reasons other than Native allotment applications. Alaska Native 
Corporations are State-chartered corporations. They are valid legal 
entities only when they comply with the laws of the State of Alaska. 
Some Native corporations have been dissolved for failure to comply with 
State law. New conveyances cannot be made to a corporation if it ceases 
to exist and is dissolved. Additionally, while many Native corporations 
have applied for significant amounts of land in excess of their 
official entitlement acreage, there are also instances where village 
corporations have not made adequate selections to meet their 
entitlements. Section 1410 of the Alaska National Interest Lands 
Conservation Act (ANILCA) of 1980 provides a means by which additional 
lands can be made available to solve the under-selection problem, but 
the Section 1410 withdrawal and selection process can be cumbersome and 
time-consuming.
    Completion of State entitlements is complicated by ANCSA over-
selections and Federal mining claims. Unrestricted over-selections by 
ANCSA corporations mean that the State will have to wait for ANCSA 
corporations to receive final entitlement acreage before the State 
knows what lands will be available for conveyance to it. Lands 
encumbered by properly filed and maintained Federal mining claims also 
complicate the process and are not available for final conveyance to 
the State. The surrounding land can be transferred to the State, but 
excluded mining claims then constitute individual, isolated enclaves of 
Federal lands which are difficult to manage and, under current law, 
must be segregated by costly exclusion surveys before issuance of a 
patent to the State.

Expediting the Alaska Land Transfer Program
    Over the years, the BLM has extensively analyzed the land transfer 
program in order to streamline processes and expedite conveyances. In 
1999, the BLM, working in partnership with its customers and 
stakeholders (including Native entities and the State of Alaska), 
developed a strategic plan that would result in completion of the 
remaining land transfer work by 2020. The BLM is implementing this 
strategic plan, and, under current law, the Bureau anticipates 
completion of the land conveyances by 2020.
    Congress, through the Conference Report on the Department of the 
Interior's FY 2003 appropriation (House Report 108-10, February 12, 
2003), directed the BLM to develop a plan to complete the Alaska land 
transfer program by 2009. In order to comply with this direction, BLM 
officials have met with staff from the Alaska Congressional delegation, 
Native entities, environmental groups, industry, the State, and other 
bureaus and offices within the Department, as well as the Forest 
Service, to discuss innovative ideas and to get feedback on the land 
transfer process. S. 1466 was introduced as a legislative solution on 
July 25, 2003, to eliminate the unintended delays in the conveyance 
process.
    In BLM's opinion, S. 1466 will eliminate many of the delays that 
currently exist in the adjudication and conveyance of Native 
allotments, State and ANCSA entitlements. It also provides flexibility 
in negotiating final entitlements. The following summarizes some of the 
major provisions of the bill.

Title I--State Conveyances
    S. 1466 enables the BLM to accelerate conveyances to the State of 
Alaska, reduces costs associated with processing State conveyances, and 
simplifies the BLM's land management responsibilities by addressing 
statutory and regulatory minimum acreage requirements. The bill allows 
the State to obtain title to improved properties of significant value 
to local communities in which the United States retained a reversionary 
interest. It also allows the State to receive title to areas that are 
currently withdrawn from State selection due to their identification of 
having hydroelectric potential, while still maintaining the Federal 
Government's right of re-entry under the Federal Power Act.
    The bill also facilitates completion of the University of Alaska's 
456-acre remaining entitlement under current law (the Act of January 
21, 1929) by increasing the pool of land from which the University can 
make its final selections. The 1929 Act limited University selections 
to lands already surveyed. S. 1466 allows the University to use its 
remaining entitlement to select the reversionary interests in lands it 
owns and, with the consent of the current landowner, the reversionary 
interest in lands owned by others under the Recreation and Public 

Purposes Act (R&PP).
    When lands were conveyed to various entities under the R&PP Act, 
the Federal government retained minerals as well a reversionary 
interest in the property. These lands were applied for under the R&PP 
Act because of their suitability for development purposes or community 
use. The BLM must continually monitor these small properties to assure 
that the owners are in compliance with the original terms of the 
conveyance. If there is a violation of the original use, the BLM must 
take the necessary steps to assert that an event triggering reversion 
has occurred and then plan for the subsequent use or disposition of the 
property when it comes back into Federal ownership. As these lands have 
already been surveyed, one logical use for the reverted property would 
be to fulfill the University's 1929 entitlement. By allowing the 
University to select reversionary interests, the BLM is freed from 
current monitoring costs and responsibilities. Under this proposal, the 
University will be required to expend one acre of remaining entitlement 
for each acre of reversionary interest received. Another option 
extended to the University under this bill is the ability to select 
unsurveyed, public domain lands with the concurrence of the Secretary. 
These changes will substantially increase the pool of lands from which 
the University has to choose, are consistent with the intent of the 
1929 Act to provide lands which are capable of generating revenues, and 
are expected to lead to final resolution of this seven-decade old 
entitlement.

Title II--ANCSA Provisions
    S. 1466 expedites the land transfer process to ANCSA corporations 
by giving the BLM the tools to complete ANCSA entitlements. Currently, 
when an Alaska Native corporation's existence has been terminated under 
State law, all BLM land transactions with the corporation are 
suspended. Title II provides a mechanism for BLM to transfer lands by 
giving terminated corporations two years from the date of enactment to 
become reestablished. If this does not occur, then the bill directs the 
BLM to transfer the remaining entitlement to the appropriate Regional 
Corporation. The bill also establishes deadlines by which Regional 
corporations must complete assignments of acreages to villages (so-
called ``12(b) lands''). The legislation also allows village 
entitlements established by ANCSA (so-called ``12(a) lands'') and 
acreage assigned by Regional Corporations to villages to be combined, 
which will expedite adjudication, survey, and patent of all village 
lands. In addition, the bill permits the BLM to ``round up'' final 
entitlements to encompass the last whole sections. Thus, under the 
bill, it will no longer be necessary for BLM to survey down to the last 
acre, which often requires more than one field survey season to 
accomplish.
    The bill also accelerates the completion of ANCSA conveyances by 
amending ANCSA (section 14(h)) to allow for the completion of the 
conveyance of certain cemetery and historical sites, as well as other 
critical conveyances. Under ANCSA, regional corporations will not know 
their final acreage entitlements until the BLM has completed the 
adjudication and survey of nearly 1,800 individual cemetery and 
historical sites. S. 1466 provides options for the rapid settlement of 
these regional entitlements, an issue of critical importance to 
Regional corporations. In establishing an expedited process, we would 
like to work with the Committee on amending Section 14(h) to ensure 
that the bill addresses concerns of Alaska Natives regarding potential 
location errors, waiver of regulations, and related matters.

Title III--Native Allotments
    Finalizing Native allotment applications is essential to the 
completion of the entire land transfer program. Numerous requests for 
reinstatement of closed Native allotment applications; allegations of 
lost applications; and amendments of existing applications to change 
land descriptions have profound impacts on all land conveyances, not 
just the ongoing adjudication of an individual Native allotment 
application.
    S. 1466 finalizes the list of pending Native allotments and the 
location of those allotments. It does so by establishing a final 
deadline after which no applications will be reinstated or 
reconstructed and no closed applications will be reopened. It also 
prohibits applicants and heirs from initiating any further amendments, 
thus fixing the location of the claim. Without some means of finalizing 
the list of allotment applications and locations, it will be extremely 
difficult for the BLM to complete the land transfers, the State and 
ANCSA landowners will have no certainty that their title is secure, and 
selection patterns surrounding allotment applications will be difficult 
to finalize and patent.
    The bill also addresses instances where allotment claims are for 
lands no longer in Federal ownership. S. 1466 expedites recovery of 
title from both the State and ANCSA corporations by streamlining the 
current procedures. It permits ANCSA corporations to negotiate with the 
allotment applicant in order to provide substitute lands to the 
claimant for lands the corporation would prefer not to reconvey. The 
State has had this authority for over 10 years (P.L. 102-415, Oct. 14, 
1992). Under the bill, a deed also can be tendered to the United States 
for reconveyance to an applicant, without requiring the BLM to do 
additional field examinations to meet Department of Justice rules for 
land acquisition.

Title IV--Deadlines
    In order to complete the land transfers by 2009, the bill 
establishes sequential deadlines for the prioritizing of selections. 
The bill staggers the deadlines and allows six months between them for 
Native Village Corporations, Native Regional Corporations, and, the 
State of Alaska, in that order. These six-month periods allow the 
entities that are next in line to know the final boundaries of the 
preceding entity.

Title V--Hearings & Appeals
    S. 1466 directs the Secretary to establish a hearings and appeals 
process to issue final Department of the Interior decisions for all 
disputed land transfer decisions issued in the State, and authorizes 
the hiring of new staff to facilitate this work. While the Department 
is already acting to expedite decisions on all business before the 
Office of Hearings and Appeals, and in particular to quickly address 
older cases, a process dedicated to resolving Alaska land transfer 
disputes will facilitate the conduct of hearings and the issuance of 
decisions.

Title VI--Report to Congress
    Finally, S. 1466 requires the BLM to report to Congress on the 
status of conveyances and recommendations for completing the 
conveyances.

            S.1421, ALASKA NATIVE ALLOTMENT SUBDIVISION ACT

Background
    The purpose of the Federal statutory restrictions placed on Alaska 
Native allotments and restricted Native townsite lots is to protect 
Alaska Native owners against loss of their lands by taxation, and to 
provide oversight of any alienation of such lands for the owners' 
protection. Generally, these lands are administered according to 
Federal law, particularly as it may relate to the issuance of rights-
of-way, easements for utilities, and other public purposes. An 
unintended consequence of these protections is that when an owner of 
restricted land attempts to subdivide and sell his property or dedicate 
certain portions for easements and other public purposes, all in 
compliance with state or local subdivision platting requirements, it is 
not clear whether those dedications constitute valid acts under Federal 
law. This uncertainty has worked to the disadvantage of owners of 
restricted land who wish to subdivide and develop their property.
    The economic advantages of subdivision in compliance with State and 
local law have led a number of Alaska Native allotment owners over the 
past two decades to survey their property for subdivision plats, and to 
submit the surveys to local authorities for approval. These plats 
typically contained Certificates of Ownership and Dedication, whereby 
the land owners purported to dedicate to the public land for roads, 
utility easements, or other public uses. Platting authorities, the 
public, individual subdivision lot buyers, and the restricted land 
owners relied on these dedications and the presumption that they were 
binding and enforceable.
    However, in late 2000, the Department of the Interior's Office of 
the Solicitor recognized that this presumption was not clearly 
established in law. In response, the Bureau of Indian Affairs and 
realty service providers authorized under the Indian Self-Determination 
Act sought to overcome the doubts raised about the validity of past 
dedications. Their solution relied on the Secretary of the Interior's 
authority under Federal law to grant rights-of-way and easements 
identical to those interests dedicated on the face of existing 
subdivision plats.
    This approach, however, has proven to be unsatisfactory. It creates 
substantial extra work for government and realty service providers. 
More importantly, the State of Alaska and some affected Boroughs are 
unwilling to apply for or accept title to such rights-of-way on behalf 
of the public. These units of government understandably prefer that 
public rights be established by dedication, rather than direct title 
transfers, which might saddle the local government with maintenance or 
tort liability. Without the participation of platting authorities and 
governments, it is difficult to resolve uncertainties as to the 
validity of dedications on previously filed and approved subdivision 
plats. Moreover, it is impossible for Native owners of restricted lands 
who, in the future, may wish to subdivide their land in accordance with 
State or local platting requirements, to do so without first 
terminating the restricted status of their lands.
    S. 1421 would authorize Alaska Native owners of restricted 
allotments, subject to the approval of the Secretary of the Interior, 
to subdivide their land in accordance with State and local laws 
governing subdivision plats, and to execute certificates of ownership 
and dedication with respect to these lands. The bill also would confirm 
the validity of past dedications that were approved by the Secretary. 
Ratifying past dedications will benefit all concerned parties, 
including the buyers and sellers of lots in affected subdivisions, the 
State and local governments, the Bureau of Indian Affairs, realty 
service providers under the Indian Self-Determination Act, and the 
general public. All of these entities have in the past relied upon the 
legal validity of dedications to the public which appeared on the face 
of existing plats.
    Enactment of S. 1421 would remove an obstacle to pending lot sales 
and re-sales in existing subdivisions. It would pave the way for other 
Native owners of restricted lands to create new subdivisions in 
compliance with State or local platting requirements without forcing 
them to choose between the financial benefits of compliance with State 
law and the retention of protections against taxation and creditor's 
claims inherent in the restricted status of their lands. This feature 
is clarified by Section 5(b) of S. 1421, which provides that Federal 
restrictions against taxation and alienation are only lost by 
compliance with State or local platting requirements as to those 
specific interests expressly dedicated in the Certificate of Ownership 
and Dedication.
    The Department recommends amending Section 4(a)(1) of the bill to 
read, ``subdivide the restricted land for rights-of-way for public 
access, easements for utility installation, use and maintenance and for 
other public purposes, in accordance with the laws of the--'' to make 
this section consistent with the findings in Section 2(a)(b)(c) of the 
bill. Additionally, the Department recommends adding a new section to 
the bill authorizing the promulgation of regulations to clarify how S. 
1421 would be implemented.

             S. 1354, CAPE FOX LAND ENTITLEMENT ACT OF 2003

Background
    Cape Fox Corporation (Cape Fox) is an Alaska Native Village 
Corporation organized pursuant to ANCSA for the Native Village of 
Saxman, which is located near Ketchikan. Like the other nine southeast 
villages recognized for benefits under section 16 of ANCSA, Cape Fox 
received an entitlement of 23,040 acres. All other ANCSA Village 
Corporations were restricted from making selections within two miles of 
the boundary of home rule cities. Cape Fox, however, was uniquely 
affected by the original terms of ANCSA as it was restricted from 
making selections within six miles of the boundary of the city of 
Ketchikan. As a result of the six-mile restriction, the only land 
within Cape Fox's core township available for conveyance is a 160-acre 
parcel which the corporation does not want. Under current law, the BLM 
must transfer this parcel to Cape Fox and charge the acreage to the 
corporation's ANCSA entitlement.
    The requirement for village corporations to take title to all 
available land within their core township is a basic component of 
ANCSA, applicable to all village corporations. Another basic component 
of the original settlement is that conveyances to village corporations 
will be restricted to lands withdrawn for that purpose under the 
original terms of ANCSA.
    S. 1354 waives an existing statutory requirement that would compel 
Cape Fox to use a portion of its entitlement under ANCSA for a remote 
160-acre mountainous parcel that is of no economic value to the 
corporation. The bill also directs the BLM to convey to Cape Fox, the 
surface estate to a 99-acre tract in the Tongass National Forest that 
was unavailable to the corporation under the original terms of ANCSA; 
the subsurface estate of this tract is to be transferred to Sealaska 
Corporation.
    Because S. 1354 extends benefits to Cape Fox that were not 
available under the original terms of ANCSA, the Department has 
carefully considered the merits of this proposal and agrees that the 
Cape Fox situation is sufficiently unique to warrant the legislative 
remedy that is provided in S. 1354. However, the Department is 
concerned about the conveyance deadline in Sec. 4(c) of the bill. If 
Cape Fox decides to accept title to the lands offered, the BLM must 
issue conveyance documents within six months of receiving the 
corporation's selection. Current regulatory requirements for ANCSA 
conveyances take longer than the six months--typically closer to 12 
months--and must include identification of easements to be reserved, 
issuance of an appealable decision, and public notice of that decision. 
Unless the legislation specifies otherwise, or the ANCSA conveyance 
process is changed before then, the 99-acre tract must be conveyed 
under existing ANCSA regulations. The six month timeframe also could be 
unnecessarily disruptive to BLM conveyance transactions that are in 
progress.
    The Department of the Interior recommends that Sec. 4(c) of the 
bill be modified to read as follows: ``TIMING--The Secretary of the 
Interior shall complete the interim conveyances to Cape Fox and 
Sealaska under this section as soon as practicable after the Secretary 
of the Interior receives notice of the Cape Fox selection under 
subsection (a).'' The Department understands the economic importance of 
this conveyance to Cape Fox and will transfer title as quickly as 
possible in concert with other existing land transfer plans and 
commitments.
    Adjustment of Cape Fox's selections and conveyances of land under 
ANCSA requires adjustment of Sealaska Corporation's (Sealaska) 
selections and conveyances to avoid the creation of an additional split 
estate between National Forest System surface lands and Sealaska 
subsurface lands. Since this adjustment concerns lands administered by 
the U.S. Department of Agriculture, the Department of the Interior 
defers to the Secretary of Agriculture on a position on this aspect of 
S. 1354.

                               CONCLUSION

    In closing, I would like to reiterate the Department's support for 
the intent of all three of the bills addressed at today's hearing. If 
enacted, S. 1466 will go a long way in expediting land transfers and 
promoting the proper management of all lands and resources in Alaska; 
S. 1421 will allow Native Alaskans to subdivide their restricted 
allotment lands with the approval of the Secretary; and S. 1354 
addresses circumstances that are unique to Cape Fox and Sealaska. We 
look forward to working with the Committee on these bills. I will be 
happy to answer any questions you may have.

    Senator Murkowski. Thank you, Mr. Bisson, and the next 
person on the first panel is Mr. Bob Loeffler, director of the 
Division of Mining, Land and Water.
    Mr. Loeffler.

 STATEMENT OF BOB LOEFFLER, DIRECTOR, DIVISION OF MINING, LAND 
       AND WATER, ALASKA DEPARTMENT OF NATURAL RESOURCES

    Mr. Loeffler. Good morning, Senator Murkowski. On behalf of 
the State of Alaska, I would like to thank you and the 
subcommittee for holding this hearing in Anchorage.
    My name is Bob Loeffler. I'm the director of Division of 
Mining, Land, and Water within the Department of Natural 
Resources within the State of Alaska. The Alaska Department of 
Natural Resources manages the land owned by the State of 
Alaska. On behalf of the State, I offer the following comments 
in support of all three bills before the subcommittee here 
today.
    I would like to begin with S. 1466, Alaska Land Transfer 
Act. With appropriate funding, it will speed up land transfers 
to individual Native allottees, Native corporations, and the 
State of Alaska, and in this case, provided a tremendous 
opportunity for Alaska and Alaskans.
    I would like to take this opportunity to describe the 
problem this bill solves and why it is important for Alaskans. 
During the statehood debate almost 40 years ago, Alaska was 
given a large land entitlement, because it was through the 
ownership and development of those lands that the new State 
would gain the revenue needed to sustain itself as a State. 
This far-sighted prediction has in fact proven right.
    In Alaska, unlike many other States, it is the State and 
Native land that provides most of the development and revenues 
for administration of the State and for the jobs and income for 
Alaskans. Unfortunately, another statehood era prediction has 
also become true. During the statehood debate, then Senator 
Robertson of Virginia called these lands the promised land of 
Alaska. And, 44 years later, the land base remains, in part, a 
promise.
    Let me explain. As you summarized earlier, we have yet to 
receive our full entitlement. The land grant to the State of 
Alaska provided for the eventual transfer of 105 million acres 
to the State. To date, we received tentative approval of 90 
million acres, about 45 of which have been surveyed and 
patented. These lands have provided Alaska with land for the 
largest State park system in the Nation, provided us with rich 
oil fields of the North Slope, which have produced billions of 
dollars to the State treasury and individual Alaskans through 
the permanent fund, and have enabled the State to transfer 
hundreds of thousands of acres into private ownership through 
State land sale programs and through municipal entitlements. 
The remaining 15 million acres to be transferred will add 
additional base for the State's wealth and prosperity, and 
survey of the remaining 60 million acres will better allow the 
State to use and develop its resources.
    However, this bill benefits not just the State, but others. 
Alaskans, including individual Native allottees, Native 
corporations and citizens have waited too long for these land 
transfers to be completed. The deadline for filing Native 
allotments ended 32 years ago. Yet thousands of allottees still 
wait their approval. Similarly, 32 years after the passage of 
the Native Claim Settlement Act, the Native corporation still 
await transfer of almost a quarter of their entitlement.
    The remaining entitlement for all this and the lack of 
conveyance puts a significant impediment to the use and 
development of these lands. Clearly, allottees cannot use land 
they don't own. In addition, the entitlement remaining for the 
State and Native corporations has an important chilling effect 
on the development of some areas of the State. Secure land 
title is a fundamental prerequisite for development, and 
confusion about the eventual owner puts any significant 
exploration or investment on hold until ownership is 
established.
    Resolving these entitlements will make lands available for 
individual Alaskans for their use and enjoyment, and to the 
corporations and the State to encourage the use and development 
of Alaska's lands. This promise, our promised land, if you 
will, is a promise that unfortunately we believe the present 
system cannot keep. This legislation has the goal of completing 
these transfers by the 50th anniversary of the State, but those 
who have worked in State government who watched this conveyance 
process know the current system will never resolve the 
remaining entitlements, or at least not within our lifetime or 
the lifetime of our children.
    I say this not to disparage the good work of BLM employees, 
or by Department of the Interior. Rather, interactions of 
complicated entitlements of allottees, ANCSA corporations and 
the State, with the lingering, outdated public land orders, 
combined with insufficient funding do not allow BLM and the 
State to take a comprehensive look at any area. And as a 
result, this has resulted in a system where we cannot untangle 
with complex web in any timely or reasonable fashion.
    Let me explain, because I believe this to be an important 
point. Native corporations cannot finalized their conveyance 
priorities until they know what they are able to receive; that 
is, until the region's Native allotment program is finished. 
The State's entitlement cannot be fulfilled until ANCSA 
entitlements are finished. All these are complicated by 
lingering and outdated public land orders. The current system 
and funding level does not allow BLM to comprehensively address 
the problems in any one area. This complexity requires 
different thinking, different ways of doing business, and 
additional funding to finish the entitlements.
    There is one additional provision that I would like to call 
your attention. Section 209 provides the Secretary of the 
Interior specific authority to modify the land orders. The 
State supports this provision. Most of the withdrawals would be 
affected by this provision were established in the 1970's, so 
the Federal land could be studied for various conservation and 
public purposes. When Congress enacted ANILCA in 1980, it 
resolved the issue what Federal lands would be retained for 
these purposes. Yet nearly a quarter of a century later, most 
of the withdrawals remain and hinder the use and transfer of 
much of BLM land in Alaska. We believe that the way the bill 
propose to lift these would provide assurances the conveyances 
will be lifted with appropriate environmental safeguards.
    One key element of this legislation not before the 
committee today is the funding to accomplish this accelerated 
land program. Without increased funding, including funding to 
BLM and State ANCSA corporations, the program will fall short 
of this objectives of this bill. I do note, however, providing 
the funding needed for a concentrated program is less than will 
be received without this bill and without a concentrated effort 
to finalize conveyances by 2009. It takes significantly less 
funding to concentrate and finish the conveyances with this 
deadline with this bill than it does to string along the 
conveyances for decades.
    So with that, we wholeheartedly support this bill. And I 
would like to take the opportunity to quickly reference the 
other two bills under consideration.
    Senator Murkowski. Mr. Loeffler, you have exceeded your 5 
minutes. I don't want to short change the----
    Mr. Loeffler. I believe my testimony is in the record. I 
would just note that we do support the other two bills. I'm 
happy to answer any questions you may have.
    [The prepared statement of Mr. Loeffler follows:]

   Prepared Statement of Bob Loeffler, Director, Division of Mining, 
         Land and Water, Alaska Department of Natural Resources

    Good morning, Senator Murkowski. On behalf of the State of Alaska, 
I thank you and the Subcommittee for holding this hearing in Anchorage. 
My name is Bob Loeffler. I am the Director of the Division of Mining, 
Land and Water within the Alaska Department of Natural Resources. The 
Alaska Department of Natural Resources manages the land owned by the 
State of Alaska.
    On behalf of the State of Alaska, I offer the following comments in 
support of all three bills before the Subcommittee this morning: S. 
1421, the Alaska Native Allotment Subdivision Act; S. 1354, the Cape 
Fox Land Entitlement Act; and S. 1466, the Alaska Land Transfer 
Acceleration Act.
           s. 1466, the alaska land transfer acceleration act
    I would like to begin with S. 1466, the Alaska Land Transfer 
Acceleration Act. With appropriate funding, it will speed up land 
transfers to individual Alaska Native Allottees, to Alaska Native 
Corporations, and to the State of Alaska, and in this way provide a 
tremendous opportunity for Alaska. I would like to take this 
opportunity to describe the problem this bill helps solve, and why it 
is important to Alaska.

The Promised Land
    During debate about Alaska's statehood, Alaska was given a large 
land entitlement, because it was through the ownership and development 
of those lands that the new state would gain the revenues needed to 
sustain itself as a state. That far-sighted prediction was proved 
right. In Alaska, unlike many other states, it is the state and Native 
land that provides the development and revenues for administration of 
Alaska, and for the jobs and income for Alaskans.
    Unfortunately, another statehood-era prediction has also come true. 
During the statehood debate, then-Senator Robertson of Virginia called 
these lands the ``promised land.'' And, 44 years later, the land base 
remains, in part, a promise. Let me explain.
A Promise Yet to Keep
    The land granted to the state through the Statehood Act and other 
federal laws will result in the eventual transfer of over 105 million 
acres to the state. To date, 90 million acres have been transferred, 
about 45 million acres surveyed and patented. These lands have provided 
Alaskans with land for the largest state park system in the Nation, 
provide us with the rich oil fields of the North Slope that have 
brought billions of dollars into the state treasury and individual 
Alaskans through the Permanent Fund, and have enabled the state to 
transfer hundreds of thousands of acres into private ownership through 
state land sale programs. The remaining 15 million acres to be 
transferred will further add to the state's wealth and prosperity, and 
survey of the 60 million acres will better allow the state to use and 
develop its land and resources.
    Alaskans including individual Native allottees, Native Corporations 
and the citizens of the State have waited too long for these land 
transfers to be completed. For example, the deadline for filing most 
Native Allotments was 32 years ago, in 1971, yet thousands of allottees 
still are waiting for final approval of their Allotments. Similarly, 32 
years after the passage of the Alaska Native Claims Settlement Act, 
Native Corporations still await transfer of almost 10 million acres, 
and survey and patent to many million more acres. Finally, the state 
was promised over 105 million acres at Statehood in 1959, yet we still 
await the transfer of 15 million acres and the survey and patent of 
nearly 60 million acres.
    This remaining entitlement to all of these groups puts a 
significant impediment to the use and development of the lands. 
Clearly, allottees cannot use land they do not yet own. In addition, 
the entitlement remaining for the State and Native Corporations has an 
important chilling effect on development in some areas of the state. 
Secure land title is a fundamental prerequisite to development. 
Confusion about the eventual owner puts any significant exploration or 
investment on hold until the ownership is established. There are areas 
of the state where exploration or development--with its benefits of 
revenue to the state, and jobs and income for our citizens--awaits 
resolution of ownership. In some cases, even land ownership questions 
involving a small portion of an area can cause a delay on use of 
neighboring lands. In this way, the remaining entitlement has an effect 
that is disproportionably larger than the remaining acreage.
    Resolving these entitlements will make land available to individual 
Alaskans for their personal use and enjoyment, and to the Corporations 
and the State to encourage the use and development of Alaska's lands.
A Promise That the Present System Cannot Keep
    This legislation has the goal of largely completing these land 
transfers by 2009, the fiftieth anniversary of needed for a 
concentrated program is less than that required without the bill and 
without a concentrated effort to finalize conveyances by 2009. That is, 
it takes significant less funding to concentrate and finish the 
conveyances by 2009 than it does to string along small conveyances for 
decades. This latter method--which we employ today--inevitably requires 
BLM and state staff to continually revisit the same area of the state, 
and to continually re-adjudicate the same areas. It is expensive and 
slow. Implementing this program will cost additional money in the short 
run, but save money in the long run. We urge the Committee and the 
Senate to provide full funding for this program.

A Final Note
    S. 1466 is a long and complicated bill. It is complicated because 
the land conveyance process is inherently complicated. We expect that 
as others review the bill, they may find problems or opportunities not 
addressed. We look forward to working with the committee to address 
these issues.
    I would like to turn my attention to the remaining two bills before 
the subcommittee today.

               S. 1354, THE CAPE FOX LAND ENTITLEMENT ACT

    The state wholeheartily supports S. 1354, the Cape Fox Land 
Entitlement Act. Because of the rules of the Alaska Native Claims 
Settlement Act and the unique location of the Cape Fox Corporation's 
original land grants near Ketchikan, Cape Fox was denied the ability to 
acquire the quality lands as was envisioned under ANCSA. This 
legislation would enable the Cape Fox Corporation, the Sealaska 
Regional Corporation, and the U.S. Forest Service to pursue land 
exchanges that would resolve this inequity and make land available for 
use and development. The exchange will benefit the development of the 
Kensington mine project.
    In closing, I again wish to express that State of Alaska's support 
for the legislation under consideration by the Subcommittee. Thank you 
coming to Alaska and providing Alaskans the opportunity to speak to you 
today.

    Senator Murkowski. We have included all the comments and 
written testimony in the record. I'm sorry to cut you off, but 
I do want to make sure we have ample time for hearing people 
who will testify.
    I do have some questions for the panel. Beginning with you 
first, Mr. Rey, since you started off. You mentioned the 
valuation process. This has been an issue that has generated 
some discussion, certainly. What kind of valuation process will 
the Forest Service use to ensure that the exchanged lands are 
of equal value as required in our legislation?
    Mr. Rey. As drafted, the legislation provides that that 
determination of equal value be made by the Secretary of 
Agriculture. At the same time, Cape Fox and Sealaska 
Corporation will have the opportunity to present estimates of 
value and supporting information to the Secretary. And as I 
indicated, if you accept our suggestion, we will use standard 
appraisal practices and mechanisms that we typically include in 
all land exchanges.
    If the pool of non-Federal lands available in S. 1354 is 
not sufficient to equalize values of the better lands selected 
by Cape Fox Corporation, Cape Fox and the secretary will 
mutually identify additional Cape Fox lands to equalize value.
    So I think the process will be mutual in the sense that 
both sides of the exchange will have to agree on evaluations 
and will have to agree that they are fair market values that 
are being applied.
    Senator Murkowski. It's also my understanding that the 
lands that are being exchanged by the Forest Service are, I 
guess, heavily saddled by Federal mining claims. How will this 
affect the Forest Service management?
    Mr. Rey. One of the benefits of the exchange for the Forest 
Service is that we're simplifying our management regime in two 
ways. The one you mentioned is that many of the lands that will 
be acquired by either Sealaska or Cape Fox have mining patents 
on them. So it will no longer be necessary for us to facilitate 
these patents or arrange our management regimes around making 
sure that we recognize those patents. That will be for the 
patentholders and the Cape Fox Corporation or Sealaska 
Corporation to work out.
    The second area that simplifies our management is once of 
the principle attractions to the exchange to the Federal 
Government is that we will resolve some split estate issues 
that currently burden our management of lands where we own the 
surface and Sealaska owns the subsurface.
    Senator Murkowski. Can you go a little bit more into detail 
on the split estate problems? What kind of specific problems 
are we causing with the present structure and situation?
    Mr. Rey. Where there are split estate issues, we always 
have the question of whether there is some potentially 
locatable mineral development or other subsurface resource that 
the owner of the subsurface estate wishes to develop, and if 
there is that potential, we have to accommodate it and provide 
access, reasonable access, to that development. Where we can 
unify our estate, then we're no longer burdened with trying to 
do that, and we can manage our lands much more freely than 
would otherwise be the case.
    Senator Murkowski. You'd mentioned in your testimony some 
significant benefits to the Government, and I'm assuming that 
this is what you're referring to?
    Mr. Rey. That is correct.
    Senator Murkowski. Would you just elaborate a little bit 
more on that?
    Mr. Rey. The benefit to the Federal Government is it 
simplifies our management regime considerably and allows us to 
block up ownership in areas where we will own both the surface 
and the subsurface resources. The benefit to Cape Fox is to get 
to finalize its allotment, and the benefit to Sealaska, 
comparable to the benefit to us, is that it resolves with us 
some of their split estate issues.
    The benefit to the local community and southeast Alaska's 
economy, I think this exchange will also facilitate the 
development of the Kensington Mine project, and that project 
will result in significant job opportunities in southeast 
Alaska.
    Senator Murkowski. Thank you, Mr. Rey.
    Mr. Bisson, I'll go to you here.
    Mr. Bisson. Yes, Senator.
    Senator Murkowski. There are those who are concerned with 
the legislature that we have introduced regarding the 
conveyances relative to the committee grant selections that 
possibly this opens the door to new selections. Can you clarify 
exactly what this section does? This is section 101 of the 
legislation.
    Mr. Bisson. As you know, Senator, section 6(a) of the 
Alaska Statehood Act created two categories of community grant 
entitlements. The State was allowed to take title to 400,000 
acres of land from the national forest system, and an 
additional 400,000 acres of lands from public remaining lands. 
This section does not increase the State's entitlements in 
either category, but it allows selections which would have 
failed because they were too small to be conveyed, and confirms 
the validity of previously conveyed tracts that are less than 
160 acres in size.
    The Forest Service has previously approved all the national 
forest community grants application that are currently on file 
with the BLM, and the State has petitioned for approval 
selection to receive the full entitlements, so it's not 
creating new entitlements.
    Senator Murkowski. Could you explain what kind of 
situations concerning these reversionary interests, how that is 
going to apply and whether or not this will impact the 
management of conservation system units?
    Mr. Bisson. Within the State, under other authorities, 
there have been previous transfers of land to the State and to 
various communities where the Federal Government retained a 
reversionary interest in the land in case the land wasn't used 
for the purpose it was given. This provision allows the State 
to clarify its title to some of these parcels by using a 
portion of its remaining entitlements to select the Federal 
Government's reversionary interest in properties that are 
already owned by State or owned by political subdivisions of 
the State.
    Generally speaking, these properties are located in and 
adjacent to cities, towns and villages. I don't have a 
statewide list of the properties currently available, but we 
can provide that to your staff if you wish. As the provision is 
written, it would allow the State to select reversionary 
interests in property that are located in some conservation 
system units. However, these parcels are relatively small. They 
are already developed, generally, and they are within villages 
in some of these units, so they are within communities that are 
current.
    Senator Murkowski. University lands, entitlements for the 
University of Alaska, I'm hearing that there may be some 
confusion in the legislation, specifically in section 105, that 
addresses the entitlements for the University of Alaska. Can 
you put on the record exactly what this does?
    Mr. Bisson. There is nothing in this bill that creates a 
new entitlement for the university. The provision in section 
105 enables us to complete the conveyances of 456 acres that 
everyone agrees is still owed to the university under an 
entitlement that Congress authorized in 1929. So there is no 
new entitlements there.
    Senator Murkowski. Let's see here, on the land transfer 
bill, some are saying that the BLM planning process provides 
the vehicle for releasing withdrawn lands. Can you explain why 
we need to release the lands?
    Mr. Bisson. I think, as Mr. Loeffler explained, you know, 
the land pattern in Alaska is very complicated, and through 
succeeding levels of legislation and succeeding withdrawals, 
there are residual withdrawals out there that once we complete 
these conveyances, when the Native allottees receive their 
lands, when ANCSA corporations receive their land, and when the 
State receives its land, there will be a number of parcels of 
residual BLM-managed public land that are still encumbered by 
these old segregations.
    What we're looking for is a relatively simple process to 
open these unencumbered land to the population of the public 
land laws. Once they are open, they would come under the 
requirements of our land use plan. They would be managed 
consistent with our existing plan. We would conduct NEPA 
analysis before we make any decisions on those lands. We just 
think at this point to go through a time-consuming process to 
open them to the laws is counterproductive, and we would 
certainly be open to working with the committee, with yourself 
and your staff if there are suggestions on how we can approve 
it to assure the public that we can address their concerns 
upfront, but we think we need this authority, and it will 
actually accelerate our ability to operate as we would in any 
other BLM Western State or any Western State in the country. 
Put us on the same footing.
    Senator Murkowski. Now, I know the answer to this question 
already, but I'd like you to put it on the record. Are Native 
allotments private land or Federal land and what about 
conservation system units?
    Mr. Bisson. Native allotments are private lands. They are 
subject to the certain restrictions under Federal law. Native 
allotments are privately-owned lands regardless of where they 
are located. If they are in a conservation unit, they are still 
private lands.
    Senator Murkowski. And, then, just to follow up on that, 
will the Native allotment subdivision act--you haven't touched 
on that as much as you have on conveyances--is this going to be 
implemented any differently in conservation system units?
    Mr. Bisson. I don't believe it will.
    Senator Murkowski. Thank you. I appreciate your comments 
and your testimony. Mr. Loeffler, you went into some great 
detail in terms of the failure to convey over a number of years 
since statehood, those lands promised to us--and I like the 
reference to the promised land. We do want to make sure that 
that promise is very true. How much in recent years has been 
transferred to the State?
    Mr. Loeffler. To go over the last 5 years, the State has 
had good years over the last 2 years. Received about 470,000 
acres this year, and about a quarter of a million the previous 
years. However, the previous 3 years, it was about 50,000 
acres. If you take a 5-year average, it would take about 85 
years to complete our entitlements. If you take just the 
average of the 2 good years, it would take approximately 40 
years to complete our entitlements at that rate.
    Senator Murkowski. So that bolsters your statement earlier 
that at the rate we're been going, we won't possibly make it 
your lifetime or possibly our children's?
    Mr. Loeffler. Yes, Senator.
    Senator Murkowski. Why is it important to resolve the 
Native allotments in order for the State to receive its title 
to its lands?
    Mr. Loeffler. Well, it's important for two reasons, 
Senator. The first, of course, is because the individual 
allottees are citizens of the State, and we believe it's 
important to get the land that is due them. But it's important 
for the overall transfer process, because if the allotment is--
the location is not in fact known, then it's difficult for us 
to prioritize our lands, knowing there is a hole somewhere.
    And let me give you one additional example. Seven years 
after we received title to land and then sold that land to an 
Alaskan, there was an allotment, if you will, that popped up in 
that area and put a cloud on the title 17 years after we sold 
it to an Alaskan. So as a result of the cloud on the title, we 
had to offer our citizens the chance to refund and give the 
land back, because we owe them, when we sell them land, true 
fee-simple interest, so we had to refund the sale of a fee 
simple interest to these individuals, and we eventually 
resolved with the allottee, but these problems will linger in 
the future, and so it's important to resolve them once and for 
all so they don't happen again.
    Senator Murkowski. How do you envision that this process 
will work if we're able to pass this legislation? Obviously, 
our goal is very ambitious to expedite the process so that by 
the year 2009 the transfers are complete. How do you see it 
working within the State?
    Mr. Loeffler. Well, I have really developed this through my 
discussions with Henri Bisson and staff. I would like to 
compliment them on working with the State and others to develop 
this. I imagine working through region by region, and in each 
region, taking the people and the funding necessary to take a 
final critical look at the allotments, the ANCSA conveyances, 
and then the State transfers. So by being able to get the 
critical mass of interest in one area, you can finish it once 
and for all, and then move on to the next region, rather than 
the way we do it which is doing a little bit here, a little bit 
there, come back here and readjudicate it, do a little bit 
there. So it's my expectation that we will do it that way, but, 
of course, it really is by the BLM process.
    Senator Murkowski. But you're prepared to assist in 
whatever you need to do to make the process work?
    Mr. Loeffler. Yes, Senator.
    Senator Murkowski. You mentioned a little bit in your 
testimony earlier the problems that are associated when we have 
withdrawals that are lingering and hanging. Can you give some 
specific examples as to what we're dealing with in the State, 
things that can't move forward, projects that can't happen? 
What is the real life example of the situation we're at here in 
Alaska with not having such a substantial amount of our land 
conveyed and these withdrawals hanging out there?
    Mr. Loeffler. Well, let me give you an example of resource 
development projects that are sort of awaiting land transfers. 
One example is the North foothills area where there are 
hundreds of thousands of acres. This is portion of the North 
Slope that belongs to neither the State, nor the ASRC, Alaska 
Slope Regional Corporation, so neither can lease them for oil 
because of competing land selections.
    The foothills area is one of the most promising interior 
areas for the oil and gas industry, and the area had to be 
excluded from our recent State land sales. Once those 
selections are clean up, I expect the leases to go forward 
quite quickly. That's an example of just plain competing 
selections. It's not--that one did not involve lingering 
withdrawals. I can give you some examples of those, if you 
wish.
    Senator Murkowski. Give me one.
    Mr. Loeffler. Okay. One good example of a lingering 
withdrawal is hydroelectric power. The Federal Government 
established those withdrawals to make sure the hydroelectric 
projects were kept in Federal ownership for future development, 
but in some areas, Bradley Lake near Homer, we have already 
built a hydroelectric plant. We have been unable to get the 
land transfers because of the withdrawals.
    So section 1 of 4 of this legislation would allow us to get 
the land that we own that we need to manage and there is no 
purpose for that withdrawal. That didn't hold up Bradley Lake. 
Places where they have held up some work is, for example, in 40 
Mile. In the 40 Mile, the original withdrawal was established 
to figure out where the wild and scenic river was. BLM then 
went through a public process to establish that wild and scenic 
river, and it's within the 2-mile linear strip of the 
withdrawal.
    What you have, then, is little bits outside, within the 
original corridor, but are outside the wild and scenic river 
that are withheld from State ownership, and it's a historic 
mining district, and yet miners can't work or stake claims in 
there. So with respect to that portion of the promised land, if 
you will, it's time to let our acreage go, so to speak.
    Senator Murkowski. Very good. Thank you. I appreciate your 
testimony and your willingness to respond to the questions. I 
also appreciate your time here this morning. At this time, I 
would like to call up those that will sit on our second panel. 
Mr. Nelson Angapak, Mr. Peter Van Tuyn, Rosa Miller, Mr. Steve 
Borell, Mr. Bruce Borup, and Mr. Tim Verrett. Good morning. 
Welcome to the subcommittee. I appreciate you're accepting our 
invitation to join us here morning. I will go down my list in 
the order that I have them here. No particular order other than 
that's the way it is on my schedule. So we will begin first 
with Mr. Nelson Angapak from the Alaska Federation Of Natives. 
Mr. Angapak, welcome and good morning.
    Mr. Angapak. Good morning. Welcome to Alaska.
    Senator Murkowski. Before you begin, I will remind 
everyone, we do have the timer up here on the dais, and we will 
let you know when you're getting close to time, but we will 
help you with that, too. Thank you. Go ahead, Mr. Angapak.

  STATEMENT OF NELSON N. ANGAPAK, JR., VICE PRESIDENT, ALASKA 
                     FEDERATION OF NATIVES

    Mr. Angapak. Thank you very much for the opportunity to 
testify on these three bills. For the record, we want to thank 
you for keeping the record of this hearing open for at least 2 
weeks. We would also like to go on record to request that the 
committee complete the field hearings in the State of Alaska in 
the immediate future on at least S. 1466 and S. 1421. I do 
believe if this request is granted that the inclusivity of the 
statements that was made earlier will be fruitful.
    Senator Murkowski, in 1974 just before the AFN convention, 
when Kurt McVee was the State Director of BLM, in a public 
hearing I stated that I did not think that during my lifetime 
that the promises of land entitlements pursuant to the Alaska 
Native Claims Settlement Act would be fulfilled. Further I 
stated that I did not think that it would be fulfilled during 
the lifetime of my children or possibly my grandchildren. S. 
1466 gives me some hope that what was promised pursuant to 
ANCSA might be fulfilled during my lifetime.
    This is a good bill. We agree in principle and support in 
principle the intent of S. 1466. We do have, however, have some 
concerns with it, and they are identified in my written 
statement. For example, section 211, procedures related to 
dissolving of lapsed Native corporations. This provision in 
effect makes the regional corporations trustees for the lands 
for the land of dissolved Native village corporations. Our 
recommendation is that this provision be modified in such a 
manner that the regional corporations would serve in the role 
of trustee for these lands, be provided with some form of 
indemnity from any and all forms of litigation, because of the 
role that they provide as trustees for this lands that 
otherwise should have gone to the lapsed village corporations.
    Perhaps the most challenging provision of this bill is 
title 3. It removes some of the existing rights that are 
presently enjoyed by the Native allottees. It is our hope that 
before this bill is enacted that we will have an opportunity to 
get together with your staff to look for ways and means of 
correcting those. For the record, AFN supports the intent of S. 
1354. It is our hope that bill will favorably act.
    And, lastly, on S. 1421, this is a very sensitive bill from 
the standpoint of the fact that we within the Native community 
have some concerns of our lands being sold to third parties. 
However, I think S. 1421 creates a balance between the 
sensitivity of selling land to third parties, because this bill 
provides a tool for Bureau of Land Management, BIA, and all the 
trustees that if in fact a Native individual allottee decides 
that they are going to sell their land to third parties, this 
bill provides the tool for those who are acting as trustees on 
behalf of that allottee.
    Because I do believe if this bill is passed, it will allow 
the trustees to find ways and means of negotiation on the best 
interests of the Native allottee. So I believe that this bill 
does create that balance. And thank you very much. I'll be open 
for questions.
    [The prepared statement of Mr. Angapak follows:]

     Prepared Statement of Nelson N. Angapak, Sr., Vice President, 
                      Alaska Federation of Natives

                              INTRODUCTION

    Good morning, Honorable members of the Subcommittee on Public Works 
and Forests of the U.S. Senate Committee on Energy and Natural 
Resources, ladies and gentlemen:
    For the record, my name is Nelson N. Angapak, Sr. Vice President, 
Alaska Federation of Natives (AFN). As the Honorable Lisa Murkowski 
knows, AFN is a statewide Native organization formed in 1966 to 
represent Alaska's 100,000+ Eskimos, Indians and Aleuts on concerns and 
issues which affect the rights and property interests of the Alaska 
Natives on a statewide basis.
    On behalf of AFN, it's Board of Directors and membership, thank you 
very much for inviting me to submit my comments regarding S. 1466, a 
bill to facilitate the transfer of land in the State of Alaska, and for 
other purposes; S. 1421, a bill to authorize the subdivision and 
dedication of restricted land owned by Alaska Natives; and S. 1354, a 
bill to resolve certain conveyances and provide for alternative land 
selections under the Alaska Native Claims Settlement Act related to 
Cape Fox Corporation and Sealaska Corporation, and for other purposes. 
My comments will concentrate on S. 1466, and in particular, Title II of 
this bill.
    We applaud the efforts of the Honorable Lisa Murkowski in resolving 
the decades-old land issues in the state of Alaska.
    I ask that this written statement and my oral comments be 
incorporated into the record of this public hearing. I further request 
that the record of this hearing remain open for at least two weeks so 
that representatives of the Alaska Native Community may submit their 
comments regarding these bills as well.

                         ANCSA CORPORATE LANDS

    Pursuant to the terms and conditions of the Alaska Native Claims 
Settlement Act (ANCSA), enacted into law on December 18, 1971, Congress 
authorized transfer of 44.5 million acres of land back to the Alaska 
Natives through their ANCSA Corporations. ANCSA promised, in part, that 
the settlement of the claims of the Alaska Natives against the federal 
government ``should be accomplished rapidly, with certainty, in 
conformity with the real economic and social needs of Natives . . .'' 
\1\
---------------------------------------------------------------------------
    \1\ Sec. 2(b) of P.L. 92-203
---------------------------------------------------------------------------
    To date, none of the village and regional ANCSA corporations 
created pursuant to ANCSA has received their full land entitlements. 
One of the reasons of this delay is the lack of funds needed for the 
survey of the lands selected by the ANCSA corporations.

                                S. 1466

    S. 1466, a bill to facilitate the transfer of land in the State of 
Alaska, and for other purposes, is a step in the right direction in 
resolving unresolved land issues impacting the State of Alaska, the 
ANCSA corporations and the Native Allotees. We agree in principle on 
the intent of S. 1466.
    In introducing S. 1466, the Honorable Lisa Murkowski correctly 
stated that Bureau of Land Management's (BLM) ``land conveyance program 
in the State of Alaska is the largest and most complex of any in United 
States history. For many years, BLM's primary goal was to convey title 
to unsurveyed lands to the State and Native Corporations by tentative 
approval and interim conveyance, respectively. This management practice 
allowed the State and Native Corporations to manage their lands, 
subject only to the survey of the final boundary.
    This legislation will accelerate release of lands for conveyance to 
Native corporations and the State of Alaska. It will complete land 
patterns to allow land owners to more efficiently manage their land. It 
will clarify that certain minerals can be transferred to Native 
landowners. And frankly, split estates can be minimized. The University 
will be given the opportunity to select the remaining Federal interests 
in lands the University already owns, that will likely produce economic 
opportunities not presently available under this land lock.'' \2\
---------------------------------------------------------------------------
    \2\ Congressional Record Senate; page 59975, July 25, 2003.
---------------------------------------------------------------------------
    We are looking at S. 1466 as a tool for BLM that will enable it to 
substantively complete the federal government's conveyance obligations 
to ANCSA corporations, hopefully by the end 2009.
    The following is our section-by-section comments on Title II of S. 
1466:

Sec. 201. Land Available After Selection Period
    This section enables BLM to use Federal lands that were not 
available during the original ANCSA selection period, but are now 
available, to fulfill village corporation entitlements. We recommend 
that the implementation of this section be done in such a way that BLM 
and the ANCSA corporations affected will work cooperatively to the 
mutual satisfaction of both parties.

Sec. 202. Combined Entitlements
    This section addresses several issues critical to the fulfillment 
of ANCSA. AFN supports this section with the following comments:

          1. Establishes a deadline by which Regional Corporations must 
        complete reallocation under section 12(b): We recommend that 
        BLM works very closely With tire regional corporations who are 
        and will be impacted by this mandate.
          2. This section also authorizes BLM to merge 12(a) and 12(b) 
        land selections of the village corporations that were timely 
        submitted by December 18, 1974 and December 18, 1975. We 
        recommend that BLM works closely with the regional and village 
        corporations in the implementation of this section.

Sec. 203. Conveyance of Last Whole Section of Land
    This provision applies to lands selected under section 12 of ANCSA, 
but not to village corporations in Southeast, Alaska whose original 
entitlements were 23,040 acres. We support its intent.

Sec. 204. Discretionary Authority To Convey Subsurface Estate in Pre-
        ANCSA Refuges
    This section gives the Secretary of the Interior discretionary 
authority to permit subsurface conveyance in place beneath village 
lands within certain refuges as an alternative to the mandatory 
creation of split estates. The U.S. Fish & Wildlife Service (FWS) must 
work closely with the affected regional corporations in the 
implementation of this provision to the mutual satisfaction of all the 
parties affected by this provision.

Sec. 205. Conveyance of Cemetery Sites and Historical Places
    We are still trying to understand this section so we are not 
prepared to make specific substantive comments on this section as it is 
written. The best we can to at this time is to recommend that Congress 
considers the extension of the application of existing federal statutes 
that provide protection of historical and cultural sites to 14(h)(1) 
ANCSA land selections by adopting legislative language that would 
authorize such protection.

Sec. 206. Approved Allotments
    This section codifies the document entitled ``Audit Summary ANCSA 
14(h)(6) Acreage dated July 1983'' and found in 48 Federal Register 
37086, August 16, 1983. Fixing the total acreage at 184,663 acres wilt 
create another definite number that will make it easier to accelerate 
the finalization of ANCSA land entitlements pursuant to Sec. 14(h) of 
ANCSA.

Sec. 207. Allocations Based on Population
    This section offers ten of the twelve Regional Corporations three 
options for final resolution of 14(h)(8) entitlements in the following 
fashion:

          1. A Regional Corporation may elect to take its percentage 
        share of a fixed acreage amount as settlement for a final 
        14(h)(8) entitlements. The 255,000 acres set by this 
        legislation will allow those corporations wanting to settle 
        their 14(h)(8) entitlements to do so now.
          2. The second method is that each corporation who chooses to 
        do so is authorized to enter into direct negotiations with the 
        Secretary to settle its entitlement independent of other 
        corporations.
          3. The last method is the status quo.

    These provisions allow the regional corporations with methodologies 
through which they may finalize their Sec. 14(h)(8) land entitlements, 
again a good provision.

Sec. 208. Authority To Withdraw Lands
    This section authorizes the Secretary to withdraw lands that would 
allow the regional corporations to satisfy their land entitlements 
except for those lands located within the boundaries of the 
conservation system units and defined in section 102 of ANILCA. We 
support this provision as well.

Sec. 209. Bureau of Land Management Land
    Sec. 17(d)(1) of ANCSA gave the Secretary of the Interior an open-
ended authority to withdraw lands for further study and to open such 
lands through any classification or reclassification. At the very 
least, this section would provide the Secretary with specific authority 
to close or to open lands to certain uses or appropriations. Congress 
should consider the merits of closing the open ended authority provided 
to the Secretary of the Interior pursuant to Sec. 7(d)(1) of ANCSA and 
this provision seems to do that.

Sec. 210. Automatic Segregation of Land for Underselected Village 
        Corporations
    This section streamlines the current process for fulfilling the 
land entitlements of the underselected villages. This section 
authorizes the appropriate federal agencies and the underselected 
village corporations with the right to negotiate a final agreement as 
to exactly which lands shall be conveyed to the village corporations to 
satisfy corporation's land entitlement. This process, when implemented, 
must involve the regional corporations where the underselected village 
corporations are located.

Sec. 211. Procedures Relating to Dissolved or Lapsed Native 
        Corporations
    This section provides a mechanism for the completion of ANCSA 
entitlements even when the benefiting corporation is not currently 
operational or no longer in existence. One of the most unique aspects 
of ANCSA is that the direct beneficiaries are State-chartered 
corporations. This process, for the most part, will apply to ANCSA 
village corporations. The ANCSA village corporations, from time to 
time, when they do not meet the Alaska state corporate and securities 
statute find themselves dissolved or lapsed. Such corporations can be 
reestablished as ANCSA corporations by meeting the State of Alaska's 
corporate statutes.
    Pursuant to this section, the ANCSA Regional Corporation would 
assume the responsibility for administering the assets, including land 
holdings, of a lapsed or dissolved ANCSA village corporation.
    AFN recommends that the ANCSA regional corporations who would serve 
in the role of trustee for the land entitlements of such dissolved or 
lapsed ANCSA corporations be provided with indemnity or immunity from 
any and all forms of litigation for the role they played as land 
trustees for the lapsed/dissolved ANCSA village corporations located 
within their boundaries.

Sec. 212. Settlement of Remaining Entitlement
    This section authorizes the Secretary and the ANCSA corporations to 
resolve remaining land entitlements of the ANCSA corporations through 
good faith negotiations between the parties involved.

Sec. 213. Conveyance to Kaktovik Inupiat Corporation and Arctic Slope 
        Regional Corporation
    Kaktovik is a Native village that was entitled to a total of four 
townships of land pursuant to Sec. 14(a) of the Alaska Native Claims 
Settlement Act. Sec. Sec. 12(a)(1) of ANCSA restricted Kaktovik to 
select only three townships in the Arctic National Wildlife Refuge. 
This section would authorize the Secretary of the Interior to satisfy 
the land entitlements of Kaktovik in accordance to the terms and 
conditions of ANCSA.
    AFN supports, in principle, the terms and conditions of Title II of 
S. 1466. We made some recommendations in some of the sections of Title 
II, with this in mind; it is our hope that our recommendations will be 
incorporated into this bill insofar as this provision is concerned.
    Our additional comments relative to ANCSA land selections are as 
follows:

          1. Section 107 of Title I, EFFECT OF FEDERAL MINING CLAIMS, 
        authorizes the Secretary to convey former mining claims within 
        State selected lands to the State of Alaska with no charge to 
        Alaska's land entitlements. AFN recommends that the former 
        mining claims located within the boundaries ANCSA selected 
        lands be conveyed to the ANCSA Corporations with no charge to 
        ANCSA land entitlements much the same way that is would be 
        authorized pursuant to Section 107 of Title I.
          2. Section 108 of Title I, LANDS MISTAKENLY RELINQUISHED OR 
        OMITTED, allows the State to seek permission to correct 
        clerical errors made in previously-filed selection applications 
        or relinquishments. The State must demonstrate to the 
        satisfaction of the Secretary with management jurisdiction over 
        the lands that a mistake was made. This provision eliminates 
        the need to employ a lengthy, cumbersome, and potentially 
        costly exchange process to correct obvious errors. AFN 
        recommends this concept be extended to the ANCSA corporations 
        as well.

                      TITLE III--NATIVE ALLOTMENTS

    Title III of S. 1466 provides the federal government with ways and 
means of streamlining the current procedures on the adjudication of 
Native Allotments. We support the intent of Title III; but at the same 
time, we have some serious concerns that we would like to bring to the 
attention of the committee concerning this title.
    First and foremost, we understand that Congress has a 
constitutionally guaranteed plenary right to legislate issues impacting 
the American Indians and the Alaska Natives. While recognizing this, we 
would also remind the committee that Congress has a duty of loyalty to 
Indians and therefore ``must act with good faith and utter loamy to the 
best interests of the Indians'' as stated in Seminole Nation v. U.S., 
316 U.S. 286, 296-97 (1942). In other words, when enacting legislation 
pursuant to its power to legislate Indian affairs, Congress must 
fulfill its fiduciary obligation toward American Indians and the Alaska 
Natives.
    The framers of the U.S. Constitution made certain that Congress has 
fiduciary responsibility over American Indians, including the Alaska 
Natives. Therefore, Congress must look at Title III of S. 1466 with a 
heightened scrutiny because it has a potential of violating equal 
protection guarantees of the Alaska Natives afforded them by the U.S. 
Constitution.
    Please allow me to address some of the major concerns we have that 
merit closure scrutiny. They are as follows:

    1. Existing right: applicants (or heirs) now have the right to 
amend the description of their allotments if the government placed the 
allotment in tile wrong location or the allotment does not contain the 
correct number of acres.
    Section 304(f)(5) eliminates the applicants' right to amend even if 
the government caused the error.
    2. Existing right:applicants (or heirs) have the right to get 
closed allotment cases reopened/reinstated if BLM closed the case in 
error or in violation of the applicants' due process rights (did not 
give notice or opportunity for a hearing).
    Section 304 (f)(1) and (f)(3) eliminates all rights to reopen/
reinstate closed allotment eases.
    3. Existing right: applicants (or heirs) have the right to file 
reconstructed applications in cases where the government lost their 
original application.
    Section 304 (f)(1) eliminates all rights to file reconstructed 
applications.
    4. Existing right: applicants (or heirs) who have already filed 
reconstructed applications have a right to a hearing to prove they 
filed an application.
    Section 304 (f)(2) eliminates this right and instead allows BLM to 
reject an already filed reconstructed application unless the BLM's file 
already contains the following information:

          a. the name of the person who took the original application 
        and the agency that person worked for;
          b. the month and the year the original application was 
        submitted;
          c. the specific address where the original application was 
        submitted;
          d. two affidavits attesting to the applicants' qualifying 
        use; and
          e. two affidavits from non-family members attesting that they 
        know the original applications were filed.

    5. Existing right: applicants that relinquished a part or all of an 
allotment unknowingly or involuntary have the right to have their case 
reopened to determine if the relinquishment is valid.
    Section 304 (f)(3) eliminates this right.
    6. Existing right: applicants (or heirs) have a right to a hearing 
to determine certain factual issues in their allotment cases and the 
hearings are now conducted by impartial judges from the Office of 
Hearings and Appeals under rules set by federal regulations.
    Section 501 eliminates this right and instead establishes a new but 
undefined process for hearings that may or may not be governed by 
existing federal regulations and may be conducted by any employee of 
the Department of the Interior including BLM employees.
    7. Existing right: applicants (or heirs) have a right to appeal 
BLM's decision to the Interior Board of Land Appeals under rules 
governed by federal regulations.
    Section 501 eliminates this right and instead establishes a new 
appeals process that may or may not be governed by existing federal 
regulations and may be decided by any employed of the Department of the 
Interior including BLM employees.
    For the purposes of these comments, we identified the existing 
rights that the Alaska Native Allotees presently enjoy and then 
identified the sections of S. 1466 that eliminates these existing 
rights. AFN recommends that this committee amend the above referenced 
sections so that the existing rights of Alaska Native applicants will 
be restored. To that end, AFN offers assistance in crafting amendments 
to S. 1466 that will ensure that Congress continues to fulfill its 
fiduciary obligation toward Alaska Native allotment applicants.
        title iv--final priorities; conveyance and survey plans
    This title, in part, mandates the final prioritization of village 
and regional corporation land selection by setting a 36 month for 
village corporations and a 42 month deadline for regional corporations 
by which final priorities must be filed after the enactment of this 
legislation. It also sets a limit on remaining overselections by the 
ANCSA Corporations. AFN has one major concern over this title.
    The ANCSA regional corporations selected their land entitlement 
necessarily based, in part, on the natural resources potential of the 
lands withdrawn for their land selections; and they made their land 
selections in a timely basis. Over the years, the federal government 
has requested that the ANCSA regional corporations reduce their 
overselections by relinquishing some of their selected lands. The 
regional corporations are willing to comply with such requests; but 
they are also caught between rock and a hard place, not of their 
choosing or the choosing of the federal government.
    For example, some of the land selections of Ahtna, Inc. are totally 
surrounded by what is now Wrangell St. Elias National Park. Ahtna, at 
one point in the past, attempted to gain access to their selected lands 
located within this National Park but experienced difficulties in 
obtaining one. Wrangell St. Elias National Park is managed pursuant to 
the rules and regulations that govern this type of a National Park. 
Because of this and other factors, the managers of this National Park 
could not, in good conscience, allow Ahtna access to their selected 
lands so they could do additional natural resources exploration before 
relinquishing some of their land selections. Ahtna, as a for profit 
regional corporation, wants to keep its land selections that has the 
greatest potential in natural resources for the benefits of its 
shareholders.
    This committee should consider adding legislative language to this 
draft legislation that mandates that the managers of conservation 
system units such as Wrangell St. Elias National Park provide access to 
regional corporations such as Ahtna to their selected lands for the 
purposes of additional natural resources exploration so that they might 
reduce their overselections as mandated by this bill. Short of adopting 
such language, this committee should consider exempting the ANCSA 
regional corporations from relinquishment their lands selections to a 
limit set by this section until such time a reasonable solution to this 
issue is arrived at.

            TITLE V--ALASKA LAND CLAIMS HEARING AND APPEALS

Sec. 501. Alaska Land Claims Hearings and Appeals
    This title and section authorizes the Secretary of the Interior to 
establish a specialized hearings and appeals process in Alaska to issue 
final decisions for the Department of the Interior for disputed Alaska 
land transfer issues. AFN feels the key for the successful 
implementation of this provision would be the judges who would be hired 
by the Secretary for this purpose. We hope that these judges will be 
those familiar with ANCSA, Alaska Statehood Act, and the Native 
Allotment statutes. Since ANCSA and the Native Allotments statutes are 
considered Indian Legislation, some of the judges hired to staff this 
specialized hearings and appeals process must be familiar the 
implementation of Indian legislation.

                               TITLE VII

Sec. 701. Authorization of Appropriations
    AFN recommends that this provision be amended so that it authorizes 
and appropriates necessary sums as are necessary to carry out the 
purposes of this Act; otherwise, it may end up as an unfunded mandate 
from Congress to the Departments of Agriculture and Interior.
    This concludes my written statement; and I would be willing to 
answer any questions the committee may have of me concerning this 
testimony.
    On behalf of AFN, thank you very much for giving the opportunity to 
submit this statement.

    Senator Murkowski. Thank you. I appreciate your testimony 
this morning. Let's next go to Mr. Steve Borell of the Alaska 
Miners Association.

      STATEMENT OF STEVEN C. BORELL, EXECUTIVE DIRECTOR, 
                ALASKA MINERS ASSOCIATION, INC.

    Mr. Borell. Good morning, Senator Murkowski, and thank you 
very much for the opportunity to testify on these bills, and 
thank you also for taking an initiative to introduce these two 
very important pieces of legislation, and by that I'm referring 
firstly to S. 1354.
    We wish to go on record in support of this legislation. 
This act will accomplish important land exchanges that will 
result in added economic opportunity for Cape Fox Corporation, 
city of Juneau, and all of southeast Alaska will also benefit 
from this legislation as it adds to the economic diversity of 
the region.
    The other bill we would like to comment on is S. 1466. This 
issues of the land status and access to land in Alaska has been 
a major topic of certain Alaskans since before statehood. 
Indeed, land status and the difficulty of the average citizen 
to obtain land in the territory of Alaska was a major force in 
the drive for Alaska to become a State. Through the Statehood 
Act, the new State was promised it could select and obtain 
title to approximately 104 million acres from the total of 365 
million acres. However, this promise has been slow to be 
realized.
    This has not been the fault of any agency, but due rather 
to the size and complexity of the task and several issues 
including the settlement of Native land claims and subsequent 
debate over Federal conservation system units. We're pleased 
that S. 1466 will address and correct many of the laws to allow 
transfer of lands in a more straightforward and simplified 
manner. However, we have three major issues of concern and 
several other suggests for change, and I would just like to 
address these major interests and concerns at this point. The 
first major concern involves lingering withdrawals.
    If S. 1466 is to be of real value to the State of Alaska 
without hurting the long-term interests of the State, it is 
absolutely essential that the Federal lingering withdrawals--
lingering Federal withdrawals be removed so the State's top 
files will fall into place and the affective land be 
prioritized for conveyance to the State. Lingering withdrawals, 
also known, as mentioned by the previous speaker there, as 
outdated withdrawals are withdrawals for which the original 
purpose of the withdrawal no longer exists.
    All across Alaska, there are lingering withdrawals of 
various types. These lingering withdrawals must be removed at 
the earliest possible date so the State can evaluate and 
compare these lands with other selections to ensure that the 
highest value lands are conveyed to the State. The importance 
of removing these lingering withdrawals has been recognized by 
many individuals, including the 23rd Alaska State Legislature 
which passed House Joint Resolution No. 48 relating to Federal 
land withdrawal, which called for removal of these lingering 
withdrawals.
    Also, the BLM Alaska Resource Advisory Council passed a 
resolution calling for the removal of lingering withdrawals. It 
is appropriate that removal of these withdrawals become a part 
of this legislation. The second major concern deals with the 
proposed new authority of BLM to close lands for mineral entry. 
Section 209 includes a new authority for BLM to close lands 
both as part of a land planning process and also as it may 
desire with conditions or restrictions. This new authority to 
any agency is without precedent in this Nation and is not 
appropriate.
    Closing land to mineral entry is a major Federal action 
carrying with it some of very gravest possible consequences for 
the Nation. Mineral closures must occur only through a specific 
act of Congress to ensure that the needs of the Nation are 
probably considered. No lesser test is workable or appropriate 
considering the importance of the action. State of Alaska at 
one time allowed the Department of Natural Resources to close 
lands to mineral entry under State law, but this provision had 
to be changed because the agency could not control its appetite 
for closures.
    Many of millions of acres of State land were closed as part 
of land management plans with little justification and little 
consideration of the potential adverse importance on the future 
State and its economy. As a result, approximately 10 years ago, 
legislation--the legislature changed the act to allow not more 
than 640 acres to be administratively closed.
    This new authority is at the very heart of the attack 
against the Federal mining law. Former Senator Dale Bumpers of 
Arkansas, for him this very provision was a centerpiece of many 
bills that he introduced to change the law on numerous 
occasions. Senator Bumpers chided and even taunted Senators 
Stevens and Murkowski that all he wanted was the same provision 
in Federal law that Alaska had in its law; i.e., administrative 
closure. Thank you very much.
    [The prepared statement of Mr. Borell follows:]

      Prepared Statement of Steven C. Borell, Executive Director, 
                    Alaska Miners Association, Inc.

    Thank you, Senator Murkowski, for the opportunity to testify on 
these bills. Thank you also for taking the initiative to introduce 
these two very important pieces of legislation.

       S. 1354, CAPE FOX LAND ENTITLEMENT ADJUSTMENT ACT OF 2003

    We wish to go on record in support of this legislation. This Act 
will accomplish important land exchanges that will result in added 
economic opportunities for the Cape Fox Corporation. The City of Juneau 
and all of Southeast Alaska will also benefit from this legislation as 
it adds to the economic diversity of the region.

       S. 1466, THE ALASKA LAND TRANSFER ACCELERATION ACT OF 2003

Introductory
    The issues of land status and access to land in Alaska have been 
major topics of concern for Alaskans since before Statehood. Indeed, 
land status and the difficulty of the average citizen to obtain land in 
the Territory of Alaska was a major force behind the drive for Alaska 
to become a state. Through the Statehood Act the new State was promised 
it could select and obtain title to approximately 104 million acres 
from the total 365.5 million acres that make up Alaska. However, this 
promise has been slow to be realized.
    This has not been the fault of any agency but is due rather to the 
size and complexity of the task and several issues including settlement 
of the Native land claims and the subsequent debate over designation of 
federal conservation system units. Another factor is that land title 
issues are very detailed and not well understood by the general public. 
All this has been exacerbated by the fact that many of the requirements 
now in various laws were originally established for other states and 
circumstances and they do not fit Alaska's needs. We are pleased that 
S. 1466 will address and correct many of these laws to allow transfer 
of the lands in straight forward and simplified manner.
    However, we have identified three items of major concern and some 
other items that require changes to make this legislation workable.

                         ITEMS OF MAJOR CONCERN

    The three major items of concern involve lingering withdrawals, a 
proposed new authority for the Bureau of Land Management (BLM) to close 
lands to mineral entry and a proposed new forfeiture provision whereby 
the State of Alaska could be forced to forfeit land entitlement not yet 
conveyed.
    1. Lingering withdrawals--If S. 1466 is to be of real value to the 
State of Alaska, without hurting the long term interests of the State, 
it is absolutely essential that several lingering federal withdrawals 
be removed so the State topfilings can fall into place and the affected 
lands prioritized for conveyance to the State. Lingering withdrawals, 
also known as outdated withdrawals, are withdrawals for which the 
original purpose of the withdrawal no longer exists.
    All across Alaska there are lingering withdrawals of various types. 
The magnitude of this problem is not known and as recent as a few days 
ago the BLM was not able to provide a complete listing of these 
withdrawals and the total acreage affected by each. The amount of land 
covered by the lingering withdrawals has been estimated to be possibly 
several million acres. What is known is that some of the lands covered 
by lingering withdrawals have high potential for minerals and have been 
selected by the State of Alaska and/or Native Corporations. However, 
because these lands are withdrawn, they cannot be transferred to either 
the State or Native Corporations.
    Furthermore, these lingering withdrawals must be removed at the 
earliest possible date so the State can evaluate and compare these 
lands with its other selections to ensure that the highest value lands 
are conveyed to the State. This is especially true given the 
restrictive time limitation required for final prioritization.
    The importance of removing these lingering withdrawals has been 
recognized by many groups and individuals. The 23rd Alaska State 
Legislature passed House Joint Resolution No. 48, relating to federal 
land withdrawals, which called for removal of these lingering 
withdrawals. Also, the BLM Alaska Resource Advisory Council (RAC) has 
passed a resolution calling for removal of these lingering withdrawals.
    As stated previously, it is absolutely essential for the long term 
interests of the State of Alaska that these lingering withdrawals be 
removed before the State commits to any irrevocable conveyance 
decisions. It is appropriate that the lingering withdrawals to be 
removed as part of this legislation and that lists, maps and acreages 
of the withdrawals be developed to define the magnitude of the problem.
    2. Proposed new authority for the BLM to close lands to mineral 
entry--Sec. 209 includes a new authority for the BLM to close lands to 
mineral entry 1) as part of a land use plan, and 2) as it may desire, 
without any condition or restriction. To give this new authority to any 
agency is without precedent in this Nation and is totally unacceptable.
    Closing any land to mineral entry is a major federal action 
carrying with it some of the very gravest possible consequences for the 
Nation. Mineral closures must occur only through a specific direct Act 
of the Congress to ensure that the needs of the Nation are properly 
considered. No lesser test is workable or appropriate considering the 
importance of the action.
    The specific language of concern is in Sec. 209(a)(1) and in 
209(c).

          In 209(a)(1) the subsection reads in part ``(1) IN GENERAL--
        Notwithstanding revocation of a withdrawal under section 
        17(d)(1) . . . the Secretary may classify or reclassify any 
        land administered by the Bureau of Land Management in the State 
        to open or close the land to any form of appropriation or use 
        under the public land laws.'' The phrase ``or close'' must be 
        removed.
          In 209(c) the subsection reads in part ``LAND INCLUDED IN AN 
        APPROVED RESOURCE MANAGEMENT OR LAND USE PLAN--Land that is 
        included in an approved . . . may be opened or closed to 
        location and entry . . .'' The phrase ``or closed'' must be 
        removed.

    The State of Alaska at one time allowed the Department of Natural 
Resources to close lands to mineral entry under State law but this 
provision had to be changed because the agency could not control its 
appetite for closures. Several million acres of State land were closed 
as part of land management plans with little justification and with 
little consideration of the potential adverse impacts on the future of 
the State and its economy. As a result, approximately 10 years ago the 
Legislature changed the law to allow not more than 640 acres of land to 
be administratively closed to mineral entry. If a larger area is to be 
closed, the closure must be approved by the Legislature and signed by 
the Governor.
    This new authority proposed in Sec. 209 is at the very heart of the 
attack against the General Mining Law that has occurred over the past 
20 or more years. For former Senator Dale Bumpers of Arkansas this very 
provision was the centerpiece of his many bills to change the Mining 
Law. On numerous occasions Senator Bumpers chided and even taunted 
Senators Stevens and Murkowski that all he wanted was the same 
provision in federal law that existed in Alaska State law, i.e., 
administrative closure to mineral entry. Given the recent behavior of 
the previous Administration in Washington, DC, such a provision would 
surely have been used to close nearly all public lands in this entire 
country.
    The impact of this proposed new authority would go far beyond the 
borders of Alaska. Such a provision would, over time, be applied 
throughout the country and our well-founded fears of the previous 
administration would be realized.
    3. Proposed new land forfeiture provision--Sec. 404(e) includes a 
new provision whereby the State of Alaska could, under a certain set of 
circumstances, be forced to forfeit land entitlement promised in the 
Statehood Act. This subsection states that ``If the State fails to 
relinquish a selection under paragraph (1), the Director shall reject 
the selection''. This subsection does not give the Director any 
discretion whatsoever and would result in forfeiture of land 
entitlement promised to the State of Alaska in the Statehood Act. This 
forfeiture provision must be removed.
    Other Items (In the order they appear in S. 1466, not by priority)
    4. Removal of reversionary interests--Sec. 103 to remove various 
reversionary interests, including those referenced regarding the 
University of Alaska, is very important and will greatly simplify the 
complex land issues facing the BLM and the State.
    5. Power site and hot spring withdrawals--Sec. 104 to address power 
site and hot spring withdrawals will greatly simplify dealing with 
these withdrawals. It is especially important that the requirement to 
petition Congress for private relief legislation be removed as is being 
proposed.
    6. Mining claims--In Sec. 107(b)(2)(A) the statement needs to be 
clarified to read ``(A) shall not include more than 1,280 contiguous 
acres of land per conveyance;'' (New words in italic.)
    7. Mistakes and omissions--Sec. 108 is very important and is 
essential for this piece of legislation to work effectively.
    8. Judicial review--Sec. 209(a)(2) regarding judicial review should 
be moved to a new subsection (d) so it applies to the entire Sec. 209.
    9. Need to be certain that lands will be opened--In Sec. 209(b) the 
BLM is given the authority that it ``may'' open 17(d)(1) withdrawals 
that are not otherwise withdrawn or reserved. This needs to be changed 
to ensure that these lands are indeed opened and provide this 
certainty. With new words in italic and removed words [bracketed] we 
recommend that the phrase be changed to read ``. . . but not otherwise 
withdrawn or reserved, [may be] shall be opened, without environmental 
review, to all forms of appropriation . . .'' To ensure proper public 
notification it may be necessary to specify publication in the Federal 
Register contingent upon completion of some other actions. However, 
waiting to open these d(1) withdrawals until after completion of the 42 
months (3.5 years) allowed in Sec. 403(a) is not soon enough. Some 
other condition must be identified to determine the date by which the 
d(1) withdrawals shall be opened.
    10. Definitions needed--In Sec. 404 the terms Irrevocable 
priorities, Topfiled priorities and Revocable priorities need to be 
defined and examples given to ensure that everyone understands what 
these terms mean and the consequences of assigning these priorities to 
a given area of land.
    11. Insufficient time for State to set priorities--In Sec. 404 the 
State has only 180 days (6 months) from notification to file its 
selection priorities for the Regional Conveyance and Survey Plan areas. 
This is not enough time. The State must have more time and must be able 
to see selection priorities for all Regional Conveyance and Survey Plan 
areas at the same time. If the State cannot carefully evaluate all the 
areas at the same time it will not be able to effectively prioritize 
its selections.
    12. Financial assistance--In Sec. 404(8)(2) it needs to be 
clarified that the State will receive funds for the evaluation and 
prioritization of the lands that become available as d(1) withdrawals 
are removed.
    13. Administrative law judges--Sec. 501 establishes a hearings and 
appeals process and recognizes the need for administrative law judges. 
This is very important. The current caseload for the IBLA is very large 
and it would be impossible to obtain timely decisions through the 
current IBLA. The administrative law judges need to be located here in 
Alaska and allowed to focus on Alaska issues.

    Senator Murkowski. Thank you, Mr. Borell. Next let's go to 
Mr. Peter Van Tuyn, Trustees for Alaska. Good morning and 
welcome.

        STATEMENT OF PETER VAN TUYN, TRUSTEES FOR ALASKA

    Mr. Van Tuyn. Good morning. I thank the subcommittee and 
the Senator for inviting me here today. I focus my comments on 
S. 1466 and provide them on behalf of the full spectrum Alaska-
based and national conservation organizations, some of which 
also asked me to introduce into the record their statements, if 
I may. This act is of great concern to the conservation 
community. While the announced goal of the act's proponents is 
to provide the prominent plan is a good one, the act goes 
beyond addressing just this issue.
    S. 1466 is an extremely complicated and broad piece of 
legislation. Broader, in fact, than the public statement of its 
purpose. Its provision excludes the public from the newly 
established land conveyance process and goes well beyond 
existing land entitlements to provide new entitlements. 
Inexplicably, the act goes even further by providing nearly 
unfettered authority to the Secretary of the Interior to change 
land use on literally millions of acres of land in Alaska, all 
without public or judicial overview and without disclosure of 
potential environmental impacts or impacts on subsistence.
    This massive piece of legislation, nearly 70 pages in 
length, was proceeded by little public discussion of the full 
range of problems it seeks to rectify. One reason for this is 
there has been little or no public discussion of the cause and 
scope of the current land transfer problem. Our first 
recommendation, therefore, is that this discussion occur in an 
open and public manner. Traditional vehicles exist to do this. 
One, we appreciate the opportunity here today to talk about it.
    Another one, given the Department of the Interior is an 
obvious driver of this legislation, doing much of the leg work 
to prepare it, is to have an administrative analysis prepared 
by the Department of the Interior and use that as a vehicle for 
discussion. Furthermore, complex provisions of the act defy 
easy explanations and raise questions about the on-the-ground 
effect of them. For example, how many acres of land with CSUs 
are affected or potentially affected by this act? Where 
specifically are these lands located; in which parks, refuges 
and wilderness areas? How much will or could State entitlement 
increase under this act? How much will or could the Native 
regional corporation entitlements increase under this act? 
Could the Department of the Interior address the status or 
validity of R.S. 2477 rights-of-way under this act?
    The answer to these and other fundamental questions are 
critical to an understanding of this act, and, therefore, it is 
critical that they be provided in a full and timely manner. All 
that said, what can be understood about S. 1466 is that it 
could affect public lands in Alaska in significant and damaging 
ways. While responding to the State's cry of, let my acres go, 
may be important, this act goes beyond that goal. For many of 
the Federal decisions it covers, it eliminates public and 
judicial review, sanctions ignorance of such decisions on the 
environment and subsistence, and significantly changes the land 
patterns, uses, and protective procedures that Congress 
deliberately established for certain areas.
    I will touch on just a few provisions of the act to 
illustrate my point. Section 201 authorizes the Secretary to 
waive acreage limits on conveyances within refuges. Section 204 
gives the Secretary discretion to waive pre-ANCSA refuge land 
selections.
    Section 207 declares 255,000 acres to regional 
corporations' selective remaining entitlements under 14(h)(8), 
whereas, only last year, BLM, after extensive analysis, 
estimated it to be only 180 to 200,000.
    Section 209, I find myself in agreement with Mr. Borell, 
perhaps for the first time. This has the authority for BLM to 
open and close lands without any public review, judicial 
review, and without opportunity for public comment.
    Finally, section 213 appears only to be intended as 
momentum to ill-advised efforts to drill for oil in the Alaska 
National Wildlife Refuge.
    In conclusion, S. 1466 proposes huge changes to existing 
laws, land entitlements, and land use policies. Please table 
this legislation and institute an open and public process to 
identify and rectify the legitimate barriers of land transfers. 
Thank you very much.
    [The prepared statement of Mr. Van Tuyn follows:]

       Prepared Statement of Peter Van Tuyn, Trustees for Alaska

                          SUMMARY OF TESTIMONY

    Thank you for the opportunity to present testimony before the 
Subcommittee on Public Lands and Forests on S. 1466, the Alaska Land 
Transfer Acceleration Act of 2003. This Act is of great concern to the 
conservation community, and, if passed, would likely result in the 
quick conversion of legitimately public resources to private ownership 
for little discernable public benefit.
    While the announced goal of the Act's proponents to finally resolve 
land ownership questions in Alaska is a good one, the Act goes well 
beyond addressing just this issue. Indeed, the extent of the federal 
government's difficulties in resolving land ownership issues using 
existing mechanisms is not at all clear. Without this fundamental 
information on the problem, crafting a solution is premature. 
Consequently, the introduction of S. 1466 is premature.
    S. 1466 is extremely complicated and broad in scope; broader in 
fact than the public statements of its purpose. Several of its 
provisions exclude the public from a newly established land conveyance 
process and go well beyond existing land entitlements to provide new 
entitlements. Inexplicably, the Act goes even further by providing 
nearly unfettered authority to the Secretary of the Interior to change 
land use on literally millions of acres of public lands in Alaska, all 
without public or judicial review, and without disclosure of 
environmental effects or impacts on subsistence.
    Until questions concerning these fundamental issues are answered by 
the Act's proponents, we can take no position in support of legislation 
addressing the worthy goal of settling land ownership issues in Alaska. 
Instead, we must oppose the movement of S. 1466 through Committee and 
Congress. Once the problems with the current system are thoughtfully 
identified and evaluated, we can all turn to the task of crafting 
solutions to them. Whether these solutions occur in the administrative 
or legislative arena, the conservation community is committed to 
assisting all interested parties in crafting fair and equitable 
solutions, solutions which resolve in a timely manner land ownership 
issues and do so with the integrity that comes from a fair and open 
public process using historical land entitlements as the guide.
    In this testimony, I first introduce myself, Trustees for Alaska, 
and the other organizations on whose behalf I submit this testimony. I 
then address the difficulty in evaluating a solution to a problem that 
has not clearly been identified. Third, I discuss the myriad of 
questions raised by S. 1466, questions which must be answered before 
next steps toward any solution can be taken. Finally, I review specific 
provisions of S. 1466 by way of illustrating significant problems with 
the Act, whether they be related to an evisceration of a public 
process, a seeming increase in land entitlement beyond that provided 
for in current law, an unwarranted and unreviewable change in land 
management policies, or which raise other concerns.*
---------------------------------------------------------------------------
    * For their assistance in preparing this testimony, I would like to 
thank Pam Miller of Arctic Connections, Becca Bernard, Bob Randall, 
Shocky Greenberg, Tom Ofchus and Steve Higgs of Trustees for Alaska, 
and Chip Dennerlein.
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                             INTRODUCTIONS

    I provide this testimony as an attorney with over a decade of 
experience working on public land issues in Alaska. I work with 
Trustees for Alaska, which is a non-profit environmental public 
interest law firm. In this capacity, I have counseled and represented 
numerous Alaska-based and national conservation organizations, Native 
tribes, villages and other entities. On behalf of these clients, I have 
litigated numerous lawsuits concerning public land in Alaska. I have 
counseled and represented clients on state and federal administrative 
decisions authorizing activities on and transfers of public land in 
Alaska. This broad range of experience has made me familiar with 
legislation concerning public land in Alaska.
    Trustees for Alaska itself was organized over a quarter century ago 
to provide counsel to protect and sustain Alaska's environment. 
Trustees has been involved in public land issues in Alaska since the 
approval and construction of the Trans-Alaska Pipeline System across 
federal and state lands. Indeed, there have been few significant 
environmentally-related public land issues in Alaska since Trustees' 
establishment on which Trustees has not been involved. I thus also 
bring to bear in this testimony Trustees' significant institutional 
knowledge of public land issues in Alaska.
    Alaska Center for the Environment is a non-profit environmental 
advocacy and education organization dedicated to the conservation of 
Alaska's natural resources. Since 1971, it has worked to promote sound 
environmental policy and programs in the south-central Alaska area and 
statewide. Its mission is to protect Alaska's natural ecosystems and 
quality of life through grassroots activism and public education. With 
8,000 dues-paying members from around the state, Alaska Center for the 
Environment works to build coalitions, educate the public, and promote 
citizen participation in government.
    The Alaska Wilderness League supports legislative and 
administrative initiatives to defend and protect the Arctic National 
Wildlife Refuge, Alaska's forests, and other Wilderness-quality lands 
in Alaska. Since 1993, the Alaska Wilderness League has worked to 
promote national and local recognition of Alaska's environment through 
public education, and it has provided leadership within the 
environmental community on selected issues that concern Alaska.
    The National Parks Conservation Association (NPCA) was founded in 
1919. With more than 400,000 members, NPCA is America's only private, 
nonprofit citizen organization dedicated solely to protecting, 
preserving, and enhancing the National Park System in the United 
States.
    The Natural Resources Defense Council (NRDC) uses law, science, and 
the support of more than 400,000 members nationwide to protect the 
planet's wildlife and wild places and to ensure a safe and healthy 
environment for all living things. NRDC's purpose is to safeguard the 
Earth: its people, its plants and animals and the natural systems on 
which all life depends. NRDC affirms the integral place of human beings 
in the environment.
    The Northern Alaska Environmental Center promotes conservation of 
the environment in Interior and Arctic Alaska through advocacy, 
education, and sustainable resource stewardship. The Northern Center 
focuses primarily on habitat protection through environmentally-sound 
land management and allocation decisions. Top concerns include securing 
Wilderness designation for the Arctic National Wildlife Refuge, 
defending the wilderness qualities' of national parks and refuges, 
protecting wild rivers, and promoting sustainable multiple uses of the 
Alaska boreal forest.
    The Sierra Club is America's oldest and largest grassroots 
environmental organization with 700,000 members working together to 
protect communities and the planet. The Alaska Chapter of the Sierra 
Club is the local grassroots arm of the national Sierra Club. The 
Alaska Chapter works to protect and restore the quality of the natural 
and human environment, and emphasizes wildlife protection and habitat 
conservation. Issues addressed by the Chapter include management of 
national parks, national wildlife refuges, and national forest 
wilderness, as well as offshore oil and gas exploration.
    The Wilderness Society (TWS) is devoted to preserving wilderness 
and wildlife, protecting America's prime forests, parks, rivers, and 
shorelines, and fostering an American land ethic. With its nationwide 
membership and a staff of lawyers, scientists, economists, and policy 
experts, TWS plays a leading role in a variety of natural resource 
issues. TWS has as its primary focus in Alaska environmentally sound 
management of federal conservation areas and the proper implementation 
of the Alaska Lands Act.

 THERE HAS BEEN LITTLE TO NO PUBLIC DISCUSSION OF THE CAUSE AND SCOPE 
                  OF THE CURRENT LAND TRANSFER PROBLEM

    S. 1466 is a massive, complex piece of legislation. And yet there 
has been exceedingly little public discussion of the problems it seeks 
to solve or justification for the large breadth of the Act. Thus, it is 
hard to discern exactly what problems the legislation is intended to 
address or why it needs to be so broad in language and effect.
    Senator Lisa Murkowski issued a press release when she introduced 
the legislation to the U.S. Senate. http://murkowski.senate.gov/
Press%20Releases/7-28.html. (visited August 5, 2003) (``Press 
Release''). In the release she did provide some helpful, albeit brief, 
explanation of what the legislation is intended to accomplish. Senator 
Murkowski also explained her view that the federal government has been 
too slow in completing land transfers to those with land entitlements. 
Yet, the press release does not explain the difficulties the federal 
government has encountered in completing these exchanges in a timely 
manner, nor tie the provisions in the Act to a particular problem.
    Notably, Senator Murkowski also appears to state that the Act is 
intended to address only land entitlements as they exist under current 
law. For example, Senator Murkowski stated that ``[u]ntil we accelerate 
the conveyance to both the State and Native corporations, Alaskans 
can't efficiently manage their land holdings meaning Alaskans continue 
to be hampered in our efforts to develop Alaska to produce a meaningful 
economy for our citizens.'' Id. (emphasis added). Nowhere in the 
release does the Senator suggest that the standards in the current 
system, designed to protect both the public and the eventual landowner, 
are the cause of any problem. Yet, as described in more detail below, 
the Act appears to create significant new land entitlements and 
diminish, or even eliminate, some of these important standards.
    The Department of the Interior's Bureau of Land Management (BLM) is 
the clear source of the Act. See ``A New Approach To The Finalization 
Of The Alaska Land Transfer Program.'' (BLM Powerpoint Presentation 
dated March 19, 2003). BLM's justification for the Act should be 
helpful in understanding its provisions and effect. In BLM's 
presentation, BLM states that it has ``developed a comprehensive 
strategic management plan for the completion of all Alaska land 
entitlements.'' (Id., Frame 2). Nowhere in the presentation does BLM 
suggest a new policy to either increase land entitlements or change the 
standards. Neither does it address the remarkable provision, discussed 
below, providing Interior sole and unreviewable authority to change 
land uses on literally millions of acres of land it manages in Alaska.
    By June of this year, the Interior Department had crafted the 
proposed legislation which ultimately became S. 1466. Draft 
Legislation, Alaska Land Transfer Acceleration Act of 2003, Transmitted 
from the DOI to Senate Energy Committee June 5, 2003. It is obvious in 
reviewing this draft, as well as S. 1466 as ultimately introduced by 
Senator Murkowski, that its scope is expanded well beyond whatever 
purpose can be discerned from the public record.
    In fact, while not yet used in this context, traditional vehicles 
exist to explore problems and assist in the development of solutions, 
and these should be used here as well. For example, Congress could hold 
oversight hearings to evaluate the current land conveyance program and 
identify difficulties in its implementation. A full slate of 
recommended solutions--administrative and legislative if necessary--
could then be crafted.
    Moreover, the Department of the Interior could prepare an 
administrative analysis of its land conveyance program, its 
difficulties in implementing the program, and its proposed solutions. 
Indeed, this analysis could conform quite readily to the process for 
such federal actions required under the National Environmental Policy 
Act, thus efficiently moving the issue forward to an expeditious 
resolution.
    In fact, the reality that the Interior Department initially drafted 
the Act strongly counsels that it use the NEPA process for its 
continued involvement with the Act. Under NEPA, actions undertaken by 
federal agencies, including proposals for legislation, must undergo 
this process. 42 U.S.C. 4332(2)(C); see generally, Flint Ridge Dev. Co. 
v. Scenic Rivers Assn., 426 U.S. 776, 785-88, 96 (1976). The NEPA 
process serves two purposes: ``First, it should provide federal 
agencies with an environmental disclosure sufficiently detailed to aid 
in the decision whether to proceed with the project or program in light 
of its environmental consequences. Second, the statement will provide 
the public with information on the agencies' proposed action as well as 
encourage public participation in the development of that 
information.'' State of Alaska v. Carter, 462 F.Supp. 1155, 1159 (D. 
Alaska, 1978); see also Comment, Impact Statements on Legislative 
Proposals: Enforcing the Neglected Half of NEPA's Mandate, 7 Envtl. L. 
Rep. 10145 (1977).
    The White House's Council on Environmental Quality (CEQ) developed 
regulations on the implementation of NEPA to which the Courts grant 
substantial deference. See Andrus v. Sierra Club, 99 S.Ct. 2335, 2341 
(1979). These regulations define legislation developed by an agency as:

        A bill or legislative proposal to Congress developed by or with 
        the significant cooperation and support of a Federal agency. . 
        . . The test for significant cooperation is whether the 
        proposal is in fact predominantly that of the agency rather 
        than another source. Drafting does not by itself constitute 
        significant cooperation.

40 C.F.R. Sec. 1508.17; see State of North Dakota v. Andrus, 483 
F.Supp. 255, 260 (D.N.D. 1980) (``significant cooperation'' test 
satisfied when federal agency did ``leg work'' for legislative 
proposal).
    The Interior Department's work on S. 1466 would thus seem to fit 
squarely within these rules.
    A senator could also request that the Congressional Research 
Service (CRS) review and summarize the proposed legislation as 
currently drafted. Reports from CRS historically provide common sense 
interpretations of legislative issues and thus likely would shed light 
on the many questions surrounding S. 1466.
    Finally, to the extent that Senator Murkowski intends the Act to 
resolve land ownership issues in order ``to produce, a meaningful 
economy for our citizens,'' Press Release at 1, the facts do not appear 
to support the reality of that goal. As was discussed in the Anchorage 
Daily News just yesterday.

          There is no evidence that increasing the supply of private 
        land will stimulate Alaska's economy. Montana, North and South 
        Dakota, and Wyoming all share the dubious distinction of having 
        lots of private land per capita but chronically anemic 
        economies. Much as rain does not follow the plow, money does 
        not grow in wide-open spaces.

    Meiklejohn, No Shortage Of Private Land Here, Compass Piece, 
Anchorage Daily News (Page B-4, August 5, 2003). Notably, Alaska has 
more private land per person than any other state in the nation, with 
``more than 70 acres for every one of [its] 650,000 residents.'' Id.; 
see also Hull, Leask, Dividing Alaska, Institute of Social and Economic 
Research, UAA, www.iser.uaa.alaska.edu/landswebfiles/lands.pdf (visited 
August 5, 2003).

               THE SCOPE AND EFFECT OF S. 1466 IS UNCLEAR

    The complicated provisions of the Act defy easy explanation and 
raise questions which the Act's proponents should answer before this 
Act moves any further. The following are some, and yet by no means all, 
of these questions:
    How long has this proposed legislation been under consideration by 
Department of the Interior officials?
    What study has been undertaken to determine the specific steps 
needed to achieve the stated purposes of the act, to ``accelerate'' 
fulfillment of conveyances under the Alaska Statehood Act and the 
Alaska Native Claims Settlement Act (ANCSA)?
    What information about specific problems with land conveyances and 
difficulties in resolving disputes was provided by the DOI or its 
agencies that was considered in the drafting of this Act?
    What information was provided by Senator Murkowski and/or Senator 
Stevens that was used by the Department when it drafted the initial 
bill?
    What information has been provided to Senators Stevens or Murkowski 
regarding problems with land conveyances, including any such 
information for lands within the external boundaries of Conservation 
System Units (CSUs)? Act?
    How many acres of land within CSUs are affected or potentially 
affected by this?
    Where specifically are these lands located (e.g. in which Parks, 
Refuges, Wilderness areas)?
    Are there any ongoing land or boundary disputes between the State 
of Alaska and the United States concerning land within or near a 
National Wildlife Refuge, National Park or other CSU?
    How much will or could the State entitlement increase under this 
Act?
    How much will or could the Native regional corporation entitlement 
increase under this Act?
    How much will or could the Native village corporation entitlement 
increase under this Act?
    Could new land exchanges be considered during the negotiations 
authorized by the Act?
    Would new land exchanges need congressional approval if this Act is 
passed into law?
    Could the Department of the Interior address the status or validity 
of R.S. 2477 rights of way under this Act?
    Could the Department of the Interior resolve submerged land status 
or claims for navigable waters under this Act?
    On what lands for which the federal government currently retains a 
reversionary interest may the State file selections under this Act?
    On what lands may the University of Alaska file selections to 
fulfill its remaining entitlement under this Act?
    How much land may he converted to state land by the relinquishment 
of federal mining claims and conversion to state claims under this Act, 
and how much of this land would be charged against the State's 
entitlement?
    What is the overall cost of this Act to the United States?

  WHAT CAN BE UNDERSTOOD ABOUT S. 1466 IS THAT IT COULD AFFECT PUBLIC 
            LANDS IN ALASKA IN SIGNIFICANT AND DAMAGING WAYS

    As discussed above, we do not nearly have sufficient information to 
fully understand the purposes or implications of this complex Act. 
Nevertheless, serious problems with portions of the Act are beginning 
to emerge. While improving the land transfer process to achieve final 
resolution of land ownership issues is in everyone's interest, this Act 
goes well beyond that goal. For many of the federal decisions it 
covers, it eliminates public and judicial review, sanctions ignorance 
of the impacts. of such decisions on the environment or subsistence, 
and significantly changes the land patterns, uses, and protective 
procedures that Congress deliberately established for certain areas.
    Provisions illustrating these points are discussed below. While we 
certainly oppose these provisions, this discussion does not represent 
the sum total of our concerns. Indeed, our views are certain to evolve 
as more information on S. 1466 is revealed, the many questions are 
answered, and as we continue to analyze the Act.

Section 106
    This section authorizes the Secretary to negotiate an agreement 
with the State concerning any aspect of its remaining land entitlement. 
The issues that can be negotiated include, but do not seem to be 
limited to, the exact number and location of acres remaining to be 
conveyed to the State under its Alaska Statehood Act and University 
Lands Act entitlements; the priority of conveyances; relinquishment of 
selections that will not be conveyed; and the survey of exterior 
boundaries. This section, in effect, takes the completion of the 
State's land entitlement--including the exact number of acres left to 
be conveyed--out of the regular administrative process and subjects it 
to informal negotiations between the Federal and State governments. 
There is nothing in this provision or in any part of the Act that 
requires public involvement in these negotiated decisions, so the 
public could be left entirely in the dark as to the procedure to be 
used, the standards to be applied or the result to be reached.
    There may be some logic in allowing negotiations and agreements to 
finally resolve entitlement issues, but not if the process excludes 
public participation and other safeguards to rational decisionmaking. 
It is a mistake of historic proportions to give the Secretary 
unfettered discretion to informally resolve important questions of land 
transfer and entitlement. Indeed, laws such as the Administrative 
Procedures Act were put in place by Congress in direct reaction to the 
kind of arbitrary and capricious decisionmaking that can occur under 
provisions such as this. It is also unclear whether the negotiation 
authority in this provision is bounded by the restrictions that 
otherwise apply to State selections and conveyances under the Statehood 
Act, ANCSA, Alaska National Interest Lands Conservation Act (ANILCA), 
and other laws, such as limitations on conveyance of lands within CSUs.

Section 107
    This section provides an easier process by which federal mining 
claimants can relinquish their claims and convert them to State claims 
so that the encumbered land may be conveyed to the State. It is 
entirely unclear that this provision is in the public interest. There 
are many differences between federal and state regulation of mining, 
and the cumulative effect of these differences may be that federal 
mining claims will be subject to less-stringent environmental 
regulation if they are converted to state claims.
    This section also provides that where the converted federal claims 
are surrounded by State lands, the lands encumbered by the formerly 
federal claims maybe conveyed to the State without charge to the 
State's entitlement. This could result in the State receiving title to 
thousands more acres than it is entitled to under the Statehood Act and 
other laws. There is no reason to expand, or create new, entitlements, 
and it is especially inappropriate to include such a provision in a 
bill the announced intent of which is to bring closure to State and 
Native land entitlements and conveyances.

Section 108
    This section allows for the conveyance to the State of lands 
mistakenly omitted or relinquished from existing selections. if the 
State can satisfy the Secretary that a mistake was made. This provision 
lacks any standards to guide the Secretary's determination of such an 
allegedly mistaken omission or relinquishment and therefore poses the 
risk that erroneous determinations will be made.

Section 201
    This section allows for conveyance of lands within a Village 
corporation's township selections that have only recently become 
available, because it authorizes the Secretary to waive the 69,120-acre 
limit on conveyances of land within national wildlife refuges. The 
69,120-acre limit is part of the complex congressional compromise 
embodied in ANCSA. This limit provides protection against the 
proliferation of private inholdings within national wildlife refuges.

Section 203
    This section provides that when a Native corporation's entitlement 
will be satisfied by conveyance of the next prioritized section of 640 
acres, the Secretary and the corporation can agree that conveyance of 
that section will complete the corporation's entitlement. While this 
may be an easier way than under current law to bring closure to a 
particular corporation's entitlement, it also means that each Native 
corporation with some remaining entitlement could receive as much as 
640 acres more than what it is entitled to under ANCSA. Once again, we 
see no reason for existing entitlements to be expanded, especially in a 
bill that purportedly is intended to bring closure to the existing land 
conveyance process.

Section 204
    This section gives the Secretary discretion to waive the existing 
prohibition on conveyance to the regional corporations of subsurface 
rights inside pre-ANCSA national wildlife refuges. That prohibition 
was, once again, part of the carefully crafted compromise of ANCSA. and 
there is no justification for altering that compromise now.

Section 207
    The purpose of this provision is to bring some closure to the 
Native corporations' entitlement under Section 14(h)(8) of ANCSA, which 
creates a pool of two million acres of land to be allocated among the 
regional corporations based on population. The section declares that 
255,000 acres is the regional corporations' collective entitlement. 
While we are sympathetic with the need to find a way to satisfy the 
corporations' 14(h)(8) entitlement, we object to the Act's overly-
generous acreage figure of 255,000 acres. The BLM's most recent 
estimate of the remaining 14(h)(8) entitlement was 180,000-200,000 
acres. Again, there is no reason for this bill to expand the 
corporations' existing entitlement, especially when some of the land 
may be conveyed from CSUs.

Section 209
    While it has stiff competition for the title, Section 209 is 
perhaps the most egregious and non-germane provision in this Act. It 
effectively exempts most BLM lands in Alaska from the Federal Land 
Policy & Management Act rules for land use planning. It does this by 
authorizing the Secretary to open or close BLM lands withdrawn under 
Section 17(d)(1) of ANCSA to any form of appropriation or use under the 
public land laws without environmental or judicial review and without 
an opportunity for public comment. This would apply to the majority of 
the millions upon millions of acres managed by BLM in Alaska. This 
section is simply astounding in its elimination of such important 
safeguards on the federal government's management of millions of acres 
of our public lands.

Section 212
    This section allows the Secretary to negotiate agreements with 
Native corporations on any aspect of their remaining entitlement. The 
issues covered by such agreements could include amount and location of 
their remaining entitlement; priority of conveyances; relinquishment of 
selections that won't be conveyed; selection entitlement to which 
selections are to be charged regardless of the entitlement under which 
originally selected; survey of exterior boundaries and the additional 
survey to be done under Section 14(c) of ANCSA; and resolution of 
conflicts with Native allotment applications. This provisions uses the 
same structure as that used in Section 106, and our comments on that 
section are thus generally applicable here as well.

Section 213
    This section authorizes the conveyance to Kaktovik Inupiat 
Corporation of an uncertain number of acres within the coastal plain of 
the Arctic National Wildlife Refuge, and to Arctic Slope Regional 
Corporation of an unidentified number or location of acres of 
subsurface rights within the same. This provision is not justified 
bylaw or equity, and can only be intended to add momentum to the ill-
advised effort to drill for oil on the coastal plain of the Arctic 
Refuge.

Sections 401 and 402
    These sections provide for development of regional and Village 
plans for completing land conveyancing by the year 2009. While we 
support in concept the notion of planning, these sections lack 
provisions for public participation.

Section 501
    This section authorizes the creation of an entirely new appeals and 
hearing process to take the place of the Interior Board of Land Appeals 
where Alaska land entitlement and conveyance issues are involved. It 
also authorizes the Secretary to publish regulations establishing rules 
for the appeal and hearing process without first taking public comment 
on draft regulations as is usual under the Administrative Procedure 
Act. We believe it would be inefficient and not cost-effective to 
create an entirely new appeals board and procedural rules, and such 
rules should not be promulgated without public participation.

                               CONCLUSION

    While S. 1466 masquerades as a ministerial bill to expedite 
existing land entitlements in Alaska, in reality it proposes huge 
changes to existing laws, land entitlements and land use policies. 
Indeed, it seems designed to expeditiously appropriate public resources 
for private gain without any apparent public benefit.
    As an initial matter, proponents of these measures, whether they 
are in Congress or administrative agencies, should evaluate issues of 
this magnitude through a thorough and transparent public process before 
legislation is introduced to Congress. While it is not too late to 
initiate such a process, it certainly has not happened in this case.
    Additionally, the Act's proponents have presented no clear 
statement of a problem that justifies the massive scope of this Act. 
Proponents have also not disclosed the effects that such broad 
legislation will have on public lands in Alaska, information that 
should be available as a starting point for a discussion on proposed 
congressional action of this magnitude.
    Alarmingly, the Act increases non-federal land entitlements and 
allows for a change in land use authorities for literally millions of 
acres of public lands. And, remarkably, it limits or completely 
excludes the public from land conveyance and land use decisions, and 
insulates many of the decisions from review by the independent 
judiciary. As history has shown, providing such vast discretion to 
administrative agencies leads to arbitrary and capricious 
deeisionmaking, and harms the very benchmarks of democracy in the 
process. Such provisions run afoul of basic public trust principles.
    In accelerating the transfer of lands the federal government must 
take care not to make changes in fundamental policies and processes 
that were adopted in the context of The Statehood Act, ANCSA, ANILCA 
and other laws regarding Alaska's public lands. As currently presented, 
S. 1400 crushes under the weight of unrelated and unjustified 
provisions the kernel of truth that land transfer in Alaska has faced 
challenges which could benefit from increased attention by all 
interested parties. The Act's proponents should recognize this and 
initiate an inclusive and transparent process to identify and craft 
solutions for the legitimate issues that face the federal government 
and. all Alaskans in expeditiously concluding complex and far-reaching 
land ownership issues. Should this occur, the conservation community 
undoubtedly will stand shoulder-to-shoulder with other Alaskans and 
Americans to resolve this issue.

    Senator Murkowski. Thank you. I appreciate it. Just for the 
record, you indicated that you had testimony from other 
individuals or groups, and those will be submitted into the 
record, as with any other written statement. So we appreciate 
you bringing those today.
    Mr. Van Tuyn. Thank you, Senator.
    Senator Murkowski. Next let's go to Mr. Bruce Borup, CEO of 
Cape Fox Corporation.

      STATEMENT OF BRUCE BORUP, CEO, CAPE FOX CORPORATION

    Mr. Borup. Thank you for the opportunity to testify. In 
your introduction to this legislation, you succinctly described 
some of the issues facing Cape Fox: The 6-mile exclusion, the 
inability to select land within the Annette Indian reservation, 
and other Federal and ocean reserves.
    The bottom line is no other community or village 
corporation in the State has had so much land denied from the 
original mandated selection rights as Cape Fox. Let me describe 
what that means to the community members. The village of Saxman 
has 431 residents. The unemployment rate in Saxman is 256 
percent, almost 420 percent of the State unemployment rate. 
Economic development and job creation is critical to the 
survival of this village. Even a handful of new jobs can create 
an enormous impact on this community. Tourism is driving 
economic development at the moment in Ketchikan, and we are 
creating jobs, but those are low-paying jobs, many of them 
minimum wage.
    Development of the Kensington gold project will bring 
significant economic benefits to southeastern Alaska. The 
project will add 225 direct high-paying job at a payroll cost 
of $16 million. It will also create up to an additional 180 
indirect jobs and add an additional tax base to the region. 
This project is projected to last 15 years, including 
construction, startup and reclamation periods. Construction 
alone would inject an estimated $150 million into the economy. 
To date, Coeur has invested over $22 million at the site on 
environmental baseline studies, permitting, and environmental 
impact statements. The Coeur d'Alene Mines Corporation is an 
environmentally-responsible operator, having been acknowledged 
by 19 national and international environmental awards since 
1987. Coeur is strongly committed to sound resource development 
and economic diversity in the State of Alaska.
    Cape Fox Corporation also has a long-established reputation 
for private lands management and has always worked with public 
agencies to provide access when it makes sense. Cape Fox works 
closely with the U.S. Forest Service, the U.S. Fish and 
Wildlife, Corps of Engineers, the State Department of Fish and 
Game as well as many other agencies to ensure that all lands 
are managed safely and responsibly. In fact, our board of 
directors of Cape Fox Corporation recently designated its White 
River area as a Cape Fox Rain Forest Reserve and is developing 
a private lands management plan for the enhancement of wildlife 
within that area.
    The lands to be exchanged do not include any land within 
Berners Bay LUD II area, which is an important recreational 
area for local residents. Concerns about massive clear cutting 
near Berners Bay are totally unfounded. There is little timber 
on the land to exchanged that has commercial value, and Cape 
Fox has no plans to log in this area. Cape Fox is just doing 
our part to enhance the economic development and creation of 
jobs in southeast Alaska so that wage-earners can support their 
families.
    Additionally, our work in the Cape Fox Rain Forest 
Preserve, which is in part being modeled after the Dye Creek 
Preserve in Redding, California, owned by the Nature 
Conservancy, would itself serve as a future model for similar 
wildlife preserves for this area. In fact, Cape Fox intends to 
utilize the same model and access the same wildlife restoration 
resources that the major conservation agencies represented 
today have utilized for decades in the Lower 49 States to 
restore and conserve wildlife properties they control.
    Thank you for the opportunity to speak today.
    [The prepared statement of Mr. Borup follows:]

      Prepared Statement of Bruce Borup, CEO, Cape Fox Corporation

                              INTRODUCTION

    Cape Fox Corporation is the ANSCA Corporation for the Native 
Village of Saxman, near Ketchikan, Alaska. As with other ANCSA village 
corporations in Southeast Alaska, Cape Fox was limited to selecting 
23,040 acres under Section 16 of ANSCA. However, unlike other village 
corporations, Cape Fox was further restricted from selecting lands 
within six miles of the boundary of the home rule City of Ketchikan. 
The City of Ketchikan is the fourth largest city in the state and the 
second largest in southeast. Ketchikan is the single largest city to 
impact any of the 200 village corporations created by ANCSA. In 
addition, Ketchikan has the highest percentage of ocean and federal 
reserves of any ANCSA village in the state, further limiting the 
opportunity to secure an equitable ANCSA settlement. No other community 
or village corporation in the state has had so much land denied from 
their original mandated selection rights. All other ANCSA corporations 
were restricted from selecting within two miles of such a home rule or 
city.
    The six mile restriction went beyond protecting Ketchikan's 
watershed and damaged Cape Fox by preventing the corporation from 
selecting valuable timber lands, industrial sites, and other commercial 
property, not only in its core township but in surrounding lands far 
removed from Ketchikan and its watershed. As a result of this 
restriction, only the mountainous northeast corner of Cape Fox's core 
township, which is of no economic value, was available for selection by 
the corporation. Cape Fox's land selections were further limited by the 
fact that the Annette Island Indian Reservation is within its selection 
area, and those lands were unavailable for ANCSA selection. Cape Fox is 
the only ANCSA village corporation affected by this restriction.

                          ECONOMIC DEVELOPMENT

    The village of Saxman has 431 residents. The unemployment rate in 
Saxman is 25.6%, almost 420% of the State unemployment rate. Economic 
development and job creation is critical to the survival of families in 
this village. Even a handful of new jobs can create an enormous impact 
on this community.
    Coeur Alaska Inc is headquartered in Juneau and owns patented lands 
and mining leases that encompass the Kensington and Jualin mine sites 
in the Tongass National Forest, 45 miles north of Juneau. Gold was 
first discovered in this area in 1886. These mines operated in various 
stages until 1935. Since 1987, Coeur has made significant investments 
to reopen and operate the Kensington Mine, using modern technology to 
recover its remaining gold ore.
    The lands to be exchanged surround Coeur's patented lands and are 
heavily encumbered by 12,792 acres of unpatented mining claims. 
According to the Tongass Land and Resource Management Plan, the 
National Forest lands encompassing these unpatented claims are zoned 
for mining development. Transfer of these lands to Cape Fox and 
Sealaska will not affect the mining claim rights or represent a 
deviation from the Tongass Management Plan. Rather, the transfer will 
eliminate complicated claim and patented land boundaries, saving the 
public considerable administrative costs.
    Development of the Kensington Gold Project will bring significant 
economic benefits to Southeastern Alaska. The project will add 225 
direct high paying jobs at a payroll cost of $16 million, create up to 
an additional 180 indirect jobs, and add an additional tax base to the 
region. This project is projected to last 15 years, including 
construction, startup and reclamation periods. Construction alone would 
inject an estimated $150 million into the economy. To date, Coeur has 
invested over $22 million at the site on environmental baseline 
studies, permitting and environmental impact studies. Although the 
project has previously received all its major environmental permits, 
Coeur is presently working closely with public agencies on the 
preparation of a second SEIS to support the permits required to reopen 
and operate the mine.
    The Coeur d' Alene Mines Corporation is an environmentally 
responsible operator, having been acknowledged by 19 major national and 
international environmental awards since 1987. Coeur is strongly 
committed to sound resource development, and economic diversity in 
Southeast Alaska and is required to provide financial assurances for 
all reclamation requirements. Cape Fox Corporation also has a long 
established reputation for responsible private lands management and has 
always worked with public agencies to provide access when it made 
sense. Cape Fox works closely with the U.S. Forest Service, U.S. Fish & 
Wildlife, the Corps of Engineers and the State Department of Fish & 
Game as well as many other agencies to ensure that our lands are 
managed safely and responsibly. In fact, the Board of Directors of the 
Cape Fox Corporation recently designated its White River area as the 
``Cape Fox Rainforest Preserve'' and is developing a private lands 
management plan for the enhancement of wildlife within that area.
    The lands to be exchanged do not include any land within the 
Berners Bay LUD 11 area, which is an important recreational area for 
local residents. Concerns about massive clearcutting near Berners Bay 
are totally unfounded. There is little timber on the land to be 
exchanged that has commercial value, and Cape Fox has no plans to log 
in this area. Cape Fox is focusing on doing our part to enhance the 
economic development and creation of jobs in Southeast Alaska. 
Additionally, our work in the Cape Fox Rainforest Preserve, which in 
part is being modeled after the Dye Creek Preserve in Redding, 
California, owned by The Nature Conservancy, would itself serve as a 
future model for a similar wildlife preserve for this area. In fact, 
Cape Fox intends to utilize the same model and access the same wildlife 
restoration resources that the major conservation agencies represented 
here today have utilized for decades in the Lower 49 states to restore 
and conserve wildlife properties they control.
    Thank you for the opportunity to speak with you today.

    Senator Murkowski. Thank you, Mr. Borup. I appreciate you 
coming this morning. Next let's go to Mrs. Rosa Miller, tribal 
leader of the Auk Kwaan. Mrs. Miller.

            STATEMENT OF ROSA MILLER, TRIBAL LEADER 
                        OF THE AUK KWAAN

    Mrs. Miller. Thank you. Good morning. My name is Rosa 
Miller. I'm the tribal leader of the Auk Kwaan, the original 
settlers in Juneau. Traditional Auk territory extended from 
Berners Bay to Seymour Canal. I would like to thank Chairman 
Craig and the members of the subcommittee for inviting me to 
testify today. While Anchorage is much closer to Juneau than 
Washington, D.C., is, it is still over one thousand miles away 
from Juneau.
    This is a very long and difficult trip for me. I 
respectfully request the subcommittee hold another hearing in 
Juneau on this bill and learn about Berners Bay and its 
importance to the Auk Kwaan and the other residents of Juneau. 
I respectfully submit the following statement into the official 
record of the subcommittee hearing on behalf of myself and the 
other members of my tribe.
    On behalf of the Auk Kwaan, I wish to strongly object to S. 
1354, the Cape Fox Land Entitlement Adjustment Act of 2003. 
This bill gives Cape Fox and Sealaska Corporation public lands 
near Slate Lake in the Berners Bay watershed, our ancestral 
land. This is the very same area where Coeur Alaska hopes to 
make money by dumping its mine tailings. Today, I want to 
explain how important these ancestral lands are to the Auk 
Kwaan. We used to have several villages in Berners Bay, and 
where there were villages were burial sites. We're afraid that 
development of these lands will decimate our burial sites. 
There has been enough of such desecration. When is it going to 
stop? There is also a mountain located at Berners Bay, Spirit 
Mountain, also know as Lionshead Mountain, which is sacred to 
us because our Shaman spirits dwell in it. Many times I have 
told stories about our ancestors who are buried here.
    Spirit Mountain is a place that is important to the Tlingit 
of the past, the present, and the future. S. 1354 proposes to 
give away our ancestral lands to both Sealaska and Cape Fox 
Corporation. In the old days, when you traveled to someone 
else's territory, you could not land your canoe until you had 
permission from the clan who lived in the area. We have heard 
absolutely nothing from either corporation about their 
intentions for our lands in Berners Bay. We fear that the 
relentless drive for corporate profits will override culture, 
tradition, and the protection of sacred grounds. Berners Bay is 
also very important as an increasingly vital source of 
traditional foods and herbal medicine.
    Over the years, as Juneau has grown, we have needed to 
travel further and further to find our traditional foods, such 
as berries, wild asparagus, as well as herbal medicines. These 
foods and medicines remain in abundance in Berners Bay today. 
Each year that passes increases the importance of Berners Bay 
as a source for these traditional foods and medicines.
    When I learned that this bill would be considered at this 
hearing in Anchorage, I wrote Senator Lisa Murkowski and 
requested that a hearing be held in Juneau on this bill. After 
all, it's not Anchorage's sacred and recreational lands that 
will be given away to corporate interests if this bill goes 
through. I pray that you, as our leaders, will be fair to the 
people whose lives will be directly affected by the passage of 
this selection. Please do not rush this bill.
    We feel that each of you, especially Senator Murkowski, 
must come to Juneau to learn about Berners Bay and the 
importance to the Auk Kwaan and the other residents of Juneau. 
On behalf of the Auk Kwaan, I implore you: Please do not give 
away our land. It is the only thing we have left. We know that 
you have a heart to do what is morally and ethically right and 
withdraw this harmful bill. With your permission, I also wish 
to submit the following testimony prepared by the Southeast 
Alaska Conservation Council on this bill into the official 
record for this field hearing. Thank you for the opportunity to 
share our concerns with this bill with you.
    [The prepared statement of Mrs. Miller follows:]

   Prepared Statement of Rosa Miller, Tribal Leader of the Auk Kwaan

    My name is Rosa Miller, and I am the Tribal Leader of the Auk 
Kwaan, the original settlers of the Juneau area. Traditional Auk 
territory extended from Berners Bay to Seymour Canal. I would like to 
thank Chairman Craig and the members of the- Subcommittee for inviting 
me to testify today. While Anchorage is much closer to Juneau than 
Washington D.C., it is still over 1,000 miles away from Juneau. I 
respectfully request the Subcommittee to hold another hearing in Juneau 
on this bill and learn about Berners Bay, our ancestral lands, and its 
importance to the Auk Kwaan and the other residents of Juneau.
    The following statement is submitted on behalf of myself, and the 
other members of my tribe. I respectfully request that this written 
statement and accompanying materials be entered into the official 
record of this Subcommittee hearing.
    On behalf of the all the members of the Auk Kwaan, I wish to 
express our strong objection to Senate Bill 1354, the Cape Fox Land 
Entitlement Adjustment Act of 2003. This bill allows the Cape Fox 
Corporation to exchange private timberlands near Ketchikan for public 
lands near Slate Lakes, in the Berners Bay watershed. It also allows 
Sealaska Corporation to exchange subsurface rights to several thousand 
acres for lands alongside those given to Cape Fox in Berners Bay. This 
is the very same area where Coeur Alaska, operator of the Kensington 
Gold Project, hopes to make money by dumping its mine tailings.
    Today, I want to explain how important these ancestral lands are to 
the Auk Kwaan. We used to have several villages near Berners Bay; and 
where there were villages, there are burial sites. We are afraid that 
the development of these lands will result in the desecration of our 
burial sites. There has been enough of such desecration; when is it 
going to stop!
    There is a also a mountain located at Berners Bay, Spirit Mountain 
(also known as Lionshead Mountain), which is sacred to us because all 
our Shaman spirits dwell in it. Many times I have told stories about 
our ancestors who are buried here. Spirit Mountain is a place that is 
important to the Tlingit of the past, the Tlingit of the present, and 
the Tlingit of the future.
    Over the years, as Juneau has grown, we have needed to travel 
farther and farther to find our traditional foods, such as berries and 
wild asparagus, as well as herbal medicines. These foods and medicines 
remain abundant in Berners Bay. As each year passes, the importance of 
the resources in Berners Bay increases as we depend on them more and 
more.
    Senate Bill 1354 proposes to give away our ancestral lands to both 
the Sealaska and Cape Fox Corporations. In the old days, when you 
traveled to someone else's territory, you could not land your canoe 
until you got permission from the clan who lived in the area. We've 
heard absolutely nothing from either corporation about their intentions 
for our lands in Berners Bay. We are afraid that the development of 
these lands will desecrate our burial sites. We fear that the 
relentless drive for corporate profits will override culture, 
tradition, and the protection of sacred grounds. This fear is based on 
the history of over thirty years of land development activities by 
Sealaska, Cape Fox, and other Native village corporations in Southeast 
Alaska. For your information, I am submitting for the record A Clearcut 
Legacy, a two-part series that appeared in the Anchorage Daily News in 
February, 2001 (Exhibit 1).*
---------------------------------------------------------------------------
    * The exhibits have been retained in subcommittee files.
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    When I learned that this bill would be considered at this hearing 
in Anchorage, I wrote Senator Lisa Murkowski and requested that a 
hearing be held in Juneau on this bill. After all, it is not 
Anchorage's sacred and recreational lands that will be given away to 
corporate interests if this bill goes through. Attached to this 
testimony (Exhibit 2) is a copy of the letter I wrote Senator Lisa 
Murkowski, with copies of the letters 1, had previously written her 
father, now-Governor Frank Murkowski, when he was Senator.
    In closing, I pray that you, as our leaders, will be fair to the 
people whose lives are most directly affected by passage of this 
legislation. Please do not rush this bill. We urge you to come to 
Juneau to learn about Berners Bay and its importance to the Auk Kwaan 
and the residents of Juneau.
    On behalf of the Auk Kwaan, I implore you, PLEASE DO NOT GIVE AWAY 
OUR LAND. It is the only thing we have left. We hope that you will have 
the heart to do what is morally and ethically right and withdraw this 
harmful bill now.

    Senator Murkowski. Thank you, Mrs. Miller. Also, that 
additional testimony will be included in the record. Thank you 
for bringing it.
    And the last panelist, Mr. Tim Verrett, borough attorney 
from the Bristol Bay Borough in Naknek. Good morning and 
welcome.

STATEMENT OF TIMOTHY C. VERRETT, BOROUGH ATTORNEY, BRISTOL BAY 
                            BOROUGH

    Mr. Verrett. Good morning, Senator, and thank you for 
allowing me the opportunity to testify before this field 
hearing.
    I'm here to simply testify regarding S. 1421, the authority 
to allow Native allottees the ability to subdivide their 
allotments. You correctly stated that currently both the 
allottee lacks the authority to subdivide and BIA lacks 
authority to approve dedication of public ways and utility 
easements within subdivisions. This lack of authority has 
created significant hardships on allottees by placing under a 
cloud current subdivisions that have been approved. That 
effects not only the allottees, but also non-Native purchasers 
of lots in the subdivision. And it also hampers allottees who 
wish to subdivide their allotments.
    The borough supports legislation which would allow 
allottees to subdivide their property. I think it's fair to say 
that the authority to allow an allottee to subdivide their 
parcel is fairly noncontroversial. However, I would suggest 
that currently S. 1421 has some provisions which are 
controversial.
    The issue of a lack of authority of Alaska Natives to 
subdivide their allotments first arose in Bristol Bay Borough. 
We have essentially been on the point of the spear on this 
issue. I have participated personally in a number of meetings 
to assist in resolving this issue. I have reviewed four 
separate drafts of the legislation, in addition to S. 1421. 
There has been significant dialogue and debate regarding the 
language of draft legislation. It is the Borough's position 
that only section S. 1421 is necessary to resolve this issue. 
This is a fairly simple real estate issue. It requires a 
relatively simple fix that will allow the Alaska Natives to 
subdivide their allotments, enjoy the economic benefits of 
their land, and assist the citizens, not only of the borough, 
but of the State of Alaska.
    That's really all the comments I have. Thank you.
    [The prepared statement of Mr. Verrett follows:]

      Prepared Statement of Timothy C. Verrett, Borough Attorney, 
                          Bristol Bay Borough

    Mr. Chairman and subcommittee members, my name is Timothy C. 
Verrett and I am the Borough attorney for the Bristol Bay Borough. I 
submit this testimony on behalf of the Bristol Bay Borough.
    Up until October 2000, the Bureau of Indian Affairs, pursuant to 
its trust responsibilities, approved Alaska Natives subdividing their 
allotments and dedicating rights-of-ways and utility easements. The BIA 
estimates there are 206 such subdivisions of which approximately 21 are 
within the Bristol Bay Borough. Lots were sold within the subdivisions 
to both Native and Non-Native purchasers. One must assume that the 
purchasers relied upon the subdivision plats, which were recorded in 
the various recording districts throughout the State of Alaska. All 
that changed when a Department of the Interior solicitor issued an 
opinion that the BIA lacked the legal authority to execute subdivision 
plats dedicating public rights-of-ways and utility easements.
    One must remember that the subdivision plats were created and 
recorded to comply with either the State of Alaska or local platting 
authority requirements for subdivisions. One must assume that the 
allotee elected to subdivide his/her allotment to maximize the economic 
benefit of the allotment. For the last 2\1/2\ years, the State of 
Alaska and local governments have tried to resolve the issue of 
dedication with the BIA. BIA's position has been that local governments 
and the State of Alaska could apply for easements for public ways under 
one of two federal regulations. Both regulations impose significant 
legal burdens upon the applicant as a condition of statutory authority 
to approve the application. The Bristol Bay Borough, and I believe it 
is safe to say other governmental entities, have been unwilling to 
undertake the additional legal burden of applying for and accepting 
easements for public ways in subdivisions. It is an unreasonable and 
unnecessary burden placed upon local governments and the State of 
Alaska. The Bristol Bay Borough has declined to review new preliminary 
subdivision plats of an allotment as such preliminary plat could not 
provide legal access to the subdivision lots and failed to comply with 
the requirements of the Bristol Bay Borough platting code and the 
platting statutes of the State of Alaska.
    Local governments in general, and the Bristol Bay Borough in 
particular, have expended significant local resources over the last 
2\1/2\ years attempting to resolve a problem which the Bristol Bay 
Borough neither created nor wanted. This is an unreasonable economic 
burden to place upon local government. The Bristol Bay Borough, in 
particular, and I assume other small municipal governments, cannot and 
will not continue to expend its very limited local resources to resolve 
this problem.
    This is a simple real estate problem. The solicitor who initially 
issued the opinion that BIA lacked authority to approve dedicated 
public ways and utilities, drafted legislation which would solve the 
real estate issue. That proposed legislation is attached as exhibit 1.* 
Unfortunately, through many months of discussion, the resolution of a 
simple real estate problem has spawned draft legislation which now 
number 6 pages. There are those who wish to use this real estate issue 
as a soap box to promote their individual or personal agendas. We have 
groups who wish to use the legislation to advance native sovereignty. 
We have groups who wish to use the legislation to advance state's 
rights. These agendas are only harming the residents of the Bristol Bay 
Borough, both native and non-native alike. The Bristol Bay Borough is 
simply interested in solving a simple real estate problem so that its 
residents can subdivide their allotments in compliance with the Bristol 
Bay Borough Code and State Statutes and enjoy the economic benefits of 
their allotments.
---------------------------------------------------------------------------
    * The exhibit has been retained in subcommittee files.
---------------------------------------------------------------------------
    The inability of an allottee to subdivide his/her allotment in 
compliance with local platting ordinances and/or the state statutes, 
places a significant burden upon the allottee. One must assume that the 
allottee elects to subdivide his/her allotment to maximize the economic 
value of that parcel of property. The inability to subdivide the 
allotment in compliance with state statute or local platting ordinances 
has the direct effect of diminishing the ultimate economic value of the 
allotment. If an allottee should subdivide his/her property without 
complying with state statutes or local platting ordinances, which has 
been suggested by BIA as an alternative, the economic realities are 
that the allottee will not fully recognize the value of the allotment. 
There is a significant probability that title insurers will not issue a 
title policy without exception. Likewise, financing of the purchase of 
lots within a allotment subdivision will most probably be unavailable. 
Prospective purchasers and lenders will not undertake the risk that 
they will not have legal access to the lots within an allotment 
subdivision. The potential purchaser will either choose not to purchase 
the lot or significantly reduce the amount it offers an allottee. 
Likewise, public utilities will not extend utility services to and 
within a subdivision of a native allotment because it will not acquire 
the easements and/or right-of-ways necessary to extend those utilities. 
The lack of utilities would significantly reduce the overall value of a 
subdivision lot within a native allotment subdivision.
    There has been a hue and cry from local allottees that have been 
unable to subdivide their allotments. These allottees appear to blame 
local government for their inability to subdivide their parcels. Local 
government and the State of Alaska have an obligation to enforce their 
own statutes and/or ordinances. This includes platting statutes which 
require legal access and utility easements to subdivisions. Local 
governments have expended significant local public resources to assist 
its allottee citizens in finding a solution to this real estate 
problem. This has placed a significant economic burden upon local 
government and the State of Alaska. This economic burden should be 
reimbursed by any legislation which provides legal authority to 
subdivide native allotments.
    Thank you.

    Senator Murkowski. Thank you. I appreciate your testimony.
    Now, if we may go back in the same order in the which we 
started, some questions first to you, Mr. Angapak. What would 
you say is the most important issue for the Alaska Federation 
of Natives concerning this land transfer act that we're 
proposing?
    Mr. Angapak. I don't know that I can characterize it as 
being the most important issue. However, one of the major 
concerns that we have with this bill, and I think it's 
correctable, is the issue of prioritization of selected land. 
Some of the regional corporations, such as Ahtna, their land 
selections are totally surrounded by St. Elias National Park 
Service.
    This legislation mandates that regional corporations reduce 
their over-selections to a finite limit. And that--therein lies 
a problem. The ANSCA's corporations necessarily selected their 
lands for the resource potential allocated within the lands 
that they selected. In order to reduce their priority--their 
over-selection, regional corporations necessarily need to do 
some resource--additional resource inventory on those 
selections.
    So we feel that the regional corporations must be given an 
opportunity to have access to their selected lands, if, in 
fact, they are going to be forced to reduce their over 
selection to a finite limit. Short of that, perhaps those 
regional corporations whose land selections are located within 
National Park Services and that type of thing could be exempt 
of the terms and conditions of this bill.
    Senator Murkowski. In your testimony, you mentioned 
concerns with the title 3, and you commented how this 
legislation would remove certain protections that are currently 
provided to owners of Native allotments. Can you give me some 
additional examples, or go a little bit further in your 
explanation there?
    Mr. Angapak. Yes, ma'am. We do not question the right of 
Congress to carry out their constitutional right to legislate 
on behalf the American Indian and Alaska Natives; however, in a 
court case called Seminole National v. The United States, the 
court ruled that Congress must act with good faith and not 
through loyalty for the best interests of the Indian. 
Pursuant--in reviewing this bill, there are certain existing 
rights that are being eliminated by this bill. For example, 
applicants now have the right to amend a description of their 
allotment if the Government places the allotment in the wrong 
location or the allotment does not contain a correct number of 
acres. Section 3 of 4(f)(5) eliminates applicants rights to 
amend their applications, even if the Federal Government caused 
that error in the first place.
    I could go on, but my hope is--I'm pretty confident that 
working with you and your staff and those affected parties 
insofar as Native allotments are concerned, these existing 
rights, and there are at least seven existing rights that are 
being eliminated by this bill, that we can tweak the language 
in such a manner that the existing rights of the allottees will 
be preserved. Because if they are not preserved, I do believe 
that that is a violation of our rights, whereby some of our 
rights are taken away, constitutional rights are taken away, 
because these things are in effect taking our property 
interests away without due process.
    That is where our major concern over title 3 arises, but 
like I said, I'm pretty confident that if we get our heads 
together with your staff, some people that are involved with 
this issue and have been interested with this issue for a long 
time, that we can find and tweak the language so that what is 
being eliminated by this bill will be right, and then I think 
it's going on to be an excellent bill.
    Senator Murkowski. I appreciate your willingness to work 
with me and with my staff and committee staff to make this 
work, because it does have certain areas, as you point out, 
that are critical, and we need to make sure that it's going to 
do what it is we're intending to do, so I look forward to 
working with you and others within the AFN. I know you 
mentioned in your testimony requests for possibly additional 
field hearings. I will tell you, and others, that during this 
August recess, we have not scheduled any more. As I understand, 
I think I get one field hearing a year--is that how it works--
within the committee, so we won't have the opportunity for a 
formal hearing as such on this legislation.
    We will be having additional hearings back in Washington, 
D.C., on these three identical bills, so that opportunity is 
out there, but it doesn't help people like Ms. Miller, who I 
agreed, it is a long way coming from Juneau. It's even going 
worse going back to the Washington.
    As I'm traveling around the State this month and going out 
to many of the rural communities and speaking with many of our 
Native leaders, I will be asking the questions, and hopefully 
will have an opportunity to get some good input from across the 
State as we travel, but the opportunity for another field 
hearing in August is not available at this point, to let you 
know. I appreciate your responses.
    Next, let's go to Mr. Borell. You mentioned, Mr. Borell, 
how this Cape Fox legislation would provide some economic 
benefit, and I think you spoke generally, but could you give us 
some additional specifics?
    Mr. Borell. Yes, Senator. Specifically, I think my compadre 
here defined the benefits from the Kensington gold project, and 
that is the primary and immediate benefit of this legislation. 
It would facilitate getting that project up and working in an 
economical fashion. Price of gold, obviously, varies 
significantly over time, and that particular project has been 
permitted, been through the EIS process twice already, and 
because of the price of metal going down, it's not been 
economic by the time the EIS was finished. So at this point, it 
looks like this is very viable approach, and it could become a 
viable project.
    Senator Murkowski. You spoke of the problem with lingering 
withdrawals. In your perspective, once the purpose of those 
congressionally-established withdrawals have been resolved, 
should they go away?
    Mr. Borell. Absolutely. I think Mr. Loeffler described one 
of them in the 40 Mile, and, again, for people's impressions 
here, the 40 Mile River system is, what, somewhat over 400 
miles in length, and we count all the different tributaries, 
then the original closure was 2 miles wide off the centerline, 
and so when the actual designations occurred as part of ANILCA, 
then that designation was a mile wide total, as compared to, 
incidentally, a half mile wide in the lower 48 States, and 
Alaska it's a mile wide, but that leaves this one half mile 
band on the other side of the 40 Mile River for those 400 or so 
plus miles, on each side of every small tributary, and exactly, 
that land is in limbo right now.
    Much of it has been selected by the State of Alaska. There 
are numerous other examples and not just items like that one, 
the D 1. There are, as a matter of fact, BLM at this point 
hasn't--at least they haven't provided to us and we have asked 
for it--a complete listing of how many withdrawals there are. 
There are withdrawals all around the State, and I guess it's 
our feeling that there should be a list of all those that this 
legislation just takes away, just eliminates those withdrawals, 
so the State, the Native corporations, the village corporations 
can get about the process of receiving their lands.
    Senator Murkowski. In your testimony you seem to suggest 
that you don't want any agency to have the authority to close 
areas to mineral entry, and I take that to mean that you feel 
this is an authority that should be reserved to Congress, and I 
just wanted to make sure that my assumption is correct?
    Mr. Borell. That is absolutely correct. The State of Alaska 
agencies proved beyond any doubt for us, at least, that 
agencies do not have the ability to hold their appetite. Their 
appetite for additional closures continues. I'm not saying this 
administration, but there is no question but what overtime all 
of the available public lands would be closed in some fashion 
or another under some scenario or explanation that makes sense 
to somebody, but we believe that is such a crucial decision 
that the Congress itself and the president signing a bill must 
make that decision.
    Senator Murkowski. And, finally, you had indicated that 6 
months wasn't enough time for the State to react to the final 
lands available. Can you go further with that?
    Mr. Borell. Yes, with all these--both the withdrawals that 
we believe need to be removed, but also the over-selections by 
the village corporations, the Native corporations, once those 
have been established and settled, and they occur prior to 
settling of the State of Alaska's land entitlement, they, if 
you will, take precedence, or at least that's the way they are 
being treated, for sure, at that point lands that have been 
over-selected for the Native corporations would become 
available for the State of Alaska, and the State of Alaska 
doesn't get any additional land and they can't make new 
selections, but these are selections that have been made, and 
they are, if you will, they are sitting on top of a Native 
selection, and if the Native selection is diminished, if it's 
made smaller because the Native entitlements has been addressed 
and answered and transferred, the State of Alaska needs time to 
be able to look not at just one little parcel at a time, but be 
able to look at the entire State and say, okay, these are the 
priorities here, here, here and here, not just piecemeal little 
individual sections. That's our point.
    Senator Murkowski. Thank you. We're now back over to Mr. 
Van Tuyn, and you started off by expressing concerns with the 
legislation. I guess the concern that you have is the lack of 
public process, and had actually suggested or actually 
suggesting that we should pull the legislation at this point in 
time. And I would agree with you. It is complex. It is very 
comprehensive, but our land issues have always been very 
complex, and I guess the purpose in moving forward with 
legislation like this is to get that public process moving 
forward, and certainly my experience has been the best way to 
do that is get something out on the table, so that people can 
review, to get this public discussion, and to get the issues 
out on the record.
    Your written testimony indicates that there is lot in here 
that you don't agree with, but I guess I would ask just in 
terms of a process issue, how can we resolve our lands issues? 
We heard from Mr. Loeffler that if we continue at the rate that 
we're going, it's another 85 years in order to complete the 
conveyances. So how do we receive our lands that were promised 
to us under statehood, promised to the Native Alaskans, how do 
we do that if we don't start someplace? Maybe that's a little 
bit of a rhetorical question, but I would like your response.
    Mr. Van Tuyn. Thank you, Senator. One of the interesting 
things we found as we looked at this bill that we just found 
out about it very recently is that our questions that we posed 
to the Department of the Interior, Bureau of Land Management, 
they don't have all the answers themselves. These are very 
fundamental questions, and it seems to take quite a while for 
them to answer, and this leads us to contemplate the idea that 
perhaps an administrative process that identifies the exact 
problems, comes up with a conclusive solution through a public 
process, that that process could lead to something that could 
resolve these long-standing land entitlement issues.
    To be sure, the conservation community has an interest, 
certainly, in land ownership. This is simply common sense. The 
conservation system units ought to have boundaries that people 
understand, so the managers can deal with it, the public have 
reasonable expectations about what they are, and the private 
sector has an ability to move ahead with their plans in areas 
where it is appropriate to do so. But the questions we have on 
this bill are so fundamental; again, how many areas of CSUs 
potentially are affected?
    That's one question, and it's a very difficult one to 
answer, and it concerns us that a very august and important 
body, such as this subcommittee, would have to spend a lot of 
time to get to the--and be responsible for getting the answers 
to all those questions when it's obvious BLM is the one that 
has that information.
    Senator Murkowski. So our goals are the same. We both agree 
that it benefits Alaska to move forward with the conveyance 
process and to do what it is that we have to do to make that 
happen. We're in agreement there, but concerns are, perhaps, 
how much discretion the Secretary may have, limitation on 
public input----
    Mr. Van Tuyn. The process is important. Thank you, Senator. 
The process is very important, and at the same time, we have 
concerns that in streamlining--someone mentioned earlier the 
idea that the section 209 authority creates this simple 
process. Well, it's very simple, because it rights away the 
existing protections. That is a very simple way of doing it, 
with one stroke of the pen. The type of process that provides 
substantive protections is gone, and that is of great concern.
    The promised land, you know, that aspect of it is 
important. It's not promises in the future. It's not new 
entitlements in the future. It is the land that was promised in 
the past, and that should be the focus. We have to be very 
careful not to create new entitlements where what we're trying 
to do is simply finalize previous ones.
    Senator Murkowski. I appreciate your comments and testimony 
and appreciate you being here this morning. This legislation 
was introduced 2 weeks ago, and in order to make it part of 
this hearing, it had to be introduced with two weeks' advanced 
notice, so that's probably the biggest reason why you have not 
had further opportunity to go into the legislation in detail, 
and I would invite you, and welcome you, to work with our 
office, work with the committee, work with all those involved 
to make sure that you do have that public input that is so 
necessary that will hopefully get us all to the same goal, 
which is conveyance of our land, but I look forward to working 
with you and the trustees on this, and hope we can do that.
    Mr. Van Tuyn. Thank you, Senator, and thank you again for 
inviting me today.
    Senator Murkowski. You bet. Thank you. Mr. Borup, talk a 
little bit about Cape Fox. You mentioned some of the positives, 
the economic benefits if this legislation moves forward. What 
happens if we don't--we're not successful with this 
legislation? What would be the impact on the village of Saxman 
and the village corporation without this?
    Mr. Borup. Well, again, it would be just one more lost 
economic opportunity. We'd have to find other ways to create 
value for our shareholders, and other ways to find jobs for our 
shareholders, and it's very difficult with tourism driving the 
economy. We are grateful for the economic impact of tourism, 
but those are seasonal jobs. We can employ people for four, 
five months of the year. What we're having trouble doing is 
employing them year-round with jobs that will support families.
    If this doesn't work, one of the other areas would be for 
us to partner elsewhere in the State, but given that means that 
we're having to send the wage-earners out of their community to 
earn a living. Something we're going to have to do. We don't 
have those opportunities in Ketchikan right now.
    Senator Murkowski. I understand that all too well. You were 
pretty emphatic in your statement earlier that there is no 
intention--Cape Fox has no plans to log in the area of the 
exchanged lands. Is that----
    Mr. Borup. That's correct. From what we understand, there 
is little economic value, and we have no plans to log there.
    Senator Murkowski. Because that obviously was a concern 
expressed by some. You also mentioned the recreation issues in 
Berners Bay, and there has been some concern that there is 
going to be an infringement, if you will, but your statement 
seems to indicate that the principal use areas that are within 
the forest lands are not included in this proposed exchange?
    Mr. Borup. That is absolutely correct. They are not. I 
think also the history of Cape Fox land management will show 
that we're very sensitive to the public needs. I'm sure you're 
familiar with the Harriet Hunt area outside of Ketchikan. 
Access to that very beautiful recreation area is over Cape Fox 
land. We have worked with the public for decades now to ensure 
reasonable access, whatever makes sense.
    Senator Murkowski. You have also spoken a little bit 
earlier about how Cape Fox has managed some of the lands for 
conservation purposes and wildlife purposes. Can you give us a 
little more in terms of what you have specifically done in the 
past as relates to conservation and wildlife?
    Mr. Borup. Certainly. The first notable step towards this 
was designation of the White River area as the Cape Fox 
Wildlife Preserve, and what that means is that that area, which 
is approximately 5, 6,000 acres will now be managed from a more 
holistic perspective. I'll be the first to admit that in the 
past, a lot of corporations have managed their land by logging 
them and then waiting for them to regrow without any thought of 
what they're going to do in the interim, the 40, 50 years in 
the meantime.
    We have taken the first steps towards managing those lands 
holistically, and for the advancement of wildlife in that area, 
and that will be for the enhancement for wildlife and non-
consumer uses. We can use it to attract higher paying and 
higher margins of tourism projects, or get the use to support 
subsistence needs of our shareholders. We hope to use that one 
area as our model and repeat it throughout all of our lands.
    Senator Murkowski. Thank you. I appreciate your testimony 
and your willingness to answer questions.
    Mr. Borup. Thank you for the opportunity.
    Senator Murkowski. Mrs. Miller, I appreciate the time and 
the effort you have taken to come up from Juneau, and I do 
thank you for your testimony this morning. You have mentioned 
also a hearing in Juneau, and I would agree that that is the 
best venue for a field hearing on this legislation. As I have 
indicated earlier, we don't have that flexibility or the 
ability to be doing that at this point in time. But I am 
actually traveling to Juneau tomorrow morning and will be there 
for a day and a half and, again, it's one of those issues when 
we're in the community we do want to make the effort to speak 
with the people in the area, those that are affected, and we 
will be making sure that we get that input.
    But in direct response to your question as to a field 
hearing itself, we won't be doing anything as formal as that. 
We are having what I'm calling an economic summit tomorrow in 
Juneau. We will be discussing the issues of the area, and I'm 
sure that this will come up in discussion, but, again, it's 
necessary to get the input from not only the members of your 
clan, but those in the area, so I appreciate you bringing that 
to our attention. Now, you mentioned that you had not heard 
from neither Sealaska or Cape Fox as to their intention on the 
ancestral sites, on the burial sites, and I hear very clearly 
the concerns that you have expressed. It was my understanding 
that Sealaska has made a public commitment to protect the 
burial ancestral sites. Is that correct? Are you familiar with 
that at all?
    Mrs. Miller. No, I'm not. They have not contacted us, and 
they never contact us, and if we do the land in the area, and I 
do--if you can't hold another hearing in Juneau, please come 
next year.
    Senator Murkowski. I will consider that an invitation.
    Mrs. Miller. Please don't rush this bill. It is not 
necessary. There have been a lot of discussions about the road 
going out to Berners Bay, and it's been put on the ballot, and 
it's been voted down. I think you should listen to the people. 
It's very dear to us, and I agree to listen to the people.
    Just like I stated, in the olden days, you traveled to 
somebody else's territory, you needed to get permission, and in 
the olden days, we respected one another's property. We need to 
get back to that. We need to get back to teaching the young 
people how it was a long time ago. Holding a lot of classes on 
that. In fact, I'm going to be one of elders that's going to be 
on that board, so that I'll teach the young people the right 
way, the correct way, the old way. Again, they need to listen 
to the people about Berners Bay.
    Senator Murkowski. Thank you. We can all stand to listen to 
our elders and those that have great wisdom to share. So I 
appreciate that. Thank you, again, for your testimony. Mr. 
Verrett, you mentioned that perhaps the legislation is a little 
bit long, and I agree. We can tend to go on more than we need 
to. And you have indicated that section 4 is really all that is 
needed to address the situation you experienced out in the 
Bristol Bay area. I guess I would ask for your comments on the 
rest of it. Are you viewing it as just extraneous, or do you 
believe that it complicates the legislation unnecessarily?
    Mr. Verrett. I think both. It is controversial. As I 
previously testified, I participated in a number of meetings on 
draft legislation to solve the problem, and provisions other 
than section 4 have been included at the request of various 
interest groups in the legislation that seem to be competing. 
It is my fear and the borough's fear that this legislation will 
get bogged down by these extraneous provisions and that the 
true individuals will be harmed are the allottees.
    This problem has been festering for 2\1/2\ years. Allottees 
are unable to convey lots in existing subdivisions because 
there is a cloud over whether there is legal access to the 
subdivisions. New subdivisions are not being reviewed because 
there is no legal authority to provide legal access, and it is 
the individual allottees that are be being harmed, our citizens 
are in particular. We have a number of examples where the 
economic harm has been pretty significant.
    So I'm fearful that including the rest of the language, the 
extraneous language, if you will, that is controversial will 
further delay the bill. Legislation needs to be passed to allow 
the allottees to subdivide their allotments and to enjoy the 
economic benefits, hopefully during their lifetime.
    Senator Murkowski. The existing regulations, in your 
opinion, don't address the issue or allow for resolution of the 
subdivision--subdividing Native allotments, it doesn't help us, 
the department's regulations?
    Mr. Verrett. It's the borough's position that it does not, 
because the current regulations, as I understand them, require 
or grant authority to the BIA to approve applications for 
easements and rights-of-way. The applicant, in this case local 
government or the State of Alaska in the unorganized borough, 
would be required to apply for BIA for a right-of-way or an 
easement. The current CRRs impose significant restrictions and 
burdens upon an applicant. Local government, the Bristol Bay 
Borough in particular, is unwilling to undertake those 
additional legal requirements to apply for rights-of-way within 
a subdivision that under the State statutes--State statute and 
borough ordinances require to be dedicated to the public at 
large by an individual who wishes to subdivide their property. 
We're just simply not willing to do that.
    Senator Murkowski. Well, we're just about to noon, which is 
the scheduled time for adjournment this afternoon. I want to 
thank you all for your testimony. Thank you all for your time, 
both those of you who have spoken and those of you who have 
come to listen.
    Again, your testimony is building a record from which we 
hope to gain some resolution and some compromise, and I think 
the input we have received today has been very helpful, and 
helpful to me as we start this public input and start the 
process on these many issues. And I would like to just make 
special acknowledgment in thanking Mr. David Brooks, who is 
senior counsel for the Democratic Committee staff, thank him 
for his time and coming to Anchorage and helping us with the 
invitations of certain witnesses.
    I want to thank Mr. Bouts for his assistance as well as 
Jean Rivers, Council and Trish Aspland, both of whom have 
joined me as fellows in the office, and, again, been very, very 
helpful as we craft the legislation.
    I would again invite any of you to add to the record. We 
will hold the record open for an additional two weeks to take 
written testimony. We will take all the written testimony that 
was delivered here today. That will be part of the record, but 
would encourage testimony to be submitted. I do understand that 
there is information at the back that allows people to know to 
send it; is that correct? How do they get their testimony to 
us, then?
    Voice. Send it to the U.S. Senate.
    Senator Murkowski. Send it to the U.S. Senate. How simple 
is that? Energy Committee, probably attention to--he's making 
it real easy. If you send it to our Anchorage office here, we 
can forward it. Or if you're from Juneau, send it to the Juneau 
office, but if you get it to my legislative offices, we will 
make sure that that is entered into the record.
    And I would like to also mention that the committee will 
have a second hearing on these same bills back in Washington. 
It will probably be sometime in September or October. If you'd 
like to be notified of those committee meetings, please let us 
know as well. With that, I thank you all for your attention 
this morning and for your input, and we are adjourned.
    [Whereupon, at 12 p.m, the hearing was adjourned.]


                                APPENDIX

              Additional Material Submitted for the Record

                              ----------                              

 Statement of Jack Hession, Senior Regional Representative, Sierra Club
    On behalf of the. Sierra Club, a national environmental 
organization of over 700,000 members with chapters in every state, I 
request that this statement be placed in the record of the August 6, 
2003 Anchorage field hearing on S. 1466, S1421, and S. 1354.
S. 1466, Alaska Land Transfer--Acceleration Act of 2003
    S. 1466 was introduced on July 25, 2003, 12 days before the 
Anchorage field hearing. At 69 pages, it is an unusually complex and, 
as it turns out, controversial measure containing major provisions 
affecting the federal lands. Its scope extends well beyond the basic 
purpose of expediting conveyance of the remaining federal land grants 
to the State of Alaska and Alaska Native corporations.
    Members of our organization have just begun their analysis of the 
bill. It is clear that extensive additional research is needed, to 
fully explore the bill's ramifications, especially with respect to the 
national conservation system units of the Alaska National Interest 
Lands Conservation Act of 1980. Consultations with the State of Alaska 
and federal land management agencies will be necessary in order to 
evaluate the effect of this bill.
    I understand that the Anchorage field hearing will be followed by 
another hearing in Washington, D.C. following the August recess. Our 
members will utilize this additional time to examine the bill in 
detail, and to provide the Committee with our recommendations when the 
bill is again the subject of a hearing.
S. 1461, Alaska Native Allotment Subdivision Act
    This is a technical, non-controversial proposal.
S. 1354, Cape Fox Land Entitlement Adjustment Act
    The Sierra Club is on record as strongly opposed to this bill. The 
Juneau Group of the Sierra Club will submit a detailed analysis to the 
Committee.
    Thank you for considering our views.

                                 ______
                                 
  Statement of Arnold Brower Jr., President, Inupiat Community of the 
                              Arctic Slope

    The Inupiat Community of the Arctic Slope; a Federally Recognized 
Tribal Organization representing and acting in the best interest of 
Native Allotments Owners, Applicants and Heirs of the Northern Alaskan 
Native Villages of Kaktovik, Nuiqsut, Anaktuvuk Pass, Atqasuk; 
Wainwiight and Point Lay;
    Wholeheartedly supports the testimony of Mr. Edward Thomas, 
President of the Central Council Tlingit and Haida Indian Tribes of 
Alaska to be given to the United States Senate Committee on Energy and 
Natural Resources; Subcommittee on Public Lands and Forests Hearing on 
Senate Bill-1466 (The Alaska Land Transfer Acceleration Act of 2003) on 
August 6, 2003.
    The Inupiat Community of the Arctic Slope assists and oversees on 
behalf of our tribal entities the Native Allotment Application and 
Adjudication Process approximately 479 Native Allotments in the 
Certified and/or Pending state with over 100 applications having been 
classified as ``closed''. Numerous of these ``closed'' applications 
have been and are claims for acreage within the Arctic National 
Wildlife Reserve (ANWR) and Prudhoe Bay Areas.
    Inupiat Community of the Arctic Slope is compelled to stand in 
support of President Thomas with testimony of elimination of rights and 
accurate summarization of delaying factors of procedures utilized and 
created within the various agencies of the United States Government and 
the State of Alaska regarding the certification and finalization of the 
Native Allotment application process over the past several decades.
    To not stand in support of the President of Central Council Tlingit 
and Haida Indian Tribes of Alaska on this particular issue, would be a 
failure in trust responsibilities for restricted properties on our 
governing body to properly represent and act in the best interest of 
Native Allotment Owners, Applicants and Heirs of the Inupiat Community 
of the Arctic Slope.

                                 ______
                                 
     Statement of Eleanor Huffines, Alaska Regional Director, and 
  Allen E. Smith, Alaska Senior Policy Analyst, The Wilderness Society

    Senator Murkowski, Mr. Chairman, members of the committee, we 
represent The Wilderness Society. We want to thank the committee for 
this opportunity to address the issues in S. 1466, a bill to facilitate 
the transfer of land in the State of Alaska and for other purposes. 
Eleanor Huffines and Allen E. Smith have both served appointed terms on 
the BLM Alaska Resource Advisory Council when it has addressed the 
issues raised by this proposed legislation and are familiar with those 
issues. We are also represented in testimony on S. 1466 by Trustees for 
Alaska and request that our testimony and theirs be printed in the 
written record of this hearing and request the right to submit 
additional comments on S. 1466 to the record as appropriate.
    Founded in 1935, The Wilderness Society works to protect America's 
wilderness and wildlife and to develop a nationwide network of wild 
lands through public education, scientific analysis and advocacy. Our 
goal is to ensure that future generations will enjoy the clean air and 
water, wildlife, beauty and opportunities for recreation and renewal 
that pristine forests, rivers, deserts and mountains provide. With 
200,000 members nationwide, 700 of whom live in Alaska, The Wilderness 
Society and its members have had a long-standing involvement in the 
history of land law in Alaska and the protection of the extraordinary 
wilderness and wildlife values of the national interest lands in Alaska 
since its founding.

                           SUMMARY STATEMENT

    The Wilderness Society shares the goal to facilitate expeditious 
transfer and settlement of title to public lands in Alaska rightfully 
selected under authorization by Congress as Native allotments, 
Statehood grants, and Native claims. We applaud efforts to do that. The 
passage of the Native Allotment Act, the Alaska Statehood Act, the 
Alaska Native Claims Settlement Act (ANCSA), and the Alaska National 
Interest Lands Conservation Act (ANILCA) have set up land claims that 
must be meshed with each other where conflicting claims exist. We 
should all be able to agree that there can be no certainty to 
management on any lands in Alaska where there exists uncertainty of 
ownership.
    We agree that there is a need to complete the land selection and 
conveyance processes in Alaska. However, we are disappointed that S. 
1466 makes no assertions of purposes or findings of fact to justify the 
need for the specific provisions of this proposed legislation and has 
had no preparatory public process, such as a Legislative Environmental 
Impact Statement (LEIS), to develop those purposes and facts. Further, 
we initially find there are provisions of S. 1466 that would contravene 
ANILCA and other laws, grant unwarranted administrative authority, and 
raise unanswered concerns such that we oppose them. While we are 
initially specifically concerned about Sections 106, 107, 201, 204, 
207, 209, 212, 213, and 501, we have not had time to evaluate all parts 
of S. 1466 and may find other areas of concern as well. We are also 
concerned that S. 1466 has come up quickly without sufficient time for 
Senator Murkowski and the U.S. Department of the Interior to fully 
explain the need for it, and for the public to study it, understand it, 
and develop informed opinions about it to allow thoughtful debate. We 
hope that there will be sufficient additional public process and time 
for the public to address these concerns in subsequent steps of 
consideration of S. 1466. Until our concerns and questions are 
answered, we cannot support this bill and oppose its movement through 
Congress.

                        DISCUSSION AND ANALYSIS

    Before deciding what aspects of S. 1466 are truly needed, we must 
first ask for an explanation and justification of why current law, as 
enacted and amended, does not achieve that. We do understand the legal 
and physical complexity of resolving issues of ownership where 
overlapping or adjacent claims of Native allotments, State selections 
under the Alaska Statehood Act, Native claims under ANCSA, Conservation 
System Units and public lands under ANILCA, and other private interests 
intersect or coincide. We are also aware of the effort that BLM has 
been making in Alaska to discern what is needed to help expedite 
reaching settlements on patents and conveyances, and believe that the 
public process could benefit from a public reporting and accounting of 
their findings, preferably through a LEIS process. We do not want to 
see a solution that is worse than the current practices and procedures. 
Any expedited or accelerated land transfer process must still meet the 
tests of the intent of the original actions of Congress and adhere to 
the same fairness of tests of fact now provided.
    There is also a case to be made that Congress should first hold 
oversight hearings on the implementation of these existing laws before 
venturing forth with new legislation such as S. 1466 that may create 
unintended consequences in trying to accelerate the process. Each of 
these laws governing land selections for Native allotments, Statehood, 
Native claims, and ANILCA took Congress and the public several years to 
craft, debate, and pass because of the enormity and complexity of the 
public policy questions involved. Congress should be just as thoughtful 
in trying to find ways to speed up and expedite the claims settlement 
process. Congress has a rich history of conducting such oversight that 
could be useful and we urge that that be done here.
    We wish to draw attention to the actual status of the settlement of 
land claims as one measure of what the goals are that the agencies are 
trying to accomplish and the magnitude of the issues that must be 
addressed to expedite the process. Attachment A, ``Summary of Status of 
Alaska Land Claims,'' * is provided as a picture of how much progress 
has been made to resolve these claims (Source: BLM Alaska State Office 
Workload Analysis Summary 07-25-03). As one can see from this analysis, 
the State of Alaska selections are 39% patented, 45% tentatively 
approved and interim conveyed, with 16% remaining to be settled from 
what has been selected. Similarly, the Alaska Native claims are 39% 
patented, 40% tentatively approved and interim conveyed, with 21 % 
remaining to be settled from what has been selected. We draw attention 
to these facts because we believe that they should factor into the kind 
of solutions sought and applied. Patented lands are complete in their 
conveyance. Tentatively approved and interim conveyed are done except 
for boundary surveys and patenting. The remaining entitlements have 
been selected as part of over-selections allowed in the original 
statutes but have not been decided because of a variety of reasons that 
include such things as setting priorities for final selections and 
resolving conflicting claims with other claimants. We believe that 
there are differences in the solutions needed between these classes of 
settlement status. The tentatively approved and interim conveyed 
classes have a different set of administrative needs to complete than 
do the remaining entitlements, and any new legislative procedures to 
accelerate conveyance should recognize those differences. We do not see 
those distinctions of classes and stages of completion made clear in S. 
1466.
---------------------------------------------------------------------------
    * The attachment has been retained in subcommittee files.
---------------------------------------------------------------------------
    Which raises several concerns and questions to The Wilderness 
Society regarding S. 1466 that we believe should be answered before any 
bill proceeds:

          (1) How many acres of public land are actually affected by S. 
        1466?
          (2) How many acres of public land are affected by each 
        provision of S. 1466?
          (3) How many acres of ANILCA Conservation System Units are 
        affected by S. 1466?
          (4) Will S. 1466 add to the parties' entitlements under 
        existing law and if so, how many acres, where, and from where 
        will it come?
          (5) Will any aspects of S. 1466 reopen and/or change existing 
        patented land settlements, and if so, how much and where?
          (6) How are the conflicting priorities of Statehood claims, 
        Native claims, Native allotments, and ANILCA Conservation 
        System Units to be settled by S. 1466, and how is the public 
        involved in settling those conflicts?
          (7) Would the sponsors of S. 1466 and the Department of the 
        Interior commit to conducting a Legislative Environmental 
        Impact Statement (LEIS) or LEIS-type of process to answer these 
        and many more questions that flow from the enormity of what S. 
        1466 could affect?

    The Wilderness Society has expressed initial concern above in our 
Summary Statement about Sections 106, 107, 201, 204, 207, 209, 212, 
213, and 501. We find these provisions of S. 1466 would contravene 
ANILCA and other laws, grant unwarranted administrative authority, or 
raise unanswered concerns such that we oppose them. By reference, we 
are signatories to and incorporate the testimony of Trustees for Alaska 
as if it is our own and defer to Trustees to review S. 1466. Below, by 
way of example of the concerns we have with S. 1466, we specifically 
address Sections 204, 209, 213, and 501 as follows:
    Section 204. Discretionary Authority to Convey Subsurface Estate in 
Pre-ANCSA Refuges: This provision would give the Secretary authority to 
allow Alaska Native Regional Corporations to select subsurface land 
under village corporation surface lands within pre-ANCSA National 
Wildlife Refuges (except for Kodiak and Kenai). In order to protect the 
purposes for which these refuges were established this practice is not 
allowed under current law and we strongly oppose allowing it now.
    Section 209. Bureau of Land Management Land: This provision would 
allow the Secretary to open or close BLM lands in Alaska that are 
withdrawn under Section 17(d)(1) of ANCSA to any and all forms of 
appropriation under the public land laws without prior notice, 
opportunity for public comment, environmental review, or judicial 
review;- This provision would effectively remove BLM lands in Alaska 
from having to comply with the Federal Land Policy & Management Act 
(FLPMA) and would grant an extraordinary and unprecedented amount of 
authority without accountability to the Secretary. We strongly oppose 
this provision.
    Section 213. Conveyance to Kaktovik Inupiat Corporation and Arctic 
Slope Regional Corporation: This provision requires the Secretary to 
convey certain lands on the coastal plain of the Arctic National 
Wildlife Refuge to the Kaktovik Inupiat Corporation and the Arctic 
Slope Regional Corporation. Congress has previously acted to prohibit 
further conveyances of lands within the coastal plan of the Arctic 
National Wildlife Refuge and we can see no justification for doing it 
at this time. We strongly oppose this provision.
    Title V--Alaska Land Claims Hearings and Appeals Section 501: This 
provision authorizes the Secretary to create a new appeals and hearing 
process for conveyances under the Act, appoint administrative law 
judges ``or other officers'' for specified terms, and promulgate final 
regulations governing procedure without an opportunity for public 
review. This provision effectively removes all of these proceedings 
from the established procedures of the Interior Board of Land Appeals 
(IBLA). We strongly oppose this provision.

                               CONCLUSION

    The enormity of the discretionary administrative authority that 
would be granted without accountability to the Secretary of the 
Interior by many provisions of S. 1466 is staggering and unprecedented. 
It does not come close to meeting historic standards of checks and 
balances and openness in public process. Regardless of ones commitment 
to the justifiable need to complete all land selections and conveyances 
to achieve certainty in land ownership and management, it is hard to 
believe that such a permissive grant of authority is either warranted 
or justified to solve any problem. We strongly oppose such action. 
Where S. 1466 would facilitate the reopening of selection rights and 
further cloud resolution of ownership and management by broadening the 
scope of what must be resolved, we also strongly oppose it.
    We are just beginning to evaluate S. 1466 and want to find workable 
solutions to the need to complete all land selections and conveyances, 
but from our initial understanding of the bill we do not believe that 
S. 1466 does that. The solutions may lie more in appropriating 
sufficient resources to expedite the survey work and in streamlining 
procedural requirements rather than trying short circuit the statutory 
requirements as S. 1466 appears to do.
    There are many unanswered questions about S. 1466. The Wilderness 
Society believes that more information is required to justify this 
legislation, that there should be a LEIS or LEIS-type of public process 
to generate answers to these questions, and that Congress should hold 
oversight hearings on how best to address these very complex issues 
before any legislation proceeds. We cannot support S. 1466 as drafted 
but stand ready to help resolve these issues.
    We again thank the committee for this opportunity to comment on S. 
1466 and these important issues affecting Alaska lands.

                                 ______
                                 
      Statement of Chris E. McNeil, Jr., Chief Executive Officer, 
                          Sealaska Corporation

    Mr. Chairman and members of the committee, thank you for the 
opportunity to testify on behalf of Sealaska Corporation regarding 
Senate Bill 1354, the ``Cape Fox Land Entitlement Adjustment Act of 
2003.'' Sealaska is the Regional Native Corporation for Southeast 
Alaska under the Alaska Native Claims Settlement Act (``ANCSA'').
    Sealaska Corporation supports the enactment of S. 1354 because it:

   allows for native ownership of a recognized Native historic 
        site;
   creates a potential opportunity for jobs for Sealaska 
        shareholders;
   creates business opportunities for Sealaska and other Native 
        Corporations in services relating to mine development;
   makes another step towards the fair resolution of Alaska 
        Native Land Claims Settlement Act; and
   resolves management inefficiencies for Sealaska and the 
        United States Forest Service on the Tongass National Forest.

    The bill provides for adjustments to resolve inequities in Cape 
Fox's outstanding land entitlements under ANCSA. The adjustments to 
Cape Fox surface land and selection rights in turn require adjustments 
concerning Sealaska's title and ANCSA conveyance rights to subsurface 
lands underlying the Cape Fox lands. S. 1354 provides for these 
adjustments. S. 1354 also resolves land encumbrances that negatively 
impact the USDA Forest Service management of certain split-estate lands 
(USDA is the surface owner and Sealaska is the subsurface owner) and 
ensure that valid subsurface selection rights in which Sealaska has 
conveyance rights to the subsurface beneath Tongass National Forest 
surface lands do not create more split-estate. This legislation will 
ensure that the split-estate areas do not present a continuing 
encumbrance and management problem for the Forest Service. The bill 
resolves the outstanding Cape Fox and related Sealaska entitlement 
issues in a fair manner that furthers the objectives of ANCSA, benefits 
Tongass National Forest management, and otherwise serves the public 
interest.
    The resolution of these issues in S. 1354 incorporates exchanges of 
Cape Fox and Sealaska lands and conveyance rights for equal value lands 
in the Kensington and Jualin mining district area on the Tongass 
National Forest. The transfer to Sealaska and Cape Fox of adjacent 
tracts in this area, as provided in the bill, will eliminate from the 
national forest lands that are already heavily encumbered with 
unpatented mining claims. This is an area that is already zoned under 
the Tongass Land Management Plan for mining development. This area 
surrounds patented claim, private land inholdings.
    The simplifications of national forest boundaries and management 
that will be achieved through the exchanges are of substantial benefit 
to Tongass management and the public. The exchanges will not have any 
significant effects on Forest resources, uses, or values. The exchanges 
do not involve any Berners Bay LUD II lands. Any mine development in 
the area will remain subject to federal and state environmental 
protection requirements.
    The claim holders are consenting to these exchanges. The ANCSA 
conveyances to Cape Fox and Sealaska in these exchanges will remain 
fully subject to all existing mining claims, State of Alaska selections 
and rights-of-way, and other existing third-party rights. The exchanges 
will provide Alaska Natives an opportunity to participate with the 
claim holders and gain experience in mine development and related 
enterprises, including potential jobs for Sealaska shareholders.
    The Sealaska/Forest Service exchange provided for in S. 1354 also 
allows Sealaska to receive conveyance to a site of historical value to 
Native shareholders in the vicinity of Slate Creek Cove. This site has 
not been eligible for selection and conveyance under Section 14(h)(1) 
of ANSCA because of the presence of mining claims. Once conveyed, 
guidance for the protection of this site will be provided through the 
Sealaska Heritage Institute (``SHI''), its Board of Trustees and 
Committee of Traditional Scholars. SHI was organized to preserve the 
language and culture of Tlingit, Haida and Tsimshian Indians.
    Sealaska is confident that the parties can expeditiously reach 
agreement regarding the equal value of the particular lands to be 
specified for the exchange, as provided in S. 1354. Significant 
progress has already been made to that end. Sealaska and the Forest 
Service have achieved substantial progress already on other elements of 
the Sealaska/Forest Service land exchange provided for in the bill.
    The Sealaska exchange in the bill can be accomplished 
administratively with the Forest Service without the need for 
legislation, as an additional modification of the existing Sealaska/
Forest Service Split Estate Exchange Agreement under Section 17 of the 
Alaska Land Status Technical Corrections Act of 1992, Pub. L. 102-415. 
However, enactment of S. 1354 will facilitate and expedite the 
exchange, and assure that the Sealaska exchange is completed in 
conjunction with the resolution of the Cape Fox entitlement issues 
incorporated in the bill.
    In conclusion, Sealaska supports prompt enactment of S. 1354 into 
law. Sealaska stands ready to actively cooperate with the Secretaries 
of Agriculture and the Interior and with Cape Fox to implement S. 1354 
once enacted.

                                 ______
                                 
 Statement of Buck Lindekugel, Conservation Director, Southeast Alaska 
                    Conservation Council, on S. 1354

    My name is Buck Lindekugel and I am the Conservation Director for 
the Southeast Alaska Conservation Council (SEACC). The following 
statement is submitted on behalf of SEACC. SEACC respectfully requests 
that this written statement and accompanying materials be entered into 
the official record of this Subcommittee hearing.*
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    * The exhibits accompanying this statement have been retained in 
subcommittee files.
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    Founded in 1970, SEACC is a grassroots coalition of 18 volunteer, 
non-profit conservation groups made up of local citizens in 14 
Southeast Alaska communities that stretch from Ketchikan to Yakutat. 
SEACC's individual members include commercial fishermen, Alaska 
Natives, small timber operators, hunters and guides, and Alaskans from 
all walks of life. SEACC is dedicated to preserving the integrity of 
Southeast Alaska's unsurpassed natural environment while providing for 
balanced, sustainable uses of our region's resources.
    On behalf of herself and Senator Stevens, Senator Lisa Murkowski 
re-introduced the Cape Fox Land Entitlement Adjustment Act of 2003, S. 
1354, 108th Cong. (2003) [hereinafter S. 1354], on June 26, 2003. This 
legislation is identical to the bill, S. 2222, that was passed with a 
raft of Alaska land bills by the U.S. Senate at the end of its lameduck 
session on November 19, 2002, but died when the U.S. House adjourned 
without passing it. That bill, S. 2222, had been sponsored by her 
father, former Senator Frank Murkowski, currently Governor of Alaska. 
SEACC opposed S. 2222 in our testimony before this Subcommittee on June 
18, 2002, and we oppose S. 1354 now.
    The exchange of pristine public lands in the Slate Cove area of 
Berners Bay, north of Juneau, for clearcut private lands that this bill 
sets forth is poor policy, creates dangerous precedents, and is 
contrary to the public interest. We oppose S. 1354 because it:

   threatens the public's access and use of these wildlands for 
        hunting, fishing, and recreation, as well as the interests of 
        the Auk Kwaan, the original settlers of the Juneau area, in 
        protecting their ancestral lands,
   frustrates the finality of the Alaska Native Claims 
        Settlement Act (ANCSA) and invites additional land-selection 
        conflicts across Alaska, and
   facilitates the temporary and illusory benefits from private 
        development of the Kensington Gold Mine at the expense of 
        continued public access and use of Berners Bay's outstanding 
        resources.

    This ill-conceived and shortsighted bill would give Cape Fox 
Corporation and Sealaska Corporation over 2,600 and 9,300 acres, 
respectively, of Tongass National Forest lands in the area of Berners 
Bay, 40 miles north of Juneau. See Exhibit 1.\1\ In exchange, Cape Fox 
would trade approximately 3,000 acres of its private lands near 
Ketchikan, Alaska that have already been clearcut and will have little 
if any wildlife habitat value for hundreds of years.\2\ Sealaska would 
exchange: 1) the subsurface estate underlying the Cape Fox exchange 
lands; 2) the subsurface estate it owns underlying certain Tongass 
National Forest lands; and 3) the rights to the subsurface estate of 
some Tongass National Forest lands remaining to be conveyed to it under 
ANCSA. See S. 1354, Section 6(c). Section 4(a) of S. 1354 also 
authorizes Cape Fox to select approximately 99 acres of Tongass 
National Forest lands outside Cape Fox's current exterior selection 
boundary.
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    \1\ Photograph of Slate Cove in Berners Bay. The orientation of the 
photo is north. The core area of subsurface development at the 
Kensington Gold Mine is to take place underneath Lions Head Mountain, 
the prominent peak in the photo. On the left side of the photo is the 
fjord called Lynn Canal, and on the right side is a main portion of 
Berners Bay. Slate Cove appears in the foreground. The road coming to 
saltwater on the right side of Slate Cove would be used for surface 
access to the mine site. Below the photo are two maps: the left map 
shows the location of Bemers Bay; the right map shows Tongass lands 
that would be conveyed to Cape Fox and Sealaska under S. 1354.
    \2\ See Alaback, ``A Comparison of Old-Growth Forest Structure in 
the Western Hemlock-Sitka Spruce Forests of Southeast Alaska.'' In: 
Proceedings: Fish and wildlife relationships in old growth forests. 
American Institute of Fishery Research Biologists. p. 220-21 (1984).

        Berners Bay is Important to Residents of Juneau and Other Lynn 
        Canal Residents Because of Its Hunting, Fishing, Recreation, 
        Cultural, and Spiritual Values. Privatizing Pristine National 
        Forest Lands Here Would Limit Public Access to Hunting, Fishing 
        and Cultural Resources and Harm Important Environmental 
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        Resources in the Bay.

    Berners Bay is a large inland bay and glacial valley complex 
located on the mainland north of Juneau. The Berners, Lace, and Antler/
Gilkey Rivers are major anadromous fish streams flowing into the 
bay.\3\ They produce four (4) species of salmon along with rainbow, 
steelhead, cutthroat, and Dolly Varden trout and provide good 
commercial fishing values and sport fishing opportunities. Berners 
Bay's proximity to Juneau makes it a very popular boating and 
recreation destination for Juneau residents. The area also provides a 
high quality moose hunting experience and supports healthy populations 
of wolves, brown bears, and black bears.
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    \3\ An intensive assessment of fish and wildlife values on the 
Tongass by the Alaska Department of Fish and Game (ADF&G) identified 
the watersheds in Berners Bay as containing some of the most productive 
salmon streams in the Tongass National Forest. See Alaska Dept. of Fish 
and Game, Tongass Fish and Wildlife Resource Assessment 1998.
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    S. 1354 would harm these uses because when conveyed to private 
corporate ownership these lands could be clearcut, resold, or otherwise 
developed to support industrial activities in Berners Bay. Native 
corporations in Southeast Alaska have a long history of clearcutting 
lands to maximize revenue with little regard for fish, wildlife, 
recreation, or other public uses. Once privatized, public access would 
be denied to lands now open to the public for fishing, hunting, and 
recreation.\4\
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    \4\ See Letter from Berland, Lynn Canal Conservation to Senator 
Bingaman (June 14, 2002) (following up on earlier May 9, 2002 letter 
(attached) (Exhibit 2). The photo described in the May 9th letter is 
the same photo attached to this testimony as Exhibit 1.
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    Many Southeast Alaskans adamantly oppose this land exchange. A 
number of individuals have written letters to Senator Lisa Murkowski 
and other senators as well as the local newspaper, the Juneau Empire, 
in support of Berners Bay and its many uses. We have attached these 
letters and news articles to this testimony in Exhibit 3. We provide 
some quotations from these letters here:

          ``Berners Bay is a wonderful place, a public place, a 
        treasure place. To develop it, to log it, to dump mine tailings 
        on it would be to despoil a natural treasure. It should remain 
        natural public land, a legacy for your children and 
        grandchildren and mine.'' Judith Maier
          ``Nobody needs to sell lots, log, or do anything any 
        different than what nature has done in Berners Bay.'' Marian 
        Marin
        ``Berners Bay is one of Juneau's prime hunting, fishing, and 
        recreating areas. It's also an ESSENTIAL part of the Lynn Canal 
        ecosystem.'' Marina Lindsey

    The incredible natural values of Berners Bay astound locals and 
visitors alike each year:

          After a long Alaska winter, Berners Bay is an explosion of 
        life in the spring. Every year in late April or early May, 
        millions of hooligan arrive to spawn in the glacial rivers that 
        feed the bay. For a few short weeks, tens of thousands of 
        predators are drawn to the bay to prey on the [sardine-sized] 
        oily, nutritious fish.

    Woodford, Berners Bay, Juneau Empire, May 26, 2002, at C1 (Exhibit 
4; also at http://uncauempire.com/stories/index.htm]).
    As a critical component of the Berners Bay ecosystem, the energy-
rich hooligan arrive in the rivers of the bay at a crucial time to meet 
the high energy demands of their predators. During the summer of 1996, 
highest daily average counts identified 40,000 avian predators, 
including 585 bald eagles, and 250 Steller sea lions, harbor seals, and 
humpback whales.\5\ The development of industrial marine facilities 
associated with mining development in Slate Cove, such as shipping 
facilities, with the resulting increase in barge traffic and risk of 
fuel spills in Berriers Bay, threaten the hooligan spawning habitat 
and, in turn, all the predator species that depend upon them. (See 
additional discussion below.)
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    \5\ Marston, B.H., Willson, M.F., and Gende, S.M. 2002. Predator 
aggregations at a eulachon (Thaleichthys pacificus) spawning run in 
southeastern Alaska. Marine Ecology Progress Series. 231: 229-236.
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    The ancestral lands of the Auk Kwaan, the first settlers of the 
Juneau area, extended from Berners Bay to Seymour Canal, south of 
Juneau. The Auk Kwaan consider the lands and waters of Berners Bay both 
culturally and spiritually important. Berners Bay was used by the Auk 
Kwaan as a source of food and Indian medicine. It also contains several 
old village sites, ``and where there were villages there are burial 
sites.'' Auk Kwaan Tribal Leader Rosa Miller's Letter to the Editor, 
Protect ancestral lands from Murkowski's bill, Juneau Empire (May 1, 
2002) (Exhibit 5).
    In her June 13, 2002 letter (Exhibit 6) to Peter Gigante, then CEO 
of Cape Fox, Rosa Miller chastised Cape Fox Corporation for this breach 
of tradition:

          In the old days, when you traveled to someone else's 
        territory, you could not land your canoe until you got 
        permission from the clan, who lived in the area. We've heard 
        absolutely nothing from Cape Fox about your intentions for our 
        lands in Berners Bay.

    She goes on to remind Mr. Gigante that:

          Spirit Mountain (also known as Lionshead Mountain) is sacred 
        to us. Many times I have told the story about how our ancestors 
        are buried there including our Shaman. Shaman spirits dwell in 
        Spirit Mountain; this is a place that is important to the 
        Tlingit of the past, the Tlingit of the present, and the 
        Tlingit of the future. There are also old village sites in this 
        area.

    She concluded the letter by stating her hope that ``Cape Fox 
Corporation will do what is morally and ethically right and help to 
withdraw this harmful bill now.''
    When Rosa Miller learned that S. 1354 would be considered at this 
field hearing in Anchorage, she wrote Senator Lisa Murkowski requesting 
a hearing in Juneau on S. 1354. Although her letter prompted an 
invitation from the Subcommittee to testify at this field hearing, her 
request for a hearing in Juneau has thus far not been granted.
    In her letter to Senator Lisa Murkowski, Rosa Miller also expressed 
her disappointment at the lack of response from former Alaska Senator 
and current Governor Frank Murkowski to her many requests for 
assistance in protecting the Auk Kwaan's ancestral lands in Berners 
Bay. She wrote:

          I have written several letters . . . over the past five 
        years, asking him repeatedly for his help in protecting our 
        ancestral lands from proposed development projects such as the 
        Kensington Gold Project and the Juneau Access Road. Last year, 
        I wrote him again, urging him to help the Auk Kwaan by 
        withdrawing S. 2222. He never responded to any of my letters, 
        and did nothing to halt this bill. I've attached these letters 
        for your review.

    See Letter from Rosa Miller, Tribal Leader of the Auk Kwaan to 
Senator Lisa Murkowski (July 23, 2003) (Exhibit 7, with referenced 
letters).
    When it passed the Tongass Timber Reform Act in 1990, Congress 
identified 46,000 acres of the Berners Bay watershed as one of 12 areas 
on the Tongass to be managed in perpetuity in accordance with Land Use 
Designation II (LUD II) (no commercial logging allowed). This area was 
chosen for special management because of its high value fisheries 
habitat and the fact that it is a very popular recreational destination 
for local residents and visitors to Alaska. Recreational activities 
include kayaking, fishing, camping, trapping, and hunting. Protection 
for these special values has been recommended and supported by the 
Alaska Department of Fish and Game (ADF&G), Alaska communities, and 
commercial fishermen.\6\ By designating Berners Bay as a Legislated LUD 
II area, Congress directed the Forest Service to manage this area 
primarily ``in a roadless state to retain [its] wildland character.'' 
\7\ This special management designation requires that any permitted 
development, such as mining on patented claims, be limited in scope to 
be compatible with the area's wildland character. As noted by House 
Floor Manager Congressman George Miller, these lands ``will require 
careful and prudent management by the Forest Service.'' \8\
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    \6\ In 1983, ADF&G recommended that this area be ``reserve[d] 
permanently for protection of fish and wildlife.'' From 1987 to 1989, 
the communities of Juneau, Wrangell, Petersburg and Sitka supported 
protection of Berners Bay. In 1988, United Fishermen of Alaska included 
Berners Bay in a list of ``priority fish habitat areas deserving 
protection.''
    \7\ H.R. REP. NO. 101-931, 101st Cong., 2d Sess., at 16 (Oct. 23, 
1990) (Joint Explanatory Statement of the Committee of Conference on 
the Tongass Timber Reform Act).
    \8\ 136 CONG. REC. H12834 (Oct. 26, 1990 daily ed.) (Comments 
explaining what kind of management was required for Berners Bay and the 
other eleven designated LUD IIs in the Tongass Timber Reform Act).
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    Although the lands proposed for exchange in the Slate Cove area 
within Berners Bay are outside the area designated by Congress as a 
Legislated LUD 11 area, the exchange lands are immediately adjacent to 
and inextricably connected to the ecology of this entire productive 
watershed.\9\ If this exchange is approved, the Forest Service will 
lack any control or influence over how this block of private lands 
directly adjacent to Congressionally designated wildlands is developed. 
The Forest Service has stated:
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    \9\ The Alaska Department of Fish and Game has identified Slate 
Creek as important for the migration, spawning and rearing of 
anadromous fish. See Email from Schrader, ADF&G to Brown, SEACC (June 
14, 2002) (Exhibit 8). ``[R]esident Dolly Varden trout are present 
throughout the creek and in Slate Lake.'' Id.

          As acknowledged in the [Cascade Point Access Road 
        Environmental Impact Statement], the Forest Service has no 
        jurisdiction over private lands . . . and Forest Service policy 
        is to avoid regulation of private lands and to recognize the 
        rights of private land owners to reasonable access to and use 
---------------------------------------------------------------------------
        of their property. . . .''

    USFS, Region 10, Recommendation of Appeal Deciding Officer on 
Appeals of the Cascade Point Access Road Project at 4 (Mar. 31, 1999) 
(emphasis added).\10\
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    \10\ The Cascade Point Access Road project refers to the 1998 
approval by the Forest Service of a road easement to Goldbelt, Inc., 
the Juneau urban Native corporation, to access its property at Cascade 
Point on the southeast end of Berners Bay.

        ANCSA Did Not Treat Cape Fox Unfairly. S. 1354 Would Frustrate 
        The Finality Of ANCSA And Invite Additional Land-Selection 
---------------------------------------------------------------------------
        Conflicts Across Alaska.

    Senate Bill 1354 waives ANCSA's land selection requirements, 
inviting further land-selection conflicts across Alaska. The bill 
inaccurately suggests that this congressionally-mandated land 
conveyance is needed to address inequities suffered because Congress 
limited the national forest lands from which Cape Fox could make its 
land selections. See S. 1354, Sec. 2. But the argument that ANCSA needs 
to be modified as proposed in S. 1354 to address the equity of ANCSA's 
land selection criteria thirty years later is not compelling.
    To protect the water quality of Ketchikan's watersheds, ANCSA kept 
Cape Fox from selecting lands ``within a six-mile radius of 
Ketchikan.'' See 43 U.S.C. 1621(1). These limitations, however, did not 
place Cape Fox on an unequal economic footing relative to other village 
corporations in Southeast Alaska or other parts of Alaska.
    Cape Fox received the same amount of land as every other Southeast 
village and urban corporation under ANCSA (approximately 23,000 acres). 
Constraints on the selection of lands resulted in some disparities 
between the value of timberlands conveyed to each village and urban 
corporation in Southeast Alaska. However, the economic benefits 
realized per shareholder from logging these lands were divided between 
widely varying numbers of people. Cape Fox Corporation has fewer 
original shareholders (230 shareholders) than all but one other village 
corporation.\11\ Consequently, the direct financial benefit per 
shareholder was higher for Cape Fox than nearly all village 
corporations in Southeast Alaska.\12\
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    \11\ Only the village of Kasaan had fewer, with 119 shareholders. 
See Knapp, Native Timber Harvests in Southeast Alaska, Table 2 at p.7, 
USDA Forest Service, PNW-GTR-284 (1992) (Exhibit 9).
    \12\ See Institute for Social and Economic Research, University of 
Alaska, Anchorage, A Study of Five Southeast Alaska Communities, at p. 
94-97 (1994).
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    All Southeast Alaska village and urban corporations, including Cape 
Fox, are located on the water, and hence all were hindered in varying 
degrees from choosing lands from the full nine townships to which ANCSA 
gave them nominal selection rights. Yet, Cape Fox and the other 
Southeast Alaska village corporations faired far better economically 
than did most of the other 220 Alaska Native village corporations 
established by ANCSA, because they were able to select high value 
timberlands. Cape Fox fared better, not worse, then other village 
corporations under ANCSA.
    Cape Fox, like other Southeast Alaska village and urban ANCSA 
corporations, has cut virtually all the timber from the lands it 
selected under ANCSA in roughly 20 years. Plainly, S. 1354 sets the 
precedent that Congress will make additional grants of valuable Tongass 
National Forest lands as recompense for the unsustainable land 
management practices carried out on private lands by Cape Fox and other 
Southeast Alaska ANCSA corporations. Clearly, it would frustrate the 
finality of the ANCSA settlement. See Alaska v. Native Village of 
Venetie Tribal Govt., 522 U.S. 520, 523 (1998) (Congress enacted ANCSA 
``to settle all land claims by Alaska Natives.'')
    Moreover, forcing the Forest Service to convey pristine Tongass 
National Forest lands in exchange for stumps on clearcut, private 
corporation lands, as proposed in S. 1354, ignores the balanced 
multiple-use principles that should govern Tongass management. Such a 
legislatively mandated exchange would further deny any American 
citizen, the true owners of the Tongass National Forest, equal access 
to the use and enjoyment of the forest's natural resources. Any land 
exchanges on Tongass National Forest lands must be in the public 
interest and should be conducted through the Forest Service's existing 
administrative procedures under 36 C.F.R. Part 254.
    In the past, the Alaska Delegation has passed up opportunities to 
help Cape Fox realize economic benefits from developing its own 
existing lands. An example of such efforts, one that SEACC supported, 
was the development of the Mahoney Lake hydroelectric project by Cape 
Fox. ``[Cape Fox] selected this site under ANCSA primarily for its 
hydroelectric potential.'' See Letter from Gigante, Cape Fox CEO to 
Senator Frank Murkowski, p. 2 (Feb. 16, 2001) (Exhibit 10). But instead 
of helping Cape Fox pursue this project, the Alaska Delegation worked 
to stifle this private initiative by promoting other projects over the 
objections of Cape Fox. See Letter from Alaska Delegation to Boergers, 
FERC (Feb. 8, 2001) (Exhibit 11).

        S. 1354 Facilitates the Temporary and Illusory Benefits from 
        Private Development of the Kensington Gold Mine at the Expense 
        of Continued Public Access and Use of Berners Bay's Outstanding 
        Resources.

    As we detailed in last year's testimony, the proposed land exchange 
is directly related to plans by Coeur Mining Company to develop and 
operate the Kensington Gold Mine.\13\ As noted in a press release 
issued by former Senator Frank Murkowski's office on April 23, 2002, 
regarding last year's S. 2222 (Exhibit 13): ``The land to be selected 
near Slate Lakes, north of Berners Bay, will enable the proposed 
Kensington Gold Mine to operate totally on private land, which will 
help speed its development.'' However, the most critical factor slowing 
Coeur's development of this mine is not land ownership, but gold 
prices.\14\
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    \13\ See Inklebarger, Land swap could help open mine, Juneau Empire 
(April 26, 2002) (Exhibit 12).
    \14\ See Press Release from Coeur Alaska, Kensington gold project 
moving forward (April 25, 2002) (``Falling Gold prices have made the 
approved plan economically infeasible.'') (Exhibit 14).
---------------------------------------------------------------------------
    Although Coeur has possessed all the permits and other approvals it 
needs to develop the mine since 1998, it has redesigned the project 
several times in an effort to reduce operating costs and make the mine 
more profitable given projected gold prices. In an effort to reduce its 
waste disposal costs, Coeur's latest design modification includes 
dumping mine tailing waste into Slate Lake, a pristine mountain lake 
that flows into a productive salmon stream in Berners Bay.\15\ Such a 
proposal violates the Clean Water Act because the intent of Congress in 
enacting this important statute was to treat waste, not dilute it by 
mixing it with uncontaminated fresh waters.\16\ Slate Lake is ``a water 
of the United States'' and to convert it into a mining waste disposal 
facility is flatly inconsistent with the primary goal of the Clean 
Water Act ``to . . . maintain the chemical, physical, and biological 
integrity of the Nation's water.'' See 33 U.S.C. Sec. 1251(a). Coeur's 
amended plan of operations will lead to substantial legal controversy 
both inside and outside of Alaska.
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    \15\ Although Coeur describes Slate Lake as a ``muskeg lake'', the 
photo in Exhibit 1 to this Statement shows that it is a pristine, 
fresh-water lake.
    \16\ See Fry, EPA looks askance at Kensington Mine's plan, Juneau 
Empire (November 3, 2002) (Exhibit 15)
---------------------------------------------------------------------------
    To further the development plans for operation of the mine, the 
maximum life of which is expected to be only 15 years, Coeur has 
entered into land-use agreements with both Cape Fox and Sealaska 
corporations to use. the Berners Bay lands these corporations would 
gain through S. 1354. See Exhibit 14 at 2. Coeur has already entered 
into a similar agreement with another ANCSA corporation, Goldbelt, Inc. 
Coeur's new plan of operations proposes to construct a dock on Goldbelt 
land at Cascade Point to ferry workers across the bay to Slate Cove, 
rather than housing workers on site. Berners Bay would be transited 6 
to 10 times each day by ferries transporting mine workers. In addition, 
huge barges, 286 long and 75 wide or larger, would make multiple 
trips each week to transport ore, fuel, and supplies across the 
bay.\17\ Degradation of the quality of the clean, biologically-
productive waters of Berners Bay by this commercial traffic would be 
very likely.
---------------------------------------------------------------------------
    \17\ Coeur Alaska, Inc. Amended Plan of Operations for the 
Kensington Gold Project (November 2001), at 217 to 2-18.
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    In sum, Coeur's latest plan of operations, which S. 1354 would 
greatly expedite, is inconsistent with managing Berners Bay for the 
long-term benefit of all the current public uses. Industrial mine 
development, particularly the proposed mine tailings dump, within the 
Berners Bay watershed will harm existing public use of the bay for 
fishing, hunting, and recreation. There are also grave risks associated 
with development and operation of the mine. If the proposed dam ever 
failed, nothing would stand between the toxic sediments stored behind 
it and the rich marine resources in Berners Bay.

    seacc's additional concerns with specific provisions of s. 1354

1. Effect of Proposed Conveyances on Public Access and Uses
    As introduced in 2002, Section 5(b) of S. 2222 included language 
directing that ``[t]he Secretary of Agriculture shall exclude from the 
lands offered all land from the mean high tide mark to a point five 
hundred feet inland of all marine shorelands in and adjacent to the 
waters of Berners Bay; Provided, said exclusion shall not include any 
lands in the Slate Creek Cove area within [property description].'' By 
not including this proviso, S. 1354 substantially increases the harm to 
public access and uses from the proposed exchange. This zone, from 
marine waters across the tidelands and upland 500 feet, is some of the 
most heavily used and valuable lands in the exchange area. A review of 
Exhibit 1 shows the substantial amount of shoreline in Berners Bay and 
outside of Slate Cove proper that this bill would effectively close to 
public access and use.

2. Valuation of Exchanged Land
    Under existing law, any exchange of public lands with ANCSA 
corporations must ``be on the basis of equal value.'' See 43 U.S.C. 
Sec. 1621(f); 16 U.S.C. Sec. 3192(h)(1). Sections 5(d) and 6(b) of the 
S. 1354 requires the Secretary of Agriculture to ``determine'' that the 
lands to be exchanged by Cape Fox and Sealaska are of equal value to 
the lands the corporations will receive under S. 1354. This provision, 
however, does not specify how such a determination will be made or if 
it will be subject to public notice, comment, and environmental review 
under the National Environmental Policy Act as required by agency 
regulations. See 36 C.F.R. Sec. Sec. 254.3(c), 254.8, and 254.3(g). It 
is poor public policy for Congress to exempt this, or any other 
exchange of public lands, from these basic regulatory requirements.

3. The Bill Could Increase Sealaska's Land Entitlement Under ANCSA
    Senate Bill 1354 proposes to trade roughly 12,000 acres of high-
value public wildlands in Berners Bay to Cape Fox and Sealaska 
Corporations in exchange for approximately 3,000 acres of Cape Fox's 
mostly clearcut private lands and 8,104 acres of assorted Sealaska 
subsurface lands. Although section 7(d) claims that ``[n]othing in this 
Act shall be construed to change the total acreage of land entitlement 
of Cape Fox or Sealaska under ANCSA,'' this same section explicitly 
exempts the lands received by Sealaska under section 6 from being 
charged against Sealaska's ANCSA entitlement. Under Section 6(b), 
Sealaska would receive approximately 9,329 acres of surface and 
subsurface lands and relinquish approximately 8,104 acres of subsurface 
lands. Yet, as drafted, S. 3154 would not charge Sealaska for the 
excess 1,225 acres lands it receives in exchange for its subsurface 
acres against its entitlement under ANCSA. Consequently, the bill, in 
effect, reopens ANCSA by increasing the acreage of the Tongass National 
Forest that Sealaska is entitled to collect under that law.

4. Replacement of Old Growth Reserves vis a vis Old Growth Forest
    Section 7(h) directs the Secretary of Agriculture to ``add an equal 
number of acres of old growth reserves on the Tongass National Forest 
as are transferred out of Federal ownership as a result of this Act.'' 
``Old growth reserve'' refers to areas of old growth forest 
specifically designated and set aside by the 1997 Tongass Land 
Management Plan to provide habitat for old-growth-dependent wildlife. 
If the exchanges under this bill occur, the Forest Service would be 
required to replace only 3,625 acres of old growth reserve, even 
though, in actuality, at least twice that amount of old-growth forest 
will be exchanged.\18\ This represents a net loss of productive old 
growth forest on the Tongass.
---------------------------------------------------------------------------
    \18\ See USFS, Final Supplemental EIS for Tongass Roadless Area 
Evaluation for Wilderness Recommendations, Vol. 11, Appendix C--Part 1 
at p. C1-475 (2003).
---------------------------------------------------------------------------
5. Other Concerns
    Senate Bill 1354 completely exempts the lands subject to this 
exchange from the requirement in Forest Service regulations for 
``market value'' appraisals. Compare Section 7(a) of S. 1354 with 36 
C.F.R. 254.9.
    In addition, S. 1354 modifies agency exchange procedures by 
mandating the conveyance of lands and interests identified by Cape Fox 
and Sealaska. Existing Forest Service regulations, however, recognize 
that land exchanges are supposed to be discretionary, voluntary real-
estate transactions and completed only if the Forest Service determines 
that the exchange will serve the public interest. 36 C.F.R. 
Sec. 254.3(a)-(b). Clearly, S. 1354 is a poor substitute for the 
requirements of Forest Service regulations and appears more intent on 
furthering private interests than satisfying the broader public 
interest.

                               CONCLUSION

    Berners Bay is important to residents of Juneau and other Lynn 
Canal residents because of its hunting, fishing, recreation, cultural 
and spiritual values. Privatizing pristine national forest lands here 
would limit public access to hunting, fishing and cultural resources. 
This proposed land trade will also facilitate the private development 
of the Kensington Gold Mine at the expense of existing uses of, and 
environmental harm to, Berners Bay's incredible natural resources.
    Real problems with ANCSA should be solved by soliciting public 
input from all concerned Alaskans, respecting all forest users, and 
maintaining the integrity of the Tongass National Forest and other 
federal lands. We urge the committee to stop S. 1354 in its tracks. 
Trades, such as proposed in S. 1354, should not be mandated by Congress 
but enacted through existing administrative mechanisms and based upon 
the presumption that the greater public good will be served.
    Thank you for this opportunity to comment on this legislation 
important to Southeast Alaskans.

                                 ______
                                 
 Statement of Buck Lindekugel, Conservation Director, Southeast Alaska 
                    Conservation Council, on S. 1421

    The following statement is submitted on behalf of the Southeast 
Alaska Conservation Council (SEACC). SEACC respectfully requests that 
this written statement and accompanying materials be entered into the 
official record of this Subcommittee hearing.
    Founded in 1970, SEACC is a grassroots coalition of 18 volunteer, 
non-profit conservation groups made up of local citizens in 14 
Southeast Alaska communities that stretch from Ketchikan to Yakutat. 
SEACC's individual members include commercial fishermen, Alaskan 
Natives, small timber operators, hunters and guides, and Alaskans from 
all walks of life. SEACC is dedicated to preserving the integrity of 
Southeast Alaska's unsurpassed natural environment while providing for 
balanced, sustainable uses of our region's resources.
    Senator Lisa Murkowski introduced S. 1421 on July 16, 2003 to 
authorize the subdivision and dedication of restricted land by Alaska 
Natives. This bill is intended to provide Alaska Natives who own 
allotments ``with the same obligations and privileges of other private 
landowners in Alaska.'' 149 Cong. Rec. S9503 (July 16, 2003).
    In general, SEACC does not object to this legislation. Our primary 
concern, however, is the effect of this legislative proposal on Native 
allotments within Conservation System Units (CSU), as defined by 
section 102 of ANILCA. 16 U.S.C. Sec. 3102. In addition, other 
critically important national interest lands protected by Congress that 
are not CSUs, including legislated LUD II lands protected in their 
natural state ``in perpetuity'' by Congress in the 1990 Tongass Timber 
Reform Act, may also contain Native allotments.
    In the past, Congress has expressly recognized a policy of 
acquiring private lands and interests in land within CSUs on the 
Tongass. In the Greens Creek Land Exchange Act of 1995, Congress 
specifically authorized the Forest Service to use the first $5,000,000 
in royalties, received by the United States from the sale of minerals 
from the development of subsurface lands on specified lands within the 
non-wilderness portion of the Admiralty Island National Monument to 
acquire private lands, including Native Allotments, within this and 
other Tongass CSUs.
    We are concerned that, as drafted, S. 1421 would allow Native 
owners of allotments in CSUs to subdivide these allotments, and thereby 
complicate and possibly frustrate, Congressional intent to reacquire 
and manage these inholdings as part of the CSUs. We urge the 
Subcommittee to clarify that the right to subdivide and dedicate Native 
allotments under this bill is not intended to apply to those Native 
allotments in CSUs, or other critically important national interest 
lands that were protected in their natural state by Congress ``in 
perpetuity'' but are not CSUs, specifically the legislated LUD II lands 
in the 1990 Tongass Timber Reform Act.
    Thank you for this opportunity to submit this statement on this 
important legislation.

                                 ______
                                 
 Statement of Buck Lindekugel, Conservation Director, Southeast Alaska 
                    Conservation Council, on S. 1466

    The following statement is submitted on behalf of the Southeast 
Alaska Conservation Council (SEACC). SEACC respectfully requests that 
this written statement and accompanying materials be entered into the 
official record of this Subcommittee hearing.
    Founded in 1970, SEACC is a grassroots coalition of 18 volunteer, 
non-profit conservation groups made up of local citizens in 14 
Southeast Alaska communities that stretch from Ketchikan to Yakutat. 
SEACC's individual members include commercial fishermen, Alaskan 
Natives, small timber operators, hunters and guides, and Alaskans from 
all walks of life. SEACC is dedicated to preserving the integrity of 
Southeast Alaska's unsurpassed natural environment while providing for 
balanced, sustainable uses of our region's resources.
    Senator Lisa Murkowski introduced S. 1466 on July 25, 2003. The 
scope and complexity of this bill is understandable given that the 
transfer of Alaska federal lands to Alaska Natives, the State of 
Alaska, and Alaska Native Corporations is the largest and most complex 
land conveyance program in the history of the United States. Although 
Senator Murkowski justifies this legislation as necessary to bring 
closure to the land entitlement process in Alaska, the bill actually 
raises a number of very significant environmental concerns and other 
significant questions which it does not answer. Given these factors, 
and the relatively short time available to prepare testimony for this 
field hearing, we offer these preliminary comments for your 
consideration as you begin your review of this legislative proposal, 
which would have enormous ramifications for Alaska. We urge you not to 
rush this bill. Instead, please take a hard look at the wide-ranging 
consequences of this proposed legislation on federal lands in Alaska.

Will S. 1466 Fast Track The Alaska Land Conveyance Process At The 
        Expense of Legitimate Community Concerns?
    As Senator Murkowski explained in her statement when she introduced 
S. 1466, ``[t]he Alaska Land Transfer Acceleration Act of 2003 imposes 
very strict provisions on [the Bureau of Land Management] to complete 
land conveyances by 2009 to Alaska Natives, the State of Alaska and to 
Native Corporations.'' 149 Cong. Rec. S9976 (July 25, 2003).
    Senate Bill 1466 seeks to accomplish this ambitious schedule by 
substituting the existing open and formal process for determining land 
entitlements with a process that leaves the public and affected 
communities in the dark. Section 106 authorizes the Secretary of 
Interior to negotiate binding, written agreements with the State of 
Alaska with respect to any subject that may assist in completing the 
conveyance of federal land to the State, including the exact number and 
location of acres. Section 212 similarly gives the Secretary authority 
to negotiate agreements with Native corporations concerning any issue 
that may help complete the conveyance process, including the amount and 
location of the corporations remaining entitlements.
    We agree that it may make sense to allow for negotiations and 
informal agreements to help resolve entitlement issues with the State 
of Alaska and Native corporations. The process set up by Sections 106 
and 212, however, raises serious concerns because neither section 
provides for public participation nor binds the Secretary's authority 
to restrictions that otherwise apply to State and Native selections 
under the Statehood Act, the Alaska Native Claims Settlement Act 
(ANCSA), the Alaska National Interest Lands Conservation Act (ANILCA), 
or other laws. One such limitation is the limitation on conveyances of 
lands within Conservation System Units (CSU), as defined by section 102 
of ANILCA, 16 U.S.C. Sec. 3102. See 16 U.S.C. Sec. 3209. Additionally, 
S. 1466 should be amended to safeguard other critically important 
national interest lands protected by Congress that are not CSUs, 
including legislated LUD II lands protected in their natural state in 
perpetuity by Congress in the 1990 Tongass Timber Reform Act.
    We can not emphasize enough the importance of assuring that the 
land conveyance process is open to public participation. We urge the 
Subcommittee to assure that efforts to speed up and complete land 
conveyances under the Statehood Act and ANCSA do not come at the 
expense of legitimate community concerns about the effect of such land 
conveyances on traditional community uses of affected public lands. 
Both sections 106 and 212 should, at a minimum, provide for publication 
of proposed agreements in the Federal Register and a 90-day public 
comment period.

Section 105--The University of Alaska's Entitlement
    Section 105(a) and (b) of S. 1466 declares the University of 
Alaska's remaining land entitlement to be 456 acres as of January 1, 
2003, and increases that entitlement to reflect the reconveyance of any 
land to the United States to accommodate conveyance of Native 
allotments. We understand that BLM estimates there to be approximately 
1,200 acres of these reconveyed lands. Section 105(b) authorizes the 
State, on behalf of the University, to select any isolated tract of 
public land that is vacant, unappropriated and unreserved, other than 
BLM lands withdrawn under Section 17(d)(1) of ANCSA.
    An earlier draft of S. 1466 required notice of the State's 
selections on behalf of the University of Alaska to be published in a 
local newspaper and subject to public comment, with those who commented 
entitled to notification of a final decision. We are troubled that 
Section 105(c) of S. 1466 no longer contains these requirements. As 
amended, the University could take title to ``high value'' lands within 
the Tongass and Chugach National Forests for purposes of development 
without giving local communities and Alaskans an opportunity to voice 
legitimate concerns about the effects of such conveyances on their uses 
of such lands.

Conveyance Of Land Entitlements Under Section 14(h)(8) of ANCSA
    Section 14(h) of ANCSA established a two million acre pool of lands 
from which several categories of entitlement were to be met, including 
the conveyance of cemetery sites and historical places, land 
entitlements for the urban Native corporations created by ANCSA, and 
Native allotments. According to section 14(h)(8), the remainder of 
lands not otherwise conveyed under this section were to be allocated 
and conveyed to the eligible Regional Corporations upon the basis of 
populations.
    Section 207 of S. 1466 creates two new alternative methods for 
finalizing acreage entitlements under Section 14(h)(8) of ANCSA. One 
method is the irrevocable election by a Regional Corporation, within 
one year of enactment, of the corporation's percentage share of 255,000 
acres, regardless of the actual acreage the corporation may have been 
eligible to receive. No basis is provided for this specified acreage; 
it is significantly higher than the BLM's estimate last summer of 
180,000-200,000 acres remaining in the pool of entitlement lands to be 
conveyed to the Regional Corporations.\1\ We are concerned that the 
255,000 acres specified in S. 1466 is an overly large estimate of the 
corporations' remaining entitlement under 14(h)(8). For example, S. 
1466 would greatly increase the allocation of lands Sealaska, the 
Regional Corporation for Southeast Alaska, could be conveyed from 
Tongass National Forest Lands. If Sealaska chooses this method, its 
remaining entitlement to lands in Southeast Alaska would be 55,590 
acres, significantly higher than the 39,000 to 43,000 acres estimated 
by BLM in 2002.
---------------------------------------------------------------------------
    \1\ See Letter from United States Department of Interior, Bureau of 
Land Management, Alaska State Office to McNeil, President and CEO of 
Sealaska Corporation (July 2, 2002) (attached as Exhibit 1).
    Note: The exhibits have been retained in subcommittee files.
---------------------------------------------------------------------------
    As an alternative method to taking its percentage share of the 
25,000 acres specified above, Section 207 would allow Sealaska to 
irrevocably elect, within one year, to enter into good faith 
negotiations with the Secretary of Interior to settle its final 
14(h)(8) entitlement based on the parties' estimate of the number of 
acres to which the corporation will be entitled. This negotiation must 
be completed within two (2) years or the corporation must wait to 
resolve its 14(h)(8) entitlement until administration of the entire 
14(h) program is completed, the original method adopted by Congress in 
ANCSA. Of greatest concern, the negotiations under this method would 
not be subject to prior notice, the opportunity for public review, or 
environmental review under the National Environmental Policy Act 
(NEPA).
    Section 208 of S. 1466 allows the Secretary of Interior to withdraw 
additional lands if a Regional Corporation does not have enough valid 
selections on file to fulfill its remaining entitlement from within the 
boundaries of lands originally withdrawn by BLM for Native corporation 
selections. This section prohibits the Secretary from withdrawing lands 
located within the boundaries of a conservation system unit (CSU), such 
as wilderness areas designated on the Tongass under ANILCA and the 
Tongass Timber Reform Act. This limitation does not, however, protect 
other critically important national interest lands that were protected 
in their natural state by Congress ``in perpetuity'' but are not CSUs, 
specifically the legislated LUD II lands in the 1990 Tongass Timber 
Reform Act. Safeguarding these key lands was strongly supported by 
Alaskans--including many communities, the State of Alaska, commercial 
fishing groups, tourism groups, Native Alaskan organizations, and many 
others. See Exhibit 2. Consequently, S. 1466 must be amended to exclude 
all Congressionally designated lands on the Tongass.

Alaska Land Claims Hearings and Appeals
    Section 501 of S. 1466 authorizes the Secretary of Interior to 
establish a hearings and appeals process for land transfer decisions 
issued by BLM regarding Native, Community, State, or University land 
selections in Alaska. Of greatest concern to SEACC, this section allows 
the Secretary to avoid the public process of notice and comment 
ordinarily applicable to agency promulgation of regulations and exempts 
the regulations from NEPA review. Although it is reasonable to 
establish an Alaska hearings unit to handle all Alaska appeals, 
creating an entirely new appeals process rather than providing more 
funds for the existing Interior Board of Land Appeals appears 
unreasonable to us.

Some Important Questions That Need Answers
    1. Exactly how many of CSUs are potentially affected by this bill?
    2. Were not the University of Alaska's remaining land entitlements 
subsumed under the Alaska Statehood Act or Section 906(b) of ANILCA?
    3. How did BLM determine that 255,000 acres of land was available 
for reallocation to the Regional Corporations under Section 14(h)(8) of 
ANCSA?
    4. What is the control date used for determining entitlements under 
this bill? Is it the date of the original entitlement or enactment of 
this legislation? What effect will either date have on the lands 
available for conveyance under this bill?
    5. Can surplus federal lands and properties be substituted for some 
of the remaining land entitlements? If so, how much surplus lands and 
properties are available and what is the value of these lands and 
properties?
    6. What were the reasons for selecting 2009 as the target date for 
completion of the conveyance of remaining land entitlements?
    7. How long did it take other states to receive their land 
entitlements? How many acres of federal land were those states entitled 
too?
    In conclusion, we respectfully request the Subcommittee to carry 
out a deliberate and careful scrutiny of this complex piece of 
legislation and resolve our unanswered questions, as well as those 
posed by others. We further urge the Subcommittee to assure that 
efforts to speed up and complete land conveyances under the Statehood 
Act and ANCSA do not come at the expense of legitimate concerns of 
local communities and residents about the effect of such land 
conveyances on traditional community uses of affected public lands.
    Thank you the opportunity to make preliminary comments on this 
proposed legislation.
                                 ______
                                 
                                 Hyak Mining Company, Inc.,
                                        Juneau, AK, August 5, 2003.
Hon. Larry Craig,
Public Lands and Forest Committee, Senate Energy Committee, Washington, 
        DC.
    Dear Senator Craig: Hyak Mining Company is a corporation, based in 
Juneau, Alaska that has been working to redevelop the mines in the area 
of Berners Bay, since 1978 when we restaked the former Jualin Mine. The 
relationships of Hyak's owners to the area reach back to 1891 when the 
great grandfather of the majority owners of Hyak discovered and staked 
the Comet mine now part of the Kensington mine property.
    Since 1978 we have been working diligently to explore for and 
develop the mineral deposits in that area. Hyak presently owns outright 
or has interests in 412 acres of patented mining claims and 
approximately 500 unpatented federal mining claims in the Berners Bay 
district. The unpatented claims, with few exceptions, are under lease 
to Coeur Alaska and are located on lands subject to the exchanges 
between the Cape Fox and Sealaska Corporations and the U.S. Forest 
Service proposed in Senate Bill 1354.
    Hyak has been generally apprised of the S. 1354 land exchange 
proposals from the initial stages. We have concluded that the proposed 
exchange is vital to the economic redevelopment of thee past producing 
mines in the Berners Bay area. As long as our existing rights are 
protected, Hyak Mining Company is in full support of these proposed 
exchanges.
    Redevelopment of the Berners Bay area mines will be enhanced by 
having neighboring private land owners who's interests are more closely 
aligned with the owners of the patented lands and unpatented claims in 
the area than the U.S. Forest Service. Hyak is looking forward to 
working with Coeur Alaska, Cape Fox Corporation and Sealaska to create 
a mining development district and redevelop the Kensington and Jualin 
mines. This will be a very important step toward bringing new 
investment and jobs to a region of Alaska that is in critical need of 
economic diversification. Hyak believes Coeur Alaska has developed a 
workable operations and transportation plan for redevelopment in the 
area. This plan is minimally intrusive from a environmental standpoint, 
and the safest and most reliable from an operations perspective.
    Thank you for your consideration of these comments. Hyak Mining 
Company urges the Committee to give favorable consideration to S. 1354.
            Sincerely
                                         E. Neil MacKinnon,
                                                         President.
                                 ______
                                 
                                   Central Council,
                 Tlingit and Haida Indian Tribes of Alaska,
                                                    August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office 
        Building, Washington, DC.
    Dear Senator Murkowski: I request that you accept this letter as 
the testimony of the Central Council Tlingit and Haida Indian Tribes of 
Alaska on the proposed legislation entitled the ``Alaska Land Transfer 
Acceleration Act of 2003.'' I request that my testimony be included in 
the official record of this hearing. I appreciate this opportunity to 
give testimony on S. 1466.

                              INTRODUCTION

    The Department of the Interior (DOI) proposes by its Alaska Land 
Transfer Acceleration Act of 2003 to transfer land in Alaska to the 
State and Native Corporations. Overall the goal of the proposed 
legislation is to ensure that the State of Alaska and Native 
Corporations obtain patents to land. This goal would be admirable 
except that it eliminates existing property rights of Native allotment 
applicants. This is justified according to a Bureau of Land Management 
(BLM) Memo,\1\ because Native allotment applicants (or heirs) are the 
cause of the delays in finalizing Native allotments. It is true that 
until BLM completes the processing of Native allotments the transfer of 
some land to the State and Native Corporations is delayed. It is untrue 
that Native allotment applicants (or heirs) are the cause of the delay. 
Instead, the blame rests with the inefficient and lengthy processes 
used by BLM, the Office of Hearings and Appeals, and the Interior Board 
of Land Appeals (IBLA). The finalization of allotments are delayed by 
numerous factors which are summarized as follows:
---------------------------------------------------------------------------
    \1\ Memorandum from BLM, Alaska State Director to Assistant 
Secretary, Land and Minerals Management (May 7, 2003).

   Many approved applications sit for years awaiting surveys 
        even though some allotments could be certified without surveys.
   Many applications now require hearings because BLM 
        continuously develops and applies stricter standards to prove 
        use and occupancy. One example is an internal memo issued by 
        BLM State Director Cherry in 1999 which set stricter 
        evidentiary standards making it near impossible for an 
        allotment to be approved on the basis of sworn affidavits and 
        thus more hearings are required.
   Many applications are delayed due to BLM's yearly 
        reorganization when allotment case files are transferred from 
        one employee to another resulting in significant delays because 
        employees must become familiar with a new set of cases each 
        year.
   Many applications sit for years awaiting a hearing, because 
        hearings are generally conducted only in the summer months 
        thereby severely limiting the number of hearings held each 
        year. This delay adds years to the finalization of allotment 
        applications. For example, an allotment case remanded to the 
        BLM in 1987 for a hearing was not heard until 2002. Another 
        example is a hearing was held in 2002 in a case where the 
        application was filed in 1909.
   Many applications sit for years waiting to be processed 
        after favorable hearing decisions or favorable appeal 
        decisions.
   Many applications sit for years waiting for an appeal 
        decision from the IBLA. The average length of time it now takes 
        the IBLA to issue a decision is five years. Many applications 
        are not legislatively approved because the State of Alaska 
        filed a protest. However, many of these applications could be 
        legislatively approved if settlements were reached allowing the 
        State to withdraw its protests. BLM should identify these 
        potentially legislatively approvable applications and with BIA, 
        facilitate settlement.

    Given that DOI has caused the delays in processing Native allotment 
applications, it is unconscionable to sacrifice Native allotments for 
the sake of finalizing the state and corporation land selections. But, 
that is the effect of S. 1466.
    Before S. 1466 proceeds further, DOI must consult with the Tribes 
in Alaska. Many of the Tribes have compacts or contracts with the 
Bureau of Indian Affairs to assist Alaska Natives throughout the 
allotment application process. Therefore, the Tribes' expertise in land 
matters would be enormously helpful in developing and implementing 
solutions to finalizing land claims without sacrificing Native 
allotments. Moreover, meaningful consultation with the Tribes on this 
proposed legislation is mandated by Executive Order 13175.\2\ It is not 
too late; the Tribes can be consulted and will provide recommendations 
for amendments to this proposed legislation.
---------------------------------------------------------------------------
    \2\ 65 Fed. Reg. 67249-67252 (November 9, 2000).
---------------------------------------------------------------------------

                               BACKGROUND

The Purpose of the Native Allotment Act of 1906 Was To Grant Title to 
        Alaska Natives of Land Necessary for Subsistence
    Before I provide my analysis of S. 1466, a brief discussion of the 
Alaska Native Allotment Act may be helpful. In 1906, Congress enacted 
the Alaska Native Allotment Act because Native people in Alaska were 
starving to death due to the encroachment of lands necessary for 
subsistence.\3\ Prior to 1906, Alaska Natives could not get title to 
land they used to obtain the necessary resources for food, shelter and 
clothing. Congress intended that the Secretary would convey allotments 
to Alaska Natives to preserve the subsistence traditions, not destroy 
them. Protecting traditional uses of land and resources remains equally 
important today.
---------------------------------------------------------------------------
    \3\ Report on Conditions in Alaska, by James W. Witten, Special 
Inspector, General Land Office (1903).
---------------------------------------------------------------------------
    The legislative history of the Allotment Act establishes that prior 
to the passage of the Act, non-native encroachment on Native lands 
caused widespread devastation which the federal government failed to 
prevent even though it had a duty to protect Native use and 
occupancy.\4\ The government's failure resulted in the starvation of 
Native men, women, and children throughout Alaska. This was such an 
acute problem that President Roosevelt sent a special investigator to 
Alaska in 1903 in an attempt to alleviate the suffering and death, 
caused the inability of Native people to access and harvest the 
traditional resources.\5\
---------------------------------------------------------------------------
    \4\ Pence v. Kleppe, 529 F.2d 135, 141 (9th Cir. 1976).
    \5\ Report, James W. Witten, at 32-33.
---------------------------------------------------------------------------
    It must be remembered that by 1903, the Alaskan ``gold rush'' had 
been underway for almost ten years. Congress knew the heavy traffic 
through Alaska to the goldfields greatly affected the traditional land 
uses and possessory rights of Alaska's Native people. There was also 
substantial traffic from the salmon canneries, oil production, copper 
mining and commercial logging. These were all activities that took a 
heavy toll on the same resources that provided food, shelter and 
clothing to Native Alaskans. The solution was the Alaska Native 
Allotment Act that carved out allotments of 160 acres of land so that 
crucial subsistence activities could continue undisturbed for 
generation after generation.

Until 1970, the Allotment Act Was a Well Kept Secret
    Unfortunately, the government agencies responsible for carrying out 
the allotment program did not agree that conveyance of allotments was 
necessary. Consequently, in the first fifty-four years of the Alaska 
Native Allotment Act only 78 allotments were granted,\6\ and as of 
1970, only 245 allotments had been conveyed.
---------------------------------------------------------------------------
    \6\ David Case & David Voluck, Alaska Natives and American Laws 110 
(2d ed. 2002) (citing Bureau of Indian Affairs 1956-1993 Annual 
Caseloads Report, Summary of Native Allotment Numbers (Juneau 1994)).
---------------------------------------------------------------------------
    In 1970, when repeal of the Alaska Native Allotment Act was 
imminent an effort was finally undertaken to implement the allotment 
program and assist those desiring to file applications. Because of 
these efforts, approximately 10,000 allotment applications were filed 
and pending before the repeal of the Act in 1971 by the passage of the 
Alaska Native Claims Settlement Act (ANCSA).\7\ ANCSA contained a 
provision that saved pending allotment applications.
---------------------------------------------------------------------------
    \7\ 43 U.S.C. 1617.
---------------------------------------------------------------------------
    Considering that there were far more than 10,000 Alaska Natives in 
the state in 1971, the 10,000 allotment applications filed by 1971 were 
only a fraction of what should have been submitted. The problem has 
never been that there were too many applications filed but rather the 
process used by the government for deciding Native allotment cases was 
lengthy, complicated and costly. This same process was not used for 
homestead and other similar claims for land in Alaska and consequently 
those other claims were finalized long ago.

In 1980, Congress Attempted To Streamline the Allotment Adjudication 
        Process But It Failed
    In 1980, Congress again tried to provide finality to Native 
allotments by the passage of Section 905, of the Alaska National 
Interest Lands Conservation Act (ANILCA).\8\ Section 905 was designed 
to remove many of the administrative barriers to obtaining an allotment 
by authorizing the Secretary of Interior to ``legislatively'' approve 
some, but certainly not all, of the pending allotments. Legislative 
approval eliminated the need for costly and lengthy administrative 
hearings. The will of Congress was thwarted when the State of Alaska 
protested some 6,000 applications as a way to prevent legislative 
approval. It is unknown how many allotments have been legislatively 
approved. Allotments not legislatively approved, require proof that the 
applicant's use of the land was substantially continuous for more than 
5 years, potentially exclusive of others. There are approximately 4,000 
pending allotment parcels requiring adjudication of use and 
occupancy.\9\ Some of these very old cases in need of hearings will be 
further complicated or unfairly denied because many of the applicants 
and first hand witnesses have died.
---------------------------------------------------------------------------
    \8\ 43 U.S.C. 1634.
    \9\ There are approximately 2,800 applications, but each 
application may have up to four parcels. 1.6 is the average number of 
parcels in an application. A Report Concerning Open Season for Certain 
Native Alaska Veterans for Allotments, Prepared for Congress by the 
Department of the Interior in Response to Section 106 of Public Law 
104-42, p. 6 (June 1997).
---------------------------------------------------------------------------
    Many have failed to obtain allotments because BLM has interpreted 
the Allotment Act in a restrictive and harsh manner. For example, until 
a 1976 federal court decision, approximately one thousand applications 
were denied because the government refused to provide Native allotment 
applicants with a due process hearing to determine facts in dispute. 
Some of these applications were reopened but too many remain closed 
even today.
    Although some of the restrictive interpretations and policies of 
earlier administrations have been reversed by the federal courts and by 
Secretarial Order, many past interpretations and policies continue. 
More than any other factor, the government's restrictive 
interpretations have caused the delay in processing Native allotments. 
To illustrate this point, one need only consider that in Alaska there 
are no pending homestead applications nor did the processing of those 
applications require lengthy and costly adjudication.
    Most importantly, there are allotment applications that BLM closed 
unlawfully which have not yet been reinstated but should be. 
Eliminating the right to reinstate those applications would be a second 
denial of due process.

S. 1466 ELIMINATES IMPORTANT RIGHTS OF NATIVE ALLOTMENT APPLICANTS THAT 
 HAVE BEEN SECURED BY FEDERAL LAW, THE U.S. CONSTITUTION AND DECISIONS 
                 OF THE INTERIOR BOARD OF LAND APPEALS

    S. 1466 eliminates important due process safeguards that were 
obtained for Native allotment applicants after years of litigation 
before the IBLA and federal courts. Further, S. 1466 forever eliminates 
the opportunity of allotment applicants to resurrect applications that 
were lost through no fault of the applicant. S. 1466 also forever 
eliminates the opportunity to reinstate those applications that BLM 
closed in violation of the applicants' constitutional rights.

Congress Provided Allotment Applicants the Right To Amend Erroneous 
        Legal Descriptions of Allotments Because the Government Caused 
        the Errors
    Section 304(f)(5) eliminates the right of Native allotment 
applicants to amend an allotment description. It is important to 
understand that the right to amend the legal description of an 
allotment arose from the recognition by Congress that a significant 
percentage of allotment applications contained errors that were not the 
fault of the applicants.\10\
---------------------------------------------------------------------------
    \10\ S. Rep. No. 413, 96th Cong., 2d Sess. 237-38, reprinted in 
1980 U.S. Code Cong. & Ad.News 5070, 5181-82.
---------------------------------------------------------------------------
    The right to amend allotment descriptions under Section 905(c) of 
ANILCA is allowed only in very limited situations; it can be applied 
only in situations where it is proven the land as described in the 
application is not what the applicant intended to apply for as the 
allotment. Thus, an acceptable amendment would describe the land that 
the applicant originally intended to claim as the allotment. Proof of 
the applicant's intent is now submitted to BLM by sworn affidavits or 
by testimony during a hearing.
    It is well known and accepted that in 1970-1971, the BIA in Alaska 
sent the handwritten allotment applications to locations in California 
and elsewhere for typing. The typed applications were returned to BLM 
but many contained erroneous legal descriptions; either the location 
was incorrect or the acreage amount was incorrect. Thus, the 
descriptions of some allotments must be amended to correct mistakes the 
government made in the first place.
    Consequently, if the right to amend is eliminated as contemplated 
by S. 1466, it is likely that some applicants will lose their 
allotments because they will not be able to prove use and occupancy of 
land they did not originally intend to apply for. It is also possible 
that even if they received land they did not intend to apply for, 
valuable improvements elsewhere on land they did intend to apply for 
would be lost.

Congress Provided for Allotment Applicants' Right To Reinstate 
        Allotments That Were Relinquished Unknowingly and Involuntarily
    Section 304(f)(3) of S. 1466 eliminates the right of Native 
allotment applicants to request reinstatement of relinquished allotment 
land even if the relinquishment is invalid. However, the right to 
reinstatement of an allotment on the grounds that a relinquishment is 
invalid is addressed in Section 905 of ANILCA.\11\ Further, the IBLA 
holds that BLM must reopen a relinquished allotment case and determine 
if the relinquishment is invalid.\12\ An invalid relinquishment under 
the IBLA decisions is one that was unknowingly or involuntary.\13\ The 
right to get a case reopened so the government can investigate whether 
a past relinquishment is valid is an important right because in these 
cases the applicant may have been wronged once already and simple 
fairness dictates wrongs be righted, not compounded.
---------------------------------------------------------------------------
    \11\ 43 U.S.C. 1634(a)(6).
    \12\ Heirs of William Lisbourne, 97 IBLA 342 (1987).
    \13\ Matilda Johnson, 129 IBLA 82 (1994).
---------------------------------------------------------------------------
Allotment Applicants Have a Constitutional Right to Reinstatement of 
        Allotments That Were Closed Without an Opportunity for a 
        Hearing
    Sections 304 (f)(1) and (f)(3) of S. 1466 eliminates all rights to 
reinstate closed allotment cases. However, federal courts have already 
ruled that applicants (or heirs) have the right to get closed allotment 
cases reinstated if BLM closed the case without an opportunity for a 
hearing because such a closure was in violation of the applicants' due 
process rights.\14\ Before these federal court decisions, BLM routinely 
rejected and closed allotment cases whenever it believed there was 
insufficient evidence to prove the applicant's qualifying use of the 
land claimed for an allotment. The applicants never had a chance to 
prove otherwise.
---------------------------------------------------------------------------
    \14\ Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Pence v. 
Andrus, 586 F.2d 733 (9th Cir. 1978).
---------------------------------------------------------------------------
    Until 1976 after the federal court decision requiring BLM to 
provide applicants with hearings, BLM had never allowed an opportunity 
for the applicant to present evidence of qualifying use to an impartial 
decision maker.Thus, hundreds of allotment applications were closed in 
violation of due process guarantees. Too many allotment cases remain 
closed today \15\ because of BLM's failure to reopen closed cases 
unless ``the applicant, legal representative or BIA, requests 
reinstatement and presents clear and compelling evidence that the file 
was erroneously closed.'' \16\ Eliminating the right to reinstate 
allotment cases that were closed in violation of the applicants' due 
process rights would only compound the original violation and lead to 
certain litigation. Although, the U.S. Supreme Court has repeatedly 
held that Congress has plenary authority over Indian affairs, which 
would include Native allotment matters, that Court has also held that 
Congress when exercising its plenary authority must comply with 
guarantees of the U.S. Constitution,\17\ such as the due process clause 
and the just compensation clause.\18\ Accordingly, Congress should 
remove Sections 304(f)(1) and (f)(3) from S. 1466. Instead, BLM should 
reinstate those unlawfully closed cases on its own initiative.
---------------------------------------------------------------------------
    \15\ A recent internal audit by the Central Council of Tlingit and 
Haida Indian Tribes of Alaska discovered that 66 percent of the 
allotment cases under its jurisdiction were closed by BLM in violation 
of the applicants' due process rights. These cases have never been 
reopened by BLM but the Tribe has begun work for reinstatement of these 
cases.
    \16\ BLM Alaska Native Allotments Handbook, Section II at 13 
(1991).
    \17\ United States v. Sioux Nation of Indians, 448 U.S. 371, 
(1980). See also, Delaware Tribal Business Committee v. Weeks, 430 U.S. 
73, 84 (1977).
    \18\ See, Babbitt v. Youpee, 519 U.S. 234 (1997); Bolling v. 
Sharpe, 347 U.S. 497 (1954); United States. v. Antelope, 430 U.S. 
64191977); Hodel v. Irving, 481 U.S. 704 (1987).
---------------------------------------------------------------------------
Allotment Applicants Now Have a Right To File Reconstructed Allotment 
        Applications Where the Government Lost Their Original 
        Applications and This Right Includes a Hearing To Present 
        Evidence That the Original Application Was Timely Filed
    Section 304(f)(1) eliminates all rights to file reconstructed 
applications in cases where the government lost the original 
applications. Presently under rulings of the IBLA applicants (or heirs) 
have the right to file reconstructed applications in cases where the 
government lost their original application, and the BLM has a 
corresponding duty to investigate those claims and provide the 
opportunity for an evidentiary hearing.\19\
---------------------------------------------------------------------------
    \19\ Timothy Afcan, Sr., 157 IBLA 210 (2002).
---------------------------------------------------------------------------
    Unfortunately, Section 304(f)(2) eliminates this right and instead 
allows BLM to reject previously filed reconstructed applications unless 
the BLM's file already contains the following evidence:
          1. the name of the person who took the original application 
        and the agency that person worked for;
          2. the month and the year the original application was 
        submitted;
          3. the specific address where the original application was 
        submitted;
          4. two affidavits attesting to the applicants' qualifying 
        use; and
          5. two affidavits from non-family members attesting that they 
        know the original applications were filed.
    The long list of evidentiary requirements as set forth in Section 
304 (f)(2) effectively creates a new standard to prove the government 
lost an allotment application. In other words, the amount and types of 
evidence in this list far exceeds what the IBLA now requires to prove 
an application was lost.\20\ Thus, much of the newly required evidence 
is currently not in BLM's record for existing cases because it has 
never before been required. It will be impossible for existing cases to 
meet this new standard because the new standard becomes effective when 
S. 1466 is enacted so there will be no time for applicants to 
supplement BLM's records. It is ironic that BLM's repeated attempt to 
apply the harsh standard described in Section 304(f)(2) has repeatedly 
been reversed by the IBLA.\21\
---------------------------------------------------------------------------
    \20\ Alice Brean v. United States, 159 IBLA 310 (2003) (holding 
that the IBLA will set aside BLM's rejection of a reconstructed 
allotment if the Board decides there is a question of fact whether the 
application was timely filed and BLM has not provided the applicant 
with a hearing required by the due process clause).
    \21\ Timothy Afcan Sr., 157 IBLA at 220; Alice Brean, 159 IBLA at 
323.
---------------------------------------------------------------------------
    Allotment applicants with existing reconstructed applications on 
file with BLM have never been informed of this new and excessive 
evidentiary standard. Considering that the applications were lost in 
1970-1971, the details required by the new standards some thirty years 
later might be impossible to meet. This provision is not only grossly 
unfair but will surely result in costly and lengthy litigation.

Allotment Applicants Now Have a Right to a Hearing Conducted by an 
        Impartial Administrative Law Judge and Governed by Existing 
        Federal Regulations
    Section 501 of S. 1466 may eliminate the allotment applicants' 
right to a hearing conducted by an impartial administrative law judge 
and governed by federal regulations. Section 501 establishes a new but 
undefined process for hearings that may or may not be governed by 
existing federal regulations.Additionally, under the language of the 
proposed legislation may even be conducted by any employee of the 
Department of the Interior including BLM employees.
    Currently, applicants (or heirs) have a right to a hearing to 
determine certain factual issues in their allotment cases, and the 
hearings are conducted by impartial judges from the Office of Hearings 
and Appeals under rules set by federal regulations. These hearings meet 
due process guarantees.\22\ Unless the Department of the Interior 
establishes a duplicate hearings and appeals process, it is unlikely 
that due process guarantees will be met. Further, it is certain that a 
duplicate hearing system will only add more cost and time to the 
already lengthy hearing process.
---------------------------------------------------------------------------
    \22\ Pence v. Andrus, 586 F.2d 733 (9th Cir. 1978).
---------------------------------------------------------------------------
    It is obvious to those knowledgeable about Native allotments that 
the allotment hearings process is unduly slow. Nevertheless, resolution 
of this problem should not unfairly deprive applicants of impartial 
hearings governed by existing federal regulations that are familiar and 
lend certainty to the hearings process.
    One of the reasons the hearings process is unduly slow is that the 
Office of Hearings and Appeals generally schedules hearings only in the 
summer months which drastically reduces the total number of allotment 
hearings that occur each year. For example, in the year 2003 less than 
10 allotment hearings will occur in Alaska.
    To improve the hearing process, a better alternative would be for 
Congress to authorize and fund the Office of Hearings and Appeals to 
open an office in Anchorage and increase the number of existing 
administrative law judges. These judges could hold allotment hearings 
year-round and could do other necessary work such as probate matters. 
Moreover, these judges could continue to conduct hearings under current 
federal regulations which would also save money, time and uncertainty 
in the processing of allotment applications.

Allotment Applicants Now Have a Right to an Appeal Before the IBLA Is 
        Governed by Federal Regulations
    Section 501 also establishes a new appeals process that may or may 
not be governed by existing federal regulations and may be decided by 
any employee of the Department of the Interior including BLM employees. 
However, applicants (or heirs) now have a right to appeal BLM's 
decision to the IBLA which is staffed by impartial administrative law 
judges governed by federal regulations.
    Although many appeals take the IBLA more than several years to 
decide, the resolution of this problem should not unfairly deprive 
allotment applicants' access to an impartial appeals Board that has the 
expertise to decide allotment issues. It could take a new appeals body 
years to gain the expertise necessary to issue thorough and competent 
appeals decisions. In addition, if the new appeals body did not have 
the expertise to render a thorough and competent decision which an 
appellant has a right to receive, it is likely federal courts would 
remand the incompetent decisions. This would only add to the years it 
now takes to receive an appeal decision.
    A better alternative to resolve the problem of the delays at the 
appeal level is for the IBLA to receive sufficient resources that would 
allow the Board to decide pending and future appeals in a more 
efficient and timely manner. This solution would also prevent the 
unnecessary duplication and excessive costs that would occur under the 
new appeals body contemplated by S. 1466. Moreover, it would save time 
because the IBLA already has the expertise to render competent appeal 
decisions and the necessary federal regulations governing the IBLA 
appeal process are already in place.

                                CLOSING

    Congress enacted the Alaska Native Allotment Act in 1906 so that 
Alaska Natives would obtain title to land and resources that had fed, 
clothed and sheltered them for thousands of years.Many Alaska Natives 
still wait for that promised title.
    We urge this Subcommittee to return the proposed legislation to DOI 
with instructions to conduct meaningful consultation with Tribes in 
Alaska. After such consultation, we will submit amendments to S. 1466 
that will protect rights to Native allotments while eliminating many of 
the factors that now delay finalizing allotment cases.
            Respectfully submitted,
                                          Edward K. Thomas,
                                                         President.
                                 ______
                                 
                         Native Village of Selawik,
                                       Selawik IRA Council,
                                       Selawik, AK, August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office 
        Building, Washington, DC.
Subject: Alaska Land Transfer Acceleration Act of 2003

    Dear Senator Murkowski: On behalf of the Native Village of Selawik, 
this letter is to express our support in the Testimony of Edward 
Thomas, President, Central Council Tlingit and Haida Indian Tribes of 
Alaska.
    If you have any questions, please contact me at (907) 484-2165 or 
fax to (907) 484-2226.
            Sincerely,
                                              Clyde Ramoth,
                                                         President.
                                 ______
                                 
                                     Sitka Tribe of Alaska,
                                         Sitka, AK, August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forests, Dirksen Office 
        Building, Washington, DC.

Re: Testimony of Lawrence Widmark, Tribal Chairman for Sitka Tribe of 
Alaska on Senate Bills 1421 and 1466

    Dear Senator Murkowski: I write to provide written testimony on 
behalf of Sitka Tribe of Alaska regarding Senate Bills 1421 (the Alaska 
Native Allotment Subdivision Act) and 1466 (the Alaska Land Transfer 
Acceleration Act of 2003). Thank you for accepting my testimony on this 
legislation.
    These two bills have significant implications to our Tribal 
citizens, whose livelihoods tie directly to the lands and waters 
surrounding Sitka. Sitka Tribe is proud to be a federally recognized 
tribal government, organized under the Indian Reorganization Act of 
1934, as amended. As such, Sitka Tribe appreciates the relationship 
that our Tribal government has with the federal government, as it 
reiterates the respected sovereign rights of our tribal government. 
Particularly, Sitka Tribe takes Executive Order 13175 \1\ regarding the 
Federal responsibility to consult with federally recognized Indian 
Tribes very seriously. Sitka Tribe is insulted by the lack of 
consultation regarding these two Congressional bills as directed by the 
Executive Order. As such, Sitka Tribe requests that the Department of 
Interior hold consultations on these two very important pieces of 
legislation immediately.
---------------------------------------------------------------------------
    \1\ 65 Fed. Reg. 67249-67252 (Nov. 9, 2000).
---------------------------------------------------------------------------
Sitka Tribe urges the Senate Subcommittee on Public Lands and Forests 
        to consider an alternative way to complete adjudication of 
        federal lands in Alaska other than S. 1466

    Sitka Tribe opposes Senate Bill 1466 as written because it seeks to 
finalize land selections in Alaska by denying Alaska Natives important 
rights to apply for and receive native allotments. Sitka Tribe would 
like to initiate its comments on this bill by noting that it supports 
the testimony of Edward Thomas, of the Central Council of Tlingit and 
Haida Indian Tribes of Alaska on S. 1466. Additionally, Sitka Tribe is 
concerned about the current language of Senate Bill 1466 because:

   Senate Bill 1466 fails to address the BLM's failure to 
        diligently adjudicate native allotments over the past thirty 
        years; and rather seeks to punish Alaska Natives by ending 
        their rights to attempt to get title to land in Alaska; S. 1466 
        legitimizes BLM's practice of stalling native allotment cases 
        by terminating native allotment applicants' chances of 
        receiving allotments where BLM itself took illegal action.
   S. 1466 ignores the fact that Alaska Native allotment 
        applicants are just now receiving the technical assistance 
        required to fully fight for rights to allotments; despite this, 
        S. 1466 proposes to terminate individuals' rights to reopen 
        allotment cases that should have never been closed. Upon a file 
        review of closed allotments in the Sitka area in Spring 2003, 
        Sitka Tribe and Alaska Legal Services staff found six closed 
        allotment cases that were closed erroneously and should be 
        reopened. If S. 1466 becomes law, Alaska Natives who could 
        receive an allotment will be denied this opportunity.
   S. 1466 fails to acknowledge the beneficial nature of native 
        allotments to Alaska Natives and to the Alaska economy. Under 
        current economic conditions, Alaska Natives face great 
        challenges to finding financial security. Having a native 
        allotment is one of the few avenues for Alaska Natives to 
        positively impact the economy and sustain themselves and their 
        families.
   S. 1466 violates the Constitutional rights of native 
        allotment applicants by denying legitimate applicants from 
        receiving due process in the denial of their allotment 
        application, by denying legitimate applications a hearing and 
        by not allowing for judicial review of agency action.
   S. 1466 gives BLM undefined discretion to hold hearings on 
        native allotment applications and would not allow for judicial 
        review of these decisions.

    Sitka Tribe is thus primarily concerned that S. 1466 will further 
stack the cards against tribal citizens who seek to receive native 
allotments. Sitka Tribe thus asks that if such great rights to be 
denied allotment applicants that native allotment applicants at least 
receive a five year period in which to reopen allotment cases that have 
been illegally closed, and Tribal governments receive additional 
resources to assist its tribal citizens with such applications.
Sitka Tribe of Alaska opposes Senate Bill 1421
    Sitka Tribe believes Senate Bill 1421 is an attempt by the 
Department of Interior to shirk its trust responsibility to native 
allottees and townsite owners in Alaska and serves to undermine the 
rights of native allottees and townsite owners. Native allottees and 
townsite owners received title to their lands from the federal 
government, and the federal government has an oversight responsibility 
over these lands, to ensure that the native owners' property rights are 
not violated. By consenting to state or local jurisdiction over these 
otherwise federal pieces of property, the owners stand to have their 
property rights infringed upon by the State, and the federal government 
will not have a leg to stand on to contradict these infractions. This 
is a terrible result for restricted property owners in Alaska, as land 
is of integral importance to them, and this legislation stands to 
undermine the status of their lands by giving the State jurisdiction to 
say exactly how big a lot must be and to dictate other details to be in 
compliance with state or local law.
    Sitka Tribe understands that some restricted property owners in 
Alaska may want to have their subdivisions approved by the state or 
local authorities in order for their property to be economically viable 
for them. However, new Congressional legislation granting state control 
over this issue is not necessary to grant restricted property owners 
the right to subdivide their land and dedicate public easements. This 
authority already exists. Further, to address this issue, Sitka Tribe 
believes that the current regulation allowing for the partition of 
native allotments, 25 C.F.R. Sec. 152.33, should be amended through 
consultation with federally recognized tribal governments in Alaska to 
address this issue. Sitka Tribe contends that restricted properties 
should be governed and administered under federal law and regulation, 
and that to enact a bill that says otherwise is a clear violation of 
the federal government's responsibility towards Alaska Natives.
    In closing, I would like to reiterate that Sitka Tribe exists to 
look after the health, safety, welfare and cultural preservation for 
approximately 3,100 tribal citizens. Sitka Tribe believes that Senate 
Bills 1421 and 1466 jeopardize the welfare and culture of our tribal 
citizens. For this reason, Sitka Tribe opposes these bills as written. 
If you have any further questions about this testimony, please do not 
hesitate to contact Jessica Perkins, Resources Protection Director for 
the Sitka Tribe.
            Sincerely,
                                          Lawrence Widmark,
                                                   Tribal Chairman.
                                 ______
                                 
                                     Anchorage, AK, August 6, 2003.

    Dear Senator Murkowski: I attended the Senate Energy and Natural 
Resources Committee field hearing today on S. 1354 (the Cape Fox Land 
Entitlement Act) at the Loussac Library here in Anchorage. At the end 
of the hearing, you invited comments and said that the comments should 
be sent to your office to be included in the hearing record. 
Accordingly, I would like to have this e-mail included in the hearing 
record.
    During the hearing, Mark Rey, Undersecretary of Agriculture, 
described how the Forest Service would determine equal value for the 
land that is proposed to be traded. He essentially said that the trade 
would create administrative efficiencies for the Forest Service. This 
is bureaucratic myopia at its best. I was surprised that not one word 
was mentioned about trying to estimate user values.
    Having lived in Juneau for several years, I know that the Berners 
Bay area has high use and value to Juneau area residents. Some of these 
uses can be measured in monetary terms, such as the economic impact on 
commercial fishing and outdoor recreation. However, there are other 
values, such as spiritual values, which are difficult to measure in 
monetary terms but, nevertheless, need to be included in any estimate 
of land value.
    Fortunately, there are now economic methodologies that can be used 
to arrive at a more holistic assessment of land value and they should 
be used here. While this type of analysis may not appear to be as 
(falsely) precise as a traditional land assessment, it is more accurate 
in that it looks at the whole iceberg instead of just the more visible 
tip.
    I encourage you to insist that any analysis of land values by the 
Forest Service place its emphasis on values gained or lost by the 
public, not convenience to the agency. While administrative 
efficiencies to the agency should get some consideration, these 
benefits are often based on ephemeral scenarios. The public would not 
be served well by any land trade that essentially ignores long-standing 
values associated with all users.
            Sincerely,
                                                       George Matz.
                                 ______
                                 
                                    Chilkat Indian Village,
                                       Klukwan, AK, August 5, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office 
        Building, Washington, DC.
    Dear Senator Murkowski: I respectively request that you accept our 
letter in support of the testimony submitted by President Edward Thomas 
of the Central Council Tlingit and Haida Indian Tribes of Alaska on 
proposed legislation entitled the ``Alaska Land Transfer Acceleration 
Act of 2003''.
    The Chilkat Indian Village has a contract with the Bureau of Indian 
Affairs to assist Alaska Natives with the allotment application 
process. The process continues to have long and numerous delays; many 
of the allotment applications sit inactive for decades, meanwhile the 
land is usually transferred to other entities such as the State of 
Alaska, University of Alaska or the Mental Health Trust. Many Native 
Allotments in the lands surrounding Klukwan, Alaska were properly 
claimed and an application was properly submitted as early as 1907. 
However it was not until the 1980's that the hearings for these 
allotments were completed and the applications were found to be valid. 
The State of Alaska, University of Alaska, and the Mental Health Trust 
has continually refused to reconvey the lands back to the Bureau of 
Land Management, there has been an agreement to reconvey the lands back 
and then nothing is completed with the transfer process.
    Executive Order 13175 mandates meaningful consultation with the 
Tribes on this proposed legislation. Consultation with the Tribes of 
Alaska has not taken place in regards to this legislation. Consultation 
with the Tribes would be mutually beneficial as many of the Tribes in 
Alaska have contracts or compacts with the Bureau of Indian Affairs to 
assist Alaska Natives with the allotment application process, therefore 
the tribes' expertise in land matters would be quite helpful in 
developing and implementing solutions to finalize land claims without 
sacrificing Native Allotments.
    The Chilkat Indian Village is quite concerned with this proposed 
legislation, and how it will affect the Native Veterans Allotment 
process. The Native Veterans of the Village of Klukwan sacrificed their 
youth for our Great Country, please don't force them to endure one more 
sacrifice. All of the Native Veteran Allotment Applications that are 
still pending should be legislatively approved as soon as possible.
    We urge the Subcommittee to return the proposed legislation to the 
Department of Interior with instructions to conduct meaningful 
consultation with the Tribes of Alaska. After such consultation, the 
Chilkat Indian Village will request the Subcommittee to amend the 
proposed legislation so that rights to Native Allotments will not be 
sacrificed.
    We greatly appreciate your time and efforts on our behalf; if we 
can be of any further assistance please do not hesitate to contact our 
offices.
            Respectfully submitted,
                                        Jones P. Hotch Jr.,
                                                         President.
                                 ______
                                 
                                      Maniilaq Association,
                                      Kotzebue, AK, August 5, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office 
        Building, Washington, DC.
    Dear Senator Murkowski: Maniilaq Association is an Alaska Native 
Regional Non-Profit Association, representing 12 federally recognized 
tribes of Northwest Alaska. Maniilaq, provides health cart, education, 
tribal, and social programs, including planning and development, which 
support sovereignty, governance, and maintenance of the 12 tribes.
    On behalf of the tribes and it's service area, Maniilaq has 
compacted with the Bureau of Indian Affairs Realty Program to provide 
services within the Northwest Arctic Borough. Maniillaq strongly 
supports the view as presented in the letter of Edward Thomas, 
President of Central Council, Tlingit and Haida Indian, Tribes of 
Alaska on S. 1466, the Alaska Land Transfer Acceleration Act of 2003.
    We urge the subcommittee to return the proposed legislation to DOI 
to conduct consultations with the Tribes in Alaska.
            Sincerely,
                                            Helen A. Bolen,
                                                     President/CEO.
                                 ______
                                 
                                  Alaska Realty Consortium,
                                     Anchorage, AK, August 6, 2003.
Hon. Lisa Murkowski,
Senate Subcommittee on Public Lands and Forest, Dirksen Office 
        Building, Washington, DC.

Subject: Alaska Lands Transfer Acceleration Act of 2003

    Dear Senator Murkowski: The Alaska Realty Consortium; is an 
organization formed by the Copper River Native Association,Aleutian/
Pribilof Islands Association, Inc., and Chugachmiut Inc. representing 
and acting in the best interest of Native Allotment Owners, Applicants 
and Heirs of the Native Village of Cantwell, Copper Center, Gakona, 
Gulkana, Tazlina, Cordova, Nanawalek, Port Graham, Tatitlek Chendga 
Bay, Nelson Lagoon, St. George, St. Paul and Unga.
    On behalf of the Tribes and the allotment owners in the above 
service areas, Alaska Realty, Consortium supports the testimony of Mr. 
Edward Thomas, President of the Central Council Tlingit and Haida, 
Indian Tribes of Alaska to be given to the United States Senate 
Committee on Energy and Natural Resources; Subcommittee on Public Lands 
and Forest Hearing on Senate Bill 1466 (Alaska Land Transfer 
Acceleration Act of 2003) on August 6, 2003.
    Alaska Realty Consortium provides Realty Services and assist(s) all 
Native Allotment Landowner's named above and our trust responsibility 
is to ensure that each applicant receives title to their selection of 
an Allotment. Currently the Alaska Realty Consortium, serves 205 
original allotee's and their Heir's with over 34 allotments that are 
pending/closed erroneously do to a legal defect.
    The Alaska Realty Consortium has an obligation to it's member and 
will not stand aside on this particular issue without supporting the 
President of Central Council Tlingit and Haida Indian Tribes of Alaska. 
To do so would miss represent to best interest of the Native People 
within each of the Service Areas.

                                            Abraham Snyder,
                                                    Realty Officer.
                                 ______
                                 
                                       Juneau, AK, August 19, 2003.
Senator Lisa Murkowski,
Hart Senate Building, Washington DC.
    Dear Senator Murkowski: I will take this opportunity to provide you 
with information regarding historical Tlingit use of the Berners Bay--
Kensington Mine area.
    I am a Tlingit, an Eagle--Kaagwaantaan, born and raised in Juneau. 
I am a professional geologist and registered environmental scientist 
formerly employed by the Environmental Protection Agency, the U.S. 
Geological Survey and the Alaska Department of Environmental 
Conservation. I also served for twenty years as a Council Member or as 
the President of the Juneau Tlingit and Haida. I recently stepped down 
as Chairman of the Board for Goldbelt, Incorporated.
    I was raised in Juneau with my Grandfather Henry Cropley and my 
Grand Uncle Jake Cropley (both Raven Dog Salmon). Jake Cropley was the 
last traditional leader of the Auk People and he is referenced 
frequently in the Goldschmidt and Haas reports on Tlingit possessory 
rights and land uses. Jake Cropley's son, Ike Cropley, is my uncle and 
he is willing to confirm information described in this letter.
    During my 27 years of environmental and cultural work in Southeast 
Alaska, I have interviewed numerous traditional Tlingit leaders in 
regards to the uses of the Berners Bay area. I also have my family's 
history, as taught to me, to draw upon.
    I was given permission to speak about the traditional family uses 
and ownership of the Kensington Mine and Echo Cove areas by Judson and 
Austin Brown, both Klukwan Eagles--Dakl aweidi Clan. Judson Brown was a 
founding member of the Sealaska Heritage Foundation.
    Judson and Austin Brown's Grandfather homesteaded the Comet Beach 
area under territorial law at the turn of the 20th century. He also 
marked and claimed the Sherman Creek Kensington Mine area according to 
traditional Tlingit law but granted the right for mining companies to 
work in the area.
    According to the Brown men, the Comet Beach and Kensington Mine 
area was used for berry picking and trapping, primarily mink. Some goat 
meat was obtained from the area as well. Their Grandfather homesteaded 
the Comet Beach site in 1904 and many Tlingits, including their 
Grandfather and his family, worked at the mines and lived subsistence 
lifestyles right in the area while they worked. The resources were not 
negatively impacted by mining. The Browns also said they are not aware 
of any real cultural/historical resource sites in the proposed mine 
area (Please note this is the proposed land exchange area).
    My interviews with other Tlingit Elders confirm the Brown's 
descriptions.
    In 1999 Austin Brown sent an open letter to numerous federal, state 
and Native organizations outlining his family's ownership and use of 
the Kensington Mine area and encouraged them to support the Coeur-
Kensington Project. Mr. Brown's letter stated his belief that the 
employment would be good for Native People and the environmental/
cultural resource aspects were well addressed. I can fax you a copy if 
you would like one.
    My Grandfather and Grand Uncle, Henry and Jake Cropley, both worked 
for the mining industry in Juneau and Douglas and my Grandfather 
explored the Berners Bay area for gold as a mining company employee. 
When I was a young geologist, my Grandfather explained to me that the 
Kensington area uplands near Berners Bay were not culturally 
significant, the upland was not really used that much for other 
purposes and the subsistence would not be bothered by the mining.
    The statements of the Brown family, other Tlingit Elders and my 
Grandfather and Grand Uncle all confirm each other. These are people 
who actively worked in and supported the mining industry in the Berners 
Bay area. They had a high regard for the land and would not have done 
anything contrary to traditional Tlingit culture, customs or practice.
    I have also interviewed younger Tlingit or Non-native people in 
regards to burials and cultural sites in or near Berners Bay or Echo 
Cove. These claims or concerns invariably turned out to be without 
foundation, could not be verified with field investigations or were of 
far less significance than originally asserted.
    To summarize, the Berners Bay area was used for commercial trading, 
mining and subsistence purposes by numerous Tlingit Clans and Groups. 
It was claimed by the Auk but shared with and used by many Tlingit 
Clans and Families.
    The upland areas where the old mines such as the Kensington are 
located are claimed and recognized as the territory of the Chilkat and 
Chilkoot People (such as the Brown Family). These people lived near the 
mines in seasonal camps during the subsistence harvest seasons, and 
worked at the mines during the rest of the year. They were much more 
familiar with traditional practices and customs than we Natives of 
today and they welcomed and worked with the mining industry in the 
Berners Bay and upland areas. They would not have done so if it was 
culturally inappropriate.
    During my tenure as Chairman, Goldbelt management sent in a letter 
of support for the original Sealaska-Cape Fox land exchange. I know 
that the supportive position of the Corporation has not changed. During 
that same period, as Chairman, I sent a letter on behalf of Goldbelt to 
Sealaska and Cape Fox expressing support for the land exchange and 
welcome to the traditional area of Goldbelt Shareholders. If you need 
additional details, please contact Gary Droubay Chief Executive Office 
of Goldbelt, Incorporated.
    I hope this has been of some help to you.
            Respectfully,
                                                   Randy Wanamaker.
                                 ______
                                 
                                      Kotzebue IRA Council,
                                     Kotzebue, AK, August 21, 2003.
Hon. Lisa Murkowski,
U.S. Senator, Senate Subcommittee on Public Lands and Forest, Dirksen 
        Office Building, Washington, DC.

Subject: The Alaska Land Transfer Acceleration Act of 2003

    Dear Senator Murkowski: The Native Village of Kotzebue, a Federally 
Recognized Tribal Organization, has a contract with the BIA to provide 
realty services for Native Allotment Owners, Applicants and their Heirs 
and also advocates for the protection of the rights of its members, 
does hereby respectfully request that you except this letter expressing 
our concerns over the proposed Bill S. 1466 entitled ``The Alaska Land 
Transfer Acceleration Act of 2003''. Although the stated goal of the 
Bill, to speed up the transfer of land to Native Corporations and the 
State of Alaska is admirable, the way it sets out to accomplish that 
goal, by eliminating the rights of individual Native Allotment 
applicants, is unconscionable and a violation of the trust 
responsibility that has been expressed by all three branches of the 
U.S. government.
    As far back as 1787 in Article III of The Northwest Ordinance the 
U.S. government pledged that ``the utmost good faith shall always be 
observed towards the Indians; their land and property shall never be 
taken from them without their consent; and in their property, rights 
and liberty, they never shall be invaded or disturbed, unless in just 
and lawful wars authorized by Congress; but laws founded injustice and 
humanity shall from time to time be made, for preventing wrongs being 
done to them, and for preserving peace and friendship with them''. A 
quick review of history will show that the government seldom lived up 
to its promise, but even in more recent times the government has 
reaffirmed its position.
    In Seminole Nation v. United States, 316 U.S. 286 (1942), in a 
decision written by Justice Frank Murphy, he stated ``This Court has 
recognized the distinctive obligation of trust incumbent upon the 
Government in its dealings with these dependent and sometimes exploited 
people.'' He went on to say, ``Under a humane and self-imposed policy 
which has found expression in many acts of Congress, and numerous 
decisions of this Court, it has charged itself with the moral 
obligation of the highest responsibility and trust. Its conduct, as 
disclosed in the acts of those who represent it in dealing with the 
Indians should therefore be judged by the most exacting fiduciary 
standards.'' (316 U.S. 286 [1942] (296-297).
    The executive branch weighed in on this topic as recently as 
November 20, 2000 when President William J. Clinton signed Executive 
Order 13175, which mandated, among other things, that government 
agencies must consult with affected tribes before submitting 
legislation to congress--that would affect said tribes. This directive 
was ignored by the Department of Interior in this case.
    I believe your esteemed colleague Senator Daniel Inouye (HI), as 
vice-chairman of The Senate Committee on Indian Affairs, articulated 
the trust doctrine best: ``Because the United States has assumed the 
trust responsibility for Indian lands and resources that arises out of 
the cession of millions of acres of Indian land to the United States, 
this trust responsibility is a shared responsibility. It extends not 
only to all agencies of the executive Branch of our Government, but 
also to the Congress. And so we must each do our part to assure that 
the Unites States' trust relationship with Indian Nations and Native 
Americans is generally honored'' (U.S. Senate 1995, 3). The land ceded 
by Alaska Natives in particular has accounted for and continues to 
account for the majority of the wealth enjoyed by our great State, 
including the permanent fund, which was created by land taken from the 
Inupiaq people of the North Slope, not to mention numerous minerals, 
including gold, mined from lands ceded by native people across the 
entire state. All we ask for in return for this vast wealth and the 
hardship caused us by Americas insatiable appetite for oil and gold is 
that the individuals be given title to land that their ancestors have 
used for generations, a very small price indeed.
    Please return the proposed legislation to the Department of 
Interior so that they may fulfill their obligation to consult the 
affected tribes. I also wish to convey my sincere hope that S. 1466 
``The Alaska Land Transfer Acceleration Act of 2003'' will be amended 
so that all pending native allotments will be legislatively approve. It 
is the right thing to do.
            Sincerely,
                                                Ian Erlich,
                                                          Chairman.

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