[House Report 106-452]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-452
======================================================================
ELIM NATIVE CORPORATION LAND RESTORATION
_______
November 5, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
[To accompany H.R. 3090]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 3090) to amend the Alaska Native Claims Settlement Act to
restore certain lands to the Elim Native Corporation, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. ELIM NATIVE CORPORATION LAND RESTORATION.
The Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) is
amended by adding at the end the following new section:
``elim native corporation land restoration
``Sec. 42. (a) Findings.--The Congress finds that--
``(1) approximately 350,000 acres of land were withdrawn by
Executive Orders in 1917 for the use of the United States
Bureau of Education and of the Natives of Indigenous Alaskan
race;
``(2) these lands comprised the Norton Bay Reservation (later
referred to as Norton Bay Native Reserve) and were set aside
for the benefit of the Native inhabitants of the Eskimo Village
of Elim, Alaska;
``(3) in 1929, an Executive Order deleted 50,000 acres of
land from the Norton Bay Reservation;
``(4) the lands were deleted from the Reservation for the
benefit of others;
``(5) the deleted lands were not available to the Native
inhabitants of Elim under section 19(b) of this Act at the time
of passage of this Act;
``(6) the deletion of these lands has been and continues to
be a source of deep concern to the indigenous people of Elim;
and
``(7) until this matter is dealt with, it will continue to be
a source of great frustration and sense of loss among the
shareholders of the Elim Native Corporation and their
descendants.
``(b) Withdrawal and Availability for Selection.--The lands described
in subsection (c) are withdrawn, subject to valid existing rights, from
all forms of appropriation or disposition under the public land laws,
including the mining and mineral leasing laws, for a period of 2 years
from the date of enactment of this section, for selection by the Elim
Native Corporation.
``(c) Lands Described.--The lands described in this section are
within the boundary of a parcel of land in the vicinity of Elim,
Alaska, more particularly depicted and designated `Temporary Withdrawal
Area' on the map dated October 19, 1999, on file with the Bureau of
Land Management, and entitled Land Withdrawal Elim Native Corporation.
``(d) Authorization To Select and Receive Title to Lands; Reservation
of Easements.--The Elim Native Corporation is authorized to select and
receive title to 50,000 acres of lands within the boundary of the lands
described in subsection (c). The Secretary is authorized and directed
to receive and adjudicate a selection application filed by the Elim
Native Corporation, and to convey the surface and subsurface estate in
the selected lands to the Elim Native Corporation subject to the
following rules, conditions, and limitations:
``(1) The Elim Native Corporation shall have 2 years from the
date of the enactment of this section in which to file its
selection of no more than 60,000 acres of land from the area
described in subsection (c). The selection application shall be
filed with the Bureau of Land Management, shall describe a
single tract adjacent to U.S. Survey No. 2548, Alaska, and
shall be reasonably compact, contiguous, and in whole sections
except when separated by unavailable land or when the remaining
entitlement is less than a whole section. The Elim Native
Corporation shall prioritize its selections made pursuant to
this section at the time such selections are filed, and such
prioritization shall be irrevocable. Any lands selected shall
remain withdrawn until conveyed or full entitlement has been
achieved.
``(2)(A) The selection filed by the Elim Native Corporation
pursuant to this section shall be subject to valid existing
rights and may not supercede prior selections of the State of
Alaska, any Native corporation, or valid entries of any private
individual unless such selection or entry is relinquished prior
to any selection by the Elim Native Corporation. Any lands held
within the exterior boundaries of lands conveyed to the Elim
Native Corporation shall have all rights of ingress and egress
to be vested in the inholder and the inholder's agents,
employees, co-venturers, licensees, or subsequent grantees, and
such easements shall be reserved in the conveyance to the Elim
Native Corporation. Public Land Order 5563 of December 16,
1975, is hereby modified to extend to the lands withdrawn
pursuant to this section and the Secretary is authorized, at
the Secretary's discretion, to permit selections and
conveyances of hot or medicinal springs (referred to herein as
`hot springs') pursuant to this section.
``(B) If any lands are conveyed to Elim Native Corporation
which are also subject to withdrawal for hot springs under this
section, there shall be in the conveyance the following rights
reserved to the United States, covenants, and conditions:
``(i) The right of ingress and egress over easements
under 17(b) of this Act for the public to visit the hot
springs for noncommercial purposes and to use any part
of the hot springs that is not commercially developed.
``(ii) The right of the United States to enter upon
the lands for the purpose of conducting scientific
research and to use the results of such research
without compensation to Elim Native Corporation.
``(iii) A covenant running with the land that
commercial development of the hot springs by Elim
Native Corporation or its successors, assigns, or
grantees shall include the right to develop a maximum
of 15 percent of the land upon which the hot springs
are located and the land within \1/4\ mile of the land
upon which the hot springs are located. Such commercial
development shall not alter the natural hydrologic or
thermal system associated with the hot springs and not
less than 85 percent of the lands within \1/4\ mile of
the hot springs shall be left in its natural state.
``(C) Elim Native Corporation shall have the right to conduct
scientific research on the conveyance lands, including the hot
springs, and to use the results of such research without
compensation to the United States.
``(D) The Secretary is authorized to negotiate with Elim
Native Corporation a memorandum of understanding to implement
the provisions of this paragraph.
``(E) The following covenants, terms, and conditions with
respect to the conveyance lands shall be incorporated into the
interim conveyance and patent, if any, conveying the lands to
Elim Native Corporation:
``(i) Upon receipt of the conveyance lands, Elim
shall have all legal rights and privileges as
landowner, other than reservations, covenants, and
conditions specified in this subsection and in the
Memorandum of Understanding.
``(ii) Elim Native Corporation shall not engage in or
allow Commercial Timber Harvesting on the conveyance
lands. `Commercial Timber Harvesting' means--
``(I) cutting and removing from the Elim
Native Corporation lands Merchantable Timber
for sale; and
``(II) constructing roads and related
infrastructure for the support thereof.
`Merchantable Timber' means timber that can be
harvested and marketed by a prudent operator.
``(iii) To accomplish the purpose of this subsection,
the following rights are retained by the United States:
``(I) To enter upon the conveyance lands,
after providing reasonable advance notice in
writing to Elim Native Corporation, and after
providing Elim Native Corporation with a
reasonable opportunity to have a representative
present upon such entry in order to achieve the
purpose and enforce the terms of this
subsection.
``(II) To have all rights and remedies
available against persons who cut or remove
Merchantable Timber with no lawful right to do
so in addition to any such rights held by Elim
Native Corporation.
``(III) In cooperation with Elim Native
Corporation, the right, but not the obligation,
to reforest in the event then-existing
Merchantable Timber is destroyed by fire, wind,
insects, disease, or other similar manmade or
natural occurrence (excluding manmade
occurrences resulting from the exercise by Elim
Native Corporation of its lawful rights to use
the conveyance lands).
``(iv) The foregoing provisions are covenants running
with the land.
``(v) Elim Native Corporation shall incorporate the
terms of this subsection in any deed or other legal
instrument by which it divests itself of any interest
in all or a portion of the conveyance lands, including
without limitation a leasehold interest.
``(vi) The covenants, terms, conditions, and
restrictions of this subsection are covenants running
with the land and shall be binding upon Elim Native
Corporation and the United States, their successors and
assigns.
``(vii) Appropriate administration and enforcement
provisions shall be incorporated into the Memorandum of
Understanding authorized by this subsection.
``(viii) The United States shall retain the right of
prosecutorial discretion without waiver of any such
reservations, covenants, or conditions, in the
enforcement of any reservation, covenant, or condition.
``(3) The Bureau of Land Management shall reserve easements
to the United States for the benefit of the public pursuant to
section 17(b) of this Act in the conveyance to the Elim Native
Corporation.
``(4) The Bureau of Land Management may reserve an easement
for the Iditarod National Historic Trail in the conveyance to
the Elim Native Corporation.
``(e) Finality of Selections.--Selection by the Elim Native
Corporation of lands under subsection (d) and final conveyance of those
lands to Elim Native Corporation shall constitute full satisfaction of
any claim of entitlement of the Elim Native Corporation with respect to
its land entitlements under section 19(b).
``(f) Implementation.--There are authorized to be appropriated such
sums as may be necessary to implement this section.''.
SEC. 2. COMMON STOCK TO ADOPTED-OUT DESCENDANTS.
Section 7(h)(1)(C)(iii) of the Alaska Native Claims Settlement Act
(43 U.S.C. 1606(h)(1)(C)(iii)) is amended by inserting before the
period at the end the following: ``, notwithstanding an adoption,
relinquishment, or termination of parental rights that may have altered
or severed the legal relationship between the gift donor and
recipient''.
SEC. 3. DEFINITION OF SETTLEMENT TRUST.
Section 3(t)(2) of the Alaska Native Claims Settlement Act (43 U.S.C.
1602(t)(2)) is amended by striking ``sole'' and all that follows
through ``Stock'' and inserting ``benefit of shareholders, Natives, and
descendants of Natives,''.
Purpose of the Bill
The purpose of H.R. 3090 is to amend the Alaska Native
Claims Settlement Act to restore certain lands to the Elim
Native Corporation, and for other purposes.
Background and Need for Legislation
H.R. 3090 will authorize the Elim Native Corporation, a
village corporation established under Section 19(b) of the
Alaska Native Claims Settlement Act, to select and have
conveyed to it 50,000 acres of federal land in an area north of
the former Norton Bay Reservation. This acreage would replace
50,000 acres deleted from the Reservation in 1929 by Executive
Order from the Reservation established for the benefit and use
of people whose descendants are today the shareholders of this
Native village corporation.
In 1916, a group of Inupiat Eskimos, whose ancestors had
lived in the Norton Bay region for centuries, were relocated
from Golovin Mission to a camp at what is today Elim, Alaska.
The people reportedly were suffering from measles, diphtheria,
and tuberculosis and other diseases they were exposed to by the
influx of non-Native settlers working in the gold mining and
other industries in the vicinity of Nome and Golovin.
The area in which Golovin Mission was located was ``barren
and that the Eskimos could not support themselves there * *
*.'' The location the people were moved to had ``an abundance
of supply of fish, game, timber and reindeer moss * * *.'' The
site also was chosen apparently because of the presence of a
fresh water spring and nearby medicinal hot springs.
In 1917, by Executive Order Number 2508 (January 3, 1917)
(amended by Executive Order Number 2525 (February 6, 1917)),
the federal government established a reservation around the
Native village of Elim on Norton Bay, about 110 miles southeast
of Nome, Alaska. The Executive Order set aside the reservation
for the benefit and ``use of the United States Bureau of
Education and of the natives of indigenous Alaskan race * *
*.'' At the time of its establishment, the Reservation was
approximately 350,000 acres.
In 1919, Congress passed a law that prohibited the
withdrawal of public lands for an Indian reservation except by
act of Congress. Eight years later, Congress mandated that,
except for temporary withdrawals by the Secretary of the
Interior, changes ``in the boundaries of reservations created
by Executive order, proclamation, or otherwise for the use and
occupation of Indians shall not be made except by Act of
Congress.''
Notwithstanding the 1919 and 1927 changes in law, the
President issued Executive Order 5207 (October 12, 1929),
revoking approximately 50,000 acres of the Norton Bay
Reservation. This Executive Order first opened the lands to
entry by ex-servicemen of World War I, as required by the Act
of February 14, 1920, 41 Stat. 434, as amended, 42 Stat. 358,
1067. After this 91 day period, in which no serviceman sought
entry, the lands were opened up to entry by the general public.
Until recently, the background as to why the lands were
deleted from the Norton Bay Reservation was not readily
available. However, it appears now that there were multiple
attempts by non-Natives to obtain modifications of the
Executive Orders establishing the Norton Bay Reservation to
open up all or part of the Reservation for commercial uses such
a fur farming and mining by non-Natives. Such attempts were
successful in 1929 but not in 1934, when Secretary of the
Interior Harold Ickes halted the additional attempts to open
much of the Reservation to mining for the benefit of non-
Natives.
It also appears that, to the extent there was any
consultation with the Native people of Elim prior to the 1929
deletion, such consultation was inadequate and cannot be
construed as obtaining informed consent from the Native people
directly affected. This was particularly so considering the
lack of Native community experience and knowledge of the non-
Native political and governmental process, and because the
residents of Elim at that time had become American citizens
only five years prior in 1924. However, the oral history of the
villagers indicates that they were not informed and did not
give their consent to government actions to delete the lands in
question.
The deletion became particularly significant in 1971, when
Congress passed the Alaska Native Claims Settlement Act
(ANCSA). Section 19(b) of ANCSA provided certain Native
villages which previously had been located on reservation land
the option of taking title to the reservation lands surrounding
their villages as of 1971 or a different settlement involving
lands, money, and rights to revenue sharing. The village of
Elim was offered and took title to the lands making up the
Norton Bay Reservation. However, the 1929 deletion had
effectively reduced Elim's entitlement to Norton Bay
Reservation lands by 50,000 acres. Although the people of Elim
felt that the lands had been wrongly taken from them in 1929,
they did not have the wherewithall or documentation to prove
it. It also appears that no one within government knew the
facts surrounding this deletion since the facts were not raised
nor made known to Elim during the establishment of their ANCSA
Section 19(b) Native corporation and the identification of
their land base.
Some of the prime coastal lands deleted in 1929 have since
been selected by and some conveyed to another Native village
corporation under ANCSA. In this situation, it does not appear
prudent to attempt to restore the lands deleted but rather to
replace them from other federal lands which can be made
available for selection under this legislation.
In light of the background and historical setting regarding
this land deletion, the Committee believes that this particular
case warrants remedial action by Congress. The Committee seeks
to do that by having Congress authorize Elim, on behalf of its
Native shareholders, select and have conveyed to it 50,000
acres of lands north of and adjacent to the original Norton Bay
Reservation, subject to certain covenants, reservations, terms
and conditions.
Because of the particular situation surrounding the
deletion and the opportunity afforded to Elim to have such
lands replaced, and considering the natural resources those
lands contain, the Committee has developed, in consultation
with the Department of the Interior, Elim, and others, certain
covenants, reservations, terms and conditions to be included in
the conveyance to Elim. These provisions wouldhelp conserve
fish and wildlife habitat on the lands conveyed, as well as hot and
medicinal springs, and provide certain access to the public while
providing Elim with the bulk of the rights of ownership so it can make
beneficial and economic use of the lands as envisioned in ANCSA. The
Committee expects this balancing of interests to be implemented in a
sensible way so as to provide Elim with the capability to utilize the
lands in an economically productive and sustainable way while providing
important safeguards to the fish and wildlife and other natural
resources on which the Elim Native Corporation shareholders rely to
some extent today and will more so into the future.
The Committee believes that, considering this special and
unique set of circumstances, this legislation will help remedy
in an appropriate way the inequity in this case and help
alleviate a source of great concern, frustration and feeling of
loss to the people of Elim.
Committee Action
H.R. 3090 was introduced on October 18, 1999, by
Congressman Don Young. The bill was referred to the Committee
on Resources. On October 13, 1999, the Committee held a hearing
on H.R. 3013, which contains the three sections of H.R. 3090.
On October 20, 1999, the Committee met to mark up the bill.
Congressman Don Young offered an amendment which clarified the
conditions surrounding the land selection and conveyance. The
amendment was adopted by voice vote, and the bill, as amended,
was then ordered favorably reported to the House of
Representatives by voice vote.
Section-By-Section Analysis
Section 1. Elim Native Corporation Land Restoration
This section amends the Alaska Native Claims Settlement Act
by adding a new Section 42, Elim Native Corporation Land
Restoration.
Subsection (a) sets out findings regarding the background
and need for the legislation.
Subsection (b) withdraws the lands described in subsection
(c) from all forms of appropriation under the public land laws
for a two-year period. This withdrawal would authorize Elim
Native Corporation to select, subject to valid existing rights,
lands under this new section.
Subsection (c) describes the withdrawn lands by reference
to a map dated October 19, 1999. The designation ``Temporary
Withdrawal Area'' on the map depicts the lands which are to be
withdrawn and from which Elim would select replacement acreage.
Subsection (d) authorizes Elim to select and ultimately
receive title to 50,000 acres of lands from the lands inside
the Temporary Withdrawal Area. The Department of the Interior
shall process the selections by Elim Native Corporation and
convey the fee to the surface and subsurface estate in the
selected lands, subject to the rules, conditions, and
limitations described below.
Subsection (d)(1) provides two years after the date of
enactment for Elim to make its selections. To ensure that it
receives the 50,000 acres, Elim may select up to 60,000 acres
and must prioritize its selections at the time it makes the
selections. Elim may not revoke or change its priorities. Elim
must select a single tract of land adjacent to U.S. Survey No.
2548, Alaska, that is reasonably compact, contiguous, and in
whole sections except for two situations. The withdrawn lands
remain withdrawn until the Department has conveyed all the
lands that Elim Native Corporation is entitled to under this
legislation.
Subsection (d)(2)(A) provides that, in addition to being
subject to valid existing rights, Elim's selections may not
supersede prior selections by the State of Alaska or other
Native corporations, or valid entries by private individuals
unless the State, Native corporation, or individual
relinquishes the selection or entry prior to selection by Elim.
Rights of ingress and egress will vest in the inholder, if any,
or the inholder's agent and be reflected as an easement
reserved in the conveyance to Elim. Public Land Order 5563,
which made the hot springs previously reserved in Alaska
available to ANCSA Native corporations for selection, is
modified so as to authorize the Secretary to permit selections
by Elim of hot or medicinal springs.
Subsection (d)(2)(B) reserves to the United States certain
covenants and conditions including the right of the public to
visit for non-commercial purposes the hot springs conveyed to
Elim, if any, and to conduct scientific research on the hot
springs and to use the research without compensation to Elim.
Development would be limited to only 15 percent of the land on
which the hot springs are located and on lands within \1/4\
mile from the hot springs. Such development must not alter,
however, the natural hydrologic or thermal system associated
with the hot springs. Elim would be able to conduct scientific
research on the conveyed lands without compensation to the
United States.
Subsection (d)(2)(D) authorizes the Department of the
Interior to enter into a Memorandum of Understanding (MOU) with
Elim regarding provisions of the paragraph.
Subsection (d)(2)(E) provides that the conveyance include
the specified covenants, terms and conditions and that Elim
would have, on receipt of the lands, all legal rights and
privileges of a landowner other than the reservations,
covenants and conditions specified in the subsection and the
MOU. Elim is not permitted to engage in commercial timber
harvesting (a defined term) on the conveyed lands. The
paragraph provides for certain retained rights to the United
States: (1) the right to enter Elim Native Corporation's
conveyance lands to enforce the provision; (2) rights and
remedies against persons violating the restriction on
commercial timber harvesting; and (3) the right to reforest, in
cooperation with Elim Native Corporation if merchantable timber
is destroyed. The paragraph also provides for incorporating
appropriate administrative and enforcement provisions in any
MOU the parties enter into, and the right of prosecutorial
discretion without waiver of the reservation, covenant, or
condition if the United States does not prosecute or enforce
the reservation, covenant, or condition.
Subsection (d)(3) and (4) reserves public access easements
under Section 17(b) of ANCSA, and provides authority to reserve
an easement for the Iditarod National Historic Trail.
Subsection (e) makes clear that selection by and conveyance
to Elim Native Corporation of these lands is in full
satisfaction of any claim by Elim Native Corporation of
entitlement of lands under Section 19(b) of ANCSA.
Subsection (f) authorizes appropriations as may be
necessary to implement subsection (c).
Section 2. Common stock to adopted-out descendants
Section 7(h) of ANCSA sets forth the general rules
pertaining to the issuance and transfer of common stock in an
Alaska Native Corporation, which stock is referred to as
Settlement Common Stock. Generally, the holder of Settlement
Common Stock is not permitted to sell, pledge or otherwise
alienate this stock. However, Section 7(h)(1)(C) of ANCSA
provides certain exceptions to the general prohibition on the
alienation of Settlement Common Stock. Under Section
7(h)(1)(C)(iii), the holder of Settlement Common Stock may
transfer some or all of the Settlement Common Stock to a close
family member by inter vivos gift. Gifts of Settlement Common
Stock are permitted to, among others, a child, grandchild or
great-grandchild.
Alaska State law has been interpreted to sever, for all
purposes, the relationship between a family and a child who has
been adopted out, or for whom parental rights have been
relinquished or terminated. Thus, under existing law, a holder
of Settlement Common Stock may not make an inter vivos gift
transfer of Settlement Common Stock to a child who has been
adopted by another family. The proposed amendment in Section 2
will permit the biological family of an Alaska Native child to
make an inter vivos gift to that child of Settlement Common
Stock, regardless of the child's adoption into a non-Native
family, or the relinquishment or termination of parental
rights. The enactment of the provisions of Section 2 will
resolve the problem currently faced by some Alaska Native
children who are unable to receive shares in an Alaska Native
Corporation because the relationship with their biological
family has been legally severed under Alaska State law.
Section 3. Definition of settlement trust
Congress enacted the settlement trust option in ANCSA to
allow Alaska Native Corporations to establish trusts to hold
assets for the benefit of Alaska Native Shareholders. As the
law currently stands, these trusts may only benefit holders of
Settlement Common Stock. The amendments contained in Section 3
of the bill will permit Native Corporation shareholders, by the
vote of a majority of shares, to extend this benefit of ANCSA
to all of the Native people in their community, including the
children and grandchildren of the original stockholders,
regardless of whether they yet own stock in the Native
Corporation. This amendment redefines ``settlement trust'' to
permit Native Corporations to establish settlement trusts in
which potential beneficiaries include shareholders, Natives and
descendants of Natives. Because ANCSA was enacted to benefit
all Natives, this amendment is in keeping with the original
intent of that legislation. At the same time, the interests of
Alaska Native Corporation shareholders are protected because
this option is available only to those Corporations whose
shareholders vote, by a majority of all outstanding voting
shares, to benefit non-shareholders.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 and Article IV, section 3 of the
Constitution of the United States grant Congress the authority
to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 3, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
U.S. House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3090, a bill to
amend the Alaska Native Claims Settlement Act to restore
certain lands to the Elim Native Corporation, and for other
purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Victoria
Heid Hall (for federal costs), and Marjorie Miller (for the
state, local, and tribal impact).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 3090--A bill to amend the Alaska Native Claims Settlement Act to
restore certain lands to the Elim Native Corporation, and for
other purposes
CBO estimates that implementing H.R. 3090 would have no
significant impact on the federal budget. Because H.R. 3090
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. H.R. 3090 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act. Enactment of this bill would
benefit the Elim Native Corporation.
H.R. 3090 would direct the Secretary of the Interior to
convey 50,000 acres of public land administered by the Bureau
of Land Management (BLM) in Alaska to the Elim Native
Corporation. According to BLM, the area from which the
corporation would make the selection currently generates no
receipts, and the agency does not expect the land to generate
any significant receipts over the next 10 years. Therefore,
conveying this acreage to the corporation would not affect the
federal budget over that period.
H.R. 3090 also would amend the Alaska Native Claims
Settlement Act (ANCSA) to broaden the definition of a
``settlement trust'' in ANCSA. We estimate that the provision
would have no impact on federal spending.
The CBO staff contacts are Victoria Heid Hall (for federal
costs), and Marjorie Miller (for the state, local, and tribal
impact). This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local, or Tribal Law
This bill is not intended to preempt any State, local, or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ALASKA NATIVE CLAIMS SETTLEMENT ACT
* * * * * * *
definitions
Sec. 3. For the purposes of this Act, the term--
(a) * * *
* * * * * * *
(t) ``Settlement Trust'' means a trust--
(1) * * *
(2) operated for the [sole benefit of the holders of
the corporation's Settlement Common Stock] benefit of
shareholders, Natives, and descendants of Natives, in
accordance with section 39 and the laws of the State of
Alaska.
* * * * * * *
regional corporations
Sec. 7. (a) * * *
* * * * * * *
(h)(1) Rights and Restrictions.--(A) * * *
* * * * * * *
(C) Notwithstanding the restrictions set forth in
subparagraph (B), Settlement Common Stock may be transferred to
a Native or a descendant of a Native--
(i) * * *
* * * * * * *
(iii) as an inter vivos gift from a holder to his or
her child, grandchild, great-grandchild, niece, nephew,
or (if the holder has reached the age of majority as
defined by the laws of the State of Alaska) brother or
sister, notwithstanding an adoption, relinquishment, or
termination of parental rights that may have altered or
severed the legal relationship between the gift donor
and recipient.
* * * * * * *
elim native corporation land restoration
Sec. 42. (a) Findings.--The Congress finds that--
(1) approximately 350,000 acres of land were
withdrawn by Executive Orders in 1917 for the use of
the United States Bureau of Education and of the
Natives of Indigenous Alaskan race;
(2) these lands comprised the Norton Bay Reservation
(later referred to as Norton Bay Native Reserve) and
were set aside for the benefit of the Native
inhabitants of the Eskimo Village of Elim, Alaska;
(3) in 1929, an Executive Order deleted 50,000 acres
of land from the Norton Bay Reservation;
(4) the lands were deleted from the Reservation for
the benefit of others;
(5) the deleted lands were not available to the
Native inhabitants of Elim under section 19(b) of this
Act at the time of passage of this Act;
(6) the deletion of these lands has been and
continues to be a source of deep concern to the
indigenous people of Elim; and
(7) until this matter is dealt with, it will continue
to be a source of great frustration and sense of loss
among the shareholders of the Elim Native Corporation
and their descendants.
(b) Withdrawal and Availability for Selection.--The lands
described in subsection (c) are withdrawn, subject to valid
existing rights, from all forms of appropriation or disposition
under the public land laws, including the mining and mineral
leasing laws, for a period of 2 years from the date of
enactment of this section, for selection by the Elim Native
Corporation.
(c) Lands Described.--The lands described in this section are
within the boundary of a parcel of land in the vicinity of
Elim, Alaska, more particularly depicted and designated
``Temporary Withdrawal Area'' on the map dated October 19,
1999, on file with the Bureau of Land Management, and entitled
Land Withdrawal Elim Native Corporation.
(d) Authorization To Select and Receive Title to Lands;
Reservation of Easements.--The Elim Native Corporation is
authorized to select and receive title to 50,000 acres of lands
within the boundary of the lands described in subsection (c).
The Secretary is authorized and directed to receive and
adjudicate a selection application filed by the Elim Native
Corporation, and to convey the surface and subsurface estate in
the selected lands to the Elim Native Corporation subject to
the following rules, conditions, and limitations:
(1) The Elim Native Corporation shall have 2 years
from the date of the enactment of this section in which
to file its selection of no more than 60,000 acres of
land from the area described in subsection (c). The
selection application shall be filed with the Bureau of
Land Management, shall describe a single tract adjacent
to U.S. Survey No. 2548, Alaska, and shall be
reasonably compact, contiguous, and in whole sections
except when separated by unavailable land or when the
remaining entitlement is less than a whole section. The
Elim Native Corporation shall prioritize its selections
made pursuant to this section at the time such
selections are filed, and such prioritization shall be
irrevocable. Any lands selected shall remain withdrawn
until conveyed or full entitlement has been achieved.
(2)(A) The selection filed by the Elim Native
Corporation pursuant to this section shall be subject
to valid existing rights and may not supercede prior
selections of the State of Alaska, any Native
corporation, or valid entries of any private individual
unless such selection or entry is relinquished prior to
any selection by the Elim Native Corporation. Any lands
held within the exterior boundaries of lands conveyed
to the Elim Native Corporation shall have all rights of
ingress and egress to be vested in the inholder and the
inholder's agents, employees, co-venturers, licensees,
or subsequent grantees, and such easements shall be
reserved in the conveyance to the Elim Native
Corporation. Public Land Order 5563 of December 16,
1975, is hereby modified to extend to the lands
withdrawn pursuant to this section and the Secretary is
authorized, at the Secretary's discretion, to permit
selections and conveyances of hot or medicinal springs
(referred to herein as ``hot springs'') pursuant to
this section.
(B) If any lands are conveyed to Elim Native
Corporation which are also subject to withdrawal for
hot springs under this section, there shall be in the
conveyance the following rights reserved to the United
States, covenants, and conditions:
(i) The right of ingress and egress over
easements under 17(b) of this Act for the
public to visit the hot springs for
noncommercial purposes and to use any part of
the hot springs that is not commercially
developed.
(ii) The right of the United States to enter
upon the lands for the purpose of conducting
scientific research and to use the results of
such research without compensation to Elim
Native Corporation.
(iii) A covenant running with the land that
commercial development of the hot springs by
Elim Native Corporation or its successors,
assigns, or grantees shall include the right to
develop a maximum of 15 percent of the land
upon which the hot springs are located and the
land within \1/4\ mile of the land upon which
the hot springs are located. Such commercial
development shall not alter the natural
hydrologic or thermal system associated with
the hot springs and not less than 85 percent of
the lands within \1/4\ mile of the hot springs
shall be left in its natural state.
(C) Elim Native Corporation shall have the right to
conduct scientific research on the conveyance lands,
including the hot springs, and to use the results of
such research without compensation to the United
States.
(D) The Secretary is authorized to negotiate with
Elim Native Corporation a memorandum of understanding
to implement the provisions of this paragraph.
(E) The following covenants, terms, and conditions
with respect to the conveyance lands shall be
incorporated into the interim conveyance and patent, if
any, conveying the lands to Elim Native Corporation:
(i) Upon receipt of the conveyance lands,
Elim shall have all legal rights and privileges
as landowner, other than reservations,
covenants, and conditions specified in this
subsection and in the Memorandum of
Understanding.
(ii) Elim Native Corporation shall not engage
in or allow Commercial Timber Harvesting on the
conveyance lands. ``Commercial Timber
Harvesting'' means--
(I) cutting and removing from the
Elim Native Corporation lands
Merchantable Timber for sale; and
(II) constructing roads and related
infrastructure for the support thereof.
``Merchantable Timber'' means timber
that can be harvested and marketed by a
prudent operator.
(iii) To accomplish the purpose of this
subsection, the following rights are retained
by the United States:
(I) To enter upon the conveyance
lands, after providing reasonable
advance notice in writing to Elim
Native Corporation, and after providing
Elim Native Corporation with a
reasonable opportunity to have a
representative present upon such entry
in order to achieve the purpose and
enforce the terms of this subsection.
(II) To have all rights and remedies
available against persons who cut or
remove Merchantable Timber with no
lawful right to do so in addition to
any such rights held by Elim Native
Corporation.
(III) In cooperation with Elim Native
Corporation, the right, but not the
obligation, to reforest in the event
then-existing Merchantable Timber is
destroyed by fire, wind, insects,
disease, or other similar manmade or
natural occurrence (excluding manmade
occurrences resulting from the exercise
by Elim Native Corporation of its
lawful rights to use the conveyance
lands).
(iv) The foregoing provisions are covenants
running with the land.
(v) Elim Native Corporation shall incorporate
the terms of this subsection in any deed or
other legal instrument by which it divests
itself of any interest in all or a portion of
the conveyance lands, including without
limitation a leasehold interest.
(vi) The covenants, terms, conditions, and
restrictions of this subsection are covenants
running with the land and shall be binding upon
Elim Native Corporation and the United States,
their successors and assigns.
(vii) Appropriate administration and
enforcement provisions shall be incorporated
into the Memorandum of Understanding authorized
by this subsection.
(viii) The United States shall retain the
right of prosecutorial discretion without
waiver of any such reservations, covenants, or
conditions, in the enforcement of any
reservation, covenant, or condition.
(3) The Bureau of Land Management shall reserve
easements to the United States for the benefit of the
public pursuant to section 17(b) of this Act in the
conveyance to the Elim Native Corporation.
(4) The Bureau of Land Management may reserve an
easement for the Iditarod National Historic Trail in
the conveyance to the Elim Native Corporation.
(e) Finality of Selections.--Selection by the Elim Native
Corporation of lands under subsection (d) and final conveyance
of those lands to Elim Native Corporation shall constitute full
satisfaction of any claim of entitlement of the Elim Native
Corporation with respect to its land entitlements under section
19(b).
(f) Implementation.--There are authorized to be appropriated
such sums as may be necessary to implement this section.
A P P E N D I X
----------
The Coastal Coalition,
Anchorage, AK, October 8, 1999.
Re Elim Native Corporation Land Restoration proposal.
Hon. Don Young,
Chairman,
Hon. George Miller,
House of Representatives, Committee on Resources, Washington, DC.
Dear Gentlemen: I just wanted to offer a few words in
support of the proposal before your committee to return to the
Elim Corporation 50,000 acres of land that had been deleted in
1929 by Executive Order.
It is my understanding from the history of this issue that
the deletion by Executive Order from the Norton Bay Reservation
was the result of a concerted effort by non-Natives to gain
access to the area for commercial purposes such as fur farming,
prospecting and mining. The deletion from the Reservation
seemed to be yet another profound injustice perpetrated on
Alaska natives. Apparently, Elim people weren't even consulted
regarding this deletion.
In my many years living in and working in northwest Alaska,
I visited Elim several times, and they were always some of the
kindest, most accommodating people I had the opportunity to
work with. They certainly seem to care a great deal about their
land and cultural heritage.
Before your committee is a remarkable opportunity to right
this wrong, and I urge you to act upon this opportunity. The
return of 50,000 acres of land to the Elim shareholders seems
justified not just on moral and ethical grounds, but also on
the grounds of conservation and protection of valuable fish and
wildlife habitat. Particularly important is the habitat along
the Tubuktoolik River and its watershed.
I would hope that a protective conservation easement or
other protective covenant could be included with the transfer
in order to secure sustainable protection of the area well into
the future. This would not only protect the lands from
potentially damaging commercial activities, but would also
allow Elim to develop a truly sustainable economy in the
region. As the lands are held at present, there are no such
protections and the area could easily fall victim to short-term
activities against the desires and sentiments of the Elim
people.
Returning this land to the Elim people with the protective
covenants is a win-win scenario, as it provides ethical redress
of some rather outrageous federal activity earlier this
century, conservation of the region, and opportunity for the
Elim people to rebuild a sustainable economy on their land.
Thanks for your attention to this very important issue.
Sincerely,
Rick Steiner, Director.
------
Donald C. Mitchell,
Attorney at Law,
Anchorage, AK, October 8, 1999.
Re Section 7 of H.R. 3013 (Elim Native Corporation Amendment.)
Hon. Don Young,
Chairman, Committee on Resources.
Hon. George Miller,
Ranking Member, Committee on Resources, House of Representatives,
Washington, DC.
Dear Representatives Young and Miller: On October 5, 1999,
Mr. Young introduced, and the Committee on Resources was
referred, H.R. 3013, the Alaska Native Claims Technical
Amendments of 1999.
In 1971 when it settled Alaska Native land claims by
enacting the Alaska Native Claims Settlement Act (ANCSA) the
92d Congress determined that social and economic justice
required that Alaska Natives who resided in a village located
within the boundaries of a reservation that had been
established for their benefit should be afforded an opportunity
to select, and to be conveyed legal title to, all public land
located within the reservation's boundaries.
The Inupiat residents of the village of Elim took advantage
of that opportunity, and the Secretary of the Interior conveyed
the Elim Native Corporation legal title to the public land
located within the boundaries of the former Norton Bay
Reservation, as those boundaries existed in 1971.
ANCSA was a milestone in the history of Congress's
relations with Native Americans. But because it was by no means
perfect, since 1971 subsequent Congresses have amended ANCSA on
numerous occasions to provide Alaska Natives additional land
selection opportunities when necessary to ensure that the Act
achieves its objectives.
The most important of those objectives is to afford Alaska
Natives social and economic justice regarding their ownership
of public land they historically used and occupied.
As you know, from 1977 to 1994, I served as counsel to the
Alaska Federation of Natives (AFN), which Alaska Natives
organized in 1967 to lead the fight for a fair and just land
claims settlement. In that capacity I over the years
participated in developing a number of amendments to ANCSA that
Congress enacted to ensure that the objective of affording
Alaska social and economic justice is achieved.
One of the most grievous cases of social and economic
injustice of which I became aware during my tenure as AFN's
counsel was the caprice with which representatives of the
federal executive in 1929 diminished the land rights of the
Inupiat residents of the village of Elim by adjusting the
boundary of the Norton Bay Reservation without their knowledge
or consent.
The facts regarding that situation are well-known and
uncontroverted. During my tenure at AFN I and others on several
occasions attempted to bring the Elim situation to Congress's
attention, but we were not successful. As a consequence, I am
delighted to find that section 7 of H.R. 3013 attempts to
remedy the injustice that was inflicted on the Inupiat
residents of Elim in 1929 when the boundary of the Norton
Reservation was unfairly, and in my view unlawfully, modified.
For that reason, I would respectfully, but strongly, urge you
and other members of the Committee on Resources to favorably
report section 7 of H.R. 3013 to the U.S. House of
Representatives, either as part of H.R. 3013, or as a stand-
alone bill.
Sincerely,
Don Mitchell.
------
Copeland, Landye, Bennett and Wolf, llp,
Attorney at Law,
Anchorage, AK, October 19, 1999.
Re Senate Bill 1702: Elim Native Corporation Land Restoration;
Expression of Support.
Hon. Frank Murkowski,
Senate Committee on Energy and Natural Resources, Hart Building,
Washington, DC.
Dear Senator Murkowski: On October 13, 1999 the Koyuk
Native Corporation (KNC) submitted testimony in opposition to
Section 7 of the proposed Alaska Native Claims Technical
Amendments Act of 1999. Specifically, KNC was caught off guard
by the Elim Native Corporation Land Restoration legislation and
was quite fearful that Elim's land selection would infringe on
the traditional rights of Koyuk.
Since that time, KNC has been in contact with the Elim
Native Corporation and their counsel, and has been able to
review the proposed legislation and Land Withdrawal Map. Elim
has communicated that the land selection was purposefully
crafted so as not to infringe upon the rights of Koyuk or to
stir controversy.
Accordingly, KNC by and through their counsel, retracts its
formal opposition to the Elim Native Corporation Land
Restoration legislation, and instead substitutes its April 20,
1994 letter of support to Elim (Enclosed). As always, if there
are changes to the proposed legislation that may in any way
affect the rights of Koyuk, KNC expects to be informed of such
changes through direct and open consultation. Anything less
will once again jeopardize KNC's support of the Elim land
restoration efforts.
Sincerely,
David Avraham Voluck.
------
Koyuk Native Corporation,
Koyuk, AK, April 20, 1994.
Abel Saccheus,
President, Elim Native Corporation, Elim, AK.
Dear Abel: I have received your letter requesting a letter
of support from the Koyuk Native Corporation.
Let me reiterate that during the past meetings with Elim
and with our Board members and Shareholders; we have said we
would support you getting land elsewhere other than east of
Elim's boundary.
During our February 26, 1994 Annual meeting this issue was
discussed and the Board members and Shareholders are in favor
of supporting you getting land elsewhere other than east of
Elim's present boundary. Therefore on behalf of the
Shareholders and Board of Directors of the Koyuk Native
Corporation please accept this letter of support for your
resolution for Elim pursuing letter (A) according to the map
enclosed, which is north of your present boundary.
Good luck with much support from the Koyuk Native
Corporation.
Sincerely,
Elvina Swanson, President.