[Senate Report 106-258]
[From the U.S. Government Publishing Office]
Calendar No. 488
106th Congress Report
SENATE
2d Session 106-258
======================================================================
ELIM NATIVE CORPORATION LAND RESTORATION
_______
April 10, 2000.--Ordered to be printed
_______
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany H.R. 3090]
The Committee on Energy and Natural Resources, to which was
referred the Act (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, reports favorable thereon without amendment and
recommends that the Act do pass.
Purpose of the Measure
The purpose of H.R. 3090 is to amend the Alaska Native
Claims Settlement Act to restore certain lands to the Elim
Native Corporation, to allow an Alaskan Native to give
settlement common stock to a native child even if parental
rights have terminated and to provide a definition of
settlement trust.
Background and Need
Section 1 of H.R. 3090 directs the Secretary of the
Interior to convey 50,000 acres of land to the Elim Native
Corporation, a village corporation established under section
19(b) of the Alaska Native Claims Settlement Act. The land,
currently managed by the Bureau of Land Management (``BLM'') is
in an area north of the former Norton Bay Reservation. This
acreage would replace 50,000 acres removed 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 known today as 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.
Golovin Mission was located in a barren area and the
Eskimos could not support themselves there. The location the
people were moved to had an abundant supply of fish, game,
timber and reindeer moss. Apparently, the site also was chosen
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 in 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 a 91-day period, during which no serviceman sought
entry, the lands were opened up to entry by the general public.
Until recently, the reason why the lands were deleted from
the Norton Bay Reservation was not generally known. 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 as fur farming and mining
by non-Natives. These 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.
There is little or no evidence that the Native people of
Elim gave their informed consent to the 1929 revocation. There
was lack of Native community experience and knowledge of the
non-Native political and governmental process. The residents of
Elim at that time had become American citizens only five years
before in 1924. In addition, the oral history of the villagers
indicates that they were not informed and did not give their
consent to revocation.
The revocation became particularly significant in 1971,
when Congress passed the Alaska Native Claims Settlement Act
(ANCSA). Section 19(b) of ANCSA provided certain Native
villages, that 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 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
financial resources or documentation to prove it. It also
appears that no one within government knew the facts
surrounding this revocation since the facts were not 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 revoked in 1929 have since
been selected or conveyed to another Native village corporation
under ANCSA. For that reason, it would not be prudent to make
the lands available for selection by Elim. Instead, this bill
makes other nearby Federal lands available for selection.
In light of the background and historical setting of the
1929 revocation, this particular case warrants remedial action
by Congress. H.R. 3090 authorizes Elim, on behalf of its Native
shareholders, to 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.
The bill contains covenants, reservations, terms, and
conditions that will be part of the conveyance to Elim. These
provisions will help conserve fish and wildlife habitat on the
lands conveyed, as well as hot and medicinal springs, and
provide 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. This was not circulated.
Considering the special and unique set of circumstances of
the people of Elim, this legislation will help remedy in an
appropriate way the inequity and help alleviate a source of
great concern, frustration and feeling of loss by the people of
Elim.
Section 2 of H.R. 3090 amends section 7 of ANCSA to allow
an Alaskan Native to give settlement common stock to an Alaskan
Native son or daughter, regardless of any type of termination
of parental rights.
Section 7(h) of the Alaska Native Claims Settlement Act
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 inter vivos gift transfer
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 paternal 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 of H.R. 3090 modifies the definition of
settlement trust option in ANCSA to allow Alaska Native
Corporation 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 will permit Native
Corporation shareholders, by the vote of 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.
Legislative History
H.R. 3090 was introduced by Representative Don Young on
October 18, 1999. The bill was ordered reported on October 20,
1999. On November 5, the bill was amended and placed on the
calendar. The bill passed the House on November 9, 1999. The
bill was received in the Senate on November 10, 1999 and it was
referred to the Committee on Energy and Natural Resources on
November 19, 1999. A similar bill, S. 1702, was introduced by
Senator Murkowski on October 6, 1999. The Committee held a
hearing on S. 1702 on October 14, 1999. S. 1702 contains
similar provisions to H.R. 3090, as well as additional
provisions. At the business meeting on February 10, 2000, the
Committee on Energy and Natural Resources ordered H.R. 3090
favorably reported.
Committee Recommendation and Tabulation of Votes
The Committee on Energy and Natural Resources, in open
business session on February 10, 2000 by a unanimous vote of a
quorum present, recommends that the Senate pass H.R. 3090.
Section-by-Section Analysis
Section 1. Elim Native Corporation land restoration
Section 1 amends section 19 of the Alaska Native Claims
Settlement Act by adding a new subsection (c) as follows.
Subsection (c)(1) sets out findings regarding the
background and need for the legislation.
Subsection (c)(2) identifies the lands to be withdrawn
(``Withdrawal Area'') by reference to a map dated October 19,
1999, and withdraws the lands from all forms of appropriation
or disposition under the public land laws for a two-year
period.
Subsection (c)(3) authorizes Elim to select and ultimately
receive title to 50,000 acres of lands from the lands inside
the Withdrawal Area. The Secretary of the Interior is directed
to convey to Elim the fee to the surface and subsurface estate
in 50,000 acres of valid selections, subject to the covenants,
reservations, terms and conditions in subsection (c).
Subsection (c)(3)(A) 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 with two exceptions. The withdrawn lands remain
withdrawn until the Secretary has conveyed all the lands that
Elim Native Corporation is entitled to under this subsection.
Subsection (c)(3)(B) provides that, in addition to being
subject to valid existing rights, Elim's selections may not
supercede 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 entry prior to conveyance to Elim.
Subsection (c)(3)(C) provides that, on receipt of the
Conveyance Lands, Elim will have all the legal rights and
benefits as a landowner of land conveyed pursuant to the Alaska
Native Claims Settlement Act (``ANCSA'') subject to the
covenants, reservations, terms and conditions in this
subsection. All other provisions of ANCSA that were applicable
to conveyances under section 19(b) of ANCSA are applicable to
conveyances under this subsection.
Subsection (c)(3)(D) states 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 to lands under section 19 of ANCSA.
Subsection (c)(4) provides that the covenants, terms and
conditions under paragraphs (4), (5), and (6) will run with the
land and be incorporated into any interim conveyance or patent
conveying the lands to Elim.
Subsection (c)(4)(A) provides that Elim has all the rights
of landowner to, and to utilize, the timber resources of the
Conveyance Lands including construction of homes, cabins, for
firewood and other domestic uses on any Elim lands, except for
cutting and removing merchantable timber for sale and
constructing roads and related infrastructure for the support
of such cutting and removing timber for sale.
Subsection (c)(4)(B) modifies Public Land Order 5563 to
permit selection by Elim of lands encompassing prior
withdrawals of hot or medicinal springs subject to the
applicable covenants, reservations, terms and conditions in
paragraphs (5) and (6).
Subsection (c)(4)(C) provides that if Elim receives lands
encompassing the Tubutulik River or Clear Creek, or both, Elim
will not allow activities in the bed or within 300 feet of
these water courses which would cause or would likely cause
erosion so as to significantly adversely impact water quality
or fish habitat.
Subsection (c)(5)(A) sets forth the first of a series of
rights to be retained by the United States in the conveyances.
Subsection (a) states that the United States retains a right to
enter the conveyance lands for purposes outlined after
providing notice to Elim and an opportunity to have a
representative present.
Subsection (c)(5)(B) provides for retaining rights and
remedies against persons who cut or remove merchantable timber.
Subsection (c)(5)(C) provides for retaining of the right to
reforest if merchantable timber is destroyed by fire, insects,
disease or other man-made or natural occurrence, except for
such occurrences that occur from Elim's exercise of its rights
to use the conveyance lands as landowner.
Subsection (c)(5)(D) provides for retaining of the right of
ingress and egress to the public under section 17(b) of ANCSA
to allow the public to visit, for non-commercial purposes, the
hot springs located on the conveyance lands and to use any part
of the hot springs that is not commercially developed.
Subsection (c)(5)(E) provides for retaining the right to
the United States to enter the conveyance lands containing hot
springs in order to conduct scientific research. It also
ensures that such research can be conducted and that the
results of such research can be used without any compensation
to Elim. Subparagraph (E) also provides an equal right to Elim
to conduct such research on the hot springs and to use the
results of the research without compensation to the United
States.
Subsection (c)(5)(F) provides for retaining of a covenant
that restricts commercial development of the hot springs by
Elim to a maximum of 15% of the hot springs and 15% of the land
within \1/4\ mile of the hot springs. This subparagraph also
provides that any commercial development of those hot springs
will not alter the natural hydrologic or thermal system
associated with the hot springs. The provision makes clear that
at least 85% of the lands within \1/4\ mile of the hot springs
should be left in their natural state.
Subsection (c)(5)(G) provides that retaining the right to
exercise prosecutorial discretion in the enforcement of any
covenant, reservation, term or condition does not waive the
right to enforce such covenant, reservation, term or condition.
Subsection (c)(6)(A) directs the Secretary and Elim to
enter into a Memorandum of Understanding (``MOU'') to implement
this subsection. Subparagraph (A) requires that the MOU include
reasonable measures to protect plants and animals in the hot
springs and within \1/4\ mile of the hot springs. This
subparagraph requires that the parties agree to meet
periodically to review the MOU.
Subsection (c)(6)(B) requires Elim to incorporate the
covenants, reservations, terms and conditions set forth in
subsection (c) in any deed or other instrument by which Elim
divests itself of any interest in all or portion of the
Conveyance Lands.
Subsection (c)(6)(C) requires BLM, in consultation with
Elim, to reserve easements under subsection 17(b) of ANCSA.
Subsection (c)(6)(D) provides: for the retention of other
easements by the BLM, in consultation with Elim, including the
right of the public to enter upon and travel along the
Tubutulik River and Clear Creek within the Conveyance Lands;
(2) that the easements shall include trails confined to foot
travel along each bank of the Tubutulik River and Clear Creek;
and (3) that trails be twenty-five feet wide and upland of the
ordinary high water mark. It also provides for including one-
acre sites along the two water course referenced, that the
sites be selected in consultation with Elim, and that they be
utilized for launching and taking out water craft as well as
for short-term (twenty-four hours) camping, unless Elim
consents to a longer period.
Subsection (c)(6)(E) provides that owners of inholdings
within the boundaries of the Conveyance Lands have rights of
ingress and egress. It provides also that such owners may not
exercise these rights in a manner that might result in
substantial damage to the surface of the lands and may not make
any permanent improvement to the Conveyance Lands without the
consent of Elim.
Subsection (c)(6)(F) provides that the Bureau of Land
Management may reserve an easement for the Iditarod National
Historic Trail in the land conveyance to Elim.
Subsection (c)(7) authorizes appropriations as may be
necessary to implement subsection(c).
Section 2. Common stock to adopted-out descendants
Section 2 amends section 7 of ANCSA to allow an Alaskan
Native to give settlement common stock to an Alaskan Native son
or daughter, regardless of any type of termination of parental
rights.
Section 3. Definition of settlement trust
This amendment redefines ``settlement trust'' to permit
Native Corporation to establish settlement trusts in which
potential beneficiaries include shareholders, Natives and
descendants of Natives.
Cost and Budgetary Considerations
The following estimates of costs of this measure was
provided by the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 23, 2000.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3090, an act to
amend the Alaska 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 Megan
Carroll (for federal costs), and Marjorie Miller (for the
state, local, and tribal impact).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
H.R. 3090--An act 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 legislation
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 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.
On November 3, 1999, CBO transmitted a cost estimate for
H.R. 3090 as ordered reported by the House Resources Committee
on October 20, 1999. The two versions of the legislation are
substantively similar, and the cost estimates are the same.
The CBO staff contacts are Megan Carroll (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.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out H.R. 3090. The bill is not a regulatory measure in
the sense of imposing Government-establishment standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of H.R. 3090, as ordered reported.
Executive Communications
On February 15, 2000 the Committee on Energy and Natural
Resources requested legislative reports from the Department of
the Interior and the Office of Management and Budget setting
forth Executive agency recommendations on H.R. 3090. These
reports had not been received at the time the report on H.R.
3090 was filed. When the reports become available, the Chairman
will request that they be printed in the Congressional Record
for the advise of the Senate. The administration's testimony
before the Committee on a bill, S. 1702, containing similar
provisions follows:
Statement of Marilyn Heiman, Secretary's Representative in Alaska,
Department of the Interior
Mr. Chairman and members of the Committee, I want to thank
you for the opportunity to provide our comments on S. 1702, the
Alaska Native Claims Technical Amendments Act of 1999. As you
know, we have worked in the past with the Committee and the
Congress, with Alaska Native groups, the State, and other
stakeholders to achieve consensus on technical amendments to
ANCSA. The most recent example is last year's passage of H.R.
2000 representing a significant achievement of a consensus bill
after many months of effort, negotiation, and accommodation
among the interested parties. We continue to believe that ANCSA
and ANILCA taken together form a sound basis for land
management in Alaska and are not in need of reform, and we have
testified that most problems can be resolved administratively,
but we wish to continue to work with you, with Alaska Native
groups, and other parties to consider technical amendments
where they may assist in implementation and management or solve
a problem.
As you know we have already engaged in considerable
discussion with representatives of Alaska Native groups and
your staff on this bill. I want to thank you for including in
the bill technical changes we discussed with your staff. While
we are making some progress, several provisions still give us
serious concern. We would like to continue to work with
interested parties to see if some consensus bill is possible,
however given the concerns we currently have, we think it is
premature to take any formal action on the bill at this time.
If the bill were passed in its current form, the Secretary
would recommend that the President veto it.
I would like to discuss our recommendations on S. 1702 and
our policy concerns.
section 2
We feel this section will be beneficial of adopted native
children who, through no fault of their own, were excluded by
the legal process from enjoying the benefits under ANCSA. These
changes will correct an inequity and missed opportunity for
those descendants who have been excluded under current
authorities. In addition this proposal will reduce constraints
that ANCSA corporations have had in recognition of their
rightful membership.
section 3
The Administration has serious concerns about this section
and believes the exception is much more far reaching than is
warranted. Section 3 amends the Civil Rights Act of 1964 (CRA)
by expanding the Title VII exemption to include businesses
which do $20,000 or more business a year with Native
Corporations. It provides a complete exemption from the
definition of ``employer'' in Title VII of the CRA.
While we support the concept of providing incentives for
contracting with Native owned businesses, this change goes far
beyond that goal. As a matter of Administration policy, we
cannot support an expansion of the exemption in the Civil
Rights Act of 1964 to include contractors of Native
Corporations.
This amendment would not necessarily ensure that a
contractor would in fact be a Native company, it would include
any company that a Native Corporation contracts with for over
$20,000 per year. The Administration strongly opposes section
3.
section 4
We have no objection to Section 4. Its apparent intended
effect would be to remove existing state corporate law barriers
to a Native Corporation's voluntary expansion of the class of
beneficiaries of its Settlement Trust to include individual
Natives and descendants of Natives who have not yet become
shareholders of the corporation. Since the existing provisions
of 43 U.S.C. 1629e, and in particular 1629e(b)(3), at least
impliedly limit the class of Settlement Trust beneficiaries to
holders of Settlement Common Stock, this amendment of the
definition would permit, but not require, a broader definition
of the class of Settlement Trust beneficiaries.
section 5
We recognize that Alaska Natives hold Native veterans in
high regard. This section on Alaska Native veterans would
greatly expand the eligibility for qualifying Alaska Native
veterans of the Vietnam war to apply for allotments under the
next section 41 of ANCSA, 43 U.S.C. 1629(g), established last
year by section 432 of Public Law 105-276, entitled ``Open
Season for Certain Alaska Native Veterans for Allotments.''
Less than one year later, this provision reopens the compromise
reached at the end of the 105th Congress after several years of
negotiation and effort among the DOI agencies, the Congress and
Alaska Natives.
Section 5 of the bill extends the eligibility period during
which qualifying veterans must have served from the enacted
period of 3 years, January 1969, to December 1971, to include
the Vietnam war from August 1964, to May 1975.
This change completely undermines the philosophy and
rationale for the amendment, and in so doing raises questions
of fairness and equity. The 1998 Vietnam veterans provision as
passed was intended to offer an opportunity to those Alaska
Native Vietnam Veterans who, because of their military service,
``missed the opportunity to apply for their Native allotments''
during the period prior to the 1971 repeal of the 1906
Allotment Act. This rationale appears in House Report 104-73
and Senate Report 104-119 on H.R. 402, section 106, in the
104th Congress, which required the Interior Department report
on Alaska Native veterans, since submitted to Congress, and
which led to the 1998 amendment to ANCSA. The 3-year period
represents the critical time when most Natives applied for an
allotment because the anticipated repeal of the 1906 Allotment
Act was widely advertised by the Department and several
organizations across Alaska, and Alaska Natives were encouraged
to apply.
Section 5 converts the program from an effort to correct an
inequity of missed opportunity to, in effect, a special land
bonus for Alaska Native Vietnam veterans. It cannot be
reasonably argued that one who completed his service before the
1969 date missed his opportunity to apply by reason of service.
Moreover, no one was eligible to apply for an allotment after
the Act was repealed in December of 1971, so no one whose
service began after that time missed an opportunity because of
service. Yet S. 1702 extends the eligibility period to the
entire Vietnam war including nearly 4 years past the repeal
date of the 1906 Act.
As a bonus program, there is no more reason to provide this
bonus for this class of Alaska Natives than any other Alaska
Natives, or other Native Americans, nor is there any more
reason to provide this bonus to Alaska Native veterans than to
any other class of veterans whether they be from California,
New York, Florida, or anywhere else.
Moreover the time frames for settlement of the allotments
under this bill effectively jumps this class of allottees ahead
of any other Alaska Native allottees who are still awaiting
settlement of their allotments under the original 1906 Act, not
to mention many hundreds more of those Alaska Natives still
awaiting completion of their ANCSA settlements.
There was considerable concern in the Department to opening
refuges and parks to new allotments. The Department originally
wanted to limit new allotments to public domain lands outside
of refuges and parks. This position was compromised in the
negotiations for the 1998 Act. S. 1702 would significantly
increase the number of eligible applicants to obtain allotments
on refuge and park lands.
For the 1998 Act, there was considerable debate over
providing the opportunity for heirs of deceased veterans to
apply. Allowing heirs to apply raised a broad range of
technical, legal, and management issues, as well as issues of
precedent. No other Federal land grant program has allowed
heirs to apply, including the 1906 Allotment Act. The
compromise provision in the 1998 Act allowed an application by
a personal representative of a deceased veteran who died for
reasons directly related to the war. S. 1702 allows an
application by the representative of any deceased Alaska Native
veteran regardless of when or how he died, thus considerably
increasing the class of heirs and the complexity of identifying
eligible heirs and processing applications.
There are, in addition, a number of legal and drafting
issues in section 5 which we have attempted to address in our
review and discussions with interested parties. We strongly
believe, however, that as to Alaska Native veterans of the
Vietnam war we should continue to rely on last year's
Congressionally developed and passed compromise amendment.
Prior to the compromise, we had testified that we would
recommend veto of legislation similar to section 5. The
Administration maintains its strong opposition to the
provisions of section 5.
There are one or two technical changes to last year's act
which could be beneficial to clarify minor ambiguities or gaps
in that act. We would be happy to identify these for inclusion
in a consensus bill which hopefully can be achieved.
section 6
In ANCSA, Congress provided for protection of fish and
wildlife resources in authorizing the conveyance of the surface
of lands in old refuges. Congress provided restrictive
covenants in Section 22(g) of ANCSA to be included in title
documents when refuge lands were conveyed to Native
Corporations. These corporations took title to these lands
subject to Section 22(g) of ANCSA. The first provisions of
Section 22(g) provides for a right of first refusal for the
United States if the Native Village Corporation sells the land.
Once waived by an action of the United States the right of
first refusal is extinguished. The bill does not change this
provision.
S. 1702 would repeal the second restrictive covenant of
Section 22(g). This second covenant says that such lands remain
subject to the laws and regulations governing use and
development of such Refuge. FWS has not been zealous in
preventing use and development of Native Corporation lands
within refuges; rather, corporation proposals have been
evaluated on a case by case basis to determine whether or not
the proposed use is compatible with the purposes for which the
refuge was reserved.
Section 22(g) was a legislative compromise and should be
retained to protect fish and wildlife resources in areas
withdrawn as units of the National Wildlife Refuge System prior
to ANCSA. We are strongly opposed to section 6.
section 7
This provision would provide for the selection of 50,000
acres of land by the Elim Native Corporation based on its claim
that the United States wrongfully removed land which had been
reserved as part of a larger tract for the benefit of the
Eskimo Village of Elim in 1917. As you know, the Department has
consistently disputed the claim of wrongful removal and has
strongly opposed similar provisions in prior legislation in
earlier Congresses, including H.R. 2505 in the 104th Congress
and H.R. 2924 in the 105th Congress. In addition, the
Department has previously announced that it would recommend
veto of these bills, which contained such provisions among
others. The Department's legal concerns with this provision
continue.
Also, we note that the lands identified for selection on
previous occasions by Elim have changed, and in at least one
instance, lands identified by Elim for selection were also
claimed by another Native group which claimed prior title. We
understand that at present representatives for Elim are
proposing yet another revision to the proposed land selection.
We remain open to discussion with Elim representatives of
new possibilities for lands that might be selected with new
equitable or legal bases for some selection, transfer, or
exchange of lands.
section 8
There is concern by the Administration regarding this
section. This section would provide an exemption from the
provisions of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, ``and any other
provision of law,'' for any person, acquiring land under ANCSA,
for any liability as owner of that land by reason of
contamination on that land at the time of acquisition, unless
that person was ``directly responsible for such
contamination.'' This issue was addressed in the Report on
Hazardous Substance Contamination of Alaska Native Claims Act
Lands recently submitted by the Department to the Congress and
this Committee pursuant to section 103 of Public Law 104-42.
The question of a possible exemption of ANCSA landowners of
transferred Federal lands was discussed among the interested
Federal agencies, at the highest levels, and it was decided
that no exemption would be recommended. The Administration
remains strongly opposed to piecemeal exemptions from the
Federal environmental laws. However, as we advised in that
report, the EPA policy of June, 1997, ``Policy Toward
Landowners and Transferees of Federal Facilities,'' would be
applicable to ANCSA landowners.
The policy addresses EPA's intent to exercise their
enforcement discretion not to initiate enforcement actions
against landowners and transferees of federal lands for
contamination existing as of the date of the conveyance of the
property. EPA will not take enforcement action against a person
or entity who did not cause or contribute to the condition. EPA
is also aware that even preliminary assessment and evaluation
can be burdensome and expensive to a landowner, and will not
seek to impose these costs against ANCSA landowners relative to
contamination or potential contamination that was on their
property at the time of conveyance.
As you can see Mr. Chairman, we still have a lot of work to
do before we have a bill we can support. However we are
committed to continuing to work with you and other stakeholders
to develop mutually acceptable provisions wherever possible.
Again, thank you for the opportunity to testify.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill H.R. 3090, as ordered 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):
PUBLIC LAW 92-203--DEC. 18, 1971
AN ACT To provide for the settlement of certain land claims of Alaska
Natives, and for other purposes
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled. That this
Act may be cited as the ``Alaska Native Claims Settlement
Act''.
* * * * * * *
Definitions
Sec. 3. For the purposes of this Act, the term--
* * * * * * *
(t) ``Settlement Trust'' means a trust--
(1) established and registered by a Native
Corporation under the laws of the State of Alaska
pursuant to a resolution of its shareholders, and
(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) For purposes of this Act, the State of Alaska
shall be divided by the Secretary within one year after the
date of enactment at this Act into twelve geographic regions,
with each region composed as far as practicable of Natives
having a common heritage and sharing common interests.
* * * * * * *
(h)(1) Rights and Restrictions.--(A) Except as otherwise
expressly provided in this Act, Settlement Common Stock of a
Regional Corporation shall--
(i) carry a right to vote in elections for the board
of directors and on such other questions as properly
may be presented to shareholders;
(ii) permit the holder to receive dividends or other
distributions from the corporation; and
(iii) vest in the holder all rights of a shareholder
in a business corporation organized under the laws of
the State.
(B) Except as otherwise provided in this subsection,
Settlement Common Stock, inchoate rights thereto, and rights to
dividends or distributions declared with respect thereto shall
not be--
(i) sold;
(ii) pledged;
(iii) subjected to a lien or judgment execution;
(iv) assigned in present or future;
(v) treated as an asset under
(I) title 11 of the United States Code or any
successor statute,
(II) any other insolvency or moratorium law,
or
(III) other laws generally affecting
creditors' rights; and or
(vi) otherwise alienated.
(C) Notwithstanding the restrictions set forth in
subparagraph (B), Settlement Common Stock may be transferred to
a Native or a descendent of a Native--
(i) pursuant to a court decree of separation,
divorce, or child support;
(ii) by a holder who is a member of a professional
organization, association, or board that limits his or
her ability to practice his her profession because he
or she holds Settlement Common Stock; or
(iii) as an inter vivos gift from a holder to his or
her child, grandchild, great-grandchild, niece, or
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.
* * * * * * *
revocation of reservations
Sec. 19. (a) Notwithstanding any other provision of law,
and except where inconsistent with the provisions of this Act,
the various reserves set aside by legislation or by Executive
or Secretarial Order for Native use or for administration of
Native affairs, including those created under the Act of May
31, 1938 (52 Stat. 593), are hereby revoked subject to any
valid existing rights of non-Natives. This section shall not
apply to the Annette Island Reserve established by the Act of
March 3, 1891 (26 Stat. 1101) and no person enrolled in the
Metlakatla Indian community of the Annette Island Reserve shall
be eligible for benefits under this Act.
(b) Notwithstanding any other provision of law or of this
Act, any Village Corporation or Corporations may elect within
two years to acquire title to the surface and subsurface
estates in any reserve set aside for the use or benefit of its
stockholders or members prior to the date of enactment of this
Act. If two or more villages are located on such reserve the
election must be made by all of the members or stockholders of
the Village Corporations concerned. In such event, the
Secretary shall convey the land to the Village Corporation or
Corporations, subject to valid existing rights as provided in
subsection 14(g), and the Village Corporation shall not be
eligible for any other land selections under this Act or to any
distribution of Regional Corporation funds pursuant to section
7, and the enrolled residents of the Village Corporation shall
not be eligible to receive Regional Corporation stock.
(c)(1) Findings.--The Congress finds that--
(A) 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;
(B) 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;
(C) in 1929, 50,000 acres of land were deleted from
the Norton Bay Reservation by Executive order.
(D) the lands were deleted from the Reservation for
the benefit of others;
(E) the deleted lands were not available to the
Native inhabitants of Elim under subsection (b) of this
section at the time of passage of this Act;
(F) the deletion of these lands has been and
continues to be a source of deep concern to the
indigenous people of Elim; and
(G) 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.
(2) Withdrawal.--The lands depicted and designated
``Withdrawal Area'' on the map dated October 19, 1999, along
with their legal descriptions, on file with the Bureau of Land
Management, and entitled ``Land Withdrawal Elim Native
Corporation'', are hereby 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 the enactment of
this subsection, for selection by the Elim Native Corporation
(hereinafter referred to as ``Elim'').
(3) Authority To Select and Convey.--Elim is authorized to
select in accordance with the rules set out in this paragraph,
50,000 acres of land (hereinafter referred to as ``Conveyance
Lands'') within the boundary of the Withdrawal Area described
in paragraph (2). The Secretary is authorized and directed to
convey to Elim in fee the surface and subsurface estates to
50,000 acres of valid selections in the Withdrawal Area,
subject to the covenants, reservations, terms and conditions
and other provisions of this subsection.
(A) Elim shall have 2 years from the date of the
enactment of this subsection in which to file its
selection of no more than 60,000 acres of land from the
area described in paragraph (2). The selection
application shall be filed with the Bureau of Land
Management, Alaska State Office, shall describe a
single tract adjacent to United States 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. Elim shall prioritize its
selections made pursuant to this subsection 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.
(B) The selection filed by Elim pursuant to this
subsection 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, rejected, and abandoned prior to conveyance
to Elim.
(C) Upon receipt of the Conveyance lands, Elim shall
have all legal rights and privileges as landowner,
subject, only to the covenants, reservations, terms and
conditions specified in this subsection.
(D) Selection by Elim of lands under this subsection
and final conveyance of those lands to Elim shall
constitute full satisfaction of any claim of
entitlement of Elim with respect to its land
entitlement.
(4) Convenants, Reservations, Terms, and Conditions.--The
covenants, reservations, terms and conditions set forth in this
paragraph and in paragraphs (5) and (6) with respect to the
conveyance Lands shall run with the land and shall be
incorporated into the interim conveyance, if any, and patent
conveying the lands to Elim.
(A) Consistent with paragraph (3)(C) and subject to
the applicable covenants, reservations, terms, and
conditions contained in this paragraph and paragraphs
(5) and (6), Elim shall have all rights to the timber
resources of the conveyance lands for any use
including, but not limited to, construction of homes,
cabins, for firewood and other domestic uses on any
Elim lands: Provided, That cutting and removal of
merchantable Timber from the Conveyance lands for sale
shall not be permitted: Provided further, That Elim
shall not construct roads and related infrastructure
for the support of such cutting and removal of timber
for sale or permit other to do so. ``Merchantable
Timber'' means timber that can be harvested and
marketed by a prudent operator.
(B) Public Land Order 5563 of December 16, 1975,
which made hot or medicinal springs available to other
Native Corporations for selection and conveyance, is
hereby modified to the extent necessary to permit the
selection by Elim of the lands heretofore encompassed
in any withdrawal of hot or medicinal springs and is
withdrawn pursuant to this subsection. The Secretary is
authorized and directed to convey such selections of
hot or medicinal springs (hereinafter referred to as
``hot springs'') subject to applicable covenants,
reservations, terms and conditions contained in
paragraphs (5) and (6).
(C) Should Elim select and have conveyed to it lands
encompassing portions of the Tubutulik River or Clear
Creek, or both, Elim shall not permit surface occupancy
or knowingly permit any other activity on those
portions of land lying within the bed of or within 300
feet of the ordinary high waterline of either or both
of these water courses for purposes associated with
mineral or other development or activity if they would
cause or are likely to cause erosion or siltation of
either water course to an extent that would
significantly adversely impact water quality or fish
habitat.
(5) Rights Retained by the United States.--With respect to
conveyances authorized in paragraph (3), the following rights
are retained by the United States:
(A) to enter upon the conveyance lands, after
providing reasonable advance notice in writing Elim and
after providing Elim with an opportunity to have a
representative present upon such entry, in order to
achieve the purpose and enforce the terms of this
paragraph and paragraphs (4) and (6).
(B) To have, in addition to such rights held by Elim,
all rights and remedies available against persons,
jointly or severally, who cut or remove Merchantable
Timber for sale.
(C) In cooperation with Elim, the right, but not the
obligation, to reforest in the event previously
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 of its lawful rights
to use the Conveyance Lands).
(D) The right of ingress and egress over easements
under section 17(b) for the public to visit, for
noncommercial purposes, hot springs located on the
Conveyance Lands and to use any part of the hot springs
that is not commercially developed.
(E) The right to enter upon the lands containing hot
springs for the purpose of conducting scientific
research on such hot springs and to use the results of
such research without compensation to Elim. Elim shall
have an equal right to conduct research on the hot
springs and to use the results of such research without
compensation to the United States.
(F) A covenant that commercial development of the hot
springs by Elim or its successors, assigns, or grantees
shall include the right to develop only a maximum of 15
percent of the hot springs and any land within \1/4\
mile of the hot springs. Such commercial development
shall not alter the natural hydrologic or thermal
system associated with the hot springs. Not less than
85 percent of the lands within \1/4\ mile of the hot
springs shall be left in their natural state.
(G) The right to exercise prosecutorial discretion in
the enforcement of any covenant, reservation, term or
condition shall not waive the right to enforce any
covenant, reservation, term or condition.
(6) General.--
(A) Memorandum of understanding.--The Secretary and
Elim shall, acting in good faith, enter into a
Memorandum of Understanding (hereinafter referred to as
the ``MOU'') to implement the provisions of this
subsection. The MOU shall include among its provisions
reasonable measures to protect plants and animals in
the hot springs on the Conveyance Lands and on the land
within \1/4\ mile of the hot springs. The parties shall
agree to meet periodically to review the matters
contained in the MOU and to exercise their right to
amend, replace, or extend the MOU. Such reviews shall
include the authority to relocate any of the easements
set forth in subparagraph (D) if the parties deem it
advisable.
(B) Incorporation of terms.--Elim shall incorporate
the covenants, reservations, terms and conditions, in
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.
(C) Section 17(b) easements.--The Bureau of Land
Management, in consultation with Elim, shall reserve in
the conveyance to Elim easements to the United States
pursuant to subsection 17(b) that are not in conflict
with other easements specified in this paragraph.
(D) Other easements.--The Bureau of Land Management,
in consultation with Elim, shall reserve easements
which shall include the right of the public to enter
upon and travel along the Tubutulik River and Clear
Creek within the Conveyance Lands. Such easements shall
also include easements for trails confined to foot
travel along, and which may be established along each
bank of, the Tubutulik River and Clear Creek. Such
trails shall be 25 feet wide and upland of the ordinary
high waterline of the water courses. The trails may
deviate from the banks as necessary to go around man-
made or natural obstructions or to portage around
hazardous stretches of water. The easements shall also
include one-acre sites along the water courses at
reasonable intervals, selected in consultation with
Elim, which may be used to launch or take out water
craft from the water courses and to camp in non-
permanent structures for a period not to exceed 24
hours without the consent of Elim.
(E) Inholders.--The owners of lands held within the
exterior boundaries of lands conveyed to Elim shall
have all rights of ingress and egress to be vested in
the inholder and the inholder's agents, employees, co-
venturers, licensees, subsequent grantees, or invitees,
and such easements shall be reserved in the conveyance
to Elim. The inholder may not exercise the right of
ingress and egress in a manner that may result in
substantial damage to the surface of the lands or make
any permanent improvements on Conveyance Lands without
the prior consent of Elim.
(F) Iditarod trail.--The Bureau of Land Management
may reserve an easement for the Iditarod National
Historic Trail in the conveyance to Elim.
(7) Implementation.--There are authorized to be
appropriated such sums as may be necessary to implement this
subsection.