[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.

                                  
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