[Senate Report 108-97]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 205
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-97

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



 
                   ALASKA NATIVE VILLAGE CORPORATION

                                _______
                                

                 July 11, 2003.--Ordered to be printed

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 924]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 924) to authorize the exchange of lands 
between the Alaska Native Village Corporation and the 
Department of the Interior, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. DEFINITIONS.

    For the purposes of this Act, the term:
          (1) ``ANCSA'' means the Alaska Native Claims Settlement Act 
        (43 U.S.C. 1601 et seq.);
          (2) ``ANILCA'' means the Alaska National Interest Lands 
        Conservation Act (16 U.S.C. 3101 et seq.);
          (3) ``Calista'' means the Calista Corporation, an Alaska 
        Native Regional Corporation established pursuant to ANCSA;
          (4) ``Identified Lands'' means approximately 10,943 acres of 
        lands (including surface and subsurface estates) designated as 
        ``Proposed Village Site'' on a map entitled ``Proposed Newtok 
        Exchange,'' dated September, 2002, and available for inspection 
        in the Anchorage office of the United States Fish and Wildlife 
        Service;
          (5) ``limited warranty deed'' means a warranty deed which is, 
        with respect to its warranties, limited to that portion of the 
        chain of title for the moment of conveyance from the United 
        States to Newtok to and including the moment at which such 
        title is validly reconveyed to the United States;
          (6) ``Newtok'' means the Newtok Native Corporation, an Alaska 
        Native Village Corporation established pursuant to ANCSA;
          (7) ``Newtok lands'' means approximately 12,101 acres of 
        surface estate comprising conveyed lands and selected lands 
        identified as Aknerkochik on the map referred to in paragraph 
        (4) and that surface estate selected by Newtok on Baird Inlet 
        Island as shown on the map; and
          (8) ``Secretary'' means the Secretary of the Interior.

SEC. 2. LANDS TO BE EXCHANGED.

    (a) Lands Exchanged to the United States.--If, within 180 days 
after the date of enactment of this Act, Newtok expresses to the 
Secretary in writing its intent to enter into a land exchange with the 
United States, the Secretary shall accept from Newtok a valid, 
unencumbered conveyance, by limited warranty deed, of the Newtok lands 
previously conveyed to Newtok. The Secretary shall also accept from 
Newtok a relinquishment of irrevocable prioritized selections for 
approximately 4,956 acres for those validly selected lands not yet 
conveyed to Newtok.
    (b) Lands Exchanged to Newtok.--In exchange for the Newtok lands 
conveyed and selections relinquished under subsection (a), the 
Secretary shall, subject to valid existing rights and notwithstanding 
section 14(f) of ANCSA, convey to Newtok the surface and subsurface 
estates of the Identified Lands. The conveyance shall be by interim 
conveyance. Subsequent to the interim conveyance, the Secretary shall 
survey the Identified Lands at no cost to Newtok and issue a patent to 
the Identified Lands subject to the provisions of ANCSA and this Act.

SEC. 3. CONVEYANCE.

    (a) Timing.--The Secretary shall issue interim conveyances pursuant 
to subsection 2(b) at the earliest possible time after acceptance of 
the Newtok conveyance and relinquishment of selections under subsection 
2(a).
    (b) Relationship to ANCSA.--Land conveyed to Newtok under this Act 
shall be treated as having been conveyed under the provisions of ANCSA, 
except that the provisions of 14(c) and 22(g) of ANCSA shall not apply 
to these lands. Consistent with section 103(c) of ANILCA, these lands 
shall not be included as a portion of the Yukon Delta National Wildlife 
Refuge and shall not be subject to regulations applicable solely to 
public lands within this Conservation System Unit.
    (c) Effect on Entitlement.--Except as otherwise provided, nothing 
in this Act shall be construed to change the total acreage of land to 
which Newtok is entitled under ANCSA.
    (d) Effect on Newtok Lands.--The Newtok Lands shall be included in 
the Yukon Delta National Wildlife Refuge as of the date of acceptance 
of the conveyance of those lands from Newtok, except that residents of 
the Village of Newtok, Alaska, shall retain access rights to 
subsistence resources on those Newtok lands as guaranteed under section 
811 of ANILCA (16 U.S.C. 3121), and to subsistence uses, such as 
traditional subsistence fishing, hunting and gathering, consistent with 
section 803 of ANILCA (16 U.S.C. 3113).
    (e) Adjustment to Calista Corporation ANCSA Entitlement for 
Relinquished Newtok Selections.--To the extent that Calista subsurface 
rights are affected by this Act, Calista shall be entitled to an 
equivalent acreage of in lieu subsurface entitlement for the Newtok 
selections relinquished in the exchange as set forth in subsection 2(a) 
of this Act. This equivalent entitlement shall come from subsurface 
lands already selected by Calista, but which have not been conveyed. If 
Calista does not have sufficient subsurface selections to accommodate 
this additional entitlement, Calista Corporation is hereby authorized 
to make an additional in lieu selection for the deficient acreage from 
lands within the region but outside any conservation system unit.
    (f) Adjustment to Exchange.--If requested by Newtok, the Secretary 
may consider and make adjustments to the exchange to meet the purposes 
of this Act, subject to all the same terms and conditions of this Act.

                         PURPOSE OF THE MEASURE

    The purpose of S. 924 is to direct the Secretary of the 
Interior to complete a land exchange with Newtok Native 
Corporation, an Alaska Native Village Corporation.

                          BACKGROUND AND NEED

    Newtok is located in the Yukon-Kuskokwim Delta of western 
Alaska. The people of this region are Yupik (Eskimo) and have 
lived along the Bering Sea coast for 2000 years. The present 
village has been occupied since 1949 after the villagers moved 
from another site that flooded.
    There are approximately 300 residents of Newtok. The 
village is unincorporated and has no taxing authority. While 
some villagers are employed at the school, the clinic, by the 
Native corporation or as commercial fishermen, most villagers 
pursue a subsistence lifestyle. Fifty percent of the villagers 
live below the poverty level. Most villagers are shareholders 
in the Newtok Native Corporation, which was organized pursuant 
to the Alaska Native Claims Settlement Act. Lands selected by 
Newtok under ANCSA were chosen to provide good hunting areas 
for the villagers. The Yukon Delta National Wildlife Refuge 
surrounds the village.
    S. 924 is necessary because the Ninglick River is eroding 
the bank near the village, severely threatening the airport, 
homes, and other buildings. Each year since the early 1950s, 
the shifting course of the river has moved closer to the 
village. The erosion has been particularly rapid in the last 
decade. To save the village and its way of life, a new location 
for Newtok must be provided soon.

                          LEGISLATIVE HISTORY

    S. 924 was introduced by Senator Murkowski on April 11, 
2003. The Subcommittee on Public Lands and Forests held a 
hearing on S. 924 on June 4, 2003. The Committee ordered S. 490 
favorably reported, with an amendment on July 25, 2003. Similar 
legislation S. 2016, was introduced in the 107th Congress on 
March 14, 2002. A joint hearing was held on S. 2016 on July 30, 
2002 by the Committee on Energy and Natural Resources. The bill 
was reported with an amendment on October 3, 2002. No further 
action was taken on S. 2016 in the 107th Congress. S. 924 as 
introduced is identical to the amended bill reported in 2002.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in an 
open business session on July 25, 2002, by unanimous consent of 
a quorum present, recommends that the Senate pass S. 924, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 924, the Committee adopted 
an amendment in the nature of a substitute. The substitute 
amendment is explained in the section-by-section analysis 
below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 defines the key terms in the bill.
    Section 2 directs the Secretary of the Interior to enter 
into a land exchange with the Newtok Native Corporation. 
Section (a) requires the Secretary to accept the 12,101 acres 
of Newtok lands (defined in section 1(7)). Subsection (b) 
requires the Secretary to convey 10,941 acres of ``Identified 
Lands'' (defined in section (1(4)) to the Newtok Native 
Corporation.
    Section 3 provides additional terms and conditions for the 
land exchange. Subsection (a) requires the Secretary to convey 
the Identified Lands at the earliest possible time after 
accepting the Newtok lands. Subsection (b) specifies that the 
Identified Lands are to be treated as having been conveyed 
under the provisions of the Alaska Native Claims Settlement 
Act, except for the patenting requirements of sections 14(c) 
and 22(g) of that Act (16 U.S.C. 1613(c) and 1621(g)). 
Subsection (b) further specifies that the Identified Lands will 
not be included in the Yukon Delta National Wildlife Refuge. 
Subsection (c) provides that, except as otherwise provided, S. 
924 does not change the total acreage of land to which Newtok 
is entitled under the Alaska Native Claims Settlement Act. 
Subsection (d) provides that the Newtok land will be included 
in the Yukon Delta National Wildlife Refuge, but that residents 
of the Village of Newtok will retain access rights to 
subsistence resource and subsistence uses. Subsection (e) 
provides for an adjustment to the subsurface selections that 
Calista Corporation is entitled to make under the Alaska Native 
Claims Settlement Act to the extent that its subsurface rights 
are affected by the exchange. Subsection (f) authorizes the 
Secretary to make adjustments to the exchange, subject to the 
terms and conditions of the Act, if requested by Newtok.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:

S. 924--A bill to authorize the exchange of lands between an Alaska 
        Native Village Corporation and the Department of the Interior, 
        and for other purposes

    CBO estimates that enacting S. 924 would not significantly 
affect the federal budget. The bill could affect direct 
spending, but we estimate that any such effects would be 
negligible. S. 924 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments.
    S. 924 would direct the Secretary of the Interior to convey 
the surface and subsurface estate to 10,943 acres of federal 
lands in Alaska to the Newtok Native Corporation. In exchange, 
the corporation would convey the surface estate to 12,101 acres 
of lands and relinquish its claim to 4,956 acres of other lands 
that it has selected under the Alaska Native Claims Settlement 
Act. Under S. 924, the Calista Regional Corporation, another 
Alaska Native corporation, could select additional subsurface 
rights to certain lands if the proposed land exchange affects 
that corporation's existing entitlement to certain subsurface 
rights.
    Based on information from the U.S. Fish and Wildlife 
Service, CBO estimates that completing the proposed exchange 
would increase the agency's costs by less than $500,000, 
assuming appropriation of the necessary amounts. Conveying 
lands and interests to the tribal corporations could result in 
forgone offsetting receipts (a credit against direct spending) 
if, under current law, those lands and interests would generate 
income from programs to develop natural resources. According to 
the agency, however, the lands and interests that would be 
conveyed under the bill currently generate no significant 
receipts and are not expected to do so over the next 10 years. 
Hence, we estimate that any forgone offsetting receipts under 
S. 924 would be negligible.
    The CBO staff contact for this estimate is Megan Carroll. 
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 S. 490. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant 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 S. 924.

                        EXECUTIVE COMMUNICATIONS

    The pertinent legislative report received by the Committee 
from the Department of the Interior setting forth Executive 
agency recommendations related to S. 924 are set forth below:

                        Department of the Interior,
                                   Office of the Secretary,
                                     Washington, DC, June 24, 2003.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
 U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of the Interior on S. 924, a bill to authorize the 
exchange of lands between an Alaska Native Village Corporation 
and the Department of the Interior, and for other purposes,
    S. 924 which would direct a land exchange between the 
Department of the Interior and Newtok Native Corporation. The 
purpose of this exchange is to provide a new site for the 
Native Village of Newtok, Alaska, on lands within the Yukon 
Delta National Wildlife Refuge on Nelson Island. The present 
village site is experiencing severe erosion along the banks of 
the Ninglick River. The average annual erosion rate is 90 feet 
per year, and it is expected that the land under the homes, 
schools, and businesses of Newtok will erode within seven 
years.
    We support the desire of the residents of Newtok to 
relocate their village from its present site across the 
Ninglick River to an upland area on the Yukon Delta National 
Wildlife Refuge that is adjacent to other Newtok Village-owned 
lands on Nelson Island.
    S. 924 represents the results of discussions that took 
place last year on S. 2016 in the 107th Congress. The 
Department had several concerns last year regarding the earlier 
version of the bill, including insufficient acres to support 
the future needs of the community, a complex appraisal process, 
and ambiguities regarding the effect of the exchange on 
Newtok's ANCSA entitlement and the United States' ability to 
protect valid existing rights and enforce treaty obligations. 
Since that time, we have worked cooperatively with Newtok 
representatives and the Committee to achieve consensus on a 
bill that will allow for the relocation and re-establishment of 
the Village to more suitable terrain and still protect the fish 
and wildlife resources and supporting habitat within the 
National Wildlife Refuge System.
    We support S. 924. On further examination of the bill, 
however, we have suggestions for several minor technical 
clarifications to the bill, discussed below.
    Under the terms of the exchange as proposed in S. 924, 
Newtok will give up approximately 11,105 acres of land referred 
to as the Aknerkochik parcel and relinquish selection rights to 
approximately 996 acres on Baird Inlet Island. The Aknerkochik 
parcel lies about 14 miles northwest of the current community 
of Newtok and includes important wildlife habitat which will be 
restored to unencumbered refuge status. Baird Inlet Island lies 
between the current village of Newtok and the site proposed for 
relocation of the village. This island is the summer home to 
4,500 pairs of Pacific brant which nest and brood their young 
there. The Baird Inlet Island brant population accounts for 
about one quarter of the entire Pacific brant population within 
the Yukon Delta National Wildlife Refuge. With the 
relinquishment of Newtok's selections, the U.S. Fish and 
Wildlife Service will be able to retain administrative 
jurisdiction over all of Baird Inlet Island thus assuring the 
ongoing protection of this important colony.
    In exchange for these lands and selection rights, Newtok 
Native Corporation will receive title to approximately 10,943 
acres of surface and subsurface estate on the northern shore of 
Nelson Island adjacent to lands already owned by the 
corporation. This proposal does not increase Newtok Native 
Corporation's ANCSA entitlement. The corporation will remain 
charged for lands which had previously been conveyed to it and 
will also be charged for the selections it relinquishes. 
Following survey of the lands on Nelson Island conveyed to 
Newtok under this proposal, the Bureau of Land Management will 
adjust Newtok's entitlement so that the corporation will 
ultimately be charged 1.1 acres for each acre to be conveyed 
under this bill. The additional charge of one tenth of an acre 
is to compensate the government for conveyance of the 
subsurface estate to Newtok Native Corporation, an additional 
benefit not extended to village corporations under the original 
ANCSA.
    Approxiamtley 70 acres within the area to be conveyed to 
Newtok Native Corporation fall within the boundaries of the 
former Clarence Rhode National Wildlife Range. For that reason, 
these 70 acres would normally reman subject to statutory and 
regulatory restrictions imposed by Section 22(g) of ANCSA. 
Because such restrictions could limit Newtok's ability to 
develop these lands for their intended purpose, the Department 
agrees that the lands conveyed to Newtok should be free from 
restrictions imposed by Section 22(g) of ANCSA. The Department 
also agrees that it is appropriate for the conveyance to Newtok 
to be free from the standard 14(c) reconveyance requirements of 
ANCSA intended to benefit residents and communities occupying 
land as of 1971 and that the lands conveyed to Newtok shall no 
longer be considered part of the Yukon Delta National Wildlife 
Refuge.
    When a village corporation such as Newtok Native 
Corporation exchanges selection rights prior to receiving title 
under ANCSA, there can be ambiguity as to the effect on the 
Regional Corporation whose right to equivalent subsurface 
acreage is derived from conveyance of the surface estate. The 
bill includes a provision that assures that Calista Corporation 
will not lose subsurface acreage as a result of this exchange.
    Because detailed site plans and surveys for the new village 
have not yet been completed, the bill gives the Secretary of 
the Interior the flexibility to adjust the exchange to meet the 
intended purposes of the bill should Newtok determine at a 
later date that a larger site is needed for the relocated 
community.
    The Department suggests five small technical amendments. 
(1) In section 4(b), add the word ``Delta'' to the name Yukon 
National Wildlife Refuge so it reads ``Yukon Delta National 
Wildlife Refuge,'' the correct name. (2) In section 4(d), after 
``subsistence resources on'', delete ``those public lands'' and 
add ``those Newtok lands.'' This will be clearer and avoid 
ambiguity. (3) In section 4(e), second sentence, change ``This 
additional entitlement'' to read ``This equivalent 
entitlement.'' This is a more accurate description of the 
entitlement. Also in section 4(e), third sentence, change 
``this additional entitlement'' to ``this equivalent 
entitlement.'' (4) Further, in section 4(e), at the end, after 
``acreage'' add the phrase ``from lands within the region but 
outside any conservation system unit.'' This will help clarify 
the areas from which lands may and may not be selected. 
Finally, in section 4(f), strike the word ``original'' before 
``exchange'' and add the words ``herein authorized'' after 
``exchange,'' to clarify the exchange referenced. There is no 
``original'' exchange.
    We appreciate the opportunity to comment on S. 924. The 
Department is satisfied that S. 924, with the suggested 
clarifying technical amendments, will safeguard both the fish 
and wildlife resources of the Yukon Delta National Wildlife 
Refuge and Newtok's future as a viable community.
    The Office of Management and Budget had advised that there 
is no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                    Rebecca Watson,
                               Assistant Secretary for Land
                                           and Minerals Management.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 924, as ordered 
reported.