[House Report 112-736]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-736

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

 
   AMENDING THE ALASKA NATIVE CLAIMS SETTLEMENT ACT TO PROVIDE THAT 
  ALEXANDER CREEK, ALASKA, IS AND SHALL BE RECOGNIZED AS AN ELIGIBLE 
         NATIVE VILLAGE UNDER THAT ACT, AND FOR OTHER PURPOSES

                                _______
                                

 December 31, 2012.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4194]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4194) to amend the Alaska Native Claims 
Settlement Act to provide that Alexander Creek, Alaska, is and 
shall be recognized as an eligible Native village under that 
Act, and for other purposes, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                          Purpose of the Bill

    The purpose of H.R. 4194 is to amend the Alaska Native 
Claims Settlement Act to provide that Alexander Creek, Alaska, 
is and shall be recognized as an eligible Native village under 
that Act.

                  Background and Need for Legislation

    The Alaska Native Claims Settlement Act of 1971 (ANCSA) 
extinguished all claims based on aboriginal title to lands and 
waters in Alaska. In exchange, Congress conveyed fee title to 
44 million acres of public lands in Alaska and nearly $1 
billion to Alaska Natives. The Act divided the state into 
twelve geographic regions ``composed as far as practicable of 
Natives having a common heritage and sharing common 
interests,'' and listed approximately 200 Villages with 25 or 
more Native residents where they formed a majority of the 
population. ANCSA directed the Regions and Native Villages to 
form for-profit business corporations organized under the laws 
of Alaska to manage the settlement lands and funds. Fee title 
to the surface estate to the lands was divided among both the 
Regional and Village Corporations, while the Regional 
Corporations obtained fee title to the subsurface estate of all 
these lands.
    Though Alaska Native Corporations are private entities, 
ANCSA prescribed a host of attributes and conditions under 
which they must operate. For example, settlement lands conveyed 
to the ANCSA Corporations are treated as private property 
subject to State regulation, but they are nontaxable until 
developed. While ANCSA Corporations may buy, sell, or trade 
their lands like any private landowner, shares issued by the 
Corporations are not publicly traded or sold. Importantly, 
section 7 of ANCSA requires that 70% of revenues derived by a 
Regional Corporation from the development of timber and mineral 
resources on its settlement land be shared with the other 
Regional Corporations, which must in turn redistribute these 
benefits to Village Corporations in their regions and to at-
large shareholders (at-large shareholders of a Regional 
Corporation do not own shares in a Village Corporation).
    Depending on its population, each Alaska Native Village of 
25 or more residents is entitled to the surface estate to a 
minimum of 69,120 acres and a maximum of 161,280 acres of 
public land for its Village Corporation. Relevant to Alexander 
Creek, ANCSA provides that a Village of fewer than 25 Native 
residents may form a ``Group Corporation'' entitled to a 
maximum of 7,680 acres.
    Alexander Creek is located 27 miles northwest of Alaska's 
largest city of Anchorage. Though not listed in ANCSA as a 
Native Village, Alexander Creek used an administrative process 
to obtain Village status through which the Bureau of Indian 
Affairs (BIA) initially determined it had more than the 
requisite 25 members. This precipitated administrative appeals 
and litigation filed by various parties, which protested 
Alexander Creek's status as a Village largely over fears that 
its ANCSA land entitlement might create land selection and land 
use disputes with other parties, including the State, the Mat-
Su Borough, and those seeking to preserve access to public 
lands and waters.
    On an appeal of Alexander Creek's status in 1974, the 
Department of the Interior Alaska Native Claims Appeals Board 
(ANCAB) decided that there were only 22 Native people enrolled 
to Alexander Creek, three short of meeting the eligibility 
requirements for a Village. Alexander Creek residents claimed 
that not all of its enrollees were properly counted because the 
BIA failed to notify them of the administrative proceedings 
where they could have testified as to their status.
    Alexander Creek filed a lawsuit that resulted in protracted 
litigation. The case eventually went to the U.S. Court of 
Appeals for the District of Columbia Circuit, which reversed 
Interior's determination but remanded the case to a lower court 
for further proceedings. This led to negotiations that resulted 
in Alexander Creek organizing as a Group Corporation rather 
than a Village Corporation. Subsequent leadership of Alexander 
Creek petitioned Congress for Village status.
    On March 20, 2012, the Subcommittee on Indian and Alaska 
Native Affairs held a hearing on H.R. 4194, and heard testimony 
from Stephanie Thompson, the President of Alexander Creek, and 
the Obama Administration. Ms. Thompson submitted materials in 
the record demonstrating that a number of Natives (who have 
since passed away) were not given a fair opportunity to testify 
before the BIA as to their membership in Alexander Creek. The 
Interior Department opposed the bill on the grounds that a 
final settlement over the Group's status was struck and that it 
should not be reopened. It should be noted, however, that ANCSA 
has been amended numerous times by Congress. It is further 
important to note that Native Villages recognized pursuant to 
ANCSA are not Indian ``tribes''. They possess a unique history 
of relations with the federal government that is not comparable 
to those of recognized Indian tribes in the contiguous United 
States.
    The opposition of the Obama Administration is inexplicable 
given its recent settlement of claims of Indians and tribes 
from other states for billions of dollars at the same time it 
opposes this bill, which does not specifically direct the 
expenditure of any funds to resolve Alexander Creek's claims as 
an Alaska Native Village.
    H.R. 4194 recognizes Alexander Creek as a Native Village, 
making it eligible to form a Village Corporation under ANCSA. 
The bill directs the Secretary of the Interior, in his sole 
discretion, to negotiate and enter into an agreement by 
December 31, 2012, with the Native Village Corporation of 
Alexander Creek ``to settle aboriginal land claims and any 
other claims of such Native Village Corporation against the 
United States fairly, reaching an agreement in approximate 
parity with those of other Alaska Native Village 
Corporations.'' The bill does not prescribe any benefits and 
does not guarantee what they will be, if any. It is possible 
that any agreement struck by the government and Alexander 
Creek, pursuant to this bill, may be subject to authorization 
by Congress.
    H.R. 4194 requires Alexander Creek, upon being recognized 
as a Village, to notify its members that they shall cease 
receiving certain revenue-sharing benefits available to them 
under section 7(m) of ANCSA. Such members, however, will be 
eligible for revenue sharing payments established under section 
7(j) of ANCSA. These revenue sharing measures in ANCSA provide 
for the redistribution of 70% of revenues derived by all Alaska 
Native Regional Corporations from the development of timber and 
subsurface resources on their settlement lands.
    Finally, the bill ensures the entitlement to lands that 
Alexander Creek obtained as a Group Corporation is not 
diminished by the change in its status.
    The Committee was perplexed to see that the score prepared 
by the Congressional Budget Office presumes that the likely 
settlement option open for Alexander Creek is the payment of 
funds from the Judgment Fund. However, the Committee notes that 
nothing in the legislation authorizes such a payment and that 
if a land settlement--the preferred and usual result under 
ANSCA--is not possible, it is very likely that further 
legislation would be necessary to provide any direct payments 
to Alexander Creek Native Village Corporation.

                            Committee Action

    H.R. 4194 was introduced on March 8, 2012, by Congressman 
Don Young (R-AK). The bill was referred to the House Committee 
on Natural Resources, and within the Committee to the 
Subcommittee on Indian and Alaska Native Affairs. On March 20, 
2012, the Subcommittee on Indian and Alaska Native Affairs held 
a hearing on the bill. On August 1, 2012, the Full Resources 
Committee met to consider the bill. The Subcommittee on Indian 
and Alaska Native Affairs was discharged by unanimous consent. 
No amendments were offered, and the bill was adopted and 
ordered favorably reported to the House of Representatives by 
voice vote.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

H.R. 4194--A bill to amend the Alaska Native Claims Settlement Act to 
        provide that Alexander Creek, Alaska, is and shall be 
        recognized as an eligible Native village under that Act, and 
        for other purposes

    Summary: CBO estimates that enacting H.R. 4194 would cost 
$30 million over the 2013-2022 period. Because those costs 
would increase direct spending, pay-as-you-go procedures apply. 
Enacting the legislation would not affect revenues or spending 
subject to appropriation.
    Estimated cost to the Federal Government: H.R. 4194 would 
designate the Alexander Creek community in Alaska as a Native 
village under the Alaska Native Claims Settlement Act of 1971 
(ANCSA). The community is currently recognized as a Native 
group under ANCSA. The legislation would require the Department 
of the Interior (DOI) to settle land and other claims with the 
newly designated Native village by December 31, 2012.
    ANCSA established a process to classify Native Alaskan 
communities for the purpose of conveying nearly 44 million 
acres of federal land to those communities. Under ANCSA, Native 
villages are entitled to about 69,000 acres, and Native groups 
can receive up to about 8,000 acres. The Alexander Creek 
community was classified as a Native group in 1974, and that 
classification was affirmed and codified in the Alaska National 
Interest Lands Conservation Act of 1980 (ANILCA). In that 
agreement, the Alexander Creek community was entitled to 
receive almost 8,000 acres of federal land. H.R. 4194 would 
supersede the ANILCA agreement and would classify the Alexander 
Creek community as a Native village, allowing them to receive 
an additional 61,000 acres of land.
    CBO estimates that 61,000 acres of land in this area of 
Alaska would have an appraised value of about $30 million. 
Because most eligible lands have already been conveyed to the 
state of Alaska, CBO expects that the settlement under H.R. 
4194 would be in the form of a monetary settlement from the 
Treasury's Judgment Fund (a permanent, indefinite appropriation 
for claims and judgments against the United States). However, 
the cost of the settlement under H.R. 4194 ultimately would 
depend on the terms agreed upon by DOI and the Alexander Creek 
Native Village. (The bill does not specify the terms of the 
settlement agreement.) If the settlement were in the form of a 
transfer of federal land to the Alexander Creek community, for 
example, the legislation would have a negligible federal cost.
    Pay-As-You-Go Considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. The net changes in outlays that are subject to those 
pay-as-you-go procedures are shown in the following table.

CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 4194, A BILL TO AMEND THE ALASKA NATIVE CLAIMS SETTLEMENT ACT TO PROVIDE THAT ALEXANDER CREEK, ALASKA, IS
                       AND SHALL BE RECOGNIZED AS AN ELIGIBLE NATIVE VILLAGE UNDER THAT ACT, AS ORDERED REPORTED ON AUGUST 1, 2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  By fiscal year, in millions of dollars--
                                                   -----------------------------------------------------------------------------------------------------
                                                     2013    2014    2015    2016    2017    2018    2019    2020    2021    2022   2013-2017  2013-2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       NET INCREASE OR DECREASE (-) IN THE DEFICIT

Statutory Pay-As-You-Go Impact....................      30       0       0       0       0       0       0       0       0       0        30         30
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Intergovernmental and private-sector impact: H.R. 4194 
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. Enacting the bill 
would benefit Alexander Creek.
    Estimate prepared by: Federal costs: Martin von Gnechten; 
Impact on state, local, and tribal governments: Melissa 
Merrell; Impact on the private-sector: Marin Randall.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures. CBO estimates that enacting H.R. 
4194 would cost $30 million over the 2013-2022 period. Because 
those costs would increase direct spending, pay-as-you-go 
procedures apply. Enacting the legislation would not affect 
revenues or spending subject to appropriation.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Alaska Native Claims 
Settlement Act to provide that Alexander Creek, Alaska, is and 
shall be recognized as an eligible Native village under that 
Act.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                  ALASKA NATIVE CLAIMS SETTLEMENT ACT




           *       *       *       *       *       *       *
SEC. 43. ALEXANDER CREEK VILLAGE RECOGNITION.

  (a) Recognition of the Village of Alexander Creek.--Subject 
to the limitations of this section and notwithstanding section 
1432(d) of the Alaska National Interest Lands Conservation Act 
(Public Law 96-487) to the contrary, Alexander Creek, located 
within Township 15N, Range 7W, Seward Meridian, Alaska, is and 
shall be recognized as an eligible Native village under section 
11(b)(3) of this Act.
  (b) Definitions.--For the purposes of this section, the 
following terms apply:
          (1) The term ``agency'' includes--
                  (A) any instrumentality of the United States;
                  (B) any element of an agency; and
                  (C) any wholly owned or mixed-owned 
                corporation of the United States Government 
                identified in chapter 91 of title 31, United 
                States Code.
          (2) The term ``Alexander Creek'' means Alexander 
        Creek Incorporated, an Alaska Native Group corporation, 
        organized pursuant to this Act.
          (3) The term ``Region'' means Cook Inlet Region 
        Incorporated, an Alaska Native Regional Corporation, 
        which is the appropriate Regional Corporation for 
        Alexander Creek under section 1613(h) of this Act.
  (c) Organization of Alexander Creek.--As soon as practicable 
after enactment of this section, Alexander Creek shall cause to 
be filed--
          (1) any amendments to its corporate charter in the 
        State of Alaska necessary to convert from a Native 
        group to a Native Village corporation; and
          (2) if necessary, any amendments to its corporate 
        charter and governing business documents that fulfill 
        the terms of the agreement authorized under this Act.
  (d) Authority and Direction To Negotiate.--Not later than 30 
days after the date of the enactment of this section, the 
Secretary shall open discussions and subsequently negotiate 
and, in the Secretary's sole discretion on behalf of the United 
States, enter into an agreement by December 31, 2012, with the 
Native Village Corporation of Alexander Creek (hereinafter, 
``Alexander Creek'') to settle aboriginal land claims and any 
other claims of such Native Village Corporation against the 
United States fairly, reaching an agreement in approximate 
parity with those of other Alaska Native Village Corporations, 
notwithstanding Alexander Creek's prior status as a Group 
Corporation.
  (e) Shareholder Participation.--Alexander Creek shall notify 
each member of the Native village recognized under this section 
that, upon the effective date of this section, such members 
shall cease to receive benefits from the Region as at-large 
shareholders pursuant to section 7(m), and that all future 
resource payments from the Region shall be made to the Village 
Corporation pursuant to section 7(j). The Region shall not be 
liable under any State, Federal, or local law, or under State 
or Federal common law, for damages arising out of or related to 
the cessation of payments to such individuals under section 
7(m) pursuant to this section.
  (f) Statutory Construction.--Nothing in this section shall be 
construed to--
          (1) limit, alter, violate, breach, or otherwise 
        affect the rights of any party under a contract, 
        settlement agreement, or land exchange entered into 
        prior to enactment of this section between Alexander 
        Creek and any party, or one or more parties to any 
        contract, settlement, agreement, or land exchange 
        predicated upon Alexander Creek's Native village status 
        under this Act; or
          (2) diminish or reduce the acreage entitlement to 
        which Alexander Creek became entitled to as a Group 
        Corporation.

                            DISSENTING VIEWS

    H.R. 4194 will amend the Alaska Native Claims Settlement 
Act (ANCSA) to recognize Alexander Creek Inc., currently 
recognized as an Alaska Native Group, as an Alaska Native 
Village. As a Native Village, Alexander Creek will be eligible 
for similar treatment as other Native Villages under ANCSA, 
including eligibility to receive between 69,120 acres to 
161,200 acres of land from the public domain in Alaska. While 
we recognize the unfortunate history behind Alexander Creek's 
designation as a Native Group, and sympathize with those 
circumstances, we cannot recommend that H.R. 4194 advance in 
the House. H.R. 4194 would upset settled law with respect to 
Alaska Native Village and Group land conveyances established by 
ANCSA and create unwise precedent on the finality of tribal 
legislative settlements.
    Alexander Creek's eligibility as a Native Village was 
ultimately resolved in a Stipulated Agreement in 1979 and 
codified in the Alaska National Interest Lands Conservation 
Act. In signing the settlement agreement, in which Alexander 
Creek, Cook Inlet Region Incorporated (CIRI), and the United 
States were parties, Alexander Creek dropped its claim to be a 
village in exchange for group status and up to 7,680 acres of 
land. The agreement released the United States from liability 
for any land claims the group had against it. To turn back the 
clock, as H.R. 4194 will, to nullify this agreement would 
reopen Alexander Creek's land claims against the United States 
and expose the federal government to monetary liability it 
settled over 30 years ago. It goes without saying that 
reopening land claims because a party to the settlement has 
buyer's remorse, as Alexander Creek clearly does here, will 
establish dangerous precedent for reopening all Indian land 
settlements with the United States. The House should not 
approve bills that expose the federal government to land claims 
of unquantified liability, especially if those claims have been 
resolved and discharged with finality through codification at 
law.
    Moreover, H.R. 4194 will, as the Department of the Interior 
testified, have ``serious consequences'' respecting land 
conveyances in south-central Alaska, which is in a late stage 
of implementation of those conveyances. Even Alexander Creek's 
President Thompson admitted at the Subcommittee hearing on the 
bill that all the land selections in Alaska have been made by 
others, including the State and boroughs, so the only eligible 
lands that remain are ``unselected'' or part of the national 
park system. It is therefore troubling that H.R. 4194 does not 
address the process for selection of entitlement lands, or even 
approximate how much land the group could receive or where, 
instead leaving it to the discretion of the Secretary of the 
Interior to sort out with the group. H.R. 4194 simply directs 
the Secretary to negotiate and enter into an agreement with 
Alexander Creek to ``settle aboriginal claims and other claims 
. . . against the United States fairly, reaching an agreement 
in approximate parity with those of other Alaska Native Village 
Corporations. . . .'' (emphasis added) ``Approximate parity'' 
is not defined in the bill. This lack of certainty is 
problematic, especially in light of the fact that H.R. 4194 
amends existing law.
    H.R. 4194 will re-expose the United States to liability 
that was settled by stipulated agreement and codified more than 
30 years ago. It lacks fundamental and necessary details on 
land selection and conveyance to Alexander Creek of lands the 
group argues it is owed as a Native village under ANCSA, and 
further fails to approximate how much land the group could 
receive or where it could select such land from. This bill will 
have serious repercussions on the framework for land 
conveyances established by ANCSA and create precedent by which 
other dissatisfied groups may seek redress. H.R. 4194 should be 
rejected by the House.

                                   Edward J. Markey.
                                   Ben Ray Lujan.

                                  
