[House Report 112-736]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-736
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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
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By fiscal year, in millions of dollars--
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2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2013-2017 2013-2022
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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
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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.