[Senate Report 112-250]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 566
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-250

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



 
   TO PROVIDE FOR THE CONVEYANCE OF CERTAIN PROPERTY FROM THE UNITED 
     STATES TO THE MANIILAQ ASSOCIATION LOCATED IN KOTZEBUE, ALASKA

                                _______
                                

               December 13, 2012.--Ordered to be printed

                                _______
                                

           Mr. Akaka, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 443]

    The Committee on Indian Affairs, to which was referred the 
bill (H.R. 443) to provide for the conveyance of certain 
property from the United States to the Maniilaq Association 
located in Kotzebue, Alaska, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                PURPOSE

    The purpose of H.R. 443, as ordered reported, is to provide 
for the conveyance by warranty deed of certain property located 
in Kotzebue, Alaska from the United States to the Maniilaq 
Association.

                         BACKGROUND AND HISTORY

    The Maniilaq Association (Maniilaq) is a non-profit 
organization\1\ that provides a range of health and social 
services to residents of Northwest Alaska. Maniilaq provides 
these services under the Alaska Tribal Health Compact and 
corresponding funding agreements with Indian Health Service 
(IHS), pursuant to the self-governance provisions of the Indian 
Self-Determination and Education Assistance Act\2\ (ISDEAA).
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    \1\Maniilaq represents twelve tribes, which are the Native Village 
of Ambler, the Native Village of Buckland IRA, the Native Village of 
Deering, the Native Village of Kiana, the Native Village of Kivalina 
IRA, Kobuk Traditional Council, the Native Village of Kotzebue, the 
Native Village of Noatak IRA, the Native Village of Noorvik IRA, 
Selawik IRA Council, the Native Village of Shungnak IRA, and the Native 
Village of Point Hope IRA. H.R. 443, H.R. 444, H.R. 1461, H.R. 1556 and 
H.R. 2444: Hearing Before the Subcomm. on Indian and Alaska Native 
Affairs of the H. Natural Resources Comm., 112th Cong. 1 (2011) 
(written statement of Ian Erlich, President/Chief Executive Officer, 
Maniilaq Association).
    \2\25 U.S.C. Sec. Sec. 450 et seq.
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    H.R. 443 would require the Secretary of Health and Human 
Services (HHS) to convey to Maniilaq, by warranty deed, three 
contiguous parcels of land totaling 14.6 acres, including all 
buildings and appurtenances, for use in connection with the 
services provided by Maniilaq under its ISDEAA contracts with 
IHS. One of these parcels is the site of the existing Maniilaq 
Hospital and Health Center; the other two parcels contain 
employee housing.
    These properties have already been conveyed to Maniilaq by 
way of quitclaim deed. On March 31, 2009, IHS transferred to 
Maniilaq, by quitclaim deed, title to the land on which the 
Maniilaq Hospital and Health Center sits. On November 18, 2009, 
after completing an environmental review and certification, IHS 
transferred, via two separate quitclaim deeds, two additional 
contiguous parcels of land on which housing for employees of 
the facility is located.\3\ H.R. 443 would convey these same 
properties to Maniilaq, by warranty deed, for use by Maniilaq 
in carrying its duties under the Alaska Tribal Health Compact.
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    \3\According to testimony from Maniilaq before the House 
Subcommittee on Indian and Alaska Native Affairs, these conveyances 
were done so that Maniilaq would be able to construct a long-term 
health facility, as well as make other necessary future expansions to 
the existing Maniilaq Hospital and Health Center. See H.R. 443, H.R. 
444, H.R. 1461, H.R. 1556 and H.R. 2444: Hearing Before the Subcomm. on 
Indian and Alaska Native Affairs of the H. Natural Resources Comm., 
112th Cong. 1-2 (2011 ) (written statement of Ian Erlich, President/
Chief Executive Officer, Maniilaq Association).
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    Under Section 512(c)(2)(B) of the ISDEAA, the Secretary of 
HHS has the authority, upon request by an Indian tribe, to 
donate to the tribe any property found to be in excess of the 
needs of HHS.\4\ Neither the ISDEAA\5\ nor its implementing 
regulations\6\ specify the type of deed (quitclaim versus 
warranty) that should be used for conveying property in this 
manner. Testimony received by the Committee by the IHS 
indicates that IHS has historically conveyed property to tribes 
under the authority of the ISDEAA by quitclaim deed; however, 
IHS testified in support of conveyance by warranty deed in this 
particular instance.\7\
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    \4\25 U.S.C. Sec. 458aaa-11(c)(2). This authority is also 
incorporated in the Alaska Tribal Health Compact.
    \5\25 U.S.C. Sec. 458aaa-11(c)(2).
    \6\42 C.F.R. pt. 137.
    \7\S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian 
Affairs, 112th Cong. 6 (2012) (statement of Robert McSwain, Deputy 
Director for Management Operations, Indian Health Service, U.S. 
Department of Health and Human Services) (``It is important to 
emphasize that, as a normal practice, we do not transfer properties via 
the warranty deed mechanism. However, we will support an exception in 
this case, because of the Tribe's initiative to expand access to its 
health care system for community members. This proposal will give the 
Maniilaq Association flexibility to leverage additional resources 
because ownership of the property under a warranty deed will give them 
unencumbered ownership of the property described in S. 1898. . . . The 
warranty deed would be the first of its kind in Alaska, since only one 
other property was transferred to the Southeast Alaska Regional Health 
Corporation through a quitclaim deed.'').
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Environmental liability

    Section 3 of H.R. 443 provides that Maniilaq will not be 
liable for any contamination or pollution on the conveyed 
properties ``as of the date of the conveyance.''\8\ During his 
testimony in support of the Senate companion bill, S. 1898,\9\ 
Robert McSwain, Deputy Director for Management Operations at 
IHS, noted that IHS believed that this environmental liability 
language should be revised to make clear that Maniilaq is 
responsible for any environmental contamination ``which may 
occur or arise as of or after the date of the 2009 
conveyance.''\10\
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    \8\H.R. 443, 112th Cong. Sec. 3(a) (1st Sess. 2011).
    \9\The text of S. 1898 is substantively the same as H.R. 443.
    \10\S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian 
Affairs, 112th Cong. 6 (2012) (statement of Robert McSwain, Deputy 
Director for Management Operations, Indian Health Service, U.S. 
Department of Health and Human Services).
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    Section 3(c) of H.R. 443 would also require the Secretary 
of HHS to comply with section 120(h)(3)(A)-(B) of the 
Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980.

Reversionary clause

    Section 1(b) of H.R. 443 provides that Section 512(c)(2)(B) 
of the ISDEAA\11\ would apply to the conveyance of the 
properties by warranty deed. Under this provision of the 
ISDEAA, upon retrocession or withdrawal by Maniilaq from the 
Alaska Tribal Health Compact or reassumption of the compacted 
programs by IHS, any conveyed property valued at more than 
$5,000\12\ would (at the option of HHS) revert back to the 
United States.\13\
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    \11\25 U.S.C. Sec. 458aaa-11(c)(2)(B).
    \12\The statute states that the value of the property is to be 
determined at the time of retrocession, withdrawal, or reassumption. 25 
U.S.C. Sec. 458aaa-11(c)(2)(B).
    \13\25 U.S.C. Sec. 458aaa-11(c)(2)(B). At the Senate Committee on 
Indian Affairs' legislative hearing on the Senate version of the bill 
(S. 1898), Robert McSwain, the Deputy Director for Management Operation 
at IHS, noted that while IHS supported the bill, it felt that ``the 
`reversionary clause' language should be clarified to apply, should the 
Association cease to use the property for health purposes.'' (S. 1898 
and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 112th 
Cong. 6 (2012) (statement of Robert McSwain, Deputy Director for 
Management Operations, Indian Health Service, U.S. Department of Health 
and Human Services)). This recommendation by IHS was noted by Committee 
staff at the business meeting held on June 6, 2012, during their 
presentation of H.R. 443 to Committee Members. The additional 
``clarifying'' language recommended by IHS may be duplicative, however. 
It appears that under the applicable provision of the ISDEAA, if 
Maniilaq ceased to use the property for health purposes, property 
valued at more than $5,000 would, at the option of the Secretary, 
revert back to the United States. See U.S.C. Sec. 458aaa-11(c)(2)(B).
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                          NEED FOR LEGISLATION

    According to testimony received by the Committee by the 
Maniilaq President and Chief Executive Officer, Ian Erlich, the 
conveyance of the properties by quitclaim deed interferes to 
some degree with Maniilaq's full use and management of the 
properties.\14\
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    \14\See H.R. 443, H.R. 444, H.R. 1461, H.R. 1556 and H.R. 2444: 
Hearing Before the Subcomm. on Indian and Alaska Native Affairs of the 
H. Natural Resources Comm., 112th Cong. 2 (2011) (written statement of 
Ian Erlich, President/Chief Executive Officer, Maniilaq Association); 
S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 
112th Cong. 12-13 (2012) (statement of Paul Hansen, Deputy 
Administrator, Maniilaq Health Center); see also S. 1898 and H.R. 1560: 
Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 6 (2012) 
(statement of Robert McSwain, Deputy Director for Management 
Operations, Indian Hea1th Service, U.S. Department of Health and Human 
Services) (stating that IHS supports transferring the properties to 
Maniilaq via warranty deed in order to support Maniilaq's ``initiative 
to expand access to its health care system for community members'').
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    First, according to the IHS, conveyance by quitclaim deed 
does not guarantee clear title as a warranty deed does. 
Conveyance by warranty deed would give Maniilaq security in the 
title to the properties, thereby allowing more flexibility in 
their use and management.\15\
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    \15\See S. 1898 and H.R. 1560: Hearing Before the S. Comm. on 
Indian Affairs, 112th Cong. 5-6 (2012) (statement of Robert McSwain, 
Deputy Director for Management Operations, Indian Health Service, U.S. 
Department of Health and Human Services).
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    In addition, according to Mr. Erlich, the 2009 quitclaim 
deeds contain covenants that allow HHS ongoing control over the 
properties. For example, Maniilaq is required under the 
quitclaim deeds to obtain approval by HHS for any lease, 
mortgage, or encumbrance of the property. This requirement 
would apply if Maniilaq seeks to use the property as security 
for a construction loan or any other loan through which 
Maniilaq might seek to leverage its resources. Approval by HHS 
is also required under the quitclaim deeds on any contract 
which would impact the value of the properties,\16\ including, 
for instance, contracts related to construction work associated 
with remodeling or expanding the facility.
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    \16\H.R. 443, H.R. 444, H.R. 1461, H.R. 1556 and H.R. 2444: Hearing 
Before the Subcomm. on Indian and Alaska Native Affairs of the H. 
Natural Resources Comm., 112th Cong. 2 (2011) (written statement of Ian 
Erlich, President/Chief Executive Officer, Maniilaq Association).
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    Under the current quitclaim deeds, if any of these 
conditions are breached, HHS has the option to seek reversion 
of the properties back to the United States. This is 
inconsistent with the applicable provisions of the ISDEAA, 
which allow properties conveyed to tribes by HHS to revert back 
to the United States only upon retrocession or withdrawal by 
the tribe from the ISDEAA compact or reassumption of services 
by IHS.\17\
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    \17\See 25 U.S.C. Sec. 458aaa-11(c)(2)(B).
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                          LEGISLATIVE HISTORY

    H.R. 443 was introduced on January 25, 2011, by 
Representative Don Young with no cosponsors. The bill was 
referred to the Committee on Natural Resources, Subcommittee on 
Indian and Alaska Native Affairs, of the House of 
Representatives, and additionally to the Committee on Energy 
and Commerce of the House of Representatives. The Subcommittee 
on Indian and Alaska Native Affairs held a hearing on H.R. 443 
on September 22, 2011. On October 5, 2011, the full Committee 
on Natural Resources held a business meeting to consider the 
bill. Representative Don Young offered an amendment to make 
technical corrections to the bill, primarily to correct the 
land descriptions contained in Section 2 of the bill, and the 
amendment was adopted by unanimous consent. The bill, as 
amended, was then ordered to be reported favorably to the full 
House. On December 8, 2011, the Committee on Energy and 
Commerce was discharged by unanimous consent,\18\ and the bill, 
as amended, was reported to the House of Representatives and 
placed on the Union Calendar. The House of Representatives 
passed H.R. 443 on December 15, 2011, by recorded vote of 407-
4. The bill was received in the Senate and referred to the 
Committee on Indian Affairs.
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    \18\On December 7, 2011, the Committee on Energy and Commerce of 
the House of Representatives notified the Committee on Natural 
Resources of the House of Representatives that it would forgo action on 
H.R. 443 so that the bill could proceed expeditiously to the full House 
of Representatives for consideration, but noted, however, that it did 
not waive any of its jurisdiction with respect to this legislation or 
any legislation of the same or similar subject matter.
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    In order to expedite consideration of the legislation, 
Senator Murkowski requested that the Committee hold a business 
meeting to consider H.R. 443.\19\ The Committee took up 
consideration of H.R. 443 at a business meeting on June 6, 
2012, and ordered the bill to be reported to the Senate, by 
voice vote, without amendment.
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    \19\The Senate companion bill, S. 1898, was introduced by Senator 
Murkowski on November 17, 2011, and cosponsored by Senator Begich. The 
Senate bill, S. 1898, is substantively the same as H.R. 443. The 
Committee held a legislative hearing on S. 1898 on March 22, 2012.
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                SECTION-BY-SECTION ANALYSIS OF H.R. 443

Section 1--Conveyance of Property

    Section 1 would direct the Secretary of Health and Human 
Services, not later than 180 days after the enactment of the 
act, to convey by warranty deed certain properties described in 
Section 2 to the Maniilaq Association for use in connection 
with health and social services programs.
    It further provides that the Secretary's conveyance of 
title to these properties shall supersede and render of no 
future effect any quitclaim deed concerning the same properties 
executed by the Secretary and the Maniilaq Association.
    Section 1 also provides that the conveyance of the 
properties by warranty deed shall be made without 
consideration, and without imposing any obligation, term, or 
condition on the Maniilaq Association. It also provides that 
the United States will not retain any reversionary interest in 
the property, other than that required by this act or by 
Section 512(c)(2)(B) of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. Sec. 458aaa-11(c)(2)(B)).

Section 2--Property Described

    This section provides the legal descriptions for the 
property to be conveyed to the Maniilaq Association pursuant to 
Section 1.

Section 3--Environmental Liability

    This section provides that, notwithstanding any other 
provision of Federal law, as of the date of the conveyance, the 
Maniilaq Association shall not be liable for any soil, surface, 
groundwater, or other contamination resulting from the 
disposal, release, or presence of any environmental 
contamination, including any oil or petroleum products, or any 
hazardous materials, hazardous waste, pollutants, toxic 
substances, solid waste, or any other environmental 
contamination or hazard as defined in any Federal law, on any 
property described in Section 2.
    This section grants the Secretary any ``reasonably 
necessary'' easement or access to the conveyed property in 
order to satisfy any retained obligations or liability of the 
United States.
    This section also provides that the Secretary shall comply 
with Section 120(h)(3)(A) and (B) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(42 U.S.C. Sec. 9620(h)(3(A)).

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    In an open business meeting on June 28, 2012, the Committee 
on Indian Affairs, by voice vote, adopted H.R. 443 and ordered 
the bill reported to the Senate, with the recommendation that 
the Senate do pass H.R. 443 as reported.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate, as provided by the 
Congressional Budget Office, dated July 10, 2012, was prepared 
for H.R. 443:

H.R. 443--An act to provide for the conveyance of certain property from 
        the United States to the Maniilaq Association located in 
        Kotzebue, Alaska

    H.R. 443 would convey three Indian Health Service (IHS) 
properties in Kotzebue, Alaska, to the Maniilaq Association, a 
tribal nonprofit organization. Based on information from the 
IHS, CBO estimates that the conveyances would have no 
significant impact on the federal budget. According to the 
agency, it does not currently receive any lease payments or 
other receipts from the properties. Enacting H.R. 443 would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    H.R. 443 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On October 25, 2011, CBO transmitted a cost estimate for 
H.R. 443 as ordered reported by the House Committee on Natural 
Resources on October 5, 2011. The two versions of the 
legislation are similar and the CBO cost estimates are the 
same.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee believes that 
the regulatory impact of H.R. 443 will be minimal.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding H.R. 443 other than the written 
testimony from the Department of Health and Human Services 
submitted at the Committee hearing on the Senate companion 
bill, S. 1898, on March 22, 2012, which is attached hereto as 
an exhibit.

Statement of Robert McSwain, Deputy Director for Management Operations, 
     Indian Health Service, Department of Health and Human Services

    Mr. Chairman and Members of the Committee: Good afternoon. 
I am Robert McSwain, Deputy Director for Management Operations 
of the Indian Health Service (IHS). I am pleased to have the 
opportunity to testify on the S. 1898 for the Maniilaq 
Association, providing for the conveyance of Indian Health 
Service (IHS) real property located in Kotzebue, Alaska.
    The Indian Health Service plays a unique role in the 
Department of Health and Human Services (HHS) because it is a 
health care system that was established to meet the federal 
trust responsibility to provide health care to American Indians 
and Alaska Natives (AI/ANs). The mission of the IHS, in 
partnership with American Indian and Alaska Native people, is 
to raise the physical, mental, social, and spiritual health of 
AI/ANs to the highest level. The IHS provides comprehensive 
health service delivery to approximately 2.1 million Ai/ANs 
through 31 Hospitals, 50 health centers, 31 health stations and 
2 school health centers. Tribes also provide healthcare access 
through an additional 15 hospitals, 254 health centers, 166 
Alaska Village Clinics, 112 health stations and 18 school 
health centers. In support of the IHS mission, the IHS and 
Tribes provide access to functional, well maintained and 
accredited health care facilities and staff housing.
    S. 1898 deals with the conveyance of lands located in 
Kotzebue, Alaska which were used by the federal government for 
the delivery of IHS services. In 1995 the Maniilaq Association 
in Kotzebue, Alaska assumed responsibility for the provision of 
the IHS-funded health care services under the authority of the 
Indian Self-Determination and Education Assistance Act 
(ISDEAA). Some of the federal property, which had been used in 
connection with health and related programs in Kotzebue, Alaska 
by the IHS, was transferred through quit claim deeds to the 
Maniilaq Association.
    S. 1898 provides for the conveyance of the Kotzebue 
property from the United States to the Maniilaq Association and 
proposes to modify the existing quit claim deed transfer by 
requiring the use of a warranty deed. On March 31, 2009, IHS 
transferred ownership of the Maniilaq Health Center/Hospital. 
After completing an environmental review and certification on 
November 18, 2009, the two additional parcels of property, 
named in this bill, including staff quarters, were transferred.
    The IHS supports this bill because it views the proposed 
transfer as furthering the special partnership that exists with 
American Indian and Alaska Native tribal governments, and, 
moreover, is in keeping with the Presidential Memorandum on 
Administrative Flexibility as it pertains to tribal 
governments. It is important to emphasize that, as a normal 
practice, we do not transfer properties via the warranty deed 
mechanism. However, we will support an exception in this case, 
because of the Tribe's initiative to expand access to its 
health care system for community members. This proposal will 
give the Maniilaq Association flexibility to leverage 
additional resources because ownership of the property under a 
warranty deed will give them unencumbered ownership of the 
property described in S. 1898.
    We do believe the language, relating to environmental 
liability, needs to be clarified so the Maniilaq Association is 
responsible for any environmental contamination which may occur 
or arise ``as of or after the date of the 2009 conveyance''; 
and, the ``reversionary clause'' language should be clarified 
to apply, should the Association cease to use the property for 
health purposes.
    We do not believe there will be reasons to use this 
mechanism in future cases. There are no existing problems with 
the current quit claim deed signed in 2009 with the Maniilaq 
Association. Traditionally, the Alaska Native Corporations have 
preferred to leave the title of their facilities previously 
operated by the IHS with the federal government. It is highly 
unlikely there will be similar requests from Tribes in the 
other 35 states to have warranty deeds since they are currently 
on tribally owned lands and the government leases property from 
them for the health care facilities. This warranty deed 
transfer would be the first of its kind in Alaska, since only 
one other property was transferred to the Southeast Alaska 
Regional Health Corporation through a quit claim deed.
    Concerning retrocession, we think it unlikely. We can count 
only four retrocessions since the enactment of ISDEAA in 1975 
and these were only small program components and three have 
been re-assumed by the Tribes. None of these were in the Alaska 
Area.
    We look forward to working with you, Mr. Chairman, on 
measures like these to improve the health of the Alaska Native 
population. Mr. Chairman, this concludes my testimony. I 
appreciate the opportunity to appear before you to discuss S. 
1898. I will be happy to answer any questions the committee may 
have. Thank you.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of H.R. 443 will not effect any changes in existing 
law.

                                  


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