[House Report 115-1058]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1058
======================================================================
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
_______
November 30, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1418]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1418) 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. 1418 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, 43
U.S.C. 1601 et seq.), extinguished all claims of Native people
based on aboriginal title to lands and waters in Alaska. Under
the Act, fee title to 44 million acres of public lands in
Alaska and nearly $1 billion were conveyed and paid to Alaska
Natives. Section 7 divided the State into twelve geographic
regions, approximated by twelve regional Native associations,
``composed as far as practicable of Natives having a common
heritage and sharing common interests.'' Section 11 listed
approximately 200 villages with 25 or more Native residents
where they formed a majority of the population. The Regional
Associations and Native Villages were authorized 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 the Regional and
Village Corporations, while the Regional Corporations obtained
fee title to the subsurface estate of most Regional and Village
Corporation lands.
The Act prescribed a host of conditions under which Native
Corporations 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 between
69,120 and 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
Alexander Creek is located 27 miles northwest of Alaska's
largest city of Anchorage. Though not specifically listed as a
Native Village in ANCSA, Alexander Creek secured recognition as
a Village under administrative procedures authorized under
section 11 of that Act. Its recognition as a Village was
challenged through administrative appeals and lawsuits,
precipitated by (among other things) concerns that it would
obtain the right to select public lands to which the State of
Alaska and the Matanuska-Susitna Borough sought to select
pursuant to other acts.
In 1974 the Department of the Interior Alaska Native Claims
Appeals Board (ANCAB) resolved appeals challenging Alexander
Creek's designation as a Village. The ANCAB decided there were
only 22 Native people properly enrolled to Alexander Creek,
three short of meeting the eligibility requirements for a
Village. Alexander Creek contends that not all of its enrollees
were properly counted because the Bureau of Indian Affairs
(BIA) failed to notify residents 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
the Department of the 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 a predecessor bill to H.R.
1418 (H.R. 4194), and heard testimony from Stephanie Thompson,
the President of Alexander Creek, and the Obama Administration.
Ms. Thompson submitted materials 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. At the time, 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.
Committee Action
H.R. 1418 was introduced on March 7, 2017, by Congressman
Don Young (R-AK). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Indian, Insular and Alaska Native Affairs. On July 25, 2017,
the Natural Resources Committee met to consider the bill. The
Subcommittee was discharged by unanimous consent. No amendments
were offered, and the bill was ordered favorably reported to
the House of Representatives by unanimous consent on July 26,
2017.
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 and Congressional
Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 22, 2107.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1418, 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.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1418--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: H.R. 1418 would amend the Alaska Native Claims
Settlement Act of 1971 (ANCSA) to recognize the Alexander Creek
community in Alaska as an eligible Native village under the
act, which would entitle the community to receive additional
federal land in Alaska. Under the bill the Secretary of the
Department of the Interior (DOI) would have 13 months following
enactment to reach an agreement with the Alexander Creek Native
village to settle land and other claims against the federal
government.
The cost of a settlement agreement is uncertain because the
components of the proposed agreement are unknown. Whether or
not such an agreement could become final under H.R. 1418, or if
additional legislation would be needed to implement an
agreement, is also unknown. CBO expects that DOI would probably
propose a monetary settlement with the village with an
estimated value of about $32 million. The settlement of such a
monetary claim could be accomplished under the authority
provided by H.R. 1418; alternatively, DOI might seek a specific
appropriation in subsequent legislation to pay that claim and
to enact any other settlement terms into law.
To account for the uncertainty about how the proposed
settlement would become final, CBO assumed that there is a 50
percent chance that the claim would be settled directly as a
result of this bill, resulting in direct spending of $16
million over the 2018-2022 period and a 50 percent chance that
a settlement would require future appropriations totaling $16
million over that period.
Because enacting H.R. 1418 would increase direct spending,
pay-as-you-go procedures apply. Enacting the bill would not
affect revenues.
CBO estimates that enacting the bill would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1418 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments. Enacting the bill would benefit the community of
Alexander Creek by designating land as a native village and
potentially entitle members of Alexander Creek to increased
land holdings or other federal benefits.
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 1418 is shown in the table below. The
costs of this legislation fall within budget functions 450
(community and regional development) and 800 (general
government).
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By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2017-2022 2017-2027
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INCREASE IN DIRECT SPENDING
Estimated Budget Authority........................... 0 0 16 0 0 0 0 0 0 0 0 16 16
Estimated Outlays.................................... 0 0 16 0 0 0 0 0 0 0 0 16 16
INCREASE IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................ 0 0 16 0 0 0 0 0 0 0 0 16 16
Estimated Outlays.................................... 0 0 16 0 0 0 0 0 0 0 0 16 16
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Basis of estimate: For this estimate, CBO assumes that H.R.
1418 will be enacted near the end of 2017, that DOI will reach
a monetary settlement with the Alexander Creek village within a
year and that any amounts necessary to finalize the settlement
will be provided in fiscal year 2019.
Background
ANCSA established a process to classify Native Alaskan
communities as Native corporations and withdrew nearly 44
million acres of federal land in Alaska for the purpose of
conveying land to those communities. Under ANCSA, Native
villages are entitled to receive about 69,000 acres from that
withdrawn land, 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 the 44
million acres of federal land withdrawn under ANCSA.
Alexander Creek reclassification
H.R. 1418 would designate the Alexander Creek community as
a Native village under ANCSA, which would require DOI, in
conjunction with the General Services Administration (GSA), to
settle land and other claims with the newly designated Native
village. Under the bill, part of the settlement could involve
transferring some of the government's excess personal property,
such as office equipment and furniture, to Alexander Creek.
(The disposition of excess personal property is administered by
the GSA.)
Because H.R. 1418 would supersede the ANILCA agreement and
classify the Alexander Creek community as a Native village,
they would be entitled to receive an additional 61,000 acres of
the federal land withdrawn under ANCSA. According to DOI,
nearly all of that land has been or is in the process of being
conveyed to other Alaska Native corporations. Under the bill,
DOI would be required to enter into negotiations with Alexander
Creek to settle the community's land claims by providing the
community with some combination of other land in the public
domain, personal property held by GSA, or other compensation.
H.R. 1418 would require the settlement to be reached within 13
months of the bill's enactment.
Based on the value of undeveloped acreage in the vicinity
of the Alexander Creek community, CBO estimates that 61,000
acres of land in this area of Alaska would have an appraised
value of about $32 million. Because there is little land
available to settle the claim CBO expects that the settlement
under H.R. 1418 would be in the form of a monetary settlement
to the community. That settlement could come from amounts
appropriated to DOI for that purpose; however, if the amounts
required to settle the community's claim are not appropriated
to DOI, CBO expects the settlement could also be made from the
Treasury's Judgment Fund (a permanent, indefinite appropriation
available to pay judicially and administratively ordered
monetary awards against the United States). A federal agency
may request that payment of an award be made on its behalf from
the Judgment Fund when no other funds are available to pay an
obligation of the government.
The timing and the amount of a settlement are uncertain and
would ultimately depend on the terms agreed upon by DOI and the
Alexander Creek Native Village. DOI indicates that there are
insufficient amounts of land in the region to compensate the
village, and GSA notes that there is not enough surplus federal
personal property to compensate the village in a reasonable
amount of time.
CBO expects that under H.R. 1418 there is a 50 percent
chance that a settlement agreement could be reached that would
need to be funded and finalized through subsequent legislation
(at a discretionary cost of $16 million) and a 50 percent
chance that a settlement could be agreed to directly under H.R.
1418, which would result in direct spending totaling $16
million that would be paid by the Judgment Fund.
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. 1418, 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, AS ORDERED REPORTED ON JULY 26, 2017
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By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2017-2022 2017-2027
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NET INCREASE IN THE DEFICIT
Statutory Pay-As-You-Go Impact....................... 0 16 0 0 0 0 0 0 0 0 0 16 16
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Increase in long-term direct spending and deficits: CBO
estimates that enacting H.R. 1418 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Intergovernmental and private-sector impact: H.R. 1418
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. Enacting the bill would benefit the
community of Alexander Creek by designating land as a native
village and potentially entitle members of Alexander Creek to
increased land holdings and other federal benefits.
Estimate prepared by: Federal costs: Robert Reese and
Matthew Pickford; Impact on State, local, and tribal
governments: Rachel Austin; Impact on the private-sector: Amy
Petz.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
2. 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.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
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) and any conveyance or agreement in
furtherance thereof or thereto, 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 prior to the enactment
of this section, but subsequent to enactment of this
section means Alexander Creek, Incorporated, an Alaska
Native Village corporation recognized and organized
pursuant to section (a).
(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) Negotiations.--Not later than 30 days after the date of
the enactment of this section, the Secretary shall open
negotiations with Alexander Creek and, not later than 13 months
after the date of the enactment of this section, reach an
agreement with Alexander Creek to fairly and equitably settle
Alexander Creek's aboriginal land claims and any other claims
of Alexander Creek against the United States. An agreement
under this section shall be in approximate value parity with
those of other Alaska Native Village Corporations,
notwithstanding Alexander Creek's prior status as a Group
Corporation. The Secretary shall effectuate such agreement
under the authority in this section, other existing
authorities, and in coordination with the Administrator
pursuant to 40 U.S.C. 549 with respect to property to be
transferred to Alexander Creek pursuant to such agreement.
Notwithstanding paragraphs (2) and (3) of section 549(a) of
title 40, United States Code, Alexander Creek is hereby
considered both a ``State'' and a ``State agency'' under that
section for the sole purpose of the Secretary effectuating an
agreement under this section.
(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) Construction.--Except as provided in this section with
respect to Alexander Creek, nothing in this section shall be
construed to modify or amend land conveyance entitlements or
conveyance agreements between the Region and village
corporations other than Alexander Creek in such region, nor
between the Region and the Federal Government, nor between any
such parties and the State of Alaska.
(g) Construction Regarding Current Alexander Creek Land.--
Nothing in this section shall be construed to reduce the land
entitlement to which Alexander Creek became entitled as a Group
Corporation, including the land selected by and conveyed to
Alexander Creek at the time of enactment of this section.
ADDITIONAL VIEWS
I am deeply disappointed in the Congressional Budget
Office's (CBO) unprofessionalism and lack of consistency during
their efforts throughout the last three Congresses to analyze
this legislation. CBO's failure to provide accurate, timely
feedback to my office and produce a report that reflects the
realities of the impact of this bill has been a significant
roadblock to the bill's advancement. Ultimately, this has
perpetuated historic injustices faced by the people of
Alexander Creek, Alaska.
My office has sought advice from CBO with the goal of
producing language for the legislation that does not score.
During the 113th Congress, CBO made recommendations to this end
(after long delays) regarding including provisions specifying
that the bill does not authorize funds for a settlement or
create a federal liability through the Indian Tribal Judgment
Funds Use or Distribution Act (25 U.S.C. 1401). After my office
made CBO's recommended changes, CBO reversed their position and
issued a report that found the bill scored. In addition,
further legal analysis determined that CBO's recommended
language regarding the Tribal Judgement Fund was based on a
flawed understanding of Indian policy and did not make sense.
During the 114th Congress, my office sought to develop
further changes to the legislation to ensure it did not score.
Understanding the significant amount of time required to move a
bill to final passage, my staff requested CBO analyze the
proposed changes as the first step in the process. After more
than three months of delay, a CBO staffer informed my staff
that the revised bill language would not score. At this point,
based on input from the committee, my staff brought the revised
language to Leadership staff for review to ensure the language
did not violate the earmark ban.
This review was a long process but resulted in a finding
that the revised language did not violate the earmark ban.
Because of the elapsed time, it was not possible to move the
bill in the 114th Congress, and I introduced the revised
version at the beginning of the 115th Congress. After the bill
was ordered reported by the committee this Congress, I was
surprised when CBO issued its official report and reversed its
position on the language, assigning it a significant score.
When my staff met with CBO staff to discuss the report, CBO
staff was evasive and refused to reveal their methodology and
documentation behind their determination. CBO staff also
refused reveal the name or names of staff at the Department of
Interior that they had consulted prior to making the
determination. This is particularly troublesome given that some
career staff at the Department had a history of opposing the
bill, and I suspect their input to CBO regarding costs was
politically motivated.
CBO's delays, lack of transparency and accountability, and
fluctuating positions have undermined the prospects for passing
this legislation over the last six years. Beyond H.R. 1418,
these problems at CBO are harmful to the legislative process as
a whole. It is my hope that they can be addressed in the 116th
Congress.
Don Young,
Congressman for all Alaska.
[all]