[House Report 107-744]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-744
======================================================================
ALASKA NATIVE VETERANS LAND ALLOTMENT EQUITY ACT
_______
October 11, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hansen, from the Committee on Resources, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3148]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 3148) to amend the Alaska Native Claims Settlement Act to
provide equitable treatment of Alaska Native Vietnam Veterans,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Alaska Native Veterans Land Allotment
Equity Act''.
SEC. 2. AMENDMENT TO ALLOW CERTAIN ALASKA NATIVE VETERAN LAND
ALLOTMENTS.
Section 41 of the Alaska Native Claims Settlement Act (43 U.S.C.
1629g) is amended as follows:
(1) Paragraphs (1) and (2) of subsection (a) are amended to
read as follows:
``(1) The period for filing allotments under this Act
shall end 3 years after the Secretary issues final
regulations under section 3 of the Alaska Native
Veterans Land Allotment Equity Act. A person described
in paragraph (1) or (2) of subsection (b) shall be
eligible for an allotment of not more than two parcels
of Federal land totaling 160 acres or less.
``(2)(A) Allotments may be selected from the
following:
``(i) Vacant lands that are owned by the United States;
``(ii) Lands that have been selected or conveyed to the State
of Alaska if the State voluntarily relinquishes or conveys to
the United States the land for the allotment.
``(iii) Lands that have been selected or conveyed to a Native
Corporation if the Native Corporation voluntarily relinquishes
or conveys to the United States the land for the allotment.
``(B) A Native Corporation may select an equal amount of acres of
appropriate Federal land within the State of Alaska to replace lands
voluntarily relinquished or conveyed by that Native Corporation under
subparagraph (A)(iii).
``(C) For security reasons, allotments may not be selected from--
``(i) lands within the right-of-way granted for the
TransAlaska Pipeline; or
``(ii) the inner or outer corridor of that right-of-way
withdrawal.''.
(2) Subsection (a)(3) is repealed.
(3) In subsection (b)(1), strike ``A person'' and insert
``Except as provided in paragraph (3), a person''.
(4) Subsection (b)(1)(B) is amended to read as follows:
``(B) is a veteran who served during the period between
August 5, 1964, and May 7, 1975, including such dates.''.
(5) Subsection (b)(2) is amended to read as follows:
``(2) If an individual who would otherwise have been eligible for an
allotment dies before applying for the allotment, an heir on behalf of
the estate of the deceased veteran may apply for and receive the
allotment.''.
(6) In subsection (b)(3), insert before the period the
following: ``, except for an heir who applies and receives an
allotment on behalf of the estate of a deceased veteran
pursuant to paragraph (2)''.
(7) Subsection (e) is amended to read as follows:
``(e) Regulations.--All regulations in effect immediately before the
enactment of subsection (f) that were promulgated under the authority
of this section shall be repealed in accordance with section
552(a)(1)(E) of the Administrative Procedure Act (5 U.S.C.
552(a)(1)(E)).''.
(8) Add at the end the following new subsections:
``(f) Approval of Allotments.--(1) Subject to valid existing rights,
and except as otherwise provided in this subsection, not later than
January 31, 2007, the Secretary shall approve an application for
allotments filed in accordance with subsection (a) and issue a
certificate of allotment which shall be subject to the same terms,
conditions, restrictions, and protections provided for such allotments.
``(2) Upon receipt of an allotment application, but in any event not
later than October 31, 2005, the Secretary shall notify any person or
entity having an interest in land potentially adverse to the applicant
of their right to initiate a private contest or file a protest under
existing Federal regulations.
``(3) Not later than January 31, 2007, the Secretary shall--
``(A) if no contest or protest is timely filed, approve the
application pursuant to paragraph (1); or
``(B) if a contest or protest is timely filed, stay the
issuance of the certificate of allotment until the contest or
protest has been decided.
``(g) Reselection.--A person who made an allotment selection under
this section before the date of the enactment of Alaska Native Veterans
Land Allotment Equity Act may withdraw that selection and reselect
lands under this section if the lands originally selected were not
conveyed to that person before the date of the enactment of Alaska
Native Veterans Land Allotment Equity Act.''.
SEC. 3. REGULATIONS.
Not later than 1 year after the date of the enactment of this Act,
the Secretary of the Interior shall issue final regulations to
implement the amendments made by this Act.
Purpose of the Bill
The purpose of H.R. 3148 is to amend the Alaska Native
Claims Settlement Act to provide equitable treatment of Alaska
Native Vietnam veterans, and for other purposes.
Background and Need for Legislation
In 1998, Public Law 105-276 amended the Alaska Native
Claims Settlement Act (ANCSA) to provide Alaska Native Vietnam
veterans an opportunity to obtain an allotment of up to 160
acres of land under the Native Allotment Act. Approximately
2,800 Alaska Natives served in the military during the Vietnam
conflict and therefore did not have an opportunity to apply for
their Native allotment. However, Public Law 105-276 contains
three major obstacles that prevent Alaska Native Vietnam
veterans from selecting and obtaining their Native allotment.
First, Alaska Native Vietnam veterans can only apply for land
that was vacant, unappropriated, and unreserved when their use
first began. Second, Alaska Native Vietnam veterans can only
apply if they served in active military duty from January 1,
1969 to December 31, 1971 (even though the Vietnam conflict
began August 5, 1964 and ended May 7, 1975). Third, Alaska
Native Vietnam veterans must prove they used the land (applied
for in their native allotment application) in a substantially
continuous and independent manner, at least potentially
exclusive of others, for five or more years. This requirement
was not in the original Native Allotment Act, nor has it been
required of other Alaska Native applicants in applying for
their native allotment. Further, adjudication of use and
occupancy issues will take years and will be very costly.
H.R. 3148 will increase the available land by authorizing
Alaska Native Vietnam veterans to apply for land that is
federally owned and vacant. The lack of available land under
existing law nullifies the very purpose of granting Alaska
Native Vietnam veterans an allotment benefit. H.R. 3148 will
also expand the military service dates to coincide with the
entire Vietnam conflict: August 5, 1964 through May 7, 1975.
The expansion of military service dates to include all Alaska
Natives who served in the military during the Vietnam conflict
is consistent with the federal government's policy of providing
benefits to veterans of the Vietnam war. In addition, H.R. 3148
will also replace existing use and occupancy requirements with
legislative approval of allotment applications. Use and
occupancy requirements would be replaced for several reasons:
(1) Congress has made legislative approval available to all
other allotment applicants under 43 U.S.C. 1634(a)(1)(A); (2)
legislative approval of allotments prevents costly and lengthy
adjudication of use and occupancy issues; and (3) many Alaska
Native Vietnam veterans could not meet use and occupancy
requirements as a result of military service.
The bill would also extend the deadline of the allotment
application to three years after the Secretary of the Interior
issues final regulations under section 3 of the bill. H.R. 3148
would also correct the dates of approval of allotments to
accommodate the extension of the application process of an
Alaska Native Vietnam veteran. Language has also been added to
assure ANCSA native corporations that their land entitlement
would remain intact when a veteran makes his or her allotment
land selection on corporation lands. For security reasons, H.R.
3148 prohibits an Alaska Native Vietnam veteran from selecting
lands within the right of way granted for the TransAlaska
Pipeline (or the inner or outer corridor of that right-of-way)
and lands withdrawn or reserved for national defense purposes.
Section 2(g) would allow a person who made an allotment
selection under this section, before the date of enactment of
this bill, to withdraw that selection and reselect lands under
this section if the lands originally selected were not conveyed
to that person prior to enactment of this bill. H.R. 3148 also
directs the Secretary of the Interior to develop final
regulations to implement the bill.
Committee Action
H.R. 3148 was introduced on October 16, 2001, by
Congressman Don Young (R-AK). The bill was referred to the
Committee on Resources. On June 5, 2002 the Committee held a
hearing on the bill. On September 12, 2002, the Committee met
to mark up the bill. Congressman Don Young offered an amendment
in the nature of a substitute to make several changes
recommended by Doyon Limited, CIRI, several Alaska Native
Corporations and Alyeska Pipeline Company. It was adopted by
voice vote. The bill, as amended, was then 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 Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) 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)(3)(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.
2. 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, spending
authority, credit authority, or an increase or decrease in tax
expenditures. According to the Congressional Budget Office,
H.R. 3148 could increase direct spending, but they estimate
that any such impact would not be significant.
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 equitable treatment of Alaska Native
Vietnam Veterans, and for other purposes.
4. Congressional Budget Office Cost Estimate. 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:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 3, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3148, the Alaska
Native Veterans Land Allotment Equity Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 3148--Alaska Native Veterans Land Allotment Equity Act
Summary: H.R. 3148 would amend current law to authorize the
Secretary of the Interior to grant allotments of federal lands
to certain Alaska Natives or their heirs. CBO estimates that
implementing H.R. 3148 would cost $11 million over the 2003-
2007 period, assuming appropriation of the necessary amounts.
The bill could increase direct spending, but we estimate that
any such impact would not be significant.
H.R. 3148 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would have no significant impact on the budgets of state,
local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3148 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 1 2 3 4 1
Estimated Outlays.................................................. 1 2 3 4 1
----------------------------------------------------------------------------------------------------------------
Basis of estimate: Assuming appropriation of the necessary
amounts, CBO estimates that implementing H.R. 3148 would cost
$11 million over the next five years. We also estimate that the
bill could reduce offsetting receipts (a credit against direct
spending), but by less than $500,000 a year. For this estimate,
CBO assumes that H.R. 3148 will be enacted early in fiscal year
2003 and that the necessary funds will be provided near the
start of each fiscal year. Estimates of outlays are based on
historical spending patterns for similar activities.
Spending subject to appropriation
H.R. 3148 would amend current law to authorize the
Secretary of the Interior to grant allotments of federal lands
to certain Alaska Natives who served in the armed forces in
Vietnam during the period from August 5, 1964, to May 7, 1975.
The bill also would authorize the Secretary to grant allotments
to the heirs of eligible deceased veterans, and, under certain
circumstances, would allow certain other Alaska Native
individuals and organizations with existing allotments to
withdraw those allotments and select other lands instead. H.R.
3148 would direct the Secretary to promulgate regulations to
implement the proposed program and specifies that applications
to participate could be submitted until three years after the
date when those regulations are published. Under the bill, any
application still pending as of January 31, 2007, would be
automatically approved at that time, provided that no other
party has contested the application.
Based on information from the Department of the Interior
(DOI), CBO estimates that issuing regulations pursuant to H.R.
3148 would cost about $1 million in 2003. We also estimate that
eligible Alaska Natives would file up to 2,000 new applications
for allotments. Assuming that, on average, the department
spends $5,000 to review each application permit, we estimate
that the costs of processing those applications would total $10
million over the 2004-2007 period.
Direct spending
Under H.R. 3148, eligible Alaska Natives could apply for
allotments on a wide variety of federal lands in Alaska,
including those that might produce offsetting receipts from
programs to develop natural resources. According to DOI, the
Secretary is unlikely to approve applications for allotments on
lands that are expected to generate significant receipts over
the next 10 years. Under the bill, it is possible that some
applications may be automatically approved on January 31, 2007,
even if the Secretary has not had sufficient time to review
them. However, any applications so approved would be subject to
valid existing rights; hence, we estimate that any forgone
offsetting receipts under H.R. 3148 would likely be
insignificant.
Intergovernmental and private-sector impact: H.R. 3148
contains no intergovernmental or private-sector mandates as
defined in UMRA and would have no significant impact on the
budgets of state, local, or tribal governments.
Estimate prepared by: Federal Costs: Megan Carroll; Impact
on State, Local, and Tribal Governments: Marjorie Miller; and
Impact on the Private Sector: Cecil McPherson.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
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 (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 41 OF THE ALASKA NATIVE CLAIMS SETTLEMENT ACT
OPEN SEASON FOR CERTAIN ALASKA NATIVE VETERANS FOR ALLOTMENTS
Sec. 41. (a) In General.--[(1) During the eighteen month
period following promulgation of implementing rules pursuant to
subsection (e), a person described in subsection (b) shall be
eligible for an allotment of not more than two parcels of
federal land totaling 160 acres or less under the Act of May
17, 1906 (chapter 2469; 34 Stat. 197), as such Act was in
effect before December 18, 1971.] (1) The period for filing
allotments under this Act shall end 3 years after the Secretary
issues final regulations under section 3 of the Alaska Native
Veterans Land Allotment Equity Act. A person described in
paragraph (1) or (2) of subsection (b) shall be eligible for an
allotment of not more than two parcels of Federal land totaling
160 acres or less.
[(2) Allotments may be selected only from lands that were
vacant, unappropriated, and unreserved on the date when the
person eligible for the allotment first used and occupied those
lands.
[(3) The Secretary may not convey allotments containing any
of the following--
[(A) lands upon which a native or non-native campsite
is located, except for a campsite used primarily by the
person selecting the allotment;
[(B) lands selected by, but not conveyed to, the
State of Alaska pursuant to the Alaska Statehood Act or
any other provision of law;
[(C) lands selected by, but not conveyed to, a
Village or Regional Corporation;
[(D) lands designated as wilderness by statute;
[(E) acquired lands;
[(F) lands containing a building, permanent
structure, or other development owned or controlled by
the United States, another unit of government, or a
person other than the person selecting the allotment;
[(G) lands withdrawn or reserved for national defense
purposes other than National Petroleum Reserve-Alaska;
[(H) National Forest Lands; and
[(I) lands selected or claimed, but not conveyed,
under a public land law, including but not limited to
the following:
[(1) Lands within a recorded mining claim.
[(2) Home sites.
[(3) Trade and Manufacturing sites.
[(4) Reindeer sites or headquarters sites.
[(5) Cemetery sites.]
(2)(A) Allotments may be selected from the following:
(i) Vacant lands that are owned by the United States;
(ii) Lands that have been selected or conveyed to the
State of Alaska if the State voluntarily relinquishes
or conveys to the United States the land for the
allotment.
(iii) Lands that have been selected or conveyed to a
Native Corporation if the Native Corporation
voluntarily relinquishes or conveys to the United
States the land for the allotment.
(B) A Native Corporation may select an equal amount of acres
of appropriate Federal land within the State of Alaska to
replace lands voluntarily relinquished or conveyed by that
Native Corporation under subparagraph (A)(iii).
(C) For security reasons, allotments may not be selected
from--
(i) lands within the right-of-way granted for the
TransAlaska Pipeline; or
(ii) the inner or outer corridor of that right-of-way
withdrawal.
* * * * * * *
(b) Eligible Person.--(1) [A person] Except as provided in
paragraph (3), a person is eligible to select an allotment
under this section if that person--
(A) * * *
[(B) is a veteran who served during the period
between January 1, 1969 and December 31, 1971 and--
[(i) served at least 6 months between January
1, 1969 and December 31, 1971; or
[(ii) enlisted or was drafted into military
service after June 2, 1971 but before December
3, 1971.
[(2) The personal representative or special administrator,
appointed in an Alaska State court proceeding of the estate of
a decedent who was eligible under subsection (b)(1)(A) may, for
the benefit of the heirs, select an allotment if the decedent
was a veteran who served in South East Asia at any time during
the period beginning August 5, 1964, and ending December 31,
1971, and during that period the decedent--
[(A) was killed in action;
[(B) was wounded in action and subsequently died as a
direct consequence of that wound, as determined by the
Department of Veterans Affairs; or
[(C) died while a prisoner of war.]
(B) is a veteran who served during the period between
August 5, 1964, and May 7, 1975, including such dates.
(2) If an individual who would otherwise have been eligible
for an allotment dies before applying for the allotment, an
heir on behalf of the estate of the deceased veteran may apply
for and receive the allotment.
(3) No person who received an allotment or has a pending
allotment under the Act of May 17, 1906 may receive an
allotment under this section, except for an heir who applies
and receives an allotment on behalf of the estate of a deceased
veteran pursuant to paragraph (2).
* * * * * * *
[(e) Regulations.--No later than 18 months after enactment of
this section, the Secretary of the Interior shall promulgate,
after consultation with Alaska Natives groups, rules to carry
out this section.]
(e) Regulations.--All regulations in effect immediately
before the enactment of subsection (f) that were promulgated
under the authority of this section shall be repealed in
accordance with section 552(a)(1)(E) of the Administrative
Procedure Act (5 U.S.C. 552(a)(1)(E)).
(f) Approval of Allotments.--(1) Subject to valid existing
rights, and except as otherwise provided in this subsection,
not later than January 31, 2007, the Secretary shall approve an
application for allotments filed in accordance with subsection
(a) and issue a certificate of allotment which shall be subject
to the same terms, conditions, restrictions, and protections
provided for such allotments.
(2) Upon receipt of an allotment application, but in any
event not later than October 31, 2005, the Secretary shall
notify any person or entity having an interest in land
potentially adverse to the applicant of their right to initiate
a private contest or file a protest under existing Federal
regulations.
(3) Not later than January 31, 2007, the Secretary shall--
(A) if no contest or protest is timely filed, approve
the application pursuant to paragraph (1); or
(B) if a contest or protest is timely filed, stay the
issuance of the certificate of allotment until the
contest or protest has been decided.
(g) Reselection.--A person who made an allotment selection
under this section before the date of the enactment of Alaska
Native Veterans Land Allotment Equity Act may withdraw that
selection and reselect lands under this section if the lands
originally selected were not conveyed to that person before the
date of the enactment of Alaska Native Veterans Land Allotment
Equity Act.
DISSENTING VIEWS OF REPRESENTATIVE GEORGE MILLER
While cloaked in a veil of sympathetic beneficiaries, this
legislation is fraught with substantive problems. By
resurrecting an old homesteading statute, the Allotment Act of
1906--which was repealed by Congress in 1971--H.R. 3148 would
allow any Alaska Native (or their heirs) who served in the
military anytime between 1964 and 1975 to freely select and
receive up to 160 acres of public land in Alaska. As a result,
several hundred thousand acres of pristine and valuable lands
could be conveyed out of public ownership, with several
thousand new private inholdings created in national parks,
national wildlife refuges, national forests, military
withdrawals and other important public lands in Alaska. Once
conveyed, such allotment lands may be developed or even sold
without restriction.
In 1971, the Alaska Native Claims Settlement Act granted
Alaska Native corporations over 44 million acres of land and
over $1 billion to manage on behalf of Native shareholders. In
1958, the Alaska Statehood Act provided the State of Alaska
over 104 million acres of land. Yet neither the Alaska Native
corporations nor the State have chosen to grant any of their
own lands to Native veterans of Vietnam or any other era as a
reward for their military service. Instead, H.R. 3148 seeks yet
again to make more private withdrawals from the bank of lands
that are owned by the United States for the benefit of all the
American people.
Congress has twice in recent years addressed the ``missed
opportunity'' equities of Alaska Natives who served in the
military just prior to the 1971 repeal of the Allotment Act of
1906 and who may have lost out on their opportunities to apply
because of that service. In 1998, a rider on the FY 99 VA-HUD
Appropriations bill (Public Law 105-276) restored eligibility
for a limited class of military veterans, those who served
between 1969 and 1971. In 2000, additional refinements and
technical changes were made (Public Law 106-559).
At that time, however, the Department of the Interior
stated that ``we are opposed to further changes or expansion of
the law, which we believe fully and fairly addresses the
problem of lost opportunity due to military service for Alaska
Native veterans of the Vietnam War to apply for allotments.''
And the Democratic floor manager stated that ``by allowing this
bill to proceed, it is our intent that this action is final and
that there will be no further extensions of land claims under
an act that was passed by Congress at the turn of the century
and repealed three decades ago.'' [See: Congressional Record,
October 10, 2000 at page H9616]
Unfortunately, H.R. 3148 would rewrite the 1998 and 2000
negotiated agreements, disregard the ``missed opportunity''
rationale and eliminate the eligibility criteria of the
original Allotment Act. The bill would substantially expand the
number of veterans, or their heirs, who could obtain lands, and
open public lands such as wilderness areas or the Tongass and
Chugach National Forests that are off-limits under current law.
In effect, it would sanction thousands of new claims on
virtually any federal lands in Alaska, without even any showing
of prior use or occupancy of the lands as was required under
the Allotment Act.
The substitute adopted at the committee markup does not
remedy any of the fundamental flaws of the legislation. It puts
the Trans-Alaska Pipeline corridor off-limits to new allotment
land grants, but fails to similarly protect Department of
Defense lands or other congressional designated reserves and
conservation areas. It allows Native corporations and the State
of Alaska to chose to convey lands for Native allotments, but
further undercuts and complicates public land management in
Alaska by providing that they will be reimbursed by the Untied
States with additional lands.
Even the Bush Administration testified in strong opposition
to H.R. 3148 at the June 5, 2002 full committee hearing. In a
June 21st letter, the Department of the Interior restated their
rationale for opposing the bill, noting that it ``essentially
makes the renewal of the opportunity to apply for an allotment
under the 1906 Allotment Act a special bonus or reward for
service for one class of Alaska Natives, those who served in
the Vietnam war, but no longer has any basis in missed
opportunity. * * * This bonus program, available only to Alaska
Natives and to no other veterans, also raises the possibility
of Constitutional challenge as to whether it may be an
impermissible preference.'' [See: Attachment A] An analysis
dated September 24, 2002 by the Congressional Research Service
states that ``it is possible that the courts might view H.R.
3148's extension of a benefit to Alaska Native veterans not
shared by all veterans or non-Alaska Native residents of the
State as describing a racial classification subject to strict
judicial scrutiny under the Equal Protection Clause.'' [See:
Attachment B]
Regardless of its potential Constitutional defects, H.R.
3148 is fundamentally bad public policy. It reopens and
exponentially expands the Allotment Act of 1906 that Congress
repealed in 1971 when it enacted the most generous land
settlement in United States history. It discards the equitable
missed opportunity premise underlying the negotiated agreements
of 1998 and 2000 and discards the protections in those laws to
expose wilderness areas, national forests and other valuable
public lands to privatization.
H.R. 3148 should not have been reported by the Committee on
Resources and it should be rejected if it comes before the
House of Representatives.
George Miller.
[ATTACHMENT A]
Department of the Interior,
Office of the Secretary,
Washington, DC, June 21, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter responds to your request for
the views of the Department of the Interior on H.R. 3148, which
would amend section 1629(g) of the Alaska Native Claims
Settlement Act (ANCSA), originally enacted as the Alaska Native
Vietnam Veterans Allotment Act of 1998 (Section 432 of Public
Law 105-276). The purpose of the 1998 Act was to redress
unfairness that may have resulted for certain Alaska Native
Veterans of the Vietnam War who may have missed an opportunity
to apply for an allotment under the 1906 Native Allotment Act
because of service in the armed forces immediately prior to the
repeal of the Allotment Act. The Allotment Act was repealed
with the enactment of ANCSA on December 18, 1971. The 1998 Act
gave qualified Vietnam veterans a renewed opportunity to apply
under the Allotment Act. This letter follows and confirms my
testimony to the Committee on June 5, 2002.
We certainly support the principle of equitable treatment
of Alaska Vietnam Veterans, and we have made every effort at
fairness under the 1998 Act. While we have made considerable
progress under the 1998 Act, we appreciate that there may be
frustrations among many Alaska Native veterans under the
current act, frustrations in that there are limitations on
eligibility and entitlements under the Act, frustrations about
time of administration, and frustrations in that all are not
entitled. We believe there may be a misconception among many
Native veterans that because they served, they are entitled to
an allotment. That was not the purpose of the 1998 Act.
The new bill, H.R. 3148, while it aims at fairness, raises
a number of serious new policy, management, and technical
concerns, and it would give rise to new issues of fairness with
respect to other Alaska Natives and other Vietnam veterans. It
would undo the important compromises reached in the passage of
the 1998 Act. It would stall, if not negate the progress made
so far under the 1998 Act, and it would disrupt ongoing
progress, settled land use arrangements under ANCSA and ANILCA,
and efforts to finalize land entitlements under ANCSA, the
Statehood Act, and the 1906 Allotment Act. Therefore the
Administration is opposed to H.R. 3148.
H.R. 3148 is a significant departure from the original
``missed oppostunity'' concept of the Alaska Native Vietnam
Veterans Allotment Act. H.R. 3148 extends the eligibility
period of the current Native Vietnam Veterans Allotment Act.
H.R. 3148 extends the eligibility period of the current law
from a three year period to the entire Vietnam Era, from 1964
to 1975, including four additional years after the 1971 repeal
of the Alaska Native Allotment Act, when other Alaska Natives
could no longer apply. Essentially, most if not all Alaska
Native Vietnam veterans, or the heirs of deceased veterans,
would appear to be eligible to apply for an allotment.
The 1998 Act limited military service eligibility to those
individuals who served between 1969 and 1971. The rationale
behind this limitation was the fact that that was the period
when missed opportunity because of service was likely to occur.
Also, there was a major effort by the Bureau of Indian Affairs,
Alaska Legal Services Corporation, the Rural Alaska Community
Action Program (RurAlCAP) and other entities during this period
to solicit the filing of Native allotment applications in
anticipation of the repeal of the 1906 Act. Those Alaska
Natives who were serving in the military during this period may
not have been able to benefit from the outreach effort.
Veterans who served prior to January 1, 1969, generally had the
same opportunities to learn about the Native allotment program
and to apply as any other Alaska Native. Those who served after
December 18, 1971, as with all other Alaska Natives, had no
further opportunity to apply for allotments because of repeal
of the Act. Neither group can be considered to have missed
their opportunity to apply for an allotment because of their
military service.
The new bill, H.R. 3148, essentially makes the renewal of
the opportunity to apply for an allotment under the 1906
Allotment Act a special bonus or reward for service for one
class of Alaska Natives, those who served in the Vietnam war,
but no longer has any basis in missed opportunity.
H.R. 3148 would thus discriminate and create inequities
between Alaska Native Vietnam veterans and Natives who did not
serve in the military, between Native veterans and non-Native
veterans, and between Native veterans with military service
during the Vietnam Era and Native veterans who served in World
War II, Korea, or other conflicts. This bonus program,
available only to Alaska Natives and to no other veterans, also
raises the possibility of Constitutional challenge as to
whether it may be an impermissible preference.
Progress under the current law
From the passage of the 1998 Act until the final
regulations were published, BLM conducted extensive outreach
efforts to reach potential Alaska Native Veteran Allotment
applicants. These efforts are detailed on the attached
appendix.
Section 432 of Public Law 104-276 required the Secretary of
the Interior to promulgate regulations within 18 months to
carry out the Alaska Native Veterans Allotment program. The law
also provided for an 18-month application filing period to
begin when the regulationsbecame effective. On February 8,
2000, following a series of public meetings to gather input from Native
groups, State and Federal entities, and private individuals and groups,
a proposed rule was published in the Federal Register. Following a 60-
day comment period, the final rule was published on June 30, 2000.
Revised regulations to implement the terms of a December 2000 amendment
to the 1998 Act were published in final form on October 16, 2001.
During development of the regulations to implement the 1998
Act, the BLM estimated that as many as 1,100 Alaska Native
veterans might be eligible to apply for allotments under the
provisions of that Act. This estimate was based on analysis of
the DVA data used to prepare the Department's 1997 Report to
Congress, and was inflated somewhat to account for the fact
that there were potentially eligible individuals who were not
identified by DVA.
The filing period for Native veterans allotment
applications began on July 31, 2000, and continued through
January 13, 2002. BLM received applications for 991 parcels of
land from more than 700 individual applicants. A majority of
the applications were received, and approximately 700 parcels
were claimed during January 2002, the last month of the filing
period. Many of the applications filed in 2000 and 2001 have
been rejected because of non-resident status, failure to meet
military service criteria, or application for lands that have
been conveyed or are not available. For applications involving
unavailable lands, BLM made every effort to identify those
applications as quickly as possible so that applicants who are
otherwise eligible could still have the opportunity to apply
for other land.
We do not know at this time how many of the applications
filed in January 2002 are legally sufficient or defective, in
part because we have had to concentrate our efforts on
serializing the large, late influx of new applications and
having them noted to the official BLM records. We note that
approximately 250 applications received at the end of the
filing period contained no land descriptions. Work is ongoing
on other veterans applications. Field examination and survey of
veterans allotment parcels are mixed in with existing schedules
for similar work on original applications filed under the 1906
Act.
Also pursuant to section 432 of P.L. 105-276, the
Department has submitted a report to the Congress on the status
of Alaska Vietnam veterans who served during a period other
than that specified for eligibility under section 432. The
report made an extensive survey of circumstances of Alaska
Vietnam veterans and reasons why they did not apply under the
Allotment Act, but it recommended against expanding the
eligibility period and raised no considerations consistent with
terms proposed by H.R. 3148.
Other problems with H.R. 3148
In addition to the fairness and potential Constitutional
problems noted above, the bill raises other serious concerns.
H.R. 3148 rescinds all regulations promulgated to implement
the current law
H.R. 3148 would repeal all regulations promulgated under
the Alaska Native Veterans Allotment Act of 1998, which
includes the original regulations published in the Federal
Register in June 2000 (43 CFR 2568) as well as the amended
regulations published on October 16, 2001, to implement the
changes made by Public law 106-559 in December 2000 (the
amended regulations became effective on November 15, 2001).
Eliminating the veterans allotment regulations would not only
leave BLM and the other land management agencies without any
guidance to implement the program, but it would also leave
applicants with no certainty of what is expected of them. These
regulations provide, among other matters, the guidance
essential for the processing of veterans allotment
applications, the rules governing compatibility determinations
for applications in Conservation System Units, the rules
governing appeals from different types of decisions, and
safeguards to State and ANCSA entitlements.
H.R. 3148 removes protections for certain lands provided
under the 1998 act
The change in the definition of available lands for
allotments from ``vacant, unappropriated, and unreserved'' to
``vacant lands that are owned by the United States'' raises the
question whether the prior requirements of the 1906 Allotment
Act still apply. Section (b)(1) of the 1998 Act, as kept under
HR 3148, would indicate that they do, but the new (a)(2) is
conflicting. If the term ``vacant land of the United States''
controls, then any vacant U.S. lands are open, including parks,
refuges, wilderness, and possible defense properties. CSU
protections may be rendered moot. Previously withdrawn lands,
including, for instance, Tongass National Forest, would
presumably become available. Further, H.R. 3148 proposes to
repeal 43 U.S.C. 1629g(a)(3), which protected numerous special
areas, including acquired lands, lands withdrawn for defense
purposes, National Forest lands, wilderness, campsites, trade
and manufacturing sites, lands containing buildings or other
development, cemetery sites, home sites, and more. Defense and
acquired lands would be available. For instance, since 1991,
the Fish and Wildlife Service has spent over 150 million
dollars acquiring land on Alaska's National Wildlife Refuges,
mostly from Native corporations and allotted. These newly
acquired lands would be available for Native veteran allotment
applications under this bill.
Additionally, H.R. 3148 may eliminate the standard
Allotment Act rules concerning use and occupancy of the land.
This changes previous tenets of law for occupancy of public
lands.
In a related issue, it is unclear whether H.R. 3148 would
eliminate the requirement of the 1906 Native Allotment Act that
an applicant must be a resident of Alaska. Allowing Native
allotments in Alaska for non-residents, many of whom have never
lived in Alaska, we believe would be totally contrary to the
intent of both the 1906 Act and the 1998 Alaska Native Veterans
Allotment Act. While we do not interpret the language in H.R.
3148 as eliminating the residency requirement, we wish to make
it clear that we are opposed to any effort to eliminate
thisrequirement and we object to any language which could be
interpreted to do so.
H.R. 3148 provides for legislative approval of all
applications eighteen months after the filing
deadline
This, combined with the rescission of the regulations,
virtually assures that most applications will be approved
without the regular review process and without the applicants
demonstrating that they used and occupied the claimed land in
accordance with the 1906 Native Allotment Act and remaining
regulations. Persons who do not meet the use and occupancy
requirements can apply for land secure in the knowledge that
becasue of short time frames and lack of regulations, BLM will
not be able to field examine and adjudicate most claims by the
deadline and most will ultimately be legislatively approved.
This will encourage wrongful claims and result in wrongful
conveyance of Federal land. It will also render ineffective the
protections provided to conservation system units (CSU's) by
Section (1)(a)(5) of the existing law.
Eligibility of all heirs of all decedents
Although the right to file an application under the 1906
Allotment Act did not survive the death of an individual, the
1998 Act, for the first time in the history of public land law,
allowed the filing of an allotment application by the personal
representative of the estate of a deceased veteran if that
veteran died in combat or as a POW during a certain period of
time or died later as a result of a service connected wound
received during that time. The military service eligibility
period for deceased veterans in Section 432 was January 1,
1969, through December 31, 1971; this period was expanded by
the December 2000 amendment to include the period beginning
August 5, 1964, and ending December 31, 1971. These provisions
were a carefully limited compromise from earlier pre-enactment
provisions that allowed all heirs to apply, strongly opposed by
the Department.
The lack of manageability of allowing all heirs to apply
can be illustrated by reference to one word, Cobell. At the
core of that now infamous law case is the essential
impossibility of tracking multiplying heirs and fractionated
heirships. H.R. 3148 would eliminate all reference to a
personal representative and would allow ``an heir'' to apply
for an allotment on behalf of the estate of a deceased veteran.
Many Native allotment applicants have numerous heirs, and many
estates of deceased Natives have never been probated so
heirship is unknown. H.R. 3148 would put the Department in the
business of attempting to determine eligible heirs, of having
to establishing the class of possible eligible heirs in order
to grant an allotment, and of risking, after such allotment
were granted, facing another claim by some other undiscovered
heir. Multiple potential heirs could apply on behalf of a
single estate, and if there is a dispute among heirs, BLM would
have to engage in the conflict.
When combined with the 18 month legislative approval, a
likely result of the heirship provisions is that several claims
could be approved for the same decedent, even if conflicting,
because necessary review would not be achieved in the 18
months.
Added to this is the inevitable additional difficulty of
proof of site and of use and occupancy through heirs, rather
than by the original occupant. There is substantial potential
for conflict, litigation, and delay of all allotment
applications by virtue of any heirship provision. The
Department is strongly opposed to any expansion of rights of
heirs to apply.
Unrealistic deadlines and impacts on current ANCSA, State,
and Allotment Act conveyances and on third party
interests
Because the work on new Veterans applications is
necessarily mixed in with current work on already pending
Allotment, State, and ANCSA applications the bill would result
in devastating impacts on BLM's ability to finalize State and
ANCSA land transfer entitlements and to complete conveyances to
other Alaska Natives under the 1906 Native Allotment Act.
We estimate that the potential exists for as many as 5200
parcels of land to be claimed under the expanded eligibility
provisions of H.R. 3148. H.R. 3148 would create a filing period
for applications ending on July 31, 2003. The bill also
contains a provision for approval of veterans allotment
applications and issuance of certificates of allotment ``not
later than January 31, 2005, that is, eighteen months after the
end of the filing period. This deadline is problematic for two
reasons: (1) it is unrealistic to expect as many as 5200
individual parcels of land to be adjudicated, examined,
surveyed, and conveyed in an eighteen-month period (survey
alone normally takes longer than eighteen months from issuance
of survey instructions and contracts to approval of survey
plats and field notes and notation of surveys to BLM records);
and (2) the deadline would necessitate that the processing of
veterans allotment applications be placed ahead of State
applications and other Native applications under the 1906 Act
and under the Alaska Native Claims Settlement Act.
BLM records show that more than 3100 parcels claimed under
the 1906 Allotment Act are still pending and awaiting final
disposition. Many of the applicants for these parcels have been
waiting for decades to receive title to their allotments.
Third party or adverse interests could be compromised by
the application and protest deadlines and automatic approvals
of allotment applications, resulting in potential takings,
since the Department will not have the time to identify all
third party interests in time to meet the protest requirements
of the bill and third parties may not be informed and be able
to protest and adjudicate their interests before an allotment
is approved.
These are some, but not all of the serious concerns raised
by the bill. We believe that the bill will cause far more
problems than it will solve.
The Office of Management and Budget advises that there is
no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Paul Hoffman,
Deputy Assistant Secretary for Fish, Wildlife, and Parks.
------
[ATTACHMENT B]
Congressional Research Service,
Washington, DC, September 24, 2002.
Memorandum
To: House Committee on Resources, Attention: Jeff Petrick.
From: M. Maureen Murphy, Legislative Attorney, American Law Division.
Subject: Potential Constitutional Issues in Connection with Providing
Allotments to Alaska Native Vietnam Era Veterans as Proposed in
H.R. 3148.
This responds to your request for information on potential
constitutional challenges that could be raised to H.R. 3148,
the Alaska Native Veterans Land Allotment Equity Act,\1\ whicih
the House Committee on Resources voted to report on September
12, 2002. As requested, our response will be limited to
identifying potential constitutional claims and describing the
standards that the courts might apply in deciding the issues
raised by them.
---------------------------------------------------------------------------
\1\ A bill similar to H.R. 3148, as introduced, is S. 2553,
introduced by Sen. Murkowski for himself and Sen. Stevens. 148 Cong.
Rec. S2553 (May 22, 2002).
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This legislation would amend the Alaska Native Vietnam
Veterans Allotment Act of 1998 (hereinafter, the Act),\2\ which
resurrected a 1906 law repealed by the Alaska Native Claims
Settlement Act of 1971 (ANCSA) \3\ for the limited purpose of
permitting Alaska Native veterans who had been serving in the
military during 1969, 1970, or 1971 to receive allotments of
public lands in Alaska. The amendment would broaden the class
of Alaska Native Vietnam Era veterans able to take advantage of
this law and liberalize the conditions under which allotments
may be granted.
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\2\ Pub. L. 105-276, Sec. 423, 112 Stat. 2516, 43 U.S.C. Sec. 1629g
(1998).
\3\ Pub. L. 92-203, 85 Stat. 688, 43 U.S.C. Sec. Sec. 1601 et seq.
---------------------------------------------------------------------------
You are specifically interested in exploring what the
Deputy Assistant Secretary of the Interior for Fish, Wildlife,
and Parks, may have meant, in a June 21, 2002, memorandum to
Chairman Hansen, by stating that the program contemplated by
this legislation ``raises the possibility of Constitutional
challenges as to whether it may be an impermissible
preference.'' We not that the memorandum to Chairman Hansen
does not elaborate on the reference to impermissible
preference; nor does it assert that such a challenge would
succeed. Whether such a challenge could succeed depends upon
whether the class that is given a preference is held to be a
suspect class, such as a class based on race, and whether in
enacting the legislation Congress meets the standard that the
courts will apply to the class distinguished for special
treatment. Obviously, the group that is given preferential
treatment in this legislation is comprised of Alaska Native
veterans, who served in the years covered by this amendment.
The reference in the memorandum, therefore, refers either to
the possibility that the class is race-based because it
consists of only Alaska Natives or to the fact that the
beneficial treatment is being accorded on an arbitrary or
capricious basis, rather than on a rational basis, to a group
of Alaska Natives rather than all Alaska Natives; to a group of
Vietnam Era Veterans rather than to all Vietnam Era veteran; or
to a group of veterans rather than to all veterans. Without
further specification, we can only speculate that this comment
directs your attention to the possibility that the legislative
history of this amendment would not provide a court sufficient
information to conclude that Congress has met the appropriate
standard for the legislation to survive equal protection
scrutiny.
The rationale behind the 1998 Act may not be easily
transferable to the current proposal. The 1998 legislation
appears to have been an attempt to remedy a perceived injustice
visited upon Alaska Natives who were eligible for allotments
under the 1906 act but were serving in the military immediately
prior to its repeal by ANSCA. The logic is that if they were in
military service, they might not have been fully able to take
advantage of the widely publicized \4\ last opportunity to
apply for an allotment.\5\ Remedying the situation addressed by
the 1998 legislation, therefore, would seem to comport with the
test the Supreme Court has applied to legislation that singles
out Indians or Indian tribes for preferential treatment in such
cases as Morton v. Mancari \6\ and Delaware Tribal Business
Comm. v. Weeks.\7\ Morton v. Mancari, the Supreme Court upheld
laws providing preferential BIA hiring for Indians, emphasizing
the breadth of Congressional authority in Indian affairs. It
indicated that laws providing preferential treatment for
Indians wojuld be upheld: ``[a]s long as the special treatment
can be tied rationally to the fulfillment of Congress' unique
obligation toward the Indians, such legislative judgments will
not be disturbed.'' \8\
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\4\ See 65 Fed. Reg. 6259 (February 8, 2000), describing efforts of
Alaska Native Advocacy groups to contact eligible Natives who had not
applied for allotments.
\5\ In introducing the legislation that gave rise to the 1998 Act.
Rep. Don Young set forth its remedial purpose: ``Alaska Natives, who
were in service to their country during the Vietnam War, missed their
opportunity to apply for a Native allotment under the Native Allotment
Act. Many were in war zones and others had not received their
application from the Bureau of Indian Affirs (BIA). It is my firm
belief that our Alaska Native Vietnam veterans merit the same rights as
other Alaska Natives under this act. It is morally wrong of our country
* * * to deny them the basic right afforded to other Alaska Native
citizens under this act. This legislation will correct this inequity
and give them the opportunity to apply for their allotment under the
Native Allotment Act.'' 143 Cong. Rec. E 2220, E 2221 (November 7, 1997
daily ed.).
\6\ 417 U.S. 535 (1994).
\7\430 U.S. 73 (1977).
\8\ 417 U.S. 535, 555.
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Whether that reasoning may be applied to H.R. 3148 with
similar force depends to some extent upon the justification
advanced in the legislative process. In enacting H.R. 3148, is
Congress remedying failures in the original legislation and,
thereby, acting as a trustee for the Alaska Natives whoe
opportunities for allotments were foreclosed by their military
service? If H.R. 3148 is merely providing an additional benefit
to Alaska Native VietnamEra veterans not made available to any
other Alaska Natives, Vietnam veterans, or veterans in general, the
legislative history, to be most persuasive to a court, should indicate
the reason for singling out those Alaska Native veterans in terms of
some trusteeship obligation to them. Even if there is a sufficient
showing of why Congress is obligated to provide this type of benefit
for these beneficiaries or why Congress, in exercising its trusteeship
powers in Indian affairs, has chosen to single this group out for
special treatment, there lurks another issue that the courts may choose
to address: how the enactment of ANSCA has altered Congress'
trusteeship relationship towards Alaska Natives.
H.R. 3148 would broaden eligibility for allotments under
the 1998 legislation by: extending the time period during which
military service would qualify an Alaska Native veteran for an
allotment; permitting allotments in some land not covered in
the 1998 legislation; removing various requirements in the
earlier legislation; and broadening the class of survivors able
to claim an allotment on the basis of a decedent. Among the
requirements removed are those specifying: (1) that the land be
``vacant, unappropriated, and unreserved on the date when the
person eligible for the allotment first used and occupied those
lands;'' \9\ and, (2) that the applicant for an allotment
provide the Secretary of the Interior with proof of
``substantially continuous use and occupancy of the land for a
period of five years.'' \10\ Under the amendment, any Alaska
Native veteran who served at any time in the Vietnam Era,
August 5, 1964 to May 7, 1975, who is determined to meet the
qualifications of the 1906 Act as it existed upon repeal, would
be eligible. Moreover, survivors of such veterans would be able
to apply. \11\
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\9\ 43 U.S.C. Sec. 1629g(a)(2).
\10\ Act of May 17, 1906, ch. 2469, 34 Stat. 197, as amended and
codified at, 43 U.S.C. Sec. Sec. 270-1 to 270-3, prior to repeal by
Pub. L. 92-203, Sec. 18(a), 85 Stat. 710 (ANSCA) and incorporated by
reference into Pub. L. 105-559, Sec. 301. (hereinafter, the 1906 Act).
\11\ According to Rep. Young, who introduced this legislation,
these are viewed as ``obstacles'' to the allotment process. 147 Cong.
Rec. E 1894 (October 15, 2001).
---------------------------------------------------------------------------
There are other liberalizing features in the proposal, some
of which may be viewed as corrections of defects in the earlier
legislation and the regulatory regime implementing it. The
proposal requires repeal of the entire set of regulations
issued under the 1998 law, indicating dissatisfaction with how
the earlier remedial legislation had been implemented. Among
the changes that might be seen as remedies for the failure of
the current regulatory process of issue allotments
appropriately is an extension of the time for filing
applications. The proposal permits applications for 3 years
after the Department of the Interior (DOI) issues final
regulations. Current law provided an 18-inch period that ended
January 31, 2002.\12\ Another is an expansion of the available
lands. The current law limits the lands available for
allotment. For example, it excludes campsites, wilderness
areas, lands containing buildings owned other than by the
person selecting the allotment, lands withdrawn for national
defense purposes, national forest lands, and lands selected or
claimed under a public land law, or lands selected by the State
of Alaska or a Native Corporation and not conveyed.\13\ H.R.
3148 specifies only that selections of allotments may not be
made from lands within the Trans-Alaska Pipeline right-of-way
and the inner corridor of that right-of-way withdrawal. The
current law provides for limited survivor's benefits for the
estates of decedents who served in South East Asia at any time
from August 5, 1964 to December 31, 1971, and were killed in
action or died from a wound received in action or as a prisoner
of war, and requires application be submitted by the
administrator or personal representative appointed by an Alaska
state court.\14\ The proposal would permit heirs of any
eligible Alaska Native Vietnam Era veteran to apply for the
allotment on behalf of the estate.
---------------------------------------------------------------------------
\12\ 43 C.F.R. Sec. 2568.70, as promulgated 65 Fed. Reg. 40954,
40963 (June 30, 2000).
\13\ 43 U.S.C. Sec. 1629g(3).
\14\ 43 U.S.C. Sec. 1629g(b)(2).
---------------------------------------------------------------------------
Given that the enlargement of the class of persons who may
apply for allotments does not appear to be based upon the
rationale behind the original legislation, the legislative
history of the current proposal is likely to be scrutinized by
a court that uses the Morton v. Mancari test and attempts to
determine whether H.R. 3148 is legislation that is ``tied
rationally'' to a trust obligation to Alaska Natives. It would
appear that at least two factors would be important to such an
inquiry: (1) any documentation in the legislative history with
regard to the intention of Congress and (2) how the court
assess the trust obligation of Congress with respect to Alaska
Natives in light of the enactment of ANSCA.
At present, without publication of a Report by the
Committee, the leading piece of legislative history for H.R.
3148 is Rep. Don Young's statement upon introducing the bill.
In it, he identified the problem: ``Many Alaska Native Vietnam
veterans'' who saw the 1998 Act ``as their last opportunity to
obtain land which had been used by their families for
generations for subsistence purposes'' ``lost'' that
opportunity because they ``were excluded by the terms of * * *
[the 1998 Act] * * *''\15\ He identified three obstacles to the
allotment process that his legislation sought to address. Only
two of these appear to be defects in the 1998 legislation with
respect to its intended beneficiaries: lack of available land
and proof of use of the land continuously for five or more
years. Under the amendment, these corrections would modify
requirements of the 1906 law as incorporated into the 1998
legislation. Were H.R. 3148 confined to these provisions, the
same rationale that serves for the earlier legislation might be
applied to it. Increasing the available land and eliminating
the continuous usage requirement arguably go to the missed
opportunity of those serving in the military before the cut off
date. This might be seen as nothing more than fine tuning the
earlier legislation to prevent military service from impeding
eligibility for an allotment.
---------------------------------------------------------------------------
\15\ 147 Cong. Rec. E 1894 (October 16, 2001). The number of
veterans so situated was estimated by Rep. Young to be 1,700.
---------------------------------------------------------------------------
The third obstacle is another matter, permitting all
Vietnam Era Alaska Native veterans to apply for a missed
opportunity allotment. In presenting H.R. 3148, Mr. Young
emphasized the expanded dates in terms of veterans' benefits,
rather than fairness to those whose military service impeded
their applications before the cut off date. He stated:
The expansion of military service dates to include
all Alaska Native Vietnam veterans who served in the
military during the Vietnam conflict is consistent with
the federal government's policy of providing benefits
to all veterans for the Vietnam conflict and not just
to some of those veterans. This provision also fulfills
the trust obligation to Alaska Natives. The limited
military service dates have excluded many Alaska Native
Vietnam veterans who bravely served during the Vietnam
conflict. Never before has the United States given
veteran land benefits to only a portion of those who
served their country. The federal government has given
public land benefits to all veterans (or their widows
or heirs) of every war beginning with the Indian Wars
of 1790and ending with the Korean conflict in 1955. As
Members will recall, Alaska Native veterans were not eligible for these
public land benefits until 1924 because the courts had determined
Alaska natives were not United States citizens.\16\
---------------------------------------------------------------------------
\16\ Id., at E 1895.
The key difference between the 1998 law and H.R. 3148 seems
to be that the ending date for military service that determines
eligibility in the 1998 law roughly \17\ coincides with the
date that ANSCA was enacted and the 1906 allotment process was
repealed. The dates of military service in the proposal are not
coordinated to the repeal of the allotment process but to the
Vietnam Era. This difference may open the way for a court to
look at the issue of what trust obligation exists toward Alaska
Natives following the enactment of ANSCA.
---------------------------------------------------------------------------
\17\ ANSCA was effective December 18, 1971; military service until
December 31, 1971, could be used to determine eligibility under the
1998 Act, provided the veterans had served at least 6 months between
January 19, 1969, and December 31, 1971, or enlisted or was drafted
after June 2, 1971 but before December 3, 1971. 43 U.S.C.
Sec. 1629g(b)(B).
---------------------------------------------------------------------------
Federal laws granting preference to Indian tribes have been
upheld under the Morton v. Mancari standard provided they are
found to be rationally related to the trust obligation of the
federal government toward Indians. Until the passage of ANSCA,
the existence of that trust obligation was generally
unquestioned. Beginning with the treaty by Alaska Natives to
the Indian affairs authority of Congress,\18\ all branches of
the federal government have treated Alaska Natives analogously
to Indians as objects of a federal trust relationship. One of
those efforts was in the direction of providing land for their
occupancy and subsistence in legislation such as the 1906
Alaska Natives Allotment Act and the 1926 Alaska Natives
Townsite Act, as well as in instances of administratively
established land reserves for Alaska Natives.\19\ The courts
have been hospitable to the exercise of trusteeship powers by
the federal government with respect to Alaska Natives.\20\
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\18\ ``The uncivilized tribes will be subject to such laws and
regulations as the United States may, from time to time, adopt in
regard to aboriginal tribes of that country.'' Act of March 30, 1867,
Art III, 15 Stat. 539, 542.
\19\ See U.S. Department of Interior, Alaska Native Claims
Settlement Act (ANSCA): ANSCA 1985 Study: June 29, 1984 Draft I-23
(1985).
\20\ See, e.g. Alaska Pacific Fisheries v. United States, 248 U.S.
78 (1918); Territory of Alaska v. Annette Island Packing Co., 298 Fed.
671 (9th Cir. 1923), cert. denied, 26 U.S. 708 (1923); In Re Sah Quah,
31 F. 327 (D.Alaska 1886).
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The recent case, Alaska v. Native Village of Venetie Tribal
Government,\21\ may presage a change in that perspective,
however. In Venetie, a unanimous Supreme Court rules against an
Alaska Native entity, the Native of Village of Venetie Tribal
Government, in its assertion of taxing authority. In reaching
this conclusion, the Court construed various provisions of
ANSCA as well as the federal Indian country statute, 18 U.S.C.
Sec. 1151. Although the case did not present the issue of
federal trusteeship over Alaska Natives or the existence of a
government-to-government relationship between the United States
and Alaska Native entities, the Court may have indicated a
certain attitude to those issues. For example, it quoted
extensively from provisions of ANSCA alluding to a change in
the nature of the federal relationship after passage of the
claims settlement legislation in 1971. For example, citing 43
U.S.C. Sec. 1601(b), the Court stated:
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\21\ 522 U.S. 520 (1998).
In enacting ANSCA, Congress sought to end the sort of
federal supervision over Indian affairs that had
previously marked federal Indian policy. ANSCA's text
states that the settlement of the land claims was to be
accomplished ``* * * without establishing any permanent
racially defined institutions, rights, privileges, or
obligations [and] without creating a reservation system
or lengthy wardship or trusteeship'' \22\
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\22\ 522 U.S. 520, 523-524 (emphasis in the original)
Even before Venetie, claims of governmental powers by
Alaska Native entities have not received full endorsement by
the courts.\23\ Central to Morton v. Mancari is the Court's
view of the political, government-to-government relationship
between the federal government and the Indian tribes. Although
whether such a relationship has been affected by ANSCA has not
been determined by the courts, the effect of the Venetie
decision, if not its precise holding, may be viewed as
undermining the notion of Indian sovereignty for Alaska Native
entities.\24\ Against this backdrop, it is possible that the
courts might view H.R. 3148's extension of a benefit to Alaska
Native veterans not shared by all veterans or non-Alaska Native
residents of the State as describing a racial classification
subject to strict judicial scrutiny under the Equal Protection
Clause.\25\ Strict scrutiny generally requires that challenged
legislation serve a ``compelling'' governmental interest and
that it do so by ``narrowly tailored'' means. The Supreme Court
has recognized that the federal government has a compelling
interest in remedying ``lingering effects'' of past
discrimination against a protected group. The nature and level
of proof that must be advanced by the legislature in support of
a remedial racial classification remain largely unsettled,
however.\26\ Moreover, whether a traditional remedial rationale
even applies may be questioned where the reason for preferring
all Alaska Native Vietnam Era veterans, regardless of years of
service abroad, over other Alaska Natives or other veterans has
yet to be fully fleshed out. The bill's preference for Alaska
Native Veterans may also call for a showing by the government
that it is a necessary and effective vehicle for accomplishing
a congressional purpose that may not be accomplished by race
neutral means. This ``narrowly tailored'' aspect of strict
scrutiny is generally designed to curb legislative overbreadth
and confine the scope of any racial classification to the
particular purpose sought to be served
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\23\ See, e.g., Kake Village v. Egan, 369 U.S. 60 (1962);
\24\ See, John R. Bielski, ``Comment: Judicial Denial of
Sovereignty for Alaskan Natives: An End to the Self-Determination
Era'', 73 Temple L. Rev. 1279 (2000).
\25\ Adarand Constructors v. Pena, 515 U.S. 200 (1995).
\26\ E.g., Rothe Development Corp. v. U.S. Department of Defense,
262 F.3d 1306 (Fed. Cir. 2001).
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We hope this information assists you and that you will call
upon our office should you need further assistance.
M. Maureen Murphy,
Legislative Attorney.