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Alaska Federation of Natives Newsletter
Volume VI, Number Two, April 20, 1987
Published by the Alaska Federation of Natives, Inc.

Alaska Federation of Natives Newsletter, Volume VI, Number Two, April 20, 1987. Used with permission of Alaska Federation of Natives, for educational purposes only.

CONTENTS

House passes 1991 Amendments

President's Message

AFN Land Manager's Report

1991 Amendments: a thumbnail sketch of H.R. 278

Table of 8 original 1991 Resolutions

ANC details changes needed in H.R. 278

Why 1991 Amendments are necessary this year

AFN Board hosts reception for governor, Legislature

AFN trounces Legislature, 96-80

AFN Board of Directors

House passes 1991 Amendments

Measure now moves to U.S. Senate

The U.S. House of Representatives passed AFN's 1991 amendment package to the Alaska Native Claims Settlement Act on March 31. The bill, H.R. 278, was introduced by Alaska Congressman Don Young, and passed without amendment by unanimous consent.

Congressman Don Young, in his address to House colleagues urging passage of the bill, stressed that H.R. 278 had nothing to do with tribal sovereignty.

"It deals solely with stock and land ownership," he said. "These are ownership issues of private individuals and corporations, not governments.

"The bill does not affect government powers, it does not grant new lands or funds and it does not have any significant fiscal impact on the federal government," Young said.

Congressman Morris Udall of Arizona, Chairman of the House Interior and Insular Affairs Committee, which approved a bill identical to the one it passed out during the last session, also had something to say about the issue of 1991 and the concerns of tribal sovereignty advocates.

"The central purpose of this bill is to deal with the so-called "1991" issue. Under the Alaska Native Claims Settlement Act, the stock issued to Alaska Natives will become alienable on December 18, 1971. The prospect of the wholesale loss of their stock is extremely alarming to the Natives," Udall said.

"Unfortunately, the controversial question of the continued existence of tribal entities in Alaska has become a focal point of this legislation. . . I want to reiterate my position that neither ANCSA as passed nor these proposed amendments affect in any way the question of whether there continue to be tribal entities in Alaska."

The legislation will now go over to the Senate, where Sens. Ted Stevens and Frank Murkowski are said to be pressing for quick action on the measure. The legislation will be assigned to the Senate Energy and Natural Resources Committee, where a similar measure died during the last session. Sen. Murkowski, a member of the committee, has said he will request committee hearings on the legislation, and on a substitute measure to be developed over Congress' Easter recess.

The Alaska senator told the Anchorage Daily News he expected the Senate substitute for H.R. 278 to "pretty much" resemble the Senate measure approved by the committee last year, but voted down by AFN annual convention delegates by a margin of 2-1.

"I do not intend to support any legislation that would foster, in any manner or form, sovereignty," Murkowski said.

Murkowski also said the success or failure of a bill this year to address the 1991 concerns may depend more on whether or not Natives can reach a consensus than on efforts in the House or Senate.

One of the key sticking points to acceptance of the legislation by the Native community last year was the inclusion of a strong anti-tribal disclaimer in the section which would make it easier for corporate shareholders to transfer land and other assets to non-profit, tribal or other entities.

Other provisions which greatly compromised Native support for the measure were those requiring regional corporations to pay fair market value to shareholders who exercised dissenter's rights; and one which would have allowed municipal governments to assess back taxes on Native lands at the time of their development.

The bill which emerged from the House last month has been criticized by many for its complexity, but its basic provisions would:

Allow corporate shareholders to determine if and when to lift restrictions on the sale of their ANCSA stock.

Allow shareholders to issue new stock to Native children born after 1971, elders, and those Natives who missed the original enrollment.

Automatically protect undeveloped Native land from loss due to debt, bankruptcy, judgement, or squatter's rights.

Automatically exempt all undeveloped Native land from taxation.

Ease the procedural difficulties in land or other asset transfers from ANCSA corporations to non-profit organizations or tribal governments.

The provisions of H.R. 278 are based upon the eight original resolutions passed by delegates to the AFN Special 1991 Convention in March of 1984. The resolutions identify the problem areas with ANCSA, and direct AFN to seek legislative amendments to protect Native land and stock, and to incorporate into the settlement those Natives born after 1971, who received no stock or other stake in the settlement.

The Alaska Native Claims Settlement Act of 1971 granted fee simple title to Alaska Natives of some 44 million acres of land. It also directed the state and federal governments to disburse almost $1 billion over a period of 12 years for the capitalization of 12 regional and over 200 village corporations. Native people each received stock in the regional corporation of their choice, and one of several village corporations within that region.

Under the terms of ANCSA, the stock could not be sold or lost for a period of 20 years. Land received by the corporations was similarly protected for 20 years after it was conveyed.

But the protections on the stock will be lifted automatically on Dec. 18, 1991. Many Native people fear that sale or loss of the stock will result in loss of the Native land base, which was made an asset of the respective corporations.

The Act has already been specifically amended six times.

 

President's Message:
1991 bill must be passed this year

by Janie Leask, President, Alaska Federation of Natives

We at AFN are pleased to be able to report that the U.S. House of Representatives has passed H.R. 278 to amend the Alaska Native Claims Settlement Act. We are once again indebted to Congressman Don Young for his dedication and hard work in getting the legislation through the House. Our thanks to Congressman Young, and also to Congressman Morris Udall, Chairman of the Interior and Insular Affairs Committee.

AFN has recently begun a series of radio call-in shows through the cooperation of public radio stations around rural Alaska. We hope that these shows will go a long way towards providing Alaska Natives in the rural areas about the legislation and how it will affect them.

Our outreach has thus far involved the AFN Newsletter, articles in the Tundra Times, Alaska Native News Magazine, our biweekly column in the Anchorage Times, the radio call-in shows and various speaking engagements around the state.

We are also in the process of producing a slide presentation on the 1991 issue to be transferred to videotape and distributed statewide later this year. We hope that you will find our efforts through the various media informative and thought-provoking.

Other noteworthy developments on the 1991 legislative process include the establishment of a full-time AFN presence in Washington, D.C. Special Assistant Julie Kitka has relocated to the nation's capital, where she will be coordinating AFN's lobbying efforts on behalf of the 1991 Legislation.

Here is a progress report on the AFN-sponsored legislation presently before the Congress:

Following the mandate issued delegates to the 1986 convention, AFN, working with members of the Alaska Native Coalition, drafted a bill which contains everything Native people would like to see in a 1991 bill. At the Juneau meeting of AFN's Full Board in February, the board instructed AFN to try to get as many of the provisions contained in the AFN/ANC bill into the House bill as were possible without jeopardizing the gains already contained in the House version.

We then travelled to Washington, D.C., and met with Congressman Don Young and Congressman Morris Udall, Chairman of the House committee on Interior and Insular Affairs. They advised us that seeking any amendments in the House could open the bill to amendment by other parties, who stood ready to introduce amendments on behalf of the National Rifle Association and the environmental community. Amendments from those groups would have been harmful to the intent of our legislation, and might have killed any chance of getting a bill this year.

It was at that point that we made a judgement that to offer any amendments, regardless of their merit, would jeopardize passage of the bill by the House, and we didn't feel we could take that risk.

At that point, AFN and the ANC decided to go our own separate ways on legislative strategy in the House. ANC felt very strongly that they needed to get amendments on the House side, while we felt that opening the bill up to amendments would hurt our chances of getting legislation. We also knew that we would have another opportunity to get changes on the Senate side.

Congressman Udall, Chairman of the House Interior and Insular Affairs Committee and a staunch supporter of tribes, also recognized the importance of getting a good bill passed out of the House, and said in a prepared statement at the bill's mark-up, "Unfortunately, the controversial question of the continued existence of tribal entities in Alaska has become a focal point of this legislation. Proponents on both sides of this issue have sought to use this legislation to further their positions. The Alaska Native Coalition is concerned that H.R. 278 is not neutral on that point and have strongly urged that amendments be adopted. While I can sympathize with their concerns, I believe that it is important to report this bill without amendment so that the primary goal of dealing with the 1991 issue can be met."

The congressman went on to add: "However, as one of the two committee members who was here in 1971 when ANCSA was considered and passed, I want to reiterate my position that neither ANCSA as passed nor these proposed amendments affect in any way the question of whether there continue to be tribal entities in Alaska."

With that statement, the bill passed out of committee on March 18 and was in turn unanimously passed by the House of Representatives on March 31.

Our attention now turns to the Senate, where we will face many of the same thorny issues as we did during the closing days of the last session. During the House hearings, the Secretary of Interior made his opposition to the bill public through a letter to Congressman Udall.

In his letter, the Secretary indicated that it was extremely unlikely that Interior would give even as much ground as they did in last year's bill. He said, in part: "As you may know, we worked with the Senate, the Alaska Federation of Natives, and other Alaska interests in the 99th Congress to modify the predecessor to this bill to reflect our concerns. At that time, we reluctantly agreed to a tentative compromise on this proposal, subject to its acceptance by AFN, which involved major changes not reflected in H.R. 278. This compromise was rejected by AFN at its convention by nearly 2-1. Therefore, we are no longer in a position to accept even that version of amendments to the original act."

In other words, as he told us at the end of last year, "All bets are off."

The opposition of the Secretary stems from his deep philosophical belief in the primacy of individual rights over group rights. He feels the bill is unfair to individuals who may wish to sell their stock. He believes that dissenter's rights should be mandatory.

Interior also objects to the provision in the bill which would automatically extend the period of stock restrictions, unless lifted by shareholder vote. Their preference is to lift the restrictions in 1991 and then require those corporations who want to reinstitute them to vote to do so.

Interior insists that dissenter's rights be mandatory. This would mean that all those who disagree with the majority's decision to keep the stock restricted could require the corporation to buy back their stock at fair market value.

Secretary Hodel also feels that issuance of stock to Natives born after 1971 would dilute the value of the settlement for existing shareholders. He proposes the issuance of "life-estate stock," to our young people, which would revert back to the corporation upon their death, and could not be inherited.

Finally, the Secretary is committed to a decidedly non-neutral disclaimer in the section of the bill which deals with land and asset transfers to non-profits, IRA's or traditional councils. This disclaimer is supported by Sens. Stevens and Murkowski.

It was the inclusion of these objectional provisions which led delegates to last year's convention to reject the Senate bill. So where are we now, as the process begins in the Senate?

In a joint meeting with the majority staff of the Senate Energy and Natural Resources Committee, AFN and ANC presented the AFN/ANC bill and discussed the changes we would like to see in the House-passed bill.

We were told that there will probably be a Senate substitute bill offered by Sen. Murkowski which would include many of the provision in last year's bill. We were told that the 1991 legislation will not address the issue of Native sovereignty, and that to attempt to do so would kill the bill.

We were also told that a hearing on the legislation would take place sometime before the end of June in Washington. The hearing will address H.R. 278 and the Senate substitute measure.

AFN is committed to getting a 1991 bill passed this year which contains as many of the provisions in the AFN/ANC bill as possible. We need a 1991 bill passed this year; there is so much work ahead of us — educating shareholders about the options this legislation will open up for them — that we cannot afford to delay another year.

 

AFN Land Manager's Report:
ALUC represents an opportunity for landowners

by Larry Kimball, Land Manager, Alaska Federation of Natives

Alaska has been the target of two historic land laws: the Alaska Native Claims Settlement Act (ANCSA) and the Alaska National Interest Lands Conservation Act (ANILCA). These two laws will forever change land ownership patterns in Alaska. Perhaps an equally important fact is that these laws will change how millions of acres of public land are managed and thus made available for private and public use. In particular, federal land management decisions made in the implementation of ANILCA will have long-lasting impacts on state and Native land and resource development.

For the most part, ANCSA focused on identifying and transferring land to Native ownership. Certain requirements, such as 14(c) reconveyances, passed land ownership to other than the Native community, but those conveyances represent comparatively few acres within the overall settlement. The federal role in ANCSA is primarily one of overseeing a process of title transfer.

On the other hand, ANILCA placed millions of acres of federal land into more intensive federal management. Large tracts of federal land that were managed under a general purpose concept prior to ANILCA are now reclassified into Conservation System Units (CSU's) such as National Parks and Wildlife Refuges. The CSU's created or added to national parks and preserves, wildlife refuges, wild and scenic rivers, national forests, conservation and recreational areas. The federal role in ANILCA is primarily one of land management.

Federal agencies assigned to manage these newly classified areas under ANILCA include the National Park Service, U.S. Fish and Wildlife Service, U.S. Forest Service and Bureau of Land Management.

These four land managing agencies carry out their responsibilities by developing and using a number of standard land management tools. These tools include the development of policy, regulations, land exchanges, general management plans, cooperative management agreements and land bank agreements, to name a few. When federal agencies develop and use these tools they are, in effect, making decisions and establishing policy that will influence and impact other land interests throughout Alaska.

For example, a federal decision related to access may limit someone who has an inholding in a National Park from fully using his property. It may disallow or severely limit subsistence practices where a valid right to such activities exists.

Or it may curtail a resource development activity which in turn impacts the state economy.

Given the vast amount of federal influence in land management responsibilities assigned by ANILCA, it was only appropriate that the drafters of the Act create the Alaska Land Use Council (ALUC). Federal land management decisions made in ANILCA's implementation will have long-lasting impacts on state and Native land and resource development. There was a recognized need to establish a formal structure that would not dictate policy, but rather offer an opportunity to the state and Native community, as major landowners, to take part in federal land management activities.

The council is charged with fostering cooperation and coordination between federal, state and Native landowners in the management of private and public land. It has the added responsibility of performing oversight functions upon the federal implementation of ANILCA.

The Council is co-chaired by the governor of Alaska and a federal appointment made by the president.

In addition to the two co-chairmen, the council has four commissioners representing state agencies, six regional directors of federal agencies and two members representing ANCSA Native corporations. All members are individuals delegated the responsibility of providing input to, and implementing policy at, all levels of land and resource management in Alaska. The authority and resources available to council members is unprecedented anywhere else in the state. There is no other forum that offers the state of Alaska and the Native community the opportunity to not only influence federal land and resource management decisions, but to cooperatively set the agenda of issues to be addressed.

The impact of federal land management decisions is oftentimes extended beyond immediate, short-range concerns to long-range issues that directly influence future economic development opportunities. As such, there is a need for all interested parties to have input into federal land management decisions and not just at the general level of public meetings.

The opportunity is there in the council. There need only be a genuine effort by all parties to make it work.

 

1991 Amendments: a thumbnail sketch of H.R. 278

With the passage of H.R 278 by the U.S. House of Representatives, there is a need for greater understanding of the basic provisions of the bill by Alaska Natives. This article is offered in the spirit of providing that information. This article is not intended to be definitive. Those wishing a more detailed or complete analysis of the bill should acquire a copy of the legislation itself, along with its Report.

The information provided here is also not intended to follow the order of the bill, section-by-section; it is arranged to show how specific concepts within the legislation address the core issues of "1991," and respond to directives from delegates to the AFN Special 1991 Convention and the 8 Resolutions adopted by them at that time.

Congressional Findings

The first portion of H.R. 278, the 1991 legislation to amend the Alaska Native Claims Settlement Act, is comprised of the title of the bill, its purpose, and what are called the "Congressional Findings." Congressional Findings are the given reasons that the bill is necessary.

In H.R. 278's findings, Congress finds that the intent of ANCSA was to be a fair and just settlement of claims by Alaska Natives based on their aboriginal use and occupancy. The settlement, says Congress, was to address the real social and economic needs of Natives, and that this was to be done in a manner which allowed maximum participation by the Natives themselves in the running of their affairs.

Congress also finds that the corporate model set up to administer the claims is "frequently ill-adapted" to the realities of village life and the values of Alaska's Native people.

Congress also points out in this section that while the settlement was originally intended to be implemented in a rapid manner, that the complexity of the act and the issues involved delayed implementation to the point that the settlement's value to Natives was significantly diminished.

In order to allow Natives the maximum participation in the administration of their assets, then, Congress states that it will be necessary to provide them with enough options to suit each Native corporation's particular circumstances and needs. Congress intends these options to encompass such matters as how best to include those Native children born after 1971 into the settlement; whether a business corporation is the appropriate entity to hold legal title to their land and other assets; and whether or not to continue restrictions on the sale of stock to non-Natives.

The last of Congress' findings is that ANCSA, as amended, and the amendments themselves are "Indian legislation," meaning, in effect, that they pertain to a special group of people with special rights, granted by virtue of Congress' plenary (absolute) authority under the Commerce Clause of the U.S. Constitution to regulate Indian affairs.

New Definitions

Some of the changes offered in this section are technical in nature; one which may be helpful in understanding explanations of later sections of the act is the definition of "Native Common Stock," which is simply a new name for the restricted stock issued to Natives under ANCSA.

Another is "descendant of a Native," which means "a lineal descendant of a Native or of an individual who would have been a Native if he or she were alive on December 18, 1971, or an adoptee of a Native or descendant of a Native whose adoption is recognized at law or in equity."

Alienability Restrictions on Native Common Stock
(fulfills AFN 1991 Resolution #02)

The rights and restrictions on Native Common Stock (the original stock issued by ANCSA regional and village corporations pursuant to the Act) are spelled out in this section. The rights which go with such stock include the right to vote in elections for the Board of Directors and other matters shareholders would commonly participate in; the right to receive dividends and distributions; and all other shareholder rights of Alaska business corporations.

The restrictions attendant on Native Common Stock, until they are lifted or otherwise expire, protect that stock from sale; pledge; lien or judgement; assignment; bankruptcy; or other alienation.

Exceptions to the protections above apply in cases of divorce, separation and child support decrees if the court awards such to a Native or a descendant of a Native. They also do not apply in the case of an inter vivos (literally, "between living persons") transfers by shareholders in order to avoid conflicts of interest.

These restrictions on stock transfer will remain in effect, says H.R. 278, until they are removed by a shareholder's vote.

This section of the bill also spells out the procedures for lifting restrictions on the sale or transfer of stock. If the legislation passes, most of the regions and their villages will have the option to lift the restrictions under the regular "opt-out" route, that is, the legislation will automatically extend the restrictions, and those corporations wishing to lift them must vote to do so.

The "opt-out" procedures are described below:

 

8 Original 1991 Resolutions
(adopted March of 1985)

01 Procedures "Whenever a corporation is given an option . . . the option shall be exercised by a vote of the corporation's shareholders . . ."
02 Continued Stock Restrictions "ANCSA should be amended to eliminate the provision for allowing stock alienation after 1991 . . ."
03 Corporate Repurchase of Stock "ANCSA . . . should allow corporations to purchase their own shares before 1991 and during any subsequent period of stock alienability . . ."
04 New Stock Issuance ". . . (E)ach corporation (should have) the option of offering additional stock to Natives, leaving the price . . . up to the corporation . . ."
05 No Stock to Non-Native/Non-Descendants "ANCSA . . . should prohibit transfer of stock by any means to non-Natives who are not descendants of Natives during any period in which . . . stock is subject to alienability restrictions . . ."
06 Stock Voting Rights for Descendants Amend ANCSA "to give each corporation the option of granting voting rights to shareholders who are descendants of Natives . . ."
07 Land Protections "All land held by ANCSA corporations will automatically be granted Land Bank protections . . ."
08 Transfer of Assets "ANCSA should be amended to authorize transfer of corporate assets to another entity . . ." (plus disclaimer)

Anytime after the enactment of the 1991 legislation, whether it is passed before or after 1991, the Board of directors of a corporation may choose to adopt a resolution to terminate restrictions (in other words, to allow the sale of stock). This can be done on the Board's own motion, or as a result of a shareholder petition.

If it is done by shareholder petition, then the petition must be signed by holders of at least 33 1/3 percent of all outstanding shares with voting rights. If the petition is properly prepared and submitted, the Board must submit the proposal to a shareholder vote. The Board may also choose to submit its own supporting or opposing statement and/or an alternative resolution for the shareholders' consideration.

The Board must submit the resolution to an annual or special shareholders meeting. The resolution must tell shareholders the date or the specific events which will terminate the restrictions. Written notice must be sent to every recorded shareholder with voting rights at least 50 days and not more than 60 days before the meeting at which the resolution will be considered.

In order for the resolution to be adopted, it must be approved by a majority of all outstanding shares of Native Common Stock with voting rights.

If the resolution is approved, all Native Common Stock is cancelled and replaced, share-for-share, on the termination date.

If the shareholders vote to keep alienability restrictions, dissenter's rights may be granted only by simultaneous adoption (by majority vote of 51 percent quorum) of a separate resolution. if the shareholders vote to allow dissenter's rights, the resolution may set the value of dissenters' stock at its restricted value; or its value may be calculated excluding lands of traditional, cultural, or speculative value. Payment of dissenters may be provided for in cash or by note.

If the resolution is rejected, and restrictions are maintained, there may additional resolutions and votes at a later date.

Corporate Repurchase of Native Common Stock
(fulfills AFN 1991 Resolution #03)

If the shareholders vote to allow it, any corporation may amend its articles and repurchase any or all outstanding Native Common Stock and shareholders may sell it. This applies any time that stock remains restricted after the enactment of the Act, before or after 1991.

Petition procedures, quorums and notification requirements are the same for a resolution to allow corporate repurchase as they are to terminate restrictions. The vote standard is somewhat lower, however; the stock repurchase option may be approved by a majority of the 51 percent quorum. The Board of Directors has the additional right to set higher quorum standards, higher voting standards, or both.

In the event that the corporate stock repurchase is approved by the shareholders, the corporation has only two sources from which to pay shareholders for their stock: Unreserved and unrestricted earned surplus (profits from previous years, minus losses), and net profits. In any case, no purchase is permitted which would have the effect of rendering the corporation insolvent.

The Board of Directors will set the price to be paid for the repurchase of the stock. If their valuation is accomplished in good faith, the price offered is presumed fair. Valuation may exclude land or land interests received under ANCSA which is used for traditional or cultural purposes, or is of speculative or unknown value. The repurchase offer must be fair and all holders of Native Common Stock must have an equal opportunity to participate.

The repurchased Native Common Stock can either be cancelled under law by the corporation, or it can be reissued as non-voting treasury stock.

New Stock Issuance
(fulfills AFN 1991 Resolution #04)

Each regional corporation is authorized by this legislation to issue as many shares of stock as are necessary to provide each Alaska Native enrolled to that region 100 shares of Native Common Stock. In addition, the shareholders of each corporation may vote to issue up to 100 shares of additional Native Common Stock to so-called "New Natives" (those born after December 18, 1971), Native elders (over 65 years of age), and Natives who, for whatever reason, missed the original enrollment. Such stock may be issued for no consideration (no payment of any sort from the person being issued the stock) or for whatever compensation the shareholders think is proper.

The petition procedures and requirements for notice, quorum and voting standard are all the same as for the resolution to authorize corporate stock repurchase.

The Act would also authorize the issuance of other classes of ANCSA stock, different from Native Common Stock. Shareholder options as to classes and preferences of stock, as well as the limitations and rights those shares would carry, whether they would pay a dividend or not, and the amount of alienability on them, would be pretty much left to the shareholders to decide. However, an amendment to a corporation's articles would have to specify the number of shares and their voting rights. The notification would also have to specify if the issuance put outstanding Native Common Stock in the minority. No issuance could be limited to corporate employees, officers or directors while alienability was restricted.

Revenues distributed under 7(i) would be unaltered by new stock issuance, because 7(i) formula is based on original enrollment figures.

Once again, petition procedures, notice requirements, quorum and voting standards would be the same as for the resolution for corporate repurchase.

No Transfers of Native Common Stock to Non-Native/Non-Descendants
(fulfills AFN 1991 Resolution #05)

When the owner of Native Common Stock dies, the stock can be transferred to anyone, if the deceased shareholder has left a will. If that person's Native Common Stock is inherited by a non-Native, non-descendent, the regional corporation may have the option of purchasing that stock from the person who inherited it. Procedures for petition, notice, quorum, etc. are the same as for corporate repurchase.

If the corporate shareholder who dies has not left a will, however, their stock can only be inherited by a Native or descendant. If the shareholder has no living descendants or Native family members (remember, an adoptee qualifies as a descendant), the stock goes back to the corporation.

Voting rights for those who inherit stock are terminated on the inherited shares, though some measure of voting rights can be restored by a shareholder vote to Natives who inherit.

Voting Rights For Descendants
(fulfills AFN 1991 Resolution #06)

Native Common Stock which is inherited by non-Natives (defined as someone of less than 25 percent blood quantum), whether the inheritor is a descendant or not, carries no voting rights with it. Lapsed voting rights owned by Natives or descendants of Natives may be restored by a vote of the shareholders.

Procedures for petitioning shareholders, notice requirements, quorum and voting standards are all the same as those required for corporate repurchase option.

Land Protections
(fulfills AFN 1991 Resolution #07)

The protections afforded Native land by H.R. 278 are substantial; under the legislation, all land conveyed under ANCSA to any Native individual, group, village corporation (including the four urban VC's) or region, is granted immunity from adverse possession (squatters), taxation (by any government), bankruptcy, judgement and involuntary dissolution. These protections will apply to ANCSA land as long as the land is undeveloped, not leased to a third party, or used only for exploration.

The definition of development does not include construction or improvement to assist in subsistence activities or other traditional uses of the land. The protections extended to ANCSA land do not alter any disputes over 7(i) revenues.

All ANCSA land is subject to eminent domain under state law.

Land and Asset Transfers
(fulfills AFN 1991 Resolution #08)

Under the legislation, any Native corporation can, by a shareholder vote, transfer any or all of its land and other assets to a "Qualified Transferee Entity," or QTE. The transfer can be for no consideration, or for any consideration the shareholders deem fair.

In order for a group to be a QTE, it must conform to certain guidelines: it must be organized under or recognized by state or federal law; composed of persons whose membership is entirely non-transferable; provide membership for all persons who possess Native Common Stock in the corporation on the day before the transfer of assets is to take place; and except for those non-Native/non-descendants who own Native Common Stock, it must admit only Natives and descendants of Natives as new members.

Revenues distributed according to the 7(i) formula are unaffected by any transfers, and QTE's must agree in writing to waive any sovereign immunity from claims arising due to 7(i), prior to any transfer.

 

ANC details changes needed in H.R. 278

The following is the ANC position paper on H.R. 278:

H.R. 278 introduced by Congressman Young to amend ANCSA is identical to H.R. 4162 which was passed by the House but died in the Senate last year. Alaska Native leaders have carefully reviewed H.R. 278 and are unanimously agreed that, although generally positive, it must be amended if it is to achieve its stated objectives.

The expressed purposes of H.R. 278 are to insure continued Native ownership of their land and corporations and to provide a tribal option, enabling those Native corporations which desire, to get out of the corporate system and return their lands to tribal ownership.

Although H.R. 278 provides substantial protection for Native lands and corporations, its "retribalization" provisions are not workable because of the unacceptable penalties attached. Lands transferred to tribes under H.R. 278, for example, would automatically lose the protection of tribal sovereign unity and immediately become subject to state condemnation. In addition, such lands would forever be denied the safeguards of federal trust status. Moreover, as presently worded, H.R. 278 could be construed as impliedly extinguishing the tax immunity of lands transferred to tribes under the act. Further, and even more basic, as presently worded, H.R. 278 has the potential of being construed as a termination act.

The severity of these consequences can only be appreciated by comparing them to tribal rights and immunities under present law. Under existing law and for over 200 years, tribally owned lands have been immune from state taxation and condemnation. Further, for two centuries the federal government has protected Native lands by holding them in federal trust status. These tribal immunities and protections are either expressly or impliedly removed from lands transferred under H.R. 278. Finally, under existing law Alaska Native tribes unquestionably have some governing powers. H.R. 278 suggests that all such powers may have been extinguished.

The proposed substitute bill (hereinafter AFN draft bill) was jointly drafted by the Alaska Federation of Natives and the Alaska Native Coalition to cure these defects in H.R. 278. The primary thrust of the AFN draft bill is to insure that H.R. 278 remains neutral on the issue of tribal sovereignty and that the existing rights and powers of Native tribes remain unimpaired. The changes mentioned above are detailed below. In addition, the AFN draft bill includes a number of amendments to the corporate provisions of the bill which are primarily technical in nature and non-controversial.

  • No taxation of tribally owned land: Tribally owned land has always been immune from state taxation. H.R. 278 was not intended to, nor does it, expressly extinguish this immunity with respect to lands transferred to tribes under the bill. It could, however, be construed to achieve this result by implication.

Section 13(1)(A) of H.R. 278, pp. 33-34 provides certain automatic protections against loss of undeveloped land. In addition, such land is immune from taxation and otherwise protected against loss until 1991 under the provisions of subsection (d) and (e) of Section 21 of ANCSA, 43 U.S.C. 1620(d). In order to eliminate any implication that by mentioning these protections and failing to mention the protections resulting from tribal land ownership (e.g., tax immunity), the Congress intended to extinguish the latter, sections 7(i)(1), p. 37, and 7(b)(f), p. 34, were added to the AFN draft bill which provide that the expressed protections "are in addition to any other protections or immunities provided by other applicable law."

  • No state condemnation of tribally owned land: States have never held the power to condemn tribally owned land. H.R. 278, sec. 13(1)(D), p. 34, gives the state of Alaska such power in the following terms: "lands conveyed pursuant to section 7(b) (the QTE section) of this Act shall be subject to condemnation for public purposes in accordance with the provisions of applicable state law. This section is deleted in the AFN draft bill.
  • Continuing Secretarial power to hold tribally owned land in trust: The Secretary of Interior currently has authority to take tribally owned land into trust. H.R. 278 was never intended to extinguish this power. As presently worded, however, it would have this result.

H.R. 278, Section 7(b)(d)(2), p. 27, prohibits a qualified transferee entity (including a Native tribe) from convey(ing) fee title to land or interests therein unless authorized or required by section 14(c) or 21(j) of this Act." Neither section 14(c) nor 21(j) authorizes transfers to the Secretary and therefore such transfers are barred. This unintended effect is corrected by Sec. 7b(e)(3), p. 34, the AFN draft bill which authorizes qualified transferee entities to reconvey land "to any government agency . . . authorized by federal law to accept such conveyance."

  • Neutrality on scope of self-governing powers of Native tribes: As noted above, Alaska Native tribes unquestionably hold some powers of self-government, although their precise scope is the subject of dispute. H.R. 278 was intended to remain neutral on this dispute. The disclaimer clause of H.R. 278, Sec. 8. 7c, p. 29, however, suggests that Congress has doubts as to whether Alaska tribes retain "any" such powers. It provides: "Sec. 7c. No provision of the Alaska Native Claims Settlement Amendments of 1987 shall be construed as enlarging or diminishing or in any way affecting the scope of any existing governmental powers, if any, of an Alaska Native village entity, including entities organized under the Act of June 18, 1934 (48 Stat. 987) as amended or Traditional Councils."

The words "if any" are not necessary and in fact transform this provision from a neutral to a non-neutral position. Sec. 8. 7c of the AFN draft bill deletes them

Bristol Bay Special Provisions

The corporations within certain of the regions have a special option that can be exercised, according to the legislation. The option available involves the adoption of a resolution by the shareholders to extend restrictions on the sale of stock. Where other regions will have their stock automatically restricted until they vote to lift the restrictions, the shareholders of the Bristol Bay region, Cook Inlet region, Aleut region, as well as Koniag, Inc. must approve such restrictions if they are to be extended.

The legislation spells out a procedure that requires the Board of directors of those corporations choosing this option to adopt and submit a resolution for the consideration of the shareholders to continue restrictions. If the Shareholders of those corporations do not approve such a resolution, the stock will become alienable within one year of their failure to do so, or on December 18, 1991, whichever is later.

Dissenter's rights, many of the procedural issues, and options for valuation of dissenters' stock are much the same as for the corporations not choosing this special option.

 

Why 1991 Amendments are necessary this year

by Janie Leask

As the 1991 amendments wend their way through the 100th Congress, it is only natural that news coverage focus on the political developments; people speak out on behalf of the organizations and constituencies they represent, taking positions for and against the bill. The most recent and notable example is the recent statement by Secretary of Interior Donald Hodel. In a letter to Rep. Morris Udall, chairman of the House Committee on Interior and Insular Affairs, which is now considering the bill, Hodel says the 1991 amendments are opposed by DOI, and that they are unfair to individual Native shareholders who may wish to sell their stock in the ANCSA corporations.

It remains to be seen what effect, if any, the Secretary's position will have on the legislative process or on White House approval of the measure, should it pass, particularly now that both houses of Congress are controlled by the Democrats.

In any case, perhaps it would be a good to review the need for such amendments, and how their passage would affect the lives of Alaska Natives.

With the passage of ANCSA in 1971, the United States began an unprecedented experiment in the way it had dealt with Native American land claims. ANCSA granted Alaska Natives claim to about 44 million acres of Alaska land, and provided almost $1 billion over a period of years for the creation and capitalization of Native regional and village corporations. Natives were issued shares of stock in these corporations, and their traditional lands made mere assets. Congress intended these corporations to provide a measure of economic self-sufficiency to Alaska Natives.

For a period of 20 years, the land and the stock itself would be protected from sale or loss by the government. After this 20 year period, restrictions on the sale of stock would come off, and it would become freely tradeable. Congress thought that by 1991, Native people would be well versed in corporate operations, and their corporations would have a good chance of surviving on the open market.

Unfortunately, at the time, most Native people had no idea what stock was, let alone how to run a corporation effectively. Delay in the conveyance of Native land title prevented many of the smaller village corporations from capitalizing on any economic opportunities that might have been perceived. Almost every aspect of the implementation of the act was bogged down by costly litigation, which ate up large portions of the corporation 's cash reserves.

The settlement also failed to include in the Act any Natives born after 1971. Many families now are composed of adults and children born before 1971, who own stock, and the children born after 1971, who have no stake whatsoever in the continued survival of the corporations beyond inheritance interest.

Congress also failed to realize that making money is largely a matter of perceiving opportunities, not just having large amounts of capital laying around. In the absence of any promising economic venture, many Native corporations helplessly watched as their nest egg of capital slowly eroded due to increased operating expenses, legal costs, bad advice and mismanagement. Even those who had a natural resource which was readily saleable, such as timber, found that their success could be determined by factors beyond their control, as the wildly fluctuating prices of timber and other commodities demonstrated.

An even more serious flaw was the status of Native land under the act. Instead of risking a portion of assets, as most prudent people do when speculating on a new business, Congress made continued ownership of all Native land — which means everything to Native peoples — contingent upon the economic success of the new corporations. The spectre of 1991, when stock and land protections would expire, began to overshadow all other concerns. What would happen to the land if the corporation went bankrupt? What about corporate takeovers? Did Congress intend to hold out the promise of land ownership, and deny Alaska Natives the reality of it?

Clearly, some further refinement of the act was necessary.

During an AFN Special Convention held in 1985, delegates adopted eight resolutions intended to rectify the problems of the act. AFN's legislation was drafted using those eight resolutions as guiding concepts. The result is H.R. 278, currently before the House of Representatives. The bill is a smorgasbord of choices for shareholders of the ANCSA corporations. If passed into law, the amendments would allow Native shareholders to decide if and when their stock should go public. It would allow shareholders to decide whether or not to issue new stock to Native children born after 1971. It would extend protections on undeveloped Native land against bankruptcy, judgement, takeover or adverse possession.

It would also allow Native shareholders to transfer land or other assets to non-profit groups, tribal and other qualifying organizations. Its main purpose is to preserve Native control of land and other assets. Congress intended ANCSA to be a just settlement of Native land claims. It did not intend for Native people to be landowners for a brief period before its return to non-Native hands. The AFN legislation does emphasize the rights of the group over those of the individual shareholder, consistent with our Native cultures. AFN believes that individual rights are important, but only to the extent that they do not jeopardize the continued health and survival of the group.

The past 100 years of Indian legislation has shown us that when Native lands are parcelled out to individuals who are permitted to sell it, and where it is subject to taxation, it is inexorably and quickly restored to non-Native ownership. When those lands are held in communal ownership, they tend to remain in the hands of the tribe or other group. Secretary Hodel is familiar with the sad legacy of the Dawes Act and other examples of the United States' failed Indian policy.

The 1991 amendments are entirely consistent with the original intent of ANCSA. Without them, the human cost to Alaska Natives specifically, and all Alaskans generally, would be a high one to pay.

 

AFN Board hosts reception for governor, Legislature

The AFN Board of Directors held their annual reception for state legislators in Juneau on February 12, culminating two days of meetings with Gov. Steve Cowper, key commissioners in the new administration and Bush Caucus members.

The Land Claims Board of AFN heard reports on navigability and submerged lands by Don Mitchell, a legislative issues report by Sam Kito and the dispute over opening the Arctic National Wildlife Refuge coastal plain to oil and gas exploration and development.

Board members also met with state commissioners Rocky Gutierrez of the Department of Transportation; Judy Brady of Natural Resources; Dennis Kelso of Environmental Conservation and Tony Smith of Commerce and Economic Development.

The Human Resources Board discussed its legislative priorities for this year, both on the state and federal level. In addition, they had discussions with commissioners David Hoffman of Community and Regional Affairs, Myra Munson of the state Department of Health and Social Services, and Jake Lestenkof, area director of the Bureau of Indian Affairs.

The Statewide Village Board continued its discussion of primary issues that board members thought might provide a focus for AFN's newest board. Among the possible issues to be taken up by the SVB are: the distribution of clear and concise information about the 1991 amendment package currently before the Congress, and how the amendments would affect residents of Alaska Native villages; economic development; ANCSA implementation issues; enhancing local government control; and subsistence.

AFN's Statewide Village Board represents a
majority of Alaska Native villages:

 

Chitina

Shishmaref

Ugashik

Napkiak

Birch Creek

Port Lions

Gulkana

St. Michael

Olsonville

Napaskiak

Circle

Kaguyak

Akutan

Stebbins

Akiak

Nunapitchuk

Dot Lake

Deering

Belkofski

Teller

Andreafski

Pilot Station

Eagle

Kotzebue

False Pass

Unalakleet

Anika

Platinum

Galena

Noorvik

Nelson Lagoon

White Mountain

Bill Moore's Slough

Quinhagak

Holy Cross

Selawik

Sand Point

Aleknagik

Chefornak

Red Devil

Huslia

Angoon

St. George

Chignik

Chevak

Sheldon Point

Kaltag

Hoonah

St. Paul

Chignik Lake

Chuathbaluk

Sleetmute

Koyukuk

Hydaburg

Unalaska

Clarks Point

Crooked Creek

Stony River

McGrath

Juneau

Anaktuvuk Pass

Dillingham

Eek

Toksook Bay

Minto

Klawock

Atqasuk

Ekuk

Georgetown

Tuluksak

Nenana

Klukwan

Barrow

Ekwok

Hamilton

Tuntutuliak

Northway

Saxman

Nuiqsut

Kokhanok

Hooper Bay

English Bay

Nulato

Yakutat

Wainwright

Levelock

Upper Kalskag

Eyak

Rampart

Douglas

Brevig Mission

Manokotok

Kasigluk

Port Graham

Ruby

Haines

Elim

Naknek

Kongiganak

Tatitlek

Stevens Village

Ketchikan

Gambell

New Stuyahok

Kotlik

Chenega Bay

Tanacross

Petersburg

Golovin

Newhalen

Kwethluk

Eklutna

Tanana

Wrangell

Diomede

Pedro Bay

Kwigillingok

Ninilchik

Kian Tree

Old Harbor

King Island

Port Heiden

Lower Kalskag

Seldovia

Afognak

Ouzinkie

Koyuk

Portage Creek

Marshall

Salamatoff

Akhiok

Shaktoolik

Mary's Igloo

South Naknek

Mekoryuk

Allakaket

Larsen Bay

Twin Hills

Nome

Togiak

Mumtrak

Beaver

Evansville

Napaimute

Action taken by the Statewide Village Board included the resolution passed by AFN convention delegates in 1986 in support of the Alaska Native Leadership Project.

The 1991 Steering Committee, which makes recommendations to the Full Board with regard to AFN's strategy in securing passage of the 1991 legislation, also met in Juneau. The Drafting Committee, which is a part of the Steering Committee itself, presented a report on an alternative bill prepared by its members. The bill includes some minor technical changes which AFN and the Alaska Native Coalition would like to see in the bill.

On the evening of Feb. 11, AFN members took advantage of an opportunity to relax a bit; AFN's basketball team soundly defeated that of the Alaska State Legislature, 96-80.

The Full Board met on Feb. 12. The meeting's agenda was full, including visits with some members of the Legislative Bush Caucus and Gov. Steve Cowper. Key legislative proposals by the Bush Caucus were presented to the board. Among them were pledges to restore state funding for the Rural Alaska Television Network (RATNET) and public radio broadcasting, and a measure sponsored by Sen. Johne Binkley that would make it easier for the state to contract out some services to nonprofits.

Gov. Steve Cowper took the opportunity of his visit with the board to explain his budget priorities. Cowper told the board that his administration would work to see that necessary budget cuts did not impact anyone in the state unevenly. The governor also said that he would work to find the best level of government that the state's budget could sustain.

The key action taken by the Full Board was the passage of a motion mandating that AFN and ANC attempt to include in the House version of the 1991 legislation as many of the changes in the alternate bill prepared by the Drafting Committee as could be included without slowing down the bill's progress. Some of the changes included in the alternate bill are a higher minimum quorum on any vote to terminate restrictions on the sale of stock to non-Natives; the exemption of up to $2,000 per year of ANCSA stock dividends in determining eligibility for various government assistance programs; and a prohibition on non-Native inheritance of stock.

 

AFN trounces Legislature, 96-80

The Alaska Federation of Natives were not to be denied on the fateful evening of February 11, 1987. They faced a team that prides itself on its finesse in affairs of state; a team that's been known to go to the boards to get what it wants; a team whose strength is in its power game. But despite the seeming one-sided nature of the contest, the AFN team dealt a humiliating 96-80 defeat to the Alaska State Legislature — in basketball, that is.

The game was played at Marie Drake Junior High School in Juneau to a crowd of about 100 spectators.

The AFN team was attired in their stylish blue and gold uniforms, emblazoned with "AFN" on the front and various alpha-numeric combinations such as "D-2," "7-i," "14(c)(3)," and "1991." The terms designate important sections of the Alaska Native Claims Settlement Act of 1971 (ANCSA), the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) and related issues.

AFN's Coach Sam Kito planned a brilliant strategy against the Legislature: wear 'em out, then walk all over 'em. Kito found the tactical execution of his strategy easy to implement, as he was able to field three different squads of five players each; the Legislature dribbled onto the court with a meager seven players.

AFN's team consisted of: Caleb Pungowiyi, Keith Gordaoff, Mitch Demientieff, Gene Kompkof and Al Kookesh; Ivan Gamble, Weaver Ivanoff, Ed Thomas, Byron Mallott and Mike Irwin; Larry Kimball, Don Mitchell, Gordon Pullar, Matt Nicolai and Jim Benedetto.

Playing for the Legislature: Steve Franks, Pat Pourchot, Johne Binkley, Swack Swackhammer, Cliff Davidson, Mike Navarre and Roger Jenkins.

During last year's game, the Legislature barely squeaked by AFN, 92-90. What made the difference this year?

"Since there's no money in the capital budget, we weren't afraid to go out there and beat them," explained Coach Kito.


Alaska Federation of Natives, Inc.

411 West 4th Avenue, Suite 301 * Anchorage, Alaska 99501
Phone 272-3611

Co-chairmen: Glenn Fredericks and Morris Thompson

BOARD OF DIRECTORS

 
Land Claims Board Human Resources Board Statewide Village Board
Oliver Leavitt, Arctic Slope Gene Peltola, AVCP Martin Finnesand, Copper River
Roy Ewan, Ahtna Dimitri Philemonof, APIA Sherry Spray Ruberg, Aleutian
Agafon Krukoff, Aleut Debby Tennyson, Bristol Bay Ronald Brower, North Slope
Henry Ivanoff, Bering Straits Esther Combs, Cook Inlet Joe Chythlook, Bristol Bay
Don Nielson, Bristol Bay Daniel LeBlanc, Copper River Paul Manumik, Calista
Nelson Angapak, Calista George Edwardson, Inupiat Ralph Eluska, Kodiak
Sylvia Lange, Chugach Gordon Pullar, KANA Frank Stein, NANA
Roy Huhndorf, Cook Inlet Caleb Pungowiyi, Kawerak Ivan Gamble, Southeast
Morris Thompson, Doyon Marie Greene, Maniilaq Donna Lewis, Interior
Frank Pagano, Koniak Derenty Tabios, North Pacific Rim John Crawford, Cook Inlet
Christina Westlake, NANA Mitch Demientieff, TCC Ken Shoogukwruk, Bering Straits
Albert Kookesh, Sealaska Ed Thomas, Tlingit & Haida Luke Borer, Chugach
Kurt Engelstad, 13th Region    
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