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What tribal sovereignty is — and isn’t

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ALASKA NEEDS A PRIMER ON DOING BUSINESS IN AND OUT OF INDIAN COUNTRY

By MARY BISHOP
GUEST CONTRIBUTOR

For the past 30 years I have been an occasional student of Alaska tribal sovereignty.  I am committed to improving the knowledge of this issue among all Alaskans.

To begin with, each of Alaska’s 225 plus tribes are sovereign; each holds sovereign immunity from suit for breach of contract – absent a formal document waiving that sovereignty.

The Alaska Supreme Court affirmed that each tribe has sovereign powers over matters that directly affect their people — such as membership, marriage, adoption, inheritance and divorce. This legal concept is well-explained in the October, 2017 opinion by then-Attorney General Jahna Lindemuth,  linked here.

Tribal sovereignty does not depend on the existence of “Indian Country,” the territory over which a tribe holds governing authority.

Attorney Gabriel Galanda explains in his 2009 American Bar Association  article that “Tribal sovereignty is the single most important element of practicing [law] both because it protects tribal coffers from suit and because of its sacred importance…” In September, 2018  the ABA published a “primer” on doing business with sovereign tribes.

Alaska urgently needs such a primer, one addressing the Alaska situation, where tribes do business within Indian Country and tribes do business outside of Indian Country — and tribal businesses can incorporate under tribal, state, or federal law.

Tribal sovereign immunity complications are likely unknown in the Alaska business community. An ironic Alaska example occurred when on Sept. 8, 2017, the Alaska Supreme Court ruled that a Juneau area tribe could not be sued in state court by the Douglas Indian Association for alleged mismanagement of joint federal tribal transportation funds.

Why? No waiver of immunity had been negotiated between the tribes.

Years ago Alaska required agencies acquire tribal “waivers of sovereign immunity” when interacting with tribes for land and fuel agreements.  I saw no recognition of that need in the state’s 2017 tribal agreements.

Second, Indian Country in Alaska is virtually the same as Lower 48 reservations, asserts the Bureau of Indian Affairs.

In 1971 Congress passed the Alaska Native Claims Settlement Act, which most people thought settled the question of Indian reservations and Indian Country.  So how does Indian Country now come to exist in Alaska?  It is done through the Interior Department’s “fee-to-trust” program, administered by the Bureau of Indian Affairs.  That program allows tribal land which is owned in fee title to be transferred to federal trusteeship. 

Because of an Interior Department 1978 interpretation of ANCSA, the fee-to-trust program was not available to Alaska tribes.  But in 2014, the Bureau of Indian Affairs made a new rule to void this “Alaska exception” to fee-to-trust.

“Yet in no clearer way could Congress’ intent be undermined than by recreating something, through an administrative [BIA] process, that Congress expressly extinguished by law,” asserts State Attorney General Kevin Clarkson in a Jan. 25, 2019, letter to Interior in which he presents arguments against fee-to-trust lands in Alaska.

Following ANCSA, Alaska’s first tract of BIA-approved Indian Country is a parcel in downtown Craig, accepted for trust in 2017.  The Craig Tribal Association’s website notes the tribe’s tax-free Smoke Shop, its mission, and sovereign immunity.

Indian Country in Alaska is free of state and municipal taxation, regulation and zoning. Think marijuana, gaming, tobacco, fuel, fish and game harvest. Consider the effect on competing private business.

Tribal members living within Indian Country have all rights of federal, state and municipal citizenship.  They vote on bonding issues but are exempt from state and municipal taxation.  Their property is generally expected to receive the usual state and municipal services.  Federal courts may attempt a balancing act weighing state interests  against tribal interests.  “And, as with all balancing tests, the result is a crapshoot,” notes the 2017 ABA article.

Land in downtown Juneau, Fort Yukon, and Ninilchik has been submitted for trust status.  Native allotments within the Fairbanks City and Borough could be transferred to fee ownership of a tribe, which might then submit it to BIA for fee-to-trust status—tax and regulation free within the city or borough.

Alaska’s one pre-ANCSA reservation is Metlakatla, established by treaty with Canadian Indians.

Through ANCSA, regional and village Native corporations received 11 percent of Alaska lands plus almost $1 billion. Tribes did not receive money or land.  But both money and land have since gone to tribes through grants and for-profit businesses.  Some village corporations have turned over ANCSA lands to tribes.  Tribes can receive land through purchase and gift—and now own millions of acres.

Those who understand Indian law best are those who passionately and patiently advocate for increased tribal authority and financial benefit available through judicious use of this complex body of law.

However, they do not necessarily have the broader interests of all Alaskans in mind. That responsibility lies with the state.

I urge the Dunleavy Administration to move forward by providing an informative primer for the benefit of all Alaskans.

Mary Bishop has lived with her family in Fairbanks and Interior villages since 1961.

With Dunleavy budget, Alaskans are talking about priorities

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By WIN GRUENING
SENIOR CONTRIBUTOR

As Alaskans take various and mostly predictable positions on Gov. Michael Dunleavy’s proposed budget reductions, a theme seems to be emerging in the Legislature.  Legislators are far from reaching any kind of consensus, yet it’s possible to discern some common elements that presage a possible outcome down the road.

In the face of Alaska’s projected $1.6 billion deficit, to no one’s surprise, some voices demand passage of new revenue measures – a statewide income tax or a sales tax. Others argue steep budget cuts are necessary even while Permanent Fund dividends be enshrined in Alaska’s Constitution and are essentially untouchable.

Win Gruening

Given the current makeup of the Legislature, it’s not likely any of these scenarios will come to pass this year.

The governor’s proposals, while balancing the budget, depend on an array of debatable statutory and policy changes. These are far-reaching and, in some cases, invite lawsuits and leave to the imagination potential consequences down the road.

Nevertheless, Gov. Dunleavy deserves credit for finally forcing Alaskans to discuss the fiscal reality confronting us.

In the Legislature, even conservative voices supporting budget reductions are distancing themselves from the level of cuts being contemplated by the administration.

No doubt they are being influenced by the municipalities they represent.

Many proposed cuts would effectively shift much of the reductions to municipalities across the state. This puts questions of “needs vs wants” squarely in the laps of local taxing authorities where, some would argue, they belong.

But, the wheels of bureaucracy move slowly, and to assume local governments could possibly react in time to absorb these reductions by either raising taxes or canceling projects and services overnight is not reasonable.

Furthermore, proposed cuts to the ferry system, healthcare, and education, for example, require time to analyze for reductions to make sense.

Regardless of one’s feelings about proposed reduction levels, it seems many Alaskans prefer a more realistic approach that phases reductions in over time.

The House Majority is signaling a tax is off the table this year, and to expect budget cuts. “The sheer complexity of taking on the proposed change to the budget itself will consume most our time going forward,” House Speaker Bryce Edgmon, said recently. Edgmon said he’s asked caucus members to “help share the pain.”

Senate Finance Committee Co-Chair Natasha von Imhof explained it this way, “I keep hearing the administration referring to this ‘fiscal crisis.’ We don’t have a fiscal crisis. We have a priority crisis.  We have enough money to pay for a certain level of government services, and a certain level for a dividend. We just don’t have enough money to pay for both at the highest level desired.”

Given the House and Senate public positions, what outcome is possible and reasonable in the session time remaining?

The final date to approve a budget – June 30 – is fast approaching.  With much of the session taken up with organizational changes, legislation supporting the Governor’s budget proposal has yet to be reviewed.

It isn’t hard to see where we are headed and to do the math.

$1.6 billion in suggested cuts cannot be absorbed in the short term and new taxes, even if proposed, would likely be vetoed.

There is only one existing revenue source available large enough to make a difference:

Alaska’s Permanent Fund.

Approved last year under Senate Bill 26, Percent-of-Market-Value (POMV) legislation allows a portion of the Permanent Fund earnings to be split between a permanent fund dividend (PFD) and paying for government services.

Maintaining PFD’s near last year’s level would make available enough funding to shrink the deficit to a manageable level – in the $350 million range.  A deficit of this size could be handled with targeted expenditure reductions and a minimal draw from the Constitutional Budget Reserve.

When warranted, Gov. Dunleavy would have the option of restoring PFD’s to a higher level in the future, thereby keeping his campaign promise, but it would allow time for any further cuts to be absorbed and Alaska’s economy to continue its recovery.

Equally as important, maintaining curtailment of the PFD during this crisis means every Alaskan would share the pain.

Win Gruening retired as the senior vice president in charge of business banking for Key Bank in 2012. He was born and raised in Juneau and graduated from the U.S. Air Force Academy in 1970. He is active in community affairs as a 30-plus year member of Juneau Downtown Rotary Club and has been involved in various local and statewide organizations.

Fish fight returns to question: What is subsistence?

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By CRAIG MEDRED
CRAIGMEDRED.NEWS

Before an audience heavy with those who make their living from the sea, commercial fishermen and their supporters paraded before the Alaska Board of Fisheries on Saturday to testify as to where they think personal-use dipnetters belong.

Last in line was the clear answer.

Cordova’s John Whissel might have summarized the thinking best when he observed that the personal-use fisheries “are to be implemented after sport, commercial and subsistence fisheries have met their needs.”

The comments came in response to a Kenai River Sportfishing Association proposal before the Board that would reshuffle salmon allocation priorities in the state’s few, non-subsistence fishing areas.

The proposal seeks to make the food security of 49th State residents the number one issue the Board should consider when deciding who gets which salmon and how many.

Whissel argued the proposal was a scheme to “set up a defacto priority,” giving personal-use fishermen in five “non-subsistence” areas much the same status as subsistence fishermen in most of the rest of the state. Subsistence is a “priority use” in about 80 percent of Alaska.

In the subsistence areas, the number one priority of the Board and fishery managers with the Alaska Department of Fish and Game is to make sure subsistence demands are met.

Dipnetters once had a subsistence priority, but the Alaska Legislature in 1992 passed a law allowing the Boards of Fish and Game to establish non-subsistence areas. The state was at the time jockeying to find a way to bring state law into agreement with the Alaska National Interest Lands Conservation Act, which created more than 100 million areas of new parks and refuges in Alaska and granted “rural residents” a subsistence priority on federal lands.

The state tried to follow suit with a rural priority, but the Alaska Supreme Court ruled that granting Alaskans special hunting and fishing privileges solely on the basis of where they live violated the Alaska Constitution.

As an alternative, the Legislature gave the joint Boards the authority to create non-subsistence areas where there was heavy competition between urban and rural residents for limited resources. The hope was that the feds would buy the plan as tantamount to a rural priority and drop a threat to take over management of fish and game on federal land in the state.

They didn’t. The U.S. government has been involved in managing fish and wildlife on more than 200 million acres of land within the state for almost two decades now.  The state was left in charge of about 150 million acres. The two bureaucracies engage in a constant, joint-management dance in dealing with salmon and other species that move across state-federal boundaries.

Through all this, most of the state’s fisheries have remained largely unchanged. The commercial fishing industry controlled them at statehood, after statehood and to this day.

Read the rest of Medred’s column at this link.

Alaska’s D.C. delegation goes bipartisan with legislation

SPONSORING BILLS WITH DEMOCRATIC WOMEN PRESIDENTIAL HOPEFULS

Alaska Sen. Dan Sullivan, a Republican, and Minnesota Sen. Amy Klobuchar, a Democrat, introduced the Child Care Workforce and Facilities Act last week to address the national shortage of affordable, quality child care, especially in rural communities.

Klobuchar, an independent-label Democrat, is running for president.

The polling company fivethirtyeight.com sees her as a strong candidate for the Democrats. Of course, that was before Sen. Bernie Sanders jumped in the primary, and before Joe Biden — who is expected to announce in April.

Republican Sen. Lisa Murkowski and California Democrat Sen. Kamala Harris last week introduced a workplace anti-harassment bill.

Harris is running for president.

Sen. Kamala Harris, Sen. Lisa Murkowski

[Read: Murkowski teams up with Harris on workplace harassment]

Not to be left out, Alaska Rep. Don Young and Hawaii Rep. Tulsi Gabbard co-introduced two marijuana legalization bills in a bipartisan effort to get the federal government out of the marijuana control business. Alaska has legalized cannabis and Hawaii has legalized medical-use marijuana. This is legislation that Gabbard has introduced previously.

Gabbard is running for president.

DAY CARE, POT, HARASSMENT

The Sullivan-Klobuchar Child Care Workforce Bill is to help to address the shortage of affordable child care and qualified child care professionals in rural areas through competitive grants to states to support the education, training, or retention of the child care workforce, and building, renovating, or expanding child care facilities in areas with child care shortages.

Sen. Amy Klobucher, Sen. Dan Sullivan

The bill would also help child care workers work toward portable, stackable credentials that would allow them more mobility and opportunities for advancement.

The Ending Federal Marijuana Prohibition Act proposes to take marijuana off of the federal controlled substances list, and give states full authority to regulate the plant substances as they choose. The Marijuana Data Collection Act would begin the study of how marijuana legalization has impacted the states that have already legalized it.

“I am a passionate supporter of a states’ rights approach to cannabis policy. For too long, the federal government has stood in the way of states that have acted to set their own marijuana policy, and it is long past time Congress modernized these outdated laws,” said Young, who last week became the longest-serving Republican in both the House and Senate. He is the founder of the Congressional Cannabis Caucus, with Republican Dana Rohrabacher and and Democrats Earl Blumenauer and Jared Polis.

As for the Harris-Murkowski bill with the tortured name of Ending the Monopoly of Power Over Workplace harassment through Education and Reporting Act (EMPOWER Act), the California senator introduced an identical bill last year. Then, in December one of Harris’ longtime aides resigned after a newspaper report revealed he had settled a 2016 harassment lawsuit for $400,000.

That lawsuit had been filed by the former executive assistant for Larry Wallace when he worked for California Department of Justice under then-Attorney General Kamala Harris. There’s no indication she knew about the issue and Harris has been a vocal supporter of the #metoo movement.

“No matter who you are or where you work, harassment in the workplace is not acceptable,” said Murkowski. “We have a choice to make; either sit on the sidelines and hope for change, or roll up our sleeves to make the change. We must work to identify where harassment is its most pervasive; where it has been allowed to foster in a culture of silence, disrespect, intimidation, and abuse. And we must empower victims to speak out about the harassment they face. I am proud to be a part of this legislation which both prohibits efforts to silence victims and shines the light on harassment in the workplace. The change needed may not happen overnight, but with this legislation we can move to eliminate harassment in the workplace.”

Why are all members of Alaska’s congressional delegation reaching across the aisle to cosponsor legislation? It may be just coincidence, but sponsoring legislation with presidential candidates raises the profile of the cosponsor, and may inoculate Alaska in the event that any one of the three women actually do succeed as candidates and knock President Trump out of office.

Who is Sportsman’s Alliance for Alaska? One guy. In Nicaragua.

‘ASTROTURFING’ THE BRISTOL BAY-PEBBLE NARRATIVE

An alliance of sportsfishing enthusiasts that has been opposing the Pebble Project for over a decade is run by a man who lives, he says, in Nicaragua.

Scott Hed comes from the Midwest, went to college at St. Olaf College in Minnesota, loves to fish, and has been to Alaska at least a couple of times, he says in various online media. Right now, he’s angling for tropical species in his current home.

Hed is the unlikely director of Sportsman’s Alliance for Alaska.

A lot of people in the fight over the Pebble Project think that’s a real thing.

Such as these unsuspecting folks, who run fishing lodges in Alaska, the Bahamas, Chile, and British Columbia.

But the “Sportsman” in the organization is singular, not plural. It’s just Hed. He went fishing in Alaska once upon a time and was recruited to be the front guy for a fake alliance that makes unsuspecting anglers around the country think it’s a real organization — one that would file a 990 form with the IRS.

Since 2006, Hed has been paid to fight the Pebble mine at trade shows that attract fishermen and hunters. He admits it’s just him:

“SAA has always been a one-man operation, so I’ve worn a lot of hats … all with the end goal of informing and engaging anglers and hunters from around the country (and even abroad) as well as the fishing and hunting product industries in efforts to ensure that productive fish and game habitats in Alaska are not jeopardized to types of development projects that have proven harmful in other places,” he told the writer for Deneki Outdoors.

This is the age of “astroturfing,” where grassroots activity is everywhere. The astroturfing messages, in fairness, come from both sides when it comes to trying to persuade the public.

If you look behind the curtain (if you can) with these fake grassroots groups, you find a much bigger organization funding, managing, and fundraising around an issue.

That’s the case with Sportsman’s Alliance for Alaska.

Hed’s one-man mission is a subset of the Alaska Conservation Foundation, which calls itself “Alaska’s Trusted Conservation Leader.”

Donations to the Sportsman’s Alliance  go to the Alaska Conservation Fund. But Hed is nowhere to be found on the Foundation’s web site or listed as staff. He’s a paid operative out there on his own, not even listed among the foundation’s grantees. He must be very persuasive.

Hed’s fictitious group has presented itself in such a way that even Alaskans in the mining industry think it’s a real thing. Hed wrote in 2014:

It’s an incredible honor to be recognized as this year’s Angler of the Year by Fly Rod & Reel magazine. I was taken completely by surprise when notified by Greg Thomas, the editor of the publication. To be listed alongside past winners such as Ted Turner, Yvon Chouinard, Tom Rosenbauer, and Craig Hayes (just to mention a few) is something that is humbling to say the least. There’s really no way I belong in their company, at least I don’t think so. I’m quite possibly the least-skilled angler to ever win “Angler of the Year!” Think I’m kidding? Ask some of the guides who’ve fished with me over the years. I get results, but it’s usually not all that pretty getting them. I guess it’s a good thing that angling isn’t the sole qualifier to be considered for this distinction.

The campaign to protect Bristol Bay has been the most meaningful endeavor I’ve been involved with in my 46 years on this planet, and that will likely still hold true someday when I’m dead and gone. This campaign has been an incredible experience, and I feel that the recognition I received with this award is far beyond what I’m individually due. To be clear, I do not dispute the fact that I’ve worked longer than anyone in the Lower 48 in spreading the word among the community of anglers about why the Pebble Mine is a horrible idea for Bristol Bay. In fact, I still recall the day that I was asked if I’d like to take this duty on. In the back of my mind, I thought “They want me to go around the country and talk with anglers (and hunters) about Bristol Bay…a place that sportsmen and women either dream of going someday or where they can’t wait to return if they’ve had the good fortune to visit in the past. What’s the catch? Am I still going to get paid?”

Watch Scott Hed talk about Pebble in this video shot when he was representing his fake group at an outdoor show in Orlando, Fla.:

Alaska Conservation Foundation, an industrial-strength environmental group, gets top grades from charity raters Charity Navigator and Guide Star, and also is rated high by the Better Business Bureau. But the organization is serving as a backend organization for astroturfing, with very little transparency, it appears.

No mention of the Sportsman’s Alliance for Alaska is revealed in recent IRS Form 990 filings by the foundation, although Hed still portrays it in 2019 as being an active organization.

Look for Sportsman’s Alliance for Alaska and other astroturf efforts to reconstitute in coming weeks in an attempt to steer public opinion against the Pebble Project as the draft environmental impact statement goes through the public review process.

Public hearings on the new project design will begin this month:

Hearing schedule:

March 25:    Naknek – 3:30 to 7:00 p.m. at the Bristol Bay School.

March 26:    Kokhanok – 3:30 to 7:00 p.m. at the Community Hall.

March 27:    Newhalen – 3:30 to 7:00 p.m. at the Newhalen School.

March 28:    Igiugig – 3:30 to 7:00 p.m. at the Igiugig School.

March 29:    New Stuyahok – 1:00 to 5:00 p.m. at the Community Building.

April 8:    Nondalton – 3:30 to 7:00 p.m. at the Tribal Center.

April 9:    Dillingham – 4:00 to 9:00 p.m. at the Dillingham Elementary School.

April 11:    Homer – 3:30 to 9:00 p.m. at the Homer High School.

April 16:    Anchorage – 12:00 to 8:00 p.m. at the Dena’ina Center.

There should be plenty of drama at all of the hearings, since this project is Number 1 on the kill list for environmental groups.

Congressman Young already running for 2020

JUNEAU EVENT WILL FEATURE MOOSE CHILI AND CONVERSATION

Congressman Don Young, who was named the most effective congressman in 2018, will be in Juneau on March 20, where some of his friends are putting on a fundraiser for his re-election.

The community fundraiser is being held from 5-6:30 pm at the Juneau Yacht Club, with a suggested minimum donation of $50. His new State Director Daniel George, who replaced Chad Padgett, will also attend so Juneauites have a chance to meet him.

This is not a statewide tour for Young — the Juneau stop is his only one planned.

On March 6, Young made history by becoming the longest serving Republican in the history of the United States Congress. Young broke the record previously held by former Speaker of the House Joseph Gurney Cannon.

Watch Rep. Young talk about the honor of serving Alaskans and his respect for his other colleagues on both sides of the aisle, here (3 minutes, 23 seconds):

 

Todd Smoldon takes post with Dunleavy administration

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DIRECTOR OF MAT-SU OFFICE

Todd Smoldon has been named the director of the Mat-Su Valley office of Gov. Michael Dunleavy, Must Read Alaska has learned.

Smoldon lives in Willow and is a 32-year resident of Alaska. He has taught high school economics for 21 years and is currently employed as a teacher with the Anchorage School District.

After Gov. Dunleavy left the Senate last year to run for governor, Smoldon submitted his name to Gov. Bill Walker to replace him. Walker chose Mike Shower to be senator for District E, however.

Smoldon serves on the Alaska State Professional Teaching Practices Commission as a teacher representative.

The Mat-Su Valley office was created by Gov. Bill Walker, and Dunleavy has kept it open, but his original choice to run it, former Sen. Bill Stoltze, lasted just days before he decided he wasn’t enjoying the work, and resigned.

Former Rep. Lynn Gattis was tapped to temporarily stand up the office, and has since taken an offer from Rep. Tammie Wilson, co-chair of House Finance, to serve as her aide in Juneau. She starts that position on Monday.

No official announcement has been made.

Lt. Gov. Meyer signs extradition orders for suspected killer

NURSE WAS ARRESTED IN FEBRUARY FOR 1993 UAF MURDER

Lieutenant Governor Kevin Meyer signed an extradition request to the governor of Maine for Steven Harris Downs, a former student at the University of Alaska Fairbanks, who is accused of first-degree murder and first-degree sexual assault in the death of 20-year-old Sophie Sergie in April 1993. The order was signed on Thursday.

“After 26 long years, it is time for Sophie Sergie and her family to see justice served,” said Lt. Gov.Meyer. “This case has haunted Sophie’s family and the Fairbanks community for far too long. It is my hope that Governor [Janet] Mills approves this request quickly and permits the wheels of justice, unmoved since 1993, to proceed forward in our search for the truth in this tragic case.”

Sophie Sergie was visiting Fairbanks in late April 1993 when she decided to spend the night with a friend at the UAF campus. Her body was discovered the next day in a dormitory bathroom. Investigators with the Alaska State Troopers launched an investigation and collected a DNA sample from the victim that was uploaded into the Combined DNA Identification System (CODIS) in 2000, but no identification was made.

[Read: Cold case: DNA points to suspect in Maine]

Last year, Trooper investigators used genealogical databases to identify a possible suspect and that eventually led them to a relative of Downs. Working with Maine law enforcement, Downs was interviewed again and on Feb. 14, a search warrant for a sample of his DNA was served. His DNA was tested, and it matched the DNA sample found on Sergie’s body.

“Public safety and restoring trust in state government is the number one priority of this administration and we will continue to do whatever is necessary to make Alaska safer,” Meyer said.

Meyer has extradition duties, as they were assigned to him by Gov. Michael Dunleavy in December, under Alaska’s Uniform Criminal Extradition Act, Alaska Statute 12.70.