TESTIMONY OF PAUL HOFFMAN
DEPUTY ASSISTANT SECRETARY
FISH, WILDLIFE, AND PARKS
on
H.R. 3148
JUNE 5, 2002
Mr. Chairman, I appreciate the opportunity to appear
before you today to present 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Act (ANCSA), originally enacted as the Alaska Native Vietnam Veterans Allotment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was repealed with the enactment of ANCSA on December 18, 1971.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.
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 opportunity” concept of the Alaska Native Vietnam Veterans Allotment
Act. HR 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 105-276 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 regulations became 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 31,
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
HR 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 this requirement and we object
to any language which could be interpreted to do so.
HR 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 because 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 and will not be a service
to the community of Alaska Natives or Alaska Native veterans. Thank you for the
opportunity to appear. I will be happy
to answer any questions you may have.
APPENDIX
BLM
Outreach efforts to reach potential Alaska Native Veteran Allotment applicants
- From
the passage of the law until the final regulations were published
BLM held five public meetings across the State for comments on the
proposed regulations. These meetings were held in five key communities around
the State and public notices were given in advance of each meeting.
Anchorage
Fairbanks
Nome
Bethel
Juneau
Notice was also given in the Federal Register concerning
commenting on the proposed regulations.
There were some written comments from around the State and some from
outside the State.
The final regulations were published in the Federal
Register and included the beginning and ending dates of the filing period.
- BLM prepared application packets with copies
of the final regulations which included the 18 month filing period beginning
and ending dates, list of BIA Service Providers, and the application form.
These packets were available in the Alaska State Office of the BLM and the
District Offices. These packets were also given to BIA and distributed by the
BIA Service Providers to those potential Native Veteran applicants in their
areas. Some of these packets were even
sent to potential applicants who for whatever reason were not currently in the
State of Alaska.
- The BIA, BLM, and Alaska Legal Services held
about 9 public meetings in key communities across the State. These meetings were advertised in the local
communities by various means including public notices, radio announcements, and
local newspapers.
Dillingham - held at beginning of
local festival (Beaver Roundup)
Bethel - held in conjunction of with
local festival
Nome
Kotezebue
Copper Center
Fairbanks
Anchorage
Haines and Barrow
- Radio programs -
Call in format and translation into
Yupik from radio station in Dillingham
Radio station in Nome recorded the broadcast so they
could play it at various times throughout the day.
Anchorage
Barrow
Teleconferences
BLM/BIA/Alaska Legal Service and BIA service providers -
monthly from the beginning of the filing period until the beginning of January,
2002, and then it was held weekly.
BLM/BIA/Alaska Legal Services have held a number of
teleconferences with individual villages who wanted to ask questions about the
Alaska Native Veteran Allotment program.
Publication
in major newspapers of January 31, 2002, end of filing period.
There
have also been two Alaska Federation of Natives (AFN) Convention agendas that
contained discussions of the Alaska Native V