TESTIMONY OF PAUL HOFFMAN

DEPUTY ASSISTANT SECRETARY

FISH, WILDLIFE, AND PARKS

on

H.R. 3148

TO AMEND THE ALASKA NATIVE CLAIMS SETTLEMENT ACT

 

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of the Interior on H.R. 3148, which would amend section 1629(g) of the Alaska Native Claims Settlement Act (ANCSA), originally enacted as the Alaska Native Vietnam Veterans Allotment Act of 1998 (Section 432 of Public Law 105- 276).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 The Allotment Act was repealed with the enactment of ANCSA on December 18, 1971.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