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[House Report 107-744]
[From the U.S. Government Publishing Office]

107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-744

======================================================================

 
            ALASKA NATIVE VETERANS LAND ALLOTMENT EQUITY ACT

                                _______
                                

October 11, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Hansen, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3148]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 3148) to amend the Alaska Native Claims Settlement Act to 
provide equitable treatment of Alaska Native Vietnam Veterans, 
and for other purposes, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Alaska Native Veterans Land Allotment 
Equity Act''.

SEC. 2. AMENDMENT TO ALLOW CERTAIN ALASKA NATIVE VETERAN LAND 
                    ALLOTMENTS.

  Section 41 of the Alaska Native Claims Settlement Act (43 U.S.C. 
1629g) is amended as follows:
          (1) Paragraphs (1) and (2) of subsection (a) are amended to 
        read as follows:
                  ``(1) The period for filing allotments under this Act 
                shall end 3 years after the Secretary issues final 
                regulations under section 3 of the Alaska Native 
                Veterans Land Allotment Equity Act. A person described 
                in paragraph (1) or (2) of subsection (b) shall be 
                eligible for an allotment of not more than two parcels 
                of Federal land totaling 160 acres or less.
                  ``(2)(A) Allotments may be selected from the 
                following:
          ``(i) Vacant lands that are owned by the United States;
          ``(ii) Lands that have been selected or conveyed to the State 
        of Alaska if the State voluntarily relinquishes or conveys to 
        the United States the land for the allotment.
          ``(iii) Lands that have been selected or conveyed to a Native 
        Corporation if the Native Corporation voluntarily relinquishes 
        or conveys to the United States the land for the allotment.
  ``(B) A Native Corporation may select an equal amount of acres of 
appropriate Federal land within the State of Alaska to replace lands 
voluntarily relinquished or conveyed by that Native Corporation under 
subparagraph (A)(iii).
  ``(C) For security reasons, allotments may not be selected from--
          ``(i) lands within the right-of-way granted for the 
        TransAlaska Pipeline; or
          ``(ii) the inner or outer corridor of that right-of-way 
        withdrawal.''.
          (2) Subsection (a)(3) is repealed.
          (3) In subsection (b)(1), strike ``A person'' and insert 
        ``Except as provided in paragraph (3), a person''.
          (4) Subsection (b)(1)(B) is amended to read as follows:
          ``(B) is a veteran who served during the period between 
        August 5, 1964, and May 7, 1975, including such dates.''.
          (5) Subsection (b)(2) is amended to read as follows:
  ``(2) If an individual who would otherwise have been eligible for an 
allotment dies before applying for the allotment, an heir on behalf of 
the estate of the deceased veteran may apply for and receive the 
allotment.''.
          (6) In subsection (b)(3), insert before the period the 
        following: ``, except for an heir who applies and receives an 
        allotment on behalf of the estate of a deceased veteran 
        pursuant to paragraph (2)''.
          (7) Subsection (e) is amended to read as follows:
  ``(e) Regulations.--All regulations in effect immediately before the 
enactment of subsection (f) that were promulgated under the authority 
of this section shall be repealed in accordance with section 
552(a)(1)(E) of the Administrative Procedure Act (5 U.S.C. 
552(a)(1)(E)).''.
          (8) Add at the end the following new subsections:
  ``(f) Approval of Allotments.--(1) Subject to valid existing rights, 
and except as otherwise provided in this subsection, not later than 
January 31, 2007, the Secretary shall approve an application for 
allotments filed in accordance with subsection (a) and issue a 
certificate of allotment which shall be subject to the same terms, 
conditions, restrictions, and protections provided for such allotments.
  ``(2) Upon receipt of an allotment application, but in any event not 
later than October 31, 2005, the Secretary shall notify any person or 
entity having an interest in land potentially adverse to the applicant 
of their right to initiate a private contest or file a protest under 
existing Federal regulations.
  ``(3) Not later than January 31, 2007, the Secretary shall--
          ``(A) if no contest or protest is timely filed, approve the 
        application pursuant to paragraph (1); or
          ``(B) if a contest or protest is timely filed, stay the 
        issuance of the certificate of allotment until the contest or 
        protest has been decided.
  ``(g) Reselection.--A person who made an allotment selection under 
this section before the date of the enactment of Alaska Native Veterans 
Land Allotment Equity Act may withdraw that selection and reselect 
lands under this section if the lands originally selected were not 
conveyed to that person before the date of the enactment of Alaska 
Native Veterans Land Allotment Equity Act.''.

SEC. 3. REGULATIONS.

  Not later than 1 year after the date of the enactment of this Act, 
the Secretary of the Interior shall issue final regulations to 
implement the amendments made by this Act.

                          Purpose of the Bill

    The purpose of H.R. 3148 is to amend the Alaska Native 
Claims Settlement Act to provide equitable treatment of Alaska 
Native Vietnam veterans, and for other purposes.

                  Background and Need for Legislation

    In 1998, Public Law 105-276 amended the Alaska Native 
Claims Settlement Act (ANCSA) to provide Alaska Native Vietnam 
veterans an opportunity to obtain an allotment of up to 160 
acres of land under the Native Allotment Act. Approximately 
2,800 Alaska Natives served in the military during the Vietnam 
conflict and therefore did not have an opportunity to apply for 
their Native allotment. However, Public Law 105-276 contains 
three major obstacles that prevent Alaska Native Vietnam 
veterans from selecting and obtaining their Native allotment. 
First, Alaska Native Vietnam veterans can only apply for land 
that was vacant, unappropriated, and unreserved when their use 
first began. Second, Alaska Native Vietnam veterans can only 
apply if they served in active military duty from January 1, 
1969 to December 31, 1971 (even though the Vietnam conflict 
began August 5, 1964 and ended May 7, 1975). Third, Alaska 
Native Vietnam veterans must prove they used the land (applied 
for in their native allotment application) in a substantially 
continuous and independent manner, at least potentially 
exclusive of others, for five or more years. This requirement 
was not in the original Native Allotment Act, nor has it been 
required of other Alaska Native applicants in applying for 
their native allotment. Further, adjudication of use and 
occupancy issues will take years and will be very costly.
    H.R. 3148 will increase the available land by authorizing 
Alaska Native Vietnam veterans to apply for land that is 
federally owned and vacant. The lack of available land under 
existing law nullifies the very purpose of granting Alaska 
Native Vietnam veterans an allotment benefit. H.R. 3148 will 
also expand the military service dates to coincide with the 
entire Vietnam conflict: August 5, 1964 through May 7, 1975. 
The expansion of military service dates to include all Alaska 
Natives who served in the military during the Vietnam conflict 
is consistent with the federal government's policy of providing 
benefits to veterans of the Vietnam war. In addition, H.R. 3148 
will also replace existing use and occupancy requirements with 
legislative approval of allotment applications. Use and 
occupancy requirements would be replaced for several reasons: 
(1) Congress has made legislative approval available to all 
other allotment applicants under 43 U.S.C. 1634(a)(1)(A); (2) 
legislative approval of allotments prevents costly and lengthy 
adjudication of use and occupancy issues; and (3) many Alaska 
Native Vietnam veterans could not meet use and occupancy 
requirements as a result of military service.
    The bill would also extend the deadline of the allotment 
application to three years after the Secretary of the Interior 
issues final regulations under section 3 of the bill. H.R. 3148 
would also correct the dates of approval of allotments to 
accommodate the extension of the application process of an 
Alaska Native Vietnam veteran. Language has also been added to 
assure ANCSA native corporations that their land entitlement 
would remain intact when a veteran makes his or her allotment 
land selection on corporation lands. For security reasons, H.R. 
3148 prohibits an Alaska Native Vietnam veteran from selecting 
lands within the right of way granted for the TransAlaska 
Pipeline (or the inner or outer corridor of that right-of-way) 
and lands withdrawn or reserved for national defense purposes. 
Section 2(g) would allow a person who made an allotment 
selection under this section, before the date of enactment of 
this bill, to withdraw that selection and reselect lands under 
this section if the lands originally selected were not conveyed 
to that person prior to enactment of this bill. H.R. 3148 also 
directs the Secretary of the Interior to develop final 
regulations to implement the bill.

                            Committee Action

    H.R. 3148 was introduced on October 16, 2001, by 
Congressman Don Young (R-AK). The bill was referred to the 
Committee on Resources. On June 5, 2002 the Committee held a 
hearing on the bill. On September 12, 2002, the Committee met 
to mark up the bill. Congressman Don Young offered an amendment 
in the nature of a substitute to make several changes 
recommended by Doyon Limited, CIRI, several Alaska Native 
Corporations and Alyeska Pipeline Company. It was adopted by 
voice vote. The bill, as amended, was then ordered favorably 
reported to the House of Representatives by voice vote.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in tax 
expenditures. According to the Congressional Budget Office, 
H.R. 3148 could increase direct spending, but they estimate 
that any such impact would not be significant.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Alaska Native Claims 
Settlement Act to provide equitable treatment of Alaska Native 
Vietnam Veterans, and for other purposes.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 3, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3148, the Alaska 
Native Veterans Land Allotment Equity Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 3148--Alaska Native Veterans Land Allotment Equity Act

    Summary: H.R. 3148 would amend current law to authorize the 
Secretary of the Interior to grant allotments of federal lands 
to certain Alaska Natives or their heirs. CBO estimates that 
implementing H.R. 3148 would cost $11 million over the 2003-
2007 period, assuming appropriation of the necessary amounts. 
The bill could increase direct spending, but we estimate that 
any such impact would not be significant.
    H.R. 3148 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would have no significant impact on the budgets of state, 
local, or tribal governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3148 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2003     2004     2005     2006     2007
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................        1        2        3        4        1
Estimated Outlays..................................................        1        2        3        4        1
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: Assuming appropriation of the necessary 
amounts, CBO estimates that implementing H.R. 3148 would cost 
$11 million over the next five years. We also estimate that the 
bill could reduce offsetting receipts (a credit against direct 
spending), but by less than $500,000 a year. For this estimate, 
CBO assumes that H.R. 3148 will be enacted early in fiscal year 
2003 and that the necessary funds will be provided near the 
start of each fiscal year. Estimates of outlays are based on 
historical spending patterns for similar activities.

Spending subject to appropriation

    H.R. 3148 would amend current law to authorize the 
Secretary of the Interior to grant allotments of federal lands 
to certain Alaska Natives who served in the armed forces in 
Vietnam during the period from August 5, 1964, to May 7, 1975. 
The bill also would authorize the Secretary to grant allotments 
to the heirs of eligible deceased veterans, and, under certain 
circumstances, would allow certain other Alaska Native 
individuals and organizations with existing allotments to 
withdraw those allotments and select other lands instead. H.R. 
3148 would direct the Secretary to promulgate regulations to 
implement the proposed program and specifies that applications 
to participate could be submitted until three years after the 
date when those regulations are published. Under the bill, any 
application still pending as of January 31, 2007, would be 
automatically approved at that time, provided that no other 
party has contested the application.
    Based on information from the Department of the Interior 
(DOI), CBO estimates that issuing regulations pursuant to H.R. 
3148 would cost about $1 million in 2003. We also estimate that 
eligible Alaska Natives would file up to 2,000 new applications 
for allotments. Assuming that, on average, the department 
spends $5,000 to review each application permit, we estimate 
that the costs of processing those applications would total $10 
million over the 2004-2007 period.

Direct spending

    Under H.R. 3148, eligible Alaska Natives could apply for 
allotments on a wide variety of federal lands in Alaska, 
including those that might produce offsetting receipts from 
programs to develop natural resources. According to DOI, the 
Secretary is unlikely to approve applications for allotments on 
lands that are expected to generate significant receipts over 
the next 10 years. Under the bill, it is possible that some 
applications may be automatically approved on January 31, 2007, 
even if the Secretary has not had sufficient time to review 
them. However, any applications so approved would be subject to 
valid existing rights; hence, we estimate that any forgone 
offsetting receipts under H.R. 3148 would likely be 
insignificant.
    Intergovernmental and private-sector impact: H.R. 3148 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would have no significant impact on the 
budgets of state, local, or tribal governments.
    Estimate prepared by: Federal Costs: Megan Carroll; Impact 
on State, Local, and Tribal Governments: Marjorie Miller; and 
Impact on the Private Sector: Cecil McPherson.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

         SECTION 41 OF THE ALASKA NATIVE CLAIMS SETTLEMENT ACT

     OPEN SEASON FOR CERTAIN ALASKA NATIVE VETERANS FOR ALLOTMENTS

  Sec. 41. (a) In General.--[(1) During the eighteen month 
period following promulgation of implementing rules pursuant to 
subsection (e), a person described in subsection (b) shall be 
eligible for an allotment of not more than two parcels of 
federal land totaling 160 acres or less under the Act of May 
17, 1906 (chapter 2469; 34 Stat. 197), as such Act was in 
effect before December 18, 1971.] (1) The period for filing 
allotments under this Act shall end 3 years after the Secretary 
issues final regulations under section 3 of the Alaska Native 
Veterans Land Allotment Equity Act. A person described in 
paragraph (1) or (2) of subsection (b) shall be eligible for an 
allotment of not more than two parcels of Federal land totaling 
160 acres or less.
  [(2) Allotments may be selected only from lands that were 
vacant, unappropriated, and unreserved on the date when the 
person eligible for the allotment first used and occupied those 
lands.
  [(3) The Secretary may not convey allotments containing any 
of the following--
          [(A) lands upon which a native or non-native campsite 
        is located, except for a campsite used primarily by the 
        person selecting the allotment;
          [(B) lands selected by, but not conveyed to, the 
        State of Alaska pursuant to the Alaska Statehood Act or 
        any other provision of law;
          [(C) lands selected by, but not conveyed to, a 
        Village or Regional Corporation;
          [(D) lands designated as wilderness by statute;
          [(E) acquired lands;
          [(F) lands containing a building, permanent 
        structure, or other development owned or controlled by 
        the United States, another unit of government, or a 
        person other than the person selecting the allotment;
          [(G) lands withdrawn or reserved for national defense 
        purposes other than National Petroleum Reserve-Alaska;
          [(H) National Forest Lands; and
          [(I) lands selected or claimed, but not conveyed, 
        under a public land law, including but not limited to 
        the following:
                  [(1) Lands within a recorded mining claim.
                  [(2) Home sites.
                  [(3) Trade and Manufacturing sites.
                  [(4) Reindeer sites or headquarters sites.
                  [(5) Cemetery sites.]
  (2)(A) Allotments may be selected from the following:
          (i) Vacant lands that are owned by the United States;
          (ii) Lands that have been selected or conveyed to the 
        State of Alaska if the State voluntarily relinquishes 
        or conveys to the United States the land for the 
        allotment.
          (iii) Lands that have been selected or conveyed to a 
        Native Corporation if the Native Corporation 
        voluntarily relinquishes or conveys to the United 
        States the land for the allotment.
  (B) A Native Corporation may select an equal amount of acres 
of appropriate Federal land within the State of Alaska to 
replace lands voluntarily relinquished or conveyed by that 
Native Corporation under subparagraph (A)(iii).
  (C) For security reasons, allotments may not be selected 
from--
          (i) lands within the right-of-way granted for the 
        TransAlaska Pipeline; or
          (ii) the inner or outer corridor of that right-of-way 
        withdrawal.

           *       *       *       *       *       *       *

  (b) Eligible Person.--(1) [A person] Except as provided in 
paragraph (3), a person is eligible to select an allotment 
under this section if that person--
          (A) * * *
          [(B) is a veteran who served during the period 
        between January 1, 1969 and December 31, 1971 and--
                  [(i) served at least 6 months between January 
                1, 1969 and December 31, 1971; or
                  [(ii) enlisted or was drafted into military 
                service after June 2, 1971 but before December 
                3, 1971.
  [(2) The personal representative or special administrator, 
appointed in an Alaska State court proceeding of the estate of 
a decedent who was eligible under subsection (b)(1)(A) may, for 
the benefit of the heirs, select an allotment if the decedent 
was a veteran who served in South East Asia at any time during 
the period beginning August 5, 1964, and ending December 31, 
1971, and during that period the decedent--
          [(A) was killed in action;
          [(B) was wounded in action and subsequently died as a 
        direct consequence of that wound, as determined by the 
        Department of Veterans Affairs; or
          [(C) died while a prisoner of war.]
          (B) is a veteran who served during the period between 
        August 5, 1964, and May 7, 1975, including such dates.
  (2) If an individual who would otherwise have been eligible 
for an allotment dies before applying for the allotment, an 
heir on behalf of the estate of the deceased veteran may apply 
for and receive the allotment.
  (3) No person who received an allotment or has a pending 
allotment under the Act of May 17, 1906 may receive an 
allotment under this section, except for an heir who applies 
and receives an allotment on behalf of the estate of a deceased 
veteran pursuant to paragraph (2).

           *       *       *       *       *       *       *

  [(e) Regulations.--No later than 18 months after enactment of 
this section, the Secretary of the Interior shall promulgate, 
after consultation with Alaska Natives groups, rules to carry 
out this section.]
  (e) Regulations.--All regulations in effect immediately 
before the enactment of subsection (f) that were promulgated 
under the authority of this section shall be repealed in 
accordance with section 552(a)(1)(E) of the Administrative 
Procedure Act (5 U.S.C. 552(a)(1)(E)).
  (f) Approval of Allotments.--(1) Subject to valid existing 
rights, and except as otherwise provided in this subsection, 
not later than January 31, 2007, the Secretary shall approve an 
application for allotments filed in accordance with subsection 
(a) and issue a certificate of allotment which shall be subject 
to the same terms, conditions, restrictions, and protections 
provided for such allotments.
  (2) Upon receipt of an allotment application, but in any 
event not later than October 31, 2005, the Secretary shall 
notify any person or entity having an interest in land 
potentially adverse to the applicant of their right to initiate 
a private contest or file a protest under existing Federal 
regulations.
  (3) Not later than January 31, 2007, the Secretary shall--
          (A) if no contest or protest is timely filed, approve 
        the application pursuant to paragraph (1); or
          (B) if a contest or protest is timely filed, stay the 
        issuance of the certificate of allotment until the 
        contest or protest has been decided.
  (g) Reselection.--A person who made an allotment selection 
under this section before the date of the enactment of Alaska 
Native Veterans Land Allotment Equity Act may withdraw that 
selection and reselect lands under this section if the lands 
originally selected were not conveyed to that person before the 
date of the enactment of Alaska Native Veterans Land Allotment 
Equity Act.

            DISSENTING VIEWS OF REPRESENTATIVE GEORGE MILLER

    While cloaked in a veil of sympathetic beneficiaries, this 
legislation is fraught with substantive problems. By 
resurrecting an old homesteading statute, the Allotment Act of 
1906--which was repealed by Congress in 1971--H.R. 3148 would 
allow any Alaska Native (or their heirs) who served in the 
military anytime between 1964 and 1975 to freely select and 
receive up to 160 acres of public land in Alaska. As a result, 
several hundred thousand acres of pristine and valuable lands 
could be conveyed out of public ownership, with several 
thousand new private inholdings created in national parks, 
national wildlife refuges, national forests, military 
withdrawals and other important public lands in Alaska. Once 
conveyed, such allotment lands may be developed or even sold 
without restriction.
    In 1971, the Alaska Native Claims Settlement Act granted 
Alaska Native corporations over 44 million acres of land and 
over $1 billion to manage on behalf of Native shareholders. In 
1958, the Alaska Statehood Act provided the State of Alaska 
over 104 million acres of land. Yet neither the Alaska Native 
corporations nor the State have chosen to grant any of their 
own lands to Native veterans of Vietnam or any other era as a 
reward for their military service. Instead, H.R. 3148 seeks yet 
again to make more private withdrawals from the bank of lands 
that are owned by the United States for the benefit of all the 
American people.
    Congress has twice in recent years addressed the ``missed 
opportunity'' equities of Alaska Natives who served in the 
military just prior to the 1971 repeal of the Allotment Act of 
1906 and who may have lost out on their opportunities to apply 
because of that service. In 1998, a rider on the FY 99 VA-HUD 
Appropriations bill (Public Law 105-276) restored eligibility 
for a limited class of military veterans, those who served 
between 1969 and 1971. In 2000, additional refinements and 
technical changes were made (Public Law 106-559).
    At that time, however, the Department of the Interior 
stated that ``we are opposed to further changes or expansion of 
the law, which we believe fully and fairly addresses the 
problem of lost opportunity due to military service for Alaska 
Native veterans of the Vietnam War to apply for allotments.'' 
And the Democratic floor manager stated that ``by allowing this 
bill to proceed, it is our intent that this action is final and 
that there will be no further extensions of land claims under 
an act that was passed by Congress at the turn of the century 
and repealed three decades ago.'' [See: Congressional Record, 
October 10, 2000 at page H9616]
    Unfortunately, H.R. 3148 would rewrite the 1998 and 2000 
negotiated agreements, disregard the ``missed opportunity'' 
rationale and eliminate the eligibility criteria of the 
original Allotment Act. The bill would substantially expand the 
number of veterans, or their heirs, who could obtain lands, and 
open public lands such as wilderness areas or the Tongass and 
Chugach National Forests that are off-limits under current law. 
In effect, it would sanction thousands of new claims on 
virtually any federal lands in Alaska, without even any showing 
of prior use or occupancy of the lands as was required under 
the Allotment Act.
    The substitute adopted at the committee markup does not 
remedy any of the fundamental flaws of the legislation. It puts 
the Trans-Alaska Pipeline corridor off-limits to new allotment 
land grants, but fails to similarly protect Department of 
Defense lands or other congressional designated reserves and 
conservation areas. It allows Native corporations and the State 
of Alaska to chose to convey lands for Native allotments, but 
further undercuts and complicates public land management in 
Alaska by providing that they will be reimbursed by the Untied 
States with additional lands.
    Even the Bush Administration testified in strong opposition 
to H.R. 3148 at the June 5, 2002 full committee hearing. In a 
June 21st letter, the Department of the Interior restated their 
rationale for opposing the bill, noting that it ``essentially 
makes the renewal of the opportunity to apply for an allotment 
under the 1906 Allotment Act a special bonus or reward for 
service for one class of Alaska Natives, those who served in 
the Vietnam war, but no longer has any basis in missed 
opportunity. * * * This bonus program, available only to Alaska 
Natives and to no other veterans, also raises the possibility 
of Constitutional challenge as to whether it may be an 
impermissible preference.'' [See: Attachment A] An analysis 
dated September 24, 2002 by the Congressional Research Service 
states that ``it is possible that the courts might view H.R. 
3148's extension of a benefit to Alaska Native veterans not 
shared by all veterans or non-Alaska Native residents of the 
State as describing a racial classification subject to strict 
judicial scrutiny under the Equal Protection Clause.'' [See: 
Attachment B]
    Regardless of its potential Constitutional defects, H.R. 
3148 is fundamentally bad public policy. It reopens and 
exponentially expands the Allotment Act of 1906 that Congress 
repealed in 1971 when it enacted the most generous land 
settlement in United States history. It discards the equitable 
missed opportunity premise underlying the negotiated agreements 
of 1998 and 2000 and discards the protections in those laws to 
expose wilderness areas, national forests and other valuable 
public lands to privatization.
    H.R. 3148 should not have been reported by the Committee on 
Resources and it should be rejected if it comes before the 
House of Representatives.

                                                     George Miller.

                             [ATTACHMENT A]

                        Department of the Interior,
                                   Office of the Secretary,
                                     Washington, DC, June 21, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter responds to your request for 
the views of the Department of the Interior on H.R. 3148, which 
would amend section 1629(g) of the Alaska Native Claims 
Settlement Act (ANCSA), originally enacted as the Alaska Native 
Vietnam Veterans Allotment Act of 1998 (Section 432 of Public 
Law 105-276). The purpose of the 1998 Act was to redress 
unfairness that may have resulted for certain Alaska Native 
Veterans of the Vietnam War who may have missed an opportunity 
to apply for an allotment under the 1906 Native Allotment Act 
because of service in the armed forces immediately prior to the 
repeal of the Allotment Act. The Allotment Act was repealed 
with the enactment of ANCSA on December 18, 1971. The 1998 Act 
gave qualified Vietnam veterans a renewed opportunity to apply 
under the Allotment Act. This letter follows and confirms my 
testimony to the Committee on June 5, 2002.
    We certainly support the principle of equitable treatment 
of Alaska Vietnam Veterans, and we have made every effort at 
fairness under the 1998 Act. While we have made considerable 
progress under the 1998 Act, we appreciate that there may be 
frustrations among many Alaska Native veterans under the 
current act, frustrations in that there are limitations on 
eligibility and entitlements under the Act, frustrations about 
time of administration, and frustrations in that all are not 
entitled. We believe there may be a misconception among many 
Native veterans that because they served, they are entitled to 
an allotment. That was not the purpose of the 1998 Act.
    The new bill, H.R. 3148, while it aims at fairness, raises 
a number of serious new policy, management, and technical 
concerns, and it would give rise to new issues of fairness with 
respect to other Alaska Natives and other Vietnam veterans. It 
would undo the important compromises reached in the passage of 
the 1998 Act. It would stall, if not negate the progress made 
so far under the 1998 Act, and it would disrupt ongoing 
progress, settled land use arrangements under ANCSA and ANILCA, 
and efforts to finalize land entitlements under ANCSA, the 
Statehood Act, and the 1906 Allotment Act. Therefore the 
Administration is opposed to H.R. 3148.
    H.R. 3148 is a significant departure from the original 
``missed oppostunity'' concept of the Alaska Native Vietnam 
Veterans Allotment Act. H.R. 3148 extends the eligibility 
period of the current Native Vietnam Veterans Allotment Act. 
H.R. 3148 extends the eligibility period of the current law 
from a three year period to the entire Vietnam Era, from 1964 
to 1975, including four additional years after the 1971 repeal 
of the Alaska Native Allotment Act, when other Alaska Natives 
could no longer apply. Essentially, most if not all Alaska 
Native Vietnam veterans, or the heirs of deceased veterans, 
would appear to be eligible to apply for an allotment.
    The 1998 Act limited military service eligibility to those 
individuals who served between 1969 and 1971. The rationale 
behind this limitation was the fact that that was the period 
when missed opportunity because of service was likely to occur. 
Also, there was a major effort by the Bureau of Indian Affairs, 
Alaska Legal Services Corporation, the Rural Alaska Community 
Action Program (RurAlCAP) and other entities during this period 
to solicit the filing of Native allotment applications in 
anticipation of the repeal of the 1906 Act. Those Alaska 
Natives who were serving in the military during this period may 
not have been able to benefit from the outreach effort. 
Veterans who served prior to January 1, 1969, generally had the 
same opportunities to learn about the Native allotment program 
and to apply as any other Alaska Native. Those who served after 
December 18, 1971, as with all other Alaska Natives, had no 
further opportunity to apply for allotments because of repeal 
of the Act. Neither group can be considered to have missed 
their opportunity to apply for an allotment because of their 
military service.
    The new bill, H.R. 3148, essentially makes the renewal of 
the opportunity to apply for an allotment under the 1906 
Allotment Act a special bonus or reward for service for one 
class of Alaska Natives, those who served in the Vietnam war, 
but no longer has any basis in missed opportunity.
    H.R. 3148 would thus discriminate and create inequities 
between Alaska Native Vietnam veterans and Natives who did not 
serve in the military, between Native veterans and non-Native 
veterans, and between Native veterans with military service 
during the Vietnam Era and Native veterans who served in World 
War II, Korea, or other conflicts. This bonus program, 
available only to Alaska Natives and to no other veterans, also 
raises the possibility of Constitutional challenge as to 
whether it may be an impermissible preference.

Progress under the current law

    From the passage of the 1998 Act until the final 
regulations were published, BLM conducted extensive outreach 
efforts to reach potential Alaska Native Veteran Allotment 
applicants. These efforts are detailed on the attached 
appendix.
    Section 432 of Public Law 104-276 required the Secretary of 
the Interior to promulgate regulations within 18 months to 
carry out the Alaska Native Veterans Allotment program. The law 
also provided for an 18-month application filing period to 
begin when the regulationsbecame effective. On February 8, 
2000, following a series of public meetings to gather input from Native 
groups, State and Federal entities, and private individuals and groups, 
a proposed rule was published in the Federal Register. Following a 60-
day comment period, the final rule was published on June 30, 2000. 
Revised regulations to implement the terms of a December 2000 amendment 
to the 1998 Act were published in final form on October 16, 2001.
    During development of the regulations to implement the 1998 
Act, the BLM estimated that as many as 1,100 Alaska Native 
veterans might be eligible to apply for allotments under the 
provisions of that Act. This estimate was based on analysis of 
the DVA data used to prepare the Department's 1997 Report to 
Congress, and was inflated somewhat to account for the fact 
that there were potentially eligible individuals who were not 
identified by DVA.
    The filing period for Native veterans allotment 
applications began on July 31, 2000, and continued through 
January 13, 2002. BLM received applications for 991 parcels of 
land from more than 700 individual applicants. A majority of 
the applications were received, and approximately 700 parcels 
were claimed during January 2002, the last month of the filing 
period. Many of the applications filed in 2000 and 2001 have 
been rejected because of non-resident status, failure to meet 
military service criteria, or application for lands that have 
been conveyed or are not available. For applications involving 
unavailable lands, BLM made every effort to identify those 
applications as quickly as possible so that applicants who are 
otherwise eligible could still have the opportunity to apply 
for other land.
    We do not know at this time how many of the applications 
filed in January 2002 are legally sufficient or defective, in 
part because we have had to concentrate our efforts on 
serializing the large, late influx of new applications and 
having them noted to the official BLM records. We note that 
approximately 250 applications received at the end of the 
filing period contained no land descriptions. Work is ongoing 
on other veterans applications. Field examination and survey of 
veterans allotment parcels are mixed in with existing schedules 
for similar work on original applications filed under the 1906 
Act.
    Also pursuant to section 432 of P.L. 105-276, the 
Department has submitted a report to the Congress on the status 
of Alaska Vietnam veterans who served during a period other 
than that specified for eligibility under section 432. The 
report made an extensive survey of circumstances of Alaska 
Vietnam veterans and reasons why they did not apply under the 
Allotment Act, but it recommended against expanding the 
eligibility period and raised no considerations consistent with 
terms proposed by H.R. 3148.

Other problems with H.R. 3148

    In addition to the fairness and potential Constitutional 
problems noted above, the bill raises other serious concerns.

            H.R. 3148 rescinds all regulations promulgated to implement 
                    the current law
    H.R. 3148 would repeal all regulations promulgated under 
the Alaska Native Veterans Allotment Act of 1998, which 
includes the original regulations published in the Federal 
Register in June 2000 (43 CFR 2568) as well as the amended 
regulations published on October 16, 2001, to implement the 
changes made by Public law 106-559 in December 2000 (the 
amended regulations became effective on November 15, 2001). 
Eliminating the veterans allotment regulations would not only 
leave BLM and the other land management agencies without any 
guidance to implement the program, but it would also leave 
applicants with no certainty of what is expected of them. These 
regulations provide, among other matters, the guidance 
essential for the processing of veterans allotment 
applications, the rules governing compatibility determinations 
for applications in Conservation System Units, the rules 
governing appeals from different types of decisions, and 
safeguards to State and ANCSA entitlements.

            H.R. 3148 removes protections for certain lands provided 
                    under the 1998 act
    The change in the definition of available lands for 
allotments from ``vacant, unappropriated, and unreserved'' to 
``vacant lands that are owned by the United States'' raises the 
question whether the prior requirements of the 1906 Allotment 
Act still apply. Section (b)(1) of the 1998 Act, as kept under 
HR 3148, would indicate that they do, but the new (a)(2) is 
conflicting. If the term ``vacant land of the United States'' 
controls, then any vacant U.S. lands are open, including parks, 
refuges, wilderness, and possible defense properties. CSU 
protections may be rendered moot. Previously withdrawn lands, 
including, for instance, Tongass National Forest, would 
presumably become available. Further, H.R. 3148 proposes to 
repeal 43 U.S.C. 1629g(a)(3), which protected numerous special 
areas, including acquired lands, lands withdrawn for defense 
purposes, National Forest lands, wilderness, campsites, trade 
and manufacturing sites, lands containing buildings or other 
development, cemetery sites, home sites, and more. Defense and 
acquired lands would be available. For instance, since 1991, 
the Fish and Wildlife Service has spent over 150 million 
dollars acquiring land on Alaska's National Wildlife Refuges, 
mostly from Native corporations and allotted. These newly 
acquired lands would be available for Native veteran allotment 
applications under this bill.
    Additionally, H.R. 3148 may eliminate the standard 
Allotment Act rules concerning use and occupancy of the land. 
This changes previous tenets of law for occupancy of public 
lands.
    In a related issue, it is unclear whether H.R. 3148 would 
eliminate the requirement of the 1906 Native Allotment Act that 
an applicant must be a resident of Alaska. Allowing Native 
allotments in Alaska for non-residents, many of whom have never 
lived in Alaska, we believe would be totally contrary to the 
intent of both the 1906 Act and the 1998 Alaska Native Veterans 
Allotment Act. While we do not interpret the language in H.R. 
3148 as eliminating the residency requirement, we wish to make 
it clear that we are opposed to any effort to eliminate 
thisrequirement and we object to any language which could be 
interpreted to do so.

            H.R. 3148 provides for legislative approval of all 
                    applications eighteen months after the filing 
                    deadline
    This, combined with the rescission of the regulations, 
virtually assures that most applications will be approved 
without the regular review process and without the applicants 
demonstrating that they used and occupied the claimed land in 
accordance with the 1906 Native Allotment Act and remaining 
regulations. Persons who do not meet the use and occupancy 
requirements can apply for land secure in the knowledge that 
becasue of short time frames and lack of regulations, BLM will 
not be able to field examine and adjudicate most claims by the 
deadline and most will ultimately be legislatively approved. 
This will encourage wrongful claims and result in wrongful 
conveyance of Federal land. It will also render ineffective the 
protections provided to conservation system units (CSU's) by 
Section (1)(a)(5) of the existing law.
            Eligibility of all heirs of all decedents
    Although the right to file an application under the 1906 
Allotment Act did not survive the death of an individual, the 
1998 Act, for the first time in the history of public land law, 
allowed the filing of an allotment application by the personal 
representative of the estate of a deceased veteran if that 
veteran died in combat or as a POW during a certain period of 
time or died later as a result of a service connected wound 
received during that time. The military service eligibility 
period for deceased veterans in Section 432 was January 1, 
1969, through December 31, 1971; this period was expanded by 
the December 2000 amendment to include the period beginning 
August 5, 1964, and ending December 31, 1971. These provisions 
were a carefully limited compromise from earlier pre-enactment 
provisions that allowed all heirs to apply, strongly opposed by 
the Department.
    The lack of manageability of allowing all heirs to apply 
can be illustrated by reference to one word, Cobell. At the 
core of that now infamous law case is the essential 
impossibility of tracking multiplying heirs and fractionated 
heirships. H.R. 3148 would eliminate all reference to a 
personal representative and would allow ``an heir'' to apply 
for an allotment on behalf of the estate of a deceased veteran. 
Many Native allotment applicants have numerous heirs, and many 
estates of deceased Natives have never been probated so 
heirship is unknown. H.R. 3148 would put the Department in the 
business of attempting to determine eligible heirs, of having 
to establishing the class of possible eligible heirs in order 
to grant an allotment, and of risking, after such allotment 
were granted, facing another claim by some other undiscovered 
heir. Multiple potential heirs could apply on behalf of a 
single estate, and if there is a dispute among heirs, BLM would 
have to engage in the conflict.
    When combined with the 18 month legislative approval, a 
likely result of the heirship provisions is that several claims 
could be approved for the same decedent, even if conflicting, 
because necessary review would not be achieved in the 18 
months.
    Added to this is the inevitable additional difficulty of 
proof of site and of use and occupancy through heirs, rather 
than by the original occupant. There is substantial potential 
for conflict, litigation, and delay of all allotment 
applications by virtue of any heirship provision. The 
Department is strongly opposed to any expansion of rights of 
heirs to apply.

            Unrealistic deadlines and impacts on current ANCSA, State, 
                    and Allotment Act conveyances and on third party 
                    interests
    Because the work on new Veterans applications is 
necessarily mixed in with current work on already pending 
Allotment, State, and ANCSA applications the bill would result 
in devastating impacts on BLM's ability to finalize State and 
ANCSA land transfer entitlements and to complete conveyances to 
other Alaska Natives under the 1906 Native Allotment Act.
    We estimate that the potential exists for as many as 5200 
parcels of land to be claimed under the expanded eligibility 
provisions of H.R. 3148. H.R. 3148 would create a filing period 
for applications ending on July 31, 2003. The bill also 
contains a provision for approval of veterans allotment 
applications and issuance of certificates of allotment ``not 
later than January 31, 2005, that is, eighteen months after the 
end of the filing period. This deadline is problematic for two 
reasons: (1) it is unrealistic to expect as many as 5200 
individual parcels of land to be adjudicated, examined, 
surveyed, and conveyed in an eighteen-month period (survey 
alone normally takes longer than eighteen months from issuance 
of survey instructions and contracts to approval of survey 
plats and field notes and notation of surveys to BLM records); 
and (2) the deadline would necessitate that the processing of 
veterans allotment applications be placed ahead of State 
applications and other Native applications under the 1906 Act 
and under the Alaska Native Claims Settlement Act.
    BLM records show that more than 3100 parcels claimed under 
the 1906 Allotment Act are still pending and awaiting final 
disposition. Many of the applicants for these parcels have been 
waiting for decades to receive title to their allotments.
    Third party or adverse interests could be compromised by 
the application and protest deadlines and automatic approvals 
of allotment applications, resulting in potential takings, 
since the Department will not have the time to identify all 
third party interests in time to meet the protest requirements 
of the bill and third parties may not be informed and be able 
to protest and adjudicate their interests before an allotment 
is approved.
    These are some, but not all of the serious concerns raised 
by the bill. We believe that the bill will cause far more 
problems than it will solve.
    The Office of Management and Budget advises that there is 
no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                              Paul Hoffman,
          Deputy Assistant Secretary for Fish, Wildlife, and Parks.
                                ------                                

                             [ATTACHMENT B]

                            Congressional Research Service,
                                Washington, DC, September 24, 2002.

                               Memorandum

To: House Committee on Resources, Attention: Jeff Petrick.
From: M. Maureen Murphy, Legislative Attorney, American Law Division.
Subject: Potential Constitutional Issues in Connection with Providing 
        Allotments to Alaska Native Vietnam Era Veterans as Proposed in 
        H.R. 3148.

    This responds to your request for information on potential 
constitutional challenges that could be raised to H.R. 3148, 
the Alaska Native Veterans Land Allotment Equity Act,\1\ whicih 
the House Committee on Resources voted to report on September 
12, 2002. As requested, our response will be limited to 
identifying potential constitutional claims and describing the 
standards that the courts might apply in deciding the issues 
raised by them.
---------------------------------------------------------------------------
    \1\ A bill similar to H.R. 3148, as introduced, is S. 2553, 
introduced by Sen. Murkowski for himself and Sen. Stevens. 148 Cong. 
Rec. S2553 (May 22, 2002).
---------------------------------------------------------------------------
    This legislation would amend the Alaska Native Vietnam 
Veterans Allotment Act of 1998 (hereinafter, the Act),\2\ which 
resurrected a 1906 law repealed by the Alaska Native Claims 
Settlement Act of 1971 (ANCSA) \3\ for the limited purpose of 
permitting Alaska Native veterans who had been serving in the 
military during 1969, 1970, or 1971 to receive allotments of 
public lands in Alaska. The amendment would broaden the class 
of Alaska Native Vietnam Era veterans able to take advantage of 
this law and liberalize the conditions under which allotments 
may be granted.
---------------------------------------------------------------------------
    \2\ Pub. L. 105-276, Sec. 423, 112 Stat. 2516, 43 U.S.C. Sec. 1629g 
(1998).
    \3\ Pub. L. 92-203, 85 Stat. 688, 43 U.S.C. Sec. Sec. 1601 et seq.
---------------------------------------------------------------------------
    You are specifically interested in exploring what the 
Deputy Assistant Secretary of the Interior for Fish, Wildlife, 
and Parks, may have meant, in a June 21, 2002, memorandum to 
Chairman Hansen, by stating that the program contemplated by 
this legislation ``raises the possibility of Constitutional 
challenges as to whether it may be an impermissible 
preference.'' We not that the memorandum to Chairman Hansen 
does not elaborate on the reference to impermissible 
preference; nor does it assert that such a challenge would 
succeed. Whether such a challenge could succeed depends upon 
whether the class that is given a preference is held to be a 
suspect class, such as a class based on race, and whether in 
enacting the legislation Congress meets the standard that the 
courts will apply to the class distinguished for special 
treatment. Obviously, the group that is given preferential 
treatment in this legislation is comprised of Alaska Native 
veterans, who served in the years covered by this amendment. 
The reference in the memorandum, therefore, refers either to 
the possibility that the class is race-based because it 
consists of only Alaska Natives or to the fact that the 
beneficial treatment is being accorded on an arbitrary or 
capricious basis, rather than on a rational basis, to a group 
of Alaska Natives rather than all Alaska Natives; to a group of 
Vietnam Era Veterans rather than to all Vietnam Era veteran; or 
to a group of veterans rather than to all veterans. Without 
further specification, we can only speculate that this comment 
directs your attention to the possibility that the legislative 
history of this amendment would not provide a court sufficient 
information to conclude that Congress has met the appropriate 
standard for the legislation to survive equal protection 
scrutiny.
    The rationale behind the 1998 Act may not be easily 
transferable to the current proposal. The 1998 legislation 
appears to have been an attempt to remedy a perceived injustice 
visited upon Alaska Natives who were eligible for allotments 
under the 1906 act but were serving in the military immediately 
prior to its repeal by ANSCA. The logic is that if they were in 
military service, they might not have been fully able to take 
advantage of the widely publicized \4\ last opportunity to 
apply for an allotment.\5\ Remedying the situation addressed by 
the 1998 legislation, therefore, would seem to comport with the 
test the Supreme Court has applied to legislation that singles 
out Indians or Indian tribes for preferential treatment in such 
cases as Morton v. Mancari \6\ and Delaware Tribal Business 
Comm. v. Weeks.\7\ Morton v. Mancari, the Supreme Court upheld 
laws providing preferential BIA hiring for Indians, emphasizing 
the breadth of Congressional authority in Indian affairs. It 
indicated that laws providing preferential treatment for 
Indians wojuld be upheld: ``[a]s long as the special treatment 
can be tied rationally to the fulfillment of Congress' unique 
obligation toward the Indians, such legislative judgments will 
not be disturbed.'' \8\
---------------------------------------------------------------------------
    \4\ See 65 Fed. Reg. 6259 (February 8, 2000), describing efforts of 
Alaska Native Advocacy groups to contact eligible Natives who had not 
applied for allotments.
    \5\ In introducing the legislation that gave rise to the 1998 Act. 
Rep. Don Young set forth its remedial purpose: ``Alaska Natives, who 
were in service to their country during the Vietnam War, missed their 
opportunity to apply for a Native allotment under the Native Allotment 
Act. Many were in war zones and others had not received their 
application from the Bureau of Indian Affirs (BIA). It is my firm 
belief that our Alaska Native Vietnam veterans merit the same rights as 
other Alaska Natives under this act. It is morally wrong of our country 
* * * to deny them the basic right afforded to other Alaska Native 
citizens under this act. This legislation will correct this inequity 
and give them the opportunity to apply for their allotment under the 
Native Allotment Act.'' 143 Cong. Rec. E 2220, E 2221 (November 7, 1997 
daily ed.).
    \6\ 417 U.S. 535 (1994).
    \7\430 U.S. 73 (1977).
    \8\ 417 U.S. 535, 555.
---------------------------------------------------------------------------
    Whether that reasoning may be applied to H.R. 3148 with 
similar force depends to some extent upon the justification 
advanced in the legislative process. In enacting H.R. 3148, is 
Congress remedying failures in the original legislation and, 
thereby, acting as a trustee for the Alaska Natives whoe 
opportunities for allotments were foreclosed by their military 
service? If H.R. 3148 is merely providing an additional benefit 
to Alaska Native VietnamEra veterans not made available to any 
other Alaska Natives, Vietnam veterans, or veterans in general, the 
legislative history, to be most persuasive to a court, should indicate 
the reason for singling out those Alaska Native veterans in terms of 
some trusteeship obligation to them. Even if there is a sufficient 
showing of why Congress is obligated to provide this type of benefit 
for these beneficiaries or why Congress, in exercising its trusteeship 
powers in Indian affairs, has chosen to single this group out for 
special treatment, there lurks another issue that the courts may choose 
to address: how the enactment of ANSCA has altered Congress' 
trusteeship relationship towards Alaska Natives.
    H.R. 3148 would broaden eligibility for allotments under 
the 1998 legislation by: extending the time period during which 
military service would qualify an Alaska Native veteran for an 
allotment; permitting allotments in some land not covered in 
the 1998 legislation; removing various requirements in the 
earlier legislation; and broadening the class of survivors able 
to claim an allotment on the basis of a decedent. Among the 
requirements removed are those specifying: (1) that the land be 
``vacant, unappropriated, and unreserved on the date when the 
person eligible for the allotment first used and occupied those 
lands;'' \9\ and, (2) that the applicant for an allotment 
provide the Secretary of the Interior with proof of 
``substantially continuous use and occupancy of the land for a 
period of five years.'' \10\ Under the amendment, any Alaska 
Native veteran who served at any time in the Vietnam Era, 
August 5, 1964 to May 7, 1975, who is determined to meet the 
qualifications of the 1906 Act as it existed upon repeal, would 
be eligible. Moreover, survivors of such veterans would be able 
to apply. \11\
---------------------------------------------------------------------------
    \9\ 43 U.S.C. Sec. 1629g(a)(2).
    \10\ Act of May 17, 1906, ch. 2469, 34 Stat. 197, as amended and 
codified at, 43 U.S.C. Sec. Sec. 270-1 to 270-3, prior to repeal by 
Pub. L. 92-203, Sec. 18(a), 85 Stat. 710 (ANSCA) and incorporated by 
reference into Pub. L. 105-559, Sec. 301. (hereinafter, the 1906 Act).
    \11\ According to Rep. Young, who introduced this legislation, 
these are viewed as ``obstacles'' to the allotment process. 147 Cong. 
Rec. E 1894 (October 15, 2001).
---------------------------------------------------------------------------
    There are other liberalizing features in the proposal, some 
of which may be viewed as corrections of defects in the earlier 
legislation and the regulatory regime implementing it. The 
proposal requires repeal of the entire set of regulations 
issued under the 1998 law, indicating dissatisfaction with how 
the earlier remedial legislation had been implemented. Among 
the changes that might be seen as remedies for the failure of 
the current regulatory process of issue allotments 
appropriately is an extension of the time for filing 
applications. The proposal permits applications for 3 years 
after the Department of the Interior (DOI) issues final 
regulations. Current law provided an 18-inch period that ended 
January 31, 2002.\12\ Another is an expansion of the available 
lands. The current law limits the lands available for 
allotment. For example, it excludes campsites, wilderness 
areas, lands containing buildings owned other than by the 
person selecting the allotment, lands withdrawn for national 
defense purposes, national forest lands, and lands selected or 
claimed under a public land law, or lands selected by the State 
of Alaska or a Native Corporation and not conveyed.\13\ H.R. 
3148 specifies only that selections of allotments may not be 
made from lands within the Trans-Alaska Pipeline right-of-way 
and the inner corridor of that right-of-way withdrawal. The 
current law provides for limited survivor's benefits for the 
estates of decedents who served in South East Asia at any time 
from August 5, 1964 to December 31, 1971, and were killed in 
action or died from a wound received in action or as a prisoner 
of war, and requires application be submitted by the 
administrator or personal representative appointed by an Alaska 
state court.\14\ The proposal would permit heirs of any 
eligible Alaska Native Vietnam Era veteran to apply for the 
allotment on behalf of the estate.
---------------------------------------------------------------------------
    \12\ 43 C.F.R. Sec. 2568.70, as promulgated 65 Fed. Reg. 40954, 
40963 (June 30, 2000).
    \13\ 43 U.S.C. Sec. 1629g(3).
    \14\ 43 U.S.C. Sec. 1629g(b)(2).
---------------------------------------------------------------------------
    Given that the enlargement of the class of persons who may 
apply for allotments does not appear to be based upon the 
rationale behind the original legislation, the legislative 
history of the current proposal is likely to be scrutinized by 
a court that uses the Morton v. Mancari test and attempts to 
determine whether H.R. 3148 is legislation that is ``tied 
rationally'' to a trust obligation to Alaska Natives. It would 
appear that at least two factors would be important to such an 
inquiry: (1) any documentation in the legislative history with 
regard to the intention of Congress and (2) how the court 
assess the trust obligation of Congress with respect to Alaska 
Natives in light of the enactment of ANSCA.
    At present, without publication of a Report by the 
Committee, the leading piece of legislative history for H.R. 
3148 is Rep. Don Young's statement upon introducing the bill. 
In it, he identified the problem: ``Many Alaska Native Vietnam 
veterans'' who saw the 1998 Act ``as their last opportunity to 
obtain land which had been used by their families for 
generations for subsistence purposes'' ``lost'' that 
opportunity because they ``were excluded by the terms of * * * 
[the 1998 Act] * * *''\15\ He identified three obstacles to the 
allotment process that his legislation sought to address. Only 
two of these appear to be defects in the 1998 legislation with 
respect to its intended beneficiaries: lack of available land 
and proof of use of the land continuously for five or more 
years. Under the amendment, these corrections would modify 
requirements of the 1906 law as incorporated into the 1998 
legislation. Were H.R. 3148 confined to these provisions, the 
same rationale that serves for the earlier legislation might be 
applied to it. Increasing the available land and eliminating 
the continuous usage requirement arguably go to the missed 
opportunity of those serving in the military before the cut off 
date. This might be seen as nothing more than fine tuning the 
earlier legislation to prevent military service from impeding 
eligibility for an allotment.
---------------------------------------------------------------------------
    \15\ 147 Cong. Rec. E 1894 (October 16, 2001). The number of 
veterans so situated was estimated by Rep. Young to be 1,700.
---------------------------------------------------------------------------
    The third obstacle is another matter, permitting all 
Vietnam Era Alaska Native veterans to apply for a missed 
opportunity allotment. In presenting H.R. 3148, Mr. Young 
emphasized the expanded dates in terms of veterans' benefits, 
rather than fairness to those whose military service impeded 
their applications before the cut off date. He stated:

          The expansion of military service dates to include 
        all Alaska Native Vietnam veterans who served in the 
        military during the Vietnam conflict is consistent with 
        the federal government's policy of providing benefits 
        to all veterans for the Vietnam conflict and not just 
        to some of those veterans. This provision also fulfills 
        the trust obligation to Alaska Natives. The limited 
        military service dates have excluded many Alaska Native 
        Vietnam veterans who bravely served during the Vietnam 
        conflict. Never before has the United States given 
        veteran land benefits to only a portion of those who 
        served their country. The federal government has given 
        public land benefits to all veterans (or their widows 
        or heirs) of every war beginning with the Indian Wars 
        of 1790and ending with the Korean conflict in 1955. As 
Members will recall, Alaska Native veterans were not eligible for these 
public land benefits until 1924 because the courts had determined 
Alaska natives were not United States citizens.\16\
---------------------------------------------------------------------------
    \16\ Id., at E 1895.

    The key difference between the 1998 law and H.R. 3148 seems 
to be that the ending date for military service that determines 
eligibility in the 1998 law roughly \17\ coincides with the 
date that ANSCA was enacted and the 1906 allotment process was 
repealed. The dates of military service in the proposal are not 
coordinated to the repeal of the allotment process but to the 
Vietnam Era. This difference may open the way for a court to 
look at the issue of what trust obligation exists toward Alaska 
Natives following the enactment of ANSCA.
---------------------------------------------------------------------------
    \17\ ANSCA was effective December 18, 1971; military service until 
December 31, 1971, could be used to determine eligibility under the 
1998 Act, provided the veterans had served at least 6 months between 
January 19, 1969, and December 31, 1971, or enlisted or was drafted 
after June 2, 1971 but before December 3, 1971. 43 U.S.C. 
Sec. 1629g(b)(B).
---------------------------------------------------------------------------
    Federal laws granting preference to Indian tribes have been 
upheld under the Morton v. Mancari standard provided they are 
found to be rationally related to the trust obligation of the 
federal government toward Indians. Until the passage of ANSCA, 
the existence of that trust obligation was generally 
unquestioned. Beginning with the treaty by Alaska Natives to 
the Indian affairs authority of Congress,\18\ all branches of 
the federal government have treated Alaska Natives analogously 
to Indians as objects of a federal trust relationship. One of 
those efforts was in the direction of providing land for their 
occupancy and subsistence in legislation such as the 1906 
Alaska Natives Allotment Act and the 1926 Alaska Natives 
Townsite Act, as well as in instances of administratively 
established land reserves for Alaska Natives.\19\ The courts 
have been hospitable to the exercise of trusteeship powers by 
the federal government with respect to Alaska Natives.\20\
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    \18\ ``The uncivilized tribes will be subject to such laws and 
regulations as the United States may, from time to time, adopt in 
regard to aboriginal tribes of that country.'' Act of March 30, 1867, 
Art III, 15 Stat. 539, 542.
    \19\ See U.S. Department of Interior, Alaska Native Claims 
Settlement Act (ANSCA): ANSCA 1985 Study: June 29, 1984 Draft I-23 
(1985).
    \20\ See, e.g. Alaska Pacific Fisheries v. United States, 248 U.S. 
78 (1918); Territory of Alaska v. Annette Island Packing Co., 298 Fed. 
671 (9th Cir. 1923), cert. denied, 26 U.S. 708 (1923); In Re Sah Quah, 
31 F. 327 (D.Alaska 1886).
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    The recent case, Alaska v. Native Village of Venetie Tribal 
Government,\21\ may presage a change in that perspective, 
however. In Venetie, a unanimous Supreme Court rules against an 
Alaska Native entity, the Native of Village of Venetie Tribal 
Government, in its assertion of taxing authority. In reaching 
this conclusion, the Court construed various provisions of 
ANSCA as well as the federal Indian country statute, 18 U.S.C. 
Sec. 1151. Although the case did not present the issue of 
federal trusteeship over Alaska Natives or the existence of a 
government-to-government relationship between the United States 
and Alaska Native entities, the Court may have indicated a 
certain attitude to those issues. For example, it quoted 
extensively from provisions of ANSCA alluding to a change in 
the nature of the federal relationship after passage of the 
claims settlement legislation in 1971. For example, citing 43 
U.S.C. Sec. 1601(b), the Court stated:
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    \21\ 522 U.S. 520 (1998).

          In enacting ANSCA, Congress sought to end the sort of 
        federal supervision over Indian affairs that had 
        previously marked federal Indian policy. ANSCA's text 
        states that the settlement of the land claims was to be 
        accomplished ``* * * without establishing any permanent 
        racially defined institutions, rights, privileges, or 
        obligations [and] without creating a reservation system 
        or lengthy wardship or trusteeship'' \22\
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    \22\ 522 U.S. 520, 523-524 (emphasis in the original)

    Even before Venetie, claims of governmental powers by 
Alaska Native entities have not received full endorsement by 
the courts.\23\ Central to Morton v. Mancari is the Court's 
view of the political, government-to-government relationship 
between the federal government and the Indian tribes. Although 
whether such a relationship has been affected by ANSCA has not 
been determined by the courts, the effect of the Venetie 
decision, if not its precise holding, may be viewed as 
undermining the notion of Indian sovereignty for Alaska Native 
entities.\24\ Against this backdrop, it is possible that the 
courts might view H.R. 3148's extension of a benefit to Alaska 
Native veterans not shared by all veterans or non-Alaska Native 
residents of the State as describing a racial classification 
subject to strict judicial scrutiny under the Equal Protection 
Clause.\25\ Strict scrutiny generally requires that challenged 
legislation serve a ``compelling'' governmental interest and 
that it do so by ``narrowly tailored'' means. The Supreme Court 
has recognized that the federal government has a compelling 
interest in remedying ``lingering effects'' of past 
discrimination against a protected group. The nature and level 
of proof that must be advanced by the legislature in support of 
a remedial racial classification remain largely unsettled, 
however.\26\ Moreover, whether a traditional remedial rationale 
even applies may be questioned where the reason for preferring 
all Alaska Native Vietnam Era veterans, regardless of years of 
service abroad, over other Alaska Natives or other veterans has 
yet to be fully fleshed out. The bill's preference for Alaska 
Native Veterans may also call for a showing by the government 
that it is a necessary and effective vehicle for accomplishing 
a congressional purpose that may not be accomplished by race 
neutral means. This ``narrowly tailored'' aspect of strict 
scrutiny is generally designed to curb legislative overbreadth 
and confine the scope of any racial classification to the 
particular purpose sought to be served
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    \23\ See, e.g., Kake Village v. Egan, 369 U.S. 60 (1962); 
    \24\ See, John R. Bielski, ``Comment: Judicial Denial of 
Sovereignty for Alaskan Natives: An End to the Self-Determination 
Era'', 73 Temple L. Rev. 1279 (2000).
    \25\ Adarand Constructors v. Pena, 515 U.S. 200 (1995).
    \26\ E.g., Rothe Development Corp. v. U.S. Department of Defense, 
262 F.3d 1306 (Fed. Cir. 2001).
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    We hope this information assists you and that you will call 
upon our office should you need further assistance.
                                         M. Maureen Murphy,
                                              Legislative Attorney.

                                
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