29–010 

1Maniilaq represents twelve tribes, which are the Native Village of Ambler, the Native Village 

of Buckland IRA, the Native Village of Deering, the Native Village of Kiana, the Native Village 

of Kivalina IRA, Kobuk Traditional Council, the Native Village of Kotzebue, the Native Village 

of Noatak IRA, the Native Village of Noorvik IRA, Selawik IRA Council, the Native Village of 

Shungnak IRA, and the Native Village of Point Hope IRA. H.R. 443, H.R. 444, H.R. 1461, H.R. 

1556 and H.R. 2444: Hearing Before the Subcomm. on Indian and Alaska Native Affairs of the 

H. Natural Resources Comm., 112th Cong. 1 (2011) (written statement of Ian Erlich, President/ 

Chief Executive Officer, Maniilaq Association). 

Calendar No. 566 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–250 

TO PROVIDE FOR THE CONVEYANCE OF CERTAIN PROPERTY FROM THE UNITED STATES TO THE MANIILAQ 

ASSOCIATION LOCATED IN KOTZEBUE, ALASKA 

DECEMBER 13, 2012.—Ordered to be printed 

Mr. AKAKA, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany H.R. 443] 

The Committee on Indian Affairs, to which was referred the bill 

(H.R. 443) to provide for the conveyance of certain property from 

the United States to the Maniilaq Association located in Kotzebue, 

Alaska, having considered the same, reports favorably thereon 

without amendment and recommends that the bill do pass. 

PURPOSE

The purpose of H.R. 443, as ordered reported, is to provide for 

the conveyance by warranty deed of certain property located in 

Kotzebue, Alaska from the United States to the Maniilaq Association. 

BACKGROUND AND HISTORY

The Maniilaq Association (Maniilaq) is a non-profit organization 1

that provides a range of health and social services to residents of 

Northwest Alaska. Maniilaq provides these services under the 

Alaska Tribal Health Compact and corresponding funding agreements with Indian Health Service (IHS), pursuant to the self-govVerDate Mar 15 2010 02:44 Dec 15, 2012 Jkt 029010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR250.XXX SR250

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2 25 U.S.C. §§ 450 et seq. 3 According to testimony from Maniilaq before the House Subcommittee on Indian and Alaska 

Native Affairs, these conveyances were done so that Maniilaq would be able to construct a longterm health facility, as well as make other necessary future expansions to the existing Maniilaq 

Hospital and Health Center. See H.R. 443, H.R. 444, H.R. 1461, H.R. 1556 and H.R. 2444: Hearing Before the Subcomm. on Indian and Alaska Native Affairs of the H. Natural Resources 

Comm., 112th Cong. 1–2 (2011 ) (written statement of Ian Erlich, President/Chief Executive Officer, Maniilaq Association). 4 25 U.S.C. § 458aaa–11(c)(2). This authority is also incorporated in the Alaska Tribal Health 

Compact. 5 25 U.S.C. § 458aaa–11(c)(2). 

6 42 C.F.R. pt. 137. 

7S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 6 (2012) 

(statement of Robert McSwain, Deputy Director for Management Operations, Indian Health 

Service, U.S. Department of Health and Human Services) (‘‘It is important to emphasize that, 

as a normal practice, we do not transfer properties via the warranty deed mechanism. However, 

we will support an exception in this case, because of the Tribe’s initiative to expand access to 

its health care system for community members. This proposal will give the Maniilaq Association 

flexibility to leverage additional resources because ownership of the property under a warranty 

deed will give them unencumbered ownership of the property described in S. 1898. . . . The 

warranty deed would be the first of its kind in Alaska, since only one other property was transferred to the Southeast Alaska Regional Health Corporation through a quitclaim deed.’’). 8 H.R. 443, 112th Cong. § 3(a) (1st Sess. 2011). 

9The text of S. 1898 is substantively the same as H.R. 443. 

ernance provisions of the Indian Self-Determination and Education 

Assistance Act 2 (ISDEAA). 

H.R. 443 would require the Secretary of Health and Human 

Services (HHS) to convey to Maniilaq, by warranty deed, three contiguous parcels of land totaling 14.6 acres, including all buildings 

and appurtenances, for use in connection with the services provided 

by Maniilaq under its ISDEAA contracts with IHS. One of these 

parcels is the site of the existing Maniilaq Hospital and Health 

Center; the other two parcels contain employee housing. 

These properties have already been conveyed to Maniilaq by way 

of quitclaim deed. On March 31, 2009, IHS transferred to Maniilaq, 

by quitclaim deed, title to the land on which the Maniilaq Hospital 

and Health Center sits. On November 18, 2009, after completing an 

environmental review and certification, IHS transferred, via two 

separate quitclaim deeds, two additional contiguous parcels of land 

on which housing for employees of the facility is located.3 H.R. 443 

would convey these same properties to Maniilaq, by warranty deed, 

for use by Maniilaq in carrying its duties under the Alaska Tribal 

Health Compact. 

Under Section 512(c)(2)(B) of the ISDEAA, the Secretary of HHS 

has the authority, upon request by an Indian tribe, to donate to the 

tribe any property found to be in excess of the needs of HHS.4 Neither the ISDEAA 5 nor its implementing regulations 6 specify the 

type of deed (quitclaim versus warranty) that should be used for 

conveying property in this manner. Testimony received by the 

Committee by the IHS indicates that IHS has historically conveyed 

property to tribes under the authority of the ISDEAA by quitclaim 

deed; however, IHS testified in support of conveyance by warranty 

deed in this particular instance.7

Environmental liability 

Section 3 of H.R. 443 provides that Maniilaq will not be liable 

for any contamination or pollution on the conveyed properties ‘‘as 

of the date of the conveyance.’’ 8 During his testimony in support 

of the Senate companion bill, S. 1898,9 Robert McSwain, Deputy 

Director for Management Operations at IHS, noted that IHS believed that this environmental liability language should be revised 


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10S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 6 

(2012) (statement of Robert McSwain, Deputy Director for Management Operations, Indian 

Health Service, U.S. Department of Health and Human Services). 11 25 U.S.C. § 458aaa–11(c)(2)(B). 12The statute states that the value of the property is to be determined at the time of retrocession, withdrawal, or reassumption. 25 U.S.C. § 458aaa–11(c)(2)(B). 13 25 U.S.C. § 458aaa–11(c)(2)(B). At the Senate Committee on Indian Affairs’ legislative hearing on the Senate version of the bill (S. 1898), Robert McSwain, the Deputy Director for Management Operation at IHS, noted that while IHS supported the bill, it felt that ‘‘the ‘reversionary clause’ language should be clarified to apply, should the Association cease to use the 

property for health purposes.’’ (S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian 

Affairs, 112th Cong. 6 (2012) (statement of Robert McSwain, Deputy Director for Management 

Operations, Indian Health Service, U.S. Department of Health and Human Services)). This recommendation by IHS was noted by Committee staff at the business meeting held on June 6, 

2012, during their presentation of H.R. 443 to Committee Members. The additional ‘‘clarifying’’ 

language recommended by IHS may be duplicative, however. It appears that under the applicable provision of the ISDEAA, if Maniilaq ceased to use the property for health purposes, property valued at more than $5,000 would, at the option of the Secretary, revert back to the United 

States. See U.S.C. § 458aaa–11(c)(2)(B). 14See H.R. 443, H.R. 444, H.R. 1461, H.R. 1556 and H.R. 2444: Hearing Before the Subcomm. 

on Indian and Alaska Native Affairs of the H. Natural Resources Comm., 112th Cong. 2 (2011) 

(written statement of Ian Erlich, President/Chief Executive Officer, Maniilaq Association); S. 

1898 and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 12–13 (2012) 

(statement of Paul Hansen, Deputy Administrator, Maniilaq Health Center); see also S. 1898 

and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 6 (2012) (statement 

of Robert McSwain, Deputy Director for Management Operations, Indian Hea1th Service, U.S. 

Department of Health and Human Services) (stating that IHS supports transferring the properties to Maniilaq via warranty deed in order to support Maniilaq’s ‘‘initiative to expand access 

to its health care system for community members’’). 15See S. 1898 and H.R. 1560: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 

5–6 (2012) (statement of Robert McSwain, Deputy Director for Management Operations, Indian 

Health Service, U.S. Department of Health and Human Services). 

to make clear that Maniilaq is responsible for any environmental 

contamination ‘‘which may occur or arise as of or after the date of 

the 2009 conveyance.’’ 10

Section 3(c) of H.R. 443 would also require the Secretary of HHS 

to comply with section 120(h)(3)(A)–(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. 

Reversionary clause 

Section 1(b) of H.R. 443 provides that Section 512(c)(2)(B) of the 

ISDEAA 11 would apply to the conveyance of the properties by warranty deed. Under this provision of the ISDEAA, upon retrocession 

or withdrawal by Maniilaq from the Alaska Tribal Health Compact 

or reassumption of the compacted programs by IHS, any conveyed 

property valued at more than $5,000 12 would (at the option of 

HHS) revert back to the United States.13

NEED FOR LEGISLATION

According to testimony received by the Committee by the 

Maniilaq President and Chief Executive Officer, Ian Erlich, the 

conveyance of the properties by quitclaim deed interferes to some 

degree with Maniilaq’s full use and management of the properties.14

First, according to the IHS, conveyance by quitclaim deed does 

not guarantee clear title as a warranty deed does. Conveyance by 

warranty deed would give Maniilaq security in the title to the properties, thereby allowing more flexibility in their use and management.15

In addition, according to Mr. Erlich, the 2009 quitclaim deeds 

contain covenants that allow HHS ongoing control over the properties. For example, Maniilaq is required under the quitclaim deeds 

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16 H.R. 443, H.R. 444, H.R. 1461, H.R. 1556 and H.R. 2444: Hearing Before the Subcomm. on 

Indian and Alaska Native Affairs of the H. Natural Resources Comm., 112th Cong. 2 (2011) 

(written statement of Ian Erlich, President/Chief Executive Officer, Maniilaq Association). 17See 25 U.S.C. § 458aaa–11(c)(2)(B). 18On December 7, 2011, the Committee on Energy and Commerce of the House of Representatives notified the Committee on Natural Resources of the House of Representatives that it would 

forgo action on H.R. 443 so that the bill could proceed expeditiously to the full House of Representatives for consideration, but noted, however, that it did not waive any of its jurisdiction 

with respect to this legislation or any legislation of the same or similar subject matter. 19The Senate companion bill, S. 1898, was introduced by Senator Murkowski on November 

17, 2011, and cosponsored by Senator Begich. The Senate bill, S. 1898, is substantively the same 

as H.R. 443. The Committee held a legislative hearing on S. 1898 on March 22, 2012. 

brance of the property. This requirement would apply if Maniilaq 

seeks to use the property as security for a construction loan or any 

other loan through which Maniilaq might seek to leverage its resources. Approval by HHS is also required under the quitclaim 

deeds on any contract which would impact the value of the properties,16 including, for instance, contracts related to construction 

work associated with remodeling or expanding the facility. 

Under the current quitclaim deeds, if any of these conditions are 

breached, HHS has the option to seek reversion of the properties 

back to the United States. This is inconsistent with the applicable 

provisions of the ISDEAA, which allow properties conveyed to 

tribes by HHS to revert back to the United States only upon retrocession or withdrawal by the tribe from the ISDEAA compact or 

reassumption of services by IHS.17

LEGISLATIVE HISTORY

H.R. 443 was introduced on January 25, 2011, by Representative 

Don Young with no cosponsors. The bill was referred to the Committee on Natural Resources, Subcommittee on Indian and Alaska 

Native Affairs, of the House of Representatives, and additionally to 

the Committee on Energy and Commerce of the House of Representatives. The Subcommittee on Indian and Alaska Native Affairs held a hearing on H.R. 443 on September 22, 2011. On October 5, 2011, the full Committee on Natural Resources held a business meeting to consider the bill. Representative Don Young offered 

an amendment to make technical corrections to the bill, primarily 

to correct the land descriptions contained in Section 2 of the bill, 

and the amendment was adopted by unanimous consent. The bill, 

as amended, was then ordered to be reported favorably to the full 

House. On December 8, 2011, the Committee on Energy and Commerce was discharged by unanimous consent,18 and the bill, as 

amended, was reported to the House of Representatives and placed 

on the Union Calendar. The House of Representatives passed H.R. 

443 on December 15, 2011, by recorded vote of 407–4. The bill was 

received in the Senate and referred to the Committee on Indian Affairs. 

In order to expedite consideration of the legislation, Senator 

Murkowski requested that the Committee hold a business meeting 

to consider H.R. 443.19 The Committee took up consideration of 

H.R. 443 at a business meeting on June 6, 2012, and ordered the 

bill to be reported to the Senate, by voice vote, without amendment. 


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SECTION-BY-SECTION ANALYSIS OF H.R. 443

Section 1—Conveyance of Property 

Section 1 would direct the Secretary of Health and Human Services, not later than 180 days after the enactment of the act, to convey by warranty deed certain properties described in Section 2 to 

the Maniilaq Association for use in connection with health and social services programs. 

It further provides that the Secretary’s conveyance of title to 

these properties shall supersede and render of no future effect any 

quitclaim deed concerning the same properties executed by the Secretary and the Maniilaq Association. 

Section 1 also provides that the conveyance of the properties by 

warranty deed shall be made without consideration, and without 

imposing any obligation, term, or condition on the Maniilaq Association. It also provides that the United States will not retain any 

reversionary interest in the property, other than that required by 

this act or by Section 512(c)(2)(B) of the Indian Self-Determination 

and Education Assistance Act (25 U.S.C. § 458aaa–11(c)(2)(B)). 

Section 2—Property Described 

This section provides the legal descriptions for the property to be 

conveyed to the Maniilaq Association pursuant to Section 1. 

Section 3—Environmental Liability 

This section provides that, notwithstanding any other provision 

of Federal law, as of the date of the conveyance, the Maniilaq Association shall not be liable for any soil, surface, groundwater, or 

other contamination resulting from the disposal, release, or presence of any environmental contamination, including any oil or petroleum products, or any hazardous materials, hazardous waste, 

pollutants, toxic substances, solid waste, or any other environmental contamination or hazard as defined in any Federal law, on 

any property described in Section 2. 

This section grants the Secretary any ‘‘reasonably necessary’’ 

easement or access to the conveyed property in order to satisfy any 

retained obligations or liability of the United States. 

This section also provides that the Secretary shall comply with 

Section 120(h)(3)(A) and (B) of the Comprehensive Environmental 

Response, Compensation, and Liability Act of 1980 (42 U.S.C. 

§ 9620(h)(3(A)). 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on June 28, 2012, the Committee 

on Indian Affairs, by voice vote, adopted H.R. 443 and ordered the 

bill reported to the Senate, with the recommendation that the Senate do pass H.R. 443 as reported. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate, as provided by the Congressional 

Budget Office, dated July 10, 2012, was prepared for H.R. 443: 


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H.R. 443—An act to provide for the conveyance of certain property 

from the United States to the Maniilaq Association located in 

Kotzebue, Alaska 

H.R. 443 would convey three Indian Health Service (IHS) properties in Kotzebue, Alaska, to the Maniilaq Association, a tribal 

nonprofit organization. Based on information from the IHS, CBO 

estimates that the conveyances would have no significant impact 

on the federal budget. According to the agency, it does not currently receive any lease payments or other receipts from the properties. Enacting H.R. 443 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 443 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

On October 25, 2011, CBO transmitted a cost estimate for H.R. 

443 as ordered reported by the House Committee on Natural Resources on October 5, 2011. The two versions of the legislation are 

similar and the CBO cost estimates are the same. 

The CBO staff contact for this estimate is Martin von Gnechten. 

The estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the 

regulatory and paperwork impact that would be incurred in carrying out the bill. The Committee believes that the regulatory impact of H.R. 443 will be minimal. 

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the Executive Branch regarding H.R. 443 other than the written testimony 

from the Department of Health and Human Services submitted at 

the Committee hearing on the Senate companion bill, S. 1898, on 

March 22, 2012, which is attached hereto as an exhibit. 

STATEMENT OF ROBERT MCSWAIN, DEPUTY DIRECTOR FOR

MANAGEMENT OPERATIONS, INDIAN HEALTH SERVICE, 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: Good 

afternoon. I am Robert McSwain, Deputy Director for Management Operations of the Indian Health Service (IHS). I 

am pleased to have the opportunity to testify on the S. 

1898 for the Maniilaq Association, providing for the conveyance of Indian Health Service (IHS) real property located in Kotzebue, Alaska. 

The Indian Health Service plays a unique role in the Department of Health and Human Services (HHS) because it 

is a health care system that was established to meet the 

federal trust responsibility to provide health care to American Indians and Alaska Natives (AI/ANs). The mission of 

the IHS, in partnership with American Indian and Alaska 

Native people, is to raise the physical, mental, social, and 

spiritual health of AI/ANs to the highest level. The IHS 


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provides comprehensive health service delivery to approximately 2.1 million Ai/ANs through 31 Hospitals, 50 health 

centers, 31 health stations and 2 school health centers. 

Tribes also provide healthcare access through an additional 15 hospitals, 254 health centers, 166 Alaska Village 

Clinics, 112 health stations and 18 school health centers. 

In support of the IHS mission, the IHS and Tribes provide 

access to functional, well maintained and accredited health 

care facilities and staff housing. 

S. 1898 deals with the conveyance of lands located in 

Kotzebue, Alaska which were used by the federal government for the delivery of IHS services. In 1995 the Maniilaq 

Association in Kotzebue, Alaska assumed responsibility for 

the provision of the IHS-funded health care services under 

the authority of the Indian Self-Determination and Education Assistance Act (ISDEAA). Some of the federal property, which had been used in connection with health and 

related programs in Kotzebue, Alaska by the IHS, was 

transferred through quit claim deeds to the Maniilaq Association. 

S. 1898 provides for the conveyance of the Kotzebue 

property from the United States to the Maniilaq Association and proposes to modify the existing quit claim deed 

transfer by requiring the use of a warranty deed. On 

March 31, 2009, IHS transferred ownership of the 

Maniilaq Health Center/Hospital. After completing an environmental review and certification on November 18, 

2009, the two additional parcels of property, named in this 

bill, including staff quarters, were transferred. 

The IHS supports this bill because it views the proposed 

transfer as furthering the special partnership that exists 

with American Indian and Alaska Native tribal governments, and, moreover, is in keeping with the Presidential 

Memorandum on Administrative Flexibility as it pertains 

to tribal governments. It is important to emphasize that, 

as a normal practice, we do not transfer properties via the 

warranty deed mechanism. However, we will support an 

exception in this case, because of the Tribe’s initiative to 

expand access to its health care system for community 

members. This proposal will give the Maniilaq Association 

flexibility to leverage additional resources because ownership of the property under a warranty deed will give them 

unencumbered ownership of the property described in S. 

1898. 

We do believe the language, relating to environmental liability, needs to be clarified so the Maniilaq Association is 

responsible for any environmental contamination which 

may occur or arise ‘‘as of or after the date of the 2009 conveyance’’; and, the ‘‘reversionary clause’’ language should 

be clarified to apply, should the Association cease to use 

the property for health purposes. 

We do not believe there will be reasons to use this mechanism in future cases. There are no existing problems with 

the current quit claim deed signed in 2009 with the 

Maniilaq Association. Traditionally, the Alaska Native 


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Corporations have preferred to leave the title of their facilities previously operated by the IHS with the federal 

government. It is highly unlikely there will be similar requests from Tribes in the other 35 states to have warranty 

deeds since they are currently on tribally owned lands and 

the government leases property from them for the health 

care facilities. This warranty deed transfer would be the 

first of its kind in Alaska, since only one other property 

was transferred to the Southeast Alaska Regional Health 

Corporation through a quit claim deed. 

Concerning retrocession, we think it unlikely. We can 

count only four retrocessions since the enactment of 

ISDEAA in 1975 and these were only small program components and three have been re-assumed by the Tribes. 

None of these were in the Alaska Area. 

We look forward to working with you, Mr. Chairman, on 

measures like these to improve the health of the Alaska 

Native population. Mr. Chairman, this concludes my testimony. I appreciate the opportunity to appear before you to 

discuss S. 1898. I will be happy to answer any questions 

the committee may have. Thank you. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that the enactment of 

H.R. 443 will not effect any changes in existing law. 

Æ 


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