MINUTES OF THE SENATE COMMITTEE ON NATURAL RESOURCES Sixty-eighth Session January 25, 1995 The Senate Committee on Natural Resources was called to order by Chairman Dean A. Rhoads, at 1:30 p.m., on Wednesday, January 25, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Dean A. Rhoads, Chairman Senator Lawrence E. Jacobsen, Vice Chairman Senator Mark A. James Senator Mike McGinness Senator Ernest E. Adler Senator John B. (Jack) Regan Senator O. C. Lee STAFF MEMBERS PRESENT: Fred Welden, Chief Deputy Research Analyst, Legislative Counsel Bureau Billie Brinkman, Committee Secretary OTHERS PRESENT: Elsie Dupree, Nevada Wildlife Federation, Inc. Ed Morgan, Concerned Citizen Arlan D. Melendez, Chairman, Reno-Sparks Indian Colony A. Brian Wallace, Chairman, Washoe Tribe of Nevada/California Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation Joe Guild, Lobbyist, Nevada Cattlemen's Association Stephanie D. Licht, Secretary/Treasurer, Nevada Wool Growers Association David Horton, Lobbyist, Committee To Restore The Constitution Jeanine Hansen, Lobbyist, Nevada Eagle Forum Daniel Hansen, State Chairman, Independent American Party Juanita Cox, Chairman, People Organized for the Next Generation Michael McGriff, Lobbyist, American Pistol and Rifle Association Chairman Rhoads opened the hearing on Senate Joint Resolution (S.J.R.) 27 of the 67th Session. SENATE JOINT RESOLUTION (S.J.R.) 27 OF THE 67TH SESSION: Proposes to amend ordinance of Nevada constitution to repeal disclaimer of interest of state in unappropriated public lands. In his opening remarks, Chairman Rhoads indicated this measure was introduced 2 years ago by Senator Adler. He added the resolution passed in the Senate with a unanimous vote, and the measure passed through the Nevada Assembly with some amendments to which the Senate agreed. Chairman Rhoads said he recalled during the passage of the original Sagebrush Rebellion in 1979 and later in litigation actions in 1980 and 1981, the law chairman of Brigham Young University, Provo, Utah, who was formerly U. S. Adjutant General, said the disclaimer clause should be repealed in the State of Nevada because any future court action would be "a much cleaner bunch of water to tread in." Following his opening remarks, Chairman Rhoads read a prepared statement (Exhibit C) giving the background and reasons the Interim Legislative Committee on Public Lands endorsed the proposal of S.J.R. 27 of the 67th Session. Senator Adler explained that the first section of the Nevada Constitution contains a disclaimer. And he pointed out the first portion of the "enabling clause" states there will not be slavery nor involuntary servitude in Nevada. The Nevada Constitution reads there will be perfect toleration of religious sentiment and no inhabitant of such state shall be molested in his person or property on this account or on his mode of religious worship. Further, Senator Adler quoted the Nevada Constitution, "They forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States....." Senator Adler remarked that it is interesting that the three key clauses in the first portion of the Nevada Constitution, include disclaiming all right and title to lands along with slavery and freedom of religion. Senator Adler continued with his thought that it is important to repeal the disclaimer clause for a number of reasons. He said Senator Rhoads had stated ownership is the issue, but Senator Adler said there is another issue which is of equal importance...the sovereignty issue. He asked whether the State of Nevada would be free to exercise its own laws and regulations on these lands which could include hazardous materials for disposition, to high-level nuclear waste to low-level nuclear waste, to management of water rights, etc. Senator Adler pointed out the only issue is not of ownership, but also the issue of sovereignty, regulation and protection of the health and safety of the inhabitants of the State of Nevada. He emphasized those are important issues that should not be omitted. Senator Adler noted Senator Rhoads had indicated there were 27 states that had been admitted into the Union with either a disclaimer clause in place in the constitution, or that the enabling legislation from the U. S. Congress which allowed them into the United States, had disclaimer clause language in it. However, Senator Adler stressed the states of Nevada, Montana, North Dakota, South Dakota, Washington, Utah, Oklahoma, Arizona, New Mexico and Alaska are the only states whose constitutions include both a disclaimer clause in the enabling act as well as in the constitution. Senator Adler added Nevada is one of the few states that had been subjected to both clauses as a condition of being admitted to the Union. Senator Adler concluded by saying: I think there are a number of good reasons to support this and I don't think this should be a partisan issue and I don't even think it is perhaps a conservative or liberal issue because a lot of this has to do with everything from protecting our environment to protecting the tax basis of many of our rural counties. I think it is important that we support this as a broad based issue. Lincoln County is a good example of why the disclaimer clause should be repealed. The areas of ownership in that county are several little unconnected dots. Even if the connecting of those dots could be brought about so that Lincoln County has a contiguous land mass, it would be extremely helpful and would certainly increase their tax base and the ability for them to better provide for their citizens. Senator James commended Senator Rhoads, chairman of the Public Lands Committee, and Senator Adler, introducer of S.J.R. 27 of the 67th Session for the work they had done on this legislation. He said he thought it was an important first step to get Nevada on an equal footing with the other states who entered the Union without this kind of orneriness provision placed in the ordinance of their constitution. Senator James remarked the equal footing doctrine has been so narrowly interpreted by the (U.S.) Supreme Court that anything which can be done to put Nevada on an equal footing with other states is a well-advised action. Senator James indicated he thought this committee should strongly recommend the passage of S.J.R. 27 of the 67th Session to the Senate. Chairman Rhoads invited members of the audience for comment. Elsie Dupree, representing the Nevada Wildlife Federation, Inc., read a prepared statement (Exhibit D) urging defeat of S.J.R. 27 of the 67th Session. At the conclusion of Ms. Dupree's statement, Senator Adler commented Oregon is one of the states which does not have a disclaimer clause and 52 percent of its land is in federal control, yet that state still has a lot of open land which continues to bel accessible. Ms. Dupree replied that the Nevada Wildlife Federation, Inc., feels passing this disclaimer clause is the first step in losing riparian areas in the State of Nevada. Senator Regan suggested there is poor stewardship and poor management exhibited by the federal government concerning control of the lands of Nevada. Senator James expressed the immediate effect of passing S.J.R. 27 of the 67th Session will not turn all federal land in Nevada over to private ownership. He stated, "quite to the contrary." Senator James said: The federal government and its attorneys have come up with all kinds of creative arguments why the state can have little influence over a certain aspect of management of federal lands and other things and the reason why, in addition to the Ordinance Disclaimer Clause, the federal power remains supreme. This is just one more tool the federal government has in its legal arguments to keep its presence strong and felt in the western states. As Senators Rhoads and Adler had pointed out, it puts us on equal footing with other states that don't have this clause. We can direct our efforts then to the other arguments. The movement here is incrementally to assert additional state control over important things like regulation of hazardous wastes, management of lands and open spaces in the state, management of wildlife and water resources, etc., that the sovereignty entity should have the power to do. Senator James finalized his statement by saying the impression should not be left that the effect of this measure is going to be an imprudent, ill thought-out effect of immediately having the federal lands dumped onto the state and all turned private and fenced off. He emphasized to pass S.J.R. 27 of the 67th Session would be to remove one legal argument from the federal government in dealing with the western states, particularly Nevada Further discussion followed between Senator Adler with Ms. Dupree. Ed Morgan, Concerned Citizen, representing himself, came forward in rebuttal to the testimony offered by Ms. Dupree. He expressed his opinion that the United States had sovereignty over all the land and that the territorial residents agreed to give up those claims in exchange for accepting statehood. Mr. Morgan said he believed the counties are far better qualified to husband their assets than a bureaucratic state organization. Arlan Melendez, Tribal Chairman, Reno-Sparks Indian Colony, Reno, Nevada, read a prepared statement (Exhibit E) in opposition to S.J.R. 27 of the 67th Session. Chairman Rhoads indicated S.J.R. 27 of the 67th Session would put Nevada on a level playing field with the rest of the states in the United States. A. Brian Wallace, Chairman, Washoe Tribe of Nevada/California, joined Mr. Melendez at the speaker's table to add his comments. He said he could understand the sovereign interests of states and the federal authority delegated under the constitution because the Indian tribes had some of the same concerns. Mr. Wallace said the tribes do not have an argument with state sovereignty. But one of the matters questioned is the federal statutory protections of Indian interests off the reservation, i.e., religious liberty issues, protected by federal responsibilities outside Indian reservations, but still reserve and protect the inherent interests on public federal lands. Mr. Wallace asked how those interests would be addressed and protected in contemplating passage of S.J.R. 27 of the 67th Session. Another question concerned the state statutory protection afforded the Indians under this "particular scheme." In summation, Mr. Wallace stated: We believe in the tribal sector in our relation with the federal government, we have some primacy in terms of federally delegated and reserved rights that enter into this debate and how will those be respected equally from tribe to state and state to tribe. Then Mr. Wallace added the tribes believe there has been a precedent set of their interests, even before the enabling acts that were passed by the Congress granting statehood. That the tribes have argued aboriginal title and claims prior to the existence even of the United States Constitution. "So," he continued, "our interest goes a long way back with regard to these concerns I'm bringing up. We believe our sovereign concerns are much more historical than the states' concerns." Following more remarks, Mr. Wallace requested that in contemplating this resolution to the Congress, the concern of the Indian tribes be addressed and the resolution language be amended to specifically provide protections under the Enabling Clause of the Constitution that would highlight the states' recognition and interest in protecting the rights of Indians and Indian tribes in the context. He indicated such an action would give the tribes very clear confidence interests with regard to diminishing the federal/state relationship and some of the interests that the tribes have that aren't necessarily involved but, are indirectly impacted. Chairman Rhoads replied that any changes in S.J.R. 27 of the 67th Session would necessarily take the resolution to the 1997 Legislative Session. He indicated there never had been the intent in passing this measure to override the rights of the Indians in Nevada. He suggested a letter of intent could accompany the resolution in clarification of some of the issues in question. Senator Adler concurred with the suggestion. Senator Adler agreed with the remarks by Mr. Wallace in reference to the "islands of ownership" which are totally unconnected and create problems in terms of management. He said he felt that at some point the problem should be addressed. Chairman Rhoads indicated that today there is an era of much better cooperation with the federal land agencies on massive land exchanges, at least in the rural districts, so he believed the opportunity is available for the Indians to make the land exchanges. Mr. Wallace remarked the federal relationship the tribes have had "hasn't been that great of a deal for Indians." And he elaborated on his remark. He said the deep concern they have is which interest, state or federal, actually serves the Indian interests to the greatest. He said in the historical prospective there are mixed emotions about either way. Mr. Melendez questioned the uncertainty of land available for expansion of tribal needs if there is a transfer of authority. He pointed out in 1986 the Reno Indian Colony ran out of land base for building homes, so congressional land withdrawal provided the colony with about 2,000 acres in Hungry Valley north of Reno. He said through the Trust Responsibility of Congress, land was provided to the tribe at no cost. He stressed concern if the land came into state control, would the Trust Responsibility of the federal government still be effective. Senator Regan inquired if the tribe situation and national status might improve as sovereign nations with the advent of Indian gaming going across the U.S. Mr. Wallace said he believed the federal statutes, which led to the Indian gaming market, did not necessarily inspire tribes in Nevada to get into the gaming industry in Nevada. He said the particular gaming issue is not diminishing the federal relationship between tribes in the U.S. Mr. Wallace explained that the practical nature is that as long as the states and the tribes have similar interests and can develop affirmative relationships in the areas such as gaming regulation, water resource planning, aboriginal claims and rights protection, there could be better solutions than what the U.S. has so far come up with. Senator Regan said his point was that Congress had ignored the tribes for many, many years, but when the eastern tribes and other tribes discovered gaming, the Congress woke up to the fact that the tribes are sovereign nations, as did some of the states where they had been ignored for years. Mr. Wallace said the issue of religious liberty is a very good example where the U. S. refuses to acknowledge the inherent sovereign authority and religious freedoms of Indians. He emphasized the Indians do not enjoy the benefits of the First Amendment of the Unites States Constitution with the federal protection to practice religious freely. He added, "The federal sector very defiantly does not recognize that inherent sovereignty. It is a mixed bag of situations." Senator James pointed out this measure is not going to have the effect of substantially affecting the Indians' relationship with the federal government. Senator James said: It certainly isn't my intention to abrogate any kind of gain you all have made and your relationship with the federal government in forging different agreements and benefits for the tribes which have historically been given a raw deal in just about every way you can think. So as a recognition of all that on my part and the part of many other people in the state who support this notion, and to the extent in the future that the relationship does change and the state does take a greater role in dealing with those issues, I think you will be in a much better position being able to walk into a committee room like this and the kind of access you have in the state government, than dealing with the ............. federal government. The last thought to the extent that this does occur, it is going to happen from Washington [D.C.]. With the new Congress, the likelihood of its beginning back there is very high. ................... You are right to be vigilante about the issue, but I would like to see us forge a relationship from today going forward so that we can work together...and I certainly have that commitment that I will give to you. Mr. Wallace thanked Senator James for his comments. He said the tribes are very much interested in an affirmative relationship with the state because they believe that solutions that arise in their local situations can be developed locally. He continued, saying the issue of the new Congress and the "reverse federalism" has created some interest on the behalf of the tribes especially the issue on unfunded mandates and the whole notion of delegation of federal authority to states in general, i.e., entitlement programs, pass-through revenue, etc. He said from this point on he felt there would be a direct need for the tribes and the state government to have a very direct and open conversation about the subjects discussed here today. Mr. Wallace indicated the tribes are somewhat cautious because they are going through hearings concerning some executive mandates from the Clinton administration and they have been embraced somewhat by the new Congress on the reduction of the size of government and streamlining the federal apparatus. But, he said, the tribes have been arguing that should not apply in the tribes' prospective of streamlining the Federal Trust to Indian tribes just because of the revenue question. Mr. Wallace emphasized they want to very cleanly separate those two policy questions in the context of federal tribal relationships. Senator Jacobsen said he received mixed feelings from Mr. Wallace's testimony. He thought it sounded as though Mr. Wallace was opposed to S.J.R. 27 of the 67th Session, that unless it is fortified with something which benefits the Indians. Mr. Wallace responded that he had not really studied the measure, but what he did see was the logic and the rationale discussed and highlighted in the resolution. He said the concern of the tribes is the preservation of tribal rights, and individual rights within the tribes, be recognized and protected, as the U.S. Congress has clean area authority over all the Indian affairs. Senator Jacobsen said he felt the measure was not a threat to the federal government, but certainly a challenge to them. He said whatever is done with public land in Nevada will be an attempt to make it beneficial to everybody. He said he thought it behooves the state to challenge the federal government and say "we deserve control of our own backyard." He said the land needs to be for multiple use so that as much as possible can be gained from it. Additional comments by Mr. Wallace. Senator Jacobsen declared he felt a statement that all the Nevada tribes are with the resolution in question would have a lot of credence in Washington. Mr. Wallace indicated he would share today's discussion with the tribes of Nevada at a future meeting and convey to them what his understanding is of the background of this resolution. He said he hoped the comments by himself and Mr. Melendez at this meeting had added to the qualitative nature of the discussion of this resolution. As to the request from Sen. Jacobsen that the tribal community of Nevada provide documentation in support of the resolution, Mr. Wallace stated: I would think finding that outcome would go a long way to inspire that type of support if this committee articulated their support and recognition and protection of the enabling language in the state constitution that doesn't abridge the rights of individual Indians and Indian tribes within the contents of this resolution. Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation, came forward in strong support of S.J.R. 27 of the 67th Session. He stated farm bureau policy believes that the people of Nevada do and should have jurisdiction over the public lands within the borders of the state. Joe Guild, Lobbyist, Nevada Cattlemen's Association, came forward in support of S.J.R. 27 of the 67th Session. Mr. Guild offered in suggestion to the committee, perhaps language could be produced by the tribes in resolution form, and could be recommended to the entire Senate. He said such a resolution would then give some assurances that if some of the land was ever returned to Nevada as a result of this initial (S.J.R. 27 of the 67th Session) action, that the fear of the tribes would be dealt with. Mr. Guild said then the goal Senator Jacobsen expressed in going back to Washington, D. C., as a united people, telling the federal government that the "people of Nevada can do it ourselves", would be more easily accomplished. Stephanie D. Licht, secretary/treasurer, Nevada Wool Growers Association, testified in support of S.J.R. 27 of the 67th Session. David Horton, Lobbyist, Committee to Restore the Constitution, came forward to remark that with regard to the concerns of the Indian representatives, the original bill of 1979 provided for the protection of any treaty rights. He addressed his remarks to page 2, line 17 through 19, which are to be deleted from S.J.R. 27 of the 67th Session. He recommended the deletion. Janine Hansen, Lobbyist, Nevada Eagle Forum, came forward to affirm support of S.J.R. 27 of the 67th Session. She indicated there is a great ground swell of public support for this measure, especially in the Nevada Freedom Coalition which has 32-member organizations. She said her concern is federal management of Nevada lands, versus state management as had been voiced in this meeting. She said it is very important that Nevada assert the 10th Amendment Rights and take back Nevada lands. She remarked "it is very important for the people who live here and the state to benefit from our own lands." Daniel Hansen, State Chairman, Independent American Party, offered enthusiastic support for S.J.R. 27 of the 67th Session. Juanita Cox, Chairman, People Organized for the Next Generation, talked in support of S.J.R. 27 of the 67th Session. Michael McGriff, Lobbyist, American Pistol and Rifle Association, spoke briefly in support of S.J.R. 27 of the 67th Session. Chairman Rhoads inquired if there was anyone else in the meeting room who wished to testify on S.J.R. 27 of the 67th Session. He announced a committee vote would be taken on this measure at the meeting of the Committee on Natural Resources on Wednesday, February 1, 1995. There being no further business to come before the committee, Chairman Rhoads adjourned the meeting at 3 p.m. RESPECTFULLY SUBMITTED: Billie Brinkman, Committee Secretary APPROVED BY: Senator Dean A. Rhoads, Chairman DATE: Senate Committee on Natural Resources January 25, 1995 Page