bear the brunt of the cost for such an indemnification and for that reason we seek and support that provision. Senator HASKELL. We are still not going to talk to the merits of the various routes proposed for the pipeline. But you feel that a pipeline through this area will have the adverse effect on the Native population's means of subsistence. Is that your point? I want to be sure I understand. Mr. HENSLEY. There is potential in some of the communities in the areas of the pipeline for some adverse impact. This could be due to activities related to pipeline construction. There is a substantial amount of caribou in the area above the North Slope and down along the rest of the route and to varying degrees the people depend on caribou and other wildlife for subsistence. Our feeling is that if there is no fish due to pipeline construction activity or a lack of caribou or other game, we see no reason why the people should have to go on welfare when they can be indemnified for their loss. Senator HASKELL. You made yourself clear. If there is an adverse effect the organization responsible for putting in the pipeline should make recompense. That is your point, isn't it? Mr. HENSLEY. That is right. Furthermore, Mr. Chairman, the Native people of the State support the construction of the pipeline. As you heard the Governor state this morning, we are taking in our belts and we feel if we have to wait 5 or 6 years that the State will essentially be going broke. This affects the Native people particularly because we don't have the strength we should have in the legislature to protect ourselves. The payments to the Native people from resource development, of course, are affected if the pipeline is not constructed soon. Senator HASKELL. Thank you very much. You made yourself very clear. I really don't have any further questions. Senator Hansen. Senator HANSEN. Thank you, Mr. Chairman. I just wanted to make one observation, if I may, aside from complimenting you on your testimony. As I recall the Alaska Native Claims Settlement Act, that were part of the rationale for the land grant and the remuneration provisions written into that bill was to decrease the subsistence. Is this not the case? Mr. HENSLEY. Mr. Chairman, the land provisions are really insufficient in themselves to assure that we could continue to hunt and fish. My feeling is that even though there was cash provision in the settlement for an extended period of time the people will continue to live off fish and game, sea mammals, fish, caribou, moose, and this sort of thing. This, I feel, will carry on for some number of years. Mr. Bass. If I could add a bit on the legislative history of the Claim Settlement Act on this question, the Senate bill had two options on land packages. Under one of those options, there was a 20-million-acre package of subsistence rights in addition to roughly 30 million acres of vested land rights for a total of 50 million acres. In conference, the final figure was 40 million acres of land rights with no guaranteed subsistence provisions in the areas outside of those lands. The Conference Committee report specifically stated that while there are no guarantees in the legislation for subsistence rights, the committee was confident that the Department and that the State would recognize and protect the subsistence needs of the Alaska Natives outside the land area selected under the Act, recognizing that even 40 million acres of land in Alaska today is not sufficient to protect the subsistence of all the areas. In many of the areas, because of the requirements of the contiguous selections and the limitations on selections within 25 townships, the areas of land that the Natives will own are not the same as the areas of land on which they hunt, trap, and fish. It is particularly true up on the North Slope, where the migration areas of many of the caribou are in the wilderness areas or in the natural wildlife refuges where there are no selection rights for the Native villages. The danger we fear from the pipeline proposal that would not provide an indemnification to the Natives is that there could be interference with those migration patterns, with the spawning of the salmon or other fish in the various streams, that would not be within the areas of land selection rights granted to the native people, but would represent a severe detrimental depletion of their way of life-the very food they live by. Unless there is provision for indemnification, the burden of that risk will fall on the Alaska Natives and not on the pipeline customers who would be paying for the cost of doing business. Senator HANSEN. Maybe I missed the thrust of the Senator's testimony. I thought, among other things, that he was lending his endorsement to a broadened concept in this legislation which would go beyond the question of what now might most expeditiously be done in order to get the pipeline built. But in addition to that rather simple issue, I think it would encompass a whole range of other considerations. I want to say here and now that I don't take issue with you at all for raising those issues. I would simply ask, as a matter of your best judgment, Senator, how important do you feel it is to try to resolve these other issues that could be tied into the question of the necessary width of a pipeline right-of-way on the one hand, and the many other considerations on the other? These are issues which conceivably could delay the building of the pipeline for several years. You have spoken about the need for some of the things to happen under the terms of the bill that obviously are not going to happen very quickly. Mr. HENSLEY. I am, of course, quite concerned, as the entire State of Alaska is, with regard to the resolution of the width of the right-ofway issue. Speaking for the Federation, I direct myself primarily to this question regarding the protection of those who live off the land. It seems to me that this requirement is not a major issue that would delay the bill. To the people who live off the game animals, it is a serious pro vision. Mr. WEINBERG. If I may supplement that, the inclusion of a stipulation of the kind that would be provided for by section 6(h) need not, and should not, delay the consideration of the permit in the legislation. As a matter of fact, such a stipulation has long been drafted, and has long been in the hands of the Department. At one point, the Department, by letter from the Secretary dated May 25, 1972, advised the Alaska Federation of Natives it recognized that because of the situation in Alaska it had a responsibility in connection with the issuance of the pipeline permit to protect them against damages, beyond whatever might be the local law. Subsequent to that, the Secretary apparently changed his mind and advised that he wouldn't include such a stipulation. At one point in the discussion with the Department, the Department indicated that they thought there might be a lack of legal authority to include such a permit provision. We don't think that is so. We submitted a brief to the Department, but in any event, section 6(h) would remove any legal doubt, and what we have suggested here is that in our support of section 6(h), we think that it would be appropriate because of this situation in Alaska for the Congress to indicate to the Secretary that it believes that he should exercise the authority that we think he has to include such a stipulation in the permit. I would like, if I may, to submit for the record the stipulation to which I refer. [The stipulation referred to follows:] [STIPULATIONS SUBMITTED JULY 18, 1972, TO THE SECRETARY OF THE INTERIOR BY AFN, TANANA CHIEFS CONFERENCE, ARCTIC SLOPE NATIVE ASSOCIATION AND NATIVE VILLAGES OF ALLAKAKET, BETTLES, MINTO, RAMPART AND STEVENS VILLAGE] RECOMMENDED CHANGES IN STIPULATIONS FOR PROPOSED TRANS-ALASKAN PIPELINE1 JULY 17, 1972. A. Revise paragraph 1.7.1 by (1) changing the period at the end of line 6, paragraph 1.7.1, page 19, to a comma and inserting the phrase "without regard to ownership." and by inserting after the word "shall", line 2, paragraph 1.7.1, page 20, the phrase “, without regard to ownership," and (2) by inserting the following preceding the word "Permittee" in line 4, page 20: In addition to the obligation to abate and to reconstruct, repair and rehabilitate as provided in the two preceding sentences of this Stipulation 1.7.1, and except as otherwise provided by Stipulation 1.7.4, B. Insert a new Stipulation 1.7.4, at page 21, as follows: 1.7.4.1. Permittee shall be liable for any damage suffered by, or for any cost or expense to, any Alaska Native, which damage or cost or expense is in any way connected with or the result of the construction, operation, maintenance or termination of the Pipeline System (or the proposed State highway from the Yukon River to Prudhoe Bay, Alaska, referred to in Stipulation 1 References are to the February 1972 "Stipulations for Proposed Trans-Alaska Pipeline". 1.1.1.6), including damage or cost or expense resulting from harm or damage to any structure, property, land, water source, stream, fish and wildlife and their habitats, or other resource. The liability provided for under this Stipulation 1.7.4.1 shall exist regardless of any issue of Native ownership or authorization to use or occupy and regardless of fault, negligence or breach of any condition of the permit by Permittee, but nothing herein shall relieve Permittee of any liability arising under State or Federal law. As used herein : (a) the term "damage" includes but is not limited to injury to or loss or impairment of persons or property, real or personal, income, the means of producing income, an economic benefit, subsistence resources, or water supply, and (b) "Alaska Native" means a "Native" as defined in Section 3(b) of the Alaska Native Claims Settlement Act and the term includes, but is not limited to Alaska native villages, whether or not incorporated under the laws of Alaska or of the United States, Regional Corporations as defined in Section 3(g) of said Act and any groups, bands, tribes, clans, communities, associations, or corporations of Alaska Natives. 1.7.4.2. In the event a claimant under Stipulation 1.4.7.1. and Permittee are unable to agree on the compensation due pursuant thereto, the claim shall be determined by arbitration or court proceedings at the option of the claimant. Arbitration shall be conducted at a location convenient to the claimant and shall be goverened by the Alaska Uniform Arbitration Act (Ch. 43, Alaska Code of Civil Procedure; Sec. 1, ch. 232 SLA 1968). All fees and expenses of arbitration and court proceedings, including reasonable attorneys' fees, shall be borne by Permittee unless the body deciding the claim determines the claim was frivolous when brought. 1.7.4.3. Pending determination and payment of claims pursuant to Stipulations 1.7.4.1 and 1.7.4.2, whether by agreement or otherwise, Permittee shall, for affected Alaska Natives, provide subsistence (including food and water), shelter, medical care and treatment, and other necessities and make emergency repairs and replacements, or advance funds for any or all of the foregoing, as determined or directed by the Authorized Officer. The value of services provided or any funds advanced shall be set off against any claim asserted but shall not otherwise be reimbursable and a claimant shall not be required to reimburse Permittee in the event the claim is not sustained or in the event the claim allowed exceeds the value of services provided or funds advanced. Affected Alaska Natives may appeal an adverse decision of the Authorized Officer to the Secretary of the Interior. C. Add the following at the end of Stipulation 1.2.4, page 6: It is an express condition of the issuance and maintenance in force of this permit that (a) any authorizations issued by or under the authority of the Secretary of the Interior as a result of such applications, or with respect to any gathering system directly or indirectly connecting with the Pipeline System, shall in respect of the facilities embraced therein, be subject to the provisions of Stipulations 1.7.1-1.7.4.3, inclusive, of this permit, whether or not such stipulations are expressly included in any such authorizations or are expressly incorporated therein by reference; (b) Permittee, in the construction, operation, maintenance or termination of facilities owned or controlled by it in connection with the Pipeline System and located on Federal lands not within the Pipeline right-of-way granted by this permit, shall be subject to the provisions of Stipulations 1.7.1-1.7.4.3, inclusive, of this permit; and (c) Permittee, in the case of any gathering system not owned or controlled by it, shall require the persons owning or controlling any interest therein to agree in writing to the applicability to the construction, operation, maintenance or termination of such gathering systems of stipulations conforming to Stipulation 1.7.1-1.7.4.3, inclusive, of this permit, as a condition to receiving oil therefrom directly or indirectly into the Pipeline System. D. Add the following at the end of stipulation 1.5.1, page 13: However, any revision or amendment of Stipulation 1.2.4 or of Stipulations 1.7.1-1.7.4.3, inclusive, of this permit, shall require the concurrence of the governing bodies of each of those Regional Corporations of Alaska Natives whose areas, determined in accordance with the Alaska Native Claims Settle ment Act, are traversed by the Pipeline System and of those Alaska native villages (whether or not incorporated under the laws of Alaska or of the United States) whose lands are traversed by the Pipeline System and no such revision or amendment shall be made without public notice and opportunity for comment on any proposals for revision or amendment. E. Revise Stipulation 1.8.2, page 22, by inserting the following after the word "of" in line 12, of Stipulation 1.8.2, page 22: "any sums as directed by the Authorized Officer pursuant to Stipulation 1.7.4.3, of any arbitration award or final judgment on or settlement of any claim asserted pursuant to Stipulation 1.7.4.1, or". F. Add the following new Stipulation 1.3.2.1 after Stipulation 1.3.2, page 7: 1.3.2.1. The Authorized Officer shall arrange for the participation of Alaska Natives knowledgeable concerning conditions in the areas affected in connection with all inspections, formulations or reviews of plans or proposals, surveys, and other activities or inquiries authorized or required to be made by all Federal agencies under this permit and the Authorized Officer and all Federal agencies exercising initiatory, review, approval, or inspection authority hereunder shall consult with such Natives in the discharge of such authority. All travel and other expenses of such Native participation, including subsistence or per diem in lieu thereof, and reasonable compensation for services, shall be borne by the Permittee. The Authorized Officer shall select Natives for this purpose from among nominees made by the governing bodies of the Regional Corporations of Alaska Natives and the Alaska native villages whose areas are traversed by the Pipeline System. G. Revise Stipulation 1.3.3, page 7, by (1) changing the word "may" to "shall" in line 1, and (2) after the word "protect" in line 4, inserting "the safety, property or subsistence needs of an Alaska Native or to protect". H. Revise Stipulation 1.3.4, page 7, by changing the word “may” to “shall" in line 1. I. Revise Stipulation 2.5.3.1, page 41, by (1) changing the word "may" to "shall" in line 2, and (2) inserting "if he finds that such activities may materially interefere therewith" after the word "wildlife" in line 6. Senator HANSEN. I am not a lawyer and I don't presume to have any expertise in that area at all, but I do recall a statement made by Mr. Carter this morning. He said that the legality of some 92 pipeline rights-of-way that had been granted was in question. I would venture the opinion that they probably go back beyond Mr. Nixon's term-well, the only point I am making is that I appreciate your opinion that there is the right, but lawsuits are made up by lawyers who don't share the same opinions, as you know very well. I would like to ask you: Do you subscribe to the statement made by the Governor this morning? Mr. HENSLEY. Which statement? Senator HANSEN. The one he made to this committee. Did you hear him? Mr. HENSLEY. Yes; I heard part of it and it is pretty much the case. Alaska is going to be in serious difficulty if we don't Senator HANSEN. Do you agree generally with the conclusions that I think are implicit in his statement? Mr. HENSLEY. I believe what he indicates is pretty well true. Mr. BASS. Mr. Chairman. Senator HASKELL. Excuse me. Mr. BASS. If I could add one further remark in response to Senator Hansen's question about the delay factor, just from a legal perspective in my own personal opinion, there is an equally good argu |