Dick Branton was interviewed by Bill Schneider and Karen Brewster on June 11, 2009 at his home in Wasilla, Alaska. He began his career in law enforcement before Alaska became a state. He moved into work with the Department of Corrections for the State of Alaska and developing programs to reform and rehabilitate prisoners. Eventually, he served as Deputy Director for the state's Division of Mental Health and Developmental Disabilities where he helped promote cross training between mental health providers and corretions staff in order to best help mental health patients with criminal backgrounds. In this interview, Dick discusses his career and accomplishments, his work with delivery of mental health services in Alaska and how this has changed over the years, and the effects of the mental health trust lands battle and lawsuit.
Part two of this interview.
Click to section:
Section 1: Personal background, coming to Alaska, getting married and raising a family.
Section 2: The development of Alaska's Department of Corrections and seeing the need for mental health services for prisoners.
Section 3: Close connections between the correctional and mental health institutions.
Section 4: His educational background that led him into the mental health field, and discussion about how patients might be committed to Morningside Hospital.
Section 5: The beginnings of mental health facilities and services in Alaska.
Section 6: The building of Harborview Hospital in Valdez and establishment of a residential program for the developmentally disabled.
Section 7: Establishing the residential treatment program for the developmentally disabled at Harborview Hospital in Valdez, Alaska.
Section 8: Development of the Alaska Psychiatric Institute and McLaughlin Youth Center in Anchorage, Alaska.
Section 9: Development of the laws and procedures for involuntary hospitalization, and shifts in mental health services to the development of community-based care.
Section 10: Treatment of prisoners with mental illness, and changes in the law regarding use of an insanity as a legal defense.
Section 11: Treatment of mental illness versus criminal behavior, how the law applies to court cases, and examination of patients at Morningside Hospital in Portland, Oregon and getting them brought home.
BILL SCHNEIDER: Well, today is June 11th, 2009, and I'm Bill Schneider, and Karen Brewster's here, too.
And today we have the pleasure of doing an interview with Dick Branton. And his wife Alice is here, and their cat Dozer, so if we hear Dozer purring, that's what is in the background.
So, Dick, thank you for taking the time to do this.
DICK BRANTON: My pleasure. BILL SCHNEIDER: And what we usually do in interviews like this is ask people to give us a little bit of background information about their family, where they grew up and their parents and their personal background before we actually get into their involvement with what we're talking about today, which is the development of mental health services. DICK BRANTON: Okay. Well, I'm glad to.
Actually, I was born in a little town, coastal city of Myrtle Point, Oregon, which is sort of the southern part of Oregon. And I grew up as an Army brat. And in 1949, my father, who was a agricultural engineer, accepted a position as the agricultural engineer for the experimental station here in Palmer. So myself and my older brother and my sister and my mother and I all traveled up the Alaska Highway in 1949, when it was much different than it is now, and we arrived in Alaska. And I graduated from high school in Palmer High School. So I've been here about 60 years. My -- my wife was an Oregonian that I met while I was going to college, Oregon State, it was Oregon State College then, rather than Oregon State University. And she came up here about 10 years after I did, and she came up here to -- actually to go to work for a developer who was opening up a -- a hotel/motel operation in Fairbanks. And she came up to -- to play organ in the -- at a -- well, it wasn't a bar, it wasn't even a nightclub, it was just a -- an afternoon type of a -- of a, you know, have a glass of wine type of thing. The fellow's name was Walter Hickel.
And anyway, I had known Alice when I was in school, and so after a period of time, well, we got married. So that's the story. And I had -- I'd been married previously, my first wife had died, and so I had a daughter, and then -- and her name is Barbara and she currently lives in Fairbanks. And then Alice and I, after we were married, had another child, a daughter, her name was Terri, and she married a lifelong Alaskan in Juneau, and she and her husband, Darrin Fagerstrom, who just two days ago won the spring salmon derby.
ALICE BRANTON: Third place. DICK BRANTON: Third place. So anyway, and she and her husband Darrin and our two grandchildren continue to live in Juneau.
So -- so that's kind of briefly, you know, who I was and what I did, and of course, was an Army brat before we came up here. Well, we've traveled behind my -- my dad all over the United States. Section 2:
BILL SCHNEIDER: Are we back on?
KAREN BREWSTER: Yeah.
BILL SCHNEIDER: And what jobs did you hold? How did you --
DICK BRANTON: Well, what happened was that at Statehood, in the state of Alaska, the new state of Alaska found themselves confronted with an issue that was interesting because we had no criminal justice system in the state of Alaska because at that time, if you were a felon prisoner, meaning you were sentenced to serve more than one year, you were a federal prisoner. And there were -- some of the larger cities had a local enforcement, but most of the law enforcement was done by territorial troopers and marshals and this sort of thing.
So they were having some hearings right after -- well, it was before Statehood, they were just having some hearings about some of these issues, and I went to those hearings. And so after Statehood, they realized that we had to do something about that.
So I got involved with the what was called then the Youth and Adult Authority, which was the -- the program that was to eventually become what is now the department, I think it's a full department now of corrections. And the Constitution of the state says that there should be a system of corrections and it should be premised on reformation and rehabilitation. And the significance of that is that it removes the likelihood that the sheriff's office or the police or the -- that group of people that are doing the apprehension would be running any kind of a detention program because they are the apprehenders. And -- and my background was mental health, so I got involved with this because they were looking for people that could, in fact, be channeling their energies into how you develop programs that will reform and rehabilitate rather than just lock people up or punishment. So I was called to go to work for the then Youth and Adult Authority in 1960, and that was September 1960. And by 1965, it became apparent that I needed to be in Juneau, which was the center of government, because the activities that I was involved with, I was much more involved in the administrative part of the development of a state system of corrections. So my wife and I and family transferred down to Juneau. And the long and the short of that was that I worked for the department of -- or the Department of Health and Social Services at that time, and the Division of Youth and Adult Authority, which then became the -- let's see. I don't remember exactly how it all evolved, but the children's services program in the Department of Health and Social Services decided that they should run the juvenile corrections program. So they took over the juvenile, and then it became the Adult Authority, the corrections, and that's where it went from the Youth and Adult Authority to the department -- or the Division of Corrections.
And I worked for them for almost 17 years. And I decided that I probably had had about enough of that and so I resigned. But during the time that I worked for that program, I worked very closely with the mental health program and became very familiar with that because first, if you look at the rehabilitation and reformation issue, and many, many, many of the people that were incarcerated were people who were in need of mental health care, and so there was a close exchange over the time of the development of that program. And so when I resigned, I was given an opportunity the day, effective date of my resignation, to go over and go to work in the mental health program. So I resigned from the Division of Corrections one day and on Friday, and on Monday, well, I was in the administrative and operational part of the Central Office of mental health. So I didn't get much of a break.
So I stayed then for mental health for -- and that was in 1976, yes. Section 3:
BILL SCHNEIDER: So you -- we were talking about your taking on the position in the Division of Mental Health and Developmental Disabilities.
DICK BRANTON: Uh-hum. And so I was -- I was there for 10 years before I retired. And one of the interesting things about the executive levels of government are that you serve at the pleasure of the governor, but in some of the programs, the appointment of a -- a person to head them is a little sticky because it needs somebody with the right professional qualifications and so on and so forth. So the directorship of the mental health program was a fully exempt position, but there just weren't a lot of doctors that were interested in doing that. So they developed a position which was the deputy. So I was the deputy to contain the memory, if you will, and the continuities of the program. So as directors came and went, well, I was the touchstone that kept the program going. So anyway, I -- I moved over there and -- and it was a very easy movement for me because I had worked very closely with the top level people during the time that I was in corrections. And we, in fact, developed some cross-training programs where we would -- the state hospital, API, would oftentimes have people committed that were committed because of some criminal behavior or something like this, and mentally ill people, just because they are mentally ill doesn't preclude them, you know, having criminal behaviors. And the -- by the statute, the director of mental health and the director of corrections in each speak to the incarceration of people. So we could move prisoners from the jail to the Alaska Psychiatric Institute, or we could move patients from the Alaska Psychiatric Institute to the jail. So sometimes people would benefit by cross-therapy. So I was very familiar with the programs. And I shared office space at one point in time when they were doing some remodeling, and so for a period of time I shared office space with the head office of mental health in Juneau.
So I had an opportunity to share the issues that were going on, and so we were trying to develop a correctional system and mental health was trying to develop a program of institutions and this sort of thing. So there was a lot of supportive thinking that we shared. So it was very easy for me to move back from one institutional development setting to another. And it was very interesting to me because some of the same issues were involved because there were mental health patients who were being held in hospital and treatment settings outside the state of Alaska, as well as we had Alaska residents who were in federal prisons Outside. And as we began to develop prisons or, if you will, correctional institutions in Alaska, we began moving these prisoners back to the state, and the mental health program at the same time was -- was looking into moving their patients back to the state. So there was a lot of similarities that were going on.
So that was the sort of the story about where I was fitting into the matrix. Section 4:
BILL SCHNEIDER: Let's back up, then, and ask that question about your background.
DICK BRANTON: Well --
BILL SCHNEIDER: What prepared you for that?
DICK BRANTON: When I was in school in Oregon State, and Oregon State basically is an agricultural engineering college, or university. And they didn't offer very many liberal arts type classes, but they did have a sprinkling of them. And so I was in the -- actually in the School of Business Administration, but I had ample opportunity to take a lot of electives.
So I took all their elective classes in behavioral issues and found that I was -- that was where my interest really lay. So although I graduated, my degree was a degree in Business Administration, and just for the fun of it, because I was an Alaskan, I also took a minor in geology, which is a long ways from mental health, but sometimes you need to listen to the rocks; they tell a story, too. But so my degree was there and -- but I was very interested in behavioral issues, so I, as I say, I took all these elective courses that I could and this sort of thing.
But then after graduation, I took additional courses that I did not receive a doctorate degree, but I just -- you know, the farther you get into it, well, the more interest you have, and so that was my background. BILL SCHNEIDER: Uh-hum. And then we were talking about the history of the development of services when Morningside closed down. And the development of a state program.
DICK BRANTON: Okay. Well, I think it might be helpful to go back as to how -- how the patients arrived where they were. And under the territorial process, there were legal persons appointed as magistrates. And these magistrates were officers of the court. And if a person was exhibiting a bizarre behavior, or sometimes just was an annoyance to their neighbor, I mean, it was -- it was a pretty undefined line, but a presentation of this body before a magistrate who had absolutely no background necessarily in any kind of medical training or anything else, and a person could be drug before the magistrate, if you will, and an accusation made that this person is acting in this weird and unnatural way. And when that happened, the magistrate would then declare the person mentally ill, and they could order them, you know, confined. And the same procedure essentially was there for the developmentally disabled. And of course, in many cases for the developmentally disabled, it was much more obvious and there was -- especially if it was a fairly young person, you know, say three month old or something like that and was exhibiting very physical issues of developmental disability, but there was no really line drawn between those people who were mentally ill and those people who are developmentally disabled. So that was the early matrix. And that had been going on forever, so to speak.
It was not until the -- oh, gosh, I'm going to say the early '70s that we really began to recognize and separate out the developmentally disabled from the mentally ill. Section 5:
But anyway, into this matrix of developmentally disabled/mentally ill, the Federal Government was not real happy in having their magistrates order confinement because the Federal Government, if they ordered the confinement, were required to have to pay the bill. And so finances began to involve in it. So the Federal Government said to the state that -- and this was actually the territory, it was before Statehood, and they said, look at, we don't want these people that are mentally ill and all in our federal institutions so we have to take care of them, we'd like you, the Territory of Alaska, to figure out how to take care of your own. So what we'll do, we'll give you the opportunity to select a million acres of land because all the land was essentially federal land, we'll give you an opportunity to select a million acres of land and we'll give you a bunch of money. And you can take this money and you can build yourself some institutions of your own and you can support these institutions with the money that this land will generate. You can sell it, you can rent it, you can mine it, whatever you want to do with it. So the State of Alaska, or the Territory of Alaska said that was fine, and they took the money and they started the planning for what eventually became the Alaska Psychiatric Institute in Anchorage. And the -- the new Governor of Statehood, Bill Egan, was from Valdez, and he was the local political touchstone from Valdez that suddenly found himself as governor, and he intentionally or -- or just because it happened that way, was very interested in channeling money and state programs into the Valdez area because they really didn't have a big economic base in Valdez at that time. So if we fast forward at Statehood and a little beyond, the -- they had to have somebody running the program for the mental health and developmentally disabled. And I believe that the first director was Dr. J. Ray Langdon, who -- the psychiatrist. And so there were two things that happened kind of simultaneously. One of them was that he brought on board a fairly well-known psychiatrist by the name of Carl Bowman. And Dr. Carl Bowman was put in charge of developing in the construction of API, or Alaska Psychiatric Institute, which was being financed out of this money that the territory had received. And so the story goes, and I can't verify this, but the story goes that the governor called up J. Ray Langdon and said we -- we need to have a facility in Valdez. And they had a hospital down in Valdez. And so he said, J. Ray, go pick up some land down there and we'll build a facility down there for mentally ill or developmentally disabled or whatever. So J. Ray Langdon, in fact, did go to Valdez and looked at the old hospital, which was not -- it was a usable hospital, and I'm not sure what the background of that hospital was, but I -- there's a possibility that it may have been originally built in territorial times for -- as a TB sanitarium. But I don't know that. But anyway, there was a fairly large hospital there, much larger than you'd expect. Section 6:
So the plan was to separate out the developmentally disabled from the mentally ill and to build a residential treatment program for the developmentally disabled in Valdez, which was what eventually became Harborview Hospital, and the mentally ill would go to the newly constructed Alaska Psychiatric Institute in Anchorage. So that was the first real separation that was being made of the developmentally disabled from the mentally ill in the -- as far as the division was operating. The sort of follow through with Harborview, then, the construction and remodeling of the old hospital into what was to become the residential program for the developmentally disabled was -- was fairly well completed, but it wasn't totally done when the earthquake in 1964 hit. And so it totally destroyed, because this was all over in Old -- what they called Old Town, and it totally destroyed the hospital facility.
And so the Federal Government then came up with money, and I -- I'll give a name to the act, but it probably was not what the act was really called, but it was the -- something like the -- the Earthquake Relief Act or something like that. And it made federal money available to the state to repair and replace state facilities that had been destroyed by the earthquake. And one of the caveats, like all federal money, there's always a string on it, the -- one of the caveats was that you couldn't use the money to build a remarkably different -- differently utilized structure. So what happened was when they needed to rebuild in Valdez, but remember it was a hospital and not a residential program because it had not been fully converted, so the new Harborview facility was built, it was designed and built with this federal money, but adjacent to it and attached immediately to it is a -- I believe it's a 14 -- I want to say 14 or 16-bed hospital. So it became the Harborview Hospital and developmental disability residential program.
So that sort of is the mystery, people often say, well, why do we have a hospital connected to the residential program. And that was a contentious issue because people -- excuse me I'll put the cat up.
(Pause in interview.) BILL SCHNEIDER: So we were talking about this contentious issue.
DICK BRANTON: Yeah. It was a contentious issue because the parents of these people who were developmentally disabled were concerned -- concerned that we were treating them like they were sick, and you know, we have a hospital, you know, and you know, that was an imposing hospital. Why are we building a hospital. And the reason, as I said, we built the hospital because of the letter of the law required us to. So that was the story about how Harborview actually got built. Section 7:
Now, up until we had Harborview built, our developmentally disabled persons were being sent outside just like we had sent our prisoners outside, and they were being sent, most of them, to the state of Oregon and to Baby Haven --
ALICE BRANTON: Baby Louise Haven.
DICK BRANTON: Baby Louise Haven and Haven Acres were two of the facilities out there. And these were -- were facilities that were privately operated. And they were -- at that time, the -- there was a fairly prevalent philosophy about developmentally disabled, especially if they were severely involved, that said that these -- these people won't live very long. And so many of them never left the delivery room. And those that did weren't supposed to live very long. And so the programs were essentially programs for very youthful people. Well, the problem was these people didn't die, and so throughout the United States, there was a real issue of developmentally disabled adults who were these children that -- that didn't pass away prematurely. So we had people that were at all levels out in these facilities outside, and these facilities outside were -- we talk about Baby Louise Haven and this sort of thing but they weren't necessarily full of babies. Some of these people were older. There was also a big issue that there was a lot of social stigma attached to the developmentally disabled. And the -- it served a good social purpose for many families to have their DD family member out of state and out of mind. And as an example, I recall we had a DD resident whose parents were rather prestigious in the Anchorage social set, and they were very happy having their child out of state and out of mind. And they were very resistant to the idea that we might have a facility that we would bring their child back to the state of Alaska. So there was all this turbulence going on. But nonetheless, we -- we did send a team outside that screened the people that were out there, and these people, although they were developmentally disabled, they certainly have not lost their civil rights. So they had some say so in whether they wanted to move back or not. But we did start moving them back, and we moved back a number of them to Harborview Hospital and Treatment Center, or actually just became Harborview, we called it, in Valdez. And that was the -- the way that that came into being. One of the things that was interesting about it was that it -- Valdez was a -- was a relatively small town and remained that way, and when the Alaska pipeline issue came along, we really had a concern about staffing because it takes a fairly rich staffing pattern when you're providing 24/7 care to people that are oftentimes unable to take care of their own needs. Well, the state built housing down in Valdez for state employees, and in Valdez, at that time, the Department of Highways had a major regional operation in Valdez, as well as Harborview. So there was a real clamor for housing for the pipeline. And the deal was that a lot of people would say, well, let's go to Valdez, and Hilda, you can go to work for the developmentally disability facility over at Harborview, and that will give us housing, and I'm going to go work on the pipeline. So the big labor crunch that a lot of organizations were feeling, we didn't feel, because we had housing and people were clamoring to -- to live in our housing and go -- and have one member of the family unit go to work to qualify for the housing, and the rest of them were working on the pipeline. So that was how we got through the pipeline criteria. BILL SCHNEIDER: When you say "we," I'm assuming you were intimately involved.
DICK BRANTON: I was involved with that from time to time, and the -- the person that -- that I replaced when I actually transferred over into the mental health issue, and I went in '78. So yeah, I -- you know, some of this I was involved with and some of it was just tangentially, but a fellow by the name of Mason McLean was the person who was the deputy or I don't remember what. They changed titles more than they changed people, as you know. Don't give them more money, give them a different title.
BILL SCHNEIDER: All right.
DICK BRANTON: So -- so -- and we were sharing office space, so it was, you know, no biggie.
BILL SCHNEIDER: Uh-hum.
DICK BRANTON: So that was kind of briefly the story of -- BILL SCHNEIDER: Of moving the people?
DICK BRANTON: -- of moving the people and establishing Harborview, and actually beginning to say the developmentally disabled are not necessarily in need of the acute hospital care, they needed the residential and training and vocational programming. Section 8:
BILL SCHNEIDER: And I assume at that same time API was --
DICK BRANTON: Okay. At the same time, API was opening and was open, and let's talk about the earthquake era. And it was a very newly opened, and Carl Bowman was an advocate of some -- a lobotomy, that's a category, a type of surgeries for certain types of mental illness. So one of the things that he insisted on when API was being put together was that they have a full surgery, which, to the best of my knowledge, aside from one or two rather minor things that happened there, became nothing more than a storage area. It was never used that way. Carl left and there was lots of other reasons to not -- not do that. And of course, Providence Hospital, the Sisters of Providence moved their hospital from over on -- was it on Eleventh -- Ninth, Eleventh, whichever it was, they closed that down and started building their hospital. When the land was picked for API, it was fairly well out in the sticks. It was -- there wasn't much development out there. And I looked, I had a photo that we had taken that I don't know where -- I've got it somewhere in my files, but you'd be amazed at how remote that was, because we did not want that. And the reason I say "we," again, because at the same time that they were looking for land there, the correctional system was looking for land to build a juvenile facility, which became McLaughlin Youth Center. And it was determined that there was some similarities in terms of outdoor recreational, you know, uses like outdoor track and this sort of thing that people of API might be utilizing, as well as the -- so there was, again, a coordination of effort between the correctional system and the mental health system. And so McLaughlin Youth Center, we were looking for land that was, you know, somewhere adjacent to the courts but -- but out of town. We didn't want a youthful offender facility in the middle of town. And they didn't want a hospital for the mentally ill in the middle of town. So again, we were looking at the same land, and today, if you look there, there they are, next to each other. But it was all vacant land then. So anyway, API then, during the earthquake, sustained very little damage, and here we were, it was basically a fully functional hospital with -- we had a huge commissary or storage area for food and this sort of thing, and so it was one of the major potential safe -- safe locations during the earthquake. You know, if we needed to have people go and all. Section 9:
So API was involved in the earthquake in that way, and all, but it -- the processes by which people were getting in and out of facilities began to change, and so in the early '70s -- and Dr. Schrader (phonetic) can fill this in very clearly for you, I'm sure, but there's always been a lot of controversy about mentally ill people and whether they needed to have someone assist them in getting help. In other words, involuntarily hospitalizing them and this sort of thing. And so the -- that process was always pretty loose about how that was happening. And people -- one of the things that was happening was that people that were mentally ill, there were not a lot of psychiatrists in Alaska in those days, and those few that were around would -- would treat people that were mentally ill, but eventually, in most cases, the mentally ill ran out of resources, financial resources. And so by the time they would run out of resources, well, the private sector would say, well, we can't -- I can't afford to do this. So they would refer them over to the -- to API and they would get, one way or another, admitted into API, but it was always a pretty loosey-goosey process of how a patient arrived at API. And so we went to the Attorney General Office and said, you know, we're concerned about our -- our laws here for involuntary hospitalization, and the Attorney General's Office looked at it and said, well, we are not going to issue this, you know, and I don't know that we ever got a written opinion, but we were told that probably our processes that we were using at that time were unconstitutional. And so we had to write some -- some new laws and implement them for involuntary hospitalization. And that then became the way that many of the -- of the chronically ill patients that were coming into API arrived there, it was involuntary, and if they were long-term patients that were in and out, which often was the case, but mentally ill people often times are stabilized and do very well with their medications, but for several reasons, the side effects of the medications, the -- just all these reasons all put together, they say I don't need to take my meds anymore, and so they quit taking their meds, and as soon as they do, well, they begin to revert back to their acute behaviors. So you have a lot of recidivism, if you will, patients that come in and out of the hospital.
So the -- we had this hospital operation going, and then the Federal Government came along with what they called the Community Mental Health Centers Act. And the Community Mental Health Centers Act was federal money that helped support the development of community oriented delivery programs for care for the mentally ill. So you began to have programs like the Anchorage Community Mental Health Center. There was a lot of these municipal programs that began to develop. And there the thrust of those programs was to support mentally ill people in their own communities. And they then began to utilize local hospital beds for temporary hospitalization of mentally ill people. And if they -- there were people that were going to probably require long-term hospital care, then the community mental health centers would transfer these people out of the local hospital settings into API, or Alaska Psychiatric Institute. In today's world, most hospitals in major, you know, metropolitan hospitals in Alaska now have mental health wards where they can provide hospital care for the mentally ill, which has taken a lot of the previously API patient load and moved, and spread it throughout the state. And the new hospital, and I have really not stayed on top of -- they rebuilt or made a new hospital, a new API here that they opened fairly recently, and I think it has probably between half and two-thirds of the number of beds that the old API had because the projected demand for state-operated hospital beds has just diminished, the communities are taking care of that in the private sector. And I say the private sector, not all hospitals are private hospitals, but the non-state operated hospitals. Section 10:
So that's how API is operating. And of course, we found when we started to move patients back from the South 48 just like the developmentally disabled, we found that we had long-term care patients that were out and going back through that process, the DD persons went to Baby Louise Haven, or whatever, and if you were a mentally ill, you went to Morningside. And Morningside was the hospital in Salem. And I don't know that many people think about this, but Morningside was a privately operated hospital. It was not a state operated hospital in Oregon. And there was a tremendous amount of controversy that took place when the state of Oregon decided they wanted to build a state hospital because the operators of Morningside, which was a private operation, were opposed to that. And the state should never be in that business and all. So again, there's a lot of similarities to the state of Oregon and the state of Alaska in terms of how the hospital got built.
And they had the same issues with their hospitalization process. Oregon was pretty loosey-goosey about how things were happening, and who got into Morningside and who didn't. And we got ready to bring people back, and we found out that we had people down there who we used to call them a plea of insanity that were charged with crimes, and insanity was a defense. And so these were -- were people who were determined to have been insane, whatever that word might mean, and as a defense against a crime they had committed, and so they were committed to a hospital. And so they were being sent out to Morningside.
And Morningside didn't really know that these people were there because of this criminal behavior, so we started bringing them back, and we had -- at one time I think that we had nine -- nine patients, I believe was the number, that we had at API who were essentially serving a life sentence because they had pleaded not guilty by reason of insanity. And they were, you know, if they were insane, how would they become un-insane. That process wasn't very clear about, yeah, we can determine what insanity might be, but we don't know what un-insanity might look like. So these people essentially were doing life, you know, as patients in mental health hospitals. And we did get that law changed, and now the law is guilty but mentally ill. And so if you are in a process -- of the not -- or guilty but mentally ill, so let's say that you are involved in a -- a crime of murder, and you're found guilty but mentally ill, you might serve -- you're sentenced to 99 years, and you might serve 10 or 12 or 15 years in a hospital, in API, as a matter of fact. But at some point in time, there's going to be a medical examination done and they are going to say that your, quote, insanity has now been controlled, and so instead of serving your time, the rest of the time in the hospital, you will then be transferred to a correctional institution. So, a plea of guilty but mentally ill doesn't change the length of sentence that you might receive from the court. So a person receiving a sentence for guilty but mentally ill merely says that we're going to give you a sentence to serve because of your guilt, and some of that may be served in a treatment facility for the mentally ill, but in any event, you're going to go from the mentally ill treatment program into a state correctional facility until your sentence is served. So that changes the whole picture of what went on.
So aside from those people, and I honestly don't know now, there's a possibility probably that there may be one or two people still at API that were -- that were criminally insane, but I -- I don't know that. I have no idea. Section 11:
BILL SCHNEIDER: Well, that's -- that's really amazing. So there were people, then, that were transferred from API back to jail, or to jail?
DICK BRANTON: Well, not -- not until we got that guilty but mentally ill law passed. Up until that time, there were people that were not guilty by reason of insanity that were serving time or treatment out in Morningside, that when API opened up, moved from Morningside back to API. And they didn't really have any clue at Morningside that these people were criminally involved; they were just mentally ill, as far as Morningside was concerned.
BILL SCHNEIDER: But just a clarification here. So at API, then, if there's a medical examination of one of those patients and it's determined that they no longer are mentally insane --
DICK BRANTON: Mentally ill, yes.
BILL SCHNEIDER: Mentally ill. DICK BRANTON: They can then transfer out of there and they are sent to a state prison, because the court has sentenced them to an incarceration, if you will, for a period of time, and whether they are incarcerated in the treatment facility or in the jail, the court could care less.
BILL SCHNEIDER: Even though they may have committed the crime because of their mental illness.
DICK BRANTON: That's correct. BILL SCHNEIDER: And that's still the case?
DICK BRANTON: And that's what the law says today. And that's why you very seldom ever hear of anybody as a defense against a criminal behavior saying that this person was -- you'll hear we'll need this person examined because they were under some sort of duress and may have had, you know, some reason of mental illness involvement to commit a crime, but they don't plea -- very few attorneys will then say, so the defense is that we want a defense of insanity. You know, they may say, these are extenuating circumstances of how my client was -- and the mental state of my client when the crime was committed, but they won't say, therefore, I want my client -- we're pleading, you know, insanity.
BILL SCHNEIDER: Yeah. DICK BRANTON: So it changed the way the courts and the whole way the law is carried out. Because there's no longer a way to escape the incarceration. Because technically, before, if you were -- if you were not guilty by reason of insanity and somebody would certify that the insanity disappeared, you were free. So remarkable differences. BILL SCHNEIDER: Yeah. While we're on that issue, people were treated from Morningside, can you speak in general terms about how that went?
DICK BRANTON: Well, in general terms, the -- there were a lot of these people who had been there for a long period of time and wanted to remain there. They -- you know, they -- again, they had certain civil rights, and they -- they had been living down there maybe for years. Some of these people were chronically mentally ill. And some of them, when we began screening them, were people that we said don't need to be hospitalized anymore. And so they were brought back and through a process with our social workers and the community and all were -- were returned back into the community. So the idea that the once crazy always crazy began to disappear; that, you know, people could manage their mental illness just like they could any other disease, and they could return as useful citizens, as long as they maintained their medications or whatever the needs were. And also, we -- there was a law that we got through, and it said that -- and the people who were under state care, they or their estate could be charged $50 a month.
Don Brandon was interviewed by Bill Schneider on April 20, 2009 in his office at the Region 10 Disability Business Technical Assistance Center in Seattle, Washington. He shares the story of his family, their care for his two brothers who resided for a period of time at Morningside Hospital, and his observations on disability services in Alaska.
Click to section:
Section 1: Early life growing up in Alaska and family history.
Section 2: His mother trying to raise four boys, two of them with developmental disabilities, and finding educational opportunities for them.
Section 3: His mother’s decision to place his brothers at Morningside Hospital in Portland, Oregon.
Section 4: Living with another family for a year in Washington, and visiting his brothers at Morningside Hospital in Portland, Oregon.
Section 5: His mother’s death and his decision to become his brothers’ guardian.
Section 6: The loss of his mother, the transition to being his brothers’ guardian, and challenges in changing his brothers’ care from an institution to independent living.
Section 7: The challenges and responsibility of guardianship, and the effect past experiences at Morningside may have had on his brothers’ behavior.
Section 8: On the challenge of bringing mental health care to Alaska and the role his mother played in advocating for better care and bringing her sons home.
Section 9: His career and views on disabilities.
BILL SCHNEIDER: Okay. Today is April 20th, 2009. I'm Bill Schneider. I have the pleasure today of talking with Don Brandon.
And we tried to get together earlier but the volcano got in the way, so thank you for taking time and making this opportunity for us.
Let's start by having you talk about your family history a little bit, about your parents and growing up, and then we'll get into the issue of Morningside. DON BRANDON: Okay. I am the son of a first generation Mexican-American family that lived in Colorado. My two older brothers were also born there. And my dad was -- did a variety of construction jobs. And in about 1950, he got in trouble with the police in Pueblo, Colorado. And Pueblo was one of those communities that had a lot of back -- racial tension between the White -- well, what do you call it, the White Government and the Hispanic population that lived there. And after getting into a series of brawls with the police, he figured his best course of action was to get away from Colorado, and in the late '40s and early '50s, the best place of refuge was a Territory that was called Alaska. And it seemed to attract a lot of people who were running from something or looking to -- for gold or whatever, and my dad had both of those visions, looking for gold and, you know, trying to get away from the constraints of life in Colorado. And so he separated from the family to go find a career and -- and make his way in Alaska in about 1949. And after securing a job with the F. E. Company, working at Chatanika Gold Camp, eventually brought us up to Alaska. "Us" being my two older brothers, Joseph and Norman, who were 3 and 4 at the time, my mother and I. And I was 8 months old when we made the trip to Alaska. And some of my earliest memories are growing up in Chatanika Gold Camp when it was an active gold camp and the dredge was running and my dad worked out on the dredges. And you know, it was really extremely hard labor. Even though they provided cabins for the workers, they were one-room cabins, so when you bring a family of four into a one-room cabin that they had at Chatanika, it created a lot of challenge for -- for the families. And you add to that two -- two children, the one baby and two children that have developmental disabilities, and you kind of get the picture of what was going on. I think the cabins weren't much bigger than 10-by-12 one-room cabins, or something small like that. I don't know the exact dimensions, but having visited up there since then, I know that they weren't very big. And so my dad worked at F. E. for -- and in Chatanika for a few years, and eventually he went to work at Usibelli Coal Mine as a coal miner because I guess it was more year-around work or something like that. And so he would fly in and out of Healy at the time before the highway was there, the Parks Highway. And I do have memories of us visiting him while he was in Healy and arriving -- driving -- riding on what was called the Doodle Bug. It was a big Chevy Suburban that was mounted on tracks, and the engine of the Suburban was used to cross the train trestle because there really wasn't a road connecting Healy to the Usibelli Coal Mine area, which there is now. And some of my earliest adventures were walking with my dad along the train trestle from the mine.
And because of the nature of work in Alaska, my father worked construction in the summer and tended bar in the -- in the winter. And about every March when things started thawing out, he would leave his -- his job as a bartender and go start working construction.
This had its impacts on our family. My mother was a rather independent woman, one of the first liberal women that you might want to meet, and she wanted to go to work. And -- but she had three of us to tend to.
And toward the end of my mother's and father's relationship, a fourth child showed up, my younger brother Merle, and he was born right at the end of their marriage. Section 2:
And so my mother is raising three boys in Fairbanks prior to Statehood. And she has two with developmental disabilities, and me, an extrovert with up syndrome, as I put it, because I was always looking for something to get into. And then there was my little brother. And my mom's way of trying to take care of the family and keep things together when we lived in Fairbanks was to hire a live-in baby-sitter to offset some of the cost for taking care of my older brothers, as well as providing, you know, some sort of stability when she wasn't available all the time. And so we went through a series of baby-sitters, and we lived in a house on 16th Avenue in Fairbanks. It was a log cabin that burnt down during the flood of 1966 or '67 -- '67. And -- but it was -- it wasn't a big place and it was really cramped. I think it had two bedrooms, so if you can imagine having four children living in bunk beds, a live-in baby-sitter and my mom, and it was pretty -- pretty tough times. And during the course of these things, she tried to find placement for my brothers, Joseph and Norman, in the school system in Fairbanks at the time.
And at that time, the -- the places that had -- that they could go to were place -- there was a real small program, as I recall, at Main High School, or in the Main High School building on Cushman Street. And eventually, they developed Special Ed services at Barnette, what is now Barnette Elementary School, which I think was sort of a junior high location when it was first built in the very early '60s. And -- but it was in those -- I guess Barnette was built in the latter part of the '50s, it was in those settings that my brothers would go to the school, and because they were lower functioning, kids with developmental disabilities, they were placed in class settings with kids that were older and had various levels of functionality. And so you can imagine it was quite a challenge for the school teachers and the educators at the time to try to maintain what I remember was just one class that everybody was in. So it was more of a day care scenario than it really was Special Ed, as I look back on it. Section 3:
And in the course of this, because of all of the challenges of how our family was being raised and the things my mom was trying to do, working from Eielson Air Force Base and then eventually, Geophysical Institute. It became pretty evident to her that it was just too many balls to try to keep in the air at the same time, with two younger children, and then my brothers, Joseph and Norman, starting to get in the age range of 7, 8, 9, and 10, those age brackets. And so she made a decision during that time to have my brothers placed in Morningside Hospital.
And as I recall, it seemed like that was the only other option that was available besides the Special Ed classes in Fairbanks. And her biggest concern was the level of independent living skills that my brothers didn't have. And that, please remember, as I use those terms, those weren't the terms we were using back then. The terms she was looking at was -- were things like, well, how to deal with their incontinence issues, how to deal with their lack of attention, or you know, because she really believed that there was opportunity for them if we could find the right environment, and I'm sure she placed a lot of hope in Morningside being a place like that. And I think a lot of families in Alaska did something like that, in spite of some of the information that was coming out of Morningside that was circulated in the Daily News-Miner in the mid '50s and stuff saying that there were --
(Break in interview.)
BILL SCHNEIDER: Well, let's -- let's pick up from there. We're recording now, and you were talking about the decision that your mom made, that very difficult decision. DON BRANDON: And she didn't have anybody really to bounce that decision off of, that I'm aware of. Not being married, I'm sure whatever investigation she did about services that were available she had to do with either social workers in the community at the time. And my mom was not an unintelligent woman. And so I am sure that she was dealing with some of the concerns that were being raised in the News-Miner about Morningside Hospital, some of the concerns that were -- were just floating around in the state. But I also think that it was probably one of the closest facilities. Looking back on it now, I realize it was an institution, but it was probably one of the closest areas that was set up to deal with the concerns and needs of people with developmental disabilities. So she put -- she took a look at what our circumstances were and the tensions that we had at home and what Morningside apparently seemed to offer and made the difficult decision of placing my brothers as residents at Morningside Hospital. And I'm thinking the year was 19 -- I said 1960, but now that I recall, I have a picture of us visiting there in 1960, so it had to be earlier than that. It was probably right about the time when I turned 4, which would be probably the latter part of the 1950s, 1958, '59, something along those lines. I do know that the decision was traumatic enough for her that after my brothers went to become residents at Morningside that I -- because of the smallness of our little log cabin, I could remember hearing her cry and pine about the separation of -- of the family. And I didn't quite understand all of the anguish she was going through, but I did miss my brothers because, you know, when you grow up with -- in a family with disability, that's normal for you, and it doesn't seem like there's anything different about it, it's just other people don't have brothers like I had, but so what. You know, it was just -- just the way things were. I do know that over the years that she had lots of issues about their care and she would make visits to see them about two or three times a year, particularly during the holidays, and it was on Christmas and Easter that they came home a week -- a week or two at a time. And we could see some progress, seemingly, in some of their independent living skills, but not all of them, because a lot of the concerns that we had as far as why they were placed at Morningside were still concerns even after when they would come visit -- with -- with the family for a week or two period during Christmas and Easter. Section 4:
BILL SCHNEIDER: Yeah. That's -- sounds like your mom went to some pretty long lengths, though, to maintain the contact and to keep the family together. It must have been very difficult as a single mom. DON BRANDON: My mom was an unusual woman because eventually, we all became residents of Washington or Oregon. I'll tell you what I mean by that. My mom really knew that she wasn't going to be able to make it on her own, even when there was just two of us, my -- my younger brother and myself. And the process of meeting someone new was overshadowed, oftentimes, by the fact that she had two little kids at home, or four little kids at home. And so one of the things that happened was that we met a family, because my mother worked at Eielson Air Force Base, met a family that was a large family, as I recall they had 10 kids, which was not all that unusual in the late '50s, and when they moved to the Tacoma area, my mom created some sort of contractual arrangement with them, in the sense that she would pay so much money a month for me and my little brother to stay with them for about a year while she was able to sort of improve her circumstances where she was at and not have to be concerned about paying for the baby-sitters because that still was an issue for us even though my older brothers weren't -- were no longer a part of our -- our living situation. So for about a year, me and my little brother lived in Tacoma while during that time my mother transitioned from working at Eielson Air Force Base on the flight line as a civil service worker to working at the Geophysical Institute for the University of Alaska. And it was during those times, too, when she would come down, we would all sort of -- she would bring my older brothers from Portland up to Tacoma, and we would all sort of hang out at the Anderson's house in -- which they had. The good news was they had a huge house for us all to be in. And of course, when you're kids, camping out in the front room was a big deal, it was like camping out in the backyard almost, so it really wasn't that strange of an event for us to be piled all over the living room floor and that kind of thing, as we were able to visit. And I remember on one occasion, my mother came to Tacoma and we traveled to Portland, but I don't remember all the details of it; you know, it was a first grade memory, as I recall. I do remember one visit that we made with my stepfather. My mother remarried in about 1962, '61, '62, somewhere in that area, and my stepfather had not met my older brothers. And so we made a trip to Portland, and we -- I remember arriving at Morningside Hospital and feeling a real sense of this place is really different. It felt scary to me because my -- when my parents went into the office or wherever they were going to get my brothers, Joseph and Norman, so we could go do some stuff together, I remember all these unusual young people and adults with developmental disabilities scurrying back and forth from place to place. And one guy actually got into the driver's seat and started like he was going to drive away. And one of the staff members at work there came and discouraged him from doing that. And it was after that we started locking the doors when we were there because it just -- you just never knew what was going to happen. At least that's the sense that I -- that I recall from it. And I remember making one other trip there when I was 12, which was the last time I saw my brothers as residents of Morningside Hospital. And it was after my mother had passed away. And by that point, they were in the process of becoming wards of the State of Alaska. Section 5:
BILL SCHNEIDER: When did your mother pass away?
DON BRANDON: My mom died in 1965. And in Fairbanks. And one of the big concerns she had was what the outcomes were going to be like for my brothers. Because she wasn't going to be around to sort of guide that process or influence it. And I don't -- I do know -- like I said, I do know that my stepfather and my brother and I visited Joseph and Norman on our way out of Alaska in the process of moving to South Carolina.
And from that point on, all I had -- we didn't have any contact with them from the time I was 12 until I was about 25 years old. But during that 12 or 13 years, as wards of the state, they were moved out of Morningside and brought back into the state, were residents at API [Alaska Psychiatric Institute], and then residents at the Forrest Charles Boarding Home for a few years before I became their guardian again in 1984. BILL SCHNEIDER: And tell me about that decision to become their guardian.
DON BRANDON: The decision to become Joseph and Norman's guardian was based upon a real sense of family and responsibility that my mother had built into me early on. And even though living in South Carolina, going to high school and college there, and even graduating from college to go on to graduate school in Texas, I always had the sense that I need to go back and collect my brothers or become responsible for their welfare. And in 1978, I took a trip to Alaska to do two things, to find my biological father and to find my two older brothers.
And my biological father, even though my parents were divorced when I was 3, never had any contact with my brothers from the time when I was 3 until I was 25. So that's, what, about 24 years or so. Or 22. Whatever the number is. Might even be 23 years, if I do my math correctly. But anyway, there was a significant period of time when he didn't have contact with them. I don't know that he made many attempts to contact them, but toward the last five years of his life, he was very actively concerned about coming in contact with them. My progress for moving back to Alaska was, like I said, was to catch up with Joseph and Norman, get reacquainted with my biological father who I didn't know, didn't grow up with, and in during the course of that, it gave my biological father the opportunity to get to know his oldest boys. And -- and I kept pushing him to become their guardian, and he resisted that, mainly because he thought that their situation was better where they were at, and if he became their guardian, he might mess things up for them. And I think a lot of that has to do with his lack of familiarity or with dealing with some of the issues that -- for people with significant disabilities, thinking that the state or an institution understands the needs of people with disabilities better than the family might. Because I think that was kind of one of the -- well, I know that was a prominent concern that he had. But because I didn't want to fight him in court to become their guardian, I just sort of waited and bided my time, so to speak, until when he passed away in 1985. One of the first things that happened within about three months of his passing, was I became my brothers' guardian. Well, he passed away in '84, so it was -- I became their guardian in 1985. Section 6:
BILL SCHNEIDER: Did your mom know that she was going to die?
DON BRANDON: My mom knew that. She was getting worse and worse. She had a gallbladder operation that -- and at the time, Fairbanks Hospital had the highest morbidity rate of any hospital in the United States. We didn't know that at the time. It's one of those things that you find out as you look back in history and you discover that. And she had a gallbladder operation that wasn't done well, and it caused her liver to get infected. And that infected liver, because of that gallbladder operation, caused her to develop cirrhosis of the liver. And so it was a slow, gradual death over about an 18-month time frame. And she was hospitalized for long periods of time. And there was one summer that she thought she was going to die, she sent me and my younger brother away to South Carolina again for a summer to live with my stepfather's family, because she didn't want us to be around to see her continue to deteriorate. And -- and it was that following winter that, after we came back, that she -- that following spring that she actually did finally pass away. So she didn't -- all she did was give us a summer vacation in South Carolina, and -- and her condition continued to deteriorate over the next 9 months or so. BILL SCHNEIDER: So when you took over guardianship, was that for both Joseph and Norman?
DON BRANDON: I became the guardian of Joseph and Norman together.
It just so happened that guardianship is something that has to be renewed every so many years, and they had been wards of the state, I guess, since they -- since I was 12, and by 1984, I was in -- I was in my early 30s, so for about an 18 year time frame, they were wards of the state living at API, and at that time at the Forrest Charles Boarding Home, outside Palmer. And my first -- and -- and at the time, I was also the manager of the farthest north independent living center in the state, called Access Alaska. We opened that office in 1984, in the fall of 1984. And one of the things that independent living centers are charged to do is to, more so then than they do now, was to liberate people from institutional settings. And the first two people that I liberated from an institutional setting were my brothers Joseph and Norman. And it was kind of funny. As they are now residents of Fairbanks Resource -- or they became residents of Fairbanks Resource Agency [FRA], and I had a contact there whose name was Colin Showley (phonetic), and when I described their circumstances at the Forrest Charles Boarding Home, he put them on an emergency list, and which actually gave them priority for placement at FRA. And so I became their guardian in October of 19 -- I think I said January -- I became their guardian in October, but Joseph and Norman became residents at FRA somewhere around January or so of 1985, which was fairly quick, which was a fairly quick transition. And from the time I became their guardian to the time they were involved in the -- in a community based living program. And so it was -- it was really different for them because they had so many institutional behaviors that they brought with them. I remember one time they were teaching or giving people responsibilities, and they told Norman to make lunch. Well, Norman's process for making lunch was to make sandwiches for 23 people. Well, when he went to the kitchen to make lunch, by the time they caught up with him, it was 23 sandwiches later. And your -- everything that was done in a group process. Even in those types of institutional settings, you know, there were certain days when everybody took a shower and they were just lined up like cars at a car wash and run through the shower. When it was the day for haircuts, everybody got the same hair cut, they got a buzz cut kind of like mine. And then so those types of institutional behaviors were pretty prevalent with them. And they -- when they came -- came out of those things, situations, at FRA.
And one of the other features about institutional behavior is that you don't really own anything. Everything in other places belongs to you. And so that -- they didn't have a boundary of ownership. I recall one time I took them a bunch of clothes that we had gathered for them, and then our next trip the next month, we saw all the clothes that we had gotten for Joseph and Norman being worn by every -- everybody at the facility where they were located. And it was kind of like, well, this isn't going to work, you know, because we were trying to take care of Joseph and Norman, but they literally didn't have any ownership of stuff. And I guess the institutional setting that they were in didn't allow for them to maintain ownership of things, or people came and took them or whatever. But when they came to the community-based program at FRA, it became problematic for Norman particularly to know what was his and what wasn't his because he figured everything was his because in an institutional setting, that's the way it is. You don't have any ownership. It's very -- very -- much more communal, or -- unless you really stake out a claim on it in some vivid way where nobody else will touch it. Section 7:
BILL SCHNEIDER: So Norman is now living in Fairbanks?
DON BRANDON: Joseph and Norman both lived in Fairbanks. Norman passed away about two -- two years ago. Joseph still lives in Fairbanks, and he's probably about 59 years old now. And he's still a resident at FRA. He lives in an apartment cluster. And he works with a spud buggy at FRA and participates in a lot of the recreational programs that Fairbanks North Star Borough has and events like Special Olympics and stuff like that. BILL SCHNEIDER: And as guardian, what are your responsibilities?
DON BRANDON: Basically to make -- whenever there's a decision to be made about their health, welfare, you know, I'm the one that makes that decision. It's -- when you make a decision relating to what kind of benefits they get, what types of -- how to spend down their money, which is a real challenge for some people, because they are in a -- they actually can save money living off Social Security, and so we have to look at ways to spend down their money within the time frames or the constraints of what -- what Alaska state law allows and Social Security allows. So making decisions about what's an appropriate purchase for some of that money. Because they do pay their own way as residents there at FRA using their Social Security, Alaskan housing supplements, and stuff like that, sort of compensates and offsets the costs of where they are living. BILL SCHNEIDER: Well, you've had kind of a unique perspective on the evolution of services.
DON BRANDON: Yeah. Yeah. I've -- I watched in the early years from an uninformed understanding of what was going on around us because, you know, you're a kid, you're growing up, you're trying to survive your own teenage years. But at the same time, when I became their guardian, they came with a little bit of history about where they had been. And I say a little bit because their years at API, their years at Morningside, their records or their medical history was very, very limited. I was concerned about some of the fears that my brothers had picked up along the way. Joseph still doesn't like anything inserted in him, like even an oral toothbrush, he can't stand those types of things. And there's some -- some of these behaviors are reactive to other memories in his life that are very uncomfortable. And so, you know, some of the things that would assist him functionally are he still rebels against -- and we just sort of let him, we have to just approach it differently. Like going to the dentist and all those types of events are not easy things for him to do, for whatever reason for -- that -- because of things that have taken place in his past. And -- but we just don't know what those reasons are because the medical records don't really tell you the bad stuff, they just tell you what, you know, they want you to know. But something definitely happened along the way that has created some of the fears that he has in those areas because, I mean, there's no -- no memory that I have about why they might be what they are. Section 8:
The thing that I think's been interesting about Alaska in their transitionary phase is the way they tried to export people with severe disabilities, provide services for them, because they didn't have the infrastructure for themselves. The other thing that was unusual is that when they built API, they had people with developmental disabilities in mind in that process. I don't know what good that was because I remember their medical records talked a lot about the ways they would -- in order to control behavior, they would sedate people. And so there was a lot of discussion in their medical history about the kinds of medications they were taking to suppress behavior. When they came out of API and went to the Forrest Charles Boarding Home, a lot of that medication went away because they were getting much more free range to participate in the country living that they -- that they had there in Palmer. But even in that scenario where they were -- it still wasn't the very best scenario for them, in my mind, and that's why we got involved with FRA. I remember my mother was -- you know, we were talking about some of the concerns she had. She was an active member of the ARC [Association for Retarded Citizens] in Fairbanks, back in the early -- I think the early renditions of it, late '50s and early '60s. And she participated in fund-raising to build programs. And Alaska has seemed to have had this as a theme among their programs, to bring our children back home. Because she was actively trying to do whatever she could to get Joseph and Norman closer to Fairbanks and out of Portland. And she participated with Margaret Lowe at the State Fair, and my mother would sell tacos. And her and Margaret were active taco sellers or dispensers at the State Fair every year. And I remember Margaret, I ran into her in Juneau when she was the Commissioner of Health and Social Services several years ago, and I mentioned to her who I was, and she remembered my mother, and mainly because my mother was so protective of her taco recipe. She would take her ingredients down to Foodland and have them placed in the meat and she would pre-mix them. And so nobody really knew what went into the taco meat, but everybody really liked them. But nobody knew what the recipe was. BILL SCHNEIDER: Oh, that's good.
DON BRANDON: But it was those types of things my mother would do, and part of that, her history of trying to, you know, make things better and working in Fairbanks to -- to make that happen. So I've seen the cause of why institutionalization takes place, I saw my brothers placed at Morningside, I saw my mother working to try to neutralize that, and then in their personal history, knowing that they participated at API, and at some of the rural homes around Alaska, too. They also lived at Harborview for a few years because right after they built API, I think they built Harborview in Valdez, and they lived there for a few years. And it was from there to the Forrest Charles Boarding Home that we eventually -- that's part of their progress. So they were involved in most of the major institutions -- early major institutions in Alaska as residents. Section 9:
BILL SCHNEIDER: The proceeds from that taco, how were those proceeds used?
DON BRANDON: I'm not exactly sure. I was only, you know, 11, 10, 12 years old, but I think they did it for fund raising to build, you know, a local home for people with developmental disabilities that -- so that the families could be closer to their kids. That's how I understood it. But I'm not -- I'm not -- I'm not real sure. All I remember is having to clean up the tables and doing what the kids do to help support it, but not really understanding the issues per se. BILL SCHNEIDER: We have an interview with Margaret Lowe in this series.
DON BRANDON: Oh, cool.
BILL SCHNEIDER: Yeah. Well, this has been -- this has been really good. Is there -- is there anything else that we should add at this point? DON BRANDON: You know, when I think about the lives of my brothers and their 25 years of institutionalization, outside and in Alaska, I think that Morningside was one of the darkest times for them. Factored by the distance, separation from family, and just not really knowing what was going on for them at Morningside. I know it certainly was one of the most difficult times for us as a family for them to be there.
And it was during those times when we did have a family because my mother passed away when I was 12, we sort of had a very dysfunctional version of that with my stepfather's leadership for me and my little brother. And it was always a concern that they were in Portland, and I was glad to hear that they were back in Alaska, but I really wasn't sure about what that was like either. But I do think that Morningside stands out as just one of those enigmas in their past that I think Joseph is still recovering from. BILL SCHNEIDER: Well, and it's interesting that you've chosen to work in this field yourself.
DON BRANDON: I don't know if I chose it or it chose me. Working with people with disabilities was not necessarily a career goal of mine, or being involved in civil rights for people with disabilities wasn't a career goal. My experience with disability has -- has been a huge factor in this. And sometimes you're taught lessons about the experience of a disability, but you don't know you're being taught them. And that's kind of the way I kind of wandered into this. My career goal prior to being involved in this type of work was ministerial work, working with people in churches, working with people, help rebuild their lives, and -- but it became -- it's become a much more purpose -- purposeful impassioned part of what I do, it is what I do because I've -- you know, when you walk in a fog for X number of years and you finally wake up and realize you're in a fog and try and find your way out, you realize there's probably lot of other people that are walking in that same fog. And I think that's the way disability affects people is that we live in denial of its impact or its effect on us, and we build services to protect us from them, or to deal with them in a separate capacity, and not realizing that we and them are the same people. You know, we're genetically the same. And disability is a normal part of our life experience. It's our way of reacting to different disabilities that makes disabilities such the enigmatic feature that it is in our society. BILL SCHNEIDER: Well, this has been very good. I appreciate you taking the time.
DON BRANDON: Well, Bill, thank you. And thank you, Karen Perdue, for calling me one day.
Herb Lang was interviewed by Bill Schneider and Karen Brewster on November 13, 2008 in Anchorage, Alaska, at the office headquarters of Anchorage Sand and Gravel, a company he owned for over thirty years. At age 79, Herb is the last surviving staff member of the Alaska Territorial Land Office who made the original mental health trust land selections in the late 1950s. In this interview, he talks about land valuation and how and why the lands were selected, ramifications of the selections, and restoration of the Trust after the settlement.
Click to section:
Section 1: Herb’s upbringing and background, and why he came to Alaska.
Section 2: His first jobs for the Territorial Department of Agriculture at Palmer in 1955 and the Territorial Land Office in Anchorage in 1957, and types of land that the Territory of Alaska was managing.
Section 3: Selecting and surveying the Mental Health Trust Lands which were previously owned by the Bureau of Land Management.
Section 4: Other land surveying and selection issues, such as in-lieu lands and statehood lands.
Section 5: Cherry picking lands based on value and revenue that could be earned from them, and the rules and regulations involved.
Section 6: Impact of knowing people in the land application and selection process, and budgetary issues related to the Territorial Lands Office and land selection process.
Section 7: Some of the other players in the early period of selecting Mental Health Trust and Statehood lands.
Section 8: The effect of selecting Mental Health Trust lands, and the controversy over the land program and management of the Trust.
Section 9: His activities and career after working for the Alaska Territorial Land Office.
Section 10: The criteria outlined by the Alaska Mental Health Trust Enabling Act which limited what lands could be selected, and why places like Prudhoe Bay were not included.
Section 11: Role of the Land Commission, and issues with appraising lands and difficulties in finding comparable lands for Mental Health Trust lands that had been disposed of.
Section 12: How the demand for land effects the value, and his assessment of his role in the Mental Health Trust.
Section 13: The controversies and frustrations of the Mental Health Trust.
BILL SCHNEIDER: Okay. So today is November 13th.
HERB LANG: Yes.
BILL SCHNEIDER: 2008. I'm Bill Schneider; Karen Brewster is here with me, too. And we have the pleasure of doing an interview with Herb Lang today. And we're at his offices, at Alaska Sand & Gravel in Anchorage. And I appreciate you taking the time to do this interview.
HERB LANG: Glad to do it. BILL SCHNEIDER: Herb is particularly important to us because of his involvement in the early land selections for the Mental Health Trust, but I always like to back up and start with a little bit about your background, where you were born and where you were brought up. HERB LANG: I was born in New Jersey, and was raised there. I finished high school. And in 1947, I left on a Greyhound bus to Seattle, Alaska steam to Seward, wound up in Fairbanks where I worked and attended university, and spent my four years there and took a degree in 1951. BILL SCHNEIDER: Uh‑hum. And why did you leave New Jersey?
HERB LANG: Too crowded, too many people. I wanted more room, more space. Something new, something different. And restless. A 17‑year‑old kid, they can be restless. I always said I had a big advantage going off on my own because when you're 17, you know everything. So you can do lots of things. BILL SCHNEIDER: Why Fairbanks?
HERB LANG: It was ‑‑ I was looking for a place to go to school. And 1947, after World War II, it was difficult to get into schools. There was a lot of vets coming back, GI Bill and all that.
So I had sent applications around, and that was the first place I was accepted. I was accepted some other places after awhile, but I had committed to go there and I just thought that would be a good experience for me. And it turned out to be good. That's been, you know, 60 years ago. So that worked out all right, and I stayed up here. Took my degree there. So...
BILL SCHNEIDER: What was your degree in?
HERB LANG: My degree was in agriculture. Not very many graduates from ‑‑ I think there were three or four of us that year, and maybe one or two the year after that, and then not very many. I think they changed the program into natural resources and they ‑‑ they kind of blended it with wildlife management and some of the other ‑‑ some of the other courses there. But it worked out ‑‑ worked out pretty good. I ‑‑ I was also commissioned to ROTC then. And you may recall in 1950, the Korean War broke out, I got called up after I graduated and spent a couple years in the Army, a year over in Korea, and came back in '53, after the truce. Section 2:
And went back to school, and I went down to the University of Pennsylvania, and spent two years down there and took another degree. And then I was looking for a job, and I was offered a job by the Territorial Department of Agriculture at Palmer. And that was '55. And I came back up and settled in the ‑‑ settled into Palmer. Worked there a couple years, and then an opening came up with the Territorial Land Office, and ‑‑ in Anchorage. And I applied and was given that job. That would have been 1957. And that would have been '50 ‑‑ '57. There were just a few of us at the Land Office at that time. A man by the name of Chipperfield, W. A. Chipperfield was the Territorial Land Commissioner. He's the territorial liaison, he had been appointed by the Governor, who himself had been appointed in those days. And he was the man who ran the office, and there were ‑‑ there were three of us. And I was a new appointee, and I was the lands officer, for all that was worth. By no ‑‑ there was one lady staffed there. And not much else.
And we were to look after school lands, the Section 16s and 36s. And Chipperfield knew where many of them were. And we drove around, looked at the lands. And some of them had been leased, some of them had gravel pits on them. We also had the escheat lands, kind of peculiar. These are lands that the territory got title to when mostly pioneers died. People went to the Pioneers Home and they signed their land over to ‑‑ or the assets over to the state and the territory, and then they were ‑‑ they were taken care of for the rest of their life. And at the time of their death, then the territory took title to the land. And so we had some odd bits and pieces of escheat lands. We took care of those. And so we had school lands, escheat lands, and then the mental health lands were given to us ‑‑ were given to the territory in '56.
And before that, you probably all know better than I do, they had Morningside Hospital in Oregon, and people had mental health in those days, they tied them up and put them on a plane and sent them down there. And for the most part, they never returned. I think they were just kind of inventoried down there. I think that was maybe the impression at the time. And maybe that's unkind, but that's the idea I had. Section 3:
Anyway, we were given this job to select a million acres of ground. Kind of a ‑‑ kind of a new deal for anybody. It was something of a shock to BLM. Someone was going to go poking around in their inventory and hand pick out a million acres, for the most part, they didn't care for that. The lands had to be surveyed and they had to be pretty much non‑mineral. That is, they were not mining ‑‑ they couldn't be mining claims. They couldn't have any ‑‑ any rights on them. On a ‑‑ usually they ‑‑ unappropriated, uncommitted to another ‑‑ another purpose. So on one level of thought, it was pretty simple. You go to BLM and you go through their records and you find what lands were available, then if you had the time and budget, you went and looked at them. That was ‑‑ that was all pretty simple. To a large degree what we were trying to select were lands of value. And they had to be surveyed and, you know, this ‑‑ this land was given to the state territory to produce revenue to support the mental health system.
So we just didn't select a big chunk of land because it was a big chunk of land that was available, we tried to pick out the land that would be the most useful. Well, you run into things on another level. The BLM, they had almost all the land in Alaska, and many of the towns and cities were blocked in by BLM land.
BLM, when cities started to grow up, they would ‑‑ they would remove the land from being available to be homesteaded. There would be a public order and they would ‑‑ they would tie up the land. Then they ‑‑ in order to make lands available, they would subdivide the land into small tracts, 2 and a half, 5 acre ‑‑ 5 acre pieces.
Well, this whole process would probably take five years. They would withdraw the lands, and then they would classify them, and then they had to have them surveyed, and surveying small tracts was quite a bit of work. And they needed budgets for this. So there was a demand and a push for lands because people couldn't get land, and BLM had it all tied up, so they ‑‑ they did these small tracts all around the state and they all ‑‑ anyway, we came along and we selected them. So we frustrated everybody. BLM had worked on these things for ‑‑ some of those people worked on them for years to get them to the marketplace, and here we come along and grab them. And the people in the towns and the cities and some of the villages, they were looking for these lands that come available so they could expand their ‑‑ their town, people would have some land to use, and all of a sudden we had them. We selected them and tied them up. And I'd say on one ‑‑ on our side it was easy. We picked ‑‑ knew what we kind of wanted to pick out, lands of value, but on the other side, huh, look what we just did.
And then people said, all right, you selected them, now what are we going to do? Well, we didn't have a program to ‑‑ to sell them or lease them. That developed some years later. And I think primarily in leasing.
I don't ‑‑ I think they tried to maintain in the beginning the integrity of the corpus of the ‑‑ of the holdings, and they were just going to lease them out on 55‑year leases or long‑term leases, and get the revenue in, which would be a ‑‑ one way to manage a ‑‑ a trust, trust land. But I think those policies all ‑‑ all developed sometime later. So we ‑‑ we ‑‑ I think we did a ‑‑ did a pretty good job in going around, but we were ‑‑ you know, we were cherry picking. No question ‑‑ no question about it. Section 4:
There was some other activities at the time. Oh, the University of Alaska was looking for what they called in‑lieu lands. And these were lands ‑‑ the University of Alaska were entitled to, as I recall, the Section 33s in the Tanana Valley as they became surveyed. Well, sometimes by the time they became surveyed, they had claims on them and they couldn't ‑‑ they couldn't get them. So they ‑‑ they were able to, after they were identified, they lost some of that land, they were entitled to go around looking for something in lieu of that. So there were ‑‑ they were active. So there were ‑‑ there were a number of us active, a number of agencies active in ‑‑ in the selection of lands. And then, of course, statehood came with the 103 million, so there was a ‑‑ there was a scramble. But I ‑‑ as I recall, we pretty much concluded the mental health selections before we really got into ‑‑ into statehood lands.
And the bases for the statehood lands was somewhat different. I mean, we just couldn't select 5 acres here and 5 acres there. It would be centuries trying to get this done. We had to go and get a township here, five townships there. So it was a ‑‑ a different ‑‑ different deal.
And also the surveying of the land. Mental health lands, they had been surveyed, but a lot of the small, small tracts, and maybe 40 acres here, and maybe a ‑‑ maybe a whole section someplace, not very often. But when you get into the state selection, talking about millions of acres, the Federal Cadastral engineers made a calculation it was going to take them 150 years to go and survey the land that the state had a right to, had 25 years to do it. Wonderful.
But they were looking at it on the basis of you go out and cut section line, put a ‑‑ put a corner at each section corner, maybe a center corner. This all was all done by hand. I ‑‑ I worked for BLM in '48, and that's what I did. Went out and cut section line, putting stakes in the corner. Well, you're trying ‑‑ talking about a million acres or 10 million acres, couldn't do it.
So it had to be a whole new program. And they did this with aerial photos. It took some years to work out. All these things took time, this was all brand new, new ground. Nobody had ever been there before. Most of the people that the state then dealt with on the federal side, they were traditionalists. We always did it this way. Now all this had to be new and different, and they were giving up a lot of their land. Some of them didn't like that and didn't think that was ‑‑ that was really correct. Then I know I'm getting off the mental health lands, but all of the lands that were selected and wound up in state ownership, there ‑‑ there was some other ramifications to these that people didn't realize in the beginning. One was there was a formula that the federal government had for the state on fire suppression. The federal government did almost all the fire suppression. Smoke jumpers and all that. It was based upon how many ‑‑ what percentage of land the state owned as against what the federal people owned. We are merrily selecting land, then this formula came in, and so we're selecting land, primarily the big pieces and statehood lands, and then the Department of Forestry said, well, gentlemen, we now have to pay more for our share of forest fighting, and that we are expected, the Division of Lands, to come up with that money. Because we didn't have any budget for that, we didn't even ‑‑ hadn't thought that one through. Again, Rosco Bell had to fight that one out. Next comes along the Commission of Highways. Gentlemen, the match on road monies depends upon what you own and what the Feds own. And we have to come up with more money for our road. I assume you have that in your budget. Of course, we didn't. And hadn't thought of that. Suddenly we were ‑‑ selecting land was interesting and challenging, but there were many ramifications, particularly in the mental health lands.
We frustrated a lot of people in these small towns and villages by taking this land, which is the kind of land that people wanted. It had value, it was marketable, and that's why we took it and that's why they wanted it. And I think I could look later, that's probably one of the reasons the legislature reached in there and said, all right, we're going to ‑‑ this is kind of a trust, but you know, yeah, okay, we'll do ‑‑ we'll do something with the land anyway. And they ‑‑ they took it. They stripped a lot of that out. It's a long story, but maybe it was – Section 5:
BILL SCHNEIDER: Well, when you said that you were cherry picking lands ‑‑
HERB LANG: Yes.
BILL SCHNEIDER: ‑‑ what were the considerations there? I know being close to a community was a consideration.
HERB LANG: Well, value. And use and value. The closer you were to lake frontage or river frontage or ‑‑ or a town or a village, there was more demand for the land, and hence, more value. So ‑‑ and BLM had gone through all those same studies and said, all right, here's Ketchikan, for instance. They are trying to grow, the mountains are behind them, the strip along the ocean there, so we'll take some lands, we'll withdraw them from entry, we'll go over there and survey them, then we'll make them available for the town to grow both north and south along the coast. Well, I just described five years worth of work.
Congratulations, we arrive and we said, okay, we'll take that.
And people said, all right. Can we buy them? No, you can't buy them. We don't ‑‑ we don't have any rules or regulations. Well, I think they ‑‑ ultimately we leased some of them, but it took the state, the new state awhile to write rules and regulations.
So, you know, we ‑‑ we cherry picked. We picked out the best ones we could. The instructions were you want this land for the production of revenue to support the mental health facility. And that's ‑‑ that's the way we went. BILL SCHNEIDER: How ‑‑ how did they produce money? How ‑‑ how were you thinking they would produce money?
HERB LANG: Rent. Rent. That would be ‑‑ and then some of the lands later, I think we ‑‑ some of them were ‑‑ were denied, and I think that we took some timber land, too. I don't think we ever really went much for mineral lands. I think there was ‑‑ most of the time we were just talking about mineral lands, we were talking about either placer or hard rock. We weren't talking about oil and gas then.
And these looked ‑‑ people had mining claims all over the place, and a lot of them were not any good, maybe the lands were not really valuable for minerals, but they would preclude ‑‑ preclude selection and they wouldn't be surveyed. So ‑‑ so there was some ‑‑ there was some lands, if I recall, down around Yakutat that was surveyed from the early days, I think we took some timber lands in there. I think the university took some in there, too.
Yeah. I haven't followed all the activities. I know about the lawsuits, I know about the challenges, I know about the ‑‑ the work to reconstitute the ‑‑ the trust and the difficulties. I talked to some of the real estate appraisers, and it was an impossible job. I was a real estate appraiser myself but never ‑‑ after I left the State. BILL SCHNEIDER: Well, we'll get to there in a minute or two.
HERB LANG: I did different little things here.
BILL SCHNEIDER: Yeah.
HERB LANG: But that was primarily ‑‑ primarily we were looking for surface values and use in the rather near future.
BILL SCHNEIDER: Yeah.
HERB LANG: Would be the criteria. Section 6:
BILL SCHNEIDER: And ‑‑ and how would you ‑‑ how would you assess the work you did? Do you think you did a good job? Bad job? Were there time constraints you worked within?
HERB LANG: I think we did a pretty good job. We ‑‑ we had some good people, and we kind of knew the state and territory. We got around pretty well. We had some friends over at BLM and they would make the records available to us, though they may, you know, some of them, like the people who were the townsite trustees and the small tract people, they didn't like this, but many of them worked for BLM for some years and they had accidentally become Alaskans, so they were with us. And then having gone to school in Fairbanks, you wind up knowing a lot of people. A lot of people were in your grade or another grade. And we could go to a village, and believe it or not, in those days you go there and just get there and want to look around, you start talking to people, well, next thing you know, oh, you went to school with their cousin. And you were ‑‑ you know, come on home for lunch. And you're on the inside.
So it all ‑‑ it all kind of worked. I'm not sure it works that way now, but it ‑‑ it certainly did then. BILL SCHNEIDER: What was the size of the office that you had? I mean, did you ‑‑ were there three people you mentioned? Were there more, or ‑‑
HERB LANG: I think there were four. Four people there. I think there were four people. There was Chipperfield, there was a man hired the same time as I was hired, and he was an engineer surveyor, his name was Oswalt. And there was a lady administrating this thing. And me. BILL SCHNEIDER: And you did the whole state? You had to assess lands in the whole state?
HERB LANG: Yes. And you do it a lot by ‑‑ by maps. Sometimes we would go out and take a look at something if we could, but mostly we didn't have the budget, didn't have the money. And if you look at some remote area, you're talking about hiring a ‑‑ you know, a float plane or small plane to go out there and look at it. So we could ‑‑ we did ‑‑ we just had to get by with what we had and the budget we had. I remember in those days, per diem was like $8 a day, so you know, money ran out fast. What is it now?
BILL SCHNEIDER: Yeah.
HERB LANG: 50? BILL SCHNEIDER: I don't think it's that high for us, but for many it is.
But on that question of the budget, that's something we hadn't really pursued. Was there in the Mental Health Trust Enabling Act a ‑‑ a budget line put in for this work to be done? HERB LANG: I don't think so. I think the territory was given money, but it was part of the budget to help them to get started running mental health programs. But I don't think any of that ran down through our budget. I was not in that part of the program, so I don't ‑‑ but I don't think so. And we were ‑‑ the other problem you had is we had a budget ‑‑ the legislature met only every other year, so you had to anticipate things. And I don't think this was anticipated. Statehood wasn't anticipated. So the ‑‑ we were ‑‑ we had to ‑‑ if we needed money, Chipperfield would go down and beg some from the Governor. He would have some account someplace. And you know, as long as he would get along with the Governor, you know, we could ‑‑ and they were sympathetic to what we were doing, then maybe we could get a little extra money. We also had to pay ‑‑ we had to pay application fees to BLM when we put an application in. And I don't remember if that was a lot of a problem or much of a problem in mental health lands, but it was certainly over when selecting state lands it got to be a big problem. I mean, it got to be some fair amounts of money. And that wasn't budgeted or anticipated either. BILL SCHNEIDER: But this was a ‑‑ but this was a federal act and you still had to pay BLM ‑‑
HERB LANG: Yes.
BILL SCHNEIDER: ‑‑ in the selection process?
HERB LANG: I ‑‑ I know we did on the ‑‑ I'm pretty sure we did on the mental health, and I know we did over on the ‑‑ on the state selections. BILL SCHNEIDER: Oh, that's amazing.
HERB LANG: Oh, yeah. And some pretty good ‑‑ pretty good sums of money. Nowadays compared to the oil and gas revenues and all that, it's not much, but then if we had to write a check for $10,000 to put in a pile of applications, that was a lot of money.
BILL SCHNEIDER: Yeah.
HERB LANG: So... Section 7:
BILL SCHNEIDER: And what was Chipperfield's relationship with the governor?
HERB LANG: Good. He had been appointed by the governor. I think the governor then was Frank Heintzleman, and I think he was an old forester, and so was Chipperfield. They were old forest service people. I think Heintzleman, was he the last appointed governor? Or was Stepovich after that? BILL SCHNEIDER: I don't recall, but ‑‑
HERB LANG: But maybe ‑‑ but Heintzleman was the ‑‑ I think it was B. Frank Heintzleman, I think he was the governor at that time, and he and Chipperfield were...
BILL SCHNEIDER: And what sort of time frame were you working within? Did you have an end date as to when all these had to be selected? HERB LANG: There must have been a ‑‑ I think there was a 10‑year, I'm not sure, but I think there was a ‑‑ there was a ‑‑ there was a limitation. There was on state land, on 25 there was, but I think there was a limitation in the mental health lands, too. But we just wanted to get on with the job and just do it. And things were changing when they started talking about statehood, and then there was some talk about Native claims, which developed later. We just went on as ‑‑ as long as we had some budget, some money to do it, we just did it. ]We just got it done. Taken in early. Those days, we were not bureaucrats, we got things done. And it was a job and we did it. A couple ‑‑ couple good guys came on with us, Salvador DeLeonados was another. He died here just a couple of weeks ago. And he came on with us. And you know. But then the things moved and we became a state, then things changed, changed quickly. The Territorial Land Office was a kind of funny creature. It had the land commissioner, and had a five‑man board that kind of over ‑‑ oversaw there. And Commissioner Holdsworth later became commissioner. He was Commissioner of Mines back in those days. And then the Commissioner of Revenue, the Attorney General who was elected in those days. And the Commissioner of Agriculture, Jim Wilson. Jay Gerald Williams was Attorney General. And I'm not sure who came over from commerce and budget. But they had a five‑man board and they kind of looked after things. Chipperfield ran it. And then after statehood, Phil Holdsworth became the Commissioner of Natural Resources. He moved ‑‑ he moved up one. And agriculture and mines and minerals and land came under his jurisdiction. And then he brought in Rosco Bell as the director of Division of Lands. Very, very good man. BLM man. A lot of ‑‑ a lot of background, a very, very ‑‑ very good man. Lots of good foresight. He was able to get along with the ‑‑ all the players, and really got ‑‑ really got things done. So Phil Holdsworth made a very good decision in bringing in Rosco Bell. And he was ‑‑ he was my boss then, until ‑‑ until I left in '63. Section 8:
BILL SCHNEIDER: Why ‑‑ why do you think that ‑‑ that the state reneged on the Mental Health Trust Lands?
HERB LANG: I think the individual legislators wanted to bring something back, they always liked to bring something back for their constituents. And this was a ‑‑ this was something they could do, bring back some land and give it to their boroughs, give it to their cities. Didn't cost them anything personally, and makes them look like real heroes.
And also I think there was some frustration there. They ‑‑ we had selected these lands, and we kind of blocked their development.
BILL SCHNEIDER: Uh‑hum. HERB LANG: So the people were ‑‑ wanted more land. That's ‑‑ that's been a ‑‑ been a thing in Alaska for many, many years. People wanted land.
And in the early days, you could get it from homesteading, and that was a real process. The ‑‑ the land wasn't, for the most part, really wasn't suitable for homesteading in the classic sense you came out ‑‑ came out of the states, that's just prairie or just get a couple of horses and a plow and open it up. It wasn't that way up here. There's a few areas, Tanana Valley, maybe a little in Matanuska Valley, but not the same way. So people always wanted land. I always believed that that was one of the driving forces that brought around statehood that we would have jurisdiction of our own land and there would be some ‑‑ some opportunity to get land. And then here we come along happily and grab all this land that the BLM was putting out. Didn't we do a great job for mental health? We locked up all the development lands. We didn't have a program to ‑‑ to bring them to the market. Not yet. So I think politicians always liked to deliver something back to their constituents, and this was a handy thing.
Some of the people at the time were not too impressed with the idea it was a trust. I'm sure you got a lot of readings on that. I dealt with some of them, they didn't care. It didn't make any difference to them. So that ‑‑ so I ‑‑ I think that's why they ‑‑ they probably put their... BILL SCHNEIDER: So I guess that notion of the trust concept, from what I hear you saying, was fairly controversial?
HERB LANG: Well, yes, in some ways. I think it was ‑‑ I think it was just convenient for some of them to ignore it. The ‑‑ it's the federal government, it's a trust. You know, that ‑‑ that kind of way. We'll just go do it. And we have all noticed that sometimes people appointed or people elected, their ‑‑ their span of concern is only their own term, or maybe a little bit longer. And if it blows up later, well, you know, that's the way life is. But look at the good things that I've done for my term. And maybe I can get elected again. BILL SCHNEIDER: But it's amazing when Bell and Holdsworth and yourself, who had been so involved in that, that they were able to do that.
HERB LANG: I can recall some discussions about this not being the right thing to do, and essentially we were told to shut up. I mean, some of the legislators really had this high on their agenda, and when you ‑‑ if you talked too much about things they didn't like, next thing you know you talk about your budget, the way it worked. Yeah. Section 9:
BILL SCHNEIDER: Yeah. Well, let's get to the rest of your career. How long did you stay with the Lands Office?
HERB LANG: I stayed until '63, and then I went off on my own. I became a real estate broker and a real estate appraiser.
And then '64 came along and there was a bit of an earthquake at that time and the real estate business kind of went upside down, sideways. And the people who owned Anchorage Sand & Gravel in those days had a lot of trouble. They took a lot of damage, a lot of loss from the earthquake. The main plant and everything fell down and they had difficulties. And they asked me to do an appraisal of the properties, and ‑‑ and then they asked me to work on a business plan. And then they decided that, you know, maybe they had to do something different. So I rounded up a couple of partners and we bought the company. That was in '64. And then my partners all had other things to do and they said, part of the deal is you run it. So I ran it for quite a few years. We sold it about ‑‑ I would say a couple years ago, so I guess it's more like 10 years ago now. And I agreed to stay around for a couple of years, and I'm still here, kind of.
I have an office here and I can ‑‑ I can come and go. And sometimes they will come up ‑‑ the staff will come up with a brand new idea, it will be a great way to make money, and I'm asked to listen, and more times than not I say that's a great idea, we tried that, we lost a lot of money. So ‑‑ so sometimes I'm useful. BILL SCHNEIDER: How well did the University of Alaska prepare you for the land challenges you faced?
HERB LANG: I think they did a pretty good job. I went down to graduate school. Most of my other people went to school down there. There, Yale, Harvard, Princeton, whatever. And I kind of held my own. Got another degree down there. Land, I've always kind of understood land. Land was something I kind of had a feeling for. And the value of the land, the useful land, classification of land, land development.
And I ‑‑ since I've owned Anchorage Sand [and Gravel], whenever we had some extra money, I had a tendency to buy a piece of land. Sometimes I joked I made more money for the company out of those side deals than I did out of the business. But part of it. You know.
I think they prepared me quite well. You know, it's not ‑‑ it's not Stanford, it's not University of Washington, in those days it was small, but they ‑‑ they are good people there. Good instructors, good professors, and you pay attention, you can learn. And I think it treated me very well. BILL SCHNEIDER: And what about when ‑‑ you said in Pennsylvania. What was ‑‑ was it University of Pennsylvania?
HERB LANG: Yes, it was, Philadelphia. Actually, the Wharton School of Financing.
BILL SCHNEIDER: Oh. Oh, okay.
HERB LANG: Yeah.
BILL SCHNEIDER: So you got the finance part of it then.
HERB LANG: I got the finance part of it then, yeah.
BILL SCHNEIDER: Uh‑hum. HERB LANG: That sure hasn't done me any good in the last couple of months. Or probably anybody else.
BILL SCHNEIDER: That's right. That's right. Let's see. Karen, do you have some questions?
KAREN BREWSTER: Yeah. Yeah. Section 10:
One question I had is at the time whether there was any indication about developments in Prudhoe Bay and why those lands were not selected?
HERB LANG: There was no ‑‑ no hint of that at all. None. And those lands were not surveyed. So they ‑‑ and the other thing, they would have been ‑‑ they would have been a single‑purpose selection. And if you really want to make money or you want to have developable land, it is well to have a couple of uses, possible uses. Up in Prudhoe Bay, if they didn't find oil, you know, you really had land of very, very limited value. When the state selected land up there, that was a ‑‑ that was a big discussion point. We had one man on the staff who really felt there was some promising oil and gas lands up there, but it was going to be a one‑shot deal, one use. If it wasn't that, and if it wasn't a big find, it would not have any economic value because you need a pipeline. So it had to be something really, really significant. And what they ‑‑ I think what they call an elephant field or something like that. And it turned out to be that way, it turned out to be a good guess, but from a mental health selection point of view, no. And it wasn't ‑‑ we couldn't ‑‑ we couldn't reach it. Not ‑‑ not with the ‑‑ not with the ‑‑ the limitations instructions here. It would have been a great idea, but... KAREN BREWSTER: What about the Beluga coal fields? Was that ‑‑ was that part of the mental health selections?
HERB LANG: I don't think so. And I think the Beluga coal fields were under coal lease, so they were appropriated or encumbered, so I think they would not have been available to us. KAREN BREWSTER: So mostly the lands that you selected were around existing communities and townships and ‑‑
HERB LANG: Yes.
KAREN BREWSTER: ‑‑ municipalities and things?
HERB LANG: Yes. They were surveyed, they were unoccupied, unclaimed, and they ‑‑ they were reasonably marketable, and going to be useful in the very near future, and those would be the ones that we selected. KAREN BREWSTER: And there were enough of those to make a million acres?
HERB LANG: I think we took some ‑‑ some timber lands, too. I don't recall all the ones we made, but I know some north of Fairbanks there.
Then the other limitation was ‑‑ was what was surveyed. You know, the ‑‑ at that time, I think probably the time of statehood, I think probably like one‑third of 1 percent of Alaska was surveyed. BILL SCHNEIDER: And you limited yourself just to those, then?
HERB LANG: We had to. They had to be surveyed lands. And that was ‑‑
KAREN BREWSTER: So the Enabling Act limited you to that?
HERB LANG: That's right. And that was the big difficulty over in thestatehood land. You know, they need surveyed. How are we going to do that? And Cadastral Survey said, my God, can't get enough men out there.
Because the old way ‑‑ the old ways you find the corner and you start from there and you cut a line for a mile, half mile, you put in a stake, cut a corner, cut a corner. I mean, you could go out there forever, ever. KAREN BREWSTER: So a lot of ground to walk around.
HERB LANG: Yeah. In '48, I did that for BLM, and we did ‑‑ we did small tracts. That was the other plan that they had, small tracts on O'Malley, DeArmond, Rabbit Creek, put a couple hundred tracts in there, but that took two crews about two summers to do all that. And we're doing 5 acres and 2 and a half acres, so there were more ‑‑ more stakes involved, but a lot of work. Section 11:
KAREN BREWSTER: You mentioned the five‑member commission.
HERB LANG: Yes.
KAREN BREWSTER: Can you explain the relationship between you as the staff of the Lands Office and that commission. Did you have to have them approve your selections?
HERB LANG: The ‑‑
KAREN BREWSTER: How did that work? HERB LANG: The only ‑‑ I ‑‑ we didn't deal with ‑‑ with the commission. Our commissioner, Chipperfield, dealt with them. And they worked on a general policy basis.
And I ‑‑ I knew some of them, but I knew them, like Jim Wilson, I had worked for Jim up in the Valley. And Jay Joe Williams, everybody knew him. And Holdsworth we knew from Division of Mines and Minerals. But I never ‑‑ I never dealt with them. But they would ‑‑ I think they would give guidelines, and I think if we wanted to sell some escheat lands or something like that, then they would ‑‑ they would approve that.
And that was another thing I did. I went out and I'd go and appraise this and appraise that on escheat lands. KAREN BREWSTER: So the mental health lands selection, they didn't approve that whole plan?
HERB LANG: I can't ‑‑ I think they probably did, but I ‑‑ I can't say. I mean, it would ‑‑ it would have been an important part of their ‑‑ of their responsibility, but I don't know. I was not in ‑‑ in on that part of it. KAREN BREWSTER: What about the valuing of the land? Was that something your office did or that was already in the BLM record what the value was? I know land valuing is very complicated.
HERB LANG: There was no values. The BLM never ‑‑ they would ‑‑ I think they would put on some minimums when they sold their lands, and I think they sold them, some of them were just right of entry, but some of them they sold, but BLM was never really in the appraisal business. We got in after we became a state, Division of Lands got into the appraisal business, because we started selling some land, started selling some agricultural lands and recreational lands, and we also cleaned up a lot of the escheat lands.
And there was another man and I, we did ‑‑ we were sent out to appraisal school, I spent a month out in Illinois going to appraisal classes, then another man and I, we went ‑‑ we would go around and put a ‑‑ try and put a reasonable value on some of the lands, and then they would be auctioned. So that was kind of the safeguard. It was an interesting, interesting process. You go out 200 miles out in the woods, and here's 10 acres of ground some old timer had, and there's an old log cabin falling down there, and then say, what is the fair market value of that piece of land. And come up with a number. Supposed to be a regular process. BILL SCHNEIDER: Well, the restoration of the trust ‑‑
HERB LANG: Yes.
BILL SCHNEIDER: ‑‑ they weren't able to bring back all the lands.
HERB LANG: Yes.
BILL SCHNEIDER: But how do you think that's worked out?
HERB LANG: I don't know. I really don't have any close knowledge. I remember talking to some of the people who were on the appraisal, and the difficulties in trying to find comparables and trying to find some basis of value. And I think, as I recall, when the negotiations took place, the appraisals were miles and miles apart. They were. And you could really have good, qualified, honest appraisals and you could come up with big differences. You know, in town here what is a lot worth down on Fourth Avenue, you can get that down pretty close. Take it up in the Matanuska Valley, okay, some comparables up there. Go on the other side of Willow, a little bit more difficult. And then go out to Northway, who knows. Difficult. Yeah. But there was a ‑‑ I understand there was a ‑‑ finally a resolution and money and land that was put back together to reconstitute the trust. Is that right?
BILL SCHNEIDER: Uh‑hum. But I don't think they were able to replace all the land, though.
HERB LANG: No, the land was disposed of.
KAREN BREWSTER: Right.
HERB LANG: Given out to cities and boroughs and then disposed of.
KAREN BREWSTER: Right. And they couldn't get that back so they had to find other lands that were comparable.
HERB LANG: Yes. Yes. That was the difficulty. KAREN BREWSTER: And that was the difficulty.
HERB LANG: Yeah. Comparable lands, if you're talking about a subdivision with a hundred lots, you can find comparable lands of this lot. They are never quite the same but they're very close. But in this kind of a deal, they were very, very tough to do. I was ‑‑ read about that and I thought that's a good job that I don't have. Section 12:
KAREN BREWSTER: It was very controversial, you're right. But I'm wondering back on the lands that you selected when you said you determined they had value, you know, it was in a township or, you know, they were going to expand, how did you decide those were going to be worth something? How did you know that? HERB LANG: Well, there was a demand for it. I mean, and BLM was responding to the demand. And that we just ‑‑ just the fact it was right there. And the fact there was a demand for the land, you know, gave it value. So that was pretty easy to ‑‑ to make that determination.
And it proved to be right because the demand for it and the value, that's kind of why they took it away. Proved us right.
BILL SCHNEIDER: Yeah. Yeah. I just have one final, final question. You've got your Grandpa Herb cup there, and it reminds me of the generations to come. And do your kids or grandkids ever ask you about your role in this?
HERB LANG: No. No. It's just ‑‑ my role in this kind of just disappeared. I mean, we all did something at one time or another, and it was just part of what we ‑‑ what we did. We stick with ‑‑ well, particularly with the boys, we stick with hunting and fishing stories. BILL SCHNEIDER: Well, I ‑‑ I sure appreciate the effort you put in and the job you did.
HERB LANG: It was an interesting time, interesting challenge. And then ‑‑ then I moved on. I wanted ‑‑ I wanted to move over to private enterprise. And I had enough years with the ‑‑ with the State and Territory, and I was going to try something ‑‑ try something on my own, and it kind of worked.
BILL SCHNEIDER: Good. Well, thank you very much.
KAREN BREWSTER: I have one more question.
HERB LANG: Okay. Section 13:
KAREN BREWSTER: My last question is, you brought up that at the time the idea of a trust was somewhat controversial and there was discussions back and forth. If you could talk a little bit more about that, and who ‑‑ who ‑‑ who were those conversations ‑‑ who was having those conversations? You know, what was wrong with the trust? HERB LANG: I think some of the legislators found the trust inconvenient. It frustrated them in what they wanted to do. And so whether they got a legal opinion, and we all know you can get legal opinions of convenience, whether they got a legal opinion at that time or not, I don't know, but they ‑‑ it was not convenient to them. So they ‑‑ they chose to ignore it. The ‑‑ you know, they also disposed of a lot of the school lands, the Sections 30 ‑‑ 16s and 36s, and I don't think that has ever been a great issue because the state has funded the school system to a fairly good degree.
But like the ‑‑ there was a Section 16 right in town here, Merrill Field was on Section 16. And that ‑‑ all that land was leased and developed and we worked on that, and then it went over to the city. And so it kind of disappeared.
And I suspect that a lot of the other school lands were given to the local municipalities or boroughs, but as long as the ‑‑ and it's just my ‑‑ my understanding of it, as long as the ‑‑ the state takes care of the school needs and will fund them, nobody seems to raise an issue about it. But it was never ‑‑ you know, it was never quite the same. It was ‑‑ they were trust lands, but not ‑‑ not formulated the same way, just like the Section 33s in the Tanana Valley that belonged to the university.
Does the university run their own land program up there?
BILL SCHNEIDER: Uh‑hum.
HERB LANG: I think they do. KAREN BREWSTER: Yes. And so the controversial discussion was later on when they were dismantling the trust?
HERB LANG: Yes. Yes.
KAREN BREWSTER: But when you were in the Lands Office and making those selections right after the Enabling Act, did you get a sense of people thought about this as a concept? HERB LANG: No. No. I mean, we ‑‑ we were ‑‑ we were not involved. We were not concerned about the policy. We had the ‑‑ we had the instructions, we had the job to do, and we just ‑‑ we just did it. And we got some grumbling over at BLM. They did all the work and, you know, we're picking all the food off their trees that they've grown. And some of them didn't like that, but they said, well, all right, that's the way it is. We went on forward from there. And then as I say, a lot of those BLM people, it didn't appear they ‑‑ they slid over to the ‑‑ they had become ‑‑ become Alaskans. It was a threat that they would rotate those guys every two years so that they wouldn't become any ‑‑ they wouldn't become homebodies. BILL SCHNEIDER: Okay.
KAREN BREWSTER: That's it. Unless you have anything else that you'd like to add that we haven't asked you about?
HERB LANG: No. No. I think this is an interest program you're doing. I hope this is some help to somebody in understanding how this all came about.
BILL SCHNEIDER: Is there some people you think we ought to talk to that we ‑‑ HERB LANG: I ‑‑ I think that the people that I knew were involved at that time are all gone. Chipperfield, Rosco Bell, Phil Holdsworth. Joe Keenan came in later. Sal DeLeonados was a ‑‑ he and I ran our ‑‑ ran around in the woods together. But they are all gone.
BILL SCHNEIDER: Hmm. All righty. Well, thanks. This has been good.
HERB LANG: Very good.
Section 1: Continued discussion of why the mental health trust was not settled during the Cowper administration.
Section 2: Difficulties for the State in trying to get the mental health trust case settled and agreed to, including paying for all attorney fees.
Section 3: Assessment of the mental health trust case in terms of his career and the interesting and complex legal issues it encompassed.
Section 4: His role in representing the State of Alaska in the legal case to resolve the subsistence law at the same time he was working on the mental health trust case.
Section 5: Conflict between state and federal management of subsistence management, and the State's obligation to manage resources equally.
Section 6: His career since the mental health trust case.
Section 7: Assessment of his role representing the State of Alaska in the mental health trust case, his motives, and difficulty in gaining agreement on a settlement.
Section 8: Assessment of Alaska's Constitution and the intent of those who wrote it.
BILL SCHNEIDER: Okay. And you were going to tell us why Steve Cowper didn't push a little harder.
TOM KOESTER: Well, I think the -- the primary reason is he felt, in my mind properly, that once he became Governor, it was no longer appropriate for him to -- to push a resolution of one issue at the expense of the other people that he represented as Governor. It's -- obviously, this is a zero sum gain that we're talking about when you're looking at a state budget, if you give more money to public safety, you give less money to education. If you give more money to mental health, you give less money to capital construction.
It's the same with the land. It's a zero sum gain. There's only so much of it. If you're going to put it in a park, you're not going to be selling it for subdivisions. If you -- if you put it in a wildlife refuge, you're not going to be mining it for minerals. And as Governor, I think Steve felt properly it really is -- is not appropriate for me to favor one constituency over another to the extent that I know -- I don't take these other constituencies' concerns into account at all. There's also a practical reason. The legislature is the one that created the problem in the 1978 law. Didn't think it was a problem at the time, but it was a statute. The statute had to be changed.
To change a statute, you have to go to the legislature. The legislature did not have the same loyalty that Steve Cowper did to the mental health community. I mean, they represent all of these constituencies and they are getting pressure from all these constituencies, so just as a practical matter, it would have been reasonable for Steve to conclude, I can't get the kind of solution that I want for the mental health community through the legislature because of the competing political pressures. Section 2:
Also was timing. The lawsuit was brought in 1982, the Supreme Court's first decision that said reconstitute the trust but with a setoff for state expenditures on mental health programs was in 1985. That was toward the end of Steve's term. And he had announced that he was not running for re-election. So the leverage the Governor had was reduced. One other sort of interesting thing here, the Alaska Supreme Court has a -- a court rule on attorney fees. And if a public interest party, a party representing the public interest prevails, they are entitled to their attorney fees. Well, the mental health community prevailed in the first Weiss decision, and the Court said the '78 law was invalid, illegal, improper, improperly took the land out of the trust, reconstitute the trust. So they were the prevailing parties. In effect, that meant that the State was funding me defending the state, but it was also funding first Steve Cowper, then Bill Counsel and David Crosby, then David Walker and Jim Gottstein. After the intervenors came in, Phil Volland and Jeff Jessee. As good lawyers, they were seeking to maximize the return to their client, the recovery. Well, the State was paying them to do that.
My job was to try and ensure that the State satisfied its obligation but without giving more than was necessary to satisfy the State's obligation. I'm sure it's hard for people to believe, but the State is not always at an advantage.
In this case, the State was funding me and seven lawyers on the other side, which -- which, at times, was a little overwhelming. Made me feel a little overwhelmed. But I -- I always felt that my obligation was to ensure that we did not go beyond what the State's obligation was. And in the end analysis, the only way that we finally reached resolution was that we passed what is now the settlement, the approved settlement, which was not agreed to by all parties. We actually had to litigate the settlement and the Court had to determine that it was fair. And it bound all parties to it. But interestingly enough, it was the -- not the original parties, but the intervener parties, alcoholics with chronic psychosis, the elderly with dementia, and the developmentally disabled who agreed to the resolution. The original plaintiffs, Vern Weiss, and what could be thought of as the traditional mental health community, mentally ill, did not agree and fought the settlement. And Judge Greene concluded ultimately that it was a reasonable resolution, and the Alaska Supreme Court agreed. And the U.S. Supreme Court declined to review it. And so that's why we have the resolution that we do.
BILL SCHNEIDER: And you might have had a chance to go to the Supreme Court again.
TOM KOESTER: Thank goodness, I didn't. It didn't need to drag on any longer.
BILL SCHNEIDER: No, it didn't. It didn't. Section 3:
How -- how would you rate this case among all the work you've done? Where does it fit in your career, and why? TOM KOESTER: Well, of all the things I've done, the three that stand out to me are the Dinkum Sands case, the boundary dispute on the North Slope, the debate over subsistence that continues to rage, and this case. I mean, any case that occupies 12 years of your professional life is going to be big. This was big because it involved a lot of money, it involved a lot of land, it involved a lot of players, several legislative attempts to resolve it, a number of high profile people ranging from the Governor to his commissioners to people who had purchased or leased or recreated on Mental Health Trust Lands, it was -- and some -- some characters. There was definitely some characters involved in this case. Steve Cowper's a character. You know, the -- characterized as a high-plains drifter at one point. Jim Gottstein was a fascinating adversary in terms of advocacy. Judge Greene is an incredibly bright, and I think sympathetic to -- to the underdog as a Judge, probably not the judge I would have picked, but I think she was very fair and -- and did an outstanding job in evaluating the settlement and looking out for the interests of -- of the plaintiffs, the class of plaintiffs, the mentally ill, the beneficiaries of the trust, while at the same time being fair to the state and saying the state came up with a fair resolution to this outcome, or to the -- to the controversy. So -- and obviously, all the players in the legislature during the various iterations of what we tried to -- to pass through the legislature as a -- as a mechanism for resolving it. Despite the fact that the first two tries weren't successful. All the legislative hearings, it's always, you know, an experience to go before a legislative committee and testify.
So it's -- it's -- of the -- of the three things, it's -- it's -- it definitely in my top three.
BILL SCHNEIDER: Is it in your top three in terms of legal issues, in terms of legal questions? TOM KOESTER: I would say yes, yeah. Because the -- the number of issues that were involved, the concept of a trust where you have a beneficiary and you have certain responsibilities as a trustee administering land, money, whatever, for the benefit of those beneficiaries, juxtaposed with the fact that we have this constitutional prohibition on dedicated funds, there was certainly attention there between traditional trust concepts and what prohibits traditional trust concepts. You can't dedicate funds to this particular purpose. The fact that it was created by the federal government but administered by the state, it was created during territorial days, but after statehood, it was -- it was a different kind of animal. I mean, it was the same animal, but it was a different owner. There were -- there were a host of those kinds of things, plus, you know, any time you get into drafting legislation you have issues of the effective date, did it go through the proper committee process, is the Governor going to sign it, let it become law without signature, I mean, there are all those kinds of things. So there is plenty to be interested in all the way through.
BILL SCHNEIDER: Yeah. That's a neat summary. That's a good summary. Section 4:
So, well, I think we've -- we've probably done Mental Health Trust okay here, but while I've got you on tape, tell me about the subsistence stuff. I didn't -- I didn't know that you were involved in determining subsistence legislation. Or -- TOM KOESTER: Well, actually, it was the -- the timing was really kind of -- kind of interesting. This lawsuit was filed in 1982, and if I -- if I'm remembering correctly, that was the year Steve Cowper was elected. I think. In -- boy, Hammond was '74, '78. I think Cowper was '82. When the plaintiffs, I think David Walker and Jim Gottstein were representing the plaintiffs at the time, it was in '86, they filed an injunction to prevent any transfers of title of any lands that had been Mental Health Trust Lands. So this was the cloud that suddenly came over all of these land transactions that had taken place to that point. That was the summer -- whether it was '85 or '86, it was the same summer that the Court, the Alaska Supreme Court invalidated the state subsistence law. And so there was a special session to try to resolve -- to try to get through a constitutional amendment to permit the state subsistence law to be consistent with the federal subsistence law.
The difficulty was that the state passed a law consistent with the federal subsistence law, but the court threw out the state law and said that Alaska Constitution prohibits the scheme that is embodied in the federal law. BILL SCHNEIDER: Which is this giving preference to groups --
TOM KOESTER: Rural preference.
BILL SCHNEIDER: -- at times of shortage.
TOM KOESTER: Rural preference. A reference for rural residents.
So the Governor called -- Cowper called a special session in the -- in that summer when -- whatever year that was. It was at the same time that the court proceedings were going on in Fairbanks on the injunction. And Governor Cowper asked me to represent the administration in the hearings before the legislature on this special session on subsistence. And I was the only person he authorized to speak for the administration. So not the Attorney General, not the Commissioner of Fish and Game, not his special assistant for resources, I was the only one. BILL SCHNEIDER: But -- and the Attorney General was your boss?
TOM KOESTER: The Attorney General was my boss. Yeah. But he wanted -- Steve wanted me to be the -- the spokesperson.
In fact, I was in an Anchorage Daily News article, a copy of which I have up in my office, because nothing really happened during the day, so they made me the story about how I was the only one. And one of the unfortunate things in hindsight was that when the administration had only one person as spokesperson, there should have been joint House and Senate hearings so that they all would have been in one room. But they were separate hearings in the House and Senate.
And so I'd be in the House in the morning, and then we'd go right up until one o'clock when the Senate would convene and I'd have to excuse myself. They didn't want to let me go. And so here I was shuttling back and forth between the committee hearing rooms and periodically taking a half-hour break to talk on speakerphone to the court proceedings in Fairbanks on the Mental Health Trust case.
It was -- it was quite a juggling act for a period of 10 days or so there. It was -- it was not -- it was not easy and not a whole lot of fun. And unfortunately, we came up two votes short in the House. It passed the Senate, our constitutional amendment passed the Senate and we were two votes short in the House, 26-14. Section 5:
BILL SCHNEIDER: Yeah. It -- it seems amazing to me that -- that the founders of the Constitution would have established -- I mean, I can see it in terms of, you know, not showing preference to any particular group, but you would think that there would have been something farsighted like the need for certain residents under certain conditions to be given preference for a short period of time. You know, and I think isn't that the language that in times of shortage that the remote preference kicks in?
TOM KOESTER: Yes. Yeah. BILL SCHNEIDER: And yet, most people just clung on to that notion of rural preference universally.
TOM KOESTER: Yeah. Yeah. And I think -- I think in -- in hindsight, my guess is the Supreme Court really didn't know how -- how dramatically that would divide Alaska. I also think that -- that there was an argument that could have been made in the court. One of the consequences of the state subsistence law not being consistent with the federal law was that, in effect, the state lost management authority over fish and wildlife on federal lands. Well the Constitution puts an obligation on the legislature to manage all the state's resources for the -- for the benefit of the people. When the Court found this law invalid, the Court, in my mind, basically prevented the legislature from fulfilling its obligation to manage the resources. And I think if we had emphasized that, that here we have two conflicting mandates. You have the mandate that the state is to manage its own resources, and you have the mandate that fish and game is common use. Everybody has a right to it. In my mind, the state managing its own resources trumps the other one. And if the federal law says if you don't do it this way, you're going to lose it, you're going to lose management authority, it seems to me that by making a state law consistent with the federal law, we uphold the -- the more fundamental constitutional obligation, which is to have state management of the resources.
But we didn't. And we don't. So...
BILL SCHNEIDER: There it is.
TOM KOESTER: There it is. Yeah. Section 6:
BILL SCHNEIDER: Well, listeners here will want to know what your -- what you've done since the Mental Health Trust, so maybe a -- something --
TOM KOESTER: Well, the boundary dispute on the North Slope, the Dinkum Sands case, went to the court in 1997. Since then, I've done some legal work for the city and borough of Juneau, some con -- I resigned from the Attorney General's Office in 1991, and so when the Dinkum Sands case went to the Supreme Court, I was in private practice representing the state on contract. I've done a number of other contract things for the state. I've only had one private client in my practice, and that was on a very minor issue. And pretty much have represented the state.
The last thing I worked on was another boundary dispute with the federal government involving Southeast Alaska, ocean boundary, maritime boundary in Southeast Alaska. And that case was decided in 19 -- or in 2006. And that was pretty much the last -- the last thing I did in -- in my practice. I'm still an active member of the Bar Association, so if something exciting comes along, if anyone is overwhelmed by the interview here and my incite -- incisive analysis, I hope, I'm available.
Other than that, I'm on the boards of a nonprofit social service agency, and that keeps me busy. I'm also on the board of a group that's trying to build a golf course here in Juneau. And I'm -- Perseverance Theatre, Alaska's only professional theatre, which is located here in Juneau, has an endowment, got a $500,000 grant from the Doris Duke Foundation that was matched by donations from the state, the City and Borough of Juneau, private individuals, corporations, so it's up more than a million dollars. And I'm a member of a three-person investment advisory committee for that endowment. It was -- it was actually a pretty cool thing. There were six theatres nationwide, the Mark Tabor Forum, the Berkeley Rep, Long Beach Playhouse, Arena Stage in Washington D.C., and the public theatre in New York City, and Perseverance.
So it's a pretty heady company for a small professional theatre here -- here in Alaska to be -- to be linked with those other pretty significant operations in big cities around the country. And we take pride that Perseverance was the first to fulfill its matching grant -- BILL SCHNEIDER: That's amazing.
TOM KOESTER: -- obligation, when you compare our competition, it was pretty -- I think it was pretty cool that we did it before anybody else.
BILL SCHNEIDER: Yeah.
TOM KOESTER: So...
BILL SCHNEIDER: Well, great.
TOM KOESTER: Anyway. Section 7:
BILL SCHNEIDER: It -- it sounds to me, looking at your career, that you've certainly made a mark negotiating between different sides here as opposed to -- I mean, representing the state, but also representing the interests of minority groups within the state and their interests. TOM KOESTER: Well, I don't know if I've made a mark. I know I've had a great ride. I mean, it's been a wonderful -- a wonderful, wonderful experience for me, the opportunities that I've had, in retrospect, are just -- I mean, it's pretty unbelievable the -- the things that I've been involved in and the things that I've been able to do while, I hope, doing good. You know, there's -- I have a strong public service interest, and -- and I think that's one of the most gratifying things was that I truly have always felt that I was representing the entire public, and not -- not my client, right or wrong, but by -- by representing the state, trying to do the best for the greatest number of people. BILL SCHNEIDER: Well, I think one of the things that comes out of this interview is myself and the general public might find it easy to look for good guys and bad guys, and I think what your interview has done is demonstrated the complexity and given us the impression that perhaps most of the players were -- were trying to reach a resolution that was not a win, but a satisfaction. TOM KOESTER: I -- that's certainly the impression that I've had all the way through.
I know there are many people in the mental health community who were critical of me, feeling that I was not sufficiently sympathetic to their needs. Unfortunately, in my position, I didn't feel that I could be because you asked why Cowper didn't push. Well, my direction comes from the legislature through the Governor through the Attorney General to me. And my sense all along was we want to resolve this in a way that's fair to the mental health community and to the broader community of the state. And trying to strike that balance is what is so hard. It -- it's been -- it was very, very difficult. And as I said, even with the final resolution, not everyone agreed. Not everyone agreed to that resolution. It was not a consensual resolution in the sense that everyone signed off on it. There was one of the four plaintiff groups, the traditionally thought of as the mentally ill, that disagreed pretty violently and vehemently and fought tooth and nail to try to prevent the resolution from going through. It took a decision by Judge Greene affirmed by the Alaska Supreme Court to -- to finally resolve it, and it was over the objections of one of the parties. So in -- in terms of, I think everyone's motives throughout were appropriate, it's never fun being the bad guy, but certainly when I -- I was going in there and it was seven attorneys to one, I felt like a lot of people thought I was the bad guy.
But you know, I -- I would hope that with time, some of those wounds have healed and people at least, while not perhaps appreciating what I did, can understand where I was coming from and what I was trying to do. Section 8:
BILL SCHNEIDER: Maybe one -- one final question here. If you had been sitting when the Alaska Constitutional Convention, when they sat, with the wisdom that you have now and the knowledge you have now, what changes would you make? What -- what would you have proposed that -- differently? TOM KOESTER: I don't think I would have changed anything. I -- I am such an admirer of the work the Constitutional Convention did. And I think if -- if I've been involved with groups like the conference of -- National Conference of Attorney Generals, NAG. And I've spoken to the councils of state legislatures, and things like that. And the general sense that you get is that Alaska's constitution is a model. It really is. It has so many really, really wonderful things in it. Just a couple that I can think of. The prohibition on dedicated funds I think is terrific because it gives the legislature annually the flexibility to choose among all competing demands and desires for funding. It doesn't take a part of the state budget and say that's off the table because it's going to go to this purpose no matter what. The -- the process for appointing judges, not electing them but having a judicial council that screens applicants, sends nominees to the Governor, and the Governor appoints the judge, so that you don't have direct political campaigns running for judge. To me, that's brilliant because it -- it makes the process less political. It's like the federal system. The president nominates the judge and the Senate confirms. I mean, obviously political branches are involved, they are going to be involved. But you don't have direct campaigns where a judge, once he takes the bench, in the back of his mind has some obligation to one constituency and not the other. And maybe it was even opposed by one. The -- the potential for conflict is so great. I think the fact that we have an appointed Attorney General. So instead of the Governor running for office and an Attorney General running for office maybe on different sides of an issue, the Attorney General is part of the executive branch, implements the discretion that the Governor has, however much discretion that is. I think that's -- that's so much better than an elected Attorney General. The natural resources article that requires the legislature to act in the best interest of the public, so you can't self-deal, you can't do favors for your friends, you can't steer leases or state lands to -- you know, to certain people or constituencies. BILL SCHNEIDER: But -- but couldn't -- couldn't the -- those framers have thought about the implications of some of the Mental Health Trust --
TOM KOESTER: Oh, I think they could have, but they had so much more on their plate. I mean, this was -- the Mental Health Trust was a -- was a pretty small piece, and it was -- it was federal. It was a federal law. It was not something that the framers were dealing with at -- at the time.
You know, they were -- it would be -- it would be like saying, you know, the founding fathers in 1776, you know, really should have been thinking about whether we'll have a national bank or not. You know. I mean, it's -- it's not something that you want in your constitution. I think what they did is they did try to reconcile what they came up with. For example, the prohibition on dedicated funds says, except to the extent required by federal law. So if there is a federal law that requires a dedication, then that's okay.
BILL SCHNEIDER: So that would be a provision. Yeah. TOM KOESTER: So -- but that's -- that's interesting, I had never thought of this before, but the subsistence issue, where federal law requires one thing and the court said the constitution prohibits that same thing, it seems to me that had I been on the court, I would have said, well, wait a minute. You know, the -- our constitutional framers were trying to reconcile the state organic document, the Constitution, with federal law. And to now say that this constitution prohibits what the federal government requires, the consequence of which is the legislature lost the -- loses its ability to manage the resources, I just don't think that's what the framers intended. And if they had known that this conflict was coming up, they would have said, we dealt with that by saying Section 1 of the natural resources article says the legislature shall manage all the resources for the benefit of all the people.
BILL SCHNEIDER: Yeah.
TOM KOESTER: So anyway.
BILL SCHNEIDER: Well, this has been good. Thank you for -- thank you for taking all the time.
TOM KOESTER: Well, certainly. I hope it's at least been understandable.
BILL SCHNEIDER: It has.