Alaska Attorney General Bruce Botelho talks to reporters outside the Supreme Court in Washington on December 10, 1997 after arguing on how much power Native tribes in Alaska have over their own villages. Alaska Speaker of the House Gail Phillips is at right.

Captured Criminal Justice In Alaska Native Villages

Duane Champagne
11/8/12

Criminal justice administration in the state of Alaska is very centralized. It is also very ineffective. Throughout the 49th state, high rates of domestic violence, rape, suicide, drug and alcohol abuse persist; they are among the worst in the United States.

The reason why is no mystery: Many Alaska Native villages are subject to justice programs and services that they have had no part in designing or implementing.

First, a bit of history: When Alaska became a state in 1959, it became subject to Public Law 280, a federal policy enacted in 1953 whereby states assume civil and criminal jurisdiction over Native reservations and their traditional territories. Prior to PL280, this was almost exclusively the provenance of the federal government and tribal courts. However, recent court rulings concerning PL280 have found that the law did not eliminate tribal jurisdiction totally.

Indeed, PL280 is generally interpreted as granting concurrent criminal jurisdiction to state and tribal governments. But as a practical matter, few of Alaska’s 230 Native villages have tended to challenge state jurisdiction over criminal matters. Consequently, the investigation and prosecution of criminal complaints has long been handled by officials in Juneau and other state centers of power.

This concentration of power was consolidated with the Supreme Court case Alaska v. Native Village of Venetie Tribal Government. In their decision, the justices ruled that all land in Alaska—except a Tsimshian reservation on Annette Island—was not under federal trust, but rather was subject to Alaska legal jurisdiction. The court’s decision thus empowered the state to assume criminal jurisdiction over 44 million acres of Alaska Native land retained within the Alaska Native Claims Settlement Act of 1971.

That was bad news for tribal communities. As my co-author Carole Goldberg and I write in our new book Captured Justice: Native Nations and Public Law 280 (Carolina Academic Press, 2012), tribal communities favor tribal courts and police if tribal governments can solve community issues of fairness of administration, funding, cultural compatibility and sound administration. But where state governments impose state laws and criminal justice administration, tribal communities complain about the fairness of court and policing administration, lack of government-to-government cooperation and recognition, and cultural incompatibilities.

When tribal governments don’t have voice or access to participate in the administration and policy making over criminal justice issues, they are effectively in a situation of capture. And when the Alaska v. Venetie case awarded legal jurisdiction of Alaska Native lands to the state of Alaska, Alaska Native villages were deprived of up-close-and-personal treatment. You don’t need a slide rule to figure out that the dismal contemporary record of Alaska Native crime and criminal victimization rates, as well as high rates of Alaska Native incarceration, suggests that captured justice up north has been a disaster for Native communities there.

The problems associated with increased centralization of court administration in Alaska are more than just bureaucratic or administrative. Too much state control deprives towns and Native villages from exercising local, community, and cultural control over major issues. Alaska villages are more than mere territories; they are culturally specific communities composed of kinship groups with traditions and understandings of community justice. Authority from above simply does not provide the cultural, self-governing, cooperative and collaborative support Alaska villages need to address poverty, crime and effective jurisprudence.

The news is not all bad. Because of the increasing lack of criminal justice at the local level, some Alaska Native village councils have written criminal codes and exercise judicial powers to culturally and administratively address drug, alcohol, domestic violence and community order issues. In addition, placing police in villages through the Village Public Safety Officer Program has been effective. Village communities have welcomed it.

But the program lacks enough funding to allocate officers to all villages. Moreover, current Alaska state policies for the administration of criminal justice continue to emphasize further centralization and cost efficiency. And by all indications, state justice agencies don’t recognize Alaska Native village legal authority in criminal matters. Instead, they just ignore their activities.

It is unconscionable that as social distress in Alaska rages on at crisis levels, the state and the Native village governments are looking for criminal justice solutions independently, uncooperatively and in opposite directions.

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Sure's picture
Sure
Submitted by Sure on
The Alaska Native Claims Settlement Act (ANCSA) has several dierfefnt issues in todays world. I see ANCSA extinguished aboriginal hunting and fishing rights. ANILCA was eventually created to help the Alaska Natives with their subsistence hunting and fishing rights but as I see it nothing has happened. The Native people are still having to cooperate with the US Fish and Wildlife rules and regulations as to when to subsistence hunt and fish.The Gwichyaa Zhee Gwich'in Tribal Government (formerly known as the Native Village of Fort Yukon, IRA) submitted two resolutions to AFN (The Alaska Federation of Natives) and also to NCAI (National Congress of American Indians). The two resolutions that were submitted was asking for their support to repeal ANCSA section 1603 (b) regarding subsistence hunting and fishing rights. The other resolution submitted was supporting all Alaska Native Tribal Members born after 1971 be automatically enrolled to village and regional corporations. The tribe has yet to hear back from both AFN/NCAI on the resolutions.
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