Congress is considering legislation that would recognize that Alaska tribes have the clear authority to fight the record rates of domestic violence and sexual assault. A bill introduced by US Sen. Lisa Murkowski, R-Alaska, would authorize five Alaska tribes, as a pilot project, to prosecute a limited number of offenses.
The Alaska Tribal Public Safety Empowerment Act would give tribes in predominantly Native villages jurisdiction over everyone in their village, including non-Natives, for crimes of domestic and sexual violence, crimes against children, drug and alcohol violations, and assault of law enforcement or corrections officers.
The Senate bill adds to a pilot program that US Rep. Don Young, R-Alaska, inserted in the Violence Against Women Act of 2013, which passed the House in April.
Lloyd Miller is an attorney with Sonosky, Chambers, Sachsee, Miller, and Monkman, a law firm specializing in Indian law. He said if enacted, the Alaska Tribal Public Safety Empowerment Act would put an end to costly lawsuits over jurisdiction.
“Legislation like this is important to provide certainty in the authority of tribes to address public safety in their communities, especially violence against women and children,” said Miller. “Without it, there will continue to be decades of litigation challenging the ability of tribal governments to protect their own communities,” he said.
In an Oct. 19 speech to the Alaska Federation of Natives convention in Fairbanks, Murkowski said the act would allow “villages to assume local control over our local public safety matters because we know that jurisdictional issues should not deny safety or justice.”
The need for public safety in rural Alaska, especially to stop violence against women and children, is huge. Alaska Natives make up 19 percent of Alaska’s population but are 47 percent of reported rape victims. Sexual assault rates in Alaska are four times the national average. And rates of domestic violence among Alaska Native women are 2.5 times the rate of other victims.
Tribal leaders say local police and tribal courts would fill a vacuum left by an inadequate state system, and use a more effective approach than the punishment the state doles out to offenders. They also say tribal courts have a proven track record of fairness.
Joy Anderson is general counsel for the Association of Village Council Presidents, the regional non-profit organization that provides services for the mainly Yup’ik Yukon-Kuskokwim region of western Alaska. The association serves 56 tribes scattered over an area larger than the state of Alabama.
Anderson said those villages identified public safety as their top priority in an annual meeting a few years ago. A third of rural Alaska villages, which are predominantly Alaska Native, lack law enforcement.
“The majority of our communities don't have any full-time public safety presence of any kind.” Anderson said.
She said the few village public safety officers in the region are state- or federally funded, “but sometimes they're also funded through bingo sales or bake sales, whatever the tribes can come up with.” She said villages rarely can afford to have more than one officer.
“There's also just a difficulty in finding people who are qualified and who are able to take on what is kind of a 24-hour a day responsibility,” said Anderson. She said several officers have told her they are never able to spend a full holiday with family because they get called out.
Anderson said too often it falls to tribal council members to maintain peace or respond in an emergency.
“A lot of them are women. A lot of them are elders,” said Anderson. “One of our tribal council presidents, she said when they need to go check on the safety of a child, they just look for any able bodied man in the village willing to go with them. Putting them [tribal council members] in that role, that is completely unacceptable."
Alaska State Troopers located in regional hub communities respond to village calls for service by traveling by boat, snow machine, four-wheeler, patrol vehicle and aircraft. It often takes troopers hours and sometimes a day or more to respond.
Natasha Singh, Athabascan, is general counsel for the Tanana Chiefs Conference, the non-profit organization providing social, educational and other services to 37 villages in Interior Alaska.
Singh said when an offender is pulled into the state justice system, locals are left out.
“Because of the state fiscal crisis, none of those state courts are located in the village. Defendants are shipped out. Nobody knows at home what happens in those hearings or convictions, then they’re sent back,” said Singh. “So there’s no local accountability when you have a centralized court system as we do with the state of Alaska.”
Singh said tribal courts also are more likely to focus on dispute resolution and healing and restoration of the victims rather than simply punishment for the offender.
Yet, for years, various parties, sometimes the state of Alaska, have argued Alaska Native tribes shouldn’t be allowed to impose law and order, and, further, are not capable of doing it fairly. Litigants have challenged the procedures under which a tribal court issued, say, a child support order, alleging constitutional rights were violated.
Singh said the Alaska Supreme Court consistently has overruled such challenges because tribal courts have shown they respect due process and other constitutional rights.
“Tribal protection courts really do have an established history of providing a fair tribunal,” said Singh.
The Alaska Native Claims Settlement Act transferred title to homelands to for-profit corporations rather than tribes, and Alaska tribes generally have little to no land base. Opponents have used that as a reason for arguing tribes cannot exercise jurisdiction. However, courts have held that tribes have inherent sovereignty independent of the land they occupy.
Anderson said the proposed law is an important piece of the foundation tribes need to protect their citizens.
“That's why we're so passionate about it. When tribes have the authority to have criminal jurisdiction in the clear, then they'll be able to ask for the resources that they need to provide the protection.”
The bill is designed to bypass a couple of potential hurdles.
The bill doesn’t have any funding attached to it, which Singh said would make it more difficult to get through Congress, “But because it provides for jurisdiction, our tribes will qualify for funding that is already on the table at the Department of Justice,” said Singh.
“If enacted I believe it [the bill] will be a game changer,” said Singh. “The lack of authority for our tribes is very harmful for us. We need reform and this I think has the possibility to get us there.”
Attorney Lloyd Miller said, “There's nothing in that bill that pushes back against the state, that takes anything away from the state. So hopefully the state does see this bill as providing an additional partnership opportunity for dealing with law enforcement issues in rural Alaska.”
Murkowski said she’s working on other ways to prioritize public safety and justice, particularly for missing, trafficked and murdered Native women. She’s brought new money to bear on cold case investigations, equipment, training, and background checks. She increased funding to the Indian Health Service for domestic violence prevention programs, and to tribal governments for tribal courts and social service and justice programs.
Joaqlin Estus, Tlingit, is a long-time Alaska journalist.
For more reading:
Murkowski press release on bill: https://www.murkowski.senate.gov/press/release/murkowski-introduces-legislation-to-address-alaskas-rural-public-safety-crisis-
Alaska Daily News story about Alaska crime rates: https://www.adn.com/alaska-news/crime-courts/2019/09/30/alaska-rape-rate-jumped-11-in-2018-new-fbi-data-shows/
National Indian Law and Order Commission report on making Native America safer: https://www.aisc.ucla.edu/iloc/report/index.html
Alaska AG memo on the legal status of tribal governments: www.law.state.ak.us › pdf › opinions › opinions_2017
Alaska Criminal Justice Commission link: http://www.ajc.state.ak.us/acjc/
Alaska Criminal Justice Commission reports and recommendations: http://www.ajc.state.ak.us/acjc/resources.html
Several reports on tribal courts by University of Alaska Justice Center: https://www.uaa.alaska.edu/academics/college-of-health/departments/justice-center/alaska-justice-forum/31/3-4fall2014winter2015/index.cshtml