Advancing Tribal Court Criminal Jurisdiction in Alaska

• Citation: Vol. 32
• Publication year: 2015

§ 32 Alaska L. Rev. 93. ADVANCING TRIBAL COURT CRIMINAL JURISDICTION IN ALASKA

Alaska Law Review
Volume 32, No. 1, June 2015
Cited: 32 Alaska L. Rev. 93

ADVANCING TRIBAL COURT CRIMINAL JURISDICTION IN ALASKA

RYAN FORTSON ^[*]

ABSTRACT

Extensive case law already exists in Alaska on the jurisdiction of tribal courts over domestic relations cases, with one of the seminal cases- John v. Baker-establishing that Alaska tribes have jurisdiction even in the absence of Indian country. A common assumption, though, is that Alaska tribes do not have jurisdiction over criminal offenses. This Article argues that both under the logic of John v. Baker and the development of Indian law in the Lower 48, Alaska tribes already possess inherent jurisdiction over criminal offenses within their Native villages. With the gamut of social challenges facing Alaska Natives in rural Alaska, tribes need to be empowered to exercise this jurisdiction.

INTRODUCTION

There is a deficit of justice in rural Alaska. For thousands of years, Alaska's tribes had a functioning dispute resolution system. But with Western contact and incorporation into the State of Alaska, Alaska Natives have been forced to participate in law enforcement and court systems that are both geographically and culturally remote. Today, rural Alaska faces tremendous challenges addressing its epidemic of violence fueled by drug use and alcohol abuse. The best hope Native communities in rural Alaska have to combat this epidemic is the revivalof their tribal courts and traditions and the recognition of their ability to be valued participants combating these challenges, including the ability to adjudicate criminal offenses. Tribal court criminal jurisdiction is legally justified and absolutely necessary for the survival of rural Native communities.

A. The Staggering Statistics on Crime and Substance Abuse in Rural Alaska

Alaska Native women face disproportionately high rates of domestic violence. Statewide, 58.6% of women in Alaska will experience intimate-partner violence or sexual violence sometime during their lifetime and 11.8% of women in Alaska experience gender-based violence in any given year. ^[1] One study found that Alaska Natives comprised 47.2% of the statewide victims of domestic violence (most of these victims were women), ^[2] even though Alaska Natives only comprised 17.7% of the statewide population. ^[3] With regard to sexualassaults, including sexual assaults of a minor, 60.5% of the victims are Alaska Native. ^[4] An Alaska Native woman is sexually assaulted every 18 hours, and Alaska Native women suffer the highest rate of rape in the nation. ^[5] A study focused on Athabaskan women living in the Interior of Alaska found that 63.7% of them had experienced interpersonal violence sometime in their life, and 18.7% were threatened with a gun. ^[6] Alaska Natives are 2.5 times more likely to be killed in a homicide than white Alaskans. ^[7] Another study showed that 36.7% of Alaska Natives report being hit, slapped, punched, shoved, kicked, choked, or otherwise physically hurt by a spouse or partner; however, only 18.5% of non-Natives report similar abuse. ^[8] These numbers rise to 46.5% and 22.6%, respectively, for women. ^[9] The vast majority of domestic violence assaults against Alaska Natives (87.3%) are committed by other Alaska Natives. ^[10]

As compared to non-Natives, Alaska Native children also suffer greatly and disproportionately. Alaska Native women are more than twice as likely as non-Natives to be physically abused by their partner in the months leading up to and during pregnancy. ^[11] The percent of mothers of three-year-olds who report that their children saw violence or abuse in person was 9.4% for Alaska Natives compared to only 6.1% for non-Natives. ^[12] Among Alaska Natives, 31.1% report that as a child they witnessed domestic violence against a parent or guardian. ^[13] In the month of October 2014 alone, there were 617 Alaska Native alleged victims of child maltreatment screened by the Alaska Office of Children Services (out of 1,298 total cases screened) ^[14] and 141 substantiated cases of child maltreatment against Alaska Native children (out of 237 total substantiated cases). ^[15] These figures are not an aberration-similar statistics appear for other months. ^[16] These numbers reveal that about half of child abuse and child neglect victims are Alaska Natives, despite the fact that that group constitutes a far lower percentage of the overall population. It is not surprising, then, that in October 2014 again, 62.0% of the children in out-of-home foster care placement were Alaska Natives-1,464 out of 2,362. ^[17]

State courts are often difficult for rural Alaskans to access. There are only thirteen cities with an Alaska Superior Court, with two other cities having a District Court but not a Superior Court. ^[18] A substantial number of other locations have magistrate judges, but their jurisdiction is limited. ^[19] Moreover, with most rural villages lacking road access to major population centers, accessing even a magistrate, let alone a larger court, can require substantial effort and resources.

Law enforcement in Alaska is a complicated web of varying personnel. Unlike larger urban areas, few Alaska villages have their own police force; instead, law enforcement is handled primarily by the Alaska State Troopers. ^[20] Of the 272 communities served by the Alaska State Troopers, 64% are off the road system and accessible only by airplane, boat, or snow machine. ^[21] Troopers are required to cover service areas that are many thousands of square miles and contain dozens of communities. ^[22] Responding to calls for service may take hours or even days, especially when frequent bad weather hampers air travel to the village from which the call initiated. ^[23] These villages are small, typically with only 250 to 300 residents, and "more closely resemble villages in developing countries than small towns." ^[24]

Law enforcement in rural Alaska is supplemented by Village Public Safety Officers (VSPOs), who serve as first responders in communities without Alaska State Troopers. ^[25] As of August 2013, there were 101 VPSOs in 86 communities. ^[26] VPSOs are funded by the State and trained by Troopers, but are employed by regional nonprofit corporations. ^[27] Until recently, VPSOs were not allowed to carry firearms. ^[28] In addition to the VPSOs, there were a total of 109 Village Police Officers and Tribal Police Officers as of August 2011. ^[29] The purpose of these supplemental officers is not to replace Alaska State Troopers, but rather to serve as a "trip wire" for calling in reports to the Alaska State Troopers. ^[30] Furthermore, at least 75 Alaska villages have no on-site law-enforcement presence. ^[31] Yet despite this discrepancy between rural law enforcement-VPSOs, Village Police Officers, and Tribal Police officers-and more traditional police forces, there is nothing unconstitutional about the arrangement, at least not under state law. ^[32]

The vast majority of crimes in rural Alaska that these officers are required to deal with are fueled by alcohol or drugs. A staggering 97% of crimes committed by Alaska Natives involve alcohol or drugs, although that figure includes both urban and rural residents. ^[33] Substance abuse, mainly alcohol abuse, is involved in 81% of all reports of harm. ^[34] Studies using Alaska State Trooper data show that in 57% of domestic violence assaults and 43% of sexual assaults, the perpetrator consumed alcohol prior to the assault; illicit drugs were used before 3% and 7% of these crimes, respectively. ^[35] The Alaska State Troopers themselves have revealed that "[m]embers of Alaska's law enforcement community and others who are part of Alaska's criminal justice system have long known that the greatest contributing factor to violent crimes, including domestic violence and sexual assault, is drug and alcohol abuse." ^[36]

But alcohol causes harm to the drinker as well as to his or her potential victims. Alcohol abuse is the fifth-leading cause of death among Alaska Natives, with a mortality rate 16.1 times higher than the national rate for whites. ^[37] Deaths from alcohol abuse increased by 34% from 1980 to 2008. ^[38] The alcohol-related mortality rate in remote Alaska villages is 3.5 times the national average and the alcohol-related suicide rate is 6 times the national average. ^[39]

Drug and alcohol use in violation of rural law is troubling. There are currently 108 communities in Alaska, mostly off the road system, that have local laws prohibiting the sale, importation, and possession of alcohol. ^[40] Despite this, illegal alcohol use and bootlegging remain prevalent. A $10 bottle of alcohol from Anchorage or Fairbanks can sell for $150 to $300 in a remote village. ^[41] This is more than 10 times the mark-up price for cocaine. ^[42] And, because of the significant expense to law enforcement to travel to villages off the road system for investigation of what may be seen as relatively minor crimes, illegal alcohol use and bootlegging are frequently unprosecuted. ^[43]

Also concerning are alcohol and drug use among minors. According to one statewide study, 42.68% of minors ages 12 to 17 in Alaska are assessed to be at great risk of having five or more alcoholic drinks once or twice a week, and 5.39% suffer from alcohol dependence or abuse. ^[44] Among minors in Alaska ages 12 to 20, 25.44% used...