The 2013 reauthorization of the Violence Against Women Act was heralded by President Barack Obama as a significant step for Native American women because it allows tribal courts to prosecute certain crimes of domestic violence committed by non-Native Americans and enforce civil protection orders against them.
Before the bill passed the Senate, however, Sen. Lisa Murkowski, R-Alaska, added Section 910, known as the “Alaska exception,” that exempted Alaska Native tribes. Murkowski argued that her provision did not change the impact of the bill since even without it, the bill pertained only to “Indian country,” where tribes live on reservations and have their own court systems. As defined by federal law, there is almost no Indian country in Alaska.
Now, after pressure from Alaska Natives, Murkowski is reversing her position and trying to repeal the provision she inserted.
The senator’s change of mind is the subject of much debate in Alaska, with state officials saying that ending the exception won’t make any difference for Alaska Natives because it only applies to Indian country and the state already takes action to protect Native women and children. Tribes and the Justice Department, on the other hand, argue that repealing the provision will have a significant impact.
Associate Attorney General Tony West, who called for the repeal of the “Alaska exemption,” says that the state needs to enforce tribal civil protection orders in cases of domestic violence and that the legislative change would send a strong message about tribal authority.
“It’s important to send a very clear signal that tribal authority means something, that tribal authority is an important component to helping to protect Native women and Native children from violence,” said West, who testified in June before a hearing in Anchorage of the Task Force on American Indian and Alaska Native Children Exposed to Violence. “Those civil protective orders can help to save lives.”
Murkowski’s provision, which was originally an amendment she co-sponsored with Sen. Mark Begich, D-Alaska, in 2012, was supported by state officials. Begich has also changed his position since then.
Alaska Attorney General Michael Geraghty and Gary Folger, commissioner of the Department of Public Safety, have said that Alaska is already enforcing civil protection orders issued by tribes to try to keep one person from stalking or committing abuse or violence against another person.
But Murkowski’s “Alaska exception” reopened a contentious debate surrounding criminal jurisdiction over Alaska Native villages, and it has created confusion among law enforcement officials.
Alaska Native women protested Murkowski’s exception, and the Indian Law and Order Commission called it “unconscionable.”
“Given that domestic violence and sexual assault may be a more severe public safety problem in Alaska Native communities than in any other tribal communities in the United States, this provision adds insult to injury,” the commission said.
Troy Eid, a former U.S. attorney and chairman of the commission, said that only one Alaska Native village has a women’s shelter. He and the other commissioners were stunned by what they heard in remote Alaska Native communities, he said.
“We went to villages where every woman told us they had been raped,” Eid said. “Every single woman.”
On her Facebook page last year, Murkowski wrote: “It hurts my heart that some Alaskans may think I do not fully support protecting Native women from violence with every fiber of my being.”
“In Alaska, we have one, and only one reservation: Metlakatla,” Murkowski wrote. “The other 228 tribes have been described by the U.S. Supreme Court as ‘tribes without territorial reach.’ The expansion of jurisdiction over non-members of a tribe is a controversial issue in our state, and what works in the Lower 48, won’t necessarily work here.”
Murkowski said she still has concerns about repealing the exemption but said in a statement: “We must turn the tide of the rates of sexual assault, domestic violence, and child abuse in our state.”
FAIRBANKS — A colonial attitude and lack of tribal sovereignty are contributing to an “unconscionable” record for Alaska Native justice, the head of the Indian Law and Order Commission told a Fairbanks audience on Tuesday.
In a fiery speech at the Tanana Chiefs Conference convention, Troy Eid blasted the state and federal governments for treating Alaska Natives like second-class citizens. The result, he said, has been an ineffective and unequal system for the state’s indigenous people.
“You are not stakeholders,” Eid told TCC delegates at the Westmark Hotel. “You are members of sovereign governments.”
Eid received a standing ovation following his remarks, which were the keynote speech for a conference with the theme “The time is now.” Eid’s independent commission was created in 2010 to review the justice system for American Indians and Alaska Natives and report its findings to President Obama and Congress.
The report, which was released last November, gave a dismal review of Alaska’s system.
Eid, a former U.S Attorney for Colorado, called the status of Alaska Natives a “civil rights crisis.” A fourth of Alaska Native youth suffer from post-traumatic stress disorder, he said, the same rate as military veterans returning from Afghanistan. Suicide rates in Alaska rival those in Haiti, one of the poorest countries in the world.
Alaska has domestic violence rates 10 times higher than the national average, and 12 times higher against women, Eid said.
He said lawmakers in Juneau and Washington could help change that.
The first step, he said, is to stop excluding Alaska Natives from federal legislation that protects Native Americans in other parts of the country. Eid dismissed the argument that the Alaska Native Claims Settlement Act requires that Alaska Natives be treated differently than their counterparts in the Lower 48.
“They’re laws Congress made and Congress can revisit it. … It’s not as if these are immutable, unchangeable laws,” he said.
Eid also criticized the state for battling against tribes who want local courts and police, saying that local efforts to combat crime often prove more effective. Tribal courts are now limited to family issues, such as child custody and adoption.
“It is time for the state of Alaska to stop fighting against Alaska Natives,” he said.
Following the remarks, Fort Yukon Chief Steve Ginnis asked delegates to consider a resolution that would ask the federal government to treat Alaska Natives under the same civil rights legislation as other Native Americans.
President Jerry Isaac echoed the comments.
“It’s undoubtedly a long struggle with the tribes in Alaska to be recognized in a place that they deserve,” he said.
Sen. Lisa Murkowski, who spoke by videoconference with TCC delegates, was asked if she would pledge to support such a resolution. She said ANCSA has set up a system which creates a special distinction for Alaska Natives, and that identical legislation for Alaskans and those in the Lower 48 isn’t always possible.
However, Congress needs to make sure the end result shouldn’t be unequal treatment for Alaskans, she said.
“We need to be sure that Alaska Natives are treated justly and fairly, as are all Natives,” Murkowski said.
Radical, revolutionary, exceptional or just plain common sense are some of the terms used to describe “A Roadmap to Making Native America Safer,” the result of two years’ work by the nine-member Indian Law and Order Commission established by the Tribal Law and Order Act of 2010.
For more than 200 years Congress has consistently passed legislation that deeply erodes the authority of tribal justice systems. The TLOA began to reverse that trend by increasing tribal courts’ sentencing authority, and the Violence Against Women Act of 2013 again enhanced tribal judicial authority to some extent. The TLOA also called for the establishment of a commission to make recommendations as to how to improve public safety in Indian country in response to skyrocketing crime rates.
The commission presented its report in November, saying that it had “concluded that criminal jurisdiction in Indian country is an indefensible morass of complex, conflicting, and illogical commands, layered in over decades via congressional policies and court decisions and without the consent of tribal nations.” The report makes more than three-dozen recommendations about how to change things, some of them breathtaking.
The commissioners, all volunteers acting as private citizens, represented a spectrum of political views, yet easily reached consensus on some basic principles. Commissioner Tom Gede, a former California deputy attorney general and executive director of the Conference of Western Attorneys General, says, “What is really remarkable is that all the commissioners felt unanimously that the current system, which is in fact a multitude of systems in Indian country, does not serve the public safety of individual Indians and tribes very well and that tribes should be given the opportunity to engage their own justice systems and law enforcement systems free of the overarching control of other governments, subject, however, to the same constitutional constraints faced by all other governments in the United States.”
Local, that is, tribal control of law enforcement and the judiciary is the theme that runs through the report. The commission’s first recommendation is that Congress pass legislation allowing tribes simply to opt out of the current federal and/or state law enforcement and justice systems and replace them with their own systems. “There’s no certification process, no U.S. Department of Justice working group or pilot project. The [commission] emphatically rejected the approach…. We want Indian tribes to have the freedom to choose and to not have to go on their knees to Justice or BIA and say ‘Please tell us that we’re ready,'” says Commission Chairman Troy Eid, a former U.S. Attorney for the District of Colorado and currently on the faculty of two law schools.
This and all the other recommendations are based on extensive field hearings and comments from tribal members. “We struggled over these issues out in the field and in forums with sometimes 400 or 500 local people who were telling us what they thought. If there ever was a grassroots effort, this was it,” says Eid.
Commissioner Ted Quasula, Hualapai, has more than 40 years’ experience in law enforcement in Indian country. “Probably the most important part about putting the report together was getting the thoughts and the viewpoint and the position of all the tribal people that have firsthand information on what the problems are,” he says.
The one stipulation to the opt-out recommendation is that Congress establish a U.S. Court of Indian Appeals to which a defendant could appeal on the grounds that his 4th, 5th, 6th or 8th amendment rights under the U.S. Constitution had been violated. Such a court is also needed, says the report, “because it would establish a more consistent, uniform, and predictable body of case law dealing with civil rights issues and matters of Federal law interpretation arising in Indian country.”
Commissioner Jefferson Keel, lieutenant governor of the Chickasaw Nation, retired U.S. Army officer and former president of the National Congress of American Indians, says, “This and the whole process of appointing a commission to look at the conditions of law enforcement and tribal law and order in Indian country is extremely important. The tribes across the country … can take it and really make some inroads in creating a legal level playing field.”
The question of what the tribes will do with the report brings up the question of how President Barack Obama, Congress and federal agencies such as the Departments of Justice and the Interior will respond. “Our hope,” says Quasula, “is that it doesn’t sit around and collect dust,” a concern expressed over and over again by the commissioners. “With tribal leadership taking charge, there will be change to the outrageous child abuse, domestic violence, violence against women statistics. They’re just unacceptable, totally unacceptable,” he says.
Commissioner Carole Goldberg, a justice of the Hualapai Tribe’s Court of Appeals and a professor at UCLA’s School of Law, is taking the lead in crafting an implementation plan, which will be “a distillation of recommendations of the commission’s report into a set of more specific actions. For example, there may be points where we need to specify whether a specific action would best be undertaken through seeking a solicitor’s opinion in the Interior Department or modifying a regulation. If there’s to be a statutory change, where in the federal code would that statutory change be most appropriately located,” she says.
Sen. Mark Begich, D-Alaska, says, “It is important that we now move to the next stage. I’ve asked the Senate Indian Affairs Committee to hold a hearing on the report, because I think it’s important for us not just to put this on a shelf and ignore it. There are some pretty important issues we should address here.”
Those issues include the need for base funding for tribal law enforcement, justice systems and detention facilities and for better cooperation between federal, state and tribal law enforcement. The report also recommends a requirement that federal agents turn up in tribal court when they are called, not a trivial issue, says Eid.
The unique situation in Alaska gets a chapter, as does juvenile justice, which Goldberg describes as “an urgent problem that needs to be remedied.” Those recommendations follow the principle of the Indian Child Welfare Act in putting young offenders – and the dollars to provide services – in the control of the tribe rather than of the federal and state justice systems ill-equipped to deal with them.
The report’s recommendations may look like a hard sell, but, Eid says, the report “is not to tell anyone what to do, but it’s also to say, ‘Local government works best; it’s the American way.’ It’s emphatically a better way to prevent crime…. It’s clear that many Native governments, even those with not a lot of means, want to and will sacrifice in order to put sovereignty into action through enforcing their own criminal laws.”
Eid says he thinks the movement toward local tribal control of law enforcement and justice systems is unstoppable. “I’m very optimistic,” he says.
The other members of the Indian Law and Order Commission are Affie Ellis, Navajo; former U.S. Rep. Stephanie Herseth-Sandlin; former U.S. Rep. Earl Ralph Pomeroy III; and Tulalip Tribal Court Chief Justice Theresa Pouley, Colville Confederated Tribes.
Members of a Congressionally-created panel that blasted the state’s justice system for Alaska Native villages arrived in Anchorage on Wednesday, where they took on a top state official and publicly pushed for reform to give Alaska tribes more local authority over criminal matters.
“It’s clear to us Alaska remains on the wrong track,” said Troy Eid, chairman of the Indian Law and Order Commission (ILOC), which issued its scathing report last month. “The problems tribes face in the Lower 48 are magnified in Alaska, which still relies on a colonial model (of justice) that results in more violent crime.”
Alaska Attorney General Michael Geraghty on Tuesday fired off a letter to Eid, taking issue with aspects of the report and acknowledging some of the problems in the state’s justice system. He said Alaska must work with tribes to improve public safety, and highlighted steps taken under Gov. Sean Parnell to make villages safer.
Ultimately, Geraghty opposed the report’s recommendation that Indian Country be created in Alaska as it is in the Lower 48, where tribes own land. That status means Lower 48 tribes enjoy rights not afforded Alaska Native tribes.
” … The state believes the commission was wide of the mark in recommending a return to Indian country as a means for solving the admittedly serious public safety issues facing our Native peoples,” reads the letter.
More than 200 Alaska Native villages suffer some of the nation’s highest rates of domestic violence, sexual assault, suicide and other problems.
Meanwhile, scores of villages lack police and quick access to courts and other basic services. Often, victims must wait for Alaska State Troopers based in other communities to fly in before crimes can be investigated, a process that can take days in stormy weather.
“We are fighting for our lives here. We have the highest rates of almost all deplorable conditions known to mankind,” said Mary Ann Mills, tribal council chairperson for the Kenaitze Indian Tribe, in a question-and-answer session following presentations by Eid and the other ILOC commissioners at the Dena’ina Convention Center in Anchorage Wednesday morning. Mills was just one of several tribal representatives from around the state who came to listen to the commission’s findings, and who overwhelmingly expressed support for tribal sovereignty.
“The current system is broken,” said Eid. “You have 75 communities with no policing at all. And then you have 100 VPSOs (village public safety officers) who don’t carry firearms and can’t provide the full range of services that a state sworn officer can provide.”
The nine-person commission sunsets in January. Commissioners came to Alaska last year to conduct interviews for the report. Eid and two others returned this week to speak at the Bureau of Indian Affairs’ rural providers conference in Anchorage. Eid also planned to meet with Geraghty on Wednesday afternoon.
‘Not just an Alaska problem’
“This is not just an Alaska problem. But I know injustice when I see it,” Eid said at the conference.
“We’re not a bunch of radicals. We are not bomb throwers. We just think that self government should be the rule in Alaska,” he said, noting that he’s a lifelong Republican and was appointed by Sen. Harry Reid, D-Nev. His point? The commissioners come from varied political backgrounds, yet they unanimously came to the same conclusion about the abysmal safety conditions in rural Alaska.
At the conference, commissioners and Alaskans renewed their calls for the creation of Indian Country in Alaska. The courts decided long ago that unlike the Lower 48, virtually no tribal lands existed in Alaska.
The distinction has limited the federal benefits that flow to Alaska tribes. A stark example of that disparity came earlier this year with the reauthorization of the Violence Against Women Act that granted new criminal jurisdiction to Lower 48 tribes, including the ability to issue civil protective orders to arrest and detain any person. Alaska tribes did not receive such powers.
On Tuesday, Geraghty had his letter delivered to Eid’s room at the Captain Cook Hotel, so Eid could understand the state’s views before the two met. Hotel staff placed the letter on Eid’s pillow for him to read when he arrived, “without the mint,” Eid joked.
Geraghty said the commission’s urgent challenge resonates with him. “The state of Alaska can, and should, be doing more to work collaboratively with local tribes to improve public safety,” he said.
He noted the Department of Law has drafted a plan that would allow tribes to address certain domestic violence, alcohol-related or misdemeanor offenses. The accused could choose civil remedies in tribal court instead of facing state criminal charges.
The state has also adopted a template memorandum of understanding for villages that have banned alcohol. A local council would issue “restorative justice remedies in lieu of citation for alcohol possession,” said Geraghty. He conceded that illegal possession “is an offense which is rarely prosecuted in small rural communities.”
Alaska’s rural police force doubled in size
Geraghty also noted that the state’s rural force of public safety officers has roughly doubled in recent years, to more than 100. Draft regulations to allow public safety officers to carry firearms is in a public-comment period. Arming officers was something another ILOC commissioner, Ted Quasala, said was as basic as it gets.
“There is no other law enforcement agency anywhere, outside of here, where you have unarmed officers who respond to very violent and volatile situations. There is no way you are going to send an unarmed officer to those situations alone, by themselves (in the rest of America),” said Quasala, who has law enforcement experience. He has previously worked as a tribal police chief and as director of the Bureau of Indian Affairs’ Office of Law Enforcement Services.
In his letter, Geraghty also noted that Parnell has started annual marches to raise awareness about domestic violence and sexual assault in 160 communities.
“The fact is we will not solve this problem solely through arrest and prosecution — though that is obviously an important component. Instead we must also raise awareness and educate our kids,” the letter said.
But Geraghty’s letter also took issue with aspects of the report. The report had blasted the state’s support for the reauthorization of the Violence Against Women Act, despite the disparity it upheld for Alaska tribes. The report called the state’s support “unconscionable.”
Geraghty called that language “inappropriate. We have admittedly a long way to go to solve this problem but I think the commission does a disservice to the state when it paints with such a broad brush,” he said.
Eid said he was encouraged to see Geraghty express support for the report’s findings, but he added that establishing Indian Country in Alaska isn’t the only solution.
In fact, the report spells out numerous ways to improve rural justice, he said, including that the president, through executive order, allow the Bureau of Indian Affairs to provide funding for tribal police in Alaska, a benefit enjoyed by Lower 48 tribes, but not those in Alaska.
Tribes don’t actually have to own land to have more authority, Eid noted. One thing the state can do now is define boundaries where tribes can have increased criminal jurisdiction, even though they don’t own the land.
“We all agree the situation in Alaska is a problem, and that Alaska is out of step with the U.S.,” Eid said. “The way to address the problem is more local control and local decision making.”
In the three weeks since the U.S. Indian Law & Order Commission chastised Alaska for opposing Natives who want their own village cops and courts, chairman Troy Eid says he’s been called a radical and an outsider who shouldn’t be sticking his nose where it doesn’t belong.
Eid swept aside such criticism Wednesday when the commission officially presented its report in Anchorage. He declared that Alaska “was on the wrong track” and that public safety and security were so bad in rural Alaska, especially for women and children, that it had become a national disgrace.
“I don’t claim to be an Alaskan,” said Eid, the former U.S. Attorney for Colorado, “but I know injustice when I see it.”
Speaking to a crowded room of mainly Alaska tribal officials and Native rights advocates at the 23rd annual Bureau of Indian Affairs Tribal Providers Conference, Eid was interrupted by applause almost every time he called on the state to acknowledge sovereignty here.
“There ought to be a recognition of tribal sovereignty as THE force that will keep people safer — and why not?” Eid said. “It’s what we do everywhere else in the United States. We recognize local people should be able to govern themselves, make their own decisions, that they should not be fighting with their states.”
A life-long Republican, Eid said it wasn’t a matter of politics, though opponents of the report have tried to portray it that way. “I would hold my conservative credentials to (Attorney General Mike Geraghty’s) or the governor’s anytime,” he said.
The nine-member Indian Law & Order Commission was established by Congress in 2010 and directed to report back to Congress and the President on its findings after holding hearings and meetings around the country, including Alaska.
The report, released Nov. 12, was mainly about the successes and failures of reservation justice programs and recommendations on new policies and laws.
But the panel singled out Alaska in a special 30-page chapter. It accused the state of falling behind the rest of the country in providing a secure environment in Bush villages.
“What’s so shocking about Alaska is that you have the most rural state in the country and you have the most centralized law enforcement in terms of how the state provides — and fails to provide — services,” Eid said. “We cling to this model because we know it and because there’s a lot of perverse pleasure taken in controlling the lives of other people … The colonial model, which is alive and well in Alaska, does not work.”
Eid and panel members Carole Goldberg of the UCLA School of Law and Ted Quasula, a former BIA police officer from Arizona, said Alaska should recognize tribal authority, not fight it.
Tribal courts exist in Alaska, but they mainly handle adoption and other family matters. The state recognizes their jurisdiction over village members, but recently challenged a decision by the Minto tribal court that stripped a convicted wife beater of his parental rights, arguing that the court exceeded its authority because the man was enrolled in another village.
Eid and Goldberg had sharp criticism for the Alaska Native Claims Settlement Act of 1971, the law that paved the way for the trans-Alaska pipeline by settling Native land claims and establishing regional and village corporations in place of reservations. While supporters of the act, like the late Sen. Ted Stevens, R-Alaska, have described it as forward-looking legislation designed to integrate Alaska Natives into the dominant economy and culture, Goldberg said it was the “last gasp of termination policy” designed to separate Natives from their traditional lands.
Laws passed since then have recognized Native American tribal authority, though often, as in the Violence Against Women Act, Alaska was written out of the legislation, they said.
“Alaska has been left behind because of the Alaska Native Claims Settlement Act,” Goldberg said.
Eid said he has heard the law described in almost reverential terms, as if it had been “set in stone” and handed down like tablets.
In fact, he said, the law has been amended 35 times since passage, and it should be changed again to bring “Indian country” — and Native sovereignty — to the thousands of acres of land owned by Alaska Natives, villages and other Native entities.
“Attitudes change, people can change, people can learn,” he said.
Eid said that when he arrived at his room in the Hotel Captain Cook Tuesday night, there was a six-page letter in an envelope on his pillow. It wasn’t a love note, but a hand-delivered defense of Alaska’s position by Geraghty, the state Attorney General.
Eid noted that Geraghty acknowledged that public safety was deficient in Alaska’s villages, but opinions diverged after that. Geraghty said that increasing the power of tribal courts and police, using the reservation model, would subject non-Natives to a justice system they had no power to affect democratically.
“The report does not explain how non-Native residents in these communities will participate in … tribal self-governance given that they have no right to vote on tribal laws or participate in electing tribal leaders,” Geraghty wrote. Since ANCSA’s passage, he said, “Alaskans have been free to reside in any Alaska community and expect to be governed by a uniform system of criminal laws.”
But Eid said that was no more relevant than he, as a voting resident of Colorado, being subject to Alaska criminal law while visiting here. If he broke the law, he said, he would expect Alaska courts to be fair to him even though he can’t vote here, just as he would expect tribal courts to fair with non-Natives in their villages.
Geraghty also referenced the Parnell administration’s secret plan to bring a measure of self-determination to some villages. As outlined by Gov. Sean Parnell to the Alaska Federation of Natives convention in October, the proposal would allow tribal courts to hear misdemeanors as civil, not criminal cases, with culturally attuned punishment or rehabilitation — but only if the defendant agreed.
Geraghty said in an November interview that he couldn’t provide a copy of the proposal he had given the Tanana Chiefs Conference because it was subject to negotiations.
“Has anyone seen this thing?” Eid asked the room Wednesday. No one had. He and Goldberg said the negotiations were doomed if the state didn’t treat the Interior villages as sovereign governments.