Legislature(2013 - 2014)CAPITOL 120
04/08/2014 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Presentation: "reforming Justice for Alaska Natives: the Time is Now", Indian Law & Order Commission Report, "a Roadmap for Making Native America Safer" | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
April 8, 2014
8:09 a.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Co-Chair
Representative Benjamin Nageak, Co-Chair
Representative Bob Herron
Representative Sam Kito III
MEMBERS ABSENT
Representative Neal Foster
Representative Kurt Olson
Representative Lora Reinbold
COMMITTEE CALENDAR
PRESENTATION: "REFORMING JUSTICE FOR ALASKA NATIVES: THE TIME IS
NOW"~ INDIAN LAW & ORDER COMMISSION REPORT~ "A ROADMAP FOR
MAKING NATIVE AMERICA SAFER"
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
MICHAEL GERAGHTY, Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: Provided testimony related to the Indian
Law and Order Commission Report entitled, "Chapter Two -
Reforming Justice for Alaska Natives: The Time is Now".
TROY EID, Chairman
National Indian Law and Order Commission
Denver, Colorado
POSITION STATEMENT: Provided testimony related to the Indian
Law and Order Commission Report entitled, "Chapter Two -
Reforming Justice for Alaska Natives: The Time is Now".
DAVID AVRAHAM VOLUCK, Judge
Tribal Court
Central Council Tlingit & Haida Indian Tribes of Alaska;
Sitka Tribes of Alaska
Juneau, Alaska
POSITION STATEMENT: Provided testimony related to the Indian
Law and Order Commission Report entitled, "Chapter Two -
Reforming Justice for Alaska Natives: The Time is Now".
AURORA LEHR, Vice President
Alaska Federation of Natives (AFN)
Anchorage, Alaska
POSITION STATEMENT: Provided testimony related to a summary of
the report entitled, "A Roadmap for Making Native America Safer
- Public Safety in Alaska As Seen Through an Independent Lens."
ACTION NARRATIVE
8:09:45 AM
CO-CHAIR BENJAMIN NAGEAK called the House Community and Regional
Affairs Standing Committee meeting to order at 8:09 a.m.
Representatives Kito III, Herron, LeDoux, and Nageak were
present at the call to order.
^Presentation: "Reforming Justice for Alaska Natives: The Time
is Now", Indian Law & Order Commission Report, "A Roadmap for
Making Native America Safer"
Presentation: "Reforming Justice for Alaska Natives: The Time is
Now", Indian Law & Order Commission Report, "A Roadmap for
Making Native America Safer"
8:10:50 AM
CO-CHAIR NAGEAK announced that the only order of business would
be a presentation entitled, "Reforming Justice for Alaska
Natives: The Time is Now," Indian Law and Order Commission
Report, and "A Roadmap for Making Native America Safer."
Today's presentation is a continuation of a discussion on the
Indian Law and Order Commission report published November 2013,
and first heard by the committee on March 11, 2014.
8:11:21 AM
MICHAEL GERAGHTY, Attorney General, Department of Law,
paraphrased from the following written remarks [original
punctuation provided]:
Thank you for inviting me to today's hearing
to continue discussion of the Indian Law and Order
Commission Report. I apologize again for my
inability to attend the previous hearing on March
11 due to a long-standing scheduling conflict.
At the outset, I want to emphasize that I have
been on record since day one acknowledging the
importance of this report, and I have never
shirked from the challenge expressed in the report
that the state can and should be doing more to
improve public safety for Alaska's Native people.
In a moment I want to talk about some of the
initiatives the state is pursuing, but first I
would like to also respectfully express my areas
of disagreement with the report.
First, I believe the report gave no credit for
the notable progress that the state has made in
improving public safety in rural Alaska, and I
will discuss that in more detail. I also
fundamentally disagree with the conclusion that
ANCSA - the Alaska Native Claims Settlement Act -
is a failed model. In fact, the only place I have
ever read that assertion is in the ILOC report.
Alaska Natives were deeply involved in the
negotiation and settlement set forth in ANCSA. It
was not imposed on anyone. Today, the regional
corporations and village corporations created by
ANCSA are among the state's most successful
businesses, employing many thousands of Alaskans,
including a substantial number of shareholders,
both in the villages and in our urban areas. A
steady job is important to the vitality and safety
of any family. Granted, it may not be directly
tied to safety in the villages, but it is hard to
overstate the contribution of the regional
corporations to the advancement of their rural and
urban shareholders, not to mention the State of
Alaska as a whole. So I do not accept that ANCSA
is a failed model or that we should turn back the
clock. Nor do I think Indian Country is the answer
to Alaska's problems. In my opinion, the
commission views Alaska's villages through the
lens of the Lower 48 reservation system, where
people understand that entering a reservation will
subject them to tribal law, and non-tribal member
residency on the reservation is often controlled
by the tribe. In contrast, since ANCSA's passage,
Alaskans have been free to reside in any Alaska
community and they expect to be governed by a
uniform system of criminal laws. Non-tribal
members have bought land and built lives in these
communities. The commission's report does not
address the difficulties for non-tribal members
living in communities that will either be split
between Indian Country and non-Indian lands, or
enveloped into Indian Country.
It's a fact that most of Alaska's Natives do
not live in rural villages. About 60% live in
urban areas or hub communities and have access to
all the criminal justice services that the
commission found lacking in our rural communities:
law enforcement, shelters, court facilities,
treatment facilities and protective orders. How
would creating more Indian Country in remote
Alaska villages assist them? This is not to
suggest that there are not serious issues facing
Natives in these urban and hub communities, such
as domestic violence and sexual assault. But I am
suggesting that the problem in my opinion is much
more nuanced and it is an over-simplification to
suggest that forming reservations where tribes can
exert exclusive jurisdiction is the solution to
the public safety problems that afflict Alaska's
Native peoples.
But these criticisms aside, I want to return
to the theme I mentioned at the outset. My
differences with the report should not obscure the
fundamental point that there is more we can and
should be doing with tribes, and tribal courts in
particular, to make these communities safer.
In point of fact, before the report was
issued, the Governor asked the Department of Law
to draft an agreement whereby the state could
delegate authority to tribal courts to deal with
certain misdemeanor offenses that may occur in
their communities. Under the proposed agreement,
the tribal court will provide civil-based remedies
for state law criminal offenses, including
domestic violence and alcohol offenses. Members or
non-members would be subject to these remedies,
provided that they have agreed to be diverted to
this tribal remedy in lieu of state criminal
prosecution. It is important to keep in mind that
everyone is a citizen of the State of Alaska,
tribal member or not, and regardless of where they
live. They are guaranteed rights under our state
constitution. However, if a person commits a
covered offense in these communities, I hope they
will conclude that facing a civil tribal court
remedy would be far preferable to prosecution in
state court, and a possible conviction on their
record. The hope is that a culturally relevant
remedy will be more effective for a first time
domestic violence offender, for example, to help
them get back on track by seeing the impact their
actions have had on their family and within the
local community.
The state is now in active negotiations with
several tribes and hope to finalize the agreements
shortly. We reached out to the Tanana Chiefs
Conference in December with a draft, and we have
had several meetings, discussed changes back and
forth, and I believe we are prepared to now reach
out to tribes within TCC to finalize and sign
agreements. We have also reached out to Kake and
Sitka and I hope to make progress with their
representatives as well. This Limited Delegation
Agreement, or LDA as we refer to it, I hope sends
a strong signal to tribes that the state views
collaboration with tribal courts as an important
resource in the fight to improve public safety.
The ILOC report specifically encourages inter-
governmental public safety agreements such as
these. One obstacle to more tribes entering into
these types of agreements is the lack of federal
funding for tribes to operate.
In December of last year, the commission's
chairman, Troy Eid, sent me a courtesy copy of a
review he had written about a book dealing with
Alaska Natives and American laws. I responded on
th
"Thanks, Troy. I will read this with interest.
I also want to follow-up on our meeting and your
gracious offer of help to assist the state in
achieving the goals outlined in the commission's
report.
Alaska's tribes desperately need funding for their
tribal courts. In the course of the Department of
Law's discussions with Tanana Chiefs Conference
about the delegation agreement, TCC raised the
issue that the BIA does not currently give grants
for the region's tribes to operate the tribal
courts or tribal police force. That funding is
essential for tribes to expand successfully their
public safety function in Alaska. It would be
incredibly helpful to the state and to Alaska's
tribes if you and/or the commission could become
an advocate for Congress to provide that funding.
Your advocacy on that issue would be in line with
the report's recommendations for increased funding
for tribal justice systems."
In February I was in Washington for the annual
meeting of the National Association of Attorneys
General, and I met with the members of our
delegation to advocate, among other things,
increased funding for our tribal courts. This was
a problem commented on several times in the ILOC
report, namely the lack of federal support for
tribal justice programs.
The Department of Law has also reached out to
tribes interested in the LDA and offered
assistance in completing the complicated federal
Consolidated Tribal Assistance Program grant
process, which is a possible source of funding for
tribal courts.
The state is also pursuing agreements with
second-class cities in Alaska, particularly
villages, to encourage them to prosecute alcohol
possession offenses under municipal law because
current state law provides these villages the
opportunity to create a panel comprised of local
citizens, elders for instance, who can impose
culturally relevant remedies in lieu of typical
alcohol possession fines.
In November 2013, the DPS released proposed
regulations that would allow VPSOs to carry
firearms. These regulations include training and
oversight requirements, and there are currently
two bills before the legislature that would allow
VPSOs to carry firearms. This was one of the
specific recommendations coming out of the ILOC
report.
As this body is aware, VPSO funding has been
significantly increased under this administration.
VPSOs currently serve many rural communities where
tribes are located. They are hired by regional
corporations but paid for by the state. They also
attend the Police Academy in Sitka and they are
supervised by AST. There are currently 121 funded
positions and, while not all those positions may
be filled, there has been a significant increase
in the numbers during the last few years.
The state has also created new trooper posts
in Emmonak, Selawik, and Hooper Bay. We have also
increased VPSO oversight by adding three support
troopers for Bethel, Fairbanks, and Kotzebue.
The state's Drug Abuse Resistance Education
(DARE) program trains, at state cost, police
officers and VPSOs across Alaska to teach a ten-
week drug abuse resistance program to elementary,
middle and high school students in their
communities. DARE officers (who are often VPSOs)
teach children critical decision making skills to
help them make healthy decisions. Sixteen of the
38 communities receiving DARE during the 2012-2013
school year were VPSO communities. As part of the
DARE program, DPS and the Northwest Arctic Borough
School District teamed up to provide safety and
security assessments to all ten village schools
surrounding Kotzebue.
In 2010, the Ilisaqvik Tribal College in
Barrow contacted the AST about the possible
establishment of a public safety summer camp for
their regional youth. In 2007, the AST, U.S.
Marshal's Service, State Crime Lab, State Fire
Service, and VPSOs developed the first Alaska
Youth Academy. It was a trial program focusing on
at-risk Native Alaskan young adults (age 15-18) in
an effort to steer them away from alcohol, drug
abuse and the DV which plagues their communities.
The Barrow camp was successful and the college
invited the group of instructors back the
following year. To date, the camps have grown to
five statewide: Bethel, Barrow, Hooper Bay,
Mountain Village, and Fairbanks. This year they
will enter their fourth year of camps and they
have reached out to hundreds of young adults. A
new camp in Sitka will be established in June of
this year.
In December of last year, the Department of
Health & Social Services and Tanana Chiefs
Conference signed Alaska's first foster care
maintenance pass-through agreement. This agreement
will allow the state to pass-through funds from
the federal government directly to TCC to provide
maintenance funds for foster care in tribally
licensed foster homes. Signing of this agreement
was the culmination of a long approval and
negotiation process. In conjunction with this
agreement, the department adopted a regulatory
exemption from state licensure requirements for
tribally licensed foster homes.
As you might imagine, through the Office of
Children's Services, the state also interacts a
great deal with tribal organizations throughout
the state. For example, the tribal-state
Collaboration Group meets three times each year
and has done so for the past 20 years. It is a
gathering of state and tribal leaders for
collaboration on systems improvement, with
particular focus on efforts to improve the
disparity rates seen with Alaska Native children
in the child welfare system.
The state also provides Rural Child Welfare
Services grants to tribal grantees around the
state. These grants provide funding for tribes to
work in close proximity with the OCS case worker
to support case management activities such as home
visits, parental support and coaching to aid in
the reunification or safety of children in
placement, both Native and non-Native.
The Indian Child Welfare Act liaison helpdesk
at OCS is staffed with employees of tribes or
Native organizations who serve as invaluable
resources for state social workers conducting
relative searches in state child protection cases.
OCS has in fact been recognized for its innovative
approach to improving the search for ICWA-
preferred placements.
OCS also participates in joint state/tribal
training to educate staff on the history of Alaska
Natives and tribal cultural practices. Tribes and
OCS staff co-train a curriculum called Knowing Who
You Are (KWYA), training that is mandatory for OCS
staff and is provided by certified trainers from
both tribes and OCS.
In conclusion, I have culled through a long
list of projects in areas where the state actively
collaborates with tribes on a number of different
fronts. But I will return to what I said at the
outset - we have a long way to go. I am not here
to pat myself on the back, or to receive
appreciation. There are serious challenges facing
our Native peoples. There are no grounds for
complacency. However, I believe with the
leadership of the Governor, and the support of
this body, we can find effective ways to make life
better in these small communities. Returning to a
reservation system is a step back to the past.
Notwithstanding, the Indian Law and Order
Commission is to be commended for focusing
attention on this topic. I disagree with their
recommendations, but not with the problem they
have identified. As the commission stated in its
report: "What policy adjustments the State of
Alaska should make in support of greater tribal
authority over criminal justice is something the
state and its citizens should decide, not the
Indian Law and Order Commission." I agree with
that, and I pledge my commitment in trying to find
ways to effectively solve this problem.
8:28:32 AM
CO-CHAIR LEDOUX inquired as to how much money the state would
save if issues were diverted to tribal courts, assuming tribal
courts have the funding and the ability to address issues such
as domestic violence (DV) and driving under the influence (DUI).
She suggested that the potential savings could be used to
support the operations of tribal courts, instead of waiting for
federal funds.
MR. GERAGHTY said he didn't know but the pilot project, through
agreements with the Tanana Chiefs Conference (TCC) and other
organizations, may provide the information needed to further
study this point. The number of cases diverted from the system
will determine how many fewer resources would be demanded from
the state.
REPRESENTATIVE HERRON referred to a letter written February 1,
2013, by Mr. Geraghty [document not provided]. He asked whether
Mr. Geraghty, after a year's reflection, would make any changes
to that letter.
MR. GERAGHTY said all attempts were made to be factual in terms
of the analysis of the law; at no time has his department tried
to minimize the issues facing smaller communities. He opined
the big issue has been with the means recommended by the Indian
Law and Order Commission (ILOC) to deal with issues. He
acknowledged he had not reread the letter recently.
8:31:43 AM
REPRESENTATIVE HERRON observed that the commission's
recommendation was for the state to support local tribal
authority over public safety and justice in rural communities.
Furthermore, although the Department of Law (DOL) disagrees, the
commission report indicates that DOL is actively resisting such
efforts.
MR. GERAGHTY said he did not believe there has been active
resistance to tribal authority since he has been attorney
general. The Venetie case established that there is no Indian
country in Alaska, with the exception of Metlakatla, but the
commission argues there is an archipelago of Native allotments
scattered throughout the state. He opined that defending the
law as it stands is not equal to actively resisting tribal
justice, and he restated his agreement with the commission that
the state can and should do more, such as undertaking the major
initiative working with tribal courts to seek diversion
remedies. Part of the problem is that all citizens of the state
have constitutional rights, which are not to be forfeited or
subjugated, and there are "very thorny legal issues here
involved, and constitutional issues."
8:33:42 AM
REPRESENTATIVE HERRON remarked:
Mr. Attorney General, in your letter though, you say,
it's on page 8, that there is no double jeopardy
prohibition in Alaska. And so, if there is a local
tribal court that takes an action against a non-
member, nothing prevents you from you doing [that] as
well. ... You talk about the Venetie case, and a lot
of people talk about, 'it has to be based on land.'
Shouldn't there be a consideration ... can't we have
tribal law concurrent with the State of Alaska, and
literally have a virtual land situation? It seems
that we're way in the past [if] you have to have a
piece of property to have effective tribal court
proceedings.
MR. GERAGHTY expressed his interest in exploring the boundaries
of that concept; in fact, the abovementioned agreement
recognizes a virtual area without a fixed land base. The pilot
project has his firm support, and he also fully supports having
local communities engaged. He suggested that the federal
government should provide resources so that tribal courts can
successfully deal with public safety issues in their
communities. However, at some point, "the extent of that
virtual" will have to be determined, and there is something to
be said for using the boundaries of a land base for clarity. He
restated his disagreement with the conclusion to return to
Indian country.
8:36:04 AM
REPRESENTATIVE HERRON recalled the Knowles Administration
entered into the [2001] Commemorative Millennium Agreement which
was followed by an opinion from DOL that recognized concurrent
jurisdiction between the state and tribes on child protection
proceedings. Two years later, [Murkowski Administration
Attorney General Gregg] Renkes reversed that decision. For a
clear understanding of the present situation - and to clarify
the status with DOL - he asked whether the Renkes decision
should be revoked and a current opinion issued by the attorney
general that recognizes tribal jurisdiction.
MR. GERAGHTY responded:
As far as I know we have been working with the tribes
on child protection related matters and so on for a
number of years, now whether that was done pursuant to
an informal revocation of the previous Renkes, which
was really a policy decision, not a legal opinion, I
don't know whether it's been formally revoked or not.
In my book, everything I've learned, is that that is
jurisdiction that our state supreme court has said
that they enjoy, that they have, and we've not been
fighting that.
MR. GERAGHTY said he could not speak to the formal status of the
previous decision; in fact, DOL is working through the expansion
of the [federal Title IV-E] program to allow tribally licensed
foster homes. He assured the committee that child protection
orders are processed every day by the court system and DOL.
REPRESENTATIVE HERRON asked whether DOL would consider an
agreement allowing Village Public Safety Officers (VPSOs) to
enforce tribal laws - as well as state laws - to address local
justice issues.
MR. GERAGHTY stated that he would consider it, but brought up
the question of which tribes have written codes. There are 78
tribal courts that have been formed, thus an agreement with the
state would begin with delegating authority to enforce state
criminal laws dealing with alcohol, domestic violence, and
public safety issues in small communities. He said, "I'm just
not conversant with the tribal laws as they exist and what they
deal with, they may overlap with state laws in many instances, I
just don't know. But I think that is an area to be considered."
8:39:34 AM
REPRESENTATIVE HERRON surmised from Mr. Geraghty's testimony
that DOL is working toward a policy of state deference to tribal
authority in tribal communities.
MR. GERAGHTY said DOL is trying to empower tribes to deal with
public safety issues in their communities and, if an offender
agrees to be diverted to the civil tribal court remedy, the
state would defer to the remedy imposed by the tribal court.
The point is to divert crimes covered by the Limited Delegation
Agreement (LDA) if the offender agrees, and the agreement spells
out that the state is not responsible for the remedy imposed by
the tribal court.
REPRESENTATIVE HERRON said the tribes and the state hope to
craft a relationship so that tribal authorities - when
appropriate with state law - can make for safer communities. He
then turned attention to the Violence Against Women
Reauthorization Act of 2013 (VAWA), Section [910], asked for the
basis of the state's exemption from federal law.
MR. GERAGHTY explained that Alaska tribes are different than
Lower 48 tribes. Lower 48 tribes are established in a
reservation system based on land; for many years the state has
tried to avoid any ambiguity or uncertainty in the law which
would lead to litigation. Much of VAWA is limited in many
respects to Indian country, which in Alaska only exists in
Metlakatla; and he read [in part] from Section 905, as follows
[original punctuation provided]:
SEC. 905. TRIBAL PROTECTION ORDERS.
Section 2265 of title 18, United States Code, is
amended by striking subsection (e) and inserting the
following:
''(e) TRIBAL COURT JURISDICTION.-For purposes of this
section, a court of an Indian tribe shall have full
civil jurisdiction to issue and enforce protection
orders involving any person, including the authority
to enforce any orders through civil contempt
proceedings, to exclude violators from Indian land,
and to use other appropriate mechanisms, in matters
arising anywhere in the Indian country of the Indian
tribe (as defined in section 1151) or otherwise within
the authority of the Indian tribe.''.
MR. GERAGHTY said "that's to me, a very ambiguous and perhaps
even loaded term." Part of his job is to avoid ambiguities in
law that could lead to litigation and uncertainty. The state's
view is that the exemption did not expand or retract any
existing tribal court jurisdiction in Alaska, and tribal courts
do have the authority to issue protective orders, which are
subsequently enforced by the Department of Public Safety (DPS).
He acknowledged that in order to shape the contours of
jurisdictional boundaries for the state and tribal courts, there
will be litigation for the courts to resolve, and the exemption
was sought for clarification.
8:44:23 AM
REPRESENTATIVE HERRON pointed out that others hold the opposite
view that Section 910 does cloud the issue and is likely to
result in attempts by perpetrators to fight violations on
jurisdictional grounds. Representative Herron questioned why it
is not better to repeal Section 910 because it sends a message
that Alaska women, Alaska Native women in particular, don't have
the same rights [as other women in the U.S.] and it is an
extremely sensitive issue.
MR. GERAGHTY acknowledged that the rate of victimization amongst
Alaska Native women is "shameful" for the state and DOL. He
restated his belief that tribal courts can issue protective
orders in their communities, and DPS will enforce the orders
without debate. He cautioned that some communities may not have
the resources and staff to function as desired; in fact, he has
advocated for funding along with the chairman of ILOC. The
state continues its effort to clarify because it believes the
Alaska Native Claims Settlement Act (ANCSA) was a "different
model." The commission believes ANCSA is a failed model, but he
said he disagrees with that conclusion.
REPRESENTATIVE HERRON stated that ANCSA has been modified 35
times, and another change may be possible to "make this work."
MR. GERAGHTY advised that many of the previous modifications and
amendments to ANCSA have been to protect landholdings,
shareholders' rights, and to prohibit the sale of stock to
certain buyers. Although ANCSA is not sacrosanct, the proposed
amendments to ANCSA would allow for a return to Indian country
and he said he fundamentally disagreed with that recommendation.
8:48:45 AM
REPRESENTATIVE HERRON informed the committee he will provide
additional questions in writing to the attorney general with a
request for a written response.
8:49:07 AM
REPRESENTATIVE KITO III observed that at this point the
discussion has focused on courts, and further observed that the
state has agreements and works with tribal courts. He asked Mr.
Geraghty to explain how the tribal courts deal with cases that
involve members and nonmembers of a tribe.
MR. GERAGHTY said he was unsure as to whether tribal courts
distinguish between members and nonmembers when the individual
lives in their community. In child protection matters, for
example, jurisdiction rests with the status of the child and
thus if the child is a member of a tribe, tribal courts believe
they have jurisdiction. He was also unsure if this is a uniform
view. Currently there is a case pending before the Alaska
Supreme Court involving the ability of a tribal court to exert
jurisdiction over a person who has never lived in its community
and is not a member of the community's tribe. The ruling on the
Simmonds v. Parks case, and other pending cases, will define the
parameters of jurisdiction. He restated that in child
protection matters, membership of the child controls the
question of jurisdiction.
REPRESENTATIVE KITO III agreed that further discussion and court
cases will help provide "sideboards" to the questions of
jurisdiction. He asked whether the agreements that the state
has with tribal organizations - to empower them in matters of
tribal law - are supportive of state law, so that the tribal
governments would be acting as an arm of state law, or if tribal
courts have their own laws and ordinances to enforce.
MR. GERAGHTY advised that LDA deals with state laws such as
alcohol possession, DV, and minor theft offenses. If the
offender agrees, his/her case would be diverted to tribal court
for a civil-based remedy. In terms of tribal laws - he said he
was not familiar enough to give a categorical answer - but
presumed there may be an added step in the process; however,
there are issues regarding state officers enforcing tribal laws,
as many villages don't have tribal police officers or tribal law
enforcement and thus rely on VPSOs, who are state officers. At
this time, the focus is on state laws that affect public safety,
and allowing tribes to take control of certain offenses for an
appropriate civil-based remedy.
8:53:39 AM
REPRESENTATIVE KITO III, speaking to the enforcement of local
jurisdiction, asked whether Alaska State Troopers (troopers) in
Anchorage, for instance, enforce only state law or also enforce
local ordinances.
MR. GERAGHTY explained that troopers enforce state laws and many
municipalities have their own police force to enforce municipal
laws. He acknowledged "there is some overlap," and deferred to
DPS for further explanation.
CO-CHAIR LEDOUX questioned whether the rights of an individual,
who may not be a member of the tribe and who is living in the
community, could be taken away. She pointed out that there are
covenants that run with the land such as homeowners'
associations and property owners' associations. Co-Chair LeDoux
posed a scenario in which a village decides to administrate
according to tribal law, and the residents in the village agree
to live and conduct business under the jurisdiction of a tribal
court. She suggested this situation would be similar to certain
conditions of property law as are, for instance, condominium
associations.
MR. GERAGHTY pointed out that constitutional rights such as the
right to a jury trial or to counsel, cannot be taken away in a
land covenant.
CO-CHAIR LEDOUX noted that currently, the choice of jurisdiction
by state or tribal court is given an offender after a crime is
committed. However, in her scenario, an individual who
purchases land in a village agrees to abide by the rules of the
community and, if charged with a crime, agrees not to be tried
by state court, but by a tribal court.
MR. GERAGHTY opined a prospective waiver of rights would require
a written code of laws and would be affected by the nature of
the crime; furthermore, tribal courts do not afford a right to
counsel or to a jury trial, which are Western traditions. He
cautioned that the aforementioned scenario would hold potential
serious issues. He stressed that tribal courts are not
necessary draconian and many of those presently living in
communities would be content if diverted to tribal court.
CO-CHAIR LEDOUX further posited that those living in a gated
community lose their right to free association, but have
previously agreed to the restrictions thereof.
MR. GERAGHTY restated his caution about constitutional rights
and creating land covenants. In further response to Co-Chair
LeDoux, he acknowledged that there have been incidents in the
past regarding public access to Tyonek, but he is not aware of
continuing restrictive practices.
9:02:02 AM
TROY EID, Chairman, National Indian Law and Order Commission,
referring to Mr. Geraghty's testimony, explained that since the
Indian Law and Order Commission report was released, he and the
commission have said to TCC and other organizations in Alaska
that the administration ought to clarify matters by recognizing
the government-to-government relationship between the state and
"Alaska Native nations." That relationship is part of federal
law and does not "turn on" land status and the definition of
Indian country or Indian reservations. He said every other
state has clarified this relationship, as have governors of
other states with Indian nations' boundaries within.
Establishing a government-to-government relationship between
Alaska Native nations and the state would lead to productive
dialogue for all concerned. Furthermore, he took exception to
the mischaracterization of the report on creating Indian
country, or a reservation system, in Alaska. The commission
believes strongly that there should be local control and
accountability for tribal nations in Alaska so that tribal
nations can make laws and be governed by them, as is required by
federal law. This is not determined by whether nations have a
certain amount of land or not, and he added, "It's not true
legally and it's not true within the framework of either Public
Law 280 or ANCSA." The commission has said that the state can
accomplish this in a variety of ways; for example, the state can
draw boundary lines for boroughs and municipalities and make
political lines for self-government, therefore, lines can be
drawn for Alaska Native nations. A government-to-government
dialogue will make it possible to determine appropriate
boundaries and ensure self-government at a local level, which
will save the state money and will be more responsive to all;
however, Mr. Eid stressed that this is not prerequisite upon who
owns the land. He suggested that the legislature begin a
dialogue with the Native nations to determine boundaries and
strengthen intergovernmental cooperation. Mr. Eid noted that
some communities may want to organize as a group, others may
continue relying on the state, but others are ready to self-
govern. He advised, "You don't have to create an Indian
reservation system or talk about how different the Lower 48 is
... we're just talking about the American value of local self-
government and the legislature's right to draw boundaries in the
state of Alaska...."
9:07:19 AM
REPRESENTATIVE KITO III acknowledged that the state has a
structure in place to allow for multiple local governments;
however, state government is overarching above political
subdivisions, such as cities, and thus city laws must be in
compliance with state law. In this way, the state ensures that
all residents within a political subdivision are governed by
consistent state law. He agreed that a "state to tribal
relationship" is possible with 229 tribes, but the tribes are
not political subdivisions of the state and their laws would not
have to be based on state laws. Representative Kito III asked
whether the commission recommends that the tribal governments
work within the state framework, or if tribal governments should
have their own laws, and the state would have to negotiate how
tribal laws apply to members and nonmembers for each of the
tribes.
MR. EID responded that Alaska has 229 federally recognized
Alaska Native nations, and there needs to be a government-to-
government recognition between the state and each of those
nations. The number of Alaska Native nations creates a unique
situation, and thus it will take a while to accomplish this
task. When government-to-government recognition - not as
political subdivisions, but as Alaska Native nations - is
clarified, which can be done by an executive order or by
[legislation], the Alaska Native nations will organize and
determine the best way in which to work with the state to avoid
an unwieldy, complicated process. Some communities will work
together regionally, or in different ways, if given the ability
to choose and if treated fairly and equally.
9:11:47 AM
REPRESENTATIVE KITO III surmised if the state is recognizing
tribes as individual sovereigns, it would be important that the
tribes have some written structure for their laws, which the
state could recognize and work with, rather than "not knowing
what kind of legal structure that tribe might have."
MR. EID opined that Native nations should still be allowed to
choose, because they have federal status and the right is not
optional because "the fact that they lost the land base did not
take away their authority as sovereigns in the United States."
Some Alaska Native nations already have very developed legal
systems and thus may negotiate with the state so that they can
enforce laws such as those involving alcohol or domestic
violence protection. Others may want to wait, but the nations
have their choice and will act responsibly at the local level.
Mr. Eid agreed with Mr. Geraghty that the constitutional rights
of everyone must be protected and there are ways to do so, such
as cross-deputation. He restated that these issues must be
addressed on a government-to-government basis between the state
and the Alaska Native nations. At this time, because
recognition of the nations is unclear, there is confusion and
hardship in federal law; for example, there was no reason to
exempt Alaska from VAWA. Mr. Eid emphasized that [tribes] do
not have to have land status to enforce local laws. The
commission maintains that if a tribal court has a process for
issuing restraining orders, said orders should be enforced and
the rights of women protected.
9:15:37 AM
DAVID AVRAHAM VOLUCK, Judge, Tribal Court, Central Council
Tlingit & Haida Indian Tribes of Alaska, informed the committee
he also serves as a judge for the Sitka Tribe of Alaska and as
presiding judge for St. Paul Island in the Pribilof Islands.
Judge Voluck said the tribes with which he is affiliated "on the
continuum, [are] more developed," have full written codes, and
have been successful in receiving U.S. Department of Justice
(DOJ) funds; in fact, between the three tribes, about $1.5
million in federal funds have been provided to the state in
support of tribal justice for Native people and rural
communities. In Juneau, a grant was secured to build a family
safety court. He agreed with Mr. Geraghty that Natives living
in an urban area have equal access to justice services and the
court system; however, the systems put in place by the Anglo-
American legal system are foreign to many of the cultural life
ways of the indigenous Native people. The areas of domestic
violence and sexual assault are deeply sensitive issues, and the
existing court system is frightening and callus to Native women.
Therefore, having a culturally appropriate venue and forum
increases the likelihood that victims will reach out for help.
Judge Voluck said his interest as a tribal judge is not to
foreclose the opportunity for access to the state courthouse,
but to create another path. It is undisputed that there is a
"human crisis on our hands in the state" and to add a few more
public safety officers is not what the state needs. Adding
another forum for Native people is essential, as demonstrated by
the family safety court in Juneau which hears domestic violence
protection orders which are taken to the courthouse to be
registered, and then served by DPS personnel and municipal
police officers. He advised that women are grateful for a more
user-friendly forum in which to handle very sensitive issues.
Conversely, he disagreed with Mr. Geraghty, and said that VAWA,
Section 910, is not a clarifying measure, but is instead a cloud
that creates ambiguity. For example, one of the exemptions for
Alaska Native women and families was that a tribal court could
issue a civil protective order on anyone. As a result of
Section 910, Alaska Native women are the only class of women in
the U.S. who were singled out for disparate and unequal
treatment under the aforementioned law. Judge Voluck stressed
the importance of this issue - especially pertaining to domestic
violence - because the state cannot afford to lose one minute in
what could be a matter of life or death in the case of an Alaska
Native women whose batterer is non-Native or a nonmember. Due
to the effect of the exemption to this law, he said "If you want
something that's airtight, if you want something that's
guaranteed full faith and credit ... with the new law, I'm not
sure I can give [an Alaska Native woman] that. ... And I think
that should be disconcerting to anybody in this room that cares
about our families, Alaska families."
9:22:44 AM
JUDGE VOLUCK continued to say that he also works on diversion
courts and is encouraged by the attorney general's support of
early intervention to keep youth out of the justice system and
off of [the Alaska Court System online record] CourtView. He
told of youth at the diversion court in Sitka who were grateful
to be given a second chance that restored their ability to enter
the military, which had been denied because of minor consuming
violations. In addition, diversion courts can spend the time
necessary to turn a minor consuming violation into a life-
changing educational event, versus "a slap on the hand, a fine,
and a blemish on CourtView." On a different point, Judge Voluck
disagreed with Mr. Geraghty's statement that his department has
not actively been discouraging tribal courts, but has focused
its opposition on issues concerning land-based claims, Indian
country, and ANCSA. Judge Voluck emphasized that in his
experience, tribal courts issue child support orders for
children in need, and have nothing to do with taxing and zoning
land. He pointed out that the Alaska Court System has made
clear that tribal courts have inherent retained sovereignty over
their families, and their sovereignty has nothing to do with
reservations or boundary lines. However, the state continues to
battle over this issue, which has gone to the Alaska Supreme
Court for a decision on whether tribal courts can issue child
support orders for a tribal child. He posited this "is a grave
waste of your resources and it is a grave waste to the very
generation that we're all sworn to try to raise up." He advised
that child support is a national mandate because children who
are provided for have an increased chance to escape
demographics. Judge Voluck expressed his lack of understanding
as to why tribal courts encounter opposition from DOL over their
authority to issue child support orders. He stated that the
state is fighting its own citizens, which is counterproductive
because tribes provide resources and the ability to deal with
local concerns in ways that are fundamentally different and
shown to be effective. In fact, Western legal systems are
turning to Native American traditional justice practices to
unclog dockets and address dissatisfaction with the Anglo-
American legal system. His experience is that tribal courts
statewide go out of their way to be fair and to maintain due
process for all. In response to an earlier question, Judge
Voluck explained that when a nonmember is brought before him in
a tribal court, he/she is welcomed in as a guest, given Judge
Voluck's oath to treat him/her with the utmost fairness, and is
encouraged to ask questions. In 99 percent of cases, nonmembers
have stayed before the tribal court, because tribal courts are
known to be trustworthy and helpful. Judge Voluck returned
attention to the Renkes opinion, and said, "And so the Renkes
opinion, as far as I can tell, is still the official opinion of
the Department of Law." He emphasized that "the supreme court
said it was flat-out wrong" and, even though there has been
progress, he urged for a "paradigm shift, that you remove the
old vestiges of the Indian wars that are being waged in your
courts." He highlighted the savings brought to the Office of
Children's Services (OCS), Department of Health and Social
Services, and to the Alaska Court System by utilizing tribal
courts so that the tribes can intervene early, and encouraged
further savings by stopping the ongoing litigation. Judge
Voluck closed, suggesting renaming the agreements from "limited
delegation agreements" to "intergovernmental agreements" due to
the paternalism implied by "delegation," and thereby allow
parties to join in negotiations as partners.
9:31:25 AM
CO-CHAIR LEDOUX asked whether Judge Voluck considered state
agreements with tribal courts similar to the situation in New
York City, where Orthodox Jewish marriage agreements under
Talmudic law are enforced by municipal courts.
JUDGE VOLUCK said yes. Although there are similarities, he
cautioned that the agreements in Alaska are with sovereign
Native nations which are governments, and thus the agreements
must be government-to-government. Referencing his book "Alaska
Natives and American Laws," co-authored with David Case, he said
the federal government has said that Alaska Native tribes are
not different than Lower 48 tribes and hold all of the same
privileges, immunities, and authorities. The Alaska landscape
is different, but "legally, a sovereign tribe is a sovereign
tribe."
CO-CHAIR LEDOUX suggested that some are "too hung up" on the
idea that tribes must have land. She expressed her belief that
a local government that can solve problems in a cultural and
local way is more important. In a similar manner, perhaps
parties are "too hung up in the sovereign-to-sovereign" idea,
instead of solving problems.
JUDGE VOLUCK spoke of how during the establishment of the
reservation system, when government moved east to west with the
settlement of the U.S., laws were "calcified around this idea of
land." The Alaska Supreme Court has ruled that the question is
more fluid than just about land. He agreed with Co-Chair
LeDoux's warning of "losing the forest for the trees."
9:36:03 AM
AURORA LEHR, Vice President, Alaska Federation of Natives (AFN),
stated that her testimony is a continuation from a previous
hearing and expressed her appreciation for the participation of
Mr. Geraghty and legislators. She informed the committee that
an AFN organization, the Council for the Advancement of Alaska
Natives, is comprised of leaders from regional nonprofits and
statewide entities that serve Alaska Natives. The council has
established public safety in rural Alaska as a priority, and has
issued its recommendations in a summary of the document
entitled, "A Roadmap for Making Native America Safer - Public
Safety in Alaska as Seen Through an Independent Lens," provided
in the committee packet. Most of the council's recommendations
have been addressed by other speakers, however, she said the
council's first recommendation or goal is that there needs to be
a real partnership between the state and the tribes based on the
understanding that said partnership is not a loss of authority
for the state, but a gain of untapped resources. Ms. Lehr
stated that most parties have agreed that it is time to make a
change, move forward, and to seek creative approaches to
problems. She reminded the committee that the ILOC report is
not the first commission or report to cover the extreme living
conditions in rural Alaska and the [lack of] access to
resources, judicial resources, and public safety. Furthermore,
she urged for a close review of the recommendations made by
prior commissions, and for the reinstatement of the Millennium
Agreement as a part of active policy to be followed by state
agencies. Ms. Lehr also urged for revocation of the Renkes
opinion, and clarity from the legislature and DOL. She said AFN
is very supportive of intergovernmental and cross-jurisdictional
agreements between tribes and the state, such as the agreement
underway between the state and TCC. She mentioned smaller,
technical improvements that can be made. In closing, Ms. Lehr
restated AFN's support for repealing Section 910 of VAWA through
the proposed Safe Families and Villages Act of 2014, or by other
Congressional legislation.
9:42:18 AM
CO-CHAIR NAGEAK, after ascertaining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE HERRON referred to a letter [not provided] Mr.
Geraghty has written to the U. S. Senate Committee on Indian
Affairs opining that tribes should not be allowed to take their
lands into trust because that would lead to pollution and
increased public safety problems. He asked for an explanation
of Mr. Geraghty's position.
MR. GERAGHTY said the letter regarding the "Carcieri fix"
suggested [pollution and public safety were] "one of the issues
that could arise," by the creation of an archipelago made from
the number of allotments totaling several million acres
throughout the state. He emphasized that Alaska is one state,
even though there are 229 federally recognized tribes with which
the state should - and does - have government-to-government
relations. Furthermore, the fact that the state is in
negotiations with tribes implicitly recognizes their
governments. Mr. Geraghty explained that the Carcieri fix
refers to a 2009 U. S. Supreme Court decision, Carcieri v.
Salazar, and other states also have issues in that regard;
however, he denied that his letter said taking lands in trust
would lead to the abovementioned issues. Mr. Geraghty cautioned
against creating a "patchwork quilt" of jurisdiction throughout
the state, and questioned whether local tribes have the
resources to deal with all of the regulatory issues surrounding
land, such as leasing land to developers.
9:45:10 AM
REPRESENTATIVE HERRON turned to the safety corridor to Cold Bay
proposed by his constituents in the King Cove area, and the
related legal challenges. He stated that DOL has issued a 180-
day notice of intent to sue the federal government over the
proposed safety corridor through the Izembek National Wildlife
Refuge using [Revised Statute 2477]. He said his constituents
in King Cove have chosen not to challenge U.S. Interior
Secretary Sally Jewell's decision [not to allow construction of
a road through the Izembek National Wildlife Refuge] by building
a road, because they do not want to break the law. However, the
residents of King Cove believe that Secretary Jewell "broke the
law, the Congressional Act" and ignored the Interior
Department's trust responsibility. He asked whether Mr.
Geraghty considered challenging the Jewell decision on behalf of
the residents of King Cove and the state, on the grounds "that
she violated the trust responsibility and broke the law per
court decisions and the Act of 2009."
MR. GERAGHTY advised that Secretary Jewell's decision is subject
to an active review at the moment and "all avenues are being
pursued." He clarified that the state's 180-day notice of
intent to sue does not mean the state will sue on a R.S. 2477
claim, although that is an option. Mr. Geraghty affirmed that
the Alaska Congressional Delegation and the administration
disagree with Secretary Jewell's decision and all remedies to
reverse the decision are being explored.
REPRESENTATIVE HERRON stated his belief that Secretary Jewell's
decision is "particularly annoying" because the secretary has
violated her trust responsibility to Alaska Natives, and thereby
indicated the federal government's attitude toward Alaska
Natives and all Alaskans.
MR. GERAGHTY said he has discussed the Izembek National Wildlife
Refuge on each of his three visits to the Secretary of the
Interior.
9:48:38 AM
CO-CHAIR NAGEAK observed that the federal government's
departments and agencies make decisions regarding access to
lands. The departments and agencies come into areas that are
owned by Native people, or federal wilderness areas, and the
agencies set aside land for certain activities. Placing
restrictions on activities usurps the power of Congress by
restricting access and activities, although activities and
access are mandated by federal law. He asked for the state's
remedy against action in which restrictions on land that is
owned by residents are mandated by agencies, and not by
Congress.
MR. GERAGHTY said he shared Co-Chair Nageak's frustration and
noted that DOL has challenged a number of decisions. This is a
political issue in that if agencies overstep their bounds,
Congress should act to rein them in. However, Congress is
gridlocked and unable to reach a decision. For example, after
the U.S. Supreme Court overturned the Ledbetter v. Goodyear Tire
& Rubber Co. case, Congress passed the Lilly Ledbetter Fair Pay
Act of 2009, thus Congress has the ability to provide checks and
balances when agencies "act in a vacuum," although challenging
agencies in court is a very difficult issue.
CO-CHAIR LEDOUX returned attention to the New York City example
of shared jurisdiction between the municipality and Talmudic
law, and requested that Mr. Geraghty research whether courts
would enforce a prior agreement made by residents to abide by
tribal law.
MR. GERAGHTY agreed. Then calling attention to his earlier
testimony, he acknowledged that the book review sent to him by
Mr. Eid was of the book entitled, "Alaska Natives and American
Law," by David Case and Judge Voluck.
CO-CHAIR LEDOUX gave another example of individuals agreeing in
advance to certain terms, and thereby waiving their rights.
9:54:53 AM
ADJOURNMENT
There being no further business before the committee, the House
Community and Regional Affairs Standing Committee meeting was
adjourned at 9:55 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Indian Law & Order Commission Report.Roadmap.Ch 2.pdf |
HCRA 4/8/2014 8:00:00 AM |
Indian Law & Order Commission Report |
| Indian Law & Order Commission Report Fact Sheet.AFN.pdf |
HCRA 4/8/2014 8:00:00 AM |
Indian Law & Order Commission Report |
| Indian Law & Order Commission Report.Summary of Roadmap 012014.pdf |
HCRA 4/8/2014 8:00:00 AM |
Indian Law & Order Commission Report |
| Indian Law Order.Lttr of Support.Native Village of Eek.pdf |
HCRA 4/8/2014 8:00:00 AM |
Indian Law & Order Commission Report |
| Indian Law & Order Commission Report.AFN Recs for CRA hearing.pdf |
HCRA 4/8/2014 8:00:00 AM |
Indian Law & Order Commission Report |