Metlakatla Indian Community Archives

Proponents fight for change so Alaska Natives covered by VAWA

Ishmael Hope, left, and other Alaska Native representatives at the 2013 Choose Respect rally in Juneau, Alaska, asking legislators to address issues with the Violence Against Women Act.Heather Bryant/KTOO Public Media

Complicated history sets Alaska Native women apart from Violence Against Women Act

Opponents of the reauthorization of a federal law passed last year say it has created a dangerous situation for Alaskan domestic violence victims and are urging lawmakers to support a repeal.

Proponents of the original 1994 Violence Against Women Act say it was signed into law with the purpose of providing more protection for domestic violence victims and keeping victims safe by requiring that a victim’s protection order be recognized and enforced in all state, tribal and territorial jurisdictions in the U.S.

According to the White House, the VAWA has made a difference, saying that intimate partner violence declined by 67 percent from 1993 to 2010, more victims now report domestic violence, more arrests have been made and all states impose criminal sanctions for violating a civil protection order.

Last year the law was reauthorized, clarifying a court decision that ruled on a case involving civil jurisdiction for non–tribal members and amending the law to recognize tribal civil jurisdiction to issue and enforce protection orders “involving any person,” including non-Natives.

But almost all Alaska tribes were excluded from the amendment, with only the Metlakatla Indian community from Alaska included under the 2013 law. The rest of Alaska remains under the old law.

The change has created confusion, opponents say, particularly in cases when there is a 911 call about enforcing a protective order.

“The trooper is waiting, because he’s not sure who has jurisdiction,” said David Voluck, a tribal court judge for the Central Council of Tlingit and Haida Indian Tribes of Alaska. “We need to get rid of those exceptions that create confusion.”

An ongoing debate

The reauthorization highlighted an ongoing debate about Native communities and tribal courts’ and governments’ jurisdiction, particularly in cases of policing and justice.

The reauthorization made sense, according to Alaska Attorney General Michael Geraghty, who noted that Alaska has always been treated differently because of the 1971 Alaska Native Claims Settlement Act. In exchange for 40 million acres of land and about $1 billion, he said, tribes forfeited reservations and the notion of Indian country to form Native corporations.

He said the state needs to find better ways to collaborate with institutions in small communities to provide better protection and justice but disagrees with giving pockets of tribal authority throughout Alaska.

“We do have an issue with violence and domestic violence,” he said. “We have a challenge in providing safety.”

But Geraghty said he has never heard of a situation when a victim was in danger because of confusion over jurisdiction.

“There’s nothing in the act that expands or retracts the jurisdiction of tribal courts,” he said. “If tribal courts had jurisdiction before, they do now. Troopers are not lawyers. If they are faced with a situation, they are going to protect the public. These concerns are overblown.”

‘A cloud over Alaska’

Lloyd Miller, an attorney who works on Indian rights and tribal jurisdiction litigation, disagrees and said things did change with the 2013 reauthorization.

“What he’s saying is that an Alaska village only has the authority to issue a protective order if that man is a member of the tribe. They can’t if he’s from the neighboring tribe,” he said. “Why would we not want to have Alaska villages have all the tools to protect women from domestic violence?”

Voluck agreed. “Does it really matter if a woman is hit in a mall somewhere or the south corner of where the tribe lives?” he said.

Opponents of the Alaska exemption recently urged a task force convened by Attorney General Eric Holder to study the effects of violence on Native American children to support the repeal of Section 910 of the law.

“VAWA creates a cloud over Alaska, and the last thing women and children need is a delay in an emergency,” said Voluck. “A matter of minutes can mean life or death. It’s unequal protection under the law for a very vulnerable part of the population.”

Lack of law enforcement

Voluck was one of a number of experts who testified last month before the Task Force on American Indian and Alaska Native Children Exposed to Violence about the special circumstances surrounding Alaska Native domestic violence, including geography, a lack of law enforcement and difficulty for victims to travel to safety.

Experts attested to a number of facts, including that Native American and Alaska Native women are 2.5 times as likely to be raped or sexually assaulted than other American women. About 140 villages have no state law enforcement. Eighty have absolutely no law enforcement. One-third of Alaska communities do not have road access.

It’s a serious issue for communities, said Valerie Davidson, a task force member who lives in Alaska. “Even if you only have 300 people, you still need law enforcement,” she said.

The debate continues, this time in Congress as the Senate Indian Affairs Committee works on legislation, which includes a provision repealing Section 910 of the 2013 reauthorization. Geraghty and the governor oppose a repeal, but the U.S. attorney general’s office has voiced its support.

Associate U.S. Attorney General Tony West attended the Alaska task force hearing and said arguments about the scope of authority of Alaska Native villages and tribes shouldn’t get in the way of protecting Native children from harm.

“If there are steps we can take that will help move the needle in the direction for victims, we need to do it,” he said. “When a tribal court issues an order, the state ought to enforce it. If not, the orders are worth nothing more than the paper they’re written on.”

More than just symbolic

Repealing the law won’t resolve the multilayered issues of jurisdiction, but it would be a step in the right direction, West added.

“It is more than just symbolic,” he said. “Repeal of Section 910 is an important step that can help protect Alaska Native victims of that violence and, significantly, the children who often witness it, and it can send a message that tribal authority and tribal sovereignty matters, that the civil protection orders tribal courts issue ought to be respected and enforced.”

The Task Force on American Indian and Alaska Native Children Exposed to Violence will make a recommendation to Holder by late October.

“Alaska is frozen in time,” Voluck said. “Why in the world would you hold the worst state when it comes to domestic violence in the old law? Forty-nine other states have figured out how to work with their tribal courts. Let’s work together. People are getting hurt and dying. That’s why I’m upset.”

Alaska Attorney General criticizes suggestions in report on Bush justice

By RICHARD MAUER

rmauer@adn.comApril 8, 2014

JUNEAU — Alaska Attorney General Michael Geraghty criticized a federal commission report on criminal justice in the Bush, declaring its suggestions that tribes should have autonomy for policing and holding court was little more than an invitation to create reservations in Alaska.

“It is an over simplification to suggest that forming reservations where tribes can exert exclusive jurisdiction is a solution to the problems that afflict Alaska’s Native peoples,” Geraghty told the House Community & Regional Affairs Committee on its second hearing into the November report by the U.S. Indian Law & Order Commission. “I disagree with many of their recommendations but not with the problem they have identified.”

That problem is Alaska’s high rates of domestic and sexual violence, and the glaring lack of law enforcement and security for villagers. The commission, mandated by Congress and appointed in 2010 by the White House and congressional leaders of both parties, reported its findings in November. It devoted a whole chapter on Alaska’s troubles, the only state it singled out for such treatment.

On the phone from Denver, the commission chairman, Troy Eid, told the committee that Geraghty was mischaracterizing the report’s conclusion. In calling for greater tribal autonomy, the commission wasn’t seeking reservation status for Alaska’s 229 federally recognized tribes, only one of which is on a reservation — Metlakatla.

Rather, Eid said, the commission said the state should recognize tribes as sovereign governments and that “Indian Country” — the federal term for describing where indigenous people have inherent authority — exists in Alaska. The should state encourage local governments to take over policing in the Bush and not insist on centralized, top-down control from regional hubs.

Geraghty said the state was experimenting in the Interior’s Tanana region with allowing tribal courts to have jurisdiction over non tribal members for some misdemeanors — but only when the defendant agrees, and only by treating the matters as civil cases without the possibility of jail time.

“My differences with the report should not obscure the most fundamental point: there’s more we can do and should be doing with tribes and in tribal courts in particular, to make these communities safer — I don’t quarrel with that point one iota,” Geraghty said.

But Geraghty’s term for the Tanana agreements — a delegation of authority — itself brought criticism from another witness, David Voluck, a tribal court judge and co-author of one of the leading books on laws affecting Alaska Natives.

“I vote that we reform the name of these agreements from limited delegation agreements to intergovernmental agreements,” Voluck said. “Even the word ‘delegation’ has a flavor of paternalism — that ‘OK, we’re going to let you do this now.'”

Rep. Sam Kito III, D-Juneau, asked Geraghty about how tribal courts now deal with cases in which a non-member of the tribe is a party.

Geraghty said that issue mainly comes up in child welfare cases, when tribes assume jurisdiction if the child is a member, even if a parent is not.

“There’s a case pending before the Alaska Supreme Court now involving the ability of a tribal court to exert jurisdiction over someone who’s never lived in the community and is not a member of the tribe, and the gentleman objected to tribal court jurisdiction on that basis, and he had his parental rights terminated,” Geraghty said.

Geraghty said he was referring to the case of Edward Parks, a member of the Stevens Village tribe who was convicted in state court in Fairbanks of kidnapping and brutally beating his girlfriend. Their child, “S.P.,” was enrolled in Minto and the Minto tribal court terminated Parks’ parental rights. The state intervened on his behalf in the Supreme Court, seeking to void the tribal court order declaring him an unfit parent because Minto shouldn’t have jurisdiction over him.

Geraghty told the committee he expected the case would clarify the rights of non-tribal members in tribal court.

Voluck testified that the state, by its challenges of tribal court orders, was actually showing hostility to tribal courts.

“One of the courts I work for issues something as controversial as child support orders, for children in need,” Voluck said, a touch of sarcasm in his voice. “We’re not locking up white people, I don’t have an electric chair, I’m not doing anything that’s frightening. I’m not taxing, I’m not zoning, it has nothing to do with land and everything to do with Native children.”

“Your state is battling us tooth and nail and we are now in the Supreme Court over whether it’s kosher for me to issue a child support order for a tribal child. This, ladies and gentlemen of this committee, I posit is a grave waste of your resources.”

The co-chairs of the committee, Reps. Ben Nageak, D-Barrow, and Gabrielle LeDoux, R-Anchorage, said they would continue to examine ways the Legislature could improve criminal justice in the Bush.

Reach Richard Mauer at rmauer@adn.com or (907) 500-7388.

Federal court holds Interior Secretary retains authority to make trust land acquisitions for Alaska Natives

This decision is a victory for all Alaska Tribes.

Tuesday, April 2, 2013

On March 31, 2013, the U.S. District Court for the District of Columbia issued an important ruling in Akiachak Native Community, et al. v. Salazar that affirms the ability of the U.S. Secretary of Interior to take land into trust on behalf of Alaska Tribes and also acknowledges the rights of Alaska Tribes to be treated the same as all other federally recognized Tribes.

In 2006, four Tribes and one Native individual—the Akiachak Native Community, Chalkyitsik Village, Chilkoot Indian Association, Tuluksak Native Community (IRA), and Alice Kavairlook—brought suit to challenge the Secretary of the Interior’s decision to leave in place a regulation that treats Alaska Natives differently from other Native peoples. On behalf of our clients, NARF and co-counsel Alaska Legal Services Corporation sought judicial review of 25 C.F.R. § 151 as it pertains to federally recognized Tribes in Alaska. This federal regulation governs the procedures used by Indian Tribes and individuals when requesting the Secretary of the Interior to acquire title to land in trust on their behalf. The regulation bars the acquisition of land in trust in Alaska other than for the Metlakatla Indian Community or its members. Plaintiffs argued that this exclusion of Alaska Natives—and only Alaska Natives—from the land into trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian Tribes. The State of Alaska intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act (ANCSA).

This decision is a victory for all Alaska Tribes. The ruling will allow Alaska Tribes to petition the Secretary to have non-ANCSA lands placed into trust and the opportunity to enhance their ability to regulate alcohol, respond to domestic violence, and generally protect the health, safety, and welfare of tribal members. To read the court’s opinion, click here.