The Loss of Territoriality and Community Safety

Although not natural resource focused, the fourth theme of loss that emerged throughout my research was the impact of the loss of territoriality on the ability of tribal governments to protect community safety. During the timeframe within which I conducted my research, I attended a number of public meetings where presenters and participants identified public safety as a matter of community wellbeing, and described the obstacles tribes face when seeking to secure their communities. At least two federal reports were issued during my research timeframe

CEUeTDCollection

that outlined how the lack of a land base resulted in stripping away tribal authority to regulate public safety within their communities, placing people at risk (Indian Law and Order Commission 2013; Attorney General's Advisory Committee 2014).

One of the stark examples of this loss emerged in reports and public testimony related to the U.S. Violence Against Women Act (VAWA). The Violence Against Women Act was first adopted in 1995 in order to bring victims of domestic violence and sexual assault under federal legal protection. Congress reauthorized VAWA in 2013 and included provisions specifically designed to extend tribal jurisdiction over domestic violence crimes committed on Indian lands for the first time (Violence Against Women Reauthorization Act of 2013, S. 47, 113th Congress, 2013-2015). Alaska tribes were specifically excluded from this provision because of the lack of Indian Country.

VAWA SEC. 910. SPECIAL RULE FOR THE STATE OF ALASKA

a. Expanded Jurisdiction—In the State of Alaska, the amendments made by sections 904 and 905 [i.e. recognition of civil domestic violence jurisdiction over “any person”]

shall only apply to the Indian country (as defined in section 1151 of title 18, United States Code) of the Metlakatla Indian Community, Annette Island Reserve.

By limiting application of expanded jurisdiction to “Indian Country,” VAWA curtailed the capacity for Alaska Native tribes to address the very real threats to public safety because of the lack on “Indian Country.” This meant that Alaska tribal governments, unlike other local governments in Alaska and unlike other tribes in the continental United States, lacked the authority to protect public safety in their community because they lacked the ability to govern the lands upon which their communities are located.

Alaska ranks first in the U.S. for suicide and intimate partner homicides, and more than half of Alaskan women have been victims of sexual violence. Only 39 of the 220 rural communities have courthouses, and most lack public safety personnel. Seventy-five of the more

CEUeTDCollection

than 220 villages have no law enforcement, and only one community has a shelter for domestic violence victims (Indian Law and Order Commission 2013, 39).

Alaska Native women are less than 20% of the state’s overall population and represent nearly half of all reported rape victims (Indian Law and Order Commission 2013, 41). Children are particularly susceptible to community violence, causing depression, anxiety, addiction, trouble in school, suicide, and more violence. Again, the statistics fall disproportionately on Alaska Native children, who comprise more than half of all maltreatment reports to child protective services and more than 60% of kids removed from their homes.

Report after report chronicles the deficiencies in public safety in rural, indigenous communities. In 2007, Amnesty International described barriers that deny indigenous women access to justice and perpetuate intolerable levels of sexual and domestic violence in Alaska (Amnesty International 2007). In 2012, the UN Special Rapporteur on Indigenous Rights identified “continuing system barriers to the full realization of indigenous peoples’ rights”

(Anaya 2012)

In November 2013, the Indian Law and Order Commission issued a report entitled “A Roadmap for Making Native America Safer.” Their findings recommend “reinforcing the power of locally based Tribal criminal justice systems” to address the lack of justice in Indian Country (Indian Law and Order Commission 2013). The report included a specific section on the State of Alaska because “the problems in Alaska are so severe . . . [they] are no longer just Alaska’s issues. They are national issues” (Indian Law and Order Commission 2013).

The Commission’s report included recommendations to make Alaska safer. Among these, the Commission called out VAWA’s failure to include Alaska Native tribes in its expansion of tribal jurisdiction as “unconscionable” and urged Congress to amend VAWA to treat Alaska

CEUeTDCollection

tribes in the same way as tribes in the continental United States. The Commission likewise called for expansion of criminal jurisdictional authority for Alaskan tribes. Ultimately, in December of 2014, the Congress amended the VAWA provision that excluded Alaskan tribes from the right to exercise sovereign authority over domestic violence relations (Alaska Native News 2014). Although the lack of Indian Country remains a tremendous obstacle for tribes seeking to assert criminal jurisdiction over domestic violence crimes, tribal governments are now able to issue domestic violence restraining orders that the state law enforcement system must recognize (Landreth 2015).

The lack of infrastructure available in communities to take steps to ensure public safety and wellbeing was highlighted in a report issued in November of 2014 by the U.S. Attorney General’s office. Relying on statistics provided to the U.S. Congress, that report made the following findings that all point to a lack of community wellbeing throughout rural communities:

 less than half of remote Alaska villages are served by trained State law enforcement entities and several Indian tribes utilize peace officers or tribal police without adequate training or equipment;

 the centralized State judicial system relies on general jurisdiction Superior Courts in the regional hub communities, with only a handful of staffed magistrate courts outside of the hub communities; and

 the lack of effective law enforcement and accessible judicial services in remote Alaska villages contributes significantly to increased crime, alcohol abuse, drug abuse, domestic violence, rates of suicide, poor educational achievement, and lack of economic development (Attorney General's Advisory Committee 2014).

In addition to issues of domestic partner violence, the Executive Branch of the Alaska State government does not recognize tribal authority over child welfare issues because of the State’s position that tribal authority is limited to: (1) the authority of tribes to determine tribal membership; and (2) the authority to regulate disputes involving child protection and child

CEUeTDCollection

custody when both parents and the child are members of the tribe (Geraghty 2013, 4) The state’s position is rooted in the lack of territoriality. “Land status is particularly important because tribal authority centers on the land held by the tribe and on tribal members within the reservation”

(Geraghty 2013, 6). Alaska tribes rejected a reservation style land settlement, therefore, the state Attorney General argues that the lack of “Indian Country” in Alaska means tribes lack the requisite nexus between lands and governance that would support their assertion of governance authority in areas beyond the two arenas listed above (Geraghty 2013, 2).

There are logistical as well as legal reasons behind the state’s reluctance to engage in government-to-government relations with Alaskan tribes.

Empowering over two hundred separate sovereigns with criminal jurisdiction would have serious consequences for both the State and its citizens. Such a change would create a confusing patchwork quilt of jurisdictions, undermine the clarity of the current system, and complicate the State’s ability to police its own territory. . . . without years of advance planning and coordination with the state, significant issues are also likely to arise given that many of Alaska’s 228 off reservation tribes currently lack justice infrastructure such as written codes, courtrooms or jails.

Moreover, the costs of suddenly empowering over two hundred separate criminal jurisdictions will ultimately be borne by the individuals subjected to tribal jurisdiction and . . . they would likely lack a remedy outside the tribal context (Geraghty 2013, 7-8).

In response, the Indian Law and Order Commission Report found that the question of how to combat high rates of domestic violence depends less on geography and more on the willingness of the State to recognize tribes as partners in this effort.

Alaska's approach to criminal justice issues is fundamentally on the wrong track. The status quo in Alaska tends to marginalize and frequently ignores the potential of tribally based justice systems, intertribal institutions, and organizations to provide more cost-effective and responsive alternatives to prevent crime and keep all Alaskans safer. If given an opportunity to work, Tribal approaches can be reasonably expected to make all Alaskans safer – and at less cost (Indian Law and Order Commission 2013, Ch. 20).

CEUeTDCollection

The state’s opposition to the exercise of tribal jurisdiction over domestic violence crimes erects a serious obstacle to the ability of tribes to govern the wellbeing and safety of their own communities. As the ILOC report finds, the lack of a geographical base from which to root tribal authority does not condemn the ability of tribes to work as sovereign partners on these vital issues. The 2014 Defending Childhood report issued by the U.S. Attorney General stated, “these issues must be addressed at the local level, with the state working in partnership with tribes, to build local capacity to address public safety and access to justice” (Attorney General's Advisory Committee 2014, 136).