Current Issue

  • Volume 36,
  • Number 1 -
  • June 2019

Note from the Editor
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Articles

“Actual” and “Constructive” Possession in Alaska: Clarifying the Doctrine
Chad Flanders
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In two cases, one recent and one now nearly a decade old, Judge David Mannheimer has raised important questions about Alaska’s jury instruction on “possession.” In particular, Judge Mannheimer has expressed a worry that Alaska’s definition of “constructive possession” invites juries to find possession where the defendant is only near an object and has knowledge of its presence. As Judge Mannheimer correctly points out, such a definition is too expansive. But how can we avoid this problem?

My short article takes Judge Mannheimer’s opinions in Alex v. State and Dirks v. State as the starting point for an investigation of Alaska’s possession doctrine. After summarizing the two opinions in Part II, Part III attempts to clarify the seemingly straightforward idea of “actual possession,” and finds that many courts wrongly treat many cases of actual possession as cases of constructive possession. Part IV tries to provide a solution to the problem—as presented by Judge Mannheimer—with Alaska’s instruction on constructive possession. It offers that the key to constructive possession is not the idea that one intends to have control over an object, but that one has a legal right (or the functional equivalent of a legal right) over the object, or the space where the object is. If we understand this idea of “authority” as essential to constructive possession, it turns out that pure cases of constructive possession are actually quite rare, and that many supposed cases of constructive possession are really cases of past actual possession. Part V proposes a new jury instruction on actual and constructive possession.

Pathway to Permanency: Enact a State Statute Formally Recognizing Indian Custodianship as an Approved Path to Ending a Child in Need of Aid Case
Courtney Lewis
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Alaska has a disproportionate number of Alaska Native youth in foster care, and an overburdened and understaffed state child welfare agency. This Article argues that Alaska should enact a state statute to provide clear guidance to state child welfare practitioners and state courts that Alaska’s state government recognizes an Indian custodianship created through Tribal law or custom as a pathway for Indian children to exit the overburdened state foster care system. Alaska’s state government has progressed from initially refusing to recognize Tribal family law to recognizing a Tribal adoption as a pathway for an Indian child to exit the state foster care system. Extending the explicit recognition to Indian custodianships is the next logical step and has the added benefit of reducing the burden on the distressed state child welfare system. A state statute is the best mechanism for achieving this extension because a review of the history of Alaska’s executive branch and Tribal recognition shows the problems of determining state-Tribal relations through the executive branch of government alone, and the legislature, vested with the duty to create law, is the appropriate branch to provide legal guidance.

Notes

Caught Between Superpowers:Alaska’s Economic Relationship with China Amidst the New Cold War
Sam Karson
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In recent years, Alaska has developed an increasingly robust economic relationship with China. China is the largest foreign buyer of Alaskan goods and China continues to invest in Alaska and promote Alaskan tourism. Meanwhile, the U.S. federal government’s relationship with China has deteriorated over concerns that China poses a danger to U.S. national security. As the U.S. federal government continues to scrutinize Chinese investment and trade with the United States, Alaska’s economic relationship with China increasingly hangs in the balance. Alaska’s relationship with China thus joins a long history of economic ties between states and foreign nations that pose conflicts of interest for the U.S. federal government. Beginning with the ratification of the U.S. Constitution and leading up to the present, the states have staked out a role as advocates on behalf of their citizens in promoting economic ties with foreign nations. This Note argues that the anti-commandeering doctrine provides constitutional protection for Alaska’s promotion of its economic relationship with China from interference by the U.S. federal government. While the federal government may itself regulate commerce between Alaska and China, the federal government may not muzzle the Alaska state government and prevent it from promoting commerce with China. While this state of play might seem like a hollow victory for Alaska, the anti-commandeering doctrine requires the federal government to take action itself — rather than coerce Alaska to take action — and thus forces the federal government to expend greater political capital in passing a law or regulation. The anti-commandeering doctrine thus properly apportions political accountability among the state and federal governments and makes federal intervention less likely.

Protecting Passenger Fees: Reawakening Congress’s Tonnage Clause Authorization Powers
Bradley Russian
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For 20 years, the City of Juneau has collected passenger fees from cruise lines that enter its port. These fees are assessed based on the number of passengers that arrive on each cruise vessel, and amount to $8.00 per passenger. On December 6, 2018, in Cruise Lines International Association Alaska v. The City and Borough of Juneau , the U.S. District Court of Alaska held that Juneau’s use of the passenger fees violates the U.S. Constitution’s Tonnage Clause. Rather than appeal the decision, the City of Juneau subsequently settled the litigation with the cruise lines. This Note will examine Juneau’s passenger fees in light of the Tonnage Clause. It will argue that because Juneau and the State of Alaska depend on these fees and other tourism revenue, Alaska policymakers should lobby Congress to use its Tonnage Clause authorizing powers to grant Alaska port cities the authority to charge set passenger fees to visiting cruise lines. Part One will analyze the Court’s historical understanding of the Tonnage Clause. Part Two will examine the litigation, the court’s decision in Cruise Lines International, and the recent settlement between the City and the cruise lines. Part Three will consider how this case may disrupt Alaska’s tourism industry and economy and will focus on other Alaska laws that may be invalidated on the basis of this decision. Part Four will propose a model law for passage by Congress, to help Alaska work around the holding in Cruise Lines International.

Comment

League of Conservation Voters V. Trump: A Potential Blueprint to Challenging Environmental Policy Rollbacks
Nick Buchta & Quentin Jorgensen
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This Comment examines the recently rejected motion to dismiss in League of Conservation Voters v. Trump and its potential to serve as a roadmap for environmental organizations seeking to challenge regulatory rollbacks by the Trump administration. In 2017, President Donald Trump issued an executive order reversing the designation of 128 million acres of ocean as protected from oil and gas leasing. The League of Conservation Voters, along with other environmental activists, sued to enjoin the rollback, and administration officials subsequently filed a motion to dismiss. This Comment focuses on the issue of Article III standing in the case, wherein the plaintiffs must allege (1) an injury in fact that is (2) fairly traceable to the challenged conduct and (3) that a favorable judicial decision will likely redress. Prior to League of Conservation Voters, case law had not established injury in fact on the basis of potential harm to public lands caused by government deregulation. Thus, the ruling that such an injury can be established—even over an area 128 million acres in size—reflects an opportunity for environmental activists attempting to stop rollbacks.

Hunt V. Kenai Peninsula Borough: The Search For Clarity In Legislative Prayer Speaker Selection
Charles Truslow & Craig Jones
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In 2016, three residents of the Kenai Peninsula Borough were prevented from delivering an invocation at a Borough Assembly meeting because they were neither borough chaplains nor members of a qualifying religious association. These three residents sued the borough, claiming that the Borough Assembly’s speaker selection policy violated the Alaska Constitution’s Establishment Clause. The superior court ruled for the plaintiffs, holding that the selection policy constituted a step towards the establishment of a state religion. Applying Supreme Court precedent, the superior court reached the correct result. However, the limited amount of federal precedent on the principles guiding speaker selection policies has led to significant variance of application in different jurisdictions. Important questions remain regarding the scope of legislative prayer doctrine in Alaska, which still need to be addressed.