Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years After ANCSA
Gregory S. Fisher & Erin “Faith” Rose
In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable the ANCs to promote the interests of their shareholders, Congress exempted ANCs from certain employment restrictions contained in Title VII of the Civil Rights Act, but did not exempt ANCs from other worker-protective legislation. In subsequent decades, courts reviewing the preferential practices of ANCs have often construed these statutory exemptions narrowly, thus exposing ANCs to liability under various anti-discrimination statutes. This Article argues that Congress never intended to subject ANCs to these pieces of worker-protective legislation, despite court holdings to the contrary. The Article proposes two possible solutions to this discrepancy: (1) congressional amendment of ANCSA to clarify and further limit the extent of ANC liability; and (2) judicial adoption of a two-part test which would consider employment policies giving preference to Alaska Native shareholders in light of Congress’s intent to protect such preferences.
Lay participation is a conventional, but little examined, aspect of Alaska’s administrative law tribunals. The legal community is sometimes suspicious of lay members’ competence, leading to a trust gap between legal professionals and their lay counterparts. With the goal of bridging this divide and shedding light on participants’ perspective of serving on tribunals, this Article reviews the first survey study of Alaska lay members on state adjudicatory panels. Among other things, the survey focused on tribunals’ gender and ethnic diversity, members’ understanding of fairness and impartiality duties, their training, and the relationship lay participants had with administrative law judges. As detailed within this Article, the survey’s results offer important findings that can help the legal community understand its interaction with lay participants. The Article also considers starting points for improving involvement on tribunals by lay members, who altogether appear to take their roles seriously.
Reducing Black Carbon from Wood Burning in Fairbanks, Alaska
Kristine J. Beaudoin
Fairbanks, Alaska has been home to air quality concerns for years. Heat sources like wood boilers emit black carbon, a pollutant akin to soot. In Fairbanks’s harsh winters, black carbon is trapped close to the earth and creates health problems for residents. Black carbon has a more global effect as well, however, and climate scientists have recently begun to consider reducing black carbon emissions as a viable way to slow the pace of climate change. Fairbanks is uniquely situated to react to this call for action. Reducing black carbon emissions from wood burning in Fairbanks would not only contribute to the greater fight against climate change, but would alleviate significant local air quality and health concerns. This Comment summarizes the issue of black carbon in Fairbanks, and proposes several legal approaches to mitigate its negative environmental and health effects, including public nuisance claims, local regulations, and stricter compliance with federal environmental laws.
Alaska is in the minority of states that apply felony charges based on a defendant’s history of misdemeanor violations. This approach to the challenges of criminal recidivism, however, creates both constitutional and prudential problems. While Alaska enjoys considerable latitude in its sentencing policies, this form of misdemeanor reclassification raises concerns about proportionality under the Eighth Amendment, double jeopardy under the Fifth Amendment, and poses dilemmas for participants in the pleabargaining process. This Note examines these problems and proposes a graduated approach to sentencing enhancement. By increasing punishment gradually and preventing recidivist misdemeanants from crossing the misdemeanor-felony border as quickly, Alaska could secure the benefits of recidivism statutes while avoiding the constitutional and prudential concerns present in existing law.
The public interest exception to Alaska’s loser-pays attorneys’ fees rule has been overruled, but, under Rule 82(b)(3)(I), courts may still vary fee awards on a case-by-case basis to avoid deterring future litigants. The result of this transition is that the costs of litigation are highly unpredictable for prospective plaintiffs. While the cases that developed the public interest exception are no longer good law, their logic does offer some guidance for judges wishing to protect court access. Even if courts tend to follow these principles, however, plaintiffs will remain unable to adequately gauge the costs of undertaking a lawsuit until new doctrine is developed that alleviates the uncertainties of the current regime. For plaintiffs bringing particular types of claims, Alaska’s courts may be an insuperably risky destination. Even meritorious claims can become bad investments when the potential costs too significantly outweigh the prospective benefits.