The Corpus Juris of (Alaska Native) Inherent Tribal Sovereignty
Nazune Menka
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The inherent Tribal sovereignty of Native nations predates the formation of the United States and is reflected in the constitutional vision of tripartite sovereignty. Yet their sovereignty is oft diminished explicitly by federal law or implicitly by federal courts. This implicit divestiture is often the result of the federal judiciary’s inconsistent interpretations of Indigenous Peoples law. This Article argues that a more principled and coherent approach for federal judges would be to consistently make use of the corpus juris, or whole body of law, including the in pari materia or affiliated statutes canon. The Article posits that the corpus juris of inherent Tribal sovereignty requires understanding whether any federal laws have explicitly abrogated or diminished a specific Native nation’s rights to traditional self-governance and understanding traditional Tribal law. The corpus juris inherent Tribal sovereignty approach illustrates how, where the Supreme Court has utilized the in pari materia canon, the consistency and coherence of Indigenous Peoples law increases. Through an analysis of select cases, involving Native nation traditional land and ways of life, I illustrate how Alaska Native nations have been particularly impacted by the explicit and implicit diminishment of traditional ways of life. However, through traditionally informed governance systems, Alaska Native nations continue to assert their inherent Tribal sovereignty, especially when faced with Alaska’s “sole state sovereignty” arguments in federal courts. The Article utilizes the corpus juris of inherent Tribal sovereignty argument and the constitutional vision of tripartite sovereignty to illustrate how the State of Alaska’s “sole state sovereignty” arguments must fail when utilizing this more coherent approach.
Anchoring Deference: The Chevron Doctrine, Loper Bright, and Alaska Administrative Law
Jon W. Katchen & Will R. Crowther
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After statehood, the Alaska Supreme Court operated on a blank legal slate. No Alaska precedent, for example, addressed the fundamental question of when courts should defer to an agency’s statutory interpretation. In addressing this issue, the Alaska Supreme Court largely adopted the framework developed by federal courts in the 1950s and 1960s, prior to the emergence of the Chevron doctrine. The federal case law from this era relied on nebulous standards to guide when an agency’s interpretations were subject to the deferential reasonable basis review. Not surprisingly, by adopting that federal jurisprudence, Alaska precedent suffers from the same shortcomings. And while the Chevron doctrine was designed to provide a more predictable analytical framework—based on the “fiction” that whenever a statute is ambiguous, courts are to presume that Congress implicitly delegated interpretative authority to the agency—the doctrine ultimately proved to be unworkable. The Supreme Court finally put an end to the Chevron doctrine in Loper Bright Enterprises v. Raimondo, which announced a test that shares common features with the Alaska Supreme Court’s. Namely, courts are responsible for determining the best reading of a statute but are to give weight to an agency’s interpretation when certain factors are present. Although this framework does not eliminate uncertainty regarding when an agency’s statutory interpretation is subject to the more lenient reasonable basis review, Alaskan courts can refine the jurisprudence in this area by examining how federal courts implement Loper Bright. Thus, Loper Bright has given the Alaska Supreme Court an opportunity to recalibrate its existing case law to achieve a more coherent and predictable jurisprudence.
Where There’s Fire, There’s Smoke: Regulation of Fine Particulate Air Pollution in the Fairbanks North Star Borough
Caleb T. Anderson
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In 2006, the U.S. Environmental Protection Agency strengthened the National Ambient Air Quality Standards (NAAQS) for 24-hour fine particulate air pollution (PM2.5). A large portion of the Fairbanks North Star Borough, encompassing the cities of Fairbanks and North Pole, was designated a Clean Air Act nonattainment area under the revised PM2.5 standards. Wood smoke from home heating was found to be one of the primary culprits, particularly during strong inversions that trap air pollution at ground level. This Article reviews the complex legal history of federal, state, and local efforts to bring the Fairbanks area into compliance with the NAAQS. With the EPA’s recent approval of Alaska’s State Implementation Plan, Fairbanks and regulators alike may soon be breathing easier.
“Parked Under the Influence” Is Not a Crime: Why the Alaska Supreme Court’s Broad Interpretation of “Operating a Vehicle” Is Wrong
Paul A. Clark
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In Jacobson v. State, the Alaska Supreme Court interpreted the word “operate” in Alaska’s driving under the influence statute to include sitting in a running, parked car. Jacobson was part of a national trend. In the last few decades, courts in about half of states have interpreted “operate” to mean “being in control of” or “exercising dominion over” a vehicle—for example, sitting in an unmoving vehicle. This judge-made law is controversial as it expands the definition of “operate” without legislative approval. As one dissenting justice put it in a case similar to Jacobson, “[t]he effect of the majority opinion is to create a new crime: Parked While Intoxicated.” This Article argues that the Alaska Supreme Court effectively created a new crime of being parked while intoxicated in Jacobson, despite a lack of legislative intent to do so. Further, the Court’s reasoning is flawed because 1) the statute’s plain meaning does not include being parked while intoxicated; 2) the Court analogized from out-of-state cases that were inapposite to the facts in Jacobson; and 3) the statute’s legislative history supports a narrower interpretation that criminalizes only driving under the influence. This Article will demonstrate that the statute simply codified the ordinary meaning of “operate” when the statute was passed, which was “to drive.” It concludes with a discussion of how the Alaska Court of Appeals has already begun to undermine the Jacobson ruling in the past decade.
Circumscribing Alaskan Law Enforcement’s Access to Pretrial Electronic Monitoring Location Data
Rosa Gibson
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In Alaska, pretrial detainees comprise much of the state’s prison population. Electronic monitoring—made possible by recent bail reforms—provides a pathway to pretrial release for those who cannot afford to pay bail. Using GPS data, the Pretrial Enforcement Division can monitor the location of a releasee’s ankle monitor for supervisory purposes. But when law enforcement seeks warrantless access to that data to investigate crimes other than the one for which a releasee is awaiting trial, that intrusion raises concerns under Alaska’s constitutional right to privacy. This Note argues that the Alaska judiciary, which is best positioned to guard the privacy of pretrial releasees in this area, should treat warrantless searches of this type as per se unreasonable, absent narrow exceptions. This Note posits that a reverse location search of pretrial electronic monitoring data for general investigative purposes constitutes a “search” under both the U.S. and Alaska Constitutions. Through the contextualization of Alaska’s use of electronic monitoring, analysis of the impact of Alaska’s constitutional right to privacy on the search inquiry, and analogy to the constitutionally suspect geofence search, this Note demonstrates that requiring a warrant for this data for investigative purposes is consistent with Alaska’s search-and-seizure jurisprudence. Acknowledging the inherent tradeoffs involved in pretrial release, this Note strives to establish a workable middle ground where law enforcement can access sophisticated tools in the interest of public safety without abandoning the privacy values the Alaskan people have enshrined in their constitution.
Alaska’s Hidden Gems: Advocating for the Protection of Deep-Sea Corals, Both in the Courtroom and Beyond
Lauren Beizer
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Coral reefs are ecologically, financially, and aesthetically one of the world’s greatest resources. Off the coast of Alaska, many unique species of deep-sea cold-water corals exist and provide various public health benefits, contribute vital ecosystem functions to their surrounding environment, and serve as economic tourist attractions. Alaska’s coral reefs are exceedingly valuable to the Earth due to their overall ecological value. However, these unique coral species significantly lack state and federal protections, which have recently been under consideration in several lawsuits at the federal level. American Oceans Campaign v. Daley and Oceana, Inc. v. National Marine Fisheries Service et al., are the main federal cases that examine the harmful fishing practices destroying coral reefs in Alaska. Still, questions remain regarding these cases, their respective outcomes and impacts post-litigation. How can stakeholders in the Alaskan fishing industry adapt their routine practices to prevent destruction to deep-sea cold-water coral reefs? Should lawmakers even be involved in this issue, considering the unique expertise involved in understanding complex fishing methods in colder waters? This Note will attempt to answer these questions through (1) a brief history of American law regarding state and federal precedential coral reef protections; (2) a description of the ongoing destruction to valuable coral reef species both in the U.S. and worldwide; (3) an in-depth examination of the federal case, American Oceans Campaign v. Daley; (4) public health considerations pertinent to the destruction of Alaskan cold-water corals; (5) legal implications of destructive fishing practice considered in Oceana, Inc. v. National Marine Fisheries Service et al.; (6) current actions of state and federal agencies to combat ongoing oceanic environmental destruction; and conclude with (7) proposed solutions to ensure the future survival of deep-sea cold-water corals in Alaska. As the legal issues continue to pile up, adequate action must be taken by both state and federal agencies to ensure the protection of one of Alaska’s most valuable resources.
