Current Issue

Note From the Editor
PDF

Articles

Strangers in Their Own Land: A Survey of the Status of
the Alaska Native People from the Russian Occupation
Through the Turn of the Twentieth Century

Jon W. Katchen & Nicholas Ostrovsky
PDF

The federal government's scattershot treatment of Alaska Natives has long created confusion over the legal status and rights of Alaska Natives and Alaska Native entities. This confusion was center stage in the recent Supreme Court case, Yellen v. Confederated Tribes of the Chehalis Reservation, involving "Indian Tribe" entitlement to CARES Act relief funds. To better understand the reason uncertainty remains after more than 150 years since the purchase of Alaska from Russia, and more than sixty years after Alaska's statehood, we must look to the unique history of Alaska Natives. Starting in the mid-1700s, this Article surveys the laws relating to the Native people of Alaska through the Russian colonial rule, the Alaska purchase, and the early territorial government, culminating with the jurisprudence of the late 19th century. This Article explains how Russian laws contributed to the framework for the unique development of Indian Law in Alaska.

ANCSA Corporation Proxy Wars
Aaron M. Schutt
PDF

When Congress passed the Alaska Native Claims Settlement Act in 1971 (ANCSA), it directed the creation of twelve regional and over two hundred village corporations chartered under Alaska state law. The Act made governance of those corporations largely subject to Alaska state law, including the laws and regulations applicable to corporate elections. This Article reviews the legal history of the corporate proxy wars and related election issues that the ANCSA corporations and candidates for their boards of directors have waged over the past nearly fifty years in proxy complaints filed with the Alaska Division of Securities, and in state and federal courts. These cases have had important implications for ANCSA corporations, including enormous financial burdens associated with the litigation and impacting who has led ANCSA corporations.

Notes

Alaska’s Lengthy Sentences Are Not the Answer to
Sex Offenses

Margot Graham
PDF

Individuals convicted of sex offenses in Alaska are serving extremely long sentences in prison. The Alaska legislature made it impossible for those convicted of sex offenses to have their cases referred to three-judge panels for sentencing outside the presumptive sentencing range set by the legislature. The Alaska Supreme Court then held that different forms of sexual penetration are distinct and separate offenses, meaning that the associated charges cannot be merged and the sentences must run consecutively. Thus, Alaska has embraced lengthy sentences for sex offenses. Unfortunately, this punitive practice is doing little to protect Alaskan communities or rehabilitate the people who commit sex offenses. In fact, the Alaska legislature's decision to limit judicial discretion and, in turn, harshen sentences is rooted in unfounded and inaccurate assumptions about those who commit sex offenses. This Note proposes that Alaska's courts should be able to refer sex offense cases to three-judge panels for sentencing outside of Alaska's presumptive sentence ranges, that rehabilitation should replace over-punishment, and that prosecutors should not be able to stack offenses where redundant. Through these solutions, Alaska can protect its communities, help better rehabilitate those who commit sex offenses, and save taxpayer dollars through a more efficient and just criminal justice system.

It Takes a Village: Repurposing Takings Doctrine to
Address Melting Permafrost in Alaska Native Towns

Sasha Kahn
PDF

Dozens of Alaska Native villages face an existential crisis as Alaska's permafrost melts, causing soil erosion and instability. Adapting to these rapidly changing conditions is unworkable, so most villages will have to physically move to locations atop bedrock. The estimated costs for these moves are enormous, and not even the combination of available federal and state administrative resources can adequately cover them. One possible avenue for funding is a state inverse condemnation regulatory takings claim, which posits that state action has caused the property destruction in the villages. Alaska has a unique relationship to its oil extraction industry, which has demonstrably contributed to global climate change, the main cause of the permafrost melt. To facilitate a potential takings claim, this Note presents two possible avenues for argument: a "direct approach" that focuses only on state oil leases as government action and a "hybrid approach" that instead considers the leases as part of a more holistic investment by the state in its oil. This Note also considers the shortcomings of the overall takings strategy, along with the potential for its use in response to other cases of environmentally related property destruction.

The Plaintiff’s Plight: Altering Alaska’s Rule 82 to
Better Compensate Plaintiffs

Matthew Naiman
PDF

Alaska is unique among the fifty states in its use of a version of the English rule of attorneys' fees in civil cases. Alaska Rule of Civil Procedure 82, in combination with several other rules, effectuates a fee shift such that the losing party pays a portion of the winning party's attorneys' fees. Rule 82 has two fee schedules: one for monetary judgments and one for non-monetary judgments. The monetary judgment fee awards are based in part on the amount of the judgment, while the non-monetary judgment fee awards are based on the victorious party's actual, reasonable attorneys' fees. This difference in the way fee awards are calculated creates a disparity between plaintiffs, who seek damages, and defendants, who seek dismissal. While previous scholarship has noted this disparity, no commentator has proposed and defended a solution. This Note examines the English and American Rules historically and through a law and economics framework. It then analyzes Rule 82 and its companion rules. Ultimately, this Note concludes that the Alaska Supreme Court or the Alaska State Legislature should alter Rule 82 to create better parity between plaintiffs and defendants and cap the amount of fees that can be exacted from a defeated party.

Comment

Renewed Debate over Alaska’s Establishment
Clause: Hunt v. Kenai Peninsula Borough and the
Church of the Flying Spaghetti Monster

Mary Beth Barksdale
PDF

In 2019, a pastor of the Church of the Flying Spaghetti Monster, a "Pastafarian," raised concerns about the entanglement of Alaskan local government and religion. His commentary highlighted the need to take a fresh look at Alaska's establishment clause jurisprudence. While Hunt v. Kenai Peninsula Borough addressed legislative prayer, further questions remain open about the limits of public spending on religious institutions, the need to honor Alaska’s religious diversity, and the role of religion in everyday Alaskan government. While the Alaska jurisprudence has not changed much since the 1980s, the Pastafarians have demonstrated that establishment clause debates are alive and well. Therefore, Alaska may look to early constitutional debates in other states, like Massachusetts and Virginia, to evaluate its policy choices, balancing the esteemed place of religion in Alaskan society and the deep-seated belief in separation of church and state.

Current Issue

Note From the Editor
PDF

Articles

Strangers in Their Own Land: A Survey of the Status of
the Alaska Native People from the Russian Occupation
Through the Turn of the Twentieth Century

Jon W. Katchen & Nicholas Ostrovsky
PDF

The federal government's scattershot treatment of Alaska Natives has long created confusion over the legal status and rights of Alaska Natives and Alaska Native entities. This confusion was center stage in the recent Supreme Court case, Yellen v. Confederated Tribes of the Chehalis Reservation, involving "Indian Tribe" entitlement to CARES Act relief funds. To better understand the reason uncertainty remains after more than 150 years since the purchase of Alaska from Russia, and more than sixty years after Alaska's statehood, we must look to the unique history of Alaska Natives. Starting in the mid-1700s, this Article surveys the laws relating to the Native people of Alaska through the Russian colonial rule, the Alaska purchase, and the early territorial government, culminating with the jurisprudence of the late 19th century. This Article explains how Russian laws contributed to the framework for the unique development of Indian Law in Alaska.

ANCSA Corporation Proxy Wars
Aaron M. Schutt
PDF

When Congress passed the Alaska Native Claims Settlement Act in 1971 (ANCSA), it directed the creation of twelve regional and over two hundred village corporations chartered under Alaska state law. The Act made governance of those corporations largely subject to Alaska state law, including the laws and regulations applicable to corporate elections. This Article reviews the legal history of the corporate proxy wars and related election issues that the ANCSA corporations and candidates for their boards of directors have waged over the past nearly fifty years in proxy complaints filed with the Alaska Division of Securities, and in state and federal courts. These cases have had important implications for ANCSA corporations, including enormous financial burdens associated with the litigation and impacting who has led ANCSA corporations.

Notes

Alaska’s Lengthy Sentences Are Not the Answer to
Sex Offenses

Margot Graham
PDF

Individuals convicted of sex offenses in Alaska are serving extremely long sentences in prison. The Alaska legislature made it impossible for those convicted of sex offenses to have their cases referred to three-judge panels for sentencing outside the presumptive sentencing range set by the legislature. The Alaska Supreme Court then held that different forms of sexual penetration are distinct and separate offenses, meaning that the associated charges cannot be merged and the sentences must run consecutively. Thus, Alaska has embraced lengthy sentences for sex offenses. Unfortunately, this punitive practice is doing little to protect Alaskan communities or rehabilitate the people who commit sex offenses. In fact, the Alaska legislature's decision to limit judicial discretion and, in turn, harshen sentences is rooted in unfounded and inaccurate assumptions about those who commit sex offenses. This Note proposes that Alaska's courts should be able to refer sex offense cases to three-judge panels for sentencing outside of Alaska's presumptive sentence ranges, that rehabilitation should replace over-punishment, and that prosecutors should not be able to stack offenses where redundant. Through these solutions, Alaska can protect its communities, help better rehabilitate those who commit sex offenses, and save taxpayer dollars through a more efficient and just criminal justice system.

It Takes a Village: Repurposing Takings Doctrine to
Address Melting Permafrost in Alaska Native Towns

Sasha Kahn
PDF

Dozens of Alaska Native villages face an existential crisis as Alaska's permafrost melts, causing soil erosion and instability. Adapting to these rapidly changing conditions is unworkable, so most villages will have to physically move to locations atop bedrock. The estimated costs for these moves are enormous, and not even the combination of available federal and state administrative resources can adequately cover them. One possible avenue for funding is a state inverse condemnation regulatory takings claim, which posits that state action has caused the property destruction in the villages. Alaska has a unique relationship to its oil extraction industry, which has demonstrably contributed to global climate change, the main cause of the permafrost melt. To facilitate a potential takings claim, this Note presents two possible avenues for argument: a "direct approach" that focuses only on state oil leases as government action and a "hybrid approach" that instead considers the leases as part of a more holistic investment by the state in its oil. This Note also considers the shortcomings of the overall takings strategy, along with the potential for its use in response to other cases of environmentally related property destruction.

The Plaintiff’s Plight: Altering Alaska’s Rule 82 to
Better Compensate Plaintiffs

Matthew Naiman
PDF

Alaska is unique among the fifty states in its use of a version of the English rule of attorneys' fees in civil cases. Alaska Rule of Civil Procedure 82, in combination with several other rules, effectuates a fee shift such that the losing party pays a portion of the winning party's attorneys' fees. Rule 82 has two fee schedules: one for monetary judgments and one for non-monetary judgments. The monetary judgment fee awards are based in part on the amount of the judgment, while the non-monetary judgment fee awards are based on the victorious party's actual, reasonable attorneys' fees. This difference in the way fee awards are calculated creates a disparity between plaintiffs, who seek damages, and defendants, who seek dismissal. While previous scholarship has noted this disparity, no commentator has proposed and defended a solution. This Note examines the English and American Rules historically and through a law and economics framework. It then analyzes Rule 82 and its companion rules. Ultimately, this Note concludes that the Alaska Supreme Court or the Alaska State Legislature should alter Rule 82 to create better parity between plaintiffs and defendants and cap the amount of fees that can be exacted from a defeated party.

Comment

Renewed Debate over Alaska’s Establishment
Clause: Hunt v. Kenai Peninsula Borough and the
Church of the Flying Spaghetti Monster

Mary Beth Barksdale
PDF

In 2019, a pastor of the Church of the Flying Spaghetti Monster, a "Pastafarian," raised concerns about the entanglement of Alaskan local government and religion. His commentary highlighted the need to take a fresh look at Alaska's establishment clause jurisprudence. While Hunt v. Kenai Peninsula Borough addressed legislative prayer, further questions remain open about the limits of public spending on religious institutions, the need to honor Alaska’s religious diversity, and the role of religion in everyday Alaskan government. While the Alaska jurisprudence has not changed much since the 1980s, the Pastafarians have demonstrated that establishment clause debates are alive and well. Therefore, Alaska may look to early constitutional debates in other states, like Massachusetts and Virginia, to evaluate its policy choices, balancing the esteemed place of religion in Alaskan society and the deep-seated belief in separation of church and state.

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