Issues in Implementing Special Domestic Violence Criminal Jurisdiction in Alaska’s Tribal Courts
Until 2022, all but one of the 229 Alaska tribes were barred from special domestic violence criminal jurisdiction (SDVCJ): Congress’s jurisdictional tool for tribal courts to address domestic violence and hold perpetrators of violence against Alaska Native women criminally accountable. The reauthorization of the Violence Against Women Act (VAWA) in 2022 brought SDVCJ to Alaska’s rural Native communities. This landmark achievement was made possible by decades of advocacy from Alaska’s tribal, state, and federal leadership. In the wake of VAWA 2022, Alaska tribes and tribal justice systems face several significant legal, political, and cultural challenges. This Article outlines the legal and practical issues Alaska Native tribes face when implementing SDVCJ. To do so, this Article includes an overview of tribal jurisdiction under VAWA and Alaska Native tribes’ inclusion in VAWA 2022. This Article explores the lessons learned from the Lower 48 Tribes Accelerated Pilot Program, which was an accelerated pilot project that permitted specific tribes to begin exercising SDVCJ more than a year before the law was implemented for all tribes, and considerations based on Alaska’s ongoing public safety and domestic violence crisis, community needs and standards, and unique tribal law enforcement context. The Article also discusses how Alaskan tribes moving towards implementing SDVCJ in their courts may create Native-led, trauma-informed judicial processes for domestic violence survivors and communities in partnership with existing resources from Alaska Native-led civil organizations while including lessons learned from the Lower 48 Tribes Accelerated Pilot Program.
The Unique Promise of the Alaska Constitution: The Right to Rehabilitation
The Alaska Constitution creates a unique promise for those convicted of crimes. In Abraham v. State, the Alaska Supreme Court held that article I, § 12 grants offenders a “right to rehabilitation.” Such a right is uncommon; few states, if they have similar protections at all, have labeled it a right. In the years since Abraham, the Court has occasionally addressed claims invoking the right, making clear that its decision was not an aberration. The court’s most thorough examination of the right occurred this term in Department of Corrections v. Stefano. This article seeks to examine and clarify the current doctrine before arguing that litigants and the Court should continue developing the right to rehabilitation. What’s certain is that the right places due process limitations on the state’s ability to terminate an offender’s participation in formal rehabilitative programming or deprive an inmate of a benefit without providing a comparable rehabilitative alternative. But I argue that litigants should seek broader application of the right in other areas of the criminal justice system.
Indian Child Welfare Act: A Roadblock in a Native Child’s Pathway to Permanency
The Indian Child Welfare Act (ICWA) requires the testimony of a qualified expert witness to support, beyond a reasonable doubt, the termination of parental rights in cases involving Native children. Initially, Congress expressed a preference for qualified expert witnesses to possess intimate knowledge of Native tribes’ childrearing norms and practices. However, the permissive language of the 2016 Regulations has deemphasized this preference. Instead, the Alaska Supreme Court has interpreted the 2016 Regulations as requiring an expert to be qualified to testify about the mental, emotional, and physical wellbeing of children, therefore requiring formalized education in these areas of study. This has disqualified many Native witnesses who previously testified as experts based on their firsthand experience and knowledge of tribal norms. This resulted in many parental termination decisions being appealed, and eventually overturned, therefore increasing the time a Native child must wait to achieve permanency through adoption. As the nation awaits the U.S. Supreme Court’s ruling on the constitutionality of ICWA’s placement preferences, Alaska’s interpretation of the 2016 Regulations continues to prevent Native children from achieving permanency. The 2016 Regulations have permitted the Alaska Supreme Court to return to the standard it created under the 1979 Guidelines—a categorical determination that numerous ICWA termination hearings do not require expert cultural witness testimony.
State v. Cissy A., a recent Alaska Supreme Court decision, marks yet another change to the expert witness requirement. Cissy A. provides a return to ICWA protections that adequately encourage and respect tribal cultural norms and increase positive outcomes for Native children. However, this case is only a starting point. As such, this Note suggests that Alaska’s legislature should adopt its own state ICWA protections to better integrate Native voices in the parental termination process. In addition, this Note identifies and discusses concerns that lingered in Cissy A. and proposes ways these concerns could be addressed in the state ICWA provision.
Law Thrown Overboard: Direct Democracy and the Alaska Ocean Rangers
Alaska is one of the premier cruise destinations in the world. The vessels’ many amenities and luxuries, however, come with a price: cruise ships produce an inordinate amount of waste, most of which is dumped into the ocean. In 2006, Alaska voters passed a ballot measure establishing a program called the Ocean Rangers, which would monitor cruise ships in Alaskan waters to ensure that vessels were disposing of waste in accordance with state and federal law. In 2019, after an unsuccessful attempt in the state legislature to end the Ocean Rangers program, Alaska Governor Mike Dunleavy vetoed the entirety of the Ocean Rangers budget, effectively killing the program. This Note contends that because a ballot measure created the Ocean Rangers, Governor Dunleavy’s veto likely violated the Alaska Constitution. First, this Note discusses the environmental risks of unregulated dumping and the cruise industry’s historical lack of transparency in its waste management. Then, this Note distinguishes the Ocean Rangers veto from vetoes of other statutory program budgets in Alaskan case law. Next, this Note explains Alaska’s constitutional protection of initiatives that were enacted directly by voters and argues why Governor Dunleavy’s budget likely violated those protections. Finally, this Note postulates how potential litigants seeking to reinstate the Ocean Rangers could bring a case in state court under a citizen-taxpayer theory of standing.
Fishing in the Desert: Modernizing Alaskan Salmon Management to Protect Fisheries and Preserve Fishers’ Livelihoods
Many Alaskan salmon fisheries are in distress, threatening fishers’ livelihoods, food sources, and cultures. This crisis—and the few, blunt tools managers possess to address it— reveals that the current state and federal legal framework for salmon management is inadequate to protect fisheries’ health and preserve fishers’ livelihoods, especially as the ocean warms and the distribution of species within it significantly changes. First, the current framework’s regulatory tools, designed to combat human overuse of a single species, are poorly tailored to mitigating this multicausal, ecosystem-wide crisis. Current science indicates marine heatwaves, habitat degradation, and human use may be major culprits of salmon population decline, whereas existing fisheries management tools are largely designed to handle overharvesting and pit users against one another. A better framework would expand the toolset managers have at their disposal to combat these broader, ecological threats. Second, the tools managers do have within this framework impose the heaviest regulatory burdens on the poorest and most vulnerable, unfairly allocating the costs of managing a changing resource pool. Existing management tools often disproportionately burden the fishers who most directly rely on salmon to feed their families and support their communities. Moreover, as the ocean warms, fish habitats will shift and fish populations may even shrink overall. The users directly reliant on the fishery—subsistence fishers, small-scale fishers, businesses in rural villages, and Alaska Natives—are most vulnerable to changes in the resource stock itself. To protect these groups, a better framework would blunt regulatory tools’ impacts on these groups.
Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations
The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes’ sovereign powers.