July 2, 1997

Jimmy Boan

Jimmy Boan was banished from Kipnuk after he refused to comply with the village's search policy. Village leaders say banishment is a traditional method for dealing with repeat offenders. Boan said his constitutional rights were violated, but got no response. (Anchorage Daily News photo by Anne Raup)

Get out of town

Tradition, law allows tribes to banish troublemakers

By Tom Kizzia
Daily News reporter

KIPNUK -- Tribal police officers escorted Jimmy Boan past the bell in front of the Moravian church and out of the village. In all directions, the tundra and the sea were a single flat line of white. The only civilization was at Boan's back.

An airplane waited. Boan didn't want to go.

He had been banished.

He was a white man living in Kipnuk with his Eskimo girlfriend -- until two years ago, when the Yup'ik tribal court expelled him as a troublemaker. Tribal officials said he pointed guns at people, brought in drugs and refused to follow the rules in the conservative, straight-laced village on the Bering Sea coast.

Boan said he was targeted because he refused to comply with an unconstitutional search of his baggage at Kipnuk's airport. He said they were after his girlfriend because she dared to criticize tribal leaders. He told the council they had no right to expel an American citizen.

They surrounded his house with snowmachines at night and cut off his electricity. When he finally left, he took a civil rights complaint to state and federal officials.

In Indian country, no issue cuts to the heart of self-determination like the power to decide who gets to live there.

For Indian country advocates, it is a fundamental right under federal Indian law and an essential tool of local control.

''Why do some of the villages have crime problems? It's because they leave it to an outside source -- they want the troopers to take care of them instead of taking on those problems themselves,'' said John Amik, administrator of the Kipnuk Traditional Council.

For Indian country opponents, the power to expel allows a tribe to set itself up as a foreign nation inside Alaska's borders.

''We moved out there for my girls to learn their language,'' said Boan, who now lives in Bethel. ''I said, 'If this is the way you people are, I don't want them to learn your culture.' ''

The ultimate power

Banishment was a traditional practice in many Alaska Native cultures before white civilization came, anthropologists and Native elders say.

In a world without prisons, it was the final solution for people who would not bend to the will of the community. After time alone in the wilderness, the exile might return, presumably contrite, or try to negotiate his way into another village. In times of war between tribes, banishment was a death sentence.

In the Lower 48, the power to exclude people and businesses from Indian reservations colors all relations between a tribal government and the outside world. It invigorates commercial and civil regulation: anyone crossing into Indian country agrees to play by the local rules or leave.

The Supreme Court has said a tribe ''agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry.''

Before the federal appeals court recognized Indian country last November in Venetie and Arctic Village, tribal governments in Alaska appeared to have no clear authority to exclude anyone.

That was the legal hang-up in Alaska's best-known banishment case, in the Dena'ina Indian village of Tyonek across Cook Inlet from Anchorage.

In 1982, the Tyonek traditional council attempted to expel two white families, invoking a 40-year-old rule that read in part: ''Any white men except government men or outsider coming in is allow to stay only 24 hrs. if weather permits them to go.''

Tyonek's lawyers protested that it was really an issue of outsiders living in tribal housing without permission from the tribal council. But the white families' lawyers called it a ''racial purification law.'' For many urban Alaskans, the Tyonek case became a powerful and damning symbol of Native sovereignty.

The eviction suit and a countersuit ground through the federal courts for more than a decade, climbing all the way to the U.S. Supreme Court.

''We thought Tyonek was going to be the case on Indian country and tribal status,'' said Kari Bazzy-Garber, who picked up the lawsuit in midstream and remains the village council's attorney.

Years of wrangling in the Tyonek case eventually focused on whether tribes in Alaska could be recognized under federal law. But the lawsuit was finally resolved last October, in Tyonek's favor, without the court having to face the difficult question of Indian country and the power to enforce that 24-hour ordinance.

Some Native rights lawyers say that's just as well. Aware of the publicity at stake in the Native sovereignty movement, they acknowledge that the power to exclude can paint tribes in an unfavorable light.

''I think there were some aspects to that case that made it not sympathetic,'' said Heather Kendall-Miller, a lawyer for the Native American Rights Fund. Kendall-Miller represented Venetie in the tax case that won recognition of Indian country in Alaska. ''It's hard to be a sympathetic case to educate a state, when the issue involves what many people would consider racism.''

Only serious power

Uncertainty over Indian country has not kept traditional councils from invoking the banishment tradition in rural Alaska. In fact, given the state's refusal to recognize tribal criminal authority, many villagers consider banishment the only serious power a village has to enforce its rules.

Two dozen expulsions have been debated by Indian tribal courts in the Interior in the past five years, according to William Walters, tribal court facilitator for the Tanana Chiefs Conference in Fairbanks. Eleven people were banished, most of them Indians.

''Tribes believe there's been Indian country here all along and have been acting accordingly,'' Walters said.

Most of the cases involved people shipped out of their own villages because they threatened domestic violence or refused to comply with local alcohol rules, he said. In a case involving a non-Indian who abused village elders, the threat of expulsion proved sufficient.

''It's not really for punishment, but to protect the health, safety and welfare of the tribe,'' Walters said. ''The power is very rarely invoked, and in my experience there's always been a series of events that have been very disturbing to the community.''

On the Kuskokwim Delta, a Native bootlegger who had been in and out of state courts brought booze home to the village of Quinhagak whenever he got out of jail, said village tribal administrator Anthony Caole. It was a hard decision, but the council finally ordered the bootlegger put on a plane, Caole said.

''Whenever he brought in alcohol, we had domestic violence, people drunk in public, people hurting themselves,'' he said. ''The state didn't fix the problem, so we had to do something.''

After a year, Caole said, the bootlegger's family asked that he be allowed to return. He has been back several months, performing community service projects. So far, there have been no repeat problems, Caole said.

Charges of racism

The power to exclude is used most often within the tribe. But when white people are banished, it can catch the outside world's attention.

In two cases that made newspaper headlines -- the 1995 expulsion from Kipnuk and the 1982 case in Tyonek -- non-Natives claimed to be the victims of racism and the cynical abuse of tribal law.

Such charges fell like sparks on dry tinder.

In Kipnuk, Jimmy Boan contends the dispute arose partly because his Yup'ik fiancee, Mary Tirchick, dared to speak out against the tribal council's leaders, questioning how they spent government grants and accusing them of hiring close relatives for all the best jobs. As a result, he said, the council cracked down on them during the tribe's airport searches for booze -- until Boan declared the whole search unconstitutional and refused to comply.

''If they had any proof of me selling drugs or booze,'' he said recently, they should have called in the Alaska State Troopers. ''They said I was white guy and didn't belong there. They said they didn't have to listen to what the U.S. government said.''

He stormed out of a court hearing before five tribal judges, complaining he wasn't allowed to cross-examine his accusers. He said he didn't bother to appeal, since the appeal would have ended with the traditional council.

''Everyone in that village is afraid of the tribal council,'' Boan said.

''Ridiculous,'' responded John Amik, the Kipnuk Traditional Council administrator.

''The only reason Jim Boan was kicked out was because of his actions that are against the rules and regulations of the community,'' Amik said. ''All he wanted to do was whatever he wanted, freely, without respecting our laws.''

Village leaders say Boan argued with neighbors, waved guns angrily and spurned tribal efforts to intervene when his behavior got out of bounds. Yup'ik tradition calls for leaders to counsel violators, Amik said, to ''talk to a person over and over until they understand. ... State statutes say they can't charge someone unless they see it (happen). We try to keep things from happening, before they occur.''

In tribal court, Boan would have had a chance to cross-examine, but he kept interrupting while witnesses tried to tell their stories, Amik said.

''I think the larger issue was one of Mr. Boan not being willing to march to their drummer,'' said trooper Dan Donaldson, who found himself in the middle of the dispute.

Exile is a familiar custom in Kipnuk, a coastal village with 600 residents, though it hadn't been seen in a while. Amik's 75-year-old father, Luke Amik, who holds Kipnuk's elected chief-for-life position, said two brothers were banished years ago for keeping an especially good source of blackfish to themselves. Others were expelled, and later allowed to return, for making homebrew or consistently taking another person's dog team without asking.

The Boan expulsion triggered a small constitutional crisis. The traditional council cut off electricity to Boan's house for several months. Power was restored only after a state Superior Court judge ruled the local utility was subject to regulation by the Alaska Public Utilities Commission, which had received a complaint. Amik said the council couldn't find a lawyer at the time to argue that the utilities commission lacked jurisdiction in Indian country.

Donaldson said Kipnuk had a few ''hotheads'' but most of the leaders seemed ''very intelligent and level-headed and willing to compromise.''

On the other hand, a trooper investigation into village complaints against Boan never led to charges, Donaldson said. In February, however, Boan was sentenced to 20 days in jail for shoving Amik, spitting on him and punching him in the face when they ran into one another at a store in Bethel.

''Any time anyone from the Kipnuk Traditional Council came into Bethel, he would harass them,'' said former assistant district attorney Jim Valcarce, who prosecuted Boan. ''He wanted to let them know they weren't welcome on his turf.''

As for complaints about violations of his civil rights in the airport search, Donaldson said, the troopers applied a version of the Clinton administration policy known as ''Don't ask, don't tell.''

''We were supportive of the traditional council's effort to stop the flow of alcohol and drugs into their community,'' Donaldson said. ''If that's their goal, it's righteous.''

The Federal Bureau of Investigation also looked into Boan's charges and forwarded the results to the United States attorney and the civil rights division of the U.S. Justice Department, according to Anchorage FBI agent Bill Bounds.

The investigation has not been made public, but federal officials didn't step in. It would have been an especially tough call given the uncertainty about tribal powers in Alaska, said U.S. Attorney Bob Bundy.

''In Indian country, they have authority to throw anybody out. If there's no Indian country, people are free to exercise the right to travel,'' he said. ''I don't even come close to knowing the answers to a lot of this, and I don't think anybody does.''

Alaska Attorney General Bruce Botelho said the state usually doesn't intervene when adults complain that a government agency has violated their civil rights.

''I have fairly limited lawyer resources,'' Botelho said. ''The policy call is largely dictated by whether an individual is able to vindicate his rights by himself'' through a lawsuit.

''That's the typical weak response of a weak administration,'' said Wayne Anthony Ross, an Anchorage attorney and sovereignty opponent. Ross contends that the state should intervene in villages like Kipnuk where civil rights may be abused.

''They've taken it upon themselves almost vigilante style to search people. That's totally improper. The state needs to teach the village how to search for alcohol without trampling on other people's constitutional rights,'' Ross said. ''There are Native lawyers who say the Constitution doesn't apply in the village. That's as outrageous as bringing alcohol into a village that has outlawed it.''

Trespassing or racism?

In Tyonek, villagers still wince at the mention of the expulsion case that started in 1982.

For years, they say, they were called racists when they left the village. In Anchorage, they say, they were refused hotel rooms and ordered out of taxis. Wear a Tyonek hat, the local saying goes, if you want to get in a fight in Anchorage. But they still insist they were misunderstood, that the case was about trespassing, not race.

''If I go to your house I've got to have permission to come into your house,'' said traditional council president Peter Merryman. Visitors to Tyonek should show the same respect, he said.

Erna ''Bernie'' Puckett, on the other hand, still insists it was a case of racial discrimination, at least on the part of a few village leaders. She winces, too, recalling her family's two-year battle to remain in their home in the village, including vandalism and anonymous late-night calls.

Puckett had worked at the Tyonek school for several years as a substitute teacher and tutor while her family lived in a nearby logging camp. When the camp closed, the family received village council permission to move into Tyonek and finish the school year. The Pucketts rented a house from a tribal member, who later sided with them in court. When the principal offered her the job of school secretary, they decided to stay beyond the agreed-upon year.

''The stories I could tell. I would not want anyone else to go through what I went through,'' said Puckett, who lives in Wasilla now. ''It was discrimination. It wasn't OK for me as a white person to have the secretarial job.''

Council members said the tribal housing was needed for tribal members in the village of 250 people. But others said the eviction was about the school job.

Jobs were few in Tyonek. Some tribal officials felt the school secretary should be a villager, according to Puckett.

For two years Puckett hung on to her job and her house, until troopers advised her to go.

''I want to think it was just a handful of people,'' Puckett said. ''I had people come to my door saying they were no part of it, they didn't think it was right.''

Puckett said her family has many happy memories of Tyonek. Her children starred in sports at the local high school. One of her sons is now married to a Yup'ik woman and lives in Dillingham, she said.

Some Indian country opponents continue to see the Tyonek case as a cautionary tale -- if not of anti-white racism unleashed by Native sovereignty, then of a village clique invoking the tribe's ultimate power of exclusion to achieve a small and divisive end.

In Tyonek, villagers refused to comment on any internal differences of opinion. But as the lawsuit evolved into a challenge to Tyonek's ability to govern itself under tribal law, the village closed ranks.

''They were just trying to protect what little they had,'' said Bazzy-Garber, the council's lawyer.

Tyonek once had a lot: a 29,000-acre land reserve, withdrawn by the federal government for the village in 1915 to fend off encroachments by commercial fishing traps. The reserve paid off in the 1960s with the discovery of Cook Inlet oil.

Leasing on the reserve made Tyonek rich by rural standards of the time -- though the council had to sue the Bureau of Indian Affairs to get control of a $12 million bank account. Some of the money was used to help launch the Alaska Federation of Natives. The village also built its own school and 60 houses for tribal members. The council passed a law that the new houses could not be leased or sold without council permission.

Those housing rules became central to the Tyonek banishment case.

The courts finally decided Tyonek has the right to set rules for tribal housing and that tribal officers enforcing those rules are immune from discrimination lawsuits. This was an internal tribal matter, the court said, whether or not Tyonek was in Indian country. The only remaining question was whether Tyonek had been a tribe in 1982, before the BIA issued a formal list of tribes. The U.S. District Court ruled last October that it had been.

In December, with a ''Victory Celebration'' banner still hanging in the log community hall from a weekend-long potlatch, council president Merryman told visitors that Tyonek's motivation has been to defend itself against the encroaching outside world.

That was the motivation in 1915, when Tyonek's land was protected in a federal reserve. That was what Tyonek's lawyers said they were attempting in 1982, when the 24-hour rule for whites hit the newspapers.

And that is the motivation cited today in Kipnuk -- and in Akiachak and Venetie, and many of the other villages hoping Indian country will give them the tools they need to defend their way of life.

Merryman said the people of Tyonek don't want to see their corner of Cook Inlet swallowed by the white Western society, as happened to their Dena'ina cousins across the Inlet in Kenai.

The village has shrunk in the past decade, from 250 to 150 residents. Some of the tribal houses are boarded up, their owners moved away to find work. But coal fields, natural gas development, state land disposals and the industrial plans of Tyonek's own village corporation all will bring people to the west side of the Inlet, Merryman said.

''We need to keep control over here,'' Merryman said. ''Everybody knows the west side is going to be a boom town.''

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