July 3, 1997

Lydia Amik and Sam Paul

Lydia Amik and Sam Paul wait for planes to arrive in Kipnuk in a building established in 1987 for that purpose. The pair search incoming bags for drugs and alcohol. Occasionally, someone will try to evade the search by being picked up by snowmachine on the opposite side of the plane. (Anchorage Daily News photo by Anne Raup)

Whose law and order?

Tribal courts fill void left by state, but critics fear rights may be lost

By Tom Kizzia
Daily News reporter

The coastal community of Kipnuk is as conservative and straight-laced as any Bush village in Alaska. Elders hold the community to traditional Yup'ik and Moravian Church precepts, and they put a high priority on maintaining law and order.

That's why they flout the U.S. Constitution every day.

Tribal marshals search for alcohol in the luggage of everyone flying into the remote tundra village. Sometimes they frisk visitors as well. The searches began 10 years ago after a young Kipnuk man got drunk, fell out of a boat and drowned. They have made the village dry and exceptionally trouble-free, according to state law enforcement and regional health officials.

''From what I've been told, it's brought a significant improvement in prohibiting importation and reducing the caseload in alcohol-based cases at the clinic,'' said Gene Peltola, president of the Yukon-Kuskokwim Health Corp.

At first, the searches were denounced by regular visitors, such as workers for the telephone company and school district. State prosecutors said they appeared to violate the constitutional right against searches without a warrant. Kipnuk's traditional marshals moved to a shack just off the state-owned airstrip to avoid a challenge. No one ever went to court to stop the practice.

''I guess they didn't have the funds to have a 20-year battle to protest our sovereign immunity,'' said Kipnuk tribal administrator John Amik.

Now a federal appeals court decision recognizing Indian country in the Interior communities of Venetie and Arctic Village could strengthen Kipnuk's hand.

Without Indian country, Kipnuk probably had no authority under federal law to search visitors as it does. With Indian country, Native rights lawyers say, Kipnuk has latitude to violate both state and federal constitutions when the tribe's health and safety are at stake.

Got a problem with that? You'll have to take your complaint to a forum, unfamiliar to many Alaskans, that sits at the heart of Indian country: Tribal court.

Welcome to tribal court

No one keeps track of the numbers of tribal courts in Alaska. The most-recent study, issued four years ago by the Alaska Judicial Council, found 33 active tribal courts, 16 in the planning stages, and 99 other villages where traditional councils resolve disputes.

Most of these have been launched in the past decade. Unlike the well-developed tribal courts on Lower 48 Indian reservations, which often boast judges with law degrees and elaborate appeals processes, the tribal courts in Alaska's small villages are mostly unimposing affairs.

In the Athabaskan village of Minto, for example, where one of the most refined tribal courts was re-established in 1985, there are no lawyers or juries. A panel of four or five judges rules by consensus, often discussing things like extended family relationships that wouldn't be relevant in state court. The judges counsel defendants on how to straighten out their lives before passing judgment. Appeals go to the Minto Village Council.

''They consult with one another, or bang heads around together, and look at the case,'' said Charlie Titus Jr., a former judge who now runs the village corporation in Minto, north of Fairbanks.

In Minto, the tribe has taken almost total control of village law enforcement. Alaska State Troopers are summoned only for the most serious crimes. Over a three-year period, Minto referred only two felonies to state court, according to a 1993 study by the judicial council, and not a single misdemeanor. That compared to other villages in the region that averaged 50 to 75 state misdemeanors and 10 felonies a year.

The Minto court handles adoptions and domestic matters, but also enforces tribal laws against such things as bootlegging, drunken driving and disorderly conduct. The arresting officer for Minto is an unarmed village public safety officer, whose salary is paid by the state.

The judicial council study found flaws in Minto's tribal court. When people pleaded not guilty, judges often let them go rather than force the issue. Fines sometimes went uncollected. But in general, the study concluded, the court served the village well.

All of which leaves the state with a delicate political problem in Bush Alaska.

Filling the vacuum

Most law enforcement officials agree that the long arm of the law doesn't reach very effectively into the Bush.

''It's a joke and everybody knows it,'' said U.S. Attorney Bob Bundy, who lived several years in the Northwestern Inupiat village of Kiana. ''People pretend there's an actual criminal justice system out there and there's not. When you live there, you see how one or two people can ruin a community for a time, and nothing gets done about it.''

In such a vacuum, courts like Minto's have a very practical purpose, tribal leaders argue.

''The Bethel D.A. doesn't want to deal with small crimes here,'' said Anthony Caole, tribal administrator for the Yup'ik village of Quinhagak, where the state magistrate resigned to become the tribe's chief justice. ''We address them in 24 hours.''

Many state officials say they can't disagree.

''We'd be happy if there were a lot more Mintos around,'' said assistant state attorney general Dean Guanelli.

But all this tribal court activity is taking place without the state acknowledging tribal jurisdiction.

''There's a lot of turning a blind eye toward what's going on,'' concedes Janna Stewart, magistrate education coordinator for the Alaska court system.

The new tribal courts face an array of familiar judicial problems, tribal advocates say.

Among the ethical problems: how to keep bias from affecting tribal court decisions and how to sort out conflicts of interest -- especially important where a tribal judge is likely to be sentencing close relatives.

Some villages always will prefer to let the state handle their cases, predicted Fairbanks District Attorney Harry Davis.

''Sometimes they like somebody to come in and make decisions who doesn't have any family ties in the village,'' Davis said.

As in the Lower 48, concerns also are being raised here about separation of powers, where tribal judges serving at the behest of council members may be called on to certify council elections. But complete separation, usually a goal in Western courts, may not be culturally appropriate to a tribe, said Kimberly Martus, a tribal courts consultant in Anchorage.

Another problem, unique to tribal courts, is how to deal with the cultural tendency of offenders to confess rather than enter an adversarial process, Martus said.

Already, she said, the Alaska Inter-Tribal Council is setting up a statewide judicial conference to provide training and technical assistance to village courts. Among the possibilities are regional appeals courts covering several villages.

Critics of tribes say the problems of village courts will not be easily solved.

State legislators have said they are especially worried about the protection of constitutional rights in courtrooms that can't be visited by the outside world.

For some, the words ''tribal justice'' evoke not the Minto court but the improvised panel assembled in Klawock by Native activist Rudy James two years ago in a nationally publicized case involving the wilderness exile of two juveniles convicted of robbing and beating a pizza delivery man. Many tribal officials considered that ad hoc court a sham as well.

''Will you allow the right to vote, the illegal search and seizures, jury trials?'' asked Sen. Robin Taylor, R-Wrangell, chairman of the Senate Judiciary Committee. ''Or will it be a tribal court like that phony thing that Rudy James tried to put together down in Klawock?''

Critics also cite a practical problem: open recognition of tribal courts would create competing jurisdictions, inviting what former Alaska Attorney General Charlie Cole called ''a race to the courthouse.''

Taylor argued that villages should do more under state law, forming municipalities to adopt local ordinances and perhaps relying more on a system of local magistrates in place since territorial days.

But legislators have shown little inclination to expand the rural justice system in an era of state budget cuts.

''The ideal would be a magistrate in every village,'' said Bethel magistrate Craig McMahon, a 20-year veteran of the state's rural system. ''The Legislature seems to be concerned about this but they don't seem to be appropriating the money.''

Working at the local level

For now, tribal courts in Alaska operate in a legal twilight.

When a village like Minto busts a tribal member for bootlegging, the state refers to it as a ''civil regulatory'' matter rather than criminal. In the state's eyes, offenders are submitting to tribal courts voluntarily. The villages understand their verdicts can't be backed up by state troopers or jails.

''The way we look at it, if you're living in one of those communities and the situation is you've been victimized by somebody but you want the entity in the village to handle it, you can work it through at the local level and everybody's happy and nobody's calling the troopers,'' said Col. Glenn Godfrey, commander of the state troopers.

The Knowles administration has launched a pilot program aimed at reinforcing local tribal courts -- but keeping them under the state's legal umbrella. The voluntary diversion program for juvenile offenders in the Seward Peninsula villages of Koyuk and Elim allows parents the option of taking their children before tribal court.

Begun late last year in Koyuk, the system has already handled one case of snowmachine vandalism and another of theft from the washeteria coin machines, said Koyuk Traditional Council president Frank Kavairlook. The juveniles involved were sentenced to community service, helping elders with firewood or doing office work.

''Before, the paperwork would be processed, but no one would come and the case would fade away,'' Kavairlook said. ''When the children do something wrong, they should realize the consequences.''

A similar program for adult misdemeanants has been under discussion for villages on the Kuskokwim Delta. Such programs can provide the state with records of misbehavior that would otherwise be invisible, said deputy attorney general Cindy Cooper.

''If there's a serious felony later, you know what this person's record is,'' Cooper said. ''That's really important in terms of rehabilitation potential and knowing how to protect communities.''

But the juvenile diversion program is unfunded and the adult program is now on hold, partly because of uncertainty surrounding the Venetie decision. Even supporters see these programs as tentative half-steps by the state, which persists in categorizing tribal courts as ''alternative dispute resolution systems.''

''They're never going to agree on two sovereigns cooperating if they can't even say the 'T' word,'' said Martus, the consultant to tribes.

Cooperation and conflict

The parallel operation of two rural justice systems in Alaska has sometimes brought confusion.

For example, women who adopt children through tribal decrees may not be able to receive welfare because they don't have birth certificates approved by the state.

Troublemakers sentenced repeatedly by tribal courts may be considered first-offenders when they end up in state court, even when charged with serious felonies.

A few villages, encouraged by their ability to operate independently of the state, have pressed to take charge of local felony crimes. This has brought swift rebukes from state troopers and left ill will.

That happened in 1994 in Tununak, where an elders council stopped a state trooper from arresting a villager wanted for assault and tried to arrest the trooper under tribal authority. A planeload of troopers returned and arrested the suspect, along with the tribal administrator and a tribal police officer charged with hindering prosecution -- but only after a tense meeting with the village council.

Nor did the arrests end the story. The tribal police officer was sentenced to 45 days in jail, but the tribal administrator, Peter Pitka, went into hiding in Tununak for more than a year. Troopers checked for him periodically but declined to launch a house-to-house search. Finally, last fall, the elders council told Pitka to turn himself in and serve his short jail sentence, said council administrator Phillip Kusayak.

In most villages, troopers say, tribal authorities cooperate in the investigation of serious crimes. But in some villages, troopers can be made to feel unwelcome.

''It's like stepping back in time and you definitely see the clash of cultures,'' said former trooper Sgt. Warren Grant, who recently retired from the Bethel post.

In Newtok, for instance, the traditional council insists that troopers tell them before coming to the village for an investigation. Troopers say they comply sometimes, but not when announcing their arrival would hamper a case.

''Our biggest concern is always for the victim,'' said trooper commander Godfrey.

In Kipnuk, Grant said, a vacancy for the state-funded village public safety officer was not filled by the troopers because the previous officer had stopped referring cases to state courts.

Teachers, who are required by law to report signs of child abuse to the state, have come under pressure from tribal leaders who want to handle such cases internally.

''I indicated very clearly to them during a council meeting that I had no choice,'' said Kipnuk school principal Ian Parks. ''After I make the call, then I can tell them a referral has been made. But I have to be very careful about confidentiality.''

Tug of war

With Indian country, paradoxically, the delivery of justice might finally be sorted out.

Supporters of tribal sovereignty say lines of authority would be clearly laid out, perhaps through cooperative state-tribal agreements.

One thing would be immediately clear, lawyers on both sides agree: tribal courts in Alaska will have less authority than many tribes in the Lower 48.

Alaska is one of six states fully covered by a 1953 act of Congress known as Public Law 280, which gives those states authority over all crimes committed in Indian country. That means felonies would clearly be the state's business, along with any crimes, even minor ones, by non-Natives.

Tribal courts would have criminal jurisdiction only over tribal members, and only for misdemeanors. Even then, the state would probably have concurrent jurisdiction, lawyers say, which means Native misdemeanants could be tried in either tribal or state court.

''I think the tug-of-war could happen, especially with a serious offense,'' said assistant attorney general Guanelli. ''But I don't see it happening very often.''

Such a dual system probably would require inter-governmental agreements like those used on Lower 48 reservations, said Susanne Di Pietro, who wrote the judicial council study of tribal courts. State and tribal officers are cross-deputized to enforce each other's laws and make collaborative decisions about prosecution and sentencing, she said.

''It would probably be complicated at the beginning, but my understanding is we have models in other states that work pretty well,'' Di Pietro said.

Villages without their own court systems could continue to rely on state enforcement, as do some tribes in the Lower 48, said Bertram Hirsch, a New York-based lawyer who has represented Alaska tribes for years.

Civil jurisdiction of tribal courts is broader and could take in non-Natives, especially when they have contracts with tribes or their behavior affects a tribe's welfare. This gives tribes the ability to tax companies working in Indian country and to curb obnoxious behavior of residents or visitors. Non-Natives could be subject to civil fines for violation of village ordinances.

''Indian country would sort out jurisdictions over time,'' said John Sky Starkey, lawyer for the Bethel-based Association of Village Council Presidents.

Like many issues surrounding Indian country, however, developing cooperative arrangements in a state with 226 recognized tribes would be extraordinarily complex.

The ''race to the courthouse'' could be a particular problem for businesses in civil liability cases, Cole said. What happens, for example, if an air taxi crashes in Indian country, killing a tribal member. Can survivors seek punitive damages in tribal court?

In Metlakatla, Alaska's only Indian reservation, state law enforcement and tribal officials say their cooperative agreements work. State troopers can be brought in for serious cases with the tribe's approval, and tribal officers can arrest people for violating state laws.

But it was an arduous process to work out stable agreements on the 106-year-old reservation, said Metlakatla Community Council member Sol Atkinson. He admits to being ''a little nervous'' about the sudden statewide attention on tribal courts, fearing Metlakatla's hard-won agreements may be disrupted in the turmoil he foresees.

''I truthfully can't see how they're going to make it work. It took us a long time to get our system working smoothly and get agreements with the state,'' Atkinson said.

An incredible system

Greater cooperation between state and tribal courts may not be enough to settle the concerns of critics worried about civil rights and the lack of oversight on tribal courts.

''To me it's just an incredible system,'' said Mary Bishop of Fairbanks, who has monitored tribal issues for the Alaska Outdoor Council, a statewide sportsmen's group.

Bishop said she worries that Alaska tribal governments will be free to violate civil rights. ''I don't know if they would, but there's nothing that says they couldn't,'' she said.

A contrary view is offered by Native rights attorney David Case of Anchorage. ''One thing to keep in mind is you can make either side look horrifying at the extreme edges,'' Case said. ''Congress would step in if a really extreme problem developed. To some extent, you have to rely on the hope that tribal governments will behave responsibly.''

Consider the airport search in Kipnuk, which claims some 300,000 acres of tundra as Indian country.

In Kipnuk, population 600, Yup'ik residents wonder why people so far away are so concerned about telling them how to live.

''Why are they always trying to change things the way they are, when things are good the way they are?'' asked Kipnuk Traditional Council administrator John Amik.

It's a hard way of life, by most standards. In winter, villagers haul slabs of ice from distant lakes to melt for drinking and washing. They travel eight hours by snowmachine to collect driftwood to burn in nightly steam baths.

The traditional council uses a 2 percent sales tax to pay for the airport searches and a honeybucket sewage-collection system. A state grant paid for colorful plastic wands the village is installing to mark snowmachine trails to other villages. On the tribal office wall is a call-out sheet for the five local search and rescue teams, who raise money for snowmachine gas at an annual basketball tournament.

Amik's office is in the old science lab of a state-built school that was abandoned in near-mint condition after the foundation shifted, with special laboratory cabinets and sinks still lining the walls.

Amik acknowledged that if Kipnuk was a state-chartered municipality, its search would probably be deemed unconstitutional. That's one reason villagers are glad they stuck to their traditional form of government, he said.

Federal oversight

Tribes are required to respect most civil rights guaranteed in the Constitution, under the 1968 Indian Civil Rights Act. That includes the right to equal protection and Fourth Amendment safeguards against unreasonable searches. The act has been cited frequently by Native rights attorneys in Alaska since the Venetie decision in an effort to reduce fears about Indian country.

But federal courts have little power to force tribal courts to follow the Indian Civil Rights Act.

The Supreme Court made a definitive ruling on that subject in 1978 when it allowed a patriarchal California tribe to discriminate by denying tribal membership to the children of women who marry outside the tribe, but not the children of men who do the same.

''Efforts by the federal judiciary to apply the statutory prohibitions (of the Indian Civil Rights Act) in a civil context may substantially interfere with a tribe's ability to maintain itself as a culturally political entity,'' the Supreme Court said.

Those words gave tribes latitude to tailor rights in the U.S. Constitution to their own cultural norms and to the health and safety of the tribe.

For tribal members who feel their civil rights have been violated in tribal court, automatic federal court review is available only in cases where someone has been thrown in jail. Otherwise, lawyers say, appeals stay in the tribal system.

In Alaska villages, appeals probably will be heard by the same council that appointed the judges. The best recourse for an unhappy tribal member might be to campaign against incumbents in the next election for tribal council -- provided, of course, his civil rights complaint does not involve interference with his right to vote.

An alleged civil rights violation by a tribe acting on an internal matter is not subject to federal intervention, lawyers on both sides of Indian rights cases agree.

Defenders of tribal courts say greater federal court review would undercut the authority of tribes.

Complaints about tribal unfairness are ''kind of ironic, when you look at the cultural and language biases in the state system regarding minorities,'' said Martus, who serves on a state panel exploring minority issues in the legal system.

Still, the difficulty of appealing tribal decisions has inspired frequent political efforts to extend federal oversight into Indian country in the Lower 48.

Even a staunch supporter of tribal rights like University of Colorado legal scholar Charles Wilkinson has suggested that a slightly greater degree of federal court oversight of civil rights allegations might help reconcile the legitimate interests of tribes and non-Indians.

Wilkinson wrote that the 1978 Supreme Court decision on Indian civil rights ''is perceived as a fundamental barrier to a just legal process in Indian country by creating the specter of tribal powers that cannot be checked outside the tribe.''

More strident critics say the tribal court system is reminiscent of racial ''justice'' in Southern states before Congress stepped in with federal oversight.

''Tribes recoil at that analogy. But civil rights must be enforceable,'' said Jim Johnson, a former chief of special litigation for the Washington state attorney general. Johnson testified last fall before Congress urging easier appeals of tribal decisions to federal court.

Johnson, now an adviser to the Alaska Legislature's Republican majority in Juneau, warned that the ''political correctness'' of supporting tribes in their efforts to curb alcohol should not blind the public to constitutional issues: ''The next thing they're going to ask at the airport is, 'Do you have a fishing rod?' ''

Non-Natives can challenge a policy like the Kipnuk search only on the grounds that the tribe has overstepped its authority, lawyers say.

In such a challenge, Native rights lawyers in Anchorage argue that Kipnuk's airport search would be readily defensible -- because tribes have jurisdiction over non-Natives on things that affect the community's welfare, because liquor is banned by federal law from Indian country, and because tribes have the ability to exclude people who won't follow their rules.

''An airport search is analogous to a border search in the sense that a sovereign has a legitimate interest in ensuring that illegal substances are not transported across territorial boundaries,'' said Heather Kendall-Miller, the Native American Rights Fund lawyer who argued the Venetie case.

From Kipnuk's point of view, the right to enforce tribal rules on visitors as well as on their own members is part of the sovereignty they never surrendered to the kass'aqs -- the white people.

''All the time we just stay here, nobody bother us,'' said store owner Johnnie Paul, 68, Kipnuk's traditional council president. His father was Chief Paul, the last of the area's strongman chiefs, who formed the village's first elected council in the 1930s.

''Last year, they complain to Juneau about Kipnuk village ordinance. They said Kipnuk don't have no jurisdiction. I don't like that!'' Johnnie Paul's voice rose, then fell again.

''When I go to Anchorage,'' he said, ''I have to use the rules over there. That's what those kass'aqs supposed to be, too.''

If visitors don't follow the law, Paul said, ''we take care of it.''

Daily News reporter Don Hunter contributed to this story.

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