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Rural Alaska

State won’t interfere with tribal banishments despite civil rights issues, AG says

  • Author: Lisa Demer
  • Updated: October 9
  • Published October 7

In villages around Alaska, tribal leaders frustrated by drug dealing and bootlegging have banished suspects using tribal laws and methods – a controversial practice that the state isn't interfering with.

Tribes sometimes want the state to enforce banishment orders and help them eject the undesired person. People who have been turned out from homes and villages have asked for help too. Some say their basic civil rights were violated and that they weren't given proper notice or a chance to face accusers.

The state intends to remain hands-off when it comes to banishment, Alaska Attorney General Jahna Lindemuth said in a recent interview.

"We recognize that it presents constitutional challenges," Lindemuth said. "But I don't think it's the state's place to approve or disapprove of anything."

There is no state or federal law providing for banishment. If someone wants to challenge the authority of tribes to take such an action, the attorney general said, that person can do so in court.

"We are not looking for a test case," she said. "It is not the state's challenge to bring."

Some of the cases involve people who are not tribal members, which she described as a murky area of law.

If someone challenged a tribal banishment in court, she said, the state then would have to evaluate whether to weigh in, she said.

"Tribes are sovereigns. This arises between a private person and that particular sovereign," Lindemuth said.

No government agency tracks or monitors banishments but a number have come to public view in recent years: in Sand Point and Emmonak, Alakanuk and Nunam Iqua, Quinhagak and Akiak. Some people have been banished in multiple communities. Some communities have banished multiple people.

In the Southwest Alaska village of Togiak, back in March, business owner Ron Oertwich was banished over accusations that he was importing alcohol into the dry village. When he returned to the village, he was jailed for days, then dragged to a waiting plane with his legs bound in duct tape, according to an account by his lawyer at the time.

Tribal judges acted as a community court and the community at large was allowed to participate, tribal administrator Brice Eningowuk said Friday.

The question of banishment was put to a community vote, he said. He referred further questions to the tribe's attorney, Natalie Landreth of the Native American Rights Fund. Efforts to reach her Friday were unsuccessful.

Oertwich, who is not Alaska Native, had lived for decades in Togiak, where he ran a bed and breakfast in a leased building. This summer, Oertwich was allowed to return to pack up his belongings "but he doesn't feel safe or welcome in Togiak any longer," his current attorney, Andy Pevehouse of Kenai, said. Oertwich, now 73, is living in Oregon, where he has family.

The tribe is treating the city of Togiak as if it is traditional Native land subject to tribal customs and laws, even though that land isn't Indian Country, Pevehouse said.

The 1971 Alaska Native Claims Settlement Act provided for nearly 44 million acres of land to go to Alaska Native regional and village corporations. But tribes were not mentioned in the law and received no land. There is only one Native American reservation in Alaska, in the Southeast village of Metlakatla, which opted out of ANCSA.

In Oertwich's case, the banishment order was contingent on him being charged in state court with alcohol importation, but he was never charged with a crime, Pevehouse said. The lawyer has been unable to get documents from the Togiak Traditional Council concerning its tribal laws or even the banishment proceeding.

He is evaluating whether to sue.

"Even for tribes, banishment is a very extreme remedy," Lindemuth said.

The state did examine what happened in Togiak, but took no action.

In the Yukon-Kuskokwim Delta, Jacques Cooper, the husband of a teacher, was recently banished from the dry village of Akiak over accusations of bootlegging and selling marijuana that he denied. He has since joined his wife in the nearby village of Tuluksak. There, tribal police are keeping an eye out, said tribal administrator Carol Charlie.

"We will take action if something happens," she said.

Tribal governments, Lindemuth said, are looking for ways to improve public safety in remote villages that often have no law enforcement at all.

A troopers post just opened in Togiak this summer.

The banishment of Oertwich and one other man "made a difference," said Togiak tribal council president Jimmy Coopchiak.

Crime around Alaska is on the rise, in part because of heroin and other opioids, according to the Department of Law.

"I do feel the level of frustration in many of the villages, especially those that don't have law enforcement — the level of frustration and concern has been growing in recent years," Lindemuth said.

In Western Alaska, referrals to prosecutors for violent felonies are up about 23 percent so far this year — through September — compared with the same period a year earlier, said Rob Henderson, deputy attorney general.

He has traveled around the state explaining a new option for misdemeanor alcohol offenses, domestic violence and limited other offenses: diversion to tribal court. These low-level offenses will be handled as civil matters by tribes. The hope is that defendants end up on a better path, and tribes gain more control.

So far, two tribal courts – in Anvik and Nulato – have signed on, and others are looking into it, Henderson said.

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