The Special Situation of Alaska
Since becoming a mandatory Public Law 280 state at the time of its admission to
the Union in 1958, Alaska has inspired a substantial body of literature addressing the
effectiveness of state law enforcement in the state’s Native communities. But the
continued relevance of this literature to the present research was limited significantly by
the United States Supreme Court’s decision in Alaska v. Native Village of Venetie Tribal
Government, 522 U.S. 520 (1998), which effectively nullified the application of Public
Law 280 in Alaska by eliminating the Indian country status of nearly all the state’s Native
lands.
As noted in Chapter 1, the only remaining Indian country is the Metlakatla Indian
Reservation, along with several thousand widely scattered Native allotments and Native
town-sites.87 Since Public Law 280 applies only within “Indian country,” most Alaska
Native village lands are now subject to state jurisdiction, not because of Public Law 280,
but because they are not Indian country at all. Furthermore,
the concurrent tribal
jurisdiction that typically exists under Public Law 280 may be unavailable to Alaska
tribes because their lack of Indian country means they lack the territorial foundation
usually required for criminal jurisdiction.88 There have been no studies focusing
specifically on the Metlakatla Indian Reservation.
We can learn some things about Public Law 280 by examining the literature that
focused on law enforcement and criminal justice in Alaska before the 1998 Venetie
34
86 Kevin Washburn, “Federal Criminal Law and Tribal Self-Determination,” 84 N.C.L. Rev. 779, 789
(2006) (citing Karen E. Schreier, Testimony before the Committee on the Judiciary, United States House of
Representatives, Feb. 25, 1998).
87 See Chapter 1 at pp. 8-9.
88 Whether such jurisdiction could be obtained over tribal members by way of their consent is unclear.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
decision. That literature suggests that funding and accountability issues bedeviled the
exercise of state criminal jurisdiction during the period when Public Law 280 applied
more broadly within the state.
The Alaska Advisory Committee to the U.S. Commission on Civil Rights
produced a report in 2002 that recounts how Public Law 280 triggered the replacement of
village-based law enforcement and justice agencies with state criminal law, troopers,
and
courts.89 According to the Committee’s report, these rural, off-road villages, sometimes
accessible only by plane, boat, or snowmobile, suffered from “inferior state and federal
services, if any at all,” particularly in the area of law enforcement.90 Otwin Marenin has
documented the policing strategies that Alaska employed to tailor law enforcement to
these remote Native villages, including the VPO (Village Police Officer) program of the
1960s and 1970s, and the VPSO (Village Public Safety Officer) program initiated in
1980.91 The former trained Natives to be village police officers. Funding shortages,
inadequate training, and a philosophy of imposing state criminal norms in place of village
custom, however, contributed to the program’s failure. The VPSO program put Alaska
Native groups in a more influential position, as state law enforcement funding was routed
through the regional Native nonprofit corporations established under the Alaska Native
Claims Settlement Act and the VPSOs were expected to be “accountable to local [village]
councils and aware of traditional, informal norms and law-ways,”92 even though they
were enforcing state criminal law. Despite the VPSO program’s local orientation and
emphasis on local accountability, the Alaska Advisory Committee reports numerous
criticisms, focusing on the inadequate number of officers to handle the needs of rural
communities, as well as the fact that VPSOs receive far less training than Alaska State
troopers and cannot carry firearms or intervene in major criminal cases. VPSOs also
“cannot serve arrest warrants or investigate felonies without the approval of state
troopers,” who are often inaccessible.93
35
89 Alaska Advisory Committee to the U.S. Commission on Civil Rights, Racism’s Frontier: The Untold
Story of Discrimination and Division in Alaska, ch. 4 (2002), available at http://www.usccr.gov/pubs/ssac/
ak0402/ch4.htm (last visited May 21, 2005).
See also Susanne Di Pietro, “Tribal Court Jurisdiction and
Public Law 280: What Role for Tribal Courts in Alaska?,” 10 Alaska L. Rev. 335, 336-37 (1993). This
displacement of village authorities reflected the then-prevailing assumption that Public Law 280 conferred
exclusive criminal jurisdiction on the state. See David S. Case & David A. Voluck, Alaska Natives and
American Laws 398 (Fairbanks: Univ. of Alaska Press, 2002).
90 Alaska Advisory Committee, supra note 89, at ch. 1; Otwin Marenin, “Conflicting Perspectives on the
Role of the Village Public Safety Officer in Native Villages of Alaska,” American Indian Quarterly, 297,
300. Vol. 18(3) (1994).
91 See Marenin, supra note 4, at 133-36 & 301.
92 Id. at 133.
93 Alaska Advisory Committee, supra note 89, at ch. 4 (Table 5 and accompanying text). The problem of
police turnover has also afflicted the VPSO program. See Darryl Wood, Police Turnover in Isolated
Communities: The Alaska Experience, CJ 186187, January 2001 NIJ Journal 16-23.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
The Alaska Advisory Committee does not reserve its criticism of law enforcement
and criminal justice in Alaska for the VPSO program alone. According to its report, the
administration of justice, generally, to Native communities has long come under fire for
“disproportionate sentencing and incarceration rates, inadequate defense bar funding,
jurisdictional conflicts reducing tribal responsibility, lack of basic police protection for
rural communities,
and underemployment of Alaska Natives in the justice system.”94
Critics cited in the report have also pointed to the numerous “barriers to equal access”
that afflict the Alaska Natives far more than other groups. In particular, because no state
court system exists in rural villages, defendants from those areas – mostly Natives – must
be taken away from their villages to be tried in faraway urban areas. As a result,
“residents in rural areas often lack adequate attorney-client relationships and
communication due to the distances that separate them.”95 Moreover, Native defendants
often find themselves deprived of a jury of their peers and facing prosecution in a forum
without an interpreter to translate the proceedings conducted in a foreign language.96
The urban and rural divide in Alaska has likely exacerbated problems associated
with state law enforcement and criminal justice for Native villages in that state. Indeed,
many of the studies that have focused on justice systems in Alaska are broadly framed as
“rural,” including the very recent report of the Alaska Rural Justice and Law Enforcement
Commission.97 However, over 66% of the rural population in Alaska is Native.98
Echoing earlier studies, this Commission recommended more prtnering and collaboration
among Native, state, and federal agencies; enhancements of the VPSO program;
increased use of community-based solutions, such as village/community-run reentry and
rehab programs; greater emphasis on intercepting transports of alcohol to dry villages and
preventing alcohol use through youth programs; more effective recruitment of Alaska
Natives into policing, corrections, and probation positions; provision of adequate
infrastructure in remote villages to support and attract law enforcement personnel; more
cross-cultural training for forensic investigators; and greater collaboration between state
and tribal courts.
36
94 Id. at ch. 4.
95 Id.
96 For another critical view of the provision of criminal justice to Alaska Native communities and
recommendations for improvement, see Alaska Court System, Report of the Alaska Supreme Court
Advisory Committee on Fairness and Access (1997). The Committee, which was created to identify
concerns about ethnic and cultural bias in the courts, made several recommendations designed to bring
judicial proceedings closer to rural and Native communities, and urged the appointment of interpreters, as
well as cross-cultural training for court personnel.
97 Alaska Rural Justice and Law Enforcement Commission, Initial Report and Recommendation of the
Alaska Rural Justice and Law Enforcement Commission (2006), available at http://www.law.state.ak.us/
pdf/press/040606-ARJLEC-report/pdf (last visited August 18, 2007). Congress established the
Commission in 2004. Pub. L. 108-199, § 112(a)(2) (2004).
98 Alaska Rural Justice and Law Enforcement Commission, supra note 97, at 4.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
Notwithstanding the distinctive challenges presented by distance and the isolation
of Alaska Native communities, there are also common themes in the Alaska literature and
the research conducted in other Public Law 280 states, relating to underfunded,
unresponsive, and culturally insensitive state criminal authority.
While the basis for state
jurisdiction over Native communities has changed for most of Alaska because Public Law
280 is no longer needed to support state criminal jurisdiction, Alaska’s history of
implementing Public Law 280 holds lessons for other states. Furthermore, some of the
policy options developed for Public Law 280 states may suggest ways of improving state
law enforcement and criminal justice in Alaska independent of that statute.
Conclusion
Our review of the literature points us toward hypothesizing that accountability to
tribal communities along with adequacy of resources (as compared with other
jurisdictions) are the two key determinants of tribal satisfaction and effectiveness of law
enforcement and criminal justice under Public Law 280. Where tribes have taken over
more functions, through cooperative agreements, unilateral assertions of tribal authority,
or even retrocession of the state’s Public Law 280 jurisdiction, we would expect to see
higher levels of satisfaction and greater effectiveness. Likewise, where Indian nations
have been able to assemble resources for regular patrolling, rapid response, thorough
investigations, and community-based responses to crime, we would expect to find tribal
communities more satisfied, and police and court leaders doing a more effective job