Can the State of Alaska emit policy over tribal governments?

by Ulric Q. Aloysius

Perhaps you’ve heard of tribal governments.

In May 2013, Edward Parks – a member of the Stevens Village tribe – assaulted his girlfriend who laid nearly dead from three broken ribs and a collapsed lung.

The Minto Tribal Court stripped Parks’ right to their children. Governor Parnell’s administration took Parks’ side and presented the case before the Alaska Supreme Court – a primetime event of the state government seeking to void a tribal government ruling (Mauer).

It appears that the State of Alaska is too proud to realize that the federal government

recognizes Native tribes.

Did the Parnell Administration actively promote domestic violence or protect the right to due process?

Is the State of Alaska given jurisdiction to intervene in inter-tribal affairs?

According to the Alaska Attorney General under Governor Walker’s administration, the existence of a tribal government does not require a federal determination, and tribal sovereignty does not originate with the federal government (Lindemuth).

A few questions come to mind given these points: is the Minto Tribe given authority to act on parental affairs? Is the State of Alaska allowed to intervene? Does the federal government clarify that individual states can emit policy over sovereign tribal governments?

It has always been a question of whether tribal governments in Alaska have autonomous

authority in state lands. This power includes instances similar to the Parks vs. Minto Tribal Court case where parental affairs would be called into question.

According to the Solicitor General of the Department of Interior under the Obama Administration, the federal government recognizes the need to abandon the failed policies of paternalism and assimilation and to instead promote tribal sovereignty (Tompkins).

To narrow that down, the United States government is acknowledging that abandoning age-old European practices of diminishing aboriginal cultures is a moral practice; it also actively promotes tribal government authority.

The Alaska Supreme Court case of John v. Baker was the first ruling that fully recognized the autonomy of tribal governments to manage issues with tribal members and affirmed government to government authority between tribes and the federal government (Townsend).

However, some might argue that John v. Baker set a precedent that did not specifically recognize the existence of tribal sovereign powers absent Indian country (Blurton).

On the other hand, the Alaska Attorney General under Governor Walker’s administration states that federal courts have likewise concluded that tribes in Alaska have authority, or jurisdiction, over citizens, over land, and over people who enter their land.

It lays clear that the Minto Tribal Court did, in fact, hold the authority to handle the Parks parental affairs case.

There are many instances of the State of Alaska intervening in tribal affairs. Does the State of Alaska have the legal authority to intervene?

An example of the State of Alaska taking part in this behavior took place when a mining permit was granted to the Usibelli Mining Company in 1991. This permit granted Usibelli to mine coal across from the Ya Ne Dah Ah School, one of the first and only tribal-run schools in Alaska. The school sits in the small town of Chickaloon, a small town where the Traditional Council takes part in many land conservation acts – including extinguishing a long-lasting underground coal fire (Surrusco).

Tell me about doing the right thing for a change.

The federal government’s Office of Surface Mining Reclamation and Enforcement (OSM), under the Obama Administration, later decided that the Alaska Department of Natural Resources (DNR) must invalidate the mining permit. Then, when the Trump Administration successfully nominated Steven Gardner as the head of OSM, a new decision was made to dodge the issue and hand the decision to revoke the permit to the DNR.

The tribe has been actively fighting the mine in court, and a decision is still yet to be made (Surrusco). On the other hand, Congress established the Indian Claims Commission in 1946 in order to “permit consideration of Indian claims under the broad scope of ‘fair and honorable dealings’…” (Blurton).

It’s safe to say that the State of Alaska is authorizing immoral acts of coal mining. It’s also safe to say that the State of Alaska did not permit fair and honorable dealings in correlation to the Chickaloon Village Traditional Council.

The federal government has granted and nearly always supported tribal authority and sovereignty. Some might argue that Congress long ago vested the federal government with exclusive criminal jurisdiction over enumerated “major crimes” perpetrated by Indians in Indian country (Tompkins).

This does not give states the right to intervene in a criminal case – such as the Parks parental affairs case.

However, this could be counter-attacked with the intent of Public Law 280 which allows limited state authority in Indian country in some states, including Alaska (Lindemuth). This law goes hand-in-hand with the Indian Child Welfare Act that acknowledges state jurisdiction over Indian child custody proceedings while providing certain accommodations for tribes’ interest in their children (Blurton).

Although there are very few restrictions on the State of Alaska emitting provisions, an Alaska Tribe’s jurisdiction is simultaneous with the State’s (Lindemuth).

Depending on the case, whether it be child possession or crime, the State of Alaska and tribal governments indirectly work together like two train rails – with the federal government acting as the train.

It is clear that the State of Alaska is nowhere near an authoritative governing body over tribes in Alaska. Given the tribal powers over parental affairs, state government intervention, and the granting of control to the state government to reprimand tribal authority in criminal and sometimes child custody cases, depending on the case, the State of Alaska may emit some policies toward tribes. Some policies are not possible due to the federal granting of sovereign powers to the Native Alaska tribes.

This equilibrium grants some positives and negatives to the sovereign Alaska tribes; however, there are some provisions or court cases needed to further clarify tribal isolation from state governments and state jurisdiction – precisely in Alaska.

Works Cited

Blurton, David M. “John v. Baker and the Jurisdiction of Tribal Sovereigns Without Territorial Reach.” 20 Alaska Law Review 1-28, Duke Law, 2003, https:/scholarship.law.duke.edu/alr/vol20/iss1/2.

Lindemuth, Jahna. “Legal Status of Tribal Governments in Alaska.” Received by Governor Bill Walker, Attorney General Opinions, Alaska Department of Law, 19 Oct. 2017, www.law.state.ak.us/pdf/opinions/opinions_2017/17-004_JU20172010.pdf.

Mauer, Richard. “In Challenging Tribal Court, State Backs Man Convicted of Beating His Wife.” Anchorage Daily News, Anchorage Daily News, 28 Sept. 2016, www.adn.com/alaska-news/article/challenging-tribal-court-state-backs-man-convicted-beating-his-wife/2013/08/25/.

Surrusco, Emilie Karrick. “Chickaloon Native Village in Alaska Fights for Its Future.” Earthjustice, Earthjustice, 29 Jan. 2018, earthjustice.org/blog/2018-january/chickaloon-native-village-tribe-in-alaska-fights-for-its-future.

Tompkins, Hilary C. “Reaffirmation of the United States’ Unique Trust Relationship with Indian Tribes and Related Indian Law Principles.” Received by Secretary Sally Jewell, Office of the Solicitor, United States Department of Interior, 18 Jan. 2017, www.doi.gov/sites/doi.gov/files/uploads/m-37045.pdf.

Townsend, Lori. “Court Upholds Alaska Tribal Government Sovereignty.” Alaska Public Media, Alaska Public Media, 14 Dec. 2011, www.alaskapublic.org/2011/12/13/court-upholds-alaska-tribal-government-sovereignty/.

Ulric Q. Aloysius is a recent graduate of the Mount Edgecumbe High School. He is from Aniak, AK.

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