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CHAPTER FIVE

Subject Matter for Tribal Courts

“Tribal Courts constitute the frontline tribal institutions that most often confront issues of self-determination and sovereignty, while at the same time they are charged with providing reliable and equitable adjudication in the many and increasingly diverse matters that come before them…”

Frank Pommersheim

Braid of Feathers

American Indian Law and Contemporary Tribal Law 1995

     Introduction

     Children’s Subjects

          Adoptions

          Child Custody

          Child Protection

          Indian Child Welfare Act (ICWA)

     Domestic Violence

          Violence Against Women Act

          Alaska’s Central Registry System
          State and Tribal Jurisdiction over Domestic Violence
          Practical Issues for Enforcing Tribal Protective Orders
     Protection of Elders and Vulnerable Adults
     Marriages, Divorces, and Annulments
     Probate
     Cultural Protections
     Law and Order - Health and Safety
     Alcohol Regulation
     Employment Issues
     Internal Tribal Government Matters
     Environmental Regulation
     Conclusion

© Tanana Chiefs Conference, Inc. and Lisa Jaeger
 122 First Avenue, Suite 600
 Fairbanks, Alaska 99701
 (907)452-8251

Introduction

Under their inherent sovereignty, and to a lesser extent powers delegated by Congress, tribes have the authority to exercise jurisdiction over a wide range of subjects if they choose to do so. Over the years the United States Congress and Supreme Court have placed some limits on tribal subject matter jurisdiction, but a broad scope of tribal jurisdiction remains intact. The types of cases, or subject matter, that Alaska tribal courts handle basically depends on what types of problems in the village need to be addressed, what jurisdiction the tribe wishes to assert since much of the jurisdictional picture is unclear for Alaska tribes, and on what subjects the tribal council allows the tribal court to hear.

Nearly all tribal courts in Alaska have assumed jurisdiction over family and domestic matters, especially in cases concerning protection of children. Domestic relations is a subject area where state and tribal recognition and cooperation are building. Tribal jurisdiction over subjects such as minor crime is less clear, but many Alaska tribal courts are asserting subject matter jurisdiction in that area as civil matters in order to protect the health, safety, and welfare of tribal members.

Subject matter jurisdiction is normally divided into two broad areas: ‘criminal jurisdiction’ and ‘civil jurisdiction.’ The absolute distinction between criminal and civil jurisdiction is blurred, but the simplest rule of thumb is that if breaking a law that prohibits a behavior can result in jail time, that law is a criminal law. All other areas of law may be considered civil law. At this point in time, Alaska tribal governments assert jurisdiction over law and order matters in a civil rather than in a criminal way. The use of jail time is not a traditional concept and Alaska tribal courts tend to be developing along the lines of courts of healing, through a variety of means, rather than as courts of punishment.

This chapter provides a very broad overview of the subjects that might come before tribal courts in Alaska. It is by no means a complete list, and certainly there are outstanding jurisdictional questions about many of these subjects. Most tribal courts in Alaska are courts of general jurisdiction, meaning that they take on the whole range of subjects that the tribal council authorizes them to. Most choose to start with a limited number of subjects, such as child adoption, custody, and protection cases, and add to that as the court develops.

Childrens Subjects

Adoptions:

Tribes in Alaska have been doing traditional child adoptions for centuries. Some of the values and considerations involved in traditional Native adoptions are very different from the way adoptions are handled under State of Alaska law. Traditional tribal adoptions often are ‘open adoptions’ where the biological parents keep rights to visitation and may have certain traditional and ceremonial responsibilities for their children who have been adopted by others. State court adoptions typically cut all ties between the biological parent and the child. The biological parent has no more duties or responsibilities toward the child and quite likely will not see the child again.

In the past the State of Alaska refused to recognize traditional adoptions and would not issue birth certificates for them, causing legal problems for the biological parents, the adoptive parents, and for the adopted children. After years of tribes struggling with the State over this matter, the State came to recognize traditional Native adoptions and began issuing new birth certificates if certain conditions are met. State courts want written proof that the biological parents knew that the child was going to be adopted, and that the biological parents either consented to the adoption or that there was good reason to do the adoption without the biological parents’ consent.

Birth certificates are important documents because they provide proof to state, federal, and private agencies of who the legal parents of the child are. Specific situations where birth certificates are essential or at least facilitate actions include:

In order get a birth certificate issued by the State Bureau of Vital Statistics, the following conditions must be met:

This adoption process is only used for permanent adoptions, cases where the biological parents cannot come back at a later date and get their child back. Many Native children live with relatives or friends without anyone intending that the situation will be permanent. Parents often have their children live with a family member or friend while they go away to work, go to school, or go away to deal with personal problems in their own life. They expect that at sometime in the future, they will, or think they may, want to have their children back. In this situation, a new birth certificate should not be requested, but a power of attorney may be a good thing for the caretakers to have, authorizing them to sign emergency medical care forms and so forth.

The role of the tribal courts in recognizing adoptions is to act as the protectors of the children. If a tribal court believes it is not in the best interest of a child to recognize an adoption, the court should not approve it. Common sense goes a long way in making sound decisions about adoptions. Common sense tells you that putting a child in a home with substance abuse or domestic violence is not in the best interest of the child, for example.

Many tribes have unwritten customs and written guidelines in their tribal ordinances for helping them determine what is in the best interest of the child. Written guidelines for tribal courts are especially important when courts are asked to recognize adoptions by people they do not know. However, knowing the parties involved is more common in tribal courts. Because tribal courts commonly know the adoptive and biological parents and all the facts and circumstances of a case, homestudies are not always required for tribal adoptions like they are for adoptions processed by state courts.

There is specific paperwork that must be accurately filled out in order for the State Bureau of Vital Statistics to issue a new birth certificate based on a tribal adoption. The biological parents sign a Parental Statement and have it notarized. If a biological parent is deceased there is a place on the Tribal Statement form to note this. If one or both living biological parents have not signed a Parental Statement, there is a section in the State packet for the tribe to note this. A Resolution Authorizing Tribal Official to Sign is also completed. In the past, the State would not accept such documents if they contained the words ‘tribal court’ because the State did not recognize tribal courts. However, since John v. Baker (1999), the State should allow tribes to sign paperwork using the words ‘tribal court.’ A Tribal Statement needs to be completed which claims jurisdiction over the adoption of the child. The last form to be completed is a Request for Substitute Birth Certificate Following a Cultural Adoption. Originals of these completed forms are sent to the Alaska Department of Health and Social Services in Juneau, along with a $35.00 fee.

If the location of a biological parent is not known, the adoptive parents and the tribe have a responsibility to try and track down the missing parent or parents. This may be attempted in a variety of ways including sending a notice to the last known address, return receipt requested-restricted delivery, or publication of notice in newspapers in the area where the parent might be. It is strongly recommended that tribal courts be sure the biological parents receive notice of adoptions if at all possible, and keep accurate records of all attempts to notify them.

The child's name may be changed during the adoption process. If the adoptive parents wish to, they may change the child's name through the paperwork that goes to the State. Whether or not the name changes will be solely up to the adoptive parents unless there is a written agreement between the adoptive parents and the biological parents or tribe. A new Birth Certificate will change who the child's parents are and can change the child's legal name, forever.

The tribal court needs to keep copies of all paperwork. This information may be vital for persons to access years and years down the road. It is also advisable to keep a tape recording or at least good notes of the adoption hearing. Storage should be in a safe, secure place. Copies of the village records can be sent outside the village, to regional non-profits or to the BIA for example, for extra security in the event of a fire or flood.

Child Custody:

Tribal courts may be asked to settle custody disputes between parents or to formalize child custody agreements between parents. The John v. Baker case (Alaska Supreme Court 1999) involved a custody dispute between parents. Originally the parents had gone before the Northway Tribal Court, but the father was not satisfied with the decision and took his case to the Alaska State court system. The Alaska Supreme Court responded by deciding that Northway had jurisdiction to hear child custody disputes over tribal children.

Because of John v. Baker, tribal courts in Alaska have clear jurisdiction over custody disputes between parents of tribal children. In the Supreme Court’s opinion on that case, Justice Dana Fabe wrote “We hold that Alaska Native tribes, by virtue of their inherent powers as sovereign nations, do possess that authority…Tribes derive the power to adjudicate internal domestic matters, including child custody disputes over tribal children, from a source of sovereignty independent of the land they occupy.”

Although tribes in Alaska clearly have jurisdiction over child custody issues for tribal children, that jurisdiction is shared concurrently with the State. In other words, both the State and the tribes have jurisdiction over tribal children. Whichever court first hears a case, the other court defers its jurisdiction. In situations where a child is in need of protection and the tribe wishes to handle that case, it is extremely important for the tribal court to begin a case right away, to avoid having to defer to the state courts.

Tribes do have clear jurisdiction to hear custody cases involving tribal children, but as in all tribal court cases, tribal courts must practice due process. Notice must be provided to all parties of hearings, an opportunity to be heard provided at hearings, and hearing procedures and tribal judges must be fair. However, tribal courts do not have to provide due process in the same manner as state courts do. In the John case, the Supreme Court cautioned that due process requirements, “…in no way requires tribes to use procedures identical to ours in their courts. Instead, in deciding whether a party was denied due process, superior courts should strive to respect the cultural differences that influence tribal jurisprudence, as well as to recognize the practical limits experienced by smaller court systems.”

Child Protection:

For many years tribal courts in Interior Alaska have been involved protecting tribal children through tribal court child protection cases. Child protection cases are cases where children may be neglected, abandoned, or subject to physical, emotional, or sexual abuse. These cases begin with someone petitioning the tribal court about a particular child’s situation. The tribal court may decide to hold an emergency hearing if the child is in immediate danger or hold a regular hearing if immediate danger is not present. The tribal court may decide to take the child into the legal custody of the tribe and place the child into a safe home, or keep the child in the parents’ home with certain conditions. Similar child protection cases involving Native children in state court are called ‘ICWA cases.’ Such a case in tribal court is commonly called a child protection case because ICWA does not apply to the actions of tribal courts.

There are many types of hearings that tribal courts hold in child protection matters including:

There are many resource considerations when dealing with child protection cases. Tribes should have, or have easy access to, a trained social worker to provide oversight monitoring of the welfare of the involved children. Tribal law enforcement or cooperative state law enforcement is often necessary to protect children and assist in enforcing tribal court orders. Access to services such as counseling, treatment, medical care and alternatives to violence programs are essential. Some children have such high special needs that tribal resources might be drained if they were solely responsible for such cases. In those situations, tribes may prefer that states protect such children due to the much larger availability of resources.

Child protection cases often lead to placing a child in a temporary foster home. Tribes may set guidelines for certifying or licensing tribal foster homes. Some considerations for setting up such a tribal program are securing funding sources, developing of a list of interested and qualified foster parents, and establishing tribal jobs for conducting family visits if supervision is needed.

A child protection case also might lead to a guardianship situation, or to termination of parental rights and adoption. Guardianships are used to give someone legal authority to care for a child until the child reaches 18 or finishes high school. Parental rights may or may not be terminated and legal custody of the child remains with the tribe while physical custody is with the guardian. Adoptions determine who the legal parents are, and both legal and physical custody of the child are with the adoptive parents.

Indian Child Welfare Act (ICWA):

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 in an attempt to remedy a long-standing problem of Indian children being removed from Indian homes and placed in non-Indian environments. The Indian Child Welfare Act attempted to correct this situation and to “protect the best interest of Indian children and to promote the stability and security of Indian tribes and families” by placing strict guidelines and restrictions on state courts handling cases concerning Indian children. The ICWA allows tribal governments to ‘intervene’ on state court cases when tribal children are involved. ‘Intervening’ means that the tribe has the legal right to be a party to a case and advisors to state court.

The Act requires state courts to follow three steps in ICWA cases:

1.  The Act requires a state court hearing a ‘child in need of aid’ custody case or an adoption case concerning a Native child, to notify the tribal government of the case. The state court is required to offer the tribal government the opportunity to intervene as a party in the case.

2.  If the tribe decides to intervene, it has the right to fully participate and advise the court concerning the appropriate placement of the child. The tribe also has the right to have representation at all court proceedings on the case.

3.  If the tribal government has intervened in a case and has requested that the case be transferred to the tribal court, the state court is generally required by ICWA to transfer the case to the tribal court. The decision of the tribal court is to be given the same ‘full faith and credit’ as a state court custody decision.

Tribal governments in Alaska have regularly been interveners in state ICWA cases. Tribal governments are usually notified of cases involving Alaska Native children and are generally permitted to intervene in those cases. Although other states in the country have transferred ICWA cases to Alaska tribes upon request for quite some time, the Alaska State courts systematically resisted the transfer of cases to tribal courts until the Alaska Supreme Court ruled on a case called C.R.H. in August of 2001.

The requirements and guidelines established by Congress through the Indian Child Welfare Act apply only to state court proceedings and do not apply to the actions of tribal courts. Tribal courts handle child protection matters, but they are not ‘ICWA cases’ because the ICWA law itself only applies to state court proceedings. Congress did not find that the tribal courts suffered from bias or acted improperly, and Congress did not attempt to restrict tribal court options. Although many tribes adopt written guidelines similar to those in the Indian Child Welfare Act, tribes may adopt other guidelines according to their own traditional values and follow their own best judgement in protecting the interest of their children.

Domestic Violence

Statistics involving domestic violence are never 100% accurate because it is far from always being reported, but the rate of domestic violence in Alaska may be the highest per capita in the United States. Domestic violence is a problem in both urban and rural communities, and among Native and non-Native populations alike. Although this is a problem throughout all of Alaska, statistics show that Alaska Native women are killed in domestic violence at a rate of more than 4 times higher than the national average. Statistics also show that the great majority of domestic violence victims are women, but that the percentage of female batterers is a bit higher in Alaska than in the Lower 48. Children suffer tremendously under any form of family violence.

Putting an end to domestic violence is obviously a task that calls for a multitude of resources, activities, and solutions. All governments, agencies, organizations, families, and individuals have a role and responsibility to work on this problem. Tribal courts have a tool in dealing with victim safety in that they may issue protective orders when their members need such protection. When tribal protective orders are filed into the State of Alaska central registry system, all state law enforcement officers are required to aid in their enforcement, no matter which state jurisdiction a victim may travel through.

Violence Against Women Act:

The Violence Against Women Act (VAWA) was passed by Congress in 1994 and requires that states and tribes give full faith and credit to each other’s protective orders. Essentially that means that state law enforcement is to recognize and enforce tribal protective orders and that tribes are to recognize state issued protective orders. In other words, if a tribal court issued a protective order for someone in their village and that person travels to Fairbanks, the Fairbanks police department is required to enforce that protective order in the same way it would enforce an order issued by an Alaska state court. State troopers may assist as well. However, state law enforcement depends on verifying protective orders by calling into the Alaska Central Registry System for Protective Orders.

Alaska’s Central Registry System for Protective Orders:

The State Department of Public Safety completed the development of a central registry system in June of 1998 that is used by law enforcement officers throughout Alaska to verify protective orders. The central registry system is a part of APSIN (Alaska Public Safety Information Network). However, current state law only allows protective orders issued by or filed with a court of this state to be placed into the state’s central registry of protective orders (AS 18.65.540). In order for a protective order issued by any tribe or state other than Alaska to be filed in the central registry system, the orders must be given to a state court clerk or magistrate who in turn gives them to local law enforcement officers to file in the Department of Public Safety’s central registry system.

On January 10, 2000 the Alaska State Court System issued a letter to Ron Otte, Commissioner of Public Safety, stating how it will handle ‘foreign’ protective orders they receive. ‘Foreign’ orders are any orders issued by a state other than Alaska or by any federally recognized tribe. The procedure is:

“Clerks of court (and magistrates in locations lacking a clerk) accept foreign orders for filing. When presented with a foreign order, the clerk reviews it to determine that it is a certified copy and that it appears on its face to be unexpired. As a matter of policy, the clerk will not contact the issuing jurisdiction for more information. The clerk will file stamp the order and assign it an Alaska Court System civil case number. The clerk next will distribute the order to the appropriate local law enforcement agency for entry into the central registry (the same distribution used for Alaska protection orders).”

This means that if a tribal court in Alaska issues a protective order, the court may give a certified copy of the order to a state court clerk or magistrate, who in turn gives it to appropriate law enforcement to file in the state’s central registry system. The order can be verified by any law enforcement officer by a call into the central system and enforced in the exact manner in which a state issued protective order would be.

Alaska tribes have made significant progress in gaining cooperation from the state in the area of tribal protective orders. However, tribes may still face challenges to their jurisdiction and due process procedures on a case by case basis. In other words, although the state court will accept and file foreign protective orders, a party who wishes to challenge the enforceability of a filed foreign order may file a motion to stay enforcement or another appropriate motion. The safest way for tribes to avoid challenges is to issue protective orders under a tribal court process that provides notice, opportunity to be heard, and fair hearings. In emergency situations for a temporary protective order, notice of hearings is not as critical and tribal courts may provide notice and hold an emergency hearing the best they can under the circumstances. The main point is keeping people safe until a regular hearing can be held. In terms of jurisdictional challenges, the most defendable assertion may be over tribal members or protecting the health and safety of tribal members.

State and Tribal Jurisdiction over Domestic Violence:

In the area of domestic violence, tribal and state jurisdiction overlap. A victim could seek a protective order under either state or tribal law. In terms of state law, Alaska has a mandatory arrest requirement (AS 18.65.530), which requires a state law enforcement officer to arrest a person if the officer has probable cause to believe that the person has, either in or outside the presence of the officer, committed domestic violence or violated a protective order within the previous 12 hours. When domestic violence occurs in villages off the road system that have no local law enforcement officer, State Troopers from regional centers may or may not respond depending on the severity of weather conditions, the urgency of other matters they are dealing with in other villages, the apparent severity of the situation, and so forth. If they do, it is commonly after the 12 hour time period for mandatory arrest, in which case an arrest is up to the discretion of the officer.

In terms of tribal law, tribes have the strongest jurisdictional arguments for dealing with domestic violence when tribal members are involved. As long as a victim of domestic violence remains in the village, it is basically up to the normal law enforcement in or available to the village to enforce a tribally issued protective order. But state law enforcement may assist in the village if the order is filed in the central registry system. Whether a protective order is filed in the central registry system or not, it is ALWAYS advisable for a victim to carry a copy of a protective order with them when they travel outside their home.

Practical Issues for Enforcing Protective Orders:

As a practical matter, recognition of tribal protective orders by air carriers in Alaska is a front line defense for victim safety. Most Alaska Native villages are predominately accessible by bush aircraft. A mandate that perpetrators stay a minimum of 1,000 feet (or some such figure), away from victims is not practical for victim safety in remote villages. If a perpetrator is temporarily or permanently banished from a village to protect a victim’s safety, cooperation from local air carriers becomes essential. Air carrier recognition of tribal protective orders and cooperation has been occurring in the Interior.

Although most Alaska tribes handle cases that are legal in nature, there is a wide range in their stages of tribal court development. Much training and technical service on tribal court development has been delivered in Alaska, but a great deal more is needed. A few tribes have lengthy tribal codes establishing structures and procedures for their tribal courts, while others have only a few ordinances or function solely on unwritten tribal law. The Indian Civil Rights Act and the VAWA both require a standard of due process, and informal tribal courts face more challenges by the state and federal governments than those that are more formally organized. Support of tribal court development is a key issue for successful issuance and recognition of tribal protective orders in Alaska.

Domestic violence has not been extensively discussed in public Native forums in Alaska until relatively recently. The VAWA and the dollars provided through the STOP grant program have been largely responsible for the domestic violence movement that has begun among the Alaska Native people. Due in part to the large number of tribes in Alaska and their remote locations, many tribes in Alaska are not aware that they can issue protective orders and of the full faith and credit provisions of VAWA. Communication and education are hindered in Alaska because of the remoteness of the villages and because internet connections are not available to all tribes in Alaska. However, many plans are in the works for much greater Internet access for rural Alaska. Education is one of the keys to assist the villages in developing the political will to tackle domestic violence and to utilize the full range of legal tools that should be available to them.

Given the prevalence of domestic violence in Alaska Native villages, it is essential for the State of Alaska, the federal government, and Alaska tribes to cooperate in enforcement efforts to stop the violence. The State of Alaska does not have the fiscal or human resources to adequately address domestic violence situations in rural Alaska, and there is a practical need to recognize local tribal authority and tribal courts for dealing with this grave problem. Recognition, fiscal support, and education are fundamental elements of the implementation of full faith and credit under the Violence Against Women Act for Alaska tribes.

Protection of Elders and Vulnerable Adults

Unfortunately, Elders and vulnerable adults in the villages sometimes need protection. Elder abuse is the mistreatment or neglect of an older person, and usually is caused by a relative or other caregiver. Elder abuse may be defined by each tribe, but commonly includes physical violence, threats, verbal abuse, financial exploitation, emotional abuse, chronic neglect, or violation of an older person’s privacy or other basic rights. Victims often live with family members and depend on them for daily care. It is a problem that occurs with alarming frequency in families from all backgrounds and in every part of the country.

Vulnerable adults have a physical or mental impairment or condition that prevents them from protecting themselves or from seeking help from someone else. The harm they suffer may result from abandonment, abuse, exploitation, neglect, or self-neglect. Tribal law that concerns the protection of Elders typically includes vulnerable adults as well.

One way for tribes to uphold their traditional ways of honoring and respecting tribal Elders is for tribal courts to hear cases of reported abuse of Elders and to make decisions that protect the interests of Elders. Such a case would begin with a petition to the tribal court giving the name of the petitioner, the name and location of the Elder, the suspected conditions of abuse or neglect, and any other facts the petitioner believes will assist the court. The court may decide any number of things depending on the situation, including designating a person to monitor the situation, or to take the Elder or vulnerable person out of the place where they currently are, and place them in a safe place. A protective order may be used in these cases.

Marriages, Divorces, and Annulments

The subjects of marriages, divorces and annulments fall under the general category of domestic relations. Tribal courts in the Lower 48 commonly oversee these subjects, and tribes in Alaska will likely assert more jurisdiction over these subjects as time goes on. Tribes in the Interior have performed quite a few marriages in recent years, but have not actively asserted jurisdiction over divorces and annulments. Tribes have flexibility in terms of conditions and procedures for performing marriages, and may adopt guidelines or written ordinances describing certain conditions for performing marriages. Guidelines might include such things as age limits, what is necessary to marry people under those age limits, required blood tests, the necessity for witnesses, affidavits that might be necessary and so forth. The tribal court should have a tribal certificate of marriage or marriage license to fill out during or after the ceremony. Although tribes in Alaska have extensive histories of cultural marriages, the legal aspect of performing marriage ceremonies is relatively new. It will take some time to ‘test the waters’ so to speak, in terms of how the State of Alaska will view tribally performed marriages. Divorces and annulments are more complicated, especially when child custody and property rights are issues. However, some Alaska tribal courts have already been dealing with custody issues as part of divorce settlements.

Probate

Tribes in general have histories of extensive unwritten traditional law regarding what happens to a person’s property or children upon their death. However, this is an area of law that has become increasingly more complex for tribes, as federal and state laws have been imposed on them. ‘Probate’ is an action or proceeding before a judge to establish that a written will, if any, is genuine and valid, or in the absence of a will, to determine the heirs of estates of deceased persons.

Complications in probate stem partly from the unique ways Alaska Natives own real and personal property. Native allotments, for example, are burdened by federal restrictions on alienation and descent. An oral will might be appropriate under tribal law for disposing non-restricted property, but would not be valid for restricted property because federal regulations require a written will. One basic rule of probate is that federal law controls the descent of restricted property, while state or tribal law controls the descent of non-restricted property.

The probate jurisdiction of tribal courts depends on the type of property that is involved. Tribal courts have no jurisdiction over the probate of restricted property because that is under the exclusive jurisdiction of the Department of the Interior acting in accordance with federal statutes and regulations. The law concerning probate of non-restricted property varies, depending on whether the property is personal (movable) or real property (land and things such as buildings). Additionally, tribal courts have jurisdiction only to the extent authorized by tribal constitutions and ordinances.

In general, probate law is such that real property is subject to probate in the courts of the place in which it is located. This is a jurisdictional issue that will likely undergo testing for Alaska tribal courts because of the problems associated with the lack of recognition of Indian country. For example, in terms of probate, unrestricted property owned by a tribal member in a village, may or may not be viewed differently than unrestricted property owned by that tribal member in Fairbanks.

In spite of jurisdictional problems that might exist, many tribes in Alaska are interested in and have become involved with probating tribal member property. Written guidance for tribal courts in a form such as a tribal probate ordinance is a good foundational step in making tribal jurisdictional assertions in the area of probate.

Cultural Protections - Artifacts and Research on the Tribe

Tribal courts may be asked to hear cases concerning the protection of cultural items or issues such as disputes over artifacts, or the manner in which cultural research is conducted. The tribal court of the Chilkat Indian Village, IRA (Southeast Alaska) was asked to hear a cultural protection case in the early 1990s. Some very valuable cultural artifacts known as the ‘Whale House artifacts’ had been removed from the village and the Tribe sought to get them back through a federal district court. However, after reviewing the matter and noting that the Chilkat Tribe had an artifact ordinance and tribal court, the federal court turned the case over to the Chilkat Tribal Court to decide. The tribal ordinance the Chilkat Tribal Court was asked to enforce was adopted by the Tribe in 1976, and read:

“No person shall enter on to the property of the Chilkat Indian Village for the purpose of buying, trading for, soliciting the purchase of, or otherwise seeking to arrange the removal of artifacts, clan crests, or other traditional Indian art work owned or held by members of the Chilkat Indian Village or kept within the boundaries of the real property owned by the Chilkat Indian Village, without first requesting and obtaining permission to do so from the Chilkat Indian Village Council.”

This simple ordinance and the hard work of the Chilkat Tribal Court managed to bring back the priceless artifacts to the Tribe.

Some tribes have ordinances outlining guidelines for conducting research on tribal culture. Just as in the Chilkat artifact case, tribal courts might be asked to enforce such an ordinance:

Chapter _______

Research on the __________ Tribe and Land

 

Section 1. Purpose

The purpose of this ordinance is to protect the sacred knowledge and cultural property of the __________ Tribe. [A much more detailed and relevant purpose statement could be made here.]

Section 2. Research Requirements

Researchers on any topic involving the __________ people or land shall abide by the following:

1. No research on the __________ people or land shall be conducted without the express permission of the __________ Tribal Council.

2. The goals and time frames of all research shall be reported to the Council as well as the data-gathering techniques and the positive and negative implications and impacts of the research.

3. Tribal members shall be involved through hiring and training in research projects to the maximum extent feasible.

4. Persons who are interviewed shall be compensated.

5. Researchers shall guarantee confidentiality of surveys and sensitive material.

6. Research cannot be used to represent the Tribe without Tribal Council approval.

7. Viewpoints of the __________ Tribe shall be included in final studies.

8. The results of all research shall be reported back to the __________ Tribal Council and copies of all research products provided to the Tribe.

Law and Order - Health and Safety

Most Alaska tribes are located in remote parts of the State and have very limited access to state law enforcement officers. State Troopers generally respond to the most significant situations in the villages, but many issues are not addressed. Most tribal courts in Alaska have taken on cases, or are interested in taking on cases, of at least some types of less than major crimes. Tribes are doing this not only to fill in the gap of needed services, but also because they have more flexibility in sentencing options in terms of cultural appropriateness and therapeutic remedies.

Tribal jurisdiction in this area is not clear, but tribes across Alaska are increasingly asserting jurisdiction in a civil manner in order to protect the health, safety, and welfare of tribal members. The types of law and order cases Alaska tribal courts might hear include:

When someone allegedly violates a tribal court ordinance that regulates behavior to protect the health, safety, and welfare of the tribe, the case is typically brought to the attention of the tribal court by issuing a Complaint (this might also be called a citation, ticket, or some other such word) to an alleged violator and also filing it with the tribal court clerk. The Complaint states information such as what tribal law was allegedly violated, by whom, when, where, and other information relevant to the situation. Tribes need to make clear decisions about who is authorized to issue complaints. Many tribes use Village Public Safety Officers (VPSOs) or Tribal Police Officers (TPOs or VPOs), but other persons may also be authorized as well.

It is critical that the State of Alaska and tribes work together in the area of law and order to provide the safest environment possible in the villages. While the State may be the appropriate party to handle the most serious offences and to incarcerate those who need to be, the State also needs to support tribal efforts to handle offences that are not being adequately addressed.

Alcohol Regulation

Problems stemming from alcohol abuse are a primary concern of villages, a problem so extensive that Elders of the Tanana Chiefs region declared a "war" on alcohol. Alcohol addiction is a complex problem with no simple solutions. Alcohol abuse affects every person in Alaska, either directly or indirectly, and dealing with the web of problems it creates requires both individual and community efforts.

By itself, adopting state or tribal laws to prohibit sale, importation, or possession of alcohol in the village will not solve the alcohol problems. Although adopting such laws may be a vital tool in addressing alcohol problems, the village must do more than simply pass laws about alcohol. Community cooperation is needed to enforce the laws. Tribal court enforcement with cooperation from the community may be part of the solution when combined with other things such as:

In Indian country tribes have a wide range of jurisdiction to regulate alcohol in terms of sale, importation, possession and so forth. Without Indian country, or with the potential patchwork quilt of Indian country in Alaska, tribal jurisdiction over the regulation of alcohol is less clear. In spite of outstanding questions of jurisdiction, there are tribes in Alaska regulating alcohol to protect the health, safety and welfare of tribal members. They are addressing alcohol problems through tribal alcohol ordinances and tribal court enforcement. Many villages have both tribal alcohol ordinances and state local option laws. Having both sets of laws in place gives villages more flexibility and options for regulating alcohol.

Alcohol regulation under tribal ordinances is enforced by the tribe itself without assistance from the state. Advantages to this method are that the control is entirely local and can be handled within the tribe, sentencing may be designed to suit the particular situation, and violators do not end up with a state criminal record. On the down side, small tribes often have difficulty enforcing their own ordinances due to limited law enforcement. Successful enforcement of tribal alcohol ordinances largely depends on significant community support and tribal council leaders willing to make it a priority.

A few Alaska tribal alcohol ordinances have been published in the federal register. If a tribe publishes its alcohol ordinance in the federal register, the federal courts may get involved if the tribe is having trouble enforcing its alcohol laws. In Alaska this is still theory though, because federal courts have not yet assisted any tribes in this manner. The federal courts were asked to assist on at least one Alaska tribal case, but in that situation there were due process problems with the way the tribe had handled the case. Basic due process required by the Indian Civil Rights Act must be followed in all cases referred to federal authorities. If alcohol was improperly seized or notice of hearing not given, for example, the federal courts may not take a case. Although publishing a tribal alcohol ordinance in the federal register has not yet brought federal court back-up to Alaska tribes, it makes a statement about the tribe’s intention and may be significant for assertion of tribal jurisdiction in terms of alcohol, at some point in the future.

Employment Issues

Employment issues occupy a significant portion of the tribal court calendars in many of the Lower 48 tribal courts. Laws relating to the workplace seem to get more and more detailed and complex as time goes on. Federal and state labor laws are voluminous, and tribal personal policies and ordinances governing the tribal workplace are expanding as well. Most Alaska tribal offices have full time employees; some tribes have a dozen or more tribal staff.

Many Alaska tribes have adopted TERO (Tribal Employment Rights Office) ordinances in an effort to assist the local village work force to achieve maximum employment. Those ordinances typically establish tribal policies regarding hiring practices for employers in the village to follow. There are jurisdictional problems for Alaska tribes in fully enforcing TERO ordinances because of Indian country questions, but as time goes on, tribal courts in Alaska likely will see a variety of tribal employment issues come before them.

Internal Tribal Government Matters

Tribes are not required to separate sovereign powers between their tribal councils and tribal courts, and many tribes in Alaska do not at this time. Typical reasons for not creating two bodies of people, and separating sovereign powers are that very small tribes might not have the human resources to fill two branches of government, or, that separating powers is not along the lines of traditional ways for some tribes.

One of the advantages of separating powers, however, is the check and balance system on government that tends to encourage fairness in government. For example, a tribal member might petition the tribal court to review a tribal election sponsored by the tribal council that allegedly was not held according to the procedures outlined in the tribe’s election ordinance. If a problem with the election was found, the court might require any number of things according to the facts of the situation. In this way, the tribal court would be used to settle the election dispute. Obviously this type of dispute resolution only works if the tribal court and tribal council are separate bodies. It is equally obvious that it is possible to create two bodies of people in the village fighting each other over various issues: tribal court vs. tribal council. If a tribe decides to separate their tribal court from the tribal council, care should be taken to clarify the relationship between the two in writing, and to design the structure and procedures of the council and court to best avoid such conflict.

Because tribes have sovereign immunity, they must consent to be sued if they wish to allow persons to bring grievances against the tribal governments before their tribal courts. Some tribes allow it and some do not. Some developing tribal governments have yet to deal directly with this issue and make such a decision. Allowing persons to bring grievances is an important oversight process for tribal governments. Tribes themselves are responsible for enforcing many of the individual rights and provisions of the Indian Civil Rights Act and for overseeing matters of internal tribal affairs. If tribes do not allow these cases to come before their tribal courts, such matters either may not be addressed, or may for some reason end up in state of federal courts.

Environmental Regulation

Alaska Native people have been caring for and living off the land for centuries. Land and Native cultures are inseparable, as many, many Native people have testified to throughout the Alaska Native Land Claims settlement and subsistence rights battles. Ownership of specific pieces of land identified by lines on maps and governed by complex written law is not the traditional Native way. But this generation must confront an abundance of boundary lines, multiple types of land uses and ownership, and complicated management schemes. The health of the land is threatened by imported pollutants, and pollutants migrating from other places to tribal land, water, and air. Although tribal jurisdiction to protect the environment is not yet totally clear for Alaska tribes, tribes in Alaska are aggressively moving forward in this area.

Tribal councils are playing an increasingly critical role in regulating the environment in the villages and on the surrounding lands. Many tribes have environmental ordinances regulating air and water quality, solid waste management, hazardous waste disposal, hazardous material and chemical storage, littering, disposal of vehicles, and open burning. Enforcement of these types of tribal ordinances depends to a large extent on tribal citizens obeying them and watching out that others do as well. But ultimately, tribal courts will be called on to enforce more of these types of ordinances.

Conclusion

In spite of uncertainties clouding tribal jurisdiction in Alaska, Alaska tribes are handling a wide spectrum of issues in their tribal courts. Tribes are simply taking care of problems occurring in their villages and asserting tribal jurisdiction the best they can. At this time, the majority of tribal court cases in Alaska concern tribal children. Children are the most precious tribal resource, and tribal courts are developing rapidly across the State to aid in their protection.

This chapter presents a very basic overview of subjects and is by no means a complete listing of all possible subjects tribal courts might undertake. On the other hand, it may contain subjects that some tribal courts may never undertake. Most Alaska tribes start their tribal court with a limited number of subjects for the court to address, and add subjects as the tribal court progresses. Some tribes tend to wait until tribal jurisdiction is clearly authorized over a subject before taking it on, some cautiously proceed to test the waters in asserting subject matter jurisdiction, while others boldly assert jurisdiction over subjects that likely will never be recognized. With 229 federally recognized tribes, there is a tremendous spread of approaches, styles, and activity in asserting subject matter jurisdiction.

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