Exercised By Alaska Tribal Courts
“Every right we have was acquired at a significant cost, paid for by us or by others to whom that right was worth fighting for. Yet unless we know what our rights are, we cannot exercise them, and unless we exercise them, we will lose them.”
Stephen L. Pevar
Indian Rights Teacher and Attorney
|Path within the Tribe for Exercising Tribal Jurisdiction|
|Concurrent Jurisdiction Between Tribes (Comity Guidelines for Tribes)|
|State Jurisdiction under ICWA - Transferring Cases to Tribes|
|Effects of the Venetie, John, and C.R.H cases on Tribal Jurisdiction|
|Effects of P.L. 280 on Tribal Jurisdiction|
© Tanana Chiefs Conference,
Inc. and Lisa Jaeger
122 First Avenue, Suite 600
Fairbanks, Alaska 99701
Jurisdiction is at the heart of tribal sovereignty, and tribal courts throughout Alaska are on the front lines of asserting it. Tribal jurisdiction is the authority of a tribal government to enforce tribal laws. The roots of tribal jurisdiction come from the original self-governing authority that tribes had before European settlers came to this land, and recognized as such by the federal government. It is described as inherent sovereignty. One of the most basic principles of federal Indian law is that tribes have inherent powers to self-govern unless Congress, through its plenary power over Indian tribes, specifically limits or terminates a particular tribal power. Sometimes however, Congress is vague or silent about a matter and disputes arise over whether tribes have jurisdiction. In those situations, federal courts,or sometimes state courts, are asked to interpret the intentions of Congress. Decisions made by courts in these instances are law until Congress otherwise decides.
The tribes in the Lower 48 have already faced two of centuries of federal and state court rulings on various aspects of tribal jurisdiction, and the process still continues there. Even in the Lower 48, the jurisdictions of tribes with reservations, long histories of tribal-state-federal relations, treaties, highly developed tribal governments, and fully operational tribal courts, face ongoing challenges by state and federal courts. Tribes across the nation have been forced to live with some amount of uncertainty when it comes to the extent of their jurisdiction. But in the face of this, tribes move forward, address problems among their people in their tribal courts, and continue to exercise and assert jurisdiction.
Although federal Indian law applies to Alaska tribes in the same basic manner in which it does to tribes in the Lower 48, Alaska tribes face additional challenges because of the way aboriginal land claims were settled. Mainly it is the territorial component of jurisdiction, Indian country, which is different for Alaska tribes. Recognition and exercise of tribal jurisdiction in Alaska is focused more on the health and welfare of tribal members, than on a territorial area. Alaska tribes have achieved federal and state recognition of their tribal status, and some clarification of their jurisdiction, but the extent of tribal jurisdiction in Alaska is not yet clear, and will likely be the subject of state and federal court cases for years to come.
The federal government, the State of Alaska, and Alaska Native tribes all have some amount of jurisdiction in Alaska villages. However, there is much debate over how much jurisdiction tribal governments have in relation to the federal and state governments. At this time many Alaska tribal governments are going forward and exercising jurisdiction on a variety of fronts even though the full extent of tribal powers in Alaska is unclear. In doing this, tribal governments are asserting their jurisdiction and taking care of problems in the village, which is the most basic exercise of tribal sovereignty. The State of Alaska, the federal government, or the private sector may challenge these tribal assertions in state and federal courts, and in this way, the extent of tribal jurisdiction in Alaska will likely be clarified.
Jurisdiction Terminology - General Categories of Jurisdiction
Jurisdiction is the authority to enforce law, and there are many ways to describe and categorize it. Three large categories are ‘territorial,’ ‘personal’, and ‘subject matter’ jurisdiction.’ Subject matter jurisdiction is further divided into ‘civil’ and ‘criminal’ subjects. Often more than one government has jurisdiction over a situation, and this shared jurisdiction is called ‘concurrent.’ When only one government has jurisdiction over a situation, it is called ‘exclusive’ jurisdiction.
‘Territorial jurisdiction’ is the physical land area over which a government enforces its laws. For cities it is the land within city boundaries, for states it is land within state boundaries, and for tribes it is within Indian country boundaries. ‘Indian country’ is the legal term for the territorial jurisdiction of an Indian tribe, and is the land within reservation boundaries for most Lower 48 tribes. Congress defined Indian country in 1948 to mean reservation land, dependent Indian communities, and all Indian allotments. Indian country is limited in Alaska but tribes still have substantial inherent powers to exercise jurisdiction over certain persons and subjects. The term ‘Indian country’ is used in more general ways sometimes, referring to Native land and communities in general, but the legal use of the term refers very specially to the territorial aspect of tribal jurisdiction.
‘Personal jurisdiction’ describes the persons over which a government can exercise control. For tribes, this generally includes tribal members, those who affect the health and welfare of the tribe or tribal members, those who affect the political integrity or economic security of the tribe, and those who enter into consensual relations with the tribe or its members.
‘Subject matter jurisdiction’ refers to the specific subjects or activities a court can hear cases about. Subject matter jurisdiction is further divided into the categories of criminal jurisdiction or civil jurisdiction. There is no absolute distinction between criminal and civil jurisdiction, but one guideline is that if breaking a law can result in jail time, that law is a criminal law. Other areas of law are civil law.
People used to think that governments needed all three of these jurisdictional aspects (territorial, subject matter and, personal) in order to have jurisdiction over a given situation. Over time this view has changed, and for Alaska tribes, personal jurisdiction and subject matter are becoming most central. Territorial jurisdiction has become less important.
‘Exclusive jurisdiction’ exists when one and only one government has jurisdiction over a particular matter. Tribes in Alaska have some exclusive jurisdiction. The extent of exclusive tribal jurisdiction is subject to debate, but examples of exclusive tribal jurisdiction include the power to define tribal membership and the power to control internal governmental affairs. A significant portion of tribal jurisdiction falls under the category of ‘concurrent’ rather than exclusive, where both tribes and the state, or where two or more tribes, share jurisdiction over a situation.Territorial Jurisdiction - Indian Country
Although sometimes used in other more general ways, Indian country is a legal term for the territorial jurisdiction of a federally recognized tribe. The term applies to Yup’ik, Inupiat, Aleut, and other Alaska Native tribes as well as to Indians in Alaska and in the Lower 48. Generally speaking, tribes have broader jurisdictional authority if they have Indian country than without it. For most Lower 48 tribes, Indian country is the area within their reservation boundaries, sometimes with pockets of exceptions (inholdings) within the reservation. Alaska tribes do not have reservations except for Metlakatla, so the issue of Indian country is different from the Lower 48. Indian country in Alaska is limited under a 1998 ruling by the United States Supreme Court in the Venetie Tax case. In that case, the Court held that land that has gone through the Alaska Native Claims Settlement Act (ANCSA) is no longer Indian country. However, Native allotments and all or some lands within Alaska Native townsites likely are Indian country. It will take more court cases or an act of Congress to sort out the final picture of where Indian country exists in Alaska, and what practical effect it may or may not have on tribal jurisdiction.
Although the aboriginal land claim settlement under ANCSA went to Native corporations instead of to tribes themselves, many if not most tribes in Alaska own land in fee simple title. That is, the tribe’s name is on the deed. Most tribes own small amounts, but some own very large amounts or significant portions of village sites. Alaska tribes have acquired land in a variety of ways, including transfer of corporation land to the tribes, transfer of Alaska Native townsite lots from the Bureau of Land Management, transfer of city land to tribes, and through purchase and gifts. Even if this land does not qualify as Indian country, a tribe that owns land has considerable control over it as a private landowner and under the immunities and powers of tribal status.
Even without territory, tribes in Alaska still have a great deal of jurisdiction. The Alaska Supreme Court basically held in John v Baker (1999) that tribal courts in Alaska have sovereign powers to regulate internal domestic affairs even if tribes do not have Indian country. The Court also acknowledged tribal inherent authority over activities that affect the political integrity of the tribe, economic security, the health and welfare of the tribe, and over those who enter into consensual relationships with the tribe.
Personal Jurisdiction - Tribal Members and Protecting Tribal Members
Personal jurisdiction refers to the individuals over whom a government has the authority to exercise control. Generally, governments exercise personal jurisdiction over persons located within that government’s territorial boundaries. Tribal governments located on reservations exercise personal jurisdiction in some subject areas over tribal members on and off the reservation, persons who live and/or do business on the reservation, and over visitors who come onto the reservation. Indian country may increase jurisdiction to some degree, but is not necessary for the exercise of personal jurisdiction over some subject areas.
A limitation on personal jurisdiction for all tribes comes from a ruling by the U.S. Supreme Court in Oliphant v. Suquamish (1978), in which the Court ruled that tribes do not have criminal jurisdiction over non-Indians unless Congress specifically delegates that power to them. In response to this many tribes have ‘decriminalized’ their laws, making them civil rather than criminal laws, and not using incarceration as a penalty.
In John v Baker (1999), the Alaska Supreme Court recognized tribal jurisdiction over tribal members in the area of domestic relations, even in the absence of Indian country. The Court said, “Federal 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.” In other words, the State recognized tribal jurisdiction of Alaska tribes over tribal members (personal jurisdiction) in the area of domestic relations (subject matter jurisdiction) even in the absence of Indian country (territorial jurisdiction).
In addition to recognizing tribal jurisdiction over tribal members in domestic matters in the John case, the Alaska Supreme Court also referred to tribal authority over some personal actions that affect tribal interests. The Alaska Supreme Court cited language from a US Supreme Court ruling, Montana v United States (1981). In Montana, the US Supreme Court acknowledged that tribal courts have some degree of inherent authority over persons and activities that affect the political integrity, economic security, or the health and welfare of the tribe, and over persons who enter into a consensual relationship with the tribe or tribal members. Alaska tribal courts are increasingly asserting jurisdiction over tribal members in the area of domestic relations. They are also asserting jurisdiction over non-tribal members when the health and welfare of the tribe or tribal members are involved, and when consensual relationships exist.
Tribal jurisdiction for Alaska tribes is largely centered on personal jurisdiction over tribal members. It is therefore critical for tribes to clearly know who their tribal members are and who is eligible for tribal membership. Tribal membership criteria and enrollment procedures and records should be well developed. Because Alaska has so many tribes, and there are so many families where parents are from two different tribes, it is important for tribes to allow dual enrollment for children and to prohibit the disenrollment of children, in order to preserve the broadest range of jurisdictional options over childrens cases when custody issues arise.Subject Matter Jurisdiction - Subjects Tribal Courts Handle
Tribal courts across the United States handle a wide variety of subjects. Examples of subjects tribal courts handle include:
Domestic Relations: adoptions, child protection, child custody cases, guardianships, divorces and marriages, protecting Elders and other vulnerable adults, domestic violence, and probate.
Health and welfare: disturbing the peace, dog leash violations, vandalism, petty theft, traffic violations, assaults, trespass, alcohol issues such as importation, sale, possession, intoxication in public, juvenile delinquency, truancy, curfew, and other issues that are regulated to protect the health and safety of tribal members.
Regulatory Enforcement: enforcement of zoning ordinances, employment issues, business issues, environmental regulations, wildlife regulation and so forth.
Internal Governmental Affairs: disputes over tribal elections, membership and enrollment issues, procedural problems within the tribal government, and grievances against the tribal government.
Nearly all tribal courts in Alaska exercise some jurisdiction over family and domestic matters, especially cases concerning child protection, guardianship, custody and adoption. Some have expanded to subjects in health and welfare, and regulatory enforcement. A few tribal courts that are separate from the tribal councils handle disputes concerning tribal governmental procedures and grievances under the Indian Civil Rights Act.
Some tribal courts handle subjects in the area of law and order, such as minor assaults, theft, and drug and alcohol matters, but handle them in a civil rather than a criminal manner. In other words, the penalties do not include jail time, but do include such requirements as counseling, community service, restitution, or traditional activities.Connection between Jurisdiction and Due Process
State and federal courts respect and honor the proceedings of each other and of tribal courts as long as the court has jurisdiction over a case and has provided parties with due process. Due process basically is fair notice and an opportunity to be heard in a fair hearing. Tribal provisions for due process need not be the same as the state, but they must be present in order to fend off challenges to tribal court proceedings. A valid exercise of tribal jurisdiction over matters that could be challenged in the state or federal courts requires that due process be provided.
The Alaska Supreme Court referred to due process and how it should apply to tribal courts in John v Baker (1999). In the opinion for that case, the Supreme Court gave some insight as to what they expect of tribes in terms of due process:
“We also agree with the Ninth Circuit that state courts should afford no comity to proceedings in which any litigant is denied due process. In deciding whether tribal court proceedings complied with due process, courts should consider whether the parties received notice of the proceedings and whether they were granted a full and fair opportunity to be heard before an impartial tribunal that conducted the proceedings in a regular fashion. An indication that the judiciary was dominated by the opposing litigant would suggest that due process had been violated. But this due process analysis in no way requires tribes to use procedures identical to ours in their courts. The comity analysis is not an invitation for our courts to deny recognition to tribal judgments based on paternalistic notions of proper procedure. 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.”
By these words, the Alaska State Supreme Court basically meant that tribal courts must notify parties that a hearing is going to be held, then must give parties an opportunity to present their side of the story, and the hearing must be done in a fair way. The Court was also saying that tribes may provide due process in a different manner than the state. The Court recognized that there are cultural differences and also difficulties created by the small size of tribal court systems.
Path Within the Tribe for Exercising Tribal Jurisdiction
Tribal sovereignty and jurisdictional powers of tribes belong to the entire tribal membership. Tribal members delegate their sovereign powers to tribal governments to exercise, typically through the article of tribal constitutions that define tribal powers. Sometimes tribal members reserve certain powers for themselves, and do not delegate them to the council. Examples of reserving powers are when a vote of the tribal membership is required before selling tribal land or before waiving sovereign immunity under certain circumstances. The majority of tribal powers, however, are delegated from tribal members to tribal councils to exercise.
Tribal jurisdiction may be viewed in terms of judicial, legislative, and administrative powers. Typically, tribal councils exercise legislative powers by enacting tribal policies and ordinances. Administrative powers, such as hiring and firing decisions for tribal employees, is commonly exercised by the council as well. In terms of judicial powers, tribal councils may exercise them by serving as the tribal court, or, they may set up a separate body from the tribal council. For whatever reasons, some tribes choose to simply not exercise judicial powers.
Tribes may place jurisdictional limits on themselves. For example, a tribe may limit the jurisdiction of their tribal court, by allowing it to hear only certain types of cases such as child protection, custody, and adoption. On the other hand, a tribe might allow the tribal court to hear any cases that the tribe may have jurisdiction over, or may set up several specialty courts to hear specific kinds of cases. An example of a specialty court is a tribal youth court which may only hear cases involving youth between certain ages.
In writing, a broad claim of tribal jurisdiction for an Alaska tribal court might look something like this:
The jurisdiction of the __________ Tribal Court shall extend over governmental processes internal to the Tribe, and over matters arising:
1. In the __________ Tribe’s Indian country; and/or
2. Over all tribal members, enrolled or eligible, regardless of where they live or do business; and/or
3. Over all persons and entities who enter into consensual relations with the Tribe or tribal members, or whose activities affect the political integrity, economic security, or health and welfare of the Tribe or tribal members; and/or
4. Over any matters so delegated by Congress.
State and federal courts recognize tribal court orders if the tribe has jurisdiction over the matter and if the tribe offers due process. Therefore, it is a good idea for tribal court order forms to have a section that explains why the tribal court believes that it has jurisdiction in a particular case. The section might look something like this:
This Tribal Court has jurisdiction over this matter because this case involves:
¤regulation of conduct of a Tribal member(s) and/or
¤protection of Tribal member(s) and/or
¤the matter arose in Indian Country and/or
¤The matter was delegated to the jurisdiction of the __________ Tribe.
Jurisdiction of the Itsa Village Tribal Court:
This child is a member of the Itsa Village Tribe because the parents, Joe and Suzie Que are tribal members.
Concurrent Jurisdiction - Comity and Full Faith and CreditConcurrent jurisdiction exists when two or more governments share jurisdiction over the same situation. In other words, more than one court has jurisdiction over the same case, and could potentially hear it. For example, both the State of Alaska and tribes have jurisdiction over child custody matters involving tribal children. Concurrent jurisdiction occurs very commonly, and sometimes governments have written agreements to sort out which one is going to handle what, and under what circumstances. However, in many cases there are no written agreements between governments. In these cases, they resort to the general principle of ‘comity’ for sorting out concurrent jurisdictions.
Under the principle of comity, courts recognize each other’s judicial decisions out of mutual respect. It is a basic international principle of law that arose from difficulties and injustices that arise when more than one court tries to assert jurisdiction over the same case. The voluntary recognition of another court’s jurisdiction and orders is based on a concern for due process in the administration of justice. If more than one court tries to handle a single case, there is a strong possibility of different and conflicting decisions, which would place the parties in the impossible position of trying to follow the law of both courts. To avoid the miscarriage of justice and the violation of due process, courts attempt to cooperate in matters of concurrent jurisdiction.
Another way courts recognize each other’s orders is under a requirement of ‘full faith and credit.’ There is a full faith and credit clause of the United States Constitution that requires states to recognize legislative acts, public records, and the judicial decisions of the other states of the United States. Sometimes Congress passes acts that require recognition under full faith and credit between tribes and states, such as the Violence Against Women Act (1994). That Act requires states and tribes to recognize each other’s protective orders. Full faith and credit is a bit stronger requirement to respect another court’s order than is the principle of comity. However, under either a court’s order could be challenged by another court if due process was not given.
Concurrent jurisdiction sometimes leads to the situation where there is a ‘race to the courthouse’ to begin a case. In other words, the court that first begins a case assumes jurisdiction over it. When this happens, other courts respect the priority jurisdiction of the first court. Because Alaska tribes and the State of Alaska have concurrent jurisdiction over child custody, it is important for tribes to begin cases that they would like to handle for tribal children who are in trouble as soon as possible, to avoid the case from becoming a state case first.
Concurrent Jurisdiction Between Tribes
In addition to the state and tribes sharing jurisdiction, two or more tribes may concurrently share jurisdiction over a matter. This situation commonly arises, for example, in child protection or custody disputes over Native children who are eligible for tribal membership in more than one village. In these circumstances, one tribal court either defers jurisdiction to the other court or both courts work out an arrangement to work together as a joint court, or with one court advising the other.
Ideas for comity guidelines when two or more tribal courts have jurisdiction over children:
¤If the situation is not an emergency, two tribes that share jurisdiction over a childrens case (because the children are tribal members or eligible for tribal membership in both tribes) should talk with each other to discuss which tribal court should hear the case or if there should be a joint tribal court formed.
¤In emergencies, the tribal court that begins to handle a case should be recognized by the other tribal courts to have ‘priority’ jurisdiction for the time being. If another tribal court has more significant connection to the child, the case can be transferred to that court later.
¤If the court that is hearing a case has significant connections with the child and has made significant progress in the handling of the case, the other tribal courts should defer to that court’s jurisdiction, permitting it to complete the case.
¤If more than one tribal court has jurisdiction over a child, and neither has spent much time on the case, both courts should examine the cultural, family, and residential contacts of the child with each of the tribal communities and decide which village is the one with the most significant contacts.
¤If more than one tribal community has significant contacts with the child, the tribal courts of those communities can work out a cooperative agreement such as a joint tribal court panel to hear the case. A joint tribal court panel is an option that is fairly common among Alaska tribes.
¤Tribes could allow other tribes to be interveners on a children’s case, similarly to state courts under the terms of the Indian Child Welfare Act.
¤Tribal courts should voluntarily transfer the jurisdiction of the child’s case to any court that will best be able to serve the best interest of the child.
State Jurisdiction under ICWA - Transferring Cases to Tribes
The Indian Child Welfare Act (ICWA) applies to state courts when Indian children come before them who are in need of aid and protection. ICWA applies in state court cases where a child is taken into state custody because of abuse or neglect. Among other things, ICWA sets up placement preferences to guide state courts for placing children in homes and allows tribes to intervene in state court cases. The ICWA does not apply to tribal courts, but tribes often adopt similar guidelines for placement of their children.
Tribes with Indian country in non-Public Law 280 states have exclusive jurisdiction over child protection matters. Tribes in Public Law 280 states such as Alaska, have jurisdiction over child protection cases only if a case was first filed in tribal court, or if the state court transfers an ICWA case to a tribe. Alaska tribes must petition for reassumption of jurisdiction to gain exclusive jurisdiction over child protection, for all child protection cases. However, most tribes prefer to be selective in the cases they wish to handle, and not to petition for reassumption for all child protection cases.
Some Alaska tribes have successfully petitioned for exclusive jurisdiction under ICWA, by gaining approval of the Secretary of the Interior. However, reassumption of exclusive jurisdiction over children’s cases may pose difficulties for tribes that are in the beginning stages of tribal court development, and may cause financial difficulties for tribes in cases where children have exceptional needs for support. For example, one tribe in the Lower 48 was bankrupted while attempting to meet the medical needs of a child in an exceptional medical situation. The state in that case would not give financial support, citing the fact that the tribe had exclusive jurisdiction and therefore exclusive responsibility for the child.
Although other states in the country have transferred ICWA cases to tribal courts in Alaska for quite some time, the Alaska court system would not do so until August of 2001 when a decision was made by the Alaska Supreme Court in a case called C.R.H. That case involved a child eligible for membership in the tribes of Nikolai and Chickaloon. The Nikolai tribe took the lead role in the case and asked the state court to transfer the case to the Nikolai Tribal Court. The Alaska Supreme Court reversed its previous rulings and decided that ICWA cases should be transferred to tribal courts unless certain conditions exist.
A transfer of jurisdiction of an ICWA case from state court to a tribe occurs by a tribe or other parties requesting transfer of jurisdiction through a motion. The state court may deny the motion if the tribe declines jurisdiction, if there is an objection by the parents of the child to transfer the case, or if the state court finds ‘good cause’ to deny transfer of jurisdiction. ‘Good cause’ to deny transfer may include:
¤The absence of a tribal court¤An objection by the Indian child (if older than age 12) ¤The parents of a child over five years of age are not available and the child has little or no contact with the child’s tribe or members of a child’s tribe ¤It’s not a timely request and the proceedings are at an advanced stage ¤The evidence necessary to decide the case could not be adequately presented in tribal court without imposing undue hardship to the witnesses and parties
Although the Alaska state court system finally decided that it should transfer ICWA cases to tribes upon their request unless certain conditions exist, it is far easier for tribes to begin child protection cases in their tribal courts first rather than to have to go through the hoops of having jurisdiction transferred to them.Criminal Jurisdiction
Criminal jurisdiction is the authority to enforce laws that prohibit certain behavior, and commonly has jail time as a possible penalty. Under state and federal law, major crimes are categorized as felonies (more than a year in jail is a possible sentence) while minor crimes are categorized as misdemeanors (one year or less of possible jail time). Currently, Alaska tribes are mostly asserting jurisdiction that clearly lies in the area of civil law, although some tribal courts are asserting jurisdiction over subjects of a law and order nature in order to protect the health and safety of tribal members.
The tribal courts that are handling law and order types of cases are using sentences such as fines, restitution, community service, counseling, treatment, and traditional activities rather than attempting to impose incarceration. Not only do Alaska tribes lack jails and other law enforcement infrastructure, there are questions about the jurisdictional authority of Alaska tribes to impose incarceration, and at the same time, there is much more interest among Alaska tribes to impose sentences designed to heal rather than simply to punish. However, this may change in the future as tribal courts continue to develop and as jurisdictional issues are more clarified.
When tribal courts enforce criminal law using jail time as penalties, they must provide jury trials of not less than six persons upon request of the defendant, and allow the defendant to be represented by legal counsel at their own expense. The maximum penalties a tribal court may order are one year in jail and/or $1,000 fine per offense. These things are restrictions and requirements under the Indian Civil Rights Act. Criminal tribal court cases that result in someone being incarcerated may be reviewed by a state or federal court through a writ of habeas corpus, which is a procedure to review the legality of an individual’s confinement. Tribal court procedures may become a lot more complicated if the tribe is exercising criminal jurisdiction rather than civil.
Through its plenary power, Congress affected tribal jurisdiction over major crimes through the Major Crimes Act (1885). That Act extended federal jurisdiction over major crimes that take place in Indian country such as murder, manslaughter, kidnapping, rape, and assaults with serious intent or result. In Public Law 280 states such as Alaska, the states have jurisdiction over major crimes in Indian country. The Major Crimes Act did not terminate tribal jurisdiction over major crimes, but as a practical matter, the Indian Civil Rights Act limits tribes in their sentencing ability to one year in jail and/or up to $5,000 fine. This limit makes it less than practical for tribes to adequately address the most serious offenses.
The United States Supreme Court held in Oliphant v. Suquamish Tribe (1978) that tribal courts do not have criminal jurisdiction over non-Natives. In 1990, the Supreme Court further ruled that tribal courts do not have jurisdiction over non-tribal-member Natives in a case called Duro v. Reina. However, Congress passed legislation in the form of an amendment to the Indian Civil Rights Act in 1991 to reinstate tribal criminal jurisdiction over non-tribal member Natives. Because of the lack of criminal jurisdiction over non-Natives, some Lower 48 tribes are adopting their ordinances as civil laws that do not involve any jail penalties, and asserting that they apply to everyone in their Indian country. By turning criminal laws into civil regulatory laws, tribes cannot use jail time as a penalty, but instead rely on fines, community service, counseling, treatment programs, traditional activities or other civil remedies.
Criminal jurisdiction in Indian country is complex. Stephen L. Pevar in his 1997 publication, The Rights of American Indians and their Tribes, helps to clarify this area. Pevar outlined four principles governing criminal jurisdiction in Indian country: (1) A tribe has the inherent right to exercise criminal jurisdiction over its members. The U.S. Supreme Court in U.S. v. Wheeler (1978), stated that a tribe’s power to punish tribal offenders is part of its retained sovereignty; (2) Congress can limit or abolish tribal powers including the tribe’s criminal jurisdiction; (3) Tribes lack criminal jurisdiction over non-Natives unless Congress has expressly given them that power; and, (4) A state does not have jurisdiction over crimes committed by tribal members in Indian country unless Congress has expressly given the state that power.
Effects of the Venetie, John, and C.R.H Cases on Jurisdiction of Alaska Tribes
Congress settled aboriginal land claims in Alaska in a unique way, through the Alaska Native Land Claims Settlement Act (1971). Land went to special Native corporations set up under the Act, made subject to Alaska state corporate law. Tribes for the most part were left without Indian country, the territorial component of jurisdiction. Some people interpreted the language of ANCSA to mean that tribes were terminated, and much debate took place during the 1970s and 1980s over whether or not ANCSA was an act of termination. The issue of tribal status was settled by the Department of Interior publishing a list of federally recognized tribes in 1993 that included Alaska tribes, and Congress confirmed it through the Tribe List Act in 1994.
However, debate continued, and still continues, over how much jurisdiction tribes in Alaska have. Many Alaska tribes have boldly moved ahead and simply asserted jurisdiction in taking care of problems in their villages, in spite of the debate. In doing so, a few challenges have occurred along the way, resulting in three significant federal and state court decisions on tribal jurisdiction in Alaska:
1. In February of 1998, the US Supreme Court ruled in the Venetie tax case that land that has gone through the Alaska Native Claims Settlement Act is no longer Indian country.
2. In September of 1999, the Alaska Supreme Court ruled in John v Baker that tribal courts in Alaska have jurisdiction in custody matters when tribal children are involved, even when Indian country does not exist.
3. In August of 2001, the Alaska Supreme Court held in C.R.H. that jurisdiction over ICWA cases can be transferred from state court to tribal courts.
The Venetie tax case was a substantial blow to tribal jurisdiction for Alaska tribes because a lack of Indian country reduces tribal jurisdiction. Indian country is the territorial component to tribal jurisdiction, and it is generally necessary for jurisdiction over such things as taxation, zoning, and exercising the full range of tribal employment rights (TERO). However, Alaska tribes can and do tax entities that agree to be taxed, zone on their own lands, and enter into employment agreements that benefit their members. Still, if Indian country exists, tribal jurisdiction would be much greater. The Venetie case did not address the question of whether or not Alaska Native allotments or portions of the Alaska Native Townsites are Indian country, however. Therefore, the potential for Indian country in Alaska outside of Metlakatla still exists.
The John case was a very positive decision for Alaska tribes. The State of Alaska, through the State Supreme Court, officially recognized tribal court jurisdiction over tribal children, even in the absence of Indian country. However, the Court recognized tribal court orders as a matter of ‘comity,’ which is different than recognition under the concept of ‘full faith and credit.’ Basically, comity means that the State chooses to respect valid orders of tribal courts, while full faith and credit would mean that the State must respect and comply with a tribal court order. Recognition under either comity or full faith and credit, requires that due process is provided. For a tribal court order on a children’s matter to be valid in the State’s eyes, the tribal court procedures must provide due process and the children involved must be tribal members or eligible for tribal membership. It is essential that tribal courts provide a fair process, notify parties of hearings, and allow parties the opportunity to speak. It is also essential that tribes have accurate enrollment records.
The Alaska Supreme Court further supported tribal jurisdiction in a case called C.R.H. The C.R.H. case involved a child in need of aid who was eligible for tribal membership in both the villages of Nikolai and Chickaloon. Chickaloon intervened in the state ICWA case before Nikolai, but later turned over their status as the ICWA tribe to Nikolai. Nikolai then made a motion to have the case transferred to the Nikolai Edzeno Tribal Court. In earlier cases concerning transferring jurisdiction under ICWA to tribes, the Alaska Supreme Court had basically held that even if there were tribes in Alaska, P.L. 280 terminated jurisdiction they might have. The State Supreme Court reversed that faulty reasoning, and held that ICWA cases in Alaska state court could be transferred to tribal courts.The Effects of Public Law 280 on Tribal Jurisdiction
Public Law 280 (P.L. 280) is a federal statute that applies only to certain states, Alaska being one of them. Public Law 280 extends state jurisdiction over many crimes and some civil matters into Indian country. It applies only in Indian country, and it does not terminate any jurisdiction or powers that tribes have. During the 1980s and 90s, the Alaska state court system erroneously held that Public Law 280 terminated tribal jurisdiction if there were indeed tribes in this state. Native leaders were concerned about P.L. 280 and the State’s interpretation of it. Fortunately the State reversed its thinking with the John v Baker and C.R.H. cases. In John v Baker, the Alaska Supreme Court wrote:
“The United States Supreme Court’s recent Venetie II decision suggests that P.L. 280, which grants states jurisdiction over disputes in Indian country, has limited application in Alaska because most Native land will not qualify for the definition of Indian country. By its very text, P.L. 280 applies only to Indian country.”
In the C.R.H. opinion, the Alaska Supreme Court wrote a great deal about P.L. 280. Since the Court had held in earlier cases that P.L. 280 terminated tribal jurisdiction, the Court had to overturn three earlier cases in order to find that P.L. 280 did not terminate tribal jurisdiction. The three cases they specifically overruled were Native Village of Nenana v. Dep’t of Health and Soc. Servs. (1986), In re K.E.(1987) and In re F.P. (1992). In the conclusion in the opinion for the C.R.H. case, the Alaska Supreme Court wrote:
“We conclude that ICWA subsection 1911(b) authorizes transfer of jurisdiction to tribal courts regardless of P.L. 280. To the extent that Nenana, F.P. and K.E. are inconsistent with this conclusion, those cases are overruled. We REMAND this case for transfer to the Nikolai tribal court unless the superior court finds good cause to deny transfer.”
P.L. 280 has had significant effects on Alaska tribes because the Alaska State Supreme Court held for many years that it terminated tribal jurisdiction over child protection cases, and therefore state courts would not transfer ICWA cases to tribes. It also had effect because many Native leaders were falsely led to believe that P.L. 280 was a major obstacle to tribal jurisdiction and that belief hampered tribal court development for many years. Because of the scarcity of Indian country, it does not appear that P.L. 280 has much application or effect in Alaska now that the Alaska Supreme Court has overruled itself. However, there is still some sorting out to do on the issue, in determining if and how P.L. 280 may affect tribal jurisdiction over matters occurring on Native allotments and restricted Alaska Native townsite lots, which appear to be Indian country.Conclusion
Tribal jurisdiction is a complex matter, and Alaska tribes face some additional complications due to the way aboriginal land claims were settled. Jurisdiction is analyzed by breaking it into several categories. The basic categories are the subjects a court may handle, the territory over which the court may enforce laws, and the persons over whom the court may have jurisdiction. Although the territorial component, Indian country, generally gives tribes more jurisdiction, Alaska tribal courts retain a great deal of jurisdiction even in the absence of Indian country. Subject matter jurisdiction may be broken down into criminal and civil subjects. Tribal court procedures become much more complicated if a tribal court exercises criminal jurisdiction with penalties of jail time, and there are outstanding questions about the jurisdiction of Alaska tribes to incarcerate people. The persons whom tribal courts have the strongest claim of jurisdiction over are tribal members and therefore it is very important to keep enrollment information accurate and updated. Tribal courts also may have jurisdiction over persons consenting to tribal jurisdiction, and there are good legal arguments that Alaska tribes also have jurisdiction over persons who are a danger to the health, safety, and welfare of the tribe and tribal members.
Although the jurisdictional picture is far from clear for Alaska tribes, tribal courts are addressing local problems that involve their members or the protection of their members. Most developing tribal courts begin by asserting jurisdiction over a limited number of subjects, such as children’s cases and juvenile problems, and then take on other subjects as the court gains experience. The John v Baker and C.R.H. cases are a very significant step forward for Alaska tribal courts in gaining recognition and cooperation from the State of Alaska. To further this progress, it will be essential for tribal courts to continue in their development and for state courts to be respectful of cultural differences.
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