Tribal Jurisdiction in Alaska Tribal Management Program Kevin Illingworth J.D. University of Alaska Fairbanks College of Rural and Community Development kevin.i@alaska.edu

What is Jurisdiction? 2. Responsibility: 1. Authority: jurisdiction means the “authority to speak the law”, to make laws. 2. Responsibility: with great authority comes great responsibility. 2

Tribal Authority All tribal governments have authority from two separate sources: Inherent Authority: a recognition by the federal government that tribal authority existed prior to the formation of the US government. This is also referred to as Inherent Sovereignty. Delegated Authority: additional authority granted (delegated) to tribal governments by the US government. 3

Inherent Authority "Perhaps the most basic principles of all Indian law supported by a host of decisions...is the principle that those powers which are lawfully vested in an Indian tribes are not, in general delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. What is not expressly limited [by Congress] remains within the domain of tribal sovereignty."- Felix Cohen, Handbook on Federal Indian Law 4

Jurisdiction Over People Jurisdiction Over Land “The ability to make and enforce your own laws” Jurisdiction Over People In John v Baker (1999), the Alaska Supreme Court held that Tribes in Alaska have jurisdiction over the ‘domestic relations’ of tribal citizens (members), regardless of territorial jurisdiction. Jurisdiction Over Land (and anyone who enters the land) Also called Territorial Jurisdiction or ‘Indian Country’ for tribes. In the Venetie Tax case, the US Supreme Court held that even though Venetie Tribe owned their land in fee title, the tribal government had no jurisdiction over the land. The state of Alaska has jurisdiction over lands transferred through ANCSA. Tribes do have territorial jurisdiction over reservation and trust land, as well as restricted allotments.

Inherent Authority of Alaska Tribes Inherent Authority is the primary source of tribal authority for tribal governments to operate a justice system. “Do Alaska Native villages have inherent, non-territorial sovereignty allowing them to resolve domestic disputes between their own members?… we hold that Alaska Native tribes, by virtue of their inherent powers as sovereign nations, do possess that authority.” -Alaska Supreme Court in John v. Baker 6

The custody dispute …lies at the core of sovereignty -- a tribe's "inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." … Northway Village has jurisdiction to hear this dispute because the right to determine custody of Indian children…"infringes on tribal self-governance.” Alaska Supreme Court in John v Baker 7

Examples of Domestic Relations cases heard by Alaska Tribal Courts: Adoptions Child Custody Child Protection ICWA Intervention Marriages/Divorces Probate/Inheritance Cultural Protections Domestic Violence 8

Civil or Criminal Jurisdiction: In general, Tribal courts in Alaska exercise civil jurisdiction and work with the State if there is a serious crime leading to incarceration. Tribal criminal authority in Alaska is less than clear: The Oliphant v Suquamish Tribe case decided by the US Supreme Court in 1978 determined that tribes do not have criminal jurisdiction over non-Natives. To ensure that tribal laws apply equally to everyone, most Alaska Tribes exercise civil jurisdiction, and work with the State if there is a serious crime leading to incarceration. 9

Criminal Jurisdiction? “But the powers of self-government, including the power to prescribe and enforce internal criminal laws… are not such powers as would necessarily be lost by virtue of a tribe's dependent status.” Alaska Supreme Court in John v. Baker 1999 “powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians – Indian Civil Rights Act Amd. 2010

Tribal Jurisdiction: P.L. 280 “By its very text, P.L. 280 applies only in Indian Country” -Alaska Supreme Court in John v. Baker P.L. 280 has no significant legal effect in Alaska. But P.L. 280 has had a significant impact upon Alaska tribes because Alaska Tribes have been falsely led to believe that P.L. 280 was an limit to tribal jurisdiction. P.L. 280 is a grant of concurrent jurisdiction to the State, it does not terminate or limit any jurisdiction or power that tribes have. The State cannot simultaneously assert that…there is no Indian Country and that PL 280 prevails. 2013 Indian Law and Order Commission

Examples of other cases heard by Alaska Tribal Courts: Tribal Courts exercise Powers of Self-Government by hearing civil cases protecting the Health and Welfare of the Tribe or Tribal members: Domestic Violence Assault/Disorderly Conduct Juvenile Delinquency Vandalism Misuse of Firearm Trespass Drug and Alcohol Regulation 12

Some Types of Cases Involving Youth Juvenile Delinquency Vandalism Underage Drinking Fighting School Problems Bullying Curfew 13

Focus on Prevention You can step in early, when kids really need help, before they get into real trouble. 14

Examples of other cases heard by Alaska Tribal Courts: Contract Disputes Employment Disputes Environmental Regulation Natural Resource Regulation & Management Fish and Wildlife Regulation/Protection 15

  Quyana tribal.uaf.edu