VAWA provision triggers new debate on tribal authority in Alaska
The recent reauthorization of the Violence Against Women Act had many applauding its new protections for LGBT victims and illegal immigrants.
All three members of Alaska’s Congressional delegation supported the bill.
One of the reauthorization’s new, more controversial provisions – granting tribal courts jurisdiction over non natives for domestic violence crimes committed in Indian Country – has reopened a long-simmering debate about tribal power in Alaska.
Myron Naneng is the president of the Association of Village Council Presidents. He says tribes in the Lower 48 are celebrating the new authority they’ve won.
But not in Alaska because, Naneng says, the state does not recognize tribal powers:
“It’s the state’s position that anyone who moves through the villages who’s not a tribal member should not be handled by a local tribal court. But we move into urban areas ourselves, and we’re subject to state courts.”
The federal government still recognizes Alaska tribes, even though most relinquished aboriginal rights and territory, known as Indian Country, when Congress passed the Alaska Native Claims Settlement Act. Residents in Metlakata opted out of ANCSA. Metlakatla is the only reservation in the state, and the only federally recognized Indian County in Alaska.
Senator Lisa Murkowski inserted an amendment in the Violence Against Women Act that, she says, was clearly designed to ensure Metlakatla’s increased court jurisdiction:
“It was very clear that it was designed to be implemented in Indian Country. In Alaska, the only Indian Country, the only reservation, is Metlakatla. So I wanted to make sure that Metlakatla was going to be treated similarly to all other reservations, to all other land in Indian Country.”
But there’s been push back from Naneng and others who say more should have been done to make sure the new provision applied to all Alaska tribes.
Senator Murkowski says the Violence Against Women Act was not the place to hash out territorial disputes. And to the tribes who were looking to gain increased rights, she says that conversation can be had at a later time.
“I think there are some who saw this as an opportunity to gain an inch, and then build on it from there.”
The U.S. Supreme Court affirmed the state’s lack of Indian County in 1998. Senator Murksowski says Congress would need to amend the Alaska Native Claims Settlement Act to create Indian Country.
John Havelock was the Alaska Attorney General when the Native Claims Settlement Act passed. He says the Act was described as an alternative to what at the time was considered failing reservation system and was not designed to take away tribal authority.
“There was not any side discussion of tribal authority. In fact I think a lot of people assumed that the village corporation system would replace any tribal jurisdiction. But when you think about it and look at it, you say, well wait a minute.”
Mike Geraghty is the current Attorney General for Alaska.
“The state’s position is that we’re in favor of the law as it currently exists and the jurisdiction the tribal courts already have.”
Geraghty says state courts have jurisdiction over the entire state.
“These people, whether they’re members or not members of a tribe, are also citizens of the State of Alaska. They have Constitutional rights under the state constitution.”
In Indian Country, tribal courts have sole jurisdiction within the designated boundaries and state courts have none.
“I’m not in favor of disrupting that balance, and creating, you know 229 checkerboard, 229 tribal court jurisdictions. Where the physical boundaries would be, who knows.”
Because there are not defined borders like the reservation system has. Geraghty says the state cooperates with tribal courts on issues under the Indian Child Welfare Act and child support cases. It also recognizes and enforces protective orders from certain tribal courts.
Senator Murkowski says the state needs to be pushed on the issue of tribal jurisdiction … that the state has for too long feared relinquishing any authority to the tribes.
She says she’s introducing a plan that would “cross deputize” village public safety officers. It would allow them to hand out punishments throughout a village.
“Fines, or forfeiture, or fines, or community service, or even banishment, and it gives them that authority. This is something we’ve tried to get the state to come around on. I think we’ve made huge progress.”
The plan is being reviewed by both tribal leaders and state officials.
And in Murkowski’s eyes, it gives the state a chance to see there is nothing to fear in granting tribes more authority.