The U.S. Department of Justice published a report last week that is highly critical of the State of Alaska’s treatment of Alaska Natives and calls on state and federal governments to do much more for the children of First Peoples.
Titled “Ending Violence so Children Can Thrive,” the report was written by the Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence. Among the 11 members of the Advisory Committee is Valerie “Nurr’araaluk” Davidson, a Yup’ik woman who served as Senior Director of Legal and Intergovernmental Affairs for the Alaska Native Tribal Health Consortium, currently a Trustee of the First Alaskans Institute, and newly minted head of the Department of Health and Social Services under Governor Walker.
The report pulls no punches on the issue of tribal sovereignty:
There is a vital connection between tribal sovereignty and protecting [First Peoples] children. The Advisory Committee is convinced that state and federal governments must recognize and respect the primacy of tribal governments in responding to [First Peoples] children. Jurisdictional restrictions on tribes must be eliminated to allow Tribes to exercise their inherent sovereign authority to prevent [First Peoples] children’s exposure to violence.
As an example, the Advisory Committee pointed to VAWA. While VAWA gave tribal courts jurisdiction over domestic violence in Indian country, tribes still do not have jurisdiction over crimes of abuse committed by non-Indians against children.
The Advisory Committee also charged Congress with fixing flaws in ICWA, what it says is “the only federal child welfare law that does not include legislatively mandated oversight or periodic review.” It also does not provide sanctions for noncompliance.
A hot button issue in this year’s Senate race was subsistence. The report reads,
Regulations that limit the ability of Alaska Natives to conduct traditional subsistence hunting and fishing are directly connected to violence in Alaska Tribes and the exposure of Alaska Native children to that violence. Violence is essentially nonexistent during the times in which the communities are engaging in traditional subsistence hunting and fishing activities, and violence spikes during times when Alaska Natives are unable to provide for their families. Beyond providing basic food, subsistence fishing and hunting has been essential to Alaska Native families’ way of life for generations. Like language and cultural traditions, it has been passed down from one generation to the next and is an important means of reinforcing tribal values and traditions and binding families together in common spirit and activity. Interfering with these traditions erodes culture, family, a sense of purpose and ability to provide for one’s own, and a sense of pride.
Yet the state has sought to erode subsistence rights. Begich received the endorsement of the Alaska Federation of Natives in the November election in part because his opponent, Dan Sullivan, participated in a lawsuit to restrict subsistence while he served as Alaska Attorney General.
Richard Peterson testified that Yukon River fishermen couldn’t harvest king salmon in 2013 because of a “legal and public policy baseline in Alaska that treats Native fishing rights no differently than tourism.”
The fight over subsistence is indicative of “a lack of respect for Alaska tribal sovereignty and a lack of understanding and respect for Alaska Native history and culture, all of which have contributed to high levels of recurring violence,” the report says.
The Advisory Committee points to Alaska v Native Village of Venetie Tribal Government as the source of many of the state’s positions. That Supreme Court decision held that Alaska Native land is not Indian country under the law. The state interprets this to mean it has sole jurisdiction since Alaska Native “tribes do not have a land base on which to exercise any inherent criminal jurisdiction,” but the Advisory Committee says the federal government recognized Alaska Native villages as Indian nations in 1993 and has provided aid as such. Therefore, the report recommends that Congress address the Court’s decision and clarify that Alaska Native villages are entitled to the same rights as Lower 48 Indian country.
In the case of juvenile justice, the question of jurisdiction is significant. The Western juvenile justice system is often culturally inappropriate for Alaska Native youth. Like in the foster care system, Alaska Natives are removed from their communities. Yet the report notes,
Resiliency is based on connectedness to culture, family, and community. An [American Indian/Alaska Native] child’s resiliency cannot be fully developed in a state’s juvenile justice system without the involvement of the child’s tribe. According to the literature, enculturation, spirituality, and social connections are protective factors that continue to play important roles in fostering resilience among children and families. The tribe’s involvement can increase the likelihood that these factors will be central to the development of youth, enhance their sense of responsibility and understanding, and show them that they matter to their tribe and their community.
“The Advisory Committee concludes that the standard way juvenile justice has been administered by state jurisdictions is a failure and it re-traumatizes [American Indian/Alaska Native] children,” the report reads.
“The advantages of having the tribal court are numerous,” Lisa Jaeger testified in Anchorage. Jaeger is the Tribal Government Specialist for the Tanana Chiefs Conference. “They will step in earlier to address a case. They know their own people. They know who the safe families are and what is actually happening in the families and where to place children.”
But since the state does not recognize the jurisdiction of tribal courts in most cases, the Western system is the one into which Alaska Native youth enter. And the numbers are not good.
A 2006 study found that Alaska Native youth are referred to juvenile court more than three times more than white youth. In Fairbanks specifically, they are referred almost five times more. Alaska Native youth are held in secure confinement well above their percentage of the Alaska population, according to the report.
There is no legal provision for public counsel to be available to Native youth. The Advisory Committee says that these young people deserve the right to a public defense and legal advice in juvenile proceedings.
“The State of Alaska frequently seeks to ignore or interpret various provisions of the Indian Child Welfare Act in a manner that seriously limits tribal jurisdiction over matters concerning tribal children,” Hicks Kastelic testified. “Further, tribal courts are treated differently than tribal courts in the rest of the country. As a result, hundreds of [Alaska Native] children are removed from their homes and placed in urban communities in non-Native care with poor prognosis for reunification or family permanency.”
Jacqueline Pata, Executive Director of the National Congress of American Indians, stated the solution plainly: “The most basic priority for allowing tribes to address the impact of violence on Native youth and in tribal communities is to provide tribal governments with the jurisdiction they need to ensure the safety and well-being of tribal citizens.”
Grossly Inadequate Funding
In addition to the state’s intransigence, tribal courts also face the issue of funding. Base funding from the Bureau of Indian Affairs is insufficient because it is part of the discretionary budget and subject to cuts, like sequestration. As a result, tribes must often compete against each other for short-term grant money.
Even these funds are shrinking. The Coordinated Tribal Assistance Solicitation (CTAS), introduced in 2010, has been reduced by ten percent every year. This grant program funds the Office for Juvenile Justice and Delinquency Prevention Tribal Youth Program (OJJDP TYP), which has itself seen a corresponding reduction.
Alaska Natives constitute 40 percent of federally recognized tribes, the report says, but receive less than nine percent of CTAS funds. In 2014, the total was $1.4 million.
“Villages and regions across the state are developing important and effective measures that need to be supported by the federal and state governments, not through temporary three or five year grants,” testified Gloria O’Neil, President/CEO of Cook Inlet Tribal Council, “but ongoing, sustainable funding, allowing Native communities to take responsibility for the health/safety of their children, families and communities.”
The Advisory Committee agrees and sees the current situation as a clear violation of law and the trust responsibility. It recommends Congress establish a ten percent tribal set-aside to fund justice programs, comparable to a provision of VAWA, and says that the Department of Justice should do so until Congress acts.
78 Alaska Native communities established tribal courts by 2012, but they are hampered by lack of funding and jurisdictionally limited to cases of public drunkenness, disorderly conduct, and minor juvenile offenses, according to the report.
Along with repealing Sec. 910 of VAWA, S. 1474 would develop and enhance tribal courts in Alaska. During a committee hearing on the bill, Murkowksi acknowledged this would be difficult without funding.
Subsistence economies make the self-funding of tribal courts impractical, so Alaska Natives must rely on government funding. And though even Michael Geraghty acknowledges tribal courts need more money, the State of Alaska itself only supplies 16 juvenile probation offices. The Advisory Committee notes that each office is, on average, therefore responsible for an area equivalent to that of the state of Tennessee.
A solution proposed in the report is tying state funding from the federal government to “meaningful consultation with tribes.” In a state like Alaska, so dependent upon federal dollars, that would certainly produce some results.
What Does the Report Mean?
In her testimony, Hicks Kastelic said,
Alaska Natives face a growing crisis of dysfunction in our clans, villages, and tribes caused by domestic violence and child abuse and neglect and related high rates of alcoholism, illegal drug usage, poor health, and alarming high suicide rate and asperity, high incarceration rates. This dysfunction is facilitated by the federal and state regulations that have destroyed our customary and traditional lifestyles. This dysfunction is adding modern day trauma to the historical trauma our citizens bear from decades of loss of land, water, and the natural resources that have always provided for our sustenance.
The Advisory Committee report provides a variety of solutions, but it is merely a wish list for governments. There is little appetite at the federal level for more spending. It is also unlikely that two senators from the same state would be seated on the Senate Committee on Indian Affairs. When interviewed about committee assignments, Dan Sullivan did not mention Indian Affairs to Alaska Dispatch News.
Facing a $3 billion deficit, the state is also unlikely to commit additional money to the plight of Alaska Native children. Per the report, “Efforts to address disproportionality as well as efforts to respond to child protection, family preservation and support, kinship care, foster care recruitment, and retention are outlined in all state Child and Family Services Plans, yet Alaska appears to be making little or no progress according to recent annual reports.” The Advisory Committee goes as far as accusing the state of failing its federal obligation to protect children under the Social Security Act.
However, in Lt. Gov. Byron Mallott, Alaska Natives have their first member in the executive branch. This could lead to changes in basic policy, including how the state perceives its criminal jurisdiction in villages and treatment of subsistence rights.
In his testimony in Anchorage, Executive Director of the Indigenous Leadership Institute Evon Peter issued a plea to the state: “Let us enter into a new era of equality and real trust and responsibility. Please stop fighting our peoples’ basic human rights to provide for the survival and wellbeing of our people.”