“How do we solve this moving forward?”: Tensions high during Sutton Council Meeting

Tensions were high during a meeting of the Sutton Community Council on March 27,2024 after a presentation about the state of law and the impact of recent memorandums addressed Native and non-Native jurisdictions.

The purpose of the meeting was to gain information about the Chickaloon Village Traditional Council (CVTC) Justice Department receiving policing powers outside of their tribal properties and enforcing laws on non-native community members. The issue has long been the source of tension, when it was first addressed nearly two years ago at an information session when the Chickaloon Tribal Police Department (CTPD) first sought to expand its police force and their responsibilities.

Chris Spitzer, the Chair of the Sutton Community Council had asked at the beginning of the meeting to avoid the same tensions and get to heart of the facts and information that was to be presented.

Alex Cleghorn, the Chief Operating Officer for the Alaska Native Justice Center shared information about the state of the law in Alaska and what it means on the ground.

“We’re hoping to cut through what the different opinions of what the is, and focus on what the law actually say,” Cleghorn said prior to his presentation, one he says has been given to many non-tribal organizations including the statewide collection of VPSO coordinators through the Department of Safety.

Among the issues discussed during Cleghorn’s presentation was inherent tribal sovereignty, Public Law 280 (PL 280), and the update to the Violence Against Women Act.

“It’s important to remember that it exists because Tribes are sovereign governments, and the federal government recognizes this,” said Cleghorn, who said that this understanding has be further summarized by the US Supreme Court in the United States v Wheeler, 1978 case that said this of inherent Tribal authority:

“These powers are not granted from the U.S. to the Tribes, but are inherent powers that Tribes have retained.”

Cleghorn said that while many have heard that perhaps Alaska is different, the state is not so different that the general principals of Tribal sovereignty don’t apply.

“From our perspective, the law is pretty clear and we’re hoping to cut through what the different opinions might be of the law is and focus on what the law actually says.”

Cleghorn also referred to a recent memo from the Department of Justice, which confirmed that Tribes in Alaska can exercise criminal jurisdiction over all Native people within their Village.

“Congress recognizes and affirms the inherent authority of any Indian tribe occupying a Village in the State to exercise criminal and civil jurisdiction over all Indians present in the Village.”

The DOJ’s new memorandum makes clear that Alaska Tribes’ criminal jurisdiction over Native people is concurrent with any federal or state jurisdiction. It also provides an update to a DOJ memorandum issued in 2000, which explained that Public Law 280 does allow some states, such as Alaska, to exercise concurrent jurisdiction in Indian Country, meaning that Tribes can exercise jurisdiction, and the State could also exercise its jurisdiction.

PL 280 does not remove the inherent authority of Tribes of their inherent criminal authority over Native people, nor does it terminate Tribes or Tribal sovereignty.

“It did not diminish Tribal jurisdiction, and it did not declare that state jurisdiction was more important than Tribal jurisdiction,” explained Cleghorn.

PL 280 also impacts federal Public Safety and Justice funding.

“Tribes in Alaska have to work very hard in Alaska to access federal funding for Public Safety and Justice.”

Cleghorn also briefed the Council and attendees on ANCSA, the Alaska Native Claims Settlement Act, which he said also has an impact

“ANCSA was a land settlement bill, which settled land claims in Alaska, and it extinguished reservations…which did impact Alaska Tribes’ territorial jurisdiction. When a Tribe does not have Indian Country, they do not have jurisdiction over that land in the same way.”

Cleghorn then touched on John v Baker (Alaska, 1999), which was a case in the Alaska Supreme Court that said Alaska Tribes “have the power to make their own substantive law in internal matters and to enforce that law in their own forums.”

“Some people think that the history is what the law is today, and that is important to clear up. But Alaska Tribes, along with Tribes in the lower 48, have identified that the failure to have criminal jurisdiction over non-Native people who commit violent crimes within Indian Country or village is a public safety crisis that needs to be fixed by federal law,” said Cleghorn.

He further explained that there were many attempts to draft a law addressing this that did not include creating Indian Country in Alaska. That was rectified with the authorization of Violence Against Women Act (VAWA) 2022.

“It is an Alaska-specific solution to Alaska’s specific situation. It does not create Reservations, but it does refer to territory within which Tribes exercise their jurisdiction,” said Cleghorn.

VAWA 2022 also clarified the Alaska Tribes’ authority over people within the Villages, and a section of that act reads:

“Congress recognizes and affirms the inherent authority of any Indian tribe occupying a Village to exercise criminal and civil jurisdiction over all Native people in the Village,” meaning Tribes can pass criminal and civil laws and enforce those laws against all Native people in the Village.

VAWA also states that Tribes can enforce civil protection orders involving any person for matters arising within the Village.

“That is specifically meant to address the problem of violent crimes, especially domestic violence happening against Native people by non-Native people,” explained Lily

VAWA 2022 also created a pilot project for Alaska Tribes that meet certain standards, to protect defendants’ rights, can exercise special tribal criminal jurisdiction (STCJ) over certain crimes committed in their Villages by non-Natives. Those crimes include child violence, dating violence, stalking, violating a protection order, and obstruction of justice, to name a few.

Cleghorn later clarified that this pilot project has created a pathway for Alaska Tribes to be able to exercise ‘criminal adjudicatory jurisdiction’ over non-Native people.

Before approving a tribe to exercise an STCJ, the Attorney General must determine that the Tribe’s criminal justice system is properly set up to protect the rights of the defendants.

“Those protections are similar or mirroring the rights a defendant would have in the State’s justice system.”

When asked what course of action the Chickaloon Tribal Police may take when a crime has been committed or there is probable cause in front of the Tribal Police, Cleghorn said:

“The part that applies to a Native and non-Native is that if a Tribal Police officer witnesses a crime or has probable cause that a crime has been committed, they can stop and detain that person. And if that person is Native…under current law that person can be prosecuted in Tribal Court.” He then added, “If that person is determined to be non-Native, they can hold that person and then turn them over to state law enforcement.

MSB Assemblyman Tim Hale, who attended the meeting via Zoom then posed the question in the case that the STCJ is granted and a Chickaloon Police Officer sees a crime being committed outside a Native Village, would that officer be authorized to intervene or detain the criminal, to which Cleghorn referred to the Alaska Native Village Statistical Area (ANSVA), which is the territory that PL 280 refers, not just the specific Village, which he said is a broader area than just Chickaloon.

Confusion and tension came about during the public comment period when attendees asked about the CTPD having authority over non-Native residents, and specifically the idea of having non-Natives tried in a Tribal judicial setting.

Tempers flared as voices from the council and audience spoke over each other as different scenarios were presented, and eventually old pains of the federal boundaries being drawn and the long history unreported or uninvestigated violent crimes came up until Sen. Mike Shower implored for calm as solutions are being sought.

“I’m watching this, I’m watching the comments, I’m watching the body language, watching facial expressions, and what is clear is that in the community, there is a lot of angst. There’s a lot of mistrust. There’s a lot of concern about how far this goes. That’s the reality,” said Shower, who attended the meeting in person, trying to diffuse the tensions.

“It doesn’t matter whether my kids were born here, and I understand that we’re on Native lands that have been here for thousands of years, but people live here now…What do we do moving forward?” he said that the continued division will not get anyone anywhere.

“We live here—how are we going to make this work moving forward? That’s the question.” Shower told the audience that he and Representative George Rausher have been working on something that would ‘provide boundaries’ moving forward that would provide protections for non-Natives as the Department of Public Safety moves forward with an agreement with the Chickaloon Police.

Shower called for the residents to find a way to come together and stop the vitriol and mistrust that he witnessed during the meeting on all sides.

“George and I are working on something that will try and help. I don’t know what that is yet,” he said, adding, “What we do to move forward as a community of all people living here, that everybody’s concerns are addressed? We’re trying to find an answer.”

The next meeting of the Sutton Community Council will be held April 9 at 7 p.m.