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Tribal courts fight to establish authority

Posted: August 17, 2013 - 11:05pm

FAIRBANKS — Alaska’s tribal courts have fought for years to establish themselves in the eyes of the federal and state governments. They’ve made progress with a legacy of lawsuits, but there’s still more work to be done.

The tribal court system was the focus of a three-day Alaska Tribal Court Development Conference held last week in Fairbanks by the Tanana Chiefs Conference that covered everything from the history of the courts to the current issues facing them.

Organizer Lisa Jaeger, a government specialist for TCC, said the idea behind the approximately 80 tribal courts in Alaska is that they’re based on important cultural tenants and are better-suited to deal with the issues unique to each community.

“The goal is to use local people and local traditions to achieve more of a restorative justice for the people,” she said.

The tribal courts in Alaska have jurisdiction over tribe members only and deal with issues like child custody, adoptions, marriages, divorces, alcohol regulation, employment and domestic violence.

In many cases, non-traditional methods of community-based restorative justice have a more successful outcome when compared to incarceration, Jaeger said. She said it’s a matter of not only finding the authority but necessary funding.

The system isn’t without its problems, said Alaska Legal Services attorneys Holly Handler and Tina Reigh. A number of historic landmark lawsuits have established tribal courts’ ability to oversee many cases, but ensuring that decisions are properly enforced is another matter.

“How do we get this enforced?” Handler asked. “With domestic violence or child protection, it’s not enough to have a case in a law book to say you have authority of it. If you bring this to a trooper, he’ll say ‘we can’t make sense of this.’”

She said some other states have tribal state commissions on how a tribe’s court orders will be processed. Alaska doesn’t have such a system, which creates a “hodgepodge” of implementation and enforcement of tribal law.

Alaska Supreme Court Justice Daniel Winfree, who spoke on the final day of the conference, said the state is exploring a pilot program to allow tribal courts to oversee cases of minors and alcohol consumption.

Attorney General Michael Geraghty also expressed optimism that the state and tribal courts can work together, but warned that the process can be derailed by fighting over jurisdiction, especially when it comes to how the court systems handle crime.

“The state does not support a separate criminal jurisdictions. ... I hope it does not become the focus of our relationship,” he said. “The focus should be utilizing our framework to utilize positive change, and I think it’ll help to not focus on jurisdictional disputes.”

Moving forward, Jaeger said she’s optimistic the state’s legal system will be able to find ways to cooperate with tribal courts and transfer some lesser crimes, like the pilot program mentioned by Winfree, and other matters to tribal oversight. She didn’t rule out that at least part of the ongoing battle will be fought in courts.

“This is the dance we’re at. People know people need these types of justice out in Bush Alaska, but are we going to have to litigate our way through this?” she asked. “Remember, tribes were doing a lot of cases before anyone said, ‘Yes, you can do that.’ The federal government isn’t going to say, ‘Yes you can do that.’ We’ll have to take care of our business.”

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