Restoration Magazine

The Violence Against Women Act (VAWA) Reauthorization of 2013 and 2022 included historic Tribal provisions that recognized the inherent authority of “participating Tribes” to exercise “special tribal criminal jurisdiction” (STCJ) over non-Indian defendants who commit certain “covered crimes” of domestic violence in Indian country (commonly referred to as a partial Oliphant fix). Subtitle B of VAWA 2022 creates an Alaska Pilot Project Program where Alaska Tribes, who meet certain statutory requirements, may apply to the Department of Justice (DOJ) to exercise STCJ to protect their Tribal citizens and communities in the same manner as lower-48 Tribes have had the opportunity to do since 2013.

Since VAWA’s passage on March 15, 2022, Alaska Tribes have been anxiously waiting for an update from the Department of Justice (DOJ) regarding the process for Alaska Tribes who are ready to exercise STCJ and for those aspiring to become a Pilot Program Tribe. VAWA 2022 mandated the U.S. Attorney General to release a process no later than one year after enactment or by March 15, 2023.
 

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On August 3, 2023, just 5 days before the Annual Office on Violence Against Women (OVW) Government-to-Government Consultation and almost five months after the deadline established in VAWA, the DOJ released the long-awaited framework for Alaska Tribes who wish to implement STCJ. In addition to detailing three tracks designed to accommodate Alaska Tribes in different readiness phases of STCJ implementation, the “proposed framework” recognizes the need for additional support, both in technical assistance and funding, for Alaska Tribes to fully implement STCJ and to request designation as a “participating Tribe” under 26 U.S.C. §1305(d)(1).

In addition to a newly announced “Federal Project Liaison” position within DOJ whose responsibilities include reaching out to Alaska Tribes to discuss goals and readiness to exercise STCJ, identify unmet statutory requirements, as well as training and technical assistance needs, the framework includes “Appendix A,” a questionnaire designed to be used by the Federal Project Liaison and DOJ staff in determining whether an Alaska Tribe meets the statutory requirements of 25 U.S.C. §1304 for exercising STCJ over non-Indians as part of the process for designation as a Participating Pilot Program Tribe. Under the currently designated DOJ process, Alaska Tribes who are requesting designation under Tracks Two or Three will be required to complete Appendix A.

The proposed framework places a heavy emphasis on aspiring and implementation-ready Alaska Pilot Program Tribes in utilizing the newly created Alaska Inter-Tribal Technical Assistance Working Group (ITWG), recently awarded to the Alaska Native Justice Center, in collaboration with the Alaska Native Women’s Resource Center (AKNWRC), RurAL Cap, University of Alaska Fairbanks, and the Tanana Chiefs Conference. The Alaska ITWG, modeled after the successful ITWG established for all federally recognized Tribes in 2013, will offer Alaska Tribes resources, training and technical assistance, and highly specialized and collaborative implementation assistance for Alaska Tribes who are ready to implement STCJ and for those who aspire to implement it.

TRACK ONE is designed for Alaska ITWG Membership and active participation. This track welcomes Alaska Tribes with an interest in exercising STCJ or exploring the possibility of doing so in the future. Such Tribes are encouraged to submit a Statement of Preliminary Interest to express their intent to become part of the Alaska ITWG community.

While Alaska ITWG membership and participation are not obligatory prerequisites for Alaska Pilot Program designation, choosing to be a part of the Alaska ITWG offers distinct advantages. Tribes within the Alaska ITWG will gain access to specialized technical support tailored to help them delve into and fully implement STCJ.

By participating in Track One, Tribes can benefit from a collaborative ecosystem that fosters knowledge sharing and capacity building. The Alaska ITWG serves as a valuable platform for Tribes to navigate the complexities of STCJ, ensuring they are well-prepared to exercise STCJ effectively, both for present and future considerations.

It is important to note that Alaska ITWG membership and participation are not required for Alaska Pilot Program designation. However, Alaska ITWG Tribes will receive targeted technical assistance to enable them to explore and fully implement STCJ.

TRACK TWO is a tailored initiative aimed at assisting Alaska Tribes on their journey towards self-governance. This initiative is ideal for Alaska Tribes seeking Preliminary Pilot Program designation, as well as those Tribes interested in exercising STCJ.

For Alaska Tribes aspiring to attain Preliminary Pilot Program designation, the process begins with completing a comprehensive questionnaire found in Appendix “A.” In this questionnaire, Alaska Tribes are required to indicate areas where they have established laws, policies, or procedures (by responding with a “No”) and provide pertinent legal documentation for those areas where such frameworks are in place.

Once the completed questionnaire is submitted to DOJ, the Department will designate a Federal Project Liaison. This liaison will collaborate with the Alaska ITWG collaborative group to initiate contact with the Tribe. The primary objectives of this engagement include discussing the Tribe’s goals, assessing its readiness, identifying any outstanding requirements, as well as addressing training and technical support needs. A tailored Readiness Plan will be developed to aid the Tribe in fulfilling any outstanding requirements. Tribes choosing to participate in Track Two will be officially recognized as Preliminary Pilot Program Tribes, and there are no limitations on the number of Tribes that can join this track.

While participation in Track Two does not require Alaska ITWG membership, it is strongly encouraged and highly recommended. This collaborative approach can significantly enhance the support and resources available to Tribes as they progress toward self-governance within the STCJ framework.

TRACK THREE has been designed to support Alaska Tribes ready to take the crucial step of requesting designation as Participating Pilot Tribe and who are poised to put STCJ into practice. Under this track, Alaska Tribes interested in pursuing this designation must initiate the process by submitting a Request for Designation, accompanied by a completed questionnaire that has been certified by Tribal Leadership.

Once completed designation materials are received by DOJ, a diligent review will be conducted by Department staff. Based on this review, one of the following outcomes will be recommended: (a) Attorney General designation as a Participating Pilot Program Tribe, (b) continuation of the Tribe’s status as a Preliminary Pilot Program Tribe (if applicable), or (c) extending an invitation to the Tribe to become a Preliminary Pilot Program Tribe.

For those Alaska Tribes whose request for designation as a Participating Pilot Project Tribe is approved, a comprehensive external communications plan will be developed in collaboration with the Federal Project Liaison. This plan will facilitate the notification of stakeholders, media, and Congress about the Tribe’s achievement. Simultaneously, the Department’s Tribal Justice and Safety website (www.justice.gov/tribal) will be updated to reflect this significant milestone.

Track Three imposes a limit, with no more than five Alaska Tribes being eligible for designation per calendar year by the Attorney General (as per 25 U.S.C. §1305(d)(1) and (5)).

While we extend our appreciation to DOJ for finally unveiling a long-awaited process that empowers Alaska Tribes to seek participation in the Alaska Pilot Program, we must acknowledge certain critical concerns. We recognize the DOJ’s efforts in acknowledging the importance of technical assistance and funding for this program. Nevertheless, there remain substantial challenges related to stable, non-competitive funding, which is indispensable for the program’s ultimate success.

One of the primary concerns is that the DOJ’s proposal does not sufficiently address how the crucial funding needs of the Alaska Pilot Program will be met. Despite recognizing that implementation will require funding to Alaska Tribes and that funding is essential for success, the proposal does not address how funding will be provided, except to mention that a current OVW funding solicitation that will close in two weeks is available. Whether or not this is the primary funding source for Alaska Pilot Program implementation remains unclear. For Alaska Tribes who did not meet the August 2023 OVW funding solicitation deadline, normal DOJ funding processes would likely mean that the next opportunity to apply for funding to support Pilot Project Program implementation would likely be Spring 2024, with funding made available in October 2024.

Sustainable funding is the lifeblood of any program, especially one as transformative and potentially impactful as the Alaska Pilot Program. Ensuring consistent and dependable funding is essential to enable Alaska Tribes to effectively exercise STCJ within the framework of the pilot program. Sustainability is at risk without a clear strategy for addressing these funding needs.

Additionally, ongoing delays and what appears to be a lack of consideration for the typical DOJ grant timelines prompt concern and apprehension. These delays have the potential to undermine the Alaska Pilot Program’s effectiveness and efficiency. Timely and efficient execution is pivotal to delivering the program’s intended benefits to Alaska Tribes and any disruption in this regard could have far-reaching consequences.

Attorney General Garland’s Alaska Visit and Roundtable Discussion on Public Safety
 

Attorney General Merrick Garland, the highest-ranking law enforcement official in the nation, embarked on a significant journey, traveling to Alaska Native Villages and engaging in meaningful discussions with Alaska Native leaders and advocates in Anchorage. The primary focus of these discussions was to explore viable paths forward in addressing the pressing public safety crisis that disproportionately impacts Alaska Native Villages and their citizens.
 

In a pivotal roundtable dialogue held in Anchorage on August 22 representing the culmination of his rural and public safety tour of Alaska, AG Garland led conversations with representatives of Alaska Native organizations with a particular emphasis on public safety concerns. This visit underscored the DOJ’s unwavering commitment to supporting initiatives aimed at bolstering public safety and fostering justice solutions within the unique context of Alaska.

In his opening remarks, AG Garland recognized “that Alaska Native families and communities have endured persistently high levels of violence and that women and girls have bore the brunt of that violence.”

Roundtable participants included: Senator Murkowski, Attorney General Garland, U.S. Representative Mary Peltola, Tami Truett Jerue and Rick Garcia from the AKNWRC, and representatives from the Alaska Federation of Natives, Tanana Chiefs Conference, Alaska Native Justice Center, Association of Village Council Presidents, and the Alaska Department of Public Safety.

Speaking briefly on the passage of VAWA 2022 and the newly created Alaska Pilot Program, AG Garland expressed his desire to “spend my time today listening to your ideas and addressing any questions that you have.”

Roundtable participants highlighted the unique legal jurisdictional and physical landscape of Alaska that has contributed to the current public safety crisis and emphasized the need for consistent, non-competitive, and reliable Tribal public safety and justice funding for Alaska Tribes.

In the context of the Alaska Pilot Program and funding for Alaska Tribes to support success with VAWA implementation, Rick Garcia, AKNWRC Co-Director of Law and Policy, and Michelle Demmert, Not Invisible Act Commissioner, urged the DOJ to think outside of their normal funding box and develop an innovative, multi-year, multi-agency, mini-consolidation grant programs approach to funding, that includes multiple federal agencies, for Alaska Tribes to fully implement VAWA 2022 and the Alaska Pilot Project.

Tami Truett Jerue, AKNWRC’s Executive Director, highlighted the vital need to ensure that advocacy and trauma-informed victim services in Tribal justice system operations and capacity-building efforts for Alaska Tribes are considered, commenting that “Tribally based victim services are crucially important in the broad spectrum of violence that our Alaska Native women and children face from birth to death.”

AG Garland’s recent visit to Alaska marks the second time in recent years that a sitting Attorney General of the U.S. has visited Alaska to discuss public safety concerns, particularly with Alaska Native Tribes and their citizens. In 2019, AG Barr visited Alaska and met with Alaska Native leaders and advocates to discuss the ongoing public safety and justice concerns in Alaska that affect predominantly rural, off-road, and Alaska Native communities. After his 2019 visit, AG Barr declared a law enforcement emergency in rural Alaska and authorized more than $10 million in immediate funding to support policing in Alaska Native Villages in rural Alaska hub communities.