Restoration Magazine

Will Tribes in Alaska and Other Public Law 280 States Benefit?

Savanna’s Act, passed October 2020, is designed to improve the response to missing and murdered Indigenous women (MMIW) by federal, state, Tribal, and local law enforcement agencies. While this legislation begins to recognize the disproportionate rate of violence against American Indian and Alaska Native (AI/AN) women, and on the surface, you would think all agencies—federal, Tribal, and states—would get behind these requirements. Sadly, in Alaska, “the Last Frontier” justice is slow, and too often there is no justice and accountability for those who commit violence against AI/AN women.

Savanna’s Act is named to honor the life of Savanna LaFontaine-Greywind, a 22-year old pregnant citizen of the Spirit Lake Nation in North Dakota who was viciously murdered in 2017. Savanna’s Act directs the U.S. Department of Justice (DOJ) to review, revise, and develop law enforcement and justice protocols to address missing and murdered Indigenous peoples and aims to improve MMIW data collection and Tribal access to such data.

Within this MMIW crisis, Alaska is considered one of the most violent states, with Anchorage as one of the most violent cities.¹ Alaska has the highest number of missing Indigenous persons. As of August 2021, out of the 743 missing AI/AN people in the National Missing and Unidentified Persons System (NamUs), 292 of those people were from Alaska. Why has the state of Alaska not worked with Alaska Tribes to address this injustice? How will Savanna’s Act change Alaska’s approach? These are questions that those of us who work with survivors, their families, and Tribal communities grapple with to ensure we are not giving false expectations with new programs and laws.  

While Alaska Tribes and other Tribes located in PL 280 states often lack the necessary resources, the development of Tribal plans may be the way for Tribes to take advantage of this important law. Tribes will require the federal government to quickly provide the necessary resources to make this law meaningful and realize the changes that Native women and Tribal communities need.

How Alaska Native Jurisdiction is Different

The situation in Alaska is different from all of Indian Country because Alaska Tribes have no treaties, which often define important governmental authority and territorial jurisdiction.

The Alaska Territory was purchased by the United States from Russia in 1867. Three short years later, Congress prohibited the President from “treating” with Tribal governments.² Alaska was a territory for almost a century until becoming a state during a time known as the Termination Era of federal Indian policy (the mid-1940s to mid-1960s).³ Public Law 83-280 (1953), now referred to as PL 280, was enacted during the Termination Era and transferred to certain states federal criminal jurisdiction over Indians living on Tribal lands. Before PL 280 was enacted, the federal and Tribal governments shared jurisdiction—exclusive of the states—over almost all civil and criminal matters involving Indians on Tribal lands. A month after Alaska became a state in 1958,⁴ the provisions of PL 280 were extended to Alaska as a “mandatory” state.

Because Alaska is a mandatory PL 280 state, and the maze of jurisdictional issues and other systemic barriers, there are extremely dangerous conditions for Alaska Native women across the entire state, especially those living in our small remote resource-poor communities. Without the extension of state services and resources to address the disparities in rural Tribal communities, the state of Alaska has failed Alaska Native women, children, and families.

Alaska had several “Executive Order” Reservations and Native townsites, which were set aside for the benefit and use of “Indians” or “Eskimos.” The Alaska Natives were active in advancing their rights and were active in governance with the Alaska Native Brotherhood (1912) and the first civil rights act in the country while Alaska was still a Territory.⁵ In the 1960s, land rights became a primary issue—with the discovery of oil—the federal government wanted to put an end to any question of land status for Natives and gain access to the rich oil reserves.

The Alaska Native Claims Settlement Act (ANCSA)⁶ came at the tail end of the Termination Era —the policy designed to abolish Tribes and assimilate individual Indians. ANCSA created a new and novel approach to Tribal land tenure. Rather than recognize sovereign Tribal lands, ANCSA created for-profit corporations and transferred Tribal lands in fee to these entities to manage more than 40 million acres of land. ANCSA divided the state into 12 regional corporations and over 200 village corporations that would identify with their regional corporation. Many of these villages had corresponding Tribal village governments, but with the passage of ANCSA, no meaningful or recognized land base. After ANCSA, the only remaining Alaska reservation is the Annette Island Reserve in Southeast Alaska.⁷

Unlike most court systems that have defined territorial jurisdiction and personal jurisdiction, Alaska Tribal courts generally exercise jurisdiction through Tribal citizenship, and not through a geographic space defined as “Indian country.” This is due to ANCSA and in part to Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), a case in which the U.S. Supreme Court held that, with the exception of the Annette Island Reservation, there is virtually no Indian country in Alaska.

Indian country defines a confined area of territorial jurisdiction tied to a Tribe. The term “Indian country” means “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”8 Most grants and federal programs reference eligibility of “Indian country” for certain programs. While federal programs have expanded their definitions for Alaska Native Tribes to take advantage of most programs as “dependent Indian communities,” the lack of true legally defined “Indian country” and corresponding defined “jurisdiction, continues to create a dangerous situation in Alaska and for Tribal governments to protect their women and children.

 

Without real change, resources, and accountability, Tribes in Alaska will continue to be left out of improvements designed to effectuate change. Savanna’s Act envisions real change and the findings of the law recognize the crisis, and real people, whose lives were changed forever as a result of the untimely death of their loved one.

–Michelle Jaghaal.aat Demmert, Law & Policy Director, AKNWRC

In addition, without the ability to tax, without Indian gaming, and without consistent and predictable Tribal court federal appropriations, Alaska Tribes lack the revenue typically available to other Tribal governments to fund and sustain essential government infrastructure and services such as a court or police force. All Alaska Tribes are in a similar position and must find innovative ways to raise government revenue and to leverage other resources to sustain their Tribal courts, public safety, and victim services. Because of this resource dilemma, available grants for developing and sustaining programs are a matter of life-or-death for Alaska Native women and Tribes. 

In a PL 280 state, Alaska Tribal communities should have access to state justice services. However, those services are centered in a handful of Alaskan urban areas, making them more theoretical than real in rural Alaska. Because Alaska is a mandatory PL 280 state, and the maze of jurisdictional issues and other systemic barriers, there are extremely dangerous conditions for Alaska Native women across the entire state, especially those living in our small remote resource-poor communities. Without the extension of state services and resources to address the disparities in rural Tribal communities, the state of Alaska has failed Alaska Native women, children, and families.

Savanna’s Act: Will the State of Alaska Rise to the Challenge?

The purpose of Savanna’s Act is:

• to clarify the responsibilities of federal, state, Tribal, and local law enforcement agencies with MMIW;
• to increase coordination and communication among federal, state, Tribal, and local law enforcement agencies, including medical examiner and coroner offices;
• to empower Tribal governments with the resources and information necessary to effectively respond to cases of missing or murdered Indians; and
• to increase the collection of relevant and accurate data related to missing or murdered Indian men, women, and children, regardless of where they reside, and the sharing of information among federal, state, and Tribal officials responsible for responding to and investigating cases of missing or murdered Indians.

While the federal government recognizes the investment needed to respond to the MMIW crisis, the state of Alaska is yet to similarly respond. State House Bill 38, the short title “Missing/Murdered Indigenous Women” was introduced in 2020, but no hearing was held. A similar bill (HB 277) was introduced in 2019 without any meaningful action.  

Staff from the Bureau of Indian Affairs (BIA) and the DOJ, have acknowledged that without the cooperation of the PL 280 states, Tribes located within these states will have limited benefits of Savanna’s Act.  

The U.S. Attorneys are to develop regional MMIW guidelines that include:

1. guidelines on inter-jurisdictional cooperation among law enforcement agencies at the Tribal, Federal, State, and local levels, including inter-jurisdictional enforcement of protection orders and detailing specific responsibilities of each law enforcement agency;
2. best practices in conducting searches for missing persons on and off Indian land;
3. standards on the collection, reporting, and analysis of data and information on missing persons and unidentified human remains, and information on culturally appropriate identification and handling of human remains identified as Indian, including guidance stating that all appropriate information related to missing or murdered Indians be entered in a timely manner into applicable databases;
4. guidance on which law enforcement agency is responsible for putting information into appropriate databases under paragraph (3) if the Tribal law enforcement agency does not have access to those appropriate databases;
5. guidelines on improving law enforcement agency response rates and follow-up responses to cases of missing or murdered Indians; and
6. guidelines on ensuring access to culturally appropriate victim services for victims and their families.

How will a state that does not prioritize the safety of women and children implement these requirements?

The federal government could have jurisdiction if assistance is requested, and in certain cases does not have to wait to act. Even though the Alaska Tribes have concurrent jurisdiction with the state of Alaska, very few have law enforcement of their own, which is the barrier to the federal law enforcement’s involvement. One solution is for the Tribes to directly request assistance from federal law enforcement, which would help close one of the current public safety gaps. Tribes have concurrent jurisdiction and should be able to directly request assistance regardless of whether they have Tribal police.

Tribes in the state of Alaska should also be able to take advantage of Section 5(f) of Savanna’s Act, which provides that Indian Tribes may submit their own response guidelines for cases of missing or murdered Indians to the Attorney General and in return, the federal government should immediately develop a plan to distribute grant funds to Tribes within the state of Alaska  and other PL 280 states. Technical assistance should be provided immediately to agencies that can assist Tribes in developing their own plans and should include a commitment from the federal agencies.

Final Thoughts 

There are far too many Alaska Native women and girls that have experienced victimization because they are Indigenous women. AI/AN people have suffered abuse and death because the government has failed their legal and moral trust responsibility to assist Indigenous nations in safeguarding the lives of our women and children. Alaska Tribes and Tribal communities have few options when seeking help, such as safe shelter, sexual assault services, law enforcement, medical and mental health services, or any type of help dealing with the prevention and aftermath of victimization. The lack of fundamental services results in death or one of our relatives going missing; our women experience multiple traumas from birth to death. Without real change, resources, and accountability, Tribes in Alaska will continue to be left out of improvements designed to effectuate change. Savanna’s Act envisions real change and the findings of the law recognize the crisis, and real people, whose  lives were changed forever as a result of the untimely death of their loved one. Savanna’s Act is one step in the right direction, but to be effective in the state of Alaska—with some of the worst numbers—the state and federal agencies need to work together with Tribes in a collaborative manner with resources provided now, not years from now.  

Hear more from Michelle Jaghaal.aat Demmert on Episode 21 of Speaking Our Truth, Podcast For Change at niwrc.org/podcast

1.  When Men Murder Women 4 (Violence Policy Center 2019).Missing and Murdered Indigenous Women and Girls 12. The Seattle-based Urban Indian Health Institute reports that Alaska is among the top ten states with the highest number of missing and murdered AI/AN.(Seattle Urban Indian Health Institute 2018).
2.  25 U.S.C. §71. During this time, it is notable that the Civil War had just ended and the country was in the process of the “Reconstruction Era,” a time which the United States was  reintegrating into the Union the states that had seceded and determining the legal status of African Americans. Alaska Territory was a far off world not part of this focus.
3.  68 Stat. 795; Pub. L. 85–615, § 1, Aug. 8, 1958.
4.  Public Law 85-508(July 7, 1958).(The statehood act was signed into law by the President on July 7, 1958. On January 3, 1959 the President  signed the official proclamation admitting Alaska as the 49th state.
5.  House Bill 14, the Antidiscrimination Act of 1945.
6.  43 U.S.C. 1601 et. seq.(1971).
7.  18 U.S.C. § 1162 (Except as otherwise provided in sections 1154 and 1156 of this title,; 28 U.S.C. § 1360.Pursuant to ANCSA, two Native corporations were established for the Neets’aii Gwich’in, one in Venetie, and one in Arctic Village. In 1973, those corporations elected to make use of a provision in ANCSA allowing Native corporations to take title to former reservation lands set aside for Indians prior to 1971, in return for forgoing the statute’s monetary payments and transfers of non reservation land. See §1618(b). The United States conveyed fee simple title to the land constituting the former Venetie Reservation to the two corporations as tenants in common; thereafter, the corporations transferred title to the land to the Native Village of Venetie Tribal Government (the Tribe). However, the analysis of their land status is beyond the scope of this article.
8.  18 U.S.C. § 1151.