SECTION FIVE

SELF-GOVERNANCE & SELF-DETERMINATION

 

Report of the Governance Task Force

 

Contents

Preface

151

Justice, Law Enforcement, and Corrections

154

Fundamental Values and Influences

154

The Ethic of Truth Telling and Full Disclosure
The Ethic of Non-interference
The Ethic of Non-confrontation

154
155
155

Problems Related to the Legal System

156

Over-representation of Natives
Law Enforcement
Judiciary and Corrections
Probation and Parole
Analysis of Problems and Probable Causes

156
157
159
160
162

Issues Related to Local Control

168

Village Governance
Local Ordinances and Enforcement
Tribal Courts, the State's View, and P.L. 83-280
Alternative Punishment at the Village Level

168
168
170
171

Recommendations

172

Changes in Law Enforcement
Changes in Probation and Parole

172
176

Concluding Comments

178

Summary of Final Recommendations (Part II)

179

Empowerment of Village Conflict Resolution Bodies
Correcting Corrections: Probation and Parole
Local Law Enforcement in Rural Alaska
Native Opportunities for Employment
Counseling Programs within Corrections
Self-Determination

179
180
180
180
181
181

 

Self-Determination (P.L 93-638) Review

184

Historical Overview -

184

The Early Years
The Indian Self-Determination & Education Assistance Act
P.L. 100-472 and the Regulation Problem

184
185
188

Current Contract Status

190

Overview
Bureau of Indian Affairs
Governmental Problems that Need to be Addressed

190
191
193

Findings and Recommendations

197

Costs and Benefits of Contracting
Recommendation: Re-Instate the "104(a)" Grant Program
Fiscal Considerations
Regional Non-profit Reorientation

197
198
199
200

Fish, Game, and Subsistence

201

Regulatory Processes and Outcomes

201

Regionalizing the Fish and Game Boards

201

Limited Entry

203

Reindeer

203

A Myriad Issues

204

 

I. Preface

The charge to which the Alaska Natives Commission responded when it was first formed in 1992 was exceedingly broad. Issues were brought forward by those who provided testimony in Commission hearings that ranged over a broad list of topics that included problems with the state and federal government, subsistence, courts, corrections, and Native regional corporations. Faced with a diversity of issues that could have taken 18 years to address, rather than only 18 months, the Commission chose a subset that, from the testimony and its own evaluation, clearly held a high priority for the Alaska Native people. This study focuses on those issues and proposes a number of recommendations that, if followed, will lead to a reduction in the problems that Alaska Natives face.

A common theme in the hearings was the need for Alaska Native villages — "tribes" in the federal terminology — to regain governmental control of their own communities and to exercise authority in a number of areas which are discussed in this study. This theme was stressed by Mr. Will Mayo, President of the Tanana Chiefs Conference, who testified at hearings held in Fairbanks in July 1992. Remarking on the 200th anniversary of Columbus' visit, Mr. Mayo pointed to the fact that Alaska Natives have lived on their homeland for perhaps 30,000 years and then added:

The 500 years of relationship with the Western culture has brought, by far, the greatest changes. It is the changes that we have seen that have, I think, initiated and called for this Commission. One thing that I am grateful for is that though we know that many people left their homeland to come to our country in search of hope, success, gold, fur, oil, fish, riches, and freedom . . . most came for freedom. The ironic thing about it is that the people whose home this was for thousands of years uninterrupted have suffered much because of the coming.

Though this impact on our land and our resources has been very detrimental in some ways, yet wise men who came together seeking independence from England sat down and said: "We need to create a nation where we can exercise freedom; where we can exercise basic human rights with dignity." And in the development of their organic document, the United States Constitution, these men chose to recognize, without question, the human rights of self-determination and of freedom and of use and occupancy of the Native people. The only thing they said was that Congress will have the power, and only Congress, to regulate commerce with the tribes. So they did not even choose to question the existence of tribes. That was not even an issue with them.

I believe that many of the difficulties we have are a result of the forcing of a new way, of a new culture, of new ideas upon the Native people without their consent, without their cooperation, or even without their input. I believe that the cultural clash that occurred could have been greatly mitigated, greatly lessened in all of its negative impacts, if only succeeding generations of American immigrants, since the drafters of the Constitution, would have followed the principles of that Constitution and allowed Congress to govern and regulate the relationship. Instead, what we have seen is that, as time has marched on in these 500 years, there has been a gradual — and sometimes not so gradual — continuous loss of rights, recognition of the human rights and human dignity of the Native American people.

I urge you to look back to the motivations of the drafts of the Constitution of the United States to reflect on their good work . . . I urge you to recognize the right to self-determination, to tribal government, and recognize also the importance of the subsistence way of life to the survival of a culture of people who have every right to continue to exist in a form that they design and in a form that they control. And I think that by working together, as government to government, that the tribes, and the State of Alaska, and the United States government can work to fashion a hopeful future to assist the Native people in overcoming the social disruptions, the problems that have emerged for the last 500 years, and that there be mutual respect for the lands, the rights, and the culture.

The issue of self-determination has been in the forefront of the work of the Commission, and it is represented often in the findings and recommendations that have resulted from this work. Self-determination, as a basic principle, must be viewed, however, in several different dimensions. The controversy surrounding the State's refusal to acknowledge tribal sovereignty is an important dimension and is covered thoroughly in other volumes of the Commission's Final Report. And although sovereignty is also addressed in this portion of the Commission's study, there are many other dimensions and consequences of self-determination that are important to the future of Alaska Native people. They include the ability to resolve disputes within the tribal community; eliminating problems that revolve around "corrections" as that term applies to Alaska Native offenders; offering fair and equitable probation and parole options to Alaska Natives who reside in the bush; and responding to other needs related to governance by and for Alaska Native communities. These issues, which involve the law enforcement, judicial, and correctional aspects of self-governance are the topics of Part I of this study.

Other problems and policies related to self-governance have become evident as well, not the least of which relate to contracting federal programs under P.L. 93-638 and P.L. 100-472. Many IRA councils and traditional councils continue to struggle to maintain any semblance of government in the absence of a stable source of funds, however small, to pay for day-to-day operations. Others have chosen to exercise their limited tribal authority by proposing to contract programs that have, for many years, been contracted by their respective regional non-profit Native corporation. And questions concerning the control and relative centralization of some of those corporations were asked during Task Force and Commission hearings. These topics, which concern another dimension of self-determination, comprise Part II of this study.

Finally, as Mr. Mayo noted, there is the fundamental issue of subsistence, as a way of life rather than a set of "subsistence regulations," which have now become bureaucratically instituted within both the state and federal governments. The Alaska Native people have no effective input — no voice — in the decision-making processes that are too often dominated by loud (and rich) interest groups whose objectives are diametrically opposed to the essence of a subsistence lifestyle. How best can the Alaska Native people exert self-determination within this complicated context? How can tribal and regional differences and traditions be safeguarded in the new, regulatory world of "fish and game"? How can disasters such as that which befell the people of the Yukon River and the Kuskokwim River be avoided in the future? These questions have been brought before the Alaska Natives Commission, and they are discussed in fuller detail later. Because of the fact that they also relate to the social-cultural aspects of Alaska Native life and to the economy of Alaska Natives, they are also addressed in studies of other Task Forces. Thus, their coverage in this study is comparatively slight, not by any means to symbolize their importance but rather as a result of their having been covered in greater detail elsewhere.

Under ideal circumstances, the Commission would have been able to research every aspect of every issue related to self-determination and to all other governance problems and policies that impact the Alaska Native people. Time did not allow that: as mentioned in the opening paragraph, we did not have 18 years to conduct our work, only 18 months, which passed with surprising speed. Though not all-inclusive, the study does highlight some of the major problems concerning some aspects of governance issues; and it offers recommendations that, in the determination of the Commission, will reduce, if not eliminate, those problems.

 

II. Justice, Law Enforcement, and Corrections

A. Fundamental Values and Influences

There is no doubt that a process of deculturation (i.e., the elimination of traditional values and behavior without their necessarily being replaced with another set) has had its impact on Alaska Natives and that the extent of that impact varies from one region to another. The Aleut and Alutiiq people, for example, have been largely under White control for two hundred years, while there are some Yupik, Inupiat, and Athabascan villages that largely escaped White contact until well into this century. Irrespective of the varying degrees of overlay of White ways and the loss of Native ways, there are some fundamental, intrinsic values, ethics, and principles to which all Alaska Native cultural groups adhere, and some of these influence the interaction that Natives have with law enforcement, judicial, and correctional systems. To the extent that these have been articulated and can be understood, they will be briefly reviewed here.

1. The Ethic of Truth Telling and Full Disclosure

Individuals testifying before the Commission and experts who have been contacted to provide insights, recommendations, and advice have often mentioned the propensity of Natives to "fess up" when asked about an offense. An enlightening example of the pervasive ethic to tell the truth and fully disclose what one has done was related by Ms. Mary Geddes, Assistant Federal Public Defender, in her testimony before the Commission in April 1993. She described an event that took place in a North Slope Village when the residents mistakenly thought a DEW Line station had been abandoned and its contents were free for the taking. After someone announced as much on the CB, about 40 people rode out to the Station on their snow machines and removed the useful items. Later, someone discovered that the Station had not been abandoned after all and announced on the village CB that everyone should take the items to the school where they were to be collected and returned to the U.S. government. When everyone did just that, they told officials that, yes, they had gone out and taken the property, after which the federal government decided to prosecute every one of them.

Reviewing principles and ethics of the Eskimo, Arthur Hippler, an anthropologist, and Stephen Conn, attorney and associate professor of Law at the University of Alaska, concluded that "from aboriginal times, the Eskimo considered confession a good thing." They went on to say, "this was because the Eskimo's own good opinion of himself, as well as what he had learned to expect from his society, led him to believe he could confess almost anything without causing shock or receiving censure."1

Obviously, the expectation of a noncensorious reaction to telling the truth is not valid when dealing with current judicial reality. When combined with plea or charge bargaining, which seems to predominate in much of Alaska's judicial system, the Native ethic of truth telling and full disclosure will almost inevitably lead to jail time. It is not the intent of the Commission to raise this issue as a means to imply that Natives should not tell the truth. Rather, the ethic is mentioned here because of its influence on the processes and outcomes of the Western systems now in place in Alaska.

2. The Ethic of Non-interference

A second rule or ethic that was central to the conduct of Native life in traditional times and still remains influential is the avoidance of telling others what they should do with their lives. This ethic was elegantly described by Dr. Clare Brant, a Native psychiatrist, in a speech delivered in Northern Canada, which is quoted here:

The Ethic of Non-interference is probably one of the oldest and one of the most pervasive of all the ethics by which we Native people live. It has been practiced for 25 or 30 thousand years, but it is not very well articulated . . . This principle essentially means that an Indian will never interfere in any way with the rights, privileges, and activities of another person.

I'll have to expand on that and explain it by comparing it with white people and the way they operate. In every human relationship, there is some element of influence, interference, or even downright compulsion. The white man is torn between two ideals. On the one hand, he believes in freedom, in minding his own business and in the right of people to make up their minds for themselves. On the other hand, he believes he should be his brother's keeper and not abstain from giving advice or even taking action when he perceives his brother making an error.

Thus, at a white person's party, when someone announces that he wishes to buy a pear tree, he can usually expect someone to suggest he buy a peach tree instead. Someone will be glad, in a friendly way of course, to tell him what he should be reading, doing, talking, feeling, listening to, etc. The Indian society does not allow this. Interference in any form is forbidden, regardless of the following irresponsibility or mistakes that your brother is going to make.

This principle of non-interference is all-pervasive throughout our entire culture. We are very loath to confront people. We are very loath to give advice to anyone if the person is not specifically asking for advice. To interfere or even comment on their behavior is considered rude.2

Typical Native story-telling; use of frequent analogies, metaphors, and anecdotes; and the seemingly circular way of talking about issues before decisions are made are all examples of the ways in which this ethic portrays itself. Rather than telling someone what to do, an Elder will tell a story about someone else who, when faced with a problem similar to the listener's, did such and such. The listener has the opportunity to learn and to change his behavior as a result of the information contained in the story, but he does not come away feeling that he has been told what to do. Likewise, the Elder does not feel guilty of having transgressed the ethic. This manner of communication is common in tribal court proceedings as well.

3. The Ethic of Non-confrontation

Alaska Natives avoid conflict and confrontation. Quoting Hippler and Conn again (and showing the close tie between the ethics of non-confrontation and non-interference): "The esteemed individual in Eskimo society was not the law giver and conflict resolver but rather the conflict avoider who did not judge the behavior of others."3 Athabascans held a similar ethic.4 There are three consequences of this ethic's influence on behavior. The first is the increased likelihood that a Native charged with a crime will readily admit to it rather than fight. The second is the tendency on the part of Natives to accept a lawyer's suggested plea ("charge") bargaining offer. And the third is the passivity that is often seen in Native inmates once they are incarcerated. This last has been eloquently described by Rupert Ross, an Assistant Crown Attorney in Northern Ontario, Canada, who is internationally known for his writings about Northern Natives and the justice system:

Many Native people, especially youngsters, who are arrested in remote communities and removed to cells in distance centres demonstrate this learned response. A few have been observed to enter into an almost catatonic state and to remain there for days at a time, prompting any number of misdiagnoses. Native children generally don't do what their white counterparts do. They do not try to instantly dominate their new surroundings, nor do they act up to try to draw attention to themselves... Instead, they do as they have learned to do, and retreat into positions of careful observation. We then see, in our jail reports, words like "unresponsive," "sullen," "passive," and the like. The negatives seem to pile up once again, simply because their reactions are not ours.5

There are other ethics that "mediate" between the perceptions and behavior of Alaska Natives and consequently relate to their involvement in the various criminal justice and correctional systems. The Commission has chosen to illuminate only a few, in order to provide the reader some insight into broad cultural and traditional influences that can be said to predominate throughout all of the very different Alaska Native groups. Many others are more specific to one group or another, adding to the complexity of both understanding the ways in which these factors influence behavior and discovering solutions that will remedy some of the- problems that have been made known to the Commission over the course of its work. The fact that these more subtle characteristics are not discussed here should not be misinterpreted to mean that they are not important. Rather, those who use this document as the starting point in making changes to the systems that will improve the state of Alaska Natives should study both the common and the individual ethics and fit program and policy changes to both.

 

B. Problems Related to the Legal Systems

1. Over-Representation of Natives

There is a relative over-representation of Alaska Natives and American Indians throughout the law enforcement, judicial, and correctional systems, but there are key areas that stand out from the rest as revealing particular problems. The Commission surveyed the entire system, reviewed extensive data, and received testimony from a multitude of citizens, including Native inmates in two of Alaska's correctional facilities. The data are presented .and highlighted first, followed by recommendations of the Commission concerning ways in which injustices and other inadequacies must be immediately addressed. Additional suggestions for demonstration programs that will test new methods of more fairly handling the legal problems of Alaska Natives who encounter these systems are also offered.

In early testimony taken by the Alaska Natives Commission, there were frequent references to apparently biased processes and outcomes within the law enforcement and Judicial systems, with higher conviction rates for Natives in many crimes, differences in sentencing, etc. In order to assess the situation fairly, the Commission first reviewed the arrest records, utilizing the Uniform Crime Reporting system of the Department of Public Safety. This analysis showed that even at this earliest level of contact, for some offenses the Alaska Natives and American Indians tend to be comparatively over-represented. Since this comprises the first point of contact in this multi-phased system, it will be presented first.

2. Law Enforcement

As the tables presented show, in certain categories of reported crime, the number of Alaska Natives/American Indians arrested are disproportionately high. The data were collected by the Alaska Department of Public Safety's Uniform Crime Reporting system and represent the most recent data available.6 While reviewing these tables, it should be kept in mind that the Native population of Alaska represents approximately 16 percent of the total.7

Table 1: Race of Persons Arrested, Under the Age of 18 (Statewide Totals)

Offense

Natives

Non-Natives

% Native

Rape

5

5

50.0

Aggravated Assault

31

70

30.7

Burglary

182

308

37.1

Other Assaults

51

177

22.4

Arson

3

5

37.5

Liquor

278

420

39.8

Disorderly

14

26

35.0

Curfew

20

39

33.9

All Offenses

1,267

4,291

22.8

 

There are other indicators of the fundamental problems that exist in the relationship between Alaska Natives and the law. For example, the data from a study conducted in 1989 showed that 24.8 percent of the inmates at Hiland Mountain Correctional Center were Native; 70.5 percent of the Native inmates there were from rural Alaska, but only 40.9 percent were residing in rural Alaska at the time of their arrest; and substance abuse was involved in the crimes of 65.9 percent of the Alaska Native/American Indian inmate population there. Furthermore, only 41.9 percent of the Alaska Native/American Indian inmates at Hiland were employed on a full-time basis at the time of their arrest, compared with 72.3 percent of the non-Native inmate population.8

Table 2. Statewide Totals: Race of Persons Arrested, Age 18 Years and Over

Offense

Natives

Non-Natives

% Native

Rape

55

59

48.3

Aggravated Assault

302

491

38.1

Burglary

141

332

29.8

Other Assaults

1,124

1,911

37.0

Arson

5

5

50.0

Liquor

855

889

49.0

Disorderly

495

510

49.3

Sex Offenses

179

140

56.1

Marijuana

126

198

38.9

All Offenses

8,476

22,900

27.0

 

The offense problem bridges the gap between rural and urban Natives: statistics in the next two tables pertain to arrests made by the Anchorage Police Department during calendar year 1991. The reader is reminded that the Native population of Anchorage represents only 6.4 percent of the total.9

 

Table 3: Anchorage Arrests of Persons Under the Age of 18

Offense

% Native

Alcohol

42.4

Prostitution

33.3

 

The roots of these comparatively high rates of arrest — and, one must conclude, underlying high rates of committing these offenses — in certain criminal areas are thought to lie in events that took place in the early years of most of the perpetrators. In a survey of 5,458 students in grades 7-12, representing about half of the 55 school districts statewide, 32 percent of the females and 5 percent of the males reported having been sexually abused by the time they reached the 12th grade. The survey also found that 28 percent of the females and 11 percent of the males reported having been physically abused.10

There is further evidence of a deep-seated behavioral source of many of these offenses. The Anchorage office of the Court Appointed Special Advocate Program, which represents children in danger of harm resulting from family problems, reports that 51 percent of its caseload for Calendar 1991 was comprised of Natives.

In concluding this section of the review, it must be said that although there may be some inappropriate arrests and biases among arresting officers, the data indicate that there is an underlying reality that Natives are committing some specific types of offenses far in excess of their numbers. In other words, there are types of criminal activities that appear to predominate within the lifestyles of Alaska Natives, whether they reside in the Bush or in urban areas. The Commission recommendations that address these problems speak to the need for dramatically increasing support for families in crisis and for teaching young people appropriate parenting skills before they start a family. The recommendations also relate to the fundamentally high prevalence of alcohol abuse among the Native population and the fact that until that essential, underlying behavioral disability is overcome, the situation will remain largely unchanged.

Table 4: Anchorage Arrests of Persons Aged 18 and Over

Offense

% Native

Family/Child Abuse

54.1

Disorderly Conduct

29.7

Sex Offenses

26.7

Vandalism

21.0

Drug Possession

20.9

Alcohol Offenses

18.5

Murder

18.2

 

3. Judiciary and Corrections

The Alaska Sentencing Commission's 1992 Annual Report showed that, whereas Alaska Natives represent 16 percent of the general population of the state, their representation among the incarcerated population is more than twice that figure, at a little over 32 percent. But the data also show differences in the types of crimes for which Natives are being incarcerated. Within the misdemeanants, for example, 43 percent are Native; among sex offenders, 39 percent are Native; and among probation and parole revocations, 41 percent are Native. Data reported for 1990 showed that 50 percent of those convicted of second degree murder were Native. For some other crimes, the representation of Natives was lower. among drug offenders, for example, only eight percent were Native. Although plea bargaining has been banned in Alaska for 16 years, "charge bargaining" exists, and it has been hypothesized that the disproportionate number of Alaska Natives convicted and incarcerated may be, in part, due to their more readily admitting to a lowered charge, which may in turn be related to the mediating cultural ethic of avoiding confrontation, which was discussed earlier in this study. Confusion about and misunderstanding of the judicial system further adds to the problems. As Mr. Louie Chikoyak, an inmate at Hiland Mountain, offered in written testimony to the Alaska Natives Commission, when he asked other Native inmates how their court proceedings went, they usually answered, "I don't know."

Another example of the tendency to "cop" to a lower charge and to be. confused by the proceedings was given in the testimony of Mr. Bertrand Rose from Hoonah, interviewed at Hiland Mountain, where he is now incarcerated. In response to questioning from Mr. Boyko, Mr. Rose said:

I felt like a lot of people that have pleaded out have been manipulated . . . I'm sitting there speaking with my attorney and he's telling me nothing but what I'm going to face, what's going to happen to me. And then he comes up with this magical charm, you know, what I should accept . . . no matter if I get on the stand and no matter what I say, that I'm going to be convicted.

Of Alaska Natives who are currently incarcerated, 66.4 percent have one or more prior convictions, compared with 51.1 percent of the White inmate population. The greatest discrepancy exists between these two groups in prior felonies recorded: 35.6 percent of the Native inmates have one or more prior felony convictions, whereas only 21.0 percent of the Whites do (and 22.8 percent of the Blacks).

There is a cultural and historical issue concerning incarceration that must be considered because it may provide insights regarding solutions to some of the problems that now exist within the judicial and correctional systems and the manner in which they impact Alaska Natives. It is the fact that there is no indication that any Alaska Native group used incarceration as a means of punishment. In testimony provided to the Commission, oral histories taken over the years, and written reports going back to early Russian visits to Alaska, there are not any examples of offenders having been "locked up." There were many different types of punishment, from embarrassment in front of the Elders to banishment and execution, but there were no jails.

Other evidence points to hearings and sentencing procedures, particularly among the Athabascans who, in certain cases, might deliberate a case for as long as five years.11 Nonetheless, the argument remains that incarceration is alien to Alaska Native traditions. And the fact that in the large majority of cases incarceration occurs far from the offender's family and village, practically eliminating visits and other contact with his/her community, makes it that much more difficult for the person to re-engage in a meaningful way when he/she is released.

Three other issues before the Commission are alcohol's effect on Natives and subsequent criminal behavior, the frequency with which Alaska Natives experience probation and parole violations that return them to prison, and the absence of local control in dispute resolution. By implementing strategies to correct those problems, the disproportionate representation of Alaska Natives within the correctional system could be corrected to an extent. The problems that are specific to probation and parole are discussed next.

4. Probation and Parole

In April, the Commission heard testimony from Ms. Teresa W. Carns, Senior Staff Associate of the Alaska Judicial Council. Summarizing, Ms. Carns reported that whereas about 32 percent of the those incarcerated in Alaska's correctional system are Natives, only 25 percent of those on probation or parole are Natives. And there is a disproportionately large percentage of Natives who are re-incarcerated due to revocation of their probation or parole. The data that Ms. Carns presented to the Commission at that hearing were from 1992 and showed that 41.8 percent of probation revocations were Native, while 42.2 percent of parole revocations were Native, surpassing slightly the percentage for Whites (41.7%).12 Given that the percentage of Natives in Alaska's general population is about 16 percent, this disparity is obviously indicative of a large problem in the correctional system.

The question that must be asked is whether the probation and parole systems in Alaska discriminate against Natives, especially rural Natives. Answers to that question have come from testimony and can be substantiated by the statistics. In her testimony to the Commission in March 1993, Ms. Margi Mock, Supervisor for Statewide Appeals in the Public Defender Office, presented a strong case both for bias in the system and for changing that system.

Native American people serve their sentences on the installment plan. . . When I have Native American clients who say to me, "I want to take the State's deal and do probation," inside I just die a little, because it doesn't work. And it doesn't work because, A, they don't understand how it works, no matter how many times it's explained, because . . . the system, as it's set up, doesn't make sense; so there's no reason they should understand it. And B, it doesn't work because I don't think the probation officers understand how the system works either. I would rather see my clients flat time their sentence.

The current system requires that, with few exceptions, probation and parole be taken in Anchorage, Fairbanks, or some other city; options for parole to one's village are limited by the absence of probation/parole officers in those villages. Yet it has become obvious that some sort of local control should at least be tested, if not routinely established. This has been offered in testimony: the following was stated by Mr. Paul Shewfelt, an Athabascan from Ft. Yukon now serving time at Hiland Mountain. In response to Mr. Boyko's question about the possibility of handling criminal court problems at the local level, Mr. Shewfelt responded:

. . . basically, a community is very close-knit and do have ways of dealing with their own people. I know that any kind of parole or probation would be more realistically — have a greater chance of success by transferring the responsibilities over to their tribal or municipal governments, because it would be very hard to violate the conditions of release if that were to happen. This thought was echoed by Mr. James Simpkin, an inmate at Spring Creek:

In most cases, the Native inmate that is eligible for parole or mandatory release could make it if he or she could go back to the village and live with family and friends. They could adjust better to the outside this way. By making them stay in the city and get a job, it's harder on them. We need to get in an environment we are comfortable in. Most Natives, once in their village, can most likely make it . . . Telling them they have to work and stay in the city is a hardship on them, before they even get a chance to make it on the outside.

An example of locally based, intensive treatment that has been found to be successful by the Alaska Department of Health and Social Services, the Alaska Youth Initiative (AYI), was designed to provide individualized services to severely emotionally disturbed children, with the specific intent of preventing more expensive and more restrictive residential care. When an AYI child is "enrolled" in the system, a team is assembled and funds are contracted through a local mental health provider to support the treatment, foster families, respite, school assistance, counselors, etc., as needed. When the services are no longer needed, the funds are eliminated, thereby avoiding continuing the costs to state government. A similar program could be attempted on a pilot basis for providing both monitoring and supportive "services" to individuals released to their Villages on parole or probation. Others, however, have suggested that voluntary monitoring and support are more culturally appropriate and effective means of handling village-based probation and parole. Psychologically, one is more committed to a role if one engages in that role without remuneration, and community members who are working cooperatively to help a village resident regain his/her status and re-establish him/herself will be more inclined to embrace their task more thoughtfully if they are doing it for the good of the community as a whole rather than for a paycheck.

Several options are included in the final recommendations, but the first recommendation of the Commission deals with effecting an immediate rectification of the present situation by requiring the Department of Corrections to review the records of all Native inmates who have been re-incarcerated for parole or probation violations and to release those who are not dangerous. Additional recommendations focus on alternative systems that need to be established in rural Alaska to enable inmates to be released back to their villages and to fulfill the requirements of their probation or parole while being monitored locally and supported by community efforts to keep them out of correctional facilities in the future.

5. Analysis of Problems and Probable Causes

It is not the intent of the Commission to speculate about causes of the problems just discussed or to point fingers at those who administer — or have designed — any of the systems now in place. The evolution of the law enforcement, judicial, and correctional systems that exist in Alaska involves centuries of Western European thinking, and by their very nature they are neither sensitive to Native values and ethics nor responsive to Native needs. This was mentioned in the earlier discussion of Native law ways and ethics. However, the mere fact that these systems were imposed on the indigenous people of Alaska does not justify their continuation without appropriate changes that will, at least to some extent, rectify the inadequacies and remove the biases that prevail.

Probable systemic causes for some of the problems that have been reviewed in preceding sections are briefly reviewed here as a preface to the presentation of the Commission's recommendations.

a. Issues Related to Racial Discrimination. It is inevitable in a state such as Alaska that there will be cases of racial discrimination attributable to individuals beliefs, attitudes, and personal history, albeit bigoted at times. It is also inevitable that discrimination has occurred on the part of individual employees of the state and federal systems charged with the responsibility and having the authority to carry out law enforcement, judicial, and correctional programs in Alaska. But it is beyond the realm of the Commission to attempt to eliminate biased attitudes, as lofty and honorable a goal as that would be. Rather, the Commission must speak to statutes, regulations, policies, and procedures that have been put into place and incorporate elements that discriminate against Alaska Natives.

Consistent with a wide range of policies established by other states in the not-too-distant past to prevent minorities from gaining equal rights, some of the discriminatory aspects of the law enforcement, judiciary, and correctional systems are not immediately obvious. An example of a similar discriminatory practice in Alaska will help clarify the point: if a member of the majority were "forced" to participate in a court hearing in Bethel which is carried out in English, no one would voice a concern, but would the attorneys for the defense be acquiescent if the hearing were in Yupik? Given the reverse, with a Yupik-speaking Native defendant being forced to participate in an English-speaking court room, are there grounds for dismissal or any other recourse available to the defendant? Obviously, the White defendant is not troubled by having to speak his/her "native tongue" and hear only that language spoken throughout the proceedings; no complaints will be heard. Regrettably, the system — which is obviously discriminatory — does not permit any other option for the Native defendant who is not allowed to speak his/her Yupik language or hear his/her accusers, witnesses, or lawyers speak in Yupik. One important consequence of this, which was pointed out by Ms. Galen Paine, who was a Public Defender in the Yukon-Kuskokwim Delta for several years, is that the requirement that court proceedings be conducted in English practically eliminates the selection of Elders as jurors, because many Elders do not understand English. The court in Barrow, on the other hand, is equipped with earphones, and cases are tried bilingually with translation in Inupiaq and English. In Canada, federal policy requires that court proceedings be carried out in the first, Native language of the defendant unless he/she chooses otherwise. There is no reason why a similar policy cannot be implemented here.

There are other examples of built-in biases and discrimination in the systems that are now in place in Alaska. Although it cannot be denied that the data appear to show that a higher rate of offenses in certain categories is at the base of the disproportionate representation of Natives in these systems, those data are not entirely free of bias. In parts of Alaska there is an expectation held by non-Native law enforcement officers that Natives are trouble makers, no good, drunks, etc., and that attitude cannot help but enter into their behavior when it comes to encountering Natives and handling their behavior. There are no doubt instances in which non-Natives are warned and told to go home while Natives are arrested. Although it is difficult to document such bias, it is not difficult to envision it, and in several instances complaints by those providing testimony to the Commission alluded to such events. This difference is compounded in some areas by the Native perception that infractions of state law may create a nuisance but are not offenses for which they should be arrested. As Hippler and Conn note:

. . . the laws for which Athabascans most often find themselves called to account — public drunkenness, petty assault, and disorderly conduct — do not have exact parallels in Athabascan society. Indians do not take these minor disorders seriously as long as they do not inconvenience anyone. To be arrested and detained for such behavior is bewildering and infuriating, especially when the consequences of the supposed bad act play little or no part in guiding the results of the criminal process.13

To return to the main point, however, it is more important to the Commission to correct statutes, regulations, and policies and to establish barriers to the continuation of practices that may be discriminatory, even if only accidentally. By clearly prohibiting their occurrence, the tables can be turned, and those whose mission it is to administer these systems can do so fairly and without bias toward the Natives of Alaska. The recommendations of the Commission incorporate anti-discrimination policies and are founded in the belief that until every Alaska Native has precisely the same opportunity to enjoy true justice, the system will need to continue to be changed.

b. Issues Related to Culture, Language, and Traditions. Referring back briefly to the comments of Rupert Ross, the Northern Native's perspective on crime and criminal behavior is akin to accepting that an otherwise good person has made a mistake and that the community should help that person find him/herself, actualize the goodness in him/her, and find harmony within the community. Rather than punishing an offender for being a bad person, the Native way is to guide the person toward a positive, more harmonious life within the larger Native community. Although this viewpoint is stated simplistically here, it offers a counterpoint to the Western perspective that is pervasive throughout the systems now in place in Alaska. As part of the reframing of these systems, both the state and the federal government must reconsider the important and overriding ethical and value-laden aspects of the Native traditions.

Hippler and Conn, whose work was referenced earlier, point to the relatively greater compatibility of the federal system's application in Alaska in territorial days, when government agents were at least familiar with the Tribal Council's authority from working with tribes in the Lower 48. They also, however, noted some significant differences between Alaska's tribal groups in the ways that they organized themselves traditionally. For example, the community structuring or layering of the Inupiat was entirely different from that of the Tlingit and Haida. The Athabascans of the Interior tended more toward centralized authority, as did (for example) the Alutiiq and Aleut. While Chiefs and Second Chiefs relied on Elders Councils and others in their decision-making processes, they retained final control over the destiny of offenders, and the punishment was sometimes fierce. Banishment was common.

Table 5: Traditional and Transitional Legal Structures for Alaska Native Groups

Group

Inupiat

Yupik

Aleut

Athabascan

Tlingit

Family

Organization

Bilateral

extended, no

clans

Bilateral

extended, no

clans

Not clear;

village more

important than

family

Families/

bands/

matrilineal

clans

House group,

oldest male

head, matri-

lineal clans

Dispute

Resolution

Family,

sometimes

Umealik

Family

Family; village

leader (maybe

with elders)

Family; band

leader(s);

Chief(s)

Clan elders;

leaders;

peacemaker

Peacemaker

No

No

No

No

Yes

Property

Territories

defined;

collective

ownership

w/in each group

Territories of

groups defined;

collective

ownership

w/in each group

Resource use

areas maintained

by villages;

slaves (but none

were captives)

Band control of

territory but not

permanent;

Southern groups

had some slaves

Alienable

property owned

by clan, house;

debt and war

slaves

Leaders

Umealik, not

inherited but

might run in

families

Eldest man or

men; inherited

in some areas

Chief of village

was from

dominant

family

Chief through

ability; might

run in families

Eldest man in

house group;

"nobles" in

clans

Transition

Councils,

brought in by

teachers, etc.,

members

probably local

family heads

Trading com-

panies, churches

appointed chiefs

and councils,

often calling on

respected elders

Russians ap-

pointed chiefs,

often from tradi-

tional families;

under U.S., little

information

available

Elected chiefs/

councils introduced

by churches; today

have both tradi-

tional and

elected chiefs

Navy, etc., intro-

duced councils of

chiefs as judicial

body; clan struc-

ture maintained

today

Source: Alaska Judicial Council

The failure of many Natives to understand how the court operates can also be attributed to cultural differences in the way the offender views him/herself. In traditional Athabascan law ways, for example, if someone were brought before authority figures for an offense, it was assumed by both the alleged offender and the rest of the community that the person was guilty. In other words, rather than starting a "hearing" under the presumption of innocence, it was initiated under the presumption of guilt. This adds to the confusion and misunderstandings that Athabascans — and other Alaska Natives as well — have about the Alaska judicial system.

(In the Western system] the defendant has the legal right to stand mute in the proceedings and to examine the evidence of prosecution and official conduct with respect to him. This is quite different from the traditional notion of meekly confessing and accepting punishment. Since his guilt in the eyes of the authority figures in the court may seem to the defendant to be a foregone conclusion, and since he does not understand adversarial dynamics, a meaningful consideration and waiver or assertion of his rights is difficult.

The Athabascan defendant probably does not expect that a verdict of innocent will be the result of the proceedings. His aim is to mollify the authority figures by agreeing with them and thus appease their anger. Effectively, this means he will waive his rights to obstruct the official inquiry. Thus, he attempts to extricate himself from the criminal process by the traditional and expedient means of agreeing with everything, waiving his rights, and assuming that whatever the judge metes out as punishment will be just.

The court system's punishments appear pointlessly abstract to a defendant who expects that they will be designed to reconstruct relationships, assuage personal feelings, and reestablish his reputation in the community.14

There is a prevalent misunderstanding or misconception on the part of many non-Natives that only by administering "Western justice" will there be justice, and this perspective is ultimately deleterious to the pursuit of alternative dispute resolution strategies at the village level. Moreover, the issue of imposing the prevailing law on residents of a community seems to have been blown out of proportion: with the state government focusing attention on "tribal sovereignty" and largely denying local control because of its inherently leading to more of that "sovereignty" that they wish to deny the federally recognized tribes, the fundamental issue of local dispute resolution has been put aside.

The Commission acknowledges and appreciates the fact that it is a rare Alaska village that has only Native residents; yet the non-Native residents of the village are members of that community, and their voices will inevitably be heard in the establishment of any local judicial (or alternative dispute resolution) process. Although the Commission has been empowered, even by its title, to consider the Policies and Programs Affecting Alaska Natives, it cannot do so without including the non-Natives of the bush. The question that must be answered regarding the imposition of village law on the residents of the village is not whether it is "Native law" (i.e., tribal) or "non-Native law" (i.e., non-tribal) as much as it is simply village law. If a community decides to pass an ordinance banning behavior that its members find to be offensive and detrimental to its continued existence, that is its right, whether that community is Podunk, Michigan, or Akhiok, Alaska. Once passed, that community should have not only the right but the legal authority to: (a) enforce its ordinance; (b) charge those who have been found by official law enforcement officers not to be complying with the ordinance; (c) bring those so charged before a court of law; and, (d) impose a "sentence" that is consistent with the judicial and "correctional" systems of the village. The community should also have the right to construct alternative procedures for mediation, arbitration, and reconciliation far beyond the extent to which those avenues are accessible via the State of Alaska's judicial system.

The provision given by state statute that villages can exercise the "local option," by voting for a prohibition against any alcohol at all in the village, importation and use but no sales, etc., though obviously flawed, demonstrates only one first phase of that important process of enabling villages to set their own controls. In very few communities — there are some — the later stages of the process are also in place. It is those villages, small in number, that need to offer their programs for wider distribution for the benefit of rural Alaska Natives throughout the State. It is precisely in those villages, however, that many community members are afraid to expose their way of handling justice to a larger audience, simply because their methods would probably be found to be "illegal" by the prevailing Western system and consequently banned by that system.

The Commission heard testimony from individuals asking that new programs and policies be established to enable communities to devise locally relevant and appropriate means of resolving conflicts and disputes. The following was offered by Mr. Jim Christensen, Director of the Department of Public Safety for the North Slope Borough. Referring to the aforementioned study conducted by the Alaska Judicial Council and published in Connors, et al., Resolving Disputes Locally: Alternatives for Rural Alaska, 1992, Mr. Christensen said:

I would like to recommend to the Commission that alternative methods of dealing with local disputes be explored. . . These methods of conflict resolution can assist communities where the State justice system fails. The method of using Elders from the communities as judges to resolve issues which might otherwise be bogged down or ignored in the State Judicial System merits further analysis. This appears to me to be an excellent technique of involving respected Elders who are sensitive to the cultural issues being faced by our youth in solving some of our community problems.

It is obvious that implementing local dispute resolution cannot effect a complete return to the traditional means of handling offenders and offenses in the villages. Incarceration serves three purposes, ostensibly: punishment, rehabilitation, and the protection of society from dangerous individuals. Although the first two can be met by in-village alternatives to dispute resolution, the third cannot. Traditionally, offenders found to be dangerous to a community were banished, a method that continued into recent years in some villages via the "blue ticket"; issuing airplane tickets to community members who repeatedly got drunk and repeatedly ignored the Council's orders to stop drinking. In early times, however, the outcome was occasionally far more severe. Hippler and Conn note that " A chronic recidivist would be absolutely banished, and, if he returned, would do so on pain of death."15 It should be noted that in apparently all cases of banishment, that choice of punishment was inflicted only for "the most serious crimes committed by unrepentant offenders,"16 whereas now a person convicted for a first offense of a comparatively minor nature may be "banished" to a distant jail. The issue is not a simple one; in modern times, there are more frequent occasions in which village residents may be pleased to have someone removed. The complexity is mentioned by Connors, et al.:17

Removal of offenders from the local community may be a boon or a hardship, depending on the circumstances. At times, villages would prefer to have the offender out of the community, but under other circumstances, family members or the community may have equally compelling reasons for wishing the offender to remain. For example, if an offender has seriously harmed a villager, and especially if the offender has a history of disrupting the village, most may be happy to see the offender transported out of the community. On the other hand, if the offense was non-violent, or not directed against village residents, or if for other reasons — economic or personal — villagers regard the offender as less threatening or more desirable, they may not wish to have the offender removed.

The most common local dispute resolution methods and forms of punishment traditionally utilized by Alaska Natives were more communally supportive than those imposed on the most serious or repeated offenses, and they included an element that is missing from today's system of fines and jail time. It is, most importantly, reconciliation with the community.

c. Issues Related to Information and Education. Testimony and data both have shown that Alaska Natives encountering the Western judicial system often are neither aware nor apprised of the process in which they are involved. There are numerous stories of Public Defenders assigned by the court attempting to persuade a Native defendant to "cop" to a lower charge and then leaving the case to another Public Defender when the defendant resists. There are also stories, and impassioned testimony, from Native defendants who have traversed the circuitous and complex judicial process only to emerge at the other end, predictably in a correctional facility, not having the slightest idea what happened to them, what they were supposed to do, or why they are now in the fix that they are in. These examples of a system gone wrong speak to the issues of information and education about the rules, the manner in which those rules play themselves out for a Native defendant, choices that are — or legally should be — available to Native defendants, the probable outcomes of making those choices, and the ability to "fight the system" as many non-Native defendants do.

When fundamental Native ethics are brought into this picture, such as the basic tendencies to avoid confrontation and to tell the truth under any circumstance, the situation is predictably hopeless for most Natives involved in the system. In order to improve the situation, there must be more Native advocates and translators available to inform and educate Natives who are in the system. Non-Native government employees and attorneys need cross-cultural training to help enlighten them about the cultural traditions of Alaska's Native people and the ways these traditions and ethics influence their behavior today. These considerations are included in the Commission's recommendations.

d. Rural/Urban Influences. In concluding this section about problems and probable causes, the Commission calls to the reader's attention the acknowledgment that there are differences between rural Natives and urban Natives in Alaska and the kinds of problems that they are facing. Much of the attention of the Commission has been focused on rural issues because those have surfaced more loudly and more often in testimony obtained during hearings, most of which were held in bush communities. As the arrest statistics presented earlier showed, however, there are great similarities in the kinds of consequences of these problems, when it comes to offenses and arrests. Suggested solutions, such as alternative dispute resolution bodies and procedures, are not limited to rural villages. As has been found in the Lower 48 (e.g., in San Francisco), it is possible to establish alternative "community boards" that can both mediate between disputants and, in some manner, decide cases. The key to this in locations such as Anchorage and Fairbanks is to ensure that the boards or councils that are established to handle Native cases are composed of Natives from the community.

Thus, there are problems of rural Alaska that concern communities that are composed primarily but not exclusively of Native members; and there are problems of urban Alaska that concern Native communities living within the municipal boundaries. As the entire village must work together to protect its residents and to establish the means to resolve disputes between its members, so must the Native community within an urban area work cooperatively to protect its members and resolve their disputes. The methods used will naturally vary according to the composition, cultural traditions, values, and ethics of the Natives who make up the community; and due to the cultural diversity of the Native community in Anchorage, a collective, multi-tribal effort will be required to achieve success there.

 

C. Issues Related to Local Control

1. Village Governance

Many issues revolving around village governance have been raised in hearings before the Alaska Natives Commission. Several individuals have spoken to the difficulties of maintaining a Tribal Council office with the absence of support that once was -provided by the Bureau of Indian Affairs. Others have spoken to the problems of trying to interface with governments of cities and boroughs, both of which are layered on top of the older, more traditional forms of government. The issues that are specific to tribal governance and interactions with the state and federal government are discussed in a separate study of the Commission. At this point, the effect that these issues have on both the problems and proposed solutions related to public safety and law enforcement, the criminal justice system, and probation and parole are the focus.

There are several factors that are involved in the State's delegation of its authority to villages for the resolution of disputes, for any form of corrections, and for probation and parole (which, technically, is one aspect of corrections). These will be discussed briefly here.

2. Local Ordinances and Enforcement

In a review of different local dispute resolution assemblies, the Alaska Judicial Council listed the Village Councils (i.e., IRA Councils or Traditional Councils) shown in Table 6 as having Tribal Courts and/or being active in dispute resolution. Of the 218 villages surveyed, almost half had some form of local dispute resolution process in place.

Even with this relatively large number of "active councils," it is apparent from every other indicator that has been brought before the Commission that, although it appears that mechanisms are in place to resolve disputes at the village level without involving the state judicial process, they are not being used effectively. If they were, there would not be the kinds of imbalance in the data that are evident, as has been discussed earlier. The obvious probable causes of this seeming discrepancy between what could be accomplished locally and what practically is being accomplished are the state government's unwillingness to confer on village councils and courts the ability to handle local cases, and the continuing confusion and conflicts over tribal sovereignty, which imbeds even more deeply the State of Alaska's conviction that any release of its authority to village-level councils is a threat to the foundation of that authority. However, there are other possible causes which may not immediately present themselves. One may be a tendency on the part of village courts and councils to accept only the most minor of offenses, which might not reach the state judicial system anyway. Another could be the uneven involvement of village residents in these courts and councils, varying with the seasons of the year, subsistence activities, the presence of council and court members in the village. There is no doubt that there are wide variations between the villages and the extent to which they are active in the judicial process. There are local and regional differences in approach, with varying degrees of mediation and arbitration. As the Alaska judicial Council noted in its review, there is also an interaction with the Indian Child Welfare Act's implementation, with those more active in that Act consequently being more active at the court and council level. However, as imperfect or passive as any of these alternatives may be in their operation, one must acknowledge that they do exist. Thus, they offer a beginning point for change, at least in half the villages in Alaska.

Table 6: Tribal Courts & Councils Active in Dispute Resolution

Region

Tribal Courts

Councils

Arctic Slope

3

3

NANA

2

10

Bering Straits

17

2

Calista

10

19

Bristol Bay

3

9

Aleut

0

3

Koniag

0

2

Doyon

8

41

CIRI

2

5

Chugach

0

3

Ahtna

2

3

Sealaska

4

1

Totals

51

101

Source: Resolving Disputes Locally: A Statewide Report & Directory, Alaska Judicial Council 1993

 

It is the position of the Commission that village councils, federally recognized tribes, and the state government should put their conflicts and concerns aside, designing and implementing local community dispute resolution bodies, policies, and procedures without engaging in the futile arguments over tribal sovereignty or loss of state authority. As mentioned earlier, it is essential the communities be more directly and clearly empowered to act to their own benefit in responding to certain offenses. The recommendations of the Commission speak clearly to this issue by stressing the importance of local control, whether or not that control would be considered tribal.

Until the State of Alaska can resolve to empower village-based groups and establish policies and procedures that determine objectively what offenses are within their "judicial" domain, the situation that now prevails and the problems that result from that system will continue unabated.

3. Tribal Courts, the State's View, and P.L. 83-280

Simply stated, Alaska does not recognize Alaska Native tribal status, with the single exception of the Metlakatla Indian Community, which resides on Alaska's only official Indian Reservation. The Executive Branch of the current administration revoked an administrative order (No. 123) of the previous administration, which had acknowledged that many Alaska Native groups could qualify for tribal recognition under federal law (but had not yet been so recognized) and pledged to treat tribal groups as "official" tribes, even if they had not yet been formally recognized by the federal government. In countering the outgoing Governor's policy, the current governor established the policy that "the State of Alaska opposes expansion of tribal governmental powers and the creation of ‘Indian Country’ in Alaska" (Administrative Order No. 125). Because of the controversy and disabling discussions between the many different parties that are involved in this dispute and because of several court cases that are in process that will (or may) have a bearing on a final determination of the differences between the State of Alaska and tribal groups regarding tribal sovereignty, the Commission has elected to stress the importance of local community-based solutions, rather than "tribal" or "non-tribal" solutions. This has been, and will continue to be, a theme of this study and its recommendations.

In that light, the discussion will not dwell on tribal issues. But it must, to be fair, review one additional factor that is related to local dispute resolution, village courts, and village solutions to probation and parole. It is Public Law 83-280, known generally as "P.L. 280," which was amended by P.L. 85-615, the result of which was the extension of Alaska's state court civil jurisdiction to private civil causes of action involving Indians in Indian country. P.L. 280 states:

Each of the states listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . to the same extent that such State has jurisdiction over other civil cases of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State: Alaska . . . all Indian country within the State.18

Among other debates that have raged over P.L. 280 are those related to the definition of "Indian Country" in Alaska and whether or not the jurisdiction of the State is exclusive or concurrent. The controversies and court cases that have resulted from them are generally well known, even if the issues behind them may be poorly understood. The Commission must acknowledge the importance of the court cases that will no doubt have a broad impact on the recognition of tribes in Alaska and their powers, if recognized. However, for the purposes of devising changes to policies and programs that have led to the situation that is the main topic of this paper — the over-representation of Alaska Natives among many different segments of those impacted by the public safety, judicial, and correctional systems in Alaska — the Commission seeks to put aside the questions raised by P.L. 280 and the issues revolving around Indian Country. Rather, the Commission looks to solutions aimed at establishing village-based communal powers and dispute resolution authorities, irrespective of the "tribal" nature of the solution, for if Alaska can agree to yield to reasonable public decision-making and can establish the jurisdictional boundaries necessary to establish a consistent authority within the village for resolving disputes at the village level, then the issue of "sovereignty" as a perceived threat to the state government is put aside. It is this approach that can be seen as the hallmark of many of the Commission's recommendations.

4. "Alternative Punishment" at the Village Level

The time is right for the State to develop alternative punishment options both regionally and at the village level. The 1992 Annual Report to the Governor and the Alaska Legislature, published in December 1992 by the Alaska Sentencing Commission, made much the same recommendation:

All branches of state government should encourage the responsible use of alternative punishments for more felons and misdemeanants. Non-prison programs such as halfway houses, drug and alcohol treatment programs, community work service, fines and forfeitures, and restitution can be used effectively to protect the public, rehabilitate an offender, and provide appropriate punishment.19

The question is not whether this should be done as much as it is how it can be done in such a way that the Alaska Native ethics and values are considered, as well as the strengthening of the community. There are two basic types of alternative punishments: the first is the "front end" punishment which is imposed by courts as a condition of probation, as part of a sentence, or in response to probation revocations. Post-incarceration alternative punishments, the second type, are used by the Alaska Department of Corrections "to promote treatment, education, restitution, reintegration into the community, or as part of parole releases and revocations."20 Given the multitude of problems revolving around both front-end and post-incarceration punishments that prevail for rural Alaska Natives, there is an urgency to develop and implement alternatives that will keep village offenders in their villages, enable reconciliation and restitution, strengthen — or at least help prevent the weakening of — community bonds, and return those offenders who must be removed (due to the nature of their crimes) to their villages more quickly.

For the growing urban Native population, alternative punishments are also possible. In Anchorage, for example, misdemeanants are often required to complete community service work; if such work were directed toward the improvement of geographical areas of cities in which Native communities dwell, it would be possible to strengthen the sense of those communities, while at the same time "punishing" the offender. In a sense, community service work in a Native community offers an opportunity for both restitution and reconciliation, both of which are traditionally strong motivators for Alaska Native people. By building self-worth and assuaging guilt and shame, the individual and his/her community are improved.

 

D. Recommendations

l. Changes in Law Enforcement

a. Village Control and Ordinance Determination. The Commission recommends that the State of Alaska empower local Councils to pass their own ordinances, enforce local ordinances, apprehend those who fail to obey ordinances, and pass on to locally established dispute resolution or judicial bodies those who are so apprehended (see later recommendations). Although these powers are currently available to some communities, they are neither uniformly pursued nor advocated for "tribal" entities such as IRA Councils or Traditional Councils that stand alone without municipalities.

b. Lessened Intervention by the State. The State of Alaska should enter into formal agreements with each "Village Court" (i.e., the Council, court, or other dispute resolution body or individual established by consensus of the village residents) to determine which infractions or which classes of infraction will be the domain of the "Village Court" and which will be the domain of the state government. The Village Public Safety Officer should enforce all village ordinances as well as state statutes. Village ordinances will be routinely handled by the "Village Court," and the "Court" will establish by means of a memorandum of agreement which other statutes and ordinances are within its domain. In other words, the "Village Court" must be empowered to handle a broad variety of cases and infractions. It should, at the same time, have the ability to refer to district court or another level of the state's judiciary cases that would normally be within its domain but for one reason or another it cannot effectively try. One must appreciate that there are times in small communities that bring opposing families and/or factions together over a conflict and that the resolution of that conflict may best be achieved outside the community. In all other cases — and the decision must rest within the community — local resolution must prevail.

c. Changes in the Judicial Branch. The Commission acknowledges the complexities involved in modifying the judicial system of Alaska, since there are four tiers (i.e., the district court, superior court, court of appeals, and supreme court) with increasing powers and decreasing access to revision. The district court, at the Magistrate level, is the tier that currently impacts most rural Alaska Natives, and it is the most eligible for immediate change. Thus, it must be the "target" of reform that needs to be implemented quickly throughout Alaska. However, the State of Alaska must evaluate its entire judicial system, from the district court to the supreme court, relative to its incorporation of Alaska Native law ways and ethics; it must also pursue options and alternatives to the current system, returning dispute resolution and decision-making authority to Alaska Native villages and the Native communities that exist in the state's larger municipalities.

d. Village Dispute Resolution Bodies and Procedures. Village Councils should be encouraged to establish dispute resolution bodies and procedures that are consistent with the predominant tradition and culture of the village, and the state and federal governments should provide training and technical assistance to further this establishment. In this regard, the Commission cautions both state and federal officials to look carefully at the kinds of dispute resolution bodies that may be possible. The current trend for some consulting firms to advocate the replication of Western-style bodies and procedures under the guise of "Tribal Courts" may not fit the type of decision-making processes that are either traditional or extant within a village or region. Alternative mechanisms should be considered, including the use of Elders Councils, Chiefs, and other local authorities. The State of Alaska must enable the development of these mechanisms and processes at the local level without bringing to the table its concerns about "tribes" and "sovereignty," for the organization and empowerment of local dispute resolution bodies and procedures will encompass both Native and non-Native residents and must be endorsed by the majority of village residents, irrespective of their tribal affiliation. Erecting "sovereignty" as the reason why justice should not be carried out at the village level is a transparent defense, a facade at best.

The Commission recommends that the Tribal Court in Minto become the exemplary model for local dispute resolution bodies. The Minto Court, which has been studied and documented by the Alaska Judicial Council and others, fits within traditional systems of authority and decision making. In other parts of Alaska, both the court and its procedures would naturally have to be adapted to the local culture and traditions, but the essence of the system and the manner in which it has been able to co-exist with the state's judiciary should be replicated throughout Alaska, providing an alternative, locally controlled means to resolve disputes and engage in Native law ways that deliver true justice to community members.

e. Separation of Powers: A System of Distributing Authority. Over twenty years ago, the Bush Justice Conference sponsored by the Alaska Judicial Council pondered the same issues and proposed answers to many of the same questions that have been brought before the Alaska Natives Commission. Some of the recommendations that were proposed then are very obviously still valid; had they been implemented twenty years ago, many problems that now exist might have been avoided. The Commission will re-state some of these recommendations here:

We suggest that bush justice reforms will be accomplished best through broadening legal procedures to allow for an optional but formal integration of procedures best performed by the village council. Specifically, after arrests, a council-like body could determine which complaints might be best resolved informally and which should be sent to the magistrate for hearing. If such a body decided that village justice would best be served by a conviction in magistrate's court, the odium presently associated with roles of the village police and village magistrate would be relieved. Furthermore, this would allow the present informal avenue for avoidance of the legal system to be incorporated as an optional and reviewable mechanism of the formal legal system.21

The Commission echoes the recommendations of two decades ago, but it does so with a caveat. It may not be most efficacious for all villages or Native communities to empower a "council-like body" to perform the duties of a court. Rather, following traditional processes, in some Alaska Native communities a Chief alone could be so empowered; in other communities, it may take two groups to satisfy the traditional needs of the different families. The Commission does not want to gloss over the multitude of differences between the different Alaska Native groups or between the clans and bands within these groups, but it does want to state that the essence of resolving the many problems that have been created by the imposition of an alien, non-Native system in Alaska lies in the State of Alaska relinquishing its control over the judiciary to the point that reasonable local justice can prevail. That this is a unique solution that has not been attempted by other states should challenge executive, judicial, and legislative branches to blaze a new trail through the unmarked territory, in the best spirit of Alaska frontiersmanship.

f. Monitoring Change. In order to determine which alternative mechanisms for establishing and enforcing local ordinances are effective and capable of being replicated, the different solutions should be monitored over time, as both their numbers and types increase. The Commission recommends that the responsibility and authority to monitor the development and implementation of these state- and federally-supported efforts be assigned to an Office of Native Judicial Advocacy, to be created in the Governor's Office, with the status of the Public Defender's Office and the Prosecutor's Office. The Office of Native Judicial Advocacy should establish an impartial review group that will not only evaluate the progress of villages throughout Alaska in their local dispute resolution activities but also report the results of the evaluation to both the state government (e.g., the Legislature, Governor, Alaska Judicial Council, Department of Public Safety, etc.) and the federal government (e.g., the Bureau of Indian Affairs, the Department of Justice, etc.). To ensure that the recommendations of the Alaska Natives Commission are followed, the Office of Native Judicial Advocacy should report back to the President, Congress, Governor, and Alaska Legislature on the progress made at one-year intervals for the next four years.

g. Changes in Corrections. The essence of corrections needs to be considered by all concerned parties as the first step in creating change and enabling local alternatives to the current system. As mentioned earlier, the purposes served by corrections include punishment, rehabilitation, and protection of society from dangerous individuals. To effect a change in the correctional system of Alaska that will improve the situation for Alaska Natives, both the legislative and executive branches of the state government will need to revise their perspectives regarding their conception of "corrections" and the ways in which these three purposes can be met. Punishment can, as recommended by the Alaska Sentencing Commission, be achieved through the use of alternatives to incarceration; and incarceration can be accomplished closer to "home," if appropriate means are provided regionally. Rehabilitation, many agree, is less likely to occur in a prison than out of one, and the means that have been established by the Department of Corrections fall far short of offering options for true rehabilitation, particularly when one considers the total absence of Native values and ethics and the fact that the majority of crimes for which Natives are incarcerated have been committed under the influence of alcohol and/or drugs.

The limited substance abuse treatment that is currently available within the correctional system appears, by all accounts, to be ineffective. Adding to the problem is the lack of halfway houses and other transitional living options that would better prepare those who must be removed from their home communities to return to those communities and engage in harmonious, constructive lives. The Indian Health Service, Bureau of Indian Affairs, Alaska Department of Health and Social Services, and the Department of Corrections must combine their resources and support the development and maintenance of halfway houses and other transitional and supportive living arrangements for Native offenders who can receive rehabilitative treatment at least regionally, if not in their own communities, and for incarcerated Natives who are in the process of returning home. These must be coordinated with treatment options within the correctional facilities, and all such programs should be developed and maintained by Native organizations, under contract to the federal and state governments. The Commission also supports the recommendation that the Alaska Sentencing Commission made to the Governor and Legislature in December 1991:

The commission believes the state should develop policies which encourage judges to use intermediate sanctions for more felony offenders and misdemeanants. The intermediate sanctions may include sanctions which are considered by the courts to be equivalent of custody, such as halfway houses and inpatient treatment . . . 22

It is obvious that for intermediate sanctions such as halfway houses and inpatient treatment to be employed by the courts — or by village-based dispute resolution bodies they must be in place. It is incumbent upon federal and state agencies to fund Native organizations to open and operate such programs throughout Alaska.

h. Decentralized, "Local" Options for Corrections in the Future. Two types of local correctional options should be supported by the state and federal governments. The first was suggested by Mr. Jim Christensen, Director of the North Slope Borough Department of Public Safety in his testimony before the Alaska Natives Commission. It was to build a regional correctional facility to serve Barrow and the villages of the North Slope. Regional correctional facilities would enable those who must be incarcerated, due to the severity and/or repetitiousness of their crimes, to serve time closer to home, thereby making it easier for family and community members to maintain contact. As Mr. Christensen said,

In my opinion, Alaska Natives are being warehoused in correctional institutions which are too distant from their home communities. How can offenders participate in family counseling as treatment therapy when the family and offenders are separated by over 750 miles? How can those who are incarcerated in the current state correctional system stay in touch with their communities and loved ones and maintain their cultural identity? What do we really think the chances of successful rehabilitation of Alaska Native offenders will be after several years of no contact with their communities and extended families?

Thus, if we are going to operate within the state judicial system as it now exists, then we must do a better job with rehabilitation efforts. On the North Slope, we have a need for a local regional correctional facility. This will allow for locally designed programs so inmates can be closer to their families. We can develop rehabilitation programs that would gradually reintegrate the offender — with his/her cultural identity intact — back into the community.23

The Commission supports the efforts of local governments to establish regional correctional facilities, while noting that the trend in Alaska has been to reduce, rather than to increase, the number of facilities statewide even in the face of overcrowding that is so serious that many inmates have had to be transferred Outside. However, the Commission also recognizes that an essential question has been begged in Mr. Christensen's testimony, and it is perhaps that question which reaches to the heart of the problem: as a preface to his recommendation for a local correctional facility, Mr. Christensen said, "if we are going to operate within the state judicial system as it now exists," and the Commission recommends again that we do not continue to operate within the state judicial system "as it now exists." Rather, that system needs to be disassembled, its purposes re-analyzed, and new and better methods found to achieve its goals. Some of those methods include the second local correctional option, alternative punishment, which is the next topic of this study.

i. Alternative Punishment Community Service Options. As has been stressed, removing offenders from the community and incarcerating them are alien forms of punishment for many Alaska Natives because such responses are contradictory to Native cultural traditions, except in cases of unrepentant individuals and repetitive, extreme criminal acts. There are other options currently available to state government, and these must be further expanded. In its 1992 report to the Governor and Legislature, the Alaska Sentencing Commission opened its summary with the following:

All branches of state government should encourage the responsible use of alternative punishments for more felons and misdemeanants. Non-prison programs such as halfway houses, drug and alcohol treatment programs, community work service, fines and forfeitures, and restitution can be used effectively to protect the public, rehabilitate the offender, and provide appropriate punishment.

The Commission asks both the state and federal governments to develop alternative punishments that are consistent with the ethics and culture of the village or region in which they are to be implemented. These alternatives must be integrated with the alternative forms of dispute resolution that will also be implemented. In other words, the Commission is not suggesting that the judicial system merely provide alternative punishment as a replacement for incarceration in certain cases. Rather, a comprehensive new system must be developed that incorporates local, village-based dispute resolution bodies and procedures and alternative punishments based on traditional values and justice. Within this context, to ensure that the Native communities in Anchorage and Fairbanks are also included, the option of community service work should be offered routinely, with the work focused on strengthening Native communities and pursuing activities, such as helping the Elders and teaching traditional skills to children, that are consistent with Alaska Native culture.

The Commission further recommends that the State of Alaska support culturally based contract rehabilitation programs for Native offenders, both youth and adult. An example to be used in developing such programs is the former Social Rehabilitation Program operated by the Maniilaq Association in Kotzebue.

2. Changes in Probation and Parole

a. General. The unacceptable rate of probation and parole violations among Alaska Natives has been mentioned in earlier sections. The Commission submits that the statistics speak loudly to the unbalanced — in fact biased — policies of the state and federal systems that control the lives of Alaska Native offenders. For some, the choice to violate parole is made consciously. Mr. William Iyapana offered testimony to the Commission in March 1993 describing his plans to violate his parole: "I'm going to get out, and a month later, I'm going to violate so I can come back and do four months so I cannot be under Department of Corrections anymore. That's sad, but that's a fact I have to go through, you know." His point, which was also made by others, is that it is better to spend a shorter time in prison, in Mr. Iyapana's case four months, and be done with it, than a longer time on parole. The reasons are several, but, primarily because the current system forces relocation to the cities, it has been designed to fail for Natives.

Quoting from the testimony of Mr. Daniel J. Amarok, who is scheduled to be released from the Hiland Mountain Correctional Center in December 1993:

Why is there not a place, other than the two geographical locations [Anchorage and Fairbanks] in which, when the time comes for release, for those of us that come from the "Bush" are having to be dumped into this urban setting. Why is there not any POs [Probation Officers] up at Barrow or Kotzebue, Nome, Bethel, Sitka, or any of the numerous locations from where the majority of us Native prisoners are from? What scares me the most is for me to be set loose in a city of which I am not accustomed to, let alone know, and being expected to get a job, housing, food, shelter, and the likes and make it for a year's time... I am basically afraid to enter the mainstream, to be placed in this "foreign" setting, as I grew up in and lived the majority of my adult life in the small bush setting. I am also afraid I will fail . . .

The Commission feels that it is essential that state government develop alternatives to the current system of probation, parole, and mandatory release, enabling Alaska Natives to complete their time in their home villages. However, there is an even more urgent recommendation that precedes this. It is for the Department of Corrections to conduct an immediate review of the records of all Native inmates who are currently incarcerated as a result of violations of probation or parole. If an individual is found not to be dangerous, he/she should be released. If this is accomplished swiftly, it will relieve some of the pressure on Alaska's correctional system; it will also correct some of the imbalance that has been caused by the biases in policy. While that task is being completed, revisions in those policies can be made and new program alternatives developed.

b. Village-based Models. In its quest to envision village-based models that can be established as alternatives to having inmates released to Anchorage and Fairbanks only, the Commission asked the fundamental question: What is the purpose of probation and parole? Is it not to ensure the government that the individual is behaving "properly," with that term defined (loosely) as "engaging in socially acceptable behavior"? If the answer is yes, then is it not reasonable to entrust to the community to which the individual will return and in which he/she will hopefully remain — the power to define the "socially acceptable behavior" to which the individual is expected to adhere? Consistent with the recommended decentralization of the judicial and correctional systems, the village dispute-resolution bodies should have the authority to establish monitoring and assistance teams that will supervise a parolee or probationer in the village. As mentioned earlier, these functions could be performed with financial assistance, using a contracting procedure much like the Alaska Youth Initiative, but the Commission recommends that the formation and service of a community "Probation Officer Team" be carried out on a volunteer basis by community members.

c. Other Recommendations. In the analysis, considerations, and testimony taken and reviewed by the Commission, the basic issue emerges of the high rate of certain crimes committed by Alaska Natives. Although the source of the behavior must, at this point, be a topic of some conjecture, there is little doubt that the documented prevalence of child abuse and sexual abuse and the frequent cases of violent family dysfunction are to some extent causally involved. A case in point can be found in the testimony of Ms. Lottie Ahnupkana, who is serving a 20-year sentence for first degree murder:

My main concern is helping out the Native people. They talk about drugs, alcohol abuse, and so on; that's true too. Basically where it all comes from is from the family. Before I got incarcerated, I was raised in a family that was dysfunctional, where there was drugs and alcohol, and where there's abuse... I think we should look into the villages, do some counseling into the villages, Native counseling in there. That's where all the drugs and all the alcohol, the abuse, the sexual abuse, the rape is, in the villages. I've been through that before and I ain't going through it no more, you know. And when certain individuals, Native individuals, carry so much anger inside them, they hold it for so long and so long, until they explode.

The Commission strongly recommends the continuation of all programs aimed at reducing these problems within Alaska Native families and, furthermore, urges the expansion and addition of new programs to achieve this goal. As the Commission was producing this study, the Bureau of Indian Affairs issued a memorandum notifying the Alaska Area Office (and other Area Offices throughout the country) that a number of programs have been listed for elimination or drastic reduction. Among these are the Indian Child Welfare Act (ICWA) grants, which have, over the last several years, provided limited but much needed funding for village councils to develop and implement prevention programs that help save families, offer parenting skills training, and assist in re-uniting families that have, because of abuse and neglect, been dissolved. The Commission asks both the federal administration and the Congress to prevent this reduction; rather than eliminating the ICWA grant program, it should be enhanced, to support additional efforts at the local level to reverse the trends of family dysfunction, child abuse, and later criminal behavior.

E. Concluding Comments

The Commission cannot possibly acknowledge, individually, the many Alaska Natives — and others who work for their benefit — who have testified before hearings that have been held by the Governance Task Force, other Task Forces, and the Alaska Natives Commission as a whole, during which insights have been gained and recommendations accepted to form this study. The requirements of space and the need to be concise limits this work. Hoping that by citing some particularly relevant testimony the Commission will not offend those who are not quoted, the following is offered as evidence to the wide range of readers of this document that the ideas expressed here have their basis in the foundation of Alaska Natives who must live with the relatively contrived systems of law enforcement, the judiciary, and corrections that now predominate in Alaska. It is to their credit that they have the foresight to envision a better system; the implementation of the recommendations contained here will also rest largely on their shoulders.

Gloria Simeon, Vice President of Operations, Association of Village Council Presidents:

It is my feeling, my belief, that if our villages are allowed to exercise their tribal authority and form their governance on the village level by determining that the crimes and penalties of misdemeanor cases and the ability to prosecute those cases on the village level would probably impact the judicial system. I think now too often crimes are committed and people are not responsible for facing the people that they have committed the crimes against. And if our tribal leaders were able to exercise their tribal authority to administer justice, I think that that might make a difference in how the cycle can be broken, because too often people are committing the same crimes over and over.

Mr. Ivan M. Ivan, State Representative for District 25, from the village of Akiak:

I've seen in the two years that I've served in the State Legislature that the State should recognize all village councils and recognize them equally, whether they are municipal and/or tribal governments — traditional or IRA councils. They both perform services and work for all the people within all of these communities . . When these villages are not organized as municipal governments, they don't exist, as far as the State of Alaska is concerned . . . If the State could recognize that they could work with these governments that are in existence in these communities — instead of treating them as if they were silent or do not exist — but work with them as partners in developing policies and invite their participation and their ideas . . . if the State did that, it's going to involve the community and village input, and it's going to be, everyone is going to feel that they are participating in the process.

The Alaska Natives Commission again states its appreciation of and respect for the many Alaska Native individuals and those who represent them who have offered testimony and other information to the Commission during the course of its fact-finding mission. The Commission's thanks are also offered to the agencies that have been established to provide some level of oversight to the systems that impact all Alaskans — and Alaska Natives in particular. These include the Alaska Judicial Council and the Alaska Sentencing Commission. The Alaska Judicial Council has been most helpful to the Commission, and special "thanks" are offered to both Ms. Teresa Carns and Ms. Susanne Di Pietro, who engaged in lengthy discussions with the writer and contributed numerous, helpful suggestions.

 

F. Summary and Final Recommendations (Part II)

In this final section of Part I, the Alaska Natives Commission presents its summary recommendations for the state and federal governments to pursue. These recommendations are stated most often as objectives to be accomplished rather than specific means by which the objectives can be met. Each recommendation addresses an imbalance that has been discussed previously and takes into consideration the Native ethics and traditions that predominate in Alaska.

1. Empowerment of Village Conflict Resolution Bodies

The Commission recommends that the State of Alaska immediately convene a task force composed of representatives of the different Alaska Native groups (i.e., at a minimum, Aleut, Athabascan, Haida, Inupiaq, Tlingit, Tsimshian, and Yupik) who are involved in the judicial system and all three branches of state government to devise a structure of parameters within which village (and Native community) court systems can be empowered by the State of Alaska. These court systems will (a) be voluntary (i.e., adopted at the option of the village); (b) incorporate the cultural ethics of the region; (c) handle misdemeanors and petty offenses in rural areas; and (d) be consistent with the constitutional rights of Alaska citizens.24 The village courts will establish procedures that are uniform within reasonable parameters but may vary from region to region based on differences in culture and tradition.

The Commission notes that recent studies conducted in Alaska have revealed a great deal of disparity in both level and type of punishment recommended by different judges and consistent differences between rural and urban courts; in other words, there are already many variations in both charges and punishment between regions and communities within the state's current judicial system, and the implementation of the Commission's recommendation would not be likely to increase those differences.25 Communities should be empowered to devise a system that best fits their needs, culture, values, and traditions, as long as the judicial parameters are established within a general, overall uniform framework. It will be the charge of the new Village/Community Court Task Force to devise that framework, and state government should fund the Task Force to enable it to accomplish its objectives. Furthermore, the development of these new, alternative means should not be restricted to villages but should also be encouraged among the Alaska Native communities of the urban areas of the state, following the same principals as those noted above for the "village courts."

2. Correcting Corrections: Probation and Parole

The system that has been established for the probation and parole of Alaska Native offenders from the bush is essentially unfair: it requires that the individual meet demands that are fundamentally at odds with his/her understanding of what is expected of a good citizen, and it requires relocation to an urban setting that renders the possibility of successful rehabilitation doubly difficult. For example, if a probationer stays sober, provides for his family, and engages in helpful community activities, thereby "being good" by his definition, but fails to report to his probation officer or complete other technical requirements of the probation, he will be returned to a correctional facility. The Department of Corrections should (a) review all cases of Native individuals now incarcerated who are in correctional facilities merely because of a violation of probation or parole and release back to their home villages any individuals who are not dangerous to themselves or others; (b) establish a means by which probation and parole can be carried out in the home village of the offender, utilizing the cultural and social structure of the community both to support and monitor the individual, in the spirit of rehabilitation and community healing;26 (c) eliminate the requirement that Alaska Natives from rural areas who are on probation and parole must relocate to and remain in an urban area, thereby allowing them to return to their home villages; and (d) report all the changes made and their impact on probation/parole violation and recidivism to the Alaska Judicial Council no later than July 1994. In pursuing this course of action, the Executive Branch of the state government should review recommendations made by both the Alaska Judicial Council and the Alaska Sentencing Commission. Both bodies have, over the years, made similar recommendations, which have not been followed.

3. Local Law Enforcement in Rural Alaska

The Village Public Safety Officers should (a) receive significantly more professional training in law enforcement. (b) be given greater compensation for their work; (c) enforce local ordinances; (d) be empowered to make arrests (in addition to "citizens' arrests"); (e) wear a distinctive, standard uniform throughout the state; (f) have the option of carrying a nonlethal weapon (such as a nightstick or sap) or be armed, with appropriate training provided by the State Troopers; and (g) be sought out as the first source of recruitment for positions in the State Troopers when vacancies occur. The Department of Public Safety should also follow the next recommendation when recruiting and hiring Village Public Safety Officers.

4. Native Opportunities for Employment

The Commission notes that throughout the law enforcement, judicial, and correctional systems the percentage of Natives employed is considerably below the percentage of Native residents. Although there are numbers of possible reasons for this imbalance, the failure of state government to recruit Natives actively for these positions stands out as being correctable. The Commission recommends the immediate establishment of an Office of Alaska Native Recruitment within the Governor's Office to develop and implement procedures within other departments (e.g., Department of Law, Department of Public Safety, Department of Corrections, etc.) to ensure that a more aggressive campaign of recruiting Natives into all levels of positions related to law enforcement, the judiciary, and corrections be marshaled and maintained. To accompany this new recruitment effort, the Commission also recommends the immediate establishment within that office of an independent review panel that will be placed in the hiring sequence for these positions and will review all cases in which a Native applicant is passed over in the hiring procedure, to ensure that no bias, either purposeful or inadvertent, exists in the hiring procedures used, including the application processes, interviewing methods, and other techniques for selecting "the most qualified" individuals from State of Alaska employment registers. All positions from correctional attendants to public defenders and district attorneys should fall within its review domain.

5. Counseling Programs within Corrections

The Commission recommends that the Department of Corrections increase the opportunities for those incarcerated in Alaska's correctional facilities to participate in substance abuse counseling and to begin that participation earlier in their stay in corrections. Furthermore, the Department should waive academic requirements for hiring Alaska Native counselors to enable more Natives who have extensive life experience and a demonstrated ability to assist in the healing and spiritual strengthening that is needed for those inmates who have substance abuse and addiction problems to be hired into counseling positions within the Department of Corrections.

6. Self-Determination

During the course of the hearings held by the Commission, one recurring theme emerged — that of a prevalent perception held by Alaska Natives that they lacked the power to manage their own destinies. As a result of their perceived lack of ability to influence and shape even the most local of governmental entities to successfully respond to their needs, there is a high degree of frustration present in the villages. This frustration is heightened by the belief that earlier generations lived in coherent communities and family groups which have now disintegrated and that in these former times, Alaska Natives were in control of their lives.

The sense of frustration and powerlessness inevitably leads to feelings of alienation and separation from the community. In many cases, this alienation has resulted in antisocial behavior which contributes to the already disproportionate numbers of Natives being held in penal facilities and an increase in the number of Native victims.

In examining the reality, the Commission has found that, notwithstanding the perception, there currently exist substantial opportunities for self-governance and the exercise of self-determination. In most rural communities, the Native population constitutes the overwhelming majority of the residents. In sheer numbers Natives are the majority of the voters and should control the election of all governmental positions in their communities. The Native community should be able to control their existing governmental entities, whether they be traditional village councils, IRA councils, state-chartered municipal governments, or borough governments. It should also be able to elect all of the members of the school boards and thereby control the educational system. Through the regional nonprofit corporations, the community controls the provision of federal assistance, and through the village and regional ANCSA corporations, access to the lands around the community can be controlled and limited to the Native population.

Thus, the problem is not that the Native community is powerless, but rather that it has the perception that it is unable to effectively manage and direct the various governmental entities in order to achieve the community's goals. In many instances this perception has become a self-fulfilling prophecy, and the Native community abdicated the power that it does possess.

The essential issue in the exercise of self-governance to achieve self-determination does not appear to be the lack of control, but rather the lack of the knowledge as to how to exercise the existing control to effectively manage the governmental institutions to achieve the goals of the Native community.

At several times during the course of the Commission's hearings, references were made to the need to recognize the "sovereignty" of the Alaska Natives. Given the recent focus of attention first on achieving recognition of tribal status and now on defining the powers that the Alaska tribes possess, many Natives believe that "sovereignty" will solve all of the problems being faced by the Native community. The Commission did not hold hearings on the issue of sovereignty, its exercise, or the nature of it limits and thus is unable to take a definitive position on it. It does, however, appear that from the statements made by Assistant Secretary Deer at the Alaska Federation of Natives annual convention in 1993, the present federal administration has at least recognized the existence of tribes in Alaska and has asserted that:

they have the same governmental status as other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a government-to-government relationship with the United States.27

Unfortunately, when pressed on the exact nature of these governmental powers, the Assistant Secretary referred the questioner to the attorneys. Given the lack of definition as to these powers and the opposition of the State, it seems likely that the Native community will have to await the ultimate judgment of the courts for a clear statement of their rights. This may well be a long and tedious process as the cases wind their way through to decision.

Notwithstanding the outcome of the sovereignty process, the Commission is very concerned that the Native community not be misled into believing that sovereignty is the panacea to its problems of self-governance. Sovereignty is but a tool to be used to achieve self-determination through self-governance. Many of the sovereign tribes of the lower states are faced with the same problems that Alaska Natives are experiencing. Thus, merely being recognized as having sovereign powers does not guarantee the life that we all seek.

It is the sincere belief of this Commission that the goal of achieving self-governance and self-determination has to be worked on simultaneously with the efforts to define the governmental powers of the tribes of Alaska. Alaska Natives cannot wait to exercise control through the institutions at hand until there is a complete definition of the powers that they may have. Alaska Native youth are being lost today through their sense of powerlessness. Unless action is taken now, it will be too late for many of the youth, irrespective of how the courts ultimately rule.

It is the recommendation of the Commission that steps need to be taken now to strengthen the ability of the Native communities to exercise self-governance in order to achieve self-determination as fully as possible within the existing institutions. To this end, the Commission makes the following recommendations:

  • 1. That the state and federal governments and their respective agencies give full and complete recognition to whatever governmental entity that a community has chosen, whether it be a traditional council, an IRA council, or a state-chartered municipality.

    2. That existing programs for assistance to local governments available through the state and federal government be reviewed and their use be monitored to determine their effectiveness in strengthening the governance skills of the community and, to the extent necessary, such programs be augmented to accomplish effective self-governance. Such programs should address:

  • a. how to run the local institutions in a manner so as to effectively interface with the state and federal government to maximize benefits to the local community and to reflect and advance the goals of that community;

    b. how to manage the existing governments (including those entities that are state-chartered) to achieve the goals of and strengthen the Native community.

  • 3. That Native organizations, such as regional non-profit corporations, the Native American Rights Fund, and similar institutions which have the financial and technical capabilities to do so, should, in addition to pressing for a resolution of the tribal governance powers, examine the existing governmental entities used by Native communities in order to identify ways in which such entities can be used more effectively to achieve the goals of the communities.

  • The Commission believes that a multitude of opportunities with the present institutions exist to preserve and protect the values of the Native communities and to advance the goals of these communities, and that the Native community has to use every resource available to it, including these opportunities, to achieve its ultimate goal of self-governance and self-determination.

     

     III. Self-Determination (P.L. 93-638) Review

    A. Historical Overview

    The history of the federal government's involvement in Alaska as the administrator and provider of services to Alaska Natives is far too extensive and detailed to be covered in depth. Only highlights relating specifically to the Commission's concern about the efficiency of the current system of contracting under P.L. 93-638/100-472 and whether that system is truly fostering "self-determination" on the part of the many Native villages in Alaska will be mentioned. Even that will receive abbreviated attention due to space limitations.

    1. The Early Years

    Sheldon Jackson was an early missionary in Alaska, who later became the first Alaska Agent for the United States Office of Education, as a result of the Organic Act of 1884. The Office of Education later became the Bureau of Education, which was largely responsible for educating Alaska Natives. Under Reverend Jackson's directorship, the Bureau expanded to include many other programs and activities, including health and community development, which remained a part of the Alaska Native program of the Bureau of Education in the following years. The system, which is now massive, complex, and inclusive of a multitude of programs — and which, in the mid-1970s evolved to a process of contracting — has its origins in the early singular work of Reverend Jackson and his compassion for the indigenous people of the still-new territory of Alaska.

    a. Reserves. After the turn of the century, the federal government created, through various Executive Orders, a total of about 150 reserves in Alaska. Unlike the Indian Reservations that were created by Congress in the Lower 48, Alaska's reserves did not offer the security and benefits to the Alaska Natives who lived on them.

  • Like other such reserves (i.e., military reserves, petroleum reserves, etc.), they are created for a particular public purpose. It is easy to understand the public purpose behind a petroleum or military reservation. One is to conserve oil for future public use; the other supports national defense. In either case, it is not the people living on the reserve who are benefited, but the public at large. Executive Order Indian reservations are sometimes characterized in the same manner. They are not created to benefit the people who reside on them so much as they are created to benefit the public at large by preventing the residents from becoming dependent on state or territorial public welfare.28

  • The two exceptions to the reserves created by Executive Order are the Annette Island Reserve (the Metlakatla Indian Community) and Klukwan, which were established by Congressional action. Only Metlakatla remains today, as Klukwan's reservation was abolished as a result of the Alaska Native Claims Settlement Act (ANCSA). However, there are still examples of Executive Order reserves; one was established for the Kake cannery, which has subsequently been acquired by the Organized Village of Kake.

    b. Snyder Act and the Transfer of Programs to the BIA. In 1921, Representative Snyder of New York introduced HR 7848, designed to enable the House of Representatives to regain control over Indian appropriations, but the control that the Bureau of Education held over programs for Alaska Natives was not changed until its programs were transferred to the Bureau of Indian Affairs in 1931, ten years after the Snyder Act.

    c. "On or Near" a Reservation: Alaska's Exception. The assumption of programs for Alaska Natives by the Bureau of Indian Affairs introduced an interesting problem. Whereas the Bureau had established a policy of limiting its programs to Indians living "on or near" a reservation, that excluded most of Alaska's Native people, and the controversy regarding the responsibilities of the Bureau to serve Alaska Natives who did not live on reservations continued for several decades. Generally, the Bureau defined its service jurisdiction as follows:

  • The service population of the Bureau of Indian Affairs is usually defined to include, according to Title 18 of the United States Code, those Indians who (a) live on trust land under the jurisdiction of the United States Government, (b) are dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, whether within the limits of a state, and (c) all Indian allotments, Indian titles of which have not been extinguished, including rights-of-way, running through the same.29

  • Determined to be "dependent Indian communities within the borders of the United States," Alaska Native villages are included in the Bureau's service jurisdiction. In essence, the entire State of Alaska is considered as the equivalent of a reservation for this purpose.

    2. The Indian Self-Determination and Education Assistance Act

    The movement toward self-determination for Indians, which began during the Kennedy administration, was a reversal of earlier policies that were more subtly driven by "termination" policies. Gaining momentum during President Johnson's years in the White House,30 the impetus continued into the Nixon administration and culminated in the passage by Congress late in 1974 of P.L. 93-638, the Indian Self-Determination and Education Assistance Act, which was signed into law on January 4, 1975.

    a. Definitions. It is important that the distinction be maintained that Indians and Alaska Natives enjoy a special relationship with the federal government not because of a racial distinction but rather because of the obligation and trust responsibility that the federal government has to tribes. This is delineated in Section 4, "Definitions," of the Act: "‘Indian’ means a person who is a member of an Indian tribe."

    b. Implementation in Alaska: The Bureau of Indian Affairs. For the Department of the Interior, the "heart" of the Act is Section 102, which describes the intent and process of contracting:

  • (a) The Secretary of the interior is directed, upon the request of any Indian tribe, to enter into a contract or contracts with any tribal organization of any such Indian tribe to plan, conduct, and administer programs, or portions thereof, provided for in the Act of April 16, 1934 (48 Stat. 596), as amended by this Act, any other program or portion thereof which the Secretary of the Interior is authorized to administer for the benefit of Indians under the Act of November 2, 1921 (42 Stat. 208), and any Act subsequent thereto: Provided, however, That the Secretary may initially decline to enter into any contract requested by an Indian tribe if he finds that: (1) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory; (2) adequate protection of trust resources is not assured, or (3) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract: Provided further, That in arriving at his finding, the Secretary shall consider whether the tribe or tribal organization would be deficient in performance under the contract with respect to (A) equipment, (B) bookkeeping and accounting procedures, (C) substantive knowledge of the program to be contracted for, (D) community support for the contract, (E) adequately trained personnel, or (F) other necessary components of contract performance.31 [emphasis in original]

  • The eligible entities for contracting, termed "tribal organizations" are defined in Section 4, as is the term "Indian tribe," which is somewhat anomalous in parts of Alaska:

  • (b) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; [emphasis added]

    (c) "Tribal organization" means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let or grant made to an organization to perform services benefitting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or grant; [emphasis in original]

  • The specific reference in the definition of "Indian tribe" to "any Alaska Native village or regional or village corporation" is noteworthy, because it established an immediate means for the regional corporations to contract for services which were to be delivered in turn to the villages in their respective regions. By doing so, however, the Act introduced some ambiguity which continues today regarding the designation of "tribes."

    In Alaska, contracting under P.L. 93-638 was made more complicated by the failure on the part of the Department of the Interior to acknowledge as "tribes" many Alaska Native villages (which had been acknowledged in ANCSA) through the customary procedures previously applied to traditional councils and IRA councils. In other words, when the list of "federally recognized tribes" was published in the Federal Register, a large number of Alaska Native villages — which had functioning traditional councils — were not on it. There was not — nor has there ever been — an adequate explanation for that failure, although numerous attempts have been made in recent years to rectify the situation. Thus, in order to implement the Act and to use the definition of "tribe" without having to rely on its previous acknowledgment of the existence of a council, constitution, and enrollment, the Department established a hierarchy for contracting programs in Alaska. The hierarchy, which is still in place, is as follows: (1) IRA Council, (2) Traditional Council, (3) ANCSA Village Corporation, and (4) ANCSA Regional Corporation.

    If an IRA council seeks to contract, it has precedence over a traditional council seeking to contract to serve the same tribe, which in turn has precedence over an ANCSA village corporation. The ANCSA regional corporation serving the tribe has the "lowest priority" in the hierarchy. However, since there are no known examples of two Councils vying for a contract to serve the same tribe, and the rest of the hierarchy has not actually been used to establish precedence as much as opportunity, the system has not produced controversy as much as ease of contracting in situations that would otherwise have been more troublesome. For example, because Kodiak was not included among those designated as federally acknowledged tribes by the Department of the Interior, P.L. 93-638 grants and contracts from the Bureau of Indian Affairs on behalf of Natives of that community were passed through its village for-profit corporation, Natives of Kodiak, Inc.

    c. Regional Non-profit Corporations as Tribal Organizations under the Act. Because many regional non-profit corporations had been established even prior to the passage of the Alaska Native Claims Settlement Act, they were in place and readily eligible for contracting Bureau of Indian Affairs programs under P.L. 93-638. The following lists those non-profit regional corporations that preceded the passage of P.L. 93-638. In instances for which the original organization has been replaced by a successor (or has been renamed), the new corporation name is shown in parentheses:

  • Arctic Slope Native Association

    Bering Straits Native Association (Kawerak, Inc.)

    Northwest Alaska Native Association (Maniilaq Association)

    Association of Village Council Presidents

    Tanana Chiefs Conference

    Cook Inlet Native Association (Cook Inlet Tribal Council)

    Bristol Bay Native Association

    Aleut League (Aleutian/Pribilof Islands Association)

    Chugach Native Association (Chugachmiut, Inc.)

    Central Council of Tlingit and Haida Indian Tribes of Alaska

    Kodiak Area Native Association

    Copper River Native Association

  • In several regions, there is a separate health non-profit corporation, and these will be discussed later.

    d. First Contracts. The first contracts under P.L. 93-638 involved social service and employment programs that had already been contracted by the Bureau of Indian Affairs through the use of different mechanisms. The Central Council of Tlingit and Haida Indian Tribes of Alaska, Cook Inlet Native Association, Tanana Chiefs Conference, and Fairbanks Native Association were the first tribal organizations to receive contracts under P.L. 93-638.

    e. Bureau of Indian Affairs. The Bureau of Indian Affairs promulgated regulations immediately after P.L. 93-638 was signed into law in 1975, and it was therefore the first to engage in the P.L. 93-638 contracting process. Section 104 of the Act established a granting mechanism that was designed to assist tribes to assess their needs and establish the capability to plan for and administer programs. Section 104(a) applied to the Bureau of Indian Affairs, and Section 104(b) applied to the Indian Health Service. Under Section 104(a), a large number of IRA and traditional councils in Alaska received small "tribal management" grants, the size of which was proportional to their tribal enrollment. For many years, these annual "104(a) grants" were the only means by which tribal governments were able to hire part-time administrators and keep their offices open. At one point there were one hundred forty-six 104(a) grants in existence in Alaska, and the Commission heard several pleas from those testifying before it that these grants, which were phased out by the Bureau of Indian Affairs, be re-established.

    f. Indian Health Service. The Indian Health Service is administered by 12 Area Offices, of which the State of Alaska comprises one entire Area; the "Area Office" is the Alaska Area Native Health Service. Within the Alaska Area are nine Service Units, each of which, with the exception of one, is coterminous with a region as established by the Alaska Native Claims Settlement Act.

    As the compiled contract information in the Appendix shows, there are many more P.L. 93-638 contractors of Indian Health Service programs than there are non-profit regional corporations. However, the non-profit regional corporations continue to have the largest contracts and serve the largest number of Indian Health Service beneficiaries. In several regions there are two non-profit corporations, one for health programs and another for social, education, economic, and employment programs. Dual non-profit corporations exist in the Cook Inlet, Bristol Bay, Calista, Bering Straits, and Sealaska regions. In the remaining regions, a single regional non-profit contracts with both the Bureau of Indian Affairs and the Indian Health Service, with the exception of the Arctic Slope region, for which no health arm currently exists — and the contractor of Bureau of Indian Affairs programs, the Arctic Slope Native Association, serves only a portion of the villages in the region, excluding its largest, Barrow.

    3. P.L. 100-472 and the Regulation Problem

    a. Amendments to P.L. 93-638. Although there is no doubt that contracting under P.L. 93-638 was popular in Alaska, and quite successful, late in the 1980s a number of frustrations that had been building throughout the country in the uneven implementation of the Act led to the drafting of a set of amendments that, among other things, put limits on the federal government's ability to decline P.L. 93-638 contract proposals and gave tribes increased powers. These amendments, which were passed by Congress and signed into law as P.L. 100-472 on October 5, 1988, required that the Department of the Interior and the Department of Health and Human Services establish one set of regulations that applied to all P.L. 93-638 contracts; prior to that time each agency had developed its own regulations, procedures, and ways of communicating, which made interacting with tribes that much more difficult. P.L. 100-472 ordered the administration to complete the new regulations within six months, at which time they were to be submitted to Congress; they were to be published no later than ten months after the Act became law, which occurred in October 1988. Now, five years later, they still have not been published, which has created considerable (and unnecessary) complications on the part of tribes wanting to contract new or expanded services. And, to add to the complication, the Bureau of Indian Affairs has established one set of "interim regulations" while the Indian Health Service has established another, in direct contradiction of the intent of the law.

    b. Tribal Self-governance Demonstration Project. An additional and important aspect of P.L. 100-472 is contained in Title III of the Act, The Tribal Self-governance Demonstration Project, which established this "research and demonstration project" for twenty tribes, to be selected by the Secretary of the Interior. For each, the Secretary was directed to negotiate and enter into an annual written funding agreement which:

  • (1) shall authorize the tribe to plan, conduct, consolidate, and administer programs, services and functions authorized under the Act of April 16, 1934 (48 Stat. 596) as amended, and the Act of November 2, 1921 (42 Stat. 208);

    (2) subject to the terms of the written agreement authorized by this title, shall authorize the tribe to redesign programs, activities, functions, or services and to reallocate funds for such programs, activities, functions, or services;

  • This new option, which has come to be called "compacting," establishes a much broader means of contracting for services from the Bureau of Indian Affairs, which resembles the state block grant that was established under the Reagan administration. Rather than having to continue service programs categorically, tribes are given the latitude to determine their own highest priority needs and to redesign and reconfigure service provision to meet those needs. In addition, the compact enables the tribes to acquire funds that would have been used by the Bureau's Agency and Area Offices in the administration, management, and oversight of the services, thereby increasing the amount of funds available in the compact.

    In Alaska, a consortium of southeast Alaska tribes, including the Central Council of Tlingit and Haida Indians of Alaska, Angoon, Ketchikan, Kake, Sitka, and Yakutat, was one of the first round of "tribes" included in this demonstration project. Kawerak, Inc., is also in the process of compacting; Tanana Chiefs Conference has received a planning grant for future compacting; and the Association of Village Council Presidents has submitted a letter of intent. In 1991, P.L. 102-184 extended the time for the demonstration project and expanded the number to thirty tribes.

    P.L. 102-184 also stated that "the Secretary of Health and Human Services, in consultation with the Secretary of the Interior and Indian tribal governments participating in the demonstration project under this title, shall conduct a study for the purpose of determining the feasibility of extending the demonstration project under this title to the activities, programs, functions, and services of the Indian Health Service." The results of the study were to be presented to Congress within a year. Although no Alaska tribes or tribal organizations have as yet engaged in compacting with the Indian Health Service, at least two are in the process of planning to begin. The fact that in many of the regions the non-profit corporation that contracts with the Indian Health Service is different from the non-profit corporation that contracts with the Bureau of Indian Affairs may add complications to the establishment of multiple-department compacts.

    c. Problems Ahead. It appears that serious problems are just over the horizon for compacting in Alaska, if not throughout the entire Bureau of Indian Affairs. When the Juneau Area Office of the Bureau of Indian Affairs began to "divvy up" the Agency and Area budgets and put pieces into the first compacts, it did not formulate a method that would prevent the funds from being distributed before all compacts were completed (in the case that all possible programs and funds that were accessible to compacting were ultimately let out under Title III agreements). Although concern has been expressed within the Bureau and among Native leaders, there does not appear to be any obvious activity taking place to correct this problem at the present time.

    The Commission expresses its fear that this failure to exercise prudent planning may produce hardships later for those who engage in the compacts under Title III. Furthermore, the Commission seeks reassurance from the government that sufficient safeguards will be in place to protect Alaska Natives in need of services should a compacting consortium begin to disintegrate, as is occurring with several regional non-profits at this time.

    Rephrased as a more optimistic question, if individual villages choose to engage in their own individual compacts rather than continuing with other villages as part of a consortium — or regional — compact, are there sufficient safeguards to ensure that funding will be available to enable that to occur without detracting from services or programs?

    Title III of P.L. 100-472 did state, assuringly, that:

  • nothing in this title shall be construed to limit or reduce in any way the services, contracts, or funds that any other Indian tribe or tribal organization is eligible to receive under section 102 [i.e., self-determination contracts] or any other applicable Federal law and the provisions of section 110 [i.e., ensuring the protection of tribal rights] of the Act shall be available to any tribe or Indian organization which alleges that a funding agreement is in violation of this section.32

  • However, the Commission notes (again) that P.L. 100-472 also stated that the Department of the Interior and the Department of Health and Human Services would publish combined regulations no later than August 5, 1989, and that has yet to occur, over five years later. Furthermore, the recent experience that Alaska Native contractors have had with continuing indirect shortfall, which has led to at least one suit having been filed against the Bureau of Indian Affairs, throws further doubt on the sincerity of the administration (or Congress) to uphold the letter of P.L. 100-472 and adds to the concern that the Commission has about future potential impacts that compacting may have on Alaska Natives.

    B. Current Contract Status

    1. Overview

    Collectively, tribes in Alaska have proceeded farther along the path of self-determination contracting under P.L. 93-638 and P.L. 100-472 than many of the Lower 48 states, which may be due, at least in part, to the presence of existing regional non-profit corporations, established pursuant to the Alaska Native Claims Settlement Act before the passage of P.L. 93-638. These had administrative staff in place and were more practiced at managing grants and contracts than were — or are — smaller tribal administrations, which often must survive with only a single part-time paid staff person or the volunteer efforts of the Council members themselves. Whether the placement, or positioning, of these regional corporations effectively between the federal government and individual tribes has in the end been beneficial to all Alaska Native villages is a question that must remain unanswered; and, it is apparent from the testimony heard by the Commission that the question, which is often implied if not explicitly stated, would elicit different answers in different parts of the state.

    It is noteworthy that the largest P.L. 93-638 contract into which the federal government has entered is between the Alaska Area Native Health Service and the Yukon Kuskokwim Health Corporation, and the contract negotiated with the Southeast Alaska Regional Health Corporation is not that far behind. Furthermore, throughout the Indian Health Service there are altogether 50 hospitals, of which eight are under tribal contract; five of those eight (63%) are in Alaska. There are 452 outpatient centers and clinics, of which 331 are under tribal contract, and of that number 183 (55%) are in Alaska.33 Given that Alaska is only one of 12 Areas within the Indian Health Service, that is a record of self-determination contracting to which Alaska Natives can proudly point. The employment and economic consequences of these contracts warrant considerable attention, as do the overall amounts of government funding that flow through them into all parts of Alaska every year. As the next sub-sections show, during the most recent contract and grant periods reported to the Commission by the Bureau of Indian Affairs and the Indian Health Service, the total funding levels are substantial.

    Approximate totals for the different categories of funding processes are shown in Table 7. It should be noted that grants from the Indian Health Service under Section 103(b) of P.L. 100-472, which are administered directly from headquarters in Rockville, Maryland, are not included here. The figures are not precise, due to the changing nature of these funding instruments over the year and the ability of contractors to carry over unspent funds from one year to the next. These should be viewed as suggestive only, not as auditable amounts.

    The Native regional non-profit corporations, which have the bulk of the contracted funds, are also able to pursue reimbursement for services from Medicare, Medicaid, and private insurance carriers. Not surprisingly, these are available more readily to the non-profit health corporations (e.g., the Norton Sound Health Corporation) — and to those which contract with both the Bureau of Indian Affairs and the Indian Health Service — than they are to non-health corporations (e.g., Kawerak) because of the kinds of services that they provide. The income generated by these additional reimbursement alternatives have not been systematically projected for FY 1993 in the documents reviewed by the Commission, but it is known that they add significantly to the figures shown in the table above. For example, the amount projected to be recovered from Medicare and Medicaid in FY 1993 by the Yukon-Kuskokwim Health Corporation alone is over $2,500,000.

    Table 7: Funds Distributed to Alaska Tribes Under P.L. 93-638/100-472 in FY 1992

    BIA Grants

    $10,562,548

    BIA Contracts

    $20,936,676

    BIA Southeast Compact

    $6,306,250

    IHS Contracts

    $141,624,697

    Total

    $179,430,171

     2. Bureau of Indian Affairs

    a. Level of Funding in Alaska vs. the Lower 48. Of the 12 Areas within the Bureau of Indian Affairs, the Juneau Area (i.e., Alaska) ranks first in the total number of tribes that have been federally recognized and are eligible for direct or contracted services from the Bureau (187); Sacramento is second with 92 tribal governments. Alaska ranks third in the number of Natives to be served. But it ranks eleventh, next to the lowest, in the amount of money it receives for Operation of Indian Programs, which includes tribal services, education, natural resources, general administration, facilities management, trust responsibilities, and economic development. The per capita level of funding for the Juneau Area is only $399, compared to $1,801 for the Portland Area, which ranked first.34 Furthermore, the allocation of funds to the Bureau's Central Office represents 3.75 times the amount Alaska receives and, when placed in ranks, is second only to Navajo. Although this obvious misalignment of funding has been brought to the attention of the Assistant Secretary for Indian Affairs, the Secretary of the Interior, and Congress, there has been no apparent move to correct it.

    b. Distribution of Contract Funds in Alaska. The Juneau Area Office of the Bureau of Indian Affairs provided the Commission with detailed listings of all grants and contracts that were awarded in FY 1992, with a year-end total amount for each, which provided an accurate portrait of the funding that flows from that federal agency to Alaska Native Village Councils and regional non-profit corporations.35 These are synopsized in Table 8 and are shown in full detail, by contract and program component, in the Appendix. Altogether, there were 30 contracts under P.L. 93-638/100-472, one of which was technically a compact (Kawerak, Inc.). Programmatic and financial information relative to these contracts can be found in a series of tables in the Appendix.

    Table 8: BIA Grant Totals by Category

    BIA GRANTS FOR FY 1992

    NUMBER

    AMOUNT

    Core Management

    1

    $14,500

    Indian Child Welfare Act

    95

    $4,679,387

    Community/Economic Development

    8

    $649,876

    Housing Improvement

    1

    $28,775

    Johnson O’Malley

    46

    $3,052,889

    Planning (Sec. 103)

    3

    $182,500

    Small Tribes (Sec. 103)

    33

    $475,000

    Training & Technical Assistance (Sec. 103)

    1

    $65,000

    Road Maintenance

    18

    $217,818

    Tribal Courts

    6

    $87,660

    Miscellaneous

    10

    $1,109,143

    Totals

    222

    $10,562,548

     

    In Indian Health Service contracts, the recurring amounts are contracted from year to year, subject to certain increases and decreases that may be passed along from Congress, headquarters, or the Area Office. Non-recurring funds include those special one-time funds that are made available in certain programs — even though those often do in fact recur from year to year — and carry-over funds that are not spent in the preceding fiscal year. For more information on Indian Health Service contracting, please see the Appendix.

    The overwhelming bulk of IHS funds are designated for "hospitals and clinics," which is somewhat of a "catch-all" program label that includes, for many contractors, the Community Health Aide Program and, for others, Tribal Management Support, which funds some of the administrative costs of the contractor. The lowest priorities are revealing, with the health education program consuming less than one-tenth of one percent of the contract totals and mental health less than two-tenths of one percent. With the excessive rates of suicide and other mental health problems that continue to surface among Alaska Natives, it is a wonder that so little has been contracted for mental health programs. Likewise, with the shift toward health education emerging as a major recommendation of the Alaska Natives Commission, based on every indicator that has been reviewed and that has repeatedly shown the huge need for greatly enhanced health education and health promotion programs, it is remarkable that the Indian Health Service has chosen to relegate health education to such a lowly position that for every $1.00 spent for health education, $996.00 are spent for other programs that are largely responding to the failure of the Indian Health Service to provide health education.

    3. Governmental Problems that Need to be Addressed

    a. The Indirect Shortfall. Both the Bureau of Indian Affairs and the Indian Health Service have, over the last few years, experienced a shortage in the amount of contract support funds that have been available for P.L. 93-638 contractors. This has resulted in the "indirect shortfall" problem, meaning that although a tribe or tribal organization (e.g., a regional non-profit corporation) has an indirect cost rate that has been officially approved by the federal government, it cannot collect the approved amount from the government, which inevitably leads to both financial and programmatic consequences that can be damaging to the tribe or tribal organization and actually threaten its continuing existence. The total amount of the indirect shortfall for the Bureau of Indian Affairs P.L. 93-638 contracts in Alaska for the current fiscal year has been projected to be approximately $1,600,000. This includes the shortage in not only indirect charges per se but other contract support costs as well, including the Indian Self-Determination funds that are supposed to be available to help new contractors begin their programs. The situation in the Indian Health Service is worse, with an indirect shortfall for FY 1993 totaling $3,046,459.

    There is a compounding set of factors at play regarding the indirect shortfall situation, and it involves the splintering of the heretofore intact regional contracts into many separate and smaller — sub-regional contracts. The enactment of P.L. 100-472 spurred the federal government to provide more technical assistance to villages to assume their own self-determination contracts, which, more often than not in Alaska, meant removing programs from the regional corporations. As this has occurred, there have been three consequences. First, the separate contracts have required the injection of Indian Self-Determination ("start-up") funds and other contract support costs that had not been required before. Second, the tribal programs have at times developed a higher indirect cost rate, resulting from having to have an administrative staff if even only one small program (e.g., the Community Health Representative) is contracted; an obvious case in point is the Village of Ninilchik, which has an indirect cost rate of 79.5 percent. Third, when revenues have been reduced at the regional level but many fixed costs have not, there has been an increase in the percentage of regional contract funds being required for administrative overhead, and the indirect charges in the regional contracts have increased as well. It appears, then, that the removal of programs from the regional non-profit corporations has, at least so far, resulted in an overall increase in the percentage of funds budgeted for contract support and administrative costs, which, in turn, has led to an increase in the indirect shortfall from year to year. This and other aspects of the trend toward separate tribal contracting are discussed in a later section, which reviews the "dismemberment" of the regional non-profit corporations.

    b. Organization and Chain of Command within the Bureau of Indian Affairs. For at least the last seven years, there has been discussion within the Bureau of Indian Affairs concerning the possibility of reorganization. In the mid-1980s a plan was developed that would have moved the Area Office from Juneau to Anchorage and reduced the size of the Agency offices, but it was not implemented. In more recent years, a Reorganization Task Force was assembled to study possible reorganization of the entire Bureau, some of which was prompted by publicly reported findings that, in the Lower 48, the Bureau's accounting systems were so poorly organized that millions of dollars had, for all practical purposes, disappeared, and programs were not being appropriately managed. The Assistant Secretary for Indian Affairs moved to re-centralize many program and operational authorities that had previously been delegated to the Area Offices, and a new Office of Self-governance was created to guide the implementation of the Self-governance Demonstration Project. All in all, these changes have led to a weakening of the role of the Area Director in Alaska and more day-to-day micromanagemente from the Bureau's headquarters, which have been detrimental to Alaska's tribes and tribal organizations.

    c. The Indian Health Service Area Office: A Continuing Institution. The Alaska Area Native Health Service, or more simply the Area Office, was established to provide support to the Indian Health Service facilities and staff in Alaska at a time when all Indian Health Service functions were administered directly, before any P.L. 93-638 contracting had begun. At the present time, however, the Area Office provides continuing direct support only to the Alaska Native Medical Center in Anchorage, the Barrow Hospital, and the Ketchikan Health Center. The rest of the Area Office effort is now largely dedicated to support and monitor the programs under contract to tribes and tribal organizations; the mission of the Area Office does not include the provision of any direct health care or service. The budget for the Area Office has steadily risen over the years — for example, from $22,418,253 in FY 1988 to $31,608,170 in FY 1992, with a staff of 325 federal employees — even though (ostensibly) its role has declined as more and more functions were assumed by tribes and tribal organizations. Ironically, there are some notable oddities in the oversight of tribal programs that have also brought increased attention to the Area Office. The total amount in P.L. 93-638 contracts for health education in all of Alaska is about $405,000, but the Area budget for managing and monitoring that amount is $107,000, which evidently also pays for health education support to the remaining federal facilities.

    Because of questions that have been raised about the Area Office, both from within the Indian Health Service and from tribes and tribal organizations, the Alaska Area Native Health Service commissioned the Alaska Native Health Board to conduct a study to review the scope and functions of the Area Office and to make recommendations for improving its efficiency in the future. The report resulting from that study was published in May 1993.36 The study's conclusions and recommendations are generally critical of the Area Office, noting, by and large that, while consuming one-eighth of the total funding that the Alaska Area receives from the Indian Health Service, the Office duplicates many functions that are handled elsewhere and, in some of its functions, may actually retard rather than improve the functioning of contracts and direct federal facilities. The overriding recommendation is for the Office to trim back its costs and staff while enabling all of its systems to become more decentralized.

    During the final quarter of FY 1993, Vice President Gore's "reinventing government" movement had a significant impact on the operation of the Area Office which, in its own way, has broadened the scope of the decentralization effort. The Area and the Alaska Native Medical Center participated in a novel review of its needs, operational policies, and procedures which have to date led to a substantial increase in Area-level authority for procurement, acquisition, personnel, subcontracting, automated data processing, and numerous other administrative programs of the Area Office. There are two anticipated outcomes of this reform. First, the efficiency of the Area Office should increase proportional to its ability to make local decisions and exercise local control over operations that had in the past required approval from the Indian Health Service Headquarters in Maryland or other offices in New Mexico. Second, as a result of this efficiency, some of the recommendations made by the Alaska Native Health Board's study may be able to be implemented more quickly than had been anticipated at the time that study was completed. It is the hope of the Commission that with limited federal funds and increasing needs for health services among Alaska Natives, it will be possible for the Alaska Area Native Health Service to move both money and staff from Area Office operations to tribal contracting and direct service. Also, as the Indian Health Service enters into compacting with tribes and tribal organizations, the funds that have been designated for Area functions will be realigned and contracted out, as has been the case within the Bureau of Indian Affairs. When that process reaches its culmination, only a very limited non-contractible set of duties will be retained by the federal government, at which point the Area Office should be reduced to a minimum.

    d. Recent Trends: The "Dismemberment" of Regional Non-Profits. Recently there has been an increase in the movement of individual IRA and traditional councils to separate themselves from their respective regional non-profit corporations and establish their own independent contracts with the Bureau of Indian Affairs and Indian Health Service (i.e., Alaska Arm Native Health Service) to provide programs and services under P.L. 93-638/100-472. This trend has, in fact, accelerated during the brief period of time the Alaska Natives Commission has been in existence. There is no doubt that these many new P.L. 93-638 contracts from Alaska Native villages are consistent with the intent of the Indian Self-Determination and Education Assistance Act, but they have some pragmatic consequences that need to be reviewed. First, if the current system of health care for Alaska Natives, which has been provided predominately through P.L. 93-638 contracts with regional non-profit corporations, were to be redistributed into 200-plus individual contracts, each with a single village, one could easily imagine both a loss of effectiveness, from the perspective of health care, and an increase in cost.

    At the present time, there are 30 contracts, of which 18 are held by regional non-profit corporations or tribal consortia (e.g., the Kenaitze Indian Tribe) and serve multiple villages. Were these 30 contracts redistributed to over 200 villages, each with its own contract and its own relationship with the Alaska Area Native Health Service, it is inevitable that the overall administrative costs required in the contracts would be greater than they are now, and the number of staff and support (e.g., travel, equipment, supplies, etc.) needed within the Alaska Area Native Health Service would be greater than it is now. Thus, from the viewpoint of considering only the costs of separate P.L. 93-638 contracts for all villages, an analysis would have to fall on the side that would conclude that it would not be the fiscally prudent path to follow.37

    There is, however, another side to the question of P.L. 93-638 contracts, and that has to do with the control that local communities would have over their programs, their services, and their futures that they do not and cannot have when someone outside the village is administering programs for them. Going back to P.L. 93-638, the reason that the Indian Self-Determination Act came about was that "the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their community by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government"38 [emphasis added]. The relationship between P.L. 93-638 as a mechanism for transferring funds and administrative responsibility for the provision of programs and services that had previously been handled directly by the federal government was certainly an important element of the Act. But an equally significant goal of Congress at the time of passage of the Act was to enable each tribal government to govern its tribal members and to be empowered as a Native community, to determine its community's needs, and to respond to those needs most effectively within the culture and traditions of the tribe, or, in the case of most of Alaska, the Native village.

    The Commission submits that through the P.L. 93-638 contracting process, as it has evolved, that most critical element, the empowerment of the Native community through self-governance, has been lost, and, furthermore, that it is the loss of that element that has led to other problems in Alaska Native communities, not the least of which is the high rate of crime and other judicial and correctional problems that have been addressed elsewhere by the Commission. In fact, many of the health problems that have been reviewed by the Alaska Natives Commission and that have led to recommendations that entail empowerment of individual villages and Native communities also relate to this very basic issue of P.L. 93-638 contracting.

    Too often, as village councils confront continuing frustrations trying to exercise governmental authority or to acquire a greater role in meeting the needs of their respective communities, they sense the powerlessness that accompanies the realization that their tribal government has absolutely no control over the destiny of its members, which negatively impacts the individual, family, and community. Although each village council has the power to withdraw its authorizing tribal resolution, thereby removing itself from its regional corporation, the only immediate alternative — returning to the situation in which services and programs are delivered directly by the federal government — is seen as jumping from the frying pan into the fire. To acquire the program through a separate contract directly from the federal government, the council must demonstrate its administrative capability and prove that it can offer the same service or program without diminishing either its quality or quantity. These are not easy conditions for many villages to meet. Furthermore, once a contract is negotiated, the amounts of money that become available may be so small that it becomes practically impossible to meet the needs of tribal members anyway. For example, the FY 1992 contract that the Native Village of Kluti-Kaah had from the Bureau of Indian Affairs contained $74.00 for the Direct Employment Program and $23 for the Adult Education Program, to serve about 155 tribal members. The dilemma is obvious.

    Although it is important to control resources and bring more cash into the village, if the only way to accomplish those objectives is to be effectively saddled with having to implement categorical programs under contract to a federal agency, the demands may exceed the rewards. A solution should be available through the effective "unbundling" of program and service responsibilities from self-governance and local control. In other words, options should be made available for IRA and traditional governments in Alaska to acquire funds to support governmental functions without having to contract for services and programs, as a round-about way to gain administrative funds. It is this approach that establishes the foundation of the Commission recommendations, which are presented in the next, and final, section. Second, when village councils do decide to seek program contracts from the Bureau of Indian Affairs and the Indian Health Service, both of those federal agencies should relinquish the categorical restrictions that would then enable the villages to use their limited funds to meet their own needs, within set parameters, rather than being limited to trying to squeeze any kind of sensible direct employment program (for instance) for 155 tribal members with only $74.00 a year.

     

    C. Findings and Recommendations

    The Commission went to great lengths to seek the testimony of all the regional non-profit corporations in order to establish the magnitude of resources available from all government sources to each of these entities and how those resources are used for the benefit of individual Alaska Natives.

    It should be noted that the Commission disseminated a very detailed list of questions to all those invited to testify at its hearings well in advance of the scheduled hearing dates.

    Of the 17 regional non-profit P.L. 93-638 contractors that were solicited to testify, only nine did; and of those entities that did testify, many failed to respond specifically to the Commission's published questions. The Commission is perplexed why this evasion of the issues existed. For the record, a complete copy of the questionnaire is included as Appendix.

    Because of the lack of specific response to the questionnaire, the Commission relied to a great extent on the research of staff to compile the information for this portion of its study.

    1. Costs and Benefits of Contracting

    There are several different levels on which the costs and benefits of contracting under P.L. 93-638/100-472 must be considered. First and foremost, the implementation of the Indian Self-Determination and Education Assistance Act has offered opportunities and provided broad resources to Alaska Natives, and the new compacts are extending even greater latitude to tribes and tribal organizations to meet their locally determined needs without the "micromanagement" that often characterized the early P.L. 93-638 contracts. At the second level, due to the existence of the Alaska Native regional non-profit corporations at the time P.L. 93-638 contracting began, they effectively positioned themselves between the federal government and the individual "tribes" at the village level. Since the regional nonprofit corporations offered a ready conduit for contracting and were viewed as bringing money, jobs, and decision-making down to the "local level," the village councils, in all but a few instances, fully supported and encouraged the corporations to pursue contracts from the Bureau of Indian Affairs and the Indian Health Service.

    Over the years, however, the tensions between some of the regional non-profit corporations and the villages that they serve grew, and, within the last two or three years, several of the regional non-profit corporations have begun to be disassembled. Approximately half of the villages in the Aleutian/Pribilof Islands Association withdrew their health resolutions and realigned with the newly formed East Aleutian Tribe. Several villages in the Ahtna region have pulled out of the Copper River Native Association in recent months. Councils in other regions have completed feasibility studies for future separate contracting, typically with the assistance of grants from the Administration for Native Americans or the Indian Health Service Tribal Management program under Section 103(b) of P.L. 100-472, and the momentum seems to be building to further the separation of the non-profit corporations in some regions. However, in some cases the effort that has resulted at the village level, with numerous regulatory requirements, close federal monitoring, etc., was not fully anticipated. In short, some IRA and traditional councils are now revisiting the question and asking whether the gains have been worth the costs.

    It has become evident to the Alaska Natives Commission that there is to some extent a confusion of goals and the means to achieve those goals. Tribal councils are striving to achieve self-governance and local control — in a word, empowerment. But the means by which they can reach that goal have been largely limited to acquiring contracts from the federal government which, in turn, require them to provide specific services in specific ways, submit reports, keep records, and engage in a large number of administrative tasks that are related to the contract but not necessarily to the pursuit of self-governance. In other words, at the village level the system has effectively reverted to micromanagement.

    2. Recommendation: Re-instate the "104(a)" Grant Program

    The Bureau of Indian Affairs had, for several years, small grants that were available on a noncompetitive basis to IRA and traditional councils of the federally acknowledged tribes and which provided a small amount of continuing support for maintaining some level of tribal administration in the villages. Although technically these were not to have been used solely for administrative support (i.e., they were "planning grants" and were supposed to be project-oriented), they were in some respects the equivalent of a small revenue-sharing program, directly from the federal government to tribal governments that resembled and paralleled the State's revenue sharing that supported — and continues to support — the administration of the city governments that co-exist in many of Alaska's villages. Subsequent to the abolishment of the 104(a) grants, the Bureau of Indian Affairs has redirected the grant funds to three competitive programs: core management grants (of which there was only one in FY 1992 — to a regional non-profit corporation — for $14,500); planning grants (of which there were three, totaling $182,500, one of which was to a regional non-profit corporation); and "small tribe grants," which are practically limited to village councils that have experienced some significant problem with the Bureau, such as an audit exception (of which there were 33 grants, for a total of $475,000). There is no evidence that the Bureau has evaluated the effectiveness of these programs or whether any consideration has been given to reinstating the former non-competitive 104(a) grants, now renumbered to "103(a) grants" as a result of P.L. 100-472.

    The Commission recommends that such an evaluation be completed by the Bureau and that, unless there is compelling evidence that would convincingly argue against it, the 103(a) grant program be reinstated to provide stable, albeit small, financial support for tribal administrations in Alaska. At the same time, the Bureau (in consultation with tribal governments) should review the cost-effectiveness of maintaining several other categorical programs in Alaska, such as agriculture and realty, to determine if funds spent there could not be better used to support tribal governance, courts, and other activities that will strengthen local empowerment.

    An additional asset that could be directed toward supporting tribal governments, is the annual allocation for training and technical assistance that the Area Office of the Bureau of Indian Affairs receives. In previous years, these funds were designated separately in the Area budget but apparently now are contained within the administrative budget category. Nonetheless, the Commission recommends that a coordinated program of decentralized training and assistance be offered by the Bureau, supported by these funds, at the village level to accompany the reinstatement of the 103(a) grant program. Furthermore, the Administration for Native Americans, which also has a goal of strengthening tribal governments and which invests approximately $600,000 a year in pursuit of that goal in Alaska, should also direct its funding into this statewide training and technical assistance effort.

    Both the reinstatement of the 103(a) grants and the training and technical assistance program should be designed with specific tribal consultation with the tribes of Alaska (i.e., not groups purported to represent those tribes) in order to optimize the effectiveness of the procedures that will be employed. Objectives should include (a) the establishment of a fully functioning tribal government in any Alaska Native village that chooses to participate in the new program; (b) continued, stable, financial support that constitutes a "federal revenue-sharing" program and does not require competitive application; and (c) assistance in developing governmental programs (e.g., tribal courts, land management, ordinances, and permitting) that do not require service program contracting under P.L. 93-638 to succeed.

    Because of the long-range, broad benefits that these program changes will have, it would be reasonable for the Indian Health Service to participate in their funding as well. As the Bureau's use of funds in the recent competitive grant programs under Section 103(a) may not have been carefully evaluated, so too has the Section 103(b) grant program of the Indian Health Service continued without a public assessment. That competitive program has been restructured in recent years but has, in Alaska, supported such projects as major automated data processing changes and management development for the regional non-profit corporations. The Commission recommends that the Alaska Area 103(b) grant program be carefully evaluated and considered for a similar re-directing to the village level in order to strengthen and stabilize tribal governments in Alaska.

    To accompany this new program, the non-profit corporations should be directed — as a requirement of their contracting with the Bureau of Indian Affairs and the Indian Health Service — to increase their provision of technical assistance to village tribal governments in their respective regions. Consideration should be given to establishing a matching-grant program by which the regional non-profit corporations would distribute some of their administrative funds to tribal governments that become involved in the redesigned Section 103(a) and 103(b) grant programs. The regional non-profit corporations should also work with those tribal governments to review significant shifts in programs and services from the regional to the village level, for the purpose of developing roles and responsibilities in such a way that competition between the regions and the villages they serve be replaced by a cooperative pursuit, balancing the community and tribal empowerment needs with the realities of providing cost-effective, high-quality services throughout the state.

    3. Fiscal Considerations

    Although the costs of implementing this new approach may initially require an increase in appropriations, much of the financial support for the grants and training can be made available by re-directing current appropriations and allocations within the Department of the Interior and the Department of Health and Human Services and by moving funds from the regional level to the village level within Alaska. Additionally, within a relatively brief period of time, the savings in other types of administrative costs should balance out any of the initial "start-up" expenditures required. The positive consequences of the empowerment of tribal government will be realized in areas beyond those that would be considered strictly "governmental," although these will be important (e.g., establishing local dispute resolution bodies and mechanisms, enabling probation and parole at the local level, etc.). There will also be other economic, employment, education, resource management, subsistence, and psychological consequences. Furthermore, the ability of the federal agencies to enter compacting agreements and contracts with the assurance that the contracting governments will have some administrative support that is not dependent on that compact or contract will help ensure both effective service provision and a stable, accountable management of the agreements.

    4. Regional Non-profit Reorientation

    In recognition of the fact that some regional non-profit corporations have acquired the bureaucratic accoutrements of the federal offices (e.g., Bureau of Indian Affairs Agencies) that they were ostensibly to replace, the Commission recommends that the federal and state departments that provide grants and contracts to the regional non-profit corporations be directed to evaluate the programs and fund utilization of the corporations for the purpose of limiting administrative costs and striving to move more of the funds, functions, and services to the villages. This review should include the trends in indirect cost rates over time with a goal of maximizing administrative efficiency that would ultimately lead to a cap in allowable indirect charges, thereby to some extent relieving the indirect shortfall problem. In the same way that the Bureau of Indian Affairs and the Indian Health Service need to decentralize their functions, the regional non-profit corporations should also move money, authority, and responsibility to the villages.

    The federal obligation to aid in this distributive process extends to the pohcymakers who have established that categorical funding must be carried down to the lowest level, with an Alaska tribal contractor receiving $23 a year to carry out an Adult Education Program. Consistent with the spirit of the Self-governance Demonstration Project, tribes should be able to determine their own needs, within reasonable parameters, and use their funds to meet those needs, particularly in cases that the funds attached to Bureau-determined program categories are too small to provide any benefit.

    The Commission acknowledges that there are large differences between the many regional non-profit corporations in Alaska and does not want to give the impression that it is being unduly critical of the corporations nor to imply that all of the corporations are experiencing the problems mentioned here: regional non-profit corporations are attempting to balance economy of scale with responsiveness to local needs. However, the testimony of some of the tribal village representatives revealed a critical view of their regional nonprofit corporation, and there is no doubt that the sense of confusion and frustration discussed earlier is pervasive in much of Alaska.

    Until the IRA and traditional councils of Alaska have a permanent acceptance of their authority and can truly exercise that authority through cohesive community action that empowers the village residents and enables them to shed the sense of powerlessness that has grown to dangerous levels, many problems will continue to escalate. The time has come to "revamp" the systems that have led to passive and nonfunctioning tribal governments and the tensions that have grown between the villages and their regional nonprofit and for-profit corporations. The recommendations made here, if implemented in good faith, will help to accomplish this objective. A substantial amount of the preceding also applies to regional for-profit corporations, which deserve additional study.

     

    IV. Fish, Game and Subsistence

    A. Regulatory Processes and Outcomes

    It has become clear to the members of the Commission, having listened to the complaints and pleas of Alaska Natives around the state, that neither regulatory processes nor their outcomes have respected the cultural traditions or the basic needs of Alaska's indigenous people when fish and game are concerned. Furthermore, the salmon-run disasters of 1993, which inflicted great hardship on Alaska Natives along the Kuskokwim and Yukon Rivers — and were further compounded by the decision on the part of the State of Alaska to replace a subsistence way of life with a welfare-oriented hand-out of dead fish — demonstrated the incapability of either the state or federal governments to manage the fisheries of Alaska. When the "by-pass" catch is permitted to continue to kill hundreds of thousands of Alaska-bound salmon each year and when sports-fishing organizations direct their lobbies against Alaska Natives, who all-in-all remove relatively few fish but need those fish to survive, rather than the giants of the commercial fishing industry, then there must be change.

    It is the conclusion of the Commission that, although it is unquestionably the lesser of two evils, state government should manage fish and game in Alaska, not the federal government. State management should proceed according to and consistent with the current, prevailing federal laws and regulations, such as those contained in the Alaska National Interest Lands Conservation Act (ANILCA), including rural preference for subsistence — until such time that preference may be given to all indigenous, Native people of Alaska, irrespective of their residence. Should state government continue to resist the performance of its duty under federal laws, existing litigation to compel such compliance under the federal supremacy clause should be vigorously pressed. As vulnerable to influential lobbies as the state legislature has revealed itself to be, there is greater potential for the voice of Alaska Natives to be heard in Juneau than in Washington, D.C. However, at the same time, the Native groups that speak with a collective voice and the elected and bureaucratic groups that must hear that voice should also be organized in such a way that both access to and imposition upon the policymakers is more immediate and direct.

     

    B. Regionalizing the Fish and Game Boards

    An example of such a change in the organization of policy-making groups and regulatory processes that will better enable Alaska Natives to exert some influence, couched in self-determination and local governance, over the statutes and regulations that have in many respects eliminated the cultural basis of subsistence and have reduced it to the equivalent of bow-hunting for elk in the Lower 48 is the regionalization of the Alaska Boards of Fish and Game.

    The regulation of subsistence has, to date, totally ignored the underlying Alaska Native cultural patterns of sharing and providing for not only oneself but one's community in ways that have been passed from generation to generation for millennia. Because these traditions vary from one region to another, it is incumbent upon the State of Alaska to decentralize the authority of the current Boards, enabling locally established traditions and practices to be considered in the determination of local use patterns, seasons, and limits. The Boards' enabling statute, established in 1959, authorized the creation of advisory committees, of which there are currently 80, with membership ranging between 900 and 1,000 from year to year. Subsequently, regional fish and game councils were established pursuant to ANILCA, but, due to the absence of federal funding to support them, they became inactive.39 Nonetheless, state government spends over $1,500,000 annually on the local advisory committees and meetings of the Fish and Game Boards, while most indications continue to be that this system, though expensive and giving the appearance, at least, of local involvement, does not honor the local cultural traditions of the Alaska Native people.

    Several examples of the ways that current regulations have unnecessarily restricted subsistence harvests have been brought before the Commission. In testimony in Nome, one of the participants noted that the opportunities for fishing were so rigidly fixed that if the weather did not cooperate with the regulations, thereby prohibiting local Natives from putting their small boats out during the "opening," they were completely shut out of harvesting their food. Another participant, testifying in Dillingham, noted how the regulations forbid her, and the rest of the Elders, from taking "red fish" (i.e., salmon that have turned red at the time of spawning), which are considered a traditional delicacy among her people. A third example, from the Ahtna region, is the policy requiring that only moose with racks 50-inches or more across can be taken, a regulation that is practically discriminatory against Alaska Natives and obviously favors guides and sports — and "trophy" — hunters. Many more examples abound of the kinds of policies and practices that must be eliminated.

    The Commission recommends that the Governor and the Alaska Legislature re-configure the Fish and Game Boards to enable Alaska Natives to regain more local control over subsistence resources, harvests, and traditional uses. The federal government should also augment the authority of the ANILCA regional councils. Parameters will need to be established and maintained to prevent accidental depletion of resources in one region due to harvests in another region; but it is also obvious that a significant restructuring of the system is mandatory, based on the 1993 disasters of the Kuskokwim and Yukon Rivers mentioned above.

    The Commission further recommends that each regional board have veto power over the application of hunting and fishing regulations that would impact subsistence in their respective region, or, at the least, some avenue to apply directly to the Governor to have the policies revised. An oversight group, composed of representatives elected by the regional boards, should review policies and regulations no less often than annually to ensure that one region's regulations are not adversely affecting another region's subsistence and, as needed, to establish broad parameters in which the regional boards would operate.

    These recommended changes should enable local Alaska Natives to negotiate more reasonable regulations that are also more consonant with their traditional use patterns than is the case under the current circumstances. For example, instead of limiting fishing on the Seward Peninsula to a fixed beginning and ending time, a window of opportunity could be provided, with the limit set on the number of days an individual would be allowed to fish during that more extended period of time, thereby enabling those with limited resources to harvest their fish when the weather — and the government — permitted.

     

    C. Limited Entry

    The problems that have been created by the limited entry permitting program have been discussed often, and there is general agreement that the issue of limited entry can be seen as a textbook case of a good idea gone bad. Over the years, in far too many Alaska Native villages, the age-old passage of a work ethic and a vocation from one generation to the next has been severed, as the young grow up without any hope of having their own fishing vessel and their own independent business in the absence of a limited entry permit.

    Although the Commission cannot offer an easy solution to the problems that this program has created, solutions there must be, and the Commission does recommend that the State of Alaska establish a special task force with strong representation of Alaska Native communities to study this problem and propose ways in which the program can either be expanded to allow additional permits to be acquired or, alternatively, replaced with a program that accomplishes more effectively what the original objective of the program was while, most importantly, honoring Alaska Natives’ traditions and needs. An example of such a solution which is offered for consideration is the assignment of permits to Alaska Native village councils, for use by village residents only, neither to be sold nor removed from the village if the current holder leaves.

     

    D. Reindeer

    The Hagemeister island debacle, juxtaposed as counterpoint to the lingering controversy and legal threats that have surrounded the successful reindeer herding operation outside Palmer, illustrate the incapability of the government to respond reasonably to the continuing questions about reindeer management in Alaska. While requests of the Alaska Natives of Togiak were ignored and hundreds of reindeer shot and wasted on Hagemeister Island, a carefully managed and economically sound business venture involving Canadian-purchased reindeer has been ordered to liquidate because its owner is non-Native. Thus, while on the one hand destroying reindeer and turning a deaf ear to the mediating voice of Togiak Natives, the government proposes to destroy a business for the alleged reason of protecting Native interests. The irony is remarkable, yet those government agencies responsible for these two events proceed as if both actions made sense.

    Only a few years ago the Natives of Mekoryuk faced a similar dilemma, as their reindeer herd had grown to the size that it threatened the agriculture of Nelson Island, which led in turn to the United States Department of Agriculture’s threatening to destroy the herd. In that case, however, the assistance of the Alaska Department of Community and Regional Affairs was sought and obtained; funds were made available to complete a slaughterhouse; herd controls were imposed by the people of Mekoryuk; and the resource was not only managed but has been able to provide both food and cash income to the village. By comparing these two examples, it appears as though the Department of the Interior (and, perhaps, the Department of Agriculture) should review their policies regarding reindeer herding, offering assistance to tribes and Native groups long before a crisis situation is reached.

    The Commission also calls upon the Department of the Interior to look to its own responsibilities related to tribal consultation and working for and with Alaska Native villages (i.e., tribes) rather than against them. Moreover, the Commission urges all state and federal agencies to build and maintain a consultative process with local Native groups when problems such as those that occurred on Hagemeister Island arise, to ensure that a more simple, harmonious solution that is less damaging and more consistent with the needs and cultural traditions of Alaska Natives is not overlooked.

     F. A Myriad Issues

    This study touches lightly on only a small number of the myriad issues that prevail regarding self-determination, tribal governance, local control, permitting, and the many statutes, policies, and rules that regulate the taking of fish and game in Alaska, and by their inherent nature impact on the subsistence lifestyles of Alaska Native people. It is the hope of the Commission that Alaska Natives will not acquiesce to either the state or federal government in the management of fish and game in Alaska and that they will strive to organize their forces to counter the lobbies that have gained such power in Congress, in the state legislature, and among the boards -and policymaking agencies that now control hunting and fishing in the state. By pulling together and forming a united voice that represents Alaska Native needs, subsistence, cultural traditions, and the importance of resource management and harvesting to the future of the people and by voting to retain those who support Alaska Natives and remove those who do not, it will be possible to exert greater influence over the politicians and policymakers, to improve not only the situation regarding subsistence but all aspects of self-determination and self-governance.

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