In the 49th state of the United States, home to legions of politicians who have complained for decades about what they call “federal over-reach,” Gov. Bill Walker has been slowly but steadily forfeiting state authority to the fed for political reasons.
As a result, attorneys for the state Department of Law defending a decision to leave a Western Alaska man illegally locked up in jail say it wasn’t the state’s fault; the man should have turned to the feds for help.
More on that later, but first some history. There are good reasons for the state to make nice with the feds. Historically Alaska has gotten far more than its share of federal revenue.
Back in 2005, it was getting back $1.84 for every dollar in taxes Alaskans contributed to the federal treasury. It then ranked third best in federal paybacks. But it is now down to 22nd and getting less than $1.50 per person.
With Congressional earmarks basically dead, how money gets dispersed is fully back in control of the vast federal bureaucracy. And while there are almost endless rules bureaucrats are supposed to follow in distributing government funds, there is no avoiding favoritism and what former Alaska Gov. Sarah Palin likes to call “crony capitalism.”
Human reality is that people treat their friends better than those they dislike. Walker clearly understands this, and he is a naturally friendly guy. Most politicians are.
This is a good thing for Alaska. It’s easier for a small, far-off state to increase the size of its slice of the federal pie by schmoozing with the feds, as Walker did so well with President Barack Obama and his administration, than by fighting them on over-reach.
Politics enters the picture, too, however, not just on the level of federal dollars, but on other levels unique to the north. Alaska was supposed to be the state where the ugly history of conflict between the continent’s European invaders of the 16th Century and the occupiers of America at the time came to an end.
In 1971, President Richard M. Nixon signed into law the Alaska Native Claims Settlement Act. The act was intended to satisfy the claims of Native Alaskans, the only unconquered aboriginal inhabitants in the U.S., to what was already the nation’s 49th state.
In effect, it was a second Alaska purchase. The U.S. government, having paid Russian $7.2 million for what became the territory of Alaska in 1867, agreed with Native leaders to give their people $962.5 million dollars and title to 44 million acres of land in the 49th state to settle their claims the Russians never owned that which it sold.
The settlement came as part of a complicated deal that split the state into 12 Native regions and created a 13th to which Native’s no longer living in Alaska at the time were to become part. The regions were then organized into regional corporations overseeing village corporations all of which were to find their way in the world of capitalism.
The settlement was a noble experiment that didn’t work so well. It did great things for some Alaska Natives. The 12 Alaska-based corporations are today among the biggest and most stable businesses in the state, and nearly all of them are either based in or led from Alaska’s largest city.
The best and brightest of Native leaders have flourished.
Rural Alaska, however, has not done so well. Poverty and dysfunction run rampant there. Recognizing the problems of the villages, the U.S. Department of the Interior in 1993 – 22 years after ANCSA – published a list of 220 communities it unilaterally declared “federally recognized tribes,” making them all eligible for American Indian assistance.
The list included almost every community off the Alaska road system. Ever since, many of those communities have tried to function with two governments: one tribal and elected under whatever rules the local tribe desires, the other state and elected under the rules established in the U.S. and Alaska Constitutions.
Chaos has sometimes ensued.
Enter the Western Alaska village of Togiak, a community of about 800 some 400 miles southwest of Anchorage on the northern edge of Bristol Bay.
It was there in early April that the Traditional Village of Togiak, the local tribal government, decided to banish 72-year-old Ronald Oertwich, the manager of the Airport Inn Bed & Breakfast and a white guy.
The tribe charged he’d brought alcohol into the village, which is legally dry. Oertwich could not be reached for this story. His attorney, David Henderson, ignored repeated messages left with a secretary in his office.
The Alaska Dispatch News, however, reported that Henderson claims the accusations against Oertwich are untrue, and that Oertwich never saw a legal order from the tribe charging him with anything, and that Oertwich never got any kind of hearing in court.
Alcohol is a big problem in Togiak as in many Alaska villages, and village leaders everywhere have fought back as best they can. In many cases, their answer has been to ban booze and to make the village “dry,” which hasn’t always worked so well.
Home brew, most of it bad and some of it vile, can be found in almost every dry village in the state. People who live in dry village regularly try to import something better either for themselves or resale.
A plastic fifth of R&R Whisky, which could be bought for about $10 a bottle in Anchorage in 2008, was going for as much as $300 in rural Alaska that year, The New York Times reported after visiting Bethel and chatting with an investigator for the Alaska State Troopers’ bootlegging team.
Many in Alaska contend the price at the time was over-inflated, but there is no doubt a lot of money can be made selling booze in rural Alaska where many people live in poverty and even a little money means a lot.
Oertwich is alleged to have shipped himself whiskey with the intent of reselling. For that, he was run out of town, but he came back. He decided he wasn’t deserting the business he was running or the community where he’d invested the last several decades of his life.
As a result of his refusal to leave, he was charged with trespass and locked up in the city jail without bail. His attorney couldn’t get him out and appealed to troopers for help. They did nothing.
Call the feds
“I believe it is inaccurate to say AST (Alaska State Troopers) said they couldn’t respond,” assistant Alaska Attorney General Cori Mills said in an email last week.
“…DPS (Department of Public Safety) recommended that the U.S. Attorney’s Office and the FBI also be contacted as an avenue for resolution. Since that time, we have been looking into the situation but the state needs to have a measured and appropriate response based on the evidence, as we do in any situation where there are allegations of criminal activity.”
Don Mitchell, the one-time general counsel for the Alaska Federation of Natives, called that hogwash.
“False imprisonment is a felony,” he said in an email…”When Henderson told the troopers that his client had been locked in a cage in Togiak, their response was ‘Not a problem we can do anything about.’
“I am fully prepared to bet dollars to donuts that wasn’t something they made up on their own. Rather, they were following a policy that had been communicated to them by Jahna (Attorney General Jahna Lindemuth) and Walt (Director of Public Safety Walt Monegan) at the explicit direction of Walker” and Lt. Gov. Byron Mallott.
Mallott, the son of a white businessman and Tlingit mother, grew up in the tiny community of Yakutat on the Gulf of Alaska just north of Panhandle. He rose to power as the director of the Sealaska Corporation, the regional Native corporation for Southeast Alaska.
A one-time president of AFN, he over time became disillusioned with the ANCSA model.
“After this first decade, our shareholders were beginning to question if this was really what it was all about,” he told one-time Alaska Native News reporter Sharon McConnell in a lengthy, 2001 interview published by the University of Alaska. “You know, a few dollars in the dividend, and most corporations pledged to hire shareholders, to train shareholders, and all of a sudden these huge expectations weren’t being met. At least, not in the way many people had dreamed. So, the reality began to set in, and that’s what I meant when all of a sudden I was, after 10 years, asking, ‘What’s going on here?’
“In terms of our governance, our tribal jurisdictions need some kind of land base in which to exercise their jurisdictions. Over time we’ll see a process of ANCSA corporations turning land over to governance institutions that are outside the corporations and the corporations will retain just those lands they can employ very aggressively in the business. I think that will be a powerful change in how governance in Alaska is exercised. I see tribal government growing.”
Mitchell, who has fallen out of favor with AFN since leaving as their general counsel, would argue that is now happening in a big way.
“…Can you imagine what the outcome for the state would be if someone called the troopers to report that his house was being burgled – another felony – and the response was ‘Not a problem we can do anything about because the Governor has told us not to get the burglars politically upset?'”
Politically, however, there has been almost no fallout for Walker over the Oertwich imprisonment. Aside from the report in the Alaska Dispatch News, the story was ignored by the mainstream media in Alaska.
KLDG’s David Bendinger added considerable detail to the case, reporting that “tribal police say (Oertwich) is a known bootlegger who was caught with 22 bottles of whiskey. Oertwich’s attorney says (his) client was falsely imprisoned for nearly a week, and duct taped and dragged to a plane.”
Tribal police, Bendinger reported, allegedly found the whiskey after writing up a tribal search warrant and going through a tote being shipped to Oertwich.
“‘The community ruled him guilty for importation of alcohol,’ tribal council president Jimmy Coopchiak told Bendinger. ‘It’s an Alaska statute, and it’s a felony, if you have more than 12 [bottles], it’s a felony under state law.’
“But Oertwich was never charged under state law, nor would a state prosecutor likely accept evidence collected under these haphazard methods that run contrary to every citizen’s fourth amendment rights against improper search and seizure.”
The KDLG story is worth a read for anyone interested in the problems of alcohol and drug abuse in rural Alaska, a vast area home to few people who ironically share many of the problems of inner-city America.
In an effort to make things better, some appear to have decided they’ll simply take the law into their own hands. Tribal court judge Anecia Kritz told Bendinger she has no doubt about the Togiak tribe’s legal authority:
“‘The tribe has the sovereignty and the power, both with written laws and unwritten laws. We’ve told him already, if you want to be a resident of Togiak, you abide by our laws. There’s both tribal laws and state laws.'”
Don’t look; don’t see
The state’s position seems to be the feds should sort this out.
The Walker administration has long been aware of villages deciding to take the law into their own hands. At a three-day conference in Fairbanks in August of last year, Walker, Lindemuth, Monegan and other state officials joined tribal leaders to talk about how to end bootlegging and domestic violence.
It was revealed there that some villages were searching whoever they wanted to search and banishing whoever they wanted to banish. The state made no attempt to stop that and offered no guidelines.
When queried in October about the village of Tuluksak upriver from the regional hub of Bethel on the Kuskokwim River in Western Alaska issuing its own search warrants to impose on anyone the village thought looked suspicious, Mills intimated that the state simply didn’t want to deal with the issue.
“The fact is that tribal authority is determined by federal law, not the state,” she emailed. “So as to what is permitted and what the exact documents referenced by the tribal entity are is not something we would have been involved in, nor insert ourselves in unless requested by law enforcement.
“The state has not taken a position on whether tribal courts have authority to issue the search warrants. And thus far, this issue has not been referred to us, and we are unaware of any challenge to the search warrants by an individual.”
As a practical matter, the state refusing to take a position on a legal matter is the same as saying the action is OK because if the state’s position is that it has no position, no one will be prosecuted.
All indications are this view on tribal authority has cemented Walker’s position in rural Alaska. That’s a big plus if you’re an Alaska politician.
Rural Alaska has traditionally voted as a block aligned toward anyone thought to be protecting rural interests. The late Sen. Ted Stevens, a Republican who brought federal money north by the supertanker load, was beloved in rural areas of the state, but state lawmakers from the region have generally been Democrats.
Of the five rural lawmakers in the state House, four are Democrats; both rural members of the Senate are Democrats. Walker is a former Republican who won election as an independent running with Mallott. Mallott started the race as the Democrat candidate for governor only to drop out in order to partner with Walker on an “independent” ticket.
In a state where race colors many things, the maneuverings of the Walker-Mallott team have since made some nervous. Lindemuth, a one-time attorney for Cook Inlet Region Inc., one of the state’s most influential Native corporations, is now in backroom negotiations with Ahtna Inc., another influential Native corporation, over a major land deal that could set a precedent for giving up state authority over historic transportation corridors that date back to gold mining days.
The so-called R.S. 2477 corridors criss-cross the state. Some contend loss of those corridors could forestall Alaska development for decades and believe the state is about to set a precedent by giving up the farm on the long-contested Klutina Road.
“While there is compromise in every settlement, we will ensure that the Klutina Lake Road is maintained for current and future generations,” Lindemuth wrote Rep. George Rausher, R-Sutton, in March. “At this point, the settlement negotiations continue, and the parties agreed to put the court case on hold for 90 days to see if a mutually agreeable settlement could be reached. By law, settlement negotiations are confidential. Therefore, I cannot go into the details of those discussions.
“What I can tell you is the State’s position has been and continues to be that there is a right-of-way on Klutina Lake Road, and that the public will have access to the river, lake and state-owned lands. There will be no settlement cutting off public access to those areas.”
The Alaska Outdoor Council, which lobbies for a cross-section of Alaska outdoor recreationists, fears that the settlement will be to forfeit management of the access road to the federal Bureau of Land Management, which already oversees an easement reserved under ANCSA.
Such a move would be in line with others made by the Walker administration, but the federal easement seriously restricts what can be done in the road corridor.
Mike Tinker, a spokesman for the Fairbanks-based Alaska Wildlife Conservation Association, said he has no faith in Lindemuth to protect the public interest of all Alaskans.
The Walker administration’s efforts to tribalize Alaska, he and others have noted, doesn’t affect just non-Native Alaskans; it affects all Alaskans. If the state gives up authority over the Klutina road corridor, the only winners are the approximately 1,700 Ahtna shareholders.
Every other Alaskan – Native, Asian, African-American or white – loses. And while there is little doubt that tribalization might give villages more control over their residents, the historical outcomes of tribalization have not been good.
The issue of giving villages more control might seem simple and sensible, but it has the potential to create huge problems in a state in a nation founded on the idea that certain truths are “to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
Maybe it would be better to let the feds handle it all.