From his home in rainy Ketchikan near the southern end of the Alaska Panhandle, former Alaska Commissioner of Public Safety Dick Burton watches the slow but steady tribalization of the 49th state and wonders what is to become of the land he loved.
Now 80 years old, Burton’s association with Alaska law enforcement stretches back to territorial days. He was commissioner under two very different governors – greenie Jay Hammond, the self-proclaimed “Bushrat” from a homestead in the wilderness on the shores of Lake Clark, and Wally Hickel, the brash developer who helped rebuild Anchorage after the Good Friday earthquake and dreamed big of a future state where business thrived.
Both, however, saw Alaska as a unified, multi-ethnic entity where Alaskans of all shapes, sizes and colors battled their way forward to a future they could all agree on even if it was never perfect. And today, Alaska is splitting into two states – one urban, middle class, diverse and governed by the laws that prevail most everywhere in the United States; the other poor, rural, Native and starting to be governed by its own set of laws.
As the state’s top cop under two governors, Burton admits he was concerned when Togiak, a Native village in far Western Alaska, earlier this year held a 72-year-old white man hostage for days alleging he was illegally selling booze before duct-taping him, loading him onto an airplane and flying him out of the village after a mock trail at which the community voted him guilty.
“Why in the hell didn’t the (Alaska State) Troopers respond to it?” Burton asked in a telephone interview this week. “It’s kind of like if my city council in Ketchikan decided to kick me out.”
Burton has only become more concerned about the situation in the wake of a statement by the Alaska Attorney General that she is going to ignore these sorts of actions.
“We recognize that it presents constitutional challenges,” AG Jahna Lindemuth told the Alaska Dispatch News last week. “But I don’t think it’s the state’s place to approve or disapprove of anything.”
For better or worse, Burton said, the reality is that it’s the state’s job to do the opposite, to address “constitutional challenges,” sort them out, and ensure the state has a uniform set of laws that apply to everyone. He is not dead set against what is called “banishment.” He started his law enforcement career in 1961 in rural Dillingham, not far from Togiak, and well recognizes the difficulties villages face.
But he believes it is the state’s job to oversee the evolution of law enforcement in Alaska, not follow along with whatever develops.
To understand how Alaska got here, you have to go back to the Alaska Native Claims Settlement Act of 1971, a law intended to settle aboriginal claims to title of all the land in the north and sidestep the reservation system that proved a failure in the Lower 48.
The Claims Act was a settlement negotiated by Alaska Native leaders of the ’60s and the U.S. government. As with all negotiated settlements, it was imperfect, quite possibly one might argue now because it looked to the future far more than the past.
The Claims Act was intended to aid Alaska Natives in transitioning into a modern world ruled, for better or worse, by the capitalist economic system.
Forty-six years later, the Claims Act has, in some ways, proven hugely successful. Most of the 12 regional Native corporations and some of the more than 200 village corporations it set up and seeded with nearly $1 billion are doing well, some very well.
There have been bumps along the road. Some of the corporations once teetered on bankruptcy, and the late Sen. Ted Stevens had to help them out with federal legislation that allowed the sale of losses to other corporations as tax write-offs to raise cash to survive.
Still, the corporations with their approximately 75,000 shareholders were stable by the 20th anniversary of the Act, the University of Alaska’s Institute of Social and Economic Research (ISER) reported:
- Thanks to the post-ANCSA acquisition of some timber and oil lands through negotiations and Congressional amendments of the Act, the regional corporations – which are bound to a resource-revenue sharing agreement under ANCSA – had netted $363 million in resource revenues.
- Net-operating-loss (NOLs) sales had produced another $445 million.
- And investments in stocks and securities had produced $439 million.
Some of the corporations started businesses that found success, but others began businesses that failed. There were business losses totaling $352 million, but overall the ISER report concluded, the corporations were doing OK.
On the business front, things have only gotten better in the years since. The corporations diversified, took advantage of another federal law that favored them in contracting with the federal government, opened subsidiaries Outside, and began to thrive. The high-rise corporate headquarters that today dot Anchorage are testaments to their success.
According to the rankings compiled by Alaska Business magazine, 8 of the top-10 biggest companies in the state are Native corporations, and 14 rank among the top 20.
None of these companies are based in rural Alaska, however. The state’s rural-urban divide is as obvious within the Native community as it is within the community of all Alaskans.
Some saw this coming.
Thirty years after the act, Emil Notti – a key participant in the negotiations who went on to become the state Commissioner of Community and Regional Affairs and a senior vice-president for a regional Native corporation, was asked how the act changed things.
“It changed the Native people,” he said, “because Native people had to change. We had no choice in that issue. As the population of Alaska grows, we’re going to have a million Native people and so we’ll become a much smaller minority in the state. We have learned to function in the economy and we’ll have to continue to do so. We still have 80 percent unemployment in many of the villages. We need to get the employment up in those villages.”
Employment hasn’t, however, gone up in the villages. Most of them still have no economies.
What has gone up in a lot of rural Alaska is the sense of resentment of urban Alaska and the state’s many Gussucks,
All of which is perfectly understandable. Alaska has now spent billions of dollars trying to help rural parts of the state, but the help has come mainly in the form of nice, new schools with predominately white teachers who educate children to prepare them for jobs that don’t exist in rural Alaska.
A lot of the kids move away. Many of them never come back. State demographers have documented a steady flow of rural Alaskans into the state’s Railbelt Area where most of the jobs are to be found.
When villagers at home see people from urban Alaska, they are too often visiting teachers, troopers flying in to arrest someone, or those with money arriving with fishing gear or firearms in hand and plans to take out the fish and wildlife locals consider part of their larder. It would be enough to frustrate anyone.
And meanwhile, rural Alaska struggles badly with a lack of local policing and the social problems that tend to go hand-in-hand with poverty in America.
“Rural Alaska has the worst crime statistics in the nation’s Native American communities — and the country. Alaska Native communities experience the highest rates of family violence, suicide and alcohol abuse in the United States: a domestic violence rate 10 times the national average; physical assault of women 12 times the national average; and a suicide rate almost four times the national average. Rape in Alaska occurs at the highest rate in the nation — three times the national average,” the Washington Post reported three years ago.
Some of the communities facing these sorts of problems see tribalization as the solution. They want to become mini-reservations within the state of Alaska where they can dictate their own laws and mete out their own punishments.
Burton, who helped set up the state’s first tribal court on Annette Island in Southeast Alaska back around the time of Statehood, thinks the idea of villages taking responsibility for local policing is a good one, but sees problems with the tribal model.
For one thing, he said, the state can’t deal with almost 150 independent nations within the nation creating their own laws, and for another, he believes Lindemuth’s confusion about the legality of this is simply wrong. The latter view is shared by Don Mitchell, the former legal counsel to the Alaska Federation of Natives.
“Lindemuth and her attorney elves at the Department of Law know as well as I do that there are no such challenges because the U.S. Supreme Court has squarely ruled three times that within the boundaries of a real Indian reservation a real ‘federally recognized tribe,’ such as the Navajo or the Ogala Souix has no jurisdiction – either criminal or civil – over nonmembers of the tribe, and that includes Indians who are physically present within the boundaries of the reservation, but who are members of a different tribe,” he emailed.
“Nevertheless, after being informed of what was happening in Togiak, Lindemuth – and I assume also (Gov. Bill) Walker and (Public Safety Commissioner) Walt Monegan) – decided to let Ron Oertwich, who they knew was a gussuck, sit out there locked in a cage for almost a week.”
The Walker/Mallott administration holds a distinctly different view of the situation.
“The state interacts with tribes on a sovereign to sovereign basis,” Marianna Carpeneti, a Department of Law spokeswomen emailed. A sovereign is a self-governing state.
“The sovereign authority of indigenous tribes has always included the right to police criminal activity,” Carpeneti said. “However, with any state action, the Alaska Supreme Court has been clear that any action by tribal government must comport with the requirements of due process.”
She went on to offer a bunch of gobbledygook about how “a banishment order is different from a notice evicting a person from tribal housing, which is different from a protective order issued by a tribal court,”and how “it is important to note that, at this point, the state has not been asked to intervene in a banishment case.”
Both Oertwich and his attorney say they asked the state to intervene, but nothing happened.
Good sheriff, bad sheriff
Small-town politics – whether in an Alaska village or in the American Heartland – can get ugly. Things are a lot like in the movie world of the American Western. Everything is fine when the good sheriff is running the show, but things can go to hell fast when the rich/powerful dude (rancher, miner, profiteer, corporate overlord) buys the bad sheriff.
Some retired Alaska State Troopers tell horror stories about rural villages taken over by the bad side. They paint a very complicated picture. Some talk of villages run by bootleggers who plied their fellow citizens with booze to get them to vote to keep the villages “dry” because legalizing alcohol would cut into the profits of their bootlegging businesses.
“Everyone knew the local elder who’d molested and raped his daughters and granddaughters for decades until he was arrested for touching another family’s girls; after four years in jail and another half dozen or so at a cabin downriver, he was back on the village tribal council,” Sara Bernard wrote in a 2014 story for The Atlantic Magazine headlined “Rape Culture in the Alaska Wilderness.”
When the good sheriff-bad sheriff analogy is repeated to Burton, his only response is that “it’s worse than that.”
Sometimes, he said, there is no law enforcement good or bad because the local village public safety officer (VPSO) finds himself caught between dueling political entities – the city government with one set of elected officials and the tribal council with another set of officials. This kind of political overload is common in Alaska villages.
After Burton quit the Alaska Police Standards Council, he said, he wrote Walker a three-page letter detailing all the things he thought wrong with policing in rural Alaska – all the things that contribute to that “rape culture” Bernard wrote about and the crime the Washington Post reported.
“I never heard from him,” Burton said. “Walker has no idea, and he won’t listen.”
The Walker administration’s approach to the policing problems of rural Alaska, it would appear, has been to forfeit a significant degree of its responsibility to villages. When Assistant Attorney General Cori Mills was last fall asked about reports that the tribal council for Tuluksak, a village along the Kuskokwim River, was issuing search warrants without any legal authority, she explained state inaction this way:
“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.
“Additionally, with the current level of resources at the department, we are already having to decline cases for prosecution, so we are prioritizing matters that have the greatest impact on public safety. This isn’t directly relevant to your question but just wanted you to know where things stand in terms of resources.”
Such a position, Mitchell and others have observed, is nothing less than an invite to those in power in rural villages to do whatever they wish.
As Togiak did.
The Togiak case
In March of this year, Togiak political leaders accused 72-year-old Ronald Oertwich of bootlegging alcohol and ordered him out of the village. A three-decade resident of the Bristol Bay community, Oertwich is white and in Togiak that makes him a minority, one of fewer than 50 Caucasians living in the predominately Native community of about 850.
Oertwich left as ordered, but then returned. Village leaders grabbed him and held him hostage for six days before finally shipping him out of town. They claimed Oertwich was a known bootlegger caught with 22 bottles of whiskey. But he was never convicted of anything.
Anecia Kritz, a Togiak tribal judge, told KDLG radio reporter Dave Bendinger that Oertwich and 18 others thought to be bringing alcohol or drugs into the dry village had been warned.
“When we warned him, we told him that tribal court will not take this case, but the community court will,” she said. “He was found guilty from the community, and their wishes were to banish.”
“The court order blends tribal code and state statute as it describes the case against Oertwich,” Bendinger later wrote. “The first order is signed by five tribal court judges, but says the community members issued the verdict and the banishment order.
“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.”
In the wake of the Oertwich banishment, Mills – the department of law spokeswoman – again begged off with the excuse the state was too busy to dig deep into the Togiak case, but she added this in an August email:
“Criminal Justice in rural Alaska is difficult, and we are constantly trying to work on ways to improve that. Although a memo has not been sent out to all tribes, we have committed to providing more education in rural communities. This takes time with stretched resources, but we believe that it will provide local communities the tools necessary to work within the bounds of the law and the constitution but also empower them to address public safety issues in a lawful manner in partnership with the state.”
Her boss now appears to have abandoned that idea in favor of the position that it’s not “the state’s place to approve or disapprove of anything.”
This would appear to be her answer to David Henderson, Oertwich’s now former attorney, who told Bendinger this:
“There’s either rule of law or there isn’t in the state of Alaska….They (the state) were on notice before I got involved for Mr. Oertwich. He contacted them and said ‘What do I do?’ They said, ‘We won’t get involved.’ And then when Mr. Oertwich tried to go back home to where he lives, he was arrested and then the state was put on notice the next day again and asked to intervene. [They] were told that he was being held unlawfully and in jail with no charges, that he was a non-tribal member, and they ignored it. They did nothing.”
Oertwich, who has now moved to Oregon to live with relatives, has a simple, two-word explanation for his problems in Togiak: Jimmy Coopchiak.
Coopchiak is the president of the Traditional Council of Togiak, and was one of those involved in a search after the tribal police were told Oertwich had been shipped a “suspicious tote.” The tote is alleged to have contained the whisky hidden in loose dog food.
“He had, like I just showed you, a tote full of 22 bottles of R&R, and a stolen shotgun in his possession,” Coopchiak told Bendinger when the reporter visited Togiak in April.
In a lengthy telephone interview this week, Oertwich suggested he was setup, and said Coopchiak had a motive besides the two men not much liking each other.
“I owned a business there,” Oertwich said. “I managed a bed and breakfast. The local corporation bought a house and started their own B&B. They started building their own business.”
Oertwich pointed to a 30-year career in the hospitality business and an established list of customers dating back to when he helped the Togiak Native corporation start a sport-fishing business in the 1980s. He suggested the easiest way to deal with competition was to get rid of it.
Oertwich pointed at Coopchiak as the engineer who started the railroad that ran him out of Togiak.
“Traditionally,” Oertwich said, “people there don’t buck authority.”
Once Coopchiak declared someone should be banished, Oertwich said, it was pretty much a done deal. He admits he and Coopchiak haven’t gotten along for a long, long time.
“He’s still pissed off that Russia sold Alaska to the United States,” Oertwich said. “They treat it like Togiak is a reservation. That’s what they do, but they have no land. Their only authority is as a municipality.”
Oertwich, it must be noted, is no choir boy. State records show he was convicted of drunk driving in 2009 and supplying alcohol to a minor in 2005. The same records indicate he was once accused of threatening another man and a couple ex-wives. He has some guiding violations from back in his sport fishing days. And he hasn’t always paid his bills.
Any or all of those things might give his neighbors reasons to dislike him, but there are no legal standards under state law to banish him. Arrest him if he broke the law; try him; convict him and send him to jail, yes.
Banish, no. But banished he was.
Oertwich is a long way from Togiak now and probably not going back.
“I miss Togiak as far as being there,” he said. “I had some close relationships there.” But when reached by telephone, he’d just returned from a grandson’s soccer game in Oregon, and admitted it was good to reconnect with family in the Lower 48 states that had for years been faraway.
He sounded in some ways relieved to be away from rural Alaska, a beautiful place where when life is good it is very good but where things can also get very difficult, very complicated and very divisive.