As sovereign nations, Alaska Tribes decide how far their jurisdiction reaches. Jurisdiction is defined as “the extent of the power to make legal decisions and judgments.” Before a Tribe hears a case, it must first determine whether it has jurisdiction under tribal law. Tribal law may be written, like a tribal code or Constitution. Tribal law may also be unwritten customary law, recognized and interpreted by the Tribe’s governing body. Tribal law may authorize a court system to hear cases, or may empower the Tribal Council, an elders panel, or some other body to hear cases.
A Tribe’s definition of its own jurisdiction may or may not be the same as the scope of jurisdiction recognized by the State or United States government. State or federal recognition may come into play if a Tribe or tribal citizen seeks state or federal assistance to enforce or defer to a tribal court order.
Under federal Indian law, tribal jurisdiction = tribal authority over the type of case and the people involved. It is not necessary for the location of the people or incident to be within the village or tribal community, but it will affect the way the U.S. sees the Tribe’s jurisdiction if it is within the village.
Type of Case
All Alaska Tribes have constitutions or codes that describe the authority of their judicial system, and what types of cases it can take. Start there to understand what the tribe allows its own judicial system to do.
In the 2022 Violence Against Women Act Reauthorization Act, Congress recognized and affirmed for Alaska Tribes “the inherent authority of any Indian tribe occupying a Village in the State to exercise criminal and civil jurisdiction over all Indians present in the Village.”
Civil jurisdiction covers all cases that do not involve detaining someone as a punishment. These cases are brought by individual people against other people or entities. This includes custody cases, child protection, and domestic violence protective orders. It covers any cases affecting tribal citizens and their ability to self-govern.
Criminal jurisdiction covers cases where the tribe may punish someone by detaining them. The tribal government brings these cases on behalf of the Tribe and its people, and can use tribal police to bring someone to court. These cases can include detaining someone for bringing illegal substances into the village, assaults, or other violence.
The State of Alaska and Alaska Tribes have overlapping (aka “concurrent”) authority to hear cases involving tribal children, other family law issues, domestic violence, other civil issues, and certain offenses.
Typically, the court that starts a case will retain jurisdiction over the case unless it is transferred to another court. For example, if a Tribe starts a child protection case, the state can then only initiate a new case for that child if the Tribe agrees to allow the state to take over the case. If the state has jurisdiction over children in a child protection case (called “Child in Need of Aid” cases in Alaska state courts), the Tribe will not start its own case without there being a formal transfer to tribal court.
Many Alaska Tribes have governing documents describing the types of people who fall under their judicial authority. Again, start there.
The U.S. recognizes tribal jurisdiction, civil and criminal, over a Tribe’s own citizens and tribal children.
For domestic violence, the U.S. recognizes that the tribe has civil jurisdiction over anyone, tribal citizen or not, when the incident happened within the Village.
The U.S. may also recognize civil jurisdiction over someone who is not a tribal citizen and not within the village when the case affects the health, safety, and well-being of tribal citizens and their ability to self-govern.
The U.S. does not recognize tribal jurisdiction over criminal matters involving a person who is not a tribal citizen, unless the Alaska Tribe becomes part of the new VAWA Pilot Program and the crime involves domestic violence or sexual assault.
The location of the people or the incident does not have to be in the village for the tribe to have jurisdiction, but if they are in the village, there is less dispute about jurisdiction if someone in the case raises an issue in a State or U.S. court.
Tribes have the inherent authority to exercise civil and criminal jurisdiction over all Indians present in the village. The village boundary is defined as the Alaska Native Village Statistical Area found on maps of the U.S. Bureau of Census.
The state and federal government may still recognize tribal civil jurisdiction over its own citizens, or over cases affecting its citizens or its ability to self-govern, when the person is not within the village.
Type of Case + People Involved = Tribal Jurisdiction
If the Tribe determines that it has jurisdiction over the type of case AND the people involved in the case, then the state and federal governments will recognize tribal jurisdiction.
If the location of the people or incident is in the village, recognition by the U.S. is more likely, though not guaranteed.
If your Tribe is seeking legal advice on whether it has jurisdiction in a case, you can contact a law firm that specializes in tribal governance, or if the Tribe lacks funds for private counsel, your local office of Alaska Legal Services.