In a new legal opinion, Alaska Attorney General Treg Taylor affirmed that the state cannot enforce tribal banishments from communities.
The analysis, published Aug. 1, means that the Alaska State Troopers and most other law enforcement agencies will keep their policing policies the same as they have in recent years.
“This doesn’t change any of the processes or protocols for law enforcement in Alaska, at any level,” Alaska Department of Public Safety spokesman Austin McDaniel said.
Taylor addressed the document to Alaska Department of Public Safety Commissioner James E. Cockrell, with a particular eye toward whether the 2022 reauthorization of the federal Violence Against Women Act (VAWA) merited any adjustments in the state’s obligations.
“You requested an opinion addressing the State’s responsibility, if any, to enforce tribal banishment orders — orders that exclude an individual from a village," Taylor wrote. “VAWA 2022 does not require the State to enforce banishment orders.”
Alaska Native communities have long used banishment as a way to protect themselves, particularly in small, rural villages with no organized police presence. Tribes in Alaska have the right to banish people deemed a danger to residents, whether from violence or bootlegging alcohol or other reasons. But enforcing those banishment orders is a different matter.
“State law does not authorize state officials … to enforce banishment orders," Alaska Deputy Attorney General John Skidmore said.
In particular, requests for state police or prosecutors to keep banished individuals out of towns or villages are not tenable under the state’s interpretation of the rules.
“Banishment conflicts with important individual rights protected by the federal and state constitutions,” Taylor wrote. “Banishment orders implicate more than just familial associations, they restrict a person’s right to travel within the state and may separate the person from his or her home or job. Given these considerations, it is unlikely that Alaska courts would uphold a condition that banished an individual from an entire community.”
Where the issue gets more complicated, though, is the state’s ability and willingness to enforce protective orders issued by tribes. An earlier opinion on VAWA compliance from 2015 concluded that because the federal law requires states to “give full faith and credit to protection orders” from tribes, troopers, prosecutors, and other state entities do have enforcement obligations. For that to happen, though, the tribe’s protective order has to be more narrow than a traditional blanket banishment from a whole community.
Taylor’s opinion reiterates the state’s position that under VAWA, it can get involved if a tribal protective order looks similar to the kind of restraining order an Alaska court would issue. That would mean provisions like “a reasonable length of time,” barring a person from “specific locations (e.g. buildings, parks, limited perimeters around certain addresses) within a village,” as well as requirements to keep an individual safe from someone else the tribe has deemed a threat to their safety.
There are plenty of other crimes and offenses that don’t fall under any of VAWA’s provisions, though, including bootlegging and selling drugs. And in those cases, the state will continue not to involve itself when banishments are issued by tribes.
“This … opinion continues business as usual for the Alaska State Troopers. We will continue to not enforce banishment orders,” McDaniel said.
The legal guidance applies primarily to Alaska State Troopers, as well as village public safety officers (VPSOs).
