Banishment is an order by a court or government entity directing a person to stay away from a specific geographic area. In Alaska, banishment by Alaska Tribes generally prohibits a person from entering or remaining in the tribal community, which are typically small—some only accessible by airplane, boat, or snow machine.
Sometimes Tribes banish people as part of a tribal protective order. Under federal law, Alaska and other states are required to enforce tribal protective orders as if the order had been issued by a state court.
Alaska law criminalizes the failure to comply with an Alaska protective order if one of seven specified provisions are violated. Violation of tribal protective orders, which are given full faith, and credit, is also criminalized. But the State of Alaska will not prosecute the violation of a banishment order that is a provision of a tribal protective order. The State contends that it only must prosecute people who violate one of the seven provisions of a tribal protective order that would also be a crime under state law.
As a result, Alaska Tribes must enforce the order with tribal law enforcement or other methods that do not require arresting the person who violated the tribal protective order. Most Alaska Tribes do not have police forces or jails for criminal enforcement so Tribes must use other methods.
This webinar discusses 1) enforcement options for Alaska Tribes, 2) potential risks and mitigation strategies for Tribes and tribal officials using those options, and 3) guidance on drafting tribal protective orders that are subject to state prosecution.