Authors:Sarah Edwards Abstract: As artificial intelligence becomes increasingly commonplace, we are all exposed to shockingly dystopian forms of surveillance. This Note details the unique danger of facial recognition technologies powered by artificial intelligence. First, this Note examines the rise of facial recognition technologies in both the public and the private sector. It illustrates this phenomenon by highlighting a few key players in both the development and implementation of facial recognition. Second, it proceeds by examining the current privacy landscape in Alaska. Alaska's unique focus on privacy rights makes the State a promising forum for regulation. Finally, it provides possible statutory and judicial solutions to stop the spread of these technologies and secure the privacy rights of Alaskan citizens and visitors. PubDate: Thu, 23 May 2024 07:48:03 PDT
Authors:Allyson Barkley et al. Abstract: In the spirit of democracy reform, Alaska recently adopted a jungle primary and ranked choice voting electoral system for all state-wide elections. In Kohlhaas v. State, the Alaska Supreme Court upheld this reform against numerous state and federal constitutional challenges. While doing so, the court avoided rigid constitutional interpretations that would have frozen the electoral system in its current first-past-the-post state. Moreover, the court refused to credit the plaintiff's speculation about the hypothetical malign effects of ranked-choice voting, placing the burden to produce hard evidence of their critiques on RCV's opponents. Alaska can serve as a model for other states, as those states increasingly consider adopting electoral reforms of their own and must interpret similar state constitutional language. PubDate: Thu, 23 May 2024 07:48:03 PDT
Authors:Sam Turner Abstract: A report by Women Lawyers On Guard, entitled "Still Broken," reported the results of a 2019 survey about sexual harassment and misconduct in the legal profession. It concluded that issues relating to sexual harassment and misconduct in the legal profession had not improved in the past thirty years. This Article looks at the Alaska Rules of Professional Conduct's rule regarding harassment and discrimination by lawyers and argues that the rule does not sufficiently address workplace harassment by lawyers.Alaska Rule of Professional Conduct 8.4(f), enacted in 2021, prohibits harassment or invidious discrimination by a lawyer "in the lawyer's dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm" only if "the lawyer's conduct results in a final agency or judicial determination of employment misconduct or discrimination." But the nature of employment discrimination law and harassment in the legal profession means that very few instances of workplace harassment will result in formal findings by an agency or court.The Article therefore recommends Alaska Rule of Professional Conduct 8.4(f) be amended to prohibit harassment or invidious discrimination "in the lawyer's dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer's firm"—subject to normal bar disciplinary proceedings and without any requirement of findings from an outside agency or a court. The Article also recommends adding a comment to the rule stating that firms, or at least large firms, should have and regularly disseminate an anti-harassment policy. PubDate: Thu, 23 May 2024 07:48:02 PDT
Authors:Gloria R. Jacobsen Abstract: For decades, the United States Department of the Interior's land acquisition regulations included an "Alaska Exception" that barred acquisition of land into trust in Alaska apart from those acquisitions made for the Metlakatla Indian Community. Although the "Alaska Exception" was initially removed from the regulations in 2014, the fight continues over land-into-trust acquisitions within Alaska. Throughout these debates, the state of Alaska has consistently opposed land-into-trust acquisitions. This Practitioner Guide provides an overview of the recent history of land-into-trust acquisitions in Alaska and analyzes the juxtaposition of the intent behind Alaska's "State Recognition of Tribes" in House Bill 123 and the continuing state opposition to land-into-trust applications. Specifically, this Practitioner Guide argues that, without state collaboration and cooperation with Tribal Nations on land-into-trust issues, House Bill 123, which was meant to signify "the State's desire to foster engagement with Alaska Natives and tribal organizations," ultimately rings hollow. PubDate: Thu, 23 May 2024 07:48:02 PDT
Authors:Sam Spiegelman Abstract: Susette Kelo's old house in New London, Connecticut is long gone, as is the entire Fort Trumbull neighborhood that once surrounded it. In 2005, the U.S. Supreme Court decided a case—Kelo v. City of New London—that cost her and her neighbors their homes and sparked a wave of state-level reforms to mitigate its potential damage to private property. In Kelo, the Court held that "economic development" as a "public purpose" was also a legitimate "public use" under the Fifth Amendment's Takings Clause, which provides "nor shall private property be taken for public use, without just compensation." As Justice Clarence Thomas noted in his dissent: "If such 'economic development' takings are for a 'public use,' any taking is, and the Court has erased the Public Use Clause from our Constitution." The risks to private property this approach presents are at their greatest when governments stretch the meaning of "blight" to essentially cover anything that impedes public progress, whatever lawmakers themselves conceive that to be.This Article discusses the last roughly two decades of public-use jurisprudence and places Alaska's response to Kelo in conversation with other states'. In places like New York, Arkansas, and Massachusetts, Kelo and other Supreme Court precedents have together swung state-level precedent on the topic too far in government's favor. There, owners largely bear the burden of proving that the government has no good (or even decent) reason for condemning their properties.On the other end of the spectrum, states including Florida and Michigan have read "public use" much more narrowly—and in a manner that far more closely reflects the original public meaning of the Takings Clause. The piece concludes with an exploration of recent efforts to expand the definition of blight in Alaska, and a discussion of judicial and popular means of protecting the status quo—or better yet improving upon it—in the fortunate event that Alaska's legislature does not redefine "blight," as some lawmakers have threatened in the recent past. PubDate: Thu, 23 May 2024 07:48:01 PDT
Authors:Jake Sherman Abstract: Alaska's unorganized borough is the only unincorporated county-equivalent area in the entire United States, but the Alaska Constitution never envisioned that would be the case. The framers of the Alaska Constitution drafted a revolutionary article on local government that prioritized localism—participation in local government—to further democratic engagement in the state. Recognizing that much of rural Alaska lacked the population and infrastructure to support incorporated and localized self-governance in the 1950s, the framers opted not to automatically incorporate the entire state under various borough governments. Even so, the framers made clear that the state was to play an active role in encouraging (and even compelling) the incorporation of rural sections of the state as time progressed.Today, many sections of the Alaska's unorganized borough eligible for incorporation remain unincorporated, resulting in a number of adverse governance outcomes for rural and urban communities alike. This Note argues that Alaska maintains a positive obligation to incorporate eligible sections of the unorganized borough and that its failure to do so is unconstitutional under the state Constitution. Acknowledging the potential dangers of imposing local government on non-consenting citizens, this Note also articulates why borough governance may further the Alaska Constitution's localism mandate by developing the regional political communities envisioned by the framers. PubDate: Fri, 22 Mar 2024 12:28:17 PDT
Authors:Joe Perry Abstract: In the past several years, Alaska has faced many challenges in its public education system. These challenges gave rise to an intense political debate, significant new legislation, and a protracted battle over the future of funding for public education. Governor Mike Dunleavy and the state legislature publicly clashed over the implementation of H.B. 287, a 2018 state law designed to provide financial stability to ailing schools and curtail teacher layoffs. In 2022, the Supreme Court of Alaska resolved the dispute in favor of the governor and found a contentious piece of state legislation unconstitutional under the states "Dedicated Funds Clause." This Note examines the Court's decision in State v. Alaska Legislative Council, considers the underlying constitutional issues in the case, and explores the implications of the ruling. In particular, this Note argues that the Court incorrectly decided the case on multiple grounds—misinterpreting the plain text of the relevant constitutional provisions, the framers' intent, and the court's own precedent in a decision that will exacerbate existing troubles with public education in the state. The proper interpretation of the Dedicated Funds Clause matters for legislators, government agencies, teachers, parents, and children in Alaska going forward. PubDate: Fri, 22 Mar 2024 12:28:16 PDT
Authors:Morgan Pettit Abstract: This Note addresses the myriad of legal and regulatory barriers new mining projects face in Alaska at present. These barriers have become increasingly important at a time when the United States has sought to bolster its domestic mineral supply chain. With over 100 newly located critical mineral deposits, Alaska may be the best place in the United States to establish further domestic sources of critical minerals. By streamlining the regulatory process at both the federal and state level, Alaska can better (1) protect domestic supply chains from global disruptions; (2) maximize the economic benefits of meeting increased global demand for these minerals; (3) contribute to a global energy transition towards clean and renewable energy sources; and (4) balance important local environmental policy concerns against global policies addressing climate change. This Note provides an overview of the regulatory landscape at present and outlines proposed reforms for the future. PubDate: Fri, 22 Mar 2024 12:28:16 PDT
Authors:Elza Bouhassira Abstract: The North Pacific Right Whale (NPRW) is perhaps the rarest, most endangered large whale species in the world. Only about thirty surviving individuals make up the eastern population, which lives in waters around Alaska. This note aims to highlight the crisis facing eastern NPRWs and the steps that can be taken to support the recovery of this rare whale. The paper first presents information on the history of the species and its importance. It next examines existing international and domestic U.S. legal regimes as well as a pending petition to revise NPRW critical habitat off of Alaska. Finally, it advances six recommendations to support the eastern NPRW's recovery: (1) more data collection should be facilitated; (2) the precarious situation of the NPRW should be shared to raise public awareness and support for protection measures; (3) the critical habitat designation should be expanded, but to a lesser extent than the petition has requested; (4) a whale-ship interaction risk reduction regime should be adopted; (5) whale-friendly fishing gear should be widely adopted; and (6) commercial whaling must remain illegal. It argues that with the right protections, eastern NPRWs can avoid extinction. PubDate: Fri, 22 Mar 2024 12:28:15 PDT
Authors:Mitchell Forbes Abstract: The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes' sovereign powers. PubDate: Wed, 17 May 2023 15:01:18 PDT
Authors:Melissa Gustafson Abstract: The Indian Child Welfare Act (ICWA) requires the testimony of a qualified expert witness to support, beyond a reasonable doubt, the termination of parental rights in cases involving Native children. Initially, Congress expressed a preference for qualified expert witnesses to possess intimate knowledge of Native tribes' childrearing norms and practices. However, the permissive language of the 2016 Regulations has deemphasized this preference. Instead, the Alaska Supreme Court has interpreted the 2016 Regulations as requiring an expert to be qualified to testify about the mental, emotional, and physical wellbeing of children, therefore requiring formalized education in these areas of study. This has disqualified many Native witnesses who previously testified as experts based on their firsthand experience and knowledge of tribal norms. This resulted in many parental termination decisions being appealed, and eventually overturned, therefore increasing the time a Native child must wait to achieve permanency through adoption. As the nation awaits the U.S. Supreme Court's ruling on the constitutionality of ICWA's placement preferences, Alaska's interpretation of the 2016 Regulations continues to prevent Native children from achieving permanency. The 2016 Regulations have permitted the Alaska Supreme Court to return to the standard it created under the 1979 Guidelines—a categorical determination that numerous ICWA termination hearings do not require expert cultural witness testimony.State v. Cissy A., a recent Alaska Supreme Court decision, marks yet another change to the expert witness requirement. Cissy A. provides a return to ICWA protections that adequately encourage and respect tribal cultural norms and increase positive outcomes for Native children. However, this case is only a starting point. As such, this Note suggests that Alaska's legislature should adopt its own state ICWA protections to better integrate Native voices in the parental termination process. In addition, this Note identifies and discusses concerns that lingered in Cissy A. and proposes ways these concerns could be addressed in the state ICWA provision. PubDate: Wed, 17 May 2023 15:01:17 PDT
Authors:Hannah Rogers Abstract: Alaska is one of the premier cruise destinations in the world. The vessels' many amenities and luxuries, however, come with a price: cruise ships produce an inordinate amount of waste, most of which is dumped into the ocean. In 2006, Alaska voters passed a ballot measure establishing a program called the Ocean Rangers, which would monitor cruise ships in Alaskan waters to ensure that vessels were disposing of waste in accordance with state and federal law. In 2019, after an unsuccessful attempt in the state legislature to end the Ocean Rangers program, Alaska Governor Mike Dunleavy vetoed the entirety of the Ocean Rangers budget, effectively killing the program. This Note contends that because a ballot measure created the Ocean Rangers, Governor Dunleavy's veto likely violated the Alaska Constitution. First, this Note discusses the environmental risks of unregulated dumping and the cruise industry's historical lack of transparency in its waste management. Then, this Note distinguishes the Ocean Rangers veto from vetoes of other statutory program budgets in Alaskan case law. Next, this Note explains Alaska's constitutional protection of initiatives that were enacted directly by voters and argues why Governor Dunleavy's budget likely violated those protections. Finally, this Note postulates how potential litigants seeking to reinstate the Ocean Rangers could bring a case in state court under a citizen-taxpayer theory of standing. PubDate: Wed, 17 May 2023 15:01:17 PDT
Authors:Connor Sakati Abstract: Many Alaskan salmon fisheries are in distress, threatening fishers' livelihoods, food sources, and cultures. This crisis—and the few, blunt tools managers possess to address it— reveals that the current state and federal legal framework for salmon management is inadequate to protect fisheries' health and preserve fishers' livelihoods, especially as the ocean warms and the distribution of species within it significantly changes. First, the current framework's regulatory tools, designed to combat human overuse of a single species, are poorly tailored to mitigating this multicausal, ecosystem-wide crisis. Current science indicates marine heatwaves, habitat degradation, and human use may be major culprits of salmon population decline, whereas existing fisheries management tools are largely designed to handle overharvesting and pit users against one another. A better framework would expand the toolset managers have at their disposal to combat these broader, ecological threats. Second, the tools managers do have within this framework impose the heaviest regulatory burdens on the poorest and most vulnerable, unfairly allocating the costs of managing a changing resource pool. Existing management tools often disproportionately burden the fishers who most directly rely on salmon to feed their families and support their communities. Moreover, as the ocean warms, fish habitats will shift and fish populations may even shrink overall. The users directly reliant on the fishery—subsistence fishers, small-scale fishers, businesses in rural villages, and Alaska Natives—are most vulnerable to changes in the resource stock itself. To protect these groups, a better framework would blunt regulatory tools' impacts on these groups. PubDate: Wed, 17 May 2023 15:01:17 PDT
Authors:Danika Watson Abstract: Until 2022, all but one of the 229 Alaska tribes were barred from special domestic violence criminal jurisdiction (SDVCJ): Congress's jurisdictional tool for tribal courts to address domestic violence and hold perpetrators of violence against Alaska Native women criminally accountable. The reauthorization of the Violence Against Women Act (VAWA) in 2022 brought SDVCJ to Alaska's rural Native communities. This landmark achievement was made possible by decades of advocacy from Alaska's tribal, state, and federal leadership. In the wake of VAWA 2022, Alaska tribes and tribal justice systems face several significant legal, political, and cultural challenges. This Article outlines the legal and practical issues Alaska Native tribes face when implementing SDVCJ. To do so, this Article includes an overview of tribal jurisdiction under VAWA and Alaska Native tribes' inclusion in VAWA 2022. This Article explores the lessons learned from the Lower 48 Tribes Accelerated Pilot Program, which was an accelerated pilot project that permitted specific tribes to begin exercising SDVCJ more than a year before the law was implemented for all tribes, and considerations based on Alaska's ongoing public safety and domestic violence crisis, community needs and standards, and unique tribal law enforcement context. The Article also discusses how Alaskan tribes moving towards implementing SDVCJ in their courts may create Native-led, trauma-informed judicial processes for domestic violence survivors and communities in partnership with existing resources from Alaska Native-led civil organizations while including lessons learned from the Lower 48 Tribes Accelerated Pilot Program. PubDate: Wed, 17 May 2023 15:01:16 PDT
Authors:Adam Beyer Abstract: The Alaska Constitution creates a unique promise for those convicted of crimes. In Abraham v. State, the Alaska Supreme Court held that article I, § 12 grants offenders a "right to rehabilitation." Such a right is uncommon; few states, if they have similar protections at all, have labeled it a right. In the years since Abraham, the Court has occasionally addressed claims invoking the right, making clear that its decision was not an aberration. The court's most thorough examination of the right occurred this term in Department of Corrections v. Stefano. This article seeks to examine and clarify the current doctrine before arguing that litigants and the Court should continue developing the right to rehabilitation. What's certain is that the right places due process limitations on the state's ability to terminate an offender's participation in formal rehabilitative programming or deprive an inmate of a benefit without providing a comparable rehabilitative alternative. But I argue that litigants should seek broader application of the right in other areas of the criminal justice system. PubDate: Wed, 17 May 2023 15:01:16 PDT