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THE COURT OF APPEALS OF THE STATE OF ALASKA REPLY BRIEF APPELLANT ANS-78-9855 CR. TABLE
OF AUTHORITIES
CASES PAGE HARRISON v. STATE _____ P.2d______. Op. No. 1000 (ALASKA App., Dec. 29,1989) ............................... 3 Lewis v. State 469 P.2d 689 (Alaska 1970) .............................. 1 Martin v. State 664 P.2d 612 (Alaska App. 1983) ......................... 1 State v.Pete 420 P.2d 338 (Alaska 1966) .............................. 2 OTHER AUTHORITIES Charles E. Torcia, Wharton's criminal procedure, Vol. I & 11 (13th ed. 1989) .............................. 1 Treaty of Cession (15 Stat. 539) 1867...................... 3 ARGUMENT
I
OSTROSKY'S APPEAL SHOULD NOT BE DISMISSED The State argues that this appeal should be dismissed because it is untimely, the issue was abandoned, and dismissal would avoid piece-meal appellate litigation. The state is incorrect. The issue of lack of matter jurisdiction is never waived and an objection that the court lacks jurisdiction of the subject matter can be raised at any time, Charles E. Torcia, wharton's Criminal Procedure, Vol, I & 11 ,at p. 96 (13th ed. 1989). Since the issue can be raised any time, when Ostrosky moved to dismiss for lack of jurisdiction, in 1989 and Judge Mason denied the motion on July 3, 1989, Ostrosky's appeal from that decision was not untimely. Ostrosky never abandoned the issue either. This is the first time Ostrosky has briefed the issue on appeal. Therefore, Lewis v. State, 469 P2.d 689 (Alaska 1970) does not apply. That case dealt with inadequately briefed issues on appeal. This appellate court must reach Ostrosky's challenge to the jurisdiction of the trial court to act. Martin v. State, 664 p.2d 612, 620 Alaska App. 1983). The policy against piece-meal appeals expressed in State v. Pete, 420 P.2d 338, 341 (Alaska 1966) does not apply here, It is policy directed towards the appellate court to consider issues briefed on appeal at one time instead of passing only on one dispositive issue when remaining issues might also be dispositive and would likely come back to the appellate court on second appeal,Id. at 341. II
THE UNITED STATES OF AMERICA LACKS SUBJECT MATTER JURISDICTION AND THEREFORE SO DOES THE STATE OF ALASKA The state argues that the state has jurisdiction pursuant to state and federal statutes and law. It cites state decisions and federal acts as authority.The problem with this argument is Ostrosky's contention goes much further back. It is his contention that the United States of America, and therefore the state, has no jurisdiction over mattes occurring within the jurisdiction of Atmautluak Tribal Council because the United States did not derive any jurisdictional claim from the treaty of Cession (15 Stat. 539) 1868. Any subsequent Act of Congress (i.e., ANCSA) attempting to unilaterally settle adverse claims of jurisdiction are meaningless because the Congress does not have plenary powers over the indigenous tribes of Alaska and because the United States was acting without the necessary treaty agreement through tribal consent. This court's recent decision in Harrison v. State, p.2d ,) p. No. 1000 (Alaska App., Dec. 29, 1989) is not dispositive. Harrison appeared to claim immunity under federal Indian law. Ostrosky's claim is not based on federal law. He argues that the United States lacks jurisdiction and therefore so does the state. All claims of jurisdiction over Alaska by the United States are based upon the Treaty of cessions of 1867, which was no more than a transfer of Russian Possessions which did not include a sale or conveyance of title or sovereignty over traditional Yupik tribal land, including that within the sovereign Yupik jurisdiction as defined by the Atmautluak Traditional Council. The Kostlivtzov Memorandum evidences the lack of dominion or claimed sovereignty by the Russians over any land, waters, resources or persons other than that which the Russians occupied or possessed, which was very little. (App A pp.34-36, 53-57.) Because the Atmautluak Traditional Council is the legitimate sovereign with jurisdiction over the area where Ostrosky's alleged State of Alaska offenses occurred, he is not subject to the state's jurisdiction, but that of the tribal council. The sovereign jurisdiction of the Atmautluak Traditional Council predates any claim by the United States and, therefore, is the only government entity n in the absence of tribal consent, that has judicial competency and plenary powers to regulate subsistence/commercial activities within its sovereign jurisdiction. CONCLUSION
Based upon the arguments presented here and in his opening brief, appellant Harold Ostrosky respectfully requests that this court reverse his conviction and dismiss the case for lack of jurisdiction. DATED at Anchorage, Alaska this 9th day of February, 1990. |
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