THE STATE OF ALASKA AND ITS LACK OF

                          SOVEREIGN JURISDICTION

      ALASKA COURT OF APPEALS BRIEF FILED ON CASE NO.A‑3107   9/11/89

 

The State of Alaska lacks jurisdiction in 3ANS‑78‑8955 Cr., and in all those matters pertaining to all the actions of the past, present or future that comprise the record in its entirety back to the alleged offense or offenses in or about the year 1978.

 

  I,Harold C. Ostrosky, Plaintiff,hereby bring a charge of genocidal harassment,kidnapping, criminal confiscation of private property and acts of terrorism against the agents of the State of Alaska acting in their capacity as Public Safety Officers Fish and Game Agents and as various officials or agents of the Dept of Law and Officers and members of the Court of the State of Alaska operating in conspiracy and outside of their jurisdiction and without Tribal consent and in violation of Atmautluak Tribal Resolution 86-05 and Atmautluak Tribal Resolution 86-11, Atmautluak Tribal Resolution 87-02 and Atmautluak Tribal Resolution 88-02.   

 

     Plaintiff charges that on or about        Alaska State Troopers under the command of Corporal Simon Brown did forcefully remove me from the Atmautluak Tribal Jurisdiction while I was discharging my duties as an agent of the tribe, without my consent or Tribal consent of the Atmautluak Traditional Tribal Council.

 

   Plaintiff further seeks monetary compensation in the amount of five million dollars ($5,000,000.00) for actual and punitive damages derived from loss of productive time and from stress and embarrassment created by the actions of the defendants.

 

   Plaintiff,Harold C.Ostrosky, contends that neither the State of ALaska nor the United States of America have sovereign jurisdiction in the matters concerning Subsistence/Commercial Regulations within the sovereign Yupik Jurisdiction as defined in Atmautluak Traditional Council Resolution 86-05 and Resolution 86‑11 and further contends that any authority assumed by the United States Government, or its legislative creature, the State of Alaska, is erroneously derived from the Treaty of Cession (15 Stat. 539) 1867 and from military occupation in the defense of the territory of Alaska from Japanese attack in 1941.

                                      

   Plaintiff further contends that the United States has not fulfilled its obligations under the Treaty of Cession of 1867, and has exerted authority and made claims to sovereignty and title which have not been perfected according to its own laws and declared principles.

 

  The United States and its legislative creature, the State of Alaska, has constructively manipulated and semantically avoided principles of law dating back to the 1500's in Papal Bulls, Spanish Laws and Federal Indian Law, as well as the constitution of the United States, which prohibit taking property which is held under Indigenous Title. In doing so, it has illegally and improperly instituted laws and statutes which were and are enforced under the direct administration of the United States government in its quest to fulfill the final vestiges of "Manifest Destiny" and colonial empire building in the Pacific Rim which was a conspiracy between the Prince of Wales,WIlliam Seward, Simon Camerou and ultimately carried out in the Treaty of Cession during which $200.000 was paid to various congressmen to insure ratification of a document which they did not see during or before their vote.

 

  Plaintiff further contends that in 1867, the indigenous tribes enjoyed all the attributes of governmental accoutrements while exercising complete and total jurisdiction over all lands, water resources and tribal members, while the Russians numbered less than 500 persons not including Creoles.(Kostilivtzov Memorandum)

Included in Senate Document 152 at pages 34‑36. App.IA, are portions of Russian laws and decrees relating to Alaska and printed in the "Complete Collection of Laws of the Russian Empire." These decrees and laws in no way legitimize, nor do they seem to suggest legitimacy of claim sovereignty or dominion over any lands , waters, resources or persons other than which they occupied and possessed.

 

  A translation of the Kostlivitszov Memorandum to the Secretary of State Seward on pages 53‑57 of Senate Document 152 leaves no doubt as to what was transferred in the Treaty of Cession of 1867. (Motion 6/30/89 attached.) (App.A, p. 53‑57.

 

 Russia did not sell what it did not own, and Russia owned very little in terms of acreage. The transfer of ownership was a ceremony attended by very few and the land which by right belonged to neither was transferred with little notice but much fanfare.

 

 

 

 

  As an agent of the Yupik Tribal Community of Atmautluak I bring these complaints to the Atmautluak Traditional Tribal Council in, their judicial capacity, so that they may assert their jurisdiction based on Atmautluak Tribal Resolution 86-05 and Atmautluak Tribal Resolution 86-11 and I rely on their knowledge and wisdom gained from their collective indigenous heritage; namely that they are Yupik and that all other entities that claim jurisdiction are merely quasi legal instruments of the United States Federal Governments' occupation and that the Sovereign/Suzerain jurisdiction of the Yupik Traditional Council of Atmautluak predate these "occupation generated" quasi legal governmental entities since before "Western" recorded history and are therefore the only governmental entity that has judicial competency to hear and judge our complaints.

 

   Plaintiff further contends that in the absence of tribal consent, that neither the State nor the Federal governments have judicial competency and plenary powers to regulate subsistence/commercial activities within the sovereign/suzerain jurisdiction of the Yupik Tribal Communities and we hereby seek the protection of the Atmautluak Tribal Court to protect us and the other members of its tribe, or its agents, from criminal harassment or interference into their human rights by third party limited liability agents as declared and identified in their Charter and Resolutions.

 

  Plaintiff further contends that the sovereignty, indigenous title and rights of the Yupik remains intact and are held in trust within the oral history of the Elders to be used by the Traditional Council of Elders in the time of need. At no time have the Yupik Peoples surrendered or otherwise extinguished their sovereignty through discovery, terra nullius, treaty, conquest, assimilation, waste lands or idle lands,or by any other means or device,either covert or overt, written or oral.

 

  Plaintiff further contends that there does exist a body of law which purports to have jurisdiction over "Indians" and "Alaskan Natives". We hereby state, that there are in fact, no Alaska Natives except as may exist in legal construction. The semantic exclusion and confusion of people derived from these definitions' perpetrated and promoted by the federal government, and are  subtle forms of dehumanization and contribute to the crime of genocide. For if a group is deprived of its language and forced to adopt the dominate or occupying forces language, it ceases to exist if its definition as a political group is eliminated from the language. DEATH BY SEMANTICS.

 

 

 

   The semantics and concomitant distortions of the law have been utilized to create a jurisdictional assertion which is based upon the false foundation: that the Treaty of cession of 1867 was or is a transfer or sale of the rightful God given indigenous title and sovereign jurisdictional rights by the Tsar of Russia to the United States of America. In legal reality, the Treaty of Cession is just as it says it is: A TRANSFER OF RUSSIAN POSSESSIONS.

 

   Plaintiff further contends that there is gross error in decisions of the Federal Courts which combine to create a political reality based on legal premise which is incomplete in its consideration based on the backdrop and background against which legal assumptions are made. These political assumptions have allowed and at times encouraged the enactment of numerous laws, regulations and agreements which purport to jurisdictionally control "Indians" and "Alaska Natives." Plaintiffs disagree  and charge that the United States of America has allowed the Administration (Executive Branch) to construe the constitution in such a way as to assume that Congress has plenary powers over "Indians when in fact their is no statement or wording which directly or indirectly assume or purports to assume any plenary powers, sovereignty or jurisdiction over "Indians." The regulation of commerce, or the internal regulation of commerce,does not concomitantly carry with it the unilateral right or authority to assume or limit the sovereignty of Indian Tribes which is inherent, derived and exercised consistent with the spiritual and religious integrations combined with the physical to create a body of laws and controls which has automatically been enunciated through actions which are incumbent on certain leaders and enacted under authority of tribal law which insured the survival of the people through efficient management, regulation and allocation of resources which are now termed traditional and customary uses of substances resources and are intrinsic to both the spiritual and physical health and well being in the maintenance and support of the perpetual free access to the necessaries of life. This is why we bring our complaint to the Tununak Tribal Court.

 

   Plaintiff further charges that since the United States has not perfected its claims to the title in the area defined in the Treaty of Cession of 1867; and that since the United States' claim to have extinguished aboriginal title are based on tenuous legal concepts, invalid points of law and misinterpretation of precedent through distortions of dicta used as conclusions of law, that the State of Alaska is acting in a genocidal manner to extinguish indigenous rights and titles.

 

    Plaintiff further contends that the Treaty of Cession of 1867 was not a transfer of anything not owned or possessed by Russia, and Russia only had rights on some 240 acres more or less. The State of Alaska does not legitimately exist or have legal jurisdictional authority over any lands, resources or rights which are under the continuing protection of the elders who hold the history and plenary powers intrinsic to their government exercised by them in the time of need. Congress does not have plenary powers over the indigenous tribes of Alaska. Congress has not properly attended to putting into place constitutional authority to legislation and administrative fiats which amount to apartheid in fact and practice.

 

   Plaintiff further contends that neither the State of Alaska, if it exists, nor the United States Congress has the right to infringe upon the sovereignty of the indigenous Yupik Tribes and/or people of Alaska.

 

    Plaintiff hereby states, according to the Atmautluak Tribal Charter,that; Basic, sacred fundamental human rights are not negotiable and contend that indigenous title is valid and that Yupik sovereignty remains intact and that Yupik jurisdictional authority is intact and that the accoutrements of Yupik government are presently restructured to accommodate judicial powers in order to protect its tribal members from any and all third party interference into their tribal rights of human sovereignty.

 

   Plaintiff therefore contends that the only court of competent jurisdiction for this matter rests in the Tribal Courts of Yupik Tribal Community of Atmautluak under their direct sovereignty and Suzerain trust responsibility.

 

  Plaintiff further contends that the United States of America has a Suzerain responsibility to assume, through international treaties, the security protection and enhancement of Tribal Sovereignty and self governance of indigenous tribes in Alaska.

 

   Plaintiff charges the United States and its instruments, agents, assignees, or contractors with conspiracy to deprive the Yupik people of their basic rights and to misappropriate Yupik lands, resources and water under the guise of law and protection.

   Plaintiff further charges that these laws, regulations and management regimes are contrary to and inconsistent with the Genocide Act which was enacted into law on November 4, 198 (P.L. 100‑606) by the United States and therefore  mandates that all laws contrary to it be repealed or voided, including all laws and regulations inconsistent with it.

 

   Plaintiff further requests that the State of Alaska and United States Federal authorities ,agents and contractors receive remedial instruction and training to educate these third parties of the rights and powers of Sovereign Traditional Tribal Governments and the rights and tiles of the tribal members under the jurisdiction of the tribe.

 

     Plaintiffs now enter into the record of this court the findings of THE INTERAGENCY ARCTIC RESEARCH COMMITTEE that was monitored by the National Science Foundation and included in the UNITED STATES ARCTIC RESEARCH PLAN dated July 1987 on Law in the Arctic:

 

                              LAW

 

     To shape laws appropriate for application in the Arctic, we need to understand Traditional Law,the written or unwritten rules that have governed Native communities in the Arctic for centuries and that individuals and villages still follow. Lack of information about and understanding of traditional law-ways and "bush justice" have led to enactment of new laws ill-suited to application in villages with predominantly Native populations. Consequently, some laws passed at State and Federal levels have been difficult to implement, and compliance with them have been low. Problems have surfaced most notably in areas of criminal law, domestic or family law(marriage,custody,adoption) and wildlife law. In the area of adoption, Congress recognized the existence of de facto unwritten indigenous rules in Native communities and attempted to allow these rules to operate through the Indian Child Welfare Act. However, in other fields of law, such as wildlife management, lawmakers have failed to recognize the existence of traditional rules, authority patterns, and methods of conflict resolution and decision-making. Thus. State and Federal wildlife statutes and regulations that are largely incompatible with existing hunting practices are totally ignored. The failure of criminal law to recognize existing social rules and norms has resulted in a disproportionlly high number of Alaska Natives serving time in prison. Lack of Native language interpreters and other gaps in the delivery of legal services further contribute to problems stemming from lack of knowledge of the traditional social and cultural laws that govern northern Native communities.

 

     A plethora of local political and economic organizations (frequently six to eight governmental or quasi-governmental entities delivering services or regulating activities in a community with only a few hundred residents) results in overlapping and duplicative jurisdictions, excessive cost of providing government service, confusion for the average citizen, and a drain on local talent (State of Alaska 1986). Research is needed to determine how to reduce political fragmentation and avoid passing laws which further splinter the community. Furthermore there are serious concerns about local autonomy over such critical ares as alcohol control, education and fish and game management. Problem of State /Federal/Tribal relations are not unique to the Arctic, but laws and court decisions that govern intergovernmental relations on Indian reservations have not been generally applied in the Arctic where few such reservations exist (State of Alaska,1986). Numerous laws including ANCSA and ANILCA fail to resolve legal questions over jurisdiction among Federal, State, and TRibal Governments in Alaska.

 

     Law and legal processes must be made more sensitive to    Arctic residents. There is widespread unfamiliarity with existing  laws,legal procedures, and the legal system in rural villages. Proposed laws and regulations as well as existing ones need to be presented in clear and understandable ways to village residents and, in some cases, need to be translated into Native languages. More fundamentally, laws need to be developed in cooperation with village residents. Laws made without consultation with and the cooperation of village residents are unlikely to be followed. Laws without compliance undermines the total legal system, leading to disrespect and disregard for law. This is particularly evident in low rates of compliance with hunting and fishing regulations (Kotzebue Fish and Game Advisory Committee, 1986).

 

     Arctic conflicts, particularly over natural resources, often involve high stakes for the parties concerned, give rise to sharply incompatible preferences regarding outcome , and cannot be resolved through the application of simple and widely accepted settlement procedures. Protracted litigation over offshore hydrocarbon development as well as mineral extraction and timber management, for example, has been costly and repetitive, often without resolving the underlying controversies. Similarly legislatures have produced statutes that are internally inconsistent or too general to provide solutions to specific conflicts, leading to the need for further legislation or litigation (Young and Osherenko, 1984). Thus, there is a need to study alternative methods of conflict resolution appropriate for dealing Arctic conflicts.

 

     All Arctic-rim nations face similar problems. Policy makers could benefit from the comparative legal studies addressing how different nations deal with common problems such as transboundary pollution. Native land claims,Native self-determination, and renewable and non-renewable resource development, and management. There is little comparative work in progress dealing with laws applied to the Arctic.

 

     Additionally, many Arctic issues cannot be addressed without cooperation among neighboring Arctic nations, especially issues regarding the extraction and shipment of natural resources, wildlife management (particularly marine mammals, migratory birds and caribou), Arctic haze, oil spills or other transboundary pollution problems. more research is needed to achieve comparable laws as well as international agreements regarding these international and  transnational  issues.

 

     There is no law school in the Arctic and little likelihood  of establishing one. Likewise there are no law journals produced in the Arctic. In the United States, Duke University provides a law journal with cooperation with the Alaska Bar Association, but this publication, the Duke-Alaska Law Review, has seldom addressed the larger legal problems facing the Arctic. As much legal scholarship within the walls of law schools and in pages of law journals, the lack of a law school or law journal in Alaska has left large gaps,in important legal research.

 

     Plaintiff charges that the documented failure of administrative, legislative, and judicial functions of the State of Alaska and the United States of America under jurisdiction based on occupation, has resulted in genocide of significant proportions. This charge is based on the definition of Genocide within the Act of the Congress of the United States known as Public Law 100-606 signed into law on December 4, 1988 which we include along with this complaint.

 

     Plaintiff finally asserts that they recognize the Atmautluak Traditional Tribal court as the only court of competent sovereign jurisdiction and include United States Senate Document 152 of the 81st Congress 2nd Session which includes the official translation of the "Kostlivitszof Memorandum" on pages 53-57 that leaves no doubt of the validity of the Yupik Sovereign Jurisdiction.