Excerpted from:
Hippler, Arthur E.; & Conn, Stephen. (1975). "The Village Council and Its Offspring: A Reform for Bush Justice."  UCLA-Alaska Law Review 5(1): 22–57 (Fall 1975). (https://heinonline.org/HOL/P?h=hein.journals/uclaak5&i=28).This excerpt from the forthcoming UCLA-Alaska Law Review article "The Village Council and Its Offspring: A Reform for Bush Justice" describes techniques used historically by Alaska Native village councils to resolve disputes. All of these techniques were observed in 1975 in villages where councils still aid in dispute adjustment.Rule Making, Rule Enforcing, and Conciliation /
Council Techniques – Scolding and Probation /
Village Councils and the Modern Legal System /
The Council as a Forum for Dispute Resolutio

Conn, Stephen

Hippler, Arthur E.

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Scholarworks@UA — UAA Justice Center 1975 Staff Paper on Village Councils Arthur E. Hippler & Stephen Conn Suggested citation Hippler, Arthur E.; & Conn, Stephen. (1975). “Staff Paper on Village Councils.” Stephen Conn Papers. Fairbanks, AK: Bush Justice Development Program, Institute of Social, Economic & Government Research, University of Alaska, Fairbanks. Summary This excerpt from the forthcoming UCLA-Alaska Law Review article "The Village Council and Its Offspring: A Reform for Bush Justice" describes techniques used historically by Alaska Native village councils to resolve disputes. All of these techniques were observed in 1975 in villages where councils still aid in dispute adjustment. Additional information Excerpted from: Hippler, Arthur E.; & Conn, Stephen. (1975). "The Village Council and Its Offspring: A Reform for Bush Justice."  UCLA-Alaska Law Review 5(1): 22–57 (Fall 1975). UAA is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual: www.alaska.edu/titleIXcompliance/nondiscrimination. STANDARDS AND GOALS COURTS TASK FORCE Staff Paper on Village Councils (NOTE: What follows is an exc�rpt from the tekt of a law review article by Stephen Conn and Arthur Hippler en­titled, "The Village Council and Its Offspring," to be pub­lished in the UCLA-Alaska Law Review. The excerpt describes tecHniques used historically by village councils to resolve disputes. All of these techniques were observed in 1975 in villages where councils still aid in dispute adjustment. Footnotes have been deleted for purposes of this staff paper.) ·When the councils were created the techniq�es ofdispute resolution did not change, even though the verbiage and symbols of authority employed v1ere somewhat !different from :�:: ::: : :::s � i ::� ::;�.:;i ;:: ::: . :::: :: t:f \::u: :: t� ��r . -Alaska) was employed_ to reinforce council directives. However, the process of fact gathering and truth seeking, as will be discussed below, continued to be directed .'toward an admission of wrong and a promise to correct conduct in order to live more compatibly with other villagers. The most significant change in ·council process was that individuals as well as groups of children were dealt with in council deliberation. When in­dividuals were brought before the council, usually only a minimal demonstration of contrition beyond an admission of wrong was required as a preliminary step and not as a final result of the proceedings. The persistent the�e of council records, which deal intimately with abortions, adultery, sexual relations of young and old, gambling, property dis­putes, and other matters, was to remind the individual that even though potential mitigating circumstances were under­stood, his acts had reached an intolerable level. The council thus offered the possibility for the offender to renew his "social contract" as it were. They also acted as a ·public memory and record not only of wrongdoing, but its causes and effects. The warnings given and the assumptions about the seriousness of an offend­er's attempts at rehabilitation· based upon his renewed agreement or lack of it were communicated by,.the council to the entire community. This knowledge was pE;.rmanent and car-1_ ried over to other disputes brought to the douncil involvinf, _t�e ��-rn�--�-�!�__:1_�.:�. :. T_�: --�-o_unci� :"7�s-t[!-e cen_�ral forum f_orsocial control. Other powerful figures - t{e police, the United States commissioner, the prosecutor, and the school teachers, were sometimes utilized to reinforce council author-;., ity. Howe�er, rarely did these agents ov�rride the council. Rule Making, Rule Enforcing, and Conciliation Because of the vast distances and immense logis­tical pfoblems involved, U.S. law had little day-to-day real­istic presence in Eskimo villages. The explicit mandate which devolved onto village councils by government agents because of thi� absence of formal authority was typically -2-that of rule maker and rule enforcer. Teachers, mission-aries, and agents of the legal process considered councils as appropriate vehicles to make and enforce law which im­proved village life. It must be made clear, however, that the village councils operated upon an unclear legal basis and in some cases extralegally. They did the implicit bidding of white society by maintaining order and handling wrongdoing, but had no permanent or explicit judicial or police authority to impose sanctions in most cases. This has had a significant impact upon the present evolution of village justice as we shall note below. It would be a mistake, however, to view the council as merely a puppet for other authorities. In general, the council was quick to articulate a norm· as ""lillage law" butmuch less inclined to enforce it arbi trarill Viola tors ·were__ ._usually. giv.en .. several __ c -hances, and .. rules.:. -we;e pub lie 1-y.- postedand reviewed in public meeting. v!hen these rules were not publically favored, they were ignored by the council. Finally, penalties were limited and were themselve/-'reviewed, revised or ignored by the council, as particular situations arose. Even when later state _troopers, district attorneys, and others reinforced rules, they were careful to leave appli­cation of remedies _to people within the village'. -That is, villages were not ·forced to adopt criminal laws or procedures but merely to decide for themselves what they warited to en­force in all but the most serious offenses. -3-An example of this res is tan_ce to arbitrary ·white I norms and sanctions occurred when a village teacher in a remote community attempted without success for more than a year to encourage the council to adopt severe criminal laws. When the council finally accepted village laws along with sliff penalties suggested by the teacher, they declined to enforce them. Instead, the council met privately in the chief's cabin to resolve cases of theft and other matters that surfaced. Village rules, however,· did serve an important pur­pose. They were the mandate from which the council could launch broadbased inquiries ·which· resulted in compromises. As in the case of the Zapotec village studied by Nader, the style of di�pute settlement cannot be neatly cate­gorized. A mixture of adjudication and conciliation was em­ployed depending upon the case. Rules affor�ed councils with a legitimacy and a means of communicat�ng disputes to-outside -authority. Conciliation- was the -re,2dial alternative·­tha t· made the results of dispute settlement credible and acceptable to villagers. Council Techniques Scolding and Probation Although formal probation as such was never used, council actions typically included lectures which focused on future conduct and also set disputes in the context of con­tinuing relationships among the villagers. The members of the village council usually could, without great repetition, -4-make clear to disputants that past acts, good and bad, had been considered in, and were integrated into, discussions and decisions. Each disputant was a whole person before the council, viewed as an individual w�o was expected to and who himself expected to live in the village according to the norms of villag� life. Tactics also reflected traditional statuses. Women were only comfortable in the presence of women. Female dis­putants and witnesses were therefore often quizzed privately by female members, and their stories ·were reported back to the whole council. This insured that a more accurate version of events would be garnered. Where the church was pmverful and �isputants were church members, the cases were usu�lly referred to the church board of elders. Even when the church had �ieh status, however, ___ __ _  t_:_:_:_co_��c�l�-��-s _pr��a=ed _ to _  d_eal_ ':� th _!':s_�_�_:� w�o ��-��-�:d inmisconduct. In reality boards of elders (ctrch leaders) andcouncils (secular leaders) tended to interlock. Jealousies of areas of jurisdiction were avoided by having sequences of hearings, especially where "moral" is sues }:vere concerned. The key to compromise either bet,,�een two disputants or between the disputant and his village was an admission of guilt and contrition. No other posture was acceptable. This is an important point and should be understood. Eskimo councils were (and are) not concerned so much with ·punishment as with ameliorating the potentially destructiveaspects of tension and conflict within a small community.-5-Confession of guilt simply indicated a readines s to solve ·1 the problem. It is crucial to remember the council ·wishedto avoid or head off violence above everything else. Thecontrite individual would neither elicit violence from theperson he had offended nor engage in it himself.Real harm or the potential for real harm was the stimulus that set the council in motion. Thus , the potential for violence in gambling and not gambling per se caught the council's attention. Note pas sing between single women and married men was considered s erious, but sexual activity per se was not. The council was always prepared to narrow its inquiry if it felt that a deeper inquiry would lead to more unresolv­able conflict or on the other hand to broaden inquiries if this seemed the best way to achieve a soluti6n avoiding vio-lence. For example, when X complained about/gossip re?,arding ... _�---�-�-�is��--:':t�1 B __ •�--����-and, the council me�et __ s_uggested thatX talk to B's wife. X was known to be sexuafly act{ve with. many village men. Only when it was discovered that X had venereal disease which imperiled the health of the community were X's activit{es fully investigated. The council was particularly senJitive to the s ignalsof potential violence which had not yet occurred. It often reacted in anticipation of violence to cues that only the council as opposed to outside authorities could recognize. This same attitude marked the later response to cases brought "to and dispos ed of by the conciliation board developed by the authors in collaboration with an Eskimo community and discussed below. -6-In short, the goal of the c0uncil was temporary harmony rather than rule of law. Harmony was perceived as relative calm in the interpersonal matrix of village relation­ships, instead of an absolute ·obedience to rules simply be-cause they were village law. This same attitude effects modern law enforcement in the village. For example, in an Eskimo village today persons who commit violent acts while intoxicated are viewed as temporarily insane and returned to sanity when they are sober. They are not blamed while sober for the consequences of their acts while drunk. They are not chastised because they were drunk. Con-sequences of acts and not violation of rules are primarily important. Village Councils and the Modern Legal Systed from agent: i: :a:: r:::::::: �: v:F:;:e;u::: :"� "f \:: i: s ;::::: ty" to resolve disputes was reinforced primarily by their ties first to U. S. marshals, then territorial police, and finally to state troopers. From the perspective of police, the councils were an effective means of resolving minor problems, thus avoiding the necessity of personal police intervention to arrest the offender and remove him from the village. Even when police did come into the villages, many minor cases were handed over to the councils for disposition. -7-This flexibility in law enforcement on the part of the police resulted from several factors. First, police were given improbable jurisdictions of thousands of square miles of sea, tundra, and river to patrol. Second, some police recognized that local resolution of disputes was more effect-· ive than removal of the offender to distant courts. Third, from the early territorial days to the near present, police effectively enjoyed prosecutorial discretion and resolved many conflicts on the spot. During this period from 1900 to the late 1960's the ties between village councils and police did not greatly in­fluence the substance of village justice. Except in extreme situations, the police generally permitted t,he council to administer local justice. The Council as a Forum for Dispute Resoluti n Councils were not merely agents o punishment. Al-though council recor·ds indicate that fines in furs, coal, or other commodities or in money -i;-;rere sometimes imposed, there was a considerable amount of time spent on in'�;estigation of the underlying ramifications of conflict. This investigation, which involved the taking of testi�ony from all sides and a process of hearing out all matters of relevance from all who volunteered or were invited to attend council meetings made the council proce�s a thing apart from justice constrained �y evidentiary considerations. It took the council into the personalized arena of dispute settlement that. was attuned to -8-the traditional Eskimo concepts of co�flict avoidance and demonstrated contrition as a prelude to conciliation. The council forEtat: ·was not adversarial. Hhere conflicts were severe, parcies were brought into the council •. meeting independently and were read testicony of previous witnesses and allowed to con"!rnent. The thrust of the council action was not the result achieved b�t the process that reached the result, i.e. the interim advice offered disputants, the interim apologies tendered as well as the range of persons brought into the hearing process. Much of this flavor of council proceedings was never communicated to outsiders. Council records were private. The mere fact that in Western terms there had been some symbolic result, sych as the iBposi­tion of a fine, was satisfactory to rnaintai� the relationships between councils and the police. But from t�e viewpoint;£  ± L _  -�·. _ . __ __ .· .. the .... co .UL1..cil, _ _ the.__irnpos_itiDn of punish'.t"!ent w- c .n.ot: nearly __ as important as the avoidance of future violence arising from the same dispute. To purge themselves of the uncooferative or recal-citrant offender, councilmen had merely to'call up the ultimate punitive authority of the territorial or state legal process by casting the offender's �ondu�t in the terms of a Western criminal offense, notifying the police, a,1d requesting his removal from the village. The letters to troopers detailed the act and also described concretely cou�cil efforts to resolve the situation. 11 And this is not the first tiue 11 ,·1ere -9-the words of art found in nearly every letter from village authorities to the police viewed by the authors. For their part, police would 6£ten refer private complaints which came directly to them back to the councils for an initial attempt at resc;lution. ifoen the police refer:!'.'ed back cases 1;-1hich were inappropriate for the councils to resolve, especially cases fraught with violence com.'Tlitted by feared individi.::.als, or when the police did not travel with �ufficient predicta­bility to villages when the councils ·solicited their help, the council's credibility. in the village as a forum for dispute settlement was clearly diminished. United States con��issioners, territorial and state judges and prosecutors, and state and federal Alaska Native Service personnel provided suppo�t and implicit or even ex-plicit endorsement of council justice. As� rule this support was less irmnediate than that of the police, r.ince jurists and-- -- ·---� t �;;;eys - (��i �h- -�11�---��-c�;-;ion �-£- -��;miss i�n7�-� ) tr ave led in tothe villages with even less frequency than did police. How­ever, several atte□pts to shore up council justice on a broad ! ·.• scale were .notable and successful until near recent days.In the 1940's the law enforcement arB of the Alaska Native Service employed the Alaska version of the Indian Reorganization Act as a structure for village law enforcement. As the agent or�ariized villatqes as I&� villages so that they L� ,_,, ., _,,,. could receive federal loans, he persuaded villagers that vil-·1age rules as criminal laws were enforceable against villager::er:ib er s The BuTeau of Indian Affairs also took a step which-10-was of questionable legality but consistent with the extra­legality which often colored Alaskan law enforcement when it dis trib·L'.ted an II amended" version of state statutes ·which appeared to give the village co�ncils power of crimi�ai law making and criminal law enforcer:1ent. This distribution hcS.s continued to those villages ·who sought legal advice from the BIA until the present. After statehood, agents of state law and state agencies reinforced council justice with various techniques 'ivhich ranged from affirmative support to benign indifference. Fo-r- example, the district attorney of the third judicial dis­trict, which encorrr?asses Fairbanks and Southi:ves tern Alaska, met with members of the Association of Village Council Presidents in 1963. He drafted a set of vil�ag� rules for the fifty-plus unincorporated villages in the Yupik-speaking . Es_kim.o __ reg�on __ a:n<l _pror,used __ tha i: eac'.1 C<)uld _ cl ):ecas t _as. s tate.law and enrorced by police and courcs if cou�ci� auchority was challenged in that case. These village rules were dis-seminated by other prosecutors and police.� -11-

Staff Paper on Village Councils

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Staff Paper on Village Councils

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