Togiak faces troubles after banishing man
The village of Togiak has found itself in hot water this week after choosing to banish a non-tribal member for alleged importation of alcohol. The incident raised a number of important and thorny questions, not the least of which was why the man was duct taped and dragged out to a plane bound for Dillingham. State authorities up to Gov. Bill Walker are aware of the case, as are federal officials with the FBI.
On a trip to assess facilities for a new trooper post in Togiak, council president Jimmy Coopchiak briefs DPS deputy commissioner Bill Romer on the recent banishment. Behind the wheel is Togiak mayor Teodoro Pauk.
The banished man is Ronald Oertwich. He has been living in Togiak for three decades and used to run a river lodge for the village corporation. Lately Oertwich has operated a bed and breakfast near the airport under a lease with the property owner.
Ron Oertwich has lived and worked in Togiak for more than 30 years. He was recently "banished" by a "community court" for suspected alcohol importation, but his lawyer says a lawsuit challenging the legality of that and his treatment in custody is likely.
On Monday at the Grant terminal in Dillingham, he did not want to tape an interview until he had spoken with his attorney. Oertwich was distraught, he was unsettled, and he left for Anchorage on the evening flight.
His attorney David Henderson has begun investigating the case ahead of likely filing a lawsuit.
"The city of Togiak is a second-class city in the state of Alaska. Mr. Oertwich is a longtime resident of Togiak. He runs a business, he has deep roots in that community," Henderson said Friday. "He is not a tribal member, he's of German ancestry, and they exercised jurisdiction over him. They put him in a jail, they duct taped his legs together, dragged him to a plane. They held him without any legal or valid charges for six days."
Those allegations got the attention of state authorities quickly last week. Henderson said the state may also be liable for not protecting one of its citizens.
"There's either rule of law or there isn't in the state of Alaska," he said, claiming that the state was aware as events unfolded. "They were on notice, before I got involved for Mr. Oertwich, he contacted them and said 'What do I do?' They said 'we won't get involved.' And then when Mr. Oertwich tried to go back home to where lives, he was arrested and then the state was put on notice the next day again and asked to intervene. [They] were told that he was being held unlawfully and in jail with no charges, that he was a non-tribal member, and they ignored it, they did nothing."
The story broke in the Alaska Dispatch News Monday night, just as Oertwich flew to Anchorage. By Tuesday the village of Togiak was in damage control mode.
By coincidence that same day the village was welcoming a delegation of top brass from Alaska State Troopers who were coming to inspect facilities for a new trooper post scheduled to open this summer.
Tribal council president Jimmy Coopchiak was putting the finishing touches on a press release about the banishment of Ron Oertwich before the troopers arrived.
"He first came under the suspicion in January that he was selling alcohol and drugs," Coopchiak said Tuesday morning. "We brought him into our tribal court from observations of our law enforcement officers."
Togiak council president Jimmy Coopchiak displays a tote the tribe says was shipped to Ron Oertwich, a non-tribal member they consider a known bootlegger.
A criminal complaint filed by tribal police officer Leroy Nanalook says that on January 24 he was notified by the village public safety officer that a suspicious tote addressed to Oertwich had just arrived on Everts Air Cargo. Nanalook wrote that he attempted to locate Oertwich to tell him his tote was being seized. Nanalook says he obtained a tribal search warrant, and when Oertwich would not respond, he had two other tribal members witness as they searched it.
"He had, like I just showed you, a tote full of 22 bottles of R&R, and a stolen shotgun in his possession," Coopchiak said. (The complaint said it was 20 bottles of R&R and two bottles of Crown Royal.)
This was in late January. Not till March 27 was Oertwich brought to a "community court", a combination of the tribal court and an apparent jury of tribal members who attend.
"The community ruled him guilty for importation of alcohol," Coophciak said. "It's an Alaska statute, and it's a felony, if you have more than 12 [bottles], it's a felony under state law."
But Oertwich was never charged under state law, nor would a state prosecutor likely accept evidence collected under these haphazard methods that run contrary to every citizen's fourth amendment rights against improper search and seizure.
But the tribal leadership wasn't concerned about the state criminal charge so much as seeking a more permanent punishment.
"Banishment out of the village," Coopchiak said. "Because we have to protect our elders, our young children, our future."
The banishment order was handed down March 27.
Anecia Kritz is one of Togiak Traditional Council's five tribal court judges, and one of three who presided over this case. Speaking Tuesday, she said Oertwich was among 19 suspected drug or alcohol importers who were put on notice by the court in January that they were at risk of being banished.
"When we warned him, we told him that tribal court will not take this case, but the community court will. He was found guilty from the community, and their wishes were to banish."
"When we start our court, we always tell them that we're doing this because we care for you, because we love you. It's not for you to hate, but you probably will," tribal judge Anecia Kritz said of court hearings.
The court order blends tribal code and state statute as it describes the case against Oertwich. The first order is signed by five tribal court judges, but says the community members issued the verdict and the banishment order.
On March 27, the day it was handed down, Oertwich got on a plane to Dillingham, willingly, according to the tribe. Then he turned around that same day and flew back to nearby Twin Hills, then took an ATV back to Togiak the same night. This ignited a fury in the village.
"He came back through Twin Hills, someone brought him over here. And the other thing the community didn't like was that he had two pistols in his tote," said Kritz.
Oertwich was detained, by one account for trespassing in violation of the banishment, and by another account for his own safety and that of others. Who arrested him at this point is unclear. He was hauled in for a second court hearing on March 29 and banished once again by the community court. Three judges signed off.
For judge Kritz, there is no question that the Togiak Traditional Council was operating within its legal jurisdiction.
"Yes I very much believe that," she said. "The tribe has the sovereignty and the power, both with written laws and unwritten laws. We've told him already, if you want to be a resident of Togiak, you abide by our laws. There's both tribal laws and state laws."
From March 29 till April 3, the tribe says they could not find air transportation for Oertwich to leave Togiak and he remained in custody at the village public safety building. One air carrier did not want to be involved, and another was not flying due to weather. His lawyer says this was a mistake, detaining a 72-year-old diabetic for several days on what may be bogus charges. When Oertwich was taken to the airport, the tribe says his legs were bound in duct tape.
"He was resisting," said Coopchiak. "He didn't want to leave. It was not our first choice, but it was a drastic action that we had to do. To protect him we had to do something."
Where were state authorities in all this? The Togiak tribe is frustrated that the state did not take the bootlegging case originally, nor did they respond when the banished suspect returned to the village. Oertwich's lawyer will argue the state should have responded to free the man from false imprisonment or kidnapping. The situation went immediately up the chains of command of both the Department of Law and Department of Public Safety, and Governor Walker was made aware.
Walker's Rural Affairs Advisor Gared Godfrey was dispatched to Togiak Tuesday with the visiting AST delegation to get to the bottom of the situation.
"The governor's office wants to empower tribes to serve their community most effectively, whenever and wherever possible, including through tribal courts," Godfrey said in an interview after speaking with the tribal leadership. "One of the things the Governor's office wants to do is make sure that tribes are exercising their authority within the boundaries of that authority, to protect themselves as well as citizens who come in front of the tribes and the tribal courts."
Godfrey and DPS deputy commissioner Bill Comer spoke with members of the Togiak tribe about state concerns with the handling of the banishment of Ron Oertwich.
The state is as concerned about its potential civil liability as the tribe is. That is why state authorities stayed out of this incident (as well as other recent ones described below) as much as possible. Walker and Bryon Mallot have been encouraging tribes, including Togiak's, to exercise their sovereignty and find ways to police their own, but have not provided effective guidance or oversight as Togiak has sought to do so. Godfrey acknowledged this incident raised a lot of concern.
"Whenever anybody is charged with any level of crime, when they're a citizen of Alaska, a citizen of the United States, they're entitled to due process. That's a constitutional right. Due process, their civil rights, have to be expected and acknowledged throughout the entire justice system," he said.
Other recent incidents
Togiak has used banishment on several occasions over the past year, claiming a necessity to address a devastating influx of drugs and alcohol since the WAANT position was removed and Everts began direct cargo flights from Anchorage. At least two of the banished men were Alaska Natives but not Togiak tribal members.
At the end of January, one man and two women suspected of importing heroin to the village were detained and searched per a tribal court order. They were taken from the airport to the public safety building where first their baggage was searched. According to two village officials' accounts, female tribal judges worked in pairs to physically search the women. One of the suspected traffickers was held down by one of the female judges while the other judge performed a cavity search. Resisting the intrusive search, the suspect bit one of the judges. The village turned up a shocking 115 grams of black tar heroin that had been hidden in her cavity. Tribal police filed a criminal complaint in state court to charge drug possession and assault for the biting. An assistant district attorney quickly dismissed the drug charge and later the assault charge too. Whether that was due to what appeared an unlawful search and seizure or what could arguably have been a sexual assault, the state did not say.
State and tribal jurisdictions mixed also in early January when longtime Manokotak resident William Delgado was banished from the village. Delgado, a Cuban American originally from Florida, says he had never been made aware of any charge against him, nor had he attended any hearing or had any chance to defend himself.
"I was in my house and I hear a knock. When I open the door, he just goes like this," Delgado said, making a gesture of a man serving him papers. "And I said, 'what is this?' He goes, 'You gotta move right now. Get whatever you can and get in the van and get out of Manokotak right now.' I've been living here fifteen years, I got here in spring of 2002. That's how long I've been watching what's been going on in that village."
For those fifteen years, he was together with Manokotak resident Agnes Ceballos. By his account, the two of them had domestic disputes at times, none of which attracted the attention of law enforcement. She was someone Delgado cared for deeply.
"More than that man, I have her tattoo face right here," he showed. "I loved her, loved her, more than I loved any other woman, but the alcohol killed my love for her."
In a letter provided to Delgado, the Manokotak tribal council members say they had received a call from a family member of Ceballos alleging his abuse, that this was in violation of tribal code, and they had elected to banish him. They bought him a ticket to Florida, and wrote in the letter that his property would be mailed to him.
"They only listened to her side of the story," he said. "Nobody in Manokotak came to me and talked to me like a normal human being. No, they just kicked me out of there like I was some kinda criminal man, and I never done nothin' to her."
However, he did have a criminal record from Florida, including at least one old felony conviction for aggravated assault with a weapon. A Manokotak tribal member notified state troopers in Dillingham that they were concerned Delgado would return to the village after he had been flown out, and they reported the firearms and other weapons he had at his house. A trooper was in the village to investigate a separate domestic violence incident and confirmed Delgado's large stash of weapons. He turned himself into troopers in Dillingham and was arraigned on a felon in possession of weapons charge the following day. The state's prosecutor for the case, Pamela Dale, offered Delgado a deal: plead to a reduced charge and use the plane ticket to leave the state as the tribe had requested.
"My offer is if he'll plead guilty to the misdemeanor, the penalty will be forfeiture of all evidence seized, and that he gets on that plane and goes to Miami," Dale told Judge Tina Reigh. "I don't know that you can actually enforce that, but that's what our intent is, is that he leave."
Delgado took the deal. He asked that all of his firearms be donated to the Alaska State Troopers. Forced out of his home of the past 15 years, leaving it all behind, Delgado was heartbroken as he tried to describe what he would do next.
"Oh man, I really don't know. I really don't know man. It's all in God's hands," he said.
"What are you going to miss about this place?"
"Oh man, everything, everything that's good. The lakes, the geese .... miss a lot ... it's too much to say in words," he said, choking back his tears.
The Manokotak Tribal Council refused numerous requests for comment on that case, including why the alleged domestic violence was not reported to state troopers to press criminal charges.
Banishment the right tool?
For several years, Jimmy Coophciak has been pushing the case for his tribe to acquire more authority for its court, and to use it. In at least two meetings with Walker and Mallott, Coopchiak has told them about the drugs pouring into the community and the tribe's intention to meet the challenge head on. Walker and Mallott encouraged this effort, he says. He and Anecia Kritz say until a state trooper is posted here in June, using their tribal court to authorize investigations and banishment to punish offenders may be their best tools.
"We are losing a generation of kids, and it's affecting our teenagers, it's affecting our school, and our community, and this has to stop," said Coopchiak.
"We have to take action. When we start our court, we always tell them that we're doing this because we care for you, because we love you. It's not for you to hate, but you probably will. It may be depressing, like this, Ron, if he wanted to live here ... it's something that we can't ignore, especially with non-tribal members," said Kritz.
But is banishing a lawful and legitimate means to oust non-tribal or even tribal members from an area? KDLG asked that of Gared Godfrey, the governor's representative dispatched to Togiak Tuesday.
"I'm going to refrain from answering that."
"Do you believe it's a settled question?"
"I'm going to refrain from answering that as well," he said.
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