Alaska Inter-Tribal Council v. State of Alaska (4/15/2005) sp-5886

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Alaska Inter-Tribal Council v. State of Alaska (4/15/2005) sp-5886

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THE SUPREME COURT OF THE STATE OF ALASKA

ALASKA INTER-TRIBAL )
COUNCIL; ALASKA NATIVE ) Supreme Court No. S-10844
JUSTICE CENTER; AKIACHAK )
NATIVE COMMUNITY; AKIAK ) Superior Court No. 3DI-99-113 CI
NATIVE COMMUNITY; NATIVE )
VILLAGE OF ALEKNAGIK; ) O P I N I O N
CHINIK ESKIMO COMMUNITY )
(GOLOVIN); NATIVE VILLAGE OF ) [No. 5886 - April 15, 2005]
CLARK?S POINT; NATIVE )
VILLAGE OF GAMBELL; NATIVE )
VILLAGE OF KIANA; NATIVE )
VILLAGE OF TELLER; )
TULUKSAK NATIVE )
COMMUNITY; NATIVE VILLAGE )
OF WHITE MOUNTAIN; HAZEL )
APOK; SHARON CLARK; ESTER )
FLORESTA; IMOGENE GARDINER;)
WILLIE KASAYULIE; and MIKE )
WILLIAMS, )
)
Appellants, )
)
v. )
)
STATE OF ALASKA; DELBERT )
SMITH, COMMISSIONER; )
DEPARTMENT OF PUBLIC )
SAFETY, )
)
Appellees. )
)

Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Dillingham, Sharon L. Gleason and Karen L.
Hunt, Judges.

Appearances: Lawrence A. Aschenbrenner, Anchorage, Eric D.
Johnson, Bethel, and Carol E. Daniel, Anchorage, for Appellants.
James L. Baldwin, Michael G. Mitchell, and Dean J. Guaneli,
Assistant Attorneys General, and Gregg D. Renkes, Attorney
General, Juneau, for Appellees.

Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and
Carpeneti, Justices.

EASTAUGH, Justice.

I. INTRODUCTION

The appellants are plaintiffs who sued the State of Alaska, alleging that its
allocation of law enforcement services violates the constitutional rights of residents of ?off-
road,? predominantly Alaska Native, communities. Among other things, the plaintiffs alleged
that the state violates their federal and state rights to equal protection of the law by adopting or
creating a de jure discriminatory system of law enforcement, by engaging in intentional racial
discrimination in providing law enforcement services, and by discriminating against residents of
off-road, outlying communities in providing law enforcement services. The superior court
rejected all of their claims, in part on summary judgment and in part following a bench trial.
The plaintiffs argue here only that it was error to reject their federal and state equal protection
claims. We conclude that the superior court did not err in holding that they did not prove that
the state adopted or established a de jure discriminatory law enforcement system. We also hold
that it did not err in rejecting after trial their state equal protection claim that alleged that the
state?s law enforcement system is linked to a discriminatory intent or purpose. The rejection
of that claim after trial renders harmless their argument that the court erroneously dismissed
their corresponding federal claim on summary judgment. We also conclude that the superior
court did not clearly err in holding that off-road and on-road communities are not similarly
situated. We therefore affirm.
II. FACTS AND PROCEEDINGS
A. Facts
This appeal concerns plaintiffs? claims that the State of Alaska, in allocating state
law enforcement services, unconstitutionally discriminates against residents of small rural,
predominantly Native, communities that are not on the state road system. Plaintiffs refer to
these communities as ?off-road predominantly Native communities? and as ?Native Villages.?
The state describes them as ?isolated,? ?geographically cut off from the rest of the state,?
?predominantly populated by Alaska Natives,? ?off-road,? and ?rural Alaska.? For simplicity,
we will sometimes refer to them as ?off-road? communities, and will sometimes refer to
communities on the state road system as ?on-road.?

Residents of Alaska receive law enforcement services in various ways. Most are
served by police officers employed by their local governments. The Alaska Police Standards
Council (APSC), which establishes minimum standards for police officers in Alaska, certifies
these officers. APSC issues certificates to persons who satisfy the standards for ?police
officers.? A person may not be appointed a non-probationary police officer in Alaska without
meeting those standards. Law enforcement services provided by local municipal police
departments are not at issue here.
Alaskans who live in places that do not have local certified police officers receive
law enforcement services from the Alaska State Troopers, a division of the Alaska Department
of Public Safety. Troopers are certified as police officers by the APSC. Troopers must receive
at least 440 hours of training in law enforcement; they actually receive 1100 hours of training.
In addition to law enforcement, troopers provide traffic enforcement, search and rescue
coordination, Civil Air Patrol support, court security, sex offender registration, and prisoner
transportation services.
The Alaska State Troopers are organized into five detachments encompassing
large regions across the state. Detachment A covers Southeast Alaska. Detachment B covers
Southcentral Alaska, including the Mat-Su Valley, portions of the Anchorage Bowl, and areas
east to the Canadian border. Detachment C covers Western Alaska, Kodiak Island, and the
Aleutian Chain. Detachment D covers Interior and Northern Alaska. Detachment E covers
the Kenai Peninsula.

The communities and individuals bringing this lawsuit are located within
Detachment C. It contains the greatest concentration of off-road Native villages, including
sixty-five percent of the federally-recognized tribes in Alaska, and has an area nearly the size of
Texas.
Troopers are not stationed in every community within each detachment. They
are instead posted in hub communities that have transportation links to other areas within the
detachment. In Detachment C, troopers are stationed in hub posts in Aniak, Bethel,
Dillingham, Galena, King Salmon, Kodiak, Kotzebue, Nome, and St. Mary?s. King Salmon,
with a population of approximately 440 in 2000, is the smallest of these ?hub? communities.
Troopers in hub posts provide some law enforcement services to residents of
outlying communities, but generally only respond to emergencies or reported felonies. Troopers
in on-road posts also patrol roads within their jurisdiction. As of 2002 the starting salary for a
trooper was approximately $19 per hour. As of 2002 there were 237 Alaska State Troopers,
185 of whom were below the rank of sergeant and actively engaged in case investigation.

Many off-road communities that have neither local municipal certified police nor
a local trooper post receive some local law enforcement services from Village Police Officers
(VPOs) or Village Public Safety Officers (VPSOs). VPOs and VPSOs are not certified by the
APSC. A VPO may only serve in an incorporated ?community off the interconnected Alaska
road system, with a population of less than 1,000 persons.? Similarly, a VPSO may only serve
in ?a community with a population of less than 1,000 individuals.?
The VPO program began when James M. Fitzgerald, then Commissioner of
Public Safety, in 1959 proposed establishing a ?constable? program to ?provid[e] improved
State Police service in remote villages and communities.? In a letter to State Police District
Commanders, Commissioner Fitzgerald wrote:

I am in receipt of daily requests from communities throughout
Alaska for resident police services. This of course would be
prohibitively expensive were we to utilize regular State Police
Officers. Yet, there is a definite requirement in many of these
villages for local police officers to ?keep the peace.? This need
cannot be met by sending State Police officers from cities which
are several hundred miles distant. A good deal of thought has
been given to this matter, and I have considered the feasibility of
appointing special State Police ?Constables? amongst the native
and eskimo population of these villages and communities. . . .
They would receive special training in effecting an arrest and in
the enforcement of misdemeanor statutes. . . . I would not expect
them to be on duty during given hours, but I would expect that
they be available within the community to provide immediate
police service when the occasion presents itself. . . . Major crimes
would, of course, be immediately referred to the State Police, but
pending the arrival of these personnel, the Constables could
provide an important service by preserving the scene, securing
necessary information or identifying suspects.
The parties agree that Commissioner Fitzgerald?s constable program became the Village Police
Officer program, which was established in 1963 and continues to operate today.
As of 2002 eighteen communities in Alaska had VPOs. VPOs are appointed by
their village and are independent of the Alaska Department of Public Safety. They are
required to receive forty-eight hours of instruction and training, including ten hours of first aid
instruction. Apparently no VPO has received this much training. VPOs are not armed.
Many VPOs are paid with funding from Community Oriented Policing Services grants from
the federal government. As of 1999 many VPOs earned $7 per hour; they received no
overtime pay.
The VPSO program dates back to the late 1960s when then-Trooper Lieutenant
William Nix (later Commissioner of Public Safety) became supervisor of trooper outposts.
While serving in that role, Lieutenant Nix developed concerns about the sufficiency of the
VPO program. He was quoted in a trooper history as recalling that the Department of Public
Safety ?needed to broaden the function of these village officers to train them to provide
emergency medical assistance and organize local fire-fighting and search-and-rescue groups . . . .
Trying to make them just police officers was a waste of money.?

In 1971 then-Captain Nix proposed the creation of a ?special constable? position
within the Department of Public Safety. Captain Nix noted that the department had received
complaints ?by citizens living in rural Alaska that remote areas are being discriminated against
when it comes to the State?s providing law enforcement services.? Captain Nix called
allegations that the state directed personnel and funding to larger metropolitan regions and
provided poor service to remote areas ?true in many respects.? He explained that ?the level of
service provided by the State Troopers in rural areas is below standard when compared to
operations in the larger metropolitan areas.? Captain Nix faulted insufficient ?funds, planning
and personnel? for the deficiencies. He proposed a special constable program to increase ?the
inclusion of bilingual Alaskan Natives into the Alaska State Trooper structure? and to develop
?a core of well trained Alaska Natives, who in turn may one day be instrumental in assisting
their people to establish and maintain city or borough police departments.? He envisioned the
special constables as Alaska Natives who would travel with troopers, assist troopers in providing
law enforcement services, serve as interpreters, help train village police officers, and increase
cultural understanding between the troopers and the residents of Native villages. The special
constable program apparently operated in Alaska from 1971 to 1988.

In 1980 then-Commissioner Nix proposed the VPSO program. The program
began with funding from a federal Law Enforcement Assistance Administration grant. The
concept paper for the VPSO program explained that ?[r]ural Alaska? had the worst ?record for
public safety? anywhere in the United States. The paper noted that most ?predominantly
native villages? did not have the funds to hire a local police officer. It found that a small village
of under 300 residents did not need a full time police officer, fire fighter, or paramedic. The
paper recognized that ?although these various skills are needed ? indeed are desperately needed
? the delivery system must be structured to meet the needs of far fewer people with
substantially fewer public safety problems of generally less complexity than urban conditions
present.? Commissioner Nix and his staff envisioned the VPSOs as ?individuals with a broad
array of public safety skills.? Although VPSOs would not receive as much training in a specific
field as police officers, fire fighters, or paramedics would in their respective disciplines, they
would receive training in each field sufficient to meet most of the public safety needs of a small
community.
The VPSO program is now organized by statute within the Department of Public
Safety. The department awards grants to nonprofit regional Native corporations, which then
hire and assign VPSOs to villages within the corporations? regions. VPSOs are required to
receive at least 240 hours of basic training. As of April 2002 VPSOs received approximately
360 hours of training. Eighty of those hours are in fire safety and suppression.

As their name implies, VPSOs are not solely law enforcement officers. They are
also trained to provide ?emergency medical response, water safety, fire prevention, search and
rescue, probation and parole? services. VPSOs investigate misdemeanors that occur in their
villages, but are generally not permitted to investigate felonies. Except in emergencies, VPSOs
may not carry firearms. VPSOs are instructed by the troopers not to confront armed
offenders. The starting salary for VPSOs differs for each nonprofit regional corporation. In
2002 the starting hourly pay rate for a VPSO ranged between $13.78 and $17.61, and averaged
$15.99. As of 2002 seventy-two communities had VPSOs. The VPSO appropriation in the
budget of the Department of Public Safety allowed for eighty-four VPSOs in 2002, although
some of those positions were vacant.
As of April 2002 there were 237 troopers available for law enforcement for the
entire state outside of localities with municipal police departments. According to the 2000
federal census and undisputed statistics submitted by the plaintiffs in the superior court, there
are 165 places in Alaska that are off the interconnected road system, that have a population of
twenty-five or more, and that do not have local APSC-certified police. These 165 places have a
total population of 42,265; of that total, 32,265 are Alaska Natives. Of these 165 places, 130
have a population that is over fifty percent Native. Of the 165 communities, seventy-two have
a VPSO and eighteen have a VPO. Because some places have both a VPSO and a VPO,
ninety-one communities have either a VPSO, VPO, or both. Of the 130 predominantly Native
communities, eighty-five have either VPSOs or VPOs, and forty-five have no local resident law
enforcement service. Of the thirty-five predominantly non-Native communities, five have
either VPSOs or VPOs and thirty have no local resident law enforcement service.

B. Proceedings
The plaintiffs filed their complaint in 1999. The plaintiffs were two Alaska
Native advocacy groups, ten predominantly Alaska Native communities located off the road
system, and six individual Alaska Natives who live in communities off the road system. As
the lawsuit proceeded, the superior court dismissed some of the plaintiffs. The six individual
plaintiffs and the communities of Akiachak and Tuluksak were the only remaining plaintiffs at
trial.

The defendants named in the original complaint were the State of Alaska,
Ronald Otte, in his capacity as Commissioner of Public Safety, and the Alaska Police
Standards Council. The original complaint alleged that the defendants ?fail[ed] to provide
minimally adequate police protection to off-road Native villages and . . . discriminat[ed] against
them in the provision of State law enforcement services.? It also alleged that the defendants
violated the plaintiffs? rights to due process, equal protection, and law enforcement protection
under the Fourteenth Amendment of the United States Constitution and article I, sections 1,
3, 7, 12, and 24 of the Alaska Constitution.
The plaintiffs sought declaratory and injunctive relief. Their complaint asked for
a preliminary injunction precluding the defendants ?from using federal funds in State law
enforcement programs until they submit a plan, approved by this Court, to cease their
discriminatory conduct toward Alaska Native Villages in the provision of police protection and
eliminate the effects of their past discrimination.? Their complaint also asked the superior
court to permanently enjoin the defendants ?from discriminating against off-road outlying
communities in the provision of police protection or from adopting policies, regulations or
otherwise taking actions which would provide off-road, outlying communities a lesser level of
police protection than provided on-road communities.? Finally, it sought a permanent
injunction preventing the defendants ?from using State or federal funds in State law
enforcement programs that unlawfully discriminate against Alaska Native villages or other off-
road, outlying communities in the provision of law enforcement services.?
Superior Court Judge Karen L. Hunt, to whom the case was then assigned,
denied plaintiffs? motion for a preliminary injunction. She reasoned that the plaintiffs did not
make a clear showing of probable success on the merits. On June 7, 2000, Judge Hunt also (1)
denied the state?s motion to designate the lawsuit as a class action; (2) ruled that the Alaska
Inter-Tribal Council lacked standing as an institution and thus must represent its membership
or be dismissed from the case; and (3) dismissed as plaintiffs the eight off-road Native villages
that are located within municipalities. The Alaska Inter-Tribal Council later notified the
superior court that it did not represent its membership.

Plaintiffs? second amended complaint pleaded eight causes of action asserting
various legal theories. Only their second, third, and fourth causes of action are at issue in this
appeal. Each of these three causes of action alleged federal and state equal protection
violations.

Plaintiffs? second cause of action asserted that the state presently operates a de
jure race-based system of law enforcement that either is traceable to a de jure race-based pre- or
post-statehood system of law enforcement, or was intentionally created after statehood. We
sometimes refer to this as their ?de jure race-based system? or ?de jure? claim.
Plaintiffs? third cause of action asserted that the state engages in intentional
racial discrimination in the way it provides police protection by certified police officers,
resulting in a disparate impact on Alaska Natives. We sometimes refer to this as their
?disparate impact? or ?racial discrimination? claim.
Plaintiffs? fourth cause of action asserted that the state discriminates against
residents of ?off-road outlying communities? in providing police protection. We sometimes
refer to this as their ?geographical discrimination? claim.

The case was assigned to Superior Court Judge Sharon L. Gleason when Judge
Hunt retired. By order of December 4, 2001, Judge Gleason granted the state?s motion to
dismiss the Alaska Native Justice Center as a plaintiff; Judge Gleason based this ruling on Judge
Hunt?s decision dismissing the Alaska Inter-Tribal Council as a plaintiff.
The state moved for summary judgment on all claims. By order of February 13,
2002, Judge Gleason granted the state?s motion in part and denied it in part. The February 13,
2002 order granted summary judgment to the state on plaintiffs? federal and state substantive
due process claims and on their claims under article I, sections 12, 14, and 24, and article VII,
sections 4 and 5, of the Alaska Constitution. It also granted summary judgment to the state
on the federal equal protection claim asserted in plaintiffs? fourth cause of action, which
alleged geographic discrimination. These rulings are not at issue on appeal.
The February 13, 2002 order also granted summary judgment to the state on the
federal equal protection claim set out in plaintiffs? third cause of action, which alleged
disparate impact resulting from intentional racial discrimination in providing police protection.
The order denied summary judgment to the state on the federal equal protection claim set out
in plaintiffs? second cause of action, which alleged that the state operates a de jure race-based
dual system of law enforcement. It also denied summary judgment to the state on the state-
based equal protection claims asserted in plaintiffs? second, third, and fourth causes of action,
because ?material factual issues are genuinely disputed.?

Plaintiffs tried their remaining claims to the court without a jury in April 2002.
Thirty-three witnesses testified during the nine-day trial. After plaintiffs presented their case-in-
chief, the superior court, on the state?s motion, dismissed that part of plaintiffs? second cause
of action which alleged that the state intentionally adopted a de jure race-based system of law
enforcement that was allegedly operated in Alaska before Alaska became a state. Following
trial, the superior court issued a thirty-three page decision that thoroughly discussed the
evidence and ruled in favor of the state on the plaintiffs? remaining claims. The court
explained its reasoning in both its mid-trial oral findings and its extensive post-trial written
decision containing its findings of fact and conclusions of law.
Plaintiffs now appeal several of the superior court?s rulings. They appeal Judge
Hunt?s June 7, 2000 order dismissing as plaintiffs the Alaska Inter-Tribal Council and the eight
villages located within municipalities. They appeal Judge Gleason?s December 4, 2001 order
dismissing the Alaska Native Justice Center. They appeal Judge Gleason?s February 13, 2002
grant of summary judgment to the state on the federal equal protection claim set out in their
third cause of action (the disparate impact claim). Finally, they appeal Judge Gleason?s post-trial
decision and order granting judgment to the state on the federal equal protection claim set out
in plaintiffs? second cause of action (the de jure claim) and the state equal protection claim set
out in their fourth cause of action (the geographical discrimination claim).
III. DISCUSSION
A. Standard of Review

We review a grant of summary judgment de novo and will affirm the ruling of
the superior court if the record indicates that no genuine issues of material fact are in dispute
and that the moving party is entitled to judgment as a matter of law. We apply our
independent judgment to questions of law and will ?adopt the rule of law which is most
persuasive in light of precedent, reason, and policy.?
We apply the clearly erroneous standard of review to a trial court?s findings of
fact. A finding of fact is clearly erroneous and will be reversed only if review of the entire
record leaves us with a definite and firm conviction that a mistake has been made.
B. Initial Observations
The plaintiffs ultimately found their appellate arguments on two main
propositions.

The first proposition is that the state?s VPSO and VPO programs, which exist
largely in predominantly Alaska Native off-road communities and whose officers have less law
enforcement training and authority than Alaska State Troopers, show that the state operates a
?race-based? system of law enforcement in rural Alaska. Thus, plaintiffs contend that
significant disparities between troopers and VPSOs and VPOs in qualifications, experience,
training, arms, equipment, salaries, benefits, working conditions, and authority ?result in a
lower level of police protection for off-road, predominately Native communities than the
protection afforded by the Troopers to on-road predominately white communities.? As to this
first proposition, the superior court found that trooper allocation decisions are racially neutral,
and that the VPO and VPSO programs are supplements to and not substitutes for trooper law
enforcement services.
The second proposition is that for purposes of allocating the troopers? law
enforcement services, off-road and on-road communities are similarly situated. Thus, plaintiffs
assert that despite some differences between on-road and off-road places, ?all Alaska
communities, whether on or off the road grid, are similarly situated in the only two relevant
ways ? their basic need for and right to equal access to adequate police protection.? (Emphasis
in original.) As to this second proposition, the superior court ruled after trial that on-road and
off-road communities are not similarly situated due to significant differences such as
population and accessibility.
C. Federal Equal Protection Claims
1. Introductory principles

A law that is race-neutral on its face nonetheless violates the Federal Equal
Protection Clause if as applied it has a disparate impact on a racial group, and if that disparate
impact ?can be traced to a discriminatory purpose.? The plaintiffs conceded below and
concede on appeal that ?the statutes and regulations governing the allocation of certified and
uncertified police are racially neutral.? Therefore, given their concession of the laws? facial
neutrality, to prevail on their federal equal protection claim, plaintiffs had to show both that
(1) as applied, the statutes and regulations controlling the allocation of law enforcement
services in Alaska disproportionately and negatively impact Alaska Natives in their receipt of
law enforcement services, and that (2) this disproportionate impact stems from an intent to
discriminate against Alaska Natives in the allocation of law enforcement services. Absent a
discriminatory purpose, a law that is race-neutral on its face does not violate the Federal Equal
Protection Clause, even if the impact is disparate.

Our inquiry here focuses on the second element, the requirement that a claimant
establish discriminatory purpose or intent. We first address the plaintiffs? claim that the
current police allocation system is traceable to a prior de jure discriminatory system. In some
cases, neutral policies traceable to a prior de jure discriminatory system can, in essence, serve as
a proxy for discriminatory intent attributable to the challenged policies (on the theory that the
past system has not been sufficiently dismantled). We conclude below that the superior court
did not err in holding that the present system is not traceable to a prior de jure discriminatory
system of law enforcement. Plaintiffs additionally argue that the evidence presented at the
summary judgment stage and at trial established a discriminatory purpose or intent attributable
to the present system. Because we conclude that plaintiffs failed to demonstrate a
discriminatory purpose and therefore cannot succeed on their federal equal protection claim,
we affirm the superior court?s dismissal of this claim.
2. Whether the state?s law enforcement allocation system is traceable to a
prior de jure discriminatory system
Invoking United States v. Fordice, plaintiffs contend that the state?s present
system of allocating law enforcement services is traceable to a prior de jure discriminatory
system. The parties refer to this as plaintiffs? Fordice claim. Fordice offers significant litigation
benefits to a plaintiff who shows that present policies are traceable to a prior de jure system,
because it relieves the plaintiff of having to prove that a discriminatory purpose can be
attributed to the defendant?s actions.

After trial, the superior court found that the State of Alaska, when creating its
law enforcement system after statehood, did not adopt an allegedly de jure discriminatory pre-
statehood law enforcement system (i.e., the former Indian Police program operated by the
federal government or any other pre-statehood program). The court also found that the state
did establish its own de jure discriminatory system. The court therefore rejected plaintiffs?
equal protection theory that the state?s law enforcement system is traceable to a prior de jure
discriminatory system.
a. United States v. Fordice
In Fordice, the United States Supreme Court considered whether Mississippi had
satisfied its obligation under Brown v. Board of Education to dismantle de jure segregation in its
public university system. Mississippi acknowledged that its laws formerly mandated a
segregated, dual educational system, but argued that it had reached full compliance with the
law and had eliminated its prior de jure system.
The Court determined that merely dismantling a de jure segregated admissions
policy was insufficient to eliminate a prior de jure segregated dual educational system. The
Court explained:
[A] State does not discharge its constitutional obligations until it
eradicates policies and practices traceable to its prior de jure
system that continue to foster segregation. Thus we have
consistently asked whether existing racial identifiability is
attributable to the State . . . and examined a wide range of factors
to determine whether the State has perpetuated its formerly de
jure segregation in any facet of its institutional system.[ ]

Fordice does not require a showing of present intent to discriminate if a claimant can show that
the current system is ?traceable? to a prior de jure system. Given the difficulty of proving
discriminatory intent, this benefit may be important in a given case. As the Court noted, ?if
challenged policies are not rooted in the prior dual system, the question becomes whether the
fact of racial separation establishes a new violation of the Fourteenth Amendment under
traditional principles.?
b. Applicability of Fordice

In weighing the state?s argument that Fordice does not apply to this case, we first
consider whether it matters that there was a genuine factual dispute about whether there was a
de jure race-based system of law enforcement in Alaska before statehood. It was undisputed in
Fordice that Mississippi previously had officially operated a racially segregated university system.
The dispute in Fordice was whether Mississippi had dismantled its prior system. But here there
was no prior determination that law enforcement in the decades before Alaska statehood was
de jure race-based, and the evidence is not so one-sided that we must hold as a matter of law
that the federal government or the Territory of Alaska operated de jure race-based law
enforcement programs in Alaska in the years before statehood. The plaintiffs contend on
appeal that evidence of a race-based dual system of law enforcement is undisputed. To the
contrary, we think the evidence is in dispute and that the plaintiffs overstate their case. The
burden-shifting discussed in Fordice does not apply if the predecessor program was not de jure
discriminatory.

There is a second impediment to applying Fordice here. The State of Alaska did
not operate the pre-statehood programs to which plaintiffs would trace the origins of the state?s
present system. Plaintiffs have not persuaded us that pre-statehood programs conducted by the
federal or territorial governments should be treated as though the State of Alaska operated
them. These are distinct governmental entities. The text of Fordice repeatedly refers to the State
of Mississippi?s prior system, implying that tracing requires that the present government have
purposefully discriminated in the past. This would be a logical requirement, because de jure
discrimination requires an intent to discriminate. The analytical benefit Fordice confers
makes sense in context of a state program challenged on the theory it is traceable to the state?s
prior, intentionally discriminatory program. In effect, Fordice shifts the burden to the state to
prove that the discriminatory intent it previously held no longer exists. But placing that
burden on a government is unwarranted if it was a different government that previously
harbored the discriminatory intent. We do not read Fordice to reach so far. Another
Supreme Court decision implies that this burden-shifting is justified by the state?s ability to
explain that its actions were not motivated by segregative intent. This rationale would not
apply to intentions previously motivating a different government.

There is a third problem with applying Fordice here. Fordice concerned a state?s
educational system. As one court has noted, Fordice has not been applied outside the context
of education. We cannot say whether the Supreme Court would distinguish between
educational programs and law enforcement services per se. But we perceive legally significant
differences between programs that are ineluctably shaped by the physical realities of
transportation, time, distance, and weather, and programs that can be readily and subtly
molded by political choice hiding discriminatory intentions. The Court in Fordice seemed to
acknowledge that student attendance could be affected by many factors other than state
policies; the Court seemed to distinguish between race-neutral factors and factors that might
still be affected by the state?s policy choices. It also required that policies traceable to the de
jure system ?must be reformed to the extent practicable and consistent with sound educational
practices.? The majority opinion noted that if traceable policies ?are without sound
educational justification and can be practicably eliminated,? the state has not proved that it
dismantled its prior system. These passages remind us that factors that are inherently race-
neutral are distinguishable from factors more easily influenced by policy. We think that
decisions to post Alaska State Troopers in places that are on the road system or in places that
are transportation hubs are materially different in character from those made by Mississippi in
operating its post-secondary education system.
We conclude that the Fordice traceability analysis does not apply here, and that a
violation of federal equal protection can only be shown ?under traditional principles.?
Because the trooper allocation statutes and regulations are facially race-neutral, these
?traditional principles? dictate that, in order to succeed on that claim, plaintiffs must show a
government intent to discriminate.

3. Whether it was clear error after trial to reject plaintiffs? claim that the
state intentionally adopted or designed a discriminatory system
Even though Fordice does not apply, evidence of pre-statehood practices and the
origins of the state?s present system remains relevant to equal protection analysis of plaintiffs?
third cause of action (claiming racial discrimination) under ?traditional principles.? Intent to
discriminate may be proved by circumstantial evidence and ?historical background . . . is one
evidentiary source? in determining the existence of discriminatory purpose, ?particularly if it
reveals a series of official actions taken for invidious purposes.?
The superior court allowed plaintiffs to proceed to trial with their state law claim
that the state intentionally used race in designing its own system of law enforcement. After
trial, the superior court ruled against plaintiffs on this claim, ultimately finding that plaintiffs
had ?not established that in creating the VPSO program, or in creating any predecessors to that
program, the State established a system of law enforcement in which a person?s race or a
community?s racial composition were determinative factors in the type of law enforcement
services to be provided.?

For purposes of our analysis here, we assume that before Alaska became a state,
law enforcement services provided in Alaska by the federal government were race-based. The
superior court found that when it was in effect, the Indian Police program operated by the
federal government before statehood was a ?race-based system of law enforcement.? The court
seems to have found that the program ended in 1907, but that equivalent federal programs
may have continued into the 1930s. The court, however, citing the federal government?s trust
responsibility to Indians, made no finding that the federal race-based programs constituted
illegal discrimination. The court did find that there was no evidence that a post-Indian Police
and pre-statehood U.S. Marshals program was explicitly race-based and also found that
plaintiffs had not proved their claim that the state adopted the pre-statehood Indian Police
program following statehood. We do not need to decide whether the federal programs were
also programs of the Territory of Alaska, because the ultimate questions are whether the State
of Alaska intentionally created, and is presently operating, a discriminatory system. As the
superior court observed mid-trial, the evidence on these questions was circumstantial.

Much of the trial court evidence at the core of the plaintiffs? claims of an
intentionally discriminatory system of law enforcement related to whether the state?s current
VPSO and VPO programs are ?traceable? to a pre-statehood system. Plaintiffs regard programs
such as the VPSO program as state-sponsored substitutes for law enforcement by full-fledged
police officers, and interpret evidence about the creation of these programs as revealing an
intention to discriminate against Alaska Natives and residents of remote communities. They
argued below that the Supreme Court?s use of words such as ?traceable? and ?derived? in
Fordice indicates that Fordice does ?not necessarily requir[e] . . . an absolute lineup of causality
from earlier programs to later ones.? They then argued that ?a single model of a segregated
system? for providing law enforcement services has existed in Alaska since the 1800s. They
distinguished the VPSO program from a mere desire to hire Alaska Natives as state troopers.
They argued that the state is ?creating entirely separate programs to provide what are basically
the same government services and constructing those separate programs in racial terms which
was the model that had been set out with the Indian police.?
The state asserts on appeal that these programs (1) do not discriminate against
Alaska Natives; (2) increase the quality of law enforcement and other public safety measures in
the villages; and (3) supplement law enforcement provided by full-fledged police officers.
After prompting from the superior court, the plaintiffs conceded at trial that
there were no ?documents where [the state] specifically said . . . we had this Indian police
model a few decades ago, why don?t we replicate it.? The plaintiffs argued at trial that the
VPSO program was traceable to the Indian Police program because of what they called
?numerous similarities? between the programs. They emphasized that in both programs, non-
Native superiors directed the Native law enforcement officers, there was a regional hub system,
and the officers had limited authority. The plaintiffs argued that law enforcement in Alaska
has ?been tinkered with over time,? but that ?it?s basically the identical system.? In response to
the superior court?s questions about any evidence of ?the link between the Indian police and
the marshals and the state programs that were developed after statehood,? counsel for the
plaintiffs responded that ?all we have . . . on that is circumstantial evidence.?

The evidence shows that there are many differences, as well as similarities,
between the Indian Police and the VPSOs. The Indian Police were ?clothed, paid and guided
by military and territorial authorities? and the VPSOs are ?clothed and guided? by the Alaska
State Troopers. The Indian Police wore and the VPSOs wear unique, government-provided
uniforms. The Indian Police were paid from different funding sources within the federal
government, including the Bureau of Indian Affairs and the Treasury Department. The
VPSOs are paid with state funds that pass through Native regional nonprofit corporations.
There was evidence the duties of the Indian Police were defined by the territorial governor.
The VPSOs are guided by the troopers in law enforcement matters, and by the nonprofit
corporations in all other matters. The Indian Police were exclusively composed of Alaska
Native officers. There is no ethnicity requirement to become a VPSO, and there are non-
Native VPSOs. The subjects of law enforcement by the Indian Police were exclusively Alaska
Natives. There is no racial or ethnic jurisdictional restriction on VPSOs, although almost all
VPSOs are stationed in places that have a population that is majority-Native. The Indian
Police provided only law enforcement. VPSOs are trained in and provide, among other
services, law enforcement, search and rescue, emergency medical treatment, fire safety, and
water and boating safety.

Based on this evidence, the superior court found in its oral findings at the end of
plaintiffs? case-in-chief and again in its written findings after trial that the VPSO program was
not traceable to the pre-statehood Indian Police program. The superior court emphasized the
?considerably broader duties? VPSOs have as compared to the duties of the Indian Police. It
noted that while membership in the Indian Police was limited to Alaska Natives, the VPSO
program has no ethnic or racial requirement for entry. It also explained that some VPSOs are
stationed in places where the majority of the population is non-Native, while Indian Police
could only legally serve in predominantly Native communities. The court found that ?the
establishment of the VPSO program was based on the advice of knowledgeable people in the
field of law enforcement and . . . was not an effort by the State of Alaska to resurrect an old
model that had been in place from the late 1800s to early 1900.?
The record convinces us that the superior court did not clearly err in finding that
the state did not adopt the federal government?s pre-statehood de jure race-based Indian Police
program. Credible evidence supports the superior court?s findings.
We also conclude that the superior court did not err in rejecting plaintiffs? claim
that the present system is ?traceable? to post-statehood race-based antecedents. Plaintiffs
contend that the superior court altogether failed to address this issue. Although the court?s
written decision did not expressly find that the present system was not traceable to an earlier
state system, it expressly rejected the factual underpinnings for plaintiffs? claim of traceability.
Having noted the traceability claim and then made its findings, the superior court at least
implicitly addressed the issue. We therefore discern no analytical error on the superior court?s
part. And because we concluded above that Fordice does not apply to this case, the traceability
issue has no special importance. To establish a discriminatory purpose in this case, plaintiffs
had to demonstrate that the State of Alaska was motivated by discriminatory intent in creating
a race-based system. Plaintiffs could not rely on intent attributable to federal or territorial
officials. The traceability issue was therefore subsumed in plaintiffs? efforts to prove that the
state was motivated by an intention to discriminate. The superior court considered the
evidence potentially probative of that claim, and discussed much of it in detail in explaining
why it was ruling against the plaintiffs.

Because the superior court?s findings are not clearly erroneous, we conclude that
the historical evidence does not prove the existence of a discriminatory intent on the state?s
part, especially since no ?series of official actions taken for invidious purposes? has been
revealed.
4. Whether it was reversible error to dismiss the federal racial
discrimination claim on summary judgment
In granting summary judgment to the state on the federal equal protection claim
asserted in plaintiffs? third cause of action, the superior court concluded that the plaintiffs
?have not offered evidence that any disparate impact of the admittedly facially-neutral
standards for allocating certified police officers arises from an actual present intent to
discriminate against Alaska Natives.? Plaintiffs argue on appeal that they submitted
?abundant, uncontradicted evidence proving precisely to the contrary.? They contend that,
given ?the uncontradicted record? and ?undisputed facts,? we should rule as a matter of law for
the plaintiffs on this claim.
The state denies any intent to discriminate against Alaska Natives in allocating
law enforcement services. It contends that the plaintiffs conceded ?more than once? that state
officials ?bore no discriminatory intent and were operating with the best of intentions.?
To be entitled to summary judgment, a movant must demonstrate that there is
no genuine issue of material fact and that the movant is entitled to judgment as a matter of
law.

Plaintiffs? contention that the evidence supporting this claim is ?undisputed? or
?uncontradicted? is unwarranted. Most of the evidence they rely on was also offered at trial to
support their state law claim that the state intentionally discriminates against Alaska Natives in
allocating law enforcement services. Plaintiffs primarily rely on what they say is evidence of past
discriminatory intent and the adoption or establishment of a system of allocating law
enforcement services that discriminates based on race. But as the superior court observed, the
contentions of past discrimination and the adoption or establishment of a discriminatory
system form the basis for the plaintiffs? second cause of action ? their Fordice-based claim that
the state intentionally adopted or established a prior de jure race-based system for allocating law
enforcement services and continues to operate that allegedly race-based dual system. Plaintiffs
proceeded to trial on that cause of action, and lost, so it cannot be said that the evidence of
historical discriminatory intent is undisputed.
Plaintiffs? claim necessarily rests on the theory that the state relied on the
availability of VPOs and VPSOs in deciding where to station troopers. They assume that if
there were no VPOs or VPSOs, the state would allocate trooper services more favorably to
Alaska Native villages. But if the allocation of trooper services is not discriminatory in the first
place, the Equal Protection Clause would not entitle plaintiffs to a more favorable allocation of
trooper services. There was evidence at trial that in allocating trooper services, the state did not
rely on the availability of VPOs or VPSOs to alter trooper assignments. The superior court
found that the VPO and VPSO programs were supplements to, rather than substitutes for,
trooper services. Likewise, plaintiffs? contention that there is a ?dual system? of law
enforcement assumes that the state treats VPOs and VPSOs as alternatives to troopers. But
credible evidence to the contrary supports the trial court?s post-trial findings that those
programs supplement the troopers and are not meant to be substitutes for trooper services.

Plaintiffs? contentions ultimately also turn on evidence that the response times of
troopers to incidents in Native villages, most of which are not accessible to the troopers by road
from their hub posts, are greater than in locations on the road system. But those differences
would not be legally significant for equal protection purposes unless the villages are similarly
situated to on-road communities. The superior court?s post-trial decision found that they are
not.
We therefore reject plaintiffs? contention that the evidence was so compelling
that they were entitled to judgment as a matter of law on this federal claim.
We recognize that when summary judgment was granted to the state on this
claim, some evidence potentially supported the dismissed claim. Glenn Godfrey, then Director
of the Division of Alaska State Troopers, stated in an affidavit that decisions about trooper
location are not and have never been made ?because of the racial, ethnic or cultural make-up of
the community.? But he also explained that trooper allocation decisions are based on
the need for the position, the funding available to the division,
the availability of other law enforcement services, the geographic
location and transportation and communication services in
communities, and the ability of positions to be mobile and
flexible so as to provide assistance to other areas of the state if
needed.

(Emphasis added.) The emphasized reference could arguably be read in isolation, at least at the
summary judgment stage, to imply that VPSOs were treated as providing substitute law
enforcement services in Native villages and that the state took VPSO availability into account
when it allocated trooper law enforcement services. The frailty of the probative value of this
isolated reference would normally render it insufficient to create a genuine factual dispute, but
given the extreme difficulty of proving discriminatory intent it would arguably be sufficient in
this case.

Nonetheless, the superior court?s rejection of the identical state racial
discrimination claim after trial makes it unnecessary to decide whether it was error to grant
summary judgment to the state on the federal claim asserted in the third cause of action. The
Alaska Constitution?s guarantee of equal protection is at least as protective as the Federal
Constitution?s corresponding guarantee. The superior court?s rejection of plaintiffs? state
claim after a trial on the merits establishes the harmlessness of any possible error in granting
summary judgment to the state on the identical federal claim. Plaintiffs do not contend that
they might have offered any additional evidence had the federal claim gone to trial, or that a
different standard would have permitted them to succeed on their federal claim at trial even
though they did not prevail on their state claim. Granting summary judgment on that claim
therefore did not prejudice plaintiffs.
5. Whether it was error not to shift the burden of persuasion to the state.
Plaintiffs also contend that because they established a prima facie case of racial
discrimination, it was error not to impose the burden of persuasion on the state. They rely on
two United States Supreme Court school segregation decisions to support their contention that
the superior court should have put the burden on the state to justify its conduct. In Swann v.
Charlotte-Mecklenburg Board of Education, the Court explained that

where it is possible to identify a ?white school? or a ?Negro
school? simply by reference to the racial composition of teachers
and staff, the quality of school buildings and equipment, or the
organization of sports activities, a prima facie case of violation of
substantive constitutional rights under the Equal Protection
Clause is shown.[ ]
In Keyes v. School District No. 1, Denver, Colorado, the Court identified this quotation from
Swann as defining a ?history of segregation.? The Court explained in Keyes that once a
plaintiff has made out a prima facie case of a violation of substantive constitutional rights, the
burden shifts to the state to justify its conduct. To satisfy that burden, the Court said that ?it
is not enough . . . that the school authorities rely upon some allegedly logical, racially neutral
explanation for their actions. Their burden is to adduce proof sufficient to support a finding
that segregative intent was not among the factors that motivated their actions.? Plaintiffs rely
on Keyes?s statement that ?a finding of intentionally segregative school board actions in a
meaningful portion of a school system . . . creates a presumption that other segregated schools
within the system are not adventitious.?

The plaintiffs argue that they made out a prima facie showing of a violation of
substantive constitutional rights because they demonstrated a history of segregation in the
provision of law enforcement services in Alaska, and because today it is still ?easy to distinguish
those law enforcement programs intended for Native communities from those intended for
non-Native communities.? They argue that ?the vast majority of VPSOs are Native? and that
troopers have better equipment, more training, and greater authority than VPSOs.
The state responds by arguing that under Keyes, the burden-shifting only occurs if
the government has engaged in intentional segregation. It contends that the State of Alaska
has not intentionally discriminated against Alaska Natives in providing law enforcement
services. The state also argues that Keyes does not apply to the present fact scenario: ?To
compare the state?s allocation of law enforcement resources to a ?practice of concentrating
Negroes in certain schools? is not only misplaced, it is ludicrous.?
Plaintiffs are incorrect in assuming that they made out a prima facie case of
discrimination based on race. For the reasons we discussed above in Parts III.B.2 and 3, any
pre-statehood discriminatory intentions motivating the federal government in implementing
the old Indian Police program or other pre-statehood federal programs are not to be attributed
to the State of Alaska. And given the facial neutrality of the state laws and policies that govern
the activity that is at the core of this case ? the allocation of trooper services ? plaintiffs did not
make out a prima facie case of racial discrimination by the state. We therefore conclude that
the burden-shifting discussed in Keyes does not apply. The superior court did not err by failing
to shift the burden to the state.
6. Whether the superior court applied the wrong intent standard

Plaintiffs also contend that the superior court committed legal error by adopting
the state?s ?three-part test? for determining whether law enforcement was racially based. But
we do not read the court?s decision as adopting a ?three-part test?; the cited passage of the
court?s post-trial findings simply discusses evidence that supports the superior court?s ultimate
conclusion that the state did not create a race-based system of law enforcement. The court was
there permissibly distinguishing the VPSO program from the pre-statehood federal programs
on which plaintiffs relied in attempting to prove their de jure claim.
Plaintiffs also argue that it was error for the superior court in Paragraph 111 of
its post-trial decision to require plaintiffs to show that race was a ?determinative factor? for the
state?s action. The superior court, addressing the VPSO program, there concluded: ?But
Plaintiffs have not established that in creating the VPSO program, or in creating any
predecessors to that program, the State established a system of law enforcement in which a
person?s race or a community?s racial composition were determinative factors in the type of law
enforcement services to be provided.? (Emphasis added.)
Citing Village of Arlington Heights v. Metropolitan Housing Development Corp., the
plaintiffs argue that they only needed to prove that a discriminatory purpose was a ?motivating
factor,? not a ?determinative factor.? The state responds that the plaintiffs did not prove that
race was even a motivating factor in the state?s development of its law enforcement programs.

The Supreme Court explained in Personnel Administrator v. Feeney that even
though race does not have to be the determinative factor in a governmental decision for a court
to find discriminatory intent, the government must have ?selected or reaffirmed a particular
course of action at least in part ?because of,? not merely ?in spite of,? its adverse effects upon an
identifiable group.? We conclude that although it would have been error to apply the
determinative factor standard to the ultimate question ? whether the allocation of law
enforcement services by the troopers was racially motivated ? any possible error here was
harmless because plaintiffs failed to prove intent under the correct standard. That VPSO
services were mainly available in off-road communities that were predominantly Alaska Native
does not establish that the allocation of trooper services was racially motivated. It simply
reflects demographic reality in Alaska, as do the comments of the creators of the VPO and
VPSO programs. Recognition by thoughtful state officials that Alaska Natives are
the dominant demographic group residing in rural Alaska, and would be most of the recipients
of the proposed supplemental law enforcement services, does not prove that race was a
motivation for their decisions. Nor does it prove that they sought to develop a dual law
enforcement system, much less that they wished to provide separate and substitute law
enforcement services in off-road communities. Instead, the evidence permits a logical
conclusion that the state developed its system of rural law enforcement based on financial and
geographical constraints, and an evaluation of crime rates in those locations.

Likewise, we are unpersuaded by plaintiffs? assertion that the superior court erred
in assuming that the plaintiffs were required to show that state officials acted on the basis of
?hostility or racial disfavor toward Alaska Natives? in order to show intentional racial
discrimination. They base this argument on their contention that ?uncontradicted evidence?
shows that the state ?intentionally operates separate policing programs for Native villages.?
That Native villages are the primary beneficiaries of the VPO and VPSO programs does not
compel a conclusion that the state intends to discriminate against Native villages; it only
establishes that villages with those programs are provided services that other communities do
not receive. The real question here is whether the state?s allocation of law enforcement services
by APSC-certified police officers was motivated by a discriminatory purpose. As to that
question, the evidence produced at trial does not establish that the superior court clearly erred
in finding that it was not.
D. State-Based Equal Protection Claim Alleging Discrimination Against Off-
Road Communities in Providing Police Protection
Plaintiffs? fourth cause of action asserted an equal protection violation based on
allegations that the state, in providing police protection, treats residents of off-road
communities less favorably than residents of on-road communities. We assume with respect
to this ?geographic discrimination? claim that, as plaintiffs contend and the superior court
concluded, police protection is an ?important right? for purposes of equal protection analysis.
Following trial, the superior court concluded that plaintiffs ?have not proven that the State?s
existing system of allocating trooper resources deprives them of law enforcement services that
are provided to similarly situated Alaskans.?

Plaintiffs contend that it was error to reject their geographic discrimination claim
at trial. Most of their appellate argument addresses the issue of disparate treatment and the
analysis required after disparate treatment is found. They contend that the superior court
erred in finding that police protection in off-road communities was equal or superior to that in
on-road communities. Although the state?s appellate brief discusses the disparate treatment
issue, it also argues that plaintiffs failed to prove that the ?comparison groups? were similarly
situated and that plaintiffs ?failed to meet their threshold burden of proving similarly situated
classes and systematic deprivation.?

In considering state equal protection claims based on the denial of an important
right we ordinarily must decide first whether similarly situated groups are being treated
differently. If they are, we apply a sliding scale of scrutiny to the challenged practice. In
conducting that analysis, we first determine the importance of the constitutional right at
stake. This is ?the most important variable? in determining the applicable level of scrutiny.
We then examine the state?s interests. These interests may range from merely legitimate to
compelling, depending on the burden that the challenged regulation places on the exercise of
constitutional rights. Finally, we consider the means the state uses to advance its interests.
Depending on the importance of the right involved, the means-to-ends fit may range from a
substantial relationship, at the low end of the sliding scale, to the least restrictive means
available to achieve that interest at the highest end of the scale.

But in ?clear cases? we have sometimes applied ?in shorthand the analysis
traditionally used in our equal protection jurisprudence.? If it is clear that two classes are not
similarly situated, this conclusion ?necessarily implies that the different legal treatment of the
two classes is justified by the differences between the two classes.? Whether two entities are
similarly situated is generally a question of fact.
The superior court found that plaintiffs failed to prove that the state?s ?existing
system of allocating trooper resources deprives them of law enforcement services that are
provided to similarly situated Alaskans.? It appears that the superior court concluded that the
comparisons the plaintiffs drew were fundamentally deficient. It found ?significant differences
between the Plaintiffs? home communities and many of the ?off-road? communities that
Plaintiffs have characterized as ?places in the complaint.? ? It noted the wide range in
populations among the 165 places, the range of accessibility to nearby communities where
APSC-certified police were stationed, and the presence or absence of VPSOs and VPOs in
some of the places. Similarly, it also found that ?[t]here are also significant differences among
the ?on-road? communities . . . to which Plaintiffs have compared the ?places in the
complaint.? ? The court again noted the wide range in populations of the communities on the
road system, and the range in distance and accessibility to trooper posts. Because there was
ample credible evidence to support them, these findings were not clearly erroneous.

The court also found that any discrepancies between the police protection
received by off-road communities without local police and that provided by troopers to on-road
communities ?are due principally to the geographic isolation, weather conditions and
transportation difficulties inherent in the location of many off-road communities . . . .? This
finding accurately identifies significant and relevant physical differences between on-road
communities and off-road communities. These non-trivial differences are inconsistent with a
claim that on-road and off-road communities are similarly situated in ways that are relevant
here.
The plaintiffs argue that the superior court?s findings on similarly-situatedness
were limited. They claim that the superior court did not rule that the off-road and on-road
communities were not similarly situated for equal protection purposes. They note that the
superior court continued to conduct an equal protection analysis after making its findings on
similarly-situatedness. They argue that the court would have had no reason to reach these
issues if it had found that the off-road and on-road places were not similarly situated.
We do not infer from the superior court?s willingness to address other issues that
it thought it was not resolving the similarly situated issue. It appears that the court was
diligently and commendably addressing all issues that might be subject to appeal. Its thorough
findings and conclusions leave no doubt that it was ruling that plaintiffs did not prove that
they are similarly situated to others allegedly being treated more favorably. There is no basis for
thinking that the court reasoned that it was not necessary to decide the issue. It flagged the
issue in denying summary judgment to the state, and noted it again in Paragraph 116 of its
post-trial decision, where it referred to the issue as ?[a] critical threshold inquiry.?
The superior court?s findings and conclusions permissibly distinguish on-road
from off-road communities. The vast size of Detachment C, the geographical isolation of the
off-road villages, the impossibility of traveling to them by road vehicle, and the greater
susceptibility of non-road forms of transportation to the influences of weather, terrain, and
distance all underscore the correctness of the superior court?s findings on this issue. In other
words, Alaska?s physical realities dictate the result on this claim.

Plaintiffs claim that such differences would automatically justify all disparities
?no matter how invidious? if the state prevails ? but these differences are founded in physical
reality; the state did not create them. And although plaintiffs assert that the police protection
the troopers provide must be reallocated, it is difficult to imagine how any reallocation could
overcome the factors found by the superior court. Stationing a trooper in any given isolated
village may give that village lower response times and benefit its residents, but will make it no
easier for that trooper to reach other isolated communities and their residents as need requires.

The state cannot realistically post a trooper in every remote village, and indeed
plaintiffs conceded below that this is constitutionally unnecessary. It is therefore inevitable
that troopers must travel to communities and that their ability to respond in person depends
on such neutral and physical considerations as weather, daylight, and distance, and whether the
community is accessible by road vehicle, or whether some more problematic form of
transportation must be used.

Plaintiffs argue that although there may be some differences between on-road
and off-road places, ?all Alaska communities, whether on or off the road grid, are similarly
situated in the only two relevant ways ? their basic need for and right to equal access to
adequate police protection.? (Emphasis in original.) They contend that if differences in size
and isolation ?rendered off-road residents dissimilar for equal protection purposes, rural
residents would find themselves entirely outside of equal protection guarantees.? But the
physical dissimilarities here are directly relevant and material to the issue of how Alaska State
Troopers are to provide on-location law enforcement services. These dissimilarities show that
the superior court did not clearly err in finding that the two asserted similarities are not the
relevant, much less the only relevant, points of comparison for determining the issue of
similarly-situatedness.
E. Standing of Dismissed Plaintiffs
Plaintiffs also argue that it was error to dismiss for lack of standing the claims of
eight villages located in incorporated municipalities, and the claims of the Alaska Inter-Tribal
Council and the Alaska Native Justice Center.
We do not need to consider the standing of these dismissed plaintiffs. We ruled
above that the superior court did not err in rejecting the remaining plaintiffs? equal protection
claims on their merits, and there has been no suggestion that the dismissed plaintiffs could
have offered additional evidence that could have changed the outcome on any of the equal
protection claims. The dismissed plaintiffs have not explained what additional arguments or
evidence they would have raised at trial, and they made no offer of proof. The superior court
allowed the remaining plaintiffs to present evidence about all villages in Alaska, and they
indeed offered evidence at trial about villages that had been dismissed as plaintiffs.
Because the dismissed plaintiffs have not explained how their identical claims
might have been resolved more favorably after trial, any possible error in dismissing them from
the case was harmless.
IV. CONCLUSION
We therefore AFFIRM the superior court?s judgment.

A P P E N D I X

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

ALASKA INTER-TRIBAL COUNCIL, et al., )
)
Plaintiffs, )
)
v. )
)
STATE OF ALASKA, et al., )
)
Defendants. ) Case No. 3DI-99-00113 CI
_____________________________________)

DECISION AND ORDER

. . . .
10. In Detachment C, there are trooper hubs in Aniak, Bethel, Dillingham,
Galena, King Salmon, Kodiak, Kotzebue, Nome, and St. Mary?s, which all serve as
transportation hubs for travel by air to the adjacent communities. The location of trooper
posts within Detachment C is based upon several factors including the availability of
transportation, the requirement to provide support to state courts, and the location of
correctional facilities and jails.
11. The Bethel trooper post has a state-owned aircraft and a full-time civilian
pilot. The troopers from Bethel also travel on commercial flights.

12. The Bethel troopers serve Akiachak, Tuluksak, Akiak and other
communities in the area. The Bethel trooper post has a toll-free number for calls from outlying
communities.
13. Other agencies, such as the State Department of Health and Human
Services Division of Family and Youth Services, also serve outlying communities from Bethel.
Bethel has a regional center for victims of domestic violence and sexual abuse, and a regional
child advocacy center. An inhalant abuse center recently opened in Bethel, which serves Bethel
and outlying communities.
14. Troopers from the Bethel post respond to domestic violence calls from
outlying communities. Troopers from Bethel called to outlying communities due to reports of
sexual abuse often bring the victim back to Bethel with them for examination and follow-up
investigation from the sexual abuse response team at the hospital in Bethel. Troopers also
accompany social workers on crisis calls to outlying communities.
15. The availability of transportation and public health resources in Bethel
supports the Department?s decision to locate a trooper hub there.
16. The Aniak trooper post has a twin-engine airplane and pilot. When
necessary, troopers from Aniak also serve Akiachak and Tuluksak.
17. Troopers from the Kotzebue post serve several other communities,
including Kiana. Kotzebue troopers have a toll-free number for calls for service from outlying
communities.
18. There are troopers stationed in Anchorage and Fairbanks who serve
communities other than where they are stationed, since both Anchorage and Fairbanks have
local police forces. The troopers are located in these communities because those urban areas
are centers for communication, transportation, medical and other services and are surrounded
by geographic areas over which the troopers have primary jurisdiction.

19. Some troopers located in hub communities are court service officers
whose primary responsibility is to provide services to the court. In addition, troopers facilitate
transfers of prisoners between state court and correctional facilities or jails.
20. Troopers assigned to rural posts are generally more experienced than
troopers assigned to more densely populated areas.
21. The statewide allocation of troopers has shifted over time. The Alaska
State Troopers have tended to protect the rural detachments from budget cuts. As a result,
over the past decade the number of troopers in Detachments A, B, and E has been reduced
while trooper staffing in Detachments C and D has increased. As of January 2002, the number
of authorized commissioned officers in each detachment was as follows:
Trooper Served Population per
Detachment Area Population Number of Troopers Trooper

A (Southeast) 10,961 15 731

B (Southcentral) 52,365 40 1,309

C (Western, Aleutian 40,776 42 971
Chain, Kodiak Island)

D (Interior and 62,832 57 1,102
Northern)

E (Kenai Peninsula) 33,961 31 1,096

Statewide Totals 200,895 185 1,086

At trial, the Defendants indicated there were a total of 52 troopers assigned to Detachment C,
which would result in one trooper for every 784 citizens in that detachment served by the AST.
However, the 52 trooper figure included Regional Public Safety Officers and Anchorage-based
troopers assigned to service the Detachment C region. See Exhibit T-6. The Defendants had
indicated that there were a total of 42 troopers actually stationed in Detachment C, and that is
the figure used in this chart. As a result, the above figures may understate the number of
troopers per person for Detachment C in comparison to the ratio for the rest of the state. As
the above chart indicates, according to the 2000 census, approximately 200,895 Alaskans live
in areas over which the troopers have primary jurisdiction. This figure excludes all Alaskans
who receive their primary law enforcement services from a local police force. There are 185
Alaska State Troopers of the rank of sergeant or below who are actively engaged in case
investigation in the state. Therefore, the statewide per capita allocation of active law
enforcement Alaska State Troopers is one trooper for every 1,086 residents. The 2000 census
shows 70,760 Alaskans living in Detachment C, which includes Akiachak, Tuluksak, Akiak,
Kiana, and Clark?s Point. Certified police from municipal departments serve 29,984 Alaskans
within Detachment C. Thus, the remaining 40,776 Alaskans in the Detachment C area are
served by troopers. As of fiscal year 2002, a total of 42 troopers were actively engaged in case
investigation in Detachment C, creating a ratio of troopers per capita of one Alaska State
Trooper per 971 residents in Detachment C.
22. Troopers throughout the state generally operate in a reactive mode,
responding to calls for service. Troopers provide services to the communities served by their
post based primarily on the number and nature of calls for service from those communities.
Troopers attempt to respond to all emergencies immediately, and to respond to reports of
felony activity as quickly as possible. Response time to calls for service both on and off the
road system can depend on weather and the available methods of transportation. Response
time can also depend upon prioritization of calls. Troopers have received many complaints
from Alaskans both on and off the road system regarding the perceived delay in responding to
calls for assistance.

. . . .
101. At trial, Plaintiffs introduced evidence that there was an ?Indian Police?
program in effect in Alaska from approximately 1885 through 1907.
102. Plaintiffs offered evidence that the Indian Police program, when it was in
effect, was a race-based system of law enforcement. As Plaintiffs? expert Stephen Conn
indicated in his second report, ?To the extent that [such] category of Native policeman was
granted authority to enforce the law, the subjects of that authority were Natives in Native
villages.? [Exh. P-2 at 2] Plaintiffs demonstrated that the Indian Police at the turn of the last
century were Alaska Native officers only; their jurisdiction was limited to offenses committed in
Alaska Native villages; and they focused their attention exclusively on crimes involving Alaska
Natives.
103. At trial, Plaintiffs did not present any direct evidence that the State of
Alaska adopted the federal Indian Police model from the turn of the last century. As Plaintiffs
acknowledged, their claim in that respect rested exclusively on circumstantial evidence of
certain similarities between the federal Indian Police program and law enforcement programs
established by the State after statehood. Like the former federal Indian Police officers, officers
in programs established by the State of Alaska are clothed, paid, and supervised by various
applicable governmental agencies. But because the same could be said of the vast majority of
law enforcement officers worldwide, those similarities are worth little weight as evidence that
the State of Alaska adopted the federal Indian Police program.

104. As the chart prepared by Professor Conn on cross-examination
demonstrated, there are several important differences between the federal Indian Police
program and programs established by the State of Alaska after statehood. For example, VPSOs
working in Alaska today have considerably broader duties than the federal Indian Police
officers had. Service in the Indian Police appears to have been limited to Alaska Natives, but
service in the VPSO program is not limited to Alaska Natives. Further, there are VPSOs
stationed in communities with populations that are not predominately Alaska Native, while
Indian Police were limited to service in predominately Native communities.
105. At trial, Professor Angell and others testified that the VPSO program was
established based on the advice of knowledgeable people in the law enforcement field and did
not represent an effort by the State to resurrect an old federal model of law enforcement that
had been in place during the late 1800?s and early 1900?s. The passage of time between 1907 --
the last date for which Plaintiffs have introduced evidence of the operation of the federal
Indian Police program -- and statehood further supports this court?s finding that the State did
not adopt the Indian Police program when establishing its law enforcement programs.
106. For the foregoing reasons, this court found that Plaintiffs did not prove
that the State adopted the former Indian Police program when the State established its own law
enforcement programs after statehood.
107. At trial, Plaintiffs also sought to prove that the State violated the equal
protection clause of the Fourteenth Amendment of the United States Constitution by
establishing and maintaining its own de jure race-based systems of law enforcement after
statehood. Plaintiffs assert that the current VPSO program is directly traceable to race-based
models of law enforcement that Plaintiffs allege the State of Alaska had established in the past.
108. With respect to this federal constitutional claim, Plaintiffs have
acknowledged that none of the past or current state officials whose actions are challenged in
this case have acted based on hostility or racial disfavor toward Alaska Natives.

109. Plaintiffs have identified several historical documents that they assert
constitute evidence that the VPSO program as operated in Alaska today is traceable to explicitly
race-based law enforcement program developed by the State in the past.
110. Although there are excerpts from Plaintiffs? exhibits that express a desire
on the part of various State officials over the past decades to hire Alaska Natives and speakers
of Alaska Native languages for village police or public safety positions, Plaintiffs did not
demonstrate that being Alaska Native was a requirement for any such job. Plaintiffs also failed
to demonstrate that any State programs as originally established or as currently operated
limited the authority of village officers to enforce the law only against Alaska Natives. And
Defendants demonstrated that there are at least two communities with VPSOs in which the
population is predominantly non-Native.
111. Since long before statehood, the majority of the residents of Alaska?s
smallest and most remote communities have been Alaska Native. In developing community
policing programs in these communities to supplement the law enforcement services provided
by the AST, State officials have on occasion made reference to these demographics. But
Plaintiffs have not established that in creating the VPSO program, or in creating any
predecessors to that program, the State established a system of law enforcement in which a
person?s race or a community?s racial composition were determinative factors in the type of law
enforcement services to be provided.
112. With respect to their federal equal protection claim, Plaintiffs have not
proven that Defendants adopted or established a de jure race-based dual system of law
enforcement to provide particular law enforcement services to Alaska Natives in remote
locations and different law enforcement services to other Alaskans.
Plaintiffs? State Equal Protection Claims
. . . .

116. A critical threshold inquiry of Plaintiffs? state equal protection claim is a
demonstration by Plaintiffs that due to the Defendants? policies and practices, Plaintiffs are
receiving a different level of law enforcement services from other similarly situated Alaskans.
117. This court denied summary judgment to Defendants as to Plaintiffs? state
equal protection claims because the parties disputed many of the material facts underlying the
equal protection analysis. Alaska Rule of Civil Procedure 56. State v. Planned Parenthood, 35
P.3d 30, 46 (Alaska 2001).
118. At trial, both parties offered considerable evidence on the question of
whether Plaintiffs are provided law enforcement services inferior to those provided by
Defendants to other Alaskans. Both parties submitted detailed statistical analysis of the
allocation of trooper resources and extensive criticism of each other?s statistical models.
119. At trial, Plaintiffs asserted that their home communities were among 165
?off-road? communities with at least twenty-five residents in which no law enforcement officer
certified by the Alaska Police Standards Council was posted. The parties referred to those
communities as ?places in the complaint? and presented conflicting statistical and anecdotal
evidence as to whether the ?places in the complaint? receive law enforcement services inferior
to those provided in communities ?on the road system? that also lack local law enforcement
personnel certified by the Alaska Police Standards Council.
120. There are significant differences between the Plaintiffs? home
communities and many of the ?off-road? communities that Plaintiffs have characterized as
?places in the complaint.?

121. The size of the ?places in the complaint? varies considerably. Many of the
165 ?places in the complaint? are less populated than the Plaintiffs? home communities. For
example, Bettles, Birch Creek, Ivanof Bay, Karluk, Kasaan, Lake Minchumina, Meyers Chuck,
Nikolski, Platinum, and Red Devil all have populations of less than 50 people. [Ex. P-27]
Other ?places in the complaint? are much larger. For example, Hooper Bay has a population
of more than one thousand people.
122. Some of the ?places in the complaint? have relatively stable populations,
while others have seasonal residents with weaker ties to the community.
123. Some of the ?places in the complaint? have judicial facilities, while others
do not.
124. Some of the ?places in the complaint? are easily accessible from
communities with officers certified by the Alaska Police Standards Council. For example,
Pitka?s Point is not far from St. Mary?s. Teller is connected by road to Nome, which serves as a
trooper hub. The Aleknagik South Shore Road is connected to Dillingham by a gravel road
that troopers may use to respond to calls. [Ex. P-58]
125. Other communities are relatively less accessible due to their distance from
the hub post or other factors such as a lack of runway lights.
126. Some ?places in the complaint? have VPSOs and/or VPOs. Akiachak
and Tuluksak are among those communities. Approximately seventy-four of the ?places in the
complaint? have no local law enforcement or public safety personnel. Clark?s Point is one of
those communities. With the notable exception of an area that the parties label Kodiak
Station and represent as having a population of almost two thousand people, the ?places in the
complaint? with no local law enforcement or public safety personnel are among the smallest
communities in that group. [Ex. P. 27]
127. Some of the ?places in the complaint? have restrictions on alcohol
importation sale or possession; others do not.

128. At the time of the filing of this action, of the 165 off-road communities
identified by the Plaintiffs as ?places in the complaint,? 129 are predominantly Native and 36
are less than 50 percent Alaska Native. Of the 36 predominantly non-Native communities,
only three of the communities have any local law enforcement at all. Of the 129
predominantly Native communities, 88 of these communities (68%) have either a VPSO or a
VPO.
129. The ?places in the complaint? are not particularly similar to each other
except insofar as the communities generally lack road access and resident certified law
enforcement officers and are relatively small.
130. The law enforcement needs of the ?places in the complaint? vary
considerably and a variety of mechanisms might need to be employed in order to provide
appropriate law enforcement services to those communities.
131. There are also significant differences among the ?on-road? communities
under the primary jurisdiction of the troopers to which Plaintiffs have compared the ?places in
the complaint.?
132. Some of the communities Plaintiffs categorize as being ?on-road? are
large, while others are small. They range from an area designated as ?College,? with a
population of 12,407 to Ekuk, with a population of 2. [Ex. P-34]
133. The ?on-road? communities vary in distance from trooper posts,
population density, economic stability, age of population, and other factors that might correlate
to the relative need for law enforcement services. Some ?on-road? communities can be reached
relatively easily from urban centers such as Anchorage or Fairbanks, while others are more
remote. Some communities characterized as being ?on-road? are located on islands with roads
that are connected to Alaska?s larger highway system only by ferry service.

134. Because the ?places in the complaint? are not similar as a group to
Plaintiffs? home communities, and because the communities characterized as being ?on-road?
are not uniformly similarly situated to the ?places in the complaint,? this court does not find
the parties? statistical analyses of the allocation of trooper resources between ?places in the
complaint? and ?on-road? communities to be particularly helpful to answering the question of
whether Plaintiffs are provided comparatively inferior law enforcement services from the Alaska
State Troopers.
135. The majority of individuals served by the AST in Detachment C live in
off-road communities. Residents in this detachment have a trooper ratio of one trooper for
every 971 residents.
136. The majority of individuals served by the AST in Detachments B and E
live in on-road communities. Residents in each of these detachments have fewer troopers per
capita than Detachment C, with one trooper for over 1,000 residents. See Finding #21, above.
. . . .
138. The State has also demonstrated that the difference in crime rates
between on-road and off-road communities is not of such a magnitude that a different per
capita allocation of law enforcement resources is mandated for these two types of communities.
Taken as a whole, neither group of communities can be said to experience significantly more
crime than the other. Although there are disparities in the types of crimes between on-road
and off-road communities, the overall crime rates are comparable. AST has fairly allocated
troopers in a manner that adequately addresses the crime risk experienced in on-road and off-
road communities.

139. Plaintiffs did present testimony that suggested that residents of off-road
communities lacking a regular presence of certified law enforcement officers experienced
particular difficulties in the receipt of law enforcement services. As Commissioner Godfrey
acknowledged at trial, an off-road community without any local police may not be receiving the
same level of police protection that the troopers are able to provide to on-road communities.
[Tr. at 1038]. But this court finds these discrepancies are due principally to the geographic
isolation, weather conditions and transportation difficulties inherent in the location of many
off-road communities, and not to an unconstitutional under-allocation of trooper resources to
the more remote communities in this state. Cf. Massachusetts Gen. Hosp. v. Weiner, 569 F.2d
1156, 1161 (1st Cir. 1978) (holding no denial of equal protection where, for purposes of setting
Medicare rates, there is uniform treatment of urban teaching hospitals and rural hospitals) cited
in Evans v. State of Alaska, ___ P.2d ___, Op. No. 5618 (Alaska, August 30, 2002) slip op. at 19.
The Plaintiffs have not demonstrated that the Defendants? policies and practices have had the
effect of systematically depriving Plaintiffs of law enforcement services provided to other
Alaskans.
140. Plaintiffs have not demonstrated that the racial composition of a
community is a factor that affects the allocation of Alaska State Trooper case-related hours to
that community.
141. Many off-road communities, including some of the communities that are
home to Plaintiffs, have VPSOs and/or VPOs who provide additional and significant law
enforcement services to residents in addition to the law enforcement services provided by the
troopers. These additional law enforcement services are not generally available in on-road
communities, and provide further support for this court?s conclusion that no violation of equal
protection has been demonstrated in the allocation of law enforcement resources to the
Plaintiffs.

142. This court?s conclusion that no equal protection violation has been
demonstrated is based on this court?s review of the allocation of law enforcement resources in
the State of Alaska during the pendency of this litigation. Plaintiffs introduced as exhibits a
large amount of historical materials that would tend to demonstrate a more disparate allocation
of law enforcement resources in prior years and decades, indicating times when rural Alaskans,
including rural Native Alaskans, received considerably less in the way of law enforcement
services. This court need not and does not determine whether there may have ever been in
years past a violation of equal protection in the provision of law enforcement services. In this
same regard, the court also notes than the testimony and exhibits introduced at this trial
demonstrated a remarkably high level of commitment by many individuals from many different
perspectives over many years, all dedicated toward improving the delivery of law enforcement
services to Alaskans, including but not limited to Native Alaskans, that reside in the more
remote parts of this state.
143. As a matter of social and economic policy, there may be merit in the view
of some of the witnesses at trial that remote communities in Alaska would be safer if the State
posted troopers or other certified law enforcement officers on a full time basis within each such
community. There may also be merit to the assertion of a number of witnesses that public
safety needs would be better met if the VPSO program were strengthened by increasing the
program budget to improve training, salaries, and equipment for VPSOs. Many such changes
might be possible if more state resources were devoted to law enforcement in the Plaintiffs?
home communities. But within the confines of the total resources allocated to law enforcement
at this time, such changes could well be at the expense of law enforcement services in other
communities or, on a broader scale, at the expense of other public health and safety services.
. . . .

145. With respect to their state equal protection claim, Plaintiffs have not
proven that that the State?s existing system of allocating trooper resources deprives them of law
enforcement services that are provided to similarly situated Alaskans. No violation of equal
protection has been demonstrated on the basis of trooper allocation alone. And since, in this
court?s view, the VPSO and VPO programs are viewed as a valuable supplement to (and not a
substitute for) the troopers? law enforcement services, their addition to some of the Plaintiff
communities does not constitute an equal protection violation.
. . . .
Lack of Written Guidelines
. . . .
149. The court further finds that deployment of troopers from established
posts is done on an individualized basis taking numerous factors into account. Plaintiffs have
not demonstrated that race has been a factor in the allocation of trooper resources. Rather,
factors such as population, transportation capabilities, incidence of crime, location of judicial
facilities, and budget realities have been used in the allocation of trooper resources. The court
does not find that the failure to adopt written guidelines defining where it is appropriate to
locate troopers has deprived the Plaintiffs of services provided to similarly situated Alaskans or
violated their rights to due process under the Alaska Constitution or the United States
Constitution.
. . . .
Conclusion

Plaintiffs have not proven that the State of Alaska?s law enforcement programs,
policies, and practices challenged in this litigation violate any state or federal statutes or any
provisions of the United States Constitution or the Alaska Constitution. Therefore, IT IS
ORDERED that the Defendants are entitled to judgment on all remaining causes of action.
Entered at Anchorage, Alaska this 30th day of September, 2002.

/s/ Sharon Gleason
Sharon L. Gleason
Superior Court Judge
AS 18.65.140 creates the APSC, a panel authorized by statute to ?establish
minimum standards for employment as a police officer, probation officer, parole officer,
municipal correctional officer, and correctional officer in a permanent or probationary
position? and to certify persons as qualified to hold those positions. AS 18.65.220.
AS 18.65.240(b). AS 18.65.290(6)(A) defines ?police officer? to mean
a full-time employee of the state or a municipal police department
with the authority to arrest and issue citations; detain a person
taken into custody until that person can be arraigned before a
judge or magistrate; conduct investigations of violations of and
enforce criminal laws, regulations, and traffic laws; search with or
without a warrant persons, dwellings, and other forms of property
for evidence of a crime; and take other action consistent with
exercise of these enumerated powers when necessary to maintain
the public peace . . . .
AS 18.65.240(a).
The commander of Detachment C testified that it encompasses an area of about
260,000 square miles. Texas?s area is 268,581 square miles. U.S. DEPT. OF COMMERCE,
BUREAU OF CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 213 (2004).
See http://censtats.census.gov/data/AK/1600239630.pdf (last visited Apr. 8,
2005).
13 Alaska Administrative Code (AAC) 89.010(b), .150(3) (2002).
13 AAC 96.900(12) (2002).
Commissioner Fitzgerald became a superior court judge in 1959, a justice of this
court in 1972, and a United States District Court Judge in 1975. See
http://www.fjc.gov/Public/home.nsp/hisj (last visited Apr. 8, 2005).
13 AAC 89.020(a) (2002).
13 AAC 89.040(a) (2002).
AS 18.65.670(a) provides:
There is created in the Department of Public Safety a
village public safety officer program to assist local governments
and villages through nonprofit regional corporations to appoint,
train, supervise, and retain persons to serve as village public safety
officers to administer functions relative to
(1) the protection of life and property in rural areas of the
state; and
(2) providing probation and parole supervision to persons
under supervision by communicating with and monitoring
the activities and progress of these persons at the direction
of probation and parole officers.
13 AAC 96.010-.900 (2002).
13 AAC 96.100 (2002).
13 AAC 96.040(8) (2002).
The original plaintiffs were: the Alaska Inter-Tribal Council; the Alaska Native
Justice Center, Inc.; Akiachak Native Community; Akiak Native Community; the Native
Village of Aleknagik; the Chinik Eskimo Community (Golovin); the Native Village of Clark?s
Point; the Native Village of Gambell; the Native Village of Kiana; the Native Village of Teller;
the Tuluksak Native Community; the Native Village of White Mountain; Hazel Apok, an
Alaska Native resident of Kiana; Sharon Clark, an Alaska Native resident of Clark?s Point;
Esther Floresta, an Alaska Native resident of Clark?s Point; Imogene Gardiner, an Alaska
Native resident of Clark?s Point; Willie Kasayulie, an Alaska Native resident of Akiachak; and
Mike Williams, an Alaska Native resident of Akiak.
Ronald Otte was commissioner when plaintiffs filed their original complaint.
Glenn Godfrey was commissioner when plaintiffs filed their second amended complaint and at
the time of trial. Delbert Smith was commissioner when plaintiffs filed their appeal and he was
substituted as an appellee for Godfrey. Bill Tandeske is the current commissioner. See
http://www.dps.state.ak.us/Comm/asp/tandeske.asp (last visited Apr. 8, 2005).
Section 1 of the Fourteenth Amendment of the United States Constitution
provides in part: ?[N]or shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.?
Article I, section 1 of the Alaska Constitution provides:
This constitution is dedicated to the principles that all persons
have a natural right to life, liberty, the pursuit of happiness, and
the enjoyment of the rewards of their own industry; that all
persons are equal and entitled to equal rights, opportunities, and
protection under the law; and that all persons have corresponding
obligations to the people and to the State.
The second cause of action of the second amended complaint asserted:
The State?s intentional adoption of the territorial
government?s de jure race-based dual system of law enforcement,
its intentional use of race in the design of its own de jure race-
based dual system, and the continued operation of such system by
the State to the present day, constitutes intentional racial
discrimination in violation of Plaintiffs? rights to Equal Protection
of the law under the Fourteenth Amendment to the United
States Constitution, Article I, ?? 1, 3, and 7 of the Alaska
Constitution and 42 U.S.C. ? 1983.
The third cause of action of the second amended complaint asserted:
Because the State?s discriminatory treatment of Plaintiffs
in the provision of police protection is based on race, the
disparate impact of the dual system on Alaska Natives in the
provision of APSC-certified police protection is attributable to
intentional racial discrimination by the State, and therefore
violates Plaintiffs? rights to Equal Protection of the law under the
Fourteenth Amendment to the United States Constitution and
Article I, ?? 1, 3, and 7 of the Alaska Constitution and 42 U.S.C.
? 1983.
The fourth cause of action of the second amended complaint asserted:
The State?s disparate treatment of residents of off-road
outlying communities, including the Plaintiff villages and their
residents, in the provision of police protection, discriminates
against them in the provision of an important or fundamental
right in comparison to the police protection provided to residents
of on-road communities by the Alaska State Troopers, and
accordingly violates Plaintiffs? rights to Equal Protection of the
law under the Fourteenth Amendment to the United States
Constitution and Article I, ?? 1, 3, and 7 of the Alaska
Constitution.
Plaintiffs have not appealed the superior court?s rejection of their substantive due
process claims.
Alaska became a state on January 3, 1959, when President Eisenhower signed the
Statehood Proclamation. Proclamation No. 3269, 3 C.F.R., 1959-1963 Comp. p. 4-5 (Jan. 3,
1959).
We attach as an Appendix to our opinion portions of the superior court?s
decision and order.
Spindle v. Sisters of Providence in Washington, 61 P.3d 431, 436 (Alaska 2002); Ganz
v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska 1998).
Ganz, 963 P.2d at 1017.
Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).
Erica A. v. State, Dep?t of Health & Soc. Servs., 66 P.3d 1, 6 (Alaska 2003); Kelly v.
Joseph, 46 P.3d 1014, 1017 (Alaska 2002); Vezey, 35 P.3d at 20. Federal courts have taken the
same approach. E.g., Plumber, Steamfitter & Shipfitter Indus. Pension Plan & Trust v. Siemens Bldg.
Techs. Inc., 228 F.3d 964, 968 (9th Cir. 2000); United States v. Allinger, 275 F.2d 421, 424 (6th
Cir. 1960).
Pers. Adm?r v. Feeney, 442 U.S. 256, 273-74 (1979); Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977); Washington v. Davis, 426 U.S. 229, 239-
42 (1976).
The parties? briefs on this issue do not discuss the statutes and regulations that
describe how the state allocates law enforcement services, including services provided by those
certified police officers.
See City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194
(2003).
United States v. Fordice, 505 U.S. 717, 731-32 (1992) (?Such policies run afoul of
the Equal Protection Clause, even though the State has . . . established racially neutral policies
not animated by a discriminatory purpose.?).
United States v. Fordice, 505 U.S. 717 (1992) (holding that Mississippi had not
sufficiently dismantled its prior de jure segregative university system even though it had
implemented race-neutral policies).
Plaintiffs? second cause of action asserted that the state either intentionally
adopted ?the territorial government?s de jure race-based dual system of law enforcement? or
intentionally used race in designing ?its own de jure race-based dual system,? and that it
continues to operate such a system.
Their briefs do not discuss any relevant possible differences between the federal
and state equal protection guarantees, and in discussing the Fordice claim, the superior court
referred only to the Federal, and not the Alaska, Constitution. We assume that a successful
Fordice claim would establish an equal protection violation under both constitutions. See infra
note 63.
Fordice, 505 U.S. at 733 n.8.
Brown v. Bd. of Educ., 349 U.S. 294 (1955) (Brown II); Brown v. Bd. of Educ., 347
U.S. 483 (1954) (Brown I).
Fordice, 505 U.S. at 721.
Id. at 723.
Id. at 729.
Id. at 728 (internal citations omitted).
Id. at 733 n.8.
See Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1258 (Alaska 2001); see also
Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 431 (Alaska 1995); Johnson v. Alaska State Dep?t of
Fish & Game, 836 P.2d 896, 909 n.22 (Alaska 1991). For a federal example see Wise v. Mead
Corp., 614 F. Supp. 1131, 1134 (D. Ga. 1985).
Fordice, 505 U.S. at 732 n.6.
The superior court did not find that the pre-statehood law enforcement system
was race-based. Its findings imply that it thought the long-defunct federal Indian Police
program would have been unconstitutionally race-based if it had not been conducted by the
United States, whose trust relationship with Indians is unique. But that program had been
abandoned by the federal government long before statehood.
See, e.g., Fordice, 505 U.S. at 728.
Id. at 733 n.8.
The Indian Police program was apparently in effect from about 1885 to 1907.
Even though Alaska as of 1907 could send a non-voting delegate to Congress, it had no
legislative or district-wide self-government. Alaska Delegate Act, ch. 2083, 34 Stat. 170
(1906). Its laws had been adopted by Congress. See, e.g., District Organic Act, ch. 53, 23
Stat. 24 (1884). Alaska formally became a territory and gained limited self-government in
1912. Territorial Organic Act, ch. 387, 37 Stat. 512 (1912). Alaska became a state on
January 3, 1959. See supra note 22.
Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 210 (1973).
Johnson v. De Soto Bd. of County Comm?rs, 204 F.3d 1335, 1344 n.18 (11th Cir.
2000) (noting that ?no court has applied Fordice outside of the education setting? and refusing
to apply Fordice in Voting Rights Act challenge to electoral system).
Fordice, 505 U.S. at 729.
Id.
Id. at 731.
Id. at 732 n.6, 733 n.8.
Pers. Adm?r v. Feeney, 442 U.S. 256, 273-74 (1979); Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977); Washington v. Davis, 426 U.S. 229, 239-
42 (1976).
Fordice, 505 U.S. at 732 n.6.
Sengupta, 21 P.3d at 1258; see also Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43-44
(Alaska 2000).
Arlington Heights, 429 U.S. at 267.
As we saw above, even though the Fordice traceability analysis does not apply
here, evidence of the origins of the state?s present system remains relevant under ?traditional
principles.? Fordice, 505 U.S. at 732 n.6.
See 13 AAC 96.080 (2002) (setting out criteria for hire as VPSO). There is no
ethnicity requirement for VPOs, either. See 13 AAC 89.010 (2002) (setting out criteria for hire
as VPO).
AS 18.65.670(a) provides in part that VPSOs shall ?administer functions relative
to (1) the protection of life and property in rural areas of the state.?
Arlington Heights, 429 U.S. at 267.
Alaska R. Civ. P. 56(c); Kollodge v. State, 757 P.2d 1028, 1031-32 (Alaska 1988).
Commentators have noted that there is ?a broad consensus that discrimination
today is generally perpetrated through subtle rather than overt acts.? Michael Selmi, Proving
Intentional Discrimination: The Reality of the Supreme Court Rhetoric, 86 GEO. L.J. 279, 284 (1997).
It may even be unconscious. Charles R. Lawrence, The Id, the Ego, and Equal Protection:
Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987). Government officials will
almost never openly avow a discriminatory intent and they can usually express a benign
purpose for a statute or policy. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES
AND POLICIES 567 (1997).
See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 272 (Alaska 2003) (?[A]nalysis
of equal protection claims under the federal constitution is, if anything, more forgiving than
the approach we use under the Equal Rights Clause of the Alaska Constitution . . . .?). See also
State, Dep?t of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska
2001) (?Alaska?s constitutional equal protection clause . . . protects Alaskans? right to
non-discriminatory treatment more robustly than does the federal equal protection clause.?);
Williams v. State, Dep?t of Revenue, 895 P.2d 99, 103 (Alaska 1995) (?Alaska?s equal protection
clause may be more protective of individual rights than the federal equal protection clause.?);
Gilmore v. Alaska Workers? Comp. Bd., 882 P.2d 922, 926 (Alaska 1994) (same); State, Dep?t of
Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621, 629 (Alaska 1993) (?Minimal
scrutiny under our state constitution may be more demanding than under the federal
constitution.?); State v. Anthony, 810 P.2d 155, 157 (Alaska 1991) (?Alaska?s equal protection
clause is more protective of individual rights than the federal equal protection clause.?);
Sonneman v. Knight, 790 P.2d 702, 706 (Alaska 1990) (?[T]he federal equal protection clause is,
if anything, less protective of individual rights than the state equal protection clause . . . .?).
Cf. Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1149 (Alaska 1999)
(holding that any error in granting summary judgment to one defendant was rendered harmless
by jury?s finding after trial that defendant?s purported agent was not liable for torts claimed).

See Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 296 (Alaska App. 2004)
(holding that ?even if [the trial court] had erred in ruling that [defendant] had failed to
establish a prima facie case of racial discrimination, that error would be harmless because
[defendant] was allowed to fully litigate her claim?).
Plaintiffs apparently intend to apply this argument to both the trial and summary
judgment portions of the proceedings below.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971).
Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 209 (1973).
Id. at 209-11.
Id. at 210.
Id. at 208.
The plaintiffs cite a 1991 report indicating that approximately thirty percent of
VPSOs were not Native.
Keyes, 413 U.S. at 208.
Appellees? Brief at 46 n.43 (quoting Keyes, 413 U.S. at 201).
We again assume that plaintiffs intend this argument to apply to the superior
court?s rulings both on summary judgment and after trial.
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).
Pers. Adm?r v. Feeney, 442 U.S. 256, 279 (1979); see also McCleskey v. Kemp, 481
U.S. 279, 298 (1987).
Footnote 20 sets out the fourth cause of action.
The fourth cause of action claimed both federal and state equal protection
violations. The superior court granted summary judgment to the state as to the federal claim.
Plaintiffs tried their state ?geographic discrimination? claim. They do not argue on appeal that
it was error to dismiss their corresponding federal claim on summary judgment.
Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 270 (Alaska 2003).
Id.; State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001).
Planned Parenthood, 28 P.3d at 909; Alaska Pac. Assurance Co. v. Brown, 687 P.2d
264, 269 (Alaska 1984).
Planned Parenthood, 28 P.3d at 909 (quoting Matanuska-Susitna Borough Sch. Dist.
v. State, 931 P.2d 391, 396 (Alaska 1997)).
Brown, 687 P.2d at 269.
Planned Parenthood, 28 P.3d at 909; Brown, 687 P.2d at 271.
State v. Enserch Alaska Constr. Inc., 787 P.2d 624, 631-32 (Alaska 1989); Brown,
687 P.2d at 269.
Enserch, 787 P.2d at 631-32; Brown, 687 P.2d at 269-70.
Lauth v. State, 12 P.3d 181, 187 (Alaska 2000).
Id. (holding that ?children with one economically secure parent who is
providing for their care at least fifty percent of the time are not similarly situated with
children having both parents economically eligible for benefits.?). See also Lawson v.
Helmer, 77 P.3d 724, 728 (Alaska 2003) (holding that civil defamation cases are
dissimilar to criminal perjury cases); Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)
(observing that attorney and non-attorney pro se litigants are not similarly situated);
Brandon v. Corr. Corp. of Am., 28 P.3d 269, 276 (Alaska 2001) (holding that indigent
prisoners are not similarly situated to indigent non-prisoners); Fairbanks North Star
Borough Assessor?s Office v. Golden Heart Utils., Inc., 13 P.3d 263, 273 (Alaska 2000)
(holding that lessee of city?s utilidor system was not similarly situated to lessees of
floatplane slips); Rutter v. State, 963 P.2d 1007, 1013 (Alaska 1998) (holding that
commercial fishers and sport fishers are not similarly situated); Meek v. Unocal Corp.,
914 P.2d 1276, 1281 (Alaska 1996) (holding that worker who ?lived near his work place
and did not receive room and board? was not similarly situated with a ?remote site
worker?) (emphasis in original); Shepherd v. State, Dep?t of Fish & Game, 897 P.2d 33, 44
(Alaska 1995) (holding that resident and nonresident recreational users of Alaska fish and
game are not similarly situated); Smith v. State, Dep?t of Corr., 872 P.2d 1218, 1226
(Alaska 1994) (holding that discretionary and mandatory parolees are not similarly
situated with respect to need for personal appearance hearing).
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001).
Although geography and weather may justify some differences in how the state
provides law enforcement services in rural areas, this case does not require us to consider
whether the state?s policies in providing law enforcement services were so lacking in fairness
with respect to residents of rural communities as to give rise to a plausible substantive due
process claim. Plaintiffs pleaded federal and state substantive due process claims that were
dismissed on summary judgment, but do not appeal from the dismissal of those claims.

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