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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Inter-Tribal Council v. State of Alaska (4/15/2005) sp-5886

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

Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER.  Readers are requested to 
bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone 
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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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