by Dan Branch
IIIIIIIIIIIIA tired-looking Cessna 185 prop plane rattled to a stop next to a Bethel, Alaska air charter service shack. The shack smelled of gasoline, burned coffee and cigarette smoke. Before the plane arrived a thirty-six-year-old version of myself had been thumbing through a year-old copy of Reader’s Digest. Carol, my in-court clerk, sat a few feet away on a creaky office chair. Tucked between us on the concrete floor was a court system sample case containing Carol’s portable cassette recorder, log sheets, pens, and my black judge robe. We didn’t need to pack food because someone in the village we were flying to had promised to give us dried salmon, pilot biscuits, and tea.
IIIIIIIIIIIIThe pilot opened the office door and without entering shouted, “You folks ready for your charter to Tuluksak?” I could barely hear him over the sound of a landing aircraft. We stood without answering and followed the pilot to his plane. Carol took a seat behind him, letting me have the co-pilot’s place.
IIIIIIIIIIIII don’t remember what the pilot looked like but he was probably young and white. This was 1987. Then, almost all bush pilots were. After making sure that we had fastened our seatbelts, the pilot pointed to the back of the plane and said, “Emergency gear and beacon in the tail, any questions?” He throttled the engine to life before we could answer. I wished, as I always did at this point of a bush flight, that I had brought ear plugs.
IIIIIIIIIIIIWe taxied down the runway as the pilot radioed the Bethel Tower that he was about to fly to the Kuskokwim River village of Tuluksak with three souls on board. I jammed my fingers into my ears when the pilot snapped the plane onto the runway and pushed in the throttle. The plane rolled like a car down the tarmac, bounced into the air, back onto the runway and finally into the air.
IIIIIIIIIIIIA thousand feet up, the pilot throttled back and eased back in his seat. I looked down at the fish camps just upriver from Bethel. It was summer so drying salmon, dark red in color, weighed down driftwood racks in front of the camp cabins. For the twelve and half years that I lived on the river, I never had my own fish camp. Outsiders didn’t keep one.
IIIIIIIIIIIIThe Kuskokwim River snaked through the tundra below us. I relaxed for the first time that day. I had spent most of it in court taking changes of plea and sentencing people who had beat up someone or committed some other misdemeanor while drunk. Many were repeat customers. From my time as a criminal defense attorney, I knew that most of those I sent to jail or alcohol treatment were kind and nonviolent when sober. They just misplaced the cap of the Canadian whiskey bottles they had purchased from Bethel bootleggers. After that, if they were lucky, they would wake up hungover at home. If not, they would suffer their hangover in jail.
IIIIIIIIIIIIDuring afternoon arraignments, the district attorney and the public defender representing a Tuluksak man approached the bench. They asked that we all fly to his home village to conduct a preliminary hearing in the case. At the hearing the D.A. would have witnesses confirm that the accused burned down a half-constructed community hall. If he couldn’t, I’d dismiss the case. We agreed to meet at the village bingo hall in the late afternoon to hold the hearing.
IIIIIIIIIIIIAfter flying over the villages of Akiachak, Kwethluk, and Akiak, the plane approached the Tuluksak airstrip. This, I thought, must be what it is like to land on an aircraft carrier. Instead of water, the runway appeared to float on a sea of yellow-green tundra. Landing on the soggy tundra would be almost as dangerous as ditching in the river. The pilot looked bored as he adjusted the throttle and flaps and guided the plane toward the tiny airstrip. We bounced twice before stabilizing on the gravel runway and rolling to the stop. There were no buildings, just a muddy road leading into the village. The pilot pulled out a paperback novel and said he’d wait for our return.
IIIIIIIIIIIII don’t remember anyone offering to give Carol and me a ride to the bingo hall. People in the village were always busy when the salmon were running. The muddy village road cut across tundra crowded with moss, tiny blueberry bushes, and six-inch-tall birch trees. While walking, I rubbed on mosquito repellant and thought about the arson case.
IIIIIIIIIIIIAccording to the paperwork filed by the D.A., the defendant, whom I call Alexie Nicolai, downed a bottle of bootlegged whiskey, splashed gasoline on a partially constructed community hall, and lit it on fire. Awakened by the smell of burning, villagers tried to save the building. None were trained fire fighters. They did their best with what was available—five-gallon buckets and fire extinguishers—but they lost the community hall.
IIIIIIIIIIIIMr. Nicolai admitted to an Alaska State Trooper that he had set the fire to keep the village kids from using the half-built building as a private place to huff gasoline. He had seen some grade school kids drag a six gallon can of boat gas into the building, open the cap, and breathe in the fumes. He knew that huffing gave the kids an escape from their problems at home. It also caused irreversible brain damage. I knew that if the case went to trial, Mr. Nicolai’s confession should be enough for the jury to convict him of Arson in the Second Degree, which is a class B Felony. A superior court judge could then order him to spend up to ten years in jail. I was thankful that as a magistrate I wouldn’t be asked to sentence Mr. Nicolai for the arson.
IIIIIIIIIIIII had worked as a lawyer for ten years in Bethel before becoming a village magistrate. By the time Carol and I landed in Tuluksak, I knew that the American criminal justice system hadn’t gained enough traction in Yup’ik country to protect or correct.
It was common during those years for a brace of Alaska State Troopers to fly from their headquarters in Bethel to a Yugtun speaking village like Tuluksak and arrest someone accused of assault during an alcohol blackout. They easily located the suspect asleep in his family’s government-built house or drinking morning coffee at his Auntie’s. Now sober, the suspect told the troopers that he couldn’t remember what happened the prior night. He’d admit that his cousin, who reported the crime to the troopers, always told the truth. If the cousin said that he saw him shoot a neighbor at the prior night’s home brew party, he must have done it.
IIIIIIIIIIIIIf the troopers brought a large enough plane, the victim, the bullet hole in his arm cleaned and bandaged by the village health aide, might fly back to Bethel with the suspect. The gunshot victim would return home in a few days with a bottle of painkillers and instructions to have the health aide change his bandages every day.
IIIIIIIIIIIINo one would travel from the village to speak for the shooter at his first court hearing. The judge would decide whether to let the man wait for the trial at home or stay in jail until someone could bail him out. While lawyers at the hearing rattled on about flight risk and community safety in legalized English, the shooter might silently pray that someone would help his school-aged son check the salmon net he had just set in a big eddy downriver from the village.
IIIIIIIIIIIIThe judge would set bail and appoint a public defender to represent the shooter. Now relying on a white lawyer who he couldn’t understand without the help of a translator, he’d decide to plead guilty rather than let his lawyer call his cousin a liar in front of a jury. Then he wouldn’t return home until he served at least seven years of a ten-year sentence in prison.
IIIIIIIIIIIIDeprived of the man who had always filled the freezer with moose meat and kept them supplied all winter with firewood, his family paid a great price for the shooter’s crime. While the State of Alaska kept the shooter fed and warm, his family had to rely on help from other villagers, including the man with a healed bullet hole in his arm. Homesick, the convicted man might look for ways to keep sober when he returned home. Since they didn’t provide prisoners with addiction treatment, the man would have to do it on his own.
IIIIIIIIIIIIAfter his family had caught, butchered, smoked, and dried seven summers of salmon, the shooter would fly home in a mail plane, wearing something other than an orange jumpsuit for the first time since he left the village. He might stay sober for a few days or months, but he would eventually drink and violate his probation. Violating probation almost always led to a return to jail. He, like the criminal justice system, couldn’t get traction.
When we reached the village, Carol stopped to have tea with cousins or an auntie. I followed her directions to the bingo hall, an unpainted plywood building standing above boggy tundra on stubby creosoted blocks. I climbed a set of wooden plank stairs and pulled open the door. The overhead lights were off but I could see long rows of tables and chairs in the light coming through a row of slider windows. A four-by-eight-foot bingo scoreboard hung on the far wall. On bingo nights, the caller sat at the table in front of the sign. He pulled ping pong balls from a blower and shouted out the number painted on each ball. He’d flick a switch that lit up the same number on the sign. During the hearing, I would sit in the caller’s chair with the clerk’s cassette tape recorder placed on the table, where the blower normally sat.
IIIIIIIIIIIIA handcuffed Mr. Nicolai and his trooper escort walked into the bingo hall. They were followed by an interpreter and Mr. Nicolai’s public defender. The trooper took a seat just far enough from Nicolai and his lawyer so he couldn’t hear their conversation. People from the village trickled in. Some looked around and then left. Others settled in for the hearing that was scheduled to start in twenty minutes. The D.A. entered and made eye contact with the defense lawyer. Together, they walked outside.
IIIIIIIIIIIICarol arrived and placed a stack of log sheets, a pen, and some blank cassette tapes on the table next to the recorder. Then, she tucked a gallon-sized freezer bag of dried salmon into the sample case.
IIIIIIIIIIIIExpecting the D.A. to call witnesses, I placed a chair close to the recorder. The lawyers returned and took seats in the front of the makeshift courtroom. They were joined by a group of older Yup’ik men whom Carol identified as members of the village’s Traditional Council. The other seats in the bingo hall filled with members of the village.
IIIIIIIIIIIIThe lawyers stood and asked that we go on record so that Mr. Nicolai could enter a guilty plea to one count of Criminally Negligent Burning, a misdemeanor. They wanted me to give Mr. Nicolai a sentence based on the recommendations of the Traditional Council. The D.A. would not ask for Mr. Nicolai to serve any more than the 45 days he had already spent in jail awaiting this hearing.
IIIIIIIIIIIIWhile the D.A.’s words were translated into Yup’ik, I looked at the defendant and then at the faces of the other people in the makeshift courtroom. They showed no emotion. It was as if Mr. Nicolai had no enemies or friends in the room. In the lower 48 states, such blank faces would suggest boredom. On the Kuskokwim, I recognized the villagers’ reactions as a form of silent respect.
IIIIIIIIIIIISome judges, including my boss in Fairbanks, would have advised me to reject the D.A.’s proposal. A 45-day sentence for burning down the community hall would normally be seen as too light for such a serious crime. Worse, accepting it would mean yielding the court’s authority. I’d be giving it up to leaders raised with a set of cultural laws and expectations as different from the American criminal justice system as those of Japan. Could they fashion a sentence that would satisfy state law? That law required me to impose a sentence on Mr. Nicolai that would encourage him to seek treatment, discourage him from reoffending, and deter other would-be arsonists from striking the match.
IIIIIIIIIIIIGiven that he had deprived the impoverished village of a community hall, I could have sent him to jail for a year, which was the maximum sentence for a misdemeanor. Some might believe that such a sentence was necessary to get his attention so that he would not start drinking again when he finished serving his time. They would be wrong. Imposing the maximum jail sentence would not have broken the cycle. It would have just kept the wheels spinning. I accepted the plea deal.
IIIIIIIIIIIII don’t remember if we swore in any of the people who spoke at the sentencing hearing. Threats of prosecution for perjury in a culture where truth is expected were unnecessary. Everyone in the room knew the truth and was raised in a place where it is shocking to lie, even to a policeman trying to send you to jail.
IIIIIIIIIIIIEveryone, including the village clerk who explained that they didn’t have the money to repair the damage from Mr. Nicolai’s fire, spoke in Yugtun, the language of the river. This, more than the racks of drying salmon near the bingo hall, sled dogs dozing outside in the late afternoon sun, or the Asiatic faces of the people assembled in the bingo hall, confirmed my colonialist status.
IIIIIIIIIIIII assured Mr. Nicolai that he could tell his story at the end of the hearing, then asked if anyone wanted to talk about him or the fire he set. I don’t recall anyone speaking out against him. When family members and other people who loved him spoke, they usually had to rub tears from their faces with the palms of their hands.
IIIIIIIIIIIIIf the D.A. or public defender made statements, I don’t recall them. Since they understood that it was a decision for the Traditional Council, they probably gave up their right to talk. If Mr. Nicolai spoke, it was to tell the village that he was sorry.
IIIIIIIIIIIIAfter having the five council members state their name for the record, I explained, “Because of the plea agreement I cannot sentence Mr. Nicolai to jail for more than 45 days. I can order that he pay you restitution, which is money you need to repair the building, but only if he has the ability to pay.” After my words were translated into Yugtun, I said, “I can order him to do community service, like hauling firewood or water for Elders. Since he was drunk when he set the fire, I should order him to undergo an alcohol evaluation and follow any treatment recommendations.” I seem to remember at least one of the council members saying “Ii-i,” which is Yugtun for yes, after the last words were repeated in Yugtun.
IIIIIIIIIIIIFinishing up, I told the council that I could order Mr. Nicolai to pay up to a $5000 fine and to be on probation after he completes any jail sentence. If he breaks his conditions of probation by drinking or breaking the law he would go back to jail and stay there for more than 11 months. “I will enter whatever order you ask for as long as it complies with the law.”
IIIIIIIIIIIICarol turned off the tape recorder. No one spoke for a while. Having a white person’s abhorrence of communal silence, it seemed like an hour went by before one of the council members spoke. Since I only had a five-year-old’s Yugtun vocabulary, I couldn’t follow their conversation. But I could tell that no one spoke until sure that the previous speaker had finished.
IIIIIIIIIIIIAs they conferred, my mind drifted. I wondered if we would be done before it became too dark to fly home. I thought about the king salmon strips that Carol had placed in the court system’s sample case. Would it be impolite to ask for one? Could I eat it in front of all these people?
IIIIIIIIIIIIThe council president, a man with a face darkened by long hours spent fishing in the strong June sun, cleared his throat and said, in English, that they were ready to talk. Carol turned on the tape recorder. In Yugtun he said that Mr. Nicolai should get alcohol treatment and do community service to help the village Elders. He didn’t have any money so I shouldn’t order him to pay restitution or a fine. He should be placed on probation for five years. If he broke the law again, he should go back to jail.
IIIIIIIIIIIII didn’t tell the council president that I would have fashioned a similar sentence. After Mr. Nicolai stood with his public defender, I imposed a sentence based on the Traditional Council’s recommendations. I finished with, “if there is nothing else, the court is adjourned.” As if I had given the final amen in a church service, tension left the room. I heard laughter for the first time since we landed in the village. Mr. Nicolai smiled at his family, said “quyana” (thank you) to his lawyer. People waited until Mr. Nicolai left the hall before walking out the door.
IIIIIIIIIIIIRecently, his public defender told me that she could find no record that Mr. Nicolai was ever arrested again.
IIIIIIIIIIIII’ve seen defendants practically skip out of court after the D.A. reduced their felony charge to a misdemeanor and they had received a light sentence. When I was a defense attorney, I often had the impression that the only thing my client cared about was jail time. They didn’t worry about how long they would have to be on probation or what would happen if they were caught violating it. Nothing happened at their sentencings to trigger the kind of metamorphosis Mr. Nicolai underwent in the Tuluksak bingo hall.
IIIIIIIIIIIIUnlike the typical case, not only were the people of Mr. Nicolai’s village present at the hearing, they controlled its outcome. When he said he was sorry, he said it to his victims, not an out-of-town judge. When he was ordered to undergo alcohol treatment, stay sober, and help the village’s elderly, he understood that his village would hold him responsible for complying with the order.