Two Alaska Indian Youths Banished to Islands for Robbery

The crime: Another violent, small-change urban robbery. The criminals: Two rural teen-age Alaska Indians. The punishment: Banishment for one year on uninhabited islands with only hand tools and a little food.

And for the victim: A new house.

This experiment in cross-cultural jurisprudence was set in motion in a Washington state courtroom this week when a judge agreed to give old-fashioned tribal justice a chance to make right for all those involved.

According to Washington law, Alaskans Adrian J. Guthrie and Simon P. Roberts, both 17 and Tlingit natives of southeast Alaska, faced from three to 5 1/2 years in prison after pleading guilty to the robbery of a pizza delivery man in Everett last summer. The victim was severely beaten with a baseball bat and remains partially deaf.

In such violent crimes, Washington law specifically calls for punishment, not rehabilitation. And the chance of restitution in such cases is remote.

But on Wednesday, Superior Court Judge James Allendoerfer listened sympathetically and gave the go-ahead to a different approach, the Tlingit way. He agreed to release the two teen-agers to custody of a tribal court for imposition of the sentence of one year’s banishment plus restitution to the victim.

“When Columbus came, one thing he didn’t find here was prisons,” Tlingit Judge Rudy James explained to attorneys on both sides of the case.

In 18 months, the confessed robbers will again be brought before Allendoerfer to decide whether their case should be closed or additional punishment is deserved.

Prosecutors objected to the experiment, arguing that it would open the door to all sorts of cultural exceptions and challenges to state law.

The Tlingit approach, as explained in court here, calls for rehabilitation of the criminal and assistance for the victim. “A balancing of the books,” public defender Al Kitching explained. “Without that, these young men will never be accepted back in the tribe.”

In this case, the Tlingit pledged to build the victim a new duplex or triplex and pay for his sizable medical bills.

As for the two robbers, a tribal court official and defense attorneys said they would be banished to separate uninhabited islands on native lands in the Gulf of Alaska for 12 months. They will be given some basic hand tools and enough food for two weeks.

A spokesman said the punishment was in keeping with the traditions of the Tlingit, a coastal native people with a current population of about 2,000 and declining. The word Tlingit is spelled a variety of ways and has a subtle native pronunciation outside the range of English. Non-natives most typically say “clink-it.”

Although this case focused on Native American law and culture, banishment “has ancient precursors” in other cultures as well, said Sam Pillsbury, professor of legal history at Loyola Law School in Los Angeles. Among others, ancient Greeks employed banishment for severe crimes, and England previously banished criminals to the United States and Australia.

Legal experts said the primary test for a sentence of banishment is whether it could be considered cruel or unusual.

“Is it particularly cruel or degrading?” Pillsbury asked. “I wouldn’t think so, particularly when you consider the typical alternatives for armed robbery”--that is, incarcerating teen-agers in high-security prisons for years.

In this case, Tlingit leaders said they would monitor the banished youths from time to time but offer them no assistance. Authorities did not specify the location of the banishment islands, but the region is rich with fish and coastal shellfish, traditional foods of the Tlingit.

“A yearlong banishment, under the community supervision . . . would require these young men to improve themselves and to ruminate upon their crime. In addition, (the sentence) would make frugal use of the state’s resources,” defense attorneys argued.

After their exile on the islands, the two are to continue their rehabilitation by working at a native sawmill.

The robbery occurred in August. Prosecuting attorney Michael Magee said the two teen-agers, then 16, called and ordered a pizza and asked that the driver bring change for a $50 bill. They gave an address and then waited nearby. When Tim Whittlesey arrived with the food, he was attacked from behind and beaten. The robbers got away with less than $40.

Whittlesey appeared in court this week and told the judge that he lost hearing in one ear and partially in the other, and had to endure a long and painful rehabilitation. His injuries cost him his dream of going to medical school.

The two native youths were charged as adults.

Authorities said the two had spent most of their lives in rural southeast Alaska in the village of Klawock, on Prince of Wales Island, east of the town of Ketchikan. At the time of the crime, they were visiting family in Everett, 30 miles north of Seattle. They have been in custody here for 10 months.

Prosecutor Magee argued against the banishment sentence, although he conceded mixed feelings in the end. On one hand, he said, the promises of restitution and rehabilitation were more than the Washington judicial system could offer or hope for.

“On the other hand,” Magee said, “I have a good deal of difficulty in accepting the idea that we treat people differently under the law because they come from different cultural backgrounds. I can see now I’ll be facing all kinds of motions and arguments based on someone’s cultural background.”

Washington law makes no provision for relinquishing jurisdiction in criminal cases to other tribunals. So in this instance, Allendoerfer technically only postponed sentencing of the two and turned them over to Tlingit authorities for the fixed period of 18 months.

When the two men reappear in court, Allendoerfer will have the option of evoking a section of state law that allows judges to hand out “exceptional” sentences if they can offer extraordinary justification. Tlingit leaders said they hoped by then to show that the youths had been punished severely and were on the road to rehabilitation.

But Magee said he is prepared to argue that state law requires that the two be sent to prison anyway.