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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 12-102

General Memorandum 12-102
Ninth Circuit Holds Alaska Native Villages Failed to Prove Entitlement to Aboriginal Hunting and Fishing Rights

A sharply divided U.S. Court of Appeals for the Ninth Circuit has held that the Alaska Native Villages of Eyak, Tatitlek, Chenega, Nanwalek and Port Gamble (Villages) failed to prove their entitlement to non-exclusive aboriginal hunting and fishing rights on the Outer Continental Shelf (OCS) in the Gulf of Alaska. Native Village of Eyak v. Blank, No. 09-35881 (9th Cir. July 31, 2012). Specifically, the Court held that although the Villages demonstrated their continuous use and occupancy of the OCS area in question they failed to prove exclusive use because the Villages were unable to demonstrate that they controlled the area to the exclusion of other tribes.

In 1993 the Secretary of Commerce promulgated regulations limiting access to the halibut and sablefish fisheries on the OCS in the Gulf of Alaska. The Villages claimed that the regulations failed to account for their non-exclusive aboriginal hunting and fishing rights, without Congress's consent in violation of the federal common law and the Indian Non-Intercourse Act. The district court dismissed the Villages' complaint and the Villages appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit took the case en banc, meaning review by a full eleven-judge panel rather than a three-judge panel, to determine whether the federal paramountcy doctrine (meaning the federal government has paramount interest in ocean waters and submerged lands below the low water mark) trumped the Villages' claim based on aboriginal title. However, before reaching this issue the Court remanded the case to the district court for the limited purpose of determining what aboriginal rights, if any, the Villages had. After trial, the district court held that the Villages had not established an aboriginal rights claim for non-exclusive hunting and fishing rights in the OCS.

The Ninth Circuit affirmed the district court's determination, holding that, based on the district court's factual finding, the Villages failed to prove the required exclusive use because the Villages were unable to demonstrate that they controlled the area to the exclusion of other tribes. To establish aboriginal rights a tribe must demonstrate by a preponderance of the evidence actual, exclusive and continuous use and occupancy of the claimed area for a long period of time before contact with Europeans. The Court determined that the Villages' intermittent or seasonal use of the OCS for hunting and fishing was sufficient to support aboriginal title because it was consistent with the seasonal nature of the ancestors' way of life as marine hunters and fishermen.

Importantly, however, the Court concluded that the Villages failed to prove their exclusive use over the areas of the OCS they claimed. Exclusive use, according to the majority, requires that the tribe must exercise full dominion and control over the area such that it possesses the right to expel intruders as well as the power to do so. The Court determined that the district court's factual findings indicated that other tribes fished and hunted on the periphery of the Villages' claimed territory and that the Villages' low population, which was estimated to have been between 400 and 1500, suggested that the Villages were incapable of controlling any part of the OCS. As such the Court concluded that the Villages did not satisfy their burden to show they exclusively controlled the claimed areas on the OCS. Because the Villages did not establish aboriginal rights on the OCS, the Court did not reach the question of whether there was a conflict with the federal paramountcy doctrine or whether the Secretary's actions violated the Indian Non-Intercourse Act.

The dissent agreed with the majority that the Villages must prove their exclusive use and occupancy and that the Villages had in fact proven their use and occupancy of the OCS. However, the dissent strongly disagreed with the majority's conclusion that the Villages had not proven their exclusive use of the claimed areas. Based on the factual findings of the district court, the dissent concluded that use by other tribes on the periphery of the claimed area did not defeat the Villages' exclusivity within the claimed area itself. Moreover, as no findings showed use or occupancy of the claimed areas by other tribes, the dissent argued that existing case law only required that the Villages show their own use and occupancy, not that they "could have repelled hypothetical intruders from the area." As such the dissent would have held that the Villages established aboriginal hunting and fishing rights in at least part of the claimed area of the OCS, and that these rights are consistent with federal paramountcy, meaning the Villages' non-exclusive rights could exist at the same time as the federal government's rights. Finally, the dissent would remand the case to the district court with instructions to determine precisely where within the claimed area the Villages have aboriginal rights.

Please let us know if you would like more information regarding this important decision.

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Inquires maybe directed to:
Geoff Strommer (gstrommer@hobbsstraus.com or 503-242-1745)
Sky Starkey (jstarkey@hobbsstraus.com or 907-360-4821)

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