- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Indian Law
- Date Filed: 07-31-2012
- Case #: 09-35881
- Judge(s)/Court Below: Per Curiam; Chief Judge Kozinski and Circuit Judges Schroeder, Pregerson, Kleinfeld, Hawkins, Thomas, Paez, Tallman, Rawlinson, and Clifton. Dissent by Circuit Judge Fletcher
- Full Text Opinion
Alleging that they have “non-exclusive aboriginal hunting and fishing rights” to portions of the Outer Continental Shelf (“OCS”) in the Gulf of Alaska, the Native Alaskan villages of Eyak, Tatitlek, Chenega, Nanwalek, and Port Graham (the “villages”) appealed the district court’s dismissal with prejudice of their complaint challenging the Secretary of Commerce’s promulgation of Individual Fishing Quota regulations (IFQ regulations). The IFQ regulations restrict Alaskan Natives and other subsistence fishers to twenty halibut per person per day, plus two halibut per day for sport fishing. The IFQs allowing for commercial fishing of halibut and sablefish were only granted by the Secretary to persons or entities that had vessels for catching these species between the years 1988 and 1990. The Court of Appeals previously remanded the case to the district court to ascertain the extent, if any, of the villages’ aboriginal rights that had been overstepped by the “federal paramountcy doctrine” and federal law generally. The district court concluded that the villages failed to demonstrate an aboriginal right to the land because they never exercised an exclusive right to hunt and fish by demonstrating exclusive control of the claimed areas, likely because their populations where insufficient to control even parts of the OCS, and they had no other means for enforcing their asserted dominion and control over the claimed area. Both the district court and the Court of Appeals found that the villages could not show that the villages used and occupied the claimed areas to the exclusion of other tribes, or even that they visited all the areas that they now claim. Further, even in parts of the OCS where the villages argued that there was collective use because various tribes had fishing grounds that overlapped, the Court of Appeals reviewed this assertion and found the facts insufficient to demonstrate a finding of collective use by the entire group of the entire area, when they more likely remained separated in their discrete areas. AFFIRMED.