9th Circuit Rejects Claim of Native Fishing Rights

     (CN) – Residents of five native villages near the Gulf of Alaska failed to show that they had exclusive use of their traditional hunting and fishing grounds prior to European contact, a full panel of the 9th Circuit ruled Tuesday.
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     The decision could end a decade-long quest by the Native Villages of Eyak, Tatitlek, Chenega, Nanwalek and Port Graham to establish non-exclusive aboriginal hunting and fishing rights in certain areas of the Outer Continental Shelf (OCS) in the gulf. The villages first sued the federal government in 2002, challenging fishing quotas in the Gulf of Alaska south of Prince William Sound and the Kenai Peninsula. Since then the case has twice gone before an 11-judge, en banc panel of the federal appeals court.
     The villages lost their initial challenge in District Court, but the 9th Circuit’s first en banc panel vacated and remanded the issue to allow the plaintiffs to establish their alleged aboriginal rights. After a trial in 2008, Presiding U.S. District Judge H. Russel Holland, in Anchorage, found the village’s proof wanting. A second full panel of 9th Circuit judges affirmed Tuesday in San Francisco.
“There’s evidence that the villages’ ancestors traveled to Middleton Island, the Barren Islands, Cook Inlet, the Copper River Delta and Wessels Reef to hunt and fish,” the panel stated in an unsigned opinion. “When traveling between Kodiak and the Middleton Islands, their ancestors traversed portions of the OCS and engaged in opportunistic fishing during the course of these travels.”
     However, “there is not enough evidence in the record to persuade us that the Villages used and occupied the claimed areas to the exclusion of other tribes,” according to the panel.
     “The tribe or group 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 ruling states. “The District Court properly found that the Villages failed to show by a preponderance of evidence that they exercised exclusive control, collectively or individually, over the areas of the OCS they now claim.”
     Writing in dissent, Judge William Fletcher argued that lower court had used the wrong legal test.
     “I would hold, based on the district court’s findings, that the Chugach have 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,” he wrote. “I would reverse and remand with instructions to the district court to find, under the proper legal test, precisely where within the claimed area the Chugach have aboriginal rights.”
     The villages’ attorney, Natalie Landreth, of the Native American Rights Fund in Anchorage, could not immediately be reached for comment.

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