U.S. Supreme Court Rejects Alaska’s Request for Review of the Katie John DecisionBy MARY KAUFFMAN
April 01, 2014
The Supreme Court’s rejection of the State’s appeal marks the end to nearly 27 years of litigation by the Native American Rights Fund on behalf of Ahtna elder, Katie John of Mentasta. The Katie John cases, more than any other subsistence cases, exemplify the contentious battle waged between federal, tribal and state interests over jurisdiction of Alaska Native subsistence fishing rights. Unfortunately, Katie John did not live long enough to see the completion of the litigation said the Native American Rights Fund as she passed away at age 97 in 2013. Katie’s granddaughter, Kathryn Martin, expressed relief that the ruling would stand and stated, “Praise the Lord, my grandma can rest in peace.”
The celebrated Ahtna leader Katie John
Sealaska says the Alaska Attorney General and the Governor’s decision to appeal the Katie John case was divisive. If the State’s appeal had been successful, the contracts between the Government and Natives to settle indigenous land claims would have been breached and would have thrown all the agreements of ANILCA and Alaska Native Claims Settlement Act (ANCSA) into turmoil. “This is an important decision,” said Ed Thomas, President of Central Council of Tlingit and Haida Indian Tribes of Alaska. Thomas, who also serves as a Sealaska director says, “I hope we will now look at ways we can work cooperatively with the state on resource management that will be fair to subsistence users and minimize harassment wherever we can.” “We are very pleased with the Supreme Court’s wise decision to uphold the rulings of the lower courts,” said Alaska Federation of Natives' Co-chair Tara Sweeney in a news release. “This is not only a victory for the late Katie John and her extended family, for Alaska Natives and other rural Alaskans who depend on subsistence to feed their families, but for all Alaskans who seek a prosperous, fair and equitable society.” Alaska Federation of Natives' Co-chair Ana Hoffman added, “The Parnell administration’s lawsuit was an assault upon the people of Alaska who depend upon hunting, fishing and gathering to feed their families. We are very glad that we can put that behind us and work together toward a lasting and fair solution to our state’s subsistence management problem.” “AFN is grateful for the full support of Secretary of the Interior Sally Jewell, Secretary of Agriculture Tom Vilsack, and top Department of Justice officials, representing the federal government, who is also a party to this case, as well as the Native American Rights Fund,” said Julie Kitka, Alaska Federation of Natives President. “We still have work to do. We still struggle under a highly complex federal-state dual management system, which needs reform.” Dr. Rosita Worl, Co-chair of Alaska Federation of Natives' Subsistence Committee, said, “AFN and the Native leadership recommits to double our efforts to protect our peoples’ rights. We will focus on what we can do for ourselves without regard to federal and state action. We will continue to build the internal capacity of the Native community. We will continue to explore state legislative actions and further Congressional actions. Lastly, we will call upon President Obama and his Cabinet Secretaries Sally Jewell and Tom Vilsack to utilize all their Executive and Administrative authority to protect the people dependent on subsistence fishing to feed their families. There will be no slow down of our efforts.” The Supreme Court’s rejection of the State’s appeal marks the end to nearly 27 years of litigation by the Native American Rights Fund on behalf of Katie John. According to information provided in a news release by the Native American Rights Fund, in Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (“Katie John I”), NARF established that in enacting ANILCA, Congress intended to protect subsistence fishing when withdrawing public lands in Alaska, and ANILCA’s subsistence priority applies to those navigable waters in which the United States owns so called “reserved water rights,” or about 60% of Alaska’s inland waters. In January 1999 the federal government issued its regulations identifying the waters in Alaska which fall under federal management. Before the regulations became effective, the State of Alaska petitioned the Ninth Circuit Court of Appeals to hear the case en banc. The Court agreed to have 11 judges hear the State’s en banc appeal. After briefing and oral argument, the Court of Appeals reaffirmed its earlier ruling and stated that “the [1995] judgment rendered by the prior panel and adopted by the district court should not be disturbed or altered by the en banc court.” 247 F.3d 1032 (9th Cir. 2001) (Katie John II). In 2005, the State of Alaska filed another lawsuit challenging the federal agency final rule implementing Katie John I. Representing Katie John again, NARF brought a counter law suit and argued that the regulations did not go far enough but should have extended to Alaska Native allotments and upstream and downstream waters. (Katie John III). In July 2013, the Ninth Circuit ruled in favor of the federal government and held that the Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify those waters that are “public lands” for the purpose of determining the scope of the Act’s rural subsistence policy. The panel concluded that, in the 1999 Rules, the Secretaries applied Katie John I and the federal reserved water rights doctrine in a principled manner. The panel held that it was reasonable for the Secretaries to decide that: the “public lands” subject to the Act’s rural subsistence priority included the waters within and adjacent to federal reservations; and reserved water rights for Alaska Native Settlement allotments were best determined on a case-by-case basis. Alaska v. Jewell, 720 F.3d 1214 (9th Cir. 2013) (Katie John III). U.S. Senator Mark Begich (D-AK) was pleased to hear the Supreme Court would not hear the appeal of the Katie John case. In a prepared statement, Begich said, “Today I stand by the Alaska Native community to celebrate the U.S. Supreme Court’s decision not to hear the Parnell-Treadwell administration’s appeal of the Katie John case.Today’s decision means the subsistence priority under the Alaska National Interest Lands Act is upheld in navigable waters where the U.S. owns reserved water rights, or roughly 60 percent of inland waters. This is a huge victory for the heroic Katie John, her family and the entire Alaska Native community. Throughout Alaska’s rural communities, subsistence hunting and fishing remains essential to the cultural and physical wellbeing for thousands of Alaskans and I’m committed to protecting that right.” Gubernatorial candidate Byron Mallot (D) praised the Supreme Court's decision on subsistence. "I am heartened by this decision," said Mallott in a prepared statement. "Rather than pursue senseless litigation, the state should engage in meaningful dialogue with its rural residents and Native peoples to protect the subsistence way of life." Mallott is calling on Governor Sean Parnell to accept the Supreme Court's decision and direct his administration to work constructively towards a solution that is fair and lasting. However, Republican leaders of the Alaska State Senate say they are disappointed the U.S. Supreme Court declined the opportunity to clarify lower court rulings in the ‘Katie John’ case. The petition, filed by Attorney General Michael Geraghty in November 2013, requested review of the Ninth Circuit Court of Appeals' decision extending control over fishing and hunting to the federal government on state-owned navigable waters not only in, but also adjacent to federal lands. “The Supreme Court’s decision not to take this opportunity to clarify these rulings is extremely disappointing, however, not completely unexpected. This case is important because it represents de facto federal management over an area expressly reserved to the state. The State must manage fish and game for the benefit of all residents,” said Senate Majority Leader John Coghill (R-North Pole) in a news release. Coghill said, “We continue to support the state’s position in this case. There are guarantees in the Alaska Statehood Act and the Alaska Constitution which places Alaska’s resources, including fish and game, in the state’s trust to be managed by Alaskans.” Coghill said, "A federal regulation promulgated in 1999 took away control of navigable waters from the State and placed them under the authority of the federal government. Relying on an unprecedented extension of the federal reserved water rights doctrine, the Ninth Circuit upheld the regulation extending federal subsistence jurisdiction to navigable waterways not only in, but adjacent to federal lands under the Alaska National Interest Lands Conservation Act (ANILCA). This has led to conflicts and confusion about whether federal or state laws relating to fishing, hunting, and resource conservation apply on state-owned navigable waterways." Senate President Charlie Huggins (R-Wasilla) stated in a news release, “The legal issue of management authority does not mean our state does not support subsistence rights.” Huggins said, “While not perfect in providing everyone with as much game and fish as they would like every year, ADF&G and the Boards of Fish and Game successfully plan and provide for many subsistence opportunities across the State, and have done so for decades under existing state law and continue to do so.”
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