(SitNews) - On September 08, 2022, the Nineth Circuit Court of Appeals reversed the Alaska District Court’s dismissal, for failure to state a claim, of the Metlakatlan Indian Community’s suit against Alaskan officials, claiming that an 1891 statute granted the Community and its members the right to fish in the off-reservation waters where they had traditionally fished and that they, therefore, were not subject to an Alaska statute’s limited entry program for commercial fishing in waters designated as Districts 1 and 2.

The 1891 Act established the Annette Islands Reserve as the Community’s reservation. The panel held that the 1891 Act also granted to the Community and its members a non- exclusive right to fish in the off-reservation waters where they had traditionally fished.

In 1916, President Woodrow Wilson proclaimed that the Metlakatlans’ reservation extends 3,000 feet from the shoreline of the Annette Islands, and that the Metlakatlans have an exclusive right to fish within the reservation boundaries (the “Proclamation”). After the Proclamation, the Metlakatlans continued to fish, as they always had, both in the waters immediately surrounding the islands and in waters far from the islands’ shores. In subsequent years, courts, federal agencies, and the Territory of Alaska acknowledged with approval that the Metlakatlans fished in their traditional off-reservation waters.

In 1972, Alaska amended its constitution to authorize the State to restrict the entry of new participants into commercial fisheries in state waters. Pursuant to the amendment, Alaska enacted a statute creating a limited entry program for commercial fishing. In 2020, in response to the Alaska’s attempt to subject the Metlakatlans to its limited entry program, the Community sued Alaskan officials in federal district court. The Community contended that the 1891 Act grants to the Community and its members the right to fish in the off-reservation waters where Community members have traditionally fished. The Alaska District Court disagreed, holding that the Act provides no such right.

The Ninth District Court's panel applied the Indian canon of construction, which required it to construe the 1891 Act liberally in favor of the Community and to infer rights that supported the purpose of the reservation.

In Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1918), the Supreme Court inferred a fishing right from the 1891 Act. At issue was the scope of that right. The panel concluded that a central purpose of the reservation, understood in light of the history of the Community, was that the Metlakatlans would continue to support themselves by fishing. The panel therefore held that the 1891 Act preserved for the Community and its members an implied right to non-exclusive off- reservation fishing for personal consumption and ceremonial METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 3 purposes, as well as for commercial purposes, within Alaska’s Districts 1 and 2, which encompassed waters included in the traditional fishing grounds of the Metlakatlans. The panel reversed the decision of the Alaska District Court and remanded for further proceedings.

The Nineth Circuit Court of Appeals held that the 1891 Act reserves for the Metlakatlan Indian Community an implied right to non-exclusive off- reservation fishing in the areas where they have fished since time immemorial and where they continued to fish in 1891 when their reservation was established. The appeals court reversed the decision of the district court and remanded for further proceedings consistent with appeals court's opinion.

The appeal was heard before Nineth Circuit Judges William A. Fletcher, Johnnie B. Rawlinson, and John B. Owens. The opinion was by Senior Circuit Judge Fletcher.

Counsel for the Plaintiff-Appellant: Julie A. Weis (argued), Christopher G. Lundberg, and Christopher T. Griffith, Haglund Kelley LLP, Portland, Oregon.

Counsel for Defendants- Appellees: Laura Wolff (argued) and Christopher Orman, Assistant Attorneys General; Treg R. Taylor, Attorney General; Office of the Attorney General, Anchorage, Alaska.

The case originated in the Ketchikan District Court.

On the Web:

Read the Opinion:

METLAKATLA INDIAN COMMUNITY V. DUNLEAVY (pdf)

METLAKATLA INDIAN COMMUNITY, a Federally Recognized Indian Tribe, Plaintiff-Appellant, v.
MICHAEL J. DUNLEAVY, Governor of the State of Alaska; DOUG VINCENT- LANG, Commissioner of the Alaska Department of Fish and Game; AMANDA PRICE, Commissioner of the Alaska Department of Public Safety, Defendants-Appellees.

Source of News:

Nineth District Court
www.ca9.uscourts.go

 

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