Attorney: Natalie A. Landreth
In this case, NARF represents five Chugach villages that sued the Secretary of Commerce to establish aboriginal rights to their traditional use areas on the Outer Continental Shelf (OCS) of Alaska, in Cook Inlet and the Gulf of Alaska. In 2002 the federal district court ruled against the Chugach. NARF appealed to the U.S. Court of Appeals for the Ninth Circuit which in 2004 en banc vacated the district court’s decision and remanded for determination of whether the Tribes can establish aboriginal rights to the areas. After denials of summary judgment motions on the issue, trial on whether these Tribes hold aboriginal rights to hunt and fish in federal waters was held in August 2008. In August 2009 the court held that although the five Chugach Tribes had established that they had a “territory” and had proven they had used the waters in question, the Tribes could not hold aboriginal rights as a matter of law. The Chugach appealed to the Ninth Circuit en banc panel which retained jurisdiction over the case. Oral argument was heard by the en banc panel on September 21, 2011.
On July 31, 2012, a 6-5 majority of the Ninth Circuit en banc panel affirmed the district court’s ruling that the Tribes failed to establish entitlement to non-exclusive aboriginal rights on the OCS.
The majority concluded that the Villages had satisfied the “continuous use and occupancy” requirement of the test for aboriginal rights, which is measured in accordance with the particular ways of life, customs, and habits of the tribe seeking to establish aboriginal rights. The majority determined that the district court’s findings that the Villages’ ancestors had hunted and fished on the OCS seasonally and while traveling to outer islands was consistent with their way of life as marine hunters and fisherman, and thus satisfied this requirement.
However, the majority concluded that the Villages did not satisfy the “exclusivity” requirement of the test. Exclusivity is established when a tribe shows it used and occupied a territory to the exclusion of other Indian groups. The majority rejected the argument that the lack of evidence that other groups hunted and fished in the claimed OCS territory established exclusivity. The majority interpreted the district court’s finding that neighboring tribes had likely fished and hunted on the periphery of the claimed OCS territory to constitute a finding that these other groups had likely fished and hunted within the claimed OCS territory. The majority also relied on a statement by the district court that the population of the ancestral villages was too low to have been able to exercise dominion and control over the claimed OCS area.
Five judges signed on to a vigorous dissent which agreed with the majority that the Tribes had satisfied the continuous use and occupancy requirement but strongly disagreed with the majority’s conclusion that the exclusivity requirement was not satisfied. The dissent argued that exclusivity does not require the Tribes to show that as a theoretical matter, they could have repelled intruders from the claimed OCS area, as suggested by the district court’s population finding. Rather, in the absence of evidence of use by others, case law requires only that the Villages show that they were the only group that used and occupied the area. The dissent engaged in a thorough and well-reasoned analysis of the district court’s findings and the supporting evidence to conclude that this requirement had been satisfied with respect to at least some parts of the claimed OCS area. Thus, the dissent would have reversed and remanded with instructions to the district court to find, under the proper legal test, precisely where within the claimed area the Tribes have aboriginal rights.
NARF filed a petition for a writ of certiorari in the U.S. Supreme Court and cert was denied on October 7, 2013, ending the case.