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U.S. 9th Circuit Court of Appeals
NATIVE VILLAGE OF EYAK v TRAWLER DIANE MARIE, INC.
9735944
NATIVE VILLAGE OF EYAK; NATIVE VILLAGE OF TATITLEK; NATIVE VILLAGE OF CHANEGA (AKA CHENEGA); NATIVE VILLAGE OF NANWALEK; NATIVE VILLAGE OF No. 97-35944 PORT GRAHAM, D.C. No. Plaintiffs-Appellants, CV-95-0063-HRH v. OPINION TRAWLER DIANE MARIE, INC.; WILLIAM DALEY, Secretary of Commerce, Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Argued and Submitted
July 14, 1998--Anchorage, Alaska
Filed September 9, 1998.
Before: Jerome Farris, Diarmuid F. O'Scannlain, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge O'Scannlain
_________________________________________________________________
COUNSEL
Laurence A. Aschenbrenner (argued), Heather R. Kendall-
Miller, Martha L. King, Native American Rights Fund,
Anchorage, Alaska, Carol E. Daniel, Anchorage, Alaska, Wil-
liam Caldwell, Alaska Legal Services Corporation, Fairbanks,
Alaska, for appellants Native Villages of Eyak, Tatitlek,
Chanega, Nanwalek, Port Graham.
David C. Schilton (argued), Lois J. Schiffer, Robert L. Klar-
quist, Bruce M. Landon, U.S. Department of Justice, Wash-
ington, D.C., for appellee William M. Daley, Secretary of
Commerce.
_________________________________________________________________
OPINION
O'SCANNLAIN, Circuit Judge:
In this case of first impression, we must consider Alaskan
Native Village claims of aboriginal title, including exclusive
hunting and fishing rights, to the outer continental shelf of the
United States.
I
The Alaskan Native Villages of Eyak, Tatitlek, Chanega,
Port Graham, and Nanwalek (collectively, the "Native
Villages") appeal the district court's summary judgment in
favor of the Secretary of the United States Department of
Commerce ("Secretary") in their action asserting unextin-
guished aboriginal title to a portion of the outer continental
shelf ("OCS")1 of the United States. According to the Native
Villages, regulations promulgated by the Department of Com-
merce for the management of halibut and sablefish fisheries
violate their rights to the exclusive use and occupancy of the
OCS.
The Native Villages are located in the Prince William
Sound, the Gulf of Alaska, and the lower Cook Inlet regions
of Alaska. They claim that, for more than 7,000 years, their
members have hunted sea mammals and harvested the fishery
resources of the OCS. The Native Villages maintain that a
majority of their members still maintain a subsistence lifestyle
heavily reliant on the fish and wildlife of the OCS, and that
their continued social, cultural, and economic well-being
depends on their continued ability to hunt and to fish in their
traditional territories on the OCS. The Native Villages argue
that they are entitled to exclusive use and occupancy of their
respective areas of the OCS, including exclusive hunting and
fishing rights, based upon unextinguished aboriginal title.
The Secretary of Commerce2 manages fisheries pursuant to
the Magnuson Fishery Conservation Management Act
("Magnuson Act"), 16 U.S.C. SS 1801-1882. The Magnuson
Act extended the sovereign control and jurisdiction of the
United States to waters lying between 3 and 200 miles off the
coast of the United States by establishing an exclusive fishery
conservation zone and asserting "sovereign rights and exclu-
sive fishery management authority over all fish and all Conti-
nental Shelf fishery resources, within the exclusive economic
zone." 16 U.S.C. S 1811. Pursuant to the Magnuson Act and
the Northern Pacific Halibut Act of 1982 ("Halibut Act"), 16
U.S.C. SS 773-773k, the Secretary promulgated regulations in
1993 limiting access to the sablefish and halibut fisheries in
the Gulf of Alaska and the lower Cook Inlet. See 50 C.F.R.
S 676. The Native Villages challenge the Secretary's fishing
regulations on the ground that they improperly authorize non-
tribal members to fish within the Native Villages' exclusive
aboriginal territories while prohibiting Native Village mem-
bers without Individual Fishing Quotas ("IFQ") 3 from doing
the same. The Native Villages have requested an injunction
against the Secretary's fishing regulations and a declaration
that they hold aboriginal title and exclusive aboriginal rights
to use, occupy, possess, hunt, fish, and exploit the waters, and
to the mineral resources within their traditional use areas of
the OCS.
Both the Native Villages and the Secretary moved for sum-
mary judgment before the district court. Granting the Secre-
tary's motion and denying the Native Villages' motion, the
district court held: (1) that federal paramountcy precludes
aboriginal title in the OCS and (2) that there is no exclusive
aboriginal right to fish in navigable waters based on aborigi-
nal title outside of a treaty or federal statute. 4 The Native Vil-
lages appeal.
II
We first consider whether the district court erred in con-
cluding that the federal paramountcy doctrine bars the Native
Villages' aboriginal title claims to the OCS, including exclu-
sive hunting and fishing rights.
A
[1] The "federal paramountcy doctrine" is derived, in
essence, from four Supreme Court cases in which the federal
government and various coastal states disputed ownership and
control of the territorial sea and the adjacent portions of the
OCS.
The first of these cases was United States v. California, 332
U.S. 19 (1947), in which the United States sued to enjoin the
State of California from executing leases authorizing the tak-
ing of petroleum, gas, and other mineral deposits from the
Pacific Ocean. The United States argued that it owned in fee
simple, or possessed "paramount rights" in, the lands, miner-
als, and "other things of value" underlying the ocean and
sought a decree so declaring. Id. at 22. In response, California
contended that the area in question, which extended just three
miles into the ocean from the low-water mark off its coast,
was within its boundaries. See id. California reasoned that,
because the original thirteen states had acquired from the
Crown of England title to all lands within their boundaries
under navigable waters (including a three-mile belt in adja-
cent seas), and because California was admitted on an "equal
footing" with the original states, it also became vested with
title to these submerged lands upon entry into the Union. See
id. at 23.
The issue before the Supreme Court, then, was "whether
the state or the Federal Government has the paramount right
and power to determine in the first instance when, how, and
by what agencies, foreign or domestic, the oil and other
resources of the soil of the marginal sea, known or hereafter
discovered may be exploited." Id. at 29. Rejecting Califor-
nia's argument, the Court concluded that the acquisition of the
three-mile belt, as well as its protection and control, has been
and is a function of "national external sovereignty." Id. at 34.
The Court dismissed the idea that the "local interests" which
support a state's dominion over its land-locked navigable
waters in any way favor state control over any part of the
ocean. See id. Instead, the Court decided, it is the federal gov-
ernment which "must have powers of dominion and regula-
tion in the interest of its revenues, its health, and the security
of its people from wars waged on or too near its coasts." Id.
at 35. Matters which occur in the open sea are questions for
consideration among nations, not among their separate gov-
ernmental units, which, under our constitutional system, are
"not equipped . . . with the powers or the facilities for exercis-
ing the responsibilities" accompanying dominion over the
ocean. Id. Thus, the Court declared, "California is not the
owner of the three-mile marginal belt along its coast." Id. at
38. Instead, "the Federal Government rather than the state has
paramount rights in and power over that belt, an incident to
which is full dominion over the resources of the soil under
that water area, including oil." Id. at 38-39.
Bolstered by the favorable outcome in California, the
United States brought similar actions to confirm its title to the
seabed adjacent to other coastal states. In United States v.
Louisiana,
339 U.S. 699
(1950), the United States brought
suit against the State of Louisiana, which argued that it held
title to the seabed under the waters extending twenty-seven
miles into the Gulf of Mexico. According to Louisiana, before
and since the time of its admission to the Union, it had exer-
cised dominion over the area in question and by state statute
had even formally included the twenty-seven-mile belt within
its boundaries. See id. at 701. The Supreme Court disagreed.
Finding California controlling, the Court held:
Protection and control of the area are indeed func-
tions of national external sovereignty. The marginal
sea is a national, not a state concern. National inter-
ests, national responsibilities, national concerns are
involved. The problems of commerce, national
defense, relations with other powers, war and peace
focus there. National rights must therefore be para-
mount in that area.
Id. at 704 (citations omitted) (emphasis added).
The Court found that the only difference between the argu-
ment raised by Louisiana and the one raised by California was
that Louisiana's claimed boundary extended twenty-four
miles beyond California's three-mile claim. See id. at 705.
This difference did not weigh in Louisiana's favor, however:
If . . . the three-mile belt is in the domain of the
Nation rather than that of the separate States, it fol-
lows a fortiori that the ocean beyond that limit also
is. The ocean seaward of the marginal belt is per-
haps even more directly related to the national
defense, the conduct of foreign affairs, and world
commerce than is the marginal sea. Certainly it is
not less so. So far as the issues presented here are
concerned, Louisiana's enlargement of her boundary
emphasizes the strength of the claim of the United
States to this part of the ocean and the resources of
the soil under that area, including oil.
Id. at 705-06 (emphasis added).
In the companion case to Louisiana, United States v. Texas,
339 U.S. 707
(1950), the Supreme Court again reaffirmed its
holding in California. The State of Texas had, by statute,
extended its boundary first to a line twenty-four miles beyond
the three-mile limit, and thereafter to the outer edge of the
continental shelf. See Texas,
339 U.S. at 720
. Texas raised a
somewhat different argument than had either California or
Louisiana, one more analogous to that asserted by the Vil-
lages here. Texas argued that, because it was a separate repub-
lic prior to its entry into the United States, it had both
dominium (ownership or proprietary rights) and imperium
(governmental powers of regulation and control) with respect
to the lands, minerals, and other products underlying the mar-
ginal sea. See id. at 712. Upon entering the Union, Texas
transferred to the federal government its powers of sover-
eignty -- its imperium -- over the marginal sea, but retained
its dominium. See id. at 713.
The Supreme Court was not persuaded. While the Republic
of Texas may have had complete sovereignty and ownership
over the marginal sea and all things of value derived there-
from, the State of Texas did not. See Texas,
339 U.S. at 717
.
"When Texas came into the Union, she ceased to be an inde-
pendent nation. . . . The United States then took her place as
respects foreign commerce, the waging of war, the making of
treaties, defense of the shores, and the like." Id. at 717-718.
As an incident to the transfer of that sovereignty, any "claim
that Texas may have had to the marginal sea was relinquished
to the United States." Id. at 718. The Court recognized that
"dominion and imperium are normally separable and
separate"; however, in this instance, "property interests are so
subordinated to the rights of sovereignty as to follow
sovereignty." Id. at 719. The Court rejected the argument that
"the sovereignty of the sea can be complete and unimpaired
no matter if Texas owns the oil underlying it," concluding that
"once low-water mark is passed the international domain is
reached." Id. At that point, "[p]roperty rights must . . . be so
subordinated to political rights as in substance to coalesce and
unite in the national sovereign." Id. The Court reasoned:
"Today the controversy is over oil. Tomorrow it may be over
some other substance or mineral or perhaps the bed of the
ocean itself. If the property, whatever it may be, lies seaward
of low-water mark, its use, disposition, management, and con-
trol involve national interests and national responsibilities."
Id. (emphasis added).
In the last of the paramountcy cases, United States v.
Maine,
420 U.S. 515
(1975), the United States brought an
action against the thirteen Atlantic Coastal States asserting
that the federal government was entitled to exercise sovereign
rights over the seabed and subsoil underlying the Atlantic
Ocean to the exclusion of the coastal states for the purpose of
exploring the area and exploiting its natural resources. See id.
at 516-517. The area in dispute included the ocean lying more
than three miles seaward from the ordinary low-water mark
and from the outer limit of inland waters on the coast extend-
ing seaward to the outer edge of the continental shelf. The
coastal states, with the exception of Florida, claimed that, as
successors in title to certain grantees of the Crown of England
(or the Crown of Holland, in New York's case), they were
entitled to the exclusive right of dominion and control over
the seabed underlying the Atlantic Ocean seaward from its
coastline to the limits of the jurisdiction of the United States.
See id. at 517-518. The coastal states maintained that "they
acquired dominion over the offshore seabed prior to the adop-
tion of the Constitution and at no time relinquished it to the
United States." Id. at 519.
At the urging of the coastal states, the Supreme Court reex-
amined the decisions in California, Louisiana, and Texas. To
the states' dismay, the Court concluded that these cases
remained grounded on sound constitutional principles. See id.
at 524. Whatever interest the states may have held in the sea
prior to statehood, the Court held, as a matter of "purely legal
principle . . . the Constitution . . . allotted to the federal gov-
ernment jurisdiction over foreign commerce, foreign affairs,
and national defense and . . . it necessarily follows, as a matter
of constitutional law, that as attributes of these external sover-
eign powers the federal government has paramount rights in
the marginal sea." Id. at 522-523 (citation and internal quota-
tion marks omitted). The fact that the original thirteen states
existed prior to the formulation of the Union again proved to
be of no constitutional importance. See id. at 523 (citing
Texas,
339 U.S. at 717
). Accordingly, judgment was entered
in favor of the United States. See id. at 528.5
nental Shelf Lands Act of 1953, which the Court noted was a congressio-
nal reaffirmation of federal control over the OCS extending seaward of the
three-mile limit. See id. at 524-528.
B
We turn now to the specific issue presented here: whether
the federal paramountcy doctrine serves to bar not only state
claims to the OCS, but also claims made by persons and enti-
ties indigenous to these lands, in this case, the Native Vil-
lages.
1
[2] The district court reasoned that, if the states have no
property rights in the OCS via the paramountcy doctrine, a
fortiori, it cannot be otherwise for a tribal entity which, even
if possessed of sovereign rights, is dependent upon the United
States in the same manner as a state with regard to, inter alia,
national defense, foreign affairs, and world commerce. Even
though Indian tribes existed and governed North America
before the United States came into existence, the same is true
of the original states. Nevertheless, this did not prevent the
Supreme Court from deciding that the states had no property
or sovereign claims to the OCS. The district court thus found
the claims of the Native Villages to be inconsistent with the
sovereignty of the federal government in the OCS as
expressed in the paramountcy cases.
The Native Villages argue that the district court erred in so
concluding. They contend that the district court based its deci-
sion on an erroneous legal premise, namely, that their claims
of aboriginal title are the legal equivalent of the states' claims
of fee title and sovereignty. In fact, the Native Villages con-
tend, the "legal, fee, or sovereign title" claimed by the states
and aboriginal title are two very different property claims.
According to the Native Villages, aboriginal title is not legal
title or even a property right at all. Aboriginal title, according
to the Native Villages, "presumes federal paramountcy" and
bestows only the exclusive right to use and to occupy territory
to which the federal government admittedly holds sovereign
title, until Congress provides otherwise. Consequently, the
Native Villages contend, their claim does not conflict with the
federal government's paramount interests in the OCS.
In support of their argument, the Villages point to Village
of Gambell v. Hodel, 869 F.2d 1273 (9th Cir. 1989), in which
we noted that "aboriginal rights may exist concurrently with
a paramount federal interest, without undermining that
interest." Id. at 1277. The Villages assert that Gambell and the
cases cited therein, including County of Oneida v. Oneida
Indian Nation,
470 U.S. 226, 233
-36 (1985), Cramer v.
United States,
261 U.S. 219, 227
(1923), and Johnson v.
M'Intosh, 21 U.S. (8 Wheat) 543 (1823)), stand for the propo-
sition that native tribes have an "unquestioned right . . . to the
exclusive possession of their lands." They claim that to accept
the district court's conclusion that aboriginal title in the OCS
is precluded based on "nothing more than its potential effect
on the government's power over national defense and interna-
tional commerce," would violate the fundamental principle of
federal Indian law, i.e., "that federal sovereignty is subject to
the Indians' right of occupancy," unless and until extin-
guished by Congress.
2
[3] As an initial matter, we caution the Native Villages not
to read too much into our statement in Gambell that aboriginal
rights may coexist with the federal government's paramount
interests in the OCS. See Gambell, 869 F.2d at 1277. As we
made clear in that case, only limited assertions of aboriginal
subsistence rights were contemplated; exclusive rights to use
or occupy areas of the ocean were never considered. Specifi-
cally, in our remand order, we directed the district court to
determine, inter alia, "(1) whether the Villages in fact possess
aboriginal subsistence rights in the OCS [and ] (2) if the Vil-
lages do possess such rights, whether the drilling and other
activities by the oil companies will interfere significantly with
the Villages' exercise of those rights." Id. at 1280 (emphasis
added). Plainly, if we had considered that the Villages could
hold exclusive rights to the OCS, we would not have
remanded for a determination of whether the activities of third
parties would "interfere significantly" with those rights. Any
interference would have been enough to violate the Native
Villages' exclusive rights. Therefore, Gambell at most pro-
vides some guidance here; it is not controlling on this issue
of first impression.
Having said that, we note the statement in Gambell that the
paramountcy doctrine is not limited merely to disputes
between the national and state governments. See Gambell,
869 F.3d at 1276; see also Inupiat Community of the Arctic
Slope v. United States, 548 F. Supp. 182 (D.Alaska 1982),
aff'd, 746 F.2d 570 (9th Cir. 1984). Any claim of sovereign
right or title over the ocean by any party other than the United
States, including Indian tribes, is equally repugnant to the
principles established in the paramountcy cases. See id.
[4] This case presents a markedly different situation from
the one we considered in Gambell. The Native Villages here
assert exclusive rights of use and occupancy, not limited
rights. Although they assure us that their claims to the OCS
are "subordinate" to federal sovereignty, in that aboriginal
title "presumes" federal paramountcy in the OCS, we are hard
pressed to see a practical difference between the relief sought
by the Native Villages and that sought by the states in the par-
amountcy cases. The Native Villages pray for a declaration
that they "hold aboriginal title and exclusive aboriginal rights
to use, occupy, possess, hunt, fish, and exploit the waters, and
mineral resources within their traditional use areas of the OCS
in Prince William Sound, the Gulf of Alaska, and Cook Inlet."
They seek exclusive use of the ocean resources and regulatory
power over third parties, including officials of our executive
branch of government, subject only to the laws of Congress.
We fail to see how this differs from the claims asserted by the
states. Simply saying that a claim of aboriginal title is less
intrusive than a claim of fee title does not make it so.
[5] Further, the Native Villages' purported concession that
they "do not dispute Congress's ultimate power to enact laws
authorizing non-tribal members to fish within their aboriginal
fishing grounds" is really no concession at all. The Suprem-
acy Clause of the Constitution inherently requires the same of
states; yet this truism did not save the states' claims to the
OCS. And it does not save the Native Villages' claims here.
Before the Supreme Court, the State of Texas raised a similar
argument, contending that there could be "joint " ownership or
control over the OCS. According to Texas, the federal gov-
ernment could hold complete and unimpaired sovereignty
over the sea while Texas owned the resources lying beneath
it. See Texas,
339 U.S. at 719
. The Court was not persuaded.
It held that -- whereas ownership or proprietary rights in
property can be, and usually are, separated from the govern-
mental powers of regulation and control -- when dealing with
the ocean, "[p]roperty rights must then be so subordinated to
political rights as in substance to coalesce and unite in the
national sovereign." Id. As the Court noted prophetically,
"[t]oday the controversy is over oil. Tomorrow it may be over
some other substance or mineral or perhaps the bed of the
ocean itself." Id. Or, as we see here, it may be over fishing
and hunting rights. This is why the Supreme Court held, "[i]f
the property, whatever it may be, lies seaward of the low-
water mark, its use, disposition, management, and control
involve national interests and national responsibilities." Id.
(emphasis added). No exception was made for Indian tribes,
which, like states, are subordinate to the federal government,
and hence, cannot "claim rights which are . . . entrusted to the
one external sovereign recognized by the Constitution."
Inupiat, 548 F. Supp. at 187. We agree that,"[i]f, as a matter
of constitutional law, the federal government must be pos-
sessed of paramount rights in offshore waters, it makes no dif-
ference whether the competing domestic claimant is a state or
tribe of American natives." Id. We simply have no power to
split the rights in the OCS as the Native Villages would like.
[6] Finally, we reject the argument that the Native Villages
are entitled to exclusive use of the OCS because they have
hunted and fished in the sea for thousands of years prior to the
founding of the United States. While we respect the history of
the Native Villages and appreciate the importance of the OCS
to them, the Supreme Court was likewise cognizant of the his-
tory of the coastal states in California, Louisiana, Texas and
Maine. This did not, however, convince the Court to put the
ocean and its resources at the disposal of the states. Whatever
interests the states might have had in the OCS and marginal
sea prior to statehood were lost upon ascension to the Union.
See Maine,
420 U.S. at 522
; Louisiana,
339 U.S. at 704
;
Texas,
339 U.S. at 717
; California,
332 U.S. at 34
-35. The
Constitution allotted to the federal government jurisdiction
over foreign commerce, foreign affairs, and national defense
so that as attributes of these external sovereign powers, it has
paramount rights in the contested areas of the sea. See Maine,
420 U.S. at 522
; Louisiana,
339 U.S. at 704
; Texas, 339 U.S.
at 717; California,
332 U.S. at 38
. This principle applies with
equal force to all entities claiming rights to the ocean:
whether they be the Native Villages, the State of Oregon, or
the Township of Parsippany. "National interests, national
responsibilities, national concerns are involved " in all these
cases. Louisiana,
339 U.S. at 704
. The Native Villages' claim
to complete control over the OCS is contrary to these national
interests and inconsistent with their position as a subordinate
entity within our constitutional scheme. See Inupiat, 548 F.
Supp. at 187 (citing United States v. Wheeler,
435 U.S. 313
,
323 (1978), for the proposition that Indian tribes are
"dependent . . . within our territorial jurisdiction" and have no
"freedom to determine external relations."). We therefore
hold that the Native Villages are barred from asserting exclu-
sive rights to the use and occupancy of the OCS based on
unextinguished aboriginal title.
III
[7] For the foregoing reasons, we conclude that the district
court did not err in holding that the Native Villages' claims
to the OCS are barred by the federal paramountcy doctrine.6
AFFIRMED.
_______________________________________________________________
FOOTNOTES
1 "[The OCS includes] all submerged lands lying seaward and outside of
the area of lands beneath navigable waters as defined in section 1301 of
[the Submerged Lands Act], and of which the subsoil and seabed appertain
to the United States and are subject to its jurisdiction and control." 43
U.S.C. S 1331(a). The OCS includes those submerged lands outside state
territorial boundaries (which in Alaska's case means beyond three miles)
extending to the outer geologic edge of the continental shelf and within
United States jurisdiction and control.
2 The only defendant remaining in this action is the Secretary of Com-
merce. The Native Villages' action against the Secretary of the Interior
was dismissed for lack of ripeness and not appealed. The Native Villages'
action against the Trawler Diane Marie, Inc., was dismissed pursuant to
a stipulation of the parties.
3 Any boat that fishes commercially for sablefish or halibut in the regu-
lated area must have an IFQ share permit issued by the Secretary specify-ing the individual fishing quota allowed for the vessel. See 50 C.F.R.
S 676.13(a). The regulated area consists of portions of the Gulf of Alaska,
see 50 C.F.R. S 676.10(b), encompassing the Native Villages' aboriginal
hunting and fishing grounds. The Native Villages maintain that, although
a few of their members possess IFQ permits, the vast majority do not.
4 The district court decided "only the aboriginal title issues, . . . [and left]
for another day the question of what nonexclusive fisheries rights, if any,
plaintiffs might have in the OCS which are not dependent upon aboriginal
title." We therefore express no opinion on this issue.
5 In addition, the Supreme Court held that the rule that paramount rights
to the offshore seabed inhere in the federal government as an incident of
national sovereignty was confirmed by Congress in both the Submerged
6 Because we so hold, we need not reach the district court's alternative
holding that common law property precepts preclude tribes from possess-
ing exclusive hunting or fishing rights in navigable waters absent a treaty
or statute. We have ruled on this issue previously in Wahkiakum Bank of
Chinook Indians v. Bateman, 655 F.2d 176 (9th Cir. 1981), however, in
which we held that the Chinook Indians had no aboriginal fishing rights
to the Columbia River. In Wahkiakum, we noted that "[a]n aboriginal right
to fish has been recognized only in the context of interpretation of a rati-
fied treaty or federal statute, where courts have held that aboriginal fishing
rights were impliedly reserved to the Indians." Id. at 180 n.12; see also
Confed. Tribes of Chehalis v. Washington, 96 F.3d 334, 341 (9th Cir.
1996) (citing Wahkiakum for the same). We are aware of no cases holding
to the contrary.
Similarly, we need not reach the issue of whether the Villages' chal-
lenges to the sablefish regulations promulgated under the Magnuson Fish-
ery Conservation Management Act are barred by the statute of limitations. the end
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