NATIVE LAW
Court of Appeals for the 9th Circuit (2023)
Allyson Barkley
In Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034 (9th Cir. 2023), the Ninth Circuit affirmed the non-exclusive right of the Metlakatla Indian Community to fish in its traditional off-reservation fishing waters. (Id. at 1037). The Metlakatlans have lived and fished in and around the Annette Islands in Alaska since 1887. (Id. at 1038). Shortly after their arrival, Congress passed the 1891 Act, establishing the Annette Islands as a reservation for the Metlakatla Community. (Id.). The Community continued fishing both within and outside the reservation; their activities were well-documented by the federal government. (Id. at 1039). After outside groups began placing traps near the Annette Islands, President Wilson issued an executive order limiting fishing within 3,000 feet of the reservation shoreline to Community members. (Id. at 1039–40). The U.S. Supreme Court later affirmed the Metlakatlas’ exclusive right to fish within their reservation’s waters in Alaska Pacific Fisheries v. United States. (Id. at 1040). In 1973, Alaska instituted a “limited entry” program to regulate commercial fishing. (Id. at 1041). The Metlakatla Indian Community sued the state, arguing it had restricted the Community’s fishing grounds beyond the area allowed under the 1891 Act. (Id.). Determining that the 1891 Act did not establish off-reservation fishing rights for the Community, the trial court granted the state’s motion to dismiss the claim. (Id.). In assessing the claim, the Ninth Circuit relied on the Indian canon, which requires the court to infer rights that support a reservation’s purpose. (Id. at 1042). The Alaska Pacific Fisheries ruling already conferred an implied fishing right, so the Ninth Circuit had to determine whether that right included off-reservation fishing. (Id. 1044). Upon reviewing the historical context in which Congress passed the 1891 Act, the court held that the Community’s fishing rights included fishing outside the reservation. (Id. at 1044–45). The court based much of this assessment on the legislative intent for a reservation to be economically self-sustaining and serve as a base for fishing. (Id.). Reversing the lower court’s decision, the Ninth Circuit held that Congress’ 1891 Act did grant the Metlakatla Indian Community the non-exclusive right to fish in off-reservation fishing grounds. (Id. at 1037).
