Metlakatla Indian Cmty. v. Dunleavy

48 F.4th 963

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.

No. 21-35185

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2021 Pasadena, California

Filed September 8, 2022

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

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

Before: William A. Fletcher, Johnnie B. Rawlinson, and John B. Owens, Circuit Judges.

W. FLETCHER, Circuit Judge:

Since time immemorial, members of the Metlakatlan Indian Community ("the Community") and their Tsimshian ancestors have inhabited the coast of the Pacific Northwest and fished in its waters. In 1887, at the invitation of President Grover Cleveland, the Community relocated from British Columbia, Canada, to the Annette Islands in what was then the United States Territory of Alaska. In 1891, Congress passed a statute (the "1891 Act") recognizing the Community and establishing the Annette Islands Reserve as its reservation.

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 district court disagreed, holding that the Act provides no such right.

We reverse. We hold that the 1891 Act grants to the Community and its members a non-exclusive right to fish in the off-reservation waters where they have traditionally fished.

I. Historical Background

Community members are descendants of the Tsimshian people indigenous to the Pacific Northwest. Tsimshian fishermen long followed the fish runs along the coast and in the rivers of what is now British Columbia, establishing temporary villages to obtain fish for subsistence, use in cultural practices, and trade. Marjorie M. Halpin & Margaret Seguin, Tsimshian Peoples: Southern Tsimshian, Coast Tsimshian, Nishga, and Gitksan, in 7 Handbook of North American Indians 267, 268–71, 281 (Wayne Suttles & William Sturtevant eds., 1990). Historical sources indicate that they fished as far north as 50 miles from the Annette Islands in what is now the State of Alaska.

In 1862, a group of Tsimshians joined a lay Anglican missionary, "Father Duncan," in establishing a coastal community at Metlakatla, British Columbia. See Andrew Martindale et al., Bending but Unbroken: The Nine Tribes of the Northern Tsimshian Through the Colonial Era, in Power, Political Economy, and Historical Landscapes of the Modern World 251, 270 (Christopher R. DeCorse ed., 2019); Halpin & Seguin, supra , at 281. The name Metlakatla—a Tsimshian word that means "place beside calm water"—reflects a relationship with rivers and the sea that, for Tsimshian peoples, centers on fishing as the "bedrock of the Tsimshian culture and way of life." Professor Brian Hosmer observed:

[Tsimshian cultural stories] reveal[ ] a great deal about the way Tsimshians understand their world. Away from human beings, salmon live as people, in villages, with chiefs, organizing their lives around the annual runs, which appeared to them as cottonwood leaves. It is only when the humans and salmon are in contact that salmon "people" take on their familiar form. Their relationship is reciprocal. Salmon runs would continue only so long as humans remain faithful to rituals ....

Brian C. Hosmer, American Indians in the Marketplace: Persistence and Innovation Among the Menominees and Metlakatlans, 1870–1920 115 (1999).

The Tsimshians who gathered at Metlakatla began a communal commercial fishing enterprise. Id. at 149. In 1884, the Community established a fish cannery. The cannery turned out 8,300 cases of canned fish in its first year of operation. Id. at 183.

In the 1880s, Canada began to impose a reserve system throughout Tsimshian territory, dividing tribal land into allotments to be distributed to individual tribal families. Martindale, supra , at 274. In 1883 and 1884, Canada placed Metlakatla under the ambit of its Indian Act and appointed an agent to oversee community affairs. Hosmer, supra , at 191. At the same time, non-Indian fishermen and canneries began to compete with the Metlakatlans. See id. at 193. Before the Canadian provincial court, the Metlakatlans advocated for recognition of their aboriginal territorial rights and their attendant resource rights. See id. at 198; Peter Murray, The Devil and Mr. Duncan: A History of the Two Metlakatlas 184–87 (1985). After the provincial Supreme Court denied the Metlakatlans such recognition, Metlakatla's tribal council authorized Father Duncan to travel to Washington, D.C., to attempt to secure land for the Metlakatlans in the Territory of Alaska. Hosmer, supra , at 198; Murray, supra , at 190.

In March 1887, a group of five Metlakatlans traveled to the Territory of Alaska in search of a new home. Susan Neylan, "Choose Your Flag": Perspectives on the Tsimshian Migration from Metlakatla, British Columbia, to New Metlakatla, Alaska, 1887, in New Histories for Old: Changing Perspectives on Canada's Native Pasts 196, 198 (Theodore Binnema & Susan Neylan eds., 2007). The group chose the nearby Annette Islands because of the islands' easy access to waters with abundant fish. Alaska Pac. Fisheries v. United States , 248 U.S. 78, 88, 39 S.Ct. 40, 63 L.Ed. 138 (1918) ("[The Metlakatlans] looked upon the islands as a suitable location ... because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development."); Neylan, supra , at 211; Brief for Appellant at 11, Metlakatla Indian Cmty., Annette Islands Rsrv. v. Egan , 363 U.S. 555, 80 S.Ct. 1321, 4 L.Ed.2d 1397 (1960) (No. 326) ("[The Metlakatlans] specifically selected the Annette Islands because of their fishing potential."). At the invitation of President Cleveland, the remainder of the 823 Metlakatlans followed on August 7, 1887. 21 Cong. Rec. 10092 (1890); Neylan, supra , at 199; Hosmer, supra , at 200; Nat'l Surv. of Hist. Sites & Bldgs., U.S. Dep't of the Interior & Nat'l Park Serv., Alaska History: 1741–1910 , at 127, 209 (1961). Years later, reflecting on the migration, Metlakatlan Rod Davis recounted,

When we landed in ... Alaska, now, at the time it was a nice beautiful day. How well I remember that day; it was bright and sunny, and there was a lot of fish. We camped at one of the creeks on Saturday night ... and in those days that creek was just loaded with salmon, pink salmon. There must have been millions of them in that creek. How well I remember.

Neylan, supra , at 211.

After moving to the Annette Islands, the Metlakatlans continued to fish throughout the waters of Southeast Alaska. See Hosmer, supra , at 200–01. In 1891, four years after the Metlakatlans moved to the islands, Congress passed the 1891 Act, recognizing the Metlakatlan Indian Community and establishing the Annette Islands as the Community's reservation. The Act, later codified as amended at 25 U.S.C. § 495, provided:

That until otherwise provided by law the body of lands known as Annette Islands, situated in Alexander Archipelago in Southeastern Alaska, on the north side of Dixon's entrance, be ... set apart as a reservation for the use of the Metlakahtla [sic] Indians, and those people known as Metlakahtlans [sic] who have recently emigrated from British Columbia to Alaska, and such other Alaskan natives as may join them, to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may [be] prescribed from time to time by the Secretary of the Interior.

Act of Mar. 3, 1891, ch. 561, § 15, 26 Stat. 1101 (1891).

After Congress established the reservation, Community members continued to fish where they had always fished, both in the waters immediately surrounding the reservation and in the waters miles away. Hosmer, supra , at 203, 205. Reports by federal agencies and federal officials documented Metlakatlans fishing up to 50 miles from the reservation. Jefferson F. Moser, U.S. Comm'n of Fish & Fisheries, The Salmon and Salmon Fisheries of Alaska: Report of the Operations of the United States Fish Commission Steamer Albatross for the Year Ending June 30, 1898 , at 63, 68 (1899) (identifying sites at Quadra Bay and Moira Sound); Jefferson Moser, U.S. Comm'n of Fish & Fisheries, The Salmon and Salmon Fisheries of Alaska: Report of the Alaskan Salmon Investigations of the United States Fish Commission Steamer Albatross in 1900 and 1901 , at 298 (1902) (identifying sites at Home Stream, Tamgas, Quadra Bay, Karta Bay, Kithraum, Peter...