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Native Village of Eyak v. Trawler Diane Marie, Inc.

Citation: 29 ELR 20016
No. 97-35944, 154 F.3d 1090/(9th Cir., 09/09/1998)

The court holds that the federal paramountcy doctrine bars Alaskan native villages' claims of aboriginal title to the outer continental shelf (OCS) of the United States. In response to U.S. Department of Commerce regulations for the management of halibut and sablefish fisheries, several native villages asserted exclusive hunting and fishing rights over parts of the OCS. The court first holds that the federal paramountcy doctrine serves to bar not only state claims to the OCS, but also claims made by persons and entities indigenous to these lands. The court fails to see a practical difference between the relief sought by the native villages and that sought by the states in the paramountcy cases heard by the U.S. Supreme Court. Simply saying that a claim of aboriginal title is less intrusive than a claim of fee title does not make it so. The court then holds that the native villages are barred from asserting exclusive rights to the use and occupancy of the OCS based on unextinguished aboriginal title. The U.S. 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. This principle applies with equal force to all entities claiming rights over the oceans. Thus, the native villages' claim to complete control over the OCS is contrary to these national interests and inconsistent with their positions as a subordinate entity within our constitutional scheme.

Counsel for Plaintiffs
Laurence A. Aschenbrenner
Native American Rights Fund
310 K St., Anchorage AK 99501
(907) 276-0680

Counsel for Defendants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Farris and Hawkins, JJ.