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Gambell, Village of v. Hodel

Citation: 19 ELR 21150
No. Nos. 83-3735, -3781, 869 F.2d 1273/(9th Cir., 03/09/1989) On remand

On remand from the Supreme Court, the court holds that aboriginal subsistence rights of Alaskan natives in the outer continental shelf (OCS) were not extinguished by the provisions of the Alaskan Natives Claims Settlement Act (ANCSA). The tribal villages of Gambell and Stebbins sought to enjoin the sale by the Secretary of the Interior of oil and gas leases of OCS submerged lands, claiming aboriginal subsistence rights in the lease area. The court first holds that the federal government's paramount interests in the OCS do not extinguish the asserted aboriginal rights of the villages, but merely subordinate them. Aboriginal rights may exist concurrently with a paramount federal interest without undermining that interest, and United States policy provides that federal sovereignty is subject to the natives' right of occupancy. The court next holds that the United States has assumed sufficient control over the OCS constituting sovereignty to require recognition of aboriginal rights in the OCS. While the extension of United States territorial sovereignty over the OCS has not been complete, the federal government has exerted significant control over the OCS, as evidenced by its leasing of portions of the OCS for oil and gas exploration. The court holds that recognition of the villages' subsistence rights is not inconsistent with international law. The facts in this case create no conflict with the international community at this time. The court holds that ANCSA's claim settlement provisions do not extend beyond the geographical boundaries of the State of Alaska and thus do not extinguish aboriginal subsistence rights that may exist in the OCS. Finally, the court declines to address the issue of whether the Outer Continental Shelf Lands Act extinguishes aboriginal subsistence rights in the OCS, because that issue was not raised below.

A concurring judge would not decide the ANCSA issue, but rather would remand to the district court.

[Earlier decisions from this litigation are published at 16 ELR 20562 and 17 ELR 20574.]

Counsel for Plaintiffs-Appellants
Donald S. Cooper, Carol H. Daniel
Alaska Legal Services Corp.
550 W. 8th Ave., Ste. 300, Anchorage AK 99501
(907) 276-6282

Counsel for Defendants-Appellees
Laura E. Frossard
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Brunetti (before Wallace* and Canby, Jr., JJ.):