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Ninth Circuit sides with Metlakatla in case challenging Alaska state fishing regulations

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A view down a pier to a Metlakatla harbor in October 2020. (Eric Stone/KRBD)

A federal appeals court has ruled that Metlakatla tribal members shouldn’t need state permits to fish in waters they’ve traditionally relied on — even outside their reservation’s boundaries. The decision is a major victory in the tribe’s decades-long fight for fishing rights.

The Ninth Circuit’s 28-page opinion is broad and unambiguous: the 1891 law that created Metlakatla’s reservation gives tribal members the right to fish in areas near Ketchikan and Prince of Wales Island, outside the boundaries of the Annette Islands Reserve.

“We hold that the 1891 Act reserves for the Metlakatlan Indian Community an implied right to non-exclusive off-reservation fishing in the areas where they have fished since time immemorial and where they continued to fish in 1891 when their reservation was established,” writes Senior U.S. Circuit Judge William Fletcher.

Metlakatla Mayor Albert Smith called the decision “a very well-reasoned and strongly worded opinion.”

“Today is an important day for the Community,” Smith said in a statement. “It is the right we all knew existed but a right that we unfortunately have had to fight to protect. With this opinion, we are an important step closer to preserving this right for our future generations. It has been a long, long road, and we need to acknowledge the contributions of many past Council members, mayors, community elders and historians. Thank you to all.”

The ancestors of Metlakatla’s Tsimshian people relocated from their former home in British Columbia in the late 19th century at the invitation of the U.S. government. In 1891, Congress passed a 101-word statute creating the Annette Islands Reserve “for the use of the Metlakahtla Indians.”

That law doesn’t specifically mention fishing rights. But the tribe argued in its 2020 lawsuit that Congress intended the Annette Islands to be a permanent, self-sustaining home for the tribe — and that that wasn’t possible without the ability to fish outside the reservation’s marine boundaries. They pointed to past court precedents and 19th-century historical records of Metlakatla residents fishing in places like Naha Bay near Ketchikan and Karta Bay on Prince of Wales Island.

U.S. District Court Judge John Sedwick sided with the state of Alaska and dismissed the case in February of last year, saying the 1891 law and the historical context didn’t imply that Congress granted the tribe off-reservation fishing rights.

But the Ninth Circuit disagreed.

“The key question that the Ninth Circuit resolved in Metlakatla’s favor was whether Congress in 1891 granted, when they established the reservation, also granted the community the right to fish on a non-exclusive basis in waters outside the reservation,” attorney Christopher Lundberg, who’s part of the team representing Metlakatla Indian Community, said in a phone interview.

The appeals court sent the case back to the district court for further consideration, but Lundberg says the major legal question has been resolved.

Alaska Department of Law Communications Director Patty Sullivan called the decision “perplexing and disappointing” in a written statement.

“The panel went out of its way to decide legal issues that were not before it, misconstrued facts, and misapplied the law. We expect more from our courts, especially when dealing with important decisions that affect the livelihoods of many Alaskans. Allocating our fishing resources to ensure we are meeting our constitutional obligations under Article 8 is a delicate balance. This decision upends that balance without giving the State a chance to present its case. We cannot let this decision stand and we hope the court will see the errors in its decision,” Sullivan said by email.

She said the state is evaluating whether to appeal the case.