## Facts

- The Native Village of Eyak and other Alaska Native villages whose members are Chugach people claimed their ancestors had used areas of the Outer Continental Shelf (OCS) in the Gulf of Alaska for subsistence hunting and fishing for thousands of years.
- The villages asserted those historical practices gave rise to **aboriginal hunting and fishing rights** in the offshore areas, described by the villages as **nonexclusive** rights.
- The Secretary of Commerce implemented federal fishery management measures for halibut and sablefish on the OCS, including an Individual Fishing Quota (IFQ) program and limits affecting subsistence and commercial access.
- The villages sued in federal court, alleging that the regulations failed to recognize and unlawfully impaired their asserted aboriginal rights under federal common law and the Indian Non-Intercourse Act (25 U.S.C. § 177).
- The district court initially dismissed the action on **federal paramountcy** grounds, reasoning that the United States has paramount authority over ocean waters and submerged lands seaward of the low-water mark.
- On an earlier appeal, the Ninth Circuit sent the case back for a determination whether the villages could establish any aboriginal rights on the OCS (assuming for purposes of that inquiry that any such rights had not been extinguished).
- After a bench trial on remand, the district court found the villages did not prove the required **exclusive use and occupancy** of the claimed offshore areas and entered judgment against them.
- The villages appealed again, arguing they could possess coexisting aboriginal rights offshore even if the United States had paramount authority, and that they had proven rights sufficient to challenge the regulations.

## Issues

1. Whether the villages proved aboriginal hunting and fishing rights on portions of the OCS by showing actual, continuous, and **exclusive** use and occupancy of the claimed offshore territory.
2. If aboriginal rights were established, whether federal paramountcy over offshore waters and submerged lands would preclude or limit those rights.
3. If aboriginal rights were established, whether the challenged federal fishery regulations unlawfully impaired protected interests under federal common law or the Indian Non-Intercourse Act.

## Decision

- The en banc Ninth Circuit (per curiam) **affirmed** the district court’s judgment.
- The court held the villages **failed to establish entitlement** to aboriginal hunting and fishing rights on the OCS because they did not meet their burden to prove historically **exclusive** use and occupancy of the claimed offshore areas.
- The court accepted the district court’s findings that the villages’ offshore use was irregular and seasonal, and that the record did not show dominion and control sufficient to exclude other groups from exploiting the area’s resources.
- The court also agreed that the evidence did not show the villages had the practical ability—given the size of the claimed area and the villages’ small and dispersed populations—to enforce exclusivity offshore.
- Because no aboriginal rights were proven, the court had no need to decide whether paramountcy would defeat any such rights or whether the regulations violated the Indian Non-Intercourse Act.
- Judge W. Fletcher dissented.

## Legal Principles

- A group claiming aboriginal rights based on use and occupancy must prove, by a preponderance of the evidence, **actual, continuous, and exclusive** use and occupancy of the claimed territory.
- “Exclusivity” requires evidence of dominion and control, including the ability to exclude others or to prevent other groups from taking the benefits of the territory; evidence of use alone is not enough.
- The claimant bears the burden of proof; the absence of proof that others used the area does not substitute for affirmative proof that the claimant controlled the area to the exclusion of others.
- A claim framed as a **nonexclusive** aboriginal right to take resources still depends on showing the historically required exclusivity for the territory from which the right is said to arise.
- When a plaintiff fails to prove the existence of any aboriginal right, a court may resolve the case without reaching contingent questions such as conflicts with the federal paramountcy doctrine or statutory protections like the Indian Non-Intercourse Act.

## Conclusion

Native Village of Eyak v. Blank affirmed, after trial findings adopted by the en banc court, that the villages did not prove the exclusive use and occupancy required to establish aboriginal hunting and fishing rights on the Outer Continental Shelf; without such rights, the court did not address whether federal paramountcy or the Indian Non-Intercourse Act would otherwise affect the validity of the federal fishery regulations.


Native Village of Eyak v. Blank, 688 F.3d 619 (2012)