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Abstract

For the purposes of the litigation discussed in this Note, the Chugach peoples comprise five native villages in the State of Alaska: Eyak, Tatitlek, Chenega, Nanwalek, and Port Graham ("the Villages"). The Villages must fight for a right to the natural resource they depend upon most for survival, fish. At the end of the twentieth century, the Villages sued the federal government to assert claims of aboriginal title, and along with it, exclusive rights to the resources of their ancestral fishing grounds on the Outer Continental Shelf (OCS). A panel of the United States Court of Appeals for the Ninth Circuit held the federal paramountcy doctrine barred any exclusive claim based upon aboriginal title. Thus, the United States exclusively controls access to the Villages' ancestral fishing grounds.

This Note discusses the recent decision of the Ninth Circuit in Native Village of Eyak v. Blank, in which the five native Villages sued to assert non-exclusive rights to resources under aboriginal title claims; the Villages lost. Part I explains the legal background, from the underpinnings of American Indian sovereignty and claims of aboriginal title, to the federal paramountcy doctrine. Part II explains the litigious path discussing the holdings of the Chugach cases from the first Ninth Circuit decision of Native Village of Eyak v. Trawler Diane Marie to the current decision of Eyak v. Blank. It describes the findings of the district court in Native Village of Eyak v. Locke following the en banc remand ordering those findings in Native Village of Eyak v. Daley. Then it contrasts the majority holding of the Ninth Circuit with Judge Fletcher's dissent and the language debate amidst the panel. The Ninth Circuit refused to acknowledge the existence of aboriginal title over the fishing grounds used by the Villages since time immemorial. Part III argues that the Ninth Circuit en banc added a new prerequisite that a tribe must establish before the courts will acknowledge rights claimed under aboriginal title. In doing so, the Ninth Circuit created a split between circuits. The majority avoided the greater legal question of whether these non-exclusive rights to the natural resources of the OCS conflict with the federal paramountcy doctrine, a question that the dissent analyzed correctly. By denying commercial rights, this holding guarantees Indian tribes only subsistence fishing, attacking tribal sovereignty.

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