Native Village of Eyak v. Gary Locke

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATIVE VILLAGE OF EYAK; NATIVE 
VILLAGE OF TATITLEK; NATIVE
VILLAGE OF CHENEGA; NATIVE
VILLAGE OF NANWALEK; NATIVE No. 09-35881
VILLAGE OF PORT GRAHAM,
Plaintiffs-Appellants,  D.C. No.
3:98-cv-00365-HRH
v. OPINION
REBECCA BLANK, Acting Secretary
of Commerce,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, Senior District Judge, Presiding

Argued and Submitted
September 21, 2011—San Francisco, California

Filed July 31, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Harry Pregerson, Andrew J. Kleinfeld,
Michael Daly Hawkins, Sidney R. Thomas,
William A. Fletcher, Richard A. Paez, Richard C. Tallman,
Johnnie B. Rawlinson, and Richard R. Clifton,
Circuit Judges.

Per Curiam Opinion;
Dissent by Judge W. Fletcher

8593
 NATIVE VILLAGE OF EYAK v. BLANK 8595

COUNSEL

Natalie A. Landreth (argued), Native American Rights Fund,
Anchorage, Alaska; Goriune Dudukgian, Alaska Legal Ser-
vices Corp., Anchorage, Alaska; Richard de Bobo, Robin
Wechkin, Susan Acquista and Clive McClintock, Hogan &
Hartson, LLP, Los Angeles, California, for the appellants.
8596 NATIVE VILLAGE OF EYAK v. BLANK
Ignacio S. Moreno, Assistant Attorney General, Environment
& Natl. Resources Div.; Brian McLachlan, E. Ann Peterson,
David C. Shilton (argued), United States Department of Jus-
tice, Washington, D.C.; Demian C. Schane, NOAA Office of
General Counsel, Juneau, Alaska, for the appellees.

OPINION

PER CURIAM:

The Alaskan Native Villages of Eyak, Tatitlek, Chenega,
Nanwalek and Port Graham (“Villages”) assert that, begin-
ning thousands of years before European contact and continu-
ing through modern times, their members fished, hunted and
otherwise exploited portions of the Outer Continental Shelf
(“OCS”) in the Gulf of Alaska. Based on this history, the Vil-
lages claim they possess non-exclusive aboriginal hunting and
fishing rights in the areas of the OCS they’ve traditionally
used.

The OCS fisheries are regulated by the Secretary of Com-
merce. In 1993, the Secretary promulgated regulations limit-
ing access to the halibut and sablefish fisheries after a “race
for fish” led to conservation and management problems. See
16 U.S.C. §§ 1801-83; 16 U.S.C. §§ 773-773k; 57 Fed. Reg.
57130, 57130-32 (Dec. 3, 1992); Alliance Against IFQS v.
Brown, 84 F.3d 343, 344-45 (9th Cir. 1996) (holding that
Individual Fishing Quota regulations were a permissible exer-
cise of agency authority to prevent fishery depletion). Prior to
the regulations, there was no limit on the number of vessels
that could engage in the commercial harvest of halibut or
sablefish. Under the regulations, any boat fishing commer-
cially for halibut or sablefish must have an Individual Fishing
Quota (“IFQ”) permit that caps how many fish the vessel may
take. 50 C.F.R. § 679.4(d)(1).
 NATIVE VILLAGE OF EYAK v. BLANK 8597
The Secretary allocated IFQs only to persons or entities
that owned or leased vessels used to catch halibut or sablefish,
and who actually caught those fish, between 1988 and 1990.
50 C.F.R. § 679.40(a)(3)(i). As of 2003, however, the regula-
tions allow Alaska Natives and other subsistence fishers to
catch up to twenty halibut per person per day, and two halibut
per person per day for sport fishing. 68 Fed. Reg. 18,145,
18,153 & 18,159(g)(2) (Apr. 15, 2003) (codified at 50 C.F.R.
§ 300.65(h) & 50 C.F.R. § 300.64(f)). The regulations don’t
govern subsistence fishing of mature sablefish because sable-
fish live too deep to catch without commercial gear. If the
Villages meet IFQ requirements, they can commercially fish
for halibut and sablefish.

The Villages claim that the Secretary’s regulations fail to
account for the Villages’ non-exclusive aboriginal hunting
and fishing rights, without Congress’s consent in violation of
the federal common law and the Indian Non-Intercourse Act,
25 U.S.C. § 177. The district court dismissed their complaint
with prejudice. The Villages timely appealed.

At the heart of this dispute are the competing federal inter-
ests of honoring Native rights and preserving national fish-
eries. When this case was previously before us, we held that
the Villages’ claim to exclusive rights to hunt and fish on the
OCS was barred by federal paramountcy. Native Village of
Eyak v. Trawler Diane Marie, Inc. (Eyak I), 154 F.3d 1090,
1096-97 (9th Cir. 1998). The paramountcy doctrine, as
applied here, stands for the proposition that the national gov-
ernment has a paramount interest in ocean waters and sub-
merged lands below the low-water mark. See N. Mariana
Islands v. United States, 399 F.3d 1057, 1060-61 (9th Cir.
2005). But the Villages point to Village of Gambell v. Hodel
(Gambell III), 869 F.2d 1273 (9th Cir. 1989), where we held
that “aboriginal rights may exist concurrently with a para-
mount federal interest.” Id. at 1277.

Gambell III holds that aboriginal rights and the doctrine of
federal paramountcy can coexist, whereas Eyak I holds that
8598 NATIVE VILLAGE OF EYAK v. BLANK
the paramountcy doctrine trumps Native claims based on
aboriginal title. We took this case en banc to resolve any con-
flict between Gambell III and Eyak I. See Eyak Native Village
v. Daley, 364 F.3d 1057, 1057 (9th Cir. 2004). But we do not
reach that question because the Villages have failed to dem-
onstrate the existence of aboriginal rights in the claimed area.

We previously remanded to the district court for the limited
purpose of determining “what aboriginal rights, if any, the vil-
lages have” on the OCS, and instructed the district court to
“assume that the villages’ aboriginal rights, if any, have not
been abrogated by the federal paramountcy doctrine or other
federal law.” Eyak Native Village v. Daley, 375 F.3d 1218,
1219 (9th Cir. 2004) (en banc).

After trial, the district court held that, given the facts it
found, “no nonexclusive right to hunt and fish in the OCS has
ever existed for any plaintiff village as a matter of federal
Indian law . . . .” The Villages challenge this ruling on the
ground that the facts found by the district court were suffi-
cient to establish aboriginal rights. The Villages also argue
that the district court exceeded the remand order by conclud-
ing that their claims to aboriginal rights were “preempted by
the Paramountcy Doctrine.” But this makes no difference to
the outcome here because the Villages don’t challenge the
district court’s factual findings, which are dispositive.

Even though the Villages don’t contest those findings, the
dissent goes on a fishing expedition through the trial record
and testimony to make its own factual findings. Dissent at
8613-14. The district court considered the opinions of the
experts called by the parties and “found the opinions of some
of the experts more persuasive than those of others” when
making its findings. It is inappropriate for the dissent to usurp
the factfinder’s role and reweigh the evidence. See Inwood
Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857-58 (“An
appellate court cannot substitute its interpretation of the evi-
dence for that of the trial court simply because the reviewing
 NATIVE VILLAGE OF EYAK v. BLANK 8599
court might give facts another construction, resolve the
ambiguities differently, and find a more sinister cast to actions
which the District Court apparently deemed innocent.” (inter-
nal citation and quotation marks omitted)). We now determine
only whether the facts found by the district court support the
Villages’ claim to aboriginal rights.

[1] Aboriginal rights don’t depend on a treaty or an act of
Congress for their existence. See United States v. Santa Fe
Pac. R.R., 314 U.S. 339, 347 (1941). Rather, the Villages
have the burden of proving “actual, exclusive, and continuous
use and occupancy ‘for a long time”’ of the claimed area. Sac
& Fox Tribe of Indians of Okla. v. United States, 383 F.2d
991, 998 (Ct. Cl. 1967). This use and occupancy requirement
is measured “in accordance with the way of life, habits, cus-
toms and usages of the Indians who are its users and occupi-
ers.” Id.

Historically, the Court of Claims was charged with review-
ing the decisions of the Indian Claims Commission, and it
was statutorily limited to reviewing whether “the findings of
fact of the Commission are supported by substantial evidence,
in which event they shall be conclusive, and also whether the
conclusions of law . . . are valid and supported by the Com-
mission’s findings of fact.” See Indian Claims Commission
Act of 1946 § 20(b), 60 Stat. 1049, 1054, 25 U.S.C. § 70 et
seq. (1976 ed.). We are not similarly bound. The district court
concluded that the Villages were unable to prove aboriginal
rights because they did not show by a preponderance of the
evidence that they were in a position to occupy or exercise
exclusive control of the claimed areas. See 2 McCormick on
Evid. § 339 (6th ed.) (“[A] party who has the burden of per-
suasion of a fact must prove it . . . on the general run of issues
in civil cases ‘by a preponderance of the evidence.”’); see
also Iowa Tribe v. United States, 22 Ind. Cl. Comm. 232,
237-38 (1969) (“To establish Indian title under the Indian
Claims Commission Act, the Iowa plaintiffs and the Sac and
Fox plaintiffs each must prove by a preponderance of the evi-
8600 NATIVE VILLAGE OF EYAK v. BLANK
dence that their forebearers had actual exclusive and continu-
ous use and occupancy of their respectively claimed areas for
a ‘long time’ [prior to the loss of the property].”). We adopt
the district court’s uncontested factual findings and conclude
that the Villages have failed to prove their entitlement to
aboriginal rights on the OCS.

The “difficulty of obtaining the essential proof necessary to
establish Indian title” during ancient times requires the court
to adopt a “liberal approach” in weighing evidence regarding
aboriginal title claims. Nooksack Tribe of Indians v. United
States, 3 Ind. Cl. Comm. 492, 499 (1955). Nevertheless, we
conclude that the district court properly found that the Vil-
lages failed to show, by a preponderance of the evidence, that
they exclusively used the claimed areas.

[2] The district court found that the Villages “made irregu-
lar use of the OCS,” and that “[s]uch use and occupancy as
probably existed was temporary and seasonal.” The Secretary
argues that the Villages’ use of the OCS was “too sporadic”
to support a claim for aboriginal rights. This “use and occu-
pancy” requirement is measured in accordance with the “way
of life, habits, customs and usages of the Indians who are its
users and occupiers.” Sac & Fox Tribe of Indians of Okla.,
383 F.2d at 998. Because the district court determined that the
ancestral residents of the Villages “found their sustenance
largely in marine waters,” and were “skilled marine hunters
and fishermen,” we analyze their use of the OCS in accor-
dance with their way of life as marine hunters and fishermen.
See Confed. Tribes of the Warm Springs Reservation of Or. v.
United States, 177 Ct. Cl. 184, 194 (1966).

[3] There’s evidence that the Villages’ ancestors traveled
to Middleton Island, the Barren Islands, Cook Inlet, the Cop-
per River Delta and Wessels Reef to hunt and fish. When
traveling between Kodiak and the Middleton Islands, their
ancestors traversed portions of the OCS and engaged in
opportunistic fishing during the course of these travels. The
 NATIVE VILLAGE OF EYAK v. BLANK 8601
record supports the finding that the Villages’ ancestors made
seasonal use of “portions of the OCS nearest their respective
villages and when traveling to the outlying islands.” Intermit-
tent or seasonal use is sufficient to support aboriginal title
because it’s consistent with the seasonal nature of the ances-
tors’ way of life as marine hunters and fishermen. See id. The
Villages thus satisfy the “continuous use and occupancy”
requirement.

[4] But the Villages haven’t proven exclusivity. Exclusiv-
ity is established when a tribe or a group shows that it used
and occupied the land to the exclusion of other Indian groups.
See United States v. Pueblo of San Ildefonso, 513 F.2d 1383,
1394 (Ct. Cl. 1975). Use of the OCS alone isn’t sufficient to
prove exclusive possession. See Osage Nation of Indians v.
United States, 19 Ind. Cl. Comm. 447, 489 (1968). The tribe
or group must exercise full dominion and control over the
area, such that it “possesses the right to expel intruders,” id.,
as well as the power to do so. The district court properly
found that the Villages failed to show by a preponderance of
evidence that they exercised exclusive control, collectively or
individually, over the areas of the OCS they now claim.

The Villages (and the dissent) argue that a lack of evidence
that any other tribe hunted or fished in the claimed area is
enough to establish exclusive control. But the district court
found that:

[S]ome of the OCS areas in question (in particular,
the Lower Cook Inlet, the area between the Barren
Islands and Kodiak Island, and the Copper River
Delta and Copper River flats) were on the periphery
of the [Villages’] territory. That is, the foregoing are
the areas where the [Villages’ ancestors] met up with
the Dena’ina, the Koniag, the pre-consolidation
Eyak, and the Tlingit. More likely than not, these
areas were fished and hunted on a seasonal basis by
all of the Koniag, the Chugach, the Eyak, and the
8602 NATIVE VILLAGE OF EYAK v. BLANK
Tlingit. None of the ancestral villages was in a posi-
tion to dominate or control Lower Cook Inlet, the
high seas south of the Barren Islands, the waters of
the OCS south of Prince William Sound and the
Lower Kenai Peninsula, or waters of the OCS in the
vicinity of the mouth of the Copper River. None of
the ancestral villages was in a position to occupy or
exercise exclusive control over any part of the OCS
on a sustained basis.

[5] A tribe must have “an exclusive and unchallenged
claim to the disputed areas” to be entitled to aboriginal rights.
Sac & Fox Tribe of Indians of Okla., 315 F.2d 896, 906 (Ct.
Cl. 1963). Areas that are continuously traversed by other
tribes without permission of the claiming tribes cannot be
deemed exclusive. See Wichita Indian Tribe v. United States,
696 F.2d 1378, 1385 (Fed. Cir. 1983).

[6] The dissent argues that there’s no evidence in the
record to suggest that other tribes “inhabited, controlled or
wandered over” the claimed area. Dissent at 8616. But the
district court found that other tribes fished and hunted on the
periphery of the Villages’ claimed territory. Despite that find-
ing, the dissent asserts, “In the case before us, there is no evi-
dence of use or occupancy by other groups within Chugach
territory.” Dissent at 8616 (emphasis added). The dissent
adopts an understanding of the word “periphery” that’s con-
trary to both common usage and the dictionary. Perhaps the
most common use of the word “periphery” is in the phrase
“peripheral vision.” What’s in your peripheral vision is what
you can see, not what you can’t; the periphery is something
at the limits of, but within, your vision. Here, as well, the “pe-
riphery” cited by the district court includes the outer boundary
of the claimed area. The revered Webster’s Second defines
“periphery” as, among other things, “the outward bounds of
a thing as distinguished from its internal regions or center;
encompassing limits; confines; borderland; as, only the
periphery of Greenland has been explored.” Webster’s New
 NATIVE VILLAGE OF EYAK v. BLANK 8603
International Dictionary 1822 (2d ed. 1939). The dissent’s
interpretation of “periphery” was outdated even in the 1930s
when Webster’s Second was published. Id. (offering an alter-
nate definition of “periphery” as a “[s]urrounding space; the
area lying beyond the boundaries of a thing. Now Rare.”).
Fish is best rare; language, not so much. As the district court
clearly found, “some of the OCS areas in question” were
exploited by other groups.

Even if the dissent were right, it wouldn’t change the out-
come because the Villages still failed to present sufficient evi-
dence of exclusivity. The district court found that the
Villages’ claimed area was too large and there were too few
people who could control it. The Villages’ low population,
which was estimated to have been between 400 and 1500,
suggests that the Villages were incapable of controlling any
part of the OCS. See Osage Nation of Indians, 19 Ind. Cl.
Comm. at 490 (finding the Osages didn’t have exclusive con-
trol given their low population and evidence tending to prove
that other parties used the claimed territory); Strong v. United
States, 518 F.2d 556, 561 (Ct. Cl. 1975) (“[O]ne of the pri-
mary characteristics of ownership is the desire and ability to
exclude others from the area over which ownership is
claimed.”). The Villages claim that low population density
can’t defeat exclusivity. See, e.g., Zuni Tribe of N.M. v.
United States, 12 Cl. Ct. 607, 608 n.2 (1987); United States
v. Seminole Indians of the State of Fla., 180 Ct. Cl. 375,
385-86 (1967). But Zuni and Seminole held only that a low
population density wasn’t enough to defeat aboriginal title,
especially where there was other evidence that the tribes
involved had dominion and control of their claimed lands.
See, e.g., Zuni, 12 Cl. Ct. at 608 n.2; Seminole, 180 Ct. Cl. at
383. Zuni and Seminole don’t foreclose reliance on population
density where there is no evidence that the tribes exercised
full dominion and control of the claimed area.

The Villages point to the occasional pitched battles involv-
ing numerous deaths between their members and other tribes,
8604 NATIVE VILLAGE OF EYAK v. BLANK
and to their “recogni[tion] by the Russians as potentially for-
midable foes.” This falls far short of establishing exclusive
control. See Confed. Tribes of the Warm Springs Reservation
of Or., 177 Ct. Cl. at 196 (“The fact that there is evidence,
considered of and by itself, to support the administrative deci-
sion is not sufficient where there is opposing evidence so sub-
stantial in character as to detract from its weight and render
it less than substantial on the record as a whole.” (internal
citation and quotation marks omitted)). The Villages failed to
demonstrate that they controlled the claimed areas.

The district court found that “none of the ancestral villages
was in a position to control or dominate access to any part of
the OCS.” This finding is supported by the record. See Caddo
Tribe of Okla. v. United States, 4 Ind. Cl. Comm. 214, 221
(1956) (finding no aboriginal title where the evidence demon-
strated that the tribes were incapable of using, occupying and
controlling their aboriginal claimed holdings). The district
court found that “some hunting and fishing took place in the
near parts of the OCS,” but the record also suggests that the
Villages neither collectively nor individually controlled the
OCS.

In addition, huge portions of the OCS being claimed were
“seldom if ever visited.” The material factor is the “unity of
land use and occupation—the collective use by the entire
group of the entire area.” Hualapai Tribe v. United States, 18
Ind. Cl. Comm. 382, 394-95 (1967); Muckleshoot Tribe v.
United States, 3 Ind. Cl. Comm. 669, 674-75 (1955) (recog-
nizing aboriginal rights for autonomous villages where territo-
ries outside of their respective settlement areas were used “in
common by the occupants of all the villages”). Contrary to the
dissent’s assertion that the Villages found their sustenance in
the same areas, Dissent at 8625-26, the district court made it
clear that the Villages did not use hunting and fishing areas
in common: “It is unlikely that residents of the Kenai Penin-
sula coast fished or hunted Middleton Island, Wessels Reef,
or the Copper River Delta. Similarly, it is unlikely that the
 NATIVE VILLAGE OF EYAK v. BLANK 8605
Eyak fished or hunted in Cook Inlet. Likely there was no need
to do so, and the travel would have been long and dangerous.”
Moreover, the district court’s findings describe joint land-use
as the “exception, not the norm” and there was “little or no
evidence” to suggest joint-fishing on the OCS. See Hualapai,
18 Ind. Cl. Comm. at 394 (finding aboriginal title where a
“group of Indians . . . joined in a common use and occupation
of a definable area”). The district court found that the Villages
“used and occupied discrete . . . land areas” with “separate . . .
hunting and fishing access.” And there was no evidence of the
sharing of fishing camps. Instead, the district court found that
the Villages kept all, including each other, at arm’s length.
The factual findings do not support a finding of collective use
by the entire group of the entire area. More likely, each of the
Villages stuck to its discrete area of the OCS.

[7] There is not enough evidence in the record to persuade
us that the Villages used and occupied the claimed areas to
the exclusion of other tribes. Accordingly, we conclude that
the Villages did not satisfy their burden of showing they
exclusively controlled the claimed areas on the OCS.

***

[8] Based on the uncontested factual findings of the district
court, we affirm the district court’s conclusion that the Vil-
lages failed to establish an entitlement to non-exclusive
aboriginal rights on the OCS. Because the Villages haven’t
established aboriginal rights on the OCS, we have no occasion
to consider whether there’s a conflict with the federal para-
mountcy doctrine. We also need not consider whether the
Secretary’s actions violated the Indian Non-Intercourse Act.

AFFIRMED.
8606 NATIVE VILLAGE OF EYAK v. BLANK
W. FLETCHER, Circuit Judge, with whom PREGERSON,
THOMAS, and RAWLINSON, Circuit Judges, join, and with
whom HAWKINS, Circuit Judge, joins as to Part I, dissent-
ing:

I respectfully dissent.

In an unsigned opinion, the majority concludes that Alas-
kan Native Villages of Eyak, Tatitlek, Chenega, Nanwalek,
and Port Graham (“the Chugach”) failed to establish aborigi-
nal hunting and fishing rights on part of the Outer Continental
Shelf (“OCS”) in the Gulf of Alaska because they did not
show exclusive use and occupancy of any part of the claimed
area. In so doing, the majority misstates the law and misreads
plain English.

I would hold, based on the district court’s findings, that the
Chugach have established aboriginal hunting and fishing
rights in at least part of the claimed area of the OCS, and that
these rights are consistent with federal paramountcy. I would
reverse and remand with instructions to the district court to
find, under the proper legal test, precisely where within the
claimed area the Chugach have aboriginal rights.

I. Aboriginal Rights

The Chugach claim that they have the right to exercise non-
exclusive hunting and fishing rights in part of the Gulf of
Alaska south of Prince William Sound and the Kenai Penin-
sula, based on their exclusive use of their traditional hunting
and fishing grounds prior to contact with Europeans. The
Chugach seek an order requiring that the Secretary of Com-
merce revise the challenged Individual Fishing Quota (“IFQ”)
regulations to accommodate their aboriginal rights. They ask
that the revised regulations provide one IFQ permit or its
equivalent to each plaintiff Village. Whether the Chugach’s
aboriginal rights, if established, would require the Secretary
to provide one IFQ or its equivalent per Village is not before
 NATIVE VILLAGE OF EYAK v. BLANK 8607
us. The only question now before us is whether the Chugach
have aboriginal rights that the Secretary must accommodate
in some fashion.

To establish aboriginal rights, the Chugach must demon-
strate by a preponderance of the evidence “actual, exclusive,
and continuous use and occupancy” of the claimed area for a
long period of time before contact with Europeans. Sac & Fox
Tribe of Indians of Okla. v. United States, 383 F.2d 991, 998
(Ct. Cl. 1967). I agree with the majority and the parties that
the test articulated in Sac & Fox applies here.

When this case was previously before our en banc panel,
we remanded to the district court for a determination whether
the Chugach had aboriginal fishing rights in the claimed area
of the OCS. Eyak Native Village v. Daley, 375 F.3d 1218,
1219 (9th Cir. 2004) (en banc). We instructed the district
court to assume, for purposes of the limited remand, that the
federal paramountcy doctrine did not abrogate the Chugach’s
aboriginal rights. Id. After taking evidence, the district court
held that the Chugach hunted and fished in portions of the
OCS before contact with Europeans, but that such activities
“did not give rise” to a right to hunt and fish “different from
or greater than the rights of all United States citizens.” The
district court did not apply the Sac & Fox test.

The Chugach contend, and I agree, that the facts found by
the district court are sufficient to establish their aboriginal
rights under the Sac & Fox test. Based on the district court’s
findings, I conclude that the Chugach have established aborig-
inal rights in at least part of the claimed area of the OCS. I
would remand to the district court for a determination, under
the proper legal test, of precisely where within the claimed
area they have aboriginal rights.

A. Continuous Use and Occupancy

The majority concludes that the Chugach have satisfied the
“continuous use and occupancy” requirement of the Sac &
Fox test. I agree.
8608 NATIVE VILLAGE OF EYAK v. BLANK
Continuous use and occupancy are measured in accordance
with the “way of life, habits, customs and usages of the Indi-
ans who are its users and occupiers.” Sac & Fox, 383 F.2d at
998. The district court found that the Chugach were “skilled
marine hunters and fishermen” who “found their sustenance
largely in marine waters.” They were “knowledgeable of
ocean currents” and “entirely capable” of traversing the OCS
in their boats. The Chugach navigated to Middleton Island,
the Barren Islands, Cook Inlet, the Copper River Delta, and
Wessels Reef to hunt and fish. They crossed portions of the
OCS when traveling between these locations and fished along
the way.

The district court found that such use and occupancy was
“temporary and seasonal.” The Chugach’s seasonal use quali-
fies as “continuous” given their way of life as marine hunters
and fishermen. See Confed. Tribes of the Warm Springs Res-
ervation of Or. v. United States, 1966 WL 8893, at *5 (Ct. Cl.
1966); Spokane Tribe of Indians v. United States, 1963 WL
8583, at *5 (Ct. Cl. 1963) (“[I]ntermittent or seasonal use has
been accepted as showing Indian title.” (collecting cases)).

B. Exclusive Use and Occupancy

The majority concludes that the Chugach have failed to sat-
isfy the “exclusive . . . use and occupancy” requirement of the
Sac & Fox test. I strongly disagree.

1. Governing Law

To carry its burden in establishing aboriginal rights, a
plaintiff tribe “must show that it used and occupied the
[claimed area] to the exclusion of other Indian groups.”
United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394
(Ct. Cl. 1975). Where there is no evidence of use or occu-
pancy by others within the claimed area, the claimant tribe
need only show its own use and occupancy. In such a case,
a court “must conclude,” without more, that the plaintiff tribe
 NATIVE VILLAGE OF EYAK v. BLANK 8609
used and occupied the area exclusively. Zuni Tribe of N.M. v.
United States, 12 Cl. Ct. 607, 617-20 & nn.13-15 (1987); see
also Caddo Tribe of Okla. v. United States, 35 Ind. Cl.
Comm. 321, 358-60 (1975) (finding exclusivity where
“[t]here is no evidence indicating that other tribes of Indians
were using and occupying this [claimed] area at the same
time”).

Where there is evidence of use or occupancy by others
within the claimed area, a claimant tribe must show that it had
the ability to exclude those other groups, such that the use by
the others was temporary or permissive. See Alabama-
Coushatta Tribe of Tex. v. United States, 2000 WL 1013532,
at *13 (Fed. Cl. 2000) (“where another tribe commonly uses
the land with the claimant tribe, proof of the claimant tribe’s
dominance over the other tribe preserves its exclusive use of
the land”). A tribe’s exclusive use and occupancy “is called
in question where the historical record of the region indicates
that it was inhabited, controlled or wandered over by many
tribes or groups.” Pueblo of San Ildefonso, 513 F.2d at 1394;
see also Strong v. United States, 518 F.2d 556, 561 (Ct. Cl.
1975) (“‘Exclusiveness’ becomes a problem to plaintiffs sim-
ply because the historical record . . . demonstrates clearly that
. . . the area as a whole was ‘inhabited, controlled or wandered
over by many tribes or groups.”’). Evidence of use and occu-
pancy by other groups “must be specific” to defeat a claim of
exclusivity. Alabama-Coushatta Tribe, 2000 WL 1013532, at
*17; Wichita Indian Tribe v. United States, 696 F.2d 1378,
1385 (Fed. Cir. 1983).

Evidence of use by others at the periphery of the claimed
territory does not defeat a tribe’s exclusivity within the
claimed area. See Caddo Tribe, 35 Ind. Cl. Comm. at 360-62
(finding exclusive use and occupancy of claimed area even
though members of another tribe “were found on the western
periphery of Caddo territory” during the relevant period);
Zuni, 12 Cl. Ct. at 608 n.3 (finding exclusive use and occu-
pancy of claimed area, despite evidence of use by another
8610 NATIVE VILLAGE OF EYAK v. BLANK
tribe near shared borders, because “such boundaries are the
limit of the Zuni claim area, with Zuni use and occupancy
within its boundaries”). “[A] claimant tribe’s non-exclusive
use of one segment of the claim area is not automatically
imputed to the whole claim area.” Alabama-Coushatta, 2000
WL 1013532, at *14. In such circumstances, a court must
conclude “that a claimant tribe had exclusive use of certain
portions of the claim area, but failed to prove exclusive use
of other portions.” Id.; see also Wichita, 696 F.2d at 1385
(“While we agree with the trial judge that the Wichitas could
not have had exclusive use of the greater part of the [claimed]
hunting grounds in Kansas, Oklahoma, or Texas, we cannot
affirm his holding that the Wichitas failed to establish exclu-
sive use of any [portion] of the hunting grounds in Oklahoma
and Texas.”); Muckleshoot Tribe v. United States, 3 Ind. Cl.
Comm. 669, 677 (1955) (“[C]laimant’s ancestors did not
exclusively use and occupy the [entire] area claimed in their
petition . . . , however, they did use and occupy a part of the
area claimed and based upon the record in this case the Com-
mission feels that the occupancy of that part was exclusive.”).

Because of the “difficulty of obtaining the essential proof
necessary to establish Indian title,” courts take a “liberal
approach” in weighing the limited historical evidence regard-
ing exclusive use and occupancy. Nooksack Tribe of Indians
v. United States, 3 Ind. Cl. Comm. 492, 499 (1955); see also
Muckleshoot, 3 Ind. Cl. Comm. at 677 (because “it is
extremely difficult to establish facts after the lapse of time
involved in matters of Indian litigation,” courts must “take a
common sense approach” when evaluating exclusivity); Snake
or Piute Indians v. United States, 112 F. Supp. 543, 552 (Ct.
Cl. 1953) (exclusivity “can only be inferred” because it is dif-
ficult to prove “as of a date too remote to admit of testimony
of living witnesses”).

In sum, the Sac & Fox test requires that the Chugach show
that they used and occupied the claimed area exclusively. It
does not require that the Chugach show that they could have
 NATIVE VILLAGE OF EYAK v. BLANK 8611
repelled hypothetical intruders from the area. In the absence
of evidence of use by others, the case law requires only that
the Chugach show that they were the only group that used and
occupied the area.

2. District Court Factual Findings

The factual findings of the district court establish that the
Chugach used and occupied some areas exclusively, with no
use or occupancy of those areas by others. The court found:

At contact, Kodiak Island, the southwest corner of
the Kenai Peninsula, and Prince William Sound were
occupied by two major but distinct subgroups of eth-
nic Alutiiq people. One subgroup occupying Kodiak
Island was recognized by themselves and by others
as Koniag; the other subgroup, occupying Prince
William Sound and the south and southwest coast of
the Kenai Peninsula, was recognized by themselves
and others as Chugach. . . .

. . . The Chugach occupied at various pre-contact
times probably five or six sites on the coast and
islands of Prince William Sound and two or three
sites on the south and southwest coastal areas of the
Kenai Peninsula. . . .

Anthropologists estimate the Chugach population
of Prince William Sound and the Lower Kenai Pen-
insula at or about the time of contact at between 400
and 1,500 people. . . .

. . . At contact, the indigenous people of Prince
William Sound and the Lower Kenai Peninsula
found their sustenance largely in marine waters, rely-
ing heavily on fish and sea mammals, and to a lesser
degree upon land mammals.
8612 NATIVE VILLAGE OF EYAK v. BLANK
....

At contact, the occupants of the extant Chugach
villages were skilled marine hunters and fishermen.
With their kayaks and umiaks, plaintiffs’ ancestors
were entirely capable of navigating anywhere within
Prince William Sound, to Prince William Sound
from the Lower Kenai Peninsula, and from either of
these areas to the Barren Islands, Kodiak Island,
Middleton Island, Wessels Reef, and the Copper
River flats. Residents of Prince William Sound and
the Lower Kenai Peninsula periodically traveled to
Kodiak Island for purposes of trading. Middleton
Island was visited regularly, probably seasonally to
take birds and bird eggs as well as marine resources
in the waters surrounding the island. . . .

At and before contact, there was animosity
between plaintiffs’ predecessors and the Tlingit, but
also to a lesser degree with the Koniag. There were
occasional “pitched battles” involving numerous
deaths between members of the Chugach villages
and the Tlingit or Koniag. . . .

The Russians had virtually enslaved other Alutiiq
people as well as the Koniag. . . . The Chugach were
recognized by the Russians as potentially formidable
foes, and apparently chose to work and trade with
the Chugach rather than attempting to dominate
them.

....

While it is more likely true than not that residents
of the ancestral villages made some use (probably
seasonal) of the portions of the OCS nearest their
respective villages and when traveling to the outly-
ing islands, none of the ancestral villages was in a
 NATIVE VILLAGE OF EYAK v. BLANK 8613
position to control or dominate access to any part of
the OCS. The area was too large; and the number of
men of an age who would have been able to defend
or control high seas marine areas were too few.
Moreover, some of the OCS in question (in particu-
lar, the Lower Cook Inlet, the area between the Bar-
ren Islands and Kodiak Island, and the Copper River
Delta and Copper River flats) were on the periphery
of the Chugach territory. That is, the foregoing are
the areas where the Chugach villagers met up with
the Dena’ina, the Koniag, the pre-consolidation
Eyak, and the Tlingit. More likely than not, these
areas were fished and hunted on a seasonal basis by
all of the Koniag, the Chugach, the Eyak, and the
Tlingit.

(Emphasis added.)

Nowhere in the district court’s twenty-seven-page order is
there any finding that another group used or occupied some
of the area claimed by the Chugach. The district court specifi-
cally found that “more likely than not” there was shared use
“on the periphery of the Chugach territory,” but it made no
such finding about shared use within the Chugach territory.

The district court noted that the opinions of the parties’
experts sometimes differed, but that the experts based their
opinions on the same body of historical evidence. The court
wrote:

[T]he experts on both sides rely substantially upon
the same, non-testifying experts who provide the
most authoritative analysis of the culture of Native
Americans occupying the south and southwest coast
of the Lower Kenai Peninsula and Prince William
Sound. The testifying experts’ opinions are based
upon very little independent, new investigation of
the culture of the people of Prince William Sound
8614 NATIVE VILLAGE OF EYAK v. BLANK
and the Lower Kenai Peninsula at and before contact
with Europeans. The seminal work as regards the
pre-contact culture of the areas in question was done
between 1930 and 1950 by Kaj Birket-Smith and
Frederica de Laguna. It is the work and writings of
these investigators which is to a large degree the
basis for the opinions of the testifying experts and
the findings of the court.

The Chugach’s experts testified without contradiction that
geographic features at the periphery of Chugach territory had
place names in more than one native language, but that fea-
tures within Chugach territory had place names in only the
Chugach language. For example, the Barren Islands and
Kayak Island, which are located at the western and eastern
periphery of the claimed Chugach territory, had place names
in the languages of the Koniag, Tlingit, and Chugach. By con-
trast, Seal Rocks, Wessels Reef, and Middleton Island, which
are located within the claimed area, had place names in only
the Chugach language (respectively: “Qikertarraak,” or “two
small islands”; “Pala’at Nuutqaat,” or “boat reefs”; and
“Qucuaq,” the meaning of which has been lost).

Both parties’ experts agreed that there is no evidence that
other groups used or occupied Chugach territory. At trial, the
Chugach introduced records of five eyewitness accounts from
18th-century explorers describing encounters with seafaring
Chugach on the OCS more than three miles from shore. The
Chugach’s expert anthropologist, Matt Ganley, testified, “We
don’t see anybody else in the OCS when the first Russians
come into that area. We don’t see anybody else on Middleton
Island. There’s no mention of other groups, and from the
descriptions that the people provided, these were clearly Chu-
gach people.” The Secretary’s expert anthropologists gave
similar testimony. Michael Yarborough and Christopher
Wooley both testified that they were unaware of any evidence
that groups other than the Chugach fished or hunted in the
claimed area during the pre-contact period.
 NATIVE VILLAGE OF EYAK v. BLANK 8615
3. Majority’s Fundamental Mistakes

The unsigned majority opinion concludes that the Chugach
have not shown exclusive use and occupancy within any part
of the claimed area. Its conclusion is based on two fundamen-
tal mistakes. First, it misstates the applicable law. Second, it
misreads the word “periphery.” I take its two mistakes in turn.

a. Misstatements of Law

The majority’s test for exclusivity is that a claimant must
show not only that it was the only tribe or group that used and
occupied the claimed area, but also that it had the power to
exclude other groups. This is an incorrect statement of law. If
there is no evidence of use or occupancy by another group, a
claimant need only make the first showing — that it was the
only tribe or group to use and occupy the area. In such a case,
a showing of use and occupancy by a claimant tribe, without
more, is enough. Only if there is evidence of use or occu-
pancy by another tribe or group must the claimant show, in
order to establish its own exclusive use and occupancy, that
it had the power to exclude that tribe or group.

The majority writes:

[T]he Villages haven’t proven exclusivity. Exclu-
sivity is established when a tribe or group shows that
it used and occupied the land to the exclusion of
other Indian groups. See United States v. Pueblo of
San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975).
Use of the OCS alone isn’t sufficient to prove exclu-
sive possession. See Osage Nation of Indians v.
United States, 19 Ind. Cl. Comm. 447, 489 (1968).
The tribe or groups must exercise full dominion and
control over the area, such that it “possesses the right
to expel intruders,” id., as well as the power to do so.
The district court properly found that the Villages
failed to show by a preponderance of the evidence
8616 NATIVE VILLAGE OF EYAK v. BLANK
that they exercised exclusive control, collectively or
individually, over the areas of the OCS they now
claim.

Maj. Op. at 8601 (emphasis in original).

The majority cites two cases, San Idlefonso and Osage
Nation, in support of its statement of the law. Neither case
supports the majority.

The relevant passage of San Ildefonso is:

Implicit in the concept of ownership of property is
the right to exclude others. Generally speaking, a
true owner of land exercises full dominion and con-
trol over it; a true owner possesses the right to expel
intruders. In order for an Indian tribe to establish
ownership of land by so-called Indian title, it must
show that it used and occupied the land to the exclu-
sion of other Indian groups. True ownership of land
is called in question where the historical record of
the region indicates that it was inhabited, controlled
or wandered over by many tribes and groups.

513 F.2d at 1394 (emphasis added).

The italicized last sentence is key: Aboriginal title is “cal-
led in question” only when there is evidence that the claimed
area was “inhabited, controlled or wandered over by many
tribes and groups.” See also United States v. Santa Fe Pac.
R.R. Co., 314 U.S. 339, 345 (1941) (distinguishing between
“territory occupied exclusively” and “lands wandered over by
many tribes”). Where there is no evidence that the area was
“inhabited, controlled or wandered over” by others, the exclu-
sive ownership of the tribe using and occupying the land is
not “called in question.” In the case before us, there is no evi-
dence of use or occupancy by other groups within Chugach
territory.
 NATIVE VILLAGE OF EYAK v. BLANK 8617
The relevant passage of Osage Nation is:

Petitioner’s [i.e., the Osage Nation’s] evidence tends
to show an aboriginal territory extending to the Red
River on the south and the 100th meridian on the
west. It is quite clear from the evidence of both par-
ties that war parties and occasional hunting parties
did travel that far, but that fact in itself does not
mean that the Osage had exclusive possession of the
territory. The best estimate of the Osage population
from 1808 to 1825 is between five and six thousand.
Petitioner would have us believe that with a popula-
tion of that size the Osage were able to exclusively
use and occupy this huge territory. While petitioner
does bring forth some evidence tending to buttress
this conclusion, the defendant, on the other hand,
produced historical evidence tending to prove that
other war and hunting parties did tend to use parts
of the territory claimed by petitioner. Faced with
conflicting evidence and expert opinion, and more-
over with evidence which is at best vague and uncer-
tain, the Commission holds that the preponderance
of the evidence indicates that with a population of
five to six thousand, of which about 1500 would be
warriors, the Osages could not have exclusively con-
trolled and occupied all of the territory claimed here.

19 Ind. Cl. Comm. at 489-90 (emphasis added). In Osage
Nation, as in San Ildefonso, there was evidence of use by
other tribes within part of the claimed territory. In that cir-
cumstance, the Osage Nation was required to show it had the
ability to exclude those tribes from that part of the territory.

The Indian Claims Commission held that, notwithstanding
its small population, the Osage Nation did establish “exclu-
sive use and occupancy” of another part of the claimed terri-
tory. As to this part, there was “no substantial evidence that
the area . . . was used by tribes other than the Osage.” Osage
8618 NATIVE VILLAGE OF EYAK v. BLANK
Nation, 19 Ind. Cl. Comm. at 492; see also Zuni Tribe, 12 Cl.
Ct. at 617 & nn.13-15 (a court “must conclude” that the plain-
tiff tribe used and occupied the area exclusively “in the
absence of any evidence of occupation by any other group”);
Caddo Tribe, 35 Ind. Cl. Comm. at 358-60 (finding exclusiv-
ity where “[t]here is no evidence indicating that other tribes
of Indians were using and occupying this [claimed] area at the
same time”). The holding in Osage Nation is based on the
uniform case law that, where there is no evidence of use by
others, a claimant tribe establishes exclusivity over a given
area simply by showing its own use and occupancy.

In the case before us, the district court made extensive find-
ings of use and occupancy by the Chugach in the claimed area
of the OCS. The district court found no use or occupancy by
others in Chugach territory. Because the Chugach claim
aboriginal rights only in areas where there is no evidence of
use by others, it is sufficient to show exclusivity that they
were the only tribe to use and occupy these areas.

b. Misreading of “Periphery”

To evade the established case law, the majority purports to
misunderstand the word “periphery.” As I recount above, the
district court found:

[S]ome of the OCS in question (in particular, the
Lower Cook Inlet, the area between the Barren
Islands and Kodiak Island, and the Copper River
Delta and Copper River flats) were on the periphery
of the Chugach territory. That is, the foregoing are
the areas where the Chugach villagers met up with
the Dena’ina, the Koniag, the pre-consolidation
Eyak, and the Tlingit. More likely than not, these
areas were fished and hunted on a seasonal basis by
all of the Koniag, the Chugach, the Eyak, and the
Tlingit.
 NATIVE VILLAGE OF EYAK v. BLANK 8619
(Emphasis added.)

The common meaning of “periphery” is “edge” or “bound-
ary.” The plain meaning of the district court’s finding is that
other groups used areas at the edge or boundary of Chugach
territory. The district court made no finding that other groups
used areas within Chugach territory.

The district court’s usage of “periphery” is the standard
usage in ordinary English. It is also the standard usage in the
case law applying the test for establishing aboriginal rights.
The cases clearly recognize a distinction between shared use
on the periphery of a claimed territory and shared use inside
the territory. See, e.g., Caddo Tribe, 35 Ind. Cl. Comm. at
360-62 (referring to Caddo confederacies that “lived within
the area of Caddo use and occupancy,” as opposed to other
tribes that were found “on the western boundary” or “on the
western periphery of Caddo territory” (emphasis added));
Hualapai Tribe v. United States, 18 Ind. Cl. Comm. 382, 395
(1967) (finding exclusive use and occupancy, but declining to
enlarge the area of aboriginal title to include “peripheral
areas” that were “used and occupied at the same time by other
neighboring Indians” (emphasis added)); Zuni Tribe, 12 Cl.
Ct. at 608 n.3 (finding exclusive use of claimed area, despite
evidence of use by another tribe near shared borders, because
“such boundaries are the limit of the Zuni claim area, with
Zuni use and occupancy within its boundaries”).

The majority reads “periphery” to mean not only the edge,
but also the interior, of a territory. The majority’s misreading
of the word transforms the district court’s finding of use by
others at the edge of the Chugach territory into a finding of
use within that territory. The majority writes:

The dissent adopts an understanding of the word
“periphery” that’s contrary to both common usage
and the dictionary. Perhaps the most common use of
the word “periphery” is in the phrase “peripheral
8620 NATIVE VILLAGE OF EYAK v. BLANK
vision.” What’s in your peripheral vision is what you
can see, not what you can’t; the periphery is some-
thing at the limits of, but within, your vision. Here,
as well, the “periphery” cited by the district court
includes the outer boundary of the claimed area. The
revered Webster’s Second defines “periphery” as,
among other things, “the outward bounds of a thing
as distinguished from its internal regions or center;
encompassing limits; confines; borderland; as, only
the periphery of Greenland has been explored.”
Webster’s New International Dictionary 1822 (2d
ed. 1939). The dissent’s interpretation of “periphery”
was outdated even in the 1930s when Webster’s Sec-
ond was published. Id. (offering an alternate defini-
tion of “periphery” as a “[s]urrounding space; the
area lying beyond the boundaries of a thing. Now
Rare.”). Fish is best rare; language, not so much. As
the district court clearly found, “some of the OCS
areas in question” were exploited by other groups.

Maj. Op. at 8602-03 (emphases in original).

The majority’s misreading of “periphery” is baffling. I
understand why the majority is misreading the word: If
periphery is read, as it should be, to mean edge or boundary,
a rationale for the majority’s decision disappears. But I do not
understand how the majority can, with a straight face, main-
tain that its reading is correct. Indeed, the majority quotes a
Webster’s definition of the word that squarely contradicts its
reading. The plain meaning of the district court’s finding that
other groups likely used areas “on the periphery of the Chu-
gach territory” is that they used areas on the edge or boundary
of Chugach territory. The plain meaning is not that they used
areas within Chugach territory.

4. Summary

Based on the case law and the district court’s factual find-
ings, I would hold that the Chugach have established aborigi-
 NATIVE VILLAGE OF EYAK v. BLANK 8621
nal hunting and fishing rights within at least part of the
claimed area of the OCS. There is no evidence, and no finding
by the district court, that other groups hunted or fished within
the territory used and occupied by the Chugach. Evidence of
use or occupancy by other tribes or groups “must be specific”
to defeat a claim of exclusivity. Alabama-Coushatta Tribe,
2000 WL 1013532, at *17; Wichita Indian Tribe, 696 F.2d at
1385. As in Alabama-Coushatta Tribe, “we do not even have
evidence that is too general” to defeat the claim of exclusiv-
ity. 2000 WL 1013532, at *17. In the case before us, there is
no evidence whatsoever of use or occupancy by others.

II. Federal Paramountcy

Because I conclude that the Chugach have established
aboriginal hunting and fishing rights in at least part of the
claimed area of the OCS, I would reach the question whether
aboriginal rights are consistent with federal paramountcy.

The Supreme Court articulated the federal paramountcy
doctrine in a series of cases involving disputes between
coastal states and the federal government over ownership and
control of ocean resources. The Court repeatedly held that the
federal government’s paramount interest in “foreign com-
merce, foreign affairs and national defense” required that its
control over the seabed be paramount to that of the states,
regardless of the circumstances in which a state joined the
Union. United States v. Maine, 420 U.S. 515, 522 (1975);
United States v. Texas, 339 U.S. 707, 718-19 (1950); United
States v. Louisiana, 339 U.S. 699, 704 (1950); United States
v. California, 332 U.S. 19, 38-39 (1947). The federal govern-
ment could grant ownership or control to the states to the
degree that it wished, but control of the seabed belonged, “in
the first instance,” to the federal government. Maine, 420 U.S.
at 522; California, 332 U.S. at 29. The Court explained:

The marginal sea is a national, not a state concern.
National interests, national responsibilities, national
8622 NATIVE VILLAGE OF EYAK v. BLANK
concerns are involved. The problems of commerce,
national defense, relations with other powers, war
and peace focus there. National rights must therefore
be paramount in that area.

Louisiana, 339 U.S. at 704.

In Village of Gambell v. Hodel (“Gambell III”), 869 F.2d
1273, 1277 (9th Cir. 1989), we held that federal paramountcy
was consistent with aboriginal rights on the OCS because
such rights “may exist concurrently with a paramount federal
interest, without undermining that interest.” However, nine
years later in Native Village of Eyak v. Trawler Diane Marie,
Inc. (“Eyak I”), 154 F.3d 1090, 1095-97 (9th Cir. 1998), a dif-
ferent panel of this court held that the paramountcy doctrine
barred plaintiff Villages from asserting exclusive rights on the
OCS based on aboriginal title. We took this case en banc to
reconcile our conflicting precedents.

Relying on Eyak I, the Secretary argues that the para-
mountcy doctrine automatically extinguishes aboriginal rights
on the OCS. According to the Secretary, aboriginal rights
exist on the OCS only after they have been affirmatively rec-
ognized by the federal government in a statute or treaty. The
Secretary is correct that the federal government has ultimate
control over aboriginal rights, but he has the doctrine back-
wards. Under long-established law, aboriginal rights exist
until affirmatively extinguished by Congress. See, e.g., Santa
Fe Pac. R.R. Co., 314 U.S. at 347 (aboriginal rights need not
“be based upon a treaty, statute, or other formal government
action”). “[C]ongressional intent to extinguish Indian title
must be plain and unambiguous and will not be lightly
implied.” Cnty. of Oneida v. Oneida Indian Nation of N.Y.
(“Oneida II”), 470 U.S. 226, 247-48 (1985) (internal quota-
tion and citations omitted)). Here, neither the district court nor
the Secretary has identified any plain and unambiguous intent
by Congress to extinguish aboriginal rights of the Chugach on
the OCS. See Gambell III, 869 F.2d at 1280 (finding it “clear”
 NATIVE VILLAGE OF EYAK v. BLANK 8623
that the settlement provisions of the Alaska Native Claims
Settlement Act “do not extinguish aboriginal subsistence
rights that may exist in the OCS”).

We manifestly erred in Eyak I by ignoring the “great differ-
ence” between asserted state ownership of the seabed, at issue
in the federal paramountcy cases, and aboriginal use and
occupancy rights, at issue in that case. Sac & Fox, 383 F.2d
at 997 (aboriginal rights are “not the same as sovereign or
legal title”); see also FELIX COHEN, COHEN’S HANDBOOK OF
FEDERAL INDIAN LAW 998 (2005 ed.) (“[Eyak I] seems to be
wrongly decided, given the differences between state title and
Indian title.”). In the paramountcy cases, states sought to lease
the seabeds off their shores for oil and gas exploitation with-
out the consent of, and to the exclusion of, the federal govern-
ment. See, e.g., California, 332 U.S. at 23, 38; Louisiana, 339
U.S. at 701. State control of the seabed posed a threat to
national interests because the states, if they were owners of
fee simple title, could sell or convey those rights without the
federal government’s consent. California, 332 U.S. at 29, 35;
see also N. Mariana Islands v. United States, 399 F.3d 1057,
1062-63 (9th Cir. 2005) (applying paramountcy doctrine to
Commonwealth of the Northern Mariana Islands’ claimed
ownership of submerged lands off its coast).

In stark contrast to the states’ asserted title as against the
federal government in the paramountcy cases, aboriginal
rights presume ultimate federal sovereignty and control. See
Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279
(1955) (“[Aboriginal title] is not a property right but amounts
to a right of occupancy which the sovereign grants and pro-
tects against intrusion by third parties . . . .”). Whereas the
states sought to establish ownership exclusive of the federal
government in the paramountcy cases, aboriginal rights pre-
vail only against parties other than the federal government.
See Oneida Indian Nation of N.Y. v. Oneida Cnty. (“Oneida
I”), 414 U.S. 661, 667 (1974) (describing aboriginal title as
“good against all but the sovereign”); Village of Gambell v.
8624 NATIVE VILLAGE OF EYAK v. BLANK
Clark (“Gambell I”), 746 F.2d 572, 574 (9th Cir. 1984)
(“[Aboriginal] rights are superior to those of third parties,
including the states, but are subject to the paramount powers
of Congress.”). Unlike fee simple rights, aboriginal rights
cannot be sold or leased to third parties without the federal
government’s consent. See Oneida II, 470 U.S. at 234; 25
U.S.C. § 177 (“No purchase, grant, lease, or other conveyance
of lands, or of any title or claim thereto, from any Indian
nation or tribe of Indians, shall be of any validity in law or
equity, unless the same be made by treaty or convention
entered into pursuant to the Constitution.”). If aboriginal
rights conflict with the national interest, Congress may extin-
guish those rights, even without paying compensation, so long
as its intent is plain and unambiguous. Tee-Hit-Ton, 348 U.S.
at 284-85; Oneida II, 470 U.S. at 247-48.

In Eyak I, we misconstrued the Chugach’s claim as seeking
“complete control over the OCS.” 154 F.3d at 1096. The Chu-
gach do not claim fee simple ownership in the OCS or a con-
comitant power to convey their interest to third parties.
Rather, the Chugach seek only recognition of their aboriginal
rights of use and occupancy in part of the OCS. We erred in
Eyak I by stating that there was no “practical difference”
between the relief sought by the Chugach and the relief
sought by states in the paramountcy cases. Id. at 1095-96. The
Chugach’s asserted aboriginal rights are in no way compara-
ble to the states’ asserted right to fee simple ownership of off-
shore submerged land and a concomitant right to lease those
lands to third parties without the consent of the federal gov-
ernment. As we wrote in Gambell III, the Chugach “are not
asserting a claim of sovereign rights. Rather, they contend
that they possess rights of occupancy and use that are subordi-
nate to and consistent with national interests. This argument
is persuasive.” 869 F.2d at 1276.

I would overrule Eyak I insofar as it held that the para-
mountcy doctrine is inconsistent with the existence of aborigi-
nal rights. I would reaffirm our holding in Gambell III that
 NATIVE VILLAGE OF EYAK v. BLANK 8625
aboriginal rights may exist on the OCS without undermining
the paramount federal interest.

III. Remand

The district court on remand from our en banc panel did not
apply the test for aboriginal rights articulated in Sac & Fox.
The court’s conclusion that the Chugach’s pre-contact hunting
and fishing activities “did not give rise” to aboriginal rights
on the OCS was premised on legal errors.

First, the district court assumed incorrectly that the law
required the Chugach to show an ability to exclude others
from the claimed area, even in the absence of evidence of use
by others. It wrote:

[N]one of the ancestral villages was in a position to
control or dominate access to any part of the OCS.
The area was too large; and the number of men of an
age who would have been able to defend or control
high seas marine areas were too few. . . . None of the
ancestral villages was in a position to occupy or
exercise exclusive control over any part of the OCS
on a sustained basis.

The district court did not understand that, in the absence of
evidence of use by other groups within the claimed area, the
Chugach could establish exclusivity simply by showing their
own use and occupancy. The Chugach did not need to show
that they were able to exclude hypothetical intruders.

Second, as the singular “none” and “was” in the above pas-
sage illustrate, the court mistakenly analyzed the aboriginal
rights of individual plaintiff Villages, as opposed to the Chu-
gach as a whole. The district court found that the Chugach
were culturally, ethnically, and linguistically related, and were
“recognized by themselves and others as Chugach.” The
court’s separate finding that the Villages were politically
8626 NATIVE VILLAGE OF EYAK v. BLANK
independent is immaterial. See Northern Paiute Nation v.
United States, 7 Ind. Cl. Comm. 322, 416 (1959) (recognizing
aboriginal rights for tribal group that lacked “political unity”
but shared “similarities of language and culture”). The court’s
finding that the Villages had separate hunting and fishing “ac-
cess” and did not regularly engage in joint hunting or fishing
trips is similarly immaterial, so long as the Chugach com-
monly used hunting and fishing areas. Here, the Chugach
“found their sustenance largely in marine waters” and traveled
to the same areas of the OCS to hunt and fish. These findings
are analogous to other cases that recognized aboriginal rights
where autonomous villages shared hunting and fishing areas.
See, e.g., Upper Skagit Tribe v. United States, 8 Ind. Cl.
Comm. 492, 497 (1960) (recognizing aboriginal rights where
villages “extracted their principal sustenance from the same
areas”); Suquamish Tribe v. United States, 5 Ind. Cl. Comm.
158, 164 (1957) (recognizing aboriginal rights where villages
“shared gathering, fishing and hunting areas”); Muckleshoot,
3 Ind. Cl. Comm. at 674-75 (recognizing aboriginal rights
where “fishing waters were used in common by the occupants
of all the villages”). Accordingly, the district court should
have analyzed the claimed aboriginal rights of the Chugach as
a whole.

Because the district court concluded that the Chugach’s
pre-contact activities “did not give rise” to any aboriginal
rights on the OCS, it did not make findings identifying the
precise areas that the Chugach used and occupied exclusively.
I would remand to allow the district court to make such find-
ings.

Conclusion

The district court acknowledged that the Secretary’s chal-
lenged regulations are “fatally arbitrary” if the Chugach have
aboriginal fishing rights in the OCS that have not been pre-
empted under the paramountcy doctrine. Because I would
hold that the Chugach have established aboriginal rights in at
 NATIVE VILLAGE OF EYAK v. BLANK 8627
least part of the claimed area of the OCS and that these rights
do not conflict with federal paramountcy, I would reverse and
remand with instructions to the district court to find precisely
where within the claimed area the Chugach have such rights.
Once it makes those findings, the district court would be in a
position to deal appropriately with the challenged regulations.