People of Village of Gambell v. Clark

• Decision Date: 02 November 1984
• Docket Number: 83-3781,Nos. 83-3735,s. 83-3735
• Citation: 746 F.2d 572
• Parties: The PEOPLE OF the VILLAGE OF GAMBELL, an Alaskan Native IRA Association, and the People of the Village of Stebbins, an Alaskan Native IRA Association, Plaintiffs-Appellants, v. William CLARK * , Secretary of the Interior and the United States Department of Interior, Defendants-Appellees and Arco Alaska, Inc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 572

746 F.2d 572

21 ERC 1935

The PEOPLE OF the VILLAGE OF GAMBELL, an Alaskan Native IRA

Association, and the People of the Village of

Stebbins, an Alaskan Native IRA

Association, Plaintiffs-Appellants, v. William CLARK ^*, Secretary of the Interior and the United States Department of Interior,

Defendants-Appellees

and

Arco Alaska, Inc., et al., Defendants-Appellees.

Nos. 83-3735X, 83-3781.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1983.

Decided Nov. 2, 1984.

Donald Cooper, Anchorage, Alaska, for plaintiffs-appellants.

David C. Shilton, Dept. of Justice, Brice M. Clagett, Covington & Burling, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before BROWNING, Chief Judge, HUG, Circuit Judge, and REED, ^** District Judge.

BROWNING, Chief Judge:

The appellee Secretary of Interior offered to sell leases for about 2.4 million acres of land in the Norton Sound Basin off the western shore of Alaska for oil and gas exploration under the Outer Continental Shelf Lands Act, 43 U.S.C. Secs. 1331-1356. Appellee oil companies submitted bids for these leases. Appellants, the People of the Village of Gambell and the People of the Village of Stebbins (Alaska Native Indian Reorganization Act Associations composed of residents of two towns on Norton Sound) brought this action to enjoin the sale. The district court denied appellants' motion for preliminary injunction and granted the Secretary's motion for summary judgment. This appeal followed.

Appellants argue that oil and gas development without their consent is barred because it will adversely affect their aboriginal right to subsistence hunting and fishing. Alternatively, they contend the lease sale failed to satisfy the procedural requirements of section 810 of the Alaska National Interest Lands Conservation Act (Conservation Act), 16 U.S.C. Sec. 3120, providing special protections for subsistence uses in Alaska.

The district court held that neither appellants' aboriginal hunting and fishing right nor section 810 of the Conservation Act extend to waters over the outer continental shelf outside the territorial boundaries of the State of Alaska.

We hold that if appellants had an exclusive aboriginal right to hunt and fish in offshore areas adjacent to Alaska, that right was extinguished by the Alaska Native Claims Settlement Act (Claims Settlement Act), 43 U.S.C. Secs. 1601-1628. ¹ We further hold, however, that section 810 of the Conservation Act does apply to outer continental shelf waters in Norton Sound, and remand to the district court for determination of the proper remedy.

I.

Appellants argue that oil and gas exploration and development in Norton Sound conflicts with their asserted aboriginal right to hunt and fish in these waters and concomitant right to the minerals of the outer continental shelf underlying the Sound.

Aboriginal title or right is a right of exclusive use and occupancy held by Natives in lands and waters used by them and their ancestors prior to the assertion of sovereignty over such areas by the United States. These rights are superior to those of third parties, including the states, but are subject to the paramount powers of Congress. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-69, 94 S.Ct. 772, 777-78, 39 L.Ed.2d 73 (1974); United States v. Santa Fe Pacific R.R., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941). Aboriginal rights based on occupation and use are entitled to the protection of federal law even when they are not formally recognized as ownership by treaty or statute, Santa Fe, 314 U.S. at 347, 62 S.Ct. at 252, but such unrecognized aboriginal rights can be extinguished by Congress without compensation. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-85, 288-89, 75 S.Ct. 313, 317-20, 321-22, 99 L.Ed. 314 (1955); United States v. Dann, 706 F.2d 919, 922 n. 1 (9th Cir.1983), cert. granted, --- U.S. ----, 104 S.Ct. 2693, 81 L.Ed.2d 362 (1984); Wahkiakum Band v. Bateman, 655 F.2d 176, 180 (9th Cir.1981); United States v. Atlantic Richfield Co., 612 F.2d 1132, 1134 (9th Cir.1980). Congress's intention to extinguish must be clear; it will not be lightly implied. See United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941); United States v. Dann, 706 F.2d at 928-29; United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.1976).

Appellees argue the Claims Settlement Act extinguished whatever aboriginal rights the Natives may have held in Norton Sound. The Claims Settlement Act arose out of a series of events beginning with passage of the Alaska Statehood Act in 1958. When Alaska became a state, nearly all its territory was federal land. The Statehood Act granted the new state the right to select over 100 million acres for state ownership. However, the state agreed by section 4 of the act to "disclaim all right and title ... to any lands or other property (including fishing rights) [of Alaska Natives]...." Pub.L. 85-508, 72 Stat. 339, 339 (1958). The state selected large areas of federal land and made application for patents for the land. The Natives claimed aboriginal title to much of the same territory. The discovery of oil on the North Slope in the 1960's exacerbated this conflict. These conflicting claims hindered both development and protection of Native and national interests in Alaska. In 1966 Secretary of Interior Stewart Udall "froze" all public land transactions in Alaska pending resolution of the conflicting claims. In 1971 Congress passed the Claims Settlement Act in an effort to accommodate in a rational manner the interests of the state, Native groups, conservationists, and potential developers, including the oil companies. See generally, H.R.Rep. No. 1045, 95th Cong., 2d Sess., pt. I at 188-89 (1978); S.Rep. No. 405, 92d Cong., 1st Sess., pt. I at 71-78 (1971).

The heart of the Claims Settlement Act was the extinguishment of Native claims based on aboriginal right in return for a grant to the Natives of $962,500,000 and 40,000,000 acres of land. United States v. Atlantic Richfield, 612 F.2d 1132, 1134 (9th Cir.1980). Unquestionably it was the purpose of the Claims Settlement Act to extinguish the aboriginal claims of Alaska Natives. ² The question is whether the extinguishment provision applies to lands on the outer continental shelf adjacent to the Alaskan land mass and to waters over such lands.

Our inquiry begins with the statutory language. The critical language is found in Section 4(b) of the Act, 43 U.S.C. Sec. 1603(b):

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished. (emphasis added).

The statute also states: "there is an immediate need for a fair and just settlement of all claims by Natives ... based on aboriginal land claims," and "the settlement should be accomplished rapidly, with certainty, [and] ... without litigation ...." 43 U.S.C. Sec. 1601(a), (b).

The argument that aboriginal title in outer continental shelf lands and waters is not extinguished rests entirely upon use in section 4(b) of the phrase "in Alaska" to identify the location of the titles and claims of title to be extinguished.

We believe Congress used the phrase "in Alaska" in this context to mean the geographic region, including the contiguous continental shelf and the waters above it, and not merely the area within the strict legal boundaries of the State of Alaska. This is not an uncommon usage. Indeed, the Norton Sound, at issue here, is described in Webster's New Geographical Dictionary (1972 ed.) as a "large inlet of NE Bering Sea, in W Alaska ...." (emphasis added). As indicated in Part II of this opinion, nine years later, when Congress adopted the Alaska National Interest Lands Conservation Act, 16 U.S.C. Secs. 3101-3233 (Conservation Act), to complete the land allocation process initiated by the Statehood and Claims Settlement Acts, Congress used the words "in Alaska" to refer to areas of the outer continental shelf. Section 1001 of the Conservation Act, 16 U.S.C. Sec. 3141, refers to "all Federal lands (other than submerged lands on the Outer Continental Shelf) in Alaska ...." During debates on the Conservation Act, the phrase "in Alaska" was used on numerous occasions to include the outer continental shelf. See e.g., 125 Cong.Rec. 9900, 11,128 (1979) (statements of Rep. Udall); id. at 9907 (statement of Rep. Young).

The possibility of two meanings of the phrase "in Alaska" renders the provision ambiguous, justifying reference to the legislative history. That history makes it clear that Congress intended to extinguish aboriginal fishing and hunting rights in outer continental shelf waters contiguous to the State of Alaska.

Congress repeatedly enjoined those who were to implement the statute to interpret the extinguishment section broadly to accomplish a complete and final settlement of aboriginal claims and avoid further litigation of such claims. ³ Claims of aboriginal title to submerged lands, both inland and offshore, were expressly included in the extinguishment provision, as were "any aboriginal hunting or fishing rights." The needs of the Natives for subsistence hunting and fishing were considered in determining the amount of land granted the Natives, see, e.g., H.R.Rep. No. 523, 92nd Cong., 1st Sess. 5, reprinted in 1971 U.S.Code Cong. & Ad.News 2192, 2195; the land was granted, in part, "in lieu of subsistence hunting and fishing rights," 117 Cong.Rec. 36864 (1971) (Rep. McClure). ⁴

Appellants' claim of aboriginal title rests upon immemorial use for hunting and fishing extending far to sea. They assert:

Factually, no aboriginal group has ever used water and ice as intensely as have the Eskimos. For...