A federal lawsuit over fishing rights for the people of Alaska’s only Native reservation is likely heading for trial. The case could have broad implications for fishermen throughout Southeast Alaska.
Metlakatla is a community of about 1,500 people at the southern tip of Southeast Alaska. Its federally recognized tribe, Metlakatla Indian Community, sued the state in 2020, saying the law that created the reservation included an implicit right to fish in nearby waters outside the reservation’s boundaries. That’s based on a long history of the tribe fishing in those areas after emigrating from British Columbia in the late 1800s.
Because Congress was aware of the tribe’s reliance on fishing when it created the reservation, the tribe argues its fishermen shouldn’t need state permits to fish in areas near Ketchikan and Prince of Wales Island in what are now designated by the Alaska Department of Fish and Game as Southeast Alaska Districts 1 and 2.
The state says allowing Metlakatla fishermen to circumvent the state’s permitting system would make it difficult or impossible for wildlife officials to manage fish populations.
The state also argues that the community has no historical fishing rights in its current home. That aspect of the case went to the U.S. Ninth Circuit Court of Appeals, which disagreed with the state in 2023, saying the case rests not on the tribe’s long history but the circumstances surrounding Congress’s creation of the reservation.
The three-judge Ninth Circuit panel hearing the case wrote that the 1891 law creating the reservation, called the Annette Islands Reserve, doesn’t explicitly mention fishing rights, but a 1918 U.S. Supreme Court decision recognized that, without off-reservation fishing rights, the community would not be able to sustain itself.
The state brought the issue up again at the district court level after the Ninth Circuit ruling. The appellate court wrote that “Metlakatlans and their Tsimshian ancestors asserted and exercised a a right to fish in these waters since time immemorial.” The state argued the Ninth Circuit panel’s use of the phrase “since time immemorial” meant that the tribe had to prove that its members historically fished in the southern panhandle to the exclusion of others.
But District Court Judge Sharon Gleason disagreed, writing in a footnote to Friday’s ruling that, in a legal context, the phrase “simply means ‘[a] point in time so far back that no living person has knowledge or proof contradicting the right or custom alleged to have existed since then,’ or ‘[a] very long time.'”
“Simply because the Circuit Court discussed the Metlakatlans’ historical use of off-reservation fishing grounds — which it noted that it should do to determine the reservation’s purposes — does not transform this case into one which requires proof of aboriginal rights given that the implied fishing right here stems from the 1891 Act,” Gleason wrote.
However, precisely where members of Metlakatla’s tribe should be allowed to fish without state permits is in question. That’ll be the subject of a trial in the coming months.
Metlakatla Indian Community Mayor Albert Smith said he’s confident the tribe will be able to prove its fishermen have long plied the waters of the southern panhandle.
“We know that the facts are on our side,” Smith said. “This long battle is ongoing, but we are fast closing in on restoring the fishing rights Congress gave to our people.”
The state Department of Law did not respond to a request for comment.
Attorneys for the state and Metlakatla are scheduled to meet in an Anchorage courtroom on June 25 to set a trial date. The parties could settle in advance of a trial, but Smith said he’s not aware of any active negotiations.
Eric Stone covers state government, tracking the Alaska Legislature, state policy and its impact on all Alaskans. Reach him at estone@alaskapublic.org.
