Court upholds fed takeover of fisheries

9th Circuit Court of Appeals backs Katie John in 8-3 ruling

Posted: Tuesday, May 08, 2001

SAN FRANCISCO - The 9th U.S. Circuit Court of Appeals has affirmed its landmark 1995 Katie John ruling in a case that led to federal takeover of subsistence fishing in most Alaska waters.

Monday's 8-3 decision upholds the right of rural Alaskans to subsistence hunting and fishing on most waters in Alaska. It was also a personal victory for John, an Athabascan elder now in her early 80s.

"Katie John had sued to continue to fish as she had always done and as her ancestors had always done," said John Tetpon of the Alaska Federation of Natives, which advocates for Native subsistence rights. "This was a customary, traditional subsistence harvest of fish. What the opinion does is uphold her way of life."

Federal subsistence laws grant rural residents a priority for hunting and fishing on federal lands, but the state constitution says all Alaskans should have equal access to the state's fish and game.

The Katie John ruling greatly expanded the geographic scope of the federal government's authority in Alaska. The state Legislature has refused to put proposed amendments to the state's constitution on the ballot so it would match federal law. If such amendments were passed by voters, the federal takeover of subsistence management would likely end.

The case dates back to 1990 when John asked the Alaska Board of Fisheries to let her and others set subsistence salmon nets at her Copper River fish camp. The board denied the request, so John and others sued the federal Interior Department, saying it wasn't fulfilling its obligation to manage subsistence on federal property.

U.S. District Judge H. Russel Holland agreed, and the 9th Circuit court later ruled the federal government had jurisdiction in navigable waters and in "federal reserve waters." The court defined the term as waters necessary for the purposes of a federal special use area designated by Congress, such as a national park or refuge.

After a federal judge in Anchorage issued a final judgment in the case in January 2000, the state appealed.

Gov. Tony Knowles said the administration filed the appeal because the state wanted to manage its navigable waters, not because it was against Natives' subsistence rights.

Attorney General Bruce Botelho said the state has 90 days to file a petition for appeal with the U.S. Supreme Court. No decision on such an appeal has been made.

Anchorage Republican Rep. Joe Green, chairman of the Alaska Legislative Council, urged Knowles to appeal.

"Alaskans won't be satisfied until we have a final ruling in Katie John and the Legislative Council is willing to assist the attorney general in filing an appeal in any way we can," Green said.

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