On September 8, 2022, the Ninth Circuit Court of Appeals affirmed the reserved right of the Metlakatlan Indian Community to fish in the off-reservation waters where Metlakatlans had traditionally fished, and held that Metlakatlans are not subject to an Alaska statute creating a limited-entry program for commercial fishing. Metlakatla Indian Community v. Dunleavy, is significant because in deciding the case, the court applied familiar cannons of Indian law construction rarely seen in cases involving Alaska Tribes.


As with most Indian-law cases, it starts with a history lesson. In 1867, the United States acquired what is now the state of Alaska from Russia for $7.2 million under the Treaty of Cession. In 1887, a group of five Metlakatlans traveled from British Columbia to the Annette Islands in southeastern Alaska in search of a new home. The group chose the nearby Annette Islands because of the islands’ easy access to waters with abundant fish.[1] According to Alaska Pac. Fisheries v. United States, 248 U.S. 78, 88 (1918), the Metlakatlans “looked upon the islands as a suitable location . . . because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development.” After moving to the Annette Islands, the Metlakatlans continued to fish throughout the waters of southeast Alaska.

In 1891, Congress created the Annette Islands Reserve, the stated purpose of which was “simply to allow [the Metlakatla Indian Community] to remain [in the Annette Islands] under such rules and regulations as the Secretary of the Interior may impose, and give them some recognized footing at that place.”[2] The Annette Reserve is the only Native reservation in Alaska.

After Congress established the reservation, Community members continued to fish where they had always fished, both in the waters immediately surrounding the reservation and in the waters up to 50 miles away. Fishing at these off-reservation locations supplied a cannery that Metlakatlans established on the reservation in 1891 to replace a cannery they had established at Metlakatla, British Columbia, before they moved to the Annette Islands.

In 1916, President Woodrow Wilson proclaimed that the waters within 3,000 feet of the Annette Islands were part of the Reserve, as the Supreme Court explained, “to be used by the Indians as a source of supply for [an] intended cannery, ‘under the general fisheries laws and regulations of the United States as administered by the Secretary of Commerce.’”[3]

Federal regulations provide that the Annette Islands fishery is “exclusively reserved for fishing by the members of the Metlakatla Indian Community and such other Alaskan Natives as have joined or may join them in residence on the aforementioned islands,” as 25 C.F.R. § 241.2(b) states. Further, 25 C.F.R. § 241.2(c) states: “Members of the Metlakatla Indian Community, and such other Alaskan Natives as have joined them or may join them in residence on the aforementioned islands, shall not be required to obtain a license or permit from the State of Alaska to engage in fishing in the waters of the Annette Islands Reserve.”

The Limited-entry Program

In 1973, the state enacted the limited-entry program, under which Alaskan commercial fishermen earn points to qualify for free limited-entry permits to fish in state waters. Permit applicants are prioritized based on economic dependence on the fishery and past participation in the fishery. Metlakatlans who fished in Alaska waters outside the Annette Reserve got credit for their participation in the fishery, while those who fished within the Annette Reserve did not. Because there are a finite number of permits available, the value of those permits has increased.

The Suit Against the State

Climate change and non-Native commercial fishing practices in the state-managed fishing areas surrounding the tribe’s exclusive zone have put a substantial strain on tribal fish yields, threatening fish stocks available to Metlakatlans. In 2020, the tribe sued the state, asking a federal judge to declare that Congress’ 1891 creation of the Annette Islands Reserve included, in addition to the exclusive fishery within 3,000 feet of the Annette Islands, the non-exclusive right to fish in nearby waters (currently designated by the state as Districts 1 and 2).

The tribe sought a declaration that they have an implied right to fish for salmon, halibut, cod, rockfish, and herring for subsistence and commercial purposes, in common with other users and without unreasonable interference from the state. The tribe also sought to enjoin the state from interfering in the exercise of that reserved right to fish by enforcing its limited-entry fishing program against Metlakatlans.

The U.S. District Court for the District of Alaska dismissed the tribe’s suit, holding that the 1891 Act did not grant Metlakatlans an off-reservation reserved right to fish. The court concluded that no right was created because neither the Act nor the legislative history said anything about fishing rights. The court further held that the reserved rights doctrine did not apply because the Metlakatlans were emigrants from Canada who were granted asylum, not tribes that ceded lands under treaties with the United States. Finally, the court held that the fact that Metlakatlans fished outside the Reserve for years after its creation was a function of minimal regulation of the area’s fisheries rather than a grant by Congress to the tribe of an off-reservation right.

The Recognition of the Tribe’s Reserved Rights on Appeal

On appeal, the Ninth Circuit applied a number of Indian-law canons of construction “rooted in the unique trust relationship between the United States and the Indians”[4]: construing statutes that touch on federal Indian-law liberally, in favor of the Native people, interpreting ambiguous provisions to their benefit; interpreting statutes that create reservations as the Native people would have understood them; inferring rights that support the purpose for which a reservation is established; and in determining that purpose, considering the circumstances surrounding the creation and the history for which the reservation was created as well as the tribe’s need to maintain itself under changed circumstances.

Applying those canons, the court concluded that the central purpose of creating the reservation was to allow the tribe to support itself through fishing. Congress passed the Act with the expectation not only that Metlakatlans would catch fish for ceremonial purposes and personal consumption and pursue the commercial fishery that provided essential economic support for the Community, but that off-reservation fishing would serve that purpose at the time the reservation was created and in the future.

With that as the central purpose, the court held that the Act preserved an implied right to nonexclusive off-reservation fishing for personal consumption, ceremonial purposes, and commercial purposes within the tribe’s traditional areas, which have always included the waters in Alaska’s Districts 1 and 2. The court also held that any regulation by Alaska of the tribe’s off-reservation fishing must be consistent with such rights and that the state’s administration of its commercial fishing regulations limiting who can fish in the area is incompatible with the tribe’s off-reservation fishing rights.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact a lawyer.

[1] Alaska Pac. Fisheries v. United States, 248 U.S. 78, 88 (1918) (“[The Metlakatlans] looked upon the islands as a suitable location . . . because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development.”).
[2] Scudero v. State, 496 P.3d 381, 383 (Alaska 2021), quoting Section 15 of the Act of March 3, 1891 (26 Stat. 1101, 48 U.S.C. sec. 358).
[3] Presidential Proclamation of April 28, 1916 (39 Stat. 1777).
[4] Oneida Cnty. v. Oneida Indian Nation of New York State, 470 U.S. 226, 247 (1985).

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