Kenaitze Indian Tribe v. State of Alaska

NOONAN, Circuit Judge,

with whom THOMPSON, Circuit Judge, joins, concurring:

The Kenaitze live principally along the eastern shore of Cook Inlet from Anchor Point to Point Possession, though some possibly inhabit the western shore, principally at Kuskatan. Clare Swan, Subsistence Research Project Kenaitze Indian Tribe 3 n. 1 (1981). The Tribe consists of approximately 400 descendants of Tanaina Athabaskan Indians who replaced Eskimos on the Kenai Peninsula sometime between 500 and 1500 A.D. Carolyn E. Reed, The Role of Wild Resource Use of Communities of the Central Kenai Peninsula and Kachemak Bay, Alaska 13 (1985). The rhythm of life of the Tribe in the days in which its traditions were established appears to be captured in these words:

DENAI’NA SEASONAL CYCLE

tuneyashi the snow begins to melt

tlkhu-khakeneu people catch king salmon

talkheneu the geese come flying

koonaneo people catch pink salmon

banan-kantlkhtsi the berries ripen

banan-ttstanashi people come away from the hills

banan-ktichiki the foilage is red

bkanchenshane the earth grows cold

golchana-naga people go to visit one another

*319 takoshi the geese fly south, the bear hides himself

banan-tlkhtsi it begins to snow

banan-tuksti-tlkhe the days begin to lengthen

Robert E. Ackerman, The Kenaitze People 53-54 (1972), cited in Swan, supra, after p. 4.

Russians arrived and Russian settlements were established near the end of the eighteenth century, introducing a trade in furs. American traders replaced the Russians after 1867. Commercial salmon fishing by Americans began in 1880 with a cannery being built at Kasilof. Reed, supra, at 14-15 (1985).

The traditional life appears to have been relatively unchanged when it was surveyed in 1931-1934 by an anthropologist, Cornelius Osgood. He wrote:

Five kinds of salmon appear in the Tanaina area — humpbacks, dogs, silvers, reds, and kings. The humpbacks swim every place in the bays and creeks during their season around Seldovia. At Kenai they make their main run during July when they go far up the rivers. Humpback salmon appear in the Upper Inlet but they are said to be only occasional visitors around Tyonek and there are none at Iliamna. The same information is true for dog salmon, except that they apparently do not go so far up the rivers, a few appearing around Tyonek in late July. The silver salmon run late in the season. They occur in all areas except Iliamna and are noted for the fact that they travel a long way up the rivers. The most important of all, especially since they come at a time when food is scarce, are the red and king salmon, which the Tanaina look for in May. The king salmon do not appear in Kachemak Bay and at Iliamna, however. At Iliam-na, red salmon supply the principal summer food.

The ordinary native method of catching salmon is to construct a weir by damming a creek or small river with a construction of logs and debris set diagonally upstream from each side toward a small opening in the center through which the fish are forced to pass, thus entering a V-shaped trap of logs about ten feet on a side, from which they cannot extricate themselves. One man stands in the trap and with a small dip-net takes out two or three fish at a time, which another man kills with a club. A third man puts a spruce root line through their gills (or throws them into a boat) and brings them ashore. Sometimes, instead of the simple fish weir, the Indians make a basket trap of long alders with a conical entrance which they place at the opening of the dam. They remove the fish from a door in the same manner as described above. The Kachemak Bay Ta-naina do not use a gaff-hook in fishing, but at Kenai the latter instrument serves for catching crabs.

The Tanaina also catch fish by the use of a dragnet made of alder poles tied together with spruce root line. Men take hold of each end, and with another man in the middle, they push the fish into shallow water, where they kill them with wooden clubs. Sometimes the fish are pushed on to flats where they strand at low tide. When all the fish have been taken ashore, an old man counts and divides them equally. The women clean the fish, the boys wash them, and old men hang them up to dry.

Cornelius Osgood, The Ethnography of the Tanaina 28-29 (1937), reprinted in 16 Yale Univ. Publications in Anthropology (1966).

After World War II, homesteading increased on the Kenai Peninsula. The development of oil fields led to substantial growth after 1957. Reed, supra, at 17. In 1951 a highway was completed linking the Kenai Peninsula to Anchorage and leading to a substantial increase in tourism. In economic terms commercial fishing ranks first; oil production, second; tourism, third. Id. at 18.

By 1976 it was observed that in rural Alaska a shift had occurred from an economy of subsistence fishing and hunting, rounded out by work for cash, to a cash economy, rounded out by subsistence activities. The shift varied greatly from village to village. Indeed the mix of cash and subsistence uses varied according to four factors: the season; the number of the *320 persons working in the family; the availability of cash-paying jobs; and the availability of subsistence resources. Nancy Yaw Davis, Steps Toward Understanding Rapid Culture Change in Native Rural Alaska. Federal-State Land Use Planning Commission for Alaska: Commission Study No. 16 23 (1976).

There are now 30 different occupations which have been identified as providing cash income to Natives. Swan, supra, 7. About 9 percent of persons on the Tribe’s voting roll hold commercial fishing permits. Id. at 6.

The number of salmon caught for subsistence has been very small in relation to commercial harvesting. For example in 1980 in which a very high number of subsistence permits (1,219) were issued, the total salmon caught by subsistence users was 14,279. The salmon commercially harvested were 4,128,130. Swan, supra, Table I after p. 6. From 1971 to 1980, commercial, sport and subsistence user groups on the Cook Inlet caught 4 million salmon in even years, and in the odd years, 3.8 million. Id. at II — 1. Commercial fishermen caught 95 percent of the salmon and sports fishermen were the second largest harvesters of salmon. Id. at II — 2. One study of the Upper Cook Inlet found that the percentage of the salmon harvest attributable to subsistence fishermen constituted .008 percent in 1977, .07 percent in 1978, .47 percent in 1979, and .33 percent in 1980. Stephen Braund, Cook Inlet Subsistence Salmon Fishery 33 (1982).

As this review indicates, I have taken a look — the kind of preliminary look necessary to consider a preliminary injunction— at facts that appear not to be in dispute. Three things stand out: First, there was a long tradition of the subsistence uses of salmon by the Tribe. Second, there has been considerable economic and social change on the Kenai Peninsula. Third, the subsistence uses are very small compared with the salmon taken by commercial and sports fishermen. These patterns point in different directions as to what good regulation of subsistence uses on the Kenai Peninsula would require. As a court of appeals we are certainly not in a position to decide.

What we are in a position to decide is what the Conservation Act requires. The Conservation Act could be interpreted as freeing Alaska to do what it likes if the laws it first enacted met the requirements of 16 U.S.C. § 3115 (d). But the statute itself provides that if the Alaska laws “are repealed” they no longer supersede the federal law governing state responsibility. Id. The change in Alaska Legislation in May 1986 may fairly be interpreted as a repeal of the laws that had been found by the Secretary to be in compliance with the Conservation Act.

If the statute was read in the most literal way possible, Alaska would have lost its only chance to take responsibility — it would have repealed the laws that were satisfactory. It would have no opportunity to reenact others. But we think such a wooden reading of the Conservation Act would be contrary to the basic thrust of the legislation. If Alaska is not in conformity with the Conservation Act, it may again get itself within the federal requirements.

Alaska supposes that it can get into conformity by a certification by the Secretary. The Secretary takes the same position, in an amicus brief arguing that the court should defer to his certification. But there is simply no provision in the statute for the Secretary assuming this role. The Secretary had one directive to carry out under section 3115(d), and he did so. After that his role is to monitor the provisions of the state and report to Congress. 16 U.S.C. § 3116 .

We are directed by Section 3117 to enforce a federal statute. There is no basis for us to defer either to the Secretary or the state. Congress provided in explicit terms what is to be given priority. It is “non-wasteful subsistence uses,” 16 U.S.C. § 3114 , which are “the customary and traditional uses” of “rural Alaska residents.” 16 U.S.C. § 3113 . The uses of residents are not the uses of rural areas or communities or groups. At the time the statute was enacted it was clear that traditional subsistence uses varied from village to village, *321 season to season, family to family. Davis, supra at 23. The statute is directed to the protection of individuals wh'o individually followed the traditional ways.

The state may not subtract from this federal statute. It has done so and so must be enjoined. The Tribe is entitled to an injunction providing that subsistence uses of fish by members of the Tribe shall be given a priority by the state over all other uses so far as necessary as to preserve the subsistence uses of such users. 16 U.S.C. § 3114 .

I also concur in parts 1, 2, and 4 of the opinion of the court.