Aboriginal Title To The Alaska Outer Continental Shelf

DEPARTMENT OF THE INTERIOR

Minerals Management Service

43 CFR Part 14

Aboriginal Title To The Alaska Outer Continental Shelf

AGENCY: Minerals Management Service (MMS), Department of the Interior.

ACTION: Notice of receipt of petition for rulemaking and request for

comments.

-----------------------------------------------------------------------

SUMMARY: The Department of the Interior announces receipt of, and

requests comments on, a petition for rulemaking on issues regarding

claimed aboriginal title and aboriginal hunting and fishing rights of

federally recognized tribes in Alaska exercisable on the federal Outer

Continental Shelf (OCS).

DATES: Comments on the petition are requested through April 4, 1996.

ADDRESSES: Comments on the petition should be directed to: Paul Stang,

Chief, Branch of Leasing Coordination, Office of Program Development

and Coordination, (MS-4410) Minerals Management Service, 381 Elden

Street, Herndon, Virginia 20270-4817. Please indicate that your comment

is in response to the petition for rulemaking on aboriginal title and

rights on the Alaska OCS.

FOR FURTHER INFORMATION CONTACT:

William Quinn at (703) 787-1191.

SUPPLEMENTARY INFORMATION: The Villages of Eyak, Tatilek, Chenega, Port

Graham and Nanwalek have petitioned the Secretary to promulgate a rule

stating that 225 federally recognized tribes in Alaska may claim

aboriginal title and aboriginal hunting and fishing rights to the Outer

Continental Shelf (OCS) and to make leases on the OCS off Alaska

subject to claimed aboriginal title and rights of such tribes. The MMS

is the agency within the Department of the Interior responsible for

issuing and managing mineral leases on the OCS pursuant to the Outer

Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., hence its

involvement in this matter.

The initial petition was addressed to both the Secretary of the

Interior and the Secretary of Commerce and did not designate any

existing rule for revision or propose a new rule text. Therefore, the

Secretary's office notified the Villages that under 43 CFR 14.2, a

petition for rulemaking must include the text of a rule that the

petitioner proposes for adoption. On September 1, 1995, the Solicitor

of the Department received a letter from counsel for the petitioning

Villages proposing the following rule:

``Proposed regulation of the Secretary of the Interior for the

protection of aboriginal title and aboriginal hunting and fishing

rights on the Outer Continental Shelf of federally recognized tribes in

Alaska.

``1. The Department recognizes that the 225 native Villages on

the Secretary's list of ``Native Entities within the State of Alaska

Recognized and Eligible to Receive Services from the United States

Bureau of Indian Affairs,'' 60 Fed. Reg. 9250, February 16, 1995,

are Native Tribes capable of possessing aboriginal claims. County of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 233 (1974).

``2. Although the existence and scope of the aboriginal titles

of individual Alaskan tribes has not yet been determined, based on

the historical and contemporary evidence available the Department

recognizes that many Alaska coastal tribes have continuously and

exclusively occupied areas of the OCS off Alaska for long periods of

time and thus possess the potential to establish prima facie

[[Page 8539]]

cases of aboriginal title to their respective traditional use areas.

``3. The Department recognizes that the aboriginal title and

rights of such tribes were not extinguished by the Alaska Native

Claims Settlement Act (ANCSA), 43 U.S.C. 1601, et seq., the Outer

continental Shelf Lands Act, 43 U.S.C. 1331, et seq. or by any other

Congressional Act. Nor, is the continuing existence of such rights

contrary to the Paramountcy Doctrine (see United States v.

California, 332 U.S. 19 (1947); United States v. Maine, 420 U.S. 515

(1975); and United States v. Louisiana, 339 U.S. 699 (1950) or to

the Ninth Circuit decisions in Native Village of Gambell v. Hodel,

869 F.2d 1273 (9th Cir. 1989) (Gambell III) or Gambell v. Babbitt,

999 F.2d 403 (9th Cir. 1993) (Gambell IV).

``4. Hereafter all Alaska native tribes whose aboriginal

territory or aboriginal rights to the OCS would likely suffer

trespass or be disturbed or affected in any significant way by

Departmental leases of the OCS off the coast of Alaska, shall be

given written notice of such sale and of this regulation at least

180 days prior to the official sale of such leases. Oil, gas, or

other mineral leases that would likely cause disruptive effects

merely by nature of their proximity to aboriginal territory are

included within this notice requirement.

``The types of disruptions or effects requiring such prior

notice include any potential trespass upon the tribes' aboriginal

hunting and fishing grounds, or any potentially significant

disturbance, depletion, or interference with Native hunting, fishing

or exploitation of other resources or other uses of their aboriginal

territory.

``5. The Department recognizes that all existing as well as

future leases of the OCS off Alaska are subject to the aboriginal

title and aboriginal hunting and fishing rights of Alaskan Native

Tribes.''

The matter addressed in the petition has been the subject of

litigation for many years now and is currently the subject of

litigation brought by the petitioning Villages seeking to halt proposed

OCS Lease Sale 149 in the Cook Inlet in Alaska. Native Village of Eyak,

et al. v. Trawler Diane Marie, Inc., et al., Case No. A95-0063 CIV

(HRH) (D. Alaska, filed Feb. 23, 1995). The Government has consistently

taken the position that no person or entity has title to, or hunting

and fishing rights on, the Alaska OCS. Rather, the Alaska OCS is

subject to the paramount authority of the Federal Government, and to

uses permitted by the United States pursuant to the Outer Continental

Shelf Lands Act, 43 U.S.C. 1331 et seq.

Nevertheless, in fairness to the Villages, the MMS is publishing

the text of the rule pursuant to 43 CFR part 14 and invites

knowledgeable parties to comment on it and to consider the following:

1. Should we engage in this rulemaking?

2. Would such a rule be consistent with the laws governing the OCS?

3. Would granting the rule be consistent with the paramount

interest of the United States?

4. Do we have other mechanisms sufficient to protect claimed Native

interests? and,

5. Where should undertaking such rulemaking fit in among the other

priorities of the agency?

Anyone so wishing should submit comments to MMS at the address

above. In a separate Federal Register notice, MMS is also pursuing

factual inquiry into the potential nature and extent of the claims of

the five petitioning Villages with respect to the areas proposed for

lease in Cook Inlet Sale 149 and Gulf of Alaska-Yakutat Sale 158 in

connection with the decisions to conduct such sales.

Dated: February 26, 1996.

Cynthia Quarterman,

Director, Minerals Management Service.

[FR Doc. 96-5009 Filed 3-4-96; 8:45 am]

BILLING CODE 4310-MR-M