Metlakatla Indian Community v. Michael Dunleavy ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
METLAKATLA INDIAN No. 21-35185
COMMUNITY, a Federally
Recognized Indian Tribe, D.C. No. 5:20-
cv-00008-JWS
Plaintiff-Appellant,
ORDER AND
v. AMENDED
OPINION
MICHAEL J. DUNLEAVY,
Governor of the State of Alaska;
DOUG VINCENT-LANG,
Commissioner of the Alaska
Department of Fish and Game;
AMANDA PRICE, Commissioner of
the Alaska Department of Public
Safety,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted December 6, 2021
Pasadena, California
2 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
Filed September 8, 2022
Amended January 31, 2023
Before: William A. Fletcher, Johnnie B. Rawlinson, and
John B. Owens, Circuit Judges.
Order;
Opinion by Judge W. Fletcher
SUMMARY *
Indian Law
The panel filed (1) an order amending its opinion,
denying a petition for panel rehearing, and denying, on
behalf of the court, a petition for rehearing en banc; and (2)
an amended opinion reversing the district court’s dismissal,
for failure to state a claim, of the Metlakatlan Indian
Community’s suit against Alaskan officials, claiming that
an 1891 statute granted the Community and its members
the right to fish in the off-reservation waters where they
had traditionally fished, and that they therefore were not
subject to an Alaska statute’s limited entry program for
commercial fishing in waters designated as Districts 1 and
2.
The 1891 Act established the Annette Islands Reserve
as the Community’s reservation. The panel held that the
1891 Act also granted to the Community and its members a
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 3
non-exclusive right to fish in the off-reservation waters
where they had traditionally fished. The panel applied the
Indian canon of construction, which required it to construe
the 1891 Act liberally in favor of the Community and to
infer rights that supported the purpose of the reservation.
In Alaska Pac. Fisheries v. United States, 248 U.S. 78(1918), the Supreme Court inferred a fishing right from the
1891 Act. At issue was the scope of that right. The panel
concluded that a central purpose of the reservation,
understood in light of the history of the Community, was
that the Metlakatlans would continue to support themselves
by fishing. The panel therefore held that the 1891 Act
preserved for the Community and its members an implied
right to non-exclusive off-reservation fishing for personal
consumption and ceremonial purposes, as well as for
commercial purposes.
The panel reversed the decision of the district court and
remanded to allow further proceedings to determine
whether the Community’s traditional off-reservation fishing
grounds included the waters within Alaska’s Districts 1 and
2.
COUNSEL
Julie A. Weis (argued), Christopher G. Lundberg, and
Christopher T. Griffith, Haglund Kelley LLP, Portland,
Oregon, for Plaintiff-Appellant.
Laura E. Wolff (argued) and Christopher F. Orman,
Assistant Attorneys General; Treg R. Taylor, Attorney
General, Office of the Alaska Attorney General, Anchorage,
Alaska; for Defendants-Appellees.
4 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
ORDER
The opinion filed on September 8, 2022, and published
at 48 F.4th 963, is hereby amended and replaced by the
amended opinion filed concurrently with this order.
With this amendment, Judges W. Fletcher, Rawlinson,
and Owens have voted to deny the petition for panel
rehearing. Judges Rawlinson and Owens have voted to
deny the petition for rehearing en banc, and Judge W.
Fletcher so recommends.
The full court has been advised of the petition, and no
judge of the court has requested a vote on the petition for
rehearing en banc. Fed. R. App. P. 35.
Appellees’ petition for panel and en banc rehearing
(Dkt. No. 40) is DENIED. No further petitions for
rehearing or rehearing en banc will be entertained.
OPINION
W. FLETCHER, Circuit Judge:
Since time immemorial, members of the Metlakatlan
Indian Community (“the Community”) and their Tsimshian
ancestors have inhabited the coast of the Pacific Northwest
and fished in its waters. In 1887, at the invitation of
President Grover Cleveland, the Community relocated from
British Columbia, Canada, to the Annette Islands in what
was then the United States Territory of Alaska. In 1891,
Congress passed a statute (the “1891 Act”) recognizing the
Community and establishing the Annette Islands Reserve
as its reservation.
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 5
In 1916, President Woodrow Wilson proclaimed that
the Metlakatlans’ reservation extends 3,000 feet from the
shoreline of the Annette Islands, and that the Metlakatlans
have an exclusive right to fish within the reservation
boundaries (the “Proclamation”). After the Proclamation,
the Metlakatlans continued to fish, as they always had, both
in the waters immediately surrounding the islands and in
waters far from the islands’ shores. In subsequent years,
courts, federal agencies, and the Territory of Alaska
acknowledged with approval that the Metlakatlans fished in
their traditional off-reservation waters.
In 1972, Alaska amended its constitution to authorize
the State to restrict the entry of new participants into
commercial fisheries in state waters. Pursuant to the
amendment, Alaska enacted a statute creating a limited
entry program for commercial fishing. In 2020, in response
to Alaska’s attempt to subject the Metlakatlans to its
limited entry program, the Community sued Alaskan
officials in federal district court. The Community
contended that the 1891 Act grants to the Community and
its members the right to fish in the off-reservation waters
where Community members have traditionally fished. The
district court disagreed, holding that the Act provides no
such right.
We reverse. We hold that the 1891 Act grants to the
Community and its members a non-exclusive right to fish
in the off-reservation waters where they have traditionally
fished.
I. Historical Background
Community members are descendants of the Tsimshian
people indigenous to the Pacific Northwest. Tsimshian
fishermen long followed the fish runs along the coast and in
6 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
the rivers of what is now British Columbia, establishing
temporary villages to obtain fish for subsistence, use in
cultural practices, and trade. Marjorie M. Halpin &
Margaret Seguin, Tsimshian Peoples: Southern Tsimshian,
Coast Tsimshian, Nishga, and Gitksan, in 7 Handbook of
North American Indians 267, 268–71, 281 (Wayne Suttles
& William Sturtevant eds., 1990). Historical sources
indicate that they fished as far north as 50 miles from the
Annette Islands in what is now the State of Alaska.
In 1862, a group of Tsimshians joined a lay Anglican
missionary, “Father Duncan,” in establishing a coastal
community at Metlakatla, British Columbia. See Andrew
Martindale et al., Bending but Unbroken: The Nine Tribes
of the Northern Tsimshian Through the Colonial Era, in
Power, Political Economy, and Historical Landscapes of
the Modern World 251, 270 (Christopher R. DeCorse ed.,
2019); Halpin & Seguin, supra, at 281. The name
Metlakatla—a Tsimshian word that means “place beside
calm water”—reflects a relationship with rivers and the sea
that, for Tsimshian peoples, centers on fishing as the
“bedrock of the Tsimshian culture and way of life.”
Professor Brian Hosmer observed:
[Tsimshian cultural stories] reveal[] a great
deal about the way Tsimshians understand
their world. Away from human beings,
salmon live as people, in villages, with
chiefs, organizing their lives around the
annual runs, which appeared to them as
cottonwood leaves. It is only when the
humans and salmon are in contact that
salmon “people” take on their familiar form.
Their relationship is reciprocal. Salmon
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 7
runs would continue only so long as humans
remain faithful to rituals . . .
Brian C. Hosmer, American Indians in the Marketplace:
Persistence and Innovation Among the Menominees and
Metlakatlans, 1870-1920 115 (1999).
The Tsimshians who gathered at Metlakatla began a
communal commercial fishing enterprise. Id. at 149. In
1884, the Community established a fish cannery. The
cannery turned out 8,300 cases of canned fish in its first
year of operation. Id. at 183.
In the 1880s, Canada began to impose a reserve system
throughout Tsimshian territory, dividing tribal land into
allotments to be distributed to individual tribal families.
Martindale, supra, at 274. In 1883 and 1884, Canada
placed Metlakatla under the ambit of its Indian Act and
appointed an agent to oversee community affairs. Hosmer,
supra, at 191. At the same time, non-Indian fishermen and
canneries began to compete with the Metlakatlans. See id.
at 193. Before the Canadian provincial court, the
Metlakatlans advocated for recognition of their aboriginal
territorial rights and their attendant resource rights. See id.
at 198; Peter Murray, The Devil and Mr. Duncan: A
History of the Two Metlakatlas 184–87 (1985). After the
provincial Supreme Court denied the Metlakatlans such
recognition, Metlakatla’s tribal council authorized Father
Duncan to travel to Washington, D.C., to attempt to secure
land for the Metlakatlans in the Territory of Alaska.
Hosmer, supra, at 198; Murray, supra, at 190.
In March 1887, a group of five Metlakatlans traveled to
the Territory of Alaska in search of a new home. Susan
Neylan, “Choose Your Flag”: Perspectives on the
8 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
Tsimshian Migration from Metlakatla, British Columbia, to
New Metlakatla, Alaska, 1887, in New Histories for Old:
Changing Perspectives on Canada’s Native Pasts 196, 198
(Theodore Binnema & Susan Neylan eds., 2007). The
group chose the nearby Annette Islands because of the
islands’ easy access to waters with abundant fish. 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.”);
Neylan, supra, at 211; Brief for Appellant at 11, Metlakatla
Indian Cmty., Annette Islands Rsrv. v. Egan, 363 U.S. 555(1960) (No. 326) (“[The Metlakatlans] specifically selected
the Annette Islands because of their fishing potential.”). At
the invitation of President Cleveland, the remainder of the
823 Metlakatlans followed on August 7, 1887. 21 Cong.
Rec. 10092 (1890); Neylan, supra, at 199; Hosmer, supra,
at 200; Nat’l Surv. of Hist. Sites & Bldgs., U.S. Dep’t of
the Interior & Nat’l Park Serv., Alaska History: 1741-1910,
at 127, 209 (1961). Years later, reflecting on the migration,
Metlakatlan Rod Davis recounted,
When we landed in . . . Alaska, now, at the
time it was a nice beautiful day. How well I
remember that day; it was bright and sunny,
and there was a lot of fish. We camped at
one of the creeks on Saturday night . . . and
in those days that creek was just loaded with
salmon, pink salmon. There must have been
millions of them in that creek. How well I
remember.
Neylan, supra, at 211.
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 9
After moving to the Annette Islands, the Metlakatlans
continued to fish throughout the waters of Southeast
Alaska. See Hosmer, supra, at 200–01. In 1891, four years
after the Metlakatlans moved to the islands, Congress
passed the 1891 Act, recognizing the Metlakatlan Indian
Community and establishing the Annette Islands as the
Community’s reservation. The Act, later codified as
amended at 25 U.S.C. § 495, provided:
That until otherwise provided by law the
body of lands known as Annette Islands,
situated in Alexander Archipelago in
Southeastern Alaska, on the north side of
Dixon’s entrance, be . . . set apart as a
reservation for the use of the Metlakahtla
[sic] Indians, and those people known as
Metlakahtlans [sic] who have recently
emigrated from British Columbia to Alaska,
and such other Alaskan natives as may join
them, to be held and used by them in
common, under such rules and regulations,
and subject to such restrictions, as may [be]
prescribed from time to time by the
Secretary of the Interior.
Act of Mar. 3, 1891, ch. 561, § 15, 26 Stat. 1101 (1891).
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 miles away. Hosmer, supra, at 203, 205.
Reports by federal agencies and federal officials
documented Metlakatlans fishing up to 50 miles from the
reservation. Jefferson F. Moser, U.S. Comm’n of Fish &
10 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
Fisheries, The Salmon and Salmon Fisheries of Alaska:
Report of the Operations of the United States Fish
Commission Steamer Albatross for the Year Ending June
30, 1898, at 63, 68 (1899) (identifying sites at Quadra Bay
and Moira Sound); Jefferson Moser, U.S. Comm’n of Fish
& Fisheries, The Salmon and Salmon Fisheries of Alaska:
Report of the Alaskan Salmon Investigations of the United
States Fish Commission Steamer Albatross in 1900 and
1901, at 298 (1902) (identifying sites at Home Stream,
Tamgas, Quadra Bay, Karta Bay, Kithraum, Peter Johnson,
Nowiskay, Old Johnson, Kegan, and Kagahine); George R.
Tingle, Inspector of Salmon Fisheries, Special Agent Div.,
U.S. Treasury Dep’t, Report on the Salmon Fisheries in
Alaska, 1896, at 5, 21 (1897) (identifying sites at Naha
Bay, Karta Bay, and Kah Shakes Cove); see Hosmer,
supra, at 203 (concluding that these practices “provid[e]
convincing evidence that they did not equate immigration
with a relinquishing of their aboriginal resource rights”).
Father Duncan’s letters corroborate these reports,
documenting Metlakatlan fishing throughout the southern
Alaska panhandle. Hosmer, supra, at 205.
Fishing at these off-reservation locations supplied a
cannery that Metlakatlans established on the reservation in
1891. This cannery replaced the cannery they had
established at Metlakatla, British Columbia, before they
moved to the Annette Islands. Moser, 1900 and 1901,
supra, at 297–98; Hosmer, supra, at 201–02. By 1900, the
cannery had annual output of more than 17,000 cases of
cans. Moser, 1900 and 1901, supra, at 298. By 1912, total
production reached nearly 300,000 cases. Hosmer, supra,
at 201. Metlakatlans also continued to rely on fish for
cultural practices, including feasts for observances of birth,
marriage, death, and other important life transitions
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 11
entailing consuming, giving, and exchanging fish.
According to Professor Hosmer, the Metlakatlans
“successfully picked up and relocated, hardly missing a
beat.” Id. at 204.
In 1915, the Secretary of the Interior promulgated
regulations establishing an elected Community council with
authority to enact local ordinances for the reservation, and
allowing Community members to obtain federal permits for
the use of salmon traps in waters adjacent to the Annette
Islands. See Metlakatla Indian Cmty., Annette Islands
Rsrv. v. Egan, 369 U.S. 45, 48 (1962).
In 1916, President Wilson proclaimed that the waters
3,000 feet from the shoreline of the Annette Islands were
reserved for the exclusive use of the Metlakatlans. The
Proclamation provides:
Now, therefore, I, Woodrow Wilson,
President of the United States of America,
by virtue of the power in me vested by the
laws of the United States, do hereby make
known and proclaim that the waters within
three thousand feet from the shore lines at
mean low tide of Annette Island, Ham
Island, Walker Island, Lewis Island, Spire
Island, Hemlock Island, and adjacent rocks
and islets, located within the area segregated
by the broken line upon the diagram hereto
attached and made a part of this
proclamation; also the bays of said islands,
rocks, and islets, are hereby reserved for the
benefit of the Metlakahtlans [sic] and such
other Alaskan natives as have joined them or
may join them in residence on these islands,
12 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
to be used by them under the general
fisheries laws and regulations of the United
States as administered by the Secretary of
Commerce.
Proclamation No. 1332, 39 Stat. 1777–78 (Apr. 28, 1916).
The Department of the Interior promulgated the
Proclamation as a regulation at 25 C.F.R. § 241.2. The
Community’s cannery operations were thereafter organized
under the aegis of the Annette Island Packing Company.
See Territory v. Annette Island Packing Co., 6 Alaska 585(D. Alaska 1922), aff’d, 289 F. 671 (9th Cir. 1923), cert.
denied, 263 U.S. 708 (1923).
In 1916, shortly before President Wilson issued the
Proclamation, non-Indians had placed a fish trap 600 feet
off the shore of the reservation. The United States brought
suit in the district court for the Territory of Alaska, seeking
an injunction that would require removal of the trap. The
court granted the injunction. It wrote:
In passing [the 1891 Act], Congress must be
held to have known (what every one else
knew) that the Indians of Alaska are fisher
folk and hunters and trappers, and largely, if
not entirely, dependent for their livelihood
upon the yield of such vocations. It must be
held to have known that without the food
yield of the sea these Indians could not
survive, for the Annette Islands would not of
themselves, “as land,” afford a subsistence
for a community of souls; there being little
or no agricultural land on the islands, or for
that matter in all Southeastern Alaska.
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 13
United States v. Alaska Pac. Fisheries, 5 Alaska 484, 486–
87 (D. Alaska 1916).
The Supreme Court affirmed. In Alaska Pacific
Fisheries, 248 U.S. at 89, the Court held that the 1891 Act
establishing the reservation granted an exclusive right to
Metlakatlans to fish in the “fishing grounds” “adjacent” to
the Annette Islands. The Court wrote:
After their settlement and before the
reservation was created, the Indians . . .
adopted a form of self-government suited to
their needs . . . and constructed and installed
an extensive establishment where they
canned salmon for the market. The purpose
of creating the reservation was to encourage,
assist and protect the Indians in their effort
to train themselves to habits of industry
[and] become self-sustaining . . . . Evidently
Congress intended to conform its action to
their situation and needs.
Id. at 88–89. In affirming the injunction requiring the
removal of the non-Indians’ fish trap, the Supreme Court
relied only on the 1891 Act. It did not rely on, or even
mention, the 3,000-foot boundary established by President
Wilson’s 1916 Proclamation. See also Egan, 369 U.S. at
49 (“In 1918, without reference to the proclamation, this
Court upheld the right of the Metlakatlans to exclude others
from the waters surrounding their islands on the ground
that these waters were included within the original
reservation by Congress.” (citing Alaska Pacfic Fisheries
v. United States, 248 U.S. 78)).
14 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
After the Supreme Court’s decision in Alaska Pacific
Fisheries, Metlakatlans continued to fish in the off-
reservation waters where they had always fished. An
internal Department of the Interior report in 1920 recounted
that “Metlakatla natives did, as they have from time
immemorial, go beyond the [reservation’s] limit[s] to seine
fish.” The Territory of Alaska acknowledged the
geographical extent of the Metlakatlans’ traditional fishing
grounds in a tax dispute arising out of the Community’s
commercial fishing. In its answer to the Secretary of the
Interior’s complaint-in-intervention, Alaska wrote:
[T]he right of the inhabitants of said Annette
Island[s] reserve to catch fish outside of the
reserve . . . has always been and is now
recognized by the [Secretary of the Interior]
and by the Government of the United States,
and such right is and at all times has been
claimed by the said Metlakatla people.
Answer to Complaint in Intervention, at 5, Territory v.
Annette Island Packing Co., 6 Alaska 585 (No. 2023-A).
In deciding the tax dispute, the territorial court noted that
fish for the Metlakatlan cannery were “secured from any
waters” and that, in 1919, the cannery had processed
“approximately 130,000 salmon caught by Indian residents
of Metlakahtla [sic] outside of the Annette Indian reserve
and its reserved waters.” Annette Island Packing Co., 6
Alaska at 592 (agreed statement of facts).
Congress granted statehood to Alaska in 1958. Pub. L.
No. 85-508, § 6(e), 72 Stat. 339, 340 (1958). In 1972,
Alaskans adopted a constitutional amendment that
authorized the State to limit the entry of new participants
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 15
into commercial fisheries in Alaskan waters. Alaska Const.
art. VIII, § 15. In 1973, pursuant to that amendment,
Alaska instituted a “limited entry” program to regulate
commercial fishing. Alaska Stat. § 16.43.010.
In recent years, changing conditions have threatened
fish stocks available to the Community. Community
members primarily fish for salmon. Migratory fish such as
salmon are subject to changes in their migratory routes in
response to environmental conditions, including climate
change. Non-Indian commercial fishing practices in the
State-managed fishing areas surrounding the Community’s
exclusive zone have put a substantial strain on Community
fish yields. State-managed fisheries sometimes intercept
salmon before they return to the Community’s exclusive
zone. Community members also fish for herring. The
Community has adopted a management strategy that has
increased the exclusive zone’s herring biomass to more
than 20,000 tons—one of the largest herring stocks in
Southeast Alaska. However, when herring leave the
exclusive zone, Alaska’s limited entry program restricts
access to the herring by Community members.
II. Proceedings Below
On August 7, 2020, the Community sued Alaskan
officials in federal district court, alleging that Alaska’s
limited entry program illegally restricts Community
members’ right to fish outside the reservation boundaries.
The Community’s complaint seeks (1) a declaration that
“Congress’ reservation of the Annette Islands Reserve for
the Metlakatla Indian Community included the non-
exclusive right to fish in waters adjacent to the Reserve
currently designated as Districts 1 and 2, free from
unreasonable interference by the defendants, and that such
16 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
right has not been revoked or diminished”; and (2) “a
permanent injunction barring the defendants from asserting
jurisdiction over the Community and its members
inconsistent with the Community’s reserved fishing rights,
and from otherwise unreasonably interfering with the
Community’s reserved fishing rights.”
Defendants moved to dismiss the complaint for failure
to state a claim under Rule 12(b)(6). The Community
opposed the motion and requested oral argument. The
district court denied the request for oral argument and
granted the motion to dismiss. The court determined that
the Community failed to state a claim for relief because, in
the view of the court, the 1891 Act did not reserve off-
reservation fishing rights for the Community and its
members.
The Community timely appealed. For the reasons that
follow, we reverse.
III. Standard of Review
We review de novo a dismissal for failure to state a
claim under Rule 12(b)(6). United States v. Washington,
853 F.3d 946, 961 (9th Cir. 2017). We review de novo
questions of statutory interpretation. Confederated Tribes
of Chehalis Indian Rsrv. v. State of Washington, 96 F.3d
334, 340 (9th Cir. 1996). We review for abuse of
discretion a decision to grant or deny permanent injunctive
relief, but we review de novo the underlying legal
conclusions on which the district court based its decision.
United States v. Oregon, 470 F.3d 809, 810 n.2 (9th Cir.
2006).
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 17
IV. Discussion
A. Indian Canon of Construction
Statutes that touch upon federal Indian law “are to be
construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.” Swinomish Indian
Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142, 1156 (9th
Cir. 2020) (quoting Montana v. Blackfeet Tribe of Indians,
471 U.S. 759, 766 (1985)); Chehalis, 96 F.3d at 340
(“Courts have uniformly held that treaties, statutes[,] and
executive orders must be liberally construed in favor of
establishing Indian rights.”). Statutes that create
reservations, like treaties and executive orders, “are
interpreted as the Indians would have understood them.”
Chehalis, 96 F.3d at 342 (citing Parravano v. Babbitt, 70
F.3d 539, 544 (9th Cir. 1995), cert. denied, 518 U.S. 1016(1996)); Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d
1251, 1257 n.6 (9th Cir. 1983), cert. denied, 465 U.S. 1049(1984) (“This principle of treaty construction applies with
equal force to statutes passed for the benefit of Indians and
to executive orders.” (citations omitted)). A right will be
inferred when that right supports a purpose for which a
reservation was established. Winters v. United States, 207
U.S. 564, 576–77 (1908). Because the purposes of
reservations are often unarticulated in a statute, treaty, or
executive order, we consider “the circumstances
surrounding their creation[] and the history of the Indians
for whom they were created.” Chehalis, 96 F.3d at 342
(citing Colville Confederated Tribes v. Walton, 647 F.2d
42, 47 (9th Cir. 1981)), cert. denied, 454 U.S. 1092 (1981).
“We also consider their need to maintain themselves under
changed circumstances.” Colville, 647 F.2d at 47. These
interpretive principles “are rooted in the unique trust
relationship between the United States and the Indians.”
18 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
Oneida Cnty. v. Oneida Indian Nation of New York State,
470 U.S. 226, 247 (1985).
B. Implied Off-Reservation Rights
The Indian canon requires us to infer rights that support
a reservation’s purpose. The seminal case is Winters v.
United States, in which the Court found implied water
rights that supported the purpose of the Fort Belknap
Reservation. 207 U.S. at 576–77. The reservation had
been created by an agreement between the United States
and the Gros Ventre and Assiniboine Tribes. Id. at 565.
The purpose of the reservation was to encourage the Tribes
to give up their “nomadic” way of life and to become
farmers. Id. at 576. No provision was made in the
agreement for water to irrigate the arid land on the
reservation. The Court chose “between two inferences[—
]one of which would support the purpose of the agreement
and the other impair or defeat it.” Id. at 577 (emphasis
added). The Court chose the former inference on the
ground that the agreement creating the reservation should
be construed to imply a right to water for irrigation in order
not to “defeat the declared purpose” of the agreement. Id.In Arizona v. California, 373 U.S. 546 (1963), the
Court inferred a right to irrigation water from the Colorado
River for five Indian reservations. One of the reservations
had been created by statute; the other four had been created
by executive order. Id. at 596. Citing Winters, the Court
held that all five reservations had implied rights to water
for irrigation. Id. at 599–600. The Court affirmed the
Special Master, who had concluded “that the water was
intended to satisfy the future as well as the present needs of
the Indian Reservations and ruled that enough water was
reserved to irrigate all of the practicably irrigable acreage
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 19
on the reservations.” Id. (emphasis added); see also United
States v. New Mexico, 438 U.S. 696, 702 (1978) (“Where
water is necessary to fulfill the very purposes for which a
federal reservation was created, it is reasonable to
conclude, even in the face of Congress’ express deference
to state water law in other areas, that the United States
intended to reserve the necessary water.”).
We have applied the Winters implied-rights rule in
several cases in this circuit. In Colville, 647 F.2d at 45, an
agreement between the United States and the tribes
established a reservation in eastern Washington. We
construed the purposes of the reservation broadly: “The
specific purposes of an Indian reservation . . . were often
unarticulated. The general purpose, to provide a home for
the Indians, is a broad one and must be liberally construed.”
Id. at 47 (footnotes omitted). We wrote: “Congress
intended to deal fairly with the Indians by reserving waters
without which their lands would be useless.” Id. We held
that there was an implied right not only to water for
irrigation, but also to water for streams for spawning trout.
We wrote:
Providing for a land-based agrarian society,
however, was not the only purpose for
creating the reservation. The Colvilles
traditionally fished for both salmon and
trout. Like other Pacific Northwest Indians,
fishing was of economic and religious
importance to them. . . . The Tribe’s
principal historic fishing grounds on the
Columbia River have been destroyed by
dams. The Indians have established
replacement fishing grounds in Omak Lake
20 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
by planting a non-indigenous trout. . . .
[P]reservation of the tribe’s access to fishing
grounds was one purpose for the creation of
the Colville reservation. Under the
circumstances, we find an implied
reservation of water . . . for the development
and maintenance of replacement fishing
grounds.
Id. at 48 (citations omitted).
In United States v. Adair, 723 F.2d 1394, 1397–98 (9th
Cir. 1983), a treaty established a reservation for the
Klamath Tribe in eastern Oregon. The treaty promised that
the Tribe would have the right to “hunt, fish, and gather on
their reservation,” id. at 1398, but did not mention any right
to water. A purpose of the reservation was to “secure to the
Tribe a continuation of its traditional hunting and fishing”
way of life. Id. at 1409. Because game and fish on the
reservation depended on a continuous flow of water from
the Williamson River, we held that there was an implied
right under the treaty to an amount of river water that
would ensure an adequate amount of game and fish for the
Tribe. Id. at 1411; see also Washington, 853 F.3d at 965
(“[E]ven if Governor Stevens had made no explicit
promise, we would infer . . . a promise to ‘support the
purpose’ of the Treaties. . . . [T]he Tribes’ right of access to
their usual and accustomed fishing places would be
worthless without harvestable fish.”).
Our sister circuit endorsed the application of the
Winters framework to the context of off-reservation fishing
rights in United States v. Michigan, 653 F.2d 277 (6th Cir.
1981). The Sixth Circuit affirmed the district court’s
holding that a treaty reserved for the Sault Ste. Marie Tribe
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 21
of Chippewa Indians of Michigan and Bay Mills Indian
Community implied non-exclusive fishing rights in certain
areas of the Great Lakes. United States v. Michigan, 471 F.
Supp. 192, 253, 258 (W.D. Mich. 1979), aff’d, 653 F.2d
277. The district court concluded that the historical
evidence “demonstrat[ed] that the Indians were absolutely
dependent upon fishing for subsistence and their
livelihood” such that “they would not have relinquished
their right to fish in the ceded waters of the Great Lakes.”
Id. at 253. Applying Winters, the district court held that the
treaty “impliedly reserved a right to fish commercially and
for subsistence” in those areas of the Great Lakes because
(1) the treaty lacked “language expressly relinquishing the
aboriginal right of the . . . Indians to fish in the . . . waters”;
(2) at the time of the treaty, “commercial fishing was
essential to the livelihood of these Indians and for them to
have relinquished fishing rights would have been
tantamount to agreeing to a systematic annihilation of their
culture, and perhaps of their very existence”; (3) the tribes
and the federal government “were aware that the Indians
had no way of sustaining themselves in Michigan except by
fishing”; and (4) “the Indians did not understand the treaty
to limit their right to fish.” Id. at 257–58.
C. The Community’s Off-Reservation Fishing Right
The question before us is not the existence of implied
fishing rights of the Community. In Alaska Pacific
Fisheries, 248 U.S. at 88–89, the Supreme Court answered
this threshold question when it inferred a fishing right from
the 1891 Act, relying on that right to affirm an injunction
against a non-Indian fish trap 600 feet from the shore of the
Community’s reservation. We thus know from Alaska
Pacific Fisheries that there is an implied fishing right
stemming from the 1891 Act. The question before us is the
22 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
scope of that right. A central purpose of the reservation,
understood in light of the history of the Community,
provides the answer.
As described above, since time immemorial
Metlakatlans have fished outside the boundaries of their
current reservation. Before the arrival of European settlers,
they fished throughout the waters of Southeast Alaska for
ceremonial purposes, for personal consumption, and for
trade. Shortly before they came to the Annette Islands,
Metlakatlans established a commercial fish cannery to
adapt their mode of trade to modern conditions. When
Metlakatlans moved to the islands in the late 1880s at the
invitation of President Cleveland, they did so with the
understanding that they would be able to support
themselves by fishing, as they had always done. Indeed,
soon after moving to the reservation, the Community set up
a new cannery—supplied by off-reservation fishing—and
quickly increased production in the following years. When
Congress passed the 1891 Act establishing the
Metlakatlans’ reservation, it did so with the expectation
that the Metlakatlans would continue to support themselves
by fishing. Id. at 89 (“The purpose of creating the
reservation was to encourage, assist[,] and protect the
Indians in their effort to . . . become self-sustaining . . . .
Without [fishing rights] the [Community] could not
prosper.”). That is, Congress passed the Act with the
expectation not only that Metlakatlans would catch fish for
ceremonial purposes and personal consumption, but that
they would also pursue the commercial fishery that had
provided, and continued to provide, essential economic
support for the Community. Congress clearly contemplated
that Metlakatlans would continue to fish off-reservation
toward those ends. Congress also expected fishing to
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 23
support the Community not only at the time the reservation
was created, but in the future. In the words of the Supreme
Court in Arizona v. California, fishing “was intended to
satisfy the future as well as the present needs” of the
Community. 373 U.S. at 600; see also Alaska Pac.
Fisheries, 248 U.S. at 89 (“Congress intended to conform
its action to their situation and needs.”).
We therefore hold that the 1891 Act preserved for the
Community and its members an implied right to non-
exclusive off-reservation fishing in the traditional fishing
grounds for personal consumption and ceremonial
purposes, as well as for commercial purposes. Because this
case comes to us on appeal from a ruling on a Rule 12(b)(6)
motion, we remand to the district court to allow further
proceedings to determine whether the Community’s
traditional off-reservation fishing grounds included the
waters within Alaska’s Districts 1 and 2.
D. Arguments Made by Alaska
Alaska argues that distinguishing features of the
Community’s reservation require us to analyze the
Metlakatlans’ right differently from the rights of members
of other tribes. Alaska presented a substantially similar
argument to the Supreme Court over sixty years ago in
Egan. There, Alaska argued: “The nature of the
Metlakatlan ‘reservation’ cannot be too strongly
emphasized. It is not, and has never been treated as what is
normally termed an Indian reservation. . . . It is only
necessary to . . . apply relevant legal theory—not theories
which may be applicable to Indian reservations elsewhere,
set up under different terms, and given different historical
treatment.” Brief for Appellees at 44–45, Metlakatla
Indian Cmty. v. Egan, 369 U.S. 45 (1961) (No. 2). The
24 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
Court declined to ascribe analytical significance to the
different set of circumstances surrounding the creation of
the Community’s reservation, and so do we.
Here, Alaska first asks us to distinguish between
statutes and executive orders, contending that an implied
right should not be found in a statute, such as the 1891 Act,
whose text is “utterly silent” about such a right. The
distinction Alaska asks us to draw does not exist in the case
law. As Professor Phil Frickey observed:
[M]any federal Indian law decisions,
especially those dealing with developments
since the mid-nineteenth century, turn not on
treaty language, but on the text of seemingly
more mundane instruments of law, such as
statutes, executive orders, and federal
regulations. For example, millions of acres
of Indian lands are located on reservations
established by executive order. This
difference in form should not, however,
substantially alter judicial methodology.
Some of these non-treaty enactments
embody agreements with tribes that would
have been handled by treaty in former eras.
Many of the rest embody unilateral
alterations of prior treaties. In any event,
because all are constitutive in nature—all
adjust a sovereign-to-sovereign, structural
relationship based on Chief Justice
Marshall’s understanding of the earliest
colonial practices prior to the negotiation of
any treaty—the canon should apply to them,
too. Consistent with this notion, the Court
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 25
has drawn no fundamental interpretive
distinction between reservations established
by statute or executive order and those
protected by treaty.
Philip P. Frickey, Marshalling Past and Present:
Colonialism, Constitutionalism, and Interpretation in
Federal Indian Law, 107 Harv. L. Rev. 381, 421–22 (1993)
(footnotes omitted); see also James T. Campbell,
Aurelius’s Article III Revisionism: Reimagining Judicial
Engagement with the Insular Cases and “The Law of the
Territories”, 131 Yale L. J. 2542, 2637 (2022) (“The Court
has declined to distinguish between treaty and nontreaty
agreements with the federal government, subjecting both to
interpretive rules that are designed to vindicate those
promises . . . . That interpretive approach flows from a
meaningful interrogation of historical practice . . . .”
(footnotes omitted)).
The case law reflects this principle. The Court in
Arizona v. California dealt with implied rights to water for
tribes on five reservations. 373 U.S. at 596. One of the
reservations was created by statute; the others were created
by executive order. The Court drew no distinction between
the two types of legal instruments. See id. at 598–600. In
Puyallup Indian Tribe, 717 F.2d at 1257 n.6, we wrote that
the Indian canon, while often applied to treaties as a matter
of historical coincidence, also “applies with equal force to
statutes passed for the benefit of Indians and to executive
orders.” Later, in Parravano, 70 F.3d at 544, we wrote that
“[t]he rule of construction applicable to executive orders
creating Indian reservations is the same as that governing
the interpretation of Indian treaties.” And in Chehalis, 96
26 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
F.3d at 340, we recognized that the Indian canon applies
“uniformly” to “treaties, statutes[,] and executive orders.”
The type of legal instrument that establishes a
reservation thus makes no difference to our inquiry into a
tribe’s attendant resource rights. Because the Indian canon
is rooted in the trust relationship between the federal
government and Indian tribes, see Oneida Indian Nation,
470 U.S. at 247, and because federal recognition of an
Indian tribe institutionalizes that relationship, see Cohen’s
Handbook of Federal Indian Law § 3.02[3] (Nell Jessup
Newton ed., 2017), it does not matter which type of
document provides such recognition or establishes a
reservation. See also Seminole Nation v. United States, 316
U.S. 286, 296–97 (1942).
Second, Alaska argues that the Community is
foreclosed from claiming an implied right to off-reservation
fishing because Metlakatlans “had no aboriginal claims to
preserve.” However, as discussed above, Metlakatlans and
their Tsimshian ancestors asserted and exercised a right to
fish in these waters since time immemorial. In passing the
1891 Act, Congress “confirmed the continued existence of
th[is] right[].” Adair, 723 F.2d at 1414.
Third, Alaska asks us to distinguish between the
Community and tribes that were forced off of all or part of
their original lands, where those tribes gave up their
original lands in exchange for explicit and/or implicit
appurtenant off-reservation rights. In the view of Alaska,
because the United States provided the Annette Islands to
the Community as a gift rather than pursuant to an
exchange, the United States did not intend the 1891 Act to
provide any implicit off-reservation rights.
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 27
There is nothing in the case law indicating that implied
rights are only found in instances where there has been an
exchange. Indeed, it is difficult to characterize the creation
of many reservations as resulting from any sort of genuine
“exchange.” See Choctaw Nation v. Oklahoma, 397 U.S.
620, 631 (1970) (observing that these legal arrangements
were often “imposed upon [the Indians] and they had no
choice but to consent”); Hagen v. Utah, 510 U.S. 399, 422
n.1 (1994) (Blackmun, J., dissenting) (noting the “unequal
bargaining power when agreements were negotiated”). The
Supreme Court has recently emphasized, “[I]n order to
create a reservation it is not necessary that there should be a
formal cession or a formal act setting apart a particular
tract. It is enough that from what has been there results a
certain defined tract appropriated to certain purposes.”
McGirt v. Oklahoma, 140 S. Ct. 2452, 2475 (2020)
(alteration in original) (quoting Minnesota v. Hitchcock,
185 U.S. 373, 390 (1902)). As the Supreme Court wrote in
Egan, 369 U.S. at 52, “The words ‘set apart as a
reservation,’ appearing in the statute creating the Annette
Islands Reserve, are substantially the same as used in
numerous other statutory reservations.” The Court noted
that reservations secured by other legal instruments, such as
treaties, are “sometimes phrased in terms of a gift or
assignment rather than a reservation of land.” Id.Fourth, Alaska argues that the legislative history of the
1891 Act “demonstrates a lack of intent to convey off-
reservation fishing rights.” Alaska argues:
The Senate’s understanding of the
Metlakatlans’ history was “well-known.”
The Senate understood that Father Duncan
sought Congress’s “consent” to allow these
28 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY
immigrants to continue to live on the
Annette Islands. And Congress gave that
consent after considering that the
Metlakatlans had formed what senators
believed was a model Christian community.
. . . The congressional record says nothing
about fishing rights, much less some sort of
prioritized off-reservation fishing rights for
the Metlakatlans.
(emphases added). Neither the fact that the Metlakatlans
were “immigrants,” nor the fact that they had formed what
the Senators believed was a “model Christian community”
is relevant to the question whether Congress expected the
Metlakatlans to support themselves through off-reservation
fishing. The Metlakatlans did, in fact, immigrate to the
Annette Islands from British Columbia, but the Supreme
Court has told us that this is legally irrelevant. The Court
wrote in Alaska Pacific Fisheries: “True, the
Metlakahtlans [sic] were foreign born, but the action of
Congress has made that immaterial here.” 248 U.S. at 89.
Further, the Senate’s understanding of the religious beliefs
of Community members tells us nothing about the means
by which Congress expected them to support themselves.
E. Regulation
Alaska’s limited entry program, as currently
administered, is incompatible with the Metlakatlans’ off-
reservation fishing rights. Fishing had always been, and
continues to be, the heartbeat of the Community.
Congress’ intent in the 1891 Act was that the Metlakatlans
would have off-reservation fishing rights that would
“satisfy the future as well as the present needs” of the
Community. Arizona, 373 U.S. at 600. Any regulation by
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 29
Alaska of off-reservation fishing by the Community must
be consistent with such rights.
Conclusion
We hold that the 1891 Act reserves for the Metlakatlan
Indian Community an implied right to non-exclusive off-
reservation fishing in the areas where they have fished
since time immemorial and where they continued to fish in
1891 when their reservation was established. We reverse
the decision of the district court and remand for further
proceedings consistent with this opinion.
REVERSED and REMANDED.