Appeal from the United States District Courtfor the District of AlaskaH. Russel Holland, District Judge, PresidingArgued and SubmittedJuly 14, 1998--Anchorage, AlaskaFiled September 9, 1998.Before: Jerome Farris, Diarmuid F. O'Scannlain, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge O'Scannlain
_____________________________COUNSEL Laurence A. Aschenbrenner (argued), Heather R. Kendall-Miller, Martha L. King, Native American Rights Fund,Anchorage, Alaska, Carol E. Daniel, Anchorage, Alaska, Wil-liam Caldwell, Alaska Legal Services Corporation, Fairbanks,Alaska, for appellants Native Villages of Eyak, Tatitlek,Chanega, Nanwalek, Port Graham.David C. Schilton (argued), Lois J. Schiffer, Robert L. Klar-quist, Bruce M. Landon, U.S. Department of Justice, Wash-ington, D.C., for appellee William M. Daley, Secretary ofCommerce.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:In this case of first impression, we must consider AlaskanNative Village claims of aboriginal title, including exclusivehunting and fishing rights, to the outer continental shelf of theUnited States.IThe Alaskan Native Villages of Eyak, Tatitlek, Chanega,Port Graham, and Nanwalek (collectively, the "NativeVillages") appeal the district court's summary judgment infavor of the Secretary of the United States Department ofCommerce ("Secretary") in their action asserting unextin-guished aboriginal title to a portion of the outer continentalshelf ("OCS")1 of the United States. According to the NativeVillages, regulations promulgated by the Department of Com-merce for the management of halibut and sablefish fisheriesviolate their rights to the exclusive use and occupancy of theOCS.The Native Villages are located in the Prince WilliamSound, the Gulf of Alaska, and the lower Cook Inlet regionsof Alaska. They claim that, for more than 7,000 years, theirmembers have hunted sea mammals and harvested the fisheryresources of the OCS. The Native Villages maintain that amajority of their members still maintain a subsistence lifestyleheavily reliant on the fish and wildlife of the OCS, and thattheir continued social, cultural, and economic well-beingdepends on their continued ability to hunt and to fish in theirtraditional territories on the OCS. The Native Villages arguethat they are entitled to exclusive use and occupancy of theirrespective areas of the OCS, including exclusive hunting andfishing rights, based upon unextinguished aboriginal title.The Secretary of Commerce2 manages fisheries pursuant tothe Magnuson Fishery Conservation Management Act("Magnuson Act"), 16 U.S.C. SS 1801-1882. The MagnusonAct extended the sovereign control and jurisdiction of theUnited States to waters lying between 3 and 200 miles off thecoast of the United States by establishing an exclusive fisheryconservation zone and asserting "sovereign rights and exclu-sive fishery management authority over all fish and all Conti-nental Shelf fishery resources, within the exclusive economiczone." 16 U.S.C. S 1811. Pursuant to the Magnuson Act andthe Northern Pacific Halibut Act of 1982 ("Halibut Act"), 16U.S.C. SS 773-773k, the Secretary promulgated regulations in1993 limiting access to the sablefish and halibut fisheries inthe Gulf of Alaska and the lower Cook Inlet. See 50 C.F.R.S 676. The Native Villages challenge the Secretary's fishingregulations on the ground that they improperly authorize non-tribal members to fish within the Native Villages' exclusiveaboriginal territories while prohibiting Native Village mem-bers without Individual Fishing Quotas ("IFQ") 3 from doingthe same. The Native Villages have requested an injunctionagainst the Secretary's fishing regulations and a declarationthat they hold aboriginal title and exclusive aboriginal rightsto use, occupy, possess, hunt, fish, and exploit the waters, andto the mineral resources within their traditional use areas ofthe OCS.Both the Native Villages and the Secretary moved for sum-mary judgment before the district court. Granting the Secre-tary's motion and denying the Native Villages' motion, thedistrict court held: (1) that federal paramountcy precludesaboriginal title in the OCS and (2) that there is no exclusiveaboriginal right to fish in navigable waters based on aborigi-nal title outside of a treaty or federal statute. 4 The Native Vil-lages appeal.IIWe first consider whether the district court erred in con-cluding that the federal paramountcy doctrine bars the NativeVillages' aboriginal title claims to the OCS, including exclu-sive hunting and fishing rights.A[1] The "federal paramountcy doctrine" is derived, inessence, from four Supreme Court cases in which the federalgovernment and various coastal states disputed ownership andcontrol of the territorial sea and the adjacent portions of theOCS.The first of these cases was United States v. California, 332U.S. 19 (1947), in which the United States sued to enjoin theState of California from executing leases authorizing the tak-ing of petroleum, gas, and other mineral deposits from thePacific Ocean. The United States argued that it owned in feesimple, or possessed "paramount rights" in, the lands, miner-als, and "other things of value" underlying the ocean andsought a decree so declaring. Id. at 22. In response, Californiacontended that the area in question, which extended just threemiles into the ocean from the low-water mark off its coast,was within its boundaries. See id. California reasoned that,because the original thirteen states had acquired from theCrown of England title to all lands within their boundariesunder navigable waters (including a three-mile belt in adja-cent seas), and because California was admitted on an "equalfooting" with the original states, it also became vested withtitle to these submerged lands upon entry into the Union. Seeid. at 23.The issue before the Supreme Court, then, was "whetherthe state or the Federal Government has the paramount rightand power to determine in the first instance when, how, andby what agencies, foreign or domestic, the oil and otherresources of the soil of the marginal sea, known or hereafterdiscovered may be exploited." Id. at 29. Rejecting Califor-nia's argument, the Court concluded that the acquisition of thethree-mile belt, as well as its protection and control, has beenand is a function of "national external sovereignty." Id. at 34.The Court dismissed the idea that the "local interests" whichsupport a state's dominion over its land-locked navigablewaters in any way favor state control over any part of theocean. See id. Instead, the Court decided, it is the federal gov-ernment which "must have powers of dominion and regula-tion in the interest of its revenues, its health, and the securityof its people from wars waged on or too near its coasts." Id.at 35. Matters which occur in the open sea are questions forconsideration among nations, not among their separate gov-ernmental units, which, under our constitutional system, are"not equipped . . . with the powers or the facilities for exercis-ing the responsibilities" accompanying dominion over theocean. Id. Thus, the Court declared, "California is not theowner of the three-mile marginal belt along its coast." Id. at38. Instead, "the Federal Government rather than the state hasparamount rights in and power over that belt, an incident towhich is full dominion over the resources of the soil underthat water area, including oil." Id. at 38-39.Bolstered by the favorable outcome in California, theUnited States brought similar actions to confirm its title to theseabed adjacent to other coastal states. In United States v.Louisiana,
339 U.S. 699
(1950), the United States broughtsuit against the State of Louisiana, which argued that it heldtitle to the seabed under the waters extending twenty-sevenmiles into the Gulf of Mexico. According to Louisiana, beforeand since the time of its admission to the Union, it had exer-cised dominion over the area in question and by state statutehad even formally included the twenty-seven-mile belt withinits boundaries. See id. at 701. The Supreme Court disagreed.Finding California controlling, the Court held: Protection and control of the area are indeed func- tions of national external sovereignty. The marginal sea is a national, not a state concern. National inter- ests, national responsibilities, national concerns are involved. The problems of commerce, national defense, relations with other powers, war and peace focus there. National rights must therefore be para- mount in that area.Id. at 704 (citations omitted) (emphasis added).The Court found that the only difference between the argu-ment raised by Louisiana and the one raised by California wasthat Louisiana's claimed boundary extended twenty-fourmiles beyond California's three-mile claim. See id. at 705.This difference did not weigh in Louisiana's favor, however: If . . . the three-mile belt is in the domain of the Nation rather than that of the separate States, it fol- lows a fortiori that the ocean beyond that limit also is. The ocean seaward of the marginal belt is per- haps even more directly related to the national defense, the conduct of foreign affairs, and world commerce than is the marginal sea. Certainly it is not less so. So far as the issues presented here are concerned, Louisiana's enlargement of her boundary emphasizes the strength of the claim of the United States to this part of the ocean and the resources of the soil under that area, including oil.Id. at 705-06 (emphasis added).In the companion case to Louisiana, United States v. Texas,
339 U.S. 707
(1950), the Supreme Court again reaffirmed itsholding in California. The State of Texas had, by statute,extended its boundary first to a line twenty-four miles beyondthe three-mile limit, and thereafter to the outer edge of thecontinental shelf. See Texas,
339 U.S. at 720
. Texas raised asomewhat different argument than had either California orLouisiana, one more analogous to that asserted by the Vil-lages here. Texas argued that, because it was a separate repub-lic prior to its entry into the United States, it had bothdominium (ownership or proprietary rights) and imperium(governmental powers of regulation and control) with respectto the lands, minerals, and other products underlying the mar-ginal sea. See id. at 712. Upon entering the Union, Texastransferred to the federal government its powers of sover-eignty -- its imperium -- over the marginal sea, but retainedits dominium. See id. at 713.The Supreme Court was not persuaded. While the Republicof Texas may have had complete sovereignty and ownershipover the marginal sea and all things of value derived there-from, the State of Texas did not. See Texas,
339 U.S. at 717
."When Texas came into the Union, she ceased to be an inde-pendent nation. . . . The United States then took her place asrespects foreign commerce, the waging of war, the making oftreaties, defense of the shores, and the like." Id. at 717-718.As an incident to the transfer of that sovereignty, any "claimthat Texas may have had to the marginal sea was relinquishedto the United States." Id. at 718. The Court recognized that"dominion and imperium are normally separable andseparate"; however, in this instance, "property interests are sosubordinated to the rights of sovereignty as to followsovereignty." Id. at 719. The Court rejected the argument that"the sovereignty of the sea can be complete and unimpairedno matter if Texas owns the oil underlying it," concluding that"once low-water mark is passed the international domain isreached." Id. At that point, "[p]roperty rights must . . . be sosubordinated to political rights as in substance to coalesce andunite in the national sovereign." Id. The Court reasoned:"Today the controversy is over oil. Tomorrow it may be oversome other substance or mineral or perhaps the bed of theocean itself. If the property, whatever it may be, lies seawardof low-water mark, its use, disposition, management, and con-trol involve national interests and national responsibilities."Id. (emphasis added).In the last of the paramountcy cases, United States v.Maine,
420 U.S. 515
(1975), the United States brought anaction against the thirteen Atlantic Coastal States assertingthat the federal government was entitled to exercise sovereignrights over the seabed and subsoil underlying the AtlanticOcean to the exclusion of the coastal states for the purpose ofexploring the area and exploiting its natural resources. See id.at 516-517. The area in dispute included the ocean lying morethan three miles seaward from the ordinary low-water markand from the outer limit of inland waters on the coast extend-ing seaward to the outer edge of the continental shelf. Thecoastal states, with the exception of Florida, claimed that, assuccessors in title to certain grantees of the Crown of England(or the Crown of Holland, in New York's case), they wereentitled to the exclusive right of dominion and control overthe seabed underlying the Atlantic Ocean seaward from itscoastline to the limits of the jurisdiction of the United States.See id. at 517-518. The coastal states maintained that "theyacquired dominion over the offshore seabed prior to the adop-tion of the Constitution and at no time relinquished it to theUnited States." Id. at 519.At the urging of the coastal states, the Supreme Court reex-amined the decisions in California, Louisiana, and Texas. Tothe states' dismay, the Court concluded that these casesremained grounded on sound constitutional principles. See id.at 524. Whatever interest the states may have held in the seaprior to statehood, the Court held, as a matter of "purely legalprinciple . . . the Constitution . . . allotted to the federal gov-ernment jurisdiction over foreign commerce, foreign affairs,and national defense and . . . it necessarily follows, as a matterof constitutional law, that as attributes of these external sover-eign powers the federal government has paramount rights inthe marginal sea." Id. at 522-523 (citation and internal quota-tion marks omitted). The fact that the original thirteen statesexisted prior to the formulation of the Union again proved tobe of no constitutional importance. See id. at 523 (citingTexas,
339 U.S. at 717
). Accordingly, judgment was enteredin favor of the United States. See id. at 528.5nental Shelf Lands Act of 1953, which the Court noted was a congressio-nal reaffirmation of federal control over the OCS extending seaward of thethree-mile limit. See id. at 524-528.BWe turn now to the specific issue presented here: whetherthe federal paramountcy doctrine serves to bar not only stateclaims to the OCS, but also claims made by persons and enti-ties indigenous to these lands, in this case, the Native Vil-lages.1[2] The district court reasoned that, if the states have noproperty rights in the OCS via the paramountcy doctrine, afortiori, it cannot be otherwise for a tribal entity which, evenif possessed of sovereign rights, is dependent upon the UnitedStates in the same manner as a state with regard to, inter alia,national defense, foreign affairs, and world commerce. Eventhough Indian tribes existed and governed North Americabefore the United States came into existence, the same is trueof the original states. Nevertheless, this did not prevent theSupreme Court from deciding that the states had no propertyor sovereign claims to the OCS. The district court thus foundthe claims of the Native Villages to be inconsistent with thesovereignty of the federal government in the OCS asexpressed in the paramountcy cases.The Native Villages argue that the district court erred in soconcluding. They contend that the district court based its deci-sion on an erroneous legal premise, namely, that their claimsof aboriginal title are the legal equivalent of the states' claimsof fee title and sovereignty. In fact, the Native Villages con-tend, the "legal, fee, or sovereign title" claimed by the statesand aboriginal title are two very different property claims.According to the Native Villages, aboriginal title is not legaltitle or even a property right at all. Aboriginal title, accordingto the Native Villages, "presumes federal paramountcy" andbestows only the exclusive right to use and to occupy territoryto which the federal government admittedly holds sovereigntitle, until Congress provides otherwise. Consequently, theNative Villages contend, their claim does not conflict with thefederal government's paramount interests in the OCS.In support of their argument, the Villages point to Villageof Gambell v. Hodel, 869 F.2d 1273 (9th Cir. 1989), in whichwe noted that "aboriginal rights may exist concurrently witha paramount federal interest, without undermining thatinterest." Id. at 1277. The Villages assert that Gambell and thecases cited therein, including County of Oneida v. OneidaIndian Nation,
470 U.S. 226, 233
-36 (1985), Cramer v.United States,
261 U.S. 219, 227
(1923), and Johnson v.M'Intosh, 21 U.S. (8 Wheat) 543 (1823)), stand for the propo-sition that native tribes have an "unquestioned right . . . to theexclusive possession of their lands." They claim that to acceptthe district court's conclusion that aboriginal title in the OCSis precluded based on "nothing more than its potential effecton the government's power over national defense and interna-tional commerce," would violate the fundamental principle offederal Indian law, i.e., "that federal sovereignty is subject tothe Indians' right of occupancy," unless and until extin-guished by Congress.2[3] As an initial matter, we caution the Native Villages notto read too much into our statement in Gambell that aboriginalrights may coexist with the federal government's paramountinterests in the OCS. See Gambell, 869 F.2d at 1277. As wemade clear in that case, only limited assertions of aboriginalsubsistence rights were contemplated; exclusive rights to useor occupy areas of the ocean were never considered. Specifi-cally, in our remand order, we directed the district court todetermine, inter alia, "(1) whether the Villages in fact possessaboriginal subsistence rights in the OCS [and ] (2) if the Vil-lages do possess such rights, whether the drilling and otheractivities by the oil companies will interfere significantly withthe Villages' exercise of those rights." Id. at 1280 (emphasisadded). Plainly, if we had considered that the Villages couldhold exclusive rights to the OCS, we would not haveremanded for a determination of whether the activities of thirdparties would "interfere significantly" with those rights. Anyinterference would have been enough to violate the NativeVillages' exclusive rights. Therefore, Gambell at most pro-vides some guidance here; it is not controlling on this issueof first impression.Having said that, we note the statement in Gambell that theparamountcy doctrine is not limited merely to disputesbetween the national and state governments. See Gambell,869 F.3d at 1276; see also Inupiat Community of the ArcticSlope v. United States, 548 F. Supp. 182 (D.Alaska 1982),aff'd, 746 F.2d 570 (9th Cir. 1984). Any claim of sovereignright or title over the ocean by any party other than the UnitedStates, including Indian tribes, is equally repugnant to theprinciples established in the paramountcy cases. See id. [4] This case presents a markedly different situation fromthe one we considered in Gambell. The Native Villages hereassert exclusive rights of use and occupancy, not limitedrights. Although they assure us that their claims to the OCSare "subordinate" to federal sovereignty, in that aboriginaltitle "presumes" federal paramountcy in the OCS, we are hardpressed to see a practical difference between the relief soughtby the Native Villages and that sought by the states in the par-amountcy cases. The Native Villages pray for a declarationthat they "hold aboriginal title and exclusive aboriginal rightsto use, occupy, possess, hunt, fish, and exploit the waters, andmineral resources within their traditional use areas of the OCSin Prince William Sound, the Gulf of Alaska, and Cook Inlet."They seek exclusive use of the ocean resources and regulatorypower over third parties, including officials of our executivebranch of government, subject only to the laws of Congress.We fail to see how this differs from the claims asserted by thestates. Simply saying that a claim of aboriginal title is lessintrusive than a claim of fee title does not make it so.[5] Further, the Native Villages' purported concession thatthey "do not dispute Congress's ultimate power to enact lawsauthorizing non-tribal members to fish within their aboriginalfishing grounds" is really no concession at all. The Suprem-acy Clause of the Constitution inherently requires the same ofstates; yet this truism did not save the states' claims to theOCS. And it does not save the Native Villages' claims here.Before the Supreme Court, the State of Texas raised a similarargument, contending that there could be "joint " ownership orcontrol over the OCS. According to Texas, the federal gov-ernment could hold complete and unimpaired sovereigntyover the sea while Texas owned the resources lying beneathit. See Texas,
339 U.S. at 719
. The Court was not persuaded.It held that -- whereas ownership or proprietary rights inproperty can be, and usually are, separated from the govern-mental powers of regulation and control -- when dealing withthe ocean, "[p]roperty rights must then be so subordinated topolitical rights as in substance to coalesce and unite in thenational sovereign." Id. As the Court noted prophetically,"[t]oday the controversy is over oil. Tomorrow it may be oversome other substance or mineral or perhaps the bed of theocean itself." Id. Or, as we see here, it may be over fishingand hunting rights. This is why the Supreme Court held, "[i]fthe property, whatever it may be, lies seaward of the low-water mark, its use, disposition, management, and controlinvolve national interests and national responsibilities." Id.(emphasis added). No exception was made for Indian tribes,which, like states, are subordinate to the federal government,and hence, cannot "claim rights which are . . . entrusted to theone external sovereign recognized by the Constitution."Inupiat, 548 F. Supp. at 187. We agree that,"[i]f, as a matterof constitutional law, the federal government must be pos-sessed of paramount rights in offshore waters, it makes no dif-ference whether the competing domestic claimant is a state ortribe of American natives." Id. We simply have no power tosplit the rights in the OCS as the Native Villages would like.[6] Finally, we reject the argument that the Native Villagesare entitled to exclusive use of the OCS because they havehunted and fished in the sea for thousands of years prior to thefounding of the United States. While we respect the history ofthe Native Villages and appreciate the importance of the OCSto them, the Supreme Court was likewise cognizant of the his-tory of the coastal states in California, Louisiana, Texas andMaine. This did not, however, convince the Court to put theocean and its resources at the disposal of the states. Whateverinterests the states might have had in the OCS and marginalsea prior to statehood were lost upon ascension to the Union.See Maine,
420 U.S. at 522
; Louisiana,
339 U.S. at 704
;Texas,
339 U.S. at 717
; California,
332 U.S. at 34
-35. TheConstitution allotted to the federal government jurisdictionover foreign commerce, foreign affairs, and national defenseso that as attributes of these external sovereign powers, it hasparamount rights in the contested areas of the sea. See Maine,
420 U.S. at 522
; Louisiana,
339 U.S. at 704
; Texas, 339 U.S.at 717; California,
332 U.S. at 38
. This principle applies withequal force to all entities claiming rights to the ocean:whether they be the Native Villages, the State of Oregon, orthe Township of Parsippany. "National interests, nationalresponsibilities, national concerns are involved " in all thesecases. Louisiana,
339 U.S. at 704
. The Native Villages' claimto complete control over the OCS is contrary to these nationalinterests and inconsistent with their position as a subordinateentity within our constitutional scheme. See Inupiat, 548 F.Supp. at 187 (citing United States v. Wheeler,
435 U.S. 313
,323 (1978), for the proposition that Indian tribes are"dependent . . . within our territorial jurisdiction" and have no"freedom to determine external relations."). We thereforehold that the Native Villages are barred from asserting exclu-sive rights to the use and occupancy of the OCS based onunextinguished aboriginal title.III[7] For the foregoing reasons, we conclude that the districtcourt did not err in holding that the Native Villages' claimsto the OCS are barred by the federal paramountcy doctrine.6AFFIRMED.
___________________________FOOTNOTES 1 "[The OCS includes] all submerged lands lying seaward and outside ofthe area of lands beneath navigable waters as defined in section 1301 of[the Submerged Lands Act], and of which the subsoil and seabed appertainto the United States and are subject to its jurisdiction and control." 43U.S.C. S 1331(a). The OCS includes those submerged lands outside stateterritorial boundaries (which in Alaska's case means beyond three miles)extending to the outer geologic edge of the continental shelf and withinUnited States jurisdiction and control.2 The only defendant remaining in this action is the Secretary of Com-merce. The Native Villages' action against the Secretary of the Interiorwas dismissed for lack of ripeness and not appealed. The Native Villages'action against the Trawler Diane Marie, Inc., was dismissed pursuant toa stipulation of the parties.3 Any boat that fishes commercially for sablefish or halibut in the regu-lated area must have an IFQ share permit issued by the Secretary specify-ing the individual fishing quota allowed for the vessel. See 50 C.F.R.S 676.13(a). The regulated area consists of portions of the Gulf of Alaska,see 50 C.F.R. S 676.10(b), encompassing the Native Villages' aboriginalhunting and fishing grounds. The Native Villages maintain that, althougha few of their members possess IFQ permits, the vast majority do not.4 The district court decided "only the aboriginal title issues, . . . [and left]for another day the question of what nonexclusive fisheries rights, if any,plaintiffs might have in the OCS which are not dependent upon aboriginaltitle." We therefore express no opinion on this issue.5 In addition, the Supreme Court held that the rule that paramount rightsto the offshore seabed inhere in the federal government as an incident ofnational sovereignty was confirmed by Congress in both the Submerged6 Because we so hold, we need not reach the district court's alternativeholding that common law property precepts preclude tribes from possess-ing exclusive hunting or fishing rights in navigable waters absent a treatyor statute. We have ruled on this issue previously in Wahkiakum Bank ofChinook Indians v. Bateman, 655 F.2d 176 (9th Cir. 1981), however, inwhich we held that the Chinook Indians had no aboriginal fishing rightsto the Columbia River. In Wahkiakum, we noted that "[a]n aboriginal rightto fish has been recognized only in the context of interpretation of a rati-fied treaty or federal statute, where courts have held that aboriginal fishingrights were impliedly reserved to the Indians." Id. at 180 n.12; see alsoConfed. Tribes of Chehalis v. Washington, 96 F.3d 334, 341 (9th Cir.1996) (citing Wahkiakum for the same). We are aware of no cases holdingto the contrary.Similarly, we need not reach the issue of whether the Villages' chal-lenges to the sablefish regulations promulgated under the Magnuson Fish-ery Conservation Management Act are barred by the statute of limitations. the end