The Ninth Circuit just issued a decision in a case arising from an aboriginal claim of fishing rights off the coast of Alaska. The en banc decision denied the claim of aboriginal fishing rights with a mildly stinging dissent. The case is Native Village of Eyak v. Blank, and it can be downloaded here.
First off, editorial note. I'm not a judge, but in fishing cases, I think it makes sense to the readers of the world to avoid fishing metaphors. "Even those the Villages don't contest those findings, the dissent goes on a [wait for it....] fishing expedition through the trial record and testimony to make its own factual findings."
Federal law recognizes that aboriginal rights can exist absent any treaty or statute. In order to prevail on a claim for such rights, the proof required is that the right was "actual, exclusive, and continuous use and occupancy 'for a long time'." Most first year law students will recognize the elements of an adverse possession claim. Interesting to see its applicability to an ocean setting. It is a big ocean after all.
The trial court reviewed the villages proof that for thousands of years, their ancestors used the Outer Continental Shelf for fishing and hunting grounds. The trial court and the majority accepted that such use was made of these marine areas, but found that the villages use was not "exclusive."
As such, the majority held that the Villages claims failed.
Judge W. Fletcher dissented (and was joined by four other judges). Perhaps not impressed with the resounding dismissal of his analysis of the law, Judge Fletcher said, "the majority misstates the law and misreads plain English." The dissent thought that there was enough evidence that these fishing rights were exercised on at least part of the claimed marine area, warranting a trial to determine those areas.