Tribal members shouldn’t need state permits to fish in Metlakatla’s traditional waters, lawsuit argues

A 32=foot gilnetter sails in blue waters next to green spruce-covered mountains.
The 32-foot gillnetter F/V Deja Vu sails on Aug. 3 near Metlakatla. Metlakatla’s tribal government recently sued Gov. Mike Dunleavy over the tribe’s right to fish in waters outside the boundaries of the state’s only Native reservation. (Photo courtesy of Johon Atkinson)

Metlakatla Indian Community is suing Gov. Mike Dunleavy and senior state officials over fishing rights. The state’s sole Native reservation says the commercial fishing permit system unfairly prevents local fishermen from harvesting on their traditional fishing grounds — a right that Metlakatla says is guaranteed to the tribe by Congress.

The tribe of Metlakatla is asking a federal judge to prevent the state from requiring commercial fishing permits for tribal members.

The people of Metlakatla have called Annette Island home since the late 19th century. That’s when roughly 820 Tsimshian people migrated from coastal British Columbia to the then-uninhabited islands south of Ketchikan with an Anglican missionary.

But they weren’t just after land for a settlement.

“The Annette Islands would have been worthless without access to fish and its adjacent fisheries,” attorneys for Metlakatla wrote in a lawsuit filed August 7 in federal court.

In 1891, Congress established the Annette Islands Reserve as a permanent, self-sustaining home for Metlakatla’s people. But today’s Metlakatla mayor, Reginald Atkinson, said that in the early 20th century, community members faced a threat from outside fishermen.

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“More and more seiners and harvesters came close into our waters,” Atkinson said in a phone interview.

So in 1916, federal authorities set aside waters within 3,000 feet of shore exclusively for the people of Metlakatla — “to keep those encroachers out, and not keep us in,” Atkinson said.

Atkinson emphasized that point. While only Metlakatkla residents were allowed to fish within the 3,000-foot boundary, local fishermen weren’t limited to those waters. Salmon runs are unpredictable — in any given season, argues the lawsuit, fish may avoid Metlakatla’s close-in waters even if they’re plentiful outside the community’s boundary.

So Atkinson says they continued to fish outside the boundary, in state waters generally within a day’s travel of Metlakatla. Some of that salmon went for commercial processing at the community’s fish plant, and some of the catch served as the community’s self-sustaining food supply.

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But things changed in the 1970s as the state faced historically low salmon returns. In 1972, Alaska voters amended the state’s constitution to allow authorities to restrict access to state fisheries.

That paved the way for the statewide “limited entry” system that remains in effect today — to prevent overharvesting, state authorities issue a limited number of permits for commercial fishing.

The limited entry system doesn’t apply within the Annette Islands Reserve. But it does apply to state waters outside the marine boundaries of the reservation. So if Metlakatla’s tribal members want to fish in state waters, the state says they need a permit.

But Atkinson said the tribe’s fishermen were at a disadvantage when the state first limited salmon fisheries in 1974. Regulators gave priority to fishermen who relied on fishing to make a living — and, importantly, fishermen who had spent lots of time fishing in state waters.

“That prevented our members from getting limited entry permits on the point system, because the state of Alaska did not recognize the fisheries points gained within our boundaries,” Atkinson said.

Of course, fishermen can simply buy into the fishery. And some residents do. But the lawsuit argues the cost of a permit for salmon fishing — from $8,000 for a hand-troller to nearly a quarter million for a purse seiner — is prohibitive.

“So that kept more and more fishermen, as the generations grew, within our own boundaries,” Atkinson said.

The local fish plant recently closed its doors after more than 100 years in business, according to the suit — Metlakatla’s fishermen simply couldn’t provide a big enough catch. Attorneys for the community say a changing climate has altered salmon migration patterns near Annette Island, at the southeastern tip of the state.

Atkinson says the state permit system made it harder for Metlakatla’s people to legally fish outside the 3,000-foot boundary. But Atkinson and attorneys for the tribe say the state doesn’t have a right to restrict Metlakatla residents’ access to what the tribe sees as its traditional fishing grounds.

The U.S. Congress, not the state of Alaska, granted Metlakatla Indian Community the Annette Islands Reserve — and an integral part of the reserve is access to traditional fisheries, argues the lawsuit.

“Those rights were not taken away from us,” Atkinson said. “They were basically ignored or set aside by the state of Alaska.”

In the lawsuit, attorneys for Metlakatla point to a Supreme Court case from 1918 that says the reservation included deep waters around the islands.

“Those fishing rights were never, ever diminished,” Atkinson said.

Part of Metlakatla’s claim references a key Supreme Court decision announced earlier this summer — McGirt v. Oklahoma. In a 5-4 decision, the high court ruled that much of Oklahoma was actually part of the Muscogee (Creek) reservation — because Congress never explicitly dissolved the reservation. And that limits the state’s jurisdiction over tribal members.

Atkinson said it’s important to note that Metlakatla isn’t asking to expand its 3,000-foot exclusive fishing area.

“We’re not pursuing additional [rights] or taking rights,” he said. “We’re just simply requesting to restore our congressionally-given rights, which are on the books already.”

A spokesperson for the Alaska Department of Law said Friday that state attorneys have not yet been served with the lawsuit, but the department plans to review the matter and respond appropriately.

This story was produced as part of a collaboration between KRBD and Alaska’s Energy Desk.