Alaska Native subsistence case upheld

MAY 8, 2001

The full panel of the 9th Circuit Court of Appeals on Monday upheld an Alaska Native subsistence rights case Secretary of Interior Gale Norton tried to help the state of Alaska overturn.

In an 8-3 vote, the court affirmed the landmark Katie John case. The decision caps nearly two decades of legal battles brought by John, an Athabaskan elder.

In the late 1980s, John and other Mentasta Alaska Natives sought traditional use of a fishing camp on the Copper River but were denied by the state. In 1991, John filed suit against the government, seeking to ensure subsistence rights for rural residents.

A three-judge panel of the 9th Circuit first weighed in on the case in 1995, ruling in favor of John under the Alaska National Interest Lands Conservation Act. After some delays, including a refusal by the state to grant priorities to Natives, the Department of Interior subsequently assumed control in 60 percent of the state's waters in 1999 and a federal court issued a final order in the case.

But after telling Alaska Natives he supported subsistence rights, Governor Tony Knowles appealed the decision to the 9th Circuit because he said it conflicted with state law. The Alaska Supreme Court in 1995 had come to the opposite conclusion of the appeals court.

Knowles' action angered a number of Alaska Natives, which he acknowledged at last year's Alaska Federation of Natives (AFN) convention. The AFN considered the issue one of the most important for Native rights and was an intervenor in the case. A number of resolutions were passed condemning Knowles' appeal in February 2000.

The involvement of Norton also raised the eyebrows of Alaska lawmakers and American Indian activists in the lower 48. For her work on a legal brief, the former Colorado Attorney General enlisted the help of Mountain States Legal Foundation.

The group has fought the government on a number of freedom of religion and Native rights cases favoring tribes. Environmentalists also criticize the group for opposing wildlife and endangered species protections.

Norton's $270 an hour work resulted in a $60,000 bill approved by Republican lawmakers. In total, a legislative committee spent $160,000 on work for its appeal without the approval of entire Legislature.

For her role, Norton said she would recuse herself from any policy decisions affecting the takeover. She filed papers with the Senate Energy and Natural Resources Committee during her confirmation process, disclosing her work.

Despite all the legal wrangling, the state may appeal the case to the Supreme Court. The state has 90 days to do so.

And for John, the decision comes only after the loss of her husband Fred John Sr., the last traditional Mentasta chief. He died in December.

Related Cases:
State of Alaska v. Babbitt (Ninth Circuit. Nos. 94-35480, 94-35481. December 1995)

Relevant Links:
Native subsistence rights, Native American Rights Fund - http://www.narf.org/pubs/justice/1999SPRING/spring1999.htm
Alaska Federation of Natives - http://www.akfednatives.org
Katie John et al. v. State of Alaska - http://www.mountainstateslegal.org/legal_cases.cfm?legalcaseid=64 Alaska Native Knowledge Network - http://www.ankn.uaf.edu/subsistence.html

Related Stories:
Norton cutting old associations (1/25)
Norton's legal work criticized (1/12)
Alaska Native elder dies (12/4)
Mixed feelings surround Governor (10/20)