Aboriginal Fishing Rights

Metlakatla Fisher’s Cert Petition

Matthew L.M. Fletcher

Here is the petition in Scudero v. Alaska:

Cert Petition.pdfDownload

Questions presented:

1. Can the State of Alaska by criminal prosecution and threat of fine and incarceration prohibit Alaska Native members of the Metlakatla Indian Community and Tribe and the Tsimshian Nation, who have vested broad off-reservation, aboriginal, treaty, presidential proclamation, and congressional legislature enacted, and granted, fishing rights, from harvesting fish in their traditional Pacific Ocean fishing waters, and Annette Islands Reserve related waters, which fishing is essential to their culture, heritage, and lifestyle, and vital to the very purpose for which the Reserve was established and dedicated, under the guise of “conservation necessity” by criminally banning those natives who are “un-permitted” i.e., do not have State of Alaska “limited entry permits,” which permits are bought and sold for many tens of thousands of dollars and well beyond the financial resources and means of most natives, and which permits were issued in a restricted and “qualifying fashion” that discriminates against those Metlakatla Natives?

2. Should this Court act as the United States Supreme Court did on two (2) prior occasions in Alaska Pacific Fisheries Company v. United States, 248 U.S. 78, 39 S.Ct.40, 63 L.Ed. 138 (1918) and Metlakatla Indian Community v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed. 262 (1962), to protect the rights of the Tsimshian Nation members of the Metlakatla Indian Community and Tribe as to the Annette Islands Reserve, as to vested fishing rights relating to the Reserve, or allow the State of Alaska and the Alaska Supreme Court to abrogate and extinguish those aboriginal, treaty, presidential proclamation, and congressional legislation and grant rights [which abrogation involves native fishing rights that evolve from the Russian Treaty of Succession of 1867 (Alaska Acquisition Treaty) and subsequent federal legislation including the Alaska Statehood Act, (72 Stat. 339) Public Law 85-508, 85th Congress, H.R. 7999, July 7, 1958, the Alaska Native Claims Settlement Act (“ANCSA,” 43 U.S.C. § 1601 et. seq.), and violation of the duties and obligations of the State of Alaska thereunder], with devastating impacts on the Metlakatlans and their thousands of years of culture tradition and heritage under the guise of the misapplied “conservation necessity principle,” where said misapplication is discriminatory against the Tsimshian Metlakatla Tribe and natives such as John Albert Scudero, Jr. and there will be no real impact on the Alaska limited entry fishing program or the fisheries of Alaska if the natives’ vested rights are honored?

3. Can the State of Alaska by such criminal prosecution abolish those Alaska Natives’ fishing rights when allowing the small number of Metlakatlans to exercise their rights will in reality have little impact on the State of Alaska Limited Entry Fisheries Program, or salmon fisheries; although such discriminatory ban and prohibition and criminal prosecution abrogates and emasculates those vested fishing rights and destroys the basic purpose for which the Reserve was established by presidential proclamation and congressional action, as a reserve for the Alaska Natives to enjoy and practice their historical and traditional fish harvesting lifestyle, as opposed to an agrarian lifestyle which was and is not possible on the Reserve; or does the State of Alaska have to honor those vested rights of the Alaska Natives, Metlakatlans, as the Courts have held as to vested native fishing rights and allow them to fish on equal footing and par with non-native fishers, merely perhaps equally subject to true conservation regulatory measures as to “manner and means,” and “seasons” of harvest and not subject to a criminal prosecution impressed discriminatory total ban on un-permitted natives so exercising their vested fishing rights?

Lower court materials here.

33rd Anniversary of the Police Raids over Salmon Fishing at Restigouche

Kate Fort

Documentary available online here.

In Incident at Restigouche, filmmaker Alanis Obomsawin delves into the history behind the Quebec Provincial Police (QPP) raids on the Restigouche Reserve on June 11 and 20, 1981. The Quebec government had decided to restrict fishing, resulting in anger among the Micmac Indians as salmon was traditionally an important source of food and income. Using a combination of documents, news clips, photographs and interviews, this powerful film provides an in-depth investigation into the history-making raids that put justice on trial.

via @Mimiges

Native Village of Eyak v. Blank Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Native Village of Eyak Cert Petition

Question presented:

The Ninth Circuit agreed with the district court’s findings that at the time of first contact with Europeans, the Chugach were a culturally, ethnically and linguistically related people who had made actual and continuous use and occupancy of an area of the Outer Continental Shelf for a long time. The courts also agreed there was no evidence that others used the area, except for the periphery. Based on these showings by the Chugach, did the Ninth Circuit err in concluding that the exclusive use required to establish aboriginal title was defeated by a failure to demonstrate an ability to expel a hypothetical invader, by other groups’ use of the periphery of the Chugach territory, and by the fact that the Chugach villages were politically independent?

Lower court materials here.

Stagg Put Out To Pasture

Peter Scott Vicaire

In R. v. Stagg, an Aboriginal man in Manitoba was convicted of fishing contrary to section 78 of The Fisheries Act, R.S., c. F-14, s.1.  He didn’t deny it, but based his right to do so on his tribe being a signatory to Treaty #5.  The Manitoba Provincial Court didn’t buy Mr. Stagg’s argument and convicted him because he could not prove that commercial fishing was an aboriginal right. 

Pulling out the old, classic Van der Peet one-two punch (To constitute an Aboriginal right, an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”) the court held that Stagg did not have an aboriginal right to commercially fish because he could not prove that his tribe engaged in commercial fishing prior to contact with Europeans. 

Since the commission of the offences is not in question, the first step in this judgment is to determine whether Mr. Stagg has proven a prima facie infringement of an Aboriginal or Treaty right to sell fish commercially. The jurisprudence as established by the Supreme Court of Canada (SCC) states that once such onus is met, the onus will then shift to the Crown to show that the prima facie infringement is justified by a valid legislative objective that is consistent with the special trust relationship that exists between the Crown and aboriginal peoples. (R. v. Sparrow, (1999) 1 S.C.R. 1075 at 112).

In R. v. Van der Peet (1996) 2 S.C.R. 507 at paragraphs 44-46, the Supreme Court of Canada defined the scope of Aboriginal rights. To constitute an Aboriginal right, an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”. In addition, because Aboriginal rights aim to protect the distinctive aspects of Aboriginal cultures, they must be shown to have originated in the practices, customs or traditions of an Aboriginal group in existence prior to European contact.

Because Mr. Stagg was engaged in commercial-scale fishing activity, evidence of traditional practices that amounted to commercial scale fishing have to be proved. Yet Mr. Stagg led no evidence of any sort with respect to this subject matter. There is thus no basis for concluding that commercial-scale fishing qualified as an integral part of the culture of Dauphin River First Nation prior to contact with Europeans.