Washington Law Review


In Johnson v. McIntosh and its progeny, the United States Supreme Court established the principle that aboriginal title allows Indian tribes to exclusively use and occupy their territories after they come under United States sovereignty. In Native Village of Eyak v. Trawler Diane Marie, Inc., five Alaska Native villages asserted aboriginal title to areas of the seabed and ocean off Alaska. The villages argued that federal fisheries regulations violate their aboriginal title by allowing non-Natives to fish within those areas, while excluding most of the villagers. The United States Court of Appeals for the Ninth Circuit rejected the villages' claim, holding that the paramountcy doctrine had extinguished the villages' aboriginal title. Under the paramountcy doctrine, the federal government must control exploitation of the seabed and ocean to fulfill its duty to defend the nation and to regulate international commerce. The Eyak court held that aboriginal title would conflict with federal supremacy over the seabed and ocean off Alaska. This Comment argues that the Court of Appeals for the Ninth Circuit en banc or the U.S. Supreme Court should hold that the paramountcy doctrine did not extinguish aboriginal title to the seabed and waters off Alaska because aboriginal title does not interfere with the federal government's ability to protect the nation or to regulate international trade.

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