The U.S. Supreme Court decided on Monday that it will not review the latest ruling in the Katie John case, a huge blow to the state of Alaska in the long-running battle over Native subsistence rights and a key win for Alaska Natives.
In fact, observers say the court's denial marks the end of nearly three decades of Katie John litigation. But that doesn't mean the fight is over. Leadership with the Alaska Federation of Natives said they will continue to battle for a system that allows for a rural subsistence priority across Alaska and not just on federal lands and waters.
The Supreme Court's refusal stems from a request by Alaska Attorney General Michael Geraghty in November. He had asked the Supreme Court to review a decision by the 9th Circuit Court of Appeals that the federal government controls subsistence hunting and fishing on navigable waters owned by the state that are adjacent to and within federal land.
The lawsuit is part of a series of cases that have outlived their namesake, Katie John, the Athabascan elder who died last year and had fought for the right to fish on her traditional lands along the Copper River. She was 97.
The dispute stems from a conflict between federal law, which gives a subsistence hunting and fishing priority to rural Alaska residents, and the state constitution, which calls for equal access to fish and game for all residents.
When Geraghty requested the review last fall, the state said this latest case "involves fundamental questions of control and authority over navigable waters in the state." Alaska was given the same rights as other states, including the right to control state-owned navigable waters next to and within federal land, the state argued.
A federal regulation in 1999 had put that authority in the hands of the federal government. The lower court's ruling incorrectly supported that rule, the state argued, calling it an "unprecedented extension of the federal reserved water rights doctrine."
The Alaska Federation of Natives said the rule provides a subsistence priority during times of shortage for rural Alaskans. It argued that the state's effort to overturn the decision was an assault on Alaska Native rights.
The denial marks the end to nearly 27 years of litigation on behalf of John, according to a statement from the Native American Rights Fund, which represented John. A press release from the fund said it was unfortunate that John did not live long enough to see the litigation come to an end. "Praise the Lord, my grandma can rest in peace," said Katie John's granddaughter, Kathryn Martin, according to the release.
Martin teared up later in the day at a press conference organized by the Alaska Federation of Natives, as she began to thank those who had fought on her grandmother's behalf. "I just want to say thank you to everyone, and I thank the Lord for this day," she said, after a long pause. She added that she hopes the state Legislature passes a bill that would mark May 31 -- the day her grandmother died -- as Katie John Day.
The Supreme Court's rejection ensures that the federal government will retain management of subsistence fishing and hunting on about 60 percent of inland waters.
In an email, the Alaska Attorney General's office issued the following statement: "The State is disappointed today by the news that the Supreme Court has denied hearing the case between the State of Alaska and the Department of Interior and will not move forward to clarify the lines of management authority between the state and federal subsistence programs in Alaska. Until this ambiguity can be removed and a clear definition of jurisdiction can be drawn, the dual management program will continue to lead to litigation and further uncertainty to the detriment of the Alaskan people as a whole."
The state's filing was an "end-run" on the 1996 decision by the Supreme Court, said Heather Kendall-Miller, senior attorney for the Native American Rights Fund office in Anchorage.
As it did today, the Supreme Court at the time denied the state's request for review of a 9th Circuit Court decision. The lower court had decided the subsistence priority applies to navigable waters needed to protect the priority on federal lands.
Also, in 2001, Gov. Tony Knowles, after meeting John at her fish camp, refused to appeal the Katie John case to the Supreme Court, calling the state's position a "losing legal strategy that threatens to make a permanent divide among Alaskans."
The state has lost its ability to bring similar challenges, said Kendall-Miller. "This is the big enchilada," she said of the court's rejection.
Byron Mallott, a Democratic candidate for governor, said the state needs to stop pursuing "senseless litigation." Instead, it should "engage in meaningful dialogue with its rural residents and Native peoples to protect the subsistence way of life. I call on Governor Parnell to accept the Supreme Court's decision and direct his administration to work constructively towards a solution that is fair and lasting."
Because of the decision, Alaska will continue to have dual management of hunting and fishing – with the state managing areas on applicable state lands and the federal government managing it on federal lands, said Kendall-Miller.
That is, unless the state takes action to bring its constitution into compliance with federal law, which would allow a unified management system controlled by the state. Such efforts have failed in the past.
In a second option, Congress could preempt the state and create a subsistence priority on all state and federal lands and waters, Kendall-Miller said.
The Native American Rights Fund prefers the federal action, said Kendall-Miller. "To us, this is the equivalent of a treaty right," as the federal government has promised to protect subsistence hunting and fishing in Alaska, she said.
NARF's work in Alaska has long centered around the Katie John case and its seemingly endless litigation. Although the lawsuits are over, the fund will remain involved, said Kendall-Miller.
"We will continue to work with the AFN leadership and others to help craft legislative approaches we believe are essential to protecting subsistence," she said.
Leaders with the Alaska Federation of Natives said the organization, which was a party to the case, would continue to fight for a better system.
"We still have work to do," said Julie Kitka, president of AFN. "We still struggle under a highly complex federal-state dual management system, which needs reform."
Recent surveys show that more than two-thirds of Alaskans support the rural subsistence priority, the statement said.
"AFN and the Native leadership recommits to double our efforts to protect our peoples' rights," said Rosita Worl, co-chair of AFN's subsistence committee.
That includes calling upon "President Obama and his cabinet secretaries Sally Jewell and Tom Vilsack to utilize all their executive and administrative authority to protect the people dependent on subsistence fishing to feed their families. There will be no slowdown of our efforts," Worl said.
Kitka said the next step for AFN is moving forward on a proposal created by the Ahtna regional Native corporation. Rep. Don Young recently held a hearing on draft legislation of the idea, which would give Ahtna the ability to manage hunting on its own lands in the Copper River region, something the state now does.
Ahtna created the co-management proposal because they say residents have struggled to get enough moose and caribou to eat because of competition from hunters outside the area.
If considered successful, the program could be expanded to apply to land owned by 11 other regional Native corporations, removing hunting on some 45 million acres from state management.
Kitka said AFN is working to win support from federal officials and the Alaska delegation for that idea and others. A congressional change to federal law that preempts state law is also on the table.
"It's going to be very systematic and clear and we're going to go forward with as much support as we can," she said.
Alaska Dispatch Publishing