Kenaitze Indian Tribe v. State of Alaska

We travel to the northern reaches of our circuit to resolve a dispute implicating two recurring Alaskan motifs: on the one hand, the clash between traditional and modern ways of life; on the other, fish. The Ke-naitze Indian Tribe claims that the state of Alaska is attempting to evade federal legislation creating a priority for subsistence fishing by residents of rural areas. The controversy turns on the meaning of the word “rural” as used in the Alaska National Interest Lands Conservation Act (ANIL-CA), Pub.L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of Titles 16 and 43 of the United States Code).

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The Kenaitze, a tribe numbering approximately four hundred, have lived on the Kenai Peninsula, in southern Alaska, for hundreds of years. For most of their history, the Kenaitze have pursued a way of life dominated by subsistence fishing and hunting. In recent years, however, the area’s proximity to Anchorage has made the Ke-nai Peninsula a center of commercial and sport fishing, and has transformed the Peninsula’s economy to one based primarily on work for cash. Subsistence fishing has been crowded out by commercial harvesting and by sport…

with whom THOMPSON, Circuit Judge, joins, concurring:

The Kenaitze live principally along the eastern shore of Cook Inlet from Anchor Point to Point Possession, though some possibly inhabit the western shore, principally at Kuskatan. Clare Swan, Subsistence Research Project Kenaitze Indian Tribe 3 n. 1 (1981). The Tribe consists of approximately 400 descendants of Tanaina Athabaskan Indians who replaced Eskimos on the Kenai Peninsula sometime between 500 and 1500 A.D. Carolyn E. Reed, The Role of Wild Resource Use of Communities of the Central Kenai Peninsula and Kachemak Bay, Alaska 13 (1985). The rhythm of life of the Tribe in the days in which its traditions were established appears to be captured in these words:

DENAI’NA SEASONAL CYCLE

tuneyashi the snow begins to melt

tlkhu-khakeneu people catch king salmon

talkheneu the geese come flying

koonaneo people catch pink salmon

banan-kantlkhtsi the berries ripen

banan-ttstanashi people come away from the hills

banan-ktichiki the foilage is red

bkanchenshane the earth grows cold

golchana-naga people go to visit one another

*319 takoshi the geese fly south, the bear hides himself

banan-tlkhtsi it begins to…

860 F.2d 312 19 Envtl. L. Rep. 20 ,241 KENAITZE INDIAN TRIBE, Plaintiff-Appellant, v. STATE OF ALASKA, Defendant-Appellee. No. 87-4110. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 1, 1988. Decided Oct. 24, 1988. As Amended on Denial of Rehearing and Rehearing En Banc Jan. 4, 1984. Carol H. Daniel and Donald S. Cooper, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiff-appellant. Sarah E. McCracken, Asst. Atty. Gen., Anchorage, Alaska, Larri I. Spengler, Asst. Atty. Gen., Juneau, Alaska, for defendant-appellee. Elizabeth Ann Peterson, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for amicus. Appeal from the United States District Court for the District of Alaska. Before KOZINSKI, NOONAN and THOMPSON, Circuit Judges. KOZINSKI, Circuit Judge * : 1 We travel to the northern reaches of our circuit to resolve a dispute implicating two recurring Alaskan motifs: on the one hand, the clash between traditional and modern ways of life; on the other, fish. The Kenaitze Indian Tribe claims that the state of Alaska is attempting to evade federal legislation creating a priority for subsistence fishing by residents of rural areas.…