NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
AARON M. JONES, )
) Court of Appeals No. A-5100
Appellant, ) Trial Court No. 1SI-92-271 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1527 - May 2, 1997]
______________________________)
Appeal from the District Court, First Judicial
District, Sitka, Larry C. Zervos, Judge.
Appearances: Denton J. Pearson, Pearson &
Hanson, Sitka, for Appellant. John T. Baker
and Robert C. Nauheim, Assistant Attorneys
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Aaron M. Jones appeals his conviction for taking a deer
out of season, AS 16.05.920(a). Jones shot the deer on a five-acre
parcel of land owned by his uncle, John Littlefield. This parcel
lies a few miles north of Sitka. The United States government
conveyed this parcel to Littlefield in 1970 under the Alaska Native
Allotment Act, former 43 U.S.C. sec.sec. 270-1 through 270-3
(repealed in 1971).
The basic question presented in this appeal is whether the
State of Alaska has the authority to enforce its game laws on
parcels of land conveyed to Natives under the Alaska Native
Allotment Act. Jones asserts that such parcels are "Indian country"
within the meaning of 18 U.S.C. sec. 1151, and therefore the State
lacks authority to enforce its game laws on these parcels.
In general, "Indian country" comprises three types of
land: (a) "all land within ... any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent [deed]"; (b) "all dependent Indian
communities within the borders of the United States"; and (c) "all
Indian allotments, the Indian titles to which have not been
extinguished". 18 U.S.C. sec. 1151. See State of Alaska ex rel.
Yukon Flats School District v. Native Village of Venetie Tribal
Government, 101 F.3d 1286, 1291 (9th Cir. 1996).
In the present appeal, Jones asserts that his uncle's
parcel of land falls within the statute's third category: Jones
claims that Littlefield's parcel is "Indian country" because it is
an "Indian allotment". This claim is problematic because Little-
field did not receive title to the land under the General Allotment
Act (also known as the Dawes Act), now codified in 25 U.S.C. sec.
331 et seq.. Rather, as noted above, Littlefield received title to
the land under the Alaska Native Allotment Act, former 43 U.S.C.
sec. 270-1 et seq..
White society developed a distinctive relationship with
the indigenous peoples of Alaska, different from the whites'
relationship with the indigenous peoples of the Lower 48. See
Metlakatla Indian Community v. Egan, 369 U.S. 45, 50-51; 82 S.Ct.
552, 557; 7 L.Ed.2d 562, 567-68 (1962); Atkinson v. Haldane, 569
P.2d 151, 154 (Alaska 1977). Because of this distinctive
relationship, various federal courts ruled that Alaska Natives were
not "Indians" for purposes of Title 25 of the United States Code,
thus creating doubts whether Alaska Natives were eligible for Indian
allotments under the General Allotment Act. See Pence v. Kleppe,
529 F.2d 135, 140 (9th Cir. 1976). In 1906, Congress acted to cure
this problem. However, rather than amending Title 25 to clarify
that Alaska Natives qualified as "Indians" for purposes of the
General Allotment Act, Congress passed a separate act þ the Alaska
Native Allotment Act. See H.R. Report No. 3295, 59th Congress, 1st
Session (1906).
This new legislation, codified in 43 U.S.C. sec.sec. 270-1
through 270-3, authorized the Secretary of the Interior to allot
parcels of land "not to exceed one hundred and sixty acres" as
homesteads to adult Alaska Natives. In contrast to the Indian
allotments created under the General Allotment Act (which remain the
property of the United States until the expiration of a lengthy
trust period), Alaska Native allotments immediately became the
homestead of the allottee, although the Native Allotment Act imposed
restrictions on the allottee's power to sell or transfer the land.
(EN1)
The distinction between "Indian allotments" and "Native
allotments" has been carried forward in the Code of Federal
Regulations. The regulations governing Indian allotments are found
in 43 C.F.R. sec.sec. 2530-2533. These regulations expressly do not
apply to Native allotments in Alaska. See 43 C.F.R. sec. 2530.0-7;
see also 43 C.F.R. sec. 2430.5(f) ("Lands outside of Alaska may be
classified as suitable for Indian allotment under part 2530 of this
chapter[.]") (emphasis added). A different section of the federal
regulations, 43 C.F.R. sec. 2561, governs Alaska Native allotments.
Because the definition of "Indian country" in 18 U.S.C.
sec. 1151 specifically refers to Indian allotments but omits any
mention of Alaska Native allotments, it is far from clear whether
Congress meant for Alaska Native allotments to be considered "Indian
country". However, we conclude that we do not have to decide this
question. Assuming for purposes of argument that Native allotments
should be considered equivalent to Indian allotments for purposes
of 18 U.S.C. sec. 1151, and that Native allotments therefore qualify
as "Indian country" under the statute, the State of Alaska still has
the authority to enforce its fish and game laws on these parcels.
Thirty-five years ago, the United States Supreme Court
upheld the State of Alaska's regulation of Native fishing rights.
Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7
L.Ed.2d 573 (1962). In Kake, the newly-formed State of Alaska had
enacted a law banning the use of fish traps. The villagers of Kake
and Angoon, who had long operated fish traps, asserted that the
State of Alaska had no authority to enforce this ban against them.
The Supreme Court ruled that the state could enforce its law:
[Our prior] decisions indicate that even on
reservations state laws may be applied to
Indians unless such application would interfere
with reservation self-government or impair a
right granted or reserved by federal law.
Congress has gone even further with respect to
Alaska reservations, [see] 18 U.S.C. sec. 1162
[and] 28 U.S.C. sec. 1360[.] State authority
over Indians is yet more extensive over
activities, such as [the operation of fish
traps] in this case, not on any reservation.
Kake v. Egan, 369 U.S. at 75, 82 S.Ct. at 571, 7 L.Ed.2d at 583.
Jones's claim for exemption from Alaska's game laws rests
solely on his assertions that hunting is a traditional Native
practice, and that his hunting took place on a Native allotment.
He does not assert that his uncle's parcel is a "reservation", nor
does he assert that he or his uncle are the grantees of a federally
conferred right to take game. Under the authority of Kake v. Egan,
we conclude that even if Littlefield's parcel is "Indian country"
under the allotment clause of 18 U.S.C. sec. 1151, the State still
has the right to enforce its fish and game laws on that parcel.
This conclusion requires a supplementary explanation. As
can be seen from the quoted passage from Kake v. Egan, the Supreme
Court's decision relied in part on 18 U.S.C. sec. 1162. Under 18
U.S.C. sec. 1162(a), "the criminal laws of [Alaska] have the same
force and effect within ... Indian country as they have elsewhere
within the State". Thus, Congress has granted the State of Alaska
criminal jurisdiction over any and all Indian country within the
state.
However, not every law that carries a criminal penalty is
"criminal" for purposes of 18 U.S.C. sec. 1162(a). In California
v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083,
94 L.Ed.2d 244 (1987), the Supreme Court ruled that a state's
criminal jurisdiction over Indian country is limited to its
"prohibitory" laws (those that forbid people from engaging in
specified conduct); the state jurisdiction granted by 18 U.S.C.
sec. 1162(a) does not include "regulatory" laws (those that regulate
the time or manner in which people may engage in the conduct).
[I]f the intent of a state law is generally to
prohibit certain conduct, it falls within
[18 U.S.C. sec. 1162(a)]'s grant of criminal
jurisdiction, but if the state law generally
permits the conduct at issue, subject to
regulation, it must be classified as
civil/regulatory[,] and [18 U.S.C. sec.
1162(a)] does not authorize its enforcement on
an Indian reservation. The shorthand test is
whether the conduct at issue violates the
State's public policy.
Cabazon Band, 480 U.S. at 209, 107 S.Ct. at 1088, 94 L.Ed.2d at 255.
In Cabazon Band, the Supreme Court employed this
"prohibitory" - "regulatory" distinction to reach the conclusion
that California could not enforce its gaming laws against a bingo
parlor on an Indian reservation. "In light of the fact that
California permits a substantial amount of gambling activity,
including bingo, and actually promotes gambling through its state
lottery, we must conclude that California regulates rather than
prohibits gambling in general and bingo in particular." 480 U.S.
at 211, 107 S.Ct. at 1089, 94 L.Ed.2d at 256 (footnote omitted).
Having concluded that California's laws against unauthorized
gambling were "regulatory" in purpose, the Court attached no
importance to the fact that California had made it a misdemeanor
offense to engage in gambling without a state permit: "[The fact]
that an otherwise regulatory law is enforceable by criminal as well
as civil means does not necessarily convert it into a criminal law
within the meaning of [18 U.S.C. sec. 1162(a)]." Id.
It might be argued that Alaska's laws governing the taking
of deer are "regulatory" for purposes of defining the State's
criminal jurisdiction under 18 U.S.C. sec. 1162(a), since the
hunting of deer does not violate Alaska's public policy. However,
the Supreme Court carefully noted in Cabazon Band that the analysis
quoted above is "not a bright-line rule", 480 U.S. at 210, 107 S.Ct.
at 1089, 94 L.Ed.2d at 255, and that "[t]he applicable state laws
governing an activity must be examined in detail before [those laws]
can be characterized as regulatory or prohibitory." n.10, 480 U.S.
at 211, 107 S.Ct. at 1089, 94 L.Ed.2d at 256.
While hunting is not against Alaska's public policy,
unregulated hunting is. This point of law was clarified by the
Alaska Supreme Court in State v. Eluska, 724 P.2d 514 (Alaska 1986).
In Eluska, the court construed AS 16.05.920(a), which declares:
Unless permitted by [AS 16.05] or by
regulation adopted under [this chapter], a
person may not take, possess, transport, sell,
offer to sell, purchase, or offer to purchase
fish, game, or marine aquatic plants, or any
part of fish, game, or aquatic plants, or a
nest or egg of fish or game.
The defendant in Eluska shot a deer on Kodiak Island in May (that
is, out of season). He defended by asserting that he was engaged
in subsistence hunting. The supreme court declared that, under
AS 16.05.920(a), no one may engage in any form of hunting or fishing
in Alaska unless there is a statute or regulation that expressly
permits it:
This section has been part of Alaska's fish and
game code since the early days of statehood.
Art. I, ch. 94, sec. 28 SLA 1959. It is
phrased negatively: "unless permitted," no one
has a right to take or possess Alaskan game.
No regulation authorized David Eluska to take
a deer in Kodiak in May, and his taking of the
deer was, therefore, unlawful.
Eluska, 724 P.2d at 515. Jones is in the same position as the
defendant in Eluska. Jones hunted deer when there was no statute
or regulation permitting such hunting.
From a public policy standpoint, unregulated hunting is
significantly different from the unregulated gambling that was
discussed in Cabazon Band. Large-scale unregulated hunting can
ultimately destroy the practice of hunting itself (by destroying the
game population). A ruling in Jones's favor would create a
checkerboard of small enclaves where the State could not regulate
hunting and fishing. Alaska Natives are not, and never have been,
confined to reservations. (EN2) Thus, Native allotment parcels are
found throughout the State. (For instance, as noted above,
Littlefield's five-acre parcel lies a few miles north of the city
of Sitka.) If the State could not regulate hunting and fishing on
Native allotment parcels, the result would be islands of non-
regulation spread throughout practically every game-management unit
in the state þ leading to disruption and endangerment of the State's
efforts to protect and conserve game resources.
For these reasons, we conclude that the State of Alaska's
regulation of hunting is "criminal" for purposes of 18 U.S.C.
sec. 1162(a) (under the test announced in Cabazon Band), and that
therefore the State has jurisdiction to enforce its hunting and
fishing laws within any and all Indian country within this state.
Thus, regardless of whether Littlefield's Native allotment qualifies
as "Indian country" under 18 U.S.C. sec. 1151, Jones could lawfully
be prosecuted for engaging in hunting that was not specifically
permitted by Alaska statute or regulation.
Jones's Other Claims
Jones asserts, and the State concedes, that he shot the
deer to obtain food, and that deer hunting is a traditional means
by which Natives in the Sitka area obtained sustenance. Jones
claims that the State of Alaska has no power to regulate traditional
subsistence hunting on federal public lands þ that this power was
taken away by the Alaska National Interest Lands Conservation Act
(ANILCA).
We do not believe that the Native allotment at issue here
is "federal public land". Pursuant to the terms of the Native
Allotment Act (as amended in 1956), Jones's uncle (Littlefield)
received a homestead patent to the five-acre parcel in 1970. Jones
argues that, because the Secretary of the Interior has the right to
veto a sale of this parcel (see footnote 1), the federal government
retains sufficient interest in the parcel to make it "federal land".
We find this contention dubious, but we need not resolve this issue.
In Totemoff v. State, 905 P.2d 954 (Alaska 1995), the Alaska Supreme
Court held that the State could regulate hunting on federal public
land. The supreme court recognized that ANILCA guarantees rural
residents the right to engage in "customary and traditional uses ...
of wild, renewable resources", 16 U.S.C. sec. 3113 (emphasis by the
court), but the court held that ANILCA does not bar the State from
exercising its traditional authority to regulate the method and
means of hunting, even on federal lands within the state, so long
as the State regulations do not conflict with federal law. 905 P.2d
at 958-961, 973. Jones cites no provision of federal law that
conflicts with the State's establishment of the deer hunting season
in Sitka.
Jones contends that his uncle's Native allotment is land
held in trust by the federal government. Jones's argument confuses
Indian allotments with Alaska Native allotments. Indian allotments
are owned by the federal government and held in trust for the
benefit of the named Indian until the trust period expires. Native
allotments are deeded as homesteads to the Alaska Native. Moreover,
as explained in the previous paragraph, even if the Littlefield
parcel were deemed federal land, the State of Alaska would still be
able to enforce its game laws on the parcel. Totemoff, supra.
Jones claims that Section 4 of the Alaska Statehood Act
precludes the State of Alaska from enforcing its hunting regulations
against Natives. In Section 4, the State of Alaska "disclaim[ed]
all right and title ... to any lands or other property (including
fishing rights), the right or title to which may be held by any
Indians, Eskimos, or Aleuts" and recognized that "all such lands or
other property ... held by said natives ... shall be and remain
under the absolute jurisdiction and control of the United States".
Corresponding language is found in Article XII, Section 12 of the
Alaska Constitution. Jones asserts that, under this provision,
Littlefield's Native allotment parcel (and any hunting conducted by
Natives on that parcel) is exempted from State control.
However, the United States Supreme Court has rejected
Jones's broad reading of this language. As discussed above, the
Court has construed Section 4 to allow the State of Alaska to
regulate off-reservation hunting and fishing unless Congress enacts
a statute to limit the state's authority. Organized Village of Kake
v. Egan, 369 U.S. 60, 71; 82 S.Ct. 562, 568, 7 L.Ed.2d 573, 581
(1962).
Jones contends that he and his uncle, as Natives, have
aboriginal hunting rights that the State of Alaska must respect.
Jones's claim is foreclosed by Section 4 of the Alaska Native Claims
Settlement Act, 43 U.S.C. sec. 1603. This statute provides, in
pertinent part:
(a) All prior conveyances of public land
and water areas in Alaska, or any interest
therein, pursuant to Federal law, ... shall be
regarded as an extinguishment of the aboriginal
title thereto, if any.
(b) All aboriginal titles, if any, and
claims of aboriginal title in Alaska based on
use and occupancy, ... including any aboriginal
hunting and fishing rights that may exist, are
hereby extinguished.
Under paragraph (a) of this section, it appears that the conveyance
of the Native allotment to Littlefield in 1970 extinguished any
aboriginal title that he or Jones could claim. Further,
paragraph (b) extinguished Jones's aboriginal rights even if
paragraph (a) did not. See United States v. Atlantic Richfield Co.,
435 F.Supp. 1009, 1022, 1029 (D. Alaska 1977), aff'd, 612 F.2d 1132,
1134 (9th Cir. 1980); Paug-Vik, Inc. v. Wards Cove Packing Co., 633
P.2d 1015, 1020 (Alaska 1981).
Conclusion
The judgement of the district court is AFFIRMED.
ENDNOTES:
1. The Act as originally passed in 1906 declared Native
allotments to be "inalienable"; the land was to pass to the
allottee's heirs "in perpetuity". In 1956, Congress deleted this
provision and instead declared that the Native allottee could
"convey by deed ... title to the land so allotted" as long as the
Secretary of the Interior approved the sale. The 1956 amendment
further provided that "such conveyance shall vest in the purchaser
a complete title to the land", unless the Secretary determines that
the purchaser is another Alaska Native who is "unable to manage the
land without the protection of the United States" þ in which case,
the restriction on alienation would continue (that is, the new
purchaser would have to obtain Interior Department approval if he
or she ever wished to sell the land).
2. "There was never an attempt in Alaska to isolate Indians on
reservations. Very few were ever created, and the purpose of
these, in contrast to many in other States, was not to confine the
Indians for the protection of the white settlers but to safeguard
the Indians against exploitation." Metlakatla Indian Community v.
Egan, 369 U.S. 45, 51; 82 S.Ct. 552, 557; 7 L.Ed.2d 562, 567
(1962). 
