Friday, October 5, 2007

NARF Alaska Victorious in Four Cases

ANCHORAGE, AK-NARF Alaska attorney Heather Kendall-Miller has won four important cases in a row on behalf of Alaska Natives. In Ahtna Tene Nene’ Subsistence Committee v. Alaska Board of Game, suit was brought on behalf of tribal organizations and communities who live a subsistence way of life to overturn a series of regulations adopted by the Alaska Board of Game in March of 2007. The regulations severely restrict, and in some cases eliminate plaintiffs’ subsistence uses of moose and caribou. In mid-June plaintiffs sought a preliminary injunction in state court requesting that the court enjoin the State from implementing these regulations for the fall hunt. On July 20th , the court found that plaintiffs had shown that they satisfied the “balance of hardships” standard for granting preliminary injunction by raising serious and substantial questions going to the merits of the case and by demonstrating that the balance of hardships tip sharply in their favor.

On June 10, 2006 the State of Alaska brought suit challenging the Federal Subsistence Boards customary and traditional (C&T) use finding for subsistence uses of moose by members of the Chistochina Tribe. A positive C&T finding entitles residents for a specific community to the subsistence priority under Title VIII of the Alaska National Interest Lands Conservation Act. Chistochina was granted intervention in this action to protect its C&T status for moose. On June 27, 2007 in State v. Demientieff, the district court entered an Order in favor of defendant United States and Chistochina against the State and upholding the Federal Subsistence Boards customary and traditional use finding for subsistence uses of moose by members of the Chistochina Tribe.

On January 5, 2005, the State of Alaska filed a lawsuit in the District of Columbia challenging the final rule implementing the mandate in the prior subsistence case, John v. United States. The prior case established that the United States must protect subsistence uses of fisheries in navigable waters where the United States possesses a reserved water right. The State challenges the Secretaries’ implementation of the mandate by arguing that the reserved waters doctrine requires a quantification of waters necessary to fulfill specific purposes. On January 18, Katie John filed a motion for limited intervention for purposes of filing a motion to dismiss for failure to join an indispensable party. On May 17, 2007 in State v. Norton, the district court entered an Order upholding the agency’s rule-making process identifying navigable waters in Alaska that fall within federal jurisdiction for purposes of Title VIII’s subsistence priority.

On January 3, 2005 the Villages of Tanana, Nulato, Akiak, Kalskag, Lower Kalskag and Kenaitze along with Theresa and Dan Schwietert filed a complaint against the State of Alaska, Attorney General, and various state agencies challenging the policy adopted by the Attorney General of Alaska that state courts have exclusive jurisdiction over child custody proceedings involving Alaska Native children and Tribes in Alaska do not have concurrent jurisdiction to hear children’s cases unless certain conditions are met. On May 30, 2007 in Tanana v. State, the court issued an opinion in the Tribe’s favor rejecting all of the State’s arguments. The court held that Alaska Tribes possess inherent power to adjudicate proceedings involving member children. The Tribes have moved for injunctive relief to prohibit the state and its agency’s from denying full faith and credit to tribal court decrees pending appeal to the Alaska Supreme Court.