Discover more from Shepherd Alaska - Monitoring Change in Extraordinary Times
Happy Katie John Day!
By Hal Shepherd
In 2019 the Alaska State Legislature established May 31 as Katie John Day to observe how the federal “subsistence priority” has been defended vehemently by Alaska Natives and protected by the courts, most notably by the Katie John case.
Katie John was an Ahtna Athabaskan elder and the daughter of the last chief of the Batzulnetas. The Batzulnetas lived at the Copper River and Tanada Creek confluence, which was eventually incorporated into what is now Wrangell-St. Elias National Park in Southcentral Alaska. Batzulnetas, which means “Roasted Salmon Place,” is a traditional fishing location and is very important to its 200 inhabitants.
The lawsuit began in 1964 after the state closed the Batzulnetas subsistence fishery watershed, citing conservation reasons despite no evidence of such need. Furthermore, the state continued to allow downstream non-Native sport and commercial fishermen to take fish. For the next twenty years, Ms. John and her family, who relied on salmon for much of their food supply, returned to the Batzulnetas for spiritual purposes and to fish when they could—all the while subject to harassment by state Fish and Game employees. In 1984, Ms. John and another Ahtna elder filed a petition to the Alaska Board of Fisheries requesting that the Batzulnetas fishery be re-opened to Native people. A year after the petition was denied, Ms. John filed suit in federal district court to compel the state to re-open the fishery.
Ultimately, the Katie John litigation, which continued for over two decades and included multiple lawsuits, wound its way up to the Ninth Circuit Court of Appeals. The Court concluded that Alaska’s public lands included certain navigable waters as defined by the Reserved Water Rights Doctrine, which states that when the United States withdraws lands from the public domain and reserves them for a federal purpose, it implicitly reserves unappropriated water to the “extent needed to accomplish the purpose of the reservation.” The Court held, therefore, that the definition of “public lands” with regard to ANILCA includes those navigable waters in which the United States has an interest by virtue of the Reserved Water Rights Doctrine.
After the state appealed the Appeals Court ruling, the US Supreme Court declined to review the Katie John case. This is evidence that Katie John still acts as precedent, at least for federal agencies who are mandated to apply the dual management scheme for subsistence to navigable waters reserved for the purpose of federal land withdrawals in Alaska. Similarly, Alaska subsistence statutes continue to grant subsistence priority over other consumptive uses.
Despite the Supreme Court’s implicit endorsement of the Appeals Court decision in Katie John, protection of subsistence resources for Native and other rural Alaskans came under threat a decade later under the Court’s opinion in Sturgeon v. Frost, which set the stage to argue that under the Alaska National Interest Land Claims Act, federal regulations do not supersede state law on rivers running through federal lands. The concern is that several recent state’s lawsuits regarding quiet title actions on state lands, could lead the courts to apply Sturgeon to federal subsistence laws and also throw out their applicability (See, Federal Subsistence Priority Under Threat).
Robert Anderson, an attorney working in the Department of Interior Solicitors Office, said, regarding the precedent-setting subsistence protection Katie John litigation for which he was the lead attorney, “[This] also is a story that will never end, for population pressures, commercial fishing interests, government indifference, and hostility forever have the potential to diminish or undermine longstanding rights.”
The Norton Bay Watershed Council is reaching out to tribal governments to ask whether they are familiar with state and federal water disputes that could affect the Katie John precedent and whether they would be interested in consulting with the National Park Service on protection of tribal interests, and joining a federal working group established to study and take measures to address the issue.
Please contact Hal Shepherd (firstname.lastname@example.org) if you would like more information.
 Alaska v. Babbitt (Katie John II), 72 F.3d 698, 703 (9th Cir. 1995).