[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Proposed Rules]
[Pages 8538-8539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5009]



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DEPARTMENT OF THE INTERIOR
Minerals Management Service

43 CFR Part 14


Aboriginal Title To The Alaska Outer Continental Shelf

AGENCY: Minerals Management Service (MMS), Department of the Interior.

ACTION: Notice of receipt of petition for rulemaking and request for 
comments.

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SUMMARY: The Department of the Interior announces receipt of, and 
requests comments on, a petition for rulemaking on issues regarding 
claimed aboriginal title and aboriginal hunting and fishing rights of 
federally recognized tribes in Alaska exercisable on the federal Outer 
Continental Shelf (OCS).

DATES: Comments on the petition are requested through April 4, 1996.

ADDRESSES: Comments on the petition should be directed to: Paul Stang, 
Chief, Branch of Leasing Coordination, Office of Program Development 
and Coordination, (MS-4410) Minerals Management Service, 381 Elden 
Street, Herndon, Virginia 20270-4817. Please indicate that your comment 
is in response to the petition for rulemaking on aboriginal title and 
rights on the Alaska OCS.

FOR FURTHER INFORMATION CONTACT:
William Quinn at (703) 787-1191.

SUPPLEMENTARY INFORMATION: The Villages of Eyak, Tatilek, Chenega, Port 
Graham and Nanwalek have petitioned the Secretary to promulgate a rule 
stating that 225 federally recognized tribes in Alaska may claim 
aboriginal title and aboriginal hunting and fishing rights to the Outer 
Continental Shelf (OCS) and to make leases on the OCS off Alaska 
subject to claimed aboriginal title and rights of such tribes. The MMS 
is the agency within the Department of the Interior responsible for 
issuing and managing mineral leases on the OCS pursuant to the Outer 
Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., hence its 
involvement in this matter.
    The initial petition was addressed to both the Secretary of the 
Interior and the Secretary of Commerce and did not designate any 
existing rule for revision or propose a new rule text. Therefore, the 
Secretary's office notified the Villages that under 43 CFR 14.2, a 
petition for rulemaking must include the text of a rule that the 
petitioner proposes for adoption. On September 1, 1995, the Solicitor 
of the Department received a letter from counsel for the petitioning 
Villages proposing the following rule:
    ``Proposed regulation of the Secretary of the Interior for the 
protection of aboriginal title and aboriginal hunting and fishing 
rights on the Outer Continental Shelf of federally recognized tribes in 
Alaska.

    ``1. The Department recognizes that the 225 native Villages on 
the Secretary's list of ``Native Entities within the State of Alaska 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs,'' 60 Fed. Reg. 9250, February 16, 1995, 
are Native Tribes capable of possessing aboriginal claims. County of 
Oneida v. Oneida Indian Nation, 470 U.S. 226, 233 (1974).
    ``2. Although the existence and scope of the aboriginal titles 
of individual Alaskan tribes has not yet been determined, based on 
the historical and contemporary evidence available the Department 
recognizes that many Alaska coastal tribes have continuously and 
exclusively occupied areas of the OCS off Alaska for long periods of 
time and thus possess the potential to establish prima facie 

[[Page 8539]]
cases of aboriginal title to their respective traditional use areas.
    ``3. The Department recognizes that the aboriginal title and 
rights of such tribes were not extinguished by the Alaska Native 
Claims Settlement Act (ANCSA), 43 U.S.C. 1601, et seq., the Outer 
continental Shelf Lands Act, 43 U.S.C. 1331, et seq. or by any other 
Congressional Act. Nor, is the continuing existence of such rights 
contrary to the Paramountcy Doctrine (see United States v. 
California, 332 U.S. 19 (1947); United States v. Maine, 420 U.S. 515 
(1975); and United States v. Louisiana, 339 U.S. 699 (1950) or to 
the Ninth Circuit decisions in Native Village of Gambell v. Hodel, 
869 F.2d 1273 (9th Cir. 1989) (Gambell III) or Gambell v. Babbitt, 
999 F.2d 403 (9th Cir. 1993) (Gambell IV).
    ``4. Hereafter all Alaska native tribes whose aboriginal 
territory or aboriginal rights to the OCS would likely suffer 
trespass or be disturbed or affected in any significant way by 
Departmental leases of the OCS off the coast of Alaska, shall be 
given written notice of such sale and of this regulation at least 
180 days prior to the official sale of such leases. Oil, gas, or 
other mineral leases that would likely cause disruptive effects 
merely by nature of their proximity to aboriginal territory are 
included within this notice requirement.
    ``The types of disruptions or effects requiring such prior 
notice include any potential trespass upon the tribes' aboriginal 
hunting and fishing grounds, or any potentially significant 
disturbance, depletion, or interference with Native hunting, fishing 
or exploitation of other resources or other uses of their aboriginal 
territory.
    ``5. The Department recognizes that all existing as well as 
future leases of the OCS off Alaska are subject to the aboriginal 
title and aboriginal hunting and fishing rights of Alaskan Native 
Tribes.''

    The matter addressed in the petition has been the subject of 
litigation for many years now and is currently the subject of 
litigation brought by the petitioning Villages seeking to halt proposed 
OCS Lease Sale 149 in the Cook Inlet in Alaska. Native Village of Eyak, 
et al. v. Trawler Diane Marie, Inc., et al., Case No. A95-0063 CIV 
(HRH) (D. Alaska, filed Feb. 23, 1995). The Government has consistently 
taken the position that no person or entity has title to, or hunting 
and fishing rights on, the Alaska OCS. Rather, the Alaska OCS is 
subject to the paramount authority of the Federal Government, and to 
uses permitted by the United States pursuant to the Outer Continental 
Shelf Lands Act, 43 U.S.C. 1331 et seq.
    Nevertheless, in fairness to the Villages, the MMS is publishing 
the text of the rule pursuant to 43 CFR part 14 and invites 
knowledgeable parties to comment on it and to consider the following:
    1. Should we engage in this rulemaking?
    2. Would such a rule be consistent with the laws governing the OCS?
    3. Would granting the rule be consistent with the paramount 
interest of the United States?
    4. Do we have other mechanisms sufficient to protect claimed Native 
interests? and,
    5. Where should undertaking such rulemaking fit in among the other 
priorities of the agency?
    Anyone so wishing should submit comments to MMS at the address 
above. In a separate Federal Register notice, MMS is also pursuing 
factual inquiry into the potential nature and extent of the claims of 
the five petitioning Villages with respect to the areas proposed for 
lease in Cook Inlet Sale 149 and Gulf of Alaska-Yakutat Sale 158 in 
connection with the decisions to conduct such sales.

    Dated: February 26, 1996.
Cynthia Quarterman,
Director, Minerals Management Service.
[FR Doc. 96-5009 Filed 3-4-96; 8:45 am]
BILLING CODE 4310-MR-M