FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

METLAKATLA INDIAN 

COMMUNITY, a Federally 

Recognized Indian Tribe, 

Plaintiff-Appellant,

v.

MICHAEL J. DUNLEAVY, 

Governor of the State of Alaska; 

DOUG VINCENT-LANG, 

Commissioner of the Alaska 

Department of Fish and Game; 

AMANDA PRICE, Commissioner of 

the Alaska Department of Public 

Safety, 

Defendants-Appellees.

No. 21-35185

D.C. No. 5:20-

cv-00008-JWS

ORDER AND

AMENDED 

OPINION

Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted December 6, 2021

Pasadena, California
2 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

Filed September 8, 2022 

Amended January 31, 2023 

Before: William A. Fletcher, Johnnie B. Rawlinson, and 

John B. Owens, Circuit Judges. 

Order; 

Opinion by Judge W. Fletcher 

SUMMARY*

Indian Law

The panel filed (1) an order amending its opinion, 

denying a petition for panel rehearing, and denying, on 

behalf of the court, a petition for rehearing en banc; and (2) 

an amended opinion reversing the district court’s dismissal, 

for failure to state a claim, of the Metlakatlan Indian 

Community’s suit against Alaskan officials, claiming that 

an 1891 statute granted the Community and its members 

the right to fish in the off-reservation waters where they 

had traditionally fished, and that they therefore were not 

subject to an Alaska statute’s limited entry program for 

commercial fishing in waters designated as Districts 1 and 

2. 

The 1891 Act established the Annette Islands Reserve 

as the Community’s reservation. The panel held that the 

1891 Act also granted to the Community and its members a 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 3 

non-exclusive right to fish in the off-reservation waters 

where they had traditionally fished. The panel applied the 

Indian canon of construction, which required it to construe 

the 1891 Act liberally in favor of the Community and to 

infer rights that supported the purpose of the reservation. 

In Alaska Pac. Fisheries v. United States, 248 U.S. 78 

(1918), the Supreme Court inferred a fishing right from the 

1891 Act. At issue was the scope of that right. The panel 

concluded that a central purpose of the reservation, 

understood in light of the history of the Community, was 

that the Metlakatlans would continue to support themselves 

by fishing. The panel therefore held that the 1891 Act 

preserved for the Community and its members an implied 

right to non-exclusive off-reservation fishing for personal 

consumption and ceremonial purposes, as well as for 

commercial purposes. 

The panel reversed the decision of the district court and 

remanded to allow further proceedings to determine 

whether the Community’s traditional off-reservation fishing 

grounds included the waters within Alaska’s Districts 1 and 

2. 

COUNSEL

Julie A. Weis (argued), Christopher G. Lundberg, and 

Christopher T. Griffith, Haglund Kelley LLP, Portland, 

Oregon, for Plaintiff-Appellant.

Laura E. Wolff (argued) and Christopher F. Orman, 

Assistant Attorneys General; Treg R. Taylor, Attorney 

General, Office of the Alaska Attorney General, Anchorage, 

Alaska; for Defendants-Appellees.
4 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

ORDER

The opinion filed on September 8, 2022, and published 

at 48 F.4th 963, is hereby amended and replaced by the 

amended opinion filed concurrently with this order. 

With this amendment, Judges W. Fletcher, Rawlinson, 

and Owens have voted to deny the petition for panel 

rehearing. Judges Rawlinson and Owens have voted to 

deny the petition for rehearing en banc, and Judge W. 

Fletcher so recommends. 

The full court has been advised of the petition, and no 

judge of the court has requested a vote on the petition for 

rehearing en banc. Fed. R. App. P. 35. 

Appellees’ petition for panel and en banc rehearing 

(Dkt. No. 40) is DENIED. No further petitions for 

rehearing or rehearing en banc will be entertained. 

OPINION

W. FLETCHER, Circuit Judge: 

Since time immemorial, members of the Metlakatlan 

Indian Community (“the Community”) and their Tsimshian 

ancestors have inhabited the coast of the Pacific Northwest 

and fished in its waters. In 1887, at the invitation of 

President Grover Cleveland, the Community relocated from 

British Columbia, Canada, to the Annette Islands in what 

was then the United States Territory of Alaska. In 1891, 

Congress passed a statute (the “1891 Act”) recognizing the 

Community and establishing the Annette Islands Reserve 

as its reservation. 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 5

In 1916, President Woodrow Wilson proclaimed that 

the Metlakatlans’ reservation extends 3,000 feet from the 

shoreline of the Annette Islands, and that the Metlakatlans 

have an exclusive right to fish within the reservation 

boundaries (the “Proclamation”). After the Proclamation, 

the Metlakatlans continued to fish, as they always had, both 

in the waters immediately surrounding the islands and in 

waters far from the islands’ shores. In subsequent years, 

courts, federal agencies, and the Territory of Alaska 

acknowledged with approval that the Metlakatlans fished in 

their traditional off-reservation waters. 

In 1972, Alaska amended its constitution to authorize 

the State to restrict the entry of new participants into 

commercial fisheries in state waters. Pursuant to the 

amendment, Alaska enacted a statute creating a limited 

entry program for commercial fishing. In 2020, in response 

to Alaska’s attempt to subject the Metlakatlans to its 

limited entry program, the Community sued Alaskan 

officials in federal district court. The Community 

contended that the 1891 Act grants to the Community and 

its members the right to fish in the off-reservation waters 

where Community members have traditionally fished. The 

district court disagreed, holding that the Act provides no 

such right. 

We reverse. We hold that the 1891 Act grants to the 

Community and its members a non-exclusive right to fish 

in the off-reservation waters where they have traditionally 

fished.

I. Historical Background

Community members are descendants of the Tsimshian 

people indigenous to the Pacific Northwest. Tsimshian 

fishermen long followed the fish runs along the coast and in 
6 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

the rivers of what is now British Columbia, establishing 

temporary villages to obtain fish for subsistence, use in 

cultural practices, and trade. Marjorie M. Halpin & 

Margaret Seguin, Tsimshian Peoples: Southern Tsimshian, 

Coast Tsimshian, Nishga, and Gitksan, in 7 Handbook of 

North American Indians 267, 268–71, 281 (Wayne Suttles 

& William Sturtevant eds., 1990). Historical sources 

indicate that they fished as far north as 50 miles from the 

Annette Islands in what is now the State of Alaska. 

In 1862, a group of Tsimshians joined a lay Anglican 

missionary, “Father Duncan,” in establishing a coastal 

community at Metlakatla, British Columbia. See Andrew 

Martindale et al., Bending but Unbroken: The Nine Tribes 

of the Northern Tsimshian Through the Colonial Era, in 

Power, Political Economy, and Historical Landscapes of 

the Modern World 251, 270 (Christopher R. DeCorse ed., 

2019); Halpin & Seguin, supra, at 281. The name 

Metlakatla—a Tsimshian word that means “place beside 

calm water”—reflects a relationship with rivers and the sea 

that, for Tsimshian peoples, centers on fishing as the 

“bedrock of the Tsimshian culture and way of life.” 

Professor Brian Hosmer observed: 

[Tsimshian cultural stories] reveal[] a great 

deal about the way Tsimshians understand 

their world. Away from human beings, 

salmon live as people, in villages, with 

chiefs, organizing their lives around the 

annual runs, which appeared to them as 

cottonwood leaves. It is only when the 

humans and salmon are in contact that 

salmon “people” take on their familiar form. 

Their relationship is reciprocal. Salmon 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 7

runs would continue only so long as humans 

remain faithful to rituals . . .

Brian C. Hosmer, American Indians in the Marketplace: 

Persistence and Innovation Among the Menominees and 

Metlakatlans, 1870-1920 115 (1999). 

The Tsimshians who gathered at Metlakatla began a 

communal commercial fishing enterprise. Id. at 149. In 

1884, the Community established a fish cannery. The 

cannery turned out 8,300 cases of canned fish in its first 

year of operation. Id. at 183. 

In the 1880s, Canada began to impose a reserve system 

throughout Tsimshian territory, dividing tribal land into 

allotments to be distributed to individual tribal families. 

Martindale, supra, at 274. In 1883 and 1884, Canada 

placed Metlakatla under the ambit of its Indian Act and 

appointed an agent to oversee community affairs. Hosmer, 

supra, at 191. At the same time, non-Indian fishermen and 

canneries began to compete with the Metlakatlans. See id. 

at 193. Before the Canadian provincial court, the 

Metlakatlans advocated for recognition of their aboriginal 

territorial rights and their attendant resource rights. See id.

at 198; Peter Murray, The Devil and Mr. Duncan: A 

History of the Two Metlakatlas 184–87 (1985). After the 

provincial Supreme Court denied the Metlakatlans such 

recognition, Metlakatla’s tribal council authorized Father 

Duncan to travel to Washington, D.C., to attempt to secure 

land for the Metlakatlans in the Territory of Alaska. 

Hosmer, supra, at 198; Murray, supra, at 190.

In March 1887, a group of five Metlakatlans traveled to 

the Territory of Alaska in search of a new home. Susan 

Neylan, “Choose Your Flag”: Perspectives on the 
8 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

Tsimshian Migration from Metlakatla, British Columbia, to 

New Metlakatla, Alaska, 1887, in New Histories for Old: 

Changing Perspectives on Canada’s Native Pasts 196, 198 

(Theodore Binnema & Susan Neylan eds., 2007). The 

group chose the nearby Annette Islands because of the 

islands’ easy access to waters with abundant fish. Alaska 

Pac. Fisheries v. United States, 248 U.S. 78, 88 (1918) 

(“[The Metlakatlans] looked upon the islands as a suitable 

location . . . because the fishery adjacent to the shore would 

afford a primary means of subsistence and a promising 

opportunity for industrial and commercial development.”); 

Neylan, supra, at 211; Brief for Appellant at 11, Metlakatla 

Indian Cmty., Annette Islands Rsrv. v. Egan, 363 U.S. 555 

(1960) (No. 326) (“[The Metlakatlans] specifically selected 

the Annette Islands because of their fishing potential.”). At 

the invitation of President Cleveland, the remainder of the 

823 Metlakatlans followed on August 7, 1887. 21 Cong. 

Rec. 10092 (1890); Neylan, supra, at 199; Hosmer, supra, 

at 200; Nat’l Surv. of Hist. Sites & Bldgs., U.S. Dep’t of 

the Interior & Nat’l Park Serv., Alaska History: 1741-1910, 

at 127, 209 (1961). Years later, reflecting on the migration, 

Metlakatlan Rod Davis recounted,

When we landed in . . . Alaska, now, at the 

time it was a nice beautiful day. How well I 

remember that day; it was bright and sunny, 

and there was a lot of fish. We camped at 

one of the creeks on Saturday night . . . and 

in those days that creek was just loaded with 

salmon, pink salmon. There must have been 

millions of them in that creek. How well I 

remember. 

Neylan, supra, at 211.
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 9

After moving to the Annette Islands, the Metlakatlans 

continued to fish throughout the waters of Southeast 

Alaska. See Hosmer, supra, at 200–01. In 1891, four years 

after the Metlakatlans moved to the islands, Congress 

passed the 1891 Act, recognizing the Metlakatlan Indian 

Community and establishing the Annette Islands as the 

Community’s reservation. The Act, later codified as 

amended at 25 U.S.C. § 495, provided:

That until otherwise provided by law the 

body of lands known as Annette Islands, 

situated in Alexander Archipelago in 

Southeastern Alaska, on the north side of 

Dixon’s entrance, be . . . set apart as a 

reservation for the use of the Metlakahtla 

[sic] Indians, and those people known as 

Metlakahtlans [sic] who have recently 

emigrated from British Columbia to Alaska, 

and such other Alaskan natives as may join 

them, to be held and used by them in 

common, under such rules and regulations, 

and subject to such restrictions, as may [be] 

prescribed from time to time by the 

Secretary of the Interior. 

Act of Mar. 3, 1891, ch. 561, § 15, 26 Stat. 1101 (1891).

After Congress established the reservation, Community 

members continued to fish where they had always fished, 

both in the waters immediately surrounding the reservation 

and in the waters miles away. Hosmer, supra, at 203, 205. 

Reports by federal agencies and federal officials 

documented Metlakatlans fishing up to 50 miles from the 

reservation. Jefferson F. Moser, U.S. Comm’n of Fish & 
10 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

Fisheries, The Salmon and Salmon Fisheries of Alaska: 

Report of the Operations of the United States Fish 

Commission Steamer Albatross for the Year Ending June 

30, 1898, at 63, 68 (1899) (identifying sites at Quadra Bay 

and Moira Sound); Jefferson Moser, U.S. Comm’n of Fish 

& Fisheries, The Salmon and Salmon Fisheries of Alaska: 

Report of the Alaskan Salmon Investigations of the United 

States Fish Commission Steamer Albatross in 1900 and 

1901, at 298 (1902) (identifying sites at Home Stream, 

Tamgas, Quadra Bay, Karta Bay, Kithraum, Peter Johnson, 

Nowiskay, Old Johnson, Kegan, and Kagahine); George R. 

Tingle, Inspector of Salmon Fisheries, Special Agent Div., 

U.S. Treasury Dep’t, Report on the Salmon Fisheries in 

Alaska, 1896, at 5, 21 (1897) (identifying sites at Naha 

Bay, Karta Bay, and Kah Shakes Cove); see Hosmer, 

supra, at 203 (concluding that these practices “provid[e] 

convincing evidence that they did not equate immigration 

with a relinquishing of their aboriginal resource rights”). 

Father Duncan’s letters corroborate these reports, 

documenting Metlakatlan fishing throughout the southern 

Alaska panhandle. Hosmer, supra, at 205. 

Fishing at these off-reservation locations supplied a 

cannery that Metlakatlans established on the reservation in 

1891. This cannery replaced the cannery they had 

established at Metlakatla, British Columbia, before they 

moved to the Annette Islands. Moser, 1900 and 1901, 

supra, at 297–98; Hosmer, supra, at 201–02. By 1900, the 

cannery had annual output of more than 17,000 cases of 

cans. Moser, 1900 and 1901, supra, at 298. By 1912, total 

production reached nearly 300,000 cases. Hosmer, supra, 

at 201. Metlakatlans also continued to rely on fish for 

cultural practices, including feasts for observances of birth, 

marriage, death, and other important life transitions 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 11

entailing consuming, giving, and exchanging fish. 

According to Professor Hosmer, the Metlakatlans 

“successfully picked up and relocated, hardly missing a 

beat.” Id. at 204. 

In 1915, the Secretary of the Interior promulgated 

regulations establishing an elected Community council with 

authority to enact local ordinances for the reservation, and 

allowing Community members to obtain federal permits for 

the use of salmon traps in waters adjacent to the Annette 

Islands. See Metlakatla Indian Cmty., Annette Islands 

Rsrv. v. Egan, 369 U.S. 45, 48 (1962). 

In 1916, President Wilson proclaimed that the waters 

3,000 feet from the shoreline of the Annette Islands were 

reserved for the exclusive use of the Metlakatlans. The 

Proclamation provides:

Now, therefore, I, Woodrow Wilson, 

President of the United States of America, 

by virtue of the power in me vested by the 

laws of the United States, do hereby make 

known and proclaim that the waters within 

three thousand feet from the shore lines at 

mean low tide of Annette Island, Ham 

Island, Walker Island, Lewis Island, Spire 

Island, Hemlock Island, and adjacent rocks 

and islets, located within the area segregated 

by the broken line upon the diagram hereto 

attached and made a part of this 

proclamation; also the bays of said islands, 

rocks, and islets, are hereby reserved for the 

benefit of the Metlakahtlans [sic] and such 

other Alaskan natives as have joined them or 

may join them in residence on these islands, 
12 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

to be used by them under the general 

fisheries laws and regulations of the United 

States as administered by the Secretary of 

Commerce.

Proclamation No. 1332, 39 Stat. 1777–78 (Apr. 28, 1916).

The Department of the Interior promulgated the 

Proclamation as a regulation at 25 C.F.R. § 241.2. The 

Community’s cannery operations were thereafter organized 

under the aegis of the Annette Island Packing Company. 

See Territory v. Annette Island Packing Co., 6 Alaska 585 

(D. Alaska 1922), aff’d, 289 F. 671 (9th Cir. 1923), cert. 

denied, 263 U.S. 708 (1923). 

In 1916, shortly before President Wilson issued the 

Proclamation, non-Indians had placed a fish trap 600 feet 

off the shore of the reservation. The United States brought 

suit in the district court for the Territory of Alaska, seeking 

an injunction that would require removal of the trap. The 

court granted the injunction. It wrote:

In passing [the 1891 Act], Congress must be 

held to have known (what every one else 

knew) that the Indians of Alaska are fisher 

folk and hunters and trappers, and largely, if 

not entirely, dependent for their livelihood 

upon the yield of such vocations. It must be 

held to have known that without the food 

yield of the sea these Indians could not 

survive, for the Annette Islands would not of 

themselves, “as land,” afford a subsistence

for a community of souls; there being little 

or no agricultural land on the islands, or for 

that matter in all Southeastern Alaska. 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 13

United States v. Alaska Pac. Fisheries, 5 Alaska 484, 486–

87 (D. Alaska 1916). 

The Supreme Court affirmed. In Alaska Pacific 

Fisheries, 248 U.S. at 89, the Court held that the 1891 Act 

establishing the reservation granted an exclusive right to 

Metlakatlans to fish in the “fishing grounds” “adjacent” to 

the Annette Islands. The Court wrote: 

After their settlement and before the 

reservation was created, the Indians . . . 

adopted a form of self-government suited to 

their needs . . . and constructed and installed 

an extensive establishment where they 

canned salmon for the market. The purpose 

of creating the reservation was to encourage, 

assist and protect the Indians in their effort 

to train themselves to habits of industry 

[and] become self-sustaining . . . . Evidently 

Congress intended to conform its action to 

their situation and needs.

Id. at 88–89. In affirming the injunction requiring the 

removal of the non-Indians’ fish trap, the Supreme Court 

relied only on the 1891 Act. It did not rely on, or even 

mention, the 3,000-foot boundary established by President 

Wilson’s 1916 Proclamation. See also Egan, 369 U.S. at 

49 (“In 1918, without reference to the proclamation, this 

Court upheld the right of the Metlakatlans to exclude others 

from the waters surrounding their islands on the ground 

that these waters were included within the original 

reservation by Congress.” (citing Alaska Pacfic Fisheries 

v. United States, 248 U.S. 78)).
14 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

After the Supreme Court’s decision in Alaska Pacific 

Fisheries, Metlakatlans continued to fish in the offreservation waters where they had always fished. An 

internal Department of the Interior report in 1920 recounted 

that “Metlakatla natives did, as they have from time 

immemorial, go beyond the [reservation’s] limit[s] to seine 

fish.” The Territory of Alaska acknowledged the 

geographical extent of the Metlakatlans’ traditional fishing 

grounds in a tax dispute arising out of the Community’s 

commercial fishing. In its answer to the Secretary of the 

Interior’s complaint-in-intervention, Alaska wrote: 

[T]he right of the inhabitants of said Annette 

Island[s] reserve to catch fish outside of the 

reserve . . . has always been and is now 

recognized by the [Secretary of the Interior] 

and by the Government of the United States, 

and such right is and at all times has been 

claimed by the said Metlakatla people.

Answer to Complaint in Intervention, at 5, Territory v. 

Annette Island Packing Co., 6 Alaska 585 (No. 2023-A). 

In deciding the tax dispute, the territorial court noted that 

fish for the Metlakatlan cannery were “secured from any 

waters” and that, in 1919, the cannery had processed 

“approximately 130,000 salmon caught by Indian residents 

of Metlakahtla [sic] outside of the Annette Indian reserve 

and its reserved waters.” Annette Island Packing Co., 6 

Alaska at 592 (agreed statement of facts).

Congress granted statehood to Alaska in 1958. Pub. L. 

No. 85-508, § 6(e), 72 Stat. 339, 340 (1958). In 1972, 

Alaskans adopted a constitutional amendment that 

authorized the State to limit the entry of new participants 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 15

into commercial fisheries in Alaskan waters. Alaska Const. 

art. VIII, § 15. In 1973, pursuant to that amendment, 

Alaska instituted a “limited entry” program to regulate 

commercial fishing. Alaska Stat. § 16.43.010.

In recent years, changing conditions have threatened 

fish stocks available to the Community. Community 

members primarily fish for salmon. Migratory fish such as 

salmon are subject to changes in their migratory routes in 

response to environmental conditions, including climate 

change. Non-Indian commercial fishing practices in the 

State-managed fishing areas surrounding the Community’s 

exclusive zone have put a substantial strain on Community 

fish yields. State-managed fisheries sometimes intercept 

salmon before they return to the Community’s exclusive 

zone. Community members also fish for herring. The 

Community has adopted a management strategy that has 

increased the exclusive zone’s herring biomass to more 

than 20,000 tons—one of the largest herring stocks in 

Southeast Alaska. However, when herring leave the 

exclusive zone, Alaska’s limited entry program restricts 

access to the herring by Community members. 

II. Proceedings Below

On August 7, 2020, the Community sued Alaskan 

officials in federal district court, alleging that Alaska’s 

limited entry program illegally restricts Community 

members’ right to fish outside the reservation boundaries.

The Community’s complaint seeks (1) a declaration that 

“Congress’ reservation of the Annette Islands Reserve for 

the Metlakatla Indian Community included the nonexclusive right to fish in waters adjacent to the Reserve 

currently designated as Districts 1 and 2, free from 

unreasonable interference by the defendants, and that such 
16 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

right has not been revoked or diminished”; and (2) “a 

permanent injunction barring the defendants from asserting 

jurisdiction over the Community and its members 

inconsistent with the Community’s reserved fishing rights, 

and from otherwise unreasonably interfering with the 

Community’s reserved fishing rights.” 

Defendants moved to dismiss the complaint for failure 

to state a claim under Rule 12(b)(6). The Community 

opposed the motion and requested oral argument. The 

district court denied the request for oral argument and 

granted the motion to dismiss. The court determined that 

the Community failed to state a claim for relief because, in 

the view of the court, the 1891 Act did not reserve offreservation fishing rights for the Community and its 

members.

The Community timely appealed. For the reasons that 

follow, we reverse. 

III. Standard of Review

We review de novo a dismissal for failure to state a 

claim under Rule 12(b)(6). United States v. Washington, 

853 F.3d 946, 961 (9th Cir. 2017). We review de novo 

questions of statutory interpretation. Confederated Tribes 

of Chehalis Indian Rsrv. v. State of Washington, 96 F.3d 

334, 340 (9th Cir. 1996). We review for abuse of 

discretion a decision to grant or deny permanent injunctive 

relief, but we review de novo the underlying legal 

conclusions on which the district court based its decision. 

United States v. Oregon, 470 F.3d 809, 810 n.2 (9th Cir. 

2006). 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 17

IV. Discussion

A. Indian Canon of Construction

Statutes that touch upon federal Indian law “are to be 

construed liberally in favor of the Indians, with ambiguous 

provisions interpreted to their benefit.” Swinomish Indian 

Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142, 1156 (9th 

Cir. 2020) (quoting Montana v. Blackfeet Tribe of Indians, 

471 U.S. 759, 766 (1985)); Chehalis, 96 F.3d at 340 

(“Courts have uniformly held that treaties, statutes[,] and 

executive orders must be liberally construed in favor of 

establishing Indian rights.”). Statutes that create 

reservations, like treaties and executive orders, “are 

interpreted as the Indians would have understood them.” 

Chehalis, 96 F.3d at 342 (citing Parravano v. Babbitt, 70 

F.3d 539, 544 (9th Cir. 1995), cert. denied, 518 U.S. 1016 

(1996)); Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 

1251, 1257 n.6 (9th Cir. 1983), cert. denied, 465 U.S. 1049 

(1984) (“This principle of treaty construction applies with 

equal force to statutes passed for the benefit of Indians and 

to executive orders.” (citations omitted)). A right will be 

inferred when that right supports a purpose for which a 

reservation was established. Winters v. United States, 207 

U.S. 564, 576–77 (1908). Because the purposes of 

reservations are often unarticulated in a statute, treaty, or 

executive order, we consider “the circumstances 

surrounding their creation[] and the history of the Indians 

for whom they were created.” Chehalis, 96 F.3d at 342

(citing Colville Confederated Tribes v. Walton, 647 F.2d 

42, 47 (9th Cir. 1981)), cert. denied, 454 U.S. 1092 (1981). 

“We also consider their need to maintain themselves under 

changed circumstances.” Colville, 647 F.2d at 47. These 

interpretive principles “are rooted in the unique trust 

relationship between the United States and the Indians.” 
18 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

Oneida Cnty. v. Oneida Indian Nation of New York State, 

470 U.S. 226, 247 (1985). 

B. Implied Off-Reservation Rights

The Indian canon requires us to infer rights that support 

a reservation’s purpose. The seminal case is Winters v. 

United States, in which the Court found implied water 

rights that supported the purpose of the Fort Belknap 

Reservation. 207 U.S. at 576–77. The reservation had 

been created by an agreement between the United States 

and the Gros Ventre and Assiniboine Tribes. Id. at 565. 

The purpose of the reservation was to encourage the Tribes 

to give up their “nomadic” way of life and to become 

farmers. Id. at 576. No provision was made in the 

agreement for water to irrigate the arid land on the 

reservation. The Court chose “between two inferences[—

]one of which would support the purpose of the agreement 

and the other impair or defeat it.” Id. at 577 (emphasis 

added). The Court chose the former inference on the 

ground that the agreement creating the reservation should 

be construed to imply a right to water for irrigation in order 

not to “defeat the declared purpose” of the agreement. Id.

In Arizona v. California, 373 U.S. 546 (1963), the 

Court inferred a right to irrigation water from the Colorado 

River for five Indian reservations. One of the reservations 

had been created by statute; the other four had been created 

by executive order. Id. at 596. Citing Winters, the Court 

held that all five reservations had implied rights to water 

for irrigation. Id. at 599–600. The Court affirmed the 

Special Master, who had concluded “that the water was 

intended to satisfy the future as well as the present needs of 

the Indian Reservations and ruled that enough water was 

reserved to irrigate all of the practicably irrigable acreage 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 19

on the reservations.” Id. (emphasis added); see also United 

States v. New Mexico, 438 U.S. 696, 702 (1978) (“Where 

water is necessary to fulfill the very purposes for which a 

federal reservation was created, it is reasonable to 

conclude, even in the face of Congress’ express deference 

to state water law in other areas, that the United States 

intended to reserve the necessary water.”). 

We have applied the Winters implied-rights rule in 

several cases in this circuit. In Colville, 647 F.2d at 45, an 

agreement between the United States and the tribes 

established a reservation in eastern Washington. We 

construed the purposes of the reservation broadly: “The 

specific purposes of an Indian reservation . . . were often 

unarticulated. The general purpose, to provide a home for 

the Indians, is a broad one and must be liberally construed.” 

Id. at 47 (footnotes omitted). We wrote: “Congress 

intended to deal fairly with the Indians by reserving waters 

without which their lands would be useless.” Id. We held 

that there was an implied right not only to water for 

irrigation, but also to water for streams for spawning trout. 

We wrote:

Providing for a land-based agrarian society, 

however, was not the only purpose for 

creating the reservation. The Colvilles 

traditionally fished for both salmon and 

trout. Like other Pacific Northwest Indians, 

fishing was of economic and religious 

importance to them. . . . The Tribe’s 

principal historic fishing grounds on the 

Columbia River have been destroyed by 

dams. The Indians have established 

replacement fishing grounds in Omak Lake 
20 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

by planting a non-indigenous trout. . . . 

[P]reservation of the tribe’s access to fishing 

grounds was one purpose for the creation of 

the Colville reservation. Under the 

circumstances, we find an implied 

reservation of water . . . for the development 

and maintenance of replacement fishing 

grounds.

Id. at 48 (citations omitted).

In United States v. Adair, 723 F.2d 1394, 1397–98 (9th 

Cir. 1983), a treaty established a reservation for the 

Klamath Tribe in eastern Oregon. The treaty promised that 

the Tribe would have the right to “hunt, fish, and gather on 

their reservation,” id. at 1398, but did not mention any right 

to water. A purpose of the reservation was to “secure to the 

Tribe a continuation of its traditional hunting and fishing” 

way of life. Id. at 1409. Because game and fish on the 

reservation depended on a continuous flow of water from 

the Williamson River, we held that there was an implied 

right under the treaty to an amount of river water that 

would ensure an adequate amount of game and fish for the 

Tribe. Id. at 1411; see also Washington, 853 F.3d at 965 

(“[E]ven if Governor Stevens had made no explicit 

promise, we would infer . . . a promise to ‘support the 

purpose’ of the Treaties. . . . [T]he Tribes’ right of access to 

their usual and accustomed fishing places would be 

worthless without harvestable fish.”). 

Our sister circuit endorsed the application of the 

Winters framework to the context of off-reservation fishing 

rights in United States v. Michigan, 653 F.2d 277 (6th Cir. 

1981). The Sixth Circuit affirmed the district court’s 

holding that a treaty reserved for the Sault Ste. Marie Tribe 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 21

of Chippewa Indians of Michigan and Bay Mills Indian 

Community implied non-exclusive fishing rights in certain 

areas of the Great Lakes. United States v. Michigan, 471 F. 

Supp. 192, 253, 258 (W.D. Mich. 1979), aff’d, 653 F.2d 

277. The district court concluded that the historical 

evidence “demonstrat[ed] that the Indians were absolutely 

dependent upon fishing for subsistence and their 

livelihood” such that “they would not have relinquished 

their right to fish in the ceded waters of the Great Lakes.” 

Id. at 253. Applying Winters, the district court held that the 

treaty “impliedly reserved a right to fish commercially and 

for subsistence” in those areas of the Great Lakes because 

(1) the treaty lacked “language expressly relinquishing the 

aboriginal right of the . . . Indians to fish in the . . . waters”; 

(2) at the time of the treaty, “commercial fishing was 

essential to the livelihood of these Indians and for them to 

have relinquished fishing rights would have been 

tantamount to agreeing to a systematic annihilation of their 

culture, and perhaps of their very existence”; (3) the tribes 

and the federal government “were aware that the Indians 

had no way of sustaining themselves in Michigan except by 

fishing”; and (4) “the Indians did not understand the treaty 

to limit their right to fish.” Id. at 257–58.

C. The Community’s Off-Reservation Fishing Right

The question before us is not the existence of implied 

fishing rights of the Community. In Alaska Pacific 

Fisheries, 248 U.S. at 88–89, the Supreme Court answered 

this threshold question when it inferred a fishing right from 

the 1891 Act, relying on that right to affirm an injunction 

against a non-Indian fish trap 600 feet from the shore of the 

Community’s reservation. We thus know from Alaska 

Pacific Fisheries that there is an implied fishing right 

stemming from the 1891 Act. The question before us is the 
22 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

scope of that right. A central purpose of the reservation, 

understood in light of the history of the Community, 

provides the answer. 

As described above, since time immemorial 

Metlakatlans have fished outside the boundaries of their 

current reservation. Before the arrival of European settlers, 

they fished throughout the waters of Southeast Alaska for 

ceremonial purposes, for personal consumption, and for 

trade. Shortly before they came to the Annette Islands, 

Metlakatlans established a commercial fish cannery to 

adapt their mode of trade to modern conditions. When 

Metlakatlans moved to the islands in the late 1880s at the 

invitation of President Cleveland, they did so with the 

understanding that they would be able to support 

themselves by fishing, as they had always done. Indeed, 

soon after moving to the reservation, the Community set up 

a new cannery—supplied by off-reservation fishing—and 

quickly increased production in the following years. When 

Congress passed the 1891 Act establishing the 

Metlakatlans’ reservation, it did so with the expectation 

that the Metlakatlans would continue to support themselves 

by fishing. Id. at 89 (“The purpose of creating the 

reservation was to encourage, assist[,] and protect the 

Indians in their effort to . . . become self-sustaining . . . . 

Without [fishing rights] the [Community] could not 

prosper.”). That is, Congress passed the Act with the 

expectation not only that Metlakatlans would catch fish for 

ceremonial purposes and personal consumption, but that 

they would also pursue the commercial fishery that had 

provided, and continued to provide, essential economic 

support for the Community. Congress clearly contemplated 

that Metlakatlans would continue to fish off-reservation 

toward those ends. Congress also expected fishing to 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 23

support the Community not only at the time the reservation 

was created, but in the future. In the words of the Supreme 

Court in Arizona v. California, fishing “was intended to 

satisfy the future as well as the present needs” of the 

Community. 373 U.S. at 600; see also Alaska Pac. 

Fisheries, 248 U.S. at 89 (“Congress intended to conform 

its action to their situation and needs.”). 

We therefore hold that the 1891 Act preserved for the 

Community and its members an implied right to nonexclusive off-reservation fishing in the traditional fishing 

grounds for personal consumption and ceremonial 

purposes, as well as for commercial purposes. Because this 

case comes to us on appeal from a ruling on a Rule 12(b)(6) 

motion, we remand to the district court to allow further 

proceedings to determine whether the Community’s 

traditional off-reservation fishing grounds included the

waters within Alaska’s Districts 1 and 2.

D. Arguments Made by Alaska

Alaska argues that distinguishing features of the 

Community’s reservation require us to analyze the 

Metlakatlans’ right differently from the rights of members 

of other tribes. Alaska presented a substantially similar 

argument to the Supreme Court over sixty years ago in 

Egan. There, Alaska argued: “The nature of the 

Metlakatlan ‘reservation’ cannot be too strongly 

emphasized. It is not, and has never been treated as what is 

normally termed an Indian reservation. . . . It is only 

necessary to . . . apply relevant legal theory—not theories 

which may be applicable to Indian reservations elsewhere, 

set up under different terms, and given different historical 

treatment.” Brief for Appellees at 44–45, Metlakatla 

Indian Cmty. v. Egan, 369 U.S. 45 (1961) (No. 2). The 
24 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

Court declined to ascribe analytical significance to the 

different set of circumstances surrounding the creation of 

the Community’s reservation, and so do we.

Here, Alaska first asks us to distinguish between 

statutes and executive orders, contending that an implied 

right should not be found in a statute, such as the 1891 Act, 

whose text is “utterly silent” about such a right. The 

distinction Alaska asks us to draw does not exist in the case 

law. As Professor Phil Frickey observed:

[M]any federal Indian law decisions, 

especially those dealing with developments 

since the mid-nineteenth century, turn not on 

treaty language, but on the text of seemingly 

more mundane instruments of law, such as 

statutes, executive orders, and federal 

regulations. For example, millions of acres 

of Indian lands are located on reservations 

established by executive order. This 

difference in form should not, however, 

substantially alter judicial methodology. 

Some of these non-treaty enactments 

embody agreements with tribes that would 

have been handled by treaty in former eras. 

Many of the rest embody unilateral 

alterations of prior treaties. In any event, 

because all are constitutive in nature—all 

adjust a sovereign-to-sovereign, structural 

relationship based on Chief Justice 

Marshall’s understanding of the earliest 

colonial practices prior to the negotiation of 

any treaty—the canon should apply to them, 

too. Consistent with this notion, the Court 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 25

has drawn no fundamental interpretive 

distinction between reservations established 

by statute or executive order and those 

protected by treaty.

Philip P. Frickey, Marshalling Past and Present: 

Colonialism, Constitutionalism, and Interpretation in 

Federal Indian Law, 107 Harv. L. Rev. 381, 421–22 (1993) 

(footnotes omitted); see also James T. Campbell, 

Aurelius’s Article III Revisionism: Reimagining Judicial 

Engagement with the Insular Cases and “The Law of the 

Territories”, 131 Yale L. J. 2542, 2637 (2022) (“The Court 

has declined to distinguish between treaty and nontreaty 

agreements with the federal government, subjecting both to 

interpretive rules that are designed to vindicate those 

promises . . . . That interpretive approach flows from a 

meaningful interrogation of historical practice . . . .” 

(footnotes omitted)).

The case law reflects this principle. The Court in 

Arizona v. California dealt with implied rights to water for 

tribes on five reservations. 373 U.S. at 596. One of the 

reservations was created by statute; the others were created 

by executive order. The Court drew no distinction between 

the two types of legal instruments. See id. at 598–600. In 

Puyallup Indian Tribe, 717 F.2d at 1257 n.6, we wrote that 

the Indian canon, while often applied to treaties as a matter 

of historical coincidence, also “applies with equal force to 

statutes passed for the benefit of Indians and to executive 

orders.” Later, in Parravano, 70 F.3d at 544, we wrote that 

“[t]he rule of construction applicable to executive orders 

creating Indian reservations is the same as that governing 

the interpretation of Indian treaties.” And in Chehalis, 96 
26 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

F.3d at 340, we recognized that the Indian canon applies 

“uniformly” to “treaties, statutes[,] and executive orders.” 

The type of legal instrument that establishes a 

reservation thus makes no difference to our inquiry into a 

tribe’s attendant resource rights. Because the Indian canon 

is rooted in the trust relationship between the federal 

government and Indian tribes, see Oneida Indian Nation, 

470 U.S. at 247, and because federal recognition of an 

Indian tribe institutionalizes that relationship, see Cohen’s 

Handbook of Federal Indian Law § 3.02[3] (Nell Jessup 

Newton ed., 2017), it does not matter which type of 

document provides such recognition or establishes a 

reservation. See also Seminole Nation v. United States, 316 

U.S. 286, 296–97 (1942). 

Second, Alaska argues that the Community is 

foreclosed from claiming an implied right to off-reservation 

fishing because Metlakatlans “had no aboriginal claims to 

preserve.” However, as discussed above, Metlakatlans and 

their Tsimshian ancestors asserted and exercised a right to 

fish in these waters since time immemorial. In passing the 

1891 Act, Congress “confirmed the continued existence of 

th[is] right[].” Adair, 723 F.2d at 1414. 

Third, Alaska asks us to distinguish between the 

Community and tribes that were forced off of all or part of 

their original lands, where those tribes gave up their 

original lands in exchange for explicit and/or implicit 

appurtenant off-reservation rights. In the view of Alaska, 

because the United States provided the Annette Islands to 

the Community as a gift rather than pursuant to an 

exchange, the United States did not intend the 1891 Act to 

provide any implicit off-reservation rights. 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 27

There is nothing in the case law indicating that implied 

rights are only found in instances where there has been an 

exchange. Indeed, it is difficult to characterize the creation 

of many reservations as resulting from any sort of genuine 

“exchange.” See Choctaw Nation v. Oklahoma, 397 U.S. 

620, 631 (1970) (observing that these legal arrangements 

were often “imposed upon [the Indians] and they had no 

choice but to consent”); Hagen v. Utah, 510 U.S. 399, 422 

n.1 (1994) (Blackmun, J., dissenting) (noting the “unequal 

bargaining power when agreements were negotiated”). The 

Supreme Court has recently emphasized, “[I]n order to 

create a reservation it is not necessary that there should be a 

formal cession or a formal act setting apart a particular 

tract. It is enough that from what has been there results a 

certain defined tract appropriated to certain purposes.” 

McGirt v. Oklahoma, 140 S. Ct. 2452, 2475 (2020) 

(alteration in original) (quoting Minnesota v. Hitchcock, 

185 U.S. 373, 390 (1902)). As the Supreme Court wrote in 

Egan, 369 U.S. at 52, “The words ‘set apart as a 

reservation,’ appearing in the statute creating the Annette 

Islands Reserve, are substantially the same as used in 

numerous other statutory reservations.” The Court noted 

that reservations secured by other legal instruments, such as 

treaties, are “sometimes phrased in terms of a gift or 

assignment rather than a reservation of land.” Id.

Fourth, Alaska argues that the legislative history of the 

1891 Act “demonstrates a lack of intent to convey offreservation fishing rights.” Alaska argues: 

The Senate’s understanding of the 

Metlakatlans’ history was “well-known.” 

The Senate understood that Father Duncan 

sought Congress’s “consent” to allow these 
28 METLAKATLA INDIAN COMMUNITY V. DUNLEAVY

immigrants to continue to live on the 

Annette Islands. And Congress gave that 

consent after considering that the 

Metlakatlans had formed what senators 

believed was a model Christian community. 

. . . The congressional record says nothing 

about fishing rights, much less some sort of 

prioritized off-reservation fishing rights for 

the Metlakatlans. 

(emphases added). Neither the fact that the Metlakatlans 

were “immigrants,” nor the fact that they had formed what 

the Senators believed was a “model Christian community” 

is relevant to the question whether Congress expected the 

Metlakatlans to support themselves through off-reservation 

fishing. The Metlakatlans did, in fact, immigrate to the 

Annette Islands from British Columbia, but the Supreme 

Court has told us that this is legally irrelevant. The Court 

wrote in Alaska Pacific Fisheries: “True, the 

Metlakahtlans [sic] were foreign born, but the action of 

Congress has made that immaterial here.” 248 U.S. at 89. 

Further, the Senate’s understanding of the religious beliefs 

of Community members tells us nothing about the means 

by which Congress expected them to support themselves. 

E. Regulation

Alaska’s limited entry program, as currently 

administered, is incompatible with the Metlakatlans’ offreservation fishing rights. Fishing had always been, and 

continues to be, the heartbeat of the Community. 

Congress’ intent in the 1891 Act was that the Metlakatlans 

would have off-reservation fishing rights that would 

“satisfy the future as well as the present needs” of the 

Community. Arizona, 373 U.S. at 600. Any regulation by 
METLAKATLA INDIAN COMMUNITY V. DUNLEAVY 29

Alaska of off-reservation fishing by the Community must 

be consistent with such rights. 

Conclusion

We hold that the 1891 Act reserves for the Metlakatlan 

Indian Community an implied right to non-exclusive offreservation fishing in the areas where they have fished 

since time immemorial and where they continued to fish in 

1891 when their reservation was established. We reverse 

the decision of the district court and remand for further 

proceedings consistent with this opinion. 

REVERSED and REMANDED.