Native Village of Eyak v. Gary Locke

with whom PREGERSON, THOMAS, and RAWLINSON, Circuit Judges, join, and with whom HAWKINS, Circuit Judge, joins as to Part I, dissenting:

I respectfully dissent.

In an unsigned opinion, the majority concludes that Alaskan Native Villages of Eyak, Tatitlek, Chenega, Nanwalek, and Port Graham (“the Chugach”) failed to establish aboriginal hunting and fishing rights on part of the Outer Continental Shelf (“OCS”) in the Gulf of Alaska because they did not show exclusive use and occupancy of any part of the claimed area. In so doing, the majority misstates the law and misreads plain English.

I would hold, based on the district court’s findings, that the Chugach have established aboriginal hunting and fishing rights in at least part of the claimed area of the OCS, and that these rights are consistent with federal paramountcy. I would reverse and remand with instructions to the district court to find, under the proper legal test, precisely where within the claimed area the Chugach have aboriginal rights.

I. Aboriginal Rights

The Chugach claim that they have the right to exercise nonexclusive hunting and fishing rights in part of the Gulf of Alaska south of Prince William Sound and the Kenai Peninsula, based on their exclusive use of their traditional hunting and fishing grounds prior to contact with Europeans. The Chugach seek an order requiring that the Secretary of Commerce revise the challenged Individual Fishing Quota (“IFQ”) regulations to accommodate their aboriginal rights. They ask that the revised regulations provide one IFQ permit or its equivalent to each plaintiff Village. Whether the Chugach’s aboriginal rights, if established, would require the Secretary to provide one IFQ or its equivalent per Village is not before us. The only question now before us is whether the Chugach have aboriginal rights that the Secretary must accommodate in some fashion.

To establish aboriginal rights, the Chu-gach must demonstrate by a preponderance of the evidence “actual, exclusive, and continuous use and occupancy” of the claimed area for a long period of time before contact with Europeans. Sac & Fox Tribe of Indians of Okla. v. United States, 383 F.2d 991, 998 (Ct.Cl.1967). I agree with the majority and the parties *627that the test articulated in Sac & Fox applies here.

When this ease was previously before our en banc panel, we remanded to the district court for a determination whether the Chugaeh had aboriginal fishing rights in the claimed area of the OCS. Eyak Native Village v. Daley, 375 F.3d 1218, 1219 (9th Cir.2004) (en banc). We instructed the district court to assume, for purposes of the limited remand, that the federal paramountcy doctrine did not abrogate the Chugach’s aboriginal rights. Id. After taking evidence, the district court held that the Chugaeh hunted and fished in portions of the OCS before contact with Europeans, but that such activities “did not give rise” to a right to hunt and fish “different from or greater than the rights of all United States citizens.” The district court did not apply the Sac & Fox test.

The Chugaeh contend, and I agree, that the facts found by the district court are sufficient to establish their aboriginal rights under the Sac & Fox test. Based on the district court’s findings, I conclude that the Chugaeh have established aboriginal rights in at least part of the claimed area of the OCS. I would remand to the district court for a determination, under the proper legal test, of precisely where within the claimed area they have aboriginal rights.

A. Continuous Use and Occupancy

The majority concludes that the Chu-gach have satisfied the “continuous use and occupancy” requirement of the Sac & Fox test. I agree.

Continuous use and occupancy are measured in accordance with the “way of life, habits, customs and usages of the Indians who are its users and occupiers.” Sac & Fox, 383 F.2d at 998. The district court found that the Chugaeh were “skilled marine hunters and fishermen” who “found their sustenance largely in marine waters.” They were “knowledgeable of ocean currents” and “entirely capable” of traversing the OCS in their boats. The Chugaeh navigated to Middleton Island, the Barren Islands, Cook Inlet, the Copper River Delta, and Wessels Reef to hunt and fish. They crossed portions of the OCS when traveling between these locations and fished along the way.

The district court found that such use and occupancy was “temporary and seasonal.” The Chugach’s seasonal use qualifies as “continuous” given their way of life as marine hunters and fishermen. See Confed. Tribes of the Warm Springs Reservation of Or. v. United States, 1966 WL 8893, at *5 (Ct.Cl.1966); Spokane Tribe of Indians v. United States, 1963 WL 8583, at *5 (Ct.Cl.1963) (“[Ijntermittent or seasonal use has been accepted as showing Indian title.” (collecting cases)).

B. Exclusive Use and Occupancy

The majority concludes that the Chu-gaeh have failed to satisfy the “exclusive ... use and occupancy” requirement of the Sac & Fox test. I strongly disagree.

1. Governing Law

To carry its burden in establishing aboriginal rights, a plaintiff tribe “must show that it used and occupied the [claimed area] to the exclusion of other Indian groups.” United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct.Cl.1975). Where there is no evidence of use or occupancy by others within the claimed area, the claimant tribe need only show its own use and occupancy. In such a case, a court “must conclude,” without more, that the plaintiff tribe 8608 used and occupied the area exclusively. Zuni Tribe of N.M. v. United States, 12 Cl.Ct. 607, 617-20 & nn. 13-15 (1987); see also Caddo Tribe of *628Okla. v. United States, 35 Ind. Cl. Comm. 321, 358-60 (1975) (finding exclusivity where “ft]here is no evidence indicating that other tribes of Indians were using and occupying this [claimed] area at the same time”).

Where there is evidence of use or occupancy by others within the claimed area, a claimant tribe must show that it had the ability to exclude those other groups, such that the use by the others was temporary or permissive. See Alabama-Coushatta Tribe of Tex. v. United States, 2000 WL 1013532, at *13 (Fed.Cl.2000) (“[W]here another tribe commonly uses the land with the claimant tribe, proof of the claimant tribe’s dominance over the other tribe preserves its exclusive use of the land.”). A tribe’s exclusive use and occupancy “is called in question where the historical record of the region indicates that it was inhabited, controlled or wandered over by many tribes or groups.” Pueblo of San Ildefonso, 513 F.2d at 1394; see also Strong v. United States, 518 F.2d 556, 561 (Ct.Cl.1975) (“ ‘Exclusiveness’ becomes a problem to plaintiffs simply because the historical record ... demonstrates clearly that ... the area as a whole was ‘inhabited, controlled or wandered over by many tribes or groups.’ ”). Evidence of use and occupancy by other groups “must be specific” to defeat a claim of exclusivity. Alabama-Coushatta Tribe, 2000 WL 1013532, at *17; Wichita Indian Tribe v. United States, 696 F.2d 1378, 1385 (Fed.Cir.1983).

Evidence of use by others at the periphery of the claimed territory does not defeat a tribe’s exclusivity within the claimed area. See Caddo Tribe, 35 Ind. Cl. Comm. at 360-62 (finding exclusive use and occupancy of claimed area even though members of another tribe “were found on the western periphery of Caddo territory” during the relevant period); Zuni, 12 Cl. Ct. at 608 n. 3 (finding exclusive use and occupancy of claimed area, despite evidence of use by another tribe near shared borders, because “such boundaries are the limit of the Zuni claim area, with Zuni use and occupancy within its boundaries”). “[A] claimant tribe’s non-exclusive use of one segment of the claim area is not automatically imputed to the whole claim area.” Alabama-Coushatta, 2000 WL 1013532, at *14. In such circumstances, a court must conclude “that a claimant tribe had exclusive use of certain portions of the claim area, but failed to prove exclusive use of other portions.” Id.; see also Wichita, 696 F.2d at 1385 (“WOiile we agree with the trial judge that the Wichitas could not have had exclusive use of the greater part of the [claimed] hunting grounds in Kansas, Oklahoma, or Texas, we cannot affirm his holding that the Wichitas failed to establish exclusive use of any [portion] of the hunting grounds in Oklahoma and Texas.”); Muckleshoot Tribe v. United States, 3 Ind. Cl. Comm. 669, 677 (1955) (“[C]laimant’s ancestors did not exclusively use and occupy the [entire] area claimed in their petition ..., however, they did use and occupy a part of the area claimed and based upon the record in this case the Commission feels that the occupancy of that part was exclusive.”).

Because of the “difficulty of obtaining the essential proof necessary to establish Indian title,” courts take a “liberal approach” in weighing the limited historical evidence regarding exclusive use and occupancy. Nooksack Tribe of Indians v. United States, 3 Ind. Cl. Comm. 492, 499 (1955); see also Muckleshoot, 3 Ind. Cl. Comm. at 677 (because “it is extremely difficult to establish facts after the lapse of time involved in matters of Indian litigation,” courts must “take a common sense approach” when evaluating exclusivity); Snake or Piute Indians v. United States, 112 F.Supp. 543, 552 (Ct.Cl.1953) (exclusivity “can only be inferred” because it is *629difficult to prove “as of a date too remote to admit of testimony of living witnesses”).

In sum, the Sac & Fox test requires that the Chugach show that they used and occupied the claimed area exclusively. It does not require that the Chugach show that they could have repelled hypothetical intruders from the area. In the absence of evidence of use by others, the case law requires only that the Chugach show that they were the only group that used and occupied the area.

2. District Court Factual Findings

The factual findings of the district court establish that the Chugach used and occupied some areas exclusively, with no use or occupancy of those areas by others. The court found:

At contact, Kodiak Island, the southwest comer of the Kenai Peninsula, and Prince William Sound were occupied by two major but distinct subgroups of ethnic Alutiiq people. One subgroup occupying Kodiak Island was recognized by themselves and by others as Koniag; the other subgroup, occupying Prince William Sound and the south and southwest coast of the Kenai Peninsula, was recognized by themselves and others as Chugach....

... The Chugach occupied at various pre-contact times probably five or six sites on the coast and islands of Prince William Sound and two or three sites on the south and southwest coastal areas of the Kenai Peninsula....

Anthropologists estimate the Chugach population of Prince William Sound and the Lower Kenai Peninsula at or about the time of contact at between 400 and 1,500 people....

... At contact, the indigenous people of Prince William Sound and the Lower Kenai Peninsula found their sustenance largely in marine waters, relying heavily on fish and sea mammals, and to a lesser degree upon land mammals.

At contact, the occupants of the extant Chugach villages were skilled marine hunters and fishermen. With their kayaks and umiaks, plaintiffs’ ancestors were entirely capable of navigating anywhere within Prince William Sound, to Prince William Sound from the Lower Kenai Peninsula, and from either of these areas to the Barren Islands, Kodiak Island, Middleton Island, Wessels Reef, and the Copper River flats. Residents of Prince William Sound and the Lower Kenai Peninsula periodically traveled to Kodiak Island for purposes of trading. Middleton Island was visited regularly, probably seasonally to take birds and bird eggs as well as marine resources in the waters surrounding the island....

At and before contact, there was animosity between plaintiffs’ predecessors and the Tlingit, but also to a lesser degree with the Koniag. There were occasional “pitched battles” involving numerous deaths between members of the Chugach villages and the Tlingit or Ko-niag. ...

The Russians had virtually enslaved other Alutiiq people as well as the Ko-niag. ... The Chugach were recognized by the Russians as potentially formidable foes, and apparently chose to work and trade with the Chugach rather than attempting to dominate them.

While it is more likely true than not that residents of the ancestral villages made some use (probably seasonal) of the portions of the OCS nearest their respective villages and when traveling to the outlying islands, none of the ancestral villages was in a position to control *630or dominate access to any part of the OCS. The area was too large; and the number of men of an age who would have been able to defend or control high seas marine areas were too few. Moreover, some of the OCS in question (in particular, the Lower Cook Inlet, the area between the Barren Islands and Kodiak Island, and the Copper River Delta and Copper River flats) were on the periphery of the Chugach territory. That is, the foregoing are the areas where the Chugach villagers met up with the Dena’ina, the Koniag, the pre-consolidation Eyak, and the Tlingit. More likely than not, these areas were fished and hunted on a seasonal basis by all of the Koniag, the Chugach, the Eyak, and the Tlingit.

(Emphasis added.)

Nowhere in the district court’s twenty-seven-page order is there any finding that another group used or occupied some of the area claimed by the Chugach. The district court specifically found that “more likely than not” there was shared use “on the periphery of the Chugach territory,” but it made no such finding about shared use within the Chugach territory.

The district court noted that the opinions of the parties’ experts sometimes differed, but that the experts based their opinions on the same body of historical evidence. The court wrote:

[T]he experts on both sides rely substantially upon the same, non-testifying experts who provide the most authoritative analysis of the culture of Native Americans occupying the south and southwest coast of the Lower Kenai Peninsula and Prince William Sound. The testifying experts’ opinions are based upon very little independent, new investigation of the culture of the people of Prince William Sound and the Lower Kenai Peninsula at and before contact with Europeans. The seminal work as regards the pre-contact culture of the areas in question was done between 1930 and 1950 by Kaj Birket-Smith and Frederica de Laguna. It is the work and writings of these investigators which is to a large degree the basis for the opinions of the testifying experts and the findings of the court.

The Chugach’s experts testified without contradiction that geographic features at the periphery of Chugach territory had place names in more than one native language, but that features within Chugach territory had place names in only the Chu-gach language. For example, the Barren Islands and Kayak Island, which are located at the western and eastern periphery of the claimed Chugach territory, had place names in the languages of the Koniag, Tlingit, and Chugach. By contrast, Seal Rocks, Wessels Reef, and Middleton Island, which are located within the claimed area, had plaee names in only the Chugach language (respectively: “Qikertarraak,” or “two small islands”; “Pala’t Nuutqaat,” or “boat reefs”; and “Qucuaq,” the meaning of which has been lost).

Both parties’ experts agreed that there is no evidence that other groups used or occupied Chugach territory. At trial, the Chugach introduced records of five eyewitness accounts from 18th-century explorers describing encounters with seafaring Chu-gach on the OCS more than three miles from shore. The Chugach’s expert anthropologist, Matt Ganley, testified, “We don’t see anybody else in the OCS when the first Russians come into that area. We don’t see anybody else on Middleton Island. There’s no mention of other groups, and from the descriptions that the people provided, these were clearly Chugach people.” The Secretary’s expert anthropologists gave similar testimony. Michael Yarbor-ough and Christopher Wooley both testi*631fied that they were unaware of any evidence that groups other than the Chugach fished or hunted in the claimed area during the pre-contact period.

3. Majority’s Fundamental Mistakes

The unsigned majority opinion concludes that the Chugach have not shown exclusive use and occupancy within any part of the claimed area. Its conclusion is based on two fundamental mistakes. First, it misstates the applicable law. Second, it misreads the word “periphery.” I take its two mistakes in turn.

a. Misstatements of Law

The majority’s test for exclusivity is that a claimant must show not only that it was the only tribe or group that used and occupied the claimed area, but also that it had the power to exclude other groups. This is an incorrect statement of law. If there is no evidence of use or occupancy by another group, a claimant need only make the first showing—that it was the only tribe or group to use and occupy the area. In such a case, a showing of use and occupancy by a claimant tribe, without more, is enough. Only if there is evidence of use or occupancy by another tribe or group must the claimant show, in order to establish its own exclusive use and occupancy, that it had the power to exclude that tribe or group.

The majority writes;

[T]he Villages haven’t proven exclusivity. Exclusivity is established when a tribe or group shows that it used and occupied the land to the exclusion of other Indian groups. See United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct.Cl.1975). Use of the OCS alone isn’t sufficient to prove exclusive possession. See Osage Nation of Indians v. United States, 19 Ind. Cl. Comm. 447, 489 (1968). The tribe or groups must exercise full dominion and control over the area, such that it “possesses the right to expel intruders,” id., as well as the power to do so. The district court properly found that the Villages failed to show by a preponderance of the evidence that they exercised exclusive control, collectively or individually, over the areas of the OCS they now claim.

Maj. Op. at 623 (emphasis in original).

The majority cites two eases, San Ilde-fonso and Osage Nation, in support of its statement of the law. Neither case supports the majority.

The relevant passage of San Ildefonso is:

Implicit in the concept of ownership of property is the right to exclude others. Generally speaking, a true owner of land exercises full dominion and control over it; a trae owner possesses the right to expel intruders. In order for an Indian tribe to establish ownership of land by so-called Indian title, it must show that it used and occupied the land to the exclusion of other Indian groups. True, ownership of land is called in question where the historical record of the region indicates that it was inhabited,, controlled, or wandered, over by many tribes and groups.

513 F.2d at 1394 (emphasis added).

The italicized last sentence is key; Aboriginal title is “called in question” only when there is evidence that the claimed area was “inhabited, controlled or wandered over by many tribes and groups.” See also United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 86 L.Ed. 260 (1941) (distinguishing between “territory occupied exclusively” and “lands wandered over by many tribes”). Where there is no evidence that the area was “inhabited, controlled or wandered over” by others, the exclusive ownership of *632the tribe using and occupying the land is not “called in question.” In the case before us, there is no evidence of use or occupancy by other groups within Chugach territory.

The relevant passage of Osage Nation is:

Petitioner’s the Osage Nation’s ] evidence tends to show an aboriginal territory extending to the Red River on the south and the 100th meridian on the west. It is quite clear from the evidence of both parties that war parties and occasional hunting parties did travel that far, but that fact in itself does not mean that the Osage had exclusive possession of the territory. The best estimate of the Osage population from 1808 to 1825 is between five and six thousand. Petitioner would have us believe that with a population of that size the Osage were able to exclusively use and occupy this huge territory. While petitioner does bring forth some evidence tending to buttress this conclusion, the defendant, on the other hand, produced historical evidence tending to prove that other war and hunting parties did tend to use parts of the territory claimed, by petitioner. Faced with conflicting evidence and expert opinion, and moreover with evidence which is at best vague and uncertain, the Commission holds that the preponderance of the evidence indicates that with a population of five to six thousand, of which about 1500 would be warriors, the Osages could not have exclusively controlled and occupied all of the territory claimed here.

19 Ind. Cl. Comm, at 489-90 (emphasis added). In Osage Nation, as in San Ilde-fonso, there was evidence of use by other tribes within part of the claimed territory. In that circumstance, the Osage Nation was required to show it had the ability to exclude those tribes from that part of the territory.

The Indian Claims Commission held that, notwithstanding its small population, the Osage Nation did establish “exclusive use and occupancy” of another part of the claimed territory. As to this part, there was “no substantial evidence that the area ... was used by tribes other than the Osage.” Osage Nation, 19 Ind. Cl. Comm. at 492; see also Zuni Tribe, 12 Cl.Ct. at 617 & nn. 13-15 (a court “must conclude” that the plaintiff tribe used and occupied the area exclusively “in the absence of any evidence of occupation by any other group”); Caddo Tribe, 35 Ind. Cl. Comm. at 358-60 (finding exclusivity where “[t]here is no evidence indicating that other tribes of Indians were using and occupying this [claimed] area at the same time”). The holding in Osage Nation is based on the uniform case law that, where there is no evidence of use by others, a claimant tribe establishes exclusivity over a given area simply by showing its own use and occupancy.

In the case before us, the district court made extensive findings of use and occupancy by the Chugach in the claimed area of the OCS. The district court found no use or occupancy by others in Chugach territory. Because the Chugach claim aboriginal rights only in areas where there is no evidence of use by others, it is sufficient to show exclusivity that they were the only tribe to use and occupy these areas.

b. Misreading of “Periphery”

To evade the established case law, the majority purports to misunderstand the word “periphery.” As I recount above, the district court found:

[S]ome of the OCS in question (in particular, the Lower Cook Inlet, the area between the Barren Islands and Kodiak Island, and the Copper River Delta and *633Copper River flats) were on the periphery of the Chugach territory. That is, the foregoing are the areas where the Chugach villagers met up with the Dena’ina, the Koniag, the pre-consolidation Eyak, and the Tlingit. More likely than not, these areas were fished and hunted on a seasonal basis by all of the Koniag, the Chugach, the Eyak, and the Tlingit.

(Emphasis added.)

The common meaning of “periphery” is “edge” or “boundary.” The plain meaning of the district court’s finding is that other groups used areas at the edge or boundary of Chugach territory. The district court made no finding that other groups used areas within Chugach territory.

The district court’s usage of “periphery” is the standard usage in ordinary English. It is also the standard usage in the case law applying the test for establishing aboriginal rights. The cases clearly recognize a distinction between shared use on the periphery of a claimed territory and shared use inside the territory. See, e.g., Caddo Tribe, 35 Ind. Cl. Comm. at 360-62 (referring to Caddo confederacies that “lived within the area of Caddo use and occupancy,” as opposed to other tribes that were found “on the western boundary” or “on the western periphery of Caddo territory” (emphasis added)); Hualapai Tribe v. United States, 18 Ind. Cl. Comm. 382, 395 (1967) (finding exclusive use and occupancy, but declining to enlarge the area of aboriginal title to include “peripheral areas” that were “used and occupied at the same time by other neighboring Indians” (emphasis added)); Zuni Tribe, 12 Cl.Ct. at 608 n. 3 (finding exclusive use of claimed area, despite evidence of use by another tribe near shared borders, because “such boundaries are the limit of the Zuni claim area, with Zuni use and occupancy within its boundaries”).

The majority reads “periphery” to mean not only the edge, but also the interior, of a territory. The majority’s misreading of the word transforms the district court’s finding of use by others at the edge of the Chugach territory into a finding of use within that territory. The majority writes:

The dissent adopts an understanding of the word “periphery” that’s contrary to both common usage and the dictionary. Perhaps the most common use of the word “periphery” is in the phrase “peripheral vision.” What’s in your peripheral vision is what you can see, not what you can’t; the periphery is something at the limits of, but within, your vision. Here, as well, the “periphery” cited by the district court includes the outer boundary of the claimed area. The revered Webster’s Second defines “periphery” as, among other things, “the outward bounds of a thing as distinguished from its internal regions or center; encompassing limits; confines; borderland; as, only the periphery of Greenland has been explored.” Webster’s Neiv International Dictionary 1822 (2d ed.1939). The dissent’s interpretation of “periphery” was outdated even in the 1930s when Webster’s Second was published. Id. (offering an alternate definition of “periphery” as a “[sjurrounding space; the area lying beyond the boundaries of a thing. Now Rare.”). Fish is best rare; language, not so much. As the district court clearly found, “some of the OCS areas in question” were exploited by other groups.

Maj. Op. at 624 (emphases in original).

The majority’s misreading of “periphery” is baffling. I understand why the majority is misreading the word: If periphery is read, as it should be, to mean edge or boundary, a rationale for the ma*634jority’s decision disappears. But I do not understand how the majority can, with a straight face, maintain that its reading is correct. Indeed, the majority quotes a Webster’s definition of the word that squarely contradicts its reading. The plain meaning of the district court’s finding that other groups likely used areas “on the periphery of the Chugach territory” is that they used areas on the edge or boundary of Chugach territory. The plain meaning is not that they used areas within Chugach territory.

4. Summary

Based on the case law and the district court’s factual findings, I would hold that the Chugach have established aboriginal hunting and fishing rights within at least part of the claimed area of the OCS. There is no evidence, and no finding by the district court, that other groups hunted or fished within the territory used and occupied by the Chugach. Evidence of use or occupancy by other tribes or groups “must be specific” to defeat a claim of exclusivity. Alabama-Coushatta Tribe, 2000 WL 1013532, at *17; Wichita Indian Tribe, 696 F.2d at 1385. As in Alabama-Cous-hatta Tribe, “we do not even have evidence that is too general” to defeat the claim of exclusivity. 2000 WL 1013532, at *17. In the case before us, there is no evidence whatsoever of use or occupancy by others.

II. Federal Paramountcy

Because I conclude that the Chugach have established aboriginal hunting and fishing rights in at least part of the claimed area of the OCS, I would reach the question whether aboriginal rights are consistent with federal paramountcy.

The Supreme Court articulated the federal paramountcy doctrine in a series of cases involving disputes between coastal states and the federal government over ownership and control of ocean resources. The Court repeatedly held that the federal government’s paramount interest in “foreign commerce, foreign affairs and national defense” required that its control over the seabed be paramount to that of the states, regardless of the circumstances in which a state joined the Union. United States v. Maine, 420 U.S. 515, 522, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975); United States v. Texas, 339 U.S. 707, 718-19, 70 S.Ct. 918, 94 L.Ed. 1221 (1950); United States v. Louisiana, 339 U.S. 699, 704, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. California, 332 U.S. 19, 38-39, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). The federal government could grant ownership or control to the states to the degree that it wished, but control of the seabed belonged, “in the first instance,” to the federal government. Maine, 420 U.S. at 522, 95 S.Ct. 1155; California, 332 U.S. at 29, 67 S.Ct. 1658. The Court explained:

The marginal sea is a national, not a state concern. National interests, national responsibilities, national concerns are involved. The problems of commerce, national defense, relations with other powers, war and peace foeus there. National rights must therefore be paramount in that area.

Louisiana, 339 U.S. at 704, 70 S.Ct. 914.

In Village of Gambell v. Hodel (“Gambell III”), 869 F.2d 1273, 1277 (9th Cir.1989), we held that federal paramountcy was consistent with aboriginal rights on the OCS because such rights “may exist concurrently with a paramount federal interest, without undermining that interest.” However, nine years later in Native Village of Eyak v. Trawler Diane Mairie, Inc. (“Eyak I”), 154 F.3d 1090, 1095-97 (9th Cir.1998), a different panel of this court held that the paramountcy doctrine barred plaintiff Villages from asserting exclusive rights on the OCS based on aboriginal *635title. We took this case en banc to reconcile our conflicting precedents.

Relying on Eyak I, the Secretary argues that the paramountcy doctrine automatically extinguishes aboriginal rights on the OCS. According to the Secretary, aboriginal rights exist on the OCS only after they have been affirmatively recognized, by the federal government in a statute or treaty. The Secretary is correct that the federal government has ultimate control over aboriginal rights, but he has the doctrine backwards. Under long-established law, aboriginal rights exist until affirmatively extinguished by Congress. See, e.g., Santa Fe Pac. R.R. Co., 314 U.S. at 347, 62 S.Ct. 248 (aboriginal rights need not “be based upon a treaty, statute, or other formal government action”). “[C]ongressional intent to extinguish Indian title must be plain and unambiguous and will not be lightly implied.” Cnty. of Oneida v. Oneida Indian Nation of N. Y. (“Oneida II”), 470 U.S. 226, 247-48, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (internal quotation and citations omitted). Here, neither the district court nor the Secretary has identified any plain and unambiguous intent by Congress to extinguish aboriginal rights of the Chugach on the OCS. See Gam,bell III, 869 F.2d at 1280 (finding it “clear” that the settlement provisions of the Alaska Native Claims Settlement Act “do not extinguish aboriginal subsistence rights that may exist in the OCS”).

We manifestly erred in Eyak I by ignoring the “great difference” between asserted state ownership of the seabed, at issue in the federal paramountcy cases, and aboriginal use and occupancy rights, at issue in that case. Sac & Fox, 383 F.2d at 997 (aboriginal rights are “not the same as sovereign or legal title”); see also Felix Cohen, Cohen’s Handbook of Federal Indian Law 998 (2005 ed.) (“[Eyak I ] seems to be wrongly decided, given the differences between state title and Indian title.”). In the paramountcy cases, states sought to lease the seabeds off their shores for oil and gas exploitation without the consent of, and to the exclusion of, the federal government. See, e.g., California, 332 U.S. at 23, 38, 67 S.Ct. 1658; Louisiana, 339 U.S. at 701, 70 S.Ct. 914. State control of the seabed posed a threat to national interests because the states, if they were owners of fee simple title, could sell or convey those rights without the federal government’s consent. California, 332 U.S. at 29, 35, 67 S.Ct. 1658; see, also N. Mariana Islands v. United States, 399 F.3d 1057, 1062-63 (9th Cir.2005) (applying paramountcy doctrine to Commonwealth of the Northern Mariana Islands’ claimed ownership of submerged lands off its coast).

In stark contrast to the states’ asserted title as against the federal government in the paramountcy cases, aboriginal rights presume ultimate federal sovereignty and control. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 99 L.Ed. 314 (1955) (“[Aboriginal title] is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties.... ”). Whereas the states sought to establish ownership exclusive of the federal government in the paramountcy cases, aboriginal rights prevail only against parties other than the federal government. See Oneida Indian, Nation of N.Y. v. Oneida Cnty. (“Oneida I”), 414 U.S. 661, 667, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (describing aboriginal title as “good against all but the sovereign”); Village of Gambell v. Clark (“Gambell I”), 746 F.2d 572, 574 (9th Cir.1984) (“[Aboriginal] rights are superior to those of third parties, including the states, but are subject to the paramount powers of Congress.”). Unlike fee simple rights, aboriginal rights cannot be sold or leased to third parties *636without the federal government’s consent. See Oneida II, 470 U.S. at 234,