PrepTest 63, Section 4, Question 5

In Alaska, tradition is a powerful legal concept, appearing in a wide variety of legal contexts relating to natural-resource and public-lands activities. Both state and federal laws in the United States assign privileges and exemptions to individuals engaged in "traditional" activities using otherwise off-limits land and resources. But in spite of its prevalence in statutory law, the term "tradition" is rarely defined. Instead, there seems to be a presumption that its meaning is obvious. Failure to define "tradition" clearly in written law has given rise to problematic and inconsistent legal results.

One of the most prevalent ideas associated with the term "tradition" in the law is that tradition is based on long-standing practice, where "long-standing" refers not only to the passage of time but also to the continuity and regularity of a practice. But two recent court cases involving indigenous use of sea otter pelts illustrate the problems that can arise in the application of this sense of "traditional."

The hunting of sea otters was initially prohibited by the Fur Seal Treaty of 1910. The Marine Mammal Protection Act (MMPA) of 1972 continued the prohibition, but it also included an Alaska Native exemption, which allowed takings of protected animals for use in creating authentic native articles by means of "traditional native handicrafts." The U.S. Fish and Wildlife Service (FWS) subsequently issued regulations defining authentic native articles as those "commonly produced" before 1972, when the MMPA took effect. Not covered by the exemption, according to the FWS, were items produced from sea otter pelts, because Alaska Natives had not produced such handicrafts "within living memory."

In 1986, FWS agents seized articles of clothing made from sea otter pelts from Marina Katelnikoff, an Aleut. She sued, but the district court upheld the FWS regulations. Then in 1991 Katelnikoff joined a similar suit brought by Boyd Dickinson, a Tlingit from whom articles of clothing made from sea otter pelts had also been seized. After hearing testimony establishing that Alaska Natives had made many uses of sea otters before the occupation of the territory by Russia in the late 1700s, the court reconsidered what constituted a traditional item under the statute. The court now held that the FWS's regulations were based on a "strained interpretation" of the word "traditional," and that the reference to "living memory" imposed an excessively restrictive time frame. The court stated, "The fact that Alaskan natives were prevented, by circumstances beyond their control, from exercising a tradition for a given period of time does not mean that it has been lost forever or that it has become any less a 'tradition.' It defies common sense to define 'traditional' in such a way that only those traditions that were exercised during a comparatively short period in history could qualify as 'traditional.'"

In Alaska, tradition is a powerful legal concept, appearing in a wide variety of legal contexts relating to natural-resource and public-lands activities. Both state and federal laws in the United States assign privileges and exemptions to individuals engaged in "traditional" activities using otherwise off-limits land and resources. But in spite of its prevalence in statutory law, the term "tradition" is rarely defined. Instead, there seems to be a presumption that its meaning is obvious. Failure to define "tradition" clearly in written law has given rise to problematic and inconsistent legal results.

One of the most prevalent ideas associated with the term "tradition" in the law is that tradition is based on long-standing practice, where "long-standing" refers not only to the passage of time but also to the continuity and regularity of a practice. But two recent court cases involving indigenous use of sea otter pelts illustrate the problems that can arise in the application of this sense of "traditional."

The hunting of sea otters was initially prohibited by the Fur Seal Treaty of 1910. The Marine Mammal Protection Act (MMPA) of 1972 continued the prohibition, but it also included an Alaska Native exemption, which allowed takings of protected animals for use in creating authentic native articles by means of "traditional native handicrafts." The U.S. Fish and Wildlife Service (FWS) subsequently issued regulations defining authentic native articles as those "commonly produced" before 1972, when the MMPA took effect. Not covered by the exemption, according to the FWS, were items produced from sea otter pelts, because Alaska Natives had not produced such handicrafts "within living memory."

In 1986, FWS agents seized articles of clothing made from sea otter pelts from Marina Katelnikoff, an Aleut. She sued, but the district court upheld the FWS regulations. Then in 1991 Katelnikoff joined a similar suit brought by Boyd Dickinson, a Tlingit from whom articles of clothing made from sea otter pelts had also been seized. After hearing testimony establishing that Alaska Natives had made many uses of sea otters before the occupation of the territory by Russia in the late 1700s, the court reconsidered what constituted a traditional item under the statute. The court now held that the FWS's regulations were based on a "strained interpretation" of the word "traditional," and that the reference to "living memory" imposed an excessively restrictive time frame. The court stated, "The fact that Alaskan natives were prevented, by circumstances beyond their control, from exercising a tradition for a given period of time does not mean that it has been lost forever or that it has become any less a 'tradition.' It defies common sense to define 'traditional' in such a way that only those traditions that were exercised during a comparatively short period in history could qualify as 'traditional.'"