Lawrence A. Aschenbrenner, Anchorage, AK, for the appellants.
David C. Shilton, U.S. Department of Justice, Washington, DC, for the appellees.
Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief Judge, Presiding. D.C. No. CV-98-00365-HRH.
Before SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, KLEINFELD, HAWKINS, THOMAS, W. FLETCHER, PAEZ, TALLMAN, RAWLINSON and CLIFTON, Circuit Judges.
ORDER
The district court decided the federal paramountcy question and thereby avoided determining the existence or extent of the plaintiff villages' claimed aboriginal rights. As an appellate body, we would be greatly assisted by an initial determination by the district court of what aboriginal rights, if any, the villages have. We therefore VACATE the district court's order granting summary judgment for defendants. We REMAND with instructions that the district court decide what aboriginal rights to fish beyond the three-mile limit, if any, the plaintiffs have. For purposes of this limited remand, the district court should assume that the villages' aboriginal rights, if any, have not been abrogated by the federal paramountcy doctrine or other federal law.
The en banc panel retains jurisdiction over all future proceedings in this matter.