American Indian Culture and Research Journal

Dear Dr. Champagne: An article by Professor Joseph G. Jorgensen entitled "Ethnicity, Not Culture? Obfuscating Social Science in the Exxon Valdez Oil Spill" recently appeared in the American Indian Culture and Research Journal.The article discussed Order No. 190 of In re the Exxon Valdez, Case No. A89-0095 (March 23, 1994), in which the court granted Exxon Corporation's motion for summary judgment on Native Alaskans' claims for non-economic damages stemming from the Exxon Valdez oil spill. The article is based on several serious misconceptions. In Order No. 190, a copy of which is enclosed, the court considered the Alaska Natives' claims that the Exxon Valdez oil spill damaged their culture and subsistence way of life. The Alaska Natives argued that their claims were cognizable as a maritime public nuisance. Private individuals can recover for a maritime public nuisance if they can show a special injury, different in kind from that suffered by the general public. The court, after considering the applicable case and statutory law, ruled that Alaska Natives' cultural claims were not of a kind different from those suffered by the general public. The court noted that all Alaskans have the right to lead subsistence lifestyles, not just Alaska Natives. Thus, the court held that the Alaska Natives' claims were not different in kind from that of the general public and did not state cognizable claims for maritime public nuisance. The court also held that the Alaska Natives could not establish a claim for private nuisance because they did not have a possessory interest in the oiled land. A claimant must have a possessory interest in the burdened land to support a private nuisance claim. The land in question was owned by either the United States, the State of Alaska, or various Native Corporations who pursued their own damage claims.