Passage - General Questions

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Complete Passage Discussion

This passage discusses the difficulty of applying a consistent interpretation of the term “tradition”
to legal contexts relating to natural-resource activities. Failure to clearly define the term in written
law has given rise to inconsistent legal results, as evidenced by two recent court cases involving
indigenous use of sea otter pelts.

Paragraph 1 Overview

It is not unusual for law-related passages to begin by describing a legal practice that the author sees
as problematic, and this passage is no exception. Indeed, the first paragraph clarifies the importance
of tradition in legal contexts relating to natural resource and public-lands use in Alaska. Although
activities defined as “traditional” benefit from special privileges and exemptions, the term is too
vague to ensure consistent legal results. The last sentence of the paragraph summarizes the author’s
misgivings regarding its use.

Paragraph 2 Overview

The second paragraph considers a commonly held view that activities defined as traditional are based
on a long-standing practice, where “long-standing” refers not only to the passage of time but also to
the continuity and regularity of a practice (lines 15-17). Remember—if a definition is given during
the course of a passage, make a notation and expect to be questioned on your understanding of that
definition. Because the application of this sense of “traditional” is described as both prevalent (line
13) and problematic (line 19), it is important to fully understand its implications. The two recent
cases involving indigenous use of sea otter pelts described later in the passage should help in that
respect.

Paragraph 3 Overview

The third paragraph outlines the major statutory developments relevant to Alaska Natives’ legal right
to engage in “traditional” practices. Note the following key events and their dates, as they provide
the basis for the judicial decisions rendered in each case:

• (1) The Fur Seal Treaty of 1910 prohibited hunting of sea otters.
  (2) The Marine Mammal Protection Act of 1972 allowed sea otters to be used for creating
  “authentic native articles” by means of “traditional native handicrafts.”
  (3) The Fish and Wildlife Service defined “authentic native articles” as those “commonly
  produced” before 1972. Because Alaska Natives had not produced items made of sea
  otter pelts “within living memory,” the FWS determined that they were not covered by the
  exemption.

Paragraph 4 Overview

The final paragraph of the passage discusses in detail the aforementioned cases. It is hardly
necessary to remember the minute details of each case; a condensed “brief” would be sufficient to
help you understand the issues and decisions rendered in them:

• (1) In 1986, an Aleut unsuccessfully sued the FWS for seizing articles of clothing made from
  sea otter pelts.
  (2) In 1991, a similar case was brought against the FWS. This time, the plaintiffs offered
  testimonial evidence establishing the use of sea otter pelts in the late 1700s. Although
  these articles of clothing were not made “within recent memory,” the court ruled that they
  can still be classified as “traditional” because the natives were prevented from making
  them by circumstances beyond their control. Note the court’s holding that the FWS’
  regulations were based on a “strained interpretation” of the word “traditional.” Given the
  marked shift in the approach taken towards evaluating which activities are protected as
  “traditional,” it is crucial to highlight the viewpoint of the court in lines 45-54, and expect
  that some of the questions will test your ability to compare it to the viewpoints expressed
  earlier in the passage.

Summary

Due to the inconsistent interpretations of the term “tradition” in legal contexts related to naturalresource
activities, it is important to highlight the different viewpoints expressed throughout the
passage and understand how they relate to one another:

Viewpoint

• Author The failure to define “tradition” clearly has given rise to problematic and
  inconsistent legal results.
  Common View The term “tradition” reflects a long-standing activity that has been
  regularly and continually practiced.
  Fur Seal Treaty of 1910 The Fur Seal Treaty barred Alaska Natives from hunting sea otters.
  MMPA of 1972 The MMPA continued the Fur Seal Treaty prohibition of 1910, but
  included an Alaska Native exemption for authentic native articles.
  FWS The exemption for “authentic native articles” applies only to items
  produced “within living memory,” and therefore not to items produced
  from sea otter pelts. The FWS’ viewpoint is consistent with the commonly
  held viewpoint expressed in the 2nd paragraph.
  Court in 1986 case The 1986 court upheld the FWS regulations. This viewpoint is consistent
  with the FWS and with the commonly held viewpoint expressed in the
  second paragraph.
  Court in 1991 case The 1991 court disagrees with the FWS. The court held that the
  statutory regulations were based on a strained interpretation of the word
  “traditional” defying common sense.

Since many of the viewpoints described above are event-specific, be careful to match the dates given
to the correct event and viewpoint.