Under § 2 of the Act of May 1, 1936, the Secretary of the
Interior issued Public Land Order No. 128, designating as an Indian
reservation, for the use and benefit of the native inhabitants of
Karluk, Alaska, certain described lands and the waters adjacent
thereto extending "3,000 feet from the shore line at mean low
tide." Claiming authority under the White Act, 43 Stat. 464, which
prescribed drastic penalties for violations, the Secretary
promulgated a regulation prohibiting commercial fishing in the
waters of the reservation except by natives or their licensees.
Companies which for years had engaged in canning fish taken from
these waters, which depended on that source of supply for
profitable operations, and which had a substantial investment in
their business, sued in the District Court to enjoin permanently
the exclusion of their fishermen from the reservation, on the
ground of the invalidity of the Land Order and the regulation.
Named as sole defendant was the Regional Director for the Territory
of Alaska of the Fish and Wildlife Service of the Department of the
Interior.
Held:
1. The Secretary of the Interior is not an indispensable party
defendant to the suit, since a decree requiring the defendant and
his subordinates to cease their interference will afford all the
relief sought without the necessity of requiring the Secretary or
any of his subordinates to take any affirmative action. Pp.
337 U. S.
96-97.
2. The District Court had equity jurisdiction of the suit. Pp.
337 U. S.
97-100.
(a) The facts sufficiently show that the complainants are
without an adequate remedy at law, and will suffer irreparable
injury unless the enforcement of the regulation is restrained. Pp.
337 U. S.
97-100.
(b) Although criminal prosecutions, even under an invalid
statute, will ordinarily not be restrained, a civil action will lie
in exceptional circumstances that make an injunction necessary
effectually to protect property rights. Pp.
337 U. S.
98-99.
Page 337 U. S. 87
3. The Secretary's inclusion in the Karluk Reservation of the
waters described in the Land Order was authorized by § 2 of the Act
of May 1, 1936. Pp.
337 U. S.
100-116.
(a) The provision of § 2 of the Act of May 1, 1936, authorizing
the Secretary of the Interior to designate as a reservation any
"public lands which are actually occupied" by Indians in Alaska,
did not preclude the inclusion of coastal waters in the Karluk
Reservation. Pp.
337 U. S.
110-116.
(b) The fact that tidelands are embraced within the area
designated as the Karluk Reservation is without significance. Pp.
337 U. S.
114-115.
(c) A statute which authorized permanent disposition of federal
property would be strictly construed to avoid inclusion of
fisheries by implication. P.
337 U. S.
104.
(d) The Secretary of the Interior was without statutory
authority to convey to the Indians any permanent title or right in
the lands or waters of the Karluk Reservation. Pp.
337 U. S.
101-106.
(e) Indian reservations in Alaska, established or enlarged under
§ 2 of the Act of May 1, 1936, are subject to the unfettered will
of Congress. P.
337 U. S.
106.
(f) Nonrevocability in the case of the Karluk Reservation cannot
be predicated on the language of the Act of June 18, 1934, which
must be construed as effective only where there has been specific
recognition by the United States of Indian rights to control
absolutely tribal lands. Pp.
337 U. S.
106-107.
(g) References to general legislation on public lands in Alaska,
appearing in a letter of the Secretary of the Interior printed in
the House and Senate Reports on the bill which became the Act of
May 1, 1936, cannot be regarded as an adequate basis for adjudging
power in the Secretary to dispose finally of such lands. Pp.
337 U. S.
108-110.
4. The regulation prohibiting commercial fishing in the waters
of the Karluk Reservation except by natives or their licensees was
void as a whole, because in violation of the proviso of the White
Act that "no exclusive or several right of fishery shall be
granted." Pp.
337 U. S.
116-123.
(a) The general prohibition and the exception in the regulation
are not separable, and the regulation may not be upheld as imposing
a prohibition applicable to everyone. P.
337 U. S.
118.
(b) The White Act, the purpose of which was to protect and
conserve the fisheries of Alaska on a nonmonopolistic basis,
Page 337 U. S. 88
authorizes the establishment of preserves or closed areas in
reservations created under § 2 of the Act of May 1, 1936. Pp.
337 U. S.
118-119.
(c) Section 8 of the White Act does not make exclusive the power
of the Territorial Legislature to license fishing. P.
337 U. S.
121.
(d) Licenses for fishing may be required by the Secretary of the
Interior in areas regulated under the White Act, but such licenses
may be only regulatory in character, and, within the discretion of
the Secretary, must have their cost fixed so as not to exceed the
estimated cost of reasonable policing of the area. Pp.
337 U. S.
121-122.
(e) The White Act does not empower the Secretary of the Interior
to raise general funds for native welfare or general conservation
purposes from White Act preserves. P.
337 U. S.
122.
(f) The proviso of § 1 of the White Act "that no exclusive or
several right of fishery shall be granted" applies to commercial
fishing by natives, as well as by fishing companies, nonresidents
of Alaska, or other American citizens, and so applies whether those
natives are or are not residents on a reservation. Pp.
337 U. S.
122-123.
(g) The adoption of a corporate charter and a constitution by
the Native Village of Karluk under §§ 16 and 17 of the
Wheeler-Howard Act cannot expand the power of the Secretary of the
Interior under the White Act. P.
337 U. S.
122.
(h) The sanctions of the White Act may not be employed to
protect the Karluk Reservation against trespass. Pp.
337 U. S.
122-123.
5. In view of the fact that the foregoing holdings establish a
new basis for administrative and judicial conclusions, the decrees
of the District Court and the Court of Appeals granting a permanent
injunction on the ground of the invalidity of both the regulation
and the Land Order are vacated, and the case is remanded to the
District Court with directions as to further proceedings. Pp.
337 U. S.
123-127.
165 F.2d 323, decree vacated and case remanded.
Several companies which were engaged in the canning of fish in
Alaska brought an action against the Regional Director to enjoin
the enforcement of a federal regulation prohibiting commercial
fishing in the waters of the Karluk Reservation. The District Court
granted a permanent injunction.
67 F. Supp.
43. The Court of Appeals affirmed. 165 F.2d 323. This Court
granted certiorari.
Page 337 U. S. 89
333 U.S. 866.
Decrees vacated and case remanded for further
proceedings, p.
337 U. S.
127.
MR. JUSTICE REED delivered the opinion of the Court.
The Secretary of the Interior, on May 22, 1943, issued Public
Land Order 128. It is set out in full below. [
Footnote 1] In this case, the significant part of
No. 128 is that the Secretary included in the reservation, by
paragraph 2, adjacent tidelands and coastal waters along the entire
shore line of the uplands that touched Shelikof Strait between
Kodiak Island and the Alaska Peninsula. The authority of the
Secretary to utilize presidential power in the designation of this
reservation out of public lands in Alaska flows from a delegation
to the Secretary of presidential power to withdraw or reserve
public lands and revoke or
Page 337 U. S. 90
modify prior reservations. Executive Order No. 9146, of April
24, 1942, 1 C.F.R., Cum.Supp. 1149. The presidential power over
reservations is made specific by the Act of June 25, 1910.
[
Footnote 2] Another statutory
provision, however, is the principal basis for Order 128. This
is
Page 337 U. S. 91
§ 2 of the Act of May 1, 1936, 49 Stat. 1250. This act was
passed to extend to Alaska the benefits of the Wheeler-Howard Act
of June 18, 1934, 48 Stat. 984, and to provide for the designation
of Indian reservations in Alaska. As § 2 is important in our
discussion, the pertinent provisions are set out in full:
"SEC. 2. That the Secretary of the Interior is hereby authorized
to designate as an Indian reservation any area of land which has
been reserved for the use and occupancy of Indians or Eskimos by
section 8 of the Act of May 17, 1884 (23 Stat. 26), or by section
14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or
which has been heretofore reserved under any executive order and
placed under the jurisdiction of the Department of the Interior or
any bureau thereof, together with additional public lands adjacent
thereto, within the Territory of Alaska, or any other public lands
which are actually occupied by Indians or Eskimos within said
Territory:
Provided, That the designation by the Secretary
of the Interior of any such area of land as a reservation shall be
effective only upon its approval by the vote, by secret ballot, of
a majority of the Indian or Eskimo residents thereof who vote at a
special election duly called by the Secretary of the Interior upon
thirty days' notice. . . ."
The Native Village of Karluk held a meeting on May 23, 1944, and
accepted "the proposed Indian Reservation for this village. The
adoption of said Reservation passed by a vote of 46 for and 0
against. 11 of the eligible voters were absent."
See
note 26 infra.
Under § 19 of the Wheeler-Howard Act, the Alaskan aborigines are
classified as Indians.
On March 22 and August 27, 1946, the Secretary of the Interior
amended the Alaska Fisheries General Regulations,
Page 337 U. S. 92
50 C.F.R., 1946 Supp., § 208.23, that related to the commercial
fishing for salmon in the Kodiak Area Fisheries by the addition of
a subsection (r), reading as follows:
"(r) All waters within 3,000 feet of the shores of Karluk
Reservation (Public Land Order No. 128, May 22, 1943), beginning at
a point on the east shore of Shelikof Strait, on Kodiak Island,
latitude 57� 32' 30' N., thence northeasterly along said shore to a
point 57� 39' 40'."
"The foregoing prohibition shall not apply to fishing by natives
in possession of said reservation, nor to fishing by other persons
under authority granted by said natives (49 Stat. 1250; 48 U.S.C.
358a). Such authority shall be granted only by or pursuant to
ordinance of the Native Village of Karluk, approved by the
Secretary of the Interior or his duly authorized
representative."
The authority for the regulation is given as 34 Stat. 264 and
478, as amended by the Act of June 6, 1924, 43 Stat. 464, an Act
for the protection of the fisheries of Alaska, known as the White
Act. [
Footnote 3] As the
controlling section of this statute also is important, it is set
out here, [
Footnote 4] 44 Stat.
752:
"SECTION 1. That, for the purpose of protecting and conserving
the fisheries of the United States in all waters of Alaska, the
Secretary of Commerce from time to time may set apart and reserve
fishing areas in any of the waters of Alaska over which the
United
Page 337 U. S. 93
States has jurisdiction, and within such areas may establish
closed seasons during which fishing may be limited or prohibited as
he may prescribe. Under this authority to limit fishing in any area
so set apart and reserved, the Secretary may (a) fix the size and
character of nets, boats, traps, or other gear and appliances to be
used therein; (b) limit the catch of fish to be taken from any
area; (c) make such regulations as to time, means, methods, and
extent of fishing as he may deem advisable. From and after the
creation of any such fishing area and during the time fishing is
prohibited therein, it shall be unlawful to fish therein or to
operate therein any boat, seine, trap, or other gear or apparatus
for the purpose of taking fish, and from and after the creation of
any such fishing area in which limited fishing is permitted, such
fishing shall be carried on only during the time, in the manner, to
the extent, and in conformity with such rules and regulations as
the Secretary prescribes under the authority herein given:
Provided, That every such regulation made by the Secretary
of Commerce shall be of general application within the particular
area to which it applies, and that no exclusive or several right of
fishery shall be granted therein, nor shall any citizen of the
United States be denied the right to take, prepare, cure, or
preserve fish or shellfish in any area of the waters of Alaska
where fishing is permitted by the Secretary of Commerce. . . ."
See, for definition of "several," 2 Bl.Com. 39-40.
These are the statutes and orders that created the situation that
led to this litigation.
The issuance of the White Act regulation of March 22, 1946,
brought concern to the commercial fishing interests of Alaska. This
was because of its drastic penalties.
See note 49 infra. The native village
of Karluk
Page 337 U. S. 94
spoken of in Order No. 128, establishing the reservation is
situated on the Karluk River, long recognized as one of the most
important salmon spawning streams of Alaska. The natives live at
its mouth on Shelikof Strait. There, the salmon must congregate
from the Strait to enter the channel of the river leading to their
spawning grounds in the interior of Kodiak Island. The waters
included in the reservation are those stretching eight miles along
the coast north and south of the mouth, 3,000 feet into the Strait.
Thus, the best of the Karluk salmon fishery is put into the
reservation by Order No. 128. [
Footnote 5] For an understanding of the locality, a sketch
map is appended [omitted -- see printed volume].
The importance of the Karluk fishery will be appreciated by
reference to a few of the facts in connection with it. When Russia
ceded Alaska to the United States in 1867, 15 Stat. 539, Karluk was
already well known as an abundant salmon fishery. [
Footnote 6] By 1885, the salmon canneries
were flourishing, and Bancroft reports the Karluk pack at 36,000
cases out of a total of 65,000. [
Footnote 7] The production continued large. [
Footnote 8] The red salmon was most prolific.
There were variations in the catch, but it was
Page 337 U. S. 95
always valuable. [
Footnote
9] In later years, the fluctuations continued, and other
varieties increased relatively. [
Footnote 10]
None of the respondent companies has packing plants at Karluk.
All are, however, on Kodiak, Island, which is around 100 miles long
and 50 broad, and within fishing distance of the reservation
waters. There is a fish refrigeration plant on the river. These
canners have canned fish from these waters for from seven to
twenty-four years. The percentage of each canner's pack that comes
from the reserved waters is so large that the trial court found
irreparable injury to the packers if they could not obtain the
catch of the reservation. " . . . [N]o other replacement source of
such salmon for their canneries
Page 337 U. S. 96
on Kodiak Island is available to them." The canners' investment
is substantial, running from two to five hundred thousand dollars,
respectively. The fishing is done by men who own their own three-
to four-man boats, use similar company boats, or operate under boat
buying contracts. Prices for the catch vary for these
classifications. These packers employ over four hundred fishermen,
chiefly residents of Alaska, and over six hundred cannery
employees, chiefly nonresidents.
The fishing season at Karluk begins around June 1 and continues
intermittently, depending upon the run of fish, until Sept. 30.
After the issuance of § 208.23(r) restricting the fishery at Karluk
Reservation to Karluk natives and licensees, respondents brought
this action against the Regional Director for the Territory of
Alaska of the Fish and Wildlife Service to permanently enjoin the
exclusion of their fishermen from the reservation on the ground
that neither regulation § 208.23(r) nor Public Land Order No. 128
legally closed the fishery of the coastal waters to respondents.
The District Court granted the permanent injunction and held
invalid both the regulation and the land order.
67 F. Supp.
43. On the same grounds, the Court of Appeals for the Ninth
Circuit affirmed the order for permanent injunction. 165 F.2d
323.
I
(a) At the outset, the United States contends that the Secretary
of the Interior is an indispensable party who must be joined as a
party defendant in order to give the District Court jurisdiction of
this suit. In
Williams v. Fanning, 332 U.
S. 490, the test as to whether a superior official can
be dispensed with as a party was stated to be whether "the decree
which is entered will effectively grant the relief desired by
expending itself on the subordinate official who is before the
court." 332 U.S. at
332 U. S. 494.
Such
Page 337 U. S. 97
is the precise situation here. Nothing is required of the
secretary; he does not have to perform any act, either directly or
indirectly. Respondents merely seek an injunction restraining
petitioner from interfering with their fishing. No affirmative
action is required of petitioner, and, if he and his subordinates
cease their interference, respondents have been accorded all the
relief which they seek. The issues of the instant suit can be
settled by a decree between these parties without having the
Secretary of the Interior as a party to the litigation.
(b) Petitioner, Regional Director for the Territory of Alaska of
the Fish and Wildlife Service of the Interior Department, is
charged with the duty of enforcing the acts of Congress relating to
the fisheries of Alaska and regulations issued thereunder. The
District Court found that, since March 22, 1946, the effective date
of § 208.23(r) of the Alaska Fisheries General Regulations,
petitioner has continually threatened the seizure of all boats and
equipment used to fish in the waters covered by this regulation to
respondents' substantial and irreparable loss, and that the
seasonal run of salmon in the reservation waters was essential for
respondents' profitable operation. From the following facts, it
will be seen that there is sufficient evidence to support these
findings.
After the promulgation of the fishery regulation, § 208.23(r),
the Warden for the Fish and Wildlife Service on Kodiak Island, one
of petitioner's subordinate agents, repeatedly informed officials
of the canneries that the regulation would be enforced and that the
necessary steps would be taken to prosecute any violations. He
communicated to the representatives of the canneries the contents
of a telegram in which petitioner directed that a case to test the
regulation be arranged for the opening day of the fishing season.
The contents of this telegram were relayed to the headquarters in
Seattle of the Alaska Salmon Industry, Inc., a trade association of
the canned
Page 337 U. S. 98
salmon packers of which all but one of respondents are members.
Thence the information was distributed to all interested parties.
The Kodiak warden then reiterated to the cannery operators on that
island his intention to enforce the regulation even though his
force and equipment were inadequate for the purpose.
Thereafter, two officers of the Indian Service were appointed
special agents for the Fish and Wildlife Service to assist in the
enforcement of the fishing regulations issued by the Interior
Department. They arrived at Karluk June 24, 1946. These two
deputies were armed, and maintained a boat patrol in the waters of
the reservation. They checked the names of boats fishing in the
waters of the reservation against the permits issued by the village
of Karluk. No boats were allowed inside the area which had been
restricted for beach seining by vote of the Indian meeting of May
23, 1944, [
Footnote 11] and
which was marked off by buoys.
If respondents show that they are without an adequate remedy at
law and will suffer irreparable injury unless the enforcement of
the alleged invalid regulation is restrained, a civil court will
enjoin. [
Footnote 12] While
ordinarily
Page 337 U. S. 99
criminal prosecutions will not be restrained even under an
invalid statute, [
Footnote
13] a civil action will lie in exceptional circumstances that
make an injunction necessary to effectually protect property
rights. [
Footnote 14]
The facts heretofore detailed as to the investments of
respondents in canneries and fishing equipment and their establish
activities in the waters of the reservation make clear the serious
effect on them of exclusion from the reservation. It is not a
threat of a single prosecution, as in the
Spielman case,
but an ousting of respondents and their employees from the fishing
grounds unless each individual person takes a fishing license.
Under the findings, the respondents could not operate profitably if
prohibited from fishing in the reservation area. Many fishermen may
stay away from the grounds for fear of punishment. In the pursuit
of their otherwise lawful business, respondents are threatened with
criminal prosecution should they fish in the waters of the Karluk
Reservation without a permit from the native village. For the
violation of the applicable regulation under the White Act, severe
penalties are imposed, including fine, imprisonment, the summary
seizure of boats, haul, gear, equipment, and their forfeiture to
the United States. [
Footnote
15] These sanctions deny to respondents an adequate remedy at
law for to challenge the regulation in an ordinary criminal
proceeding is to hazard a loss against the payment of a license fee
and compliance with the fishing rules of the natives. Yet to stay
out of the reservation prevents the profitable operation of the
canneries. In such a situation
Page 337 U. S. 100
a majority of the Court thinks that the "danger of irreparable
loss is both great and immediate," and properly calls forth the
jurisdiction of the court of equity. [
Footnote 16]
II
Respondents sought this injunction forbidding criminal
proceedings aimed at excluding them from fishing in the coastal
waters of Karluk Reservation on the ground that Public Land Order
No. 128,
note 1 supra,
was invalid as a whole, and particularly because of the inclusion
of tidelands and coastal waters by § 2 of the order.
Respondents attack in their complaint the validity of the entire
order, because
"no part of the land area involved had been withdrawn by
Executive Order and placed under the jurisdiction of the Department
of the Interior prior to May 1, 1936, as required by the Act of May
1, 1936."
This position has not been pressed or decided. [
Footnote 17] The final order for an
injunction against petitioner does not include any ruling on that
point.
Nor do we think the authority of the Secretary of the Interior
to establish the Karluk Reservation, Public Land Order 128, by
virtue of the use and occupancy of the area by the natives under §
8 of the Act of May 17, 1884, 23 Stat. 26, or §§ 14 or 15 of the
Act of March 3, 1891, 26 Stat. 1101, need be decided. While the
point is referred to in the briefs, no such issue was tendered by
the complaint; no such point was raised by the assignments of
error; the question was specifically pretermitted by the opinion of
the Court of Appeals, 165 F.2d at 325; it is not included in the
questions presented by the petition for
Page 337 U. S. 101
certiorari, and is not relied upon by the respondents to require
affirmance of the Court of Appeals decree.
(a) The validity of Public Land Order 128 depends in this case
on the scope of the power granted to the Secretary to establish
this reservation by the language of § 2 of the Act of May 1, 1936,
supra, authorizing the Secretary of the Interior to
designate as a reservation "any other public lands which are
actually occupied by Indians or Eskimos within said Territory." An
administrative order is presumptively valid. [
Footnote 18]
In this instance, the Secretary acted by statute, § 2, Act of
May 1, 1936, and through delegation of presidential authority.
[
Footnote 19] This
delegation, in turn, rested on the Act of June 25, 1910, 36 Stat.
847. [
Footnote 20] This
chain of delegated authority for the allocation of public lands in
Alaska retains for future congressional action the power for the
ultimate disposition of the property, land and water, within the
boundaries of the reservation. Withdrawals under the Act of June
25, 1910, are "temporary," and "until revoked by him or by an Act
of Congress."
The Wheeler-Howard Act of June 18, 1934, "To conserve and
develop Indian lands and resources," which was extended to the
Territory of Alaska by § 1 of the Act of May 1, 1936, authorized
the Secretary of the Interior
Page 337 U. S. 102
to restore to tribal ownership only the remaining surplus lands
of any Indian reservation theretofore opened for sale or other
disposition. [
Footnote 21]
It did not authorize the creation of reservations of any kind. Its
only reference to acquisition of lands by or for Indians is in § 5,
where appropriations are authorized for that purpose. This section
is inapplicable here.
Section 2 of the extending act, set out at the beginning of this
opinion, page
337 U. S. 91
supra, gives no power to the Secretary to dispose finally
of federal lands. By the new section, he is authorized simply "to
designate as an Indian reservation" any other public lands which
are actually occupied by Indians or Eskimos within said Territory.
There is no language in the various acts, in their legislative
history, or in the Land Order 128, from which an inference can be
drawn that the Secretary has or has claimed power to convey any
permanent title or right to the Indians in the lands or waters of
Karluk Reservation. Rather, the contrary is true. In the Act of May
14, 1898, 30 Stat. 409, 48 U.S.C. § 411, "Extending the homestead
laws and providing for right of way for railroads in the District
of Alaska, and for other purposes," there is the express proviso
that nothing contained in the Act
"shall be construed as impairing in any degree the title of any
State that may hereafter be erected out of the Territory of Alaska,
or any part thereof, to tide lands and beds of any of its navigable
waters, or the right of such State
Page 337 U. S. 103
to regulate the use thereof, nor the right of the United States
to resume possession of such lands, it being declared that all such
rights shall continue to be held by the United States in trust for
the people of any State or States which may hereafter be erected
out of said Territory. The term 'navigable waters,' as herein used,
shall be held to include all tidal waters up to the line of
ordinary high tide and all nontidal waters navigable in fact, up to
the line of ordinary high-water mark."
Indeed, the United States affirms in its brief that Karluk
Reservation is merely a reservation "for a particular governmental
use," not a disposal of the area. The government says it is like
Sioux Tribe v. United States, 316 U.
S. 317, not like
United States v. Holt State
Bank, 270 U. S. 49.
An Indian reservation created by Executive Order of the
President conveys no right of use or occupancy to the beneficiaries
beyond the pleasure of Congress or the President. Such rights may
be terminated by the unilateral action of the United States without
legal liability for compensation in any form, even though Congress
has permitted suit on the claim.
Sioux Tribe v. United
States, 316 U. S. 317;
see United States v. Santa Fe Pacific R. Co., 314 U.
S. 339 at
314 U. S. 347.
[
Footnote 22] When a
reservation is established by a treaty ratified by the Senate or a
statute, the quality of the rights thereby secured to the occupants
of the reservation depends upon the language or purpose of the
congressional action. [
Footnote
23] Since Congress, under the Constitution, § 3 of Art. IV, has
the power to dispose of
Page 337 U. S. 104
the lands of the United States, it may convey to or recognize
such rights in the Indians, even a title equal to fee simple, as in
its judgment is just.
Shoshone Indians v. United States,
324 U. S. 335,
324 U. S.
339-340. When Congress intends to delegate power to turn
over lands to the Indians permanently, one would expect to, and
doubtless would, find definite indications of such a purpose.
[
Footnote 24]
In the present case, a determination of the power delegated to
the Secretary of the Interior by the Wheeler-Howard Act of June 18,
1934, and § 2 of the Act of May 1, 1936, is important. It is
important for the reason that a statute that authorizes permanent
disposition of federal property would be most strictly construed to
avoid inclusion of fisheries by implication. Petitioner argues for
a holding that the power granted covers water, as well as land. If
that power were broad enough to enable the Secretary to designate
nonrevocable or permanent reservations of all Alaska fishing
grounds for the sole benefit of natives living in villages adjacent
to the fisheries, it might place in his hands the power to grant
the natives
Page 337 U. S. 105
the right to exclude all other fishermen from the fisheries. In
this present case, for example, it might mean that the native
residents of the Karluk Reservation would have the perpetual use
and enjoyment of this valuable Karluk fishery for themselves and
their licensees. [
Footnote
25] On May 23, 1944, a year after Public Land Order 128, the
petitioner shows that there were 57 residents eligible to vote for
approval of the designation of the reservation. [
Footnote 26] As indicated by the cases
hereinbefore cited, a recognition of such ownership in Indians
might require just compensation to them of the fair value of the
fishery, if the United States should desire hereafter to reopen the
area to the public under its regulations. There is much less reason
to read such power of permanent disposition by the Secretary into §
2 than there was to read it into the President's "implied grant of
power" to create reservations.
United States v. Midwest Oil
Co., 236 U. S. 459,
236 U. S. 475.
It would take specific and unambiguous legislation to cause us to
rule that Congress intended to authorize the Secretary of the
Interior to alienate the Alaska fisheries permanently from public
control. [
Footnote 27] The
argument that Congress did not intend to
Page 337 U. S. 106
authorize the designation of water or fisheries as a part of an
Indian reservation has behind it the unarticulated premise that the
United States must have complete power to protect, improve, and
regulate for the good of all our people these unrivaled sea
fisheries with their wealth of food. It loses much of its force by
our conclusion that Alaskan Indian reservations, established or
enlarged under § 2 are subject to the unfettered will of Congress.
[
Footnote 28]
(b) An argument that the reservation is a nonrevocable grant can
be made. Under the Act of June 18,
Page 337 U. S. 107
1934, § 16, applicable to Alaska,
see § 13, an Indian
tribe was authorized to adopt a constitution and bylaws for its
government. This was done by the Karluk Reservation Indians. There
is a phrase in the section that has color of recognition of
ownership of tribal lands in the Indians. It reads as follows:
"In addition to all powers vested in any Indian tribe or tribal
council by existing law, the constitution adopted by said tribe
shall also vest in such tribe or its tribal council the following
rights and powers: . . . to prevent the sale, disposition, lease,
or encumbrance of tribal lands, interests in lands, or other tribal
assets without the consent of the tribe. . . ."
48 Stat. 987. [
Footnote
29] We think, however, in view of the breadth of the coverage
of the Wheeler-Howard Act, that this language would be effective
only where there has been specific recognition by the United States
of Indian rights to control absolutely tribal lands.
Page 337 U. S. 108
Persuasive of this conclusion is that the bill, when originally
introduced by Interior, provided in § 7 of Title III that
"Title to any land acquired pursuant to the provisions of this
section shall be taken in the name of the United States in trust
for the Indian tribe or community for whom the land is acquired,
but title may be transferred by the Secretary to such community
under the conditions set forth in this Act."
The italicized words were omitted when this section was
incorporated into § 5 of the Wheeler-Howard Act.
See
Hearings before House Committee on Indian Affairs, 73d Cong., 2d
Sess., on H.R. 7902, p. 9.
Turning to § 2 of the Act of May 1, 1936, the strongest argument
for the nonrevocability of a reservation, created under § 2 of that
Act, comes from a letter of the Secretary of the Interior printed
in the House and Senate Reports on the bill which became the Act in
question. [
Footnote 30] The
reports, speaking of § 2, said:
"This provision in reality carries out the promise of this
Government contained in its act approved on May 17, 1884 (23 Stat.
26), as follows:"
"
Provided, That the Indians or other persons in said
district shall not be disturbed in the possession of any lands
actually in their use or occupation or now claimed by them, but the
terms under which such persons may acquire title to such lands is
reserved for future legislation by Congress."
H.R.Rep. No.2244, 74th Cong., 2d Sess., p. 3.
The pertinent part of the letter is set out below. [
Footnote 31] The legislation was, of
course, a fulfillment of the aid foreshadowed
Page 337 U. S. 109
in the statutes referred to in the letter. Such references to
general legislation on public lands in the huge Territory of
Alaska, however, cannot be treated as an adequate basis for courts
to declare that power was given the Secretary of the Interior to
dispose finally of Alaska lands. The first section of the Act of
May 1 was a mere amendment of the Wheeler-Howard Act to bring
Alaska under its coverage. The Wheeler-Howard Act did not authorize
the creation of Indian reservations. Section 2 of the act extending
the Wheeler-Howard Act to Alaska was intended to permit the
organization of the Alaska natives so that they could avail
themselves
Page 337 U. S. 110
of the earlier Act. [
Footnote
32] It cannot be said, we think, that such reservations may be
permanent or nonrevocable. A reading of § 2 will show that there
are no words with the connotation of recognition or conveyance of
title. There are no words, such as appear in other statutes,
[
Footnote 33] reserving the
right of exploration, discovery, and claim for precious metals and
valuable minerals. There is no discussion in the reports or the
debates that show a definite intention of anyone to part with
public property establish an Alaskan Indian communal system. Under
such circumstances, we think the land and water reservations
created under § 2 are reservations at will.
(c) We are convinced that § 2 of the Act of May 1, 1936,
authorizes the Secretary of the Interior to include in the Karluk
Reservation the waters described in § 2 of Public Land Order No.
128. To interpret the clause "or any other public lands which are
actually occupied by Indians or Eskimos within said Territory" to
describe only land above mean low tide is too restrictive in view
of the history and habits of Alaska natives
Page 337 U. S. 111
and the course of administration of Indian affairs in that
Territory. The title to the uplands and waters in question is in
the United States. [
Footnote
34] The fisheries as well as the uplands are subject to its
present control. [
Footnote
35] In 1868, Congress extended our laws relating to customs,
commerce, and navigation over the "mainland, island, and waters of
the territory." 15 Stat. 240. The seal
Page 337 U. S. 112
islands and the waters adjacent thereto were promptly made a
reservation for the preservation and exploitation of the seal
fishery. 15 Stat. 348, 16 Stat. 180. A civil government for the new
territory was set up in 1884. 23 Stat. 24. In that act appeared the
proviso referred to
supra, n 31, in the letter of the Secretary of the Interior. By
§ 12, a commission was empowered to report upon the condition of
the Indians. [
Footnote 36]
On June 30, 1885, the Commission reported to the Secretary of the
Interior as to the fisheries in the words in the margin below.
[
Footnote 37]
By virtue of § 15 of the act of Congress of March 3, 1891,
supra, note 28 the
Congress set apart the "body of lands known as Annette Islands" in
Alaska for a reservation for the Metlakahtla Indians. Nothing was
said as to fishing rights. A presidential proclamation of April 28,
1916, reserved to them the surrounding waters within
Page 337 U. S. 113
3 000 feet. 39 Stat. 1777. [
Footnote 38] After the proclamation, a proceeding was
brought by the United States relying upon the statute and
proclamation to oust a fish trap of the Alaska Pacific Fisheries
from the waters mentioned in the proclamation. Such a decree was
obtained in the District Court, and affirmed by the United States
Court of Appeals for the Ninth Circuit on the ground
"that the reservation of Annette Island by the act of Congress,
and of its surrounding waters by the President's proclamation, is
fully sustained."
Alaska Pacific Fisheries v. United States, 240 F. 274,
283. For the validity of the proclamation, reliance was placed upon
his power to reserve lands for reservations without specific
authority.
See United States v. Midwest Oil Co., supra.
This Court affirmed the decree as to the waters within 3,000 feet
of the shorelines. Although, in the brief, a vigorous attack was
made on the power to issue the proclamation covering the waters,
the proclamation was not referred to in the unanimous opinion here.
This Court felt compelled
Page 337 U. S. 114
to decide the fisheries were included in the language of the
statute by the purpose to assist the Indians to train themselves.
Fishing was said to give value to the islands. "The use of the
adjacent fishing grounds was equally essential. Without this, the
colony could not prosper in that location."
Alaska Pacific
Fisheries v. United States, 248 U. S. 78,
248 U. S.
89.
The conditions as to the waters around the Annette Islands
closely parallel those of other Alaska areas actually occupied by
natives. The Annette Islands case was relied upon by the Secretary
of the Interior for his authority to include the fisheries under §
2 of the Act of May 1, 1936. 56 Int.Dept. 110. The Alaska
aborigines, like the Metlakahtlans, are fishermen. They too depend
upon the waters for a large part of their support. For them, the
adjacent fisheries are as important, perhaps more important, than
the forests, the fur-bearing animals, or the minerals.
Respondents urge upon us the cases in this and other courts
which have held that the phrase "public lands," the term now under
consideration, used in § 2 of the Act of May 1, 1936, does not
include any area extending below mean high tide. [
Footnote 39] As the respondents state, this
case turns not on tidelands, the area between mean high and mean
low tides, but on whether the Secretary could include coastal
waters in the reservation,
i.e., the area
Page 337 U. S. 115
"3000 feet from the shore line at mean low tide." As we
understand respondents' argument and as we see this case, the
question of tidelands is not significant. Reference to
Mann v.
Tacoma Land Co., 153 U. S. 273,
153 U. S. 283,
will make clear respondents' position. Before the admission of
Washington to statehood, November 11, 1889, 26 Stat. 1552, the
United States issued land scrip to Mann for location on "unoccupied
and unappropriated public lands" and the holder made location on
tidelands and received the register's certificate therefor. When
Mann sought to restrain trespass on the land so obtained, this
Court held:
"It is settled that the general legislation of congress in
respect to public lands does not extend to tide lands. There is
nothing in the act authorizing the Valentine scrip, or in the
circumstances which gave occasion for its passage, to make an
exception to the general rule."
153 U.S. at
153 U. S. 284.
Respondents assert that the reference to public lands in § 2 should
be construed in the same manner, since the federal land laws apply
to Alaska, [
Footnote 40] as
do the reasons for excluding waters seaward of mean high tide.
[
Footnote 41]
The Government points out that the cases relating to the limits
of "public lands" are cases where final disposition, not temporary
use, of the lands appeared. When one deals with a statute so large
in purpose as to justify the above-quoted comment of the Secretary
of the Interior that it
"provides a method by which the financial aid provisions of the
Indian Reorganization Act may be extended to those Indians and
Eskimos of Alaska who occupy established villages,"
one may not fully comprehend
Page 337 U. S. 116
the statute's scope by extracting from it a single phrase, such
as "public lands" and getting the phrase's meaning from the
dictionary or even from dissimilar statutes. Section 2 of the Act
of May 1, 1936, is but one of a series of enactments relating to
Alaska natives, lands, and fisheries. It must "be taken as intended
to fit into the existing system," and interpreted in that aspect.
[
Footnote 42] There is
nothing that we have found in the statute or the legislative
history to justify the significance put upon the use of the words
"public lands" in the clause of § 2 under discussion, instead of
"lands" used in the preceding clauses. If a differentiation was
intended, surely it would have been more definitely expressed.
Taking into consideration the importance of the fisheries to the
Alaska natives, the temporary character of the reservation, the
Annette Islands case, the administrative determination, the purpose
of Congress to assist the natives by the Alaska amendment to the
Wheeler-Howard Act, we have concluded that the Secretary of the
Interior was authorized to include the waters in the reservation.
No injunction therefore may be obtained because of the invalidity
of Order No. 128.
III
Subdivision II of this opinion has been directed toward the
determination of the scope of § 2 of the Act of May 1, 1936,
extending the Wheeler-Howard Act to Alaska. We were led to hold
that Order 128, set out in full in
note 1,
supra, validly included in the
reservation the waters to a distance of 3,000 feet from its shores.
In his handling of the problems of the Karluk natives as affected
by their need for a reservation and fishing rights, the Secretary
of the Interior took another step under the authority of § 1 of
another act, the White
Page 337 U. S. 117
Act. The section is set out at length in the text beginning on
page
337 U. S. 92 of
this opinion. The Act was for the protection of the fisheries of
Alaska. Section 1 authorized the Secretary to set apart fishing
areas in any of the waters of Alaska and establish in those
preserves closed seasons "during which fishing may be limited or
prohibited."
Pursuant to this statute, detailed regulations were issued by
the Secretary of Commerce, and they have been continued by the
Secretary of the Interior since Reorganization Plan No. II,
note 4 supra.
[
Footnote 43] One area
established was the Kodiak Area, which included the waters here in
question. [
Footnote 44]
Among the waters at first closed to commercial salmon fishing were
the Karluk River spawning waters and those within 100 yards of its
mouth. [
Footnote 45] Later,
the Secretary of the Interior, still acting solely under § 1 of the
White Act, added the waters of the Karluk Reservation to the
prohibited areas. [
Footnote
46] An exception was made in the regulation to the prohibition
against fishing in the reservation waters. The precise language of
the entire subsection (r) of the regulation, § 208.23, is on page
337 U. S. 92 of
this opinion. We repeat here the exception:
"The foregoing prohibition shall not apply to fishing by natives
in possession of said reservation, nor to fishing by other persons
under authority granted by said natives. 49 Stat. 1250; 48 U.S.C.
358a. Such authority shall be granted only by or pursuant to
ordinance of the Native Village of Karluk, approved by the
Secretary of the Interior or his duly authorized representative.
"
Page 337 U. S. 118
The citation to 49 Stat. 1250 is to the Act of May 1, 1936,
authorizing the creation of the reservation. Perhaps it was thought
that the creation of the reservation justified this exception in
the White Act regulation, but we do not understand that any support
from that Act is claimed for the establishment of the White Act
preserve.
The validity of the exception permitting fishing by natives in
possession of the reservation and their licensees is challenged by
respondents because of a proviso in § 1 of the White Act,
reading:
"
Provided, That every such regulation made by the
Secretary of Commerce shall be of general application within the
particular area to which it applies, and that no exclusive or
several right of fishery shall be granted therein, nor shall any
citizen of the United States be denied the right to take, prepare,
cure, or preserve fish or shellfish in any area of the waters of
Alaska where fishing is permitted by the Secretary of Commerce. . .
."
Respondents alleged that the exception for fishing by natives
and their licensees made § 208.23(r) wholly illegal because it was
inconsistent with the proviso of § 1 of the White Act as to
exclusive or several right of fishery. The District and Circuit
Courts agreed with this argument, and the District Court said that
the regulation must be viewed in its entirety,
67 F. Supp.
43, 49. We agree that it is not possible to separate the
closing of the area from the exception, and thus hold the closing
applicable to everyone. A right to fish locally is too important to
the natives in Alaska for us to conclude from this record that the
Secretary would have promulgated the prohibition to fish for salmon
in reservation waters without the exception in favor of the
natives. We have no doubt, however, that the White Act authorizes
the establishment of White Act preserves or
Page 337 U. S. 119
closed areas in reservations created, as the Karluk Reservation,
under § 2 of the Act extending the Wheeler-Howard Act to Alaska. No
implications can be drawn from the broad and clear language of the
White Act that reservation waters, however valuable for fishing or
fish propagation, must be left unprotected from ruthless
exploitation.
What we have said heretofore in this opinion as to the
importance of fisheries, and their conservation to Alaska natives
with reference to the Karluk River area in particular, need not be
repeated. The quoted section of the White Act gives power to the
Secretary so that he may "(c) make such regulations as to time,
means, methods and extent of fishing as he may deem advisable."
Then follows the proviso that every such regulation shall be of
general application, and that no exclusive or several right of
fishing shall be granted therein. This section was enacted to
correct alleged abuses that arose in the administration of the Act
"[f]or the protection and regulation of the fisheries of Alaska,"
approved June 26, 1906, 34 Stat. 478. By § 6 of the earlier act,
streams or lakes could be set aside as permanent preserves, but not
coastal waters. Although the 1906 Act did not delegate regulatory
powers in the amplitude of the White Act, fishing reservations in
territorial waters were created by Executive Order, and regulations
were issued thereunder. [
Footnote 47] The policy behind these regulations and
their administration was to restrict the right to fish commercially
to those who had formerly fished in these areas.
See
Fisheries Service Bulletin No.
Page 337 U. S. 120
92, Jan. 2, 1923. Congress did not propose that these rich
fishing grounds should be monopolized by this defined group. The
legislative history of the White Act only emphasizes what the
statute clearly says -- that is, no special privileges in Alaskan
fishing preserves. [
Footnote
48] The enforcement provisions of the White Act gave stern
warning to prospective violators. [
Footnote 49]
Page 337 U. S. 121
For the conservation of the fisheries, it was recognized that
administrative flexibility must be permitted.
"The waters of Alaska are so vast, and the local conditions so
varied, that it is utterly impossible to prescribe by legislation
in detail the provisions necessary to meet each situation. To
attempt to do so would be to defeat the purposes sought. This can
be done by placing broad powers and a wide discretion in the
administrative branch having charge of the subject."
Sen.Rep. No. 449 on H.R. 8143 (which became the White Act), 68th
Cong., 1st Sess., p. 2.
Compare Dow v. Ickes, 74 App.D.C.
319, 123 F.2d 909, 913.
Although § 8 of the White Act [
Footnote 50] left a power in the Territorial Legislature
of Alaska to impose taxes or licenses for fishing, we do not read §
8 as limiting the power to license fishing to the Territorial
Legislature. The section does not make the legislative power
exclusive. Since § 1 of the White Act not only authorizes the
establishment of fishing preserves, but also requires that the
fishing be carried on "in conformity with such rules and
regulations as the Secretary prescribes under the authority herein
given," [
Footnote 51] we are
of the opinion that licenses for fishing may be required in areas
regulated under the White Act. We think, however, these licenses
may be only regulatory in character, and, within the discretion of
the Secretary, must have their cost fixed so as not
Page 337 U. S. 122
to exceed the estimated approximate cost of reasonable policing
of the area. We do not read the White Act as empowering the
Secretary to raise general funds for native welfare of general
conservation purposes from White Act preserves.
As § 208.23(r), with its exception in favor of the natives in
possession of Karluk Reservation and their licensees, is based upon
§ 1 of the White Act, we think it clear that its proviso "that no
exclusive or several right of fishery shall be granted therein,"
applies to commercial fishing by natives equally with fishing
companies, nonresidents of Alaska, or other American citizens, and
so applies whether those natives are or are not residents on a
reservation. We find nothing in the White Act that authorizes the
Secretary of the Interior to grant reservation occupants the
privilege of exclusive commercial fishing rights. It seems also
clear to us that the adoption of a corporate charter and a
constitution by the Native Village of Karluk under §§ 16 and 17 of
the Wheeler-Howard Act, discussed at pp.
337 U. S.
106-107,
supra, can add nothing to the power of
the Secretary under the White Act. "Exclusive," as used in § 1 of
the White Act, forbids not only a grant to a single person or
corporation, but to any special group or number of people. The
legislative history set out above shows this. The offending
regulations which brought about the enactment of the proviso in § 1
of the White Act were administered so as to limit fishing to those
who had been using the fisheries before the regulations. The White
Act fishing preserves were not intended to furnish a monopoly to a
favored few. Whatever may be the powers of the Department of the
Interior or the natives as to regulating the entrance of persons
other than natives in possession of Karluk Reservation into or on
the area of land and water in that reservation, [
Footnote 52] they are not broad
Page 337 U. S. 123
enough to allow the use of the White Act sanctions to protect
the reservation against trespass. White Act sanctions are for White
Act violations. The Department of the Interior, by § 208.23(r), has
decided upon the conservation of fisheries in the described waters
of the Karluk Reservation in accordance with the White Act with an
exception in favor of the natives that seems to rest on the fact
that the natives are on a reservation that includes the White Act
conservation area. This cannot be done. The welfare of the 57
electors of Karluk Reservation and their families is important. The
Secretary of the Interior, however, cannot given them such
preferences as are here given under the authority of the White Act.
Other American citizens are equally entitled to the benefits from
White Act preserves. [
Footnote
53] We hold that the regulation § 208.23(r) is void as a whole
because it violates the proviso of the White Act.
See p.
337 U. S.
93.
IV
There are problems connected with the administration of the
Karluk Reservation and the protection of the fishing preserves that
have not been determined by the courts or the Department of the
Interior. Our holding that coastal waters may be included in the
reservation waters and that the White Act cannot be used to create
a monopoly in the Indians establishes a different basis for
administrative and judicial conclusions. The 1945 ordinance
Page 337 U. S. 124
must be considered; it appears in the margin. [
Footnote 54] It states that Public Land
Order 128 restricts the right to fish commercially in the
reservation waters to Karluk inhabitants. This ordinance antedates
the regulation.
See p.
337 U. S. 91,
supra. It evidently is based on the theory that the
creation of the reservation gave exclusive fishing rights to the
natives in possession. Permits required the approval of the
Secretary of the Interior or his authorized
Page 337 U. S. 125
representative. [
Footnote
55] An example of the permit is printed below. [
Footnote 56] We know nothing from the
record of the reasons for the $2 fee for residents or the $40 fee
for nonresidents or their relation to the cost of policing the
area.
See Haavik v. Alaska Packers'
Association, 263
Page 337 U. S. 126
U.S. 510. So far as appears after once approving an ordinance,
the Department's only direct control over the ordinance is by
approval or disapproval of amendments. [
Footnote 57]
This is an equitable proceeding in which the respondents seek
protection against unlawful action by petitioner, the Regional
Director of the Fish and Wildlife Service of the Department of the
Interior. The interests of respondents, the Indians of Karluk
Reservation, and the efforts of the Department of the Interior to
administer its responsibilities fairly to fishermen and Indians are
involved. [
Footnote 58]
These are questions of public policy which equity is alert to
protect. [
Footnote 59] This
Court is far removed from the locality, and cannot have the
understanding of the practical difficulties involved in the
conflicts of interest that is possessed by the District Court.
Therefore, we think it appropriate for us to refrain from now
entering a final order disposing definitively of the
controversy.
Page 337 U. S. 127
With our conclusion on the law as to the establishment of the
reservation and the invalidity of the regulation before them, the
Department and the parties should have a reasonable time, subject
to the action of the District Court on the new proposals, to adjust
their affairs so as to comply with our determinations.
We therefore vacate the decrees of the District Court and the
Court of Appeals and remand this proceeding to the District Court
with directions to allow thirty days from the issuance of our
mandate for the Secretary of the Interior to give consideration to
the effect of our decision. Unless steps are taken in this
proceeding, the District Court, on the expiration of thirty days,
shall enter a decree enjoining the defendant Hynes and all acting
in concert with him substantially as ordered in the permanent
injunction entered November 6, 1946. [
Footnote 60] If timely steps are taken, the District
Court will, of course, be free to enter such orders as it may deem
proper and not inconsistent with the present decision. Pending the
entry of further orders by the District Court, the preliminary
injunction entered July 18, 1946, shall apply to protect the rights
of the respondents.
It is so ordered.
[
Footnote 1]
8 Fed.Reg. 8557:
"
ALASKA"
"
MODIFICATION OF EXECUTIVE ORDER DESIGNATING"
"
LANDS AS INDIAN RESERVATION"
"By virtue of the authority contained in the act of June 25,
1910, c. 421, 36 Stat. 847, as amended by the act of August 24,
1912, c. 369, 37 Stat. 497 (U.S.C. title 43, secs. 141-143), and
the act of May 1, 1936, c. 254, 49 Stat. 1250 (U.S.C. title 48,
sec. 358a) and pursuant to Executive Order No. 9146 of April 24,
1942:
It is ordered, As follows:"
"1. Executive Order No. 8344 of February 10, 1940, withdrawing
Kodiak and other islands, Alaska, for classification and in aid of
legislation, is hereby modified to the extent necessary to permit
the designation as an Indian reservation of the following-described
area:"
"Beginning at the end of a point of land on the shore of
Shelikof Strait on Kodiak Island, said point being about one and
one-quarter miles east of Rocky Point and in approximate latitude
57� 39' 40' N., longitude 154� 12' 20' W.;"
"Thence south approximately eight miles to latitude 57� 32' 30'
N.;"
"Thence west approximately twelve and one-half miles to the
confluence of the north shore of Sturgeon River with the east shore
of Shelikof Strait;"
"Thence northeasterly following the easterly shore of Shelikof
Strait to the place of beginning, containing approximately 35,200
acres."
"2. The area described above and the waters adjacent thereto
extending 3,000 feet from the shore line at mean low tide, are
hereby designated as an Indian reservation for the use and benefit
of the native inhabitants of the native village of Karluk, Alaska,
and vicinity:
Provided, That such designation shall be
effective only upon its approval by the vote of the Indian and
Eskimo residents of the area involved in accordance with section 2
of the act of May 1, 1936,
supra: And provided further,
That nothing herein contained shall affect any valid existing claim
or right under the laws of the United States within the purview of
that Section."
[
Footnote 2]
The first section reads as follows, 36 Stat. 847:
"That the President may at any time in his discretion,
temporarily withdraw from settlement, location, sale, or entry any
of the public lands of the United States, including the District of
Alaska, and reserve the same for water power sites, irrigation,
classification of lands, or other public purposes to be specified
in the orders of withdrawals, and such withdrawals or reservations
shall remain in force until revoked by him or by an Act of
Congress."
There is a second section designed to keep the reservations free
for mineral exploration and utilization.
[
Footnote 3]
There is an amendment, immaterial here,
see 44 Stat.
752.
[
Footnote 4]
Under Reorganization Plan No. II, the authority of the
Department of Commerce over the administration of the White Act was
transferred to the Department of the Interior, effective July 1,
1939. 53 Stat. 1431, § 4(e).
[
Footnote 5]
The river itself and all waters within 100 yards of its mouth
are closed to all commercial salmon fishing. 50 C.F.R., 1946 Supp.,
§ 208.23(d).
[
Footnote 6]
Bancroft, History of Alaska, 1730-1885, p. 228, n. 12.
[
Footnote 7]
Id., p. 743.
[
Footnote 8]
H.Mis.Doc.No.211, 51st Cong., 1st Sess., Report of the Salmon
and Salmon Rivers of Alaska, p. 20:
"The number of salmon actually caught in Karluk Bay, near the
river mouth and in the lower portion of the river, is so large as
to make a true statement concerning them seem incredible. In 1888,
the canneries put up over 200,000 cases, averaging about 13 red
salmon to the case, or more than 2,500,000 fish. In 1889, the
number of fish put up was still larger, reaching probably 250,000
cases, containing more than 3,000,000 salmon. As the number of fish
arriving at Karluk stay for a long period of years has been known
to be far greater than in any of the other bays of southern Alaska,
it is probable that most of these salmon were present at Karluk for
the purpose of ascending the river to spawn. Now the number of
spawning fish seen in the river, the lakes, and their connecting
rivers was comparatively very small, indeed out of all proportion
to the number taken on the beach."
[
Footnote 9]
The highest reported by the Statistical Review of the Alaska
Salmon Fisheries, June 13, 1930, Bureau of Fisheries Bulletin, vol.
XLVI, p. 666, was nearly 4,000,000 fish in 1901, and the lowest
about 400,000 in 1927. The report said:
"Many investigations of the Karluk red salmon fishery have been
made, much has been written about it, commercial interests have
battled for exclusive control and domination of it, and dire
prophecies have been heard concerning its ultimate destruction.
Because of these things, Karluk has undoubtedly been given more
close attention than any other fishery in Alaska. . . ."
[
Footnote 10]
Unchallenged figures by plaintiffs show large catches. A table
from the largest operator is printed for illustration.
The total catch of fish taken within the area now included in
the Karluk Indian Reservation during the years specified . . .:
Coho Chum Pink King Red Total
1941 1058 632 9893 134 59958 71675
1942 397 14556 225323 57 58042 298375
1943 83 825 2380 161 60273 63722
1944 33 5803 219300 69 63535 288740
1945 4 150 554 84 50907 51699
1946 137 8660 1024596 44 25381 1058818
[
Footnote 11]
"Minutes of Meeting:"
"
* * * *"
"A meeting was called by the president and the same evening with
Mr. Peters, Mr. Watrous of Juneau, and Mr. Leraas present.
Following discussion and action: "
"1. The problems of setting aside an area for beach seining were
discussed. It was agreed that 1000 yd. from the mouth of the river
up the spit and from the mouth of the river to Julia Fort point
approximately 500 yd. on the Improvement side, placing markers or
buoys 500 yd. out from mean low water mark be the restricted area
for Karluk beach seining only. Purse seining could be done outside
this restricted area this year or until further action by the
council."
[
Footnote 12]
See Terrace v. Thompson, 263 U.
S. 197,
263 U. S. 214;
Petroleum Exploration v. Public Service Commission,
304 U. S. 209,
304 U. S.
217-219.
[
Footnote 13]
Watson v. Buck, 313 U. S. 387;
Ex parte Sawyer, 124 U. S. 200.
[
Footnote 14]
Parker v. Brown, 317 U. S. 341;
Packard v. Banton, 264 U. S. 140;
Truax v. Raich, 239 U. S. 33;
Philadelphia Co. v. Stimson, 223 U.
S. 605,
223 U. S. 620,
Second.
Cf. Watson v. Buck, 313 U.
S. 387,
313 U. S. 400;
Spielman Motor Sales Co. v. Dodge, 295 U. S.
89;
Stainback v. Mo Hock Ke Lok Po,
336 U. S. 368.
[
Footnote 15]
43 Stat. 466, 48 U.S.C. § 226.
[
Footnote 16]
Parker v. Brown, supra, 317 U. S. 349.
Seizure of a fisherman's boat is a drastic sanction.
See
Hearings before the Subcommittee on Alaskan fisheries of the
Committee on Merchant Marine and Fisheries, 76th Cong., 1st Sess.,
pp. 45-47.
[
Footnote 17]
67 F. Supp.
43; 165 F.2d 323.
[
Footnote 18]
Thompson v. Consolidated Gas Utilities Co.,
300 U. S. 55,
300 U. S. 69;
Pacific States Box & Basket Co. v. White, 296 U.
S. 176,
296 U. S. 185;
Wampler v. Lecompte, 282 U. S. 172,
282 U. S. 175;
Martin v. Mott,
12 Wheat. 19,
25 U. S. 32.
[
Footnote 19]
Executive Order 9146, 1 C.F.R., Cum.Supp., p. 1149:
"By virtue of the authority vested in me by the act of June 25,
1910, c. 421, 36 Stat. 847, and as President of the United States,
I hereby authorize the Secretary of the Interior to sign all orders
withdrawing or reserving public lands of the United States, and all
orders revoking or modifying such orders: . . ."
Executive Order 8344, 1 C.F.R., 1940 Supp., p. 101, referred to
in Public Land Order 128, temporarily withdrew Kodiak Island from
settlement, location, sale or entry for classification.
[
Footnote 20]
So far as material, that act is set out in
note 2 supra.
[
Footnote 21]
It is unnecessary to appraise the effect of such restoration.
Tribal ownership may vary from an unrecognized Indian title,
see Northwestern Bands of Shoshone Indians v. United
States, 324 U. S. 335,
324 U. S. 338,
324 U. S. 340,
to land so set apart to an Indian tribe by definitive treaty as to
require compensation to the tribe if the United States thereafter
appropriated lands within the area.
See Shoshone Tribe v.
United States, 299 U. S. 476,
299 U. S. 486;
44 Stat. 1349. The effect of restoration under the Wheeler-Howard
Act will depend upon the provisions of law under which the separate
reservations exist.
Compare Cohen, Handbook of Federal
Indian Law, c. 5, § 5A, p. 94.
[
Footnote 22]
Possible claims under the Indian Claims Commission Act of August
13, 1946, are not covered by this statement.
See 60 Stat.
1049, 1050, § 2(5). It refers to claims
"based upon fair and honorable dealings that are not recognized
by any existing rule of law or equity. No claim accruing after the
date of the approval of this Act shall be considered by the
Commission."
[
Footnote 23]
United States v. Shoshone Tribe, 304 U.
S. 111,
304 U. S. 116;
Shoshone Tribe v. United States, 299 U.
S. 476,
299 U. S.
485-486,
299 U. S. 492,
First; United States v. Creek Nation, 295 U.
S. 103,
295 U. S. 109;
United States v. Holt State Bank, 270 U. S.
49,
270 U. S. 58;
Confederate Bands of Ute Indians v. United States,
330 U. S. 169,
330 U. S. 176,
et seq.; Arenas v. United States, 322 U.
S. 419,
opinions on remand, United States v.
Arenas, 158 F.2d 730;
Arenas v. United
States, 60 F. Supp.
411.
[
Footnote 24]
For example, in the
Arenas case,
322 U.
S. 419, the statute read:
"SEC. 5. That, upon the approval of the allotments provided for
in the preceding section by the Secretary of the Interior, he shall
cause patents to issue therefor in the name of the allottees, which
shall be of the legal effect and declare that the United States
does and will hold the land thus allotted for the period of
twenty-five years, in trust for the sole use and benefit of the
Indian to whom such allotment shall have been made, or, in case of
his decease, of his heirs according to the laws of the California,
and that, at the expiration of said period, the United States will
convey the same by patent to the said Indian, or his heirs as
aforesaid, in fee, discharged of said trust and free of all charge
or encumbrance whatsoever. . . ."
26 Stat. 712, 713. 322 U.S. at
322 U. S.
422.
[
Footnote 25]
One gets a sense of its value from the catch of a single
operator.
Note 10
supra.
[
Footnote 26]
We understand, although it is not a fact of weight, that the
number includes both men and women over twenty-one. 49 Stat. 1251;
Constitution and By-Laws of the Native Village of Karluk, Alaska,
Official Publication, United States Department of the Interior,
Office of Indian Affairs, GPO (1939); Constitution, Art. V, § 1;
Certificate of Adoption, p. 4; 48 Stat. 986-987, §§ 13 and 16.
The population of Karluk around 1880 was 302. Report on the
Population, Industries, and Resources of Alaska by Ivan Petroff, p.
37, H.R.Misc.Doc. 42, p. 8, 47th Cong., 2d Sess. In 1920, it was
99; in 1929, it was 192; in 1939, it was 189. 16th Census of the
United States (1940), Population, vol. 1, Number of Inhabitants, p.
1193.
[
Footnote 27]
In the Act of May 14, 1898, 30 Stat. 409, which extended the
homestead land laws of the United States to Alaska, it was
specifically provided that
"no entry shall be allowed extending more than eighty rods along
the shore of any navigable water, and along such shore a space of
at least eighty rods shall be reserved from entry between all such
claims, and that nothing herein contained shall be so construed as
to authorize entries to be made, or title to be acquired, to the
shore of any navigable waters within said District. . . ."
[
Footnote 28]
Compare the statute creating the Metlakahtla
Reservation, 26 Stat. 1101:
"SEC. 15. That, until otherwise provided by law the body of
lands known as Annette Islands, situated in Alexander Archipelago
in Southeastern Alaska, on the north side of Dixon's entrance, be,
and the same is hereby, set apart as a reservation for the use of
the Metlakahtla Indians, and those people known as Metlakahtlans
who have recently emigrated from British Columbia to Alaska, and
such other Alaskan natives an may join them, to be held and used by
them in common, under such rules and regulations, and subject to
such restrictions, as may [be] prescribed from time to time by the
Secretary of the Interior."
See 34 Stat. 1411 and 48 Stat. 667.
See a discussion of the limited power of the President
to create even temporary reservations for Indian immigrants. 18
Op.Atty.Gen. 557.
We have carefully considered the opinion in
Miller v. United
States, 159 F.2d 997, where it is held, page 1001, that the
Indian right of occupancy of Alaska lands is compensable. With all
respect, to the learned judges, familiar with Alaska land laws, we
cannot express agreement with that conclusion. The opinion upon
which they chiefly rely,
United States v. Alcea Band of
Tillamooks, 329 U. S. 40, is
not an authority for this position. That opinion does not hold the
Indian right of occupancy compensable without specific legislative
direction to make payment.
See also United States v. 10.95
Acres of Land in Juneau, 75 F. Supp.
841.
[
Footnote 29]
In Hearings before Senate Committee on Indian Affairs, 73d
Cong., 2d Sess., on S. 3645, the bill which became the Act of June
18, 1934, p. 247, the following discussion took place as to the
meaning of these words:
"Senator O'MAHONEY. But what you are saying here is that the
constitution shall vest in some person -- what? The following
rights and powers. And then you undertake to enumerate those
powers. The first one that you enumerate is the right to employ
counsel. The second one is the right to prevent individuals from
selling and disposing of their property. Then you come to a third
one, and it is to represent the tribe, and that seems to me to be
hanging up in the air."
"THE CHAIRMAN. The second one you stated incorrectly."
"Senator O'MAHONEY. Have I?"
"THE CHAIRMAN. It is not to prevent them from selling individual
lands; it is tribal lands."
"Senator O'MAHONEY. Yes, that is right: tribal lands."
[
Footnote 30]
H.R.Rep. No.2244 on H.R. 9866, 74th Cong., 2d Sess.; Sen.Rep.
No.1748 on S. 4420, 74th Cong., 2d Sess.
[
Footnote 31]
"An even more important reason for the designation of
reservations in Alaska is that, by doing so, the United States
Government will have fulfilled in part its moral and legal
obligations in the protection of the economic rights of the Alaska
natives. In at least two acts of Congress, this obligation is
specifically acknowledged. The act approved on May 17, 1884, 23
Stat. 26, contains the following language:"
"
Provided, That the Indians or other persons in said
district shall not be disturbed in the possession of any lands
actually in their use or occupation or now claimed by them but the
terms under which such persons may acquire title to such lands is
reserved for future legislation by Congress."
"The act of March 3, 1891 (26 Stat. 1100) contains similar
language:"
" That none of the provisions of the last two preceding sections
of this act shall be so construed as to warrant the sale of any
lands belonging to the United States which shall contain coal or
the precious metals, or any townsite, or which shall be occupied by
the United States for public purposes, or which shall be reserved
for such purposes, or to which the natives of Alaska have prior
rights by virtue of actual occupation."
"Lands which should have been, by virtue of these acts,
segregated for natives of Alaska have not been so segregated. The
provisions of section 2 of H.R. 9866 will aid the Federal
Government in rectifying this condition, and in protecting the
interests of the natives in the future. Section 2 of the bill,
which gives to the Secretary of the Interior power to designate
certain lands as Indian reservations, is therefore a logical
sequence of the legislative history regarding Indian lands in
Alaska and provides a method by which the financial aid provisions
of the Indian Reorganization Act may be extended to those Indians
and Eskimos of Alaska who occupy established villages."
[
Footnote 32]
This appears from the following excerpt from the Secretary's
letter:
"Indian tribes do not exist in Alaska in the same sense as in
continental United States. Section 19 of the Indian Reorganization
Act defines the word 'tribe' as referring to 'Any Indian tribe,
organized band, pueblo, or the Indians residing on one
reservation.' With a few exceptions, the lands occupied by natives
of Alaska have not been designated as reservations. In order,
therefore, to define an Alaskan tribe, it is necessary to identify
it with the land it occupies and in terms of the language of the
act, 'reservation.' In addition, if native communities of Alaska
are to set up systems of local government, it will be necessary to
stipulate the geographical limits of their jurisdictions.
Reservations set up by the Secretary of the Interior will
accomplish this."
This, with the proviso of the first section, was deemed
sufficient to enable the lands to be identified and to permit the
Wheeler-Howard benefits to be available to the Alaska natives.
[
Footnote 33]
36 Stat. 847, § 2.
[
Footnote 34]
Treaty with Russia, proclaimed June 20, 1867, 15 Stat. 539,
541-542:
"Art. II. In the cession of territory and dominion made by the
preceding article are included the right of property in all public
lots and squares, vacant lands, and all public buildings,
fortifications, barracks, and other edifices which are not private
individual property. . . ."
"Art. III. The inhabitants of the ceded territory, according to
their choice, reserving their natural allegiance, may return to
Russia within three years; but if they should prefer to remain in
the ceded territory, they, with the exception of uncivilized native
tribes, shall be admitted to the enjoyment of all the rights,
advantages, and immunities of citizens of the United States, and
shall be maintained and protected in the free enjoyment of their
liberty, property, and religion. The uncivilized tribes will be
subject to such laws and regulations as the United States may, from
time to time, adopt in regard to aboriginal tribes of that
country."
[
Footnote 35]
Alaska Pacific Fisheries v. United States, 248 U. S.
78,
248 U. S. 87;
Shively v. Bowlby, 152 U. S. 1,
152 U. S. 47, and
cases cited;
Mann v. Tacoma Land Co., 153 U.
S. 273,
153 U. S. 283.
See also Tulee v. Washington, 315 U.
S. 681. In
Knight v. United Land Association,
142 U. S. 161 at
142 U. S. 183,
the Court said:
"Upon the acquisition of the territory from Mexico, the United
States acquired the title to tidelands equally with the title to
upland, but, with respect to the former, they held it only in trust
for the future states that might be erected out of such
territory."
In
Alaska Pacific Fisheries v. United States, supra, at
248 U. S. 87,
the statement is made
"That Congress had power to make the reservation inclusive of
the adjacent waters and submerged land as well as the upland needs
little more than statement. All were the property of the United
States, and within a district where the entire dominion and
sovereignty rested in the United States and over which Congress had
complete legislative authority."
Compare also Borax Consolidated, Ltd. v. Los Angeles,
296 U. S. 10,
296 U. S.
15.
[
Footnote 36]
23 Stat. 27:
"SEC. 12. That the Secretary of the Interior shall select two of
the officers to be appointed under this act, who, together with the
governor, shall constitute a commission to examine into and report
upon the condition of the Indians residing in said Territory, what
lands, if any, should be reserved for their use, what provision
shall be made for their education what rights by occupation of
settlers should be recognized, and all other facts that may be
necessary to enable Congress to determine what limitations or
conditions should be imposed when the land laws of the United
States shall be extended to said district, and to defray the
expenses of said commission the sum of two thousand dollars is
hereby appropriated out of any moneys in the Treasury not otherwise
appropriated."
[
Footnote 37]
"The General Land Laws of the United States should be extended
over the Territory as early as possible. The natives claim only the
land on which their houses are built and some garden patches near
their villages; they ask or expect nothing more. A deed for their
lots in severalty would be a very highly prized document by them.
The fisheries occupied by them before the advent of the Whites
should also be secured to them against encroachment. They ask only
the same rights and protection given the white man."
[
Footnote 38]
"Now therefore I, Woodrow Wilson, President of the United States
of America, by virtue of the power in me vested by the laws of the
United States, do hereby make known and proclaim that the waters
within three thousand feet from the shore lines at mean low tide of
Annette Island, Ham Island, Walker Island, Lewis Island, Spire
Island, Hemlock Island, and adjacent rocks and islets, located
within the area segregated by the broken line upon the diagram
hereto attached and made a part of this proclamation; also the bays
of said islands, rocks, and islets, are hereby reserved for the
benefit of the Metlakahtlans and such other Alaskan natives as have
joined them or may join them in residence on these islands, to be
used by them under the general fisheries laws and regulations of
the United States as administered by the Secretary of
Commerce."
"Warning is hereby expressly given to all unauthorized persons
not to fish in or use any of the waters herein described or
mentioned."
A presidential proclamation had theretofore, 1892, set apart
Afognak Island, Alaska, and its adjacent bays and territorial
waters as a public reservation for fish culture without specific
authority to reserve waters. 27 Stat. 1052.
[
Footnote 39]
Borax Consolidated, Ltd. v. Los Angeles, 296 U. S.
10,
296 U. S. 17,
296 U. S. 2.
This case turned on the power of the United States to convey
tideland seaward of the line of mean high tide after California's
admission to the Union. Public lands there could not include
tidelands as they passed to California when she became a state. The
cases cited in the
Borax case to support the statement as
to public lands are cases that have nothing to do with tidelands or
coastal waters, but depend upon whether the lands in question were
subject to disposal as property of the United States,
i.e., public lands.
See Newhall v. Sanger,
92 U. S. 761,
92 U. S. 763;
Barker v. Harvey, 181 U. S. 481,
181 U. S. 490;
Union Pacific R. Co. v. Harris, 215 U.
S. 386,
215 U. S.
388.
[
Footnote 40]
Act of May 14, 1898, c. 299, 30 Stat. 409, 48 U.S.C. §§ 371
(homestead laws); Act of March 3, 1899, c. 424, 30 Stat. 1098, 48
U.S.C. § 351 (public land surveys); Act of March 2, 1907, c. 2537,
34 Stat. 1232, 48 U.S.C. § 365 (land districts).
[
Footnote 41]
[
Footnote 42]
Cf. United States v. Jefferson Electric Mfg. Co.,
291 U. S. 386,
291 U. S.
397.
[
Footnote 43]
Alaska Fisheries General Regulations, 50 CFR, c. II, p.
2333.
[
Footnote 44]
Id., p. 2355; 3 Fed.Reg. 393.
[
Footnote 45]
Id., p. 2359.
[
Footnote 46]
11 Fed.Reg. 3105, 9528.
[
Footnote 47]
Executive Order of Feb. 17, 1922, creating the Alaska Peninsula
Fisheries Reservation; Executive Order No. 3752 of Nov. 3, 1922,
creating the Southwestern Alaska Fisheries Reservation. Regulations
issued under these two Executive Orders are printed in the
Fisheries Service Bulletin of the Bureau of Fisheries, Dept. of
Commerce, No. 92, Jan. 2, 1923.
[
Footnote 48]
65 Cong.Rec. 5974; 65 Cong.Rec. 9520-21; 65 Cong.Rec. 9681
et seq.; H.R.Rep. No.357, 68th Cong., 1st Sess., p. 2;
Sen.Rep. No. 449, 68th Cong., 1st Sess., p. 5; House Hearings,
Committee on Merchant Marine & Fisheries, Fisheries of Alaska
(1924) H.R. 2714, January 31-February 8, 1924, p. 21,
et
seq. Note that this is a different bill than H.R. 8143, which
became the White Act, but the subject was the same.
See
H.R.Rep. No.357,
supra, p. 1.
Dow v. Ickes, 74
App.D.C. 319, 123 F.2d 909.
[
Footnote 49]
43 Stat. 466:
"SEC. 6. Any person, company, corporation, or association
violating any provision of this Act or of said Act of Congress
approved June 26, 1906, or of any regulation made under the
authority of either, shall, upon conviction thereof, be punished by
a fine not exceeding $5,000 or imprisonment for a term of not more
than ninety days in the county jail, or by both such fine and
imprisonment, and in case of the violation of section 3 of said Act
approved June 26, 1906, as amended, there may be imposed a further
fine not exceeding $250 for each day the obstruction therein
declared unlawful is maintained. Every boat, seine, net, trap, and
every other gear and appliance used or employed in violation of
this Act or in violation of said Act approved June 26, 1906, and
all fish taken therein or therewith, shall be forfeited to the
United States, and shall be seized and sold under the direction of
the court in which the forfeiture is declared at public auction,
and the proceeds thereof, after deducting the expenses of sale,
shall be disposed of as other fines and forfeitures under the laws
relating to Alaska. Proceedings for such forfeiture shall be
in
rem under the rules of admiralty."
"That, for the purposes of this Act, all employees of the Bureau
of Fisheries, designated by the Commissioner of Fisheries, shall be
considered as peace officers and shall have the same powers of
arrest of persons and seizure of property for any violation of this
Act as have United States marshals or their deputies."
[
Footnote 50]
43 Stat. 467:
"SEC. 8. Nothing in this Act contained, nor any powers herein
conferred upon the Secretary of Commerce, shall abrogate or curtail
the powers granted the Territorial Legislature of Alaska to impose
taxes or licenses, nor limit or curtail any powers granted the
Territorial Legislature of Alaska by the Act of Congress approved
August 24, 1912, 'To create a legislative assembly in the Territory
of Alaska, to confer legislative power thereon, and for other
purposes.'"
[
Footnote 51]
See § 1 of the White Act, pp.
337 U. S. 92-93,
supra.
[
Footnote 52]
See 27 Stat. 631 relating to representation of Indians
by the United States district attorneys; Cohen, Handbook of Federal
Indian Law, pp. 252-53; Powers of Indian Tribes, Solicitor of the
Interior, Nathan R. Margold, October 25, 1934, M27781 pp. 55-58.
See United States v. Candelaria, 271 U.
S. 432;
United States v. Berrigan, 2 Alaska
442;
United States v. Cadzow, 5 Alaska 125.
[
Footnote 53]
Dow v. Ickes, 74 App.D.C. 319, 123 F.2d 909, 916:
"It prohibits monopoly, but it does not prohibit reasonable
discriminations required by the purpose of conservation and
limitations inherent in the type of fishing to which the
Secretary's judgment must be applied."
[
Footnote 54]
"An Ordinance. Whereas, under Public Land Order 128, of May 22,
1943, creating the Karluk Reservation, the right to fish
commercially in the waters of said reservation is restricted to the
inhabitants of the Native Village of Karluk and vicinity, and;"
"Whereas, nonresidents desire to continue their fishing
operations in the waters of said reservation;"
"Now, Therefore, be it ordained by the Council of the Native
Village of Karluk, a federal corporation chartered under the Act of
June 18, 1934, as amended;"
"Section 1. That it shall be unlawful for any person,
partnership, firm, association or corporation, to fish for, take or
catch any fish, or to operate any fishing vessel, gear or
equipment, within the waters of the Karluk Reservation except under
a permit issued by the Native Village of Karluk, for which the fee
shall be as follows: "
"(A) For residents of the Territory of Alaska $1.00"
"(B) For non-residents of the Territory of Alaska $25.00"
"Provided further, that a person to qualify for a resident
(Class A) permit must have resided in the Territory of Alaska for
three consecutive years prior to the date of their application, or
request, for a permit."
"Section 2. The possession of fish upon any vessel within said
waters without a permit shall constitute
prima facie
evidence of a violation of this ordinance."
"Section 3. Any violation of this ordinance shall be punished by
a fine of not exceeding Five Hundred Dollars ($500)."
"
* * * *"
"Approved this 31st day of May, 1945."
The 1946 ordinance made the fee $2.00 for residents of Alaska
and $40.00 for nonresidents.
Karluk had received its corporate charter, constitution and
bylaws August 23, 1939. Official publications, Office of Indian
Affairs, Department of the Interior,
see §§ 16 and 17, 48
Stat. 987, 988.
[
Footnote 55]
Section 5 of the Corporate Charter of the Native Village of
Karluk provides that,
"In using its powers, the corporation must not do the following
things: . . ."
"Make leases, permits or contracts covering any lands or waters
set aside as a reserve for the Village without the approval of the
Secretary of the Interior or his authorized representative."
[
Footnote 56]
"
COMMERCIAL FISHING PERMIT"
"Karluk Indian Reservation, Karluk, Alaska, June 30, 1946."
"Pursuant to an Ordinance passed by the Council of the Native
Village of Karluk, Alaska, dated May 31, 1946, permission is hereby
given by the Native Village of Karluk to Ray Harmon of Kodiak,
Alaska, to enter the waters and land of the Karluk Reservation for
the purpose of engaging in commercial fishing for salmon, S.J. F
& P Co., during the period:"
"June 1946 to September 1946."
"This permit is issued subject to the conditions printed on the
back hereof."
"EWAN M. NAUMOFF"
"ISSUING OFFICER"
"PRESIDENT KARLUK"
"TITLE"
"Approved:"
"H. C. BINGHAM"
"APPROVING OFFICER"
"ASST. TEACHER A.N.S."
"TITLE"
"I accept:"
"RAY HARMON"
"PERMITTEE"
"Boat No. or Name: Caroline"
"Fishing for: San Juan UGANIK BAY, ALASKA"
"(CANNERY) NAME ADDRESS"
"
CONDITIONS"
"This permit is valid only if approved by the General
Superintendent of the Indian Service in Alaska or his duly
authorized representative, and is revocable in the discretion of
the issuing officer. It is not transferable, and must be carried on
the person of the permittee when engaged in fishing authorized
hereunder, and must be exhibited by any person requesting to see
it. This permit is issued and accepted by the permittee on the
express condition that the permittee will comply with all of the
provisions of law and regulations governing fishing on the Karluk
Indian Reservation, Alaska. The permittee is warned not to
interfere with the fishing activities of the Indians of the Karluk
Indian Reservation nor use, disturb, or destroy any property
belonging to said Indians."
[
Footnote 57]
Article VI of the Constitution of the Native Village of Karluk
provides that
"Changes in this Constitution and Bylaws may be made if the
changes are approved by the Secretary of the Interior and by a
majority vote of the Village members voting in an election called
by the Secretary of the Interior at which at least 30 percent of
the voting membership take part."
[
Footnote 58]
For a discussion of the difficulties of the preparation of
regulations,
compare Addison v. Holly Hill Fruit Products,
Co., 322 U. S. 607.
See also the statements of the Commissioner of Indian
Affairs in Hearings before the House Committee on Indian Affairs,
73d Cong., 2d Sess., on H.R. 7902 (Wheeler-Howard act).
[
Footnote 59]
Virginian R. Co. v. System Federation, 300 U.
S. 515,
300 U. S. 552;
City of Harrisonville v. W. S. Dickey Clay Co.,
289 U. S. 334,
289 U. S. 338,
note 2.
[
Footnote 60]
Compare Atlantic Coast Line R. Co. v. Florida,
295 U. S. 301,
295 U. S.
314-315;
Burford v. Sun Oil Co., 319 U.
S. 315,
319 U. S. 333;
Addison v. Holly Hill Fruit Products Co., 322 U.
S. 607,
322 U. S.
620.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK and MR.
JUSTICE MURPHY agree, dissenting in part.
I
Jurisdictional questions aside, I am in full agreement with the
Court's conclusion that Public Land Order 128, 8 F.R. 8557,
[
Footnote 2/1] is valid, and was
effective, according to its terms, to include in the reservation
for the Karluk Indians
Page 337 U. S. 128
the tidelands and coastal waters therein described. This action
was taken pursuant to the statutory authorizations recited in the
order, and particularly the Act of May 1, 1936, 49 Stat. 1250, 48
U.S.C. § 358a. When approved by the Indians in accordance with the
proviso of the latter Act, Order 128 withdrew the area covered from
any general or public right of access for fishing or other purposes
inconsistent with those of the reservation and set aside that area
for the exclusive benefit of the Indian occupants and inhabitants.
Cf. Alaska Pacific Fisheries v. United States,
248 U. S. 78. The
necessary effect was to forbid others to enter the area for
purposes inconsistent with the reservation's objects, thus making
persons so entering trespassers and subject to such remedies as the
law may afford to prevent or redress their wrongful entry.
By his 1946 amendments to the Alaska Fisheries General
Regulations, 50 C.F.R.1946 Supp., § 208.23(r), the Secretary of the
Interior reinforced his prior action in setting aside the Karluk
Reservation, prohibiting fishing within the coastal waters included
in Public Land Order 128, except "by natives in possession of said
reservation" and "by other persons under authority granted by said
natives . . . by or pursuant to ordinance of the Native Village of
Karluk" approved by the Secretary or his duly authorized
representative. [
Footnote 2/2] This
action was taken pursuant to 34 Stat. 264, 478, as amended by the
White Act of June 6, 1924, 43 Stat. 464, as amended June 18, 1926,
44 Stat. 752.
That Act, in the interest of "protecting and conserving the
fisheries of the United States in all waters of Alaska," conferred
upon the Secretary of Commerce (now Interior), broad powers to "set
apart and reserve fishing areas
Page 337 U. S. 129
in any of the waters of Alaska over which the United States has
jurisdiction" and within such areas to "establish closed seasons
during which fishing may be limited or prohibited as he may
prescribe."
See Dow v. Ickes, 74 App.D.C. 319, 123 F.2d
909. Effective penal provisions by way of criminal sanctions and
for seizure and forfeiture of offending boats, gear, and appliances
were enacted to prevent or redress violation of the regulations
made pursuant to the statute's authorization. [
Footnote 2/3]
The promulgation of Amended Regulations § 208.23(r), pursuant to
the White Act's provisions, reinforced the effect of Public Land
Order 128 in withdrawing the area covered by the latter from public
or common right of entry for fishing and other purposes. But it had
also the further effect of notifying the public that trespass upon
the reversed area by persons not entitled to enter and use it would
be met with the White Act sanctions [
Footnote 2/4] for enforcement of the order and the
amended regulations.
Although holding Public Land Order 128 valid and effective to
establish the reservation for the Indians' exclusive benefit, the
Court finds Amended Regulations § 208.23(r) "void as a whole." The
chief consequence held to follow is that the White Act sanctions
cannot be applied to enforce the regulations or to prevent or
redress trespass upon the reservation by others than the Indians in
possession or their licensees.
With this conclusion I cannot agree. The amended regulations'
invalidity is said to follow solely because of the exception
permitting natives and their licensees to fish in reservation
waters. This is said to violate the White Act proviso, which
forbids any "exclusive or several
Page 337 U. S. 130
right of fishery" and denial to any citizen of the right to fish
in any waters where fishing is permitted by the Secretary's
regulations. In other words, because the Secretary allows the
Indians to fish in the reservation waters, he must allow all others
to do so on equal terms -- otherwise his regulations become totally
void and the White Act sanctions unavailable for protection of the
reservations and the Indians' rights.
This view, it seems to me, rests upon two fallacies. One is that
the two statutes, of 1936 and 1924, are in irreconcilable
collision, and the Secretary cannot exercise the powers given to
him by the 1936 Act and by the White Act consistently and
simultaneously with reference to the same waters. The other fallacy
is a corollary, namely, that the White Act proviso applies wherever
the White Act prohibitions and sanctions may be made applicable,
even though the area is a valid Indian reservation.
I do not think the two statutes are in such inescapable
inconsistency as forbids their simultaneous and harmonious
application in setting aside and protecting reservations for the
exclusive use and benefit of the native Indian population. Indeed,
their legislative history and purposes demonstrate that they were
intended to serve common objects in the conservation and protection
of Alaskan fisheries.
The White Act was adopted in 1924. Its primary object was to
preserve the fisheries of Alaska from the destructive private
exploitation then taking place. That evil did not arise from any
previous, existing, or anticipated policy of setting aside
reservations for the exclusive benefit for the natives. It arose
exclusively from quite the contrary policy of permitting widespread
commercial exploitation by specially favored groups, not of Indians
but of others who sought and secured monopolistic privileges and
favors in fishing. There were therefore twin evils at
Page 337 U. S. 131
which the White Act struck. One was the rapid and virtually
unrestrained depletion and destruction of the fisheries; the other,
the expanding creation of commercial monopolies fostered by
preexisting policy in regulating the industry. 65 Cong.Rec.
9520-9521;
see also 65 Cong.Rec. 9680-9682; H.R.Rep. No.
357, 68th Cong., 1st Sess. 2; Sen.Rep. No. 449, 68th Cong., 1st
Sess. 5; Hearings before Committee on Merchant Marine and Fisheries
on H.R. 2714, 68th Cong., 1st Sess.
The White Act, accordingly, was not merely and exclusively an
anti-monopoly statute. It was both a conservation measure and one
to outlaw private, commercial monopoly. The conservation features
were contained in the basic general provisions giving the Secretary
his broad powers of control over fishing. The more specific
anti-monopoly features were included in the proviso. The latter
were important. But they did not override or minimize the more
general provisions, apart from the proviso, giving the Secretary
power to regulate the industry in the interest of "protecting and
conserving the fisheries of the United States in all waters of
Alaska." The proviso merely limited the manner in which his power
was to be exercised in the situations to which the proviso was
applicable.
So the questions arise whether the proviso was intended to have
any effect in waters validly set aside by Congress, executive
order, or the Secretary as reservations for the exclusive benefit
of the native population and, correlatively, whether the policy of
the proviso was meant to forbid the application of other provisions
of the White Act, including its prohibitions and sanctions, in the
protection and conservation of such reservations. In other words,
was the general policy of the White Act in conflict with the policy
existing at its enactment concerning Alaskan Indian reservations or
later under the 1936 Act,
Page 337 U. S. 132
so as to require that the two policies or statutes be kept
entirely separate and distinct in their application and
administration and to forbid them to be applied conjointly in
executing their common conserving and protecting objects.
Certainly the White Act proviso had no purpose to throw open
validly created Indian reservations to fishing by all comers. Its
aim was not to destroy such reservations or to open them to
general, common rights of fishing. In view of the legislative
history cited above, which is consistently supported by subsequent
administrative construction, [
Footnote
2/5] the proviso cannot be construed as expressing any policy
hostile to creating such reservations with exclusive rights of
fishing for the native population and protecting them against
wrongful invasion. On the contrary, the statute, including the
proviso, was strongly supported by the delegates in Congress from
Alaska and others representing the native interests [
Footnote 2/6] as against those of
commercial exploitation toward which the Act was aimed. There were
numerous Indian reservations in existence at the time of the
legislation,
cf. Alaska Pacific Fisheries v. United States,
supra, affording the natives exclusive fishing rights. But the
extensive legislative history discloses no protest, complaint, or
concern arising on account of them. Indeed, it gives strong reason
for believing that the native interests joined with others in
opposing continuance of the policy of monopolistic commercial
exploitation and in support of the White Act, including the
proviso, as a necessary method of preventing the imminent
destruction of the natives' historic means
Page 337 U. S. 133
of livelihood by that form of exploitation, and not at all by
reason of any evils arising out of exclusive fishing rights granted
to the native population in reservations validly created for its
benefit.
Consequently, far from representing an attitude or purpose of
hostility toward a policy of Indian reservations with exclusive
native rights of fishing, the White Act constituted an effective
step toward conserving the Alaskan fisheries, under the Secretary's
broad regulatory powers, for such purposes as well as for the
prevention of monopoly in open fishing areas where no reservations
existed.
It follows, in my view, that the White Act proviso has, and was
intended to have, no application to validly created Indian
reservations, either to forbid the Secretary to exclude others than
natives from fishing in the reservation waters or to compel him, if
he allows the natives to fish, to permit all other citizens to do
so on equal terms. The proviso had no purpose so to restrict his
powers in relation to reservation areas. It was directed solely
against abuses by other than native interests in waters not
included within areas set aside for the natives' exclusive
benefit.
But it does not follow, in my opinion, that, because the proviso
is inapplicable, the Secretary is forbidden to exercise his
regulatory and enforcing powers under the White Act in protection
of reservations and the natives' exclusive rights in them, or that
he cannot utilize those powers and the White Act sanctions
conjointly with his authority under the 1936 Act to create
reservations and protect them against unlawful invasion. The White
Act proviso aside as inapplicable in purpose and intent to the
specific situation,
i.e., one involving a validly created
reservation, nothing in either statute forbids his doing so. Each
is in terms a conservation measure, having the
Page 337 U. S. 134
common object of preserving and protecting the Alaskan fisheries
from unrestricted exploitation and destruction by commercial
interests. That community of purpose is not affected by the fact
that the one Act secures this protection for the public generally,
the other for the special benefit of the native population. That
difference merely means that two interests require and are given
protection against a third, not that the latter acquires immunity
against protection afforded either or both of the other two.
Accordingly, in my opinion, the White Act proviso being
inapplicable to waters included in a valid Indian reservation, the
two statutes may be applied to serve their basic common objects of
conserving and protecting fisheries in all Alaskan waters,
including those set apart as valid Indian reservations, as against
the private, commercial exploitation and monopoly which the White
Act and the Act of 1936 were intended to prevent. The statutes
should be construed, and Congress, I think, intended them to be
construed, so as to work together harmoniously, not irreconcilably,
to achieve this object.
I therefore cannot regard Amended Regulations § 208.23(r) as
"void as a whole." The regulations are valid, in my judgment, and
enforceable by application of the White Act sanctions except
possibly in one respect. This is the feature by which the Secretary
has delegated to the Village of Karluk the authority by ordinance
to license others than natives of the village to fish on terms
fixed by the ordinance subject to the Secretary's approval.
Conceivably that power might be exercised by the village, through
licensing others than native inhabitants, in a manner which would
violate the spirit of the White Act proviso,
i.e., by
licensing favored commercial interests so as to create essentially
the type or types of monopoly or favoritism the proviso intended to
forbid.
Page 337 U. S. 135
It is one thing, of course, for the Secretary to give the
natives exclusive rights of fishing in the reservation's waters. It
may be entirely another for him to delegate to them the licensing
of others, even retaining the power to approve the licensing
ordinances, as Amended Regulations § 208.23(r) does.
II
Whether or not the authority conferred by the regulations upon
the village to license others is valid is a question, however,
which I think it neither necessary nor appropriate to answer in
this proceeding, for reasons affecting the existence and propriety
of exercising equity jurisdiction in this case, now to be
stated.
I seriously doubt the existence of equity jurisdiction on the
showing made by this record. But, in any event, I do not think it
should be exercised to afford respondents the relief they have
sought. The Secretary of the Interior, whose regulations and
authority are at stake, has not been made a party to the suit. Nor
has the Village of Karluk, which obviously is vitally interested.
Moreover, the allegations concerning threatened enforcement of the
regulations by White Act sanctions seem questionably sufficient to
establish the basis for equitable intervention, in view of
circumstances appearing in the record and asserted in briefs filed
here questioning their sufficiency.
But, if all these factors are put to one side, one other remains
which, in my opinion, precludes granting the equitable relief
respondents seek. Their claim was founded in the complaint, as I
think it had to be, not only upon the alleged invalidity of Amended
Regulations § 208.23(r), but also upon the asserted invalidity of
Public Land Order 128. However, they have not been successful in
the latter attack, for the Court holds that Public
Page 337 U. S. 136
Land Order 128 is valid, and was effective to create the Karluk
Reservation according to that order's terms.
This ruling cuts all valid ground from beneath respondent's
claim to aid from a court of equity. With it, they come not as
persons entitled of right to enter the reservation and fish, but
solely as trespassers having no right of entry, but seeking only to
avert the incidence of possible remedies for threatened wrongful
entry. In effect, the Court's decision is that respondents,
although they have not put forward their case in this light, are
entitled to have it so determined and to have equitable relief
which prevents possible application of White Act sanctions against
them. I cannot agree that persons so situated have standing to
invoke the assistance of a court of equity. Accordingly, I think
the judgment should be reversed, and the cause should be remanded
with instructions to dismiss it.
MR. JUSTICE DOUGLAS joins in Part I of this opinion.
[
Footnote 2/1]
Set forth at
note 1 of the
Court's opinion
[
Footnote 2/2]
See text of the amended regulation as quoted in the
Court's opinion at p.
337 U. S.
92.
[
Footnote 2/3]
Reference is made to the Court's opinion, pp.
337 U. S. 92-93,
for the pertinent language of the statute and, at
note 49 for the Act's penal provisions.
[
Footnote 2/4]
See note 49
majority opinion.
[
Footnote 2/5]
See e.g., Department of Commerce, Laws and Regulations
for Protection of Fisheries of Alaska (Dept. Circular No. 251, 10th
ed.), Dec. 22, 1926; Op. of Solicitor, Dep't of Interior, 56 I.D.
110.
[
Footnote 2/6]
See the legislative debates, reports and hearings cited
in the text
supra.