ORGANIZED VILLAGE OF KAKE ET AL. v. EGAN, GOVERNOR OF ALASKA.
No. 3.
Supreme Court of the United States
Argued December 14, 1961.—Decided March 5, 1962.
369 U.S. 60
Ralph E. Moody, Attorney General of Alaska, and, by special leave of Court pro hac vice, Avrum M. Gross, Assistant Attorney General, argued the cause and filed briefs for appellee.
Oscar H. Davis, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Cox and Roger P. Marquis.
This is a companion case to No. 2, Metlakatla Indian Community v. Egan, ante, p. 45, but calls for separate treatment. Appellants seek the reversal of a decision of the Supreme Court of Alaska, — Alaska —, 362 P. 2d 901, affirming the dismissal of their petitions for injunctions against interference with their operation of fish traps in southeastern Alaska.
The Organized Village of Kake and the Angoon Community Association are corporations chartered under the Wheeler-Howard Act of 1934,
Both communities are entirely dependent upon salmon fishing. In pursuance of a policy to create a sound fishing economy for the two groups, the United States purchased canneries and related properties for Angoon in 1948 and for Kake in 1950. Since these dates appellants have operated fish traps at specified locations in nearby waters, under permits granted by the Army Engineers to erect traps in navigable waters and by the United States Forest Service to anchor them in the Tongass National Forest. In March 1959 the Secretary of the Interior, by regulations issued under authority of the White Act,
The history of this litigation is recited in Metlakatla Indian Community v. Egan, supra. It is sufficient to note here that Alaska in 1959 threatened to enforce against Kake and Angoon her anti-fish-trap conservation law, Alaska Laws 1959, c. 17, as amended by id., c. 95; that the State seized one fish trap at Kake, arrested the President of the Kake Village Council and the foreman of the crew attempting to moor the trap, and filed informations against them; that suit was filed by both Kake and Angoon in the interim United States District Court for Alaska to enjoin this interference with their claimed fishing rights; and that the dismissal of both complaints was affirmed by the Supreme Court of Alaska.
The situation here differs from that of the Metlakatlans in that neither Kake nor Angoon has been provided with a reservation and in that there is no statutory authority under which the Secretary of the Interior might permit either to operate fish traps contrary to state law. Appellants do not rely heavily on the Secretary‘s regulations. Neither the White Act nor the Statehood Act, cited by the Secretary, supports a grant of immunity from state law. The White Act was a conservation and anti-monopoly measure. It authorized the Secretary to limit fishing times, places, and equipment in order to conserve fish but forbade him in so doing to create exclusive rights, even in Indians. Hynes v. Grimes Packing Co., 337 U. S. 86, 122–123. Because the rights claimed are exclusive in the Kakes and Angoons, they cannot have been created pursuant to the White Act, even though that statute now applies, if at all, only to Indians. Moreover, the White Act gives the Secretary power only to limit fishing, not to grant rights. The Statehood Act retained absolute jurisdiction and control of Indian
Both communities operate their traps under permits granted by the Army Corps of Engineers and by the United States Forest Service. But neither of these permits grants a right to be free of state regulation or prohibition. Like a certification by the Interstate Commerce Commission, each is simply acknowledgment that the activity does not violate federal law, and not an exemption from state licensing or police power requirements. Cf. Maurer v. Hamilton, 309 U. S. 598; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177. The Engineers have no objection under the Rivers and Harbors Act,
As in the companion case, certain grounds relied on by the Alaska court are no longer urged by the State. The principal dispute now concerns the meaning of § 4 of the Statehood Act, in which the State disclaimed all right and title to and the United States retained absolute jurisdiction and control over, inter alia, any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.
The United States in its brief amicus curiae contended that the reservation of absolute jurisdiction over Indian property (including fishing rights) ousted the State from any regulation of fishing by Indians in Alaska. Appellants urge that Congress intended to protect the Indians in their freedom to continue fishing as they had done before statehood, so that Alaska cannot interfere with the Indian fishing actually practiced at that time. They argue in addition that in using fish traps they were exercising an aboriginal right to fish that was protected by § 4. The court below concluded that aboriginal rights of Alaskan natives have been extinguished, that appellants have no rights not enjoyed in common with all other Alaskans, and that § 4 protects only exclusive rights given Indians by federal law.
The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the State. Legislative history reveals no such intention in Congress, which was concerned with the protection of certain Indian claims in existence at the time of statehood. See, e. g., Hearings Before House Committee on Interior and Insular Affairs on H. R. 2535 and related bills, 84th Cong., 1st Sess.
Discussion during hearings on the 1955 House bill affords further evidence that claims not based on federal law are included. Section 205 of that bill (like § 6 of the bill as enacted) authorized Alaska to select large tracts of United States land for transfer to state ownership. It was understood that the disclaimer provision left the State free to choose Indian property if it desired, but that such a taking would leave unimpaired the Indians’ right
Fishing rights first appeared in a Senate bill reported in 1951, S. Rep. No. 315, 82d Cong., 1st Sess. 2. Earlier bills had mentioned only land. The fishing-rights provision is unique to Alaska, although the disclaimer is in other respects the same as in earlier statutes. See pp. 67–68, infra. It was included because fishing rights are of vital importance to Indians in Alaska. House Hearings, supra, 125 (1955) (Delegate Bartlett). The existence of aboriginal fishing rights was affirmed by the Interior Department‘s Solicitor in 1942, 57 I. D. 461. There was almost no discussion of fishing rights in Congress. In earlier hearings the Senate Committee was considering a suggestion by Senator Cordon that all Indian property be granted to the State, reserving the right to seek federal compensation, except for property actually occupied by Indians. Asked to describe Indian possessory rights, Governor Heintzleman portrayed a smokehouse beside a stream, 50 miles from the town where they live, visited for fishing purposes perhaps two weeks each year. Senate Hearings, supra, 137 (1954).
Because § 4 of the Statehood Act provides that Indian property (including fishing rights) shall not only be disclaimed by the State as a proprietary matter but also shall be and remain under the absolute jurisdiction and control of the United States, the parties have proceeded on the assumption that if Kake and Angoon are found to possess fishing rights within the meaning of this section the State cannot apply her law. Consequently argument has centered upon whether appellants have any such rights.
The assumption is erroneous. Although the reference to fishing rights is unique, the retention of absolute federal jurisdiction over Indian lands adopts the formula of nine prior statehood Acts. Indian lands in Arizona remained under the absolute jurisdiction and control of the United States,
Draper and Williams indicate that absolute federal jurisdiction is not invariably exclusive jurisdiction. The momentum of substantially identical past admission legislation touching Indians carries the settled meaning governing the jurisdiction of States over Indian property to the Alaska Statehood Act in light of its legislative history.
Section 4 of the Statehood Act contains three provisions relating to Indian property. The State must disclaim right and title to such property; the United States retains absolute jurisdiction and control over it; the State may not tax it. On the urging of the Interior Department that Alaska be dealt with as had other States, these provisions replaced an earlier section granting to the State all lands not actually possessed and used by the United States. Hearings Before a Subcommittee of the House Committee on Public Lands on H. R. 206 and H. R. 1808, 80th Cong., 1st Sess. 2, 12, 14 (1947). The first and third provisions have nothing to do with this case; the second does not exclude state conservation laws from appellants’ fish traps.
The provision for absolute jurisdiction and control received little attention in Congress. In the 1954 Senate hearings the Committee was considering a provision copied from the Oklahoma statute that Indian lands should remain subject to the jurisdiction, disposal, and control of the United States. Mr. Barney, on behalf of the Justice Department, urged the inclusion of such a provision in order to avoid the possibility that, under United States v. McBratney, 104 U. S. 621, federal criminal jurisdiction over Indian reservations might be extinguished by statehood. Senators Barrett and Jackson thereupon expressed the clear desire that federal jurisdiction not be made exclusive over all disclaimed areas. Mr. Barney denied that the provision would deprive the State of political jurisdiction over disclaimed properties. Senator Cordon declared:
The State may well waive its claim to any right or title to the lands and still have all of its political or police power with respect to the actions of people on those lands, as long as that does not affect the title to the land.
Senator Jackson said: “All that you are doing here is a disclaimer of proprietary interest,” and Mr. Barney agreed. Senator Cordon said:
The act of admission gives to the State of Alaska political jurisdiction, including all that is meant by
the term police power, within its boundaries unless there be express or definitely implied, which is the same thing, a reservation of exclusive jurisdiction in the United States.
Senators Barrett and Jackson and Mr. Barney agreed. Mr. Slaughter of the Interior Department pointed out that a later section of the bill, now § 11, provided for exclusive federal jurisdiction over Mt. McKinley National Park. Mr. Barney, in answer to a direct question, stated that jurisdiction in the Oklahoma statute and in his proposal for Indian property did not mean exclusive jurisdiction. Senate Hearings, supra, 283–287 (1954). The bill as reported contained no provision on jurisdiction but only a disclaimer of right and title, a reservation of federal power to extinguish Indian claims as if there had been no statehood Act, and an exemption from state taxation. Id., at 331. Provisions retaining federal jurisdiction and absolute jurisdiction were considered interchangeable by at least one committee, which reported the disclaimer in an Alaska bill as almost identical with those in the preceding 13 admission Acts. S. Rep. No. 315, 82d Cong., 1st Sess. 15 (1951).
Most statehood bills contained the more common phrasing absolute jurisdiction and control rather than the Oklahoma phrase. Although this was the usual language employed to retain federal power in statehood acts, the Senate Committee in 1958 out of an abundance of caution deleted the word jurisdiction in order that no one might construe the statute as abolishing state power entirely: The Committee declared that it was not its intention by the retention of federal control to make the Alaska situation any different from that prevailing in other States as to state jurisdiction over Indian lands. S. Rep. No. 1163, 85th Cong., 1st Sess. 15 (1957). The House bill, which retained the usual language, was passed
The relation between the Indians and the States has by no means remained constant since the days of John Marshall. In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves. The 1828 treaty with the Cherokee Nation,
The general notion drawn from Chief Justice Marshall‘s opinion in Worcester v. Georgia, 6 Pet. 515, 561; The Kansas Indians, 5 Wall. 737, 755–757; and The New York Indians, 5 Wall. 761, that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations. By 1880 the Court no longer viewed reservations as distinct nations. On the contrary, it was said that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law, Utah & Northern R. Co. v. Fisher, 116 U. S. 28, 31. In Langford v. Monteith, 102 U. S. 145, the Court held that process might be served within a reservation for a suit in territorial court between two non-Indians. In United States v. McBratney, 104 U. S. 621, and Draper v. United States, 164 U. S. 240, the
The policy of assimilation was reversed abruptly in 1934. A great many allottees of reservation lands had sold them and disposed of the proceeds. Further allotments were prohibited in order to safeguard remaining Indian properties. The Secretary of the Interior was authorized to create new reservations and to add lands to existing ones. Tribes were permitted to become chartered federal corporations with powers to manage their affairs, and to organize and adopt constitutions for their own self-government.
Concurrently the influence of state law increased rather than decreased. As the result of a report making unfavorable comparisons between Indian Service activities and those of the States, Congress in 1929 authorized the States to enforce sanitation and quarantine laws on Indian reservations, to make inspections for health and educational purposes, and to enforce compulsory school attendance.
In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future.
Decisions of this Court are few as to the power of the States when not granted Congressional authority to regulate matters affecting Indians. In Thomas v. Gay, 169 U. S. 264, an Oklahoma territorial tax on the cattle of non-Indian lessees of reservation land was upheld on the authority of the Fisher and Maricopa decisions, supra, which permitted taxation of railroad rights-of-way. The Court conceded that because the lands on which the taxed cattle grazed were leased from Indians the tax might, in contrast to the railroad cases, have an indirect effect on Indians, but that effect was declared to be too remote to require a contrary result. In the latest decision, Williams v. Lee, 358 U. S. 217, we held that Arizona had no jurisdiction over a civil action brought by a non-Indian against an Indian for the price of goods sold the latter on the Navajo Reservation. The applicability
These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law. Congress has gone even further with respect to Alaska reservations,
True, in Tulee the right conferred was to fish in common with others, while appellants here claim exclusive rights. But state regulation of off-reservation fishing
Congress has neither authorized the use of fish traps at Kake and Angoon nor empowered the Secretary of the Interior to do so. The judgment of the Supreme Court of Alaska is affirmed. However, in view of all the circumstances and in order to avoid hardship, the stay granted by MR. JUSTICE BRENNAN, and continued by the Court, will remain in force until the end of the 1962 salmon fishing season, as defined in the regulations issued by the Secretary of the Interior.
It is so ordered.
MR. JUSTICE DOUGLAS, while joining the opinion of the Court, dissents from an extension of the stay for reasons to be stated in an opinion.
MR. JUSTICE DOUGLAS.*
When the decision in this case was announced on March 5, 1962, I noted that while I joined the opinion of the Court, I dissented from the continuation of the stay and would elaborate my views at a later time. As the decision to extend the stay was reached in Conference on March 2, 1962, there was insufficient time to prepare an opinion by the following Monday.
The stay was first granted by MR. JUSTICE BRENNAN, 80 Sup. Ct. 33, to maintain the status quo while this litigation was pending. The stay was then plainly justified, as the questions presented were substantial ones. Now,
*[This opinion was filed March 19, 1962.]
A stay that continues in use for another season a device as nefarious as the fish trap needs potent reasons.
The destruction caused by fish traps is notorious. Mr. Justice Van Devanter, conservationist as well as jurist, described an Alaskan fish trap1 designed to catch about 600,000 salmon in a single season, a trap which will tend materially to reduce the natural supply of fish accessible to the Indians. Alaska Pacific Fisheries v. United States, 248 U. S. 78, 87. Dr. David Starr Jordan in his 1904 report of the Alaska Salmon Commission stated, If we consider the ultimate interests of Alaska and the permanence of her salmon fisheries, no traps should be allowed anywhere ... Gruening, The State
WHEREAS, the vast majority of Alaskans, after many decades of first hand experience and study, are convinced that no salmon conservation program can achieve lasting effect unless salmon fish traps are abolished immediately, forever, from Alaskan waters;
NOW THEREFORE, your Memorialist, the Legislature of the Territory of Alaska, respectfully urges and requests that immediate legislation be enacted abolishing fish traps from the waters of the Territory of Alaska.
In 1959, the Alaskan Native Brotherhood, organized to speak for the Indians,2 reiterated its stand for complete abolition of traps.
Senator Gruening, on March 6, 1962, issued a statement to the Associated Press which emphasized another invidious effect of the use of fish traps by the Indians:
The 1945 Alaska Territorial Legislature, at my behest, while I was Governor, passed an Act outlawing discrimination in public establishments based on race, creed, or color. This was designed to safeguard Alaska‘s Native people who had been subject to such discrimination and it did so safeguard them. Secretary Seaton‘s action would have created an inverse discrimination against Whites deeply sowing seeds of bitterness and arousing interracial friction and antagonism which has no place in America and had disappeared in Alaska. The performance was an inexcusable pressure play. In a referendum on fish
traps in 1948, 88.7% of the people of Alaska voted for trap abolition, and Angoon‘s vote was 49 to 9 and Kake‘s 123 to 6 against traps. Yet Secretary Seaton sought to force traps upon them and on the people of Alaska.
The Court‘s decision in the Metlakatla case differs in its conclusion from the Kake and Angoon cases only because of Metlakatla‘s historically different and unique legal status. It leaves the course of action open to the present Secretary of Interior. It is to be hoped that both he and the people of Metlakatla, who in the 1948 referendum — though owning seven traps — voted 112 to 33 for trap abolition, will agree that privilege and discrimination based on race should finally disappear totally from the 49th State.
The devastating effect of fish traps upon Alaska‘s economy was described by the Alaska Supreme Court:
It has not been unusual for a single trap to catch as many as 600,000 fish in a single season. The impact of the catch of eleven traps on the fisheries of Southeastern Alaska is considerable from the point of view of conservation. The season‘s catch of a gill net or purse seine fisherman in the same area might run from 2,000 to 10,000 fish respectively. The discrimination against all fishermen, natives and whites alike, resulting from the Secretary‘s 1959 regulation, creates social problems for the state which it is powerless to remedy if the Secretary‘s claimed right is upheld. The intention to retain such a power over the basic industry of the state was not intimated in the wording of the Alaska Statehood Act, much less described. Such a power has never been reserved as to any other state admitted into the Union as far as this court is aware. The fisheries of Alaska, although pitifully depleted, are still its basic industry. The
economy of the entire state is affected, in one degree or another, by the plentitude of the salmon in a given season. The preservation of this natural resource is vital to the state and of great importance to the nation as a whole. Metlakatla Indian Community v. Egan, — Alaska —, 362 P. 2d 901, 915.
The fish trap is efficient,3 an adjective which, by conservation standards, means that it is destructive. As Senator Gruening has said, Its economic and social aspects have been under unceasing attack by virtually all fishermen, by cannery men who do not own or control traps and have to depend on other types of gear for their salmon, and by the Alaska public generally. Gruening, The State of Alaska (1954), pp. 170–171.
Moreover, the fish trap is not a selective device, taking only one type of fish. It catches everything that swims; and fish that are not in season are as irretrievably lost as are those in which the fishermen have the greatest interest.
We should not allow such a destructive device4 to be employed, absent a claim of legal right or a showing of
The 1962 fishing season in Alaska begins in July, 1962. To prepare for this fishing season, Appellants must commit large sums of money for materials and supplies, including wire, netting, and cannery equipment. A large portion of these materials must be ordered not later than January, 1962. If Appellants’ right to fish with traps were not to be upheld, their investment would be wasted. Conversely, if Appellants’ right to fish with traps is upheld, Appellants will be unable to fish unless substantial sums of money are committed early in 1962.
Whether any sums have in fact been committed to the construction of these nefarious fish traps we do not know. Why these Indians cannot fish in the manner of all other fishermen is not apparent. Since the fishing season starts in July, they have four months from the date of our decision to prepare for it. What problems, if any, they may have in fishing without traps, we do not know. They have asked for no stay at this juncture of the litigation. We act gratuitously and without any knowledge of the actual facts. We in effect dispense to this group who have no legal rights a largesse, as if we sat as a Commission on Indian Affairs, giving a part of the public domain to this favored few.