53 F. 126 | D. Alaska | 1892
The libel which was filed in this case on the 15th of June, 1892, alleges that the schooner Kodiak, on or about the 6th of June, 1892, was seized by Henry L. Johnson, commander of the United States steamer Mohican, in Cook’s inlet, in the waters of Alaska, and within the jurisdiction of this court, and then sets out the cause of said seizure as follows:
“That said vessel, her captain, officers, and crew, assisted by a large number of natives of Alaska, were at said time unlawfully engaged in killing, and did kill, fur-bearing animals, known as 'otter,’ within the limits of Alaska territory, and in the waters thereof, in violation of the provisions of section 1956 of the Revised Statutes of the United States in such cases made and provided.”
This section is as follows:
“No person shall kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof, and every person guilty thereof shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or imprisoned not more than six months, or both; and all vessels, their tackle, apparel, furniture, and cargo, found engaged in violation of this section, shall be forfeited. But the secretary of the treasury shall have power to authorize the killing of any such mink, marten, sable, or other fur-bearing animal, except fur seal, under such regulations as he may prescribe; and it shall be the duty*302 of the secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions of this section, until it is otherwise provided by law. Nor shall he grant any special privileges under this section.”
After the filing of the libel herein, on June 18, 1892, the master of .the Kodiak, intervening for and in behalf of the vessel, her tackle, apparel, furniture, and cargo, appeared and alleged that at the time of the seizure of said property he was in possession thereof, and that it belonged to the Alaska Commercial Company, a corporation duly organized under the laws of California. This company in subsequent proceedings appeared as claimant, and on the 4th day of October, 1892, filed an answer to the libel. In this answer, by failing to deny, it admits, the allegations of the libel as to the time, place, manner, and authority of the seizure, but denies any violation of the provisions of section 1956 (16 U.S.C.A. § 644 and note), or any other statute whatever, or the commission of any act which it might not lawfully do under and in pursuance of the authority conferred by regulations of the secretary of the treasury of the United States, issued and prescribed on the 21st of April, 1879. The regulations referred to in this answer were issued by Hon. John Sherman, and are given in the following notice or circular:
“Treasury Department.
“Washington, D. C., April 21, 1879.
“Section 1956 of the Revised Statutes of the United States provides that no person shall, without the consent of the secretary of the treasury, kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof, and that apy person convicted of a violation of that section shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or be imprisoned not more than six months, or both, and that all vessels, with their tackle, apparel, furniture, and cargo, found engaged in violation of that section, shall be forfeited. No fur-bearing animal will, therefore, be allowed to be killed, by persons other than the natives, within the limits of Alaska territory, or in the waters thereof, except fur seals taken by the Alaska Commercial Company in pursuance of their*303 lease. . The use of firearms by the natives in killing otter during the months of May, June, July, August, and September is hereby prohibited. No vessel will be allowed to anchor in the well-known otter-killing grounds, except those which may carry parties of natives to or from such killing grounds; and it will be the duty of the officers of the United States, who may be in that locality, to take all proper measures to enforce all the pains and penalties of the law against persons found guilty of a violation thereof. White men lawfully married to natives, and residing within the territory, are considered natives, within the meaning of this order.
“John Sherman, Secretary of the Treasury.”
Two principal questions arise in this case:
(1) Was the Kodiak, at the time of her seizure, within waters over which the United States had jurisdiction to make the same? and
(2) If so, were the acts proved by the evidence to have been committed a violation of section 1956, under the circular of the secretary of the treasury ?
The evidence touching the first question is that' the vessel on June 6, 1892, at the time of the seizure, was in latitude 59° 9' N., longitude 152° 41 W., well inside of Cook’s inlet, lying in a calm, within sight of the shore, but about 20 miles distant from it, at the nearest point. Cook’s inlet is on the eastern side of that portion of Alaska which borders on the Gulf of Alaska. It is about 47 miles wide at its entrance, and extends northward into the mainland a distance of, perhaps, 140 miles. The Kodiak, when seized, was, as shown from the map in evidence, at least three or four miles inside of a line drawn across the entrance to the inlet from Cape Douglas to Point Bede, the nearest headlands, and almost equally distant from them, but somewhat nearer to Cape Douglas. It was contended on behalf of the claimant that these facts show that this court has no jurisdiction to try the case, for the reason that the municipal laws of the United States have no force upon the sea beyond a marine league or three miles from the shore line, and that the statute prohibiting the killing of fur-bearing animals within the limits of Alaska territory, or “in the waters thereof,”
“The extent of jurisdiction over adjoining seas is often a question of difficulty and of dubious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through a territory and the sea coast adjoining it, and the navigable waters included in bays and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation and to the undisturbed use of the neighboring shores.”
And on the same subject this learned author says:
“Considering the great extent of the American coast, we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction. It would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands,*305 as, for instance, from Cape Ann to Cape Code, and from Nantucket to Montauk point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi.”
In 1849 Mr. Buchanan, secretary of state, declared the claims of the United States to maritime jurisdiction to be embodied in the following proposition:
“The exclusive jurisdiction of a nation extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands, and also to the distance of a marine league, or as far as a cannon shot will reach from the shore, along its coasts.”
1 Whart. Law Dict. § 32.
The case of The Louisa Simpson, Fed.Cas.No. 8,533, 2 Sawy. 57, was a suit to enforce forfeiture of said vessel for a violation of section 4, Act July 27, 1868, extending the laws relating to customs, commerce, and navigation over the territory of Alaska, and the executive order of February 4, 1870, prohibiting the importation of “distilled spirits into and within the district of Alaska.” In the decision by Judge Deady, which was affirmed on appeal, it was held that the simple act of taking these spirits within Kotzebue sound was a violation of the law— “Because it was an ‘importation of distilled spirits into and within the district of Alaska.’ The phrase, ‘district of Alaska,’ as used in this act and executive order, in my judgment, includes that portion of the sea along its coasts which lies inside of a line drawn from the promontory of Point Hope to the Cape Prince of Wales.”
Now, it is true that all the waters of this sound are far east of the western line described in the cession of this territory by Russia to the United States by the treaty of March 30, 1867, but the Russian government claimed and exercised the same authority and jurisdiction over the waters of which Cook’s inlet is a part as it did over the waters along the western coast of its American possessions, and if the United States now maintains jurisdiction over Kotzebue sound, which is about 160 miles between projecting headlands, not landlocked, and in size more than three times the area of Cook’s inlet, it certainly can, with much better claim of right, maintain jurisdic
“If we assume that the record shows the.locality of the alleged offense and seizure as stated, it also shows that the officers of the United States, acting under the orders of their government, seized this vessel, engaged in catching seal, and took her into the nearest port, and that the law officers of the government libeled her, and proceeded against her for the violation of the laws of the United States, in the district court, resulting in her condemnation. How did it happen that the officers received such orders? It must be admitted that they were given in the assertion on the part of this government of territorial jurisdiction over Behring sea to an extent exceeding fifty-nine miles from the shores of Alaska.”
To apply this reasoning to the case at bar, it may be said that Commander Johnson, with the United States ship Mohican, was, by orders of the government, cruising along the coast of Alaska, and within the waters of Cook’s inlet at the time he made this seizure. How, then did it happen that he received such orders ? It must be presumed, I think, that they were given in the assertion on the pari of this government of territorial jurisdiction over these waters. And, if I am correct in this, then it is not the province of courts to participate in the discussion of the questions arising out of this claim of jurisdiction or dominion, for they are of a political nature, and not judicial. National dominion and sovereignty may be extended over the sea as well as over the land, and in our government, when congress and the president assert dominion and sovereignty over any portion of the sea, or over any body of water, the courts are bound by it. In re Cooper, supra; The James G. Swan, 50 F. 108.
The next question is as to the sufficiency of the evidence, when applied to the statute and order of the secretary of the treasury, to warrant a decree of condemnation and forfeiture as prayed for in the libel of information. The claimant corporation was the first lessee of the right to take fur seals under the act of July 1, 1870, entitled “An act to prevent the extermination of fur-bearing animals in Alaska.” This lease was executed and delivered August 31, 1870, for the term of 20 years from May 1, 1870. In conducting this business, and in connection with it, this company established trading posts and stores at different points in the territory, for trading with the natives and buying furs, and also owned and operated a number of vessels for use in carrying goods, wares, and different kinds of freight to these trading posts, and in bringing away from them furs and other articles of commerce purchased. In the plant for conducting this extensive business the company invested a large amount of money, and at the expiration of its lease it still kept up these trading posts and continued to do business along its accustomed lines, except as to privileges granted by the lease, and obligations thereby incurred. The Kodiak was one of its vessels used in the ordinary demands of its business. The testimony bearing directly upon the case is not voluminous, and there is no conflict as to the material facts. The locality of the vessel at the time of her seizure has already been stated. The evidence further shows that at said time she had on board 8 white men, consisting of her necessary officers and crew, and 10 natives or Indians,— about 30 more, who were out hunting, coming on board later in the day; that these natives had their “bedarkes” or canoes with them, and were armed with spears, clubs, and bows and arrows, used by them in hunting and killing fur-bearing animals, especially sea otters; that they had on board the vessel 12 sea otter skins caught on the voyage, and 5 brought on by natives at English bay, and three of these animals, just killed that day, were brought on after the seizure, but that all had been killed by natives,