Metlakatla Indian Community v. Egan – Oral Argument – May 18, 1960 (Part 2)

Media for Metlakatla Indian Community v. Egan

Audio Transcription for Oral Argument – May 18, 1960 (Part 1) in Metlakatla Indian Community v. Egan

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Earl Warren:

Mr. Rader, you may continue.

John L. Rader:

Mr. Chief Justice, if it please the Court.

Before going into the technical legal argument to place the case in its proper perspective, I’d like to discuss for just a moment the economic hardship that these appellants have pleaded and which their affidavits certainly show.

The record, however, if it’s closely read will, I think, portray this situation of Alaska fishery.

The affidavits of (Inaudible) and those are the affidavits of the appellants, show that five canneries recent close — recently closed in Southeastern Alaska representing 25% of the productive capacity of the area.

One affiant stated that properties that were valued in 1947 at $533,000 were now worth $75,000, cannery properties.

The appellant, Kake in here, for instance, shows that they paid, or the Federal Government paid for them $260,000 for their cannery equipment that is now worth $207,000 and that they are indebted in amount of $848,000, which means this, it comes through the record to you that they’ve lost money at the rate of about $100,000 a year.

Earl Warren:

These people who are here in Court now?

John L. Rader:

These people who are here in Court, Angoon.

Kake, paid $363,000.The properties are worth $377,000 and their total indebtedness is $781,000.

In other words, since 1950 to the time of those affidavits, they lost about $700,000.

Kake did.

Appellant, Metlakatla, I don’t believe gives us the detail on their financial picture like Kake and Angoon due their — their financial situation is not nearly as serious certainly as — as Kake’s and Angoon’s.

But what we have as a result of the depleted industry is, we — we have something that, to me is like the dust bowl.

It is the resource of the region and probably, if there was any material factor that — that had as much to do with statehood, the — the most material factor.

I mean, of the wealth or the way the people live of Alaska when their quest for statehood was to control this fishery upon which we — we have — we had to have it, and it had been exclusively under the federal control and it was a — it was a disaster.

The Southeast — the economy of Southeastern Alaska was in a disastrous situation and everyone including these appellants, when they voted for Ordinance 3 of the Constitution, when they voted in the referendum in 1948, voted overwhelmingly for the abolition of the fish trap to which we — and our position is that we, the State, the son have watched our parent, the United States, in the control of this fishery, and maybe we can’t do any better.

But our position is, we have a right to try and if that’s what statehood gave us, was the right to try.

And that these appellants must try with us whether they want to or not at this time because at one time, they were certainly willing.

And the reason really that this — this moved to abolish the fish traps are — was led by appellant communities and others just exactly like them is because that was not their way of fishing.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

To begin with, Your Honor, Section 4 is a compact and it is gross error to rely upon the interpretation of Section 4 by merely congressional intent.

If this was a compact, and that’s what it says it is, then our understanding of that compact in — for the purposes of interpreting that contract — compact today is just as important as was Congress’ intent.

Our understanding of it was this.

There are fish wheels on the Yukon River.

There are reservations in Alaska.

There’s a (Inaudible) Indian reservation.

There may be some fishing right.

We don’t know.

Congress didn’t know, and Congress did not want to do this.

John L. Rader:

In — in the issue of statehood, they did not want to attempt to neither enlarge nor diminish whatever those rights might be.

We understood it, that it would be if someone could come in here and show a property right to the common fisheries that they would have it and we would no longer own it, but we construe Section 4 to be a disclaimer of property interest, not a disclaimer of state police power over our citizens when they start to fish.

We thought that it was — a boat is a property right, a fishing area in our fishery is not a property right.

It can neither be bought nor sold.

That was open to all citizens and all citizens alike.

A fish trap is a device.

It’s made out of — of poles and wires and houses.

It has a house on it, for the watchman.

That is a property right, but there was no ever a property right to a fish trap site or location in the common fishery, and this Court held that in Hynes versus Grimes.

Now, there are fish wheels on the Yukon River.

There are international treaties which give the natives of Alaska the right to engage in — in sealing, pelagic sealing.

They call it fishing sometimes.

Sometimes they call it hunting.

Those might be rights, but Congress did not want to concern itself with those rights or anything else, and so it said including fishing rights, and it should have said, “if any,” because that’s what it means that we disclaim any right title and interest inany property, including fishing rights.

That, you can’t disclaim right title and interest to an Indian when he’s fishing.

Those are citizens.

That’s essential to our sovereignty.

It’s the biggest part of our — of — our biggest resource.

Although we could give away property, we cannot give away sovereignty and then we say this.

That if, as a condition of admission to the Union, we did cede sovereignty over our citizens on the basis of race, then that was an unfair exaction and it was an exaction as a condition to admitting as to statehood that violates the equal footing doctrine, because there’s no other State in the Union that where such a principle is recognized.

And I don’t believe you can find any other Statehood Act where it says, “Including fishing rights.”

Therefore, Congress said this, “We will leave that to future legislation or judicial determination.”

That’s what the — that’s what the appellants are doing here today.

They came — they’re coming in here to attempt to establish a property right in this Court, as Congress contemplated that they should, but that should not be taken by this Court to mean that such a property right exist.

They have not — excuse me.

Earl Warren:

No.

No, no, excuse me.

John L. Rader:

Well, I was going to say, there has been no pleading of aboriginal rights here.

Those are not pleaded.

They — they plead only a right to fish under the regulations of the Secretary of Interior.

Earl Warren:

Mr. Rader, do you happen to know if in any other States where there are Indian reservations, if the Government grabs any different hunting or fishing rights to Indians than — than it does to the general populace?

John L. Rader:

Well on a reservation, I think that they could perhaps.

In the case of Tulee versus Washington, there was a treaty and the treaty provided that not only were the Indians involved in that case have the right to fish exclusively the waters on their reservation, but that they would have the further — and this is a treaty right — to fish in all usual and accustomed places that they had previously fished and that took them beyond the reservation, it took them into the common fishery, and this Court held in that case that they could not be charged a license fee because the license fee was not merely for purposes of regulation, it was also for purposes of taxation.

Does that answer Your Honor’s question?

Earl Warren:

Well, in — in a way, but I was thinking this.

That — that whatever special rights they might give to — to Indians on reservations would probably fall, would they not, if we decided with Alaska in this — in this case?

Would we not be saying at the same time that — that wherever the Federal Government attempted to invade the police power as you — of the State as you see it, that — that they have done that unconstitutionally and therefore, the regulations or the statutes must fall?

John L. Rader:

I don’t believe so for this reason.

This case does not present a factual situation which would — which would permit you to reach that point except by dictum, because in Kake and Angoon, there is nothing even resembling a reservation.

On Metlakatla, there is a reservation and I — I can’t tell whether it’s an Indian reservation or not.

But it was a reservation set aside for the immigrants who called themselves the Metlakatlan Indians who came to Metlakatla to be administered under the authority of the United States.

I — I don’t — certainly, the Indian — inland waters of the State, and that’s where we get to our equal footing doctrine and I would come to that in a few minutes.

There is not — there is no problem there.

So the upland reservation problem that would — could be created by this case as applied to other reservations, it just isn’t in this case, I don’t believe.

Earl Warren:

Now, if I may — if I may cover you just once more before you get to your other constitutional argument.

Well, I’ll — I’ll wait for you —

John L. Rader:

Very well.

Earl Warren:

— to that other thing (Voice Overlap) —

Hugo L. Black:

May I ask you on that subject just to what extent the territory had governed this Indian group — tribe, whatever you want to call it.

John L. Rader:

Totally, except there are — there’s only two claims that these people make.

They have refused to pay the raw fish tax of the territory on their cannery and they refused to abide by a constitutional ordinance, abolishing fish traps.

Hugo L. Black:

Other —

John L. Rader:

Other than that —

Hugo L. Black:

Otherwise, their laws, civil, and criminal applies to them.

John L. Rader:

Yes, sir.

And it applied there before the 1953 and 1957 statute that was cited to you by a counsel for Metlakatla.

The District Judge in the case of United States versus Booth stated, “It has always been assumed that the territorial law applied to Metlakatla, and it has always been assumed that they have applied.”

And the reasoning of United States verus Sandoval, in cases of that nature, is absolutely inapplicable here, because those people there have their own system of government.

They were never brought under the — the laws of the State.

There had been a reluctance of the State to govern those persons because they couldn’t pay their own way, so to speak, in a government sense.

John L. Rader:

Their worst enemies, of the tribes, were the pioneers and the settlers who — who settled in amidst them and — and adjacent to them.

That’s not true here.

All of that reasoning, of that — of those cases, in fact, the whole intent of the Federal Indian Law, which of course is wonderful in its concept, becomes to be — it — it comes to be a — to work against itself in a most destructive manner in this case because these people are not our enemies in Alaska.

These people, the — the argument in the State Senate as to who was going to be president of the Senate was between an Eskimo and an Indian.

Hugo L. Black:

You’re saying —

John L. Rader:

We honor them and we respect them.

Hugo L. Black:

You’re arguing in effect, are you not, maybe right, that the Government could not if it wished, require them to exercise once more the powers of autonomous government such as Worcester against Georgia.

You’re arguing that that could not be constitutionally done.

John L. Rader:

Once — once the tribal organization has dissolved, once the elements of sovereignty have been lost and once the Indians who are Indians today only by race and once they have — have become a part of our Government, have incorporated into our cities, have thrown out tribal organization for municipal law, the state municipal law, then the United States Government through the Department of Interior cannot go in and segregate those people out on the basis of race.

Felix Frankfurter:

What in your view was reserved by Section 4?

John L. Rader:

The right to come to this Court as they’re doing today and the right of Congress to withdraw the wardship relation that it has with other Indians in Alaska at will without having to be — that without having to pay for it.

In other words —

Felix Frankfurter:

It didn’t need them after Congress come to this Court, I mean, because that was a such a poor reserve?

John L. Rader:

Well —

Felix Frankfurter:

They can litigate this question.

John L. Rader:

To begin with, Congress —

Felix Frankfurter:

And especial — that — that they do talk about fishery rights.

So, that must have been addressed to some actuality in the new state.

John L. Rader:

The legislative history does not show that, Your Honor.

Felix Frankfurter:

You mean that these were idle words in effect?

John L. Rader:

No.

That they did not know if there were any such things as Indian fishing rights, and they did not want to either destroy it or create them in the act of admission.

They wanted to preserve the status quo and the status quo in the — in the commercial fishery of Alaska is equality of citizens and it has been, for as long as anyone knows, there has never been a distinction made on a basis of race.

Earl Warren:

May I ask you Mr. Rader, what — what response the Secretary of the Interior makes to your argument that you made just a few moments ago about the devastation of your fish life?

John L. Rader:

The Secretary of Interior —

Earl Warren:

And — and what these will do — and what these fish traps will do to —

John L. Rader:

The — the Secretary of Interior would deny that fish traps were a conservation issue.

Earl Warren:

Oh, I see.

John L. Rader:

The Secretary of Interior has denied that they are —

Earl Warren:

Oh, I see.

John L. Rader:

— a conservation issue.

We point to one fact and that is the fact that under his management, the fisheries have practically been destroyed and we contest the validity of his statement that fish traps are not a conservation issue.

And we think that now that we are a state, that we have the right to try it.

Maybe we will have neither the will to conserve nor the ability to conserve.

But we know that under federal management, it has not been conserved.

Earl Warren:

Has that traditionally been the viewpoint of the — the Department of Interior that the fish traps are — are not a conservation measures?

John L. Rader:

That’s correct.

Earl Warren:

Yes.

John L. Rader:

That is correct.

Hugo L. Black:

They’ve always been — always felt that way.

John L. Rader:

They have always maintained that they could not abolish fish traps on the basis of conservation.

Earl Warren:

I see.

John L. Rader:

The people of Alaska have always maintained that that’s what’s destroying the industry and I think the facts — we may not be right, but the facts prove conclusively that — that their analysis of the conversation picture is not altogether correct either.

Felix Frankfurter:

Always has — how far back?

Does it go back to that, the conservationists, if there’s any case?

John L. Rader:

It goes back, if it please the Court, from the time the United States purchased Alaska from Russia.

The United States —

Felix Frankfurter:

Those are (Voice Overlap) —

John L. Rader:

The United States ignored the Alaska fisheries for 60 or 80 years and it was a — a matter of people coming in harvesting the crop in any manner that they wanted to and people going out.

Felix Frankfurter:

No.

What I mean is, I gathered from your answer to the Chief Justice that the Department has addressed itself to the question of conservation and on the merits of — of canvas of that issue, concluded that the utilization of these traps is not destructive over fishery, isn’t that right?

And if that is so, I was wondering how far back the — the Secretary of the Interior has made that ruling.

John L. Rader:

Well, I don’t know except that Alaskans, natives and whites alike would have maybe 25 or 30 years.

Every time we have a legislature up there, we memorialized Congress to abolish these devices and the Alaska Native Brotherhood every time they meet in a convention, pass a resolution addressed to or delegate to Congress to do something to abolish these fish traps and no one has ever done it, and —

William O. Douglas:

I’ve been —

John L. Rader:

— that goes back 30 or 40 years.

William O. Douglas:

I’ve been reading some things on fish traps including Governor — Senator (Inaudible) fine book —

John L. Rader:

Yes, sir.

William O. Douglas:

— of State of Alaska.

And it seems to me that that issue sometimes gets down to the question as to how well they’re managed or how well they’re supervised and —

John L. Rader:

That is correct.

This is the thing about —

William O. Douglas:

— but this is theoretical conversation.

John L. Rader:

Well, perhaps that’s true.

But here, you have — you have a device which is — which has a capacity to perhaps catch $25,000 worth of fish in a day.

And all you have to do is to have a man on that — on that fish trap when the airplanes are gone and when the boats are gone, and you can see in 50 miles in each direction, is to open it up and let it fish.

And you can’t tell when you — when you — if you close it up, stop the fishing when you see a boat or an airplane coming, you can’t tell how long the fish have been in the pot or in the heart.

They’re there, they’re alive and they have been caught when the season was open.

It is such a tremendous device that the abuse is — is so easily accomplished.

Now, that’s true of the nets also.

A fisherman that gets hungry, when he watches a fish trap operate, and he finds out that his hours have been closed, that his days have been closed, that he cannot fish and he wants his fish trap to operate, he’s pretty tempted also to take his nets and go off and throw them across the stream and that is destructive, equally.

Hugo L. Black:

I’ve been — I have — haven’t quite understood the — the part of your statement.

I don’t know how relevant this is.

I thought you and — said this morning in answer to a question that you did not think that the fishing of the fish, in the way that you have said it, has occurred, but you do the usual fish traps by the Indian.

John L. Rader:

Well, not by the Indians.

This is not their method of — the — this is a device and contrivance has been brought in with steam-powered tugs and things like that.

These Indians could not set up their own fish traps.

These fish traps are put in place for these Indians by the Whiz Fish Company in the case before you today, hired out of Seattle with their large equipment to come up and install this fish trap device.

These things are monstrous.

They’re beyond the capacity of — of the Union villagers to construct.

They’re not a hand-constructed type of thing and they are not — their historic way of fishing.

And that was really the reason, probably, that the Indians so thoroughly opposed with the rest of the people who lived in Alaska the use of the fish trap because it was a device which was so efficient that it was — we believe, whether the Secretary of Interior does or doesn’t, we believe that it’s destroying the fisheries.

Earl Warren:

Do these Indians practice their own fish or do they do it through some — the canning company?

John L. Rader:

They have a cannery.

Now, I can’t be too certain about Metlakatla, but let me take Kake and Angoon.

Earl Warren:

Yes, you may.

They bought a cannery 10 or 12 years ago, one of them 12 years ago, one of them 10 years ago.They do their own processing but the managers for that are — are Whiz Fish Company again in this case.

Are what?

John L. Rader:

Are — are a Seattle — a Seattle concern that comes in and operates a cannery for them and takes a — in some instances, it’s a percent of the pack or something of that nature, but it’s not a — it’s not a native enterprise.

Earl Warren:

I see.

John L. Rader:

It’s — it’s a big business.

Earl Warren:

Big business.

William J. Brennan, Jr.:

(Voice Overlap) things I gather were built by the Federal Government where they — for these communities?

John L. Rader:

The buildings and the — and the complete operation were purchased from ordinary, a normal businessman made in Alaska.

William J. Brennan, Jr.:

Oh, yes.

But was the financing by the Federal Government?

John L. Rader:

Yes.

Yes, sir.

William J. Brennan, Jr.:

And those are the — they incurred indebtedness which is substantial, is it, that —

John L. Rader:

That’s right.

The — I think the transaction is indicated in the complaint and in the affidavits, is that the United States bought from a pack from two packing companies.

Their complete packing operation, canneries, boats, equipment, fish traps and fish trap sites it says, the title was taken in the name of the United States in trust for these corporations which have been organized by the Department of Interior.

William J. Brennan, Jr.:

Now, and Metlakatla was something built by the Government or was that also a purchase?

John L. Rader:

Well, Metlakatla has been operating since 1915 and I don’t know whether that was out of their own funds or whether it was loaned, but I do believe it’s been paid off.

The Metlakatla fishery has been successful, partly because they got into the business before it was dust bowl.

They — they’ve been into it back when it was good, 1915.

William J. Brennan, Jr.:

Were they using fish traps that far back?

John L. Rader:

Yes.

They — they used fish traps in 1915.

In fact, aboriginally, the Metlakatlans in Canada used a — something like a fish trap, I guess.

It was a small device, but I’ve been told that the word “Metlakatla” means “fish trap people” for Metlakatla in Canada.

However, that was — that’s — as much a — the same as a fly is to a horse to what we’re talking about today, the type of devices they had.

Earl Warren:

I — I understood you to say they’ve been doing very well in Metlakatla but — but I thought also — you told us that they have property worth only about $350,000 and they owed — owed $850,000.

John L. Rader:

No, Your Honor, that was on Kake and Angoon.

Earl Warren:

Oh, alright.

Alright.

John L. Rader:

In both of those, I gave you the figures on them.

I did not have the figures —

Earl Warren:

Yes.

John L. Rader:

— on Metlakatla.

Earl Warren:

Yes.

John L. Rader:

I believe the Metlakatlans all financially is in a much better position than these other people because as I say, they got into business when it was — when the resource was there.

Earl Warren:

Yes.

Tom C. Clark:

Did they pack their own catch when the sales started?

John L. Rader:

They packed their own, I believe.

Tom C. Clark:

All —

John L. Rader:

I believe they do, and then their pack was sold.

I mean, then — then it is taken to Seattle, financial arrangements are made for a broker, through a broker and the fish are sold on a national scale, Alaska salmon.

As long as —

Tom C. Clark:

At the time they have (Inaudible)

John L. Rader:

No.

No, they don’t.

I believe that they packed under their own — with their own managers, their own people operating it.

The operation is too new to Kake and Angoon, the business — the business operation.

The — after —

Charles E. Whittaker:

Maybe this —

John L. Rader:

Excuse me.

Charles E. Whittaker:

Can you tell us how many others do you understand with reference on it as to have to serve for it.

And others, I mean in the groups like this.

John L. Rader:

Only these three.

Charles E. Whittaker:

That’s all they claim?

John L. Rader:

That’s all they have claimed thus far.

Charles E. Whittaker:

You have reserved more under Section 4.

John L. Rader:

That’s right, these three for fish traps.

Charles E. Whittaker:

Have you understand that to speak of the past test if you want to reserve here of what they have theretofore to give them over to the Indians?

Not that because you’re after it?

John L. Rader:

No, I think that if they can — if they can do what they’ve done here, they completely control the fishery, so far as an Indian is concerned, when he starts to fish any place.

William J. Brennan, Jr.:

Even with the hook and line?

John L. Rader:

I think that will become clear —

William J. Brennan, Jr.:

Even with the hook and line?

John L. Rader:

I presume not, that’s Indian fishing.

A trap is as foreign as anything else.

That’s not their method of fishing.

They’re fishermen in boats and skiffs.

Why shouldn’t it be with a hook and line?

It’s an Indian fishing right.

They have the right to fish with a hook and line before, why don’t they have the right to fish with a hook and line now?

They had just as much right to fish with a fish trap before as they do now, but before, they never had a right to fish with a fish trap because that was a right that all citizens of the United States had.

Perhaps that’ll become more clear if you’ll — if I may summarize my — my legal argument and go back to the first point of it, which is that point.

Briefly, we state this.

Number one, prior to statehood, in the commercial fishery — now, we’re not talking about a subsistence fishery.

Perhaps that’s what they meant by Indian fishing rights, a subsistence fishery, to catch fish and feed it to yourself and your dogs along the Yukon River, up north some place or maybe in this area too, but we’re talking about the commercial fishery.

Number one is, before statehood, there was never any right in any person to an exclusive right of privilege to the commercial fish — fishery, and that included Indians, Aleuts, Eskimos, Whites, Swedes, Englishmen and Irishmen.

It included everybody.

They were all legal.

We come into the Union and we have Section 4, which says that the State will disclaim all right to have an interest to any property including a fishing right.

We contend that their wording actually is that we — we disclaim right to have an interest to a fishing right if any, and there may be some.

And this Court cannot possibly foreclose that today because you don’t have all the fishing rights in Alaska before you today.

You have only the fishing right today in this case as it pertains to a fish trap.

That’s the narrowest issue of this case.

And we say that Congress did not intend as to change the status quo, that the White Act, if it please the Court, which was to prevent discrimination did not now become the instrument of discrimination and that is exactly what it is, a compete perversion of an act of Congress which was passed to prevent any exclusive right or privilege in the common fishery of Alaska.

And as this Court observed in Hynes versus Grimes, it should be open to all of our citizens when it was attempted there to set aside for any group of Indians.

Felix Frankfurter:

Well, that may be a good reason for a white fisherman to come here and say “I’m being discriminated against.”

What gives the State’s standing?

John L. Rader:

Well, our standing brings us to the next point.

That if we’re wrong in the first two, if there is a property right and if we did disclaim it and if we did disclaim not only a property right, but the right to regulate our citizens on the basis of race, then we say that if you violated the equal footing because the inland waters and the fish and game were held in trust for the future State of Alaska that by operation of law, it passed to Alaska and that this is an unwarranted infringement by an arm of the Federal Government into our sovereignty.

William O. Douglas:

It comes down to police power then.

John L. Rader:

It’s police power and sovereignty, if we’re wrong on the first two.

Potter Stewart:

Well now, if you’re — if these are Indian tribes, or assuming there, tribes, then you wouldn’t be making this third argument, would you?

Wouldn’t you grant the power of the United States under the — under — under its power to — over commerce with Indian tribes to — to impose this kind of infringement.

John L. Rader:

No, we wouldn’t for this reason.

And that is if — if you’re going to withhold from the State absolute jurisdiction and control, you must define that, because normally, this — that was the question that was raised this morning as how — how can the State argue about the rights as between the Federal Government and the Indians?

The reason that we have a right to argue about that is because it’s our property you’re arguing about, the fish and game and the resource of Alaska.

And we say this.

If you made an Indian reservation out of all of the inland waters of Alaska and took from Alaska the resource which represents 85% of the natural resources harvested as a condition of entry into the Union, then you will have violated the equal standing of Alaska with Washington, Oregon, the original 13 states and the rest of the states of the Union.

Earl Warren:

And suppose, Mr. Rader that — that the Government — and this Government said to you, the state should have no police power over the reservations, Indian reservations in Alaska, would it have that power?

John L. Rader:

If you would draw on reservation, it would.

Earl Warren:

I beg your pardon?

John L. Rader:

If you — if you would draw a line and say that that’s the area —

Earl Warren:

Didn’t they draw a line on the —

John L. Rader:

No.

Earl Warren:

— independent — on this islands, these particular islands, and say that it — as to that area only, they had the right to use these fish traps?

John L. Rader:

Well, who did that?

The Secretary of Interior did that after statehood, not the Congress of the United States.

Hugo L. Black:

What about the original act that created that reservation?

John L. Rader:

The Metlakatla Reservation.

Hugo L. Black:

Yes.

That —

John L. Rader:

I might — I now, if it please the Court, perhaps I misunderstood the question.

I — I went to the 1960 regulations because that’s where the lines are drawn —

Hugo L. Black:

Yes.

John L. Rader:

— as we have gone on one — one of our appendices and that was done —

Earl Warren:

Let’s take the —

John L. Rader:

— by the Secretary.

Earl Warren:

Let’s take the first case, 826 or whatever —

John L. Rader:

That’s Metlakatla.

Earl Warren:

The 326.

John L. Rader:

Alright.

Earl Warren:

Let’s take that — that case.

Suppose — suppose the Federal Government said, “The State shall have no police powers over this reservation.”

John L. Rader:

I think you could do that.

Earl Warren:

Well then, why couldn’t it do it as to a part of your police powers?

John L. Rader:

You cannot do it into the inland waters.

The United States holds the uplands as the owner and out of the uplands, the United States may create a reservation for Indians and make it exclusive and have absolute jurisdiction control or anything else that they want to, but they cannot state that an Indian, when he starts to fish any place in Alaska, is withdrawn from our jurisdiction.

Earl Warren:

They hadn’t said that here.

John L. Rader:

That’s the —

Earl Warren:

It said on these independence islands, or whatever the name of the island —

John L. Rader:

On Metlakatla.

On the Metlakatlan Islands.

Earl Warren:

Yes.

But they didn’t say any place in Alaska they could put these things.

They said “on this reservation”.

John L. Rader:

Well, they have on Kake and Angoon, they’ve said “any place in Alaska.”

On Metlakatla, they said “within the reservation” that has been previously defined —

Earl Warren:

Yes.

John L. Rader:

— that they will permit these fish traps.

Earl Warren:

Yes.

John L. Rader:

Alright.

Then on — for Metlakatla, we would retreat to this position and that is that Metlakatla, although it perhaps had the exclusive right to use an area, in other words, “No one can fish in my pond except me.”

Earl Warren:

Yes.

John L. Rader:

It is an exclusive right, but it doesn’t mean that they have ever been segregated out of the general conservation scheme of the White Act when it was administered by the United States nor the — nor the acts of the State of Alaska.

In other words, although I may own a pond or may own a cornfield and there’s migratory birds come and land on it and no one else can trespass on my property and fish my area, I am still bound by the fish and game laws of the State as to when I can shoot those migratory birds and we take the position that they are bound to the laws of the State as to when they can take these migratory fish when it passes through their reservation.

And that that could not be withheld from the State because it’s something that —

Earl Warren:

Well, how about your other laws, your other police laws that the Government says they don’t have to obey on that reservation?

John L. Rader:

They’re obeying all of them, Your Honor.

Earl Warren:

Well, I know they are now —

John L. Rader:

Excuse me.

Earl Warren:

— but I — I asked you the question that suppose the Government came along and said that — that we shall — we will have retain exclusive jurisdiction over there, over those islands.

You said you thought they would have the right to do it —

John L. Rader:

Yes.

Earl Warren:

— in the case of that reservation.

John L. Rader:

Yes.

Earl Warren:

Now, if they can do it as to all of their police — your police laws, why — why do you cry about this particular one and say that they can’t do it?

John L. Rader:

Because this is the inland waters, this is the fish and game of Alaska.

Earl Warren:

Well, I — I can’t see that —

John L. Rader:

I think that there’s a distinction.

United States never held the uplands entrust for the State, but the United States has always upheld the inland waters entrust for the State.

Hugo L. Black:

You’re relying on the Pollard case doctrine?

John L. Rader:

Yes, Your Honor.

And — and although they could — could do whatever they wanted to at the uplands, we don’t think that they had the right to segregate out the inland waters and the fish and game resource because that is not — it used to be thought that the State owned the fish and game resource.

That idea has been read or abandoned to say that, “No, the State has a part of the sovereignty, police power, has the right to control and conserve the fish and game for the benefit of all the people of the State.”

And we don’t think Congress intended to do any such thing.

Earl Warren:

The Government can regulate the fish and game more strictly than you do, can it not if it’s migratory?

John L. Rader:

I — I missed the first part.

Earl Warren:

It can — can regulate the — the taking of fish and game, can they not, if it’s migratory game or fish than they do it now to the case?

John L. Rader:

United States?

Earl Warren:

Yes.

John L. Rader:

By treaty?

Yes.

Earl Warren:

Yes.

John L. Rader:

Yes.

And we — and if the United States would say this.

That the salmon resource of Alaska is so colored with international matters and as a matter of fact, if it please the Court, it may be.

Earl Warren:

And they do it (Voice Overlap) —

John L. Rader:

It may come to do that, that’s right, because of the Japanese fishery and the Russian fishery on the high seas.

When United States comes to — to that point and says by treaty, “We’re going to reenter and control Alaska’s fisheries,” they will and they — and they must.

Charles E. Whittaker:

Do you rely on —

John L. Rader:

Well that’s the only way that they can do it.

Yes, Your Honor?

Hugo L. Black:

I — I — do you rely on the Pollard doctrine in connection with the last part of the 1891 reservation statue which said, “Subject to such restrictions may be proscribed from time to time by the Secretary of Interior?”

Hugo L. Black:

Is that the way you — the basis on which you say that has no bearing here?

John L. Rader:

Well, we needn’t destroy the purported reservation of inland waters, the 3000 feet Presidential Proclamation.

We — we have argued that that was destroyed, but we needn’t destroy that.

We needn’t reach that point in this case actually because the Presidential Proclamation — remember the statue that set aside the Metlakatla Reservation, speaks of the body of lands known as Annette Islands.

This Court interpreted it in Alaska Pacific Fisheries case to say, “Well, these lands were no good to these people, they are seafaring people without some waters.”

And — but you did not adopt the Presidential Proclamation which said that — in the — of 1916, which said that there would be 3000 feet around the lands.

You did not adopt it, but you did not reject it either.

You just refused to dignify it and held on a different grounds, although the Circuit Court went off on that grounds completely.

Now, under the Presidential Proclamation, the — it states that they shall have the exclusive right to fish this area subject to the general fisheries laws of the United States.

At that time, the United States held a municipal jurisdiction, as this Court observed in Hynes versus Grimes, held not only federal jurisdiction but you held municipal jurisdiction.

You held a jurisdiction to control fish and game of Alaska because there was no State there, and because it had been withheld from the territorial government.

You held both municipal and federal jurisdiction.

We argue that when by operation of law, when municipal jurisdiction over fish and game and over the inland waters comes to the State when the State is created that those are the general fisheries laws.

And if you want to look at the status quo, if there’s one thing the Congress did by Section 4, it said, “We want to reserve the status quo.”

That’s the reason that we weren’t worried about it.

The status quo was that everybody fished as equal under the general conservation laws.

We have always disagreed with the Department of Interior as to what conservation is.

But I don’t think this Court will argue with us what we think conservation is because I think that’s our determination and the appellant, Metlakatla, has admitted that the — the reason for banning was for conservation purposes.

Now, we argue that, although as — with any migratory resource, if you’re going to give someone exclusive right to fish, if you’re going to give them 80 acres and say no one else can trespass on this area, to shoot birds or anything else, if you want to give them 80 acres of water and say no one else can fish there, that’s all right.

We really aren’t trying to knock out that reservation unless as a last resort, we have to.

But we say this that giving them the exclusive right to fish under the general fisheries laws of United States, which are now the general fisheries laws of Alaska, the only reason you made general fisheries laws up there is because you exercised the powers of a state government in that area, there was no state government.

Now, there is a state government.

And the control of a migratory resource as this Court observed in Dow versus Ickes means nothing, means nothing.

And this was a fish trap case, Dow versus Ickes.

It means nothing unless it work — works to the final end of conservation and you don’t have a — and you don’t have a conservation chain with a reservation in the middle of it that — that reaps the fruits of conservation.

You can use dynamite and dynamites are the most effective way there is to fish.

If you really want to catch fish, dynamite.

That’s even more efficient than a fish trap.

But they’ve always said, “No”.

This is a migratory resource.

John L. Rader:

It has to be controlled as a migratory resource.

It has to be followed from the spawning streams, in the hills to the high seas.”

And our argument is, that Metlakatla, with the exclusive right to use this area did not have and does not have the right, the unregulated right to fish.

Now, by that, I mean to violate the state laws and follow the Secretary of Interior’s laws.

Hugo L. Black:

Are you saying in effect there that if a stream starts outside of a regular Indian reservation, flows through it, then flows out of it and continues to flow.

That the State that control how the water is used in that reservation, contrary to the Government’s idea of how it should be regulated?

John L. Rader:

I don’t know whether it would be applicable to a stream.

I don’t know, but I think it’s applicable to the inland waters.

Hugo L. Black:

You mean inland waters, it’s not a stream.

John L. Rader:

They’re not a stream, the inland waters of the State.

This is an island and it’s surrounded by waters of Metlakatla.

In fact, all of these are on islands.

Earl Warren:

Mr. Rader, I — I was wondering this if — if your interpretation of fishing rights is as limited as — as you have made it to — to us, it wouldn’t have been necessary to say anything of that kind at all.

Would it — wouldn’t it be necessary to make any reservation because when Alaska became a state, they would have that right, the same right of all other citizens.

So the Government must have intended something else when it reserved the rights of fishing in that reservation, mustn’t it?

John L. Rader:

The Government, you — you have to assume that — that they wanted to make a decision at that time as to whether or not there were fishing rights.

The Government did not want to make that decision.

The Congress did not want to make that decision.

And the — the legislative history is this.

That we neither enlarge nor destroy whatever these rights may be if any, and there may be some rights in other areas.

But today, we’re arguing about the commercial fishery and we’re arguing about corporations that have used fish traps for 12 years and in the case of 327 and since 1915 in the other case.

It may mean something some place else.

The Act said, “We’ll leave this to future legislative and judicial determination.”

And I think that — that the fact that they say there may be a right and now, these appellants are claiming it, doesn’t mean that there is a right because they cannot point to a grant or recognition by Congress of fishing rights, any place.

And this Act was intended to preserve the status quo to neither augment nor diminish the fishing rights of the Unions.

Now, it — it may have in some other — in some other area and in some other device, it — it may have as a different meaning.

But in the commercial fishery to where everybody had an equal right to these fish trap sites just like they have a right to go out and fish at a certain spot if they get there first.

There was no right to carry it over and so when we say this is a compact, and I insist that the intent of the State and the understanding of the State must be considered by this Court, as well as the intent of Congress.

And when they say the status quo, and we know the status quo in the common fishery to be this, equality, the right of all citizens that it has always been administered under the White Act by the Secretary of Interior.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

Yes, I — I departed so far from my prepared argument.

Yes, I — I — I’d be very happy though to answer any question I can right now.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

Our first point as I’ve said was the freedom in the fishery, no right.

These people must prove a property right that existed before statehood because if the status quo was preserved, that’s what had to be preserved.

The second one is the analysis of Section 4.

If we would — if we could turn to —

Earl Warren:

Do you — do you contest the jurisdiction of this Court?

John L. Rader:

No.

Earl Warren:

I — I understood that you had — that you had construed —

John L. Rader:

We — we’ve conceded that.

Earl Warren:

Yes.

John L. Rader:

We were in error in our earlier affairs.

Earl Warren:

Yes, I understood that.

Yes.

John L. Rader:

Incidentally, I think — before I turn the jurisdiction problem, if you’ll permit me just to make one observation.

And that is this.

That the Congress of the United States in the jurisdictional act, which gave rise to the — to the Tlingit and Haida Indians of Alaska versus United States, has recognized that all of the Indians of Alaska, aboriginal Indians of — of Southeastern Alaska, and that’s the area we’re herewith concerned, may present their claim to the Court of Claims, and if they’ll be compensated for whatever they lost, including fishing rights.

And the Court of Claims has so ruled because truly, whatever rights they once must have, they were lost now.

And the Court of Claims has ruled that the most valuable asset lost to the aboriginal Indians of — of Southeastern Alaska was their fishing right.

And the scheme becomes apparent.

Of Congress, the scheme was to compensate these people for the fishing right they lost because it was opened up to all citizens of Alaska — of the United States equally, and it had been pretty well diminished.

They have the rights of any other citizens now but they no longer have the exclusive right or special privilege or anything else because —

Felix Frankfurter:

But the whole — whole point of Section 4 is to qualify your egalitarian system by referring whatever special rights the Indians may have had because they were Indians.

That doesn’t tell me what those rights were, but the whole significance, unless, you just wipe out, sponge out Section 4 is to give Indians a treatment different from everybody else, the Indians and the other two native categories.

I think it would send a message.

The whole point of that is not to subject them to a uniform rule but to leave them whatever protection maybe accorded by the United States Government.

Isn’t that true?

Except that you say, “I can understand the argument.”

That’s unconstitutional, but you can’t pursue away Section 4 in creating and establishing a special packet of rights.

John L. Rader:

To what?

Property?

Felix Frankfurter:

By whatever they define that.

They say the property of other rights with — including fishing right.

And that’s why we’re here to ascertain what fishing rights are — in the first place, what the category covers and whether this comes within the category.

John L. Rader:

That’s correct.

But disclaiming property rights —

Felix Frankfurter:

I just saw your — your engaging argument, if I may say so, is — is on the fact that — that Alaska is such a — attractive model place where everybody run for their equality with everybody else.

John L. Rader:

That’s not true.

We have people there from every state in the Union, but the tenor of Alaska is, is racial equality.

Felix Frankfurter:

Yes, I understand that, but this, this makes a differentiation.

And — and it carves out — and reserves, carves out for — for legal right subject of the rule of the — the authority of United States Government, not suggested by others in Alaska.

John L. Rader:

But it’s a property right, Your Honor.

Felix Frankfurter:

That brings me to the — that raises a question as to what is included.

I’m merely suggesting that the — your theme song of equality, of racial equality in Alaska doesn’t answer the problem of what was reserved if it could be reserved.

John L. Rader:

Well, there was one thing that we — and this is the only thing that we have to show, I think, in this litigation is that we did not disclaimed jurisdiction over our citizens when they begin to fish on the basis of race.

If we can disclaim property and Section 4 was a disclaimer of property right, but we’re talking about sovereignty and we’re talking about our citizens.

Felix Frankfurter:

Well, you can’t under the guide that you’re exercising, except the brief of our argument.

You can’t say, “Oh, you’re not interfering with property, you’re merely asserting sovereignty.” That’d be an easy way out of nullifying the whole scope if it has any scope, any constitutional scope with Section 4.

John L. Rader:

For these appellants perhaps, there may be others who have a property right.

Felix Frankfurter:

Well, that takes one to the substantive question of whether these are property rights in a sense of the parenthetical including fishery rights, but it — it isn’t met by suggesting that with the operation quality as admirable as that is.

John L. Rader:

Well, it is destroyed.

That admirable faith is destroyed, unless — unless we’re correcting this.

Felix Frankfurter:

Well, it isn’t destroyed, not on the theory that Indians are the wards of the United States Government and the wardship doesn’t cease upon the territory becoming a State.

John L. Rader:

But must not that principle be limited to the intent and purpose of the principle because this is what —

Felix Frankfurter:

You can’t —

John L. Rader:

— there are citizens too.

Felix Frankfurter:

(Voice Overlap) the principle can’t destroy the qualification, otherwise, there isn’t any.

William O. Douglas:

I thought your argument was that the fishing rights that they — they’d be considered a property interest where — as all people in Alaska were always subject to whether Indians are not to general regulations.

John L. Rader:

That’s correct.

William O. Douglas:

— by that, by the Federal Government.

John L. Rader:

That’s correct.

Felix Frankfurter:

3Well, everybody could fish, but everybody didn’t have the guardianship of the United States Government, if guardianship, it was created as — as appellant, you say they were by the various acts of government and set aside this tribe, if it did set it aside.

John L. Rader:

Well, how was that guardianship expressed?

If we look at the — if we look at — United States versus Kagama, and look at the test of — of when the United States will extend itself to the protection of wards and consider the — the Indians to be wards.

If we look at those tests, these people don’t need it.

And — and the fact that the Secretary of Interior decides that they may or may not need it when — when it — when the consequence of that is to deprive of — us of our sovereignty, we think we have a right to contest it.

Here, these appellants are business corporations.

Felix Frankfurter:

Were there schools for these Indians?

John L. Rader:

Yes, state schools.

Felix Frankfurter:

And what was it?

Pardon me?

John L. Rader:

State schools.

Felix Frankfurter:

Before there was a state, were these —

John L. Rader:

They were federal.

Felix Frankfurter:

They were federal — there were schools under the authority of the Bureau of Indian Affairs, was it?

John L. Rader:

Yes.

Felix Frankfurter:

So that in all sorts of ways, the United States Government as the protector, never mind how wise or unwise, these are the tests that’s carried out.

In all sorts of ways providing schools, health provisions, etcetera, the Department of the Interior, through its Bureau of Indian Affairs, that’s what they were called, took measures on their behalf, is that right?

John L. Rader:

Yes.

Felix Frankfurter:

You can do that whether you’re white folk, isn’t it?

John L. Rader:

Well, I think that the United States — actually, the white folk have been wards of the United States too.

The — the territory has been treated very differently in a public health and in a great different — great many matters.

Felix Frankfurter:

But — but why would these Indians been treated differently because they were Indians and because they were under the or oversight or administrative regulation of the Secretary of Interior.

Weren’t they in all sorts of ways?

John L. Rader:

Well, in 19 — whenever they formed their corporations and he loaned them money, that was a different treatment than it was for —

Felix Frankfurter:

But you didn’t — they didn’t —

John L. Rader:

— for white communities.

Felix Frankfurter:

But that money is to white folks then that —

John L. Rader:

No.

Felix Frankfurter:

So that — so that in actual governmental deed, there was a connection, a relationship between these Indians and the Indian office, which showed that there was a tie between them as Indians and just the department head oversight of Indians for the Federal Government.

John L. Rader:

They’ve had dealings.

They’ve had — it’s a corporation, but we insist this.

That the power of the United States — we have two powers here and it’s hard to tell what power they were exercising when we were a territory.

They had the plenary power to govern the territory regardless of Indian tribes or anything else.

They could have taken a community of Swedes.

And — and the United States could have and organized and loaned them money in the corporations for business purposes.

Felix Frankfurter:

Yes.

That was a separate department of — within the Department of the Interior, whatever it was called, possession and outlying dominion.

John L. Rader:

Yes.

Felix Frankfurter:

That was one thing, but the Indian office was another thing and that had responsibility for Indians.

And these people did come under or within the responsibility of the Indian office in all sorts of ways, lending them money, creating schools, special schools, probably a special health service, isn’t that true?

John L. Rader:

Yes.

Earl Warren:

Mr. Rader —

Felix Frankfurter:

And they — they were differentiated then from the rest of the multi racial equal treatment population that was asked for.

John L. Rader:

That doesn’t necessarily follow.

We have 59 Indian corporations.

The instructions of the Secretary of Interior are that they can be formed in Juneau.

They can be formed in Anchorage.

If all you have to do is be of Indian blood and have a common bond of residence or occupation to form — to be in one of these corporations.

Well, that’s all you have to do.

And I — and I — I can’, for the light of me, believe that that and that alone would be enough to destroy what we think is very valuable.

Earl Warren:

Mr. Rader, would you mind speculating for a moment on what the future of these Metlakatla Indians would be if — if the Government summarily close these fish traps?

John L. Rader:

The — we’re in a dust bowl and anyone that depends upon the fish in Alaska is in tough shape and that includes these people.

But it’s so easy to — to shift their means of catching fish from a fish trap to boats.

That’s the way the rest of the Indians in Alaska fished.

That’s the way the Kake and Angoon fished until 1948 and 1950, they’ve only relied upon this device for 10 or 12 years.

Of course, it’s going to hurt them.

And I can’t help that that hurts them.If they’ll be for, I presume, the executive branch of the Federal Government, if they — if they — want to assist, to assist and up to the State to assist.

But the — the fact remains that you cannot take a sick industry and all the rest of the communities in Alaska to not take a sick industry and suddenly be well again.

John L. Rader:

No matter what we do, with or without the fish traps, this will hurt.

It will require a shift in policy as every community that has had fish traps or every group of people or private citizens or canneries and a lot of them have closed.

It does hurt because the resource is sick.

Earl Warren:

The only reason I was thinking in those terms was because I understood from what has been said here that — that that’s all there is to this little community, the fishing and they are wards of the Government, are they not?

John L. Rader:

Metlakatla?

Earl Warren:

Yes.

John L. Rader:

Well, that — that gets us into their whole status.

It’s a — it’s a state school.

It’s state laws.

They pay state taxes.

They send representatives to the state legislature, things of that nature.

And I — if you want to call them wards of the Government, in one sense, they are.

The Government has extended a — a hand to them, which everyone appreciates, and which I think could be extended after this litigation no matter what happens to it.

But — and we do — we do not think that you can — you can destroy our sovereignty in that process.

And we think that for these villagers, what did these villagers think when they voted against fish traps?

What did Angoon think when they voted 127 to 7 against fish traps that when fish traps are finally going to abolish, what they would do.

This is what they knew and what we all believed.

And that is we depend upon the resource.

The fish traps have destroyed the resource.

We will abolish our fish traps if everyone else will abolish theirs.

And we will use boats.

And of course, it’s going to hurt.

But in 10 or 15 years, perhaps we can rebuild this fishery.

The way it is now, it’s a — it’s been a consistent lying down for 50 years and I don’t doubt for a moment that — in fact, believe me, I don’t believe that these — that these people would be fishing in these fish traps if it were not probably for their economic situation.

Felix Frankfurter:

Well, that’s why people engage in economic affair.

John L. Rader:

That’s right.

Well, but then they — they understand well what the fish trap issue is and has been and their position in leading and fighting for the abolition of fish traps.

Hugo L. Black:

But precisely, what is the difference to which you refer the boat fishing and trap fishing?

John L. Rader:

Well, a fish —

Hugo L. Black:

Is one a kind of a mass catching and one not?

John L. Rader:

Yes.

This — it’s a — a fish trap is a– underwater throughout, so to speak.

There’s a lot of different types of fish traps, but these are floating fish traps.

They float out of three city blocks, 900 feet into the water.

They’re anchored with 5000 pound anchors to hold them away from shore.

They have to be put in position by large tugs and things like that.

They have a wire that extends — the lead goes from the trap to the shore.

And the lead is a wire fence that extends from the surface of the water to the bottom of the ocean.

And the migratory salmon in seeking their freshwater streams to go back to their spawning grounds go along the coast, they hit this lead.

They can’t pass.

They wary along the lead until they come out to the end of it, and at the end of it is a theory of ever confining spaces.

The fish will finally come and swim into one space and — by — by fins and so and so forth while he finally ends up in a pot.

And then you come along with a brailer.

You brail out your fish trap and you take out tons of fish and put them on a scuttle.

Hugo L. Black:

Will be tons of fish.

John L. Rader:

Tons of fish.

Hugo L. Black:

How does the boat fisherman goes?

John L. Rader:

The boat fisherman has a net —

Hugo L. Black:

He fishes with a net too?

John L. Rader:

With a — with a — well, this is a — there’s — the net is something like I a pick up with my both hands.

Hugo L. Black:

Small net — small net.

John L. Rader:

Yes.

It’s a — it’s cloth net.

Hugo L. Black:

How long are they?

John L. Rader:

They vary in — in different places.

It’s all set out in the regulation.

I think some of them — I think they vary from — I think around 200 — 250 yards, something like that.

Earl Warren:

Set almost as long as the traps.

John L. Rader:

Almost as long.

They’re not as deep and the — the efficiency of the net is — is not a fraction of what a trap is, but they do — they are long in some areas and then they have set nets that are a lot shorter.

John L. Rader:

And they may be 50 or 100 yards long.

The set net is anchored to the beach similar to a fish trap.

Hugo L. Black:

Is that the main kind of fishing that the other Indians do who do not own the fish traps?

Was that the kind —

John L. Rader:

That’s the only kind they can do.

Hugo L. Black:

What did you say?

John L. Rader:

That’s right.

They had no other — no other way to do it to see this —

Hugo L. Black:

It’s a kind of a mass fishing too or something.

John L. Rader:

It’s a mass fishing, but it doesn’t hold accountable to a fish trap for efficiency, ability to —

Hugo L. Black:

Question of quantity.

John L. Rader:

It’s a — it’s a question of efficiency and quantity.

There is the additional — as I say, this is disputed but — there are many who believe that a fish trap has the ability to swallow a complete school and thereby, leave a stream bare.

Well now, how active that is, it’s hard to say.

That’s debatable.

We just don’t know that much about the fish, but we do know every so often we end up with a barren stream and fishermen have ways of deducing these things at a — I don’t know if they’re accurate or not, but that’s certainly what a lot of them believe.

Charles E. Whittaker:

This is a matter of interest.

How — how do they get the fish out of this trap?

John L. Rader:

There’s a brailer.

William J. Brennan, Jr.:

A brailer or —

John L. Rader:

Well, we call it brailer.

William J. Brennan, Jr.:

How do you spell that?

John L. Rader:

B-R-A-I-L.

Brail.

It has a — it has a false floor on it that’s made out of a net and the — the scuttle comes along size —

Charles E. Whittaker:

And raises it?

John L. Rader:

And raises the whole thing and pulls it up in the air like this and it dumps in — throws the fish into the scuttle.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

It’s quite an operation.

Congress in the — in Section 4, if we want to construe the intent, particularly as — the — the legislative history on Section 4 has preserved the status quo to neither enlarge nor decrease Indian fishing rights.

John L. Rader:

The congressional history as to the commercial fishery of Alaska, if you go back before Hynes versus Grimes, go back about 1916, Columbia River versus Berg, it was held then that there was no exclusive right to anyone in a — into an exclusive fishery of Alaska.

You have the Hynes — You have the White Act of 1924, where Congress specifically prohibited any exclusive fishing right.

This Court in Dow versus Ickes, when fish traps were destroyed by a regulation of the Secretary of Interior in 1934 or thereabouts, this Court held that no one had a right to a fish trap.

In Hynes versus Grimes, when the Secretary of Interior attempted to give the Karluk Indians a reservation, it was held that he could not do so, a single amount, give them special treatment.

Section 6 (c) of the Statehood Act talks about turning over to Alaska its commercial fisheries on a certain timetable which has now occurred and actually, as a matter of act, this litigation occurred when Section 6 (c) was in effect.

Section 6 (c) said that the Secretary of Interior shall have the right to continue to manage Alaska’s fisheries until such time as he certifies the Congress of the United States that they have made adequate provisions to protect and manage the resource he has certified.

In other words, the Statehood Act itself indicated, there would be a turnover to the State of its fisheries.

Section 6 (c) also calls for the transfer of all the property of the Federal Government used in the policing of these fisheries and that’s boats all the way from 15 feet to 100 feet long to turn them over to the State to police the industry, to police the fishery.

We argue that because it was — it — it shows the complete withdrawal of the Federal Government from the regulation and control of the fishery, and the complete transfer by every means apparent to Alaska of the means and the methods, the property to control that fishery.

And here we have Indians who are 42% of our commercial fishermen who are no longer under our control under the theory of Kake and Angoon.

Under the theory of Metlakatla, if they confine themselves to the reservation, it’s a different problem.

But on the theory of Kake and Angoon, it cannot be stopped there.

Then are two — then on 59 corporations.

Charles E. Whittaker:

Do you agree that if in fact there were any fishing rights vested in the Indians or in United States as trustees for them under Section 4 that depend — that the surrenders under Section 6 were subject to those reserved rights by 4?

John L. Rader:

If there was a property right, I would say yes.

Charles E. Whittaker:

With all the fishing right.

John L. Rader:

Well, that’s —

Charles E. Whittaker:

You — you think it has to be a tangible right, a — if it may not — not be of a right in a consent to fish a particular place in a particular way?

John L. Rader:

There could be a particular place, but when — but — but there was no disclaimer of jurisdiction as to the control of its fisheries of sovereignty.

Charles E. Whittaker:

It depends on how you read Section 4.

John L. Rader:

It certain — yes.

Yes, sir.

Well, Section 6 is subject to whatever Section 4 reserved.

John L. Rader:

I — I would think that it would be.

I — I only bring it up to as — as persuasive as to the intent of Congress to turn over to us what — what appears to be — control the fishery at the same time, say 42% of the people in the fishery though, aren’t under your control.

They didn’t intend any such thing.

When Congress said that they were going to preserve the status quo and not tinker with — with native rights, I think that’s what they meant and I think that you have to look at the picture before statehood and after statehood to see what they have today and they never had a right to fish with a fish trap by nature of a property interest or an aboriginal right, because it’s a different type of device.

Felix Frankfurter:

What if they had — pardon me.

If they had fishing rights, those rights aren’t the exercise of the right, aren’t limited to the means by which they enforce the right 30 years ago or 15 years ago or 10 years ago or years ago.

John L. Rader:

Well, I think that those rights —

Felix Frankfurter:

(Voice Overlap) rights, that means they had the right to get fish, and not to get them in a particular way.

It might be all sorts of improvements that are themselves in the interest of conservation.

The old construction would shut them off, would say that they could only fish the way they fished that their ancestors fished.

John L. Rader:

No, our construction doesn’t do that.

Our construction says if they fish on the same basis of every other citizen —

Felix Frankfurter:

Well, I’m —

John L. Rader:

— which is the way they fished since anybody up there knows any differently.

They’ve always fished that way and we — Congress says status quo, we think that’s what they meant.

Felix Frankfurter:

But Congress didn’t say status quo, you — you’ve said that so many times as though that were written in the statute.

We lawyers always do that.

John L. Rader:

I —

Felix Frankfurter:

We replace their phrase and then go on and assume it’s in the original.

John L. Rader:

Well, returning to the — to that problem, I have said status quo because the language that the parenthetical phrase is not very explanatory, but the committee reports on page 30 of our brief, the Committee report to the 88th Congress states that, “It has provided that no attempt will be made to deal with the legal merits of the indigenous rights, but to leave the matter in status quo for either a future legislative action or judicial determination.

I’m trying to make some sense out of what Congress meant by fishing rights.

Felix Frankfurter:

Why is this — right is a very different thing than to say they must be restricted to how they enjoy them at the time they enjoyed them.

John L. Rader:

Well, can it say — yes, but can you say then that — that they are completely unrestricted as to anything that — if this was a compact — well, I — I don’t know how to answer your question.

Felix Frankfurter:

Cover — cover that English word.

Imagination of people who draft in compact is limited.

That’s why we have lawsuits.

William J. Brennan, Jr.:

As a matter of fact, Mr. Rader, didn’t that parenthetical expression come into Section 4 rather late including fishing rights.

John L. Rader:

I think it came in, in 1952.

It’s been in there quite a while.

I mean in — in these predecessors of the Statehood Act.

William J. Brennan, Jr.:

It was not on the original proposal for Section 4, was it?

John L. Rader:

Yes, of — of the bill that was finally passed.

In fact, it’s been — it’s appeared in every Statehood Act since 1952, in front of everything — every Congress, there has been a Statehood Act proposed.

William J. Brennan, Jr.:

And — and this parenthetical expression lean on —

John L. Rader:

And I believe that this parenthetical expression has appeared in all of them.

Appellant Metlakatla withdraws that out very nicely in the legislative history, and that’s my recollection if they’re correct on it.

Charles E. Whittaker:

Would you mind my asking (Inaudible) What — is there a possibility that (Inaudible) agree in court within the period sought, appealed where (Inaudible)

John L. Rader:

Well, it — it wasn’t in existence.

Charles E. Whittaker:

Well judges (Inaudible) were they not during this appealed period?

John L. Rader:

Yes.

Charles E. Whittaker:

Don’t we — does the Court have to resist (Inaudible)

John L. Rader:

Well, I don’t know.

They didn’t have any rules and they didn’t consider themselves in existence from the point of view of — of dates or — or work or anything else.

I mean, the — maybe they were in existence, maybe they weren’t, but —

Charles E. Whittaker:

The rules were taken indeed on September 26th, were they not?

John L. Rader:

I — I think it’s October the 5th.

Charles E. Whittaker:

That’s the date of the — the effective — or the date September (Inaudible) you maybe right (Inaudible) —

John L. Rader:

Perhaps they were dated — and I think the effective date though was October the 5th.

Earl Warren:

And there were no courts in existence from which they could take appeals at that time, were there?

John L. Rader:

Well —

Earl Warren:

In that — on October 5th.

John L. Rader:

Yes.

Earl Warren:

It came into being.

John L. Rader:

They — they were taking — they took appeals from the interim federal courts.

Earl Warren:

From that date on?

John L. Rader:

From that date on.

Earl Warren:

From that date on.

John L. Rader:

Yes, and they made it retroactive too.

Earl Warren:

Yes.

John L. Rader:

The rights of appeal.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

Not without jeopardizing — very seriously, not without taking a chance that — that they would hear the appeal.

I would have had no assurance.

In other words, their time ran out before the Supreme Court rules were effective and I presume that the Supreme Court rules would be —

Charles E. Whittaker:

What do you mean by rules?

A court doesn’t have to have rules to have jurisdiction, does it?

John L. Rader:

Well, our state statute said that the State Supreme Court may hear appeals from the interim courts.

John L. Rader:

It was contemplated that at the time that statute was written by the State that perhaps reducing interim courts for up to three years.

The Parker versus McCarrey decision of the Ninth Circuit, when it declined jurisdiction, threw us in a position of having to organize a state court as rapidly as possible, and it was a question, vantage, around — quite a lot around Alaska as to whether or not the — the State Supreme Court would back up and take appeals which had been — of cases which have been processed since statehood by the federal courts and which the Ninth Circuit wouldn’t hear.

And I didn’t know for certain whether they would or would not, and I do not think that these appellants could have known for certain whether they would or would not.

Therefore, they had the appeal here, the record had been sent here, the Court up there was not property, that they’d handed someone a piece of paper that wouldn’t have anything that happened.

Charles E. Whittaker:

There was an appeal anytime taking their (Inaudible)

John L. Rader:

Yes.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

The State Supreme Court has withheld, passing on jurisdiction, pending a determination by this Court as to its jurisdiction.

Charles E. Whittaker:

But under its rule has the (Inaudible)

John L. Rader:

Under its rules — this is a type of case that could be — could have been appealed.

Charles E. Whittaker:

We know around or about this situation (Inaudible) is it not?

John L. Rader:

Well, I — they probably would know more about the state intent, but we’re not urging at all that this be sent back there because we consider this to be a critical problem and the fishing season is upon us and the — the questions are going to have to be decided and the quicker they’re decided, the better off that these appellants will be in the State.

Felix Frankfurter:

Let me ask you, Mr. Rader, a little problem by dates.

When was this case decided below in the — in the District Court?

John L. Rader:

July the 2nd, I believe.

Felix Frankfurter:

2nd of July, when was the 90 days out?

John L. Rader:

Well, I think some back it appeared to be October the 2nd.

Felix Frankfurter:

Well, I noticed that the rules of the — of your Supreme Court were promulgated on the 25th of September, also that rule be promulgated by a court that wasn’t in existence.

John L. Rader:

Well, it — it certainly wasn’t doing any business in the effect, the date of the rules.

Felix Frankfurter:

Well, this Court was in existence, the Supreme Court of United States was in existence for some time, and didn’t have any business and the Court adjourned again and again and again because there’s no business because the Court — but the Court was in existence starting September 24, 1789.

When we —

John L. Rader:

Implied just as soon as —

Felix Frankfurter:

President Washington amended.

Hugo L. Black:

The effect of your primary judgment formula.

John L. Rader:

During September?

During August, I believe, two judges were appointed and one federal judge was appointed.

He went on 30 days.

I think he was appointed around the 1st of September.

That was a relic in the 90-day period though.

Felix Frankfurter:

So they (Inaudible) Juneau, Alaska this 25th day of September, special application of rule, rules of the Supreme Court of Alaska.

John L. Rader:

That would have been probably the Chief Justice of our State Supreme Court.

Felix Frankfurter:

Well, there must have been any — there must have been a court (Inaudible)

John L. Rader:

Excuse me just a second.

I beg Your Honors’ pardon.

My associate directs my attention, takes three judges under our state law to have a Supreme Court and that the last one was appointed on September the 2nd.

Charles E. Whittaker:

Was appointed September 2?

John L. Rader:

Was appointed September 2nd.

Felix Frankfurter:

And then they must have gotten together somewhere and formulated these rules and the date of them.

John L. Rader:

Yes, they did.

Felix Frankfurter:

I just think one could look, go to the inference, it’s in the Supreme Court of Alaska was in being, couldn’t one?

John L. Rader:

Well, maybe it was at being, but could these appellants appeal to it.

Felix Frankfurter:

Well they have the rules which told them how to appeal and what to do.

John L. Rader:

Well, the rules weren’t effective within the period of time that they had to take their appeal to this Court.

William J. Brennan, Jr.:

Well now, why are they dated September 25th was — as setting up some —

John L. Rader:

I think —

William J. Brennan, Jr.:

— some other promulgation of the Court which made them effective later than that day?

John L. Rader:

I think the rules themselves make their effective date October the 5th and they were promulgated, I think, on the 26th —

William J. Brennan, Jr.:

Well, these (Voice Overlap) —

John L. Rader:

— as a matter of publishing.

Felix Frankfurter:

(Voice Overlap) effect on those.

There was a —

John L. Rader:

Well, I could be in error on that.

Felix Frankfurter:

When was — when was the time up to the year and with the 90 days?

John L. Rader:

October 1st or 2nd.

September 30th.

Counsel tells me September 30th.

William J. Brennan, Jr.:

Well, I — I see these as rule 53.

These rules would take effect on October 5 even though —

John L. Rader:

Yes.

In other words, they were published for 10 days before they became effective.

William J. Brennan, Jr.:

Yes.

Felix Frankfurter:

There must be — there must have been somebody — somebody to news mails and — and could have dropped the notice of appeal, wouldn’t you?

Well, there is a petition, a notice of appeal pending there now.

John L. Rader:

Yes, that was filed though I think December by these appellants.

If this — if this Court, the summaries will explain jurisdiction, I think we should.

The Supreme Court, there is a procedure of the Supreme Court of Alaska that —

John L. Rader:

The Supreme Court of Alaska does not note a jurisdiction.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

It hasn’t expressed anything (Inaudible) other than they would wait for the outcome of this Court.

Charles E. Whittaker:

(Inaudible)

John L. Rader:

I think that the appellants there have filed a notice of appeal.

Well I — I guess you’re right.

They haven’t been asked to it.

Charles E. Whittaker:

(Inaudible) that to decide to dismiss the appeal it’s been taking, is that all — is that right?

John L. Rader:

I’d have to ask the appellants themselves as to what action they did request to the State Supreme Court.

As I recall, they filed only the notice of appeal and — and made a motion to have everything held up pending, a determination by this Court or the —

Earl Warren:

Under the rules of your Court, your Supreme Court, how much time would they have to appeal from the judgment in — in a judgment to this fact.

John L. Rader:

I believe that they had 60 days from October the 5th.

Earl Warren:

From October 5th.

John L. Rader:

From October the 5th.

I believe that’s correct.

Earl Warren:

Even though the judgment was earlier?

John L. Rader:

That’s right.

Charles E. Whittaker:

We both made jurisdiction to the merits in this case.

John L. Rader:

Yes.

I’d like to ask you a precedent supposing this case did go back to the Supreme Court.

And stayed it and was in fact now was to continue on practical congressional — except the desire of lawyers to get decisions from this Court.

John L. Rader:

Well, the fact of a judgment is that if we do go back, it’s just a matter of days, I presume, until we’re back here.

Charles E. Whittaker:

Why?

Why?

Charles E. Whittaker:

(Inaudible) to decide the case.

John L. Rader:

Well, I — I —

Earl Warren:

You mean the satisfaction of both sides?

[Laughter]

Recently come up here with some — some light of the local court as to their views about it, and that we don’t have now.

John L. Rader:

Well, certainly, that would be helpful.

We noted that in our argument that this case should be declared moot because it was done under 6 (e) that if further judicial refining and processing along the line would probably be distinctly helpful but it — we don’t construe it to be in the interest of the State or the people of the State nor an interest of these appellants to have this thing delayed any longer because of the imminence of the — the problem is becoming pretty critical.

Felix Frankfurter:

When — when is the fishing season.

John L. Rader:

It will start within about three weeks.

Potter Stewart:

So that that there had to be a new restraint, I take it or something to prevent application of the state laws since this was last year.

John L. Rader:

Well, I think that the one you have entered probably still restrains us through this season because it wasn’t limited just to 1959.

It was little bit broader from that.

Tom C. Clark:

Well, you wouldn’t be affected at least.

John L. Rader:

We wouldn’t be affected —

William J. Brennan, Jr.:

I will comment on that thing.

Tom C. Clark:

Well, wouldn’t (Inaudible)

[Laughter]

John L. Rader:

I —

Tom C. Clark:

Wouldn’t be an emergency then talking (Inaudible) — on our acts would not take effect until next (Inaudible)

John L. Rader:

Well, there’s emergency as to whether or not they’re going to use these fish traps this year.

Tom C. Clark:

Probably, we should’ve stay on that —

John L. Rader:

Well, that —

Tom C. Clark:

(Voice Overlap) that.

John L. Rader:

Well, that — that’s staying perhaps will go on forever.

We — but — but on the merits —

Felix Frankfurter:

And we dispose the case.

John L. Rader:

Yes.

But —

Tom C. Clark:

That came up in June as they were disposed of June and July or I (Inaudible)

John L. Rader:

In fact, the purposes would be, well, not in June but if you wait until — actually, the season will be over pretty well on August.

William J. Brennan, Jr.:

Well, actually Mr. Rader, as I recall it last year, it takes sometime to locate these fish traps and if the season open within three weeks, I take it, they’re in process of being located now.

John L. Rader:

I — I believe that they are.

I think that they like everyone else we’re trying to withhold them as much as they can until they find out what happens here but I think that they had been forced already to make preliminary expenditures, preliminary purchases because if the opinion is in their favor without using if is not to minimize their loss.

I think they’re trying to withhold but I’m certain that they have incurred some expenditures.

Hugo L. Black:

Can you think of any determination that the State Supreme Court could make that would prevent — that justifies and say it’s been disposed of wholly on state ground, and we therefore don’t have to decide anything else to that?

John L. Rader:

I think that there will be a construction of the compact between the State and United States which is Section 4 no matter who losses this case in front of the State — State Supreme Court.

The other party is going to be here probably unless — well, of course if the state lost, why we wouldn’t —

Felix Frankfurter:

What — what’s the status again?

No matter who losses, somebody will be here again?

John L. Rader:

Well, no.

I — I — it was too broad, I’m sorry.

[Laughs] I Apologize.

Felix Frankfurter:

For what — what — do you have (Inaudible) Mr. Rader?

John L. Rader:

Well, the question — the question was —

Hugo L. Black:

(Voice Overlap) way it could be decided, I asked because I think it’s what Justice Frankfurter onto say.

Any way it can be decided so that you can foresee that we wouldn’t have to decide this federal question.

John L. Rader:

I don’t — I — I’ve just — as a practical matter, I don’t think so.

I think that — that it’s going to — it’ll — it’ll rest on this Court finally one way or another.

I feel certain of that.

And I — and I think that because I feel that way, I — I urge upon the Court to — to take it now and decide the question so long the facts indicate this.

Charles E. Whittaker:

That’s why do you make a (Inaudible)

John L. Rader:

Well, it’s partly.

Partly, it was certainly no longer to our interest.

If this — if this Court had ruled against jurisdiction or had ruled that the case was moot six months ago, then there could be a new lawsuit brought on the new regulations and we probably could have been here before the fishing season and it would still been a lot better.

But when we get into the situation we’re in right now why it — it’s very damaging to have this go on any longer and we’d like to have it decided.

If there are no further questions, thank you very much.

Earl Warren:

Mr. (Inaudible) —

John W. Cragun:

If the Court please, Mr. Schifter has requested that I reply for the appellants in Number 326 as well as in 327 under represented by me.

He particularly requested — I’m told by counsel for Alaska that there is some question up there as to whether the appeals taken by these appellants to the Supreme Court was timely under the Court’s rules which gave a retroactive right of appeal after we had already come here.

I was not aware.

John W. Cragun:

Those appeals were filed the very day that counsel were served with the reply to the briefs filed by appellants on the motion to dismiss.

They — I said they were filed.

They were prepared and they were mailed from Washington, airmails as a precautionary matter to be sure if this Court were to hold that these people did have a right of appeal to the Supreme Court of Alaska which certainly was — I must disagree, it was in existence.

It simply wasn’t organized under the Alaska law.

It was created by the Constitution no judges, no clerks.

William J. Brennan, Jr.:

We couldn’t — we couldn’t determine whether the Alaska Supreme Court would have moved here this (Inaudible)

John W. Cragun:

No, that’s perfectly true.

You could not but I — I was starting another thought.

I interrupted myself really, Mr. Justice.

And the other thought was this that you won’t see the predicament of counsel for these appellants, has now suggested that retroactive right of appeal has give — been given.

We see, there’s three or four days when this first comes to our attention within which we might take that appeal.

We mailed off a notice of appeal without copies of the rules, without copies of forms or anything else airmailed asking them to be docketed although we were not members of that bar.

It’s a rather desperate thing if you look it apply to these Indians and this Court should throw them out here, then this matter is res judicata.

We never get to the Supreme Court of the United States.

The legal issue has been forever determined and we have been denied the review.

Felix Frankfurter:

Why do you say that (Inaudible)

John W. Cragun:

I think —

Felix Frankfurter:

Where — where is that — why is any action that this Court may take as suggested in the other end of the bench with the view of getting perhaps more light on some of the local situation, that I mean on the economic.

What I mean — why would — why would such action necessitate the disposition that’s — without raising res judicata.

John W. Cragun:

It wouldn’t now.

I say that if we have not taken the appeal and this Court denied jurisdiction, then we would be foreclosed forever on these issues of law.

That motivated us to file an appeal if we could to ask with our non-membership in the bar be waived and to ask would be postponed pending determination on the issue.

Felix Frankfurter:

So no one — no one suggested you want to allege as to bring it.

John W. Cragun:

[Laughs] I’m quite aware of that, Mr. Justice, and thank you.

Could I ask you one more question?

John W. Cragun:

Sir.

When does your — is your Supreme Court in session now?

John W. Cragun:

I have no information as to the —

So your Supreme Court, excuse me on that.

John W. Cragun:

Supreme of Court of Alaska shall have to defer that to —

Felix Frankfurter:

Your Supreme Court is right here, isn’t it?

John W. Cragun:

That’s correct, sir.

[Laughter]

So as ours Your Honor but our State Supreme Court was in session.

Felix Frankfurter:

You have too?

John W. Cragun:

Mr. Schifter had requested that I read the following paragraph from an affidavit of the Mayor of the Metlakatlan Indian community which appears at page 37 of the record.

And that’s the first transcript of record, not the supplemental.

It has been referred to persistently as raising a question of a concession on the part of Metlakatla.

The final paragraph in that affidavit says that the purpose in seeking ban on the use of fish traps in Alaska was to conserve the runs of salmon.

That the use and operation of the four fish traps of the community — well in but a very minor manner if any affect the conservation of salmon in Alaska waters.

That the State of Alaska will not suffer any material damage if the traps are permitted to be operated while on the other hand, if the Indians of the reservation are denied the right, they will suffer irreparable damage and loss.

It’s his feeling that a good deal of moral was read into that paragraph than the paragraph deserved.

I want to recur to the references that had been made to the basis of the secretary’s action in authorizing these fish traps.

I think perhaps it’s best shown by the new regulations which are proposed and in the red appendix at page 34 and 35.

We find the places set forth in the federal register as is required.

We find that the authority is not merely the White Act to which reference was made but that it comes under Section 2 and 9 of Title 25, Section 485 of Title 5 and cites other acts.

Now, I think that a little more could have been said on Title 5 of the U.S.Code.

They cite Section 485 which says the Secretary of the Interior is charged with the supervision of public business relating to the following subjects first and then second, the Indians.

They did not cite Section 22, the so-called housekeeping statute on departmental regulations which applies to all departments and says, “The head of each department is authorized to prescribe regulations not inconsistent with law for the Government of his department and the performance of business and two or three other including custodial matters.

The sections with respect to Title 25 of the Code, Title 25 as Indians, Section 2 which is cited in this assertion of authority on the part of the Interior — of the Secretary, says, “The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior and agreeable to such rule regulations as the President may prescribe in the management of all Indian affairs and of all matters arising out of Indian relations.”

And the other sections, Section 9, the President may prescribe such regulations as he may think that for carrying into effect to the various provisions of any act relating to Indian Affairs and for the settlement of the accounts of Indian affairs.

The next item on which I was concerned arose in response to some questions of Mr. Justice Douglas respecting Hynes against Grimes Pack — and refer to the fact that he had decided that the Court’s opinion is something else.

I must confess that I have the same misunderstanding of the holding in Hynes against Grimes Packing as had Mr. Justice Douglas if I understood correctly his questions until I got around to studying it for the sake in this case.

Hynes against Grimes Packing held very flatly concluding at page 116 that there was a valid establishment of an Indian reservation at Karluk in Alaska.

That the Secretary of the Interior did have authority to establish it, but it then went on to hold concluding at pages 122 and 123 not as I have sort of vaguely recalled the Court held and as I believe we shared by one member of this Court but to say 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.

Now, the holding of that case is not as I understand it but because of the White Act, no such rights could be accorded by the Secretary but that he had ceased the wrong authority and you couldn’t say that the White Act authorized him to put an exclusive right in the hands of the natives.

He would have to look elsewhere and the balance of the opinion carries that distinction through all of it.

I’ve been further concerned with the references that would indicate that while Metlakatla may very well be confined to the island down there that Southern tip of Alaska where it lies for each fish traps, that somehow under Kake and Angoon have a role making profit to go all over Alaska and fish, fish traps wherever they want to.

I wish to call attention to the President proposed regulations, if I may, at pages 36 and 37 of this red appendix.

The Court will see that as to Kake and Angoon, I omitted of course, the ones respecting Metlakatla then in Mr. Schifter’s brief, the locations of the 21 traps, or as distinctly specified by latitude and longitude down to the second and they can’t operate the 21.

John W. Cragun:

They’re permitted to be permitted in this season to operate only 13 in all.

I further wish to call attention to —

Earl Warren:

How long did you say?

15 days?

John W. Cragun:

There are — there are 13 traps which are authorized to be fished in this season but there are only 21 sites that the Secretary permits.

If I may have had a slip of the tongue referring to time instead of number of traps, I’m sorry.

Earl Warren:

I see.

William J. Brennan, Jr.:

Mr. Cragun, do you know whether similar regulations before 1959 when — as I understand it, it’s 250 sites were authorized, were specified with a particularity that these are —

John W. Cragun:

I can’t answer that definitively.

It is my recollection that they are so specified with regard to Indian sites.

I would have to get —

William J. Brennan, Jr.:

Only at Indian sites?

John W. Cragun:

I believe that’s correct but there again, I — what’s that?

Richard Schifter:

(Inaudible)

John W. Cragun:

I‘m informed by Mr. Schifter that he can say that all fishing trap sites were specified either White or Indian.

These Indians, of course, set by here for quite a while and watched non-Indians fishing the traps, which later was the cannery were purchased by the United States and turned over to Indian fishing.

However, the fact is that as to Indians since the Secretary exceeded the closing up all fish traps except Indian fish traps, the Secretary has very directly regulated it.

This is not an unregulated right if that impression has been given this Court.

The Secretary of the Interior is manifestly concerned with the matter.

He has fish and wildlife under his jurisdiction.

He is manifestly concerned with preserving the salmon lives there as necessary to Kake and Angoon and the Metlakatla as they can’t be to anyone else in Alaska and they are regulated by the Secretary.

The size of the traps is unimportant, I suggest.

The question is how many fish you take out of them, not what gear you use and traps can be regulated and are regulated to determine how much of a pack you take out of them.

It’s no different if you spread it amongst more men perhaps running the actual boats and they take just as many fish with yawl nets or purse seines or some other method, we’re really confusing to quite different issues.

I repeat again that in my judgment, there is no conservation issue here unless Alaska can say “Well, the Secretary isn’t going to regulate this from a conservation standpoint but we would.”

Unless that can be said, I — I don’t see how this issue can be imported into the case.

And there was one other thing that occurred to me in that connection when it was said —

Felix Frankfurter:

Well, the theory that — the theory of legislation is prohibition, isn’t it?

John W. Cragun:

That is the theory of the Alaskan legislation.

Yes, sir.

Felix Frankfurter:

So that — so that there is a sharp issue of conservation policy, namely whether the evil is — whether there is such an inherent evil with the State assuming it has started to step in and bother it and prohibit the further practice or on the Secretary’s point of view that regulation the fact.

John W. Cragun:

Well, I — I don’t —

Felix Frankfurter:

And certainly, the most incompetent person in the world have a view on the merits of that.

At least I can’t imagine anybody less competent — less incompetent than I am.

But the issue seems to be one of conservation.

John W. Cragun:

I believe that the issue of conservation —

Felix Frankfurter:

I mean the different views of what conservation calls for.

John W. Cragun:

They — the only matter from conservation standpoint that appeals to make and make any sense is the number of fish you catch and the number you left through the ghost pond and how carefully you regulate it.

Now, our grant that dynamite is forbidden under the Interior Department regulations as under the State, that is a highly nonselective method of regulating fish.

I suppose it could be used but it’s — it’s frowned upon.

Now, Alaska certainly frowns upon the use of fish traps but I am unaware, provided they are regulated and here they are regulated that there can be possibly be any issue other than how many fish you take by one method or the other and how you let you runs a fish through this pond.

Felix Frankfurter:

Well, if it’s easier to take more by one method than another —

John W. Cragun:

Certainly —

Felix Frankfurter:

— just might be a factor.

John W. Cragun:

Certainly, the traps are more efficient.

They require fewer men.

There are more capital investment in them but they have fewer man to run them.

They efficiently supply the cannery.

There’s very little loss from injured fish as there are by any other method of fishing.

They are efficient.

They’ve been proved that over a long time.

And now we have from eight to 11 traps, 13 this year permitted to operate by the Secretary of the Interior.

We have up over 200 authorized, only two and three and four and five years ago.

The numbers are set forth in two different appendices to the briefs, one Mr. Schifter’s and one in my brief and shows the rather de minimis nature of what is left here but it is not, even what we have here an unregulated right.

The Secretary of the Interior is looking after this right.

William J. Brennan, Jr.:

Can you tell me this, Mr. Cragun.

I noticed at page 69 that your — well, it’s that same regulation, it’s page 35 of your brief.

Not more than 21 salmon fish trap sites heretofore recognized as Indian salmon fish trap location as here and after described maybe utilized for the purpose of salmon trap fishing by Indian villagers etcetera.

Does that — does that suggest that the Secretary of the Interior has determined that this is the outside limit under any circumstances of the number of sites at which fish traps maybe authorized?

John W. Cragun:

I’ll so read it if you take it in conjunction with subparagraph (e), two pages later, page 37 of the red appendix during the 1960 fishing season only the following — and you count up in there 13 out of the 21.

William J. Brennan, Jr.:

It was suggested earlier that Section 4 of the Statehood Act is susceptible of a construction that — that at all 250, indeed, that’s — see the numbers 334 sites where before statehood, fish trap — use of fish trap was authorized.

Might we authorize them to Section 4.

John W. Cragun:

Mr. Justice, it’s inconceivable to me.

Certainly, if these people have a small remnant of the aboriginal right that they once possessed, it would relate only to their own area and it doesn’t infest all Alaska.

They tried in this country with particular fishing rights as limited and usually to a particular area.

We — this Court has dealt with many of them, the Wyman’s case and the Seufert case, the Tulee case.

They’re not unfamiliar, but it doesn’t mean that they have a right to go into somebody else’s theory and fish there.

It’s not a profit good for all of Alaska.

It’s a profit within their own area and of the overwhelming, both of these 300 traps were white, they’re closed down.

Secretary here has identified only 21 sites that can be fished.

That’s all around in Alaska.

William J. Brennan, Jr.:

Well, perhaps — perhaps rather I should not have troubled you with that question.

Perhaps I should put it to Mr. Calhoun later as see just precisely what is the Secretary’s view to this.

John W. Cragun:

I shall have — Mr. Calhoun indicated, I don’t believe he and the Secretary of the Interior are in entire agreement.

This is —

William J. Brennan, Jr.:

The rest might —

John W. Cragun:

— one of those things where I can just sit on the sidelines and grin to all of the smugly act, let the complaint of that.

William J. Brennan, Jr.:

Well, when he gets up, I’ll ask him.

John W. Cragun:

I wanted too to counter one statement that was made in the course of Mr. Rader’s argument about whether Kake and Angoon ever fished with traps.

I found in the findings of fact to the Court of Claims on its October 7 opinion in Tlingit and Haida that I cited earlier.

Page 59, Finding 41, the following sentence the Indians referring to the Tlingit Indians use hook and line, spears, gill nets and that strategic stations along the coast and rivers wears and traps.

Traps weren’t under many on the many aborigines on the United States but our grant, these are a bigger more costly and culturally, greatly developed trap by the side of the aboriginal traps which had to be hand woven mainly.

Charles E. Whittaker:

Are those the cases wherein these Indian tribes sought damages for having been excluded by the Federal Government from the fisheries or fishing rights in — in Alaska?

John W. Cragun:

Fishery including other rights.

Yes, sir.

Charles E. Whittaker:

And the Government takes the position there that they had no — no principle right to intense — we’re not entitled to fish.

John W. Cragun:

I am not aware that the Government takes that position, although I’m bound to confess, I do not represent the Indians in that case and I don’t want to be held to it.

I would have to consult counsel in that case.

I must say this that in a reference and their note in the brief amicus curiae in the District Court, the Government doesn’t intimate that it contest a right of recovery.

And since Congress authorized the suite for aboriginal rights there, I take it there would be no question raised on that issue.

John W. Cragun:

Well now, I was concerned too about another aspect to Mr. Rader’s argument which intimated that what is involved here is just a Seattle operation perhaps in the name of the Indians.

I’d been hampered by not much knowledge outside that the record in these cases but certainly as far as the record goes, a supplemental transcript in the complaints of Kake which commences at page 82 and the complaint of Angoon which commences at 102 in paragraphs one, two, three and four, plainly and explicitly point out that this is an Indian operation in which substantially, the whole village is engaged and on which that villagers’ income and well-being depends.

In concluding, I think perhaps I ought to share with the Court an outrageous pond that lurks in the record in this case which was brought to my attention by an assistance solicitor and interior in the suit of Kake and Angoon against Egan Governor.

He said the question here was whether these Indians could have their Kake and Egan too.

[Laughter]

Earl Warren:

Mr. Calhoun, I think Mr. Justice Brennan want to ask you a question.

Your time is up but — I think he want to ask you a question.

William J. Brennan, Jr.:

There are really two questions.

The first Mr. Calhoun, I sent out with — to Mr. Cragun.

Are we to understand that this 88.2 is a determination by the Secretary of the Interior that the outside limit of sites that he may authorize is 21?

John D.Calhoun:

That is the understanding of the Department of Justice as the position to the Department of the Interior.

William J. Brennan, Jr.:

Now, what is the position of the Department of Justice?

Does the Department believe that under Section 4 of the Statehood Act, he has power that as the Secretary does to authorize more sites than 21?

John D.Calhoun:

It is the position of the Department of Justice that Congress in enacting Section 4 reserved to itself power to direct the Secretary of the Interior that authorizes many according to the standards that they set as are necessary to meet the needs they want to fill.

At the moment, we believe there is sufficient authority under the White Act to issue more than 21 if conservation needs and the Indians needs require the issuance of more.

William J. Brennan, Jr.:

Or allowed more —

John D.Calhoun:

More than 21.

William J. Brennan, Jr.:

Does that mean then to the limit of 334 which apparently was the number of sites before other.

John D.Calhoun:

I would doubt on the basis of the little myth that I know about Alaskan fish runs that he could — he could defend 300 without running into an argument of being rather arbitrary and capricious in the conduct of the administration of that statute.

But if — if at any time, Alaska is — may challenge his — his performance of his duty.

I think it has standing probably to do that.

Certainly, people who were fishing in those waters have standing to challenge these regulations but nobody has attacked that his — saying that — nobody suggesting that the Secretary has improperly administered a congressional mandate.

Felix Frankfurter:

Your — that the — the position of your — your possession — the Department’s position is that there is in Section 4 no quantitative limits, upon whatever rights they reserve.

Is that right?

John L. Rader:

That is our position.

William J. Brennan, Jr.:

Thank you.

Earl Warren:

Very well.