Organized Village of Kake v. Egan – Oral Argument – December 14, 1961 (Part 2)

Media for Organized Village of Kake v. Egan

Audio Transcription for Oral Argument – December 14, 1961 (Part 1) in Organized Village of Kake v. Egan
Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Earl Warren:

Mr. Gross, you may continue your argument.

Avrum M. Gross:

Mr. Chief Justice, may it please the Court.

At recess, I was trying to indicate to this Court the nature of some genuine native rights in Alaska, which were truly rights and to compare them with the rights in quotes which are claimed in this case.

Now first, I pointed out that the seal fishery was specially set up by statute and natives had a — an exclusive right to take seals for subsistent.

No other person was allowed this right.

Now secondly, there is the Karluk Reservation which this Court sustained in Hynes against Grimes Packing Company.

Now, it sustained it as to which exclusiveness that no other Alaskan or anyone else could fish within the confines of the Karluk Reservation.

Now thirdly, the White Act only pertained to commercial fishing.

Now, it did not affect subsistence fishing.

Now, along the Yukon and Kuskokwim Rivers in Alaska, they have always — the natives of that area have always fished for King Salmon on the subsistence basis and in doing so, they have used small hand traps and fish wheels and if the Court will note Chapter 17 as amended of the Alaska session laws, which is the statute in issue in this case, you will see that it excludes hand-driven fish traps and fish wheels, which is the means of subsistence fishing along those rivers in Alaska.

Potter Stewart:

What’s a fish wheel?

Avrum M. Gross:

A fish wheel, Mr. Justice Stewart, is a — is a wheel which is turned by the current, much as a windmill would be turned by the wind and salmon are not very intelligent.

They come into the wheel and the wheel just literally picks them right up, carries them around and dumps them into a trawl.

They slide down the trawl into a box where they’re kept until the native takes them out.

It’s an aboriginal means of fishing.

It’s hundreds of years old, or as, I might point out that the fish traps in this case are extremely recent developments.

Earl Warren:

How large are they, Mr. Gross?

Avrum M. Gross:

Fish wheels or fish traps, Your Honor?

Earl Warren:

The fish wheels.

Avrum M. Gross:

Oh, fish wheels, maybe — oh, they may extend for 10 or 15 feet above the water.

It’s difficult to say because there are pipes leading various ways.

Earl Warren:

Yes, but they are rather larger, aren’t they?

Avrum M. Gross:

Not in comparison with the fish trap?

Earl Warren:

Oh, no, no, no.

Avrum M. Gross:

No, and their — their — the effect on the salmon runs is almost negligible —

Earl Warren:

Yes.

Avrum M. Gross:

— but they take very few.

Earl Warren:

Yes.

Avrum M. Gross:

Now, I want to stress to the Court where these rights I have — there only three or four rights that I’ve told this Court about, but, I don’t want to minimize their importance.

These are tremendously important fishing rights.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

Let me show why.

The Karluk River reservation gives the natives of Karluk an exclusive right to fish the area around the Karluk River.

Now, this Court will recall in Hynes and Grimes Packing Company, it recognized that the Karluk River fishery was perhaps the most important fishery in that area of Alaska.

It’s an enormous fishery.

They — they take millions of red salmon that come up the Karluk River each year.

Now — and don’t — this right cannot be minimized.

It’s very important.

As far as subsistence or the Kuskokwim is concerned, this may not be terribly important to the fish runs, but it’s terribly important to the natives on the Kuskokwim.

This is their way of life.

They eat this fish.

These are subsistence.

They’re not using them to make money with.

They — they’re using to feed their wives and children and to them, it’s an important right.

There’s no question about that and these are aboriginal natives.

These are people that have not developed in the interior of Alaska.

These are the backward tribes.

We are not talking about that kind of a tribe in this case, right.

Earl Warren:

They take millions of them just for subsistence?

Avrum M. Gross:

Not literally millions, Your Honor.

I would guess the — the number is closer.

I’m not into —

Earl Warren:

Oh, I — I understood you to say millions, literally millions.

Avrum M. Gross:

That’s on the Karluk River commercial fishery, Your Honor.

Earl Warren:

Oh — oh, I see.

Avrum M. Gross:

It — that was upheld in Hynes against Grimes.

Earl Warren:

Yes, yes.

Avrum M. Gross:

Now, in these cases, in every one of these cases, we have a statute or a practice which has distinguished natives from the rest of the population.

In fact, I might use the Solicitor General’s words.

These Indians are fishing as Indians, not as citizens.

They are fishing as Indians.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

This is something connected to their specific status as Indian, but under the White Act, under the White Act now which is talking about the commercial fisheries in Alaska, under that Act, Indians fished as equals with everyone.

They’re not only were treated equally, they were treated in common.

There was no distinction made in any regulation between Indians and non-Indians.

They were just speaking of citizens and Indians were citizens.

Everyone was treated exactly the same.

Now, the question then comes up, and this is specific, whether the use of a fish trap under the White Act created any kind of a right whatsoever.

Now, for one thing we’re talking about common treatment.

Everyone is using — everyone has the same power to use a fish trap because the regulation permits it in a certain area.

Anyone can move into that area and set up a fish trap.

So, once this is done, did it create a right?

And this Court doesn’t have to be in the dark on this question because there are federal cases in Alaska.

They hold series of federal cases, which you will find cited at page 21 of our brief, which spec —

Charles E. Whittaker:

(Inaudible)

Avrum M. Gross:

That’s exactly correct.

As the Solicitor General would say, “We are speaking of their Indian right as Indians”.

This is a very different thing than the general public right of fishery which is normally spoken of in abstract terms.

We are speaking of an individual or a community for that matter, right against any other party or against the Government itself.

And — and the cases in Alaska cited at page 21 of our brief, federal cases in Alaska have an equivocally held that the use of a trap under the White Act created rights against no one, absolutely no one.

It could be appropriated by third parties.

Third parties could come in and set-up a trap right next door.

It could be — it couldn’t be enforced against the Government.

The Government could stop to use of traps in the area in the moment and did often times.

Now, with these decisions —

Charles E. Whittaker:

(Inaudible)

Avrum M. Gross:

Exactly, exactly.

The — these traps were regulated not by individuals but by areas and the — just like — it would speci — you will see in our — our brief — by the way Mr. Justice Whittaker, on page 19 and 20, a typical regulation under which traps were allowed.

Now, I picked this regulation because it is the regulation under which the Kake and Angoon traps were fished and you’ll see that it opens areas to trap fishing and defines them by degrees of longitude — latitude.

Now, in this area, anyone could use a fish trap, absolutely anyone.

Just like — the only — the only limitation was areas — physical limitations.

Two nets can’t fish in the same water at the same time.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

There is just isn’t enough room and the same thing goes for traps.

There has to be a — a distance between traps.

There always was a distance between traps in Alaska, but it could be anyone, anyone could fish the traps.

It’s just a particular form of fishing gear like anything else as a particular form of fishing gear.

Now, along with the fact that the White Act treated these natives, that we’re talking about here as completely equal citizens in every regard and gave them no native rights in the commercial fishery, I wish to point out to this Court that this was entirely consistent with the entire congressional policy all through Alaska.

Natives were not segregated from the rest to the population.

We had no treaties in the Alaska, none whatsoever.

We had, except for the Metlakatla in Karluk, no reservations in Alaska whatsoever and these are limited reservations as — as this Court will see from — from observing the statutes under which they were established.

Now, Indians in Alaska have always paid all taxes in Alaska, always.

They’ve no distinction between them and other citizen.

They’ve always been tried by territorial which were, in those cases, federal courts, along under territorial law.

They never had a tribal law under which these Indians were — were tried, always the same — tried in the same manner.

They have always been completely full citizens.

There has been no distinction made between them and the rest to the citizens in Alaska and I pointed out in the brief, but I want reiterate to this Court how completely amalgamated the natives are in Alaska.

Now, for instance, natives vote.

Now, you’ve heard — you’ve heard the estimate here of how many natives there are in the — in the State.

That’s approximately, I believe, 12% or something to that effect.

Now, the Alaska Legislature, on the other hand, is composed 15% of natives.

So I think quite obviously that these natives are not only drawing there support from there native brethren, they’re being elected by whites.

The President of the Senate in Alaska is a Tlingit Indian, who was elected from an election district nearly 80% white.

These are Indians which are completely integrated into the society.

We have been very fortunate in Alaska.

William O. Douglas:

How many of them are — have become (Inaudible)

Avrum M. Gross:

All of them.

William O. Douglas:

All of them?

Avrum M. Gross:

Everyone.

In — this Court recognized years ago in the Kagama case when it was upholding a —

William O. Douglas:

They have segregated schools for Indians there now?

Avrum M. Gross:

They do not.

The BIA, I — I should say, the Bureau of Indian Affairs does run rural schools in Indian communities where whites may not live and in that sense, there are — it is segregated in fact, but all states schools are open for Indian and non-Indian alike and the schools in Metlakatla, Kake, and Angoon are states schools, all of them.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

Now, in the Kagama case, this Court recognized in upholding the federal power, that the reason, one of the reasons is, it was so important to uphold federal power was, and I — I think use almost the Court’s identical words, the citizens of the State, their neighbors in the State are often they worst enemies.

There’s a real problem.

There was friction between Indians and other citizens in the State.

We’ve been very fortunate in Alaska, we don’t have that.

Indians and white are equal in Alaska, as indeed, they must be if the State is going to grow. We can’t afford to segregate people all.

We need every citizen we have to develop the State.

Now, there is — I — you may not take my word for this.

There is a number of cases cited in our brief, federal court cases which have recognized consistently the complete amalgamation of the natives in Southeastern Alaska into the white population.

Certainly, they live in towns which are — these various communities Kake and Angoon.

They lived in the towns of Kake and Angoon.

Those aren’t all native villages.

There are whites living in Kake and Angoon.

These are element — these are — these are Alaska cities.

They are incorporated under municipal law — under state law and they exercise municipal powers.

These are just typical cities in which inhabitants are native.

This is — this is race were talking about here.

Now — now that the — I want to point out — I point out as not to claim that — that the Federal Government has lost its jurisdiction over natives in Alaska as the — as the Federal Government itself points out in its brief, we do not wish to confuse the existence of a power with its exercise.

We recognized that natives in Alaska may well be subject to federal control.

We don’t con — we don’t contend that they are not.

What we do contend is that the Federal Government has never sought in the past to distinguish these races and especially not in Alaska’s largest industry and that it would be inconsistent with past federal policy to hold that Section 4 did so now, that where the Federal Government made distinctions in the past for subsistence or for a seal fishery or a specific reservation, that makes sense.

That makes sense for the Federal Government to continue this, but it is entirely inconsistent with past federal policy to suddenly take one-half of an entire industry, segregate them on the basis of race where they never had any legal rights and say, “These Indians are now different from the rest of the citizen.”

They are not subject to state regulation.

They are subject to federal regulation exclusively.

It just — it — it’s just completely inconsistent with the whole history of federal — federal policy in Alaska.

What — what that Section means, as — as we see it, is that where Congress made distinctions, those distinctions were preserved, and they are important distinctions, but they did not make distinctions all through the commercial fisheries and not in relation to traps and those distinctions that never existed should not and were not created by Section 4, that is essentially our argument on that point.

Now, as a last argument regarding the interpretation of Section 4, we wish to point out the effect that the various interpretations posed here today will have.

Now, I do not say this because I want this Court to pass on the wisdom of an Act of Congress.

Obviously, it cannot do that, but we do want to point out that the interpretations urged here today will result in an absurd conclusion and it is a settled point of statutory construction that the Court will not attempt to make an Act of Congress into an absurd — give it an absurd construction.

Now, I want — I want to point out these various — these various interpretations suggested and show to Court what will happen under.

Now, let me first take the Government’s view.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

Now, the Government really has, it seems, two views.

The view in their brief was that — that the Department of the Interior has full authority over Indian fishing to do with as it sees fit.

It can authorize traps or not authorize traps.

It can authorize 11 traps or it can authorize 111 traps if it wants to and I quote from the Governments brief, “The Secretary has full authority to do what he considers proper for the protection of the Indian fishing rights including enlargement of fishing rights beyond those now enjoyed subject to his consideration of other pertinent factors including — including conservation.”

This was —

Charles E. Whittaker:

But that —

Avrum M. Gross:

Yes.

Charles E. Whittaker:

But that — that depends on the (Inaudible) rights, isn’t it?

Avrum M. Gross:

Exactly.

But the Government in its brief, Mr. Justice Whittaker, said that it could expand these rights.

This is what I was getting at.

If — if the Government is correct in its interpretation and — and we are talking about traps, it could theoretically authorize 111 traps or 1111 traps.

The fact we have 11 traps now is of no effect under the Government’s interpretation.

Potter Stewart:

So it has to be in the same area though, wasn’t it?

Avrum M. Gross:

That is not what the Government’s brief says.

That is what Kake and Angoon have argued here today, aboriginal area.

Felix Frankfurter:

I thought the Government said not only in the same area, not only that this a geographic term — geographically bounded, but also, there would have to be an existence of the term of the Act.

Avrum M. Gross:

That is what the Government said today in its oral argument, Mr. Justice Frankfurter.

Felix Frankfurter:

That is not only — they thought certainly not more than 21 sites and they quoted the Department of Interior as construing it to mean the existing available types.

Avrum M. Gross:

That is absolutely —

Felix Frankfurter:

Less than 21.

Avrum M. Gross:

That is absolutely correct, Justice Frankfurter, and it’s quite clear that that Justice Department and the Department of the Interior vary on their interpretations on this Act.

Felix Frankfurter:

In other words, there’s no more than 21 under any construction?

Avrum M. Gross:

Not under the Government’s brief construction, Mr. — Mr. Justice Frankfurter and it’s in — it’s — in their brief, they make it unlimited.

Before the Court, they have limited it to the 21 sites, that’s true.

I merely pointing out that there’s two interpretations the Government has urged and I want to discuss both of them to show the Court what will happen, but before I do, I want to make the Court aware of one thing.

Under the White Act, as I pointed out, there were regulations authorizing areas for traps.

Now, these regulations occupied no special status under the White Act.

They had no more legal affect than a regulation permitting next in a particular area or a regulation closing an area to fishing, or a regulation forbidding a particular stream from being fished in a particular manner.

In short, there is no legal difference between the use of fish traps and the use of any other equipment under the White Act, now I’m speaking of, or any other regulation promulgated under the White Act.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

If fish traps are a right protected by Section 4, all control of Indian fishing was con — was protected under Section 4.

I cannot urge this too strongly, but the fish traps are no special device.

They are just like any other thing that was used under the White Act.

This controversy has arisen over fish traps and perhaps, it’s — it’s ironic that it has because, the fish traps, of course, have been, as I’ve been pointed out for various reasons, go in the Alaskan throat, not only in the white Alaskan’s throat, as you will see in our brief, the natives have constantly opposed fish traps in Alaska, too, through their authorized spokesman.

Alaskans dislike traps intensely and I — I’m not going to go in the — the conservation aspects of this.

The statute recites it’s a conservation measure.

There is evidence to — to indicate that it is and no evidence except an opinion to indicate that that is not — it’s not on us to prove the conservation measure on — of the statute, it’s for them to disprove it, and there is no evidence on that of any kind.

But, of course, as to the legal relevance of this matter, according to the claims made here today whether it’s a conservation measure or not, it doesn’t seem to make any difference if it was preserved under the Federal Government the State has no power to regulate it in any case.

So I — I may —

Felix Frankfurter:

Or vise-versa, or vise-versa or the reverse is equally true?

Avrum M. Gross:

If —

Felix Frankfurter:

If it’s not reserved, then we can’t scrutinize whether your right (Inaudible)

Avrum M. Gross:

Exactly correct.

That’s true.

Now, so let me — let me consider this question of the results of the interpretations that have been suggested today on the basis that we’re not only talking about traps, we’re talking about all regulations promulgated under the White Act because there’s no distinction between them.

Now, let me take an example of first, the broadest interpretation, which has been suggested today that the Gover — if that’s in the Government’s brief, if the Federal Government has exclusive authority over all natives fishing in Alaska and can do what it considers proper for them, well, then you have one sovereign state regulating the White fishermen and you have the other sovereign, the Government regulating the native fishermen.

Now, this can be disastrous in a situation and I’ll give you a perfect example of it.

In Bristol Bay, Alaska, which is the largest salmon fishery in the world, millions of salmon come into that bay in one week, and they are all caught during that period.

Now, the State’s fishing is — if the State proposes its fishing time on the basis that a certain amount of days will be kept free of fishing so the salmon can get up — up the streams.

It generally allows four, five days, perhaps, in fishing and then closes it for another two.

Well, suppose they embark on this program and then with the two days remaining in the week, they close down their fishery and the Federal Government decides that the natives haven’t caught enough, so they open it.

Then what happens?

You have half the fishermen in the State fishing in Bristol Bay and half the fishermen not.

The State’s carefully plan program of five days and two days close goes right down the drain to the detriment of everybody.

Now, it’s true, that — that — it’s been pointed out that the Federal Government will undoubtedly be guided by thoughts of conservation.

This is — this is been — been reiterated in the briefs, but the trouble is with this that the claims are conflicting.

The real matter — the reason this — these traps are been authorized is because the Secretary wants the Metlakatla cannery along with those in Kake and Angoon to have more fish than they would have otherwise.

That’s been made quite clear.

He wants them to make — be in economic successes.

Well, that’s just the point in Alaska.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

Too many people have made economic successes, and there are not enough fish any more.

So they are trying to close it down.

They are trying to close it down either in stages or whole areas, but if we can’t do this, if — if the only consideration is the economic benefit of this particular Alaskan communities, who are, as I say, full Alaskan citizens, what can we do?

This is half the fishermen of the State we’re talking about now, not — not of little isolated Indian community off in some place, we’re talking about half the fishermen of the State.

Now that’s — that’s the broadest interpretation.

The second interpretation is taken in —

Felix Frankfurter:

Well, I — well I’m certain, I can infer from that that if these claims, they are sustained as fishing rights in half the industry of the State, there will similar claims of fishing rights?

Is that what you’re saying?

Avrum M. Gross:

If you sustain these claims as fishing rights, Mr. Justice Frankfurter, any action taken by the Federal Government to regulate Indian fishing whether it’s a trap or closing an area, opening an area will be equally an Indian fishing right.

Felix Frankfurter:

Well, not mentioning that into actuality, does that mean that there are outstand — there were outstanding, as of 1959, rights comparable to these rights in regard to half of the industry of the State?

Avrum M. Gross:

There are — half of the industries of the State are natives and half of the industry of the State can claim that they were using some form of equipment under the White Act in 1959.

Felix Frankfurter:

Now, does the State say that in fact there were in use, frozen by the claim of the Government now, fishing rights that would make the kind of divisions in — if I may use the word again, natives and the non-natives?

Avrum M. Gross:

We do not admit that, Your Honor.

That is what the Government claims.

Felix Frankfurter:

No, no.

What I’m asking you is whether there are — there’s a factual basis per se that if these claims are recognized, then there are claims to the extent of half the fishing industry of Alaska, outside of the control of Alaska.

Is that what you’re saying?

Avrum M. Gross:

The — yes, this is essentially what I am saying, Your Honor, yes.

Felix Frankfurter:

Not hypothetically, not argumentatively —

But in fact —

Avrum M. Gross:

In fact. Because and — and this is what I’m saying, because the regu — the use of fish trap was no different than the use of any other form of gear and we know that half the fishermen in the State were using some form of gear, half the fishermen are natives.

So, if this right is — is a right — if this is a right that we’re talking about here, so was the use of nets?

This —

Felix Frankfurter:

Well, are those — are those outlawed – would those be otherwise outlawed by the state law?

Avrum M. Gross:

Other — other particular forms to fishing equipment?

Felix Frankfurter:

Yes.

Avrum M. Gross:

They have not been now, but they maybe — they — in fact they are from a time to time basis.

For instance, in — in various areas of the State nets of only one length are allowed.

They are not allowed to use larger nets, you see.

Now, if — if we’re talking about a frozen claim, theoretically the natives could go back in 1959, any native fishermen now —

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Felix Frankfurter:

And by native, you mean, established communities like these?

Avrum M. Gross:

No, by native, I mean native fishermen, any native fishermen.

Felix Frankfurter:

You mean just an Indian?

Avrum M. Gross:

Any Indian or for that matter —

Felix Frankfurter:

The individual Indian roaming in Alaska?

Avrum M. Gross:

It could be that or for that matter, it could be a native community.

Felix Frankfurter:

But which is it?

Avrum M. Gross:

It — well, to us —

Felix Frankfurter:

The claim of the Government was not — was the operative of any fishermen who happens to be an Indian has protected right.

I understood that was precisely not the claim that was disavowed, but you’re saying that if Indian — Indian means — an individual Indian, that means half the fishing industry and that means half the fishing industry can be withdrawn from the state control?

Avrum M. Gross:

That’s true —

Felix Frankfurter:

That’s your argument?

Avrum M. Gross:

That’s true, Mr. Justice Frankfurter and let me explain why I take this position.

The Federal Government in its brief restricted its claim to Indian communities.

It did, but the reason I don’t feel this claim can be sustained is because it’s inconsistent. We’re talking about a right held by natives or the Federal Government for natives.

Now, whether an individual or a community or a corporation or any organized body under the White Act used a trap or any other fishing gear, it did not give them any right.

It didn’t make any difference whether he was an individual or a community or anything.

So what I’m saying is if you sustain it for a community you have, in a sense, sustained it for an individual, too.

Felix Frankfurter:

But the relation of an Indian community to the Federal Government is a very different thing in the long course of Indian history — an Indian Law history, than the relation of an emancipated individual Indian?

Avrum M. Gross:

That’s entirely correct, Your Honor, but we’re not speaking here today about any Indian — aboriginal Indian tribe as I understand it.

The decisions of — of every court that has ever passed on this subject has — has decided that we are not talking about a tribal entity.

Felix Frankfurter:

No, no, no, but we are talking about a community entity?

Avrum M. Gross:

You mean a community under the Wheeler-Howard Act?

Felix Frankfurter:

Yes.

Avrum M. Gross:

Well, this is — of course, when we speak of a community under the —

Felix Frankfurter:

(Inaudible) there’s nobody knows, as you know, as well as I do, that that was better, that that was a very important measure in the evolution of Indian Law?

Avrum M. Gross:

Very correct, Your Honor, but the Wheeler-Howard Act provided that Indians could organize into corporations, which these appellants have done, but it was never said in their — to their economic benefit that these corporations could fish free of the general regulations in Alaska.

And they did not fish free of them and any corporation private or governmental that was fishing under these regulations did not gain a right through use of a fish trap.

Felix Frankfurter:

I fully follow your argument and I think I appreciate it.

What I’m trying to find out is the basis from your argument in drawing the difference between an established community under the Wheeler-Howard Act and an individual Indian?

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

Well, as I understand the doctrines of Indian Law, Your Honor, the fact that an Indian is no longer a member of a tribe, does not make a crucial difference.

The power over tribes also extends to individual Indians.

Now —

Felix Frankfurter:

It may — it may?

Avrum M. Gross:

That’s — that’s true, but these Indians in Southeastern Alaska, if you are going to classify them, any form of tribe whatsoever for powers of Federal Indian Law, all of the appellants belong and every Indian, perhaps, well, I shouldn’t — I shouldn’t say every Indian, I can’t — I can’t make a definite statement as to the percentage of Indians that belong to this, what you would term loosely family groups connected into what we would term a tribe.

I cannot — (Voice Overlap) I think I see what you’re asking for.

Felix Frankfurter:

Your argument wipes out all the other any legal differentiation between the two kinds of Indian Associations (a) an individual, an Indian lawyer practicing in Juneau or (b) an editor who happens to be an Indian and these organized or establish communities.

Avrum M. Gross:

I —

Felix Frankfurter:

That’s you position, isn’t it?

Avrum M. Gross:

Yes, but I need not take that position, Justice Frankfurter and if it raises the question in you mind, I need not — I won’t – won’t do so.

Felix Frankfurter:

Don’t bother about me, I’m just trying to get to what your position is.

Avrum M. Gross:

If it were an Indian community, it would make no difference.

If we take a stream in Southeastern Alaska, in which the fish come and the state program is regulated on the basis of how many fish get into that stream, and Kake as a native community under the Wheeler-Howard Act, is allowed to fish free of state regulation or for that matter the government decides to give it an additional privilege in relation to the stream, the state program is of no avail whatsoever and can’t be planed at all.

William J. Brennan, Jr.:

(Inaudible)

Avrum M. Gross:

Are not reachable by the state law?

William J. Brennan, Jr.:

(Inaudible)

Avrum M. Gross:

That’s true.

William J. Brennan, Jr.:

(Inaudible) even if the government state law (Inaudible) —

Avrum M. Gross:

I —

William J. Brennan, Jr.:

— even though the government (Inaudible)

Avrum M. Gross:

I think that term exclusive right in jurisdiction to the Federal Government can mean nothing else.

I — I agree with you completely, Mr. Justice Brennan.

William J. Brennan, Jr.:

(Inaudible)

Avrum M. Gross:

Alright.

Now finally, I wish to point out one last thing, I wish to let Mr. — Attorney General Moody conclude the argument, but I do want to talk about Kake and Angoon’s claim for one last minute. Kake and Angoon came — claim aboriginal rights in an area.

Now, I’ve already pointed out to this Court why I believe that aboriginal rights were extinguished, but let’s assume for a moment that they were not.

I want to show the Court the effect of this.

Now, they have minimized their claim to aboriginal rights.

If the Court will look in the Tlingit and Haida cases which in — in the Court of Claims which maxed out the area claimed by these Indians, they will find that it occupies all of Southeastern Alaska.

This isn’t small area.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

This is all of southeastern Alaska.

Now those of you who have seen a map of Alaska or been in Alaska will realize the vast expanse of area this really is.

And it’s a tremendous fishery down there, too.

Now, if Kake and Angoon are right, in the area where Kake and Angoon fish, in that whole Southeastern Alaskan area, aboriginal area we’re talking about, they can fish free of state regulations of any kind and if they can, I point out that the States’ power now in Southeastern Alaska is — is nothing.

It can’t regulate if they can only regulate half of it — the people.

This Court recognizes in Missouri against Holland when it was talking about migratory birds.

Now, it — if I can — if I can draw an analogy here in — the Court said that Missouri can’t regulate migratory birds because everybody has to be bound by a scheme of conservation when you’re talking about migratory animals.

Because anyone person could destroy the whole program, but we’re talking about migratory salmon here.

These salmon pass hundreds of miles of coastline before they enter the streams.

Now, how is the State to plan its fishing effort along those hundreds of miles of coastline if it doesn’t know how the Federal Government is going to run its programs in regard to these aboriginal claims.

In summary, I just want to say, that if the Court upholds this right today, this claimed right, Alaska’s fight to gain control over its fisheries is gone.

We — we have gained nothing.

We have gained a power to regulate one-half of the fishing population and that is next to nothing, if we can’t regulate the other half.

Felix Frankfurter:

May I trouble you to —

Avrum M. Gross:

Certainly.

Felix Frankfurter:

— summarize quickly with us, concluding on the general stand, what you conceive to be the present range of authority of the Federal Government for the exercise through the Secretary of the Interior over Indians in Alaska.

Avrum M. Gross:

What to — over all Indians?

Felix Frankfurter:

I’m talking about — not fishing.

Avrum M. Gross:

Oh!

Felix Frankfurter:

But what do you conceive to be the range, the scope of authority, if any, over Indians? Does that include an individual Indian who practices law in Juneau or some editor or does it relate only to organized communities, organized not in a technical sense?

Avrum M. Gross:

I would say this Justice — Mr. Justice Frankfurter.

There is no question that the Federal Government retains plenary power, as it does in other areas over all Indian tribes.

That much is clear.

As to individual Indians, we will be faced —

Felix Frankfurter:

How about — how about the non-tribal collectivities?

Avrum M. Gross:

Non-tribal collectivities organized under federal law?

Felix Frankfurter:

Yes.

Avrum M. Gross:

Well, I would venture to say that — that it probably would be impossible for non-tribal Indians to be organized under federal law as Indians.

Felix Frankfurter:

Well, how about if these are the organizers of Wheeler-Howard?

Avrum M. Gross:

They are — this is a —

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Felix Frankfurter:

They are tribes, are they?

Avrum M. Gross:

This is a different kind of organization, Mr. Justice Frankfurter.

It is unique to the Indian groups, but it is a different type of tribe when we speak of it in the State.

I would concede that — that a wide leeway, in fact almost complete leeway, is giving the Federal Government in determining what shall be termed a tribe and if they decide that even Indians which I or — or perhaps this Court might determine are non-tribal Indians or nonetheless tribal Indian – Indians, it has been the policy of this Court in the past to not argue the point with them — with the federal authority.

Felix Frankfurter:

Well, in Sandoval case this Court said that the Federal Government, Secretary of Interior can bring together a lot of (Inaudible) and call it an Indian tribe.

Avrum M. Gross:

But in — in the Kagama — in the Sandoval case, it also pointed out, Mr. Justice Frankfurter, that it did not mean the Congress could make an arbitrary determination of who belong to a tribe.

Felix Frankfurter:

That’s right, but would — would this control be over the individual who might take it for granted the individual Indian lawyer?

Avrum M. Gross:

The —

Felix Frankfurter:

The lawyer of Indian extraction in Juneau —

Avrum M. Gross:

I do —

Felix Frankfurter:

— are these subject to (Inaudible) control?

Avrum M. Gross:

I would doubt this, Mr. Justice Frankfurter.

I think there comes of point where the federal exercise of control becomes arbitrary within the meaning of the Kagama case and there — and the Sandoval case and at this point, it must cease and I think this Court could so holds.

But what I am indicating here is, we’re not — under our interpretation of Section 4, Congress did not retain control over the Indian fishing in Alaska.

The only person that disclaimed this is the Secretary of the Interior and if his interpretation is incorrect, we are not faced with the problem of — to what extent Congress could control the Indians, because they have expressly not done so.

Now, if in the future they pass a statute which does so, then the question, I think, which you have posed would arise.

Felix Frankfurter:

But that, of course, certainly operates on some changes?

Avrum M. Gross:

It most certainly does.

It operates on — on various rights which I have mentioned here and certainly, the subsistence rights on the Kuskokwim River are held by tribal Indians.

There’s no question about that.

The Karluk Reservation is for the Karluk tribe of Indians and — and the Hynes case points this out.

Felix Frankfurter:

But I think one must make a general decision out of that.

I’m not saying the 50 claims, etcetera.

That’s a generalize term.

Avrum M. Gross:

That’s true.

Felix Frankfurter:

Indian rights, but therefore it must have some generalized content.

Avrum M. Gross:

Well, I think if there were — but two rights, Mr. Justice Frankfurter, the clause would be satisfied.

There would be two Indian rights and they are — and they are of the enormous importance.

When you say a generalized term, I think you mean it takes more than one and — and it does.

Felix Frankfurter:

It takes more than two – it does two specifics?

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Avrum M. Gross:

Well, there are not — there are — I believe I gave three specifics, but subsistence fishing, as you have just pointed out, is a generalized thing.

And every tribal Indian and Alaska which possesses — which — which — which has aboriginal subsistence fishing rights, I believe, would probably be entitled to retain them under this act, free of state regulation.

Felix Frankfurter:

Even though those subsistence rights may cut heavily into police power regulation by the State?

Avrum M. Gross:

Subsistence fishing rights could not do so, Mr. Justice Frankfurter —

Felix Frankfurter:

Well, the State may have a different mode of dealing with those subsistence needs.

Avrum M. Gross:

It may.

It may indeed, but you have I – I’m — this — to my of thinking would be a valid interpretation of Section 4.

I would be happy to see this Court say that these were not rights that were preserved under Section 4, but — but I recognized that there maybe a valid claim if there are.

And this is important I think, because subsistence fishing rights are at least limited by the needs of the population.

The needs of the natives in Alaska, there food needs, but on the other hand, commercial fishing rights aren’t limited by anything, except the desire to make money.

Felix Frankfurter:

But Mr. Gross, we’ve been recently reading a good deal about different methods of relief. Evidently — evidently created a very serious question.

Alaska may have a social stream of relief, greatly interfered with by what you recognized could be the regulation of the Secretary of the Interior, and might undercut their own needs program?

Avrum M. Gross:

I — in this case, I believe it would only supplement it, Mr. Justice Frankfurter.

Felix Frankfurter:

Well, it all depends what the — what the conflict is between the two measures.

Avrum M. Gross:

Well, there maybe instances it is true in which — in which some program of the State may interfere with the subsistence fishing rights of natives or vice versa, I should say.

And in — in cases were valid retentions of federal power conflict with state police power, we would certainly recognize that the state police power must yield.

But that I believe, this is a future question whereas today our only problem is whether we can regulate our biggest industry or not.

At this point, I’d like to let Mr. Moody conclude the argument.

Thank you.

Earl Warren:

You may.

Ralph E. Moody:

Mr. Chief Justice —

Earl Warren:

Attorney General Moody.

Ralph E. Moody:

— may it please the Court.

There is a certain factual situation that was discussed here by counsels for the appellant Metlakatla Indian Community.

I think we should clear it up from the standpoint as the State sees it, that is relative to the matter of support to schools and a matter of health in the State.

Now as indicated in previous argument here, the State does operate the schools and also furnishes health facilities in the village in Metlakatla and on the island.

And now, in one of the exhibits to the reply brief of the appellants Metlakatla, there is a letter from, I believe the Department of — United States Department of Education which indicated that practically all of the moneys for the operation of the school in Metlakatla and as far as that is concerned in Kake and — and Angoon were furnished by the Bureau of Indian Affairs or under the — the – O’Malley Act.

I believe it’s another prefix term in (Inaudible).

Now that is true –that is true in Metlakatla, that is true Kake and Angoon, that is true in regard to many of the areas of Alaska, though practically all of the school moneys are furnished by the Federal Government based upon the impact of — of people in the federal service such as military personnel that are on Anchorage in Fairbanks and the employees living on federal lands.

As the court realizes until statehood not more than 99% of all the lands of Alaska that was federally owned, even after — even after the land is selected by the State, it was granted to us under the statehood act in which we have a period of 25 years to select in excess of 100-million acres of land.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Ralph E. Moody:

Almost 75% of the State was still owned by the Federal Government.

So, this is not unusual in the fact that Metlakatla and in Kake and Angoon which are on federal lands furnished practically all of the school moneys by the Federal Government under an act that also allows the Federal Government to furnish mo — money to own bay schools in Anchorage area and to the — which are also run by the State, they are federal — federal military reservations, schools were run by the State.

And the — the money is furnished by the Federal Government because it is of the impact to the federal people who are temporary in Alaska.

Now, in the city of the Anchorage, we have many families who were living off of the (Inaudible) and who are living on – they’re maybe living on the federal lands, that’s not privately owned, in those — such as the Alaska Railroad own — owned land, people were living on that.

The money is contributed to the Federal Government to run the schools.

So there’s nothing unique in the — in the situation that the Federal Government either through the Bureau of Indian Affairs are — on a similar legislation, furnishes money to the state’s schools, but they are all run under the — on direction of the State Department of Education.

Now I believe also, in — in his opening statement that the counsel for the appellants of Metlakatla indicated that, when Metlakatla reservation is set aside that — that was set aside only for Indians, the language of the statute, I believe, set aside also on certain — set aside for Eskimos and Aleuts who — who may join the Indians from time to time.

There are a few — have been a few Eskimos and Aleuts on Metlakatla — some of them in fact served on the — on the counsel of the community.

Now, as indicated — indicated by the appellants, the claim of the Metlakatla Indian community is based upon three — two Acts of Congress and one Presidential and Executive Order; the 1891 Act, the Presidential Proclamation of 1916, the reaffirmance of this proclamation of 1916 by an Act of Congress in 1934.

A question was asked a few moments ago relative to the effect of the White Act upon the Presidential Proclamation of 1916, I think it could very well have been — have been argued that in absence of the Act of 1934 which reaffirmed the Presidential Proclamation of 1916 setting aside the 3,000 reservations around Metlakatla, that the White Act would have done with the reservation.

State is not contending that.

I think — I think it’s very reasonable that — that it can be argued and rightly so that under the 1934 Act which have ratified the presidential proclamation of the (Inaudible).

There — there’s no question that that is still an existence because the subsequent Act (Inaudible).

Traditionally, the Indians of Alaska have been treated, as all other Alaskans.

They have and I am speaking her now particularly Metlakatla the — the following.

Charles E. Whittaker:

May I see if I understood you in that opinion you made.

Is that the (Inaudible) does not distinguish by the White Act (Inaudible) that still exists?

Ralph E. Moody:

We’re not conceding that.

I am saying that the — I’m saying it’s possible to argue that it — that it made — that it may have been extinguished by the White Act, but it could also be very possibly argued that the 1934 Act would have reinstituted it and — and kept it in to — in effect.

Charles E. Whittaker:

What position (Inaudible) is taking on the point?

Ralph E. Moody:

Well, of course the position that we take – that we take on this point is that even if the reservation is still in existence and for the purpose of this argument, we’re conceding it may still be in existence, but only — but the reservation is only an area reservation which gives them the exclusive right to fish but does not give them — does not give the Federal Government the exclusive right to regulate, in other words, an area in which only the Metlakatlas can fish.

Charles E. Whittaker:

Well, the right to regulate depends on what, Section 4 of the Statehood Act?

Ralph E. Moody:

Yes, it — it would depend upon the interpretation of Section 4.

We contend however that the — that the matter of — that the rights reserved under Section 4 in the Statehood Act is a right to fish exclusively in there as against anyone other than the members of the Metlakatla tribe, but that it does not go so far as to say that it preserved their method and means of fishing.

Charles E. Whittaker:

So if the language reserved (Inaudible) absolute control over the jurisdictions (Inaudible) over the land of other property including fishing rights done by Angoons, then that wouldn’t leave, does it, any power at all to have jurisdiction (Inaudible) on the part of Alaskans?

Ralph E. Moody:

Well, I think this — I think there are similar factors we can consider there to sustain the State’s view.

First is that before Statehood, all territorial laws which were passed to the Territorial Legislature as distinguished from Acts of Congress were enforced against the Metlakatlans, criminal and civil, without any distinction, not only the major crimes act, but all crimes, misdemeanors, and felonies were enforced under that.

Now, I think we have to look at Section 60 of the Statehood Act also and look at the intent of Congress in this matter of what was fishing rights — what they had in mind with these fishing rights at the time they passed the Statehood Act.

Under Section 6 (e) of the Statehood Act, Congress turned over to this new state of Alaska all equipment used in the co — in the regulation and conservation of the fisheries which they then had.

It appears to me, we could not reasonably say that Congress would have turned over all their necessary equipment to conserve and regulate the fisheries if they were going to retain half of the fisheries in the State, or any portion of the fisheries, but they turned over all of the equipment.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Charles E. Whittaker:

I thought you were talking only however about Metlakatla now and not this Indian fishing, but fishing rights in the sense of comity?

Ralph E. Moody:

That — that is true.

However, that would — that would limit it — speaking only of Metlakatla, that would limit the effect of turning over all the equipment but by the same token, we’ve got several thousand square miles of — of area to be policed to keep up out third parties as against the — as against the Metlakatlans, plus you’ve got that area to regulate as to whether they’re fishing in there was other type of the — what the types of equipment they’re fishing with.

Charles E. Whittaker:

Well, is there any dispute here between the parties of that matter is exclusively within state jurisdiction?

Ralph E. Moody:

Do you mean the regulation of the —

Charles E. Whittaker:

(Inaudible)

Ralph E. Moody:

Do you mean the — the regulation of the —

Charles E. Whittaker:

This is not the third party that you mentioned about?

Ralph E. Moody:

Oh, the water area?

Charles E. Whittaker:

Yes.

Ralph E. Moody:

Apparently, that is obviously one of the questions — one of the questions involved here because we have — we have tried to eliminate the fish trap.

Now, the other — another question that came up is to the other type of fishing, insofar as I know — insofar as I know they have – the State has been regulating the other types of fisheries in there.

There’s been — no question has been raised.

In fact, this is not for the Court within the last two years, we have had a couple of Metlakatlans for fishing wi — without licenses in the area before the state courts.

There are no — no question has been raised, so far that question may be raised.

I mean, I’m not saying it won’t be — but to the present time, it hasn’t been raised.

We have — we have complete jurisdiction both civil and criminal, and always have had prior to the statehood and have at the present time.

They’ve never questioned it.

John M. Harlan II:

Your — your position I gather under Section 4 is that the only effect of it was to prevent Alaska from giving fishing rights in the Metlakatlans — Metlakatlan territory to anybody except Metlakatlan.

Ralph E. Moody:

That is correct and we think, Mr. Justice, it’s a very, very valuable right, a very valuable right in the economic standpoint of Metlakatla and we think that’s all that Congress intended.

Now, we concede they could have gone further but we — but we — we contend this that Congress had intended to give them — give them more, they should have set it out clearly and would have set it out clearly.

Charles E. Whittaker:

I wonder if you would just suggest, how Congress could more (Inaudible) expressed its will than to say absolute jurisdiction and control is reserved?

Ralph E. Moody:

Over all rights, that’s — that’s the question we are here to determine, as I understand, as to what the right is.

Where —

Charles E. Whittaker:

What – whatever the rights are that made it – and this is a question about (Inaudible) but whatever they are, they are reserved exclusively to the United States?

Ralph E. Moody:

That’s right.

Charles E. Whittaker:

And if they are, Alaska has no power over them, isn’t that right?

Ralph E. Moody:

Well, that’s right but the — but the — I’m assuming here that the only right granted was a right — the right to — for them to fish exclusively and not the right that Congress did not reserve the right to regulate.

Charles E. Whittaker:

Well then we get down to a question of always as to what is meant by fishing rights in the context used by Congress in Section 4?

Ralph E. Moody:

That’s exactly right.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Ralph E. Moody:

And of — of course, as indicated in the previous arguments here, the Secretary of Interior has never made any distinction in the past whether it’s in this area of Metlakatla or whether it’s in the area of Kake and Angoon, wherever it might be as to the method, the times and — of fishing, but whether be by Indians, non-Indians, or whoever they might be.

And we think its — that we think that — that our proposed interpretation to what a fishing right is in this regard relative to the fish traps is consistent with the long interpretation or the long policy of Congress with Department of Interior, in connection with the Indians and their fishing rights in Alaska.

Now, going little more into the background as to the relationship of the Metlakatla Community in the State of Alaska, and we have set this out in our — our brief, I may want to call the Court’s attention again is the fact that traditionally, the Alaska legislature, because of depressed areas in the State have set — have set aside to the executive at each legislative session certain funds for depressed areas to be given up by the executive as the situation arises.

In the year 1961, the appellant community was granted $8,000 economic aid from State General funds and there were some 20 communities involved and Metlakatla was approximately 1,000 inhabitants, got this second highest allotment of — of any of the communities in Alaska.

So they’ve been treated by the legislature, by the executive all along on equal footing from the standpoint of economic aid, from the standpoint of citizens, from the standpoint of the courts, and their jurisdiction over them.

And this is the first time, this is first time under territorial status or under states status that the Metlakatla which we have conceded for the purposes of this argument is a reserve, has never raised the question of any state jurisdiction in regards to civil or criminal matters of whatever nature and it appears, to me, to be inconsistent with the — the long policy of the Federal Government and the Department of Interior by the position they are now taking.

As indicated previously, we — we concede that Federal Government has power to treat Indian Reservations in the State or territory which we feel are all regula — regulatory authorities, but in this case, we feel that the Congress does not seem fit to go the full distance on the merit.

That that they have only set aside an area exclusively for the use of these people in fishing, but they left the matter of regulation with the State which have been through in many instances, and many phases of economic and social life in Alaska throughout the years.

Earl Warren:

Does your legislature formally accepted jurisdiction under the 1953 Act?

Ralph E. Moody:

I don’t — I don’t believe (Inaudible).

There was no question ever raised, it would always had full jurisdiction over it.

As I understand the 1953 Act, only gave that right to take jurisdiction where it never existed before.

We’ve are always had — we always had that authority.

It’s never been questioned.

So no action has been taken.

In the answering brief of the appellant Metlakatla Community in this case on page 2 and 3 of their reply brief, they asked the State to indicate what federal authorities has made the decisions that fishing within reserves to be regulated on a uniform system of regulation.

Although, we do not feel that this is incumbent upon us, the appellees in the matter, we’re certainly be glad to indicate our — our thoughts in the matter.

We point to the Presidential Proclamation of 1916 which is Number 1332, set out in 39, Statute 1777 where it was stated that lands were reserved for the benefit of the Metlakatlans and such other Alaskan natives as of — joined them or may join them, and residents on these (Inaudible) to be used by them under the General Fisheries Laws and Regulations of the United States as administered by the Secretary of Commerce, of course which was changed under the reorganization by the Secretary of Interior.

And the — then the Act of 1934 which in part says, “And any reservation heretofore made by any Act of Congress or executive order or proclamation for the benefit of said Indians, shall continue in full force and effect and shall continue to be subject to modification, alteration, or appeal by Congress or the President, respectively.”

Now, the — the — this President Proclamation, this Act of 1934 is still in effect and it’s — if you will look at the — on page 20 — 43 of the appellants reply in — in their brief, not the reply brief, but in their original brief, they state, “Moreover, the Congressional ratification of the Proclamation in 1934, most clearly placed Executive action, our statute on par with the 1891 Law.”

We agree with this statement and we agree that the Act of 1934 confirmed the Presidential Proclamation of 1916 which said that the fishing in these waters would be on — on par with all other fishers — fishermen in the area.

Now they’ve indicated — the appellants have indicated that they’re, “We may not regulate fisheries in reserve on the Doctrine of Preemption.”

They suggest an irreconcilable conflict has arisen between the two sovereigns, and as a result the state power must yield to federal authority.

The fallacy of this argument is – the will — the Secretary of Interior does not constitute the will of Government.

The Secretary has not based his regulation on his own desire he says, but in the way he believes to be the will of Congress that is expressed in Section 4 of the Statehood Act.

Now as to his own authority, he said he has, Section 4 of the Statehood Act as to, in regard to any rights that they might have been established under White Act.

Mr. Gross has covered that and we contend no right was established under the White Act.

The only thing that was established under White Act in connection with these fishers were that they fish on par with everyone else in the Alaskan waters.

If the State suggests interpretation of Section 4 of Statehood Act is correct, that only Congress preserved the status quo, that is the only the right (Inaudible) exclusive use of the waters to fish in, subject to Statehood Act to regulate the manner and means of taking its — taking it on the on the General Fisheries Law, it follows the Secretary’s interpretation is invalid, and no question of preemption arise.

There must be clear and equivocal expression of congressional will by Congress, if state power is to be preemptive and we submit that there has been no clear congressional action in this case.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Ralph E. Moody:

We submit that the policy of Congress, the Secretary of Interior prior to Statehood has just — has been just opposite to what the Secretary’s action was in this case in allowing along the fish trap.

And we contend therefore that the — any regulation he has promulgated to allow fish traps is invalid and of no effect and therefore, the state has a right to regulate.

We therefore respectfully ask the Court to affirm the judge’s dismissal.

Earl Warren:

Mr. Cragun.

John W. Cragun:

May it please the Court.

Because of calculated risk, I find myself with more things to respond to than I have time, but I would like to answer a few things.

One questions from the Court, Mr. Justice Douglas, taking up the statement from the Supreme Court of Alaska that a fish trap catches up to 600,000 fish whereas a seiner takes some 2,000 to 10,000, comes from a 1918 opinion of this Court.

Things have changed since then.

I asked the manager of the Kake cannery about it.

The average catch of a trap is 65,000.

The average catch of big seiner is 45,000 a season.

Maximum possible for a fish trap is about 150,000 of fish and for a big seiner about 75,000 fish.

This is not the ‘big against the small’ anymore.

It might have been at one time.

With respect to the argument of Alaska, I take it that the — yes, the Federal Government does have powers in Indian affairs to grant them money.

I should say that Mr. Schifter’s client, Metlakatla, gets aid from the Federal Government for Indian schools under the Impacted Areas Statute, he has quoted the letter in the appendix to his brief, on the ground that these are Indians.

This is a federal area.

The State comes in, wants money on that ground because this is an exclusive problem under Federal Government.

With regard to Kake and Angoon, they got money under a different Act, the Johnson-O’Malley Act which applies solely and exclusively to Indians so that in both cases, they are getting money from the Federal Government because these are Indians in Indian community.

Mr. Gross thought that the right to use fish traps was not given to the Indians.

It was given to just anybody, but if we take that shore, both whites and Indians have the right to use fish traps if they have the wherewithal to do it, and the Indians ordinarily didn’t until Congress have told them, the United States bought these few traps for them.

They were using them as the matter of right.

When Statehood came, what they were using was not wrongful at all.

It’s more than — I was thinking last night, I should have thought of it earlier, Professor (Inaudible) in his lecture on Fundamental Legal Conceptions said that a bare oral license to walkover Blackacre is an interesting land.

It’s a right.

He uses it as an example of a right in land.

Now, here, these Indians have a right in the use of those fish traps, and the United States said that it reserved to itself the exclusive — no, the absolute jurisdiction and control until disposed of by Congress.

Many of the other arguments I take to be ad hominem, about how difficult it would be for Alaska to reduce — regulating here if a number of fishermen are not subject to its jurisdiction.

But that is not an argument to make to this Court, but they should go to Congress with that and ask Congress to terminate the absolute jurisdiction and control which Congress retained that — with the consent of the State.

The form that I’ve attempted to go into this question of what aboriginal rights there are, I’d like to say that Kake is a tribe so as Angoon.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

John W. Cragun:

They are tribes of Tlingit Indians who were a very closely related people, but Kake and Angoon are just little islands in this whole Southeast Alaska.

We do not assert, and I take it, we could not assert that we could go over all Tlingit territory simply because we are members of the larger Tlingit ethnography.

We are Kake — the Kake tribe was so described in this charter which was obtained from the United States.

The Kake, a tribe of Indians back —

Charles E. Whittaker:

Mr. Cragun, I think that the time you have is little, but I would like to have you tell us whether I correctly understood Mr. Gross’ dissent that these rights are Kake and Angoon had been sued for, the taking of them, and the judgment had been recovered in the Court of Claims, is that right or not?

John W. Cragun:

Yes, it’s correct that Kake and Angoon have brought an action, a suit to the Court of Claims, and have been impelled and entitled to recover for the taking of all their aboriginal rights, but that’s only as part of the Tlingit group.

Congress authorizes by the Tlingit and the Ida the overall of groups and the overwhelming bulk of their land was taken not later than the time of the establishment of the Congress National (Inaudible), so the Court of Claims held.

And with that, of course, vanished their rights to the over overwhelming bulk of their aboriginal lands.

Kake is a little village, it’s got a little property.

Angoon has a little village.

They are aboriginal sites, it’s all that’s left, together with their fish traps of what once was a very vast aboriginal holding.

Charles E. Whittaker:

Well, did the claim advanced in the Court of Claims embrace the same rights as here reasserted by Kake and Angoon?

John W. Cragun:

Yes, to the extent that white people took over the fishing rights that have been exclusively those of the Tlingit and Haida Indians.

The claim did embrace them and it was found that white people had with the permission of Congress taken them, that they have lost their — their exclusive right of fisheries in the whole Southeast of Alaska.

Charles E. Whittaker:

Then I would be interested to hear you say how you can have compensation for that right to the Court of Claims and yet rely on it here?

John W. Cragun:

Well, I think we can get compensation for what we lost.

We can get for no more than what we have lost.

I say that here, there is a thread which never has been lost.

It’s trifling by the side of our aboriginal right, trifling indeed.

It’s merely of thread left of what once was the vast fishery that has been taken from the exclusive use and control of Tlingit Indians.

Charles E. Whittaker:

What is that thread?

John W. Cragun:

The thread is a pitiful 11 fish traps out of their whole vast Southeast Alaskan exclusive use and occupancy when the white men arrived.

Charles E. Whittaker:

But that was embraced as I understood you, I maybe misunderstood you, in the claim you’ve made for the Court of Claims.

John W. Cragun:

Well, the Court of Claims we sued — I say we, I’m not the attorney in that case, the Tlingit Indians — the Tlingit and Haida Indians sued for what was lost and that, at least, is the overwhelming — they claim that everything was lost.

The Court of Claims did say that they have lost their valuable right of fisheries.

Charles E. Whittaker:

Does that mean —

John W. Cragun:

But I — I don’t believe that these seven fish traps, its seven not 11 and I erroneously mentioned that these seven fish traps were brought to the attention of the Court of Claims, they are really de minimis in the terms of the overall aboriginal picture.

John M. Harlan II:

What’s the citation, the Court of Claims opinion (Inaudible)?

John W. Cragun:

The — not officially published this yet.

It’s — appears in federal supplement — 177 Federal Supplement 452.

Audio Transcription for Oral Argument – December 13, 1961 in Organized Village of Kake v. Egan

del

Felix Frankfurter:

Well this — I gather, I know nothing about it except what you’ve just told us, but this claim by this tribe, what’s the name of it, Tlingos?

John W. Cragun:

The Tlingit.

Felix Frankfurter:

Tlingit tribe, is like the claim we’ve had before, decided on this Court, by other tribes who claimed the extinction of rights, which they claim for compensable rights and on which the Court (Inaudible) divided, it’s one of those cases, isn’t it?

John W. Cragun:

Yes it’s a tribal both claim —

Felix Frankfurter:

A tribal claim —

John W. Cragun:

Or it’s like a tribal claim.

Felix Frankfurter:

— or the extinction of what was deemed to be vested or at least compensable property interest.

John W. Cragun:

That’s correct.

Felix Frankfurter:

And this Court has — divided on whether you make out such a case or not.

I don’t quite to be fair enough for this case.

John W. Cragun:

Well, they — the point I believe that which have been made by Mr. Justice Whittaker is that if you lost clearly you didn’t have anything here for Congress to retain absolute jurisdiction and control over.

Am I misreading Your Honor’s question?

Felix Frankfurter:

They haven’t yet won that case at least ultimately.

John W. Cragun:

Oh, no, it hasn’t gone to final judgment and when they get to (Inaudible) I have no doubt that the Department of Justice, Mr. Davis’ colleague will come in and say, “Ah, but here is a little that you didn’t lose and we’re not going to pay for it.”

Felix Frankfurter:

(Inaudible) for that?

Earl Warren:

Very well.