Organized Village of Kake v. Egan

PETITIONER:Organized Village of Kake, Angoon Community Association
RESPONDENT:William A. Egan, Governor of Alaska
LOCATION:Vilage of Kake

DOCKET NO.: 3
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 369 US 60 (1962)
ARGUED: Dec 13, 1961 / Dec 14, 1961
DECIDED: Mar 05, 1962

ADVOCATES:
Avrum M. Gross – for the appellee, by special leave of the Court pro hac vice
John W. Cragun – for the appellants
Oscar H. Davis – for the United States as amicus curiae, urging reversal
Ralph E. Moody – for the appellee

Facts of the case

The State of Alaska threatened to enforce its anti-fish trapping law against two local Native American tribes. The federal government had not designated a reservation for the tribes. The tribes depended on the salmon they trapped for survival and received permits to use the traps from the Army Corps of Engineers and the United States Forest Service, as well as favorable regulations from the Secretary of the Interior. The president of the Kake Village Council was arrested while trying to moor a trap. The tribes sued to enjoin Alaska from enforcing the anti-trapping law. The district court dismissed the suit and the Supreme Court of Alaska affirmed.

Question

Should the State of Alaska be enjoined from enforcing its own law, which conflicts with federally issued fishing permits?

Earl Warren:

Metlakatla Indian Community, Annette Islands Reserve, Appellant, versus Egan, Governor of — of Alaska and Number 3, Organized Village of Kake versus Egan, Governor of Alaska.

Mr. Schifter.

Richard Schifter:

Mr. Chief Justice, may it please the Court.

The last question yesterday by Mr. Justice Brennan is the matter which I would like to discuss a little bit more fully than I did yesterday.

The background relating of the Metlakatla Community is the following.

The Tsimshian Indians of British Columbia and of an area of British Columbia which actually spilled over in the Southeast Alaska had been the recipients — or a group of them had been the recipients of the benefits of a missionary by the name of William Duncan in the second half of the 19th Century.

Mr. Duncan, the late missionary, had organized a community of Metlakatla in British Columbia, but had run into difficulties with the Dominion Government and with the Missionary Society which he represented and had led.

At that time, Dr. Henry Ward Beecher and other outstanding personalities in the United States became very much interested in the matter and interested President Grover Cleveland in the situation at Metlakatla. Father Duncan came to Washington and presented his case — his problems to the United States Government and the invitation to this group to come to Alaska resulted from it.

As indicated, Father Duncan, with a group of members of the Metlakatla Indian Community in British Columbia then moved — and moved on a short distance, 70 miles to Southeast Alaska and established the community on the Annette Islands Reserve.

The Annette Islands were originally set aside by executive action but because a question as to legality of that arose, the Congress in 1891 had an act which set aside the Annette Island specifically by Congressional action as a reservation, as a United States Reservation for the Metlakatla Indians and such Indians as may join them later which incidentally it was typical language for a good number of Indian Reservation statutes in the law code of the United States.

Earl Warren:

May I ask you, how about the invitational was extended, was the — extended by the President or was it through an act of Congress?

Richard Schifter:

It was originally — I’m not certain — first of all it was not by an act of Congress initially.

Earl Warren:

It was not by–

Richard Schifter:

It was not by an act of Congress. These people settled in 1887, four years prior to the first action by Congress.

Because of an Attorney General’s opinion which raised a question as to whether all of these can be done by executive action, Congress then passed this 1891 Act.

The — as far as this 1891 Act is concerned and there is certain language in it that is absolutely crucial to the discussion that we — of that the State of Alaska, well, made later on, the language of the Act specifically provides that the use of this reservation shall be subject to the rules and regulations and restrictions imposed by the Secretary of the Interior.

Now, following the passage of 1891 Act, this community developed at Metlakatla.

Father Duncan was extremely active in strengthening its commercial — strengthening the economy of the group.

He got this Indian group very quickly involved in commercial fishing which just began around the 1890s as a commercial fishing exploitation of Alaska.

It was started there and this particular group really got in on the ground floor and one of the first things that happened and this was in the 1890s, a cannery was established in Alaska — in — at Metlakatla owned by the community.

This cannery has continued in existence since then on and off, it burned down at one time in the early 20th Century and was rebuilt and has — un-interruptibly in existence since, I believe, around 1915 or roughly 46 years.

Earl Warren:

May I interrupt just once more please?

Richard Schifter:

Yes sir.

Earl Warren:

My question is prompted by the fact you said they came from so close a distance from Canada, 70 miles as I understand —

Richard Schifter:

Yes.

Earl Warren:

— you say, I’m wondering if in this land they were brought to, and this reservation was a part of their ancient lands that they roamed or used or in some other manner occupied?

Richard Schifter:

Your Honor, the — the actual area was uninhabited.

I believe that it is part of — considered part of the aboriginal area of the Haidas which is — or the Tlingits which is somewhat different from the Tsimshians.

The Tsimshians were the next-door neighbors —

Earl Warren:

I see.

Richard Schifter:

— right over there.

The — as I indicated the cannery became one of the key elements in economic development of the community and this is really is of great significance in connection with the fish trap situation.

The fact is, that fishing alone by and large has not been able to sus — to sustain a village or any community in Alaska on an economically sound basis.

The reason why Metlakatla as distinct from other communities has been able to develop a viable economy has been this interaction between fishing and the cannery.

This cannery has always been owned by the Metlakatlans.

The members of the community first of all work in the cannery and thereby, the community is therefore — the income from fishing is supplemented by the income from the payroll at the cannery.

And furthermore, its profit is derived from cannery and this is really the most substantial benefit of this fishing economy, the profit in cannery and that has been over the years plowed back into the community through various community projects which the community engages in the off season.

In other words, the fishermen are then employed in building roads and doing various other things during the off season and the profit of the cannery is used in this manner and it is in this fashion that the Metlakatla Indian Community as distinct from some other fishing communities in Alaska was able to establish a viable economy.

Now, one of the —

William O. Douglas:

How about (Inaudible) in this legal question though?

Richard Schifter:

Your Honor I — it relates to a question which was in the Court’s opinion in to the 1950 — in 1959 term namely the relevant factors of a — concerning —

William O. Douglas:

If we — if we were the Secretary of the Interior and we have authority to regulate these things, those things would be very, very relevant, but the question is whether the Secretary of Interior now has anymore authority, isn’t that it?

Richard Schifter:

Yes, Your Honor.

I’m trying to explain as a matter of fact what made the Secretary — I believe at the last argument Justice Frankfurter made the point that I have not put in a flesh on the legal bones of the argument and I wanted to —

Felix Frankfurter:

So you have a hard time, don’t you?

Do you have a hard time in this crossfire, don’t you? [Laughter]

Richard Schifter:

The fact that the United States Government was aware of the — of this economic problem is illustrated then by the specific action of the President, President Wilson in 1916, in spelling out the boundaries of the Reserve with particular reference to the fishing area.

And the specific decision that was made in by the President in 1916 is to define the boundaries as extending 3000 feet into the ocean.

This was an exclusive fishing reserve as spelled out by President Wilson’s proclamation in 1916.

If there ever was any question as to the President’s power to issue this proclamation, it was later addressed — addressed in 1934 when the Congress passed a specific statute which specifically confirmed previous presidential action in this matter.

What was, therefore, done was the setting aside of a — of a water reservation of fifty-six-and-a-half square miles subject to the control of the Secretary of the Interior.

This reservation was considered by this Court in the Alaska Pacific Fisheries case in 1918 and it was at that time confirmed.

It was also mentioned in the case of Hynes versus Grimes by the Supreme Court in 1949 and as Mr. Justice Douglas raised the question at the last argument concerning Hynes versus Grimes, I just want to emphasize that there were two distinct holdings in Hynes versus Grimes.

The first holding was that and that was in connection with the Karluk Reservation that reservations of this type are valid that they may be established and this particular reservation of Metlakatla Reservation was referred to in the decision of the Court at that time.

The Court then went on to say that the criminal sanctions of the White Act do not protect such a reservation that this second holding of the Hynes — in Hynes versus Grimes has no real bearing on the facts in this case.

The first holding, namely that the reservation maybe maintained is crucial.

Since Hynes versus Grimes, the Congress had acted in two ways which may have bearing on the —

William O. Douglas:

I don’t suppose you go as far as to say that these rights of the Indian and such whatever they may be is contensible, are contensible?

Richard Schifter:

I’m not suggesting it in this case and in this instance.

Congress has acted twice since Hynes versus Grimes.

Richard Schifter:

In the first instance, it amended Public Law 280 of the 83rd Congress which was discussed yesterday in another case in 1958, to include Alaska as one of the States subject to the state jurisdiction.

But, when it took this action, one has to note that the Public Law 280 specifically provides that Indians are not to be deprived of right, privileges or immunities afforded under federal statutes with respect to fishing or the control, licensing and regulation thereon.

And this is a very crucial Section in all this Public Law 280 situation that is that with regard to Indian Reservations that are covered by Public Law 280, hunting and fishing is maintained under federal (Voice Overlap) in the case maybe.

Felix Frankfurter:

Where — where is the text of that statute set forth please?

Richard Schifter:

I’ve set out the specific Section in our replied brief, the green brief, bottom of page 3, going over to page 4.

(Inaudible)

Richard Schifter:

That’s right, bottom of page 3 and continuing to page 4.

Felix Frankfurter:

What was the date of enactment (Inaudible)

Richard Schifter:

The amendment was in 1958 extending it to Alaska.

Felix Frankfurter:

No, I mean the original.

The —

Richard Schifter:

1953 Act.

Felix Frankfurter:

1953 and this is 19 —

Richard Schifter:

1958.

The other congressional action and this is the one I presume the State bases its argument on or at least it hopes that this is the time when the State actually obtained authority to move in, is the Statehood Act.

Felix Frankfurter:

I take it that any rights under federal treaty, agreement or statute would cover such discretionally power that the Secretary has on the Statute if it’s their right to recognize it.

Richard Schifter:

That’s correct Your Honor.

The 1891 Act says that.

Felix Frankfurter:

Says that.

Richard Schifter:

That’s right.

Felix Frankfurter:

Yes.

Richard Schifter:

I would now like to turn to the Statehood Act and specifically to Section 4 of the Statehood Act.

What the Court may wish to note is that there are two distinct clauses in this Statehood — in Section 4.

One is, a disclaimer by the State of Alaska as to any right and title to native properly including fishing rights and then second, the provision —

Felix Frankfurter:

Where is that — where is that set forth?

Richard Schifter:

The entire —

Felix Frankfurter:

I notice — I notice that the Statehood Act was prior in time for the amendment of the right — that is right.

Richard Schifter:

Yes, about the same time, both in 1958.

Felix Frankfurter:

Yes.

If one has to go —

Richard Schifter:

A few days.

Felix Frankfurter:

— it becomes a material the Statehood Act proceeding, is that right?

Richard Schifter:

It preceded but bring into effect later.

Congress adopted the Statehood Act, I believe a few weeks prior to the amendment of Public Law 280, but Public 280 immediately went into effect and Statehood had to ratified and —

Felix Frankfurter:

I am not drawing inferences.

I just want to follow this (Voice Overlap)

Richard Schifter:

Section 4 of the Statehood Act Your Honor is set forth in our grey brief pages 58, 59.

As I say, there are two distinct clauses, one the disclaim of right and title, the other one — and this is a crucial in its connection, the reservation to the United States of absolute jurisdiction and control over these property rights, including fishing rights.

I would like to cite the — I would like to cite six reasons for the contention that the phrase absolute jurisdiction and control of the United States supports the Secretary of Interior’s action in this case in outlawing — in refusing to admit the outlawing of fish traps on the Metlakatla Reservation.

Felix Frankfurter:

Isn’t that’s — isn’t the adjective absolute rather unusual in these reservation clauses?

Richard Schifter:

I believe Your Honor is also in the — in the other — in the clauses in the other Statehood Act.

Felix Frankfurter:

In all the Statehood Act, really?

Richard Schifter:

Yes.

The — first of all, I want to emphasize that the words themselves absolute jurisdiction and control indicate the power that the United States intended to exercise.

Second, if we — that we want to examine the Omnibus Act passed by Congress a year later, in 1959, to correct this particular Section.

It took a specific step to reemphasize the meaning of absolute jurisdiction and control as far as reservation — as far as reserving rights to the United States with regard to Indian land is concerned and that is this.

Section 4 as initially phrased applied both to Indian land and to the Government’s own land — U.S. Government land.

When Congress amended the Statehood Act through the Omnibus Act of 1959, it went out of its way to emphasize that the phrase absolute jurisdiction and control shall not — shall not apply to its own land, but only to Indian land.

John M. Harlan II:

Where is that in your brief?

Richard Schifter:

The — it’s on page 47 of the main brief, the grey brief and the legislative history is explained here and the — and a quotation from the Senate report and the House report it says, “This is to make clear that the absolute jurisdiction and control of the United States does not apply generally to land held by the United States in Alaska, but only land and property held by natives or by the United States and trust of natives.”

Felix Frankfurter:

The only burden of this case is the native man, but would you mind in — for instance is to say what — what was left because that’s — with reference the public, the governmental domain other than in the —

Richard Schifter:

Right and title.

In other words, as far as public domain land was concerned, the United States made it clear in Section 4 had right and title but not absolute jurisdiction and control.

Felix Frankfurter:

Does that mean we’re not concerned with the — just curiosity, would that mean that so called police power of Alaska can extend — extend to Government land?

Richard Schifter:

That’s correct.

That’s the way I understand it Your Honor.

(Inaudible)

Richard Schifter:

Beg your pardon?

(Inaudible)

Richard Schifter:

Yes, yes.

Richard Schifter:

And as a matter of fact, this was the very reason why this clarification took place in the Omnibus Act to make — make certain that the police power would extend over the — over United States land, but make it quite clear that it does not apply to the up — to these rights reserved by the second clause of Section —

Felix Frankfurter:

But once an amendment does really amend, doesn’t it?

I say, for once an amendment does —

Richard Schifter:

Well it was oversized–

Felix Frankfurter:

— of a territory.

Richard Schifter:

It was oversight perhaps Your Honor in the first kind of was drafted and being too all inclusive and then they narrowed it.

I’ve also set forth citations from the legislative reports over the eight years which indicated very clearly the intention of Congress to reserve absolute jurisdiction and control over these fishing rights to it.

The problem before Congress as explained by the legislative history was that the United — that the Congress did not want to see itself burdened at the time, it was legislating with regard to Statehood with the problem of Indian rights.

It did not want to change it in anyway and there was this very strong insistence by the Congress to freeze everything regarding Indian rights in status quo and let the matter of Indian rights be determined after the statehood had been obtained.

Advocates of Statehood at the same time recognized go well that if they did get themselves embroiled in argument over Indian rights, Statehood might possibly be defeated both in Congress and possibly in the State itself.

As far as action in Congress is concerned, we have quoted in particular a statement by Senator Anderson who emphasized that the members of the Committee that wrote the legislation all came from the State with substantial Indian populations and therefore we’re aware of the political reality as far as they were concerned in making sure that Indian rights were protected.

And throughout this period, there was a strong pro-Indian lobby which saw it that Section 4 was in no way weakened and we have a citation in —

Felix Frankfurter:

I ought to know but I don’t Mr. Schifter, what is the Indian population relation in total, for the White population so called White population?

Richard Schifter:

Of Alaska?

Felix Frankfurter:

Yes.

Richard Schifter:

The figure which the State office with regard to fishermen is 42%.

I presume it’s less with regards to others.

I believe there about 30,000 to 35,000 natives in Alaska and — and the total population 37,000 out of 226,000.

Potter Stewart:

You have it —

Felix Frankfurter:

37,000 out of —

Richard Schifter:

— out of 226,000.

William J. Brennan, Jr.:

A White man, although born in Alaska currently is not a native man.

Richard Schifter:

That’s correct.

Potter Stewart:

The 37,000 is all natives, Indians, Eskimos and Aleuts or any of them all.

Richard Schifter:

Indian, Eskimos and Aleuts all put together and in that connection, may I emphasize that we claim no right as far as Metakatla is concerned, no special right outside the reserve, as state hasn’t briefed occasionally, suggested that we might be claiming rights all over.

We do not.

We claim only within these fifty-six-and-a-half square miles.

Finally in terms of statutory interpretation, I would like to call attention to the Secretary of the Interior’s immediate action following the passage of the Statehood Act in promulgating — promulgating regulations which specifically authorized the use of fish traps.

And this is particularly important again against the background to the fact that the Secretary of the Interior was instrumental in the drafting of not only the Statehood Act but particularly Section 4.

And we have a statement by Senator Anderson in the brief emphasizing the fact that the Secretary of the Interior and his representatives react – they participated in drafting the Section 4.

Richard Schifter:

So there in the department, there was no doubt immediately after the Statehood Act passed, they promulgated regulations which permitted the operation of these fish traps.

Felix Frankfurter:

Oh but, there was very distinguish men partaking of this oversize, is that right?

Richard Schifter:

Yes Your Honor.

William O. Douglas:

Are you going to talk about Section 16?

Richard Schifter:

Of the Statehood Act Your Honor?

William O. Douglas:

Yes.

Richard Schifter:

No I’m not.

William O. Douglas:

Do you think that’s — is that all relevant to our problem?

Because apparently, the Secretary of the Interior, the reason I mention this because you refer to the Department of the Interior and its regulations, but under Section 6 (e) as I understand —

Richard Schifter:

Oh, 6 (e) I’m sorry.

I understood 16.

William O. Douglas:

6 (e)?

Richard Schifter:

6 (e), yes.

That referred to fishing — the one unique feature about Alaska fishing Your Honor was that both Indian and non-Indian fishing was under the control of the Secretary of the Interior and under Section 6 (e), the Sec — the Secretary of Interior transferred to the new State control over non-Indian fishing.

Felix Frankfurter:

Well here, it was over the whole of Alaska into states.

Richard Schifter:

Yes.

But Your Honor, in some other States though, the territorial Government, they —

Felix Frankfurter:

But I mean as to Alaska; that was all governed from the Interior department.

Richard Schifter:

There was some self-Government.

Felix Frankfurter:

Yes, never get it but —

Richard Schifter:

And but not with regard to fishing.

Fishing was handled directly by the Secretary of the Interior and that —

Felix Frankfurter:

How far is the Central Government, the United States Government and oversize of Alaska, it was the positive (Inaudible) Secretary of Interior.

William O. Douglas:

If that’s not there — that’s not the problem of 6 — of 6 (e) is whether as I understand it, whether not the certificate issued pursuant to Section 6 (e), it give or should have given the State of Alaska full jurisdiction over — says fish and wildlife resources, doesn’t it?

Are those the words?

Richard Schifter:

But these were — these did not — the way the Congress always made it clear in its legislative history was that this Section 6 (e) was to accept Indian resources.

William O. Douglas:

Well that’s possible because that’s one of the questions we have to decide.

Richard Schifter:

Yes.

I just want to emphasize Your Honor that the legislative history makes it quite clear whenever they explained Section 6 (e) and its — and its connection to Section 4 in the reports, they made it clear that there is a transfer of all fishing rights except those reserved to Indian and the specific phrase is you know, our green brief on page 6 to accept from transfer to the State those fisheries and wildlife which are included within the reserve of native right.

This is in both in — in the Senate report in 1950.

William O. Douglas:

Well, that’s Section 4.

I was wondering — I was wondering, the laws adopted by — Alaska adopted laws in 1959 after Statehood to regulate fishing generally, isn’t it, by everybody?

Richard Schifter:

That’s right sir.

William O. Douglas:

And the Secretary thereupon made this certificate as — that the effect of Alaska had taken over the field of regulation of wildlife and fishing, didn’t he?

Richard Schifter:

Your Honor, when that — that’s correct but when the State passed that law, it said it shall not be construed to conflict with Section 4.

Now, that was one of the questions which was still open, which the Alaska Supreme is not closed.

William O. Douglas:

Well, I’m not suggesting that that precludes. I just want to kind of run out the picture of what happened.

Richard Schifter:

Yes.

William J. Brennan, Jr.:

Well, am I wrong that 6 (e) had as primary purpose, provided opportunity to the State of Alaska.

They passed regulatory laws which satisfactory to the Secretary of the Interior would then make possible certification which he did make after the 1959 laws were adopted which became effective 90 days after something like that, wasn’t that idea?

Richard Schifter:

I believe Mr. Justice Brennan the basic intention of Congress was to provide through a transition period.

William J. Brennan, Jr.:

Yes.

Richard Schifter:

— and make certain though that after that period, the State of Alaska (Voice Overlap) responsibility.

William J. Brennan, Jr.:

But it wasn’t — it wasn’t (Voice Overlap).

I just have some recollection at the time that application per se was before me that there was a suggestion that this transition was necessary.

Richard Schifter:

I believe it —

William J. Brennan, Jr.:

— in part to allow the Secretary to be satisfied with the laws that in — were adopted, would not be in consistent with the general pattern of regulation.

Richard Schifter:

I rather assume Mr. Justice Brennan that the intention was to permit the state of Alaska to get its — its enforcement apparatus set up.

William J. Brennan, Jr.:

Yeah.

But wasn’t it to some idea that the enforcement apparatus before the certificate would be granted had to be satisfactory to —

Richard Schifter:

That’s the enforcement apparatus not necessarily regulations but the enforcement apparatus, yes that the people are ready to start enforcing.

William J. Brennan, Jr.:

But he had to be satisfied that they were consistent with the protection of — of wildlife —

Richard Schifter:

As far as enforcement apparatus is concerned.

William J. Brennan, Jr.:

Yeah.

Richard Schifter:

Yes, Your Honor.

William O. Douglas:

Well, it doesn’t — doesn’t quite say that.

It says it has made adequate provision for the administration management in conservation of fish and wildlife.

Richard Schifter:

I believe these words Your Honor do mean that the — do reflect the intention of Congress to delay only until the Secretary of the State of Alaska is able to — to carry on a system of conservation.

I do not think it was the intention of Congress to have the Secretary of — of the Interior dictate in a way that the State of Alaska exactly what enforcement — what enforcement (Inaudible) to pass but mainly to have a —

William O. Douglas:

But certainly the words administration management and conservation of fish would include the regulation — I would assume it would include regulations concerning trapping of fish.

William J. Brennan, Jr.:

Well, indeed, what was the name of the chap whose name was given to this proviso?

It was called the —

Richard Schifter:

Westland, Westland proviso.

William J. Brennan, Jr.:

Westland proviso and he was — he was very concerned that Alaska might do things which were not in the national interest —

Richard Schifter:

That’s correct.

William J. Brennan, Jr.:

— in matters of conservation and such, wasn’t it?

Richard Schifter:

That’s correct, yeah.

William J. Brennan, Jr.:

Was he a great sportsman or something I forgot.

Richard Schifter:

Yes and of State of Washington.

William J. Brennan, Jr.:

He was the national golf champion –

Richard Schifter:

Yeah, that’s right.

Earl Warren:

Mr. Cragun.

John W. Cragun:

Mr. Chief Justice, and may it please the Court.

I speak here for the Organized Village of Kake and the Angoon Community Association.

Unlike the Metlakatla people who came from Canada, these are the people who were always there.

The Court acclaims tells us in a suit they filed there that they have been there since time immemorial that they lived by fishing and that they traded in fish, weighing up surplus goods was an important feature of their economy.

Now, these people —

William O. Douglas:

Are you — you’re covered also by the Secretary of Interior’s Regulation?

John W. Cragun:

Yes sir.

William O. Douglas:

— in 1960?

John W. Cragun:

That’s correct.

There are several trap sites which belong to Kake and to Angoon which were purchased along with cannery equipment from White operators in 1948 and 1950 by the Secretary of the Interior.

William O. Douglas:

Are you within the — was it a technically reservation also?

John W. Cragun:

No sir.

The only thing that these Indians can point to is that they have always been fisherman.

They’ve always lived in this area.

They’re in their aboriginal area and they only have the protection with such things as the trading with Russia guaranteed to be accorded to natives in their own property.

William O. Douglas:

Is that treaty still enforced?

John W. Cragun:

Yes.

It’s never been the denounced that I know of.

Felix Frankfurter:

Again an organized community (Inaudible)

John W. Cragun:

Yes.

Both are organized under the Indian Reorganization Act of 1934 both also have corporate charters in accordance with Section 16 and 17 of that Act.

Those charters, I was able to get only a couple of — a copy of each, were handed up to the court in previous argument and I suppose are with the clerk.

Felix Frankfurter:

Refresh my recollection, what’s your total population?

John W. Cragun:

The total population of Kake is alleged in the complaint to be 400.

The total population of Angoon — this is 1959 that this complaint was filed, there maybe some change since, was stated to be 306.

These people have only the throb left of their original rights, which represents their continuous fishing.

White people have been in there.

They have exploited the fisheries and the Indians have left only what is covered by the Secretary’s regulations.

Now, the posture of this case comes down to this.

Alaska says that its statute, in spite of what I thought were pretty plain reservations, prohibit this Indian trap fishing.

The Secretary of the Interior by his regulation says they’re entitled to fish there and one or the other has got to fall.

This Court has no alternative and neither to say Section 4 of a Statehood Act which says that the absolute jurisdiction and control of these Indian fishing rights shall be and remain with the United States until dispose by it is, is out, it’s unconstitutional because as Alaska says, the conflict with the equal footing doctrine or for some of the other reasons I guess or you must hold that those Alaska’s statutes fall before the federal act of Congress reserving absolute jurisdiction and control.

The fact is that when this complaint was filed, when the Alaska Statehood Act was passed, these people were fishing there under regulations promulgated by the Secretary of the Interior.

The United States in Section 4 of the Statehood Act gave to the new State the power and jurisdiction over fishing subject to they’re getting regulatory machinery and shape under Section 6 (e) which had been adverted to and then they said that excludes Indian property rights including fishing rights which are reserved under the absolute jurisdiction and control of the United States.

I submit that the Unites States have the power to make that provision at the time notwithstanding the state court’s views as to the invalidity of Section 4.

Now before I pass on to whether Section 4 is invalid, I would like to associate myself with something I was sorry Mr. Schifter didn’t get to deal with in his brief.

I — I thought it was quite a lended credence as to the obvious anxiety with which matters of fish traps are dealt with by Alaska and its Supreme Court.

You will find better hostility in this long opinion of the Supreme Court of Alaska towards the fish trap.

Mr. Schifter has documented that beautifully in his brief.

The fish trap in Alaska is hated symbol of colonialism, Alaska colonialism.

Freight operators out of Seattle mostly running these big fish traps, recruiting their crews in Alaska, Alaska didn’t even get the cigarette money that that the crews spent.

It is an intense emotional issue with Alaska and it does enable us to understand the — the attitude and approach of state officials and state court.

Now, to pass that because it is fully covered and fully documented by Mr. Schifter, I would like to go to the reasons which the state court gives in this lengthy opinion for the invalidity of Section 4.

It’s — Section 4 has got to fall, it reaches the point directly.

Earl Warren:

Mr. Cragun, before you get to that, may I ask this question.

If you prevail, is there any territorial limit at all to the right of your people to establish these fish traps?

John W. Cragun:

Well, certainly.

Earl Warren:

What that (Voice Overlap)

John W. Cragun:

These — these people never had rights outside their own area and these rights are within that extremely limited area.

It’s mapped by the Court of Claims.

It’s in the federal supplement.

I regret the big fold-out map that’s in the pamphlet opinion of the Court of Claims sprightly reduced but it can be seen with a magnifying glass.

No, they have no rights outside their aboriginal area and they have no rights except those which are accorded by federal regulation.

They were accorded by federal regulation at the time the Statehood Act was passed and that is what was reserved to these people and all it’s reserved to the notion that is advanced in the State brief that somehow rather while the Secretary could say, “Alright fellows, you can range all over Alaska” is I think reading far too much into our argument.

What was done was reserved something to the absolute jurisdiction and control of the United States and what was reserved was what there and what was there was set forth in federal regulations which are set out in the complaint.

Felix Frankfurter:

And are there rights strictly, closely restricted from your point of view.

John W. Cragun:

Very much —

Felix Frankfurter:

(Voice Overlap) existent at the time of the Act.

In other words, could he oppose — suppose some other fishing devices were invented?

John W. Cragun:

Electronic device.

Felix Frankfurter:

An electronic device, could the — could the Secretary of the Interior confer new opportunities to your people?

John W. Cragun:

Yes sir, I think so.

It’s within his area.

It’s the old problem I have — Mr. Justice Van Devanter had a phrase for it in the — I believe it was the Sandoval case.

The fact that a combine harvester is invented neither enlarges nor reduces the right for the Indian in his land.

I think within these areas which are set out by federal regulation, they can fish if the Secretary says so perhaps only with a hook and line or with gillnets or purse seines or traps or if a new device is invented electronically beats the trap.

Felix Frankfurter:

Power to fix to the land.

John W. Cragun:

Yes (Voice Overlap)

Felix Frankfurter:

(Voice Overlap) fix to the land.

I think that’s your view that sets the land shall be remain under (Inaudible) jurisdiction, so within its territory, the Secretary of the Interior is the master because United States is the master.

John W. Cragun:

That’s correct.

John M. Harlan II:

Could I put that question to you in no difference form?

Supposing a new tribe of Indians moved in with the territory that you’re talking about which were subject to the permissive authority given by the Secretary of Interior, would that be under the Statehood Act reser — the protection under reservation clause?

John W. Cragun:

I believe not sir and here is the reason.

There were nine trap sites which where set forth in the federal regulation as pertaining to Kake and there were four trap sites pertaining to Angoon when the Statehood Act was passed.

Now, these with trap sites, you might say which were bought and paid for by the Indians because the United States put up the money and they — they purchased traps and canneries.

And there is, as the Supreme Court of Alaska says a moral priority to the owner to go in there.

Now, I don’t think the — the Secretary can take that and give back to other Indians.

John W. Cragun:

I don’t believe it’s possible.

He hasn’t permitted Kake or Angoon to fish all of those trap sites.

Out of the nine trap sites which he had authorized when he left some big fish for Kake, he’s permitted only four to be fished.

Out of the four for Angoon’s, he has permitted only three to be fished, but I think that marks the limits on it and I don’t think he can give the right of Kake and Angoon a way the other Indians anymore than can he could authorize taking Angoon to go to other Indian preserves and fish them.

John M. Harlan II:

Could he create some more traps, some more trap rights that were given to a new Indian tribe that might move in there?

John W. Cragun:

An Indian tribe, of course this is quite a ways away from my case.

I — I don’t want to argue somebody else his rights, but if — if you got to try up there that can show the continuous link of fishing, I suppose under the reservation of absolute jurisdiction and control over that right, the Secretary might convert to a trap.

I would assume that so, it’s merely in another way of fishing.

It is a regulation of the method of the fishing and traps are far more satisfactory from a conservations standpoint then other method of fishing according to reputable testimony from the Department of Interior before Congress.

Earl Warren:

What is the approximate size of this area, of this land in question?

John W. Cragun:

Mr. Chief Justice, I — it’s set forth with degrees of latitude and longitude in the regulations and I did not calculate it.

I regret that I can’t give the — I don’t know that I could calculate it.

I didn’t have it calculated.

Earl Warren:

Is it a great area?

John W. Cragun:

I believe not sir.

Earl Warren:

Yes.

John W. Cragun:

These are set forth lying between so many degrees, minutes and seconds and there isn’t much difference in the seconds and I don’t know what to seconds of longitude are in that area.

William O. Douglas:

The Supreme Court of Alaska seems to as far what it says is concerned, seems to react against the use of the trap, I’m reading on page 29 (a) of the jurisdictional statement, in the number two case, which says, “Under the power, it has not been unusual for a single trap to catch as many as 600,000 fish in a single season as compared to a season’s catch of gillnet or purse seine fisherman to the 10,000.

It — the prejudice, it seems in this opinion, be not — the traps were the budge colonialism but the traps were the way for massive extermination of fish.

John W. Cragun:

Well, it’s perfectly true that this is rationalized by the Supreme Court of Alaska.

They did not send us back to reopen this.

I would have been prepared to put competent fish biologists on to prove that the problem is how many fish are taken and how well they are handled and not when you take them hook and line or by some dynamite or some other destructive means.

The traps now catch only an infinite testimonial part of the salmon catch in Alaska because they’re so greatly restricted.

There state brief puts in as its final appendix, a tabulation showing what’s happened in the last two or three years in comparison with earlier years and shows us way done.

Mr. Justice Douglas, may I call your attention to the talk of the state court, at the bottom of page 5 (a) and running the 6 (a) of its opinion.

The top of 6 (a), they give the argument.

I don’t’ think they give it adequately but they give the argument of the proponents of fish traps.

They — they talk on both sides of it, but I don’t think that it was meant to do more than claim of the state police power refers to the regulation of fishing which I think we would all agree.

They haven’t squarely put this on a conservation basis.

They give him both sides sir.

Felix Frankfurter:

Mr. Cragun, may I hold you up for one more second to —

John W. Cragun:

Sure.

Felix Frankfurter:

— have you to tell me that what to relation of the catch of these three communities, traps catches is the total fish economy of Alaska?

John W. Cragun:

Well, I — I can’t do better than accept the state’s — it comes.

Felix Frankfurter:

I did (Voice Overlap)

John W. Cragun:

I cannot find my brief, I somehow mislaid it.

I did calculate it.

This is not the one on which I had calculated but it runs to less than 2%.

It’s practically (Inaudible) even with an outstanding season such as they have this year.

Felix Frankfurter:

2% of the total?

John W. Cragun:

Of the total in Alaska, yes.

It’s on page 63 Appendix D of the State’s brief.

Felix Frankfurter:

Thank you very much.

Tom C. Clark:

I understand you today that the (Inaudible) catch had power to prohibit the (Inaudible)

John W. Cragun:

Well, does — the state him to power to prohibit traps.

Tom C. Clark:

(Inaudible)

John W. Cragun:

Oh yes, I think he does because he has the regulation and control of the Indian fishing.

Tom C. Clark:

They claim any — claim any rights in constitutional right, anything like that above the Secretary’s order?

John W. Cragun:

No.

I think that unfortunately under the decisions of this Court, they can’t pin it on the constitution so ruled in the Tee-Hit-Ton case.

They have an aboriginal right which is a true right and a legal right and one on which they can recover, but because of the political nature of that right, it requires further action of Congress before they can come in and assert it against the United Sates.

Tom C. Clark:

A matter of grace, though?

John W. Cragun:

It is a matter of grace.

It’s a legal right, but there without a remedy until the Congress gives it.

Congress did give it to them in the Court of Claim case.

Felix Frankfurter:

I hope you’ll have time enough left to say your piece about equal footing.

John W. Cragun:

Well I had hoped so.

I have had a one — well, I might as well take it even the expensively (Voice Overlap)

Felix Frankfurter:

Have you more important point Mr. Cragun?

John W. Cragun:

No, I haven’t more important point.

John W. Cragun:

I don’t suppose that neither did the Supreme Court of Alaska.

Supreme Court of Alaska says that this statute is invalid, Section 4 reserving absolute jurisdiction and control of the United States is invalid because it violates the equal footing done.

Now, equal footing is something that Congress accords but it has apparently by this Court been treated as on the level of a constitutional right of the State to be on an equal footing or the other states.

But this Court has repeatedly sustained reservations of Indian rights and Indian fishing rights, both on and off the reservation where treaties provided for off reservation rights under similar reservations.

Not all of them have been absolute jurisdiction and control although the limits referred to in the Sandoval case was absolute jurisdiction and control, the very words we have here.

The Winans case I think is the — probably the outstanding example of what I’m talking about.

There, they met the equal footing doctrine squarely and they met Shively against Bowlby which is also relied upon by the State Supreme Court which held that Tideland that passed the State as part of its being admitted on an equal footing.

The (Inaudible) Brothers case, Dick case, Ex Parte Webb and Sandoval, but I have mentioned two or three times are further examples of reservations and Statehood Acts like this, of rights to the Indians or a power over the Indians, some of them such as Ex Parte Webb is reserving a power over the Indians to prohibit the introduction of liquor, they had been repeatedly sustained by this Court and there is simply nothing to the equal footing point.

Now, I think the other ground given that this conflicts with the State’s police power.

Federal statute must give way before the police power has been plainly ruled on by this Court.

If the Federal Government has power, reservation of exclusive jurisdiction and control then under the Supremacy Clause that overrides the state statute and I take it therefore that there is no basis or saying that it’s in valid.

They made not a point.

They say, “Well, it’s any factor.”

They say that there’s a distinction between in the Statehood Act, between the rights of Indians at — the property including fishing rights of Indians and fishing itself.

Maybe the Federal Government has power to regulate fishing rights, but here what these people are doing is fishing and let Alaska have control over there.

It’s a somatic distinction which frankly I cannot follow and I believe that Congress did not commit a mere meaningless Act in what it did.

Felix Frankfurter:

Before you sit down, I’d like to ask you this question.

There were no treaties between and these communities, were they?

John W. Cragun:

None whatever, there never been treaties with Alaskan Indians.

Felix Frankfurter:

And therefore I would like to ask you, what is the transcending authority, constitutional authority of the United States in relation to have a regular Indians in Alaska (Inaudible)?

John W. Cragun:

It has been set forth many times.

The greatest length or list of the source of power was given in the Kagama case by this Court, K-A-G-A-M-A.

It’s also adverted to in the Sandoval case to which I have referred a number of times, but fundamental — the main basis in the Commerce Clause because this Commerce not just between the States and with foreign nations but with the Indian tribes and here, you’ve got an important element of Commerce.

That alone would support it as this Court has said but there are other sources of power to particularly the power in international affairs to deal with the continent people.

Earl Warren:

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

I appear here on behalf of the Federal Government in support of the position of the appellants that the State of Alaska has no power to impose its fish trap regulations upon these appellants, but rather that the continued absolute jurisdiction and control over these matters still resides within the control of Federal Government acting through the Secretary of the Interior.

Perhaps before I begin my affirmative argument in support of the appellant’s position, it might be helpful if I try to — in my answer to a several of the particular questions which had been raised by members of the Court.

First, with relation to Section 6 (e) which is — and the Westland proviso, the Statehood Act itself provided that for — that fisheries and wildlife resources should not be transferred to the State, but continue on the federal control where they’ve been since Alaska become a territory until the Secretary of the Interior was satisfied that Alaska has provided appropriate fishing and wildlife resource legislation in the broad national interest and then it provided for certification and in — if he was so satisfied and then the — the resources and the enforcement machinery will be turnover to Alaska.

Now, the Secretary did make the certification on April 1959, shortly after Alaska became a state, Alaska became a state on January 3, 1959.

Oscar H. Davis:

But I think it’s important Mr. Justice Brennan to point out that at the time the Secretary made that certification, two things were in existence.

One, he’d already proposed to continue his fishing regulations with relation to these appellants.

He had issued a proposed regulation permitting these appellants to continue and two, the Alaska statute which was then in effect, the Alaska statute prohibiting fish traps said nothing in this statute shall be construed to violate Section 4 of the Statehood Act which —

William J. Brennan, Jr.:

That was — that was the set of facts Mr. Davis, before me on the application (Voice Overlap)

Oscar H. Davis:

That’s right.

William J. Brennan, Jr.:

But the certification had not yet become effective as I recall?

Oscar H. Davis:

The certification did not become effective until January 1, 1960.

But what I just want to point out is that the Secretary did not file the certification, assumed that the Alaska fish traps statutes applied to these appellant Indians because he himself had continued to regulate them and the statute, the Alaska statute which was then in effect contained a section which said, “Nothing in this statute shall contravene anything in Section 4 of the Statehood Act.”

Now, we’re precluded from arguing on the basis of the Alaska statute because the Alaska Supreme Court has since that the time construed it to apply to these appellants’ fish traps.

Now, as to what the power of the Secretary would be as to these Indians or other Indians in the future, I want to make it clear that in point of view of the Federal Government, he does not have power at large.

Section 4 refers to fishing rights held at the time of Statehood, held at the time of Statehood.

And as we construe Section 4, if I may intervene to go back just a minute, Section 6 (e) was in the Statehood Act.

That’s the transfer of jurisdiction over wildlife and fishing to the State, but Section 4 was also on the Statehood Act, the very same Act provided for reservation of Indian fishing rights and so that Section 4 read in pairing material with Section 6 (e) reserved fishing rights whatever that maybe.

William O. Douglas:

And whatever that maybe, as I read the legislative history was left for legislative — future legislative and/or judicial determination, is that right?

Oscar H. Davis:

That is right Mr. Justice Douglas, with this exception that they did not want to make any change.

They wanted to maintain the status quo.

They very clearly did not want to grant any rights to Indians or take away weight.

William O. Douglas:

Well, I’ve been able to find anything that describes with clarity with which you plead what these fishing rights were.

Oscar H. Davis:

I will try in a moment to reach that.

I was just trying to — to answer some of the specific questions and the burden of my argument —

William O. Douglas:

Keep coming back in legislative history to the phrase or such as a legislature or Congress or the courts show (Voice Overlap)

Oscar H. Davis:

Yes.

I will try to deal with that Mr. Justice Douglas but before I do, I just wanted to answer the — the question as to what the power of the Secretary was in our view with relation to these Indians or other Indians.

Earl Warren:

But then as I understand Mr. Davis, so far as the Metlakatla Indians are concerned their fishing trap rights or rather rights are limited to the reservations?

Oscar H. Davis:

That is right.

Earl Warren:

As to the — the —

Oscar H. Davis:

Kake and Angoon.

Earl Warren:

Kake, as to their ancient lands, whatever those ancient lands might be.

Oscar H. Davis:

While, I think it’s — it’s even more precise than that Mr. because the Sec — at the time of Statehood, the Secretary had said that there were 21 fish traps sites as a whole for all three groups, 21.

He only authorized 11 traps, but there were 21 sites as a whole, all within the same general area.

Oscar H. Davis:

In our view, he can extend to the 21 sites, that is he can increase the number of fish traps from 11 to 21, which were at that time in existence for these groups.

He can decrease it.

He cannot go beyond that —

Earl Warren:

Number.

Oscar H. Davis:

Number —

Earl Warren:

And cannot go beyond those territorial limits.

Oscar H. Davis:

That’s right.

Earl Warren:

Yes.

Oscar H. Davis:

That is right.

Felix Frankfurter:

And you say he can go beyond the number within the territorial limits.

Oscar H. Davis:

Well, that’s right.

Felix Frankfurter:

Well — well, now just go beyond that — beyond the 21 fixed sites.

Oscar H. Davis:

No.

He cannot go beyond the 21.

William J. Brennan, Jr.:

So that there are 21 fixed sites.

That’s the point.

He can’t move —

Oscar H. Davis:

That’s right.

Yes sir, yes.

William J. Brennan, Jr.:

— the 21, helter-skelter.

Oscar H. Davis:

I — now, I should make it clear to the Court that this is the view of Department of Justice, the Department of the Interior thinks he can’t go beyond the 11 which were in actual existence at the moment of Statehood.

Well, he hasn’t tried to go beyond the 11 and I don’t think the Court has to decide that issue because —

William J. Brennan, Jr.:

But whether it’s 11 or 21, in any event, they are fixed site?

Oscar H. Davis:

That is right.

William J. Brennan, Jr.:

— which pinpoint territorially whether they (Voice Overlap)

Oscar H. Davis:

That is right and he cannot move them around.

Felix Frankfurter:

Does that include also the question I put to Mr. Cragun, a change in the method even at those fixed sites electronic as Justice Douglas (Inaudible) changed, that’s not this case.

Oscar H. Davis:

It’s a difficult question Mr. Justice.

I would be inclined to think that he could not make a change and at the time of Statehood, they were fish traps and that was — that was the fishing right they had, but — but I don’t wish to give a — a definitive answer.

Felix Frankfurter:

(Inaudible) that question has not stirred here.

Oscar H. Davis:

That’s right Mr. Justice.

Now, the — as Mr. Schifter pointed out yesterday, there’s a very great difference between the opinion of the Supreme Court of Alaska and the position taken by the State in its brief which was filed a week ago.

If I may, at the outset, I’d like to be with the opinion of the Supreme Court of Alaska, which the Attorney General of the State has not thought it necessary to support in his brief because I would like to make it clear to the Court that in our view, the propositions — the legal propositions announced by the Supreme of Alaska are wrong, and — and should be repudiated by this Court because they have a — well radiation beyond this particular case with relation to the Indians of Alaska.

I do not intend unless the Court should wish me to stand a great deal of time on — on — on these issues because the State does not seek to support them, but I would like to state our position on it.

And the first position is the Supreme Court of Alaska said that the Indian power of Congress does not extend to Alaska.

It may extend to the rest of the continental United States but it does not extend to Alaska.

That is refuted by any — by three or four decisions of this Court which the Alaska Pacific Fisheries case and (Inaudible) case and Hynes against Grimes Packing and decisions in the lower courts which have held that — that the Indian power of Congress does extend to Alaska.

It’s — it’s refuted by the consistent legislative Congress from the time it began rarely to legislate for Alaska in 1884 and the Organic Act of 1884 in which made special provision for — for Alaska Indians.

It’s refuted by the Metlakatla legislation by the extension of the Wheeler-Howard Act, the Indian Reorganization Act, one of the great charters of Indian progress in this country to Alaska.

It’s — it’s even refuted by the provisions of the 19 — 1953 statue that Mr. Justice Frankfurter was asking about, extending criminal jurisdiction to Alaska but excluding fishing plan.

So I think there’s really nothing to that point.

And the second point, the Supreme Court of Alaska makes or suggests is that equal footing prevents a reservation by the Federal Government as we think it tried to do in Section 4 of the Statehood Act, of rights with relation to Indians and Alaska and again the decisions of this Court as Mr. Cragun has indicated consistently hold otherwise.

What the Court has held is that in a Statehood Act, the Federal Government can reserve rights which it would have the power to exercise under the regular granted provisions of the constitution.

In Coyle against Oklahoma, the case which said Oklahoma couldn’t — could not be prevented from moving its capital from Guthrie to Oklahoma by prohibition in the Oklahoma City by prohibition in Statehood Act, the Court three times when out of its way to indicate that with respect to those matters, particularly Indian matters which the Federal Government have granted powers on the Commerce Clause, of course it could reserve powers.

And — and this was repeated in the Sandoval and other cases.

And I think almost every Statehood Act since the 1880’s or 1870’s has contained a reservation with relation to Indians except Hawaii which has no Indians and they’ve contained a reservation with relation to Hawaiian natives in that statute.

And so that’s the second point of the Supreme Court of Alaska which I think it’s just wrong if may say so with respect to the Court.

Then the Supreme Court of Alaska seem to think that the reservation in Section 4 which reserves to the absolute jurisdiction and control of the Federal Government land and property held by for the Indians including fishing rights, reserve that — that that failed because the — there wasn’t a meeting of their minds between the State of Alaska and Congress.

Now, we spell at the answer to that in our — in our brief and I think for the short answer that I may say is that the Alaska Statehood Act provided that the people of Alaska would have to take a vote on the entire statement under — under disclaimer provision, the one we have here and if they adopted it, as they did, the Constitution of Alaska shall be deemed to be amended in pursuance thereto.

So, I think there’s nothing to that point.

Then the last point made by the — by the Supreme Court of Alaska in this respect is that the Omnibus Act Amendments, that’s the Amendment which — which said that the absolute jurisdiction and control of the United States didn’t continue for federally owned lands generally and only for lands which were held by for the natives, but that was invalid because it was passed after Statehood.

The State does not rest on that because I think it would not want that the grant of jurisdiction that it received under that Act over federal lands generally to be invalidated, but I think that legally speaking, the Supreme Court of Alaska was erroneous there to.

Because first, it’s very clear from the legislative history that Congress thought it was correcting an error.

It says in the — in the reports, we intended to limit this after jurisdiction and control only to native, to Indian lands and we inadvertently did more and of course there’s a tremendous area of Alaska which — in Alaska would be deprived of the police power if the words were taken literally, and that’s why they amended it.

I should say — I think there were questions asked about public lands in Alaska.

The Statehood Act does contain provisions for setting aside of defense area of Alaska in which the Federal Government would have exclusive provision — exclusive authority completely but that’s in a separate section with its own powers and authority.

As to the other public lands and — and this defense area was limited geographically to a certain section of Alaska, as to the others, Commerce has made it clear that the normal civil and clinical jurisdiction extends to the federal lands.

Now, I think I would like to turn to what I consider in which I think the State considers now, the really basic issue in this case which is — what is meant by the term fishing rights in Section 4?

I wish to make it clear on behalf of the Federal Government that fishing rights that I espoused here, we do not think of vested or compensable as against the Federal Government.

That is we don’t think the Court has to decide this issue in this case at all.

Oscar H. Davis:

I just wish to make it clear so that there be no misapprehension as to position of the Federal Government.

Potter Stewart:

Your estoppel —

Oscar H. Davis:

Well, sometimes we found that — that — it must be make it clear counsel thinks that (Voice Overlap) pardon me?

You have hardship.

Oscar H. Davis:

Pardon me?

You expect hardship.

Oscar H. Davis:

That’s right.

I just want to make it clear that — that we think that these are fishing rights which are protected us against the State of Alaska and are protected in which the Secretary of the Interior can control and regulate.

They’re contestable in the sense that if the Secretary should refuse to continue them or Congress should say that Secretary stop fishing traps in Alaska or if this Court should hold against us and say that Alaska can regulate that they would be no suit in the Court of Claim saying that, “By Section 4 we gave up these rights.”

But with that disclaimer which I think the Court may not reach at all in this case.

We do think that — that the fishing rights which were protected, which are protected by Section 4 are involved in this particular case.

What is our view of what a fishing right within the meaning of Section 4?

Our feeling is that if say a permission, a license, a privilege, a right on actual fishing by or in behalf of Indians as Indians under the aegis of the Federal Government.

Now, those are general words and I will try to fill them out with relation to the particular groups here.

As Mr. Schifter has pointed out, from 1891, the Metlakatla’s have been subject to the supervision and jurisdiction of the Secretary of the Interior.

Both Congress and the President have made very clear that they have fishing rights in — in their reserve.

They are spelled out in the President’s executive order.

It’s made very clear in the decision of this Court in the Alaska Pacific Fisheries case.

It’s assumed and confirmed by Congress in the various statutes.

So these fishing rights come under a federal statute.

They come under complex of federal statutes with relation to Metlakatla.

They are not vested we think and the Metlakatla’s do not claim they’re vested, but they are fishing rights under a federal statute, which were in existence at the time of Statehood.

Felix Frankfurter:

I don’t understand why you’re saying not vested.

Oscar H. Davis:

What I mean by not vested is that if the Congress repealed the statutes, they could not sue the United States.

Felix Frankfurter:

(Voice Overlap) vested against Alaska?

Oscar H. Davis:

They are not vested as against United States.

Felix Frankfurter:

Okay.

Charles E. Whittaker:

Congress might be able to change it but presently, they do have some fixed vessel rights, wouldn’t they?

Oscar H. Davis:

As against Alaska, as against private parties not as against the United States.

Charles E. Whittaker:

Well, Mr. Solicitor, vested on not against the United States, it’s part of the larger problem of Indian rights against him (Voice Overlap)

Oscar H. Davis:

Well that’s right.

That’s right, that’s right.

Felix Frankfurter:

That’s true of Metlakatla.

Oscar H. Davis:

That’s true.

Now, to go on to the Kake and Angoon, which are in a little different situation but we think basically not dissimilar Mr. Justice Whittaker because the situation in those cases is this.

Both of those Indian communities which existed as any to communities for a long time were charted under the Wheeler-Howard Act, the Indian Reorganization Act.

And that we think is a terribly significant factor because the Wheeler-Howard Act provided, and I’d like — if I could to give the tone of the Act just to read to the Court its — its title because it’s very important.

The Wheeler-Howard Act was an Act to conserve and develop Indian lands and resources, to extend to Indians the right to form business in other organizations, to establish a credit system for Indians, to grant Indian certain rights of Home Rule provide for vocational education for Indians and this was extended to Alaska.

The purpose of the Act was to encourage these Indian communities to develop businesses so they could become self-sufficient and self-sustaining and have a viable community.

That was very purpose.

Under it — under it the Secretary of the Interior loaned money to Kake and Angoon.

He purchased on their behalf the Indian canaries which they operated.

Those Indian canaries in the case of Kake and Angoon are held by the United States in trust for the Indian groups.

He supervises their finances.

It’s all part of the — of the purpose of the Wheeler-Howard Act to encourage these Indian communities to become viable communities.

Charles E. Whittaker:

Was that done to the Metlakatla also?

Oscar H. Davis:

Yes.

But I mean the Kake and Angoon do not have the special statutes referring to them particularly by name which exist in Metlakatla.

Metlakatla has statutes which refer to them by name.

Kake and Angoon do not have statutes.

I’m trying to point out that though Kake and Angoon do not have statutes which refer to them by name, they are basically in the same position that as general statutes which Congress passed and which Congress directed the Secretary of the Interior to use for Indian tribes in Alaska, he used for these two groups.

William O. Douglas:

He could have —

Charles E. Whittaker:

(Inaudible) right hand upon the fact that it was an Indian community or ban this specific grant to produce in proclamation?

Oscar H. Davis:

I think it depends upon the fact that they were exercising under federal statutes and under executive orders a fishing right at the time of Statehood.

And I think that Kake and Angoon were exercising a fishing right under the Wheeler-Howard Act and under the — the designation by the Secretary of the Interior that they could use fish traps.

He meant —

Felix Frankfurter:

The point of your argument is you’re trying to fix that established what interest they enjoyed as of the date of Statehood.

Oscar H. Davis:

And further Mr. Justice Frankfurter, I’m trying to share that this was pursuant to statute of Congress and not something at large in the air.

That was a pursuant to statute of Congress and that a fishing —

Felix Frankfurter:

But at large, you might not be able catch it. [Laughter]

Oscar H. Davis:

And that if where pursuant to statute or executive order or long used and occupation recognized by Congress, that’s the kind of fishing right which Congress intended to protect under Section 4.

William O. Douglas:

The Secretary then can abolish all these traps for next season if he wanted to do.

Oscar H. Davis:

In the view of the Department of Justice, I have to make it clear that the Interior Department thinks that he is stuck with the 11 traps and that he cannot himself abolish them.

But in the view of Department of Justice, he can abolish that he has the right in our view.

The Interior Department as indicated in our brief thinks that he has — he cannot neither nor decrease the 11 traps which were in existence at the moment of Statehood.

William O. Douglas:

That’s the — the view of the Interior department?

Oscar H. Davis:

That is the view of the Interior department.

We do not take that view.

Charles E. Whittaker:

Whether he could not (Inaudible) premises right with reference to have adopted (Inaudible)

Oscar H. Davis:

Oh yes, there’s no doubt.

And interior has no doubt that Congress could.

I mean they don’t have any examine about that.

Now, I will confess that there isn’t very much in the legislative history which bears directly of the meaning of the term fishing rights that is specifically.

There is this background that Congress was very well aware of how important fishing rights was to these and other Indians in Alaska, that Congress was very much aware of that.

Congress was also aware of the — of the great antipodally of the people of Alaska to fish traps generally.

It was aware of and even though it was of that, it did pass Section 4.

William O. Douglas:

Of course there are some — the fishing resources as I gather in Alaska had been so seriously depleted that some had even able talked about stopping all fishing.

Oscar H. Davis:

Well, that is true.

But there is — there is–

William O. Douglas:

For year or two.

Oscar H. Davis:

Yes.

As you know Mr. Justice, though the people of Alaska, as indicated by Senator Gruening in — on the floor Congress and (Inaudible) think that fish traps are anti-conservation devices, the Interior department fish and wildlife people do not think so.

They think that a fish trap appropriately regulated can be just as a —

William O. Douglas:

I suppose that’s whether you applied fisherman or – [Laughter]

Oscar H. Davis:

Anyway, in this particular case, there was no evidence on this issue — on this issue.

And I — and Congress was fully aware of the — of the conservation claims of people of Alaska.

They were, there’s — I think two or three surveys of this and Congress never decided the issue that is it never found that fish traps were —

William J. Brennan, Jr.:

Do you think you can never catch one of those salmons of that size on the fly?

Oscar H. Davis:

I’m not that kind of sportsman Mr. Justice Brennan. [Laughter]

Felix Frankfurter:

Mr. Davis — Mr. Davis, in fishing rights broadly speaking, the opportunity to catch fish, I’m not offering this for technical.

Felix Frankfurter:

Let’s say an indication then whether traps other deemed at the Interior’s instruments (Inaudible) for instance, having conservation instrument are means for enabling (Inaudible) fish would — would be raised on this — on the basis of ultra vires of the Secretary would implement that authority that he has.

Oscar H. Davis:

That’s right!

Felix Frankfurter:

And that could be done either if the Court take judicial notice that traps are destructive implements all by proof?

Oscar H. Davis:

That’s right.

And I think the Court cannot take judicial notice of it and there has been no proof of that and this was a matter that Congress considered, but (Voice Overlap)

Felix Frankfurter:

(Inaudible) You are syaing Congress considered this?

Oscar H. Davis:

In a sense no, that Congress has been aware of the claim of the people of Alaska that fish traps are anti-conservation devices, and knowing that claim nevertheless passed this statute.

Felix Frankfurter:

Broad statue — unlimiting statute.

Oscar H. Davis:

That’s right sir.

Felix Frankfurter:

Leaving his conduct subject to attack in a way which authorized conduct by executive (Voice Overlap)

Oscar H. Davis:

That’s right.

And I would think that Mr. Justice to go one step further that even if the Secretary had no power to allow fish traps one reason or another, that would not give authority to the State of Alaska to enforced its criminal statutes.

You would have to sue the Secretary in the usual way and have to set aside his regulations.

The State of Alaska would not have power to enforce its criminal statutes and that’s what this case is about where —

Felix Frankfurter:

Are you that — am I going to refer from that, that although there is no regulation by the Secretary of the Interior, Alaska would be without power evoked by under its police power to be with the proper — with a problem like this?

Oscar H. Davis:

Yes, I would say that.

Felix Frankfurter:

You have to say that.

Oscar H. Davis:

I would say that.

I would say that — the Secretary did have — of course had a regulation from the very beginning.

Felix Frankfurter:

But in the absence of it and his appeal is free until the — either Congress or Secretary acts.

Oscar H. Davis:

I would say that.

And I would point out Mr. Chief Justice Frankfurter (Voice Overlap)

William J. Brennan, Jr.:

Or this Court.

Oscar H. Davis:

Or this Court, always this Court. [Laughter]

William J. Brennan, Jr.:

Mr. Davis, does that mean this too that if the Secretary now may change his mind and not authorize use of any these traps, but Indians went ahead nevertheless and used it and any sanctions would have to be imposed under some federal law could not in any event permit Alaska to impose its criminal law.

Oscar H. Davis:

Well I’m not sure of that Mr. Justice for this reason that in his present regulations the Secretary in many other respects adapts the Alaska regulations that isn’t relation to under things.

William J. Brennan, Jr.:

But it has the provisions of the White Act too, aren’t they?

Oscar H. Davis:

Well, that’s right.

I think the White Act provisions would apply and that that federal sections would — would also apply.

I’m not certain with the Secretary by adoption of the Alaska game laws or fish laws couldn’t also make those applicable.

Oscar H. Davis:

In the — as I mentioned before, there is nothing that I can point you, nothing very substantial that can I can point to, defining what the term fishing rights is in Section 4, but there are some indications, in addition to the general history of the background of this case.

And one of the important things that I would like to stress is that Congress was aware of the importance of fishing to these Indian communities and others in Alaska. That was a very important factor that Congress was aware of generally.

I think it was aware perhaps not specifically of — of all the fishing by these Indian groups, certainly they aware of the Metlakatla of what they’ve been doing.

They — I think Congress was aware the fact that in the Felix Cohen’s handbook in 1940 and his handbook on Indian law published by the Interior Department, under this chapter on Alaska natives, Alaska Indians under the rubric fishing and hunting rights, he discusses this along with others that is — I think the Attorney General will indic — will talk, say that the statute is limited to certain specific ceiling rights which Congress gave to the Indians that very — and natives at various times.

But what I want to point out is that in 1940, Felix Cohen in the authoritative handbook talking about fishing and hunting rights in Alaska for Alaska Indians, refer to these fish trap types of — of commissions as part of the — of the fishing rights of the Indians in Alaska as well as the others.

Now, Governor Heintzleman of Alaska who was the Governor in 1954 at a hearing and this is not spelled out in our brief and that’s why I take time to mention it, Governor Heintzleman in Alaska — of Alaska talked about fishing rights before congressional committee as rights which were exercised for a long time under used on occupation by the Indians.

He used the term fishing rights and it was quite clear from the context that he wasn’t talking about a kind of right that you have to — have a deed for or — because he said there were no written papers indicating what fishing had been done by these Indians that you could find it out by — by — by evidence and proof.

Now, all these we think really add up to the fact that when Congress used the word fishing rights, it used in the sense of the fishing which was done by Indians as Indians.

Now of course, we don’t claim that every Indian in Alaska is controlled by the Federal Government because most of the Indians in Alaska who do fishing are not under aegis of the Federal Governments.

One of my colleagues pointed out to me if an Indian, who happens to be a drugstore (Inaudible) Alaska goes out fishing on Sunday, he of course is not under the control of the — of the — of the Interior Department.

Or if an Indian happens to be a member of a fishing crew in some other part of Alaska but he is not fishing as Indian.

An Indian who happens to be fishing in Alaska and the — the Indians that we are concerned with and there, the only ones concerned with here are the Indians who has special treatment, special rights, special history under the Secretary of the Interior and under the legislation which covers as enacted for the Metlakatla, specifically for Kake and Angoon under the Wheeler-Howard Act as it was applied to Alaska couple of years later.

William O. Douglas:

To exercise Indian fishing rights, you have to fish with the trap, I gather.

Oscar H. Davis:

No, they are — no, there are other Indian fishing rights and perhaps I should make that clear Mr. Justice Douglas.

There are other fishing rights which are not involved in this case, which involved special use of special equipment on the Yukon and Kuskokwim rivers.

They were seal fishing in the — of the Pribilof and there — in the Coquille reservation, they have a right to use bigger kind of gear, not a fish trap but (Voice Overlap)

William O. Douglas:

And any of them use dynamite or explosives to kill fish?

Oscar H. Davis:

Well, I think not.

I mean, I think as I’ve indicated to Mr. Justice Frankfurter without taking a definitive position on it that the Secretary is limited to the kind of fishing that these people did.

William O. Douglas:

Some people say that’s — that’s the way of getting rid of the fish?

Oscar H. Davis:

Well, I think the Court could take judicial notice that was an anti-conservation.

William J. Brennan, Jr.:

Mr. Davis.

Earl Warren:

Go ahead, go ahead.

William J. Brennan, Jr.:

First time, I just asked two questions, has the Secretary of the Interior yet promulgated the authorization for —

Oscar H. Davis:

The coming season.

William J. Brennan, Jr.:

— the coming season?

Oscar H. Davis:

In 1960 Mr. Justice Brennan, he made a continuing regulations.

William J. Brennan, Jr.:

I see.

Oscar H. Davis:

Not — he doesn’t do it year-by-year anymore.

He said that from here on out, they can fish at these 11 traps unless I, otherwise order, so that continues in effect.

William J. Brennan, Jr.:

Now my second question is, there’s presently outstanding stay against the enforcement of the Alaskan statutes.

Oscar H. Davis:

Yes.

William J. Brennan, Jr.:

If the view with the appellants here prevails, what’s your view of the remedies, should that stay made permanent or is a new declaration sufficient?

Oscar H. Davis:

Well, with due deference Mr. Justice, I think it would depend upon the representation of the Attorney General of Alaska.

If he — if Alaska will — will abide by the decision of this Court as I’m sure it will, I would think that a declaratory judgment would be sufficient.

William J. Brennan, Jr.:

As — the request for release, I haven’t check it again, but am I not right initially before the territorial court it was for injunctive relief?

Oscar H. Davis:

Yes.

But one — at least, I checked one of the complaints.

I did not have the time to check the others.

One of complaints also asked for declaratory relief, maybe they do.

In any case, I think that the Court could (Inaudible) an injunction against the Governor of the State if was it satisfied —

William J. Brennan, Jr.:

Well, we have affirmatively dissolved the outstanding stay.

Oscar H. Davis:

That’s right.

William J. Brennan, Jr.:

But its customary not to grant injunction but take for granted which what you’ve said (Inaudible) or any others.

Oscar H. Davis:

I think that’s true.

William J. Brennan, Jr.:

Well, the difference here though and that’s the reason I raised the question is that they have an outstanding stay against the Governor and the other officials of Alaska.

We have affirmatively dissolved the outstanding stay.

Oscar H. Davis:

Well, I think that if the Court should decide that they were the appellants’ issue or declaratory judgment or order the lower court, I presumed that the State of Alaska would abide by that and the stay could be dissolved.

Earl Warren:

Mr. Davis, I have one question.

I understood you say to say to Mr. Justice Frankfurter that — that even if it was decided not to have these traps that under circumstances would the State have any criminal jurisdiction over these fishing rights.

Now, did you make any distinction between is because of their different situations between the Kake group and the other one?

Oscar H. Davis:

Well, in a later answer to a similar question asked by another Justice, I qualified my answer to Mr. Justice Frankfurter.

I said that I thought probably the Secretary, as he’s done with respect to other rights, could provide that fishing rights, if he wished to abolish fish traps, he could say, “They shall be govern by the Alaska regulations.”

Earl Warren:

Oh yes.

Oscar H. Davis:

He has done in the (Voice Overlap)

Earl Warren:

Yes, but in the absence of — in the absence of some set regulations by the — the Secretary, Alaska would have no jurisdiction, you say?

Oscar H. Davis:

Well, I think Alaska would have no jurisdiction but it would be a violation of the Federal White Act which provides for fishing by anybody in — in contravention of the authority of the Secretary and if the Secretary withdrew the permission to fish — to use these fish traps, it would be a violation of the White Act which has very severe penalties, I think severer than the State of Alaska.

Earl Warren:

Just one other question.

Did I understand counsel correctly that these fish traps amount to only about 2%?

Oscar H. Davis:

I think that is right.

John M. Harlan II:

Could I ask one question before you sit down on your broad judicial (Inaudible).

Assuming that there’d been no Wheeler-Howard Act, no action by the Interior with respect to Kakes and Angoons, would you still say — would you still argue that their rights are protected on restriction for the State of Alaska?

Oscar H. Davis:

Well, that’s a much harder question, Mr. Justice — yes.

John M. Harlan II:

That’s the question I want to put to you?

Oscar H. Davis:

Yes, yes I mean to answer, I mean to answer but I just want to indicate that in my view, it’s a much harder question than the — than the question you had me —

John M. Harlan II:

It becomes is harder in Alaska, because of what?

Oscar H. Davis:

Because of the fact that Congress has authorized the Secretary of the Interior to take action with respect to Kake and Angoon.

That is in the Wheeler-Howard Act, Congress authorized him to foster a fishing — an economy.

John M. Harlan II:

Economy, no —

Oscar H. Davis:

There’s nothing —

John M. Harlan II:

Nothing else.

Oscar H. Davis:

Yes but they didn’t limit and he — and they knew when — certainly when they extended the Act to Alaska as they did in, and I think in 1936, that fishing was the major occupation which the Indians of Alaska would be able to get into, that was a major one.

And so, the point I was trying to make Mr. Justice is that Congress did authorize him to take this action, providing canaries and to give money and so therefore that this is not something at large or something which even the Indians had been doing on their own.

It’s something authorized by Congress through its delegate, the Secretary.

Now, to get back to your other question, if they had been no such that if these Indians had been just fishing with fish traps because the Secretary had allowed them along with all the others to fish with fish traps.

I think that question would be whether they could long continued use an occupation of these particular sites, and if they could then I think that — it was a fishing.

I’m not certain that they could, but I mean if they could that I think would be fishing wholly apart from the authorization given by Congress through the Wheeler-Howard Act and the mechanism that it’s — thank you.

Earl Warren:

Attorney General Moody.

Ralph E. Moody:

Mr. Chief Justice, may it please the Court.

I move the — that Mr. Avrum M. Gross of Alaska Bar be admitted pro hac vice.

Earl Warren:

Motion will be granted, Mr. Gross?

Avrum M. Gross:

Mr. Chief Justice, may it please the Court.

Mr. Justice Douglas pointed out early in the appellant’s argument that the real question here is the interpretation of Section 4 of the Statehood Act and that Section 4 deprives Alaska of authority to regulate any Indian fishing rights.

The real issue for this Court today is whether these appellants have fishing rights.

Now, I don’t believe this Court can decide that question without understanding what the regulatory scheme in Alaska was prior to the Statehood Act because all parties to this litigation are agreed that no rights were created in the Statehood Act, only rights were preserved.

So the question is, what rights that Indians have prior to Statehood?

Prior to 1924, regulation of the Alaska commercial fisheries was nearly non-existent although the power did exist in the Federal Government, but in 1924, Congress adopted the White Act.

Now, the White Act perhaps remains a model for most state conservation programs today.

Under that Act, the Secretary of the — or Secretary of Commerce was subsequently transferred to the Secretary of the Interior was authorized to do several things.

First of all, he was authorized to set up areas in Alaskan waters over any area in Alaska, over which the United States had jurisdiction through (Inaudible).

Avrum M. Gross:

It sets these areas of any waters of Alaska.

Now, once he set up these areas, he could regulate the fishing within them.

By that I mean that he could prescribe methods, means, times of fishing, seasons of fishing.

Now, under the White Act, traps were allowed in Alaska, but there’s been confusion raised here and I want to clear it up as quickly as possible.

The appellants say that the Secretary of the Interior authorized them to use fish traps.

Now that is simply not true.

The Secretary of the Interior passed regulations which allowed anyone to use fish traps in a particular area, just as a particular any other type of equipment was authorized, nets, hook and line, anything.

Traps were one of the types of equipment which were authorized to be used in a particular area of water.

No particular community or person was ever authorized to use traps in Alaska.

I think that’s crucial because — because all through this litigation, I think the impression has been given that the Secretary specifically designated this community to use traps, he did not.

Areas were permitted and these individuals used traps in the area.

Now, in fact —

Earl Warren:

And anyone else could do.

Avrum M. Gross:

That’s exactly correct Mr. Chief Justice.

In fact, the records show that the very traps which were used by Kake and Angoon in this litigation were actually used by the P.E. Harris Company prior to 1948 and 1950 in the exact place where they are now being fished today, so anyone could use them.

Now, when we talk about a native fishery in Alaska, it’s actually a misnomer.

In the commercial fisheries, there was no native fishery.

The White Act made no distinctions between Alaskans, White Alaskans and Native Alaskans.

This is quite reasonable if the Court will — will think fishing is perhaps the only industry of Alaska.

It certainly was back to turn of the century except for gold which is now extremely (Inaudible), but it was — would have been impossible for people to come to the territory if they could not have fished on at least an equal basis with the natives that were there.

Now in this litigation, the natives aren’t only claiming the right to fish on an equal basis with White citizens in Alaska, they’re claiming it on a privilege basis.

But the White Act specifically said that no exclusive right of fishery shall be given to any group in Alaska.

And this Court held in Hynes against Grimes that that specific clause applied to natives as well as anybody else that no rights could be given to natives under the White Act, absolutely none.

Charles E. Whittaker:

May I ask you please sir?

Did that provision of the White Act have any effect to cancel the earlier 1916 grant of exclusive fishing rights in these thousand foot — 300,000 feet kilometer (Inaudible) and Metlakatla?

Avrum M. Gross:

Your Honor, I — I will answer question but the fully discussion of this will be undertaken by Mr. Attorney General Moody.

I wish to restrict myself mainly to Kake and Angoon, but I —

Charles E. Whittaker:

White Act was passed in 1924.

Avrum M. Gross:

That’s correct.

Charles E. Whittaker:

This grant to the Metlakatla since 1916?

Avrum M. Gross:

That’s right.

And I believe that the 1924 statement in the White Act which says that no citizen shall be denied the right to fish in Alaska, in any area where fishing is permitted by the Secretary of the Interior which is the last sentence of Section 1, may have will abolish the Metlakatla water reservation.

I do not believe that it is necessary for the Court to hold that, to uphold Alaska’s right to regulate the Metlakatla Reservation.

But I — and I do raise the point that Congress may well have meant to exclude the Metlakatla Reservation which had — it had specifically set up, but you do raise the point which may well be valid and it may well indeed have abolished the water reservation, the specific declaration of equal rights to all fishermen in all waters of Alaska.

Earl Warren:

Is there anything in the legislative history that shows what Congress intended in that regard?

Avrum M. Gross:

This is debated between Justice Rutledge in Hynes against Grimes Packing Company, seem to view that the legislative — the legislative history of the White Act did imply that Congress meant to exclude the White Act from applications to validly created Indian reservations.

Now, the Court, the majority of the Court at that time disagreed.

It did say and I think the Hynes case is extremely important here, because — and perhaps I can answer your question best by reviewing the two holdings of the cases that have been pointed out here.

Hynes said first of all that the Secretary for the President could reserve areas in Alaska for exclusive rights of fishing under the Wheeler-Howard Act, which was a later passed act than the White Act.

It also said that the White Act could not be used to protect those areas and it also held that the White Act could apply to those areas.

Now, a number of things I think are important.

First of all, assuming that the area thereby set aside in the Hynes case became and exclusive right, it only became exclusive as to area.

The Secretary was given full authority to regulate the means of fishing within the area.

Now, so you have this distinction, the areas retained but the regulation is not.

Now in Metlaktla, Metlakatla was established before the White Act was passed.

Now, it may — here, you get little interplay of two reservations created and an act between them.

The Act may well have cut off the first and yet, it’s superseded by the second, but in any case the regulation — the regu — the regulatory authority of the White Act extends to those reservations, the regulation of the fishing within the reservations.

This, the Hynes case did hold that the area could be set aside, but the means of fishing within it was subject to general regulatory authority.

There was never any right to be free of general regulatory authority in any reservation in Alaska.

Now, this then was the status of fishing prior to the Statehood Act and the Statehood Act reserved for state control, all Indian fishing rights.

Now first of all, I want to make absolutely clear the position of the Statehood.

We will concede for argument that if Congress had wished to, it could have reserved the control of all Indian fishing to the Federal Government.

The effect might well had been disastrous in Alaska, but it might well have done so, but Congress didn’t.

Congress only reserved Indian fishing rights.

Those are the words of the statute.

It could have used the fishing but it did not.

So then the question becomes, looking back into Alaskan history by the — by the test laid down by this Court as to what constitutes Indian rights, whether Indians really had rights in Alaska.

Well, this Court has already heard from the appellants in this case, and I refer now to Kake and Angoon that there is no treaty between the Indians of Kake and Angoon and the Federal Government.

It has also heard taken Angoon State that there is no reservation in Kake.

William J. Brennan, Jr.:

May I ask — do I understand the concession goes this far, if in fact rights include the use of traps, Alaska now raises no constitutional —

Avrum M. Gross:

That is correct.

William J. Brennan, Jr.:

— section of the power of Congress who reserved the right to regulate the use of fish trap, is that it?

Avrum M. Gross:

That is correct.

William J. Brennan, Jr.:

That really we do in both cases that before us now based on the State’s concession, only the question of what is meant — the Congress means by rights.

Avrum M. Gross:

That is absolutely correct.

Hugo L. Black:

And if they did have right, that implicates a fishing right.

Avrum M. Gross:

If they do have Indian fishing rights as defined by this Court then the State of Alaska would not have the power to regulate.

Charles E. Whittaker:

May I ask you one more thing?

Avrum M. Gross:

Sir!

Charles E. Whittaker:

It would mean Indian fishing rights as to — within the terms on Section 4?

Avrum M. Gross:

That’s exactly right.

Charles E. Whittaker:

In other words, not the source of the policy.

Avrum M. Gross:

Well, Section — but what I — what I wish to make clear Mr. Justice Whittaker is that rights have a — have a defined meaning in Alaska and have defined meaning under — under the terms, under the decisions of this Court and the term was not used in advisably.

So I mean it’s not a new concept of right. Now, there are no treaties and there are no reservations for the Kake and Angoon Indians.

Now, this Court has recognized that — that there are two basic kinds of Indian title recognized and unrecognized Indian title.

As there are no reservations and no treaties, and no statute creating rights for Kake and Angoon specifically, we don’t have recognized rights and Kake and Angoon freely admit this.

So the question is where they have unrecognized rights and those would be of course rights protected against third parties, in this case the State of Alaska being the third party.

Now recognized, unrecognized rights could be broken down in two categories again.

Those rights which are preserved or aboriginal rights, historical Indian title it’s called or those rights which are created by statute, a temporary right which does not create compensation, a right to compensation upon termination, but which is nonetheless a right against third parties.

Now, we are here on a motion to dismiss.

Now, aboriginal title is normally a question of fact, but we contend to this Court that as a matter of law, these Indians has no aboriginal title and cannot have aboriginal title.

Now, in buttressing this claim, I wish to point out to the Court the last two sentences of Section 1 of the White Act.

You will find that printed in full in our brief in the appendix on page 53 and 54 sentences that we are particularly interested in.

Now, first of all, the Secretary was empowered to regulate fisheries all through Alaska and it said that when the Secretary did regulate fisheries, his regulations could not be made exclusive.

They must apply to all equally.

Now, this Court recognized in Hynes that it could not be exclusive as to natives too.

It is specifically applied to native as well as others.

So in short, this part, this sentence is exclusive — no exclusive right forbade the Secretary of the Interior through his regulations to protect any aboriginal rights which existed.

He had through his regulations, to open up any area in Alaska, if it was opened up to natives, it had to be opened up to Whites as well.

So he could not protect aboriginal claim, any exclusive right of possession of natives.

Avrum M. Gross:

He could not protect it with that, but the next sentence, the next sentence of the White Act is most crucial.

There it says that no citizens shall be denied the right to fish in any area of water in Alaska where — where fishing is permitted.

Now, here is the clearest and most unequivocal statement that could made that no person shall have an exclusive right in waters of Alaska, that whether he be native or White or corporation or individual.

He has no exclusive right.

If he had one, it is now gone.

Everyone can fish there and everyone did fish there.

I wish — I can’t make this too strong for the Court.

These very natives, Kake and Angoon purchased their sites, purchased their cannery from a private company which was fishing in the very area they now — now claim.

All through Alaska, canneries are set up on the biggest Salmon streams quite obviously and these are very areas where these native tribes or native people fished in past years.

Again quite obviously, people clustered where the fish were.

Now, in regard to whether aboriginal rights exists such as Kake and Angoon claim, I should like to make reference to the Solicitor General’s opinion which Kake and Angoon cite in their brief as holding, that no — that aboriginal fishing rights do exist in Alaska.

I should like to take — to take this into consideration in conjunction with the claim in the Metlakatla brief which we agree, with which we agree that this Solicitor’s opinion should be given some weight in this case.

We recognized this, his interpretation of what the White Act meant for instance.

Well, first of all, the Solicitor’s opinion held that aboriginal fishing rights do exist in Alaska in spite of the White Act, but certain things are curious.

First of all, from 1924 to 1942, no action was ever taken by the Solicitor to enforce these aboriginal rights.

In 1942, he gave his opinion.

The 1942 to 1959 again, exactly nothing was ever done to claim aboriginal rights except one thing, a bill was introduced by the Solicitor in Congress which would have protected what the solicitor considered aboriginal — Department of Interior considered aboriginal rights and that bill was rejected, and you will find that in the Kake and Angoon brief.

But most important is the opinion of the Solicitor on why he thought there were aboriginal rights in Alaska.

He considered the last sentence of the White Act, the one I have already discussed with this Court regarding the exclusive that — that every citizen must be allowed to fish in an area where any fishing is permitted and he said, “It’s true.

This sentence certainly does look like it extinguishes aboriginal rights.”

But he said and the Court must remember that this was 1942 and prior to this Court’s decision in the Tee-Hit-Ton case, “but” the solicitor said, “That taking by Congress of aboriginal title is forbidden under the Fifth Amendment, and therefore we cannot read this Act as unconstitutional interpretation.”

Therefore, the Solicitor avoided that interpretation.

This Court of course subsequently in 1954 I believe it was in the Tee-Hit-Ton case held specifically the opposite, that it was not indeed unconstitutional for Congress to terminate aboriginal title in anyway saw fit, without any liability arising whatsoever unless Congress saw fit to give that liability.

So I merely point this out to show two things.

First, the opinion of the Department of the Interior as expressed through its actions in Alaska has consistently been that no aboriginal title exists and second that even in his written opinion, the Solicitor recognized that there was no aboriginal title in Alaska and would have held so except for the fact that he believed this interpretation would have been unconstitutional, and that assumption has been proven incorrect by this Court.

Now so much for aboriginal title, there also remains the question as to whether any other kinds of rights were created for these Indians unrecognized rights, but rights nonetheless.

John M. Harlan II:

You are talking in all this here, limiting yourself to the case, Angoon?

Avrum M. Gross:

Yes I am, Mr. Justice Harlan.

Earl Warren:

Is that because the Attorney General is to argue the other case.

Avrum M. Gross:

That is correct Mr. Chief Justice, but if any of the Justices wished to question me on any relation between the two, of course I’m prepared to answer on them.

Avrum M. Gross:

Now, so much for aboriginal title, but we still recognize that Congress could create through statutes right — rights in these natives and if they did so, even though those rights were unrecognized, they were preserved by the Statehood Act.

We fully concede this point.

The question is, was the right to use traps, was it a right?

Now, the only act under which fishing in Alaska was conducted was the White Act.

Charles E. Whittaker:

When you right in that sense, if I may — you’re just — you’re treating with a right as a special individual property right, are you?

Avrum M. Gross:

Well, when I say property, special individual property right, I do not mean by this that it must be recognized as against the Government and therefore compensable upon on taking.

When I say a right or a property right, I simply mean a claim against any one, meaning a third party, an individual or the state or the Federal Government, anyone.

Charles E. Whittaker:

You mean something different than the right of every citizen as a citizen?

Avrum M. Gross:

That is a public right of fishery Mr. Justice Whittaker and — and this act specifically speaks of native rights and this is not — this is a very different thing in the public right of fishery I believe.

Charles E. Whittaker:

The act if I recall it says that (Inaudible) absolute jurisdiction as control.

Avrum M. Gross:

That’s correct.

Charles E. Whittaker:

All of them.

All lands and property, (Inaudible) including fishing right, all lands and other possible inferences including fishing rights held by native or by the United States for them.

Avrum M. Gross:

That’s correct.

Charles E. Whittaker:

Now, fishing rights in that kind of (Inaudible) have some relationship to lands or other property, doesn’t it?

Avrum M. Gross:

I believe that is correct.

I believe that is — that is very correct, but I am — I am now trying to adjust — this goes a trifle further than our argument.

This gives an even more restricted view I think and I am trying to recognize that any kind of fishing right, even unconnected to property was not preserved to these natives, but the fishing right by the way that you are speaking of, I point this out Mr. Justice Whittaker, a fishing right connected to property.

This is the very issue which was just taken off in the Court of Claims in which these very Indians have sued and — and received a judgment that there is a liability against the Government for a taking of fishing rights connected to land.

They did so.

This – they got the claim for the entire portion of Southeastern Alaska which they now claim.

The traps which are in this case are in that area, these very Indians have just received a claim for compensation for this that the lands were taken and the Court of Claims based this decision —

Charles E. Whittaker:

Taken by what?

Avrum M. Gross:

That’s just I was getting to Justice Black, the Court of Claims held that the active taking in this case, they did not go up to the White Act.

They took historical acts and got as far as I think it was 190 — it’s in — before 1920 I believe in which Congress reserved from the public domain the Tongass Natural Forest in Southeastern Alaska which comprises all the land which is involved here and even more and the Court of Claims felt that this Reservation was inconsistent with the Indians’ exclusive right of possession and they further pointed out that the Indians had lost their fishing rights connected to the land, Mr. Justice Whittaker.

In fact the compensation in that case according to the Court of Claims will be granted as of the date the land was taken because the Court assumed in that case as I think you do now that these fishing rights were nothing more than easements connected to the land.

Charles E. Whittaker:

On pertinence.

Avrum M. Gross:

That’s right.

And the date that the land was taken, these fishing rights were taken.

This is the Court of Claims viewpoint.

Avrum M. Gross:

And I believe that perhaps that one of the reasons the Court of Claims didn’t reach, didn’t go to White Act to destroy these fishing rights which I think the White Act clearly did, was because by 1924, the value of these fisheries are astronomical and — and it’s going to be astronomical enough at the date of taking of the Tongass Natural Forest.

But I think the Court of Claims was quite satisfied and happy with terminating these rights at the earliest date possible, if there were alternative basis and I think they saw it — they do not mention the White Act but they do not need to because they have terminated the rights before the White Act has ever even passed.

Now —

William J. Brennan, Jr.:

That acts, I assume you’re coming to it, do I get your argument in effect in this that under the White Act provision no exclusive for several right of fishery shall be granted etcetera, effectively destroyed, whatever it was either of this may have had and that all the Section 4 did was the — including Indian fishing rights was to save a lawsuit and to confirm your view that they had nothing.

Avrum M. Gross:

No — no that is not my distinction, Mr. Justice.

William J. Brennan, Jr.:

Alright, and then what I do hope you’re going to get to that is what was it that including Indian fishing rights (Voice Overlap) reserved?

Avrum M. Gross:

I’d be happy to tell the Court.

First of all Mr. Justice Brennan, I want a one thing clear, we do not argue here that Metlaktla was abolished by the White Act.

It may have been, and I grant this, but we do not view that it is necessary to our case.

One thing is quite clear, Karluk in the Hynes case for instance was not abolished for simple reason it was created after the White Act, that much we know, but let me list for the Court some fishing rights that there are in Alaskan perhaps it can understand the difference then between what we are talking about here and what legitimate fishing rights are.

There are statutes in Alaska out of the federal statutes — excuse me which are cited in our brief, which forbid any citizen of Alaska as well as any where else to take Fur Seals.

This is a seal fishery by the way and that’s the proper terminology.

Hugo L. Black:

Fur Seals.

Avrum M. Gross:

Fur Seals, that’s correct, but the natives, living along the coast of Alaska are permitted this right for subsistence.

They are — they are the only ones allowed to take the seals.

Hugo L. Black:

Is this by express statutory provision (Voice Overlap)

Avrum M. Gross:

By an expressed statutory provision (Voice Overlap)

Felix Frankfurter:

What’s the date Mr. Gross?

What’s the date of the legislation?

Avrum M. Gross:

1944 I believe Justice Frankfurter.

It’s cited in our brief.

Felix Frankfurter:

And to that extent, that was an amendment of the White Act?

Avrum M. Gross:

Well, I do not think if you consider Seals a commercial fishery, since White Act was directed for the regulation of the commercial fishery and seals have never been considered in that same manner.

Felix Frankfurter:

Well, you get into trouble, don’t you?

I think (Inaudible) construe, alright, go on so let’s see the rest of it.

Avrum M. Gross:

I don’t think so because where Seals fishery, the White Act was directed at the Salmon fishery in Alaska, if you look at the commercial —

Felix Frankfurter:

Well, did it say the Salmon fishery?

Avrum M. Gross:

No it said the commercial fisheries of Alaska but Seals are not a commercial fishery of Alaska because they were banned.

They were — the treaty which stopped all fishing from Seals antedated the White Act.

Felix Frankfurter:

You tell me that’s outside the White Act for different reason?

Avrum M. Gross:

That’s correct.

Felix Frankfurter:

Right.

Avrum M. Gross:

That’s correct.

Now, also we have the Karluk Reservation set up and which in Hynes — in Hynes against Grimes Packing Company was upheld, an exclusive right of fishery, an area of water in which no other Alaskan can fish but natives, this is all.

Now this —

Felix Frankfurter:

Is that a commercial — is that a commercial fishery?

Avrum M. Gross:

Yes it was.

Felix Frankfurter:

And a monopoly was granted?

Avrum M. Gross:

A monopoly was granted to the natives as to the area of fishery; that is right.

Felix Frankfurter:

And how is that contesting with the White Act?

Avrum M. Gross:

The Act under which the Karluk Reserve was set up was passed in 1936, 12 years after the White Act.

Felix Frankfurter:

So that – there was an implied amendment to that?

Avrum M. Gross:

Yes, there was.

Well it —

Felix Frankfurter:

And I assume you would avoid getting in to that conclusion in this case?

Avrum M. Gross:

In what — in what case?

Felix Frankfurter:

In this very case, Section 4 that we have got a White Act problem?

Avrum M. Gross:

I think Section 4 in effect Mr. Justice Frankfurter literally repeals the White Act as applied to Alaska for the simple reason that there —

Felix Frankfurter:

But it — but it — but it withheld that repeal in order to keep within federal authority, protection of the Indians.

Avrum M. Gross:

Protection of the Indian fishing rights.

Felix Frankfurter:

Yes.

Avrum M. Gross:

That’s right.

And if they were fishing rights, the White Act is still operative as to those fishing rights.

That is correct, but —

Earl Warren:

We’ll recess now.