369 U.S. 60 (1962), 3, Organized Village of Kake v. Egan

Docket Nº:No. 3
Citation:369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573
Party Name:Organized Village of Kake v. Egan
Case Date:March 05, 1962
Court:United States Supreme Court

Page 60

369 U.S. 60 (1962)

82 S.Ct. 562, 7 L.Ed.2d 573

Organized Village of Kake



No. 3

United States Supreme Court

March 5, 1962

Argued December 14, 1961



Appellants are incorporated communities of Thlinget Indians in Alaska. No reservation has been established for them. They operate salmon traps under permits issued by the Army Corps of Engineers and the United States Forest Service and regulations issued by the Secretary of the Interior. They sued to enjoin threatened enforcement against them of a statute of the State of Alaska forbidding the use of salmon traps. Their suit was dismissed, and the State Supreme Court affirmed.


1. The permits issued by the Corps of Engineers and the Forest Service do not exempt these salmon traps from state law. Pp. 63-64.

2. Congress has neither authorized the use contrary to state law of the salmon traps here involved nor empowered the Secretary of the Interior to do so, and the judgment is affirmed. Pp. 62-76.

3. However, in view of all the circumstances and in order to avoid hardship, the stay heretofore granted will remain in force until the end of the 1962 salmon fishing season. P. 76.

___ Alaska ___, 362 P.2d 901, affirmed.

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FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This is a companion case to No. 2, Metlakatla Indian Community v. Egan, ante, p. 45, but calls for separate treatment. Appellants seek the reversal of a decision of the Supreme Court of Alaska, 362 P.2d 901, affirming the dismissal of their petitions for injunctions against interference with their operation of fish traps in southeastern Alaska.

The Organized Village of Kake and the Angoon Community Association are corporations chartered under the Wheeler-Howard Act of 1934, 48 Stat. 984, 988, as amended, 49 Stat. 1250 (1936), 25 U.S.C. §§ 473a, 476, 477. Kake is located on Kupreanof Island, 100 miles south of Juneau. Angoon is located on Admiralty Island, 60 miles south of Juneau. They are occupied by Thlinget or Tlinget Indians, native to Alaska.

Both communities are entirely dependent upon salmon fishing. In pursuance of a policy to create a sound fishing economy for the two groups, the United States purchased canneries and related properties for Angoon in 1948 and for Kake in 1950. Since these dates, appellants have operated fish traps at specified locations in nearby waters, under permits granted by the Army Engineers to erect traps in navigable waters and by the United States Forest Service to anchor them in the Tongass National Forest. In March, 1959, the Secretary of the Interior, by regulations issued under authority of the White Act, 43 Stat. 464, as amended, 48 U.S.C. §§ 221-228, and the Alaska Statehood Act, 72 Stat. 339, permitted Angoon to operate three fish traps during the 1959 season and Kake four. 24 Fed.Reg. 2053, 2069. The following year, the Secretary authorized permanent operation of these trap sites and specified one additional site for Angoon and five

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more for Kake for possible future authorization. 25 CFR (1961 Supp.) pt. 88.

The history of this litigation is recited in Metlakatla Indian Community v. Egan, supra. It is sufficient to note here that Alaska, in 1959, threatened to enforce against Kake and Angoon her anti-fish trap conservation law, Alaska Laws 1959, c. 17, as amended by id., c. 95; that the State seized one fish trap at Kake, arrested the President of the Kake Village Council and the foreman of the crew attempting to moor the trap, and filed informations against them; that suit was filed by both Kake and Angoon in the interim United States District Court for Alaska to enjoin this interference with their claimed fishing rights; and that the dismissal of both complaints was affirmed by the Supreme Court of Alaska.

The situation here differs from that of the Metlakatlans in that neither Kake nor Angoon has been provided with a reservation, and in that there is no statutory authority under which the Secretary of the Interior might permit either to operate fish traps contrary to state law. Appellants do not rely heavily on the Secretary's regulations. Neither the White Act nor the Statehood Act, cited by the Secretary, supports a grant of immunity from state law. The White Act was a conservation and anti-monopoly measure. It authorized the Secretary to limit fishing times, places, and equipment in order to conserve fish, but forbade him, in so doing, to create exclusive rights, even in Indians. Hynes v. Grimes Packing Co., 337 U.S. 86, 122-123. Because the rights claimed are exclusive in the Kakes and Angoons, they cannot have been created pursuant to the White Act, even though that statute now applies, if at all, only to Indians. Moreover, the White Act gives the Secretary power only to limit fishing, not to grant rights. The Statehood Act retained "absolute jurisdiction and control" of Indian

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"property (including fishing rights)" in the United States, but it did not give powers of the nature claimed to the Secretary of the Interior. No other source of authority appears available. The provisions now found in 25 U.S.C. §§ 2 and 9, referring to the President's power to prescribe regulations for effectuating statutes "relating to Indian affairs," to settle accounts of "Indian affairs," and concerning "the management of all Indian affairs and of all matters arising out of Indian relations," derive from statutes of 1832 and 1834, 4 Stat. 564 and 4 Stat. 735, 738. In keeping with the policy of almost total tribal self-government prevailing when these statutes were passed, see pp. 71-72 infra, the Interior Department itself is of the opinion that the sole authority conferred by the first of these is that to implement specific laws, and, by the second, that over relations between the United States and the Indians -- not a general power to make rules governing Indian conduct. United States Department of the Interior, Federal Indian Law (1958), pp. 54-55; Cohen, Handbook of Federal Indian Law (1945), p. 102. We agree that they do not support the fish trap regulations.

Both communities operate their traps under permits granted by the Army Corps of Engineers and by the United States Forest Service. But neither of these permits grants a right to be free of state regulation or prohibition. Like a certification by the Interstate Commerce Commission, each is simply acknowledgment that the activity does not violate federal law, and not an exemption from state licensing or police power requirements. Cf. Maurer v. Hamilton, 309 U.S. 598; South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177. The Engineers have no objection under the Rivers and Harbors Act, 30 Stat. 1121, 1151, 33 U.S.C. § 403, to the obstruction of navigable streams incident to the operation of fish traps at Kake and Angoon; the Forest Service has

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no objection to the use of National Forest land to anchor them. Neither attempted to exempt these traps from state law.

As in the companion case, certain grounds relied on by the Alaska court are no longer urged by the State. The principal dispute now concerns the meaning of § 4 of the Statehood Act, in which the State disclaimed all right and title to and the United States retained "absolute jurisdiction and control" over, inter alia,

any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.

The United States, in its brief amicus curiae, contended that the reservation of absolute jurisdiction over Indian "property (including fishing rights)" ousted the State from any regulation of fishing by Indians in Alaska. Appellants urge that Congress intended to protect the Indians in their freedom to continue fishing as they had done before statehood, so that Alaska cannot interfere with the Indian fishing actually practiced at that time. They argue in addition that, in using fish traps, they were exercising an aboriginal right to fish that was protected by § 4. The court below concluded that aboriginal rights of Alaskan natives have been extinguished, that appellants have no rights not enjoyed in common with all other Alaskans, and that § 4 protects only exclusive rights given Indians by federal law.

The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the State. Legislative history reveals no such intention in Congress, which was concerned with the protection of certain Indian claims in existence at the time of statehood. See, e.g., Hearings Before House Committee on Interior and Insular Affairs on H.R. 2535 and related bills, 84th Cong., 1st Sess.

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124-131, 266-267, 381-383 (1955). But we cannot accept Alaska's contention that Indian "property (including fishing rights)" refers only to property owned by or held for Indians under provisions of federal law. Section 4 must be construed in light of the circumstances of its formulation and enactment. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87. Congress was aware that few such rights existed in Alaska. Its concern was to preserve the status quo with respect to aboriginal and possessory Indians claims, so that statehood would neither extinguish them nor recognize them as compensable. See, e.g., House Hearings, supra, 130, 384 (1955) (Delegate Bartlett); Hearings Before Senate Committee on Interior and Insular Affairs on S. 50, 83d Cong., 2d Sess. 227 (Senator Jackson), 260-261 (1954).1

Discussion during hearings on the 1955 House bill affords further evidence that claims not based on...

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