Aleut Community of St. Paul Island v. United States, Appeal No. 11-72

• Decision Date: 20 June 1973
• Docket Number: 12-72.,Appeal No. 11-72
• Parties: ALEUT COMMUNITY OF ST. PAUL ISLAND, Appellant. v. The UNITED STATES, Appellee. The ALEUT TRIBE, By Iliodor MERCULIEFF, as Representative of the said Tribe and of all the Members Thereof; and the Aleut Community of St. Paul Island, Appellants, v. The UNITED STATES, Appellee.
• Court: U.S. Claims Court

480 F.2d 831 (1973)

ALEUT COMMUNITY OF ST. PAUL ISLAND, Appellant. v. The UNITED STATES, Appellee.

The ALEUT TRIBE, By Iliodor MERCULIEFF, as Representative of the said Tribe and of all the Members Thereof; and the Aleut Community of St. Paul Island, Appellants, v. The UNITED STATES, Appellee.

Appeal Nos. 11-72, 12-72.

United States Court of Claims.

Decided June 20, 1973.

Stephen M. Truitt, Washington, D. C., for appellant; Donald H. Green, Washington, D. C., attorney of record for appellants; Wald, Harkrader & Ross, Washington, D. C., of counsel.

Bernard M. Newburg, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for appellee.

Before DAVIS, Acting Chief Judge, and SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

NICHOLS, Judge, delivered the opinion of the court:

Appellants Community and Tribe are groups of native Alaskans who traditionally sustained themselves by hunting and fishing on islands located in the Bering Sea which separates what is now the United States and the Soviet Union. Their primary source of food and clothing was the fish and seals which were abundant in the waters within and surrounding these islands. The first contact with the white man appears to have been with Russian traders in the latter part of the eighteenth century. At about this time Russia asserted dominion over the islands in question and in 1799 proceeded to control the killing of seals and the trading in seal furs by means of a monopoly granted to the Russian American Company. Through a series of charters issued by the Imperial government of Russia this monopoly maintained control over the hunting and fishing on these islands until 1867 when all of Russia's possessions in North America, including the islands were ceded to the United States. Treaty of March 30, 1867, 15 Stat. 539. For a short time thereafter appellants could trade freely in seal furs. However, beginning in 1870 the Alaska Commercial Company obtained a series of permits granting it exclusive right to secure seal furs from the natives of the islands. In 1910 the Government of the United States undertook direct control of the trading of seal furs, such control continuing until the date of these claims, August 13, 1946.

Appellants are "Indians" entitled to sue before the Indian Claims Commission under the special provisions of the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. § 70 and ff. United States v. Native Village of Unalakleet, 411 F.2d 1255, 188 Ct.Cl. 1 (1969).

Appellants in Indian Claims Commission Docket No. 352, here 11-72, claim that as a Community they owned St. Paul Island. In Docket No. 369, here 12-72, they claim St. Paul and apparently various islands of the Aleutian chain. St. Paul may be found in the atlas north of the Aleutian chain, in a group known as the Pribilof Islands, at about 57° north and 170° west. Reference hereinafter to claims to St. Paul may be taken, if the context permits, to include claims to other islands.

In proceedings before the Commission appellants asserted that under Russian law they had acquired fee title to St. Paul Island and that this title had been extinguished by the United States without just compensation, that they have a right to an accounting of funds allegedly misspent by appellee and that the United States has failed in its obligation to deal with the appellants in a fair and honorable manner. The Commission has dismissed the claims on motion by the Government, holding that the claims for just compensation had been extinguished by the Alaska Native Claims Settlement Act, 85 Stat. 688, 1971 (hereinafter the 1971 Act) and that the claimants had failed to state claims for an accounting and for a breach of fair and honorable dealings under the Indian Claims Commission Act. 27 Ind.Cl.Comm. 177 (1972).

Turning first to the claim for just compensation, we hold that the appellants fail to state a claim for which relief can be granted. In reaching this conclusion we do not rely, as the Commission did, on the 1971 Act as extinguishing claims for a taking of property held in fee without just compensation. Whether or not that Act was intended to extinguish fee title and whether such extinguishment would be constitutional is not relevant to the case at bar, because we hold as a matter of law that appellants did not properly show fee simple title to the property in question, or any title by any other name having the incidents of fee simple title. It is conceded and not in dispute that the 1971 Act did extinguish claims based on the kind of "aboriginal title" usual among the Indians of this continent, and such claims were not maintainable thereafter.

Appellants' contentions as to fee simple title rest entirely on a determination of Russian law. As stated in our Rule 125 "The determination of foreign law shall be treated as a ruling on a question of law." On a motion to dismiss, therefore, we take as true all facts the claimants have pleaded, but not their conclusions as to law, including foreign law. Appellants contend that they obtained fee simple title via prescription under the laws of Tsarist Russia. An inspection of the documents upon which appellants claim rests leads us to a different conclusion.

Appellants refer to the Tsarist Code of Civil Law and to decisions of the Ruling Senate (the Russian equivalent of our Supreme Court) to define prescription and to demonstrate that one could obtain fee title by way of prescription. Specifically our attention is invited to the following Articles of the Tsarist Code:

Article 533:

"Undisturbed, undisputed and continuous possession in the form of property is transformed into the right of property if it lasts during the time of prescription fixed by law."

Article 557:

"Land prescription or possession prescription is called the undisturbed and undisputed continuation of this possession during the time fixed by law, which is called the period of prescription."

and the Decision of the Ruling Senate, 1879:

No. 35:

"The expression `quiet, continuous and indisputed\' * * * means the absence of violation of possession on the part of a person who can challenge or interrupt it by other actions and make it unquiet, i. e., by a person who has a right of possession on the property."

Assuming that one could obtain a fee title by the continuous and undisturbed occupation of property under the Tsarist Code, the appellants fail to demonstrate that they did so. On the contrary, rather than the Russians respecting appellants' proprietary interests it appears that the Russian Government condoned activities which disquieted appellants in their proprietary rights. It is apparent that the Russian Government did not endeavor to colonize the Pribilof Islands. Its interest in this area was one of trade; specifically trade in seal furs. To this end the Russian Government chartered monopolies to control the trading in and killing of seals. As will become apparent below the monopoly on St. Paul Island, the Russian American Co., was vested with such broad authority over the people and property of St. Paul Island that it is not possible to consider that the native inhabitants enjoyed undisturbed possession of the island.

Appellants rely on an 1867 memorandum prepared by the Russian Real State Councilor Kostlivtzov for Secretary of State Seward, on the Russian Administration of its holdings in America. Our attention is invited to the following excerpt from the memorandum:

* * * * * *

* * * neither the government nor the company had any interest to interfere with the distribution of lands between the inhabitants of the Aleutian Islands. All these islands, the boundaries of which are fixed by nature itself, are held and used by the Aleutes by right of prescription, never interrupted by any foreign violation or interference. The division of lands between the Aleutian settlements was established at a time anterior to the Russian occupation, and continues to be inviolably preserved according to usages prevalent of all antiquity amongst the natives. Neither the imperial government, by the authority conferred to the Russian American Company, nor the agents of the company, by the strength of imperial grants, ever interfered with the internal division of lands between the indigenous Aleutes. * * * (Emphasis supplied.)

That the above description of prescriptive ownership referred to the division of land only among the native inhabitants and not in respect to fee title as against the crown or its designees becomes clear from a reading of the remainder of the memorandum and from an inspection of the provisions of the charters of the Russian American Company.

The Kostlivtzov memorandum further reads in pertinent part:

* * * * * *

But if we do not meet with foreign settlers upon the islands of Russian America, the colonial administration began at a sufficiently early period to colonize some islands with the so-called colonial settlers.

The imperial government, while granting to the Russian American Company, for a determined period, the exclusive possession and use of our territory in America, conceded to the company the right (statute, chapter 8, section 2, § 228) "to settle upon fitting grounds those of the old servants who would be willing, and to supply them with dwellings and implements at the cost of the company." Otherwise, as to the apportionment of lands to such settlers, there were no particular regulations, restrictions, or formalities. Usually the chief administrator, conforming to the statute, (§ 162,) the installation of an applicant for settlement, or of his family, assigned a place for the new settlement according to his own better understanding; and this simple designation of whereabouts gave the settler a right to occupy and use such area of land and trading grounds as he could or thought it necessary to occupy for his housekeeping and fishing requirements; only, in order to avoid contestations between the settlers

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