Grimes Packing Co. v. Hynes

• Decision Date: 18 July 1946
• Docket Number: Civ. No. 5505.
• Citation: 67 F. Supp. 43
• Parties: GRIMES PACKING CO. et al. v. HYNES, Regional Director, Fish & Wildlife Service, Department of the Interior.
• Court: U.S. District Court — District of Alaska

67 F. Supp. 43

GRIMES PACKING CO. et al. v. HYNES, Regional Director, Fish & Wildlife Service, Department of the Interior.

Civ. No. 5505.

District Court, Alaska, Fourth Div., Fairbanks.

July 18, 1946.

Medley & Haugland, Edward F. Medley, Frank L. Mechem, W. C. Arnold, and Bogle, Bogle & Gates, all of Seattle, Wash., and J. Gerald Williams, of Anchorage, Alaska, for plaintiffs.

Marvin J. Sonosky, Atty., Department of Justice, of Washington, D. C., and Harry O. Arend, U. S. Dist. Atty., and Wm. E. Berrett, Asst. U. S. Dist. Atty., both of Fairbanks, Alaska, for defendant.

PRATT, District Judge.

The following order creating an Indian reservation in the waters of Shelikof Strait is attacked as invalid by the plaintiffs in this injunction suit. The order reads:

"(Public Land Order 128) Alaska Modification of Executive Order Designating Lands as Indian Reservation

By virtue of the authority contained in the act of June 25, 1910, c. 421, 36 Stat. 847 as amended by the act of August 24, 1912, c. 369, 37 Stat. 497 (U.S.C., title 43, secs. 141-143), and the act of May 1, 1936, c. 254, 49 Stat. 1250 (U.S.C., title 48 sec. 358a), and pursuant to Executive Order No. 9146 of April 24, 1942: It is ordered, as follows:

1. Executive Order No. 8344 of February 10, 1940, withdrawing Kodiak and other islands, Alaska, for classification and in aid of legislation, is hereby modified to the extent necessary to permit the designation as an Indian reservation of the following described area;

Beginning at the end of a point of land on the shore of Shelikof Strait on Kodiak Island, said point being about one and one-quarter miles east of Rocky Point and in approximate latitude 57° 39' 40" N., longitude 154° 12' 20" W;

Thence south approximately eight miles to latitude 57° 32' 30" N;

Thence west approximately twelve and one-half miles to the confluence of the north shore of Sturgeon River with the east shore of Shelikof Strait;

Thence northeasterly following the easterly shore of Shelikof Strait to the place of beginning, containing approximately 35,200 acres.

2. The area described above and the waters adjacent thereto extending 3,000 feet from the shore line at mean low tide, are hereby designated as an Indian reservation for the use and benefit of the native inhabitants of the native village of Karluk, Alaska, and vicinity:

Provided, That such designation shall be effective only upon its approval by the vote of the Indian and Eskimo residents of the area involved in accordance with section 2 of the act of May 1, 1936, supra: And provided further, That nothing herein contained shall affect any valid existing claim or right under the laws of the United States within the purview of that section.

Harold L. Ickes June 9, 1943 Secretary of the Interior."

Published in Federal Register of June 22, 1943, page 8557.

The authority mentioned in said order will be examined in detail:

1. Act of June 25, 1910; This act merely authorizes the President of the United States to withdraw public land for classification, etc.;

2. Act of August 24, 1912; This merely amends the first mentioned act by substituting for the words "minerals other than coal, oil, gas, and phosphates", the words "metalliferous minerals";

3. Executive Order No. 9146; Authorizes the Secretary of the Interior to sign orders creating reservations;

4. Act of May 1, 1936; It is by virtue of this act that the defendant claims said order was authorized.

It is obvious that the acts and executive order mentioned herein under 1, 2, and 3 will not constitute authority for Order #128.

Therefore, the Act of May 1, 1936, will be examined in detail.

Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C.A. § 358a: The parts essential to this examination are; "That the Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land * * * together with additional public lands adjacent thereto * * *, or any other public lands which are actually occupied by Indians or Eskimos * * *; provided, * * * reservation shall be effective only upon its approval by * * *, Indian or Eskimo residents thereof * * *: Provided further, * * * nothing herein contained shall affect any valid existing claim, location, or entry under the laws of the United States, whether for homestead, mineral, right-of-way, or other purpose whatsoever, or shall affect the rights of any such owner, * * * to the full use and enjoyment of the land so occupied."

The defendant relies on the case of Alaska Pacific Fisheries Co. v. United States, 1918, 248 U.S. 78, 29 S.Ct. 40, 63 L.Ed. 138. In this case the act of Congress making a reservation for the Metlakahtla Indians withdrew "the body of lands known as Annette Islands." It was interpreted to include the tide waters between the Islands and the land thereunder.

The Court arrived at this conclusion from the special facts of the case. 248 U.S. at pages 88, 89, 39 S.Ct. at pages 41, 42, 63 L.Ed. 138: "The purpose of the Metlakahtlans, in going to the islands, was to establish an Indian colony which would be self-sustaining and reasonably free * * *. They were largely fishermen and hunters, * * * and looked upon the islands as a suitable location * * *, because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development. * * * The Indians could not sustain themselves from the use of the upland alone. The use of the adjacent fishing grounds was equally essential. * * * The Indians naturally looked on the fishing grounds as part of the islands and proceeded on that theory on soliciting the reservation. * * * Evidently Congress intended to conform its action to their situation and needs.

"* * * save for the defendant's conduct in 1916, the statute from the time of its enactment has been treated, as stated in the opinion of the Alaska court, by the Indians and the public, as reserving the adjacent fishing grounds as well as the upland, and that in regulations prescribed by the Secretary of the Interior on February 9, 1915, the Indians are recognized as the only persons to whom permits may be issued for erecting salmon traps at these islands."

It will thus be seen that the Court felt the facts of the particular case justified it in believing that Congress used the word "lands" in a technical legal sense, and not with the usual meaning.

Webster's International Dictionary, Second Edition, defines the usual and legal definitions of the word "land", to be;

1. A solid part of the surface of the earth as distinguished from water constituting a part of such surface, especially from ocean and seas.

2. (Law) Any ground and everything annexed to it by nature, as trees, water, etc.; or by man, as buildings, etc.

Bearing said definitions in mind, and also the long established rule "words in common use are to be given their natural, plain, ordinary, and commonly understood meaning, in the absence of any statutory or well established technical meaning, unless it is plain from the statute that a different meaning was intended, or unless such construction would defeat the manifest intention of the legislature," (59 C.J. p. 975), let us see if there is anything to indicate that Congress was using the word "land" in the Act of May 1, 1936, with other than its usual and common meaning.

In the Treaty of March 30, 1867, 15 Stat. 539, wherein Russia ceded Alaska to the United States, it is provided:

C.L.A. 33, p. 67.

"Article III.

"The inhabitants of the ceded territory, * * * if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, * * * of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country."

"Article VI.

"The cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by * * * any parties, except merely private individual property holders; * * *."

The provision to protect the property of inhabitants other than the uncivilized ones warrants the inference that the uncivilized tribes had no property.

The covenant that the ceded property is free from reservations or possessions, except private property, negatives that the Indian tribes had any reservations or possessions that were binding upon the Russian Government.

In the case of Johnson and Graham's Lessee, v. McIntosh, 1823, 21 U.S. 543, at pages 584, 587, 8 Wheat. 543, at pages 584, 587, 5 L.Ed. 681, it states:

"Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. * * *

"The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. * * * They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy. * * *. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right."

The statutes of the United States recognize the actual rights of occupancy of the Indians, but nowhere in the general laws do we find any special or exclusive rights granted to the Indians in the lands under the tide waters of the ocean, or right to fish therein. True, in some of the treaties such special rights were recognized in the tribes in question.

In the Act of May 17, 1884, 23 Stat. p. 24.

Providing a civil government for Alaska, the following is...