Hynes v. Grimes Packing Co.

• Decision Date: 05 April 1948
• Docket Number: No. 11585.,11585.
• Citation: 165 F.2d 323
• Parties: HYNES, Regional Director, Fish and Wildlife Service, Department of the Interior, v. GRIMES PACKING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

165 F.2d 323 (1947)

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

No. 11585.

Circuit Court of Appeals, Ninth Circuit.

November 21, 1947.

As Amended January 12, 1948.

Writ of Certiorari Granted April 5, 1948.

A. Devitt Vanech, Asst. Atty. Gen., Harry O. Arend, U. S. Atty., and William E. Berrett, Asst. U. S. Atty. both of Fairbanks, Alaska, and Roger P. Marquis and S. Billingsley Hill, Attys., Dept. of Justice, both of Washington, D. C., for appellant.

Edward F. Medley, Frank L. Mechem, and W. C. Arnold, all of Seattle, Wash. (Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., of counsel), for appellees.

Before DENMAN, HEALY, and BONE, Circuit Judges.

DENMAN, Circuit Judge.

Appellant Hynes appeals from a permanent injunction enjoining him "from enforcing or attempting to enforce the restrictive provisions of Section 208.23(r) of the 1946 Alaska Fisheries General Regulations and from seizing any boats, seines, nets, or other gear and appliance used or employed in fishing by the plaintiffs in the waters in and adjacent to the Karluk Indian Reservation situated on Kodiak Island, Alaska, three thousand feet seaward from the shore at mean low tide or any fish taken therewith, or from arresting any of plaintiffs' fishermen who carry on fishing operations in said waters."

The district court found that appellant, as Regional Director of the Fish and Wildlife Service of the Department of the Interior, had threatened to seize the appellees' fishing boats and catches of salmon and to arrest their fishermen, some six hundred in number, in the manner prohibited by the injunction, purporting to act under the summary procedures of Section 6 of the White Act of June 6, 1924, 48 U.S.C.A. § 226.

The court held against appellant's contention that these ocean waters below low tide¹ had been included in a reservation² for the Indians of Karluk village located on Shelikof Strait, giving the Indians a monopoly of fishing there. It further held that an Alaska Fisheries General Regulation 208.23(r), designated to give fishing rights to the Karluk Indians in such purportedly reserved ocean waters and denying to all others the right to fish there unless licensed by the Indians to participate in their monopoly, violated Section 1 of the White Act, considered infra, providing that if any persons are allowed to fish in Alaskan waters none shall be excluded.

Regulation 208.23(r) of the Secretary of the Interior purports to create a monopoly of fishing in the Karluk Indians in the above described ocean waters by providing:

"Sec. 208.23 Waters closed to salmon fishing. All commercial fishing for salmon is prohibited as follows: * * *

"(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land Order No. 128, May 22, 1943), beginning at a point on the east shore of Shelikof Strait, on Kodiak Island, latitude 57° 32' 30" N., thence northeasterly along said shore to a point 57° 39' 40".

"The foregoing prohibition shall not apply to fishing by natives in possession of said reservation, nor to fishing by other persons under authority granted by said natives (49 Stat. 1250). Such authority shall be granted only by or pursuant to ordinance of the Native Village of Karluk, approved by the Secretary of the Interior, or his duly authorized representative."

It is thus apparent that regulation 208.23 (r) does not contemplate that the ocean waters there involved are ordinary waters open to fishing subject to usual regulations for fish preservation, but that the regulation is based upon the assumption that there is a reservation of these waters in which there is a monopoly of fishing in the Karluk Indians. Further that it is a monopoly in which these Indians may sell licenses to others to participate. Indeed, the appellant claims that the appellee fishing companies and all others have no cause to complain because they could buy such licenses from the Indians to participate in their monopoly and that the appellees have obtained such licenses in the past, and hence have been able to seine as many fish as they would if the regulation had not existed. The regulation has no other purpose than to create the Indians' monopoly on the supposition that an Indian reservation in fact has been created and that the Secretary has a right to permit the Indians to fish there and deny the right to all other fishermen not so licensed.

The primary question for our determination is whether the Secretary of the Interior was authorized by Congress to create an Indian reservation in these waters below low tide for, if they are waters not so reserved, monopoly fishing rights therein are prohibited by Section 1 of the White Act, 48 U.S. C.A. § 221 et seq. Since we decide that Congress has not given such authorization to the Secretary, we are not concerned with the question whether — even if so reserved — regulation 208.23(r) violates the White Act in permitting the licensed fishermen other than Indians to fish there and refusing the right to the unlicensed.

Appellant contends that Congress created the power in the Secretary to reserve to the Karluk Indians such below low tide ocean waters by Section 2 of the amendment of 1936, 48 U.S.C.A. § 358a, of the Wheeler-Howard Act of 1934, 48 Stat. 984, 25 U.S.C. A. § 461 et seq. Section 2 describes what of the several classes of lands of the United States may be so covered in Indian reservations.

"Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation a any area of land which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23 Stat. 26), or b by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or c which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with d additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days' notice: * * *." (Emphasis supplied.)

Concerning the phrase "any area of land which has been reserved," it is not contended that these Indians had had reserved to them any of the below tide waters of Shelikof Strait by virtue of the Act of May 17, 1884, 48 U.S.C.A. § 356, or of the Act of March 3, 1891, 48 U.S.C.A. § 358, or by any prior reservation placed under the jurisdiction of the Department of the Interior.

Whatever power the Secretary of the Interior had to reserve for them any lands is created by that portion of Section 2 which reads "The Secretary of the Interior is hereby authorized to designate * * * additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory." In this respect the 1936 Act differs from the above Acts of 1884 and 1891 which use the general phrase "lands" without the qualifying adjective "public."

I. Congress in the 1936 amendment to the Wheeler-Howard Act, authorizing the Secretary of the Interior to reserve "public lands" for Alaska Indian tribes, did not empower him to reserve ocean lands below low water mark. It did not intend to create in the Indians communal monopolies in such salmon fishing waters about the long established packing plants from which would be excluded the thousands of white fishermen employed in producing for the world, but principally the United States, its largest supply of canned fish food.

The evidence shows that a large part of the 30,000 Alaska Indians live in over eighty groups, most of them at the mouths of streams into which run the salmon seeking to spawn. Prior to the coming of the canning and packing plants, the Indians smoked the salmon for winter use, that fish being their principal article of diet. By a process of survival these Indian villages are at the rivers having the largest salmon runs.

Over a half century ago American enterprises began to supply the world, principally the United States, with these salmon processed into cans. These enterprises grew until their investment of upwards of seventy million dollars added to the world's food supply in the three years preceding the 1936 statute, under which the Indian fishing monopolies here in question were purported to be created, an annual average of 5,947,518 cases of 48 pounds each — that is 285,480,899 pounds valued at $30,918,700. In 1935 9,205 fishermen in 845 vessels and 3,989 boats and 11,861 processing employees were engaged in this food production.

Congress in 1924 in the so-called White Act, hereafter considered, had recognized the character of this addition of this food to the world's commerce by placing the fishing regulations under the Secretary of Commerce. It remained there until 1939, three years after the 1936 Act here to be construed, when, under the executive reorganization act of that year, 53 Stat. 561, it was transferred to the Secretary of the Interior. Such a shift in the administrator does not change the Congressional recognition of the addition to commerce of this food supply.

For some time before 1924 the Department of Commerce had created a series of monopolies of exclusive fishing in certain of these Alaskan food processors. The Indians through their counsel joined with other processors excluded by the monopolies to obtain relief from Congress and, in response to their appeals, the Congress in 1924 enacted the White Act. That Act ended the monopoly system by providing that every...