Metlakatla Indian Community, Annette Island Reserve v. Egan, s. 21-23

CourtSupreme Court of Alaska (US)
Citation362 P.2d 901
Docket NumberNos. 21-23,s. 21-23
PartiesMETLAKATLA INDIAN COMMUNITY, ANNETTE ISLAND RESERVE, a Federally Chartered Corporation; Organized Village of Kake; and Angoon Community Association, Appellants, v. William A. EGAN, Governor of the State of Alaska, and The State of Alaska, Appellees.
Decision Date02 June 1961

Richard Schifter, Washington, D. C., Theodore H. Little, Clarkston, Wash., N. C. Banfield, Juneau, for appellant, Metlakatla Indian Community.

John W. Cragun, Washington, D. C., N. C. Banfield, Juneau, for appellants, Organized Village of Kake and Angoon Community Assn.

Ralph E. Moody, Atty. Gen. of Alaska, Douglas L. Gregg, special counsel to Governor, Juneau, Perry W. Morton, U. S. Asst. Atty. Gen., for appellees.

Roger P. Marquis, Dept. of Jusitce, Washington, D. C., for the United States, amicus curiae.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

NESBETT, Chief Justice.

These controversies arose out of the determination of the State of Alaska to prohibit the use of all fish traps for the taking of salmon for commercial purposes in all the coastal waters of the state. Appellants contended that their fish traps were exceptions to the prohibitions contained in the constitution and laws of Alaska because their operation had been authorized by the Secretary of the Interior of the United States, who, they claimed, had the exclusive right to regulate fishing by Indians in Alaska. The United States District Court for the District (Territory) of Alaska in Juneau, on July 2, 1959, 174 F.Supp. 500, acting as an interim or transitional state court, dismissed appellants' suits to enjoin the state from enforcing acts making it a crime to erect, moor, maintain or operate a fish trap. That court denied appellants' motions for preliminary injunctions pending appeal to the Supreme Court of the United States. The Supreme Court of Alaska had not yet been organized. Mr. Justice Brennan, on July 11, 1959, granted a stay pending appeal to the United States Supreme Court. 1 On June 20, 1960, the United States Supreme Court in an opinion reserved decision on the merits of the appeals and directed appellants to pursue dormant pending appeals in the then existing Supreme Court of Alaska in order to give that court an opportunity to rule on questions open to it for decision. 2 This court has jurisdiction to hear appeals from final judgments concerning state matters rendered in the United States District Court for the District (Territory) of Alaska after January 3, 1959 3 and accepts jurisdiction of these appeals.

The historical basis for the attitude of the state toward fish traps as well as the nature of the fish trap itself will be discussed briefly before attempting to deal with the many issues presented by these cases.

Since time immemorial Alaska has been blessed with a natural food resource in the form of annual migrations of salmon. From late spring until fall most of its fresh water rivers and streams are, at one time or another, visited by hordes of salmon that have migrated shoreward from the open sea. After periods varying from two to eight years at sea the homecoming salmon have increased in size from fingerlings to maturity and to weights ranging to sixty pounds and above in some species. As a life sustaining food the salmon is hardly exceled and because of its abundance in Alaskan waters it has always been one of the basis food resources of the people as well as the basis of their main industry. Responding to instinct the sea matured salmon seasonally form in huge schools in the sea enroute to the mouths of the fresh water rivers and streams they will soon enter. At a time dictated by instinct, but governed to some extent by water conditions and other factors, the schools then commence a mass movement from the sea toward the mouths of the rivers and streams. It is at this point in their migration that they are caught in great quantities by the fishing methods to be mentioned. Those escaping nets and traps proceed up the rivers and tributary streams to the place of their spawning where they in turn spawn and with few exceptions die. 4

Harvesting some portion of this natural resource for food has always been an annual necessity for most of the native population and many of the white settlers. Commercial salmon fishing is the principal source of income for a large portion of Alaska's labor force. With the coming of the white man primitive methods of catching salmon gave way to what are generally considered the three most efficient methods: (1) gill nets--consisting of lengths of net strung between buoys secured to the tidelands floor by lines and stakes, with the nets usually going dry at low tide; (2) purse seines--where nets are maneuvered around congregations of fish in deep water by the use of powered boats; (3) fish traps--unquestionably the most productive method of catching salmon ever used. A trap consists of tall stakes or mechanically driven piling extending from the shore to varying distances seaward, depending on the depth of the water. Wire or webbing is stretched across the stakes or piling from the shore to the seaward end and from the ocean bottom upward to a point above high water. Located at the seaward end is an extended wing or hook and an opening into the heart wing or hook and the webbing is on the ocean bottom fish cannot pass around the trap at the shoreward end. One tendency of migrating fish is to parallel the shoreline and travel with the incoming tide. Fish stopped by the webbing of a trap will eventually follow it seaward in an attempt to by-pass the obstruction. The wing or hook is constructed so as to discourage by-passing and divert the fish into the heart and pot where they remain. With some variations in construction, floating traps adapted to deep water are commonly used and are highly productive.

Public opposition to the trap appeared in Alaska when it became obvious that the fishery resource was being depleted. 5 Opponents claimed that traps wiped out entire schools of salmon headed for specific streams; that even when this did not happen they trapped an excessive percentage of the fish of a given school; that they trapped not only salmon but also fish of many other species, which, once trapped, died in the pot without being utilized for any purpose. Proponents, on the other hand, argued that the very efficiency of traps commended their use; that they produced a more marketable product because the fish were killed with less violence and reached the cannery sooner and fresher; and that the dwinding yearly salmon runs were the result of overfishing by all methods.

The authority granted to the Territory of Alaska by the Organic Act of 1912 6 did not extend to the regulation of fish and game. From 1906 until 1924 such regulation of the Alaska fisheries as occurred was directed by the Secretary of Commerce. 7 The White Act of June 6, 1924, 8 Broadened the scope of the regulatory power. Under Reorganization Plan No. II in 1939 the responsibility for administering the act was transferred to the Secretary of the Interior. 9 The use of fish traps was permitted by regulation along specific areas of the coastline. The right to construct and operate a trap in any area declared to be available for trap fishing was open to all. Trap sites were never designated by the Secretary as belonging to any person or group prior to his granting of trap site privileges to appellants on March 7, 1959. The spacing between traps, and other regulations prescribed, resulted in limiting the number of trap site locations available within a given area. The legal prerequisites to operating a fish trap were that the trap be located in an area open to the use of traps, that the operator have a War Department permit to construct an obstruction to navigation, and after the Territory was organized, a fish trap license issued by the Territory of Alaska. The annual cost of constructing a trap varied between several thousand dollars for a hand driven stake trap to in excess of ten thousand dollars for a pile driven trap. The cost of construction and operation excluded the average Alaska fisherman from its use and in time the operation of fish traps became generally concentrated in the cannery operators and owners, it not being uncommon for a cannery corporation to own several dozen traps. 10 Fish traps were bought and sold. With few exceptions the right of the purchaser to annually erect and operate the trap on the tideland location previously occupied by the seller was not questioned by other persons because of a custom and usage observed by Alaska fishermen, that if the person who fished a given tideland location the previous year timely returned and prepared to fish that location the following year, his moral priority would be respected. Legally, all that could be sold was the apparatus and equipment used in the trap. Alaska courts have consistently held that no person could acquire a vested right in a tideland fishing location and that the first person to timely commence the erection of a trap was entitled to fish that location for that year, if the trap was completed and ready to fish on the opening day of the season. 11 The same customs were generally observed and the same law, with slight variations, governed with regard to gill net tideland fishing sites. 12 The only instance, prior to Statehood, of an acquisition by any person or group of an exclusive right to operate a fish trap in Alaska waters is that which came to the Metlakatla Indians througha combination of unusual circumstances which will be discussed later in this opinion.

The very first session of the Alaska Territorial Legislature in 1913 memorialized Congress for legislation which would limit the fishing efficiency of the trap. 13 In 1913, 1915, and regularly thereafter, the Territorial Legislature memorialized Congress that no legislation be enacted whereby any right or title to any fish trap site in Alaska...

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