Organized Village of Kake v. Egan

• Decision Date: 01 July 1959
• Docket Number: 8066-A.,8064-A,Civ. A. No. 8063-A
• Citation: 174 F. Supp. 500
• Parties: ORGANIZED VILLAGE OF KAKE, Plaintiff, v. William A. EGAN, Governor of the State of Alaska, Defendant. ANGOON COMMUNITY ASSOCIATION, Plaintiff, v. William A. EGAN, Governor of the State of Alaska, Defendant. METLAKATLA INDIAN COMMUNITY, ANNETTE ISLANDS RESERVE, a federally chartered corporation, Plaintiff, v. William A. EGAN, Governor of the State of Alaska, and The State of Alaska, Defendants.
• Court: U.S. District Court — District of Alaska

174 F. Supp. 500

ORGANIZED VILLAGE OF KAKE, Plaintiff, v. William A. EGAN, Governor of the State of Alaska, Defendant.

ANGOON COMMUNITY ASSOCIATION, Plaintiff, v. William A. EGAN, Governor of the State of Alaska, Defendant.

METLAKATLA INDIAN COMMUNITY, ANNETTE ISLANDS RESERVE, a federally chartered corporation, Plaintiff, v. William A. EGAN, Governor of the State of Alaska, and The State of Alaska, Defendants.

Civ. A. Nos. 8063-A, 8064-A, 8066-A.

United States District Court D. Alaska, First Division, Juneau.

July 1, 1959.

R. L. Jernberg, of Gore & Jernberg, Ketchikan, Alaska, and C. L. Cloudy, of Ziegler, Ziegler & Cloudy, Ketchikan, Alaska, for plaintiffs Village of Kake and Angoon Community Assn.

Robert H. Ziegler, Sr., and A. H. Ziegler, of Ziegler, Ziegler & Cloudy, Ketchikan, Alaska, for plaintiff Metlakatla Indian Community, Annette Islands Reserve.

John L. Rader, Atty. Gen. of Alaska, James M. Fitzgerald, Special Asst. Atty. Gen., and Douglas L. Gregg, Asst. Atty. Gen., for all defendants.

KELLY, District Judge.

The first two captioned cases were consolidated for trial, and the third was heard the following day. Because of the similarity of the actions, the three cases are consolidated for the purpose of this opinion.

The urgency of this matter makes immediate determination imperative. It would, of course, be desirable if my decision could be based on a written opinion as complete as the able briefs of counsel for both parties filed herein, but time does not permit the preparation of a formal opinion, so it must suffice that I announce my decision from the bench and do as well as possible from notes and excerpts from decisions.

I need hardly state that I agree with counsel on both sides in their expressed regard for the importance of this action now before us for decision.

We have here a conflict between the authority of the Secretary of the Interior, an officer of the United States, and the Governor of Alaska. In this it is not a conflict of these officials as individuals or personalities, but of what they represent in this controversy.

We have in effect the state opposed to the United States. We have the majesty of the nation on one hand and the sovereignty of the state on the other; in between, three Indian communities whose plight in the dwindling fish economy of Alaska is a matter of grave concern.

Where the exercise of claimed state power and authority collides with the exercise of claimed federal power and authority, the difficult and tender problem of resolving, under existing law and judicial decisions, the questions thus arising, with due regard to the dignity of the one and the sovereignty of the other, becomes the delicate task of the Court.

Able and convincing arguments have been capably presented by counsel for both sides.

The facts are substantially agreed upon and are fully set forth in the pleadings, briefs and recorded statements of counsel.

After reading the pleadings and briefs, hearing the arguments, examining the exhibits and affidavits, and studying numerous authorities, I have concluded that the relief sought in these three cases must be denied and the bills of complaint therein dismissed.

I will try and state my reasons for this decision.

This Court can take judicial notice of the following facts and conditions and matters of general knowledge:

(1) There has long been growing opposition to fish traps in Alaska, and plebicites held in the Territory in connection therewith have resulted overwhelmingly in votes for the abolishment of traps.

(2) The three Indian villages here concerned as plaintiffs in these actions had voted overwhelmingly for the abolishment of traps.

(3) The salmon runs in Alaska are being rapidly depleted.

(4) The use of fish traps takes great numbers of fish from Alaskan waters for the benefit of the few who own or control the traps.

(5) Even with trap operations, many canneries have been compelled to close in Alaska in recent years, because of lack of an adequate fish supply.

(6) Traps were reduced over the years in number and curtailed in operation, and finally abolished by the state, the well-known purpose of which was to conserve the salmon supply for the benefit of all of the people of the state as a whole.

(7) Financial loss occurred to some who owned or controlled the traps each time they were cut in number or limited in operation.

I find the following statements of the law determinative of the issues in this case. The state owns the tidelands and controls all areas wherein traps were threatened to be installed. In other words, the proposed trap sites are located in inland waters over which the State of Alaska has dominion.

Mr. Justice Reed, in State of Alabama v. State of Texas, 347 U.S. 272, at page 275, 74 S.Ct. 481, at page 483, 98 L.Ed. 689, stated:

"If the marginal lands were thus declared by the California and following cases to belong to the United States, they were ceded to the states through the subsequent Submerged Lands Act of 1953 by the clause: `Title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters * * * are hereby * * * recognized, confirmed, established, and vested in and assigned to the respective States * * *.' § 3(a), 43 U.S.C.A. § 1311(a). If, on the other hand, the marginal lands were not declared by those cases to belong to the United States, title to them remained in the respective states. Either by original ownership or by the cession of the Act, the lands are now the property of the respective states. * * *"

The new State of Alaska is entitled to such powers as have been given to all states by the Submerged Lands Act, 43 U.S.C.A. § 1301 et seq.

"Indian fishing rights" do not include the right to fish with forbidden gear or in a manner prohibited to other citizens of the state.

No property right exists in fish traps and their use has been legally prohibited in the state.

The "equal footing" clause has long been held to refer to political rights and to sovereignty and to have a direct effect on certain property rights, and the question arose early in controversies between the states and the federal government as to ownership of the shores of navigable waters, and it was held that to deny to the states, admitted subsequent to the formation of the Union, ownership of this property, would deny them admission on an equal footing with the original states. Pollard's Lessee v. Hagan, 3 How. 212, 44 U.S. 212, 228-229, 11 L.Ed. 565, and cases cited.

Upon the admission of a state to the Union the title of the United States to lands underlying navigable waters within the state passes to it as incident to the transfer to the state of local sovereignty and is subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. United States v. State of Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 79 L.Ed. 1267.

The lands on which the fish traps are to be moored are tidelands or lands underlying inland waters, and subject to the authority of the state to regulate fishing.

Of course the United States has responsibility under laws passed by Congress toward the Indians. The United States has made treaties—solemn pacts with Indian nations. Indians have been accorded rights by the United States in Territories and in lands controlled by the United States, but many of these rights disappear when a new state is formed. Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244. In this case, 163 U.S. on page 515, 16 S.Ct. on page 1080, Mr. Justice White stated as follows:

"* * * It may be further, for the sake of the argument, conceded that, where there are rights created by congress, during the existence of a territory, which are of such a nature as to imply their perpetuity, and the consequent purpose of congress to continue them in the State, after its admission, such continuation will, as a matter of construction, be upheld, although the enabling act does not expressly so direct. Here the nature of the right created gives rise to no such implication of continuance, since, by its terms, it shows that the burden imposed on the Territory was essentially perishable and intended to be of a limited duration. * * *"

See also Kennedy...