United States v. Libby, McNeil & Libby

• Decision Date: 07 October 1952
• Docket Number: No. 6445-A.,6445-A.
• Citation: 107 F. Supp. 697
• Court: U.S. District Court — District of Alaska
• Parties: UNITED STATES v. LIBBY, McNEIL & LIBBY.

107 F. Supp. 697

UNITED STATES v. LIBBY, McNEIL & LIBBY.

No. 6445-A.

District Court, Alaska. First Division, Juneau.

October 7, 1952.

P. J. Gilmore, Jr., U. S. Atty., Edward A. Merdes, Asst. U. S. Atty., Juneau, Alaska, for plaintiff.

W. C. Arnold, Seattle, Wash., R. E. Robertson, Juneau, Alaska, for defendant.

FOLTA, District Judge.

Plaintiff seeks to enjoin the defendant from continuing to operate its salmon trap on a site within the boundaries of the Hydaburg Indian Reservation in Alaska, and also to recover damages.

The reservation, comprising land and navigable waters of the Pacific Ocean, was established by an order of the Secretary of the Interior of November 30, 1949, 14 F.R. 7318, pursuant to Section 2 of the Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C.A. § 358a. This suit was commenced May 3, 1951.

The defendant has operated the trap on the site in controversy since 1927 under a War Department license, a special use permit of the U. S. Forest Service and upon a full compliance with all statutory requirements. It contends that the reservation is invalid because:

(1) The Secretary did not comply with the Administrative Procedure Act, Title 5 U.S.C.A. § 1001 et seq., or with Departmental procedure as published in 43 C.F.R. 50.152, 2 F.R. 6737.

(2) The order had not received the prior approval of the Director of the Bureau of the Budget, the Attorney General and the Secretary of Agriculture, as required by Executive Order 9337, U. S. Code Cong. Service 1943, p. 539, 8 F.R. 5516, 3 C.F.R. Cum.Supp. 1774.

(3) The Secretary included within the reservation lands which were under the jurisdiction of the Secretary of Agriculture, and hence were not public lands.

(4) The Order contravenes the Act of Congress of May 14, 1898, 30 Stat. 409, 48 U.S.C.A. § 411, declaring that the navigable waters and tide lands of Alaska shall be held in trust for the future state.

(5) The Order includes land and water which had not been reserved prior to May 1, 1936, for the use and occupancy of Indians and Eskimos by the Acts of Congress of May 17, 1884 or March 3, 1891, or previously reserved and placed under the jurisdiction of the Department of the Interior by any executive order and also includes additional lands which are neither adjacent to any reserved area, nor in the actual occupation of Indians and Eskimos.

(6) There was no occupancy or use of the reservation area by Indians or Eskimos since May 17, 1884, continuously to the time of the establishment of the reservation.

(7) So far as the navigable waters are concerned, the order infringes on the public and common right of fishery and navigation and the right of fishery guaranteed by the White Act, 43 Stat. 464, as amended, 48 U.S.C.A. § 221 et seq.

(8) The Order cannot be upheld under the power conferred upon the President under the Act of June 25, 1910, 36 Stat. 847, 43 U.S.C.A. §§ 141-143 and delegated to the Secretary, because such power was not exercised in conformity with Executive Order 9337, supra, and, moreover, is prohibited by the Act of June 30, 1919, 41 Stat. 34, 43 U.S.C.A. § 150.

The foregoing are only the principal grounds urged by the defendant in support of its contention.

At least since the discovery of gold in the Klondike, Congress has encouraged the settlement and development of Alaska and since World War II the importance of increased population to national defense has been stressed repeatedly in Congress, in military circles and by administration spokesmen. In the ensuing 54 years the Indians of Southeastern Alaska, and particularly the Haidas, have not only abandoned their primitive ways and adopted the ways of civilized life but are now fully capable of competing with the whites in every field of endeavor. Undoubtedly in the early days their rights were encroached upon and violated, for which perhaps no compensation would have been adequate. Now, long after their assimilation in Southeastern Alaska is an accomplished fact an attempt is made to compensate not those who suffered under the impact of civilization, but their remote descendants, and this would be done at the expense of the whites who followed and had nothing to do with the exploitation of the Indians. It is a matter of common knowledge that today the Indians of Southeastern Alaska prefer the white man's life despite all its evils and shortcomings.

Viewing this controversy in historical perspective it is no exaggeration to say that nothing since the purchase of Alaska has engendered so much ill-feeling and resentment as the Department's reservation policy and its encouragement of aboriginal claims, especially in the face of Miller v. United States, 9 Cir., 159 F.2d 997, holding that aboriginal title was extinguished by the Treaty of Cession. Whatever may be said in justification of reservations in the unsettled regions of Alaska, they are viewed as indefensible in Southeastern Alaska, and generally condemned by whites and Indians alike as racial segregation and discrimination in their worst form. So far as the relations between the whites and Indians are concerned, racial discrimination is virtually non-existent, and equality only awaits the emancipation of the Indian from wardship restrictions. Indians and Eskimos are found side by side in every walk of life, even in the legislative halls of the Territory which would be beyond their reach without the votes of whites.

It now appears that the historic role of the white man is about to be reversed, for the facts of this controversy disclose a scheme reminiscent of white exploitation. The defendant has a valuable trap site 12 miles from the village of Hydaburg which is coveted by the Indians or their guardian. Its acquisition is accomplished by the device of a reservation. The Indians gain but add to their fetters, and the Department increases its sphere of influence.

Admittedly a trap site is not property in a legal sense, but by long established custom it has been given some of the attributes of property. It is recognized as such in the industry and freely sold, leased and transferred. No one jumps a trap site because experience has shown that such a practice leads only to retaliatory jumping and expensive litigation, with resulting uncertainty and chaos. For 27 years the plaintiff has expressly permitted the defendant to occupy the trap site in controversy for the purpose of supplying its cannery with salmon and the defendant asserts that the trap is an integral part of the plant, without which the operation is unprofitable. Now a right heretofore looked upon as amounting almost to a vested right is threatened by the reservation policy of the Department of the Interior.

In this instance it was proved that the reservation was created despite the assurance given to the defendant by the Department that no withdrawal of the land would be made in that area without notice to it and others concerned and an opportunity to be heard in opposition thereto, in conformity with the Departmental procedure, as published in 14 F.R. 7084.

Obviously, therefore, there is more to this litigation than meets the eye. Those who are opposed to reservations predict that if this attempt succeeds, Alaska will be a checkerboard of reservations, the location of which will be determined solely by proximity to trap sites, from which all whites who have not acquired a vested right will be evicted and all prospectors, trappers, hunters and fishermen thereafter excluded. Once the implications of the reservation policy are perceived and the plaintiff's case viewed in the light thereof, it is not one that could appeal to the conscience of a court of equity. Indeed, there is grave doubt whether the plaintiff comes into court with clean hands. But in view of the conclusions I have reached on the merits, I shall refrain from discussing the applicability of that doctrine.

The Act referred to authorizes the Secretary to designate as an Indian Reservation:

(1) "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 by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101)".

(2) "Or which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof".

The Act also authorizes the inclusion of additional public lands adjacent to such areas or any other public lands in the actual occupation of Indians or Eskimos.

Section 8 of the Act of May 17, 1884, 23 Stat. 26, 48 U.S.C.A. § 356 note, providing a civil form of government for Alaska is as follows:

"That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress".

So far as the Act of May 3, 1891, 26 Stat. 1101, is concerned, only Section 14 thereof is pertinent here. It merely prohibits the disposition of any part of the public domain under Section 12 as trade or manufacturing sites to which the natives of Alaska have prior rights by virtue of actual occupation.

Although the plaintiff leans heavily on the presumption of validity to uphold the order of the Secretary, it introduced evidence in its case in chief to prove use or occupancy of the area. The evidence failed utterly to establish either use or occupancy except of minute individual tracts and as to those, not only was continuity not shown but it clearly appears that they were abandoned.

The explanation of this failure is a simple one. The evidence necessary to establish use or occupancy since May 17, 1884, is not available because of lapse of time, communal tenure, lack of continuity of use or possession abondonment, and the profound changes in the mode of life of the Haidas after the turn of the century, with corresponding changes in the...