United States v. Libby, McNeill & Libby

• Decision Date: 09 August 1951
• Docket Number: No. 6445-A.,6445-A.
• Citation: United States v. Libby, McNeill & Libby, 98 F. Supp. 601 (D. Alaska 1951)
• Parties: UNITED STATES v. LIBBY, McNEILL & LIBBY.
• Court: U.S. District Court — District of Alaska

98 F. Supp. 601

UNITED STATES v. LIBBY, McNEILL & LIBBY.

No. 6445-A.

United States District Court Alaska, First Division, Juneau.

August 9, 1951.

P. J. Gilmore, Jr., U. S. Atty., Stanley D. Baskin, Asst. U. S. Atty., Juneau, Alaska, for plaintiff.

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

FOLTA, District Judge.

By this suit the plaintiff, acting on behalf of the Indians of the Hydaburg Indian Reservation in Alaska, seeks to enjoin the defendant from fishing in the waters of the reservation and pending trial has renewed its application for a preliminary injunction. Upon the first hearing, plaintiff's motion for such an injunction was denied on May 21, 1951, without prejudice because defendant could in no event engage in fishing until the season opened on August 6. Upon the second hearing held on August 4, plaintiff has shown that the defendant has reinstalled its trap in reservation waters and is about to engage in fishing during the current season which ends on September 1.

Defendant has operated its trap on the identical site involved in this controversy, in the waters of Tlevak Strait, an arm of the pacific Ocean, since 1926.

The complaint alleges that on November 30, 1949, under the authority conferred upon him by Section 2 of the Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C.A. § 358a, the Secretary of the Interior made an order creating the Hydaburg Indian Reservation, 14 F.R. 7318, and that the defendant's trap site, along with other lands, was included within the boundaries thereof; that the defendant threatens to enter the reservation and engage in fishing for salmon by means of said trap, which incidentally the defendant admits, and that unless enjoined, the defendant will take a great number of salmon from the waters of said reservation.

Section 2 of the Act of May 1, 1936, supra, provides: "The Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of Indians or Eskimos by section 356 of this title, or by section 14 of the Act of March 3, 1891 (26 Stat. 1101), or section 358 of this title, or which was reserved prior to May 1, 1936, under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with 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:"

Defendant contends that there is a want of equity in the complaint and in support thereof, asserts as follows:

1. The order establishing the reservation is invalid because: (a) the Secretary of the Interior did not comply with the Administrative procedure Act, 5 U.S.C.A. § 1001 et seq., or the established procedures of the Department itself, 43 C.F.R. 50.152, 12 F.R. 6737, particularly in that no notice was given or hearing held and no opportunity afforded the defendant and others adversely affected by the order to file protests and to be heard thereon; (b) it includes tide lands or navigable waters, in contravention of the Act of May 14, 1898, 48 U.S.C.A. § 411, which declares that such lands or waters shall be held by the United States in trust for the future state; (c) it includes lands and waters which had not only not been reserved for the use and occupancy of the Indians by Section 8 of the Act of May 17, 1884, 23 Stat. 26, 48 U.S. C.A. § 356; or by Section 14 of the Act of March 3, 1891, 26 Stat. 1100, 1101, or Section 358 of Title 48 U.S.C.A., or by any executive order placing such lands and waters under the jurisdiction of the Department of Interior or any bureau thereof, but also had never been used or occupied by Indians, in consequence of which the inclusion of such lands in the Reservation contravenes the provisions of Section 2 of the Act of May 1, 1936, quoted above; (d) the lands and waters included in the reservation were not, within the meaning of Section 2 of the said Act of May 1, 1936, "additional public lands adjacent" to any area of land which had prior to May 1, 1936 "been reserved * * * by * * executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof" but on the contrary, the lands were, at the time the order creating said reservation was made and for many years prior thereto, a part of the Tongass National Forest, Proclamations Sept. 10, 1907, Feb. 16, 1909, 35 Stat. 2152, 2226, and, hence, their inclusion within said reservation was in violation of Section 2 of said act; and (e) the trap at the site involved...