METLAKATLA INDIANS v. EGAN

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Argument of Richard Schifter

Chief Justice Earl Warren: Metlakatla Indian Community Annette Island Reserve, Appellant, versus Egan, Governor of Alaska, et al.

And Number 27, Organized Village of -- of Kake et al., Appellants, versus Egan, Governor of Alaska.

Mr. Schifter.

Mr. Richard Schifter: Mr. Chief Justice, may it please the Court.

The question before the Court in these consolidated cases is the right of three Indian fishing communities in Alaska to maintain fish traps where the Federal Government has specifically authorized them to maintain these traps and where the State has made it a crime for them to do so.

It is this conflict between state and federal jurisdiction, between the assertions of state and federal jurisdiction, which is the common question to the two dockets.

There is another question as common to both dockets concerning jurisdiction.

The two dockets differ on a question of the origin of Indian rights here asserted.

And it will be my purpose to address myself first to the common questions and then to the specific question in Docket 326.

As far as the general background is concerned, all three communities as I've indicated are fishing communities, their whole economy resting on fishing and canning.

A key element in this economic setup of these communities are -- is a maintenance fish traps.

Fish traps constitute an efficient way of catching salmon which has proved inexpensive or less expensive in the long run in maintaining of boats.

The right for that -- of Metlakatla to maintain fish traps has been authorized by the Secretary of the Interior, for many years and most specifically, was authorized in 1959 and proposed regulations have been issued for the fishing season of 1960, which is about to start authorizing them once again to maintain these traps.

Justice Felix Frankfurter: What's the aid of the legislation?

Mr. Richard Schifter: Of the regulations?

Justice Felix Frankfurter: Of the legislation.

Mr. Richard Schifter: Which legislation, Your Honor?

Justice Felix Frankfurter: Oh, what is forbidden by the State, by the --

Mr. Richard Schifter: Oh, 1959, January 1959.

Justice Felix Frankfurter: Even the Secretary's authorization?

Mr. Richard Schifter: Came in April 1959, for the 1959 season.

Justice Felix Frankfurter: Well that's directed against the -- the -- the prohibition?

Mr. Richard Schifter: Oh, yes.

Yes.

It's quite --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Richard Schifter: It's quite clear that as far as the Secretary of the Interior is concerned, he is aware of the state law in this matter and issued the regulations in 1959 and proposes to issue them once again in 1960.

Justice Potter Stewart: Are these regulations by the Secretary of the Interior, over the years, been issued annually?

Mr. Richard Schifter: That's right, Your Honor.

Justice Potter Stewart: For the fishing season each year?

Mr. Richard Schifter: They were issued in 1959.

Again in 1960, I believe that there was a general pattern over the years for issuing regulations authorizing the fish traps, a certain number of fish traps, but the specific decision as to how long they will be open and exactly which locations maybe operated, vary from year to year.

Justice Felix Frankfurter: When did this -- when did this regulation begin?

Mr. Richard Schifter: Justice Frankfurter --

Justice Felix Frankfurter: Exactly --

Mr. Richard Schifter: -- I believe in 1915 as far as Metlakatla is concerned, rather -- recently, perhaps, 1958 and 1950 as far as the appellants in Docket 327 are concerned.

Justice William J. Brennan: But before 1959, this is --

Mr. Richard Schifter: Oh, yes.

Justice William J. Brennan: Not perfectly for not regulations limited to authorizations to the Metlakatlans or Kake and the Angoon, were they?

They were (Voice Overlap) --

Mr. Richard Schifter: Mr. Justice Brennan, they were -- these -- these fish traps were operated for many years in the past and what happened in 1959 is the Secretary again did what he had been -- done in the previous years.

Justice William J. Brennan: Well but -- were -- were the regulations of the Secretary promulgated before 1959 applicable only to these appellants?

Were they not general regulations?

Mr. Richard Schifter: They were general regulations which specifically mentioned --

Justice William J. Brennan: Mentioned these (Voice Overlap) --

Mr. Richard Schifter: -- mentioned the traps at this particular location, which will authorize the operator.

Justice William J. Brennan: But here, we're involved with only 11 --

Mr. Richard Schifter: That's right.

Justice William J. Brennan: -- fish traps.

Mr. Richard Schifter: (Voice Overlap)

Justice William J. Brennan: And before that, it used to be a couple hundred, wasn't it?

Mr. Richard Schifter: There were many more, yes.

It was -- there were many hundreds.

Justice William J. Brennan: And was -- as to these particular locations, were the number before 1959 more than 11, total?

Mr. Richard Schifter: Yes, Mr. Justice Brennan.

A total of 21 locations have been authorized over the years at Metlakatla and Kake and Angoon.

In each instance though, each year, a decision is made as to exactly which of them should be operated.

For example, Metlakatla has eight authorized locations which have been authorized for a good number of years.

Last year, four of them were authorized to -- to open.

This year again, it is proposed to -- to open only four of them incidentally, for -- one of them is a different one from the one that was allowed to open last year.

Chief Justice Earl Warren: Do you concede -- concede the right of the Government to change those regulations at will?

Mr. Richard Schifter: As far as Docket 326 is concerned, Mr. Chief Justice, yes.

Justice Felix Frankfurter: May I ask whether the territory of the last -- whether the 1959 legislation was the first intervention by Alaska whether as including -- it's stated to the territory --

Mr. Richard Schifter: Yes, Mr. Justice Frankfurter.

Justice Felix Frankfurter: -- in the field in which he didn't agree.

Mr. Richard Schifter: That is the issue in the case.

Their --

Justice Felix Frankfurter: Well, no.

My question doesn't concern the issue is.I want to know the historic fact --

Mr. Richard Schifter: Yes.

Justice Felix Frankfurter: -- that the first time that this prohibitory step was taken by Alaska.

Mr. Richard Schifter: Yes, Your Honor.

Justice Felix Frankfurter: I know the State, it couldn't have -- if it wasn't the State who couldn't have acted in the State before, but as a territory, it didn't --

Mr. Richard Schifter: It --

Justice Felix Frankfurter: -- if any local, territorial -- didn't take any local territorial step.

Mr. Richard Schifter: No, Mr. Justice Frankfurter.

And as a matter of fact, the State today claims only the right to do this because it is a State.

Justice Felix Frankfurter: Because it is a State.

Mr. Richard Schifter: That's right.

As far as the --

Justice Felix Frankfurter: And, of course, it may have right to the State but it didn't have as a territory --

Mr. Richard Schifter: Well, the --

Justice Felix Frankfurter: (Voice Overlap) you say that, would you?

Mr. Richard Schifter: That is the question.

Justice Felix Frankfurter: But I don't mean as to this, but as to something, certainly.

Mr. Richard Schifter: Oh, yes, yes.

The -- as I've indicated, the operation of the -- the traps is vital to the -- these Indian communities and it is for that reason that they have sought to enjoin the enforcement of the criminal laws of Alaska against them.

While vital to the community, I should add and the record indicates that the total trap catch at Metlakatla constitutes less than 1% of the total catch of the entire State.

There is a jurisdictional matter in this case which is a unique problem arising from the Statehood Act.

The parties and the amicus have now agreed and fully concur in the fact that this Court has jurisdiction over the judgment, to review the judgment below.

However, as the issue was raised in the argument on the State by Mr. Justice Brennan, I would like to discuss it briefly.

The suits in question here were filed in June 1959 in the District Court for the State of Alaska which is the -- was the holdover territorial court committed to continue to exist as long -- until the State of Alaska set up its own judicial machinery.

The judgment was entered on July 2nd, 1959.

The notice of appeal was filed in this Court on August 6.

There's no question for that on these dates.

The District Court for the State of Alaska was the only court operating in Alaska and was therefore, the highest court.

The Alaska Supreme Court was constituted later.

Its first members were appointed, first two members who are appointed on August 7th, the third member on September 1st, rules were promulgated on September 25th and the effective date of the rules was October 5th.

The point here is that the Supreme Court of Alaska was not constituted as a court, did not start functioning until October the 5th.

Judgment was entered on July 2nd.

The notice of appeal filed on August 6th.

We submit -- and this is as -- as I've indicated something on which all parties and the Solicitor General concur that under Section 1257 of the Judicial Code.

The very wording would indicate that July 2nd should be the date as of which one would determine whether we have here a final judgment rendered by the highest court in which the decision could be held.

And on July 2nd, the District Court for the State of Alaska was the highest court.

Justice John M. Harlan: Was the Court of Appeals now have jurisdiction to hear the appeal?

Mr. Richard Schifter: The Supreme Court of Alaska?

Justice John M. Harlan: Yes.

Mr. Richard Schifter: It would.

Justice John M. Harlan: It would.

Mr. Richard Schifter: I should say we didn't want to take any chances and the prognosis of appeal just for the sake of preserving the jurisdiction of that court.

We --

Chief Justice Earl Warren: If this was the highest court of the State, how would there be an appeal to the Court of Appeals?

Mr. Richard Schifter: I believe, Mr. Justice Harlan meant the Supreme Court of Alaska?

Justice John M. Harlan: I did.

I misspoke myself.

Mr. Richard Schifter: The Supreme Court of Alaska.

For the Supreme Court, as I've indicated, was constituted in October.

And to -- to be absolutely certain in protecting the rights of our clients, although we did not think that that Supreme Court had jurisdiction over the case, we did file notices of appeal.

Justice William J. Brennan: Well, do you now concede that it does have jurisdiction in --

Mr. Richard Schifter: No.

No, Your Honor.

Justice William J. Brennan: No.

Mr. Richard Schifter: No.

Justice William J. Brennan: (Voice Overlap) Justice Harlan that the Supreme Court of Alaska by reason of the --

Mr. Richard Schifter: Oh --

Justice William J. Brennan: -- (Voice Overlap) taken there does have jurisdiction of the State.

Mr. Richard Schifter: No.

I'd like to make that clear.

We believe that jurisdiction vested in this Court and not in the Supreme Court of Alaska, but we just wanted to be certain to cover our -- our clients in all possibilities.

Justice Felix Frankfurter: You said the word of the statute make it clear?

Mr. Richard Schifter: The wording of the statute, Your Honor, is --

Justice Felix Frankfurter: Well, what are the words?

What is the wording?

Mr. Richard Schifter: -- that final judgment rendered by the highest courts in which -- which a decision could be held are subject to review by this Court.

Justice Felix Frankfurter: Well, if you're right that you could've gone to the Supreme Court of -- you couldn't now, could you've then, at no time can you go on the Supreme Court of -- of --

Mr. Richard Schifter: There was no Supreme Court of Alaska at the time.

Justice Felix Frankfurter: At -- at what time?

Mr. Richard Schifter: On July 2nd, when the judgment was rendered.

Justice Felix Frankfurter: I know, but if there was a Supreme Court within the appealable period of taking an appeal to the Supreme Court of Alaska, why wouldn't that enable you to go there?

Mr. Richard Schifter: The Supreme Court, Mr. Justice Frankfurter, was created afterwards after its --

Justice Felix Frankfurter: I understand it was created afterwards.

But if it wasn't and -- if it wasn't existent within a period -- within which by the statutes of -- of Alaska or the ruler of the Supreme Court, there would've been ample time to go from a District Court to -- to the then newly created Supreme Court, what would have barred you on this -- barred attempt -- Alaska law to go there, although that wasn't (Inaudible) at the time the decision was rendered?

Mr. Richard Schifter: We are not barred, except if this Court, if a jurisdiction has vested in this Court.

And it would -- I believe, being Congress, Mr. Justice Frankfurter, for a jurisdiction to have vested in this Court and then that jurisdiction to be defeated by the subsequent creation of a state court.

Justice Felix Frankfurter: I can put the case the other way around, if you had neither going to the State Supreme Court and maybe this Court having jurisdiction.

Mr. Richard Schifter: But this -- may I please, Your Honor.

Justice Felix Frankfurter: If you -- if -- if there was a time before this Court came to act on its appeal to go to a -- a still higher court than that which rendered the decision, then for me, at least, the question is raised whether they wanted an existence, the highest court other than the lower court, which rendered the decision.

Mr. Richard Schifter: Mr. Justice Frankfurter, it would raise -- I -- I believe two questions would be -- be raised by your approach.

One is the actual --

Justice Felix Frankfurter: I don't get it.

I'm asking you.

Mr. Richard Schifter: Well, the wording of Section 1257 in the first instance speaks of final judgments rendered by the highest court, being subject to review by this Court.

Looking at the language of 1257, we're dealing here with a judgment rendered by a highest court.

This was a judgment rendered by a highest court, because in July 2nd when Judge Kelly in the District Court of Alaska, rendered the judgment.

He did constitute the highest court, so the judgment in this case is the judgment of the highest court under the language of 1257, which under the statute, under which this Court operates does vest jurisdiction in the court.

Justice Felix Frankfurter: How much time did you have to come here?

Is this a three-month or 90-day appeal?

Justice William J. Brennan: No.

I fixed the time in there.

Justice Felix Frankfurter: No, no, no.

Mr. Richard Schifter: Yes.

Mr. Justice Brennan shortened the time.

Justice Felix Frankfurter: Nom but under the statute -- under the statute, how much time, did you have 90 days?

Mr. Richard Schifter: 90 days.

Justice Felix Frankfurter: All right.

Now, if no appeal had been taken within -- from the District Court to this Court and in the meantime, the Supreme Court had been established for Alaska, so that -- and thereafter you filed an appeal here.

That would raise in a security for me against the question whether at that time, the highest court or the District Court or the newly created Supreme Court.

Mr. Richard Schifter: I think it would, Mr. Justice Frankfurter, but --

Justice Felix Frankfurter: Now, the question therefore, if -- if you say yes to that, then I think you will have a little difficulty with me, at least, to say that because you came here before, but in the meantime, a highest court has created, it didn't -- it wasn't the highest court when we come to consider the question.

Chief Justice Earl Warren: Was the Supreme Court --

Justice Felix Frankfurter: I don't want to (Voice Overlap) --

Chief Justice Earl Warren: -- was the Supreme Court established within 90 days of the judgment?

Mr. Richard Schifter: No, Your Honor.

Mr. Justice -- Mr. Chief Justice.

It was established in October 5th.

A quick count gives me --

Chief Justice Earl Warren: It's over 90 days.

Mr. Richard Schifter: -- October 2nd.

Justice Felix Frankfurter: (Voice Overlap) --

Chief Justice Earl Warren: Yes.

Mr. Richard Schifter: I also want to submit the policy question.

We filed our notice of appeal on August 6th and it was then that the jurisdiction of this Court vested and a subsequent creation of this -- of subsequent creation of a higher court could actually then defeat the jurisdiction of this Court, once it had vested.

Justice Felix Frankfurter: Are there -- do you happen to know what there -- other type of litigation that raised this complication?

Mr. Richard Schifter: This complication was raised in only one instance in which the Ninth Circuit, the Court of Appeals of the Ninth Circuit decided that it did not have jurisdiction over appeals from this District Court for the State of Alaska on the ground that the District Court was a state court and not a federal court.

(Inaudible)

Justice Felix Frankfurter: The -- the act of admissions said nothing about this matter, did it?

Mr. Richard Schifter: The act of admission suggested that the Ninth -- that the route -- the proper route would be that through the Ninth Circuit and the --

Justice Felix Frankfurter: The Ninth Circuit rejected that.

Mr. Richard Schifter: That's right, Mr. Justice Frankfurter.

This completes my discussion of the common issues in 326 and 327, and I would like to proceed with the specific problem in Docket 326.

The Metlakatla Indian Community derives its rights from a reservation granted by Congress, by a statute in 1891.

It was a reservation granted to them to hold and use the Annette Islands in Alaska, subject to regulations of the Secretary of the Interior.

In the Alaska Pacific Fisheries case, this Court has defined the reservation as including the adjacent waters, the waters adjacent to the Annette Islands.

And at that time in -- in the United Pacific Fisheries case, enjoined a private company from trying to fish in what Congress had set aside for them as an exclusive fishery.

The fishery -- the reservation was further defined by Presidential Proclamation in 1916 to extend 3000 feet from the shoreline into the sea.

To -- and this, under the Presidential Proclamation, constitutes the exclusive fishery.

If there ever was any question as to whether this Presidential Proclamation was authorized, it was put to rest by Congress in 1934, when Congress passed the statute which specifically ratified the Presidential Proclamation of 1916 and thereby, clearly fixed the definition of the reservation to extend 3000 feet from the shore.

As I've indicated before, the Secretary of the Interior has authorized Metlakatla to maintain fish traps within this area reserved by Congress and these regulations were not questioned until Statehood.

The query that this raises now is when the Statehood, in itself, swept away the provisions of the Act of 1891, the Proclamation of 1916 an the Act of 1934, all of which specifically authorized the Metlakatla to use these reservations subject to regulation by the Secretary of the Interior only.

Justice Potter Stewart: You don't pretend that this -- that these federal acts served to create a reservation within the -- any technical meaning of that word do you, an Indian reservation.

Mr. Richard Schifter: Mr. Justice Stewart, they do.

I don't know what you -- how you would want to define the reservation now.

If you mean whether it vests compensable rights to -- is that your question?

Justice Potter Stewart: Yes, that and -- whether they vested anything beyond mere fishing privileges.

Mr. Richard Schifter: Well, the land itself.

That includes the land too.

Justice Potter Stewart: The Annette Islands --

Mr. Richard Schifter: The islands, and the Annette Islands maybe used if to the language of the 1891 statute is that these islands maybe held and used by the Indians.

Now, the law also says until otherwise provided and that Congress otherwise provides, then I presume this use -- is no longer authorized.

Justice Potter Stewart: And that the capitals are all Indians, are they?

Mr. Richard Schifter: They are.

Justice Potter Stewart: Than are more -- they're -- they're not Eskimos or --

Mr. Richard Schifter: Indians.

Justice Potter Stewart: Indians.

Mr. Richard Schifter: It's Tsimshian Indians.

It is our position that the 1891 statute, having reserved this land until otherwise provided by law, would have remained in effect until a specific or -- or must remain in effect until there is a specific repeal of the 1891 reservation.

No repeal legislation has ever been enacted.

On the contrary, the Alaska Statehood Act specifically, in Section 4 of that Act, preserves all the rights that Metlakatla has under this 1891 reservation, including its fishing rights.

Under the Section 4, under the specific terms of Section 4, the State of Alaska disclaimed any right to interfere with the exercise by the Indians of any jurisdiction -- of -- of their right here and -- and this is the language of Section 4, reserved these rights to the “absolute jurisdiction and control of the Congress.”

Section 4 is therefore quite clear on this particular subject that the rights of the Indians to use these lands, subject only to regulations by the Secretary of the Interior, is continued beyond Statehood.

Chief Justice Earl Warren: May I ask you, merely as a matter of interest to these Indians were indigenous to that part of Alaska?

Mr. Richard Schifter: Mr. Chief Justice, they originated in British Columbia, Canada.

They -- they were a rather well-known community in British Columbia and were invited by the United States to come to Alaska in 1887.

There was a religious division in a -- in the particular group and the minister and Reverend Duncan, who in great fame in this particular area, moved out with his congregation and established on invitation, from the United States Government this new community on the Annette Islands, the Indians -- and this is discussed by Mr. Justice Van Devanter, in the Alaska Pacific Fisheries case.

They were given permission to look around in Alaska for a particular location where they would like to settle.

They picked the Annette Islands and then they made a request to have this land set aside for them.

There was then a question as to whether the President could do it without going to Congress and the Attorney General ruled that it could not and was there found that -- that the Congress passed the statute of 1891 specifically setting this land and the fishery aside for the Metlakatla Indians.

Chief Justice Earl Warren: And just where -- just where I'd be in Annette Islands?

Mr. Richard Schifter: They are in the -- in Southeastern --

Chief Justice Earl Warren: Southeastern --

Mr. Richard Schifter: -- Alaska and -- and (Inaudible)

Chief Justice Earl Warren: (Voice Overlap) --

Justice Felix Frankfurter: In numbers, how many are they on the islands?

About --

Mr. Richard Schifter: I believe a little over 1000.

Justice Felix Frankfurter: 1000.(Voice Overlap) --

Mr. Richard Schifter: As far as Metlakatla is concerned, I think a little over 1000.

Justice Felix Frankfurter: The whole community, 1000?

Mr. Richard Schifter: I -- I could check that in --

Justice Felix Frankfurter: Well, I don't -- no that's for bad -- for that magnitude is it?

Mr. Richard Schifter: Yes.

Justice Felix Frankfurter: All right.

Mr. Richard Schifter: The State, may it please the Court, has not really had any answer to Section 4 except to say number one, that it may constitute surplusage.

And -- and second, that it maybe -- or it is unconstitutional and to the extent to which it is possible to determine what was meant below, it seems that the -- that the decision below also is that Section 4 is unconstitutional.

I should say that Section 4 is not mentioned in the opinion of the lower court at all.

Justice Felix Frankfurter: Suppose that --

Mr. Richard Schifter: I would like to --

Justice Felix Frankfurter: Would you complete it?

I don't quite to understand that Section 4 of the -- of the Constitution of Alaska --

Mr. Richard Schifter: Section 4 of the Alaska Statehood Act, Mr. Justice Frankfurter, preserves -- specifically preserves the jurisdiction --

Justice Felix Frankfurter: Where is that in your brief, what page?

Mr. Richard Schifter: Page 3.

It starts at the bottom of page 2.

Justice Felix Frankfurter: Yes.

To mean four, on page 4 is that it?

Mr. Richard Schifter: It starts on the bottom of page 2, statutes involved.

Justice Felix Frankfurter: Yes.

Mr. Richard Schifter: Section 4, Alaska Statehood Act.

Justice Felix Frankfurter: And what is unconstitutional?

Mr. Richard Schifter: The State suggests that this Section 4 is unconstitutional.

Justice Felix Frankfurter: Or is that Section 4 -- if it's -- if it is Section 4, 04, no, that's something else.

Article 12 of the Constitution of the State of Alaska --

Mr. Richard Schifter: That's --

Justice Felix Frankfurter: -- found on page 4 and 5, was that submitted to the Congress before Alaska was admitted?

Mr. Richard Schifter: Mr. Justice Frankfurter, yes.

The -- Alaska came in under the so-called Tennessee Plan and the Constitution was adopted first and everything was set up to operate and then the Congress adopted the Alaska Statehood Act.

Justice Felix Frankfurter: But the Constitution was before Congress as a basis for it or --

Mr. Richard Schifter: The admission.

Justice Felix Frankfurter: -- with the admission?

Mr. Richard Schifter: That's right.

Justice Felix Frankfurter: Well handled in Section 4 of the Alaska Statehood Act, sort of fit in with Article 12 of the Constitution --

Mr. Richard Schifter: It is the counterpart.

That's right Mr. Justice Frankfurter.

They are counterparts.

And this is typical in many of these Statehood Acts where Indian protection clause was written in.

The State was required.

And -- and this -- I -- I would like to come that, Section 4 is nothing new.

It has been in -- as Indian protection clauses in State Constitutions since 1889 and --

Justice Felix Frankfurter: And if the suggestion that Section 4 tied to Article 12 is unconstitutional, because of the equal footing clause.

Mr. Richard Schifter: There are two grounds asserted.

One of them is the equal footing (Inaudible) and the other one is the suggestion that the Metlakatla Community may not be an Indian tribe.

Justice Felix Frankfurter: Well that wouldn't ask -- that sounds America whether or what it is, if deactivated --

Mr. Richard Schifter: But --

Justice Felix Frankfurter: -- anyone does.

Mr. Richard Schifter: -- it's the equal footing doctrine.

If I may just to cover the surplusage argument fist, first -- it is first contrary to the canons of statutory construction that a -- a section such as this, which had been considered by Congress for 11 years and which is in no way new, but has appeared in similar form as Indian protection clauses and State Constitution since 1889, which was the Admission Act for the Dakota, Wyoming and Montana, that this could possibly be surplusage.

We have set forth in the brief, the discussion in the committee reports of Section 4, again over 11 years.

Section 4 was in there because there were Indian raised -- the questions raised by Indians about Alaska Statehood and this was specifically designed to -- to attempt to remove Indian opposition to Statehood.

Justice John M. Harlan: What is the alleged to be surplusage?

I don't understand.

The whole Section 4?

Mr. Richard Schifter: That's my understanding of the State's argument.

I'm sure Mr. Rader will be able to explain that.

I understood from the brief that they suggest that this was surplusage.

It's cited in there – it's stated in there in brief, the last page.

Page 60 suggested -- the State does not lose the power to regulate Senator (Inaudible) the State says, when he goes fishing because of his race as applied to Senator (Inaudible) this provision is either surplusage or is unconstitutional.

Justice Felix Frankfurter: May I ask whether, in Alaska, there are other conventional Indian reservations?

I mean my conventional -- I mean if nobody would argue about, they're Indian reservations withdrawn from the authority of law of the States.

Are there (Voice Overlap) --

Mr. Richard Schifter: With regard --

Justice Felix Frankfurter: -- having -- having nothing to do with this problem.

Mr. Richard Schifter: There --

Justice Felix Frankfurter: Other they Indian tribes?

Mr. Richard Schifter: Just -- there are some, none quite like Metlakatla.

There are others that were reserved under the amendments to Wheeler-Howard Act.

Justice Felix Frankfurter: I mean this Section 4 would apply to -- to Indian tribe is located and living on reservations having nothing to do with this particular fishing clause?

Mr. Richard Schifter: That's right.

That's right, it would.

Justice Felix Frankfurter: Now, do I understand that -- that Alaska law plays no part at all on Annette Islands?

Are they wholly out from -- of -- not -- they're only outside the authority of the State now?

Mr. Richard Schifter: It does not -- they are not.

Alaska law was committed to come in under a 1957 or 1958 amendment to what is known as Public Law -- against 1957, amendment to Public Law 280, of the 83rd Congress.

In 1953, Congress passed the statute under which certain state jurisdiction was extended over reservations in certain name of states.

Justice Felix Frankfurter: (Voice Overlap) territory jurisdiction.

Territory jurisdiction.

Mr. Richard Schifter: It was -- it was state jurisdiction in 1953 covering California.

Justice Felix Frankfurter: How could it be a State in 1953?

Mr. Richard Schifter: I beg your pardon?

It was a general -- there was a --

Justice Felix Frankfurter: I don't -- I don't understand.

Mr. Richard Schifter: There was a --

Justice Felix Frankfurter: That clause in the State in 1953.

Mr. Richard Schifter: There was a general statute passed in 1953, Mr. Justice Frankfurter, covering California, Minnesota -- well, by five states in the United States.

In 1957, this law was amended to add the territory of Alaska to provide that state law and order and civil jurisdiction or -- or territorial line or the -- and -- and civil jurisdiction were extended over the Indian country, except that that law too, specifically provides that when it comes to hunting and fishing rights, that state law shall not extend to that or territorial law?

Justice Felix Frankfurter: And the -- the 15 -- the act of admission says nothing about that, or does that territorial law -- is there a general provision about the continuation of territorial law was not changed?

Mr. Richard Schifter: The -- without making any specific provision, the Statehood Act would necessarily require that -- that the State can exercise whatever authority the territory could, in matters other than fishing and hunting rights, so there's -- it assumes the same position the territory of Alaska had under this amendment to what is known as Public Law 280 of the 83rd Congress.

But this does not extend to fishing and hunting rights and is specifically exempted by that 1953 law as amended and was again exempted by Section 4 of the Statehood Act.

Justice Felix Frankfurter: When is it -- is it as broad as you put it that the State know so called police authority with reference -- can it pass laws dealing with safety to life, although it's connected with fishing?

Mr. Richard Schifter: I would say the answer is no.

The --

Justice Felix Frankfurter: The whole thing is withdrawn.

Mr. Richard Schifter: Section 4 says there's an absolute -- words of Section 4, absolute jurisdiction and control of the United States.

Absolute jurisdiction and control and that would encompass everything.

I would now like to address myself to the equal footing doctrine argument raised by the State.

It is suggested that Section 4 of the Alaska Statehood Act is unconstitutional under the equal footing doctrine citing the Pollard case.

We submit that as was spelled out clearly by this Court in Coyle versus Smith, the meaning of the equal footing doctrine is that you cannot use a Statehood Act to exact from a State, a surrender of authority to the Federal Government in an area in which a Federal Government would not otherwise have jurisdiction under the Constitution of the United States.

Here, we are not dealing with such a situation.

We are dealing with a situation in -- with a field of activity in which the Federal Government has been involved under the Constitution specifically under the Indian Commerce Clause, ever since the United States became an independent --

Justice John M. Harlan: That presupposes though that these are tribal Indians which I understand –-

Mr. Richard Schifter: That's my last point.

Justice John M. Harlan: Which has taken issue with -- by the State?

Mr. Richard Schifter: Yes.

And we attempt to answer that in our reply brief.

Assuming for the moment that these are tribal Indians, there is no question that the Indian Commerce Clause permits the United States to -- to legislate in this area and that it was therefore, under the Indian Commerce Clause that the United States was able to place Section 4 in the Alaska Statehood Act, as it did with regard to similar sections in previous Statehood Acts.

Congress has plenary authority over Indian affairs as was held by this Court in Lone Wolf versus Hitchcock.

Therefore, the equal footing doctrine could not possibly have anything to do with this particular area of federal intervention.

This makes me come to the last question just raised by Mr. Justice Harlan namely whether the Metlakatla Indian Community is an Indian tribe and whether possibly, the Federal Government is not permitted to enter into this area because this should not be constitute -- not be denominated an Indian tribe.

The answer to this is that it has been the repeatedly stated doctrine of this Court that the question of whether a particular community is an Indian tribe or not is one for the executive and for Congress and not for the judiciary.

Justice Felix Frankfurter: Does the statute say to that -- talk about Indian tribes?

Mr. Richard Schifter: It does not.

Justice Felix Frankfurter: So why don't we stick to the language of the statute?

Maybe it's the same as Indian tribe, but I don't find it in the statute.(Voice Overlap) --

Mr. Richard Schifter: It speaks of natives and --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Richard Schifter: -- Indians, Eskimos et cetera.

Mr. Justice Frankfurter, I would say -- just say this that perhaps this question could be raised, the question of unconstitutionality of Section 4 in this regard with regard with to some other community, I don't know.

But with regard to this community, there's no doubt that it has always been recognized as an Indian tribe and that this recognition would be binding on --

Justice Felix Frankfurter: They're not natives are they?

What do natives mean?

You tell -- you told us a little while ago you, you told the Chief Justice, an answer to your question, they came from --

Mr. Richard Schifter: Canada.

Justice Felix Frankfurter: -- from New Brunswick or from where?

From Canada?

Mr. Richard Schifter: That's right.

Justice John M. Harlan: But what is there in the record to show they have been recognized as into this tribe?

Mr. Richard Schifter: We have cited the constitution of the -- of the tribe.

The -- they have been recognized by the -- by the statutes itself.

And that under the definition of -- the definition of a -- an Indian tribe as stated in the -- in Cohen's Handbook of Indian Affairs, one of possible criteria would be that Congress has recognized them as -- as an Indian group and has given them some common property of rights.

The Act of 1891 does just that.

The Presidential Proclamation of 1916 again does just that and the Act of 1934 does that.

Justice Felix Frankfurter: Are they tribal government?

Mr. Richard Schifter: Yes, Your Honor.

They do have a constitution under the Wheeler-Howard Act, as amended and they have a charter under the Wheeler-Howard Act, as amended.

They're -- prior to the time that they had a constitution which was only adopted in 1944, they had a tribal council or a community council under federal regulations, 25 CFR, pt.1 in -- for many years constituted of just that regulations for the operation of the Metlakatla Community including their tribal or community government.

It was superseded in 1944 by a constitution under the Wheeler-Howard Act as amended to -- to include Alaska.

Throughout all its dealings with the Metlakatla Indian Community, the United States has, at all times it is, the Congress and the Department of the Interior have recognized Metlakatla as an Indian community.

They've called it a community.

It's in the -- under the definitions here, the equivalent of a tribe and it's quite clear that therefore, we are dealing with the exercise of an authority which is subject only to -- which is not subject to judicial review.

Justice John M. Harlan: In this -- in this community, are there -- other -- this -- others than Indians living?

Mr. Richard Schifter: Mr. Justice Harlan, I do not believe so.

I believe that other than Tsimshian Indians have been admitted to membership, that is some Tlingit and Haida Indians, that you have this all over the rest of the United States where there's a great deal of intermarriage taking place and the spouses of -- let's say Blackfeet Indians admitted to the Blackfoot tribe, if they belong to Laguna.

This is -- I happen to note this particular situation.

Through intermarriage, you get all kinds of other Indians admitted into other tribes for not -- of non-Indians.

Let me reserve the rest of my time.

Chief Justice Earl Warren: You may, Mr. Schifter.

Mr. Cragun.

Argument of John W. Cragun

Mr. John W. Cragun: May it please the Court.

I represent the Organized Village of Kake in the Angoon Community Association.

Each of them played to them as so that they were of the Tlingit tribe.

The allegations of the complaints are rather spared on many of the issues which have become acute in this course -- Court as a result of the State's brief, Governor Egan's brief.

I have however, because of assertions in that brief, that these are mere local state villages or first class cities did obtain from the Department of Interior, as many copies as I could get of the constitution and bylaws in the corporate charter of Kake (Inaudible) and of Angoon Community Association.

I've handed to the clerk for distribution to the judges, a copy of the constitution and bylaws and corporate charter of Kake, which bears out what was said in their respective complaints that they are organized under federal law.

I -- I was able to get only one set of the constitution and bylaws and corporate charter of Angoon that has been lodged with the clerk.

Justice Felix Frankfurter: What is the population of -- of your -- of your tribe in Kake?

Mr. John W. Cragun: Kake alleged that it was composed of 400 individuals.

Angoon alleged that it was composed of 306.

The --

Chief Justice Earl Warren: What is the background of those tribes?

Did they -- are they natives there or did they also come from --

Mr. John W. Cragun: No, these are natives.

These are natives whose on -- who are on their home ground where they were before the white men first showed up in Alaska, so far as the best of information gives us.

There has been an instructive opinion delivered by the Court of Claims since this case lodged in this Court.

It's rather heavily relied upon by the State.

It's not yet been printed in the reports of the Court of Claims, therefore, the -- the federal supplement grant does not contain the extensive findings of fact which the court appended to its opinion, but even the print in the -- in federal supplement, gives a great deal of information and background of this on a map on which you can locate these two villages as they exist today and have existed since the time the white man first came to Alaska.

Justice Felix Frankfurter: Just to the matter of curiosity, Mr. Cragun, has their number been diminishing over this decade?

Mr. John W. Cragun: I have no reliable information on that, sir.

The numbers of Indians generally in this country and I believe it's true that Alaska, did received for a while --

Justice Felix Frankfurter: Up to the 19 -- around 1915, up to that time.

Mr. John W. Cragun: That's correct.

And since then --

Justice William O. Douglas: It depends on how you define Indian, doesn't it?

Mr. John W. Cragun: It does depend upon how you define Indian as I'm using it here.

I would use the word and does this Court has used it on occasion in the same way the census taker would.

How is a man regarded by the community in which he lives without regard to his racial background?

Justice William O. Douglas: Now, under some of our reservation, the -- a person as Indian if he had one-sixty fourth of Indian blood in him.

Mr. John W. Cragun: That's correct, sir.

I, myself, have known a man who was three-quarters white man biologically, but he was a full blood from the standpoint of tribal relations.

He couldn't speak English until he was pass 21.

His father and his grandfather happened to be United States Army man.q

It's perfectly true.

Biologically, they are not necessarily pure Indians.

They can be very largely Caucasoid.

But the community in which he lives knows whether he's a white man or an Indian.

Justice Felix Frankfurter: But a part in those qualifications.

It is a fact isn't it, to see if I have students of Indian life, that they did decrease in numbers until about 1916, something like that.

Mr. John W. Cragun: I believe that is a matter which is well borne out by census statistics, sir.

Chief Justice Earl Warren: And guess just what part of Alaska are these villages in -- Mr. Cragun.

Mr. John W. Cragun: Well, as in the case of Metlakatla, which was carved out in the lands of the Tlingit Indians, a different clan from the two clans which here are involved.

These lands are lie pretty close to Seattle by the side of the rest of Alaska.

It's in the southeast portion of Alaska.

They lie southwest of Juno.

They're on the inland passages, the islands in from the ocean itself.

These are people who have been gaining a living in very large measure from fish since time in memorial.

They still are.

They finally were provided with more modern equipment by the United States.

The complaints alleged that they're heavily in debt to the United States for this equipment too.

It includes what is necessary to tend their fish traps, to build and tend their fish traps, because I do understand they're built annually.

They had been being built when this case arose and as soon as they were put in place, then the actions took place which precipitated (Voice Overlap) --

Justice William O. Douglas: You didn't give us the Court of Claims citation for federal supplement.

Mr. John W. Cragun: Mr. Justice Douglas, the -- in the federal supplement, the Tlingit and Haida Indians of Alaska is 177 F.Supp.452.

Justice William O. Douglas: Thank you.

Mr. John W. Cragun: The opinion of the Court of Claims is number 47,900 decided October 7th, 1959 and appears in a 122-page pamphlet with many attended maps.

Justice Felix Frankfurter: Mr. Cragun, may I cover you, before you go into these (Inaudible) they didn't have the time or didn't take it.

Would you mind telling us what the -- what the policy configurations are that are operating in this case?

Why is the State -- what are the State's reason for this enactment?

And others, what's the effect upon the community that settle this?

Mr. John W. Cragun: Yes, sir.

I don't --

Justice Felix Frankfurter: (Voice Overlap) situation, what is it?

Why is the State taking this measure evident as a great deal of feeding on both sides and not sure enough?

Mr. John W. Cragun: They --

Justice Felix Frankfurter: (Voice Overlap) all about?

Mr. John W. Cragun: The Governor's brief is (Inaudible) with the reasons for the state action.

The fact is that over a number of years as a political fact of life in Alaska, there has been terrific resentment of trap fishing.

And this is a matter of popular demand than the population might say in Alaska.

It takes a good deal or capital to run a modern big fish trap.

To be sure these people fished with a trap before the white man first showed up and marked the traps we're talking about now.

It takes a good deal of capital.

It's extremely efficient.

It also can be regulated with great care to make sure that the proper runs reach upstairs, but not every man can indulge it.

There are a limited number of trap sites.

He, who gets there first, under the law of Alaska, were told by appellees' brief, would have the prior right.

Here is a matter of spreading out the use so that everyone can take part of it.

I might think it's simply a matter of --

Justice William O. Douglas: It can be -- can very destructive too some species, can it?

Mr. John W. Cragun: Mr. Justice, I understand my best information and there's a letter appended to Mr. Schifter's brief from the Secretary of the Interior, which rather disputes that.

I understand the conservationists are hardly in favor fish traps.

Their -- they can be controlled absolutely to make certain that the runs of fish go upstream.

You can't control it if every man can hire a seine, can get out there and seine up the last fish.

Also, they don't destroy fish.

They -- the fish are kept alive and uninjured to the very time they're processed.

It is not my understanding that there is any conservation issue in a matter of this kind.

There is -- to answer Mr. Justice Frankfurter, a decided political issue.

The State wants to close them up and it wants to close them up in the worst possible way.

These people want to maintain their traps as their only way of paying off their debts and making their livelihood.

The whole village is employed.

Justice Felix Frankfurter: When you say political, what do you mean by that?

Not partying issue, this isn't a party issue, would that (Voice Overlap) --

Mr. John W. Cragun: Well, no.

I -- I don't mean party.

I mean the -- the demand of the electorate --

Justice William O. Douglas: (Voice Overlap) --

Mr. John W. Cragun: -- that this be done.

Now, I may say that there are statements in the brief of appellee in that regard which are contrary to my information.

I'm sorry.

I've never been to Alaska.

I haven't seen this and a lot of things I can't vouch for.

But it's my clear of understanding that it is not true that these people, themselves, want to abolish fish traps.

They can do so, I think, without question, but as the complaints alleged the whole community depends on.

The women who come in and fillet and otherwise process and can the fish, the men who man the boats and crafts, they're all concerned with it and need and want it.

I think the complaints themselves speak for the native attitude.

I didn't want, by what I said, to say that I associated myself with all what was said on this subject in the brief of appellee.

As --

Justice Potter Stewart: You're speaking, I gather, particularly of the boats that -- that retells us we're taking them in these communities in favored abolition of fish traps?

Mr. John W. Cragun: Yes, sir.

That's correct.

There has been some correspondents with the Secretary of the Interior arising since this Court postponed the merits with regard to certain action in which these people were said to have joined by the Alaska Native Brotherhood calling upon the Secretary to abolish fish traps.

I did look into that and if the report was totally false and Secretary said that he had looked into it and found the same thing.

It simply isn't true.

These people need and want to save their livelihood in the shape of their fish traps.

Have I fully answered, Mr. Justice Frankfurter?

Justice Felix Frankfurter: It's done.

I always feel better as I put some flesh on the legal bones.

Mr. John W. Cragun: Well, I only regret that this complaint was drafted in such a hurry and before the case shaped up in the Supreme Court of the United States, because I'm certain it should have put a great deal more flesh on it.

The briefs of both the State and the United States take a view that I wanted to distinguish in which have been the subject of a reply brief, filed here, a night for it last.

On whether we have any rights at all, whether Kake and Angoon have any rights.

The State says, “Well if you read Section 4 of the Statehood Act, it reserves property and it reserves jurisdiction over property including fishing rights of Indians, only if you got rights.”

And the Solicitor General reads that to say “Well that means that Congress has reserved to itself the question whether it will ever recognize rights.”

The State says, “These people have no rights.”

I've been to some pains on that.

And because of a question asked to Mr. Schifter whether these were reservations in the technical sense, I should like to address myself a little further to it.

Actually, Indian rights do not depend upon reservations.

This Court, itself, repeatedly has recognized the rights of Indians quite apart from reservations.

In United States as guardian of the Walapai Indians against the Santa Fe Pacific Railroad Company, an opinion of Mr. Justice Douglas and as I recall for a unanimous court.

The court, by injunction, protected mere rights of aboriginal use in occupancy, aboriginal possession.

It didn't do that on the theory that they didn't have a right to tell them unless Congress established a reservation, but on the ground that there were rights there which were to be protected under federal law unless to be sure Congress does a way with it.

Now, I would not like my understanding of one answer that Mr. Schifter gave to be associated with my possession either.

I don't think that the United States can take those aboriginal rights as a matter which does not create in the Indians some right of compensation.

Justice Felix Frankfurter: But the ultimate source of treaties between --

Mr. John W. Cragun: No, there is no treaty so far as --

Justice Felix Frankfurter: I mean in this case.

Mr. John W. Cragun: No, not in this case.

Justice Felix Frankfurter: No, I mean in this case, in the case you adverted a while ago.

Mr. John W. Cragun: No, sir.

In any Indian case whatever, this Court has ruled very flatly in Lone Wolf against Hitchcock, which was cited by Mr. Schifter, that -- that's a political question.

It has really been the Achilles heel of Indian tribes in this country.

The United States goes out and makes treaties with them.

The United States turns around and with no regard for that treaty, takes their land.

The Indian comes into Court and said I want to stop in taking if they agreed not to and the Court says no.

That's a political question.

You shall have to appeal to the political departments of the Government.

Lone Wolf against Hitchcock is flatly in point there.

Now, on the other hand, nobody else can take aboriginal lands from the Indian, if the United States will protect so held in Lane against Pueblo of Santa Rosa, by this Court.

There, the Indians came to Court to enjoin a private person coming on their lands, not the United States.

But the trouble with Indian rights is not that it isn't a right because there isn't a reservation.

It's because there can be no enforcement of that right, if Congress says something else.

That the political department said, “We abolish any tribal or clan property in these Indians and you don't get anything for it.”

There simply is no question that Congress has the power to do that.

I merely wanted to draw the distinction between the power, which is a political power not subject to review by this Court and the right -- the right does exist and were Congress to waive away the political overtones to it, this Court has and can see that compensation or protection has afforded those rights.

Chief Justice Earl Warren: Well, Mr. Cragun, is it necessary in this case for us to reach the question of the rights of -- of these Indians vis-a-vis the Government?

Mr. John W. Cragun: I believe not.

Chief Justice Earl Warren: Did anybody contend that we --

Mr. John W. Cragun: I think that Alaska almost contends that, though I would --

Chief Justice Earl Warren: (Voice Overlap) done.

Well, then --

Mr. John W. Cragun: I would like appellee to address this --

Chief Justice Earl Warren: I won't -- I won't bother you to argument.

I just --

Mr. John W. Cragun: They assert there are no rights, hence, if you reserve in Section 4 of the rights of Indians.

You'll reserve nothing.

And that is --

Chief Justice Earl Warren: Yes.

Mr. John W. Cragun: -- the reading I give of their position.

Chief Justice Earl Warren: Yes.

Mr. John W. Cragun: I do believe that those rights do exist here and they cannot or ought not be mistaken by virtue of the fact that they are political rights and raise political problems.

They're also, from time to time, has been a discussion of two sections of the Statehood Act in conjunction with one another to which I would like to turn briefly.

Section 4 now, which I -- to which I have referred and which appears at page 5 of our separate appendix, makes it a compact with the United States and the State of Alaska to disclaim land or other property including fishing rights, that right or title to which maybe held by Indians, Eskimos or Aleuts, hereinafter called natives, or is held by the United States in trust with them.

Now, we move to Section 6 which is on the next page, page 6, there is provided there that the -- the first proviso near the bottom of the page that “The administration and management of fish and wildlife shall be retained by the Federal Government under existing laws until 90 days after the Secretary of the Interior certifies to Congress that the State was in a position to take over.”

Secretary did so certify, the State did take over, January of this year and the point was raised at some length and a motion to dismiss that that would make this case moot because asserted -- assuredly, the State now has jurisdiction.

I believe it's impossible to read those statutes, one, as nullifying the other.

The disclaimer is not until the State jurisdiction of ordinary fishing game department duties which Section 6 is talking about where the Secretary enforces regulation and ceased to the policing of Alaskan Fish and Game until the State's able to take over.

This disclaimer is of all lands and properties in the -- either held by the Indians or by the United States entrust for them and then goes on to other clause by which it is agreed that they shall remain under the absolute jurisdiction and control of the United States until disposed of under its authority and I feel that its plain on that that the -- Section 6 did not take away what had just been reserved in Section 4.

It's talking about something deeper, the broad reach of Fish and Game duties.

Justice Felix Frankfurter: Mr. Cragun, as in state admission act, says the word -- as the phrase -- as a compact, is that a -- is that the conventional phrase?

Mr. John W. Cragun: Yes, sir.

And that's been used in -- in a number of the Statehood Acts, as a compact.

And I may say that some more reservations of the rights of Indians have been made time and again in state admission rights.

Justice Felix Frankfurter: Or just calling about the phrase that they should use or a phrase that has a constitutional meaning in a different sense.

Mr. John W. Cragun: Well --

Justice Felix Frankfurter: Can you tell me that's conventional?

Mr. John W. Cragun: I believe it's conventional.

I have seen it in others in the course of reading the cases on the effect of the reservation.

And sometimes it's been called in the statute, a solemn compact.

I think that was the case with Coyle Oklahoma where they solemnly agreed that the capital should not be removed from (Inaudible) for a number of years.

Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Calhoun.

Argument of John D. Calhoun

Mr. John D. Calhoun: Mr. Chief Justice, may it please the Court.

The United States appears in this proceeding as amicus curiae.

It appears in support of the position of appellants.

It asks that the judgment below be reversed.

I would like at the outset of this argument to comment briefly on the jurisdictional question that this Court reserved in its order of December 7th, setting this case for argument.

I would agree with Mr. Schifter, that the brief most recently filed by the State of Alaska has rather much resolved all the questions that may have existed in December.

I would, however, like to put the position of the Government on this jurisdictional point, because the Government is satisfied that in this case, the United States Supreme Court does have jurisdiction.

The brief for Alaska, adopting the position that the United States took last July, when it was asked to comment upon this case, concedes that under the Statehood Act and under the existing laws of Alaska, the court below was created as a state court.

Moreover, that the court below was the highest court of the State of Alaska, the time of judgment below was entered, at the time the, restraining order was requested and granted by this Court.

At the time the appeals to this Court were perfected and more importantly, throughout the 90-day period in which the parties to this action had to come to this Court if they were invoked the jurisdiction of this Court.

There can be no question that there was drawn into question below, the validity of state statutes in the ground that they were repugnant to statutes and laws of the United States.

And that the court below resolved those questions in favor of the state statutes.

Every element necessary to this Court's jurisdiction under Section 1257 Title 28 has been made.

Justice Potter Stewart: Under the state law of Alaska, how long a period does the appellant have in which to appeal from the -- from this State trial court to -- to the Supreme Court of Alaska?

Mr. John D. Calhoun: My recollection is, Your Honor, that there are 60 days.

Now, though the rule, the pertinent rule here is Rule 54 (b) of the rules of the Supreme Court of the State of Alaska.

Under that rule, Rule 54 (b), the Supreme Court of Alaska permitted anybody who -- any -- any case which a judgment had been entered prior to the effective date to file on the effective date as if that was the date of the entry of judgment.

And the Supreme Court of Alaska has, in fact, heard some appeals from cases decided by the interim court.

But the point was these people could not have been in the Supreme Court at anytime, at anytime under those rules.

And I think that's conclusive on the point of jurisdiction.

Justice John M. Harlan: You mean, if they haven't come here, they would've had no right of review in the Supreme Court of Alaska?

Mr. John D. Calhoun: Yes.

They would've had a right of review under what they knew as of October 5th.

Justice John M. Harlan: Yes, that's what I meant.

Mr. John D. Calhoun: But -- but they didn't know that that would be the case for a certainty on September 30th, when the (Voice Overlap) --

Justice John M. Harlan: In other words --

Mr. John D. Calhoun: -- they expired.

Justice John M. Harlan: -- their rights came in -- their appellate rights came in (Voice Overlap) --

Mr. John D. Calhoun: To be --

Justice John M. Harlan: -- they were already here in this Court, that's your point.

Mr. John D. Calhoun: Yes, Your Honor.

Justice William J. Brennan: This -- this was a matter of the Supreme Court rule rather than a statute, this delayed appeal this -- this permission to extend the time in which to appeal?

Mr. John D. Calhoun: Yes.

Under Rule 54 (b), that rule is set forth in full at page 22 of the red appendix filed for appellants, Kake and Angoon.

Now, I should like to turn to the -- as I have indicated, the Government agrees with the basic position of the appellants in this case.

It does however reach that result by somewhat different route and they have tried -- disagrees with certain assumptions and assertions they have made.

That I will have occasion later in the course of this argument to comment on those differences that we have with the appellants, indeed, to comment on in a difference that the United States and the Department of Justice has so far as the Secretary of the Interior.

But for the moment, I would like --

Justice Felix Frankfurter: (Voice Overlap) of him?

Is it insofar, you mean as with him?

Mr. John D. Calhoun: Yes.

Our position is not --

Justice Felix Frankfurter: That is (Voice Overlap) --

Mr. John D. Calhoun: -- precisely that of the Department of Interior.

And I would like to make that clear to the Court.

For the moment, however, I would like to --

Justice Felix Frankfurter: State with your position --

Mr. John D. Calhoun: -- state my position first.

It's the position of the United States that Section 4 of the Statehood Act held in status quo, federal right in and control over all Indian fishing rights in the State of Alaska.

Position -- this position is borne out both by the language of the statute and by its legislative history.

Now, the precise terms of Section 4 from which the Government relies and they are set forth in our brief at page 13 are these, they're very short.

“Lands or other property including fishing rights, the right or title to which maybe held by said natives or is held by the United States in trust for said natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority.”

There's the statutory language upon which we relied to give us absolute jurisdiction and control over Indian fishing rights in Alaska.

Now, it is the position of the United States that the phrase, “fishing rights,” of which Section 4 speaks, are not true property rights, legal rights, proprietary interest, the taking of which would create a duty of compensation under the Fifth Amendment.

Rather, we use rights and rights were used in that statute for our intention, in a broader sense, in the sense of fishing privileges.

Now, in this very area, its not -- it's not uncommon to speak of nonproprietary interests as rights.

I might point out that this Court in the Tee-Hit-Ton case, a case decided just before -- shortly before the language in here was affirmed up as -- as to be permanently in the Statehood Act.

This Court had the occasion to say in Tee-Hit-Ton, speaking of Indian title which is a -- a privilege based on aboriginal use and possession.

This is not a property right, but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties of which right of occupancy maybe terminated in such lands fully disposed of by the sovereign itself without any legally enforceable obligations to compensate the Indian.

Tee-Hit-Ton is a case, when you read the legislative history of a Statehood Act that was right in the forefront of the minds of the legislators.

They knew when they spoke of rights in Alaska, in Indians, that they weren't talking about compensable rights.

Now, as I have said, our construction phrase, “fishing rights,” accords with congressional intent.

Let me comment for a moment on some of that legislative history.

The phrase including fishing rights was put in to Alaska Statehood Act in the Senate, in the 81st Congress and the report of the committee that framed this -- of this section, reads as follows.

I'm speaking of the bill that it provides, “For transfer to the State of highly important Alaskan fisheries and wildlife, except those which are subject to international agreement or are included within the reserved native rights.”

In the 84th Congress, the Congress before the Alaska Statehood Act was enacted, the House report on the bill, the same language had survived through the 81st and on into the 84th Congress, had this to say, “It is provided that no attempt will be made to deal with the legal merits of the indigenous rights, but to leave the matter in status quo for either further legislative action or judicial determination.”

Those very words were picked up in the House report in the 85th Congress, the Congress that enacted the Alaska Statehood Bill.

The substance of those words were picked up in the report of the Senate Committee in the 85th Congress that voted out the Alaska Statehood.

Justice Felix Frankfurter: Would you mind reading those words, Mr. Calhoun?

Mr. John D. Calhoun: It is provided from the -- it is provided that no attempt would be made to deal with the legal merits of the indigenous right native -- native rights --

Justice Felix Frankfurter: Yes, yes.

Mr. John D. Calhoun: -- but to leave the matter in status quo for either further legislative action or judicial determination.

Justice Felix Frankfurter: That means we have to decide this case.

Mr. John D. Calhoun: Yes.

And until Congress speaks the Statehood Act keeps in status quo of Indian fishing privileges too.

Chief Justice Earl Warren: Well, do we reach that -- do we reach that question in this case, Mr. Calhoun or -- or should we not obey that same admonition to leave it to a proper case?

Mr. John D. Calhoun: It's certainly the position of the Government that you need not reach it in this case --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. John D. Calhoun: -- to the extent that -- that Alaska urges that property rights, as set forth in the Statehood Act mean that they have to be vested proprietary interests.

That question is thrust upon you, but I cannot -- we think that's a very tortured construction of -- of the Statehood Act, because the Congress with the Tee-Hit-Ton case before it knew there were no such Indian rights in Alaska.

It would've been speaking an absurdity, if it -- if it has intended that those --

Justice Felix Frankfurter: I -- I don't understand why you said we don't have to face this question.

We have to face the question whether including fishing rights, that fishing rights and for instance, gains its meaning or is colored by the proceeding word, any lands or other property.

And those are terms that -- that may well be argued.

I doubt this is argued, mean contensible interests.

Mr. John D. Calhoun: I had other (Voice Overlap) --

Justice Felix Frankfurter: Don't we have to face that?

I just want to know whether we don't have face that question, and if so, why not?

Mr. John D. Calhoun: No.

Well, you will notice that in the Statehood Act, it speaks of land or property made the right entitled maybe in the Indians or is in the United States.

Now, I -- if it is necessary, if the Court in -- in treating this property, will find it necessary to find it proprietary interest on which the Indians fishing privilege may fight, I suggest that the United States retained in itself sufficient proprietary interests to give the Indian fishing privilege meaning.

Justice Felix Frankfurter: I'm not suggesting we must find that.

We may agree with your conclusion that is what it means.

But I don't quite understand why I don't have to face determination of what it does mean.

Chief Justice Earl Warren: Was it litigated below as between you and the Indians --

Mr. John D. Calhoun: No, most certainly not.

Chief Justice Earl Warren: -- as to whether they had any property rights?

Mr. John D. Calhoun: No.

Not, as against the United States --

Chief Justice Earl Warren: Yes, that's what I mean.

Mr. John D. Calhoun: -- certainly not.

Yes, I -- I thought it was a -- the Fifth Amendment --

Chief Justice Earl Warren: Yes.

Mr. John D. Calhoun: -- question that you had --

Justice Felix Frankfurter: Well, if that's it -- the question that the -- that the United States has any -- any property interest.

Mr. John D. Calhoun: Yes.

Well, I -- even -- even that point I -- I suggest need not be reached on this case.

But if, if in conceptualizing how the Indian fishing privilege for which we urge or which we urge can be maybe meaningful, it's necessary to find a proprietary interest, then I suggest that it's an interest in the United States for the benefit of the Indians.

Justice Felix Frankfurter: You're standing here to say and say that the right of Alaska as a State concern with state power is limited by the reservation of Section 4, is that right?

Mr. John D. Calhoun: Indeed, yes.

Justice Felix Frankfurter: Is that right?

Mr. John D. Calhoun: That is correct.

Justice Felix Frankfurter: Therefore, don't I have to construe what it is that will reserve?

Mr. John D. Calhoun: You do.

Justice Felix Frankfurter: Because that right -- I don't see how I'm relieved of the responsibility of -- in which you want to relieve me.

Chief Justice Earl Warren: But the reservation is there whether it belongs to the Government or it belongs to the Indians, isn't it?

Mr. John D. Calhoun: My answer, Mr. Justice Frankfurter --

Justice Felix Frankfurter: But you can -- what the reservation is about, what it is that it's reserved.

Mr. John D. Calhoun: My -- my answer, Mr. Justice Frankfurter, was only addressed to the proposition that anything that you decide here will not be binding on the United States with respect to the compensability of these interests.

Justice Felix Frankfurter: Oh, I've -- I'd --

Chief Justice Earl Warren: But either one is binding on the Indians either, do you?

Mr. John D. Calhoun: That is correct.

Chief Justice Earl Warren: Yes.

Well, that's all I was trying to get at.

Justice Felix Frankfurter: We've got not problem of eminent domain here.

He's got a problem of state power, clearly has been limited by the limit -- by the regular basis in the act of admission.

But to answer that, one has to decide what (Inaudible) to deserve.

Or secondly, what could be what he deserves.

Mr. John D. Calhoun: I won't agree with them.

Justice Felix Frankfurter: All right.

Mr. John D. Calhoun: I would like to turn for a moment, if I may, to the proposition set forth in the -- in the brief of Alaska.

As we read that brief, Alaska disagrees with us in two principal particulars.

The first urges that the United States has misconstrued Section 4 of the Statehood Act.

Secondly, that Section 4 is unconstitutional.

Mr. Schifter, alluding to the two theories of unconstitutionality, first that the commerce power Article -- Article I, Section A Clause 3, does not reach the type of -- of regulation that Congress is attempting here and secondly, that if it did, the equal footing doctrine would bar that -- the equal footing doctrine also bars the exercise of the power to --

Justice Felix Frankfurter: Isn't there another argument namely that granting power of the Federal Government, granting the reservation as what you say it is, does that deny or withdraw the reserve power to the State, loosely called the police power, I mean this -- the principal underscore of the police powers.

Mr. John D. Calhoun: There -- there, Your Honor, I can only rely on -- on the fact that the statute speaks in terms of absolute jurisdiction and control and I cannot think of words more absolute than that.

And secondly, that throughout the -- throughout the legislative history of this enactment, you cannot read it without feeling that it mattered in everything it was done, is a -- is the thought that the United States would keep full supervision over the fishing of natives in Alaskan waters.

Justice Felix Frankfurter: And to -- to put a concrete case, I take that you would say that Alaska couldn't possibly, couldn't legally or would not have power to pass a statute saying that no children below the age of eight -- put it -- put it offensively, no children below the old age of eight should be engaged in any commercial occupation relating to the fishing.

You say not?

That's what I mean by a police (Inaudible)

Mr. John D. Calhoun: It just --

Justice Felix Frankfurter: -- negative kind.

Mr. John D. Calhoun: -- by difficulty, does not come with understanding the police characterization.

It's whether -- whether that would be one of the fishing privileges that -- or for fishing rights that was, in fact, reserved.

Justice Felix Frankfurter: Yes, but that's what they say here that you shouldn't -- a fishing right, what is destructive of a defect, wouldn't or a -- pervasive state interest, if not one of those rights of reserve.

And that language in terms, absolute, isn't -- haven't got that absolute (Inaudible)

What about my child labor case, you have (Inaudible) --

Mr. John D. Calhoun: No, I would not.

And here --

Justice Felix Frankfurter: And you say they couldn't.

You say the State of Alaska could?

Mr. John D. Calhoun: I would say the State of Alaska.

Justice Felix Frankfurter: Couldn't?

Mr. John D. Calhoun: Could not.

Justice Felix Frankfurter: I understand that.

And then by pride, they must say, I think they're many offenses to this Court which said that state police power could not possibly reform from the State, something that really goes to the -- to the deepest life interest of the State.

In other words --

Mr. John D. Calhoun: (Voice Overlap) --

Justice Felix Frankfurter: -- you'd say that would be all left to the direction and control and protection of the Secretary of the Interior.

Mr. John D. Calhoun: This Court has -- has many times, I'm quite satisfied as it has said that concern must be shown for the police power.

Has said the Congress is -- the -- the right of the Congress to operate in the field of Indian affairs is plenary.

Justice Felix Frankfurter: I know -- I know those words, but is that what they mean?

I know a word plenary.

Does it really mean that a State is dislodged from passing something that's fundamental to the life of people within itself?

Mr. John D. Calhoun: If -- if I cannot -- if I cannot rely on the words as such, then I can say that so far as this case is -- is concerned so far as --

Justice Felix Frankfurter: Just as might be.

Mr. John D. Calhoun: -- this case is concerned, it's perfectly clear that this was what they had in mind and we can await the (Voice Overlap) –

Justice Felix Frankfurter: All right.

That's it.

That's all you have to do in this case.

Mr. John D. Calhoun: Turn to the argument based on the fact that the Commerce power doesn't reach communities such as Kake and Angoon and Metlakatla, because the -- the commerce clause speaks of tribal Indians.

Alaska says that all the -- all appellants have pleaded is that they are Federal Indian corporations and then they conclude that this is not sufficient to invoke the operation of the commerce clause.

Now, appellants were incorporated under Section 17 of the Indian Reorganization Act of 1934 as amended.

Under that section as amended, Secretary of the Interior -- Interior has authorized a charter as the tribes stay in the group, Indians in Alaska having a common bond of occupation or association or residence within a well defined neighborhood community or rural district.

The Secretary of the Interior has so acted with respect to each of the appellants.

I do not understand that Alaska challenges the way the Secretary exercised that authority.

In other words, proofs are properly chartered within the meaning of the statute.

This Court has many times held that when Congress identifies a group of Indians as being worthy of this consideration of the commerce power, it's a political question whether that entity exists and can -- can be treated by the congressional power.

And I -- I put it that under the facts of this case, Congress has decided these are regulable Indian groups.

Justice William O. Douglas: But as I -- as I read the Section 4 that refers to rights acquired and the rights of pardon.

Here, it must come to the court that acquired under the White Act, isn't that right?

Mr. John D. Calhoun: The rights -- the right to fish, Mr. Justice Douglas, the privilege of fishing, I think, were traps, I mean.

Justice William O. Douglas: Nobody, so far, has in my satisfaction, yet answered the argument of the District Judge that the White Act forbids this.

The rights that -- that are to establish traps come -- that the Secretary of the Interior grants, derived from some power on his part and presumably, the White Act.

Mr. John D. Calhoun: His right to regulate how Indians fish, derives from the White Act.

He doesn't -- Indians have a vast range of means by which they can fish.

He may regulate any of those means.

Now, their -- their privilege of fishing, their right to fish, comes as much from their charters.

Their charter under -- under the Indian Reorganization Act is fishing communities and we -- the Government has -- has purchased and holds in trust for them, canneries.

Implicit in their -- in their grouping is the need to -- is the need to fish, and necessity to fish.

That's were the privilege comes from.

Now, the right to regulate how they shall do it, that Congress has put in the Secretary of the Interior under the White Act.

Justice William O. Douglas: I didn't agree with our Court's construction as the White Act in the Hynes case, but the majority held that it couldn't be given to a one tribe or a select group.

That it had to apply generally, geographically, the area --

Mr. John D. Calhoun: As I --

Justice William O. Douglas: -- and this 1959 doesn't do that, the 1959 regulation, does it?

Mr. John D. Calhoun: It -- it applies generally to all Indians and those are the only persons left under the regulation of the White Act.

Justice William O. Douglas: Well, that's -- that's -- maybe that's the question.

Mr. John D. Calhoun: Well, that -- that is our construction and that's the Government's position with respect to the -- to the White Act.

The -- the intendment of Section 4 was to remove federal jurisdiction with respect to non-native fishing.

So that left the -- the grip of the White Act only on -- on native fishing and as to that, there is -- there is no discrimination and so far as Hynes against Grimes is this concerned, all it held was that you could not apply the criminal -- you cannot invoke the criminal provisions of the White Act in aid of exclusive fishing privileges that Congress had granted under other statutes.

Justice William O. Douglas: But there's a part of the discussion in the Justice Reed's opinion that -- that this must be, perhaps there could be allowed, whites and Indians, everyone else in that area must be allowed to have traps.

As it's the regulation of the area.

My difficulty, I don't want to delay you, but my difficulty is seeing how that White Act becomes transformed to a regulatory scheme just for Indians, by reason of Section 4 of this amending act.

Mr. John D. Calhoun: It's -- it's certainly contemplated, we say, by -- by Section 4 of the -- of the White Act that there be federal control over Indian fishing.

The Secretary of the Interior has looked to the White Act or his authority.

To be sure, the -- the power under which Congress would be operating in the area of the White Act would be power probably under the commerce clause and no longer under Article IV, the territorial power which it was -- which it invoke in 1924 and enacted the White Act, that constitutional basis doubles transmuted by the Statehood Act.

And that maybe enough to distinguish Hynes against Grimes there, because the -- the constitutional underpinning is different -- is different now.

Justice William O. Douglas: But the proviso there does read that every such regulation made by the Secretary of Commerce shall be a general application within the particular area that which it applies, can't be anymore, under you argument, a general application in the particular area because it applies in a particular area, only the Indian.

Mr. John D. Calhoun: Well, it is general as to all those to whom it applies.

It's -- that -- that is the position of the Government.

It can't be anymore general than -- than over the group against whom it's directed.

Alaska -- Alaska has asked for and received in the Congress by the grant of Statehood, right to control non-native fishing and it can't be discrimination of the United States reserves to itself, regulation over native fishing.

Justice William O. Douglas: I could understand that, that's where the White Act is written, but I have difficulty in so reading the White Act.

Mr. John D. Calhoun: That is the position of the Government.

The second constitutional argument of Alaska, involves the equal footing argument.

We say here that the Coyle case makes perfectly plain that if Congress is exercising -- is exercising powers that it clearly has under the Constitution, the equal footing doctrine doesn't come in to operation and certainly the power of the Congress to regulate Indian affairs is -- has long recognized as we've had -- had cases and that's all that this is a reservation of.

The case of Ward against Race Horse, upon which Alaska relies, is easily distinguishable because in the Statehood Act under which Wyoming was admitted to the union, there was no exception in favor of the Federal Government or in favor of Indians and it was presumed by the Court that all powers were transferred to Wyoming and it could -- it could apply it's game laws to Indians who hunted off Indian reservations or Government property, that had been expressly reserved for their use.

I see my time is expiring, I would like only to comment for a moment, if I may, on the difference that we have with the Secretary of the Interior.

As we understand the position of the Secretary, it is that his regulatory authority under the White Act is -- is locked in, petrified as -- as it was at the moment of the admission of Alaska to Statehood.

We don't -- so that if there had nine traps prior to admission, they -- they may have only nine hours.

It's -- it's a little uncertain whether he's going up to 21, stay at nine though.

We say that he has Congress' commanded him to exercise as much discretion as he exercised before.

Nine traps are enough, then he shall issue nine authorizations, but if there -- if more or -- or fewer are needed, then he must -- he must use his discretion there.

Justice William J. Brennan: Well, may he -- may he exercise discretion not to authorize the use of any fish traps?

Mr. John D. Calhoun: If he follows the criteria that Congress set for him in the White Act, and that's the regulatory act, and in the pursuit of his expert judgment in any fishing season, there should be no traps --

Justice William J. Brennan: Why is that?

Mr. John D. Calhoun: There should be no traps, but he applies the -- the standards of conservation in enforcing the law.

Chief Justice Earl Warren: Mr. Calhoun, should -- or need we reach that -- that question in this case?

Mr. John D. Calhoun: Indeed not, Your Honor.

Chief Justice Earl Warren: Thank you.

Mr. Rader.

Argument of John L. Rader

Mr. John L. Rader: Mr. Chief Justice, may it please the Court.

Alaska was one of the few territories which were discriminated against in the control of its fishing game as a territory.

The Organic Act of 1912 prohibited the territorial legislature from enacting any legislation whatsoever concerning the fisheries.

Consequently, Alaska never challenged anything that the Federal Government did as a territory because it was expressly withheld from us into the plenary power of the United States to provide for the Government of its territories and possessions.

In Alaska, the salmon industry, the commercial salmon industry and we're not talking about subsistence here and there's a great difference.

The commercial salmon industry, according to our Appendix 2, in Southeastern Alaska, and that is the pan handle, what we call the pan handle, the little strip of land which comes down along the coast of Canada, landlocked Canada actually in that area.

85.9% of the natural resource products of the region are the commercial fishery, 89 -- 85.9.

The commercial fishery, under the Federal Government, it's probably one of the wealthiest, most fantastic fisheries in the world fell from a peak productivity in 1918 of seven million cases to less than two million cases.

The fishery is practically destroyed.

There is enough seed left to rebuild it and the people that live in Alaska, regardless of how it happened in their federal management that this fishery was practically destroyed.

The facts are -- the statistics are that that is what has happened.

Justice William O. Douglas: Well, the Indians weren't the ones that destroyed that.

Mr. John L. Rader: Absolutely not, Your Honor.

Absolutely not.

It was open to the exploitation of all, every citizen of the United States.

The Indians are peculiarly relied upon the fishery.

There's no question about that either, aboriginals, they are reliant.

And today, they are relied heavily upon the fishery.

They are fishermen.

In fact, 42% of the relative Alaskan fishermen are Indian, 42%.

That's 42% of an industry which produces 85% of the total gross natural resource product of the region.

Chief Justice Earl Warren: That -- that includes the Indian workman of the big -- of the big company (Voice Overlap) --

Mr. John L. Rader: That includes -- we -- we've took the figures from the census --

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: -- and it merely broke them out as being resident Alaskans employed in the industry.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: They -- they work at times as employees in canneries.

They -- they -- some owned their own boats.

There are mixed white crews and Indian crews, but the census of it to break down on a basis of race as to the occupation in the fishery.

That was a 1950 census.

The people of Alaska and this movement was -- is not special interest of Alaska.

This movement was lead by the Indians as having a very great reliance on this resource, a movement to abolish fish traps.

The mayor of Metlakatla, in this case, states in an affidavit that we wanted fish traps abolished to conserve the salmon supply.

Now, we don't have to argue too much about conservation here.

Because appellant, Metlakatla, concedes that this is a conservation issue.

We need not to argue it too much, but we can make the same observation that the Solicitor General did in the case of the United States versus Winans, concerning the fish wheels on the Columbia River and that is this, that they take tons of fish that not only is the device depleting the industry, the resource, but threatens to destroy it.

No one knew this better than the native residence, our native citizens, if you please, of Alaska.

And they lead the movement before anyone else, the Alaska Native Brotherhood, for the abolition of this device.

In 1948, there was a referendum.

We cite (Inaudible) in our book.

It's been recognized as an authority on this, there's no question as to the historical accuracy of what (Inaudible) relates Angoon, for instance, if -- if my memory serves me right, voted 120 for abolition of fish traps for seven, to retain fish craps.

This is the secret balloting.

A 120 to abolish fish traps, that was 1948, that was the same year that these people bought fish traps.

Actually, it was a benevolent desire of the Department of Interior to assist these people economically.

Chief Justice Earl Warren: But does that -- did that refer just to their right to do it, or was that -- whether that have to do with fish traps all over the -- all over the country?

Mr. John L. Rader: Mr. Chief Justice, we've always assumed up there that we were equals regardless of race.

These people were not on a reservation, they were as much a part of us as anyone else.

It was a general application, the absolute abolition of fish traps.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: This Court observed in any case (Inaudible) the efficiency of the seine.

Refers to the -- a -- a certain type of seine.

And that made it objectionable from a conservation nature.

In Patsone versus Pennsylvania, this Court determined that it wouldn't argue with the State as to as conservation methods, unless in it was so clearly something else as to perhaps offend the good sense of anyone.

I don't think that that case is presented at all today.

Chief Justice Earl Warren: Is -- is there any consensus on whether traps are -- are more destructive to fish life than seines?

Mr. John L. Rader: There's an argument --

Chief Justice Earl Warren: I don't know.

Mr. John L. Rader: -- certainly, the Federal Government, in its control of the fishery, has consistently maintained that a dead fish -- or dead fish, now, it doesn't make any difference when you catch it with a trap or with a net.

The fact the traps are more efficient, may -- it may cost $40,000 to $50,000 to install one, but they're -- they're more efficient because they fish 24 hours a day.

A man with nets is limited by his physical -- by physical exhaustion.

He's limited by the weather.

He's limited by his -- his necessity to reach his supply base.

It's the marine way of life in small boats and they're limited, compared to a trap and a trap a highly efficient device.

It's an under water throughout, that extends out into the -- on what we consider to be our inland waters and our tidelands and incidentally, our fish and game, a migratory resource that is not like corn and -- and raised on the 60 acres on which these people claim Metlakatla.

It's a bird just as sure as in Missouri versus Holland, that flies though their reservation and out.

And it must be conserved, both before it enters it and after, at least.

But the fish trap issue, for the same reason that an automatic shotgun with 20 shells, is not permitted for game hunting.

It is efficient.

It's tremendously efficient.

It is so efficient that we believe that has destroyed the fishery.

And Alaska Native Brotherhood had observed that for years and years and years.

I think that it's important to understand not only our 42% of our fishermen natives, but to understand that perhaps 12% to 15% to 18% of our population are of native blood.

This would be clearly native blood.

I don't even call it a 64th or what.

We all speak English up there and we have no difficulties in that matter.

At least it would be very unusual.

I've never run up against myself.

But we have 42% of our fishermen.

We have 12% to 15% of our population that are of Indian blood or would be clearly Indian.

We have 15% of our State legislature who are Indians.

We have, the President of the State Senate, who's an Eskimo and just as much, if this Court rules that Kake and Angoon are exempted from the laws of this State, then there is no reason why we will not lose the President of our Senate, who is a full-blooded Eskimo and further removed from civilization than these people.

We have -- these people not only serve in our legislature, but they serve with distinction.

These -- we -- we have the -- the representative of Frank Peratrovich.

Now, these are common facts in Alaska.

It's known.

This is the climate out of which this litigation arises.

Senator Frank Peratrovich, a full-blooded Indian from Klawock.

Klawock is organized as one of these corporations just exactly as appellants are here.

Senator Peratrovich was elected from the whole of the Southeastern district.

That district is 78% white and Senator Peratrovich is recognized and was elected.

He had to be elected by the whites in the area, because he was a man regardless of his race.

Justice William O. Douglas: Well, whatever we decide here, won't affect that or --

Mr. John L. Rader: Well, I think it will.

I think you'll have tremendous effect on it, because we cannot send -- it -- I have no right to predict and I can't predict, but it would not make sense for the people of Alaska to elect to their State legislature and make half of their fishing -- thee board -- Fish and Game Board, Indians, if the -- if the laws to be passed for the State toward apply the Indians.

Chief Justice Earl Warren: Mr. Rader, what -- could you tell us what -- about what percentage of your -- your annual pack of -- of salmon, the activities of these Indians would represent, is it large or is a small?

Mr. John L. Rader: It would be rather small on an overall – overall (Voice Overlap) --

Chief Justice Earl Warren: Board - well what would you say.

Mr. John L. Rader: The board traps, I wouldn't take issue at all with the -- with the statement at Metlakatla that would represent probably less than 1%, that is for traps.

Probably, now, this is of the total of Alaska.

This is not Southeastern Alaska, but at the total of Alaska pack, probably the 21 sites might amount to 10% of the Southeastern pack and 5% of the total Alaskan pack.

But this is the problem, there is no way to limit this case to these fish traps, because as someone observed earlier, where the regulation's general?

Yes.

There were 200 fish trap sites in Alaska or thereabouts open to every person, every citizen of the United States.

Justice Felix Frankfurter: And would all those sites be covered by the reservation of Section 4 as construed by the Government?

Mr. John L. Rader: Absolutely.

There's no reason for them, because these appellants –-

Justice Felix Frankfurter: Well, I mean are all these -- are all these -- would they all come in under the three categories of natives who's fishing rights are protected?

Mr. John L. Rader: I don't know what those categories are.

Justice Felix Frankfurter: Well, they -- they're Eskimos, Indians, and Aleuts.

Mr. John L. Rader: Oh.

Well, I'm sorry I missed the thread of Your Honor's question.

Justice Felix Frankfurter: Well, you said there were 260.

Mr. John L. Rader: Yes.

Justice Felix Frankfurter: What I want know is whether -- what I want to know is this, how many such communities are there in the whole of Alaska as to which fishing rights are reserved as they're claimed to be reserved by the Government in regard including these two in (Voice Overlap) --

Mr. John L. Rader: But there are 59 Indian corporations that are similar to this.

Justice Felix Frankfurter: Then, if you tested the question, would be extended as to what the ratio of the output of a possible 59, the total would be –-

Mr. John L. Rader: Well -- well, that's true, because –-

Justice Felix Frankfurter: That would be considerable, that wouldn't it?

Mr. John L. Rader: Oh, yes.

It's the fishery.

Justice William O. Douglas: The only regulation involved here is a (Inaudible) the 1959 one isn't it?

Mr. John L. Rader: That's right, Your Honor.

Justice William O. Douglas: It's on page -- page 76 of your brief.

Mr. John L. Rader: Yes.

But the point is this –-

Justice Felix Frankfurter: Is that -- does that apply to these two communities?

Mr. John L. Rader: Yes.

That is incidentally, that is a general regulation.

Justice William O. Douglas: Well the Secretary --

Mr. John L. Rader: (Voice Overlap) --

Justice William O. Douglas: -- that the Secretary hasn't suggested has he that he would authorize the use of fish traps of any locations except these three?

Mr. John L. Rader: Well, he'd -- yes.

He suggested it is going to expand up to 21 fish trap sites.

We have 11.

Justice William O. Douglas: (Voice Overlap) 21 or are they identified with these three communities?

Mr. John L. Rader: Yes, they are.

Justice William O. Douglas: But beyond those 21?

Mr. John L. Rader: He has not indicated it.

Justice William O. Douglas: Well, do you think he -- would he have encourage to?

Mr. John L. Rader: If he has the authority to operate to -- now, Metlakatla's different because there's a reservation there.

And we can argue about the reservation, but if he has the right on taking Angoon, who incidentally are incorporated cities under Alaskan law and indecently to whom the Alaskan law has always applied, marital, criminal, property and everything else as far as we know, if he can do it for these three communities on the basis that they are of Indian blood, then he can do it with all the rest of the Indian Communities too.

Because these three communities on these fish trap sites, Your Honor, had no more right to this fish trap sites that they are fishing now, then did I or you and in the year 1958, the last year that they fished under the general regulations.

I could have owned the Point (Inaudible) as fish trap site.

All I had to do was go out and take it.

I didn't have $50,000.

I didn't have the (Inaudible) I didn't have the -- the tempers to make the fish trap, but I have that right.

Therefore, these people did not have a right to take over from year to year.

It was a race every spring, if you want to --

Justice William J. Brennan: (Voice Overlap) correctly then that if -- your view is that if this maybe authorized for Kake and Angoon, it may also be authorized for the trap sites related to or connected with at least 57 other Indian --

Mr. John L. Rader: Those communities have never used traps, but those communities had the right to use traps under the old law.

Justice William O. Douglas: Up to 1959.

Mr. John L. Rader: Up -- up until we became a State.

They had the right as did every citizen, to use traps.

They never exercised that right.

Incidentally, taking Angoon, they would exert -- exercise any rights at all in regard to fish traps from 1948 to 1950 respectively.

This isn't a novel longstandard thing.

Justice Felix Frankfurter: As I understood the Government as I understood him to say, Angoon in behalf of the United States, he asserted the right to make similar regulations as to other sites unless you've been seen by the Secretary of Interior that traps would be deleterious to -- to or that the traps should be allowed.

Isn't that right?

Mr. John L. Rader: Right, Your Honor.

Justice Felix Frankfurter: So that this is a general problem of potential power anyhow.

Mr. John L. Rader: Certainly, it is.

You can't stop it.

You -- you can do this.

You can limit it as to Metlakatla, because there is a reservation there.

I don't know if it's an Indian reservation or not.

There, indecently, the information that the state laws have just recently applied to Metlakatla is a great variance with the opinions of the District Judges, the federal district judges in Alaska, in the case of United States-Booth, the District Judges says, “We have always assumed that Metlakatla State laws applied -- excuse me, territorial laws then applied to Metlakatla, this reservation."

Justice Felix Frankfurter: But Mr. Calhoun, although said, that it doesn't have to be a regulation in the technical standard.

That the Government -- the federal or the Indian in control of the Federal Government and reserve right to -- by the Federal Government according to his argument, applied to Indians.

They don't have to be organizing a reservation.

Mr. John L. Rader: Well, there must be a reasonable limit to that because -- because race -- race alone is not sufficient, I submit under Indian Commerce Clause.

Justice Felix Frankfurter: No.

But a man may have a status of Indian without living on a reservation.

Chief Justice Earl Warren: Well,recess now.

Mr. --

Print this transcript Transcript: 

Argument of John L. Rader

Chief Justice Earl Warren: Mr. Rader, you may continue.

Mr. John L. Rader: Mr. Chief Justice, if it please the Court.

Before going into the technical legal argument to place the case in its proper perspective, I'd like to discuss for just a moment the economic hardship that these appellants have pleaded and which their affidavits certainly show.

The record, however, if it's closely read will, I think, portray this situation of Alaska fishery.

The affidavits of (Inaudible) and those are the affidavits of the appellants, show that five canneries recent close -- recently closed in Southeastern Alaska representing 25% of the productive capacity of the area.

One affiant stated that properties that were valued in 1947 at $533,000 were now worth $75,000, cannery properties.

The appellant, Kake in here, for instance, shows that they paid, or the Federal Government paid for them $260,000 for their cannery equipment that is now worth $207,000 and that they are indebted in amount of $848,000, which means this, it comes through the record to you that they've lost money at the rate of about $100,000 a year.

Chief Justice Earl Warren: These people who are here in Court now?

Mr. John L. Rader: These people who are here in Court, Angoon.

Kake, paid $363,000.The properties are worth $377,000 and their total indebtedness is $781,000.

In other words, since 1950 to the time of those affidavits, they lost about $700,000.

Kake did.

Appellant, Metlakatla, I don't believe gives us the detail on their financial picture like Kake and Angoon due their -- their financial situation is not nearly as serious certainly as -- as Kake's and Angoon's.

But what we have as a result of the depleted industry is, we -- we have something that, to me is like the dust bowl.

It is the resource of the region and probably, if there was any material factor that -- that had as much to do with statehood, the -- the most material factor.

I mean, of the wealth or the way the people live of Alaska when their quest for statehood was to control this fishery upon which we -- we have -- we had to have it, and it had been exclusively under the federal control and it was a -- it was a disaster.

The Southeast -- the economy of Southeastern Alaska was in a disastrous situation and everyone including these appellants, when they voted for Ordinance 3 of the Constitution, when they voted in the referendum in 1948, voted overwhelmingly for the abolition of the fish trap to which we -- and our position is that we, the State, the son have watched our parent, the United States, in the control of this fishery, and maybe we can't do any better.

But our position is, we have a right to try and if that's what statehood gave us, was the right to try.

And that these appellants must try with us whether they want to or not at this time because at one time, they were certainly willing.

And the reason really that this -- this moved to abolish the fish traps are -- was led by appellant communities and others just exactly like them is because that was not their way of fishing.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: To begin with, Your Honor, Section 4 is a compact and it is gross error to rely upon the interpretation of Section 4 by merely congressional intent.

If this was a compact, and that's what it says it is, then our understanding of that compact in -- for the purposes of interpreting that contract -- compact today is just as important as was Congress' intent.

Our understanding of it was this.

There are fish wheels on the Yukon River.

There are reservations in Alaska.

There's a (Inaudible) Indian reservation.

There may be some fishing right.

We don't know.

Congress didn't know, and Congress did not want to do this.

In -- in the issue of statehood, they did not want to attempt to neither enlarge nor diminish whatever those rights might be.

We understood it, that it would be if someone could come in here and show a property right to the common fisheries that they would have it and we would no longer own it, but we construe Section 4 to be a disclaimer of property interest, not a disclaimer of state police power over our citizens when they start to fish.

We thought that it was -- a boat is a property right, a fishing area in our fishery is not a property right.

It can neither be bought nor sold.

That was open to all citizens and all citizens alike.

A fish trap is a device.

It's made out of -- of poles and wires and houses.

It has a house on it, for the watchman.

That is a property right, but there was no ever a property right to a fish trap site or location in the common fishery, and this Court held that in Hynes versus Grimes.

Now, there are fish wheels on the Yukon River.

There are international treaties which give the natives of Alaska the right to engage in -- in sealing, pelagic sealing.

They call it fishing sometimes.

Sometimes they call it hunting.

Those might be rights, but Congress did not want to concern itself with those rights or anything else, and so it said including fishing rights, and it should have said, “if any,” because that's what it means that we disclaim any right title and interest inany property, including fishing rights.

That, you can't disclaim right title and interest to an Indian when he's fishing.

Those are citizens.

That's essential to our sovereignty.

It's the biggest part of our -- of -- our biggest resource.

Although we could give away property, we cannot give away sovereignty and then we say this.

That if, as a condition of admission to the Union, we did cede sovereignty over our citizens on the basis of race, then that was an unfair exaction and it was an exaction as a condition to admitting as to statehood that violates the equal footing doctrine, because there's no other State in the Union that where such a principle is recognized.

And I don't believe you can find any other Statehood Act where it says, “Including fishing rights.”

Therefore, Congress said this, “We will leave that to future legislation or judicial determination.”

That's what the -- that's what the appellants are doing here today.

They came -- they're coming in here to attempt to establish a property right in this Court, as Congress contemplated that they should, but that should not be taken by this Court to mean that such a property right exist.

They have not -- excuse me.

Chief Justice Earl Warren: No.

No, no, excuse me.

Mr. John L. Rader: Well, I was going to say, there has been no pleading of aboriginal rights here.

Those are not pleaded.

They -- they plead only a right to fish under the regulations of the Secretary of Interior.

Chief Justice Earl Warren: Mr. Rader, do you happen to know if in any other States where there are Indian reservations, if the Government grabs any different hunting or fishing rights to Indians than -- than it does to the general populace?

Mr. John L. Rader: Well on a reservation, I think that they could perhaps.

In the case of Tulee versus Washington, there was a treaty and the treaty provided that not only were the Indians involved in that case have the right to fish exclusively the waters on their reservation, but that they would have the further -- and this is a treaty right -- to fish in all usual and accustomed places that they had previously fished and that took them beyond the reservation, it took them into the common fishery, and this Court held in that case that they could not be charged a license fee because the license fee was not merely for purposes of regulation, it was also for purposes of taxation.

Does that answer Your Honor's question?

Chief Justice Earl Warren: Well, in -- in a way, but I was thinking this.

That -- that whatever special rights they might give to -- to Indians on reservations would probably fall, would they not, if we decided with Alaska in this -- in this case?

Would we not be saying at the same time that -- that wherever the Federal Government attempted to invade the police power as you -- of the State as you see it, that -- that they have done that unconstitutionally and therefore, the regulations or the statutes must fall?

Mr. John L. Rader: I don't believe so for this reason.

This case does not present a factual situation which would -- which would permit you to reach that point except by dictum, because in Kake and Angoon, there is nothing even resembling a reservation.

On Metlakatla, there is a reservation and I -- I can't tell whether it's an Indian reservation or not.

But it was a reservation set aside for the immigrants who called themselves the Metlakatlan Indians who came to Metlakatla to be administered under the authority of the United States.

I -- I don't -- certainly, the Indian -- inland waters of the State, and that's where we get to our equal footing doctrine and I would come to that in a few minutes.

There is not -- there is no problem there.

So the upland reservation problem that would -- could be created by this case as applied to other reservations, it just isn't in this case, I don't believe.

Chief Justice Earl Warren: Now, if I may -- if I may cover you just once more before you get to your other constitutional argument.

Well, I'll -- I'll wait for you --

Mr. John L. Rader: Very well.

Chief Justice Earl Warren: -- to that other thing (Voice Overlap) --

Justice Hugo L. Black: May I ask you on that subject just to what extent the territory had governed this Indian group -- tribe, whatever you want to call it.

Mr. John L. Rader: Totally, except there are -- there's only two claims that these people make.

They have refused to pay the raw fish tax of the territory on their cannery and they refused to abide by a constitutional ordinance, abolishing fish traps.

Justice Hugo L. Black: Other --

Mr. John L. Rader: Other than that --

Justice Hugo L. Black: Otherwise, their laws, civil, and criminal applies to them.

Mr. John L. Rader: Yes, sir.

And it applied there before the 1953 and 1957 statute that was cited to you by a counsel for Metlakatla.

The District Judge in the case of United States versus Booth stated, “It has always been assumed that the territorial law applied to Metlakatla, and it has always been assumed that they have applied.”

And the reasoning of United States verus Sandoval, in cases of that nature, is absolutely inapplicable here, because those people there have their own system of government.

They were never brought under the -- the laws of the State.

There had been a reluctance of the State to govern those persons because they couldn't pay their own way, so to speak, in a government sense.

Their worst enemies, of the tribes, were the pioneers and the settlers who -- who settled in amidst them and -- and adjacent to them.

That's not true here.

All of that reasoning, of that -- of those cases, in fact, the whole intent of the Federal Indian Law, which of course is wonderful in its concept, becomes to be -- it -- it comes to be a -- to work against itself in a most destructive manner in this case because these people are not our enemies in Alaska.

These people, the -- the argument in the State Senate as to who was going to be president of the Senate was between an Eskimo and an Indian.

Justice Hugo L. Black: You're saying --

Mr. John L. Rader: We honor them and we respect them.

Justice Hugo L. Black: You're arguing in effect, are you not, maybe right, that the Government could not if it wished, require them to exercise once more the powers of autonomous government such as Worcester against Georgia.

You're arguing that that could not be constitutionally done.

Mr. John L. Rader: Once -- once the tribal organization has dissolved, once the elements of sovereignty have been lost and once the Indians who are Indians today only by race and once they have -- have become a part of our Government, have incorporated into our cities, have thrown out tribal organization for municipal law, the state municipal law, then the United States Government through the Department of Interior cannot go in and segregate those people out on the basis of race.

Justice Felix Frankfurter: What in your view was reserved by Section 4?

Mr. John L. Rader: The right to come to this Court as they're doing today and the right of Congress to withdraw the wardship relation that it has with other Indians in Alaska at will without having to be -- that without having to pay for it.

In other words --

Justice Felix Frankfurter: It didn't need them after Congress come to this Court, I mean, because that was a such a poor reserve?

Mr. John L. Rader: Well --

Justice Felix Frankfurter: They can litigate this question.

Mr. John L. Rader: To begin with, Congress --

Justice Felix Frankfurter: And especial -- that -- that they do talk about fishery rights.

So, that must have been addressed to some actuality in the new state.

Mr. John L. Rader: The legislative history does not show that, Your Honor.

Justice Felix Frankfurter: You mean that these were idle words in effect?

Mr. John L. Rader: No.

That they did not know if there were any such things as Indian fishing rights, and they did not want to either destroy it or create them in the act of admission.

They wanted to preserve the status quo and the status quo in the -- in the commercial fishery of Alaska is equality of citizens and it has been, for as long as anyone knows, there has never been a distinction made on a basis of race.

Chief Justice Earl Warren: May I ask you Mr. Rader, what -- what response the Secretary of the Interior makes to your argument that you made just a few moments ago about the devastation of your fish life?

Mr. John L. Rader: The Secretary of Interior --

Chief Justice Earl Warren: And -- and what these will do -- and what these fish traps will do to --

Mr. John L. Rader: The -- the Secretary of Interior would deny that fish traps were a conservation issue.

Chief Justice Earl Warren: Oh, I see.

Mr. John L. Rader: The Secretary of Interior has denied that they are --

Chief Justice Earl Warren: Oh, I see.

Mr. John L. Rader: -- a conservation issue.

We point to one fact and that is the fact that under his management, the fisheries have practically been destroyed and we contest the validity of his statement that fish traps are not a conservation issue.

And we think that now that we are a state, that we have the right to try it.

Maybe we will have neither the will to conserve nor the ability to conserve.

But we know that under federal management, it has not been conserved.

Chief Justice Earl Warren: Has that traditionally been the viewpoint of the -- the Department of Interior that the fish traps are -- are not a conservation measures?

Mr. John L. Rader: That's correct.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: That is correct.

Justice Hugo L. Black: They've always been -- always felt that way.

Mr. John L. Rader: They have always maintained that they could not abolish fish traps on the basis of conservation.

Chief Justice Earl Warren: I see.

Mr. John L. Rader: The people of Alaska have always maintained that that's what's destroying the industry and I think the facts -- we may not be right, but the facts prove conclusively that -- that their analysis of the conversation picture is not altogether correct either.

Justice Felix Frankfurter: Always has -- how far back?

Does it go back to that, the conservationists, if there's any case?

Mr. John L. Rader: It goes back, if it please the Court, from the time the United States purchased Alaska from Russia.

The United States --

Justice Felix Frankfurter: Those are (Voice Overlap) --

Mr. John L. Rader: The United States ignored the Alaska fisheries for 60 or 80 years and it was a -- a matter of people coming in harvesting the crop in any manner that they wanted to and people going out.

Justice Felix Frankfurter: No.

What I mean is, I gathered from your answer to the Chief Justice that the Department has addressed itself to the question of conservation and on the merits of -- of canvas of that issue, concluded that the utilization of these traps is not destructive over fishery, isn't that right?

And if that is so, I was wondering how far back the -- the Secretary of the Interior has made that ruling.

Mr. John L. Rader: Well, I don't know except that Alaskans, natives and whites alike would have maybe 25 or 30 years.

Every time we have a legislature up there, we memorialized Congress to abolish these devices and the Alaska Native Brotherhood every time they meet in a convention, pass a resolution addressed to or delegate to Congress to do something to abolish these fish traps and no one has ever done it, and --

Justice William O. Douglas: I've been --

Mr. John L. Rader: -- that goes back 30 or 40 years.

Justice William O. Douglas: I've been reading some things on fish traps including Governor -- Senator (Inaudible) fine book --

Mr. John L. Rader: Yes, sir.

Justice William O. Douglas: -- of State of Alaska.

And it seems to me that that issue sometimes gets down to the question as to how well they're managed or how well they're supervised and --

Mr. John L. Rader: That is correct.

This is the thing about --

Justice William O. Douglas: -- but this is theoretical conversation.

Mr. John L. Rader: Well, perhaps that's true.

But here, you have -- you have a device which is -- which has a capacity to perhaps catch $25,000 worth of fish in a day.

And all you have to do is to have a man on that -- on that fish trap when the airplanes are gone and when the boats are gone, and you can see in 50 miles in each direction, is to open it up and let it fish.

And you can't tell when you -- when you -- if you close it up, stop the fishing when you see a boat or an airplane coming, you can't tell how long the fish have been in the pot or in the heart.

They're there, they're alive and they have been caught when the season was open.

It is such a tremendous device that the abuse is -- is so easily accomplished.

Now, that's true of the nets also.

A fisherman that gets hungry, when he watches a fish trap operate, and he finds out that his hours have been closed, that his days have been closed, that he cannot fish and he wants his fish trap to operate, he's pretty tempted also to take his nets and go off and throw them across the stream and that is destructive, equally.

Justice Hugo L. Black: I've been -- I have -- haven't quite understood the -- the part of your statement.

I don't know how relevant this is.

I thought you and -- said this morning in answer to a question that you did not think that the fishing of the fish, in the way that you have said it, has occurred, but you do the usual fish traps by the Indian.

Mr. John L. Rader: Well, not by the Indians.

This is not their method of -- the -- this is a device and contrivance has been brought in with steam-powered tugs and things like that.

These Indians could not set up their own fish traps.

These fish traps are put in place for these Indians by the Whiz Fish Company in the case before you today, hired out of Seattle with their large equipment to come up and install this fish trap device.

These things are monstrous.

They're beyond the capacity of -- of the Union villagers to construct.

They're not a hand-constructed type of thing and they are not -- their historic way of fishing.

And that was really the reason, probably, that the Indians so thoroughly opposed with the rest of the people who lived in Alaska the use of the fish trap because it was a device which was so efficient that it was -- we believe, whether the Secretary of Interior does or doesn't, we believe that it's destroying the fisheries.

Chief Justice Earl Warren: Do these Indians practice their own fish or do they do it through some -- the canning company?

Mr. John L. Rader: They have a cannery.

Now, I can't be too certain about Metlakatla, but let me take Kake and Angoon.

Chief Justice Earl Warren: Yes, you may.

They bought a cannery 10 or 12 years ago, one of them 12 years ago, one of them 10 years ago.They do their own processing but the managers for that are -- are Whiz Fish Company again in this case.

Chief Justice Earl Warren: Are what?

Mr. John L. Rader: Are -- are a Seattle -- a Seattle concern that comes in and operates a cannery for them and takes a -- in some instances, it's a percent of the pack or something of that nature, but it's not a -- it's not a native enterprise.

Chief Justice Earl Warren: I see.

Mr. John L. Rader: It's -- it's a big business.

Chief Justice Earl Warren: Big business.

Justice William J. Brennan: (Voice Overlap) things I gather were built by the Federal Government where they -- for these communities?

Mr. John L. Rader: The buildings and the -- and the complete operation were purchased from ordinary, a normal businessman made in Alaska.

Justice William J. Brennan: Oh, yes.

But was the financing by the Federal Government?

Mr. John L. Rader: Yes.

Yes, sir.

Justice William J. Brennan: And those are the -- they incurred indebtedness which is substantial, is it, that --

Mr. John L. Rader: That's right.

The -- I think the transaction is indicated in the complaint and in the affidavits, is that the United States bought from a pack from two packing companies.

Their complete packing operation, canneries, boats, equipment, fish traps and fish trap sites it says, the title was taken in the name of the United States in trust for these corporations which have been organized by the Department of Interior.

Justice William J. Brennan: Now, and Metlakatla was something built by the Government or was that also a purchase?

Mr. John L. Rader: Well, Metlakatla has been operating since 1915 and I don't know whether that was out of their own funds or whether it was loaned, but I do believe it's been paid off.

The Metlakatla fishery has been successful, partly because they got into the business before it was dust bowl.

They -- they've been into it back when it was good, 1915.

Justice William J. Brennan: Were they using fish traps that far back?

Mr. John L. Rader: Yes.

They -- they used fish traps in 1915.

In fact, aboriginally, the Metlakatlans in Canada used a -- something like a fish trap, I guess.

It was a small device, but I've been told that the word “Metlakatla” means “fish trap people” for Metlakatla in Canada.

However, that was -- that's -- as much a -- the same as a fly is to a horse to what we're talking about today, the type of devices they had.

Chief Justice Earl Warren: I -- I understood you to say they've been doing very well in Metlakatla but -- but I thought also -- you told us that they have property worth only about $350,000 and they owed -- owed $850,000.

Mr. John L. Rader: No, Your Honor, that was on Kake and Angoon.

Chief Justice Earl Warren: Oh, alright.

Alright.

Mr. John L. Rader: In both of those, I gave you the figures on them.

I did not have the figures --

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: -- on Metlakatla.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: I believe the Metlakatlans all financially is in a much better position than these other people because as I say, they got into business when it was -- when the resource was there.

Chief Justice Earl Warren: Yes.

Yes.

Justice Tom C. Clark: Did they pack their own catch when the sales started?

Mr. John L. Rader: They packed their own, I believe.

Justice Tom C. Clark: All --

Mr. John L. Rader: I believe they do, and then their pack was sold.

I mean, then -- then it is taken to Seattle, financial arrangements are made for a broker, through a broker and the fish are sold on a national scale, Alaska salmon.

As long as --

Justice Tom C. Clark: At the time they have (Inaudible)

Mr. John L. Rader: No.

No, they don't.

I believe that they packed under their own -- with their own managers, their own people operating it.

The operation is too new to Kake and Angoon, the business -- the business operation.

The -- after --

Justice Charles E. Whittaker: Maybe this --

Mr. John L. Rader: Excuse me.

Justice Charles E. Whittaker: Can you tell us how many others do you understand with reference on it as to have to serve for it.

And others, I mean in the groups like this.

Mr. John L. Rader: Only these three.

Justice Charles E. Whittaker: That's all they claim?

Mr. John L. Rader: That's all they have claimed thus far.

Justice Charles E. Whittaker: You have reserved more under Section 4.

Mr. John L. Rader: That's right, these three for fish traps.

Justice Charles E. Whittaker: Have you understand that to speak of the past test if you want to reserve here of what they have theretofore to give them over to the Indians?

Not that because you're after it?

Mr. John L. Rader: No, I think that if they can -- if they can do what they've done here, they completely control the fishery, so far as an Indian is concerned, when he starts to fish any place.

Justice William J. Brennan: Even with the hook and line?

Mr. John L. Rader: I think that will become clear --

Justice William J. Brennan: Even with the hook and line?

Mr. John L. Rader: I presume not, that's Indian fishing.

A trap is as foreign as anything else.

That's not their method of fishing.

They're fishermen in boats and skiffs.

Why shouldn't it be with a hook and line?

It's an Indian fishing right.

They have the right to fish with a hook and line before, why don't they have the right to fish with a hook and line now?

They had just as much right to fish with a fish trap before as they do now, but before, they never had a right to fish with a fish trap because that was a right that all citizens of the United States had.

Perhaps that'll become more clear if you'll -- if I may summarize my -- my legal argument and go back to the first point of it, which is that point.

Briefly, we state this.

Number one, prior to statehood, in the commercial fishery -- now, we're not talking about a subsistence fishery.

Perhaps that's what they meant by Indian fishing rights, a subsistence fishery, to catch fish and feed it to yourself and your dogs along the Yukon River, up north some place or maybe in this area too, but we're talking about the commercial fishery.

Number one is, before statehood, there was never any right in any person to an exclusive right of privilege to the commercial fish -- fishery, and that included Indians, Aleuts, Eskimos, Whites, Swedes, Englishmen and Irishmen.

It included everybody.

They were all legal.

We come into the Union and we have Section 4, which says that the State will disclaim all right to have an interest to any property including a fishing right.

We contend that their wording actually is that we -- we disclaim right to have an interest to a fishing right if any, and there may be some.

And this Court cannot possibly foreclose that today because you don't have all the fishing rights in Alaska before you today.

You have only the fishing right today in this case as it pertains to a fish trap.

That's the narrowest issue of this case.

And we say that Congress did not intend as to change the status quo, that the White Act, if it please the Court, which was to prevent discrimination did not now become the instrument of discrimination and that is exactly what it is, a compete perversion of an act of Congress which was passed to prevent any exclusive right or privilege in the common fishery of Alaska.

And as this Court observed in Hynes versus Grimes, it should be open to all of our citizens when it was attempted there to set aside for any group of Indians.

Justice Felix Frankfurter: Well, that may be a good reason for a white fisherman to come here and say “I'm being discriminated against.”

What gives the State's standing?

Mr. John L. Rader: Well, our standing brings us to the next point.

That if we're wrong in the first two, if there is a property right and if we did disclaim it and if we did disclaim not only a property right, but the right to regulate our citizens on the basis of race, then we say that if you violated the equal footing because the inland waters and the fish and game were held in trust for the future State of Alaska that by operation of law, it passed to Alaska and that this is an unwarranted infringement by an arm of the Federal Government into our sovereignty.

Justice William O. Douglas: It comes down to police power then.

Mr. John L. Rader: It's police power and sovereignty, if we're wrong on the first two.

Justice Potter Stewart: Well now, if you're -- if these are Indian tribes, or assuming there, tribes, then you wouldn't be making this third argument, would you?

Wouldn't you grant the power of the United States under the -- under -- under its power to -- over commerce with Indian tribes to -- to impose this kind of infringement.

Mr. John L. Rader: No, we wouldn't for this reason.

And that is if -- if you're going to withhold from the State absolute jurisdiction and control, you must define that, because normally, this -- that was the question that was raised this morning as how -- how can the State argue about the rights as between the Federal Government and the Indians?

The reason that we have a right to argue about that is because it's our property you're arguing about, the fish and game and the resource of Alaska.

And we say this.

If you made an Indian reservation out of all of the inland waters of Alaska and took from Alaska the resource which represents 85% of the natural resources harvested as a condition of entry into the Union, then you will have violated the equal standing of Alaska with Washington, Oregon, the original 13 states and the rest of the states of the Union.

Chief Justice Earl Warren: And suppose, Mr. Rader that -- that the Government -- and this Government said to you, the state should have no police power over the reservations, Indian reservations in Alaska, would it have that power?

Mr. John L. Rader: If you would draw on reservation, it would.

Chief Justice Earl Warren: I beg your pardon?

Mr. John L. Rader: If you -- if you would draw a line and say that that's the area --

Chief Justice Earl Warren: Didn't they draw a line on the --

Mr. John L. Rader: No.

Chief Justice Earl Warren: -- independent -- on this islands, these particular islands, and say that it -- as to that area only, they had the right to use these fish traps?

Mr. John L. Rader: Well, who did that?

The Secretary of Interior did that after statehood, not the Congress of the United States.

Justice Hugo L. Black: What about the original act that created that reservation?

Mr. John L. Rader: The Metlakatla Reservation.

Justice Hugo L. Black: Yes.

That --

Mr. John L. Rader: I might -- I now, if it please the Court, perhaps I misunderstood the question.

I -- I went to the 1960 regulations because that's where the lines are drawn --

Justice Hugo L. Black: Yes.

Mr. John L. Rader: -- as we have gone on one -- one of our appendices and that was done --

Chief Justice Earl Warren: Let's take the --

Mr. John L. Rader: -- by the Secretary.

Chief Justice Earl Warren: Let's take the first case, 826 or whatever --

Mr. John L. Rader: That's Metlakatla.

Chief Justice Earl Warren: The 326.

Mr. John L. Rader: Alright.

Chief Justice Earl Warren: Let's take that -- that case.

Suppose -- suppose the Federal Government said, “The State shall have no police powers over this reservation.”

Mr. John L. Rader: I think you could do that.

Chief Justice Earl Warren: Well then, why couldn't it do it as to a part of your police powers?

Mr. John L. Rader: You cannot do it into the inland waters.

The United States holds the uplands as the owner and out of the uplands, the United States may create a reservation for Indians and make it exclusive and have absolute jurisdiction control or anything else that they want to, but they cannot state that an Indian, when he starts to fish any place in Alaska, is withdrawn from our jurisdiction.

Chief Justice Earl Warren: They hadn't said that here.

Mr. John L. Rader: That's the --

Chief Justice Earl Warren: It said on these independence islands, or whatever the name of the island --

Mr. John L. Rader: On Metlakatla.

On the Metlakatlan Islands.

Chief Justice Earl Warren: Yes.

But they didn't say any place in Alaska they could put these things.

They said “on this reservation”.

Mr. John L. Rader: Well, they have on Kake and Angoon, they've said “any place in Alaska.”

On Metlakatla, they said “within the reservation” that has been previously defined --

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: -- that they will permit these fish traps.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: Alright.

Then on -- for Metlakatla, we would retreat to this position and that is that Metlakatla, although it perhaps had the exclusive right to use an area, in other words, “No one can fish in my pond except me.”

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: It is an exclusive right, but it doesn't mean that they have ever been segregated out of the general conservation scheme of the White Act when it was administered by the United States nor the -- nor the acts of the State of Alaska.

In other words, although I may own a pond or may own a cornfield and there's migratory birds come and land on it and no one else can trespass on my property and fish my area, I am still bound by the fish and game laws of the State as to when I can shoot those migratory birds and we take the position that they are bound to the laws of the State as to when they can take these migratory fish when it passes through their reservation.

And that that could not be withheld from the State because it's something that --

Chief Justice Earl Warren: Well, how about your other laws, your other police laws that the Government says they don't have to obey on that reservation?

Mr. John L. Rader: They're obeying all of them, Your Honor.

Chief Justice Earl Warren: Well, I know they are now --

Mr. John L. Rader: Excuse me.

Chief Justice Earl Warren: -- but I -- I asked you the question that suppose the Government came along and said that -- that we shall -- we will have retain exclusive jurisdiction over there, over those islands.

You said you thought they would have the right to do it --

Mr. John L. Rader: Yes.

Chief Justice Earl Warren: -- in the case of that reservation.

Mr. John L. Rader: Yes.

Chief Justice Earl Warren: Now, if they can do it as to all of their police -- your police laws, why -- why do you cry about this particular one and say that they can't do it?

Mr. John L. Rader: Because this is the inland waters, this is the fish and game of Alaska.

Chief Justice Earl Warren: Well, I -- I can't see that --

Mr. John L. Rader: I think that there's a distinction.

United States never held the uplands entrust for the State, but the United States has always upheld the inland waters entrust for the State.

Justice Hugo L. Black: You're relying on the Pollard case doctrine?

Mr. John L. Rader: Yes, Your Honor.

And -- and although they could -- could do whatever they wanted to at the uplands, we don't think that they had the right to segregate out the inland waters and the fish and game resource because that is not -- it used to be thought that the State owned the fish and game resource.

That idea has been read or abandoned to say that, “No, the State has a part of the sovereignty, police power, has the right to control and conserve the fish and game for the benefit of all the people of the State.”

And we don't think Congress intended to do any such thing.

Chief Justice Earl Warren: The Government can regulate the fish and game more strictly than you do, can it not if it's migratory?

Mr. John L. Rader: I -- I missed the first part.

Chief Justice Earl Warren: It can -- can regulate the -- the taking of fish and game, can they not, if it's migratory game or fish than they do it now to the case?

Mr. John L. Rader: United States?

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: By treaty?

Yes.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: Yes.

And we -- and if the United States would say this.

That the salmon resource of Alaska is so colored with international matters and as a matter of fact, if it please the Court, it may be.

Chief Justice Earl Warren: And they do it (Voice Overlap) --

Mr. John L. Rader: It may come to do that, that's right, because of the Japanese fishery and the Russian fishery on the high seas.

When United States comes to -- to that point and says by treaty, “We're going to reenter and control Alaska's fisheries,” they will and they -- and they must.

Justice Charles E. Whittaker: Do you rely on --

Mr. John L. Rader: Well that's the only way that they can do it.

Yes, Your Honor?

Justice Hugo L. Black: I -- I -- do you rely on the Pollard doctrine in connection with the last part of the 1891 reservation statue which said, “Subject to such restrictions may be proscribed from time to time by the Secretary of Interior?”

Is that the way you -- the basis on which you say that has no bearing here?

Mr. John L. Rader: Well, we needn't destroy the purported reservation of inland waters, the 3000 feet Presidential Proclamation.

We -- we have argued that that was destroyed, but we needn't destroy that.

We needn't reach that point in this case actually because the Presidential Proclamation -- remember the statue that set aside the Metlakatla Reservation, speaks of the body of lands known as Annette Islands.

This Court interpreted it in Alaska Pacific Fisheries case to say, “Well, these lands were no good to these people, they are seafaring people without some waters.”

And -- but you did not adopt the Presidential Proclamation which said that -- in the -- of 1916, which said that there would be 3000 feet around the lands.

You did not adopt it, but you did not reject it either.

You just refused to dignify it and held on a different grounds, although the Circuit Court went off on that grounds completely.

Now, under the Presidential Proclamation, the -- it states that they shall have the exclusive right to fish this area subject to the general fisheries laws of the United States.

At that time, the United States held a municipal jurisdiction, as this Court observed in Hynes versus Grimes, held not only federal jurisdiction but you held municipal jurisdiction.

You held a jurisdiction to control fish and game of Alaska because there was no State there, and because it had been withheld from the territorial government.

You held both municipal and federal jurisdiction.

We argue that when by operation of law, when municipal jurisdiction over fish and game and over the inland waters comes to the State when the State is created that those are the general fisheries laws.

And if you want to look at the status quo, if there's one thing the Congress did by Section 4, it said, “We want to reserve the status quo.”

That's the reason that we weren't worried about it.

The status quo was that everybody fished as equal under the general conservation laws.

We have always disagreed with the Department of Interior as to what conservation is.

But I don't think this Court will argue with us what we think conservation is because I think that's our determination and the appellant, Metlakatla, has admitted that the -- the reason for banning was for conservation purposes.

Now, we argue that, although as -- with any migratory resource, if you're going to give someone exclusive right to fish, if you're going to give them 80 acres and say no one else can trespass on this area, to shoot birds or anything else, if you want to give them 80 acres of water and say no one else can fish there, that's all right.

We really aren't trying to knock out that reservation unless as a last resort, we have to.

But we say this that giving them the exclusive right to fish under the general fisheries laws of United States, which are now the general fisheries laws of Alaska, the only reason you made general fisheries laws up there is because you exercised the powers of a state government in that area, there was no state government.

Now, there is a state government.

And the control of a migratory resource as this Court observed in Dow versus Ickes means nothing, means nothing.

And this was a fish trap case, Dow versus Ickes.

It means nothing unless it work -- works to the final end of conservation and you don't have a -- and you don't have a conservation chain with a reservation in the middle of it that -- that reaps the fruits of conservation.

You can use dynamite and dynamites are the most effective way there is to fish.

If you really want to catch fish, dynamite.

That's even more efficient than a fish trap.

But they've always said, “No".

This is a migratory resource.

It has to be controlled as a migratory resource.

It has to be followed from the spawning streams, in the hills to the high seas.”

And our argument is, that Metlakatla, with the exclusive right to use this area did not have and does not have the right, the unregulated right to fish.

Now, by that, I mean to violate the state laws and follow the Secretary of Interior's laws.

Justice Hugo L. Black: Are you saying in effect there that if a stream starts outside of a regular Indian reservation, flows through it, then flows out of it and continues to flow.

That the State that control how the water is used in that reservation, contrary to the Government's idea of how it should be regulated?

Mr. John L. Rader: I don't know whether it would be applicable to a stream.

I don't know, but I think it's applicable to the inland waters.

Justice Hugo L. Black: You mean inland waters, it's not a stream.

Mr. John L. Rader: They're not a stream, the inland waters of the State.

This is an island and it's surrounded by waters of Metlakatla.

In fact, all of these are on islands.

Chief Justice Earl Warren: Mr. Rader, I -- I was wondering this if -- if your interpretation of fishing rights is as limited as -- as you have made it to -- to us, it wouldn't have been necessary to say anything of that kind at all.

Would it -- wouldn't it be necessary to make any reservation because when Alaska became a state, they would have that right, the same right of all other citizens.

So the Government must have intended something else when it reserved the rights of fishing in that reservation, mustn't it?

Mr. John L. Rader: The Government, you -- you have to assume that -- that they wanted to make a decision at that time as to whether or not there were fishing rights.

The Government did not want to make that decision.

The Congress did not want to make that decision.

And the -- the legislative history is this.

That we neither enlarge nor destroy whatever these rights may be if any, and there may be some rights in other areas.

But today, we're arguing about the commercial fishery and we're arguing about corporations that have used fish traps for 12 years and in the case of 327 and since 1915 in the other case.

It may mean something some place else.

The Act said, “We'll leave this to future legislative and judicial determination.”

And I think that -- that the fact that they say there may be a right and now, these appellants are claiming it, doesn't mean that there is a right because they cannot point to a grant or recognition by Congress of fishing rights, any place.

And this Act was intended to preserve the status quo to neither augment nor diminish the fishing rights of the Unions.

Now, it -- it may have in some other -- in some other area and in some other device, it -- it may have as a different meaning.

But in the commercial fishery to where everybody had an equal right to these fish trap sites just like they have a right to go out and fish at a certain spot if they get there first.

There was no right to carry it over and so when we say this is a compact, and I insist that the intent of the State and the understanding of the State must be considered by this Court, as well as the intent of Congress.

And when they say the status quo, and we know the status quo in the common fishery to be this, equality, the right of all citizens that it has always been administered under the White Act by the Secretary of Interior.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: Yes, I -- I departed so far from my prepared argument.

Yes, I -- I -- I'd be very happy though to answer any question I can right now.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: Our first point as I've said was the freedom in the fishery, no right.

These people must prove a property right that existed before statehood because if the status quo was preserved, that's what had to be preserved.

The second one is the analysis of Section 4.

If we would -- if we could turn to --

Chief Justice Earl Warren: Do you -- do you contest the jurisdiction of this Court?

Mr. John L. Rader: No.

Chief Justice Earl Warren: I -- I understood that you had -- that you had construed --

Mr. John L. Rader: We -- we've conceded that.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: We were in error in our earlier affairs.

Chief Justice Earl Warren: Yes, I understood that.

Yes.

Mr. John L. Rader: Incidentally, I think -- before I turn the jurisdiction problem, if you'll permit me just to make one observation.

And that is this.

That the Congress of the United States in the jurisdictional act, which gave rise to the -- to the Tlingit and Haida Indians of Alaska versus United States, has recognized that all of the Indians of Alaska, aboriginal Indians of -- of Southeastern Alaska, and that's the area we're herewith concerned, may present their claim to the Court of Claims, and if they'll be compensated for whatever they lost, including fishing rights.

And the Court of Claims has so ruled because truly, whatever rights they once must have, they were lost now.

And the Court of Claims has ruled that the most valuable asset lost to the aboriginal Indians of -- of Southeastern Alaska was their fishing right.

And the scheme becomes apparent.

Of Congress, the scheme was to compensate these people for the fishing right they lost because it was opened up to all citizens of Alaska -- of the United States equally, and it had been pretty well diminished.

They have the rights of any other citizens now but they no longer have the exclusive right or special privilege or anything else because --

Justice Felix Frankfurter: But the whole -- whole point of Section 4 is to qualify your egalitarian system by referring whatever special rights the Indians may have had because they were Indians.

That doesn't tell me what those rights were, but the whole significance, unless, you just wipe out, sponge out Section 4 is to give Indians a treatment different from everybody else, the Indians and the other two native categories.

I think it would send a message.

The whole point of that is not to subject them to a uniform rule but to leave them whatever protection maybe accorded by the United States Government.

Isn't that true?

Except that you say, “I can understand the argument.”

That's unconstitutional, but you can't pursue away Section 4 in creating and establishing a special packet of rights.

Mr. John L. Rader: To what?

Property?

Justice Felix Frankfurter: By whatever they define that.

They say the property of other rights with -- including fishing right.

And that's why we're here to ascertain what fishing rights are -- in the first place, what the category covers and whether this comes within the category.

Mr. John L. Rader: That's correct.

That's correct.

But disclaiming property rights --

Justice Felix Frankfurter: I just saw your -- your engaging argument, if I may say so, is -- is on the fact that -- that Alaska is such a -- attractive model place where everybody run for their equality with everybody else.

Mr. John L. Rader: That's not true.

We have people there from every state in the Union, but the tenor of Alaska is, is racial equality.

Justice Felix Frankfurter: Yes, I understand that, but this, this makes a differentiation.

And -- and it carves out -- and reserves, carves out for -- for legal right subject of the rule of the -- the authority of United States Government, not suggested by others in Alaska.

Mr. John L. Rader: But it's a property right, Your Honor.

Justice Felix Frankfurter: That brings me to the -- that raises a question as to what is included.

I'm merely suggesting that the -- your theme song of equality, of racial equality in Alaska doesn't answer the problem of what was reserved if it could be reserved.

Mr. John L. Rader: Well, there was one thing that we -- and this is the only thing that we have to show, I think, in this litigation is that we did not disclaimed jurisdiction over our citizens when they begin to fish on the basis of race.

If we can disclaim property and Section 4 was a disclaimer of property right, but we're talking about sovereignty and we're talking about our citizens.

Justice Felix Frankfurter: Well, you can't under the guide that you're exercising, except the brief of our argument.

You can't say, “Oh, you're not interfering with property, you're merely asserting sovereignty.” That'd be an easy way out of nullifying the whole scope if it has any scope, any constitutional scope with Section 4.

Mr. John L. Rader: For these appellants perhaps, there may be others who have a property right.

Justice Felix Frankfurter: Well, that takes one to the substantive question of whether these are property rights in a sense of the parenthetical including fishery rights, but it -- it isn't met by suggesting that with the operation quality as admirable as that is.

Mr. John L. Rader: Well, it is destroyed.

That admirable faith is destroyed, unless -- unless we're correcting this.

Justice Felix Frankfurter: Well, it isn't destroyed, not on the theory that Indians are the wards of the United States Government and the wardship doesn't cease upon the territory becoming a State.

Mr. John L. Rader: But must not that principle be limited to the intent and purpose of the principle because this is what --

Justice Felix Frankfurter: You can't --

Mr. John L. Rader: -- there are citizens too.

Justice Felix Frankfurter: (Voice Overlap) the principle can't destroy the qualification, otherwise, there isn't any.

Justice William O. Douglas: I thought your argument was that the fishing rights that they -- they'd be considered a property interest where -- as all people in Alaska were always subject to whether Indians are not to general regulations.

Mr. John L. Rader: That's correct.

Justice William O. Douglas: -- by that, by the Federal Government.

Mr. John L. Rader: That's correct.

Justice Felix Frankfurter: 3Well, everybody could fish, but everybody didn't have the guardianship of the United States Government, if guardianship, it was created as -- as appellant, you say they were by the various acts of government and set aside this tribe, if it did set it aside.

Mr. John L. Rader: Well, how was that guardianship expressed?

If we look at the -- if we look at -- United States versus Kagama, and look at the test of -- of when the United States will extend itself to the protection of wards and consider the -- the Indians to be wards.

If we look at those tests, these people don't need it.

And -- and the fact that the Secretary of Interior decides that they may or may not need it when -- when it -- when the consequence of that is to deprive of -- us of our sovereignty, we think we have a right to contest it.

Here, these appellants are business corporations.

Justice Felix Frankfurter: Were there schools for these Indians?

Mr. John L. Rader: Yes, state schools.

Justice Felix Frankfurter: And what was it?

Pardon me?

Mr. John L. Rader: State schools.

Justice Felix Frankfurter: Before there was a state, were these --

Mr. John L. Rader: They were federal.

Justice Felix Frankfurter: They were federal -- there were schools under the authority of the Bureau of Indian Affairs, was it?

Mr. John L. Rader: Yes.

Justice Felix Frankfurter: So that in all sorts of ways, the United States Government as the protector, never mind how wise or unwise, these are the tests that's carried out.

In all sorts of ways providing schools, health provisions, etcetera, the Department of the Interior, through its Bureau of Indian Affairs, that's what they were called, took measures on their behalf, is that right?

Mr. John L. Rader: Yes.

Justice Felix Frankfurter: You can do that whether you're white folk, isn't it?

Mr. John L. Rader: Well, I think that the United States -- actually, the white folk have been wards of the United States too.

The -- the territory has been treated very differently in a public health and in a great different -- great many matters.

Justice Felix Frankfurter: But -- but why would these Indians been treated differently because they were Indians and because they were under the or oversight or administrative regulation of the Secretary of Interior.

Weren't they in all sorts of ways?

Mr. John L. Rader: Well, in 19 -- whenever they formed their corporations and he loaned them money, that was a different treatment than it was for --

Justice Felix Frankfurter: But you didn't -- they didn't --

Mr. John L. Rader: -- for white communities.

Justice Felix Frankfurter: But that money is to white folks then that --

Mr. John L. Rader: No.

No.

Justice Felix Frankfurter: So that -- so that in actual governmental deed, there was a connection, a relationship between these Indians and the Indian office, which showed that there was a tie between them as Indians and just the department head oversight of Indians for the Federal Government.

Mr. John L. Rader: They've had dealings.

They've had -- it's a corporation, but we insist this.

That the power of the United States -- we have two powers here and it's hard to tell what power they were exercising when we were a territory.

They had the plenary power to govern the territory regardless of Indian tribes or anything else.

They could have taken a community of Swedes.

And -- and the United States could have and organized and loaned them money in the corporations for business purposes.

Justice Felix Frankfurter: Yes.

That was a separate department of -- within the Department of the Interior, whatever it was called, possession and outlying dominion.

Mr. John L. Rader: Yes.

Justice Felix Frankfurter: That was one thing, but the Indian office was another thing and that had responsibility for Indians.

And these people did come under or within the responsibility of the Indian office in all sorts of ways, lending them money, creating schools, special schools, probably a special health service, isn't that true?

Mr. John L. Rader: Yes.

Chief Justice Earl Warren: Mr. Rader --

Justice Felix Frankfurter: And they -- they were differentiated then from the rest of the multi racial equal treatment population that was asked for.

Mr. John L. Rader: That doesn't necessarily follow.

We have 59 Indian corporations.

The instructions of the Secretary of Interior are that they can be formed in Juneau.

They can be formed in Anchorage.

If all you have to do is be of Indian blood and have a common bond of residence or occupation to form -- to be in one of these corporations.

Well, that's all you have to do.

And I -- and I -- I can', for the light of me, believe that that and that alone would be enough to destroy what we think is very valuable.

Chief Justice Earl Warren: Mr. Rader, would you mind speculating for a moment on what the future of these Metlakatla Indians would be if -- if the Government summarily close these fish traps?

Mr. John L. Rader: The -- we're in a dust bowl and anyone that depends upon the fish in Alaska is in tough shape and that includes these people.

But it's so easy to -- to shift their means of catching fish from a fish trap to boats.

That's the way the rest of the Indians in Alaska fished.

That's the way the Kake and Angoon fished until 1948 and 1950, they've only relied upon this device for 10 or 12 years.

Of course, it's going to hurt them.

And I can't help that that hurts them.If they'll be for, I presume, the executive branch of the Federal Government, if they -- if they -- want to assist, to assist and up to the State to assist.

But the -- the fact remains that you cannot take a sick industry and all the rest of the communities in Alaska to not take a sick industry and suddenly be well again.

No matter what we do, with or without the fish traps, this will hurt.

It will require a shift in policy as every community that has had fish traps or every group of people or private citizens or canneries and a lot of them have closed.

It does hurt because the resource is sick.

Chief Justice Earl Warren: The only reason I was thinking in those terms was because I understood from what has been said here that -- that that's all there is to this little community, the fishing and they are wards of the Government, are they not?

Mr. John L. Rader: Metlakatla?

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: Well, that -- that gets us into their whole status.

It's a -- it's a state school.

It's state laws.

They pay state taxes.

They send representatives to the state legislature, things of that nature.

And I -- if you want to call them wards of the Government, in one sense, they are.

The Government has extended a -- a hand to them, which everyone appreciates, and which I think could be extended after this litigation no matter what happens to it.

But -- and we do -- we do not think that you can -- you can destroy our sovereignty in that process.

And we think that for these villagers, what did these villagers think when they voted against fish traps?

What did Angoon think when they voted 127 to 7 against fish traps that when fish traps are finally going to abolish, what they would do.

This is what they knew and what we all believed.

And that is we depend upon the resource.

The fish traps have destroyed the resource.

We will abolish our fish traps if everyone else will abolish theirs.

And we will use boats.

And of course, it's going to hurt.

But in 10 or 15 years, perhaps we can rebuild this fishery.

The way it is now, it's a -- it's been a consistent lying down for 50 years and I don't doubt for a moment that -- in fact, believe me, I don't believe that these -- that these people would be fishing in these fish traps if it were not probably for their economic situation.

Justice Felix Frankfurter: Well, that's why people engage in economic affair.

Mr. John L. Rader: That's right.

Well, but then they -- they understand well what the fish trap issue is and has been and their position in leading and fighting for the abolition of fish traps.

Justice Hugo L. Black: But precisely, what is the difference to which you refer the boat fishing and trap fishing?

Mr. John L. Rader: Well, a fish --

Justice Hugo L. Black: Is one a kind of a mass catching and one not?

Mr. John L. Rader: Yes.

This -- it's a -- a fish trap is a-- underwater throughout, so to speak.

There's a lot of different types of fish traps, but these are floating fish traps.

They float out of three city blocks, 900 feet into the water.

They're anchored with 5000 pound anchors to hold them away from shore.

They have to be put in position by large tugs and things like that.

They have a wire that extends -- the lead goes from the trap to the shore.

And the lead is a wire fence that extends from the surface of the water to the bottom of the ocean.

And the migratory salmon in seeking their freshwater streams to go back to their spawning grounds go along the coast, they hit this lead.

They can't pass.

They wary along the lead until they come out to the end of it, and at the end of it is a theory of ever confining spaces.

The fish will finally come and swim into one space and -- by -- by fins and so and so forth while he finally ends up in a pot.

And then you come along with a brailer.

You brail out your fish trap and you take out tons of fish and put them on a scuttle.

Justice Hugo L. Black: Will be tons of fish.

Mr. John L. Rader: Tons of fish.

Justice Hugo L. Black: How does the boat fisherman goes?

Mr. John L. Rader: The boat fisherman has a net --

Justice Hugo L. Black: He fishes with a net too?

Mr. John L. Rader: With a -- with a -- well, this is a -- there's -- the net is something like I a pick up with my both hands.

Justice Hugo L. Black: Small net -- small net.

Mr. John L. Rader: Yes.

It's a -- it's cloth net.

Justice Hugo L. Black: How long are they?

Mr. John L. Rader: They vary in -- in different places.

It's all set out in the regulation.

I think some of them -- I think they vary from -- I think around 200 -- 250 yards, something like that.

Chief Justice Earl Warren: Set almost as long as the traps.

Mr. John L. Rader: Almost as long.

They're not as deep and the -- the efficiency of the net is -- is not a fraction of what a trap is, but they do -- they are long in some areas and then they have set nets that are a lot shorter.

And they may be 50 or 100 yards long.

The set net is anchored to the beach similar to a fish trap.

Justice Hugo L. Black: Is that the main kind of fishing that the other Indians do who do not own the fish traps?

Was that the kind --

Mr. John L. Rader: That's the only kind they can do.

Justice Hugo L. Black: What did you say?

Mr. John L. Rader: That's right.

They had no other -- no other way to do it to see this --

Justice Hugo L. Black: It's a kind of a mass fishing too or something.

Mr. John L. Rader: It's a mass fishing, but it doesn't hold accountable to a fish trap for efficiency, ability to --

Justice Hugo L. Black: Question of quantity.

Mr. John L. Rader: It's a -- it's a question of efficiency and quantity.

There is the additional -- as I say, this is disputed but -- there are many who believe that a fish trap has the ability to swallow a complete school and thereby, leave a stream bare.

Well now, how active that is, it's hard to say.

That's debatable.

We just don't know that much about the fish, but we do know every so often we end up with a barren stream and fishermen have ways of deducing these things at a -- I don't know if they're accurate or not, but that's certainly what a lot of them believe.

Justice Charles E. Whittaker: This is a matter of interest.

How -- how do they get the fish out of this trap?

Mr. John L. Rader: There's a brailer.

Justice William J. Brennan: A brailer or --

Mr. John L. Rader: Well, we call it brailer.

Justice William J. Brennan: How do you spell that?

Mr. John L. Rader: B-R-A-I-L.

Brail.

It has a -- it has a false floor on it that's made out of a net and the -- the scuttle comes along size --

Justice Charles E. Whittaker: And raises it?

Mr. John L. Rader: And raises the whole thing and pulls it up in the air like this and it dumps in -- throws the fish into the scuttle.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: It's quite an operation.

Congress in the -- in Section 4, if we want to construe the intent, particularly as -- the -- the legislative history on Section 4 has preserved the status quo to neither enlarge nor decrease Indian fishing rights.

The congressional history as to the commercial fishery of Alaska, if you go back before Hynes versus Grimes, go back about 1916, Columbia River versus Berg, it was held then that there was no exclusive right to anyone in a -- into an exclusive fishery of Alaska.

You have the Hynes -- You have the White Act of 1924, where Congress specifically prohibited any exclusive fishing right.

This Court in Dow versus Ickes, when fish traps were destroyed by a regulation of the Secretary of Interior in 1934 or thereabouts, this Court held that no one had a right to a fish trap.

In Hynes versus Grimes, when the Secretary of Interior attempted to give the Karluk Indians a reservation, it was held that he could not do so, a single amount, give them special treatment.

Section 6 (c) of the Statehood Act talks about turning over to Alaska its commercial fisheries on a certain timetable which has now occurred and actually, as a matter of act, this litigation occurred when Section 6 (c) was in effect.

Section 6 (c) said that the Secretary of Interior shall have the right to continue to manage Alaska's fisheries until such time as he certifies the Congress of the United States that they have made adequate provisions to protect and manage the resource he has certified.

In other words, the Statehood Act itself indicated, there would be a turnover to the State of its fisheries.

Section 6 (c) also calls for the transfer of all the property of the Federal Government used in the policing of these fisheries and that's boats all the way from 15 feet to 100 feet long to turn them over to the State to police the industry, to police the fishery.

We argue that because it was -- it -- it shows the complete withdrawal of the Federal Government from the regulation and control of the fishery, and the complete transfer by every means apparent to Alaska of the means and the methods, the property to control that fishery.

And here we have Indians who are 42% of our commercial fishermen who are no longer under our control under the theory of Kake and Angoon.

Under the theory of Metlakatla, if they confine themselves to the reservation, it's a different problem.

But on the theory of Kake and Angoon, it cannot be stopped there.

Then are two -- then on 59 corporations.

Justice Charles E. Whittaker: Do you agree that if in fact there were any fishing rights vested in the Indians or in United States as trustees for them under Section 4 that depend -- that the surrenders under Section 6 were subject to those reserved rights by 4?

Mr. John L. Rader: If there was a property right, I would say yes.

Justice Charles E. Whittaker: With all the fishing right.

Mr. John L. Rader: Well, that's --

Justice Charles E. Whittaker: You -- you think it has to be a tangible right, a -- if it may not -- not be of a right in a consent to fish a particular place in a particular way?

Mr. John L. Rader: There could be a particular place, but when -- but -- but there was no disclaimer of jurisdiction as to the control of its fisheries of sovereignty.

Justice Charles E. Whittaker: It depends on how you read Section 4.

Mr. John L. Rader: It certain -- yes.

Yes, sir.

Justice John M. Harlan: Well, Section 6 is subject to whatever Section 4 reserved.

Mr. John L. Rader: I -- I would think that it would be.

I -- I only bring it up to as -- as persuasive as to the intent of Congress to turn over to us what -- what appears to be -- control the fishery at the same time, say 42% of the people in the fishery though, aren't under your control.

They didn't intend any such thing.

When Congress said that they were going to preserve the status quo and not tinker with -- with native rights, I think that's what they meant and I think that you have to look at the picture before statehood and after statehood to see what they have today and they never had a right to fish with a fish trap by nature of a property interest or an aboriginal right, because it's a different type of device.

Justice Felix Frankfurter: What if they had -- pardon me.

If they had fishing rights, those rights aren't the exercise of the right, aren't limited to the means by which they enforce the right 30 years ago or 15 years ago or 10 years ago or years ago.

Mr. John L. Rader: Well, I think that those rights --

Justice Felix Frankfurter: (Voice Overlap) rights, that means they had the right to get fish, and not to get them in a particular way.

It might be all sorts of improvements that are themselves in the interest of conservation.

The old construction would shut them off, would say that they could only fish the way they fished that their ancestors fished.

Mr. John L. Rader: No, our construction doesn't do that.

Our construction says if they fish on the same basis of every other citizen --

Justice Felix Frankfurter: Well, I'm --

Mr. John L. Rader: -- which is the way they fished since anybody up there knows any differently.

They've always fished that way and we -- Congress says status quo, we think that's what they meant.

Justice Felix Frankfurter: But Congress didn't say status quo, you -- you've said that so many times as though that were written in the statute.

We lawyers always do that.

Mr. John L. Rader: I --

Justice Felix Frankfurter: We replace their phrase and then go on and assume it's in the original.

Mr. John L. Rader: Well, returning to the -- to that problem, I have said status quo because the language that the parenthetical phrase is not very explanatory, but the committee reports on page 30 of our brief, the Committee report to the 88th Congress states that, “It has provided that no attempt will be made to deal with the legal merits of the indigenous rights, but to leave the matter in status quo for either a future legislative action or judicial determination.

I'm trying to make some sense out of what Congress meant by fishing rights.

Justice Felix Frankfurter: Why is this -- right is a very different thing than to say they must be restricted to how they enjoy them at the time they enjoyed them.

Mr. John L. Rader: Well, can it say -- yes, but can you say then that -- that they are completely unrestricted as to anything that -- if this was a compact -- well, I -- I don't know how to answer your question.

Justice Felix Frankfurter: Cover -- cover that English word.

Imagination of people who draft in compact is limited.

That's why we have lawsuits.

Justice William J. Brennan: As a matter of fact, Mr. Rader, didn't that parenthetical expression come into Section 4 rather late including fishing rights.

Mr. John L. Rader: I think it came in, in 1952.

It's been in there quite a while.

I mean in -- in these predecessors of the Statehood Act.

Justice William J. Brennan: It was not on the original proposal for Section 4, was it?

Mr. John L. Rader: Yes, of -- of the bill that was finally passed.

In fact, it's been -- it's appeared in every Statehood Act since 1952, in front of everything -- every Congress, there has been a Statehood Act proposed.

Justice William J. Brennan: And -- and this parenthetical expression lean on --

Mr. John L. Rader: And I believe that this parenthetical expression has appeared in all of them.

Appellant Metlakatla withdraws that out very nicely in the legislative history, and that's my recollection if they're correct on it.

Justice Charles E. Whittaker: Would you mind my asking (Inaudible) What -- is there a possibility that (Inaudible) agree in court within the period sought, appealed where (Inaudible)

Mr. John L. Rader: Well, it -- it wasn't in existence.

Justice Charles E. Whittaker: Well judges (Inaudible) were they not during this appealed period?

Mr. John L. Rader: Yes.

Justice Charles E. Whittaker: Don't we -- does the Court have to resist (Inaudible)

Mr. John L. Rader: Well, I don't know.

They didn't have any rules and they didn't consider themselves in existence from the point of view of -- of dates or -- or work or anything else.

I mean, the -- maybe they were in existence, maybe they weren't, but --

Justice Charles E. Whittaker: The rules were taken indeed on September 26th, were they not?

Mr. John L. Rader: I -- I think it's October the 5th.

Justice Charles E. Whittaker: That's the date of the -- the effective -- or the date September (Inaudible) you maybe right (Inaudible) --

Mr. John L. Rader: Perhaps they were dated -- and I think the effective date though was October the 5th.

Chief Justice Earl Warren: And there were no courts in existence from which they could take appeals at that time, were there?

Mr. John L. Rader: Well --

Chief Justice Earl Warren: In that -- on October 5th.

Mr. John L. Rader: Yes.

Chief Justice Earl Warren: It came into being.

Mr. John L. Rader: They -- they were taking -- they took appeals from the interim federal courts.

Chief Justice Earl Warren: From that date on?

Mr. John L. Rader: From that date on.

Chief Justice Earl Warren: From that date on.

Mr. John L. Rader: Yes, and they made it retroactive too.

Chief Justice Earl Warren: Yes.

Mr. John L. Rader: The rights of appeal.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: Not without jeopardizing -- very seriously, not without taking a chance that -- that they would hear the appeal.

I would have had no assurance.

In other words, their time ran out before the Supreme Court rules were effective and I presume that the Supreme Court rules would be --

Justice Charles E. Whittaker: What do you mean by rules?

A court doesn't have to have rules to have jurisdiction, does it?

Mr. John L. Rader: Well, our state statute said that the State Supreme Court may hear appeals from the interim courts.

It was contemplated that at the time that statute was written by the State that perhaps reducing interim courts for up to three years.

The Parker versus McCarrey decision of the Ninth Circuit, when it declined jurisdiction, threw us in a position of having to organize a state court as rapidly as possible, and it was a question, vantage, around -- quite a lot around Alaska as to whether or not the -- the State Supreme Court would back up and take appeals which had been -- of cases which have been processed since statehood by the federal courts and which the Ninth Circuit wouldn't hear.

And I didn't know for certain whether they would or would not, and I do not think that these appellants could have known for certain whether they would or would not.

Therefore, they had the appeal here, the record had been sent here, the Court up there was not property, that they'd handed someone a piece of paper that wouldn't have anything that happened.

Justice Charles E. Whittaker: There was an appeal anytime taking their (Inaudible)

Mr. John L. Rader: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: The State Supreme Court has withheld, passing on jurisdiction, pending a determination by this Court as to its jurisdiction.

Justice Charles E. Whittaker: But under its rule has the (Inaudible)

Mr. John L. Rader: Under its rules -- this is a type of case that could be -- could have been appealed.

Justice Charles E. Whittaker: We know around or about this situation (Inaudible) is it not?

Mr. John L. Rader: Well, I -- they probably would know more about the state intent, but we're not urging at all that this be sent back there because we consider this to be a critical problem and the fishing season is upon us and the -- the questions are going to have to be decided and the quicker they're decided, the better off that these appellants will be in the State.

Justice Felix Frankfurter: Let me ask you, Mr. Rader, a little problem by dates.

When was this case decided below in the -- in the District Court?

Mr. John L. Rader: July the 2nd, I believe.

Justice Felix Frankfurter: 2nd of July, when was the 90 days out?

Mr. John L. Rader: Well, I think some back it appeared to be October the 2nd.

Justice Felix Frankfurter: Well, I noticed that the rules of the -- of your Supreme Court were promulgated on the 25th of September, also that rule be promulgated by a court that wasn't in existence.

Mr. John L. Rader: Well, it -- it certainly wasn't doing any business in the effect, the date of the rules.

Justice Felix Frankfurter: Well, this Court was in existence, the Supreme Court of United States was in existence for some time, and didn't have any business and the Court adjourned again and again and again because there's no business because the Court -- but the Court was in existence starting September 24, 1789.

When we --

Mr. John L. Rader: Implied just as soon as --

Justice Felix Frankfurter: President Washington amended.

Justice Hugo L. Black: The effect of your primary judgment formula.

Mr. John L. Rader: During September?

During August, I believe, two judges were appointed and one federal judge was appointed.

He went on 30 days.

I think he was appointed around the 1st of September.

That was a relic in the 90-day period though.

Justice Felix Frankfurter: So they (Inaudible) Juneau, Alaska this 25th day of September, special application of rule, rules of the Supreme Court of Alaska.

Mr. John L. Rader: That would have been probably the Chief Justice of our State Supreme Court.

Justice Felix Frankfurter: Well, there must have been any -- there must have been a court (Inaudible)

Mr. John L. Rader: Excuse me just a second.

I beg Your Honors' pardon.

My associate directs my attention, takes three judges under our state law to have a Supreme Court and that the last one was appointed on September the 2nd.

Justice Charles E. Whittaker: Was appointed September 2?

Mr. John L. Rader: Was appointed September 2nd.

Justice Felix Frankfurter: And then they must have gotten together somewhere and formulated these rules and the date of them.

Mr. John L. Rader: Yes, they did.

Justice Felix Frankfurter: I just think one could look, go to the inference, it's in the Supreme Court of Alaska was in being, couldn't one?

Mr. John L. Rader: Well, maybe it was at being, but could these appellants appeal to it.

Justice Felix Frankfurter: Well they have the rules which told them how to appeal and what to do.

Mr. John L. Rader: Well, the rules weren't effective within the period of time that they had to take their appeal to this Court.

Justice William J. Brennan: Well now, why are they dated September 25th was -- as setting up some --

Mr. John L. Rader: I think --

Justice William J. Brennan: -- some other promulgation of the Court which made them effective later than that day?

Mr. John L. Rader: I think the rules themselves make their effective date October the 5th and they were promulgated, I think, on the 26th --

Justice William J. Brennan: Well, these (Voice Overlap) --

Mr. John L. Rader: -- as a matter of publishing.

Justice Felix Frankfurter: (Voice Overlap) effect on those.

There was a --

Mr. John L. Rader: Well, I could be in error on that.

Justice Felix Frankfurter: When was -- when was the time up to the year and with the 90 days?

Mr. John L. Rader: October 1st or 2nd.

September 30th.

Counsel tells me September 30th.

Justice William J. Brennan: Well, I -- I see these as rule 53.

These rules would take effect on October 5 even though --

Mr. John L. Rader: Yes.

In other words, they were published for 10 days before they became effective.

Justice William J. Brennan: Yes.

Justice Felix Frankfurter: There must be -- there must have been somebody -- somebody to news mails and -- and could have dropped the notice of appeal, wouldn't you?

Justice John M. Harlan: Well, there is a petition, a notice of appeal pending there now.

Mr. John L. Rader: Yes, that was filed though I think December by these appellants.

Justice John M. Harlan: If this -- if this Court, the summaries will explain jurisdiction, I think we should.

The Supreme Court, there is a procedure of the Supreme Court of Alaska that --

Mr. John L. Rader: The Supreme Court of Alaska does not note a jurisdiction.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: It hasn't expressed anything (Inaudible) other than they would wait for the outcome of this Court.

Justice Charles E. Whittaker: (Inaudible)

Mr. John L. Rader: I think that the appellants there have filed a notice of appeal.

Well I -- I guess you're right.

They haven't been asked to it.

Justice Charles E. Whittaker: (Inaudible) that to decide to dismiss the appeal it's been taking, is that all -- is that right?

Mr. John L. Rader: I'd have to ask the appellants themselves as to what action they did request to the State Supreme Court.

As I recall, they filed only the notice of appeal and -- and made a motion to have everything held up pending, a determination by this Court or the --

Chief Justice Earl Warren: Under the rules of your Court, your Supreme Court, how much time would they have to appeal from the judgment in -- in a judgment to this fact.

Mr. John L. Rader: I believe that they had 60 days from October the 5th.

Chief Justice Earl Warren: From October 5th.

Mr. John L. Rader: From October the 5th.

I believe that's correct.

Chief Justice Earl Warren: Even though the judgment was earlier?

Mr. John L. Rader: That's right.

Justice Charles E. Whittaker: We both made jurisdiction to the merits in this case.

Mr. John L. Rader: Yes.

Justice John M. Harlan: I'd like to ask you a precedent supposing this case did go back to the Supreme Court.

And stayed it and was in fact now was to continue on practical congressional -- except the desire of lawyers to get decisions from this Court.

Mr. John L. Rader: Well, the fact of a judgment is that if we do go back, it's just a matter of days, I presume, until we're back here.

Justice Charles E. Whittaker: Why?

Justice John M. Harlan: Why?

Justice Charles E. Whittaker: (Inaudible) to decide the case.

Mr. John L. Rader: Well, I -- I --

Chief Justice Earl Warren: You mean the satisfaction of both sides?

[Laughter]

Justice John M. Harlan: Recently come up here with some -- some light of the local court as to their views about it, and that we don't have now.

Mr. John L. Rader: Well, certainly, that would be helpful.

We noted that in our argument that this case should be declared moot because it was done under 6 (e) that if further judicial refining and processing along the line would probably be distinctly helpful but it -- we don't construe it to be in the interest of the State or the people of the State nor an interest of these appellants to have this thing delayed any longer because of the imminence of the -- the problem is becoming pretty critical.

Justice Felix Frankfurter: When -- when is the fishing season.

Mr. John L. Rader: It will start within about three weeks.

Justice Potter Stewart: So that that there had to be a new restraint, I take it or something to prevent application of the state laws since this was last year.

Mr. John L. Rader: Well, I think that the one you have entered probably still restrains us through this season because it wasn't limited just to 1959.

It was little bit broader from that.

Justice Tom C. Clark: Well, you wouldn't be affected at least.

Mr. John L. Rader: We wouldn't be affected --

Justice William J. Brennan: I will comment on that thing.

Justice Tom C. Clark: Well, wouldn't (Inaudible)

[Laughter]

Mr. John L. Rader: I --

Justice Tom C. Clark: Wouldn't be an emergency then talking (Inaudible) -- on our acts would not take effect until next (Inaudible)

Mr. John L. Rader: Well, there's emergency as to whether or not they're going to use these fish traps this year.

Justice Tom C. Clark: Probably, we should've stay on that --

Mr. John L. Rader: Well, that --

Justice Tom C. Clark: (Voice Overlap) that.

Mr. John L. Rader: Well, that -- that's staying perhaps will go on forever.

We -- but -- but on the merits --

Justice Felix Frankfurter: And we dispose the case.

Mr. John L. Rader: Yes.

But --

Justice Tom C. Clark: That came up in June as they were disposed of June and July or I (Inaudible)

Mr. John L. Rader: In fact, the purposes would be, well, not in June but if you wait until -- actually, the season will be over pretty well on August.

Justice William J. Brennan: Well, actually Mr. Rader, as I recall it last year, it takes sometime to locate these fish traps and if the season open within three weeks, I take it, they're in process of being located now.

Mr. John L. Rader: I -- I believe that they are.

I think that they like everyone else we're trying to withhold them as much as they can until they find out what happens here but I think that they had been forced already to make preliminary expenditures, preliminary purchases because if the opinion is in their favor without using if is not to minimize their loss.

I think they're trying to withhold but I'm certain that they have incurred some expenditures.

Justice Hugo L. Black: Can you think of any determination that the State Supreme Court could make that would prevent -- that justifies and say it's been disposed of wholly on state ground, and we therefore don't have to decide anything else to that?

Mr. John L. Rader: I think that there will be a construction of the compact between the State and United States which is Section 4 no matter who losses this case in front of the State -- State Supreme Court.

The other party is going to be here probably unless -- well, of course if the state lost, why we wouldn't --

Justice Felix Frankfurter: What -- what's the status again?

No matter who losses, somebody will be here again?

Mr. John L. Rader: Well, no.

I -- I -- it was too broad, I'm sorry.

[Laughs] I Apologize.

Justice Felix Frankfurter: For what -- what -- do you have (Inaudible) Mr. Rader?

Mr. John L. Rader: Well, the question -- the question was --

Justice Hugo L. Black: (Voice Overlap) way it could be decided, I asked because I think it's what Justice Frankfurter onto say.

Any way it can be decided so that you can foresee that we wouldn't have to decide this federal question.

Mr. John L. Rader: I don't -- I -- I've just -- as a practical matter, I don't think so.

I think that -- that it's going to -- it'll -- it'll rest on this Court finally one way or another.

I feel certain of that.

And I -- and I think that because I feel that way, I -- I urge upon the Court to -- to take it now and decide the question so long the facts indicate this.

Justice Charles E. Whittaker: That's why do you make a (Inaudible)

Mr. John L. Rader: Well, it's partly.

Partly, it was certainly no longer to our interest.

If this -- if this Court had ruled against jurisdiction or had ruled that the case was moot six months ago, then there could be a new lawsuit brought on the new regulations and we probably could have been here before the fishing season and it would still been a lot better.

But when we get into the situation we're in right now why it -- it's very damaging to have this go on any longer and we'd like to have it decided.

If there are no further questions, thank you very much.

Chief Justice Earl Warren: Mr. (Inaudible) --

Argument of John W. Cragun

Mr. John W. Cragun: If the Court please, Mr. Schifter has requested that I reply for the appellants in Number 326 as well as in 327 under represented by me.

He particularly requested -- I'm told by counsel for Alaska that there is some question up there as to whether the appeals taken by these appellants to the Supreme Court was timely under the Court's rules which gave a retroactive right of appeal after we had already come here.

I was not aware.

Those appeals were filed the very day that counsel were served with the reply to the briefs filed by appellants on the motion to dismiss.

They -- I said they were filed.

They were prepared and they were mailed from Washington, airmails as a precautionary matter to be sure if this Court were to hold that these people did have a right of appeal to the Supreme Court of Alaska which certainly was -- I must disagree, it was in existence.

It simply wasn't organized under the Alaska law.

It was created by the Constitution no judges, no clerks.

Justice William J. Brennan: We couldn't -- we couldn't determine whether the Alaska Supreme Court would have moved here this (Inaudible)

Mr. John W. Cragun: No, that's perfectly true.

You could not but I -- I was starting another thought.

I interrupted myself really, Mr. Justice.

And the other thought was this that you won't see the predicament of counsel for these appellants, has now suggested that retroactive right of appeal has give -- been given.

We see, there's three or four days when this first comes to our attention within which we might take that appeal.

We mailed off a notice of appeal without copies of the rules, without copies of forms or anything else airmailed asking them to be docketed although we were not members of that bar.

It's a rather desperate thing if you look it apply to these Indians and this Court should throw them out here, then this matter is res judicata.

We never get to the Supreme Court of the United States.

The legal issue has been forever determined and we have been denied the review.

Justice Felix Frankfurter: Why do you say that (Inaudible)

Mr. John W. Cragun: I think --

Justice Felix Frankfurter: Where -- where is that -- why is any action that this Court may take as suggested in the other end of the bench with the view of getting perhaps more light on some of the local situation, that I mean on the economic.

What I mean -- why would -- why would such action necessitate the disposition that's -- without raising res judicata.

Mr. John W. Cragun: It wouldn't now.

I say that if we have not taken the appeal and this Court denied jurisdiction, then we would be foreclosed forever on these issues of law.

That motivated us to file an appeal if we could to ask with our non-membership in the bar be waived and to ask would be postponed pending determination on the issue.

Justice Felix Frankfurter: So no one -- no one suggested you want to allege as to bring it.

Mr. John W. Cragun: [Laughs] I'm quite aware of that, Mr. Justice, and thank you.

Justice John M. Harlan: Could I ask you one more question?

Mr. John W. Cragun: Sir.

Justice John M. Harlan: When does your -- is your Supreme Court in session now?

Mr. John W. Cragun: I have no information as to the --

Justice John M. Harlan: So your Supreme Court, excuse me on that.

Mr. John W. Cragun: Supreme of Court of Alaska shall have to defer that to --

Justice Felix Frankfurter: Your Supreme Court is right here, isn't it?

Mr. John W. Cragun: That's correct, sir.

[Laughter]

So as ours Your Honor but our State Supreme Court was in session.

Justice Felix Frankfurter: You have too?

Mr. John W. Cragun: Mr. Schifter had requested that I read the following paragraph from an affidavit of the Mayor of the Metlakatlan Indian community which appears at page 37 of the record.

And that's the first transcript of record, not the supplemental.

It has been referred to persistently as raising a question of a concession on the part of Metlakatla.

The final paragraph in that affidavit says that the purpose in seeking ban on the use of fish traps in Alaska was to conserve the runs of salmon.

That the use and operation of the four fish traps of the community -- well in but a very minor manner if any affect the conservation of salmon in Alaska waters.

That the State of Alaska will not suffer any material damage if the traps are permitted to be operated while on the other hand, if the Indians of the reservation are denied the right, they will suffer irreparable damage and loss.

It's his feeling that a good deal of moral was read into that paragraph than the paragraph deserved.

I want to recur to the references that had been made to the basis of the secretary's action in authorizing these fish traps.

I think perhaps it's best shown by the new regulations which are proposed and in the red appendix at page 34 and 35.

We find the places set forth in the federal register as is required.

We find that the authority is not merely the White Act to which reference was made but that it comes under Section 2 and 9 of Title 25, Section 485 of Title 5 and cites other acts.

Now, I think that a little more could have been said on Title 5 of the U.S.Code.

They cite Section 485 which says the Secretary of the Interior is charged with the supervision of public business relating to the following subjects first and then second, the Indians.

They did not cite Section 22, the so-called housekeeping statute on departmental regulations which applies to all departments and says, “The head of each department is authorized to prescribe regulations not inconsistent with law for the Government of his department and the performance of business and two or three other including custodial matters.

The sections with respect to Title 25 of the Code, Title 25 as Indians, Section 2 which is cited in this assertion of authority on the part of the Interior -- of the Secretary, says, “The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior and agreeable to such rule regulations as the President may prescribe in the management of all Indian affairs and of all matters arising out of Indian relations.”

And the other sections, Section 9, the President may prescribe such regulations as he may think that for carrying into effect to the various provisions of any act relating to Indian Affairs and for the settlement of the accounts of Indian affairs.

The next item on which I was concerned arose in response to some questions of Mr. Justice Douglas respecting Hynes against Grimes Pack -- and refer to the fact that he had decided that the Court's opinion is something else.

I must confess that I have the same misunderstanding of the holding in Hynes against Grimes Packing as had Mr. Justice Douglas if I understood correctly his questions until I got around to studying it for the sake in this case.

Hynes against Grimes Packing held very flatly concluding at page 116 that there was a valid establishment of an Indian reservation at Karluk in Alaska.

That the Secretary of the Interior did have authority to establish it, but it then went on to hold concluding at pages 122 and 123 not as I have sort of vaguely recalled the Court held and as I believe we shared by one member of this Court but to say we find nothing in the White Act that authorizes the Secretary of the Interior to grant reservation occupants the privilege of exclusive commercial fishing rights.

Now, the holding of that case is not as I understand it but because of the White Act, no such rights could be accorded by the Secretary but that he had ceased the wrong authority and you couldn't say that the White Act authorized him to put an exclusive right in the hands of the natives.

He would have to look elsewhere and the balance of the opinion carries that distinction through all of it.

I've been further concerned with the references that would indicate that while Metlakatla may very well be confined to the island down there that Southern tip of Alaska where it lies for each fish traps, that somehow under Kake and Angoon have a role making profit to go all over Alaska and fish, fish traps wherever they want to.

I wish to call attention to the President proposed regulations, if I may, at pages 36 and 37 of this red appendix.

The Court will see that as to Kake and Angoon, I omitted of course, the ones respecting Metlakatla then in Mr. Schifter's brief, the locations of the 21 traps, or as distinctly specified by latitude and longitude down to the second and they can't operate the 21.

They're permitted to be permitted in this season to operate only 13 in all.

I further wish to call attention to --

Chief Justice Earl Warren: How long did you say?

15 days?

Mr. John W. Cragun: There are -- there are 13 traps which are authorized to be fished in this season but there are only 21 sites that the Secretary permits.

If I may have had a slip of the tongue referring to time instead of number of traps, I'm sorry.

Chief Justice Earl Warren: I see.

Justice William J. Brennan: Mr. Cragun, do you know whether similar regulations before 1959 when -- as I understand it, it's 250 sites were authorized, were specified with a particularity that these are --

Mr. John W. Cragun: I can't answer that definitively.

It is my recollection that they are so specified with regard to Indian sites.

I would have to get --

Justice William J. Brennan: Only at Indian sites?

Mr. John W. Cragun: I believe that's correct but there again, I -- what's that?

Argument of Richard Schifter

Mr. Richard Schifter: (Inaudible)

Rebuttal of John W. Cragun

Mr. John W. Cragun: I‘m informed by Mr. Schifter that he can say that all fishing trap sites were specified either White or Indian.

These Indians, of course, set by here for quite a while and watched non-Indians fishing the traps, which later was the cannery were purchased by the United States and turned over to Indian fishing.

However, the fact is that as to Indians since the Secretary exceeded the closing up all fish traps except Indian fish traps, the Secretary has very directly regulated it.

This is not an unregulated right if that impression has been given this Court.

The Secretary of the Interior is manifestly concerned with the matter.

He has fish and wildlife under his jurisdiction.

He is manifestly concerned with preserving the salmon lives there as necessary to Kake and Angoon and the Metlakatla as they can't be to anyone else in Alaska and they are regulated by the Secretary.

The size of the traps is unimportant, I suggest.

The question is how many fish you take out of them, not what gear you use and traps can be regulated and are regulated to determine how much of a pack you take out of them.

It's no different if you spread it amongst more men perhaps running the actual boats and they take just as many fish with yawl nets or purse seines or some other method, we're really confusing to quite different issues.

I repeat again that in my judgment, there is no conservation issue here unless Alaska can say “Well, the Secretary isn't going to regulate this from a conservation standpoint but we would.”

Unless that can be said, I -- I don't see how this issue can be imported into the case.

And there was one other thing that occurred to me in that connection when it was said --

Justice Felix Frankfurter: Well, the theory that -- the theory of legislation is prohibition, isn't it?

Mr. John W. Cragun: That is the theory of the Alaskan legislation.

Yes, sir.

Justice Felix Frankfurter: So that -- so that there is a sharp issue of conservation policy, namely whether the evil is -- whether there is such an inherent evil with the State assuming it has started to step in and bother it and prohibit the further practice or on the Secretary's point of view that regulation the fact.

Mr. John W. Cragun: Well, I -- I don't --

Justice Felix Frankfurter: And certainly, the most incompetent person in the world have a view on the merits of that.

At least I can't imagine anybody less competent -- less incompetent than I am.

But the issue seems to be one of conservation.

Mr. John W. Cragun: I believe that the issue of conservation --

Justice Felix Frankfurter: I mean the different views of what conservation calls for.

Mr. John W. Cragun: They -- the only matter from conservation standpoint that appeals to make and make any sense is the number of fish you catch and the number you left through the ghost pond and how carefully you regulate it.

Now, our grant that dynamite is forbidden under the Interior Department regulations as under the State, that is a highly nonselective method of regulating fish.

I suppose it could be used but it's -- it's frowned upon.

Now, Alaska certainly frowns upon the use of fish traps but I am unaware, provided they are regulated and here they are regulated that there can be possibly be any issue other than how many fish you take by one method or the other and how you let you runs a fish through this pond.

Justice Felix Frankfurter: Well, if it's easier to take more by one method than another --

Mr. John W. Cragun: Certainly --

Justice Felix Frankfurter: -- just might be a factor.

Mr. John W. Cragun: Certainly, the traps are more efficient.

They require fewer men.

There are more capital investment in them but they have fewer man to run them.

They efficiently supply the cannery.

There's very little loss from injured fish as there are by any other method of fishing.

They are efficient.

They've been proved that over a long time.

And now we have from eight to 11 traps, 13 this year permitted to operate by the Secretary of the Interior.

We have up over 200 authorized, only two and three and four and five years ago.

The numbers are set forth in two different appendices to the briefs, one Mr. Schifter's and one in my brief and shows the rather de minimis nature of what is left here but it is not, even what we have here an unregulated right.

The Secretary of the Interior is looking after this right.

Justice William J. Brennan: Can you tell me this, Mr. Cragun.

I noticed at page 69 that your -- well, it's that same regulation, it's page 35 of your brief.

Not more than 21 salmon fish trap sites heretofore recognized as Indian salmon fish trap location as here and after described maybe utilized for the purpose of salmon trap fishing by Indian villagers etcetera.

Does that -- does that suggest that the Secretary of the Interior has determined that this is the outside limit under any circumstances of the number of sites at which fish traps maybe authorized?

Mr. John W. Cragun: I'll so read it if you take it in conjunction with subparagraph (e), two pages later, page 37 of the red appendix during the 1960 fishing season only the following -- and you count up in there 13 out of the 21.

Justice William J. Brennan: It was suggested earlier that Section 4 of the Statehood Act is susceptible of a construction that -- that at all 250, indeed, that's -- see the numbers 334 sites where before statehood, fish trap -- use of fish trap was authorized.

Might we authorize them to Section 4.

Mr. John W. Cragun: Mr. Justice, it's inconceivable to me.

Certainly, if these people have a small remnant of the aboriginal right that they once possessed, it would relate only to their own area and it doesn't infest all Alaska.

They tried in this country with particular fishing rights as limited and usually to a particular area.

We -- this Court has dealt with many of them, the Wyman's case and the Seufert case, the Tulee case.

They're not unfamiliar, but it doesn't mean that they have a right to go into somebody else's theory and fish there.

It's not a profit good for all of Alaska.

It's a profit within their own area and of the overwhelming, both of these 300 traps were white, they're closed down.

Secretary here has identified only 21 sites that can be fished.

That's all around in Alaska.

Justice William J. Brennan: Well, perhaps -- perhaps rather I should not have troubled you with that question.

Perhaps I should put it to Mr. Calhoun later as see just precisely what is the Secretary's view to this.

Mr. John W. Cragun: I shall have -- Mr. Calhoun indicated, I don't believe he and the Secretary of the Interior are in entire agreement.

This is --

Justice William J. Brennan: The rest might --

Mr. John W. Cragun: -- one of those things where I can just sit on the sidelines and grin to all of the smugly act, let the complaint of that.

Justice William J. Brennan: Well, when he gets up, I'll ask him.

Mr. John W. Cragun: I wanted too to counter one statement that was made in the course of Mr. Rader's argument about whether Kake and Angoon ever fished with traps.

I found in the findings of fact to the Court of Claims on its October 7 opinion in Tlingit and Haida that I cited earlier.

Page 59, Finding 41, the following sentence the Indians referring to the Tlingit Indians use hook and line, spears, gill nets and that strategic stations along the coast and rivers wears and traps.

Traps weren't under many on the many aborigines on the United States but our grant, these are a bigger more costly and culturally, greatly developed trap by the side of the aboriginal traps which had to be hand woven mainly.

Justice Charles E. Whittaker: Are those the cases wherein these Indian tribes sought damages for having been excluded by the Federal Government from the fisheries or fishing rights in -- in Alaska?

Mr. John W. Cragun: Fishery including other rights.

Yes, sir.

Justice Charles E. Whittaker: And the Government takes the position there that they had no -- no principle right to intense -- we're not entitled to fish.

Mr. John W. Cragun: I am not aware that the Government takes that position, although I'm bound to confess, I do not represent the Indians in that case and I don't want to be held to it.

I would have to consult counsel in that case.

I must say this that in a reference and their note in the brief amicus curiae in the District Court, the Government doesn't intimate that it contest a right of recovery.

And since Congress authorized the suite for aboriginal rights there, I take it there would be no question raised on that issue.

Well now, I was concerned too about another aspect to Mr. Rader's argument which intimated that what is involved here is just a Seattle operation perhaps in the name of the Indians.

I'd been hampered by not much knowledge outside that the record in these cases but certainly as far as the record goes, a supplemental transcript in the complaints of Kake which commences at page 82 and the complaint of Angoon which commences at 102 in paragraphs one, two, three and four, plainly and explicitly point out that this is an Indian operation in which substantially, the whole village is engaged and on which that villagers' income and well-being depends.

In concluding, I think perhaps I ought to share with the Court an outrageous pond that lurks in the record in this case which was brought to my attention by an assistance solicitor and interior in the suit of Kake and Angoon against Egan Governor.

He said the question here was whether these Indians could have their Kake and Egan too.

[Laughter]

Chief Justice Earl Warren: Mr. Calhoun, I think Mr. Justice Brennan want to ask you a question.

Your time is up but -- I think he want to ask you a question.

Justice William J. Brennan: There are really two questions.

The first Mr. Calhoun, I sent out with -- to Mr. Cragun.

Are we to understand that this 88.2 is a determination by the Secretary of the Interior that the outside limit of sites that he may authorize is 21?

Argument of John D.calhoun

Mr. John D.calhoun: That is the understanding of the Department of Justice as the position to the Department of the Interior.

Justice William J. Brennan: Now, what is the position of the Department of Justice?

Does the Department believe that under Section 4 of the Statehood Act, he has power that as the Secretary does to authorize more sites than 21?

Mr. John D.calhoun: It is the position of the Department of Justice that Congress in enacting Section 4 reserved to itself power to direct the Secretary of the Interior that authorizes many according to the standards that they set as are necessary to meet the needs they want to fill.

At the moment, we believe there is sufficient authority under the White Act to issue more than 21 if conservation needs and the Indians needs require the issuance of more.

Justice William J. Brennan: Or allowed more --

Mr. John D.calhoun: More than 21.

Justice William J. Brennan: Does that mean then to the limit of 334 which apparently was the number of sites before other.

Mr. John D.calhoun: I would doubt on the basis of the little myth that I know about Alaskan fish runs that he could -- he could defend 300 without running into an argument of being rather arbitrary and capricious in the conduct of the administration of that statute.

But if -- if at any time, Alaska is -- may challenge his -- his performance of his duty.

I think it has standing probably to do that.

Certainly, people who were fishing in those waters have standing to challenge these regulations but nobody has attacked that his -- saying that -- nobody suggesting that the Secretary has improperly administered a congressional mandate.

Justice Felix Frankfurter: Your -- that the -- the position of your -- your possession -- the Department's position is that there is in Section 4 no quantitative limits, upon whatever rights they reserve.

Is that right?

Rebuttal of John L. Rader

Mr. John L. Rader: That is our position.

Justice William J. Brennan: Thank you.

Chief Justice Earl Warren: Very well.