METLAKATLA INDIAN COMMUNITY, ANNETTE ISLAND RESERVE, a Federally Chartered Corporation; Organized Village of Kake; and Angoon Community Association, Appellants,
William A. EGAN, Governor of the State of Alaska, and The State of Alaska, Appellees.
Richard Schifter, Washington, D. C., Theodore H. Little, Clarkston, Wash., N.C. Banfield, Juneau, for appellant, Metlakatla Indian Community.
John W. Cragun, Washington, D. C., N.C. Banfield, Juneau, for appellants, Organized Village of Kake and Angoon Community Assn.
Ralph E. Moody, Atty. Gen. of Alaska, Douglas L. Gregg, special counsel to Governor, Juneau, Perry W. Morton, U.S. Asst. Atty. Gen., for appellees.
Roger P. Marquis, Dept. of Jusitce, Washington, D. C., for the United States, amicus curiae.
Before NESBETT, C.J., and DIMOND and AREND, JJ.
NESBETT, Chief Justice.
These controversies arose out of the determination of the State of Alaska to prohibit the use of all fish traps for the taking of salmon for commercial purposes in all the coastal waters of the state. Appellants contended that their fish traps were exceptions to the prohibitions contained in the constitution and laws of Alaska because their operation had been authorized by the Secretary of the Interior of the United States, who, they claimed, had the exclusive right to regulate fishing by Indians in Alaska. The United States District Court for the District (Territory) of Alaska in Juneau, on July 2, 1959, 174 F.Supp. 500, acting as an interim or transitional state court, dismissed appellants' suits to enjoin the state from enforcing acts making it a crime to erect, moor, maintain or operate a fish trap. That court denied appellants' motions for preliminary injunctions pending appeal to the Supreme Court of the United States. The Supreme Court of Alaska had not yet been organized. Mr. Justice Brennan, on July 11, 1959, granted a stay pending appeal to the United States Supreme Court.  On June 20, 1960, the United States Supreme Court in an opinion reserved decision on the merits of the appeals and directed appellants to pursue dormant pending appeals in the then existing Supreme Court of Alaska in order to give that court an opportunity to rule on questions open to it for decision.  This court has jurisdiction to hear appeals from final judgments concerning state matters rendered in the United States District Court for the District (Territory) of Alaska after January 3, 1959  and accepts jurisdiction of these appeals.
The historical basis for the attitude of the state toward fish traps as well as the nature of the fish trap itself will be discussed briefly Before attempting to deal with the many issues presented by these cases.
Since time immemorial Alaska has been blessed with a natural food resource in the form of annual migrations of salmon. From late spring until fall most of its fresh water rivers and streams are, at one time or another, visited by hordes of salmon that have migrated shoreward from the open sea. After periods varying from two to eight years at sea the homecoming salmon have increased in size from fingerlings to maturity and to weights ranging to sixty pounds and above in some species. As a life sustaining food the salmon is hardly exceled and because of its abundance in Alaskan waters it has always been one of the basis food resources of the people as well as the basis of their main industry. Responding to instinct the sea matured salmon seasonally form in huge schools in the sea enroute to the mouths of the fresh water rivers and streams they will soon enter. At a time dictated by instinct, but governed to some extent by water conditions and other factors, the schools then commence a mass movement from the sea toward the mouths of the rivers and streams. It is at this point in their migration that they are caught in great quantities by the fishing methods to be mentioned. Those escaping nets and traps proceed up the rivers and tributary streams to the place of their spawning where they in turn spawn and with few exceptions die. 
Harvesting some portion of this natural resource for food has always been an annual necessity for most of the native population and many of the white settlers. Commercial salmon fishing is the principal source of income for a large portion of Alaska's labor force. With the coming of the white man primitive methods of catching salmon gave way to what are generally considered the three most efficient methods: (1) gill nets--consisting of lengths of net strung between buoys secured to the tidelands floor by lines and stakes, with the nets usually going dry at low tide; (2) purse seines--where nets are maneuvered around congregations of fish in deep water by the use of powered boats; (3) fish traps--unquestionably the most productive method of catching salmon ever used. A trap consists of tall stakes or mechanically driven piling extending from the shore to varying distances seaward, depending on the depth of the water. Wire or webbing is stretched across the stakes or piling from the shore to the seaward end and from the ocean bottom upward to a point above high water. Located at the seaward end is an extended wing or hook and an opening into the heart wing or hook and the webbing is on the ocean bottom fish cannot pass around the trap at the shoreward end. One tendency of migrating fish is to parallel the shoreline and travel with the incoming tide. Fish stopped by the webbing of a trap will eventually follow it seaward in an attempt to by-pass the obstruction. The wing or hook is constructed so as to discourage by-passing and divert the fish into the heart and pot where they remain. With some variations in construction, floating traps adapted to deep water are commonly used and are highly productive.
Public opposition to the trap appeared in Alaska when it became obvious that the fishery resource was being depleted.  Opponents claimed that traps wiped out entire schools of salmon headed for specific streams; that even when this did not happen they trapped an excessive percentage of the
fish of a given school; that they trapped not only salmon but also fish of many other species, which, once trapped, died in the pot without being utilized for any purpose. Proponents, on the other hand, argued that the very efficiency of traps commended their use; that they produced a more marketable product because the fish were killed with less violence and reached the cannery sooner and fresher; and that the dwinding yearly salmon runs were the result of overfishing by all methods.
The authority granted to the Territory of Alaska by the Organic Act of 1912  did not extend to the regulation of fish and game. From 1906 until 1924 such regulation of the Alaska fisheries as occurred was directed by the Secretary of Commerce.  The White Act of June 6, 1924,  Broadened the scope of the regulatory power. Under Reorganization Plan No. II in 1939 the responsibility for administering the act was transferred to the Secretary of the Interior.  The use of fish traps was permitted by regulation along specific areas of the coastline. The right to construct and operate a trap in any area declared to be available for trap fishing was open to all. Trap sites were never designated by the Secretary as belonging to any person or group prior to his granting of trap site privileges to appellants on March 7, 1959. The spacing between traps, and other regulations prescribed, resulted in limiting the number of trap site locations available within a given area. The legal prerequisites to operating a fish trap were that the trap be located in an area open to the use of traps, that the operator have a War Department permit to construct an obstruction to navigation, and after the Territory was organized, a fish trap license issued by the Territory of Alaska. The annual cost of constructing a trap varied between several thousand dollars for a hand driven stake trap to in excess of ten thousand dollars for a pile driven trap. The cost of construction and operation excluded the average Alaska fisherman from its use and in time the operation of fish traps became generally concentrated in the cannery operators and owners, it not being uncommon for a cannery corporation to own several dozen traps.  Fish traps were bought and sold. With few exceptions the right of the purchaser to annually erect and operate the trap on the tideland location previously occupied by the seller was not questioned by other persons because of a custom and usage observed by Alaska fishermen, that if the person who fished a given tideland location the previous year timely returned and prepared to fish that location the following year, his moral priority would be respected. Legally, all that could be sold was the apparatus and equipment used in the trap. Alaska courts have consistently held that no person could acquire a vested right in a tideland fishing location and that the first person to timely commence the erection of a trap was entitled to fish that location for that year, if the trap was completed and ready to fish on the opening day of the season.  The same customs were generally observed and the same law, with slight variations, governed with regard to gill net tideland fishing sites.  The only instance, prior to Statehood, of an acquisition by any person or group of an exclusive right to operate a fish trap in Alaska waters is that which came to the Metlakatla Indians througha combination of unusual circumstances,
which will be discussed later in this opinion.
The very first session of the Alaska Territorial Legislature in 1913 memorialized Congress for legislation which would limit the fishing efficiency of the trap.  In 1913, 1915, and regularly thereafter, the Territorial Legislature memorialized Congress that no legislation be enacted whereby any right or title to any fish trap site in Alaska waters be granted.  In 1921 the Territorial Legislature memorialized Congress, attributing the diminishing salmon supply to the use of fish traps and requesting regulation of that method of fishing.  In 1924 Mr. Sutherland, Alaska's delegate to Congress, testified Before a Congressional Committee during hearings on the White Act as follows:
'* * * when the fish are congregated in one body moving toward the parent stream if by accident they come in contact with a trap lead and the lead fish enters the trap it is more than probable that the entire supply of that stream to the last fish is taken, and therefore a great many of the smaller streams in Alaska are barren of fish, and any number of men in Alaska will tell you by the method of trap the entire supply is exterminated.' 
The number of fish traps permitted under the Secretary's regulations ran into the several hundreds. Regular memorials to Congress recommending complete abolition of fish traps were passed by the Alaska Territorial Legislature commencing in 1931.  At least one unsuccessful attempt was made to tax the fish trap out of use.  In 1948 a referendum by the people of Alaska resulted in a vote of 19,712 to 2,624 in favor of abolition of fish traps.
On February 5, 1956, the Alaska Constitutional Convention adopted the Constitution of Alaska. Article VIII, section 15 stated:
'No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.'
Ordinance No. 3 of that constitution, Laws 1959, p. 54, dealt exclusively with fish traps and provided that each elector who voted on ratification of the constitution could, on the same ballot, vote for or against adoption of Ordinance No. 3, which prohibited the use of fish traps for the taking of salmon for commercial purposes in the coastal waters of the state. The ordinance provided that if it were adopted by a majority vote, then on the effect date of the constitution the following should become operative:
'As a matter of immediate public necessity, to relieve economic distress among individual fishermen and those dependent upon them for a livelihood, to conserve the rapidly dwindling supply of salmon in Alaska, to insure fair competition among those engaged in commercial fishing, and to make manifest the will of the people of Alaska, the use of fish traps for the taking of salmon for commercial purposes is hereby prohibited in all the coastal waters of the State.'
The vote of the people of Alaska on April 24, 1956 was 21,285 to 4,004 in favor of adopting Ordinance No. 3.
On July 7, 1958, Congress passed the Alaska Statehood Act providing for the
admission of Alaska into the Union.  Section 6(e)  of this act provided in part that the administration and management of the fish and wildlife resources of Alaska should be retained by the federal government, under existing laws, until the first day of the first calendar year following the expiration of ninety legislative days after the Secretary of the Interior had certified to the Congress that the Alaska State Legislature had made adequate provision for the administration, management, and conservation of the said resources in the broad national interest.
Alaska became a state on January 3, 1959.  The Alaska State Legislature met immediately thereafter and on February 25, 1959 a law became effective making it unlawful to erect, moor or maintain fish traps.  On March 7, 1959 the Secretary of the Interior issued an order prohibiting the use of fish traps in Alaska, to be effective on April 18, 1959,  but excluding fish traps at Metlakatla, Kake and Angoon as enumerated, a total of eleven traps. The order recited as its authority, section 1 of the White Act.  The Secretary's theory was that under section 6(e) of the Alaska Statehood Act  he was required to manage Alaska's fish and wildlife until the state took over that responsibility, that on January 3, 1959 when the act became effective, Ordinance No. 3 also became effective and required that he abolish all fish traps in Alaska since he was acting in a dual capacity as trustee-administrator to enforce the laws of the state and federal government. The Secretary interpreted the wording 'under dexisting laws' in section 6(e) as including Ordinance No. 3, which, under his theory, amended the White Act. The Secretary's action and views were upheld.  The validity of his act in excluding appellants' traps from the effect of the order was not Before the court.
On April 17, 1959 a comprehensive act establishing an organization for the management of Alaska's fish and game resources was enacted by the first state legislature.  On the same date an act prohibiting the operation of fish traps within the state, amending the previous act on fish traps  and prescribing penalties became effective.  On May 21, 1959 the Governor of Alaska wrote to the Secretary of the Interior pointing out that Ordinance No. 3 prohibited fish traps, owned or otherwise, that the state legislature had made operation of fish traps a crime, that regulation 115.26 of the order of March 7, 1959, permitting fish traps on the tidelands or submerged lands of Alaska would impair the sovereign rights of the State of Alaska
and that state officials had been instructed to enforce the constitution and laws. He asked that the Secretary reconsider regulation 115.26. 
On or about June 17, 1959 state officers arrested several persons and seized one trap on which pre-season work was being performed. Actions for restraining orders were immediately commenced by appellants in the United States District Court for the District (Territory) of Alaska in Juneau.
After dismissal in that court, notices of appeal were filed with the Supreme Court of the United States on August 6, 1959. Notices of appeal were filed in this court as a precautionary matter after its organization. On February 19, 1960 an order was entered by this court holding all proceedings on the appeals in abeyance pending determination by the Supreme Court of the United States of the question of its jurisdiction over the appeals then pending in that court.
All three appellants contend that the Alaska constitution and statutes prohibiting fish traps are not applicable to them because, in adopting the constitution, the people of Alaska disclaimed right or title in or jurisdiction over Indian fishing rights and that the Alaska Statehood Act reserved absolute jurisdiction and control over Indian fishing rights to the United States.
Since most of the issues turn on the question of what rights Alaska disclaimed with respect to native fishing rights, we shall first address ourselves to that question in the knowledge that its answer will simplify solution of the other issues.
The road to Statehood for Alaska was long and difficult. The first bill providing for Statehood for Alaska was introduced in Congress in 1916. The first memorial to Congress from the Territorial Legislature petitioning for Statehood was passed in 1945.  Regular petitions were made thereafter without success. Finally, in 1955 the Territorial Legislature provided for a constitutional convention.  Elected delegates adopted a constitution on February 5, 1956 which was ratified by the people on April 24, 1956. This constitution served as a basis for subsequent petitions to Congress for Statehood and can be considered as an offer to accept the privileges and responsibilities
of that status in accordance with its terms.  The disclaimer provisions relied upon by appellants are contained in section 12 and 13 of article XII. 
Some two years and three months after the people of Alaska had adopted their constitution Congress passed the Alaska Statehood Act.  Section 1 provided that the State of Alaska would be admitted into the Union on an equal footing with the other states in all respects whatsoever, subject to the issuance of a proclamation required by section 8(c) of the act. Section 1 found that the Alaska constitution was republican in form, in conformity with the Constitution of the United States and the principles of the Declaration of Independence, '* * * and is hereby accepted, ratified, and confirmed'.
Section 4 of the Alaska Statehood Act is a direct response by Congress to the provisions contained in the five sentences of section 12 of article XII of the Alaska constitution. The two sections constitute a compact between sovereigns.  For purposes of comparison, each sentence of section 12 of article XII of the Alaska constitution is separately quoted immediately above that portion of section 4 of the Alaska Statehood Act which represents Congress' response to that sentence:
'The State of Alaska and its people forever disclaim all right and title in or to any property belonging to the United States, or subject to its disposition, and not granted or confirmed to the State or its political subdivisions, by or under the act admitting Alaska to the Union.' First sentence, section 12, article XII, Alaska Constitution.
'As a compact with the United States said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State or its political subdivisions by or under the authority of this Act, the right or title to which is held by the United States or is subject to disposition by the United States, * * *.' Section 4, Statehood Act.
A comparison of the offer with the response as above set forth indicates definite agreement as to the future status of United States property.
'The State and its people further disclaim all right or title in or to any property, including fishing rights, the right or title to which may be held by or for any Indian, Eskimo, or Aleut, or community thereof, as that right or title is defined in the act of admission.' Second sentence, section 12 of article XII, Alaska Constitution.
'* * * and to any lands or other property (including fishing rights), the
right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives; * * *.' Section 4, Alaska Statehood Act.
A comparison between the offer and response does not indicate definite agreement. The offer to disclaim by the state was conditioned on definition in the act of admission of the right or title to be disclaimed. The response merely repeated the offer to disclaim. It did not comply with the condition by defining the right or title.
'The State and its people agree that, unless otherwise provided by Congress, the property, as described in this section, shall remain subject to the absolute disposition of the United States.' Third sentence, section 12, article XII, Alaska Constitution.
'* * * that all such lands or other property, belonging to the United States or which may belong to said natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority, except to such extent as the Congress has prescribed or may hereafter prescribe, and except when held by individual natives in fee without restrictions on alienation * * *.' Section 4, Alaska Statehood Act.
The above offer and response indicate agreement as to property, without specific mention of fishing rights.
'* * *. Provided, That nothing contained in this Act shall recognize, deny, enlarge, impair, or otherwise affect any claim against the United States, and any such claim shall be governed by the laws of the United States applicable thereto; and nothing in this Act is intended or shall be construed as a finding, interpretation, or construction by the Congress that any law applicable thereto authorizes, establishes, recognizes, or confirms the validity or invalidity of any such claim, and the determination of the applicability or effect of any law to any such claim shall be unaffected by anything in this Act: * * *.'
This portion of section 4 of the Alaska Statehood Act has no direct relation to any of the sentences of section 12 of article XII of the constitution. 
'They further agree that no taxes will be imposed upon any such property, until otherwise provided by the Congress.' Fourth sentence, section 12 of article XII, Alaska Constitution,
'This tax exemption shall not apply to property held by individuals in fee without restrictions on alienation.' Fifth sentence, section 12 of article XII, Alaska Constitution.
'* * * And provided further, That no taxes shall be imposed by said State upon any lands or other property now owned or hereafter acquired by the United States or which, as hereinabove set forth, may belong to said natives, except to such extent as the Congress has prescribed or may hereafter prescribe, and except when held by individual natives in fee without restrictions on alienation.' Section 4, Alaska Statehood Act.
The fourth and fifth sentences and the response appear to have sufficient definiteness to be offers and acceptances.
Section 13 of article XII of the Alaska constitution is construed to be a blanket consent by Alaska to such proper reservations of rights or powers to the United States as may be contained in the act admitting Alaska to the Union.
The compact or contract between Alaska and the United States became effective upon approval of the terms of the Alaska Statehood Act by the voters of Alaska.  Section 8(b) of the Alaska Statehood Act required that three propositions be submitted to the
qualified voters of Alaska. Only the third proposition is of interest here.  This proposition was approved by a vote of 40,739 to 7,500 on August 26, 1958. On June 25, 1959 Congress enacted the Alaska Omnibus Act. Section 2(a) amended that portion of section 4 of the Alaska Statehood Act which was a response to the third sentence of section 12, article XII of the Alaska constitution. 
Appellants argue that the amendment is a part of the compact and merely clarified the original intent of Congress. We cannot accept this reasoning. It is our view that the amendment forms no part of the compact between Alaska and the United States. It was not enacted until ten months after the voters of Alaska had ratified the compact, six months after Alaska had attained Statehood, and three days after these controversies had arisen. This portion of section 4 reserves absolute jurisdiction and control in the United States. As originally enacted it applied only to 'lands or other property'. As amended, it purports to include fishing rights. In the portion of section 4 immediately preceding, fishing rights were parenthetically included. It is only logical to assume that if it had been intended that fishing rights be included in the section following, along with 'lands or other property', the same phraseology would have been employed. The conciseness of and correlation between the pertinent sentences of the Alaska constitution and the responding portions of section 4 leave no room for the construction appellants urge.
What right or title to Indian fishing rights might the state have disclaimed under the terms of the second sentence of section 12, article XII and the responding portion of section 4, assuming there was a sufficient area of agreement to create a compact on this subject? The state offered to disclaim as to right or title 'held' by or for the persons named. The response described the right or title as 'held' by or for natives. There is no evidence of an intent on the part of either sovereign that any new or additional rights in fishing rights be established by the compact itself. The question then becomes one of what 'right or title' to fishing rights was 'held' at the time the compact was formed.
A review of all known legislation enacted by Congress since the purchase of Alaska from Russia that might have established a 'right or title' in Alaska natives shows that Congress evidenced some concern for the natives by permitting them to kill fur seals for their needs,  and permitting them, along with miners, prospectors, explorers and travelers, to kill game out of season when in absolute need of food and no other food was available.  The Act of May 17,
1884,  establishing a civil government in Alaska provided:
'* * * That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.'
This provision was not confined to Indians. The first act of Congress with respect to fisheries in Alaska was passed on June 14, 1906,  making it unlawful for a non-citizen, or one who had declared his intention but was a non-resident, or any company not organized under the laws of the United States or of a state, or any person not a native of Alaska, to catch fish except with rod, spear or gaff. In the same year the first act to regulate commercial fisheries was passed.  This act taxed fishing enterprises, exempting those who operated hatcheries for restocking, restricted the use of nets and seines, provided for closed periods and penalties for violations, but made no mention of the natives.
Section 1 of the White Act  stated that its purpose was that of '* * * protecting and conserving the fisheries of the United States in all waters of Alaska * * *.' The Secretary of Commerce was required to regulate the fisheries,
'Provided, That every such regulation made by the Secretary of Commerce shall be of general application within the particular area to which it applies, and that no exclusive or several right of fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce. * * *' (Emphasis added.)
The emphasized portion of the above quoted section was generally the law of Alaska prior to enactment of the White Act.  This section precludes the possibility that the Secretary might have created any rights in natives subsequent to its enactment in 1924. On the only occasion that the Secretary of the Interior ever attempted to create an exclusive right of fishery in Alaskan Indians, with the exception of the cases under consideration, the United States Supreme Court said through Mr. Justice Reed:
'It would take specific and unambiguous legislation to cause us to rule that Congress intended to authorize the Secretary of the Interior to alienate the Alaska ...