protecting rights of the Alaskan natives, who, until very recently, have constituted the larger, as well as the more permanent, part of the territorial population. Those rights have, in consideration of historic tradition and economic necessity, been construed to include the occupancy of water and land under water as well as of land above water.

This national policy finds embodiment in the act of June 19, 1935 (49 Stat. 388), authorizing suit against the United States by the Tlingit and Haida Indians of Alaska. These are the Indians inhabiting the southeast coast of Alaska and most directly interested in the question considered in this opinion. It is reported that their chief interest in the jurisdictional act in question arises from interferences with fishing rights. The language of the jurisdictional act is very broad. Its substantive provisions are contained in section 2, which declares:

All claims of whatever nature, legal or equitable, which the said Tlingit and Haida Indians of Alaska may have, or claim to have, against the United States, for lands or other tribal or community property rights, taken from them by the United States without compensation therefor, or for the failure or refusal of the United States to compensate them for said lands or other tribal or community property rights, claimed to be owned by said Indians, and which the United States appropriated to its own uses and purposes without the consent of said Indians, or for the failure or refusal of the United States to protect their interests in lands or other tribal or community property in Alaska, and for loss of use of the same, at the time of the purchase of the said Russian America, now Alaska, from Russia, or at any time since that date and prior to the passage and approval of this Act, shall be submitted to the said Court of Claims by said Tlingit and Haida Indians of Alaska for the settlement and determination of the equitable and just value thereof, and the amount equitably and justly due to said Indians from the United States therefor; and the loss to said Indians of their right, title, or interest, arising from occupancy and use, in lands or other tribal or community property, without just compensation therefor, shall be held sufficient ground for relief hereunder; and jurisdiction is hereby conferred upon said Court to hear such claims and to render judgment and decree thereon for such sum as said court shall find to be equitable and just for the reasonable value of their said property, if any was so taken by the United States without the consent of the said Indians and without compensation therefor; that from the decision of the Court of Claims in any suit or suits prosecuted under the authority of this Act an appeal may be taken by either party, as in other cases, to the Supreme Court of the United State. [Italics supplied.]

It will be seen that under the foregoing underlined language the Federal Government undertakes to make good the losses suffered by Alaska Indians from private invasions of their rights. The question of the extent of these rights is thus no longer simply a question between the Indians and those private individuals or firms who are

See unpublished manuscript of William L. Paul, Jr., “Historical and Legal Materials Relative to the Tlingit and Haida Claims Act of 1935."

February 13, 1942

displacing the Indians from their possessions. The Department of the Interior, therefore, if Indian rights have hitherto been invaded, is under a double duty-a duty to the taxpayers of the United States as well as to the Indians-to exercise whatever powers it has to prevent the continuance of such invasions and to prevent the piling up of losses which are to be made good out of the Federal Treasury.

The national policy expressed in the foregoing statutes is not negated by the fact that in its administration of the 1924 Alaska fishing law the Department of Commerce for many years, and the Department of the Interior since July 1, 1939, have given no special recognition to Indian rights, although Indians have frequently protested against their displacement from waters that have been an ancestral source of food and livelihood. It may be that the Indians, in the assertion of their claims, have not had adequate legal representation, and it may be that the departments concerned have not made effective provision for the formal presentation and consideration of such claims, but as a matter of law even if such claims had heretofore been fully considered and formally rejected such action would not be legally effective to destroy any Indian possessory rights. The Supreme Court in the Walapai case, rejecting the argument of the railroad that the Government had administratively recognized the right of the railroad and the absence of Indian right, declared:

Such statements by the Secretary of the Interior as that "title to the odd-numbered sections" was in the respondent do not estop the United States from maintaining this suit. For they could not deprive the Indians of their rights any more than could the unauthorized leases in Cramer v. United States, supra. [314 U. S. 339, 360.]

Furthermore, it must be remembered that the Indians of Alaska, like those of the continental United States, are largely dependent upon the Federal Government for the vindication and protection of their property rights. Only within the past two or three years have the Indian groups of Alaska achieved, under Federal supervision, a form of community organization which permits them to act on their own behalf, as legal entities, in the protection of their legal rights. The fact therefore, that Indian fishing rights have not received adequate protection in the past is not a ground upon which the Federal Government could rely in denying the present existence of these rights. As I

8 Alaska Pacific Fisheries v. United States, 248 U. S. 78 (1918), aff'g 240 Fed. 274; Territory of Alaska v. Annette Island Packing Co., 289 Fed. 671 (C. C. A. 8th, 1923), cert. denied, 263 U. S. 708; 49. L. D. 592 (1923); 28 L. D. 535 (1899). "The extension of the Wheeler-Howard Act to Alaska has removed almost the last significant difference between the position of the American Indian and that of the Alaskan native." Cohen, Handbook of Federal Indian Law (1940, 406.

See Cohen, Handbook of Federal Indian Law, 413-415.

593212-45-33

had occasion to point out in my opinion on "Powers of Indian Tribes," approved October 25, 1934 (55 I. D. 14):

It is a fact that State governments and administrative officials have frequently trespassed upon the realm of tribal autonomy, presuming to govern the Indian tribes through State law or departmental regulation or arbitrary administrative fiat, but these trespasses have not impaired the vested legal powers of local self-government which have been recognized again and again when these trespasses have been challenged by an Indian tribe. "Power and authority rightfully conferred do not necessarily cease to exist in consequence of long nonuser" (United States ex rel. Standing Bear v. Crook, 5 Dill. 453, 460). The WheelerHoward Act, by affording statutory recognition of these powers of local selfgovernment and administrative assistance in developing adequate mechanisms for such government, may reasonably be expected to end the conditions that have in the past led the Interior Department and various State agencies to deal with matters that are properly within the legal competence of the Indian tribes themselves. [Pp. 28-29.]

Finally, it must be noted that the allowance of non-Indian fishing in areas subject to Indian possessory rights is a continuing wrong, rather than a wrong which, once committed, creates supervening and inalienable rights in third parties. It is well settled that by allowing and licensing the use of particular areas for fish traps the Federal Government does not recognize any permanent or proprietary interest therein.10 Thus while preexisting Indian proprietary interests have been violated they have not thereby been permanently extinguished. The Indian who has been forbidden from fishing in his back yard has not thereby lost his aboriginal title thereto.

I conclude that aboriginal occupancy establishes possessory rights in Alaskan waters and submerged lands, and that such rights have not been extinguished by any treaty, statute, or administrative action.

The foregoing considerations are determinative of the question presented for my opinion. The first part of this question, i. e., whether Indians of Alaska have any fishing rights which are violated by control of particular trap sites by non-Indians under departmental regulations, must be answered in the affirmative, subject to the taking of proof on the facts respecting the location and extent of such rights.

10 The fact that one has occupied the site the season before or for a number of seasons gives no prescriptive right to the site. Thlinket Packing Co. v. Harris & Co., 5 Alaska 471 (1916); Columbia Salmon Co. v. Berg, 5 Alaska 538 (1916); Alitak Packing Co. v. Alaska Packers Ass'n, 6 Alaska 277 (1920); Alaska General Fisheries v. Smith, 7 Alaska 635 (1927).

It is true that the Secretary of War, under section 10 of the Rivers and Harbors Act of March 3, 1899 (30 Stat. 1121, 1151), issues permits which certify that the erection of a fish trap at the point named will not interfere with navigation. These permits give no property right, and the War Department makes no determination between several applicants as to their right to occupy the trap site. The Territory of Alaska issues licenses to take fish from Alaskan waters, but these licenses confer no property right and no determination is made between applicants as to the right to occupy a trap site. Thlinket Pack ing Co. v. Harris & Co., supra; Columbia Salmon Co. v. Berg, supra; Alitak Packing Co. V. Alaska Packers Ass'n, supra; Alaska General Fisheries v. Smith, supra; Cummins v. Chicago, 188 U. S. 410 (1903).

February 13, 1942

The second part of the question presented, i. e., whether such rights require or justify the closing down of certain trap sites or the allocation of trap sites to Indian groups or other remedial action by the Secretary of the Interior, must likewise be answered in the affirmative, and the question of what particular method of redress should be selected must be considered primarily a matter of policy.

Available evidence indicates that the possessory rights traditionally asserted by Alaskan natives are exclusive rights, under which the right to exclude others from a given area is an integral part of the right itself. In this situation the Interior Department would have no authority to open up to public fishing any areas subject to such possessory rights, any more than it could open to the public a private cannery, whether on land or afloat.

There may, however, be certain native groups that assert and show only non-exclusive rights. These would still be property rights, as easements are property rights, and entitled to protection and respect. The opening up of such areas to non-Indian holders under circumstances resulting in the actual exclusion of the interested Indians would be, this Department has heretofore held, a violation of these native property rights, beyond the legal powers of the Department (26 L. D. 512 (1898)). Regulations heretofore issued, which allow the first comer to set up a trap in designated areas and thereafter provide that no other person may trap fish within a specified distance (e. g., 50 C. F. R. 205.10), do result in the actual exclusion of interested Indians, if applied to areas of water or submerged land in which such Indians have private rights." Therefore the allowance of fish trap sites to non-Indians within such areas would be legally unauthorized.

Under these circumstances the Department might either forbid the establishment of fish traps except by persons having possessory rights in such areas, or forbid the establishment of any fish traps at all therein, or, as a final alternative, exclude such areas entirely from the domain of departmental control. In no event would there be occasion for a positive allocation by the Department of fish trap sites to Indians, but the effect of recognizing pre-existing Indian possessory rights in waters or submerged land would be to render "allocation" unnecessary for the protection of those rights. All that would be

"In actual practice, though not in law, holders of trap sites are considered owners. If a trap site is once occupied, others will not attempt to jump it the following season. The high cost of trap equipment makes it uneconomic to race for new sites each season (Gregory and Barnes, "North Pacific Fisheries," pp. 52, 85 fn. 4), and the person who has once occupied a trap site has his equipment close at hand, giving him an advantage in gaining prior possession each year which would be costly to overcome. The result of this practical situation is that trap sites are in fact considered as owned to the extent that they are bought and traded and large companies can obtain and hold numerous traps in spite of the fact that each year theoretically all trap sites are open to competition for prior possession.

necessary would be the exclusion of private parties attempting to interfere with the enjoyment by the Indians of the rights to which they may lay just claim.

The foregoing considerations determine the validity and character of Indian possessory rights in Alaskan waters and submerged lands. The question of the localities in which such rights exist is one of fact which this opinion does not purport to foreclose.

Approved:

HAROLD L. ICKES,

Secretary of the Interior.

NEED FOR CONSENT BY COAL PROSPECTING PERMITTEE AND APPLICANT FOR COAL LEASE TO GOVERNMENT EXPLORATION FOR COAL

Opinion, February 13, 1942

MINERAL EXPLORATION AGREEMENTS-INTEREST OF COAL PROSPECTING PERMITTEE UNDER 1920 LEASING ACT-INTEREST OF APPLICANTS FOR LEASES BASED ON DISCOVERIES AND IMPROVEMENTS TERMS OF EXPLORATION AGREEMENTS WITH PERMITTEES AND LEASE APPLICANTS-EXPLORATION FOR OTHER MINERALS. Since a coal prospecting permittee under the leasing act of February 25, 1920, possesses a valuable right which may be interpreted as exclusive even against the Government, the Government should obtain the consent of the permittee to exploration for coal by the Government in an instrument defining the interests of both parties.

It is recommended that such an agreement provide that any discovery made by the Government shall not prevent the granting to the permittee of a lease without competitive bidding covering all coal discovered, provided the permittee has cooperated in the exploration by the Government in the manner specified in the agreement, and with the understanding that any such lease shall provide such special terms of rental and royalty and such other requirements with respect to minerals discovered by the Government as the Secretary of the Interior may deem appropriate.

A similar agreement should be executed with an applicant for a lease who has made a coal discovery under a prospecting permit and with an applicant for an extension of a prospecting permit who has made substantial improvements or investments for prospecting under his permit.

No agreement is required where there has been filed and not yet granted an ap plication for a permit or for an extension of a permit under which no substantial improvements nor investments have been made. The Bureau of Mines should request the General Land Office to deny any such application when the Bureau of Mines intends to explore the area itself.

No agreement with a prospecting permittee is necessary where the Bureau of Mines intends to explore for minerals other than those covered by the prospecting permit.