Stanley Forman Reed

“ A right to fish locally is too important to the natives in Alaska for us to conclude from this record that the Secretary would have promulgated the prohibition to fish for salmon in reservation waters without the exception in favor of the natives. We have no doubt, however, that the White Act authorizes the establishment of White Act preserves or closed areas in reservations created, as the Karluk Reservation, under § 2 of the Act extending the Wheeler-Howard Act to Alaska. ”

“ If that power were broad enough to enable the Secretary to designate nonrevocable or permanent reservations of all Alaska fishing grounds for the sole benefit of natives living in villages adjacent to the fisheries, it might place in his hands the power to grant the natives the right to exclude all other fishermen from the fisheries. In this present case, for example, it might mean that the native residents of the Karluk Reservation would have the perpetual use and enjoyment of this valuable Karluk fishery for themselves and their licensees. ”

“ 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. ”

“ The White Act fishing preserves were not intended to furnish a monopoly to a favored few. Whatever may be the powers of the Department of the Interior or the natives as to regulating the entrance of persons other than natives in possession of Karluk Reservation into or on the area of land and water in that reservation, [52] they are not broad enough to allow the use of the White Act sanctions to protect the reservation against trespass. White Act sanctions are for White Act violations. ”

“ The percentage of each canner's pack that comes from the reserved waters is so large that the trial court found irreparable injury to the packers if they could not obtain the catch of the reservation. '* * * no other replacement source of such salmon for their canneries on Kodiak Island is available to them.' The canners' investment is substantial, running from two to five hundred thousand dollars respectively. The fishing is done by men who own their own three- to four-man boats, use similar company boats or operate under boat buying contracts. ”

“ To interpret the clause 'or any other public lands which are actually occupied by Indians or Eskimos within said Territory' to describe only land above mean low tide is too restrictive in view of the history and habits of Alaska natives and the course of administration of Indian affairs in that Territory. The title to the uplands and waters in question is in the United States. [34] The fisheries as well as the uplands are subject to its present control. ”

“ If respondents show that they are without an adequate remedy at law and will suffer irreparable injury unless the enforcement of the alleged invalid regulation is restrained, a civil court will enjoin. [12] While ordinarily criminal prosecutions will not be restrained even under an invalid statute, [13] a civil action will lie in exceptional circumstances that make an injunction necessary to effectually protect property rights. ”

“ They ask only the same rights and protection given the white man.'↑ 'Now, therefore, I, Woodrow Wilson, President of the United States of America, by virtue of the power in me vested by the laws of the United States, do hereby make known and proclaim that the waters within three thousand feet from the shore lines at mean low tide of Annette Island, Ham Island, Walker Island, Lewis Island, Spire Island, Hemlock Island, and adjacent rocks and islets, located within the area segregated by the broken line upon the diagram hereto attached and made a part of this proclamation ”

“ The District Court granted the permanent injunction and held invalid both the regulation and the land order. 67 F.Supp. 43. On the same grounds the Court of Appeals for the Ninth Circuit affirmed the order for permanent injunction. 165 F.2d 323.
(a) At the outset the United States contends that the Secretary of the Interior is an indispensable party who must be joined as a party defendant in order to give the District Court jurisdiction of this suit. ”

“ The presidential power over reservations is made specific by the Act of June 25, 1910. [2] Another statutory provision, however, is the principal basis for Order 128. This is s 2 of the Act of May 1, 1936, 49 Stat. 1250. This act was passed to extend to Alaska the benefits of the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, 25 U.S.C.A. § 461 et seq., and to provide for the designation of Indian reservations in Alaska. ”

“ For the validity of the proclamation reliance was placed upon his power to reserve lands for reservations without specific authority. See United States v. Midwest Oil Co., supra. This Court affirmed the decree as to the waters within 3,000 feet of the shore lines. ”