TEE-HIT-TON INDIANS
v.
UNITED STATES.

*203 James Craig Peacock, Washington, D. C., for plaintiff. Williams, Myers & Quiggle, Martin W. Meyer, Washington, D. C., William L. Paul, Jr., Juneau, Alaska, Frederick Paul, Seattle, Wash., John E. Skilling, and John H. Myers, Washington, D. C., were on the briefs.

Ralph A. Barney, Washington, D. C., with whom was Perry W. Morton, Asst. Atty. Gen., for defendant.

Before PRETTYMAN, Circuit Judge, JONES, Chief Judge, and LITTLETON, WHITAKER and MADDEN, Judges.

Writ of Certiorari Granted June 7, 1954. See 74 S. Ct. 864.

MADDEN, Judge.

This is a suit by the Tee-hit-ton Indians, a "clan" of American Indians in Alaska. They are descendants of the earliest known native inhabitants of an area of land in southeastern Alaska. They claim that a compensable interest in land belonging to them was taken when the United States, on August 20, 1951, agreed to sell to a pulp and paper company all merchantable timber on a specified portion of the land. The Government's agreement was authorized by two statutes, the most directly pertinent of which is the Joint Resolution of August 8, 1947, 61 Stat. 920. Our jurisdiction is based upon Section 1505 of the Judicial Code, 28 U.S.C. § 1505.

The Government filed its answer to the plaintiff's petition and the plaintiff made a motion that the court enter an order under its Rule 38(b), 28 U.S.C., limiting the issues, for the time being, to certain issues, the solution of which might make unnecessary the taking of voluminous evidence as to use, occupation, possession and value of large and remote areas in Alaska. The court granted the plaintiff's motion and specified six issues for trial. The resolution of these issues required the taking of some evidence, which was taken before a commissioner of this court, and consisted *204 largely of public documents and historical and scientific writings. The commissioner has made a report to the court, finding the facts which he regarded as pertinent to the six questions posed by our order made under Rule 38(b). The first of the questions is:

"1. Is the plaintiff an `identifiable group of American Indians residing within the territorial limits of * * * Alaska' within the meaning of 28 U.S.C. § 1505?"

We answer this question in the affirmative. There seems to be no difficulty in identifying the Tee-hit-ton as a group of persons. The Government, in urging that we answer this question in the negative, does not deny the identifiability of the Tee-hit-ton as persons, but denies that they, as a group or clan, owned anything. It says that even if they exploited certain lands for the purpose of taking fish or game or berries or roots from them, that was not ownership. We think that an entity, such as an individual, or a tribe or clan of Indians, which exploits land under a claim of right, to the exclusion of others, and takes from the land what is of interest to it, though what interests it might not interest others of a different culture, is asserting "ownership" of that land.

Though the evidence is not entirely clear as to whether the clan as a whole, or some smaller subdivision of it, such as a village unit or a house unit was the claimant of the property exploited by the Tee-hit-ton, we have concluded that some, at least, of the land exploited by the Tee-hit-ton was claimed by the plaintiff clan as a whole, and that it is, therefore, an identifiable group of Indians within the meaning of the statute.

Our second question is:

"2. What property rights, if any, would plaintiff, after defendant's 1867 acquisition of sovereignty over Alaska, then have had in the area, if any, which from aboriginal times it had through its members, their spouses, in-laws, and permittees used or occupied in their accustomed Indian manner for fishing, hunting, berrying, maintaining permanent or seasonal villages and other structures, or burying the dead?"

The plaintiff tribe would draw a sharp distinction between the nature of the interest which its ancestors had in their Alaska lands, and the interest which Indian tribes with comparable habits and customs had in the lands now included in our 48 States. We will, merely for the purpose of brevity of expression, refer to the latter Indians as American Indians, and to the plaintiff and its forebears as Alaska Indians. It says, and we agree, that its ancestors had a species of ownership in the lands which they used for hunting, fishing, and berry picking. So, of course, did the American Indians. It says that, under Russian sovereignty, before the cession to the United States by the Treaty of June 20, 1867, 15 Stat. 539, this ownership was recognized by the sovereign, and thereby given the legal status of full, complete, and exclusive ownership, to which all the normal rules of land title are applicable. We think that that asserted historical fact has not been proved. It is true that the Russians did not exploit the interior of Alaska, and admonished its traders not to disturb the peace or alienate the good will of the natives. The failure to exploit the country would seem to have been attributable to the vast area of undeveloped land of comparable climate which the Russians had in their own country and not to a legal attitude toward the natives different from the attitude of the Western European countries. Such land as the Russian Government wanted for its use or the use of its licensees it took. We think, therefore, that if such tribal property interest in lands as existed under Russian sovereignty survived the treaty of 1867, that interest under American sovereignty was substantially identical in nature with that of the American Indians. That meant that the extent to which it would be recognized and respected was completely subject to the will of the sovereign. United States v. Santa Fe Pacific *205 Railroad Co., 314 U.S. 339, 62 S. Ct. 248, 86 L. Ed. 260. Our conclusion then is, that if the tribal interest in land of the plaintiff tribe survived the treaty, that interest was what is called, in relation to American Indians, "original Indian title" or "Indian right of occupancy," with its weaknesses and imperfections.

As to whether tribal interests in Alaska lands survived the treaty of cession, we are in doubt, and we pass the question for the moment.

In Hynes v. Grimes Packing Co., 337 U.S. 86, at page 106, 69 S. Ct. 968, at page 981, 93 L. Ed. 1231, Mr. Justice Reed in delivering the opinion of the Court, said:

"We have carefully considered the opinion in Miller v. United States, 9 Cir., 159 F.2d 997, where it is held, [at] page 1001, that the Indian right of occupancy of Alaska lands is compensable. With all respect to the learned judges, familiar with Alaska land laws, we cannot express agreement with that conclusion. The opinion upon which they chiefly rely, United States v. Alcea Band of Tillamooks, 329 U.S. 40, 67 S. Ct. 167, 91 L. Ed. 29, is not an authority for this position. That opinion does not hold the Indian right of occupancy compensable without specific legislative direction to make payment. See also United States v. 10.95 Acres of Land in Juneau, D.C., 75 F. Supp. 841."

The plaintiff urges, correctly, that this statement is dictum. But it is an extremely pointed expression about the Tillamooks decision which must at that time have been fresh in the minds of the justices. We therefore take this statement of the Supreme Court as law. That means that even if what we have decided was the "original Indian title" of the plaintiffs survived the treaty of 1867, the plaintiffs would still not have a right in the land, against the Government, unless Congress had recognized the tribe's interest as a legal interest. The later Tillamooks decision, reported in 341 U.S. 48, 67 S. Ct. 167, is also of importance in this regard.

The Government insists that whatever interest the tribe may have had in the lands during Russian sovereignty was extinguished by the treaty.

When the United States purchased Alaska from Russia in 1867, after the sale, and the price of $7,000,000 had been tentatively agreed upon, the United States offered to add $200,000 to the price in return for the following assurance, which was then inserted in Article VI of the treaty.

"The cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders; and the cession hereby made, conveys all the rights, franchises, and privileges now belonging to Russia in the said territory or dominion, and appurtenances thereto."

The treaty also contained, in its Article II, the following language:

"In the cession of territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property."

The meaning of the treaty provisions is not clear. The government says that these provisions warranted the title to the land in Alaska free of all encumbrances except interests of individuals. The plaintiff says that it meant much less than that; that it did not warrant against interests owned by a clan of Indians whose ownership, the plaintiff says, had always been recognized and had never been disturbed by the Russian Government or its agencies. The history of the times lends some support to the construction for which the plaintiff argues. Chairman Charles Sumner of *206 the House Committee on Foreign Relations, in discussing the treaty, said:

"Beyond the consideration founded on the desire of `strengthening the good understanding' between the two countries, there is the pecuniary consideration already mentioned; which underwent a change in the progress of the negotiation. The sum of seven millions was originally agreed upon; but when it was understood that there was a fur company and also an ice company enjoying monopolies under the existing government, it was thought best that these should be extinguished, in consideration of which our government added $200,000 to the purchase money, and the Russian government in formal terms declared `the cession of territory to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, or by any parties, except merely private individual property-holders.' Thus the United States receive this cession free of all incumbrances, so far at least as Russia is in a condition to make it. The treaty proceeds to say that `the cession hereby made conveys all the rights, franchises, and privileges now belonging to Russia in said territory or dominion and appurtenances thereto.' In other words, Russia conveys all that she has to convey." House of Representatives Ex.Doc. No.177, 40th Cong.2d Sess., pages 124, 135.

This contemporary statement tends, as the plaintiff urges, to show that the parties intended that whatever franchises issued by the Russian Government were outstanding were to be cancelled, but that existing interests which by the usual rules of international law would not be affected by the transfer of sovereignty did not have to be cleared off the land by the Russians before they could complete the transfer. The latter action would have required the Russian Government to change its land law as to Alaska, abolishing tribal or clan title of lands, which was the only kind of title there was as to practically all of Alaska.

It may, with reason, be urged that Russia was not expected, for the consideration of $200,000 to undertake the herculean task which she, over a century of ownership, had refrained from undertaking; that the United States merely took the formal warranty from Russia as a foundation for her own intended action of determining for herself what should be the nature and status of Indian title in Alaska lands.

The government cites us to the case of Miller v. United States, 9 Cir., 159 F.2d 997, 1001, in which the Court held that the "original Indian title" of the Tlingit Indians in Alaska was, so far as tribes or bands were concerned, extinguished by our treaty of 1867 with Russia. The plaintiff urges that the question was inadequately briefed in the Miller case and that for that reason the Court made an erroneous decision. The government itself, in various opinions of its executives relating to this very problem, has taken the position that Alaska Indians had tribal or communal rights in lands, either as aboriginal rights which survived the treaty of 1867, or as rights created by the Acts of 1884, 1891 and 1900. In United States v. Libby, McNeil and Libby, D.C., 107 F. Supp. 697, which case arose after the decision in Miller v. United States, supra, in a District Court in the same Judicial Circuit where the Miller case arose, the government urged vigorously that the Miller decision was wrong, though it could hardly have expected the District Court to depart from the holding of its own Court of Appeals. Government counsel has now presented to the court a copy of a letter from the Attorney General advising the Secretary of the Interior that his department is defending several cases before the Indian Claims Commission and this court on the basis of the decision in the Miller case. The present position of the executive with regard to the question *207 is thus different from its earlier position.

In view of our doubt as to the effect of the quoted provisions of the treaty of 1867 upon Indian title, and, in view of our answers to other questions, which make the resolution of this doubt unnecessary, we do not resolve it.

Questions 3 and 4 are as follows:

"3. What such rights, if any, would have inured to it under the Act of May 17, 1884, 23 Stat. 24, in the area, if any, which on that date was either so used or occupied by it or was claimed by it?

"4. What such rights, if any, would have inured to it under the Act of June 6, 1900, 31 Stat. 321, 330, in the area, if any, which on that date was so used or occupied by it?"

The Act of May 17, 1884, 23 Stat. 24, established a District of Alaska. The act contained this proviso:

"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". Section 8.

This language would seem to mean that the physical status quo was to be preserved, but that the question of legal rights was reserved for future determination.

Section 14 of the Act of March 3, 1891, entitled "An act to repeal timber-culture laws * * *", 26 Stat. 1095, 1100, provided:

"That none of the provisions of the last two preceding sections of this act shall be so construed as to warrant the sale of any lands belonging to the United States * * to which the natives of Alaska have prior rights by virtue of actual occupation * * *."

Section 27 of the Act of June 6, 1900, "An Act Making further provision for a civil government for Alaska, * * *" said:

"The Indians * * * shall not be disturbed in the possession of any lands now actually in their use or occupation, * * *." 31 Stat. 330.

The Joint Resolution of August 8, 1947, 61 Stat. 920, which Resolution authorized the Secretary of Agriculture to sell timber within the Tongass National Forest, and under which the timber sale involved in this litigation was made, said:

"`Possessory rights' as used in this resolution shall mean all rights, if any should exist, which are based upon aboriginal occupancy or title, or upon section 8 of the Act of May 17, 1884 (23 Stat. 24), section 14 of the Act of March 3, 1891 (26 Stat. 1095), or section 27 of the Act of June 6, 1900 (31 Stat. 321), whether claimed by native tribes, native villages, native individuals, or other persons, and which have not been confirmed by patent or court decision or included within any reservation.

"Sec. 2. (a) The Secretary of Agriculture, in contracts for the sale, or in the sale, of national forest timber under the provisions of the Act of June 4, 1897 (30 Stat. 11, 35), as amended, is authorized to include timber growing on any vacant, unappropriated, and unpatented lands within the exterior boundaries of the Tongass National Forest in Alaska, notwithstanding any claim of possessory rights. All such contracts and sales heretofore made are hereby validated.

"(b) The Secretary of the Interior is authorized to appraise and sell such vacant, unappropriated, and unpatented lands, notwithstanding any claim of possessory rights, within the exterior boundaries of the Tongass National Forest as, in the opinion of the Secretary of the Interior and the Secretary of Agriculture, *208 are reasonably necessary in connection with or for the processing of timber from lands within such national forest, and upon such terms and conditions as they may impose.

"(c) The purchaser shall have and exercise his rights under any patent issued or contract to sell or sale made under this section free and clear of all claims based upon possessory rights.

"Sec. 3. (a) All receipts for the sale of timber or from the sale of lands under section 2 of this resolution shall be maintained in a special account in the Treasury until the rights to the land and timber are finally determined.

"(b) Nothing in this resolution shall be construed as recognizing or denying the validity of any claims of possessory rights to lands or timber within the exterior boundaries of the Tongass National Forest."

This latest expression of Congress seems to take special care to leave open for decision the question of the property rights of the plaintiff and other tribes which might claim rights in the area covered by the Joint Resolution. The language of Section 1 shows that Congress was aware of all the claims and legal theories which have now been presented in this case, and that of Section 3(b) shows that Congress expressly disclaimed any intention to take a position with regard to those claims. We cannot spell out of these four pieces of legislation any Congressional intent to recognize that the plaintiff and other tribes similarly situated own the lands here in question All that Congress recognizes is that there is a legal dispute about the question of ownership.

Our answer to questions 3 and 4 is that there is nothing in the legislation referred to which constitutes a recognition by Congress of any legal rights in the plaintiff tribe to the lands here in question.

Question 5 is as follows:

"5. In the event a decision of an affirmative nature on any of issues 2, 3, or 4, is followed by evidence indicating specific property rights on the part of plaintiff at any of those times, then would the testimony of plaintiff's witness Paul as to recent less intensive use of the areas claimed by plaintiff constitute prima facie evidence of termination or loss of such rights?"

The government urges that, even conceding that the Tee-hit-ton may have owned or had an interest in the land here in question, they have lost that interest because, for some 50 years, their numbers have been so small that they have, as we have found, been physically incapable of controlling or exploiting the area which the clan controlled and exploited in earlier times. Since 1900, the clan has consisted of 65 or fewer persons. The area claimed comprises some 352,800 acres of land.

In view of our answer to the preceding questions, this question does not call for an answer.

Question 6 is as follows:

"6. If any such property rights are established, and had not meanwhile been terminated or lost, then would the execution of the Timber Sale Agreement of August 20, 1951 (as admitted in paragraph 10 of defendant's Answer), constitute a compensable taking of such rights, or would it give rise to a right to an accounting within the jurisdiction of this Court, or both?"

This question, in view of our answers to the other questions, does not call for an answer.

We answer question 1 in the affirmative. We do not answer questions 2, 5, and 6. Our answer to questions 3 and 4 is that no rights inured to the plaintiff as a result of the legislation referred to.

PRETTYMAN, Circuit Judge (sitting by designation), JONES, Chief Judge, and WHITAKER and LITTLETON, Judges, concur.