86 Opinion of the Court. to regulate the use thereof, nor the right of the United States to resume possession of such lands, it being declared that all such rights shall continue to be held by the United States in trust for the people of any State or States which may hereafter be erected out of said Territory. The term 'navigable waters,' as herein used, shall be held to include all tidal waters up to the line of ordinary high tide and all nontidal waters navigable in fact up to the line of ordinary high-water mark." Indeed the United States affirms in its brief that Karluk Reservation is merely a reservation "for a particular governmental use," not a disposal of the area. The Government says it is like Sioux Tribe v. United States, 316 U. S. 317, not like United States v. Holt Bank, 270 U. S. 49. An Indian reservation created by Executive Order of the President conveys no right of use or occupancy to the beneficiaries beyond the pleasure of Congress or the President. Such rights may be terminated by the unilateral action of the United States without legal liability for compensation in any form even though Congress has permitted suit on the claim. Sioux Tribe v. United States, 316 U.S. 317; see United States v. Santa Fe Pacific R. Co., 314 U. S. 339 at 347.22 When a reservation is established by a treaty ratified by the Senate or a statute, the quality of the rights thereby secured to the occupants of the reservation depends upon the language or purpose of the congressional action.23 Since Congress, under the Constitution, § 3 of Art. IV, has the power to dispose of 22 Possible claims under the Indian Claims Commission Act of August 13, 1946, are not covered by this statement. See 60 Stat. 1049, 1050, § 2 (5). It refers to claims "based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after the date of the approval of this Act shall be considered by the Commission." 23 United States v. Shoshone Tribe, 304 U. S. 111, 116; Shoshone Tribe v. United States, 299 U. S. 476, 485, 486, 492, First; United States v. Creek Nation, 295 U. S. 103, 109; United States v. Holt Opinion of the Court. 337 U.S. the lands of the United States, it may convey to or recognize such rights in the Indians, even a title equal to fee simple, as in its judgment is just. Shoshone Indians v. United States, 324 U. S. 335, 339, 340. When Congress intends to delegate power to turn over lands to the Indians permanently, one would expect to and doubtless would find definite indications of such a purpose.24 In the present case a determination of the power delegated to the Secretary of the Interior by the WheelerHoward Act of June 18, 1934, and § 2 of the Act of May 1, 1936, is important. It is important for the reason that a statute that authorizes permanent disposition of federal property would be most strictly construed to avoid inclusion of fisheries by implication. Petitioner argues for a holding that the power granted covers water as well as land. 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 State Bank, 270 U. S. 49, 58; Ute Indians v. United States, 330 U. S. 169, 176, et seq.; Arenas v. United States, 322 U. S. 419; opinions on remand, United States v. Arenas, 158 F. 2d 730; Arenas v. United States, 60 F. Supp. 411. 24 For example, in the Arenas case, 322 U. S. 419, the statute read: "SEC. 5. That upon the approval of the allotments provided for in the preceding section by the Secretary of the Interior he shall cause patents to issue therefor in the name of the allottees, which shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State of California, and that at the expiration of said period the United States will convey the same by patent to the said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever. . . ." P. 422. 86 Opinion of the Court. 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.25 On May 23, 1944, a year after Public Land Order 128, the petitioner shows that there were 57 residents eligible to vote for approval of the designation of the reservation.26 As indicated by the cases hereinbefore cited, a recognition of such ownership in Indians might require just compensation to them of the fair value of the fishery, if the United States should desire hereafter to reopen the area to the public under its regulations. There is much less reason to read such power of permanent disposition by the Secretary into § 2 than there was to read it into the President's "implied grant of power" to create reservations. United States v. Midwest Oil Co., 236 U. S. 459, 475. 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 fisheries permanently from public control." The argument that Congress did not intend to 25 One gets a sense of its value from the catch of a single operator. Note 10, supra. 26 We understand, although it is not a fact of weight, that the number includes both men and women over twenty-one. 49 Stat. 1251; Constitution and By-Laws of the Native Village of Karluk, Alaska, Official Publication, United States Department of the Interior, Office of Indian Affairs, GPO (1939); Constitution, Art. V, §1; Certificate of Adoption, p. 4; 48 Stat. 986-87, §§ 13 and 16. The population of Karluk around 1880 was 302. Report on the Population, Industries, and Resources of Alaska by Ivan Petroff, p. 29, H. R. Misc. Doc. No. 42, Pt. 8, 47th Cong., 2d Sess. In 1920 it was 99; in 1929 it was 192; in 1939 it was 189. 16th Census of the United States (1940), Population, vol. 1, Number of Inhabitants, p. 1193. 27 In the Act of May 14, 1898, 30 Stat. 409, which extended the homestead land laws of the United States to Alaska, it was specifically provided that "no entry shall be allowed extending more than eighty Opinion of the Court. 337 U.S. authorize the designation of water or fisheries as a part of an Indian reservation has behind it the unarticulated premise that the United States must have complete power to protect, improve and regulate for the good of all our people these unrivalled sea fisheries with their wealth of food. It loses much of its force by our conclusion that Alaskan Indian reservations established or enlarged under § 2 are subject to the unfettered will of Congress.28 (b) An argument that the reservation is a nonrevocable grant can be made. Under the Act of June 18, rods along the shore of any navigable water, and along such shore a space of at least eighty rods shall be reserved from entry between all such claims, and that nothing herein contained shall be so construed as to authorize entries to be made, or title to be acquired, to the shore of any navigable waters within said District: . . . . 28 Compare the statute creating the Metlakahtla Reservation, 26 Stat. 1101: "SEC. 15. That until otherwise provided by law the body of lands known as Annette Islands, situated in Alexander Archipelago in Southeastern Alaska, on the north side of Dixon's entrance, be, and the same is hereby, set apart as a reservation for the use of the Metlakahtla Indians, and those people known as Metlakahtlans who have recently emigrated from British Columbia to Alaska, and such other Alaskan natives as may join them, to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may [be] prescribed from time to time by the Secretary of the Interior." See 34 Stat. 1411 and 48 Stat. 667. See a discussion of the limited power of the President to create even temporary reservations for Indian immigrants. 18 Op. Atty. Gen. 557. We have carefully considered the opinion in Miller v. United States, 159 F. 2d 997, where it is held, p. 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, 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, 75 F. Supp. 841. 86 Opinion of the Court. 1934, § 16, applicable to Alaska, see § 13, an Indian tribe was authorized to adopt a constitution and by-laws for its government. This was done by the Karluk Reservation Indians. There is a phrase in the section that has color of recognition of ownership of tribal lands in the Indians. It reads as follows: "In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: ... to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; . . . 48 Stat. 987.29 We think, however, in view of the breadth of the coverage of the Wheeler-Howard Act that this language would be effective only where there has been specific recognition by the United States of Indian rights to control absolutely tribal lands. 29 In hearings before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., on S. 3645, the bill which became the Act of June 18, 1934, p. 247, the following discussion took place as to the meaning of these words: "Senator O'MAHONEY. But what you are saying here is that the constitution shall vest in some person-what? The following rights and powers. And then you undertake to enumerate those powers. The first one that you enumerate is the right to employ counsel. The second one is the right to prevent individuals from selling and disposing of their property. Then you come to a third one and it is to represent the tribe, and that seems to me to be hanging up in the air. "The CHAIRMAN. The second one you stated incorrectly. "Senator O'MAHONEY. Have I? "The CHAIRMAN. It is not to prevent them from selling individual lands; it is tribal lands. "Senator O'MAHONEY. Yes, that is right; tribal lands." |