Opinion of the Court. 337 U.S. to exceed the estimated approximate cost of reasonable policing of the area. We do not read the White Act as empowering the Secretary to raise general funds for native welfare or general conservation purposes from White Act preserves. As § 208.23 (r) with its exception in favor of the natives in possession of Karluk Reservation and their licensees is based upon § 1 of the White Act, we think it clear that its proviso, "that no exclusive or several right of fishery shall be granted therein," applies to commercial fishing by natives equally with fishing companies, nonresidents of Alaska or other American citizens, and so applies whether those natives are or are not residents on a reservation. We find nothing in the White Act that authorizes the Secretary of the Interior to grant reservation occupants the privilege of exclusive commercial fishing rights. It seems also clear to us that the adoption of a corporate charter and a constitution by the Native Village of Karluk under §§ 16 and 17 of the Wheeler-Howard Act, discussed at pp. 106-107, supra, can add nothing to the power of the Secretary under the White Act. "Exclusive," as used in § 1 of the White Act, forbids not only a grant to a single person or corporation but to any special group or number of people. The legislative history set out above shows this. The offending regulations which brought about the enactment of the proviso in § 1 of the White Act were administered so as to limit fishing to those who had been using the fisheries before the regulations. 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," they are not broad 52 See 27 Stat. 631, relating to representation of Indians by the United States district attorneys; Cohen, Handbook of Federal Indian 86 Opinion of the Court. 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 Department of the Interior by § 208.23 (r) has decided upon the conservation of fisheries in the described waters of the Karluk Reservation in accordance with the White Act, with an exception in favor of the natives that seems to rest on the fact that the natives are on a reservation that includes the White Act conservation area. This cannot be done. The welfare of the 57 electors of Karluk Reservation and their families is important. The Secretary of the Interior, however, cannot give them such preferences as are here given under the authority of the White Act. Other American citizens are equally entitled to the benefits from White Act preserves. We hold that the regulation § 208.23 (r) is void as a whole because it violates the proviso of the White Act. See p. 93. 53 IV. There are problems connected with the administration of the Karluk Reservation and the protection of the fishing preserves that have not been determined by the courts or the Department of the Interior. Our holding that coastal waters may be included in the reservation waters and that the White Act cannot be used to create a monopoly in the Indians establishes a different basis for administrative and judicial conclusions. The 1945 ordinance Law, pp. 252-53; Powers of Indian Tribes, Solicitor of the Interior, Nathan R. Margold, October 25, 1934, M27781 pp. 55-58. See United States v. Candelaria, 271 U. S. 432; United States v. Berrigan, 2 Alaska 442; United States v. Cadzow, 5 Alaska 125. 53 Dow v. Ickes, 74 App. D. C. 319, 326, 123 F. 2d 909, 916: "It prohibits monopoly, but it does not prohibit reasonable discriminations required by the purpose of conservation and limitations inherent in the type of fishing to which the Secretary's judgment must be applied." Opinion of the Court. 337 U.S. must be considered; it appears in the margin." It states that Public Land Order 128 restricts the right to fish commercially in the reservation waters to Karluk inhabitants. This ordinance antedates the regulation. See p. 91, supra. It evidently is based on the theory that the creation of the reservation gave exclusive fishing rights to the natives in possession. Permits required the approval of the Secretary of the Interior or his au 54 "An Ordinance. Whereas, under Public Land Order 128, of May 22, 1943, creating the Karluk Reservation, the right to fish commercially in the waters of said reservation is restricted to the inhabitants of the Native Village of Karluk and vicinity, and; "Whereas, non-residents desire to continue their fishing operations in the waters of said reservation; Now, Therefore, be it ordained by the Council of the Native Village of Karluk, a federal corporation chartered under the Act of June 18, 1934, as amended; "Section 1. That it shall be unlawful for any person, partnership, firm, association or corporation, to fish for, take or catch any fish, or to operate any fishing vessel, gear or equipment, within the waters of the Karluk Reservation except under a permit issued by the Native Village of Karluk, for which the fee shall be as follows: "(A) For residents of the Territory of Alaska $1.00 "(B) For non-residents of the Territory of Alaska $25.00 "Provided further, that a person to qualify for a resident (Class A) permit must have resided in the Territory of Alaska for three consecutive years prior to the date of their application, or request, for a permit. "Section 2. The possession of fish upon any vessel within said waters without a permit shall constitute prima facie evidence of a violation of this ordinance. "Section 3. Any violation of this ordinance shall be punished by a fine of not exceeding Five Hundred Dollars ($500.) "Approved this 31st day of May, 1945." The 1946 ordinance made the fee $2.00 for residents of Alaska and $40.00 for nonresidents. Karluk had received its corporate charter, constitution and by-laws August 23, 1939. Official publications, Office of Indian Affairs, Department of the Interior. See §§ 16 and 17, 48 Stat. 987, 988. 86 Opinion of the Court. thorized representative.55 An example of the permit is printed below. We know nothing from the record of the reasons for the $2 fee for residents or the $40 fee for nonresidents or their relation to the cost of policing the area. See Haavik v. Alaska Packers Association, 263 55 Section 5 of the Corporate Charter of the Native Village of Karluk provides that "In using its powers the corporation must not do the following things: "Make leases, permits or contracts covering any lands or waters set aside as a reserve for the Village without the approval of the Secretary of the Interior or his authorized representative." 56 "COMMERCIAL FISHING PERMIT "Karluk Indian Reservation, Karluk, Alaska, June 30, 1946. "Pursuant to an Ordinance passed by the Council of the Native Village of Karluk, Alaska, dated May 31, 1945, permission is hereby given by the Native Village of Karluk to Ray Harmon of Kodiak, Alaska, to enter the waters and land of the Karluk Reservation for the purpose of engaging in commercial fishing for salmon, S. J. F. & P. Co., during the period: "June 1946 to September 1946. "This permit is issued subject to the conditions printed on the back hereof. "This permit is valid only if approved by the General Superintendent of the Indian Service in Alaska or his duly authorized representative, and is revocable in the discretion of the issuing officer. It is not transferable and must be carried on the person of the permittee Opinion of the Court. 337 U.S. U. S. 510. So far as appears, after once approving an ordinance the Department's only direct control over the ordinance is by approval or disapproval of amendments.57 This is an equitable proceeding in which the respondents seek protection against unlawful action by petitioner, the Regional Director of the Fish and Wildlife Service of the Department of the Interior. The interests of respondents, the Indians of Karluk Reservation, and the efforts of the Department of the Interior to administer its responsibilities fairly to fishermen and Indians are involved. These are questions of public policy which equity is alert to protect. This Court is far removed. from the locality and cannot have the understanding of the practical difficulties involved in the conflicts of interest that is possessed by the District Court. Therefore we think it appropriate for us to refrain from now entering a final order disposing definitively of the controversy. 58 when engaged in fishing authorized hereunder, and must be exhibited to any person requesting to see it. This permit is issued and accepted by the permittee on the express condition that the permittee will comply with all of the provisions of law and regulations governing fishing on the Karluk Indian Reservation, Alaska. The permittee is warned not to interfere with the fishing activities of the Indians of the Karluk Indian Reservation nor use, disturb, or destroy any property belonging to said Indians." 57 Article VI of the Constitution of the Native Village of Karluk provides that "Changes in this Constitution and By-laws may be made if the changes are approved by the Secretary of the Interior and by a majority vote of the Village members voting in an election called by the Secretary of the Interior at which at least 30 per cent of the voting membership take part." 58 For a discussion of the difficulties of the preparation of regulations, compare Addison v. Holly Hill Co., 322 U. S. 607. See also the statements of the Commissioner of Indian Affairs in Hearings before the House Committee on Indian Affairs, 73d Cong., 2d Sess., on H. R. 7902 (Wheeler-Howard Act). 59 Virginian R. Co. v. System Federation, 300 U. S. 515, 552; Harrisonville v. Dickey Clay Co., 289 U. S. 334, 338, note 2. |