DOUGLAS, J., dissenting.

337 U.S.

took no action with respect to the forthcoming alteration of the rule that forum non conveniens was inapplicable to antitrust suits, or that a protest was made which Congress disregarded. Neither alternative would offer the slightest justification for overriding the unequivocal words of § 1404 (a) and the legislative history which establishes that Congress indeed meant what it said.

For these reasons, we can find no distinction between this case and the others decided today. We hold that § 1404 (a) is applicable here. The motion is

Denied.

[For opinion of MR. JUSTICE RUTLEDGE concurring in the result, see ante, p. 72.]

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.

There are difficulties for me however the case is decided. But I have concluded that the fairer result is reached if the ambiguities and doubts, fully canvassed and disclosed in the Court's opinions in this case and in Ex parte Collett, ante, p. 55, decided this day, are resolved by reading § 1404 (a) as making the doctrine of forum non conveniens applicable to any civil action as to which the venue provisions are codified in revised Title 28. That gives full effect to the words "any civil action" in the field in which Congress was legislating. And it authorizes, as respects that group of cases, a transfer to another district in lieu of outright dismissal as had previously obtained. That construction saves § 1404 (a), the venue provisions of the Clayton Act and our decision in United States v. National City Lines, Inc., 334 U. S. 573, from mutilation. I am reluctant to conclude that Congress took the more drastic course in a mere revision of the code. So to hold would make a basic change not only in

78

DOUGLAS, J., dissenting.

the two statutes involved in these cases but in the Sherman Act, 15 U. S. C. §§ 4, 5; the Jones Act, 46 U. S. C. § 688; the Suits in Admiralty Act, 46 U. S. C. § 782; Merchant Marine Act of 1936, 46 U. S. C. § 1128d; the Securities Act, 15 U. S. C. §§ 77a, 77v; the Securities Exchange Act, 15 U. S. C. §§ 78a, 78aa; the Public Utility Holding Company Act, 15 U. S. C. §§ 79, 79y; the Investment Company Act, 15 U. S. C. §§ 80a-1, 80a-43; and perhaps in other statutes too.

HYNES, REGIONAL DIRECTOR, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, v. GRIMES PACKING CO. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 24. Argued October 21, 1948.-Decided May 31, 1949.

Under § 2 of the Act of May 1, 1936, the Secretary of the Interior issued Public Land Order No. 128, designating as an Indian reservation, for the use and benefit of the native inhabitants of Karluk, Alaska, certain described lands and the waters adjacent thereto extending "3,000 feet from the shore line at mean low tide." Claiming authority under the White Act, 43 Stat. 464, which prescribed drastic penalties for violations, the Secretary promulgated a regulation prohibiting commercial fishing in the waters of the reservation except by natives or their licensees. Companies which for years had engaged in canning fish, taken from these waters, which depended on that source of supply for profitable operations, and which had a substantial investment in their business, sued in the District Court to enjoin permanently the exclusion of their fishermen from the reservation, on the ground of the invalidity of the Land Order and the regulation. Named as sole defendant was the Regional Director for the Territory of Alaska of the Fish and Wildlife Service of the Department of the Interior. Held:

1. The Secretary of the Interior is not an indispensable party defendant to the suit, since a decree requiring the defendant and his subordinates to cease their interference will afford all the relief sought without the necessity of requiring the Secretary or any of his subordinates to take any affirmative action. Pp. 96-97. 2. The District Court had equity jurisdiction of the suit. Pp. 97-100.

(a) The facts sufficiently show that the complainants are without an adequate remedy at law and will suffer irreparable injury unless the enforcement of the regulation is restrained. Pp. 97-100.

(b) Although criminal prosecutions, even under an invalid statute, will ordinarily not be restrained, a civil action will lie in exceptional circumstances that make an injunction necessary effectually to protect property rights. Pp. 98-99.

3. The Secretary's inclusion in the Karluk Reservation of the waters described in the Land Order was authorized by § 2 of the Act of May 1, 1936. Pp. 100-116.

(a) The provision of § 2 of the Act of May 1, 1936, authorizing the Secretary of the Interior to designate as a reservation any "public lands which are actually occupied" by Indians in Alaska, did not preclude the inclusion of coastal waters in the Karluk Reservation. Pp. 110-116.

(b) The fact that tidelands are embraced within the area designated as the Karluk Reservation is without significance. Pp. 114-115.

(c) A statute, which authorized permanent disposition of federal property would be strictly construed to avoid inclusion of fisheries by implication. P. 104.

(d) The Secretary of the Interior was without statutory authority to convey to the Indians any permanent title or right in the lands or waters of the Karluk Reservation. Pp. 101-106.

(e) Indian reservations in Alaska, established or enlarged under § 2 of the Act of May 1, 1936, are subject to the unfettered will of Congress. P. 106.

(f) Non-revocability in the case of the Karluk Reservation can not be predicated on the language of the Act of June 18, 1934, which must be construed as effective only where there has been specific recognition by the United States of Indian rights to control absolutely tribal lands. Pp. 106-107.

(g) References to general legislation on public lands in Alaska, appearing in a letter of the Secretary of the Interior printed in the House and Senate Reports on the bill which became the Act of May 1, 1936, can not be regarded as an adequate basis for adjudging power in the Secretary to dispose finally of such lands. Pp. 108-110.

4. The regulation prohibiting commercial fishing in the waters of the Karluk Reservation except by natives or their licensees was void as a whole, because in violation of the proviso of the White Act that "no exclusive or several right of fishery shall be granted." Pp. 116-123.

(a) The general prohibition and the exception in the regulation are not separable, and the regulation may not be upheld as imposing a prohibition applicable to everyone. P. 118.

(b) The White Act, the purpose of which was to protect and conserve the fisheries of Alaska on a non-monopolistic basis,

Statement of the Case.

337 U.S.

authorizes the establishment of preserves or closed areas in reservations created under $ 2 of the Act of May 1, 1936. Pp. 118-119.

(c) Section 8 of the White Act does not make exclusive the power of the Territorial Legislature to license fishing. P. 121.

(d) Licenses for fishing may be required by the Secretary of the Interior in areas regulated under the White Act; but such licenses may be only regulatory in character and, within the discretion of the Secretary, must have their cost fixed so as not to exceed the estimated cost of reasonable policing of the area. Pp.

121-122.

(e) The White Act uoes not empower the Secretary of the Interior to raise general funds for native welfare or general conservation purposes from White Act preserves. P. 122.

(f) The proviso of §1 of the White Act "that no exclusive or several right of fishery shall be granted" applies to commercial fishing by natives as well as by fishing companies, nonresidents of Alaska or other American citizens, and so applies whether those natives are or are not residents on a reservation. Pp. 122-123.

(g) The adoption of a corporate charter and a constitution by the Native Village of Karluk under §§ 16 and 17 of the Wheeler-Howard Act can not expand the power of the Secretary of the Interior under the White Act. P. 122.

(h) The sanctions of the White Act may not be employed to protect the Karluk Reservation against trespass. Pp. 122-123. 5. In view of the fact that the foregoing holdings establish a new basis for administrative and judicial conclusions, the decrees of the District Court and the Court of Appeals, granting a permanent injunction on the ground of the invalidity of both the regulation and the Land Order, are vacated and the case is remanded to the District Court with directions as to further proceedings. Pp. 123-127.

165 F. 2d 323, decree vacated and case remanded.

Several companies which were engaged in the canning of fish in Alaska brought an action against the Regional Director to enjoin the enforcement of a federal regulation prohibiting commercial fishing in the waters of the Karluk Reservation. The District Court granted a permanent injunction. 67 F. Supp. 43. The Court of Appeals affirmed. 165 F. 2d 323. This Court granted certiorari.