APPEAL FROM THE SUPREME COURT OF ALASKA.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is an appeal from a decision of the Supreme Court of the State of Alaska, Alaska , 362 P. 2d 901, affirming the denial of an injunction against interference by the State with appellant's use of fish traps in the Annette Islands of southeastern Alaska. Appellant rests its claim in part on regulations promulgated by the Secretary of the Interior whereby the Metlakatla Indian Community was accorded the right to erect and to operate salmon traps at four locations in waters surrounding the Annette Islands, which Congress set aside for its use in 1891. Alaska challenged this authorization by a state conservation law forbidding the use of salmon traps.
Long before the white man came to Alaska, the annual migrations of salmon from the sea into Alaska's rivers to spawn served as a food supply for the natives. Commercial salmon fishing has become vital for Alaska's economy, but its exploitation seriously threatened the resource even before the turn of the century. See Gruening, The State of Alaska (1954), pp. 75, 97. Congress in 1889, in 1896, in 1906, and again in 1924 enacted conservation measures, prohibiting any obstruction of waters to impede salmon migration, limiting the times and means of taking salmon,
and authorizing the appropriate department to impose further restrictions.*fn1 When Alaska was established as a State, Congress withheld jurisdiction over her fisheries until she had made adequate provision for their administration.*fn2
Equally with Congress, Alaska has been concerned with the evils of overexploitation. In particular she saw a menace in the fish trap, a labor-saving but costly device, which became in her eyes the symbol of exploitation of her resources by "Stateside" colonialism. See Rogers, Alaska in Transition (1960), pp. 4-15; Gruening, supra, at pp. 392-407; Gruening, Let Us End American Colonialism (1955), reprinted at 103 Cong. Rec. 470-474. The fish trap, "a formidable structure," Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87, consists principally of a fence or netting stretched across or partly across a stream to obstruct the upstream progress of the salmon and turn the fish into the "heart" or "pot" of the trap, where they are imprisoned until removed. See Rogers, supra, at p. 7; Gruening, The State of Alaska, supra, at pp. 169-170. At one time there were about 700 salmon traps in operation in Alaska. The Secretary of the Interior felt that the fish trap's threat to conservation could be adequately dealt with by regulating the number of fish permitted to escape.*fn3 Alaska vigorously opposed this. The Territorial Legislature several times sent memorials to Congress urging abolition
of trap fishing.*fn4 An ordinance to abolish all commercial traps was approved by Alaska voters along with the proposed State Constitution in 1956, and in early 1959 the first State Legislature turned this ordinance into the statute here under review.*fn5
The Metlakatla Indians, some 800, led by a British missionary, moved from British Columbia to Alaska in 1887. In 1891 the Annette Islands, south of Ketchikan at the extreme lower end of the Alaskan archipelago, were "set apart as a reservation" by Congress for the Metlakatlans and other Indians, "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." 26 Stat. 1095, 1101, 48 U. S. C. § 358. In 1915 the Secretary issued regulations, 25 CFR (1939 ed.), pt. 1, establishing an elective council to make local ordinances for Metlakatla, and also permitting members of the Community to obtain permits for the use of salmon traps in waters adjacent to the Annette Islands. The next year, in furtherance of the Secretary's plan to establish a salmon
cannery at Metlakatla, President Wilson by proclamation declared the waters within 3,000 feet of certain of these islands to be a part of the Metlakatla Reserve, to be used by the Indians as a source of supply for the intended cannery, "under the general fisheries laws and regulations of the United States as administered by the Secretary of Commerce." 39 Stat. 1777.*fn6 In 1918, without reference to the proclamation, this Court upheld the right of the Metlakatlans to exclude others from the waters surrounding their islands on the ground that these waters were included within the original reservation by Congress. Alaska Pacific Fisheries v. United States, 248 U.S. 78.
Ever since 1915, Metlakatla has operated fish traps with the consent of the Secretary of the Interior. Following the enactment of the State's fish-trap law in 1959, the Secretary in the exercise of his transitional power over Alaska fisheries banned all fish traps except those operated by Metlakatla and by other Indians involved in the companion case, Organized Village of Kake v. Egan, post, p. 60. 24 Fed. Reg. 2053, 2056, 2069 (1959). The following year, having relinquished general control of the fisheries, the Secretary again authorized Metlakatla to operate fish traps at four of eight specified locations, citing as authority the White ...