Mr. BARNEY. He knew how to claim. That case has not been as yet tried.

Senator CORDON. That is all of that portion of the Territory of Alaska east of the dividing line between Canada and Alaska extended? Mr. BARNEY. Yes, sir; that is correct.

There have been several other cases filed which I think the committee would be interested in, because it discloses specifically the nature of the claims. The Tee-hit-ton Indians filed a case which I tried just recently, based on the Tongass Timber Act of 1947. They claimed that the mere making of the timber contract constituted a pro tanto taking of their territory. Mr. J. C. Peacock of Washington, D. C., represents the plaintiffs in that case. We tried the case before the Commissioner, we argued the case before the court of claims in November, if I remember correctly. The case is under advisement by the Court of Claims, and it would not surprise me that perhaps the court will decide it this coming Tuesday, which is their decision day. The contention was, of course, that the natives, as Senator Jackson said, claimed by aboriginal possession. It was the position of the Government that when we acquired Alaska from Russia, under articles II, III, and VI, the natives lost all possessory rights, and we further contend that that decision had been forever set at rest, at least that was my contention, by the decision of the Circuit Court of Appeals in the Miller case. I do not want, Mr. Chairman, to encumber your record, if you have already heard that thing a half dozen times.

Senator CORDON. We haven't heard it once, sir. We have not had a reference to it.

Mr. BARNEY. I think you would be interested in it. The case of Miller v. United States was decided by the Ninth Circuit Court of Appeals on February 11, 1947. The court considered the various articles of the treaty with Russia. I will read, with your permission, the concluding paragraph of the court's decision:

It seems quite clear, therefore, that whatever possession the Tlingit Indians had, "from time immemorial prior to" the year 1867 was a tribal and not an individual right and did not come within the classification of the accepted "private individual property" specified in the Russian treaty. Consequently, the Tlingit "original Indian title" to the tidelands in question was extinguished by that state paper.

It is the position of the Department of Justice that that decision is final and disposes of the question. The contention on the other side

Senator JACKSON. That was not carried to the Supreme Court? Mr. BARNEY. No, it was not carried.

The CHAIRMAN. The time has expired for an appeal, though. Does that mean anything?

Senator CORDON. With respect to that case, it does.

Mr. BARNEY. With respect to that case it is all over. However, we feel very definitely that the Supreme Court has in effect affirmed the case

Senator JACKSON. The Miller case?

Mr. BARNEY. The Miller case. In the Hynes v. Grimes Packing Company case.

If I may again refer to Hynes, I will give you the citation. Hynes v. Grimes Packing Company, decided in 1949, reported at 337 United States Supreme Court Reports, page 86, said this:

We have carefully considered the opinion in Miller v. United States, where it is held that the Indian right of occupancy of Alaska lands is compensable.

I might say, to explain that, the circuit court in the Miller case held that the tribal title was extinguished but that individuals, if they could prove continued occupancy from aboriginal times, had a compensable right.

Senator JACKSON. They did not have to pass on that question. That was just dictum, was it not?

Mr. BARNEY. Not necessarily, Senator, because we were there suing. The suit was to quiet title to lands.

These two people who were claiming the lands were contending that they had a tribal title.

Senator JACKSON. They base their action on a tribal right?

Mr. BARNEY. Yes. The Court said:

You don't have any tribal title. That was extinguished by the treaty with Russia. But if you can prove that you have been in continuous occupation as individuals

Senator JACKSON. I understand.

Mr. BARNEY (continuing):

You might have an individual right.

Senator JACKSON. All tribal entity rights as such were extinguished by the treaty entered into between the United States and Russia for acquisition of what is now the Territory of Alaska. That is what they in effect held in the Miller case.

Mr. BARNEY. That is the Miller decision. So when this Hynes versus Grimes Packing Co. case got up to the Supreme Court, one of the arguments, of course, was that Miller had held that individuals had these compensable interests. So Mr. Justice Reed

Senator CORDON. Have you stated what was the issue in this case? Mr. BARNEY. No, sir. I will, though. The Hynes versus Grimes Packing Co. case was another fish trap case wherein the Secretary had created or at least had set aside a portion of land, and the adjacent waters for the exclusive fishing rights of the Indians. The Hynes Packing Co. sought an injunction on the grounds that they had had their fish traps, that they had been fishing in those waters, adjacent waters, for many, many years, and that under the White Act passed by Congress, no one could have an exclusive right to fish in the waters of Alaska. The lower court, if my recollection is correct, granted the injunction and the case went on up to the Supreme Court of the United States. In Hynes versus Grimes Packing Co., the Court held that there could be no exclusive rights to fish in Alaskan waters. Senator JACKSON. Under the White Act.

Mr. BARNEY. Under the White Act. Well, the White Act penalties could not be applied to fishing in Alaska waters. One of the bases for the arguments, as I said, was that the Miller case gave these individual compensable rights, and the Hynes case is a long case, the majority opinion being written by Mr. Justice Reed. In a footnote, he said this, and just to bring the continuity I will go back and start where I left off.

We have carefully considered the opinion in Miller v. United States (159 Fed. 2d 977), where it is held, page 1001 that the Indian right of occupancy of Alaskan

lands is compensable. With all respect to the learned judges, familiar with Alaska land laws, we cannot express an agreement to that conclusion. The opinion upon which they chiefly rely, United States v. Alcea Band of Tillamooks (329 U. S. 240), is not authority for that position. The opinion does not hold the Indian rights of occupancy compensable without specific legislative direction to make payment. See also United States v. 10.95 Acres of Land in Juneau (75 Fed. Supp. 841).

The last reference to 10.95 acres of land is the Miller case, after it had gone back upon its reversal by the ninth circuit to determine whether these individuals Miller and his associates, could prove their individual occupancy. The district judge held that they had failed to establish their individual rights, and he held that in order to prove individual rights, their possession must be open, notorious, obvious, to everybody.

Senator JACKSON. Exclusive and continuous. Hostile and open? Mr. BARNEY. That is right. Notorious possession. So the defendants in the Miller case lost out.

As to aboriginal rights, the Department of Justice takes the position that they were wiped out by the treaty with Russia. That question is squarely raised in the Court of Claims in the Tee-hit-ton case that I referred to. I can only hope and assume that the Court of Claims will follow the decision of the ninth circuit in the Miller case. If it does, of course there will be unanimity of opinion between the Court of Claims and the ninth circuit. If it does not, I don't know. Senator JACKSON. What it boils down to as far as this committee trying to do something about this problem of aboriginal claims on the part of Indians in Alaska, is that there is very little if anything we can do pending a final decision in this Tee-hit-ton case.

Mr. BARNEY. Even that will not be decisive of the matter, Senator. Senator CORDON. Would you agree, Mr. Barney, that with respect to Indian Commission statutes providing for secession of lands, title to lands, in the Territory of Alaska to the new State of Alaska, that there would probably be a much better reason for that act to remain completely silent as to aboriginal or native claims so that there might not be read into it any doubt of the Congress, with respect to those claims?

Mr. BARNEY. That would be my opinion, and I believe I am correct in saying that the substance of that is the official opinion of the Department of Justice. We appeared, Secretary Lewis, Mr. Bennett, and myself, 2 weeks ago before the House Subcommittee on Territorial Affairs, where they have under consideration H. R. 1921. In that original bill, the words "aboriginal possession" appear. The Department of Justice objected rather strenuously and requested and suggested that those words be omitted because of the very reason that the Chairman has given. I am personally afraid that if such language appears in any bill, it will be construed or could possibly be construed by a court that notwithstanding Miller, the Congress has said, "Well, perhaps such things do exist."

Senator CORDON. It might be deemed an admission, and at least it would indicate a doubt.

Mr. BARNEY. That is right. And if you will permit me now to show how serious that doubt is, the Tongass Timber Act, the joint resolution of August 8, 1947, 61 Statutes 920, started right out this way, and remember, gentlemen, this was after the Miller case:

Be it enacted,

and so forth—

that possessory rights as used in this resolution shall mean all rights, if any should exist, which are based upon aboriginal occupancy or title,

and so forth.

Mr. J. C. Peacock, who I mentioned before, brought a suit in the United States District Court for the District of Columbia against the Secretary of the Treasury and the Secretary of Agriculture, which I personally defended, under the Tongass National Timber Act. And he relied upon the language. Fortunately I was able to throw him out on the grounds that it was a suit against the United States. So the question is not decided. But I use that as illustrative of what such language can and will do.

Senator JACKSON. I think we are a lot better off without getting into the disturbing field of admissions here by inference.

The CHAIRMAN. I am afraid that is going to take care of my proposed amendment.

Senator JACKSON. I really think, Mr. Chairman, that most of the lawyers who have been working on it feel that it is probably best to leave it alone, because we probably get into some serious difficulties as indicated by Senator Cordon.

Senator CORDON. Of this, Senator, there can be no doubt. Mr. Barney will follow me and correct me if I am wrong, No. 1, the Congress by law, passed even after a treaty, may amend that treaty, that if a Congress disposes of lands to which a right attached by virtue of the treaty, the disposition is nevertheless final although a right for recovery, measured in dollars, may exist.

Senator JACKSON. That is right. There is no way which we can extinguish these individual property rights by statute.

Mr. BENNETT. Not quite. That is what raises the problem here. The statement has been made that we will leave it untouched. Apparently the impression is that that is what this bill does. But this bill has a disclaimer clause in here which does no meet the legislative precedents in Arizona, New Mexico, Wyoming, Utah, all of which expressly reserved to the United States its power to extinguish any Indian rights that might exist That is not done in the language of the bill before this subcommittee. It troubles us for that reason.

In fact, it uses this language which is broad enough to include the aboriginal occupancy theory, and I think Mr. Barney has been troubled by the same thing. It says that they forever disclaim all right and title to any lands or property, and then it gets down to the question of Indian rights, and it says:

and to any lands or other property, including fishing rights, the right or title to which may be held by any Indians, Eskimos or Aleuts, hereinafter called natives.

That raises the immediate question.

Senator JACKSON. It ought to be out of there.

Mr. BARNEY. I think that is what we wanted to bring to your attention.

Senator JACKSON. In line with the views of Senator Cordon, the chairman of the subcommittee, I think we may be reading once again

something that a court can seize upon to add to the legislative history of this allegation that they do have these individual aboriginal rights. Mr. BENNETT. That is our fear, Senator.

Senator CORDON. Any action that we take in connection of lands title will not extinguish them. If they do not have them, we might conceivably in an attempt to safeguard rights in Alaska, create rights that otherwise would not exist.

Senator JACKSON. I am correct, then, in my understanding, at least it has been my understanding, that we cannot extinguish any claim they have to individual property right compensation. We can extinguish their claim to the Territory. Some of them, for example, have laid claim to all of southeast Alaska. We can, in effect, by eminent domain, take their title but we must compensate them. Mr. BARNEY. That is correct.

The CHAIRMAN. While we are surounded here with so many intelligent legal men, I would like to ask this one question: Alaska cannot live unless it gets the resources, the returns from the resources of the Territory. It cannot live even as a Territory, let alone as a State. I wanted to put in an amendment to the Tongass bill, of which I was the original author, unfortunately, maybe to permit the State to receive 25 percent of the forest reserves. That at the present time goes into the Treasury in some form of a retention fund and it may stay there forever and Alaska will get nothing out of it.

I hope, Mr. Chairman, that we can do something to get that fund unfrozen so that it can be used.

Senator CORDON. I think there can be no question about that. That is simply a question of moneys in the hands of the United States Government.

The CHAIRMAN. That was 1 of my 4 amendments.

Mr. BARNEY. There is only one other matter that I have, Mr. Chairman, and that is to refer to the fact that there may be some property rights under the act of May 1884, 1891, and 1900.

Senator CORDON. As you discuss those, would you give us the substance of them?

Mr. BARNEY. Yes. The act of May 17, 1884, was the first real legislation after the acquisition of Alaska by the United States and it is in my judgment the most important provisions. With your permission, the proviso is very short. I will read it. Section 8 reads:

Providing, 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.

Unfortunately, the Congress has never passed that enabling legislation. That is the act which was also referred to by the Millers in the Miller case as giving them rights. The courts of Alaska have said on several different occasions that that act preserved the actual rights of natives and whites, anybody, in other words, who was in Alaska at that time. They have also held that it did not create any rights, that is, if anybody came in subsequent to May 17, 1884, they could not get anything under the act of 1884.

Senator JACKSON. It was a recognition of the status quo. In effect, people who were in possession, maybe not exactly similar, by adverse possession, this case is adverse against the United States.