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Mr. BARNEY, The courts have also held that that was a solemn promise on the part of the Congress, that they would at some time in the future show those people how to get those rights which were thereby protected and preserved.
Senator CORDON. I am a little troubled about language, that claim, which seems to be in the alternative.
Mr. BARNEY. That is a very broad one. But of course I think perhaps that has been taken care of by the decision in the second Miller case, so-called, the 10.95 acres of land case, where the district judge said that in order to recover, the possession must be open, continuous, notorious, so that everybody might know about it.
Senator CORDON. In that case, or in the succeeding case, Mr. Barney, did the court discuss that particular phrase in the act of 1884 which seems to put in the alternative a claim that need not be predicated on occupancy?
Mr. BARNEY. It referred to it, Mr. Chairman, but unfortunately for a clear-cut decision the attorneys who represented Miller continued to contend, and the court pointed it out on several different occasions in its opinion, that they were apparently still contending that they had aboriginal rights, although they called it something else. They said, “What you are really talking about are your aboriginal rights.” So you do not have in the 10.95 acres case a really clearcut decision on these possessory rights because they did not predicate their case on that.
Senator CORDON. Nor anywhere else.
Mr. BARNEY. Nor anywhere else, that is right. The second statute section 14 of the act of March 3, 1891 (26 Stat. 1100), that was a statute permitting roads and so on and so forth to be constructed, but it had this phrase, “That none of the provisions of the last two preceding sections," and so forth: shall be construed so as to warrant the sale of any lands belonging to the United States which contain coal or the precious metals or any other townsite or which shall he occupied by the United States for public purposes or which shall be reserved for such purposes, or to which the natives of Alaska have prior rights by virtue of actual occupation.
The third and last statute is section 27 of the act of June 6, 1900: The Indians or persons conducting schools or missions in the Territory shall not be disturbed in the possession of any lands actually in their use or occupation on June 6, 1900.
Those are the three statutes which presumably give or protect native rights. Those latter two have never actually been construed so we do not know exactly what they do mean.
The only other things, and then I am through, Senator, is the question of tidelands, navigable waters. We know that a number of native villages have been built out over the tidelands. We feel that that is a matter that should receive the very careful consideration of the Congress. We have recommended to the House Committee on Interior and Insular Affairs that no title be permitted to lands below high-water mark. It is contrary to the public policy of the United States as we understand it, and it is contrary, specifically contrary to section 2 of the act of May 14, 1898, which created the Territory of Alaska, which said:
Provided, That nothing in sections 411, 419, 421, 423, 461 of this title contained shall be construed as impairing in any degree the title of any State that may
hereafter be erected out of the Territory of Alaska, or any part thereof, to tidelands and beds of any of its navigable waters or the right of such State to regulate the use thereof, for 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 here. after be erected out of said Territory. The term navigable waters as used herein 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 highwater mark.
Senator CORDON. Mr. Barney, did you appear and testify orally before the House!
Mr. BARNEY. Yes, sir.
Senator CORDON. Do you know, Mr. Bennett, whether that testimony is available?
Mr. BENNETT. It is transcribed but has not been printed.
Senator CORDON. I would like to let the committee have an opportunity to study it, and I am particularly interested in the Department of Justice writing this committee with reference to provisions in the bill—what is the number of it expect as we have it as title II here?
Mr. BENNETT. S. 50, I believe it is. Senator Cordon. Well, in any event, it is title II of Senate bill 49. That ought to cover it for your purposes. If you would address a letter, commenting on the provisions in the act which you feel should be changed or suggesting also any provisions not in the act which you feel should be included. That would include protection of the tidal interests or the navigable water interest of the State and the like.
Mr. BARNEY. Very, well, sir.
I do not like to use this particular language, but if you could get it early in the week, it would be most helpful. We are going to try to get this bill before the full committee next week.
Mr. BARNEY. Well, I have a case to argue in the Court of Claims Monday, Senator.
Senator CORDON. Do the best you can. It may be that we can get a bill out and amended on the floor. I hate to think of that, but we will have to do the best we can.
Mr. LEWIS. If it would help you any, we would be glad to furnish our copy of the transcript of the testimony that was given the other day by Mr. Bennett.
Senator CORDON. It would be helpful. Would you run over that testimony, Mr. Slaughter, and get the meat of it for us, please ?
Mr. SLAUGHTER. Yes, sir (see p. 260).
Mr. BENNETT. We have a set of transcriptions before that House hearing. We would be perfectly willing to do whatever you want on it. If you want to borrow the transcripts, you may.
Senator CORDON. I would prefer to see Mr. Slaughter give us a digest with his suggestions from it. From now on we have to deal in summary. We are most appreciative, Mr. Barney, in your coming here. You have been most helpful. We hope we can presume on your time and your knowledge in this field just a little bit further (see p. 260).
Mr. BARNEY. Thank you, Senator.
The CHAIRMAN. Senator Cordon, I ask leave to have included in the record my remarks on negotiations with Canada on Alaskan problems.
Senator CORDON. Without objection, that may be done. (The material referred to follows:)
STATEMENT BY SENATOR HUGH BUTLER IN THE SENATE, JANUARY 29, 1954, ON
NEGOTIATIONS WITH CANADA ON ALASKA PROBLEMS The Territories and Insular Affairs Subcommittee under the chairmanship of the senior Senator from Oregon, Mr. Cordon, is now engaged in a concentrated effort to improve and perfect the proposed Alaska statehood bill so that the full committee on Interior and Insular Affairs may have a chance to reach a decision whether to report that bill to the Senate in the near future. Our committee has set up a target date of February 4 as the date on which we will try to have a committee vote on this perfected bill. I hope that we shall be able to reach a vote in committee on the bill on that date or shortly thereafter and I anticipate that our committee will vote to report it.
The principal aim of the subcommittee is to amend the Alaska statehood bill in such a way as to give the proposed new State the resources it will need to survive and to make a go of statehood. Along that line the subcommittee has been attacking energetically the problem of excessive reservations and withdrawals of land, mineral resources and the like by the various Federal agencies. I am very hopeful that the subcommittee will be able to recommend changes that will permit these resources to be opened up for development instead of being withheld from human use as many of them are at present.
There is another range of problems for Alaska, however, with which the subcommittee has not concerned itself, to date at least, and to which I hope our Government may address itself through the appropriate channels. I refer to the various problems that require cooperation or negotiation with the Government of the Dominion of Canada.
Our Nation happens to be peculiarly fortunate in having the Dominion of Canada as its immediate neighbor to the north. For over a century it has been possible for this country and Canada to live in peace and on the friendliest of terms with each other. Our people and the people of Canada have a mutual respect and liking for each other. Through the years we have found, generally speaking, that our purposes and theirs ran along parallel lines and that much could be accomplished by mutual cooperation.
Several of Alaska's most pressing problems can be solved only with the cooperation of Canada. At the same time, I believe there may be one or more Canadian problems on which the Government of Canada may desire concessions from us. In any negotiations with Canada I would hope we would give sympathetic consideration to those needs or desires of the Canadians which arise from our geographical position in Alaska.
Two of the problems I have in mind relate to our overland communications with Alaska. One of the most important things we could do to further the development of Alaska would be to pave the Alaska Highway the length of its entire route through Canada. That portion of the highway which lies in Alaska is already largely paved. I believe we should attempt to work out an arrangement with Canada for the paving of the portion which lies within Canada's boundaries. In such a project, I would even be willing to have the United States Government pay a portion of the cost, although I certainly feel that Canada should be willing to pay a fair share of this expense. As a matter of fact, right now Canada's financial situation is probably better than ours.
Another project which I hope to see realized before too long is the construction, probably by private capital, of an overland rail connection, joining the Canadian railroad system with our Alaska railroad. Such a project would, of course, require negotiations between United States and Canada with respect to right-of-way and other matters. I would hope our neighbor to the north would be interested in approaching this problem in a cooperative spirit.
A third great need, from the standpoint of Alaskan development, is access to the headwaters of the Yukon River for the production of power through diversion of some of that water through the mountains into the southeastern section of Alaska. The configuration of that area is such that tremendous quantitites of water are caught behind the Alaska coastal range and from there flow thousands of miles north and west through the Yukon before emptying eventually in the Bering Sea. The diversion of some of this water through power generating units to the Alaska side of the mountains would represent an extremely efficient method of generating low-cost power. I do not believe there is any way that Canada could make an equally efficient use of such potential water
power through installations located purely on Canadian soil. Under such circumstances, I would hope that Canada would agree to some arrangement for diversion of the water. The situation is such that the development probably cannot proceed at all without approval by the authorities of both nations.
As many members of the Senate may know, the Aluminum Co. of America proposed such a transmountain diversion project a year or two ago at a site known as the Taiya Valley in the northern part of the Alaska Panhandle. Alcoa is willing to undertake the expenditure of approximately $400 million in the development of an aluminum smelting plant and related facilities at Skagway, Alaska. The operation would create permanent full-time employment for approximately 4,000 people and a new community of 20,000 people. It would create a resource of the greatest value in the development of the entire Northwest part of this continent and in the defense resources of both nations.
I do not know the exact status of the plans of Alcoa at this time, nor do I know precisely what has been holding them up from going ahead. I do hope that some such project can go ahead, since it could be of tremendous benefit to both Alaska and Canada. Certainly any agreement that might be negotiated with Canada should be on a basis whereby both nations can share in the benefits.
Before I close, there is one problem troubling many Canadians on which I believe we could properly be of help to Canada. That is the question of Canadian access to the Pacific Ocean across the Alaska Panhandle. It happens that the Alaska Panhandle extends down the coast, cutting across Canada's access to the sea as far down as 54 degrees north latitude. That is an unusual situation which might well give rise to conflict and bitterness between any two nations not on friendly terms with each other. Every Member of the Senate is familiar with the problems that have arisen in European history when a nation has found its access to the sea controlled by another, unfriendly nation. Certainly, no American would be disposed to take advantage of Canada merely because of our strategic position across her access to the ocean. It is a situation where I feel we have a positive obligation to be sympathetic and generous to Canada's need. I am not sure just what kind of an arrangement Canadians might desire. It occurs to me, for example, that we might grant Canada one or more free ports at points along the Alaska coast. I can see no objection to such an arrangement. I do not believe we would consider permanently alienating any American territory to Canadian sovereignty.
It is my feeling that both Alaska and the Canadian Northwest offer a tremendous frontier for future development. Certainly the industrial development of Alaska should be a definite policy of our Government as it is. I do not believe either Alaska or the Canadian Northwest can be fully developed without the closest kind of cooperation between our two nations. I hope the appropriate officials of our Government will give serious consideration to these
problems so that we can proceed toward joint development of such projects with Canadians to the mutual benefit of both our countries.
Senator CORDON. There was some suggestion that we might meet in the morning. I said I did not think I could be here, but I have arranged to come if we have enough to go forward. The only thing, I believe what we need to do now is to discuss the bill, itself and the provisions in it.
I am of the opinion that we might as well wait until Tuesday so that we can have whatever information can be gleaned and summarized from Mr. Barney's position and the position of the Department of Justice. Therefore, we will recess until 10 o'clock Tuesday morning.
(Whereupon, at 11:55 a. m., the committee was recessed, to reconvene at 10 a. m. Tuesday, February 2, 1954.)
MONDAY, FEBRUARY 1, 1954
UNITED STATES SENATE,
Washington, D.C. The subcommittee met at 10:45 a. m., pursuant to recess, in the committee room, 224 Senate Office Building, Washington, D. C., Senator Guy Cordon (chairman of the subcommittee) presiding.
Present: Senators Hugh Butler, Nebraska (chairman); Guy Cordon, Oregon (presiding); Clinton P. Anderson, New Mexico; and Henry M. Jackson, Washington.
Present also: E. L. Bartlett, Delegate from Alaska, House of Representatives.
Present also: Kirkley S. Coulter, chief clerk and staff director; N. D. McSherry, assistant chief clerk; Albert A. Grorud and Stewart French, professional staff members.
Present also: Elmer F. Bennett, legislative counsel and assistant solicitor, and Herbert J. Slaughter, Chief, Reference Division, Office of Legislative Counsel, Department of the Interior.
Senator CORDON. The committee will come to order. Senator Anderson, can you tell us from memory or from your own bill whether we have the amendments you proposed to the House bill in this committee print of the Alaskan statehood bill?
Senator ANDERSON. Yes. The first one you can see quickly: “one marine league from the line of coast.” The House did not mean to strike out "line of.” It just meant to strike out the word "coast” and put in "mean low tide." All I am trying to do is put the words "line of” in. You would not want to say "from the mean low tide."
Senator CORDON. We have some language that is similar to our amendment to section 1 of the Hawaiian bill that seems preferable.
Senator ANDERSON. I have not seen the proposed new language. I have no desire to hang onto this language.
Senator CORDON. Let's have the attention of all the members of the legislative staff. I think this is the language we used before, but it bothers me a little bit.
Senator ANDERSON. Does the phrase "together with the territorial waters appurtenant thereto” mean one marine league?
Senator CORDON. That is what I wanted to discuss, if it means 3 miles at sea or 1 marine league. One statute mile or one geographic mile, as I seem to recall it, have slightly different meanings.
Mr. SLAUGHTER. One marine league is equal to 3 nautical or 3 geographic miles.