so-called tidelands and to the beds of navigable waters; (2) whether the admission of a State by virtue of admission carries with it the political jurisdiction or political boundary to a point 3 miles from ordinary high water mark. Those are the two we want to get. (The memorandum requested is set forth below :) UNITED STATES SENATE, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, MEMORANDUM To: Senator Guy Cordon, cc: Senator Price Daniel. Subject: Effect of statehood upon "navigable waters." In the famed case of Pollard's Lessee v. Hagan et al., decided in 1845 and much quoted and misquoted in our tidelands controversy, the Supreme Court of the United States held, in effect, that inasmuch as the Original 13 States held title to the lands beneath their navigable waters and such lands were not granted by the Constitution to the Federal Government, title to similar lands became vested in subsequently admitted States by virtue of the "free and equal footing" doctrine (3 How. 212, 230). In the tidelands cases (U. S. v. California, Louisiana and Texas) the Supreme Court ruled that "navigable waters," as the term had been used in the Pollard case and the fifty-odd cases in which the Pollard case doctrine was followed, meant lands beneath inland navigable waters, including tidelands proper, but not including lands seaward of mean low water. In the Submerged Lands Act of 1953 (Public Law 31, 83d Cong.), we defined "navigable waters" as follows, in part (sec. 2 (a) (2)): "all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles, and * * *.” thus extending the "navigable waters" rule of the Pollard case beyond the limitations of the California case. In S. 49, under the theory that the Submerged Lands Act might be held applicable only to States in existence at the time it was enacted, we extended the provisions of the law to the proposed new State of Hawaii. CONCLUSION As to the submerged lands inland from the low-tide mark, a new State would become vested with title thereto upon admission, under the Pollard and equal footing rules. As to lands seaward of mean low water, a new State (i. e., admitted after May 22, 1953) might not become vested with title thereto if our reasoning in making the Submerged Lands Act applicable to Hawaii, in haec verbis was correct. Having applied the Submerged Land Act specifically with respect to Hawaii, it follows under the old maxim of statutory interpretation that we should do so with Alaska. STEWART. Senator CORDON. I am satisfied with respect to what the law is, but I want to be able to say that this is what the court said at a certain time. Senator ANDERSON. Section 2, Mr. Chairman, I think is the same in the House bill and the Senate bill. Mr. FRENCH. In the case of California, there is a half-mile difference between what the State sea boundary would have been if California had entered the Union with provision for a marine league and what it is if the State has only 3 English miles. That half-mile may be very important to the State. There is quite a hassle over it, because there may be a lot of oil under that half-mile. Admiral Studds is going to send us a report in writing on just what a nautical mile and geographical mile and statute mile are. (The report of the Coast and Geodetic Survey is set forth on p. 220.) Senator CORDON. That indicates we may have to say something about that. I have not checked this language carefully on page 32, but it has been checked because it has been used several times. Did you find that sentence? Senator ANDERSON. Yes. Senator CORDON. I can see no reason for it to be in there. The election shall be conducted without reference to the political affiliations of the candidates. It says the ballots used shall be nonpartisan. Senator CORDON. Each ballot shall contain (1) the name of the candidate and (2) the names of the candidates. That is all. Let's not worry about it. Let us leave the thing. It is just redundant. It has to do with the conduct of elections. Senator ANDERSON. I thought it had to do with judges and clerks, too. Senator CORDON. That is not important. The next thing of consequence that we have to take a look at is on page 34, line 15. We substituted the language of the United States Constitution itself for this language, and I think we should do it here as we did in the Territory of Hawaii. Is there any objection? Senator JACKSON. What did you substitute? Senator CORDON. The language used for the Territory of Hawaii, which is from the Federal Constitution. Senator JACKSON. On religious freedom, you mean. What has been the language on this for other States? Pretty much the Hawaiian pattern? Senator CORDON. Yes. Senator JACKSON. I think it ought to be in conformity with previous enactments. Senator CORDON. We are going to insert, in lieu of the material on lines 15 to 18, the language taken directly from the Federal Constitution. Then we come to the provision with respect to disclaimer on the part of the State, and that is a matter that we discussed at some length with the gentleman from the Department of Justice, Mr. Barney. There seemed to be agreement that we should eliminate from this bill entirely any reference to Indian claims. Is there any objection to that? Delegate BARTLETT. Mr. Chairman. Senator CORDON. Mr. Bartlett? Delegate BARTLETT. I merely want to say that in inserting this language physically in the statehood bill, the objective was to follow the pattern of other enabling acts in the West. I think many of them had language substantially the same as this. In the first place, it was thought advisable to do so out of historic precedent and, secondly, because it was felt there would be a large body of opposition aroused to a bill which did not make it clear that this was being taken care of by leaving it to another forum to act on it. Senator CORDON. Maybe we had better decide it. It is my conviction that we create an almost intolerable situation for the new State if we, in an act of admission which is law-it is not a recital of any sort, it is a creation of status and it goes to the very basic fundamental of title-if we require a disclaimer with respect to rights that are as nebulous as these, we cast more than a cloud on title, because the cloud represents only something of record that might prevent a perfectly clear record when there is no claim in fact. Here we go a mighty long ways toward recognition of the claim in fact. Senator JACKSON. Mr. Chairman, I concur in your position on this point. I think the legislative record and history to date is quite clear. It would be my interpretation that by eliminating this section we would not grant or recognize any of these alleged claims that are being made by some of the Indian groups by reason of their alleged aboriginal rights. I believe Mr. Barney's statement made a few days ago would bear that out. On the other hand, if we leave it in, we may recognize the existence of a right on the part of the natives, and I believe the record makes this point clear; so there should not be any question, if we do eliminate the section, that we are in any wise recognizing the claims. On the contrary, it would disclose that we are maintaining the status quo so the courts can make an appropriate decision. Senator ANDERSON. I want to ask Delegate Bartlett if there will not be a storm of opposition to this bill from all the Indian rights societies and the people who are greatly interested in the protection of Indians and natives, and so forth, if this language comes out of the bill? Was it not put in there because of that? Delegate BARTLETT. Precisely. I can say positively that no one who favored including the language in the bill, which is similar to language in many previous Alaska statehood bills, had any notion that by so doing the Indian claims would be confirmed in any way at all. It was simply, as Senator Anderson stated, the very lively fear that if there were not a disclaimer paragraph all the Indian rights associations would say, in effect, that the enabling acts for previous States had disclaimer language, and the failure to include it in the Alaska bill would mean that the Congress was not agreeing that they had a right to make a claim. Senator JACKSON. Only this, Delegate Bartlett: In the case of Alaska, the claims being made by the Indians are unique in that their claim is based on aboriginal use and occupancy of land. In the case of the 48 States, the claims made by the Indians related almost in every case directly to some treaty right. I think there is a distinction to that extent. The feeling of the representative of the Department of Justice was that if this language was left in the bill the court might construe this section as giving and recognizing a right which the courts refused to recognize in their decisions to date. Mr. BENNETT. There are two marked differences between the language that is offered here and the language that has become the established pattern in the admission of States here in the continental United States. In the first place, the language of the Arizona, New Mexico, Wyoming, and Utah Admission Acts expressly reserved to the United States the power of extinguishment over these so-called aboriginal titles. Secondly, in each case they specifically made it clear that whatever rights the Indians had must be a right which was traceable to the Sovereignty of the United States or some prior sovereignty. None of that language appears here, which naturally creates much greater doubt with respect to the confirmation possibilities of this language as compared with the language that was used in the case of the admission of your State, Senator Anderson. Senator ANDERSON. Yes. That is why once before I suggested that it might be possible to safeguard this language by something like what Senator Jackson just now said: That nothing here was intended to confirm or grant or perfect any title-I do not know the legal phraseology he used, but he used it just a moment ago-in these Indians, or I would accept as an alternative the idea of putting in the exact sort of language that has been carried in these bills for New Mexico, Arizona, Wyoming, and Montana. Mr. BENNETT. If anything is put in it, Senator, I know the Department takes a strong view that it should at least have the safeguards of the previous admission acts. Senator ANDERSON. I agree. Not being a lawyer, I do not know exactly what this means, but it does not read too well to me, because it has always persuaded me that it might be the basis of showing that prior to the time Russia came into the picture at all, these aboriginal Indians were enjoying certain waters for fishing, and therefore those waters should now be adjudicated as belonging to them because of the language in this act, which is not the purpose of anyone. All this language was ever put in for was to say that we wanted to leave the Indian situation in status quo. If this does not do it, then it is not the best language. Senator JACKSON. May I interject at this point. How would it be to have some language in the report accompanying the bill to spell out in narrative form rather than in legalistic terms our intent with reference to this section that is being eliminated? I think what we all agree on is that the courts in 2 or 3 decisions have laid down some general rules of law on this question of aboriginal rights in Alaska, and it is our intention by passing this act not in any wise to change the status quo of the law on this point. It is neither to diminish nor to add to the law that has been laid down by the courts in a number of decisions. Really, is that not what we have in mind here? Delegate BARTLETT. That has been my whole hope throughout the history of this bill. Senator ANDERSON. Do you have to do it by taking the language out? Can you not do it just as well by leaving the language in, and writing in some clarifying language? Senator JACKSON. Of course, when you have the two, if you put the language in the bill, no matter what you say in the report the language in the bill is going to persist over the language in the report, if the language in the bill is clearly unequivocal. Senator ANDERSON. By the same token, no matter what you say in the report, the elimination of it is going to look as if there is a desire, maybe, to extinguish these claims, which does not exist. Senator JACKSON. That would not hold true. Senator ANDERSON. Is there not a middle ground where you can say something and qualify it by the report or can say something in the law that follows what has been done in other areas? The CHAIRMAN. Senator Cordon, I am somewhat in the position of the Senator from New Mexico, not being an attorney, and I have no suggestion whether we should leave it in or take it out, but I do think that we should follow the suggestion of the Department of Justice, and I think it was made by the chairman and confirmed by Senator Jackson that we do not want to do or say anything that will interrupt the decisions of the Court that have been held in the past. Senator ANDERSON. Could we do this: Could we leave this language out, and in the report say there may be some question as to why this language has been left out, and then refer to the testimony of the Department of Justice and say that this bill is not intended to extinguish the rights of these Indians; that it is not intended to diminish in any way the rights that they now have or should have, and that the decisions of the courts will continue to operate in this field. They have claims filed under the Indian Claims Act, and the committee is not seeking to harm any right they may have, and the omission of this paragraph from the bill specifically needs reference to the fact that it is not against them. Senator JACKSON. Or to add that the purpose of eliminating it is not in any wise to change whatever rights they may have had prior to their admission or as of some date, add to or decrease. That is what you are really trying to say. You are maintaining the status quo. Senator ANDERSON. When we got to it before, we found it was very hard to say that. Senator JACKSON. I realize that, but I think that all you have to do is put something in that the rights of the natives, whatever they may be, shall be those rights that they had as a Territory, whatever they may be, if any. Senator ANDERSON. Can you not put in the law that you do not intend to change these rights? Could you not say it that way? Senator JACKSON. The trouble with the Department of Justice contention is that when you say "rights," you by inference are saying that they do have rights which, in the opinion of the Department of Justice, by reason of decisions to date, they do not have. Senator ANDERSON. I have said all I intend to say on this, Mr. Chairman, because, as I say, I am not an attorney, and therefore I do not know how this thing ought best to be done. I am perfectly willing to leave it to the discretion of the chairman. I would like to have it borne in mind that you might be stirring up quite a hornet's nest of all the people who believe that you are trying to take away the rights of these Indians. Senator ČORDON. It seems to me, Senator Anderson, that so far as you can by your admission statute, you ought to spell out with the utmost certainty the right of the new State to a title in fee to the land that is granted. If you leave this-I am generous when I call it only a cloud-this cloud on that title, you are going to be face to face with a situation that will militate against any reasonably rapid economic development in the State of Alaska. When investors are going to put their money and the money which is in their hands, contributed by their stockholders, into a title to lands, they are going to want to know that they got what they purchased and paid for; and that is |