(The report referred to follows:)

DEPARTMENT OF THE INTERIOR,

Hon. A. L. MILLER,

OFFICE OF THE SECRETARY, Washington, D. C., July 30, 1953.

Chairman, Committee on Interior and Insular Affairs,

House of Representatives, Washington, D. C.

MY DEAR MR. MILLER: Reference is made to your request for a report on H. R. 1921, a bill to settle possessory land claims in Alaska.

I recommend the enactment of H. R. 1921 if it is revised along the general lines of the amendments set forth in the enclosure to this report.

The problem of native-land claims in Alaska has been a troublesome one for many decades, and has been especially acute during recent years in southeastern Alaska. Since the early days of American rule in Alaska it has been recognized that simple justice toward the aboriginal inhabitants of that great region, as well as the national interest in the development of its resources and the wellbeing of its people, require the proper protection of native-land holdings. In section 8 of the act of May 17, 1884 (23 Stat. 24), Congress declared 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." Similar declarations appear in section 14 of the act of March 3, 1891 (26 Stat. 1095), and section 27 of the Organic Act of June 6, 1900 (31 Stat. 321). Notwithstanding this settled policy, no procedure has been provided for determining the validity of the claims asserted by the natives and for identifying the exact areas to which the natives should have title. This is also true of those nonnative claims which may exist by virtue of the above-cited statutes.

From the standpoint of the best interests of both the natives and the public generally, the prompt establishment of fair and workable procedures for the final settlement of all possessory land claims in Alaska is essential. A central feature of these procedures should be an opportunity for each claimant to have his day in court upon the legal merits of each claim asserted. This Department has no authority to pass upon the merits of such questions, and is not in a position to say to what extent, if at all, any of the native or nonnative claims are valid.

I believe that H. R. 1921 is framed on sound principles that will promote these objectives. Nevertheless, I also believe that the procedures outlined in the bill need to be clarified, implemented, and extended in a number of particulars. To this end the amendments set forth in the enclosure to this report are proposed. The major purposes of the proposed amendments include the protection of the natives against the loss of the lands that are necessary for their economic security and progress, and the safeguarding of the rights of persons who have already acquired or initiated interests under the public land laws of the United States in lands claimed by the natives, or who may subsequently acquire or initiate such an interest before a judicial determination that a valid claim of possessory rights exists with respect to the same lands. The adoption of these amendments would contribute to the stability of both the native and the nonnative communities, and to the continued economic development of Alaska during the adjudicatory process provided for by H. R. 1921. The salient features of the proposed amendments are outlined below.

From time to time communities of natives or individual claimants of possessory rights have improved tracts of land in Alaska for occupancy or use as towns, villages, building sites, cultivated fields, or gardens; hunting or fishing camps, dock or landing sites, business sites, meeting places, missionary stations, burial grounds, or other like purposes. When tracts of land so improved have been held in the exclusive occupancy or use, generally speaking, of a community of natives or an individual claimant of possessory rights during some reasonable period, such as 5 years, immediately preceding the filing of a claim to such tracts, and when there is no adverse valid claim of possessory rights or adverse valid public-land claim to the same lands, the Department strongly urges that the bill should provide for the patenting of these improved lands to such community or individual claimant, even though they may not be able to establish a preexisting right to such lands by aboriginal occupancy or by statute.

It has long been one of the basic principles of our national land policy that the bona fide settler who has expended money or labor in the improvement of public lands should be preferred in the disposition of such lands, even though

he may have entered upon the lands at a time when no provision had been made for their disposition. Among the many statutes in which this principle has been given effect are the Preemption Act of 1841, the Oregon Donation Act of 1850, the Homestead Act of 1862, the Mining Law of 1872, the Court of Private Land Claims Act of 1891, and the Taylor Grazing Act of 1934. The amendments recommended in the foregoing paragraph would properly and justly apply this well-recognized principle to those tracts of land in Alaska that have been actually improved and are currently occupied or used by communities of natives or by individual claimants, whether native or nonnative, of possessory rights. The incorporation of these provisions in the bill would materially increase the security and stability of existing land use and development in Alaska by assuring the native population, and all other persons holding lands under color of possessory rights, that they will not be deprived of their villages, home sites, and other improved lands, irrespective of whether their claims of possessory rights to these lands turn out to be good or bad.

The Department also recommends that improved lands, as described above, be excepted from the general prohibition in the bill against awards of exclusive rights in lands below high-water mark. Such an exception would prevent a number of serious dislocations of the fishing and other marine activities of the natives that might otherwise occur. Many of the coastal villages of the natives are built in part on lands over which the tide ebbs and flows, and the right of the villagers to undisturbed possession of the adjoining beaches and submerged lands for their boats and fishing equipment is essential to the continuance of their usual and accustomed ways of life. Where, on the other hand, the lands below high-water mark are not improved lands, the Department believes that it would be appropriate for any valid claim of possessory rights to be compensated for in money, as now provided in the bill.

In this connection it is recommended, however, that the prohibition against awards of exclusive rights in lands below high-water mark be rewritten so as to make it clear that this prohibition is intended to apply to the beaches and beds of tidal waters only, and is not intended to extend to inland nontidal waters. The reasons for the prohibition stem from considerations that are properly applicable to the open sea and its estuaries, and that have little, if any, relevancy to rivers or lakes.

When a valid claim of possessory rights is determined to exist with respect to lands within the exterior boundaries of a national forest, the bill provides that the Court of Claims shall award to the successful claimant of possessory rights either title to the lands or a money judgment against the United States for their value. The determination as to which form the award is to take is to be made by the court upon the basis of "the equities of the parties involved." This Department does not consider itself to be in a position to make recommendations concerning the general merits of this provision, since it involves lands that are under the primary jurisdiction of another department. However, if a provision along these lines is to be retained in the bill, its modification in two particulars would be desirable. First, the bill should require an award of title, rather than of money, for all improved lands. Such an amendment would be justified by the same considerations that have been mentioned above in connection with other aspects of the subject of improved lands, and would, it is understood, probably be acceptable to the Department of Agriculture. Second, the bill should prescribe one and the same rule of decision for all Federal reservations, generally speaking, in Alaska. The national interest in maintaining the integrity of such areas as military reservations, national parks and monuments, fish and wildlife reserves, lighthouse reservations, and the like is as strong as its interest in maintaining the integrity of the national forests. Hence, whatever limitations upon awards of title are imposed in connection with the latter should also be imposed in connection with the former.

Turning next to the subject of public-land claims, it is noted that the bill already incorporates the principle that a claim validly acquired or initiated under the public-land laws prior to the enactment of the bill should, unless relinquished or terminated, be paramount to any adverse valid claim of possessory rights. In any such case a successful claimant of possessory rights would not have the right to an award of title, but would have the right to a money judgment against the United States for the value of the lands covered by the public-land claim. The Department believes that this is a sound principle, but that it needs to be spelled out in considerably greater detail. Thus, for example, where the publicland claim is only a leasehold interest, its paramountcy need be effective only for the term of the lease and the successful claimant of possessory rights should

have the right to an award of title, subject to the lease, and to an assignment of all payments becoming due to the United States under the lease. Where a public-land claim requires further action for its perfection, as in the case of a homestead entry that has not yet gone to final proof, a successful claimant of possessory rights should be accorded the option of waiting for a reasonable length of time until it can be determined whether the claim will be relinquished or terminated so that an award of title can be made for the particular tract involved, or will be perfected and thereby necessitate a money award for that particular tract. Finally, the protection which the bill would accord existing public-land claims should also be extended to those validly initiated after its enactment but prior to a judicial determination sustaining a claim of possessory rights to the same lands. Such a provision would help promote the continued economic development of Alaska during the period while the claims of possessory rights were being adjudicated.

For the successful working of the bill it is important that an orderly system be established for the ascertainment of those public-land claims that affect any areas to which claims of possessory rights are upheld, and for the determination of the validity of such public-land claims to the extent necessary for the purpose of enabling the Court of Claims to decide whether the award must be in land or in money. The proposed amendments would provide the legislative framework requisite for this purpose. Under them, the adjudicatory process would be divided into two principal stages. The first stage would be a determination by the Court of Claims of the question whether a valid claim of possessory rights exists to a particular area of lands. The second stage would be a determination by the Court of Claims of the question whether any public-land claims exist with respect to that particular area which would be valid in the absence of, or in spite of, the claim of possessory rights. To assist the court in making the latter determination, three important ancillary procedures would be established by the amendments.

First, the Secretary of the Interior would be required to certify to the Court of Claims a list of the patents, entries, leases, and other public-land claims of record in the district land offices which affect lands within any area to which the court has determined that a valid claim of possessory rights exists, and which appear to be valid as of the date of that determination. Each such list would be prima facie evidence of the validity of each public-land claim therein certified as valid. Second, any person claiming an interest in lands in Alaska under the public-land laws would be accorded the right to file a notice of his claim in the appropriate district land office within a reasonable time after the passage of the bill, or promptly after the initiation of his claim in the event it is initiated at a later date. If, subsequent to the initiation of any public-land claim covered by such a notice, the Court of Claims should determine that a valid claim of possessory rights exists with respect to the same lands, the Secretary of the Interior would be required to transmit the notice to the court, and the court would be required to make the public-land claimant a party defendant to the second stage of the proceedings.

Third, the Court of Claims would be directed to give notice by publication of each determination by it in which the validity of a claim of possessory rights is sustained, and of the description of each tract of land included in such determination. Any holder of an allegedly valid public land claim to the same property would thereupon be entitled to present the latter claim to the court within a time fixed by it, which could not be less than 90 days from the date when publiIcation was completed.

The Court of Claims would have full authority to adjudicate the validity of of any public-land claim presented to it through any of the three procedures just outlined. However, in the interest of the orderly administration of justice, the court would be directed to provide, wherever practicable, for the submission of uncertified claims to the judicial or administrative agencies that would ordinarily adjudicate the validity of such claims in the absence of the bill. Unpatented claims not presented to the court through one or the other of these procedures would be forever barred.

The Department is convinced that provisions along the foregoing lines should be included in the bill in order to afford due protection to the holders of publicland claims as well as to the holders of claims of possessory rights.

Mention has already been made of the requirements in the bill that a money judgment be awarded the holder of a valid claim of possessory rights for the value of any lands to which such holder is not awarded title because the lands are below high water mark, or because they are within a national forest, or be

cause they are subject to a valid public-land claim. The bill provides that the lands are to be valued, in the first two cases, as of the date the bill is enacted, and, in the third case, as of the date the public-land claim was initiated. No reason appears for this variation in dates. Moreover, the process of valuation would be simpler and the results achieved would be more equitable if the valuation were made with reference to as current a date as possible. Accordingly, it is recommended that the date on which the court determines that a valid claim of possessory rights exists with respect to the lands in controversy be used in all cases as the date with reference to which the value of the lands is to be determined.

While the bill provides definite procedures for awarding title to lands, subject to the exceptions mentioned above, to successful claimants of possessory rights, it does not define, as clearly as would be desirable, the status of any lands in controversy that are not so awarded. The proposed amendments would provide specifically for the entry of judgments by the Court of Claims confirming in the United States title to lands which are not awarded to successful claimants of possessory rights. The amendments would also provide that any such confirmation of title shall inure, subject to all applicable provisions of the land laws, for the benefit of any holder of a valid public-land claim to the same lands. These provisions would eliminate any uncertainty concerning the title to those lands which are not awarded to a successful claimant of possessory rights.

The provisions of the bill dealing with the employment of attorneys by claimants of possessory rights appear to imply that in no case may the attorneys be paid a fee in excess of 10 percent of the amount of the recovery, plus the reasonable expenses incurred in the prosecution of the claim. This is contrary to the precedent established by section 15 of the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1053; 25 U. S. C., sec. 70n), which permits the amount of the fee to be fixed by contract between the claimant and the attorney, without regard to any percentage limitation. An overall requirement that all fees be on a percentage basis could tend to hinder the natives of Alaska in obtaining competent legal counsel, since it would mean that all fees must be on a contingent basis, and since 10 percent of the recovery might be a totally inadequate compensation for the prosecution of some of the smaller claims. It is recommended, therefore, that the bill be amended so as to limit the application of the 10 percent limitation to cases where the amount of the fees is not prescribed by contract between the attorney and the claimant.

The bill provides that if an award to a successful claimant of possessory rights does not include a money judgment, or includes a money judgment which is insufficient to pay the fee of the attorney, the court shall except from the award lands of a value equivalent to the fee, and shall either grant such lands to the attorney or order them sold to pay his fee. It is recommended that the bill be amended to exempt from this provision so much of the land awarded to a successful claimant as would constitute a family homestead under the laws of Alaska relating to exemptions from judicial sales. Such an amendment would apply to attorneys in proceedings under the bill the same rule to which attorneys in all types of litigation are normally subject in jurisdictions which, like Alaska, provide for a homestead exemption.

The bill is silent with respect to payment of the court costs of a successful claimant, as distinguished from the fees of the attorney for the claimant. The principle that court costs should be paid by the losing party is widely accepted, and has been extended by the Congress to several important categories of claims against the United States. In line with these precedents, the bill should be amended so as to make the court costs of a successful claimant of possessory rights taxable against the United States.

Section 2 of title I of the act of August 12, 1935 (49 Stat. 596) contains provisions to the effect that certain classes of expenditures gratuitously made by the United States in favor of Indian tribes may be offset against such tribes in proceedings brought by them in the Court of Claims. While that section has been largely superseded and replaced by subsequent legislation, it is possible that its provisions might be construed as applicable to proceedings brought under the bill. The allowance of gratuities as offsets is not now required by the statutes applicable to most classes of Indian claims, is contrary to the rules of law applicable to non-Indians who have claims against the United States, and would produce highly inequitable results if enforced against communities of natives presenting claims under the bill. Hence, the proposed amendments contain an express provision to the effect that the provisions of section 2 of title I of the act of August 12, 1935, shall not apply to proceedings under the bill.

Section 1502 of title 28 of the United States Code declares that, except as otherwise provided by act of Congress, the Court of Claims shall not have juris

diction of any claim against the United States growing out of or dependent upon any treaty with foreign nations. The treaty with Russia of June 20, 1867 (15 Stat. 539) whereby Alaska was ceded to the United States is pointed to by some authorities as confirming or recognizing native rights of occupancy in Alaska, and is pointed to by other authorities as denying or extinguishing such rights. From either standpoint, it is obvious that the Court of Claims must be permitted to consider the legal effect of the treaty on these alleged rights if it is to adjudicate effectively their validity. In order to prevent any inference that the court would not have any authority to take the provisions of the treaty into account, the proposed amendments expressly provide that section 1502 of title 28 of the United States Code shall not apply to the litigation which the bill contemplates. Section 792 of title 28 of the United States Code authorizes the appointment of not to exceed seven Commissioners by the Court of Claims. These Commissioners hear evidence and report recommended findings to the court. It is apparent that the proceedings to be authorized by the bill will necessitate extensive use of the services of the Commissioners. In all probability several Commissioners will have to be assigned to duty in Alaska on a substantially full-time basis while these proceedings are pending. Hence, the proposed amendments would permit the Court of Claims to employ additional Commissioners, in excess of the seven now authorized, during this period.

I turn now to the form of tenure by which land or money that is awarded to a successful native claimant of possessory rights should be held. As introduced, H. R. 1921 provides that the Secretary of the Interior shall issue unrestricted patents in fee for all awards of land. As reported by the Subcommittee on Territories and Insular Affairs, H. R. 1921 includes a provision that "the court may award a resricted title for a period not to exceed 25 years if it finds the community of natives or individual claimants are incompetent." In either form, it is silent with respect to awards of money.

While the Department believes that Federal responsibility for administering the business affairs of Indian tribes and individual Indians should be terminated as rapidly as is consistent with the ability of the Indians, either as groups or as individuals, to take over the management of their own properties, the Department is not prepared to state that all communities of natives or individual natives who might receive an award of lands or money under the bill are necessarily ready for such termination and transfer.

In line with the amendment recommended by the Subcommittee on Territories and Insular Affairs, the amendments proposed by the Department would empower and direct the Court of Claims to determine whether the awards made to each community of natives or individual natives should be restricted or unrestricted. If, in the case of an award to a community of natives, the court finds that the members of the community, acting as a group, are reasonably able to manage the community's property and business affairs, then the judgment of the court is to include a direction that the award, whether of land or money or both, shall be unrestricted. If, in the case of an award to an individual native, the court finds that such native is reasonably able to manage his property and business affairs, then the judgment of the court is to include a direction that the award, whether of land or money or both, shall be unrestricted. In all other cases a restricted award would be called for by the proposed amendments.

If the court comes to the conclusion that the award should be restricted, it is desirable that the restrictions be limited in time and effect. Where the award is of land, the amendments would provide for the issuance of a patent in fee containing a restriction against alienation, without the consent of the United States, for a period of 30 years from the date of approval of the bill, except that if the patentee is an individual native who dies before the expiration of the 30year period, the restriction against alienation would continue only until his death. Where the award is of money, the amendments would provide for the retention of the funds in trust for a like period and with a like exception.

In the interest of public certainty with respect to the staus of propery, it seems to be desirable for any restrictions imposed by authority of the bill to have a uniform final termination date. Hence, the proposed amendments provide that the restrictions shall terminate at the end of 30 years from the effective date of the bill. Taking into account the time that will necessarily elapse prior to the making of any awards under the bill, it is believed that the duration of the proposed 30-year restrictions would not be substantially different from the average duration of the restrictions recommended by the Subcommittee on Territories and Insular Affairs, which would be for a period of not to exceed 25 years from the date of the award. The provision in the amendments whereby any