ALASKA STATEHOOD WEDNESDAY, FEBRUARY 3, 1954 UNITED STATES SENATE, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Washington, D. C. The committee met at 10:15 a. m., pursuant to recess, in the committeeroom, 224 Senate Office Building, Washington, D. C., Senator Guy Cordon presiding. Present: Senators Guy Cordon, Oregon; George W. Malone, Nevada; Frank A. Barrett, Wyoming; Clinton P. Anderson, New Mexico; Earle C. Clements, Kentucky; Henry M. Jackson, Washington; and Price Daniel, Texas. Present also: É. 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 Counstl, Department of the Interior; and Ralph A. Barney, Chief, Indian Claims Branch, Lands Division, Department of Justice. Senator CORDON. The committee will come to order. We decided to make a little change in section 25 of committee print No. 7 of S. 49, which is section 5 in the new committee print of the Alaska bill alone. Governor Heintzleman called attention to the necessity for a correction on page 9 of the new bill, the committee print, where there are certain tracts of land granted the State of Alaska, subsections (d) and (e) of section 5. For one of those he was going to furnish corrected language. Have you heard anything further on it? Mr. BENNETT. On subsection (e), I believe Mr. Slaughter had the information yesterday. Mr. SLAUGHTER. I have not received from the Governor the exact description. Subsection (d) covers the executive buildings. Subsection (e) apparently covers both the Federal building and the jail. There seems to be some feeling that the jail should go to the new State. I have not received from Governor Heintzleman a statement as to which block is which. Delegate BARTLETT. The Governor may not have the information here in Washington. I can get it for you and furnish it to Mr. Coulter today definitely. Senator CORDON. Let's be sure of it. Senator CLEMENTS. All that is involved are the Federal building; it is not? Delegate BARTLETT. No. In here also is the property, the land and building being used by the Federal Government for a jail. Senator CLEMENTS. You want to retain that in the Federal Government? Delegate BARTLETT. There was agreement yesterday among those who discussed it that that ought to go to the State. Senator CORDON. Let's get the language, Mr. French, with respect to section 1 of the bill. I want to hear from Senator Daniel on that. Mr. FRENCH. Instead of section 21 in the old joint committee print on S. 49, it is section 1 in the committee print on Alaska alone. You remember I submitted language referring to the Treaty of Cession, but the committee agreed informally to refer to the statute of incorporation—that is, the Organic Act. Senator CORDON. The question that I was to propound, Senator Daniel, my admiralty lawyer, is this: The second paragraph of the suggested substitute language, which reads: The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska. In your opinion, will that language give to the new State of Alaska a political or State boundary 3 miles from shore? Senator DANIEL. It would give the State of Alaska at least that, I would say. Senator CORDON. That is what I mean. There would be no question in your mind that the term "territorial waters appurtenant thereto" would, ipso facto, set the line for the new State at least 3 miles from low water? Senator DANIEL. At least. Senator CORDON. There is a little memo or brief here somewhere, prepared by Stewart French, which says my mind, but I wanted to have your view on it. Mr. DANIEL. Is that the memo you showed me the other day? Senator DANIEL. That relates more to title to the submerged lands than to boundary. Mr. FRENCH. Yes. Title to the submerged lands is what I thought Senator Cordon was concerned about. Senator DANIEL. Your question related strictly to the boundaries of the new State, did it not, Senator? Senator CORDON. Yes, the boundary line. Senator DANIEL. You are not asking about title to the submerged lands? Senator CORDON. No. That we will have to take care of as we did in Hawaii, with a special provision making the provisions of the Submerged Lands Act applicable. I am now simply talking about the boundaries of the State. Is there any question in your mind as to whether that term "territorial waters" is broad enough to include, if inclusion be necessary, the lands beneath inland navigable waters of the State? I say if inclusion be necessary. Senator DANIEL. You mean within the boundaries of the new State? Senator CORDON. Yes. Senator DANIEL. It certainly would be enough. As a matter of fact, in my opinion, Senator, it would be sufficient if you simply said that the State of Alaska shall consist of all the territory now included in the Territory of Alaska, because "territory" has been defined and recognized by our international law publicists and decisions almost universally as including the water area as well as the land. Senator CORDON. The Territorial Organization Act for the Territory of Alaska, in section 21 of Title 48 United States Code Annotated, reads as follows: The territory ceded to the United States by Russia by the treaty of March 30, 1867, and known as Alaska, shall be and constitute the Territory of Alaska under the laws of the United States, the government of which shall be organized and administered as provided by said law. That was the description used when the Territory was created. Reference was made here to a later enactment by the Congress which carried a declaration with respect to reservation for a future State of rights in navigable waters. I think that was the term. What is that section? Mr. BARNEY. That is the 1898 act. Senator CORDON. Do you have that here? Let's read it again. I want that to be in your mind. Senator DANIEL. That is a very good declaration. We used it in our discussions in the submerged lands legislature, namely, that Congress recognized the States should own such lands. Here the 1898 Congress was making the reservation for the future State of Alaska by a Federal statute. I think it is broad enough to include the lands covered by territorial waters. Mr. SLAUGHTER. Do you want that read, Senator? Senator CORDON. Yes. Mr. SLAUGHTER. It provides in section 2 of the act of May 14, 1898, 30 Stat. 409, 48 United States Code, section 411: Provided, That nothing in sections 411-419, 421, 423, and 461-465 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, nor 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 hereafter be erected out of said Territory. The term "navigable waters," as herein used, 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 high-water mark. Senator CORDON. Having that provision in mind, and considering our recent study of the overall question, Price, I would like from youand I am sure the balance of the committee would-your suggestion as to the language which should be used in our defining here of the boundaries of the new State. The suggestion, of course, is simply to use, as we did in Hawaii, the territory and appurtenant territorial waters that comprise the present Territory of Alaska. Senator DANIEL. I think that would be preferable to this printed version here in the committee print of February 3, 1954. Senator CORDON. Is there any objection to the use of this suggested description? Senator DANIEL. Is that the typed one? Senator CORDON. Yes. Senator JACKSON. May I ask this question. Is there any Federal dominion outside of the geographical boundaries of the Territory of Alaska, outside the geographical boundaries? Senator CORDON. I would say that I know of none, and again I call your attention to the fact that when the Territory was created as an organized entity in 1912, the language used was: The territory ceded to the United States by Russia by the treaty of March 30, 1867, and known as Alaska, shall be and constitute the Territory of Alaska. Senator JACKSON. My only reason for the question is that I want to make sure that we are in effect conveying everything there is up there, as far as the overall boundary lines are concerned, to the new State; everything in that area insofar as the geographical boundary lines are concerned. Senator CORDON. "Territory of Alaska" is the term used in the act. Senator JACKSON. In the treaty? Senator CORDON. No, it was not so used in the treaty. The language was used in the incorporation of the Territory of Alaska. Senator JACKSON. The Territory when it was organized included everything that was ceded to the United States in the treaty? Senator CORDON. Right. Senator JACKSON. In addition, there may have been some boundary adjustments since the organization of the Territory which should accrue to the new State. Senator CORDON. That is the reason for the language used- Senator CORDON. "That part of the United States now constitut ing * * *"" Senator JACKSON. That is right, the present tense. Mr. Chairman, I do not see that you could make much improvement on that, in view of the legislative history. Senator CORDON. How do you feel, Earle? Senator CLEMENTS. I agree with that. Senator CORDON. Senator Anderson, Senator Daniel was here, and I went back to the beginning. Senator ANDERSON. I knew what you were talking about, and I agree with that description exactly. Senator CORDON. For our purposes, gentlemen, we are going to consider that section 1 of the new Alaska statehood bill is as suggested. Mr. FRENCH. With this language? Senator CORDON. The suggested language. That decision being made, we can get to other matters. Mr. Barney very kindly came back this morning with some suggested language to be substituted for that found in the new committee print in section 3 on page 5, beginning in line 7. Let me say that we find ourselves in this position: If we seek to secure a formal report from the Department of Justice we cannot possibly hope to get it for several days. The report first must be prepared and passed through all the approval necessary, through the Bureau of the Budget, and then come back to Justice. We simply cannot hope to get any formal report very soon. So, Mr. Barney, out of his long experience in this type of matter, that is, aboriginal native claims, has furnished us personally with certain suggestions. They are not the suggestions of the Department of Justice. They come to us Senator ANDERSON. They are helpful suggestions. I would like you to tell the committee, Mr. Barney, the circumstances that led you to make this particular suggestion as against others that might have been made. Mr. BARNEY. Proviso the second of section 2 as presently drafted seemed to me to contain some language which might be susceptible of litigation. It might be held by some court to include Senator JACKSON. That is proviso two of section 3, just for the record. Mr. BARNEY. That is right; section 3. It might be held to include some rights which may not exist. Maybe they do. This whole subject of native claims is extremely difficult. It is in litigation not only in the Court of Claims, but in the United States district court here and in the Indian Claims Commission, and frankly, nobody knows what the native rights are. So it occurred to me as I read the provision that its purpose was to provide for the relinquishment by the proposed State of two things: (1) the unappropriated public lands which are not to be turned over to the State of Alaska; and (2) the lands owned by or held in trust for the natives. If that was the purpose, then I suggest that we use language with which the courts are already familiar. I have taken the enabling act of the State of Oklahoma, passed in 1906, which has been interpreted by the courts of Oklahoma and the Federal courts, and I have used that language, substituting only enough language to make it applicable to the proposed State of Alaska. Do you care to have me read that, Senator? Mr. BARNEY. The language I suggest-and I will indicate as I go along the few changes that I have made-is this: That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying with the boundaries thereof, and to all lands lying within said limits owned by I emphasize the word "by"— or held for and I emphasize "for"— any Indian, Eskimo or Aleut, or any community of such natives; and that until the title to any such public land shall have been extinguished by the United States the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. That no taxes shall be imposed by the State on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use. The only language that I have changed from the Oklahoma enabling act is the insertion of the word "by" after the word "owned." That, in my interpretation, means personally owned by an individual Indian, Eskimo, or Aleut. Also the word "for" after the word "held" so that you have "held for any Indian **** would, in my apinion, include reservations that have been validly created, it would include lands that are held by the United States for the benefit of a particular Indian but title to which has not yet passed to the Indian. In other words, he is still restricted and the Government is still exercising some 43175-54-19 |