Hynes v. Grimes Packing Company/Dissent Rutledge
Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK and Mr. Justice MURPHY agree, dissenting in part.

Jurisdictional questions aside, I am in full agreement with the Court's conclusion that Public Land Order 128, 8 F.R. 8557,  is valid and was effective, according to its terms, to include in the reservation for the Karluk Indians the tidelands and coastal waters therein described. This action was taken pursuant to the statutory authorizations recited in the order and particularly the Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C. § 358a, 48 U.S.C.A. § 358a. When approved by the Indians in accordance with the proviso of the latter Act, Order 128 withdrew the area covered from any general or public right of access for fishing or other purposes inconsistent with those of the reservation and set aside that area for the exclusive benefit of the Indian occupants and inhabitants. Cf. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138. The necessary effect was to forbid others to enter the area for purposes inconsistent with the reservation's objects, thus making persons so entering trespassers and subject to such remedies as the law may afford to prevent or redress their wrongful entry.

By his 1946 amendments to the Alaska Fisheries General Regulations, 50 C.F.R. 1946 Supp., § 208.23(r), the Secretary of the Interior reinforced his prior action in setting aside the Karluk Reservation, prohibiting fishing within the coastal waters included in Public Land Order 128, except 'by natives in possession of said reservation' and 'by other persons under authority granted by said natives * * * by or pursuant to ordinance of the Native Village of Karluk' approved by the Secretary or his duly authorized representative.  This action was taken pursuant to 34 Stat. 264, 478, as amended by the White Act of June 6, 1924, 43 Stat. 464, as amended June 18, 1926, 44 Stat. 752.

That Act, in the interest of 'protecting and conserving the fisheries of the United States in all waters of Alaska,' conferred upon the Secretary of Commerce (now Interior), broad powers to 'set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction' and within such areas to 'establish closed seasons during which fishing may be limited or prohibited as he may prescribe.' See Dow v. Ickes, 74 App.D.C. 319, 123 F.2d 909. Effective penal provisions by way of criminal sanctions and for seizure and forfeiture of offending boats, gear and appliances were enacted to prevent or redress violation of the regulations made pursuant to the statute's authorization. 

The promulgation of Amended Regulations § 208.23(r), pursuant to the White Act's provisions, reinforced the effect of Public Land Order 128 in withdrawing the area covered by the latter from public or common right of entry for fishing and other purposes. But it had also the further effect of notifying the public that trespass upon the reversed area by persons not entitled to enter and use it would be met with the White Act sanctions  for enforcement of the order and the amended regulations.

Although holding Public Land Order 128 valid and effective to establish the reservation for the Indians' exclusive benefit, the Court finds Amended Regulations § 208.23(r) 'void as a whole.' The chief consequence held to follow is that the White Act sanctions cannot be applied to enforce the regulations or to prevent or redress trespass upon the reservation by others than the Indians in possession or their licensees.

With this conclusion I cannot agree. The amended regulations' invalidity is said to follow solely because of the exception permitting natives and their licensees to fish in reservation waters. This is said to violate the White Act proviso, which forbids any 'exclusive or several right of fishery' and denial to any citizen of the right to fish in any waters where fishing is permitted by the Secretary's regulations. In other words, because the Secretary allows the Indians to fish in the reservation waters he must allow all others to do so on equal terms, otherwise his regulations become totally void and the White Act sanctions unavailable for protection of the reservations and the Indians' rights.

This view, it seems to me, rests upon two fallacies. One is that the two statutes, of 1936 and 1924, are in irreconcilable collision and the Secretary cannot exercise the powers given to him by the 1936 Act and by the White Act consistently and simultaneously with reference to the same waters. The other fallacy is a corollary, namely, that the White Act proviso applies wherever the White Act prohibitions and sanctions may be made applicable, even though the area is a valid Indian reservation.

I do not think the two statutes are in such inescapable inconsistency as forbids their simultaneous and harmonious pplication in setting aside and protecting reservations for the exclusive use and benefit of the native Indian population. Indeed their legislative history and purposes demonstrate that they were intended to serve common objects in the conservation and protection of Alaskan fisheries.

The White Act was adopted in 1924. Its primary object was to preserve the fisheries of Alaska from the destructive private exploitation then taking place. That evil did not arise from any previous, existing, or anticipated policy of setting aside reservations for the exclusive benefit for the natives. It arose exclusively from quite the contrary policy of permitting widespread commercial exploitation by specially favored groups, not of Indians but of others who sought and secured monopolistic privileges and favors in fishing. There were therefore twin evils at which the White Act struck. One was the rapid and virtually unrestrained depletion and destruction of the fisheries; the other, the expanding creation of commercial monopolies fostered by preexisting policy in regulating the industry. 65 Cong.Rec. 9520 9521; see also 65 Cong.Rec. 9680-9682; H.R.REp. No. 357, 68th Cong., 1st Sess. 2; Sen.Rep. No. 449, 68th Cong., 1st Sess. 5; Hearings before Committee on Merchant Marine and Fisheries on H.R. 2714, 68th Cong., 1st Sess.

The White Act, accordingly, was not merely and exclusively an antimonopoly statute. It was both a conservation measure and one to outlaw private, commercial monopoly. The conservation features were contained in the basic general provisions giving the Secretary his broad powers of control over fishing. The more specific antimonopoly features were included in the proviso. The latter were important. But they did not override or minimize the more general provisions, apart from the proviso, giving the Secretary power to regulate the industry in the interest of 'protecting and conserving the fisheries of the United States in all waters of Alaska.' The proviso merely limited the manner in which his power was to be exercised in the situations to which the proviso was applicable.

So the questions arise whether the proviso was intended to have any effect in waters validly set aside by Congress, executive order, or the Secretary as reservations for the exclusive benefit of the native population and, correlatively, whether the policy of the proviso was meant to forbid the application of other provisions of the White Act, including its prohibitions and sanctions, in the protection and conservation of such reservations. In other words, was the general policy of the White Act in conflict with the policy existing at its enactment concerning Alaskan Indian reservations or later under the 1936 Act, so as to require that the two policies or statutes be kept entirely separate and distinct in their application and administration and to forbid them to be applied conjointly in executing their common conserving and protecting objects.

Certainly the White Act proviso had no purpose to throw open validly created Indian reservations to fishing by all comers. Its aim was not to destroy such reservations or to open them to general, common rights of fishing. In view of the legislative history cited above, which is consistently supported by subsequent administrative construction,  the proviso cannot be construed as expressing any policy hostile to creating such reservations with exclusive rights of fishing for the native population and protecting them against wrongful invasion. On the contrary, the statute, including the proviso, was strongly supported by the delegates in Congress from Alaska and others representing the native interests  as against those of commercial exploitation toward which the Act was aimed. There were numerous Indian reservations in existence at the time of the legislation, cf. Alaska Pacific Fisheries v. United States, supra, affording the natives exclusive fishing rights. But the extensive le islative history discloses no protest, complaint or concern arising on account of them. Indeed it gives strong reason for believing that the native interests joined with others in opposing continuance of the policy of monopolistic commercial exploitation and in support of the White Act, including the proviso, as a necessary method of preventing the imminent destruction of the natives' historic means of livelihood by that form of exploitation, and not at all by reason of any evils arising out of exclusive fishing rights granted to the native population in reservations validly created for its benefit.

Consequently, far from representing an attitude or purpose of hostility toward a policy of Indian reservations with exclusive native rights of fishing, the White Act constituted an effective step toward conserving the Alaskan fisheries, under the Secretary's broad regulatory powers, for such purposes as well as for the prevention of monopoly in open fishing areas where no reservations existed.

It follows, in my view that the White Act proviso has, and was intended to have, no application to validly created Indian reservations, either to forbid the Secretary to exclude others than natives from fishing in the reservation waters or to compel him, if he allows the natives to fish, to permit all other citizens to do so on equal terms. The proviso had no purpose so to restrict his powers in relation to reservation areas. It was directed solely against abuses by other than native interests in waters not included within areas set aside for the natives' exclusive benefit.

But it does not follow, in my opinion, that because the proviso is inapplicable the Secretary is forbidden to exercise his regulatory and enforcing powers under the White Act in protection of reservations and the natives' exclusive rights in them or that he cannot utilize those powers and the White Act sanctions conjointly with his authority under the 1936 Act to create reservations and protect them against unlawful invasion. The White Act proviso aside as inapplicable in purpose and intent to the specific situation, i.e., one involving a validly created reservation, nothing in either statute forbids his doing so. Each is in terms a conservation measure, having the common object of preserving and protecting the Alaskan fisheries from unrestricted exploitation and destruction by commercial interests. That community of purpose is not affected by the fact that the one Act secures this protection for the public generally, the other for the special benefit of the native population. That difference merely means that two interests require and are given protection against a third, not that the latter acquires immunity against protection afforded either or both of the other two.

Accordingly, in my opinion, the White Act proviso being inapplicable to waters included in a valid Indian reservation, the two statutes may be applied to serve their basic common objects of conserving and protecting fisheries in all Alaskan waters, including those set apart as valid Indian reservations, as against the private, commercial exploitation and monopoly which the White Act and the Act of 1936 were intended to prevent. The statutes should be construed and Congress, I think, intended them to be construed, so as to work together harmoniously, not irreconcilably, to achieve this object.

I therefore cannot regard Amended Regulations § 208.23(r) as 'void as a whole.' The regulations are valid, in my judgment, and enforceable by application of the White Act sanctions except possibly in one respect. This is the feature by which the Secretary has delegated to the Village of Karluk the authorit  by ordinance to license others than natives of the village to fish on terms fixed by the ordinance subject to the Secretary's approval. Conceivably that power might be exercised by the village, through licensing others than native inhabitants, in a manner which would violate the spirit of the White Act proviso, i.e., by licensing favored commercial interests so as to create essentially the type or types of monopoly or favoritism the proviso intended to forbid.

It is one thing of course for the Secretary to give the natives exclusive rights of fishing in the reservation's waters. It may be entirely another for him to delegate to them the licensing of others, even retaining the power to approve the licensing ordinances as Amended Regulations § 208.23(r) does.

Whether or not the authority conferred by the regulations upon the village to license others is valid is a question, however, which I think it neither necessary nor appropriate to answer in this proceeding, for reasons affecting the existence and propriety of exercising equity jurisdiction in this case, now to be stated.

I seriously doubt the existence of equity jurisdiction on the showing made by this record. But in any event I do not think it should be exercised to afford respondents the relief they have sought. The Secretary of the Interior, whose regulations and authority are at stake, has not been made a party to the suit. Nor has the Village of Karluk, which obviously is vitally interested. Moreover, the allegations concerning threatened enforcement of the regulations by White Act sanctions seem questionably sufficient to establish the basis for equitable intervention, in view of circumstances appearing in the record and asserted in briefs filed here questioning their sufficiency.

But, if all these factors are put to one side, one other remains which in my opinion precludes granting the equitable relief respondents seek. Their claim was founded in the complaint, as I think it had to be, not only upon the alleged invalidity of Amended Regulations § 208.23(r), but also upon the asserted invalidity of Public Land Order 128. However, they have not been successful in the latter attack, for the Court holds that Public Land Order 128 is valid and was effective to create the Karluk Reservation according to that order's terms.

This ruling cuts all valid ground from beneath respondent's claim to aid from a court of equity. With it, they come not as persons entitled of right to enter the reservation and fish, but solely as trespassers having no right of entry, but seeking only to avert the incidence of possible remedies for threatened wrongful entry. In effect the Court's decision is that respondents, although they have not put forward their case in this light, are entitled to have it so determined and to have equitable relief which prevents possible application of White Act sanctions against them. I cannot agree that persons so situated have standing to invoke the assistance of a court of equity. Accordingly I think the judgment should be reversed and the cause should be remanded with instructions to dismiss it.

Mr. Justice DOUGLAS joins in Part I of this opinion. 

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