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I MEANTIME, AND THUS PRE
| VENT THEM FROM PASSING
INTO THE HANDS OF ONE
! GREAT FISH TRUST. (Ap
! plause) THAT CAN BE DONE.”
Now the point I wish to make
in tins last quotation is that in
1916 I favored this identical plan
I of leasing these trap sites in
j Aiaskan waters, and the House
(of Representatives agreed with
me. I have favored that plan
ever since, and do now FAVOR
IT.
Possessory Rights in Trap Sites
The old English pound net was
carried into the colonies, and
when salmon canneries were es
tablished in Calfornia and Ore
gon more than a half century
ago, the canners constructed
thi m there. Traps or pound nets
were constructed in Alaska by
the salmon canners as early as
1878, or more than fifty years
ago. For half a century the right
of the trap owner, who con
structed and used his trap on
Alaskan salmon grounds, was
respected and protected by the
courts under the law which gives
the prior occupant of public
lands the exclusive right thereto
as long as he continues his actu
al use and occupation thereof.
A contest arose between the prior
occupant and a “jumper” in re
cent years, and Judge Brown, of
the Valdez division held that
the dismantling of the trap in
the fall, after the fishing season
had lapsed, constituted an aban
donment of the trap site, and
that the “jumper” who got on
the site a few days earlier than
the prior occupant in the spring
was entitled to the legal posses
sion thereof.
Columbia Salmon Co v. Berg,
5 Alaska 538, 541.
Alitak Packing Co. v. Alaska
Packers, 6 Alaska 277.
These decisions were made
public subsequent to the contest
against the Alexander Bill or
Dec. 13, 1916.
Immediately after the state
ment made by me in that con
test in relation to leasing traf
sites, quoted above, this colloquj
[ took place.
"Mr. naray. wnen une iu-i
cates a pound net some one
else can locate right on top of
it, can he not?
“Mr. Wickersham. Oh, no.
“Mr. Hardy. Why not?
Mr. Wickersham. Because of
the law of possession. There is
now no conflict among these
people. Indeed there is so lit
tle conflict among them that
that sort of litigation would
not keep one lawyer alive.
***Mr. Wickersham. Theoreti
cally, yes; but as a practical
law, no. We settled all those
questions in the West long ago.
Our mining claims, town sites,
and even our land claims on
unsurveyed lands are now well
understood and settled. The
right of possession is as well
respected there as any law on
the statue books.
“Mr. Hardy. Out on the
Ocean?
“Mr. Wickersham. Out on
the ocean or anywhere else.
This is not on the ocean. This
is on the tidelands, and when
MEN GO THERE AND LOCATE
THEIR TRAPS AND TRAP
SITES THEIR RIGHTS ARE
RESPECTED AND SECURED
BY THE ACTION OF THE
COURTS. SO THERE IS NO
QUESTION OF THAT KIND.”
In giving this opinion, it
seems now that I was mistaken,
for Judge Brown and at least
one other district judge in Alas
ka, have rendered the decision
above recited, thus revising my
views of the law. The question,
| however, has not been passed on
l\ by the United States Circuit
3 Court of Appeals, and is yet an
| open one.
The Substitute Bill of 1916
Again
‘‘ Since the Brown decision had
- upset the half century custom
of the trap men in Alaska, anc
introduced “jumping” and liti
gation in its place, the cannerj
interests naturally sought a waj
out of the dilema which threat
ened many of them with finan
! cial ruin. I was consulted ty
! one of the most prominent mei
1 interested in the question an(
I * was asked to prepare a bill tha
should protect both the public
and private interests, if it could
be done. I agreed to do that,
and being employed I drew a
bill embodying the very plan
which I suggested to the Com
mittee on Merchant Marine and
F isheries ana to the House of
Representatives in 1916.
Herewith I enclose for your in
formation, copy of bill drawn by
me. It was submitted by me to
Mr. Paul, who has taken, as you
1 know, a very great interest in
fishery legislation for Alaska
and it was published in his pa—
per, the Alaska Fisherman, on!
! the January number, 1928, ac-S
1 companied by a letter of expla- |
| notion signed by myself. There
after the bill was discussed by
| some of the leading cannery
imen of Alaska and some minor
changes made in it. It was then
thought by all of us to be in j
shape to protect, FIRST, the i
public interest, second, the trapj
fishermen and cannerymen!
from “jumping,” and THIRD, to
bring trap sites and traps under
the same plan of control as that j
adopted in the Act of June 6
1924, as amended by the Act of
June 18, 1926.
The Alexander Bill Still
Threatens
It is generally assumed, and,
possibly the courts will hold,;
that no legislation has yet been
enacted by Congress to control|
the location and licensing of
fish trap sites in Alaska—that
this most important of all Alas
kan fishing gear is yet an “out
law” to be constructed catch-as
can by the first canneryman
who can “grab” the site in the
spring. Conceding that the sit-1
uation, how long will it be be-!
fore another effort will be made
to put over another Alexander
Bill? Who will be the Delegate
to Congress from Alaska at that
time, and will the Act b.e better
or worse than the one now sub
mitted to your consideration?
Certainly every important ele
ment of salmon canning in Alas
i ka is now admittedly controlled
by the Bureau of Fi heries under
the Acts of 1924 and 1926 except
ing only traps and trap sites.
; Pome bill will pass Congress soon
? for their control. Why not pass
a bill which will fully protect the
public interest when it can be
done without danger to those
: interests?
Trap sites are now owned and
controlled under the law of pri-;
or possession and occupancy by
trap fishermen, who acknowl
edge no right to the Bureau of
Fisheries to control or license
them, except the right to pre- (
vent them from catching fish.
If the bill presented to you !
should be enacted into law, the
situation will be far better than
it is now, for then, while the
same trap fishermen may be in
possession of the same trap
sites, that possession will be
limited and controlled by the
provisions of this bill, and the
-1 trap site will no longer be an
| outlaw. The possession will be;
i limited by a short term lease
. i with such limitations as will en- j
s able the Bureau of Fisheries to|
11 control its use. The owner al-1
] so will pay a reasonable fee for.
>,the fish the trap takes, and
1 there will also be peace in re
) spect to possession. There can
2 be no loss to the United States
) or to the Territory, but a decid
’ ed gain both in control and in
t license fees.
J Trap men have owned and
t controlled these trap sites for
- fifty years, without themselves
i being limited or controlled in
y their possessory rights. The bill
under discussion will change all
i that, in the interest of the pub
t lie, and permit public ownership
i and control of these important
adjuncts to the public fisheries.
Trap Sites Under the Acts of
1924 and 1926
After a careful examination
of the language giving power to
the Secretary of Commerce to
control the fisheries of Alaska,
contained in Section One of the
Acts of June 6, 1924, and June
18,1926, it is my judgement that
if the Secretary should, by rules
and regulations, provide for giv
ing trap fishermen an exclusive
license to construct and main
tain fish traps on then long used
sites, the courts might sustain
his power and authority to do so.
Such a trap and trap site would
not constitute the grant of an
‘exclusive or several right of
fishery,” for the law recognizes
them as legal Ashing gear, and
if it should be so held all traps
would now be barred fromAsh
ing, for they constitute an ex
clusive right in the area occupied
by them. No court has yet held
ihe Secretary may thus control
trap sites, and no attempt has
yet been made by the Secretary
to exercise that power, but con
ditions may reach the point
where he will do so. In my judg
ment the bill under consideration
is much more favorable to the
public interest and to the private
interests of Alaskans than the
exercise of such unlimited power
by the Secretary of Commerce.
The President’s Power to Create
Fish Reservations
In the case of Alaska PaciAc
Fisheries, et al, v. United Staees,
240 Fed. 274, the United States
Circuit Court of Appeals, Ninth
Circuit, laid down the rule that
Territory of Alaska, exercises
all sovereignty, national and
municipal, and hence, in view
of the powers of the King ov
er lands Aowed by the tide,
United States has complete
control over Alaskan waters
Aowed by the tide v/hich are
within its maritime jurisdic
i tion. CONSEQUENTLY, THE
PRESIDENT IN VIEW OF
HIS POWERS TO RESERVE
PUBLIC LANDS, MAY, TO
CARRY OUT THE PURPOSE
OF AN ACT OF CONGRESS
RESERVE SUCH WATERS.” .
In other words, if it seems ne
cessary to carry out the pur
poses of the Acts of Congress of
June 6, 1924 and June 18, 1926,
! the President may reserve all the
j ( rap sites in Alaska, and place
i them under the management
{and control of the Secretary of
Commerce. And if the President
should reserve such sites and the
traps and fish caught thereon
would not be subject to taxation
or any levy of license tax or other
control by the Territory of Alas
ka.
Territory v. Annette Island
Packing Co., 6 Alaska, 585.
Territory v. Annette Island
Packing Co., 289 Fed 671.
Certiorari denied: 263 U. S.
708, 68, L. Ed. 517.
! In short it will be dangerous
;t,o the public interests and to
Alaska fishermen, If the trap
sites shall be reserved by the
Rules and Regulations of the
j Secretary of Commerce under
Acts of 1924 and 1926 or by an
executive order by the resident
of the United States. If reserv
ed in either way they may be
come thereby, instrumentalities
of the United States, and not
subject to taxation in any form
by the Territory. The only safe
and certain way for the Terri
tory or its people to have any
interest in them, subject to tax
ation, is by the enactment of the
bill under consideration in some
form.
In conclusion, I earnestly re
quest you to carefully examine
the proposed bill, and submit it
to every fair test; determine
whether it will not leave the trap
question in better shape for the
public interest, as well as the
private interest; submit this let
ter, if you like, to some attorney,
in or out of any Department, and
discover if the conclusions which
occur to me are the fair ones to
draw from the present laws and
the proposed Act; and, finally,
if you reach the conclusion
which I have, that it is in the in
terest of the public good, and the
protection and conservation of
the Alaska Fisheries, then intro
duce the bill, or permit someone
else to do so, and let it become a
law. If that shall occur the whole
scope of the Alaska fisheries will
then be where they ought to be,
under the control and manage
ment of one executive head.
Very truly yours,
(signed) JAMES WICKERSHAM
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