Mrs. VOKACEK. I would have to ask Mr. Johnson.

Mr. JOHNSON. He is not recommending we not appeal. He is setting up two courses for appeal we might take. I haven't discussed it with Mrs. Vokacek.

Mrs. VOKACEK. I personally wouldn't take it to the Ninth Circuit Court, I would take it to the Supreme Court.

Mr. UTT. If it is upheld by the Supreme Court of the United States as based on that treaty there isn't very much that can be done. Mrs. VOKACEK. That is very true, but it does affect us.

Mr. UTT. Certainly it affects you.

Mrs. VOKACEK. We are trying to grow.

Mr. UTT. When these natives go to the local school does the native service allow a per capita payment to the city for education of the natives?

Mrs. VOKACEK. No, sir.

Mr. TAYLOR. The statement which we have just heard reminds Mr. Veley and me of the several weeks hearings that we completed just before we came to Alaska when we were with the Indian Affairs Subcommittee. During that 3-week period we heard many, many persons discuss the question of competence and incompetence among the Indians.

Perhaps there are as many-not as many, but there were a large number of Indians who were asking to be declared competent, and they were objecting to the rules that had been laid down which prevented them from applying for a certificate of competency. On the other hand, there were a great number of persons who said that the Indians, who were rather wealthy in certain cases, should apply for these certificates. However, they were not doing so because of the same tax problem that you mention here. A very interesting case is found in one of our States we visited, in which the area director for the Bureau of Indian Affairs is a half Indian and half non-Indian, but he is not a competent Indian in the legal sense of the word. He has, however, a great number of non-Indians working for him who are legally competent. He rather jokingly said it would be impossible for him to apply for and receive a certificate of competency unless the man working for him would sign that application. It was rather awkward. He said, "I am your boss and you have to declare me competent. And if I applied for my certificate and you said I was competent, it certainly would be rough on you in trying to get a recommendation from me at a later date."

Mr. BARTLETT. Mr. McFarland?

Mr. MCFARLAND. No questions.

Mr. BARTLETT. Mrs. Vokacek, does the city of Kodiak provide all municipal services for those who live on land held under restricted deeds?

Mrs. VOKACEK. You mean sewer and water?

Mr. BARTLETT. And police protection.

Mrs. VOKACEK. Certainly, fire protection and everything.

Mr. BARTLETT. Is there an ANS school here now?

Mrs. VOKACEK. No, sir.

Mr. BARTLETT. What degree of native blood, if you know, is required before a restrictive deed can be issued?

70969-5614

Mrs. VOKACEK. There is no absolute degree, although they say they try not to issue to anyone holding less than one-sixteenth. A great many of these people are of Russian descent and actually it would be very hard to determine the degree of native blood.

Mr. BARTLETT. The holder of a restricted deed cannot sell that land without first obtaining permission from the Bureau of Indian Affairs?

Mrs. VOKACEK. That is what the law says, Mr. Chairman, but it has been done. It has been done in the past according to the records of the commissioner's office for this precinct. And the person who has bought it under a quitclaim deed has applied themselves to the Secretary of the Interior and after, as I say, considerable time has' been successful in obtaining an unrestricted deed to the property. The sale has been approved.

Mr. BARTLETT. The approval was secondary then?

Mrs. VOKACEK. Yes.

Mr. BARTLETT. Thank you very, very much.

Mr. UTT. A quitclaim deed could not convey much. I could give you a quitclaim deed to the Elks Club, but you probably couldn't get it cleared finally.

Mrs. VOKACEK. That is true, but quitclaim deeds have been given and people have been successful in getting it cleared.

Mr. BARTLETT. Without objection, the material mentioned by Mrs. Vokacek will be made a part of the record.

(The document referred to follows:)

IN THE DISTRICT COURT FOR THE TERRITORY OF ALASKA THIRD DIVISION

OPINION

UNITED STATES OF AMERICA, PLAINTIFF, V. CITY OF KODIAK, A MUNICIPAL CORPORATION, DEFENDANT

Civil No. A-45211. Filed June 22, 1955

James M. Fitzgerald, assistant United States attorney, Anchorage, for plaintiff. Buell A. Nesbett, of McCutcheon & Nesbett, Anchorage, for defendant. This is an action brought by the United States Government on behalf of certain Indian and Eskimo natives, residents of the city of Kodiak, in equity, seeking to enjoin the city of Kodiak from foreclosing certain alleged tax liens on the real property of said Indian and Eskimo natives lying within the corporate limits of the city of Kodiak.

The title to the real property here in question was acquired by the natives by way of restrictive deed from the townsite trustee. There are also other persons who own real property in the city of Kodiak, by virtue of like restrictive deeds, who are not parties to this action.

The plaintiff alleges that the city's action is without legal authority and contrary to an act of Congress, and seeks to have said parcels of land stricken from the tax rolls and the petition for the sale of all such property denied, and requests that the defendant, its agents, employees, and officers be permanently restrained from adding such parcels of property to any future tax rolls of the defendant. The plaintiff alleges that it has no other adequate remedy at law and that unless the defendant is enjoined from taking further action in effectuating the sale of the various parcels of property that the government will suffer irreparable damage, since the action of the city will constitute a cloud upon the title of the property held by such natives, and will involve the United States Government in a multiplicity of suits in order to clear the title to said properties in accordance with the statutory obligations of the Government to its wards.

The restrictive deeds were issued under the authority of title 48 U. S. C. A. sec. 355 (a) which provides as follows:

"355 (a). Indian or Eskimo lands set aside on survey of townsite. Where, upon the survey of a townsite pursuant to section 355 of this title, and the regulations of the Department of the Interior under said section, a tract claimed and occupied by an Indian or Eskimo of full or mixed blood, native of Alaska, has been or may be set apart to such Indian or Eskimo, the townsite trustee is authorized to issue to him a deed therefor which shall provide that the title conveyed is inalienable except upon approval of the Secretary of the Interior: Provided, That nothing herein contained shall subject such tract to taxation, to levy and sale in satisfaction of the debts, contracts, or liabilities of the patentee, or to any claims of adverse occupancy or law of prescription: Provided further, That the approval by the Secretary of the Interior of the sale by an Indian or Eskimo of a tract deeded to him under this section and section 355c of this title shall vest in the purchaser a complete and unrestricted title from the date of such approval."

Succinctly stated, the defendant bases its defense on the following grounds: (1) That the statute is an unconstitutional violation of the property rights of the natives; (2) That the statute wrongfully deprives the city of the power to tax; (3) That the statute provides an unconstitutional delegation of authority to the townsite trustee; (4) That the United States never had any vested interest in certain parcels of land privately owned by the native at the time of the treaty. Granting that the parcels of land in question were public lands, with fee simple title vested in the United States of America at the time Alaska was ceded to the United States of America, it is indisputable that the United States of America could deal with the lands in any manner it saw fit through acts of Congress (Utah Power & Light Co. v. United States, 243 U. S. 389, 404). The Congress, desiring to protect and benefit the Indians and Eskimos in the newly acquired territory, passed the act of May 25, 1926 (sec. 355 (a), Title 48 U. S. C. A. supra). In that act it specifically provided, in order to guarantee that the lands would remain in the possession and beneficial use of the Indian or Eskimo, that they would be nontransferable without the approval of the Secretary of the Interior, and also specifically provided that they could not be taxed or taken through taxation procedures, and could not be taken for debts or through execution procedures until after the title had passed to someone else upon approval of the Secretary of the Interior.

So far as I am able to ascertain, this is a case of first impression, although there are a number of other cases which have been tried and determined in the Territory of Alaska which are relatively germane and allied to the problems presented.

A provision somewhat similar to 48 U. S. C. A. 355 (a) is found in 25 U. S. C. A. 412 (a). This provision was upheld against attack by the taxing authority of the State of Oklahoma (Board of County Commissioners v. Seber (1943) 318 U. S. 705). The decision there was based on the relation of guardian and ward which existed between the Federal Government and the Indians, and the powers which the Government has with respect to its Indian wards.

The defendant here contends that under Article III of the Treaty of Cession between Russia and the United States of America, dated March 30, 1867, the civilized tribes of Alaska, among whom the defendant includes the native people of Kodiak, were classed with the white inhabitants of the Territory and that they cannot now be made wards of the Government. Article III of the Treaty of Cession contains the following:

"The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years, but if they should prefer to remain in the ceded territory, they, with the exception of the uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property and religion. The uncivilized tribes will be subject to such laws and regulations as the United States, may from time to time, adopt in regard to the aboriginal tribes of that country."

It has been held that this article, coupled with other acts of Congress, granted citizenship to the civilized tribes of Alaska (In re Minook (1904) 2 Alaska 200). However, the granting of citizenship to Indians has been held not inconsistent with the guardian-ward relationship (Board of County Commissioners v. Seber, supra). It has been determined that the uncivilized tribes are wards (U. S. v. Berrigan (1905) 2 Alaska 442).

In distinguishing between the status of the civilized and uncivilized tribes, the defendant has pointed to the fact that the civilized tribes were considered Russian citizens, whereas the uncivilized tribes were not. Be that as it may, there is a distinct parallel between the thinking of the Russian Government of that time and our Supreme Court on the subject of the coexistence of citizenship and the guardian-ward status. The following, from the Imperial Russian Ukase of 1844, is taken from pages 214–216 of In re Minook in the absence of a copy of the instrument itself:

"ARTICLE NO. 3

"Of the Creoles

"SEC. 236. Children born of European or Siberian father and a native American mother, or of a native American father and a European or Siberian mother, shall be regarded as Creoles, equally with the children of these latter, of whom a special record is preserved.

"SEC. 239. The colonial authorities shall exercise special guardianship over the Creoles and their property.

"ARTICLE NO. 4

"Of the Settled Tribes

"SEC. 249. These people are recognized by the government-equally with all the others as Russian subjects. So long as they remain in the colonies they shall constitute a distinct rank of people, and shall not be entitled, by meritorious service, or for any other cause, to pass into another condition.

"SEC. 272. The Russian clergy in making converts among the natives shall use conciliatory and persuasive measures, in no case resorting to coercion. "SEC. 273. The colonial authorities shall see that the natives are not embarrassed under pretext of conversion to the Christian faith.

"SEC. 274. Natives professing the Christian faith who, through ignorance, may transgress the ecclesiastical regulations, shall not be subject to fines and punishment-instruction and persuasion are the only remedies in such cases. "SEC. 276. Controversies in regard to property shall be adjusted, in the case of the tribes subject to Russia, by the local chiefs and superintendents."

The instrument from which the foregoing is taken was, in part, a grant of certain governmental functions to the Russian American Company. As can be seen, though the Russian Government may have granted citizenship to both Creole and native, the Creole was expressly considered a ward, and the native impliedly so.

Defendant's argument that Indians, once removed from the status of wards, cannot again be made wards, is not applicable here for the reason that there is no showing that the natives of Alaska, of either civilized or uncivilized tribes, have ever been treated as other than wards. To the contrary, both the legislative and executive branches of government have been treating the natives of Alaska as a special class, without regard to their ancestry at the time of the Treaty of Cession. While it is true that little was done until after the turn of the century which would clarify the status of the native people, it is equally true that Congress took little legislative notice of the existence of the Territory until the passage of the Organic Act in 1912 (37 Stat. 512). In some of the legislation which was passed during the forty-five years between the Treaty of Cession and the Organic Act, the native people were treated as a special class, regardless of civilized or uncivilized status (e. g., 16 Stat. 180 (July 1, 1870); 28 Stat. 52 (April 6, 1894); 33 Stat. 616 (January 27, 1905)). There fore, it is my opinion that the native peoples of the Territory, regardless of the former status of their ancestors, whether civilized or uncivilized, have, as a class, been in the past, and are now being treated as wards of the United States Government.

From this, it follows that the decision of the Supreme Court in Board of County Commissioners v. Seber, supra, though perhaps not controlling, is strongly persuasive.

Based upon the presumption of the constitutionality of the statute and the failure of the defendant to overcome that presumption, coupled with the holding in the Board of County Commissioners v. Seber, I am of the opinion and find that the statute is constitutional and a valid exercise of congressional legislative power.

As to the attack upon the tax-exempt status of the lands, another basis for the foregoing decision exists.

The basis of guardian and ward status was necessary to the decision in the case of Board of County Commissioners v. Seber, supra, due to the concept of separate sovereignty which lies at the root of all relations between the states and the federal government. In the Territory of Alaska there is only one sovereign-the Federal Government.

"The government of the territories of the United States belongs, primarily, to Congress; and secondarily, to such agencies as Congress may establish for that purpose. During the term of their pupilage as territories, they are mere dependencies of the United States. Their people do not constitute a sovereign power. All political power exercised therein is derived from the General Government" (Snow v. U. S. (1873), 85 U. S. 317, 319–320).

"It possesses only such powers as are granted by the Congress of the United States. Its revenues, its property, and its very existence depend upon the will of Congress. It can he enlarged or annihilated at the will of Congress" (Wickersham v. Smith, (1927) 7 Alaska 522, 536).

Thus, it can be seen that the government of the Territory of Alaska is but an arm of Congress, to be controlled by Congress.

The city of Kodiak is a municipal corporation existing under and by virtue of the laws of the Territory of Alaska.

"Municipal corporations have no inherent power of taxation. On the contrary, they possess, with respect thereto, only such power as has been granted to them by the constitution or the statutes” (16 McQuillin on Municipal Corporations, p. 15-16).

Thus, the Alaskan municipal corporation is controlled by Congress. "The only powers to be exercised by the municipal corporations in the Territory of Alaska must be provided by Congress, and only such powers as are so expressly delegated or necessary to carry into effect those expressly granted may be exercised" (Town of Fairbanks v. Independent Meat Market (1910), 4 Alaska 147).

A necessary corollary to the power to grant governmental functions to a subsidiary government is the power to limit such a grant. Municipal corporations in the Territory of Alaska have the power to tax by virtue of 48 U. S. C. A. 44. The exemption provision found in 48 U. S. C. A. 355 (a) constitutes a limitation upon the power to tax previously granted to municipal corporations and, as such, is a valid exercise of the power of Congress over Alaskan municipal corporations. Defendant further contends that as to some of the property, the government had no title to convey. This raises the question of the jurisdiction of the townsite trustee over the land in question. Article II of the Treaty of Cession provides in part:

"In the cession of territory and dominion made by the preceding article, are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property."

From this it is apparent that property which could be classed as "private individual property" did not pass as public lands. Thus, such land as was "private individual property" at the time of the Treaty of Cession and has continued to be such would not be within the jurisdiction of the townsite trustee (King v. McAndrews, 111 Fed. 860, 863-864 (C. C. A. 8th, 1901)).

During the course of the trial, the defendant called one William or Willie A. Anderson, Sr., now owner of lot 8 in block 18 of the Kodiak Townsite, who testified that the only type of deed that he could obtain from the townsite trustee was a restrictive form of deed, although he had requested an unrestricted deed. He further testified that his father had obtained a quit claim deed (defendant's exihibit E) to this property from one Leonidas Volkoff on the 25th day of April 1889 known as lot 59, which is identifiable upon a plat which was admitted in evidence as defendant's exhibit I, which is a copy of a print traced by an engineer on the 8th day of November 1946 of the Naval Air Station at Kodiak, Alaska, of the military reservation of Fort Kodiak, Alaska Territory, as of February 1869. Mr. Anderson testified that this same parcel of land was conveyed by one P. Slaksoutoff, late governor of the Russian colonies in America, to Leonidas Volkoff on the 24th day of April 1868 (see defendant's exhibit E); that he was born upon this property and inherited the same from his mother, Mary Anderson, as evidenced by a will dated the 3rd day of February 1921 (defendant's exhibit G) which bequeathed all of her property,