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both real and personal, as well as mixed, to her son, Willie A. Anderson, although the evidence will reveal that such will had never been probated.
One William J. Robertson was also called as a witness, who testified that he owned lot 16, block 10, that is identifiable by plaintiff's exhibit No. 2, which is a plat of Kodiak Townsite, U. S. Survey No. 2537 (b) as surveyed by F. W. Williamson, Cadastral Engineer, G. L. O., from July 24 to November 12, 1940, and that title to this property was likewise held by him through restrictive deed, while, at the same time, he had purchased this lot from one Ben Craft. There was no evidence of Craft's prior title nor of the deed which Mr. Robertson had to this parcel from Mr. Craft admitted in evidence.
Both Mr. Anderson and Mr. Robertson are of part native Aleut descent. However, I place no significance upon the degree of native blood any of the property holders may or may not have, for the reason that Mr. Charles H. Jones, Area Realty Officer for the Alaska Native Service, called as the first government witness, testified that it had been the practice of his office and the Bureau of Land Management and their officers, including the township trustee, not to convey property to anyone having less than 116 native blood, although it was his opinion, and that of his office, that Congress had not limited the Department of the Interior, or the township trustee, to any particular degree of native blood necessary before they could convey land to natives under the provisions of a restrictive deed since no blood-degree limitation is a condition of the statute (48 U. S. C. A. 355 (a), supra).
I find that lot 8 in block 18 of the Kodiak Townsite now owned by Mr. William or Willie A. Anderson, Sr., is not private individual property owned by him or his progenitors, for the reason that the treaty concerning the cession of the Russian possessions in North America, which was signed on the 30th day of March 1867 by the respective parties, and which was thereafter ratified by the United States on May 28, 1867, and the ratifications exchanged on June 7, 1867, and the proclamation thereof made by the United States on the same date under Article I, which provided as follows:
"Territory ceded. His Majesty the Emperor of all the Russias agrees to cede to the United States, by this convention, immediately upon the exchange of the ratifications thereof, all the territory and dominion now possessed by his said Majesty on the continent of America and in the adjacent islands * * *." and Articles 2, which provides as follows:
“Public property ceded. 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. It is, however, understood and agreed, that the churches which have been built in the ceded territory by the Russian Government, shall remain the property of such members of the Greek Oriental Church resident in the territory, as may choose to worship there. Any government archives, papers and documents relative to the territory and dominion aforesaid, which may now be existing there, will be left in the possession of the agent of the United States." and Article 4, which is as follows:
"Formal delivery. His Majesty, the Emperor of all the Russias shall appoint, with convenient despatch, an agent or agents for the purpose of formally delivering to a similar agent or agents appointed on behalf of the United States, the territory, dominion, property, dependencies and appurtenances which are 'ceded as above, and for doing any other act which may be necessary in regard thereto. But the cession, with the right of immediate possession, is nevertheless to be deemed complete and absolute on the exchange of ratifications, without waiting for such formal delivery." and Article 6, which is as follows:
"Payment: Effect of cession. In consideration of the cession aforesaid, the United States agree to pay at the Treasury in Washington, within ten months after the exchange of the ratifications of this convention, to the diplomatic representative or other agent of His Majesty the Emperor of all the Russias, duly authorized to receive the same, seven million two hundred thousand dollars in gold. The cession of territory and dominion herein made is hereby declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders; and the cession hereby made, conveys all the rights, franchises,
and privileges now belonging to Russia in the said territory or dominion and appurtenances thereto.
"Ratification. When this convention shall have been duly ratified by the President of the United States, by and with the advice and consent of the Senate, on the one part, and on the other by His Majesty the Emperor of all the Russias, the ratifications shall be exchanged at Washington within three months from the date hereof, or sooner, if possible.” (Treaty concerning the cession of the Russian possessions in North America, vol. I, pages 35–38, 1949 Alaska Compiled Laws Annotated.) precluded P. Slaksoutoff, the late governor of the Russian colonies in America, from conveying title to any property at Saint Paul's Harbor, Kodiak Island, on the 25th day of April 1868 for the reason that, as between the parties, a treaty takes effect, in the absence of any provision to the contrary, from the time it is signed, with its subsequent ratification relating back to that date; but in its application to private rights, a treaty is effective only from the exchange of ratifications (87 C. J. S. 1940, p. 941).
I further find that the city of Kodiak has failed to prove that William J. Robertson obtained private individual property rights to lot 16 in block 10 of the Kodiak Townsite through the purchase of said property from Ben Craft in 1938. ! In conclusion, I find that the defendant is without power to tax the parcels of land here in question, and that the plaintiff is entitled to the equitable relief prayed for in its complaint. I, therefore, Order that the parcels of land conveyed by restrictive deeds to certain residents in the city of Kodiak by the township trustee, and which are on the city of Kodiak's petition for sale pending before this court for their failure to pay taxes assessed by the city of Kodiak thereon, be stricken from said petition of sale, and, further, Order that the defendant, City of Kodiak, its agents, employees and officers be permanently enjoined and restrained from placing such parcels of land as are held by such resrictive deeds upon any future tax rolls.
I further find that each party shall bear its own respective court costs and attorneys' fees.
Findings of fact, conclusions of law and a decree shall be prepared by the Government, in accordance herewith. Dated at Anchorage, Alaska, this 22d day of June, 1955.
J. L. MCCARREY, Jr.,
United States District Judge. (Subsequently, Mr. Olsen, area director, Alaska Native Service, submitted the following letter at the request of Delegate Bartlett:) DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS,
ALASKA NATIVE SERVICE,
Juncau, Alaska, October 12, 1955. Hon. E. L. BARTLETT, Delegate of Alaska, House of Representatives,
Washington, D. C. MY DEAR MR. BARTLETT: Reference is made to a request by the subcommittee of the House of Representatives on Territorial and Insular Affairs for a report on the Kodiak case involving an attempt by the city of Kodiak, Alaska, to tax restricted Indian lands.
The above case was originally started when the city placed on their tax rolls the restricted native-owned lots for which deeds were issued pursuant to the provisions of the act of May 25, 1926 (44 Stat. 629; 48 U. S. C. A. 355a-355d), by the Alaska Townsite Trustee. This Act authorizes the townsite trustee to issue deeds to the natives placing their property in a nontaxable status, but the city ignored this law and preceeded to attempt to tax such property. After the native Aleut owners became delinquent in the payment of their taxes, for several years, the city attempted to have a tax sale and dispose of such restricted property, in an effort to force the payment of delinquent taxes. At that time, the district ignored this law and proceeded to attempt to tax such property. After the native city from selling the restricted property. This case remained in this status for several years until last April when the United States brought an action in Federal court at Kodiak against the city (civil case No. A-5211).
When this case was brought to court, the city attempted to prove that the Imperial Russian Government had passed title to individuals covering the property in the original townsite of Kodiak before the ratification of the treaty of 1867 between the United States and Russia when our Federal Government acquired the Territory but the city was unable to furnish such proof. Even if the city had proved their point in the case, it would have been practically an impossibility to determine the metes and bounds description of the tracts involved be cause there was no map presented to the court which could prove where any of the lots were located which were conveyed to the individuals by the Russian Government before the treaty of 1867. In other words, the city was attempting to prove that the original townsite of Kodiak was not public domain land and as such, the United States had no jurisdiction over the area. However, the original townsite of Kodiak was surveyed as a townsite in 1940 and United States Survey
2537B covering it was approved by the General Land Office on September 11, · 1941. A few years after that date a patent was issued by the United States to
the townsite trustee and the first restricted deeds were issued to the native claimants in 1945 although some additional restricted deeds have been issued since that time. As heretofore stated, these restricted deeds were issued by the trustee pursuant to the provisions of the act of May 25, 1926. In addition to such lands being nontaxable, they also cannot be sold or mortgaged except with the approval of the Secretary of the Interior or his duly authorized representative.
The above-mentioned case against the city of Kodiak was held before Judge J. L. McCarrey, Jr., in Kodiak on April 6, 1955, and he went into it very thoroughly in addition to all of the testimony which was presented both by the United States and the city. The judge was very much interested to determine whether native Indians, Aleuts, and Eskimos in Alaska were wards of the Federal Government.
Under date of June 22, 1955, Judge McCarrey rendered his decision in the above case in which he ruled that the city was without the power to tax the restricted lands owned by the native people.
The judge also ruled that the natives were wards of the Federal Government similar to the Indian people in the continental United States. The act of May 25, 1926, authorizes the townsite trustee to issue restricted deeds to Indians and Eskimos (including Aleuts) of full or mixed blood, so the question of whether or not they are wards of the Federal Government in this case was immaterial, in the issuance of such deeds, although the city of Kodiak attempted to prove that they were granted citizenship before the acquisition of the Territory from Russia. It was brought out at the hearing that the Indians in the United States and Alaska were granted citizenship by Congress in 1924. This act also includes Eskimos and Aleuts.
For your additional information, you will find enclosed a copy of Judge McCarrey's decision in the above case.
Reference is made to the act of Congress of (48 U. S. C. A. 35d) authorizing the townsite trustee to issue unrestricted deeds to competent Indians and Eskimos (including Aleuts) of full or mixed blood who are claiming and occupying tracts of land in townsites. This act contains the necessary authority to issue unrestricted eeds to the natives whether they have already been issued restricted deeds or if no deed of any kind has as yet been issued to them by the townsite trustee. It is the present policy of the Indian Bureau to encourage competent natives to apply for unrestricted deeds, but it is still up to each individual to decide for himself whether he or she desires to apply for an unrestricted deed.
Due to the fact that the city of Kodiak has had the above-mentioned case before the courts for such a long time, the question of taxation has scared the natives in that city and for that reason they are rather reluctant to change the titles of their property to an unrestricted status. Most of the native people in Kodiak are part blood Aleut and are, for the most part, competent to handle their own affairs.
At the present time there are 38 lots in a restricted status in the original townsite of Kodiak.
This ofhce will continue to encourage the competent natives in Kodiak to apply for unrestricted deeds. You might be interested to know that during the past year the status of 2 lots changed from a restricted to an unrestricted status and at the present time, 2 applications are pending in the office of the townsite trustee for the issuance of unrestricted deeds which will remove the present restricted status from 2 additional lots.
From the foregoing, you will see that this office has, to the best of its ability, attempted to protect the interests of the native people and at the same time encourage the competent natives to obtain unrestricted deeds so that they may pay taxes to the city of Kodiak the same as any other property owner. It is hoped that we have furnished you all of the information that you desired in this
WILLIAM H. OLSEN, Area Director, Mr. BARTLETT. The next witness is Mayor Johnson.
STATEMENT OF HON. LEON H. JOHNSON, MAYOR OF THE CITY OF
Mr. JOHNSON. My name is Leon H. Johnson. I represent the chamber of commerce today. I have been a resident of the city of Kodiak for 13 years, 3 of which were spent in the military.
I want to talk to you rather briefly today about our road net here.
First of all, to brief you a little I might tell you that the roads outside of our military reservation and outside of our city limits are under the control for maintenance and building and reconstruction of the Alaska Road Commission, which is a part of the Department of the Interior. At the present time they are maintaining 80 miles of road with a staff of 3 men. I was given to understand by their local manager that their budget for last year was $73,000. Thirty percent of this figure or roughly $22,000 was spent for salaries of these 3 men and maintenance of the roads locally.
The Alaska Road Commission is maintaining a standard of roads that is way below the standard even in the Territory, inasmuch as these roads were constructed by the military during the war, the Second World War, not the Korean war, for purposes of moving heavy gun equipment and other military equipment to some of our outlying areas. It became natural then these roads would be taken over and maintained by the road commission. Because of this and because of the defense preparation these roads were of low standard. I wish to bring that out.
We in our communities through the Alaska Road Commission have a sizable amount of equipment for roadbuilding, but we seem to be ever plagued by a woeful lack of enough men and enough money to do the job that actually is necessary if we are to prosper as a community.
Most of the roads that they are now maintaining are between 12 and 13 years old. They run adjacent to our area out into the area of the grazing country you have heard about this morning. I think something was mentioned about if grazing was to prosper, it would depend a large amount on how good a road system we have.
The Territorial highway department, which is another agency that enters into the picture, is, of course, as most of you know, woefully lacking in funds, and through the increase in the gas tax at the last session of the legislature we hope to get some relief. However, in talking to the individuals from this Department, we find the demand for better roads in Alaska is such that we can expect very little relief in the way of our road system from that agency in the near future.
During 1953, the road commission being aware of our road system was not on a par with other places, took a traffic count of four main highways in our road system. One road was 1,050 cars per day.
The base road which you good people came over last evening had a check of a thousand cars per day. Mill Bay Road, which is another
road which leads off to the north of our community, had a count of 750 cars a day, and the Kalsin Bay-Chiniok road which serves the grazing area we heard about has about 90 cars per day.
We have been given to understand that our community has the third highest registration of vehicles in the Territory. We haven't been able to confirm this, however, but we do know we have about 2,500 registered vehicles in our community, and we think our road system is not up to that par.
We are also told by the Road Commission when traffic counts reach a thousand vehicles per day that they think seriously of paving that portion of the road that has that much traffic. To date not one foot of pavement on Kodiak Island has been put in by the Alaska Road Commission or any other bureau that has to do with roads in the Territory.
The military have recently completed quite a paving program within the military boundaries. The city of Kodiak, through the goodness of the Navy Department, has been able to work out an agreement whereby we could pave a portion of the city streets and also a portion of the road that is not under our control out to this area. This has been costly for the city of Kodiak. You have just heard the statement we suffer in tax revenue because of restricted deed property. A good share of our lands within the city is Government controlled, and most small communities in Alaska are strapped for tax revenue. We spent approximately $30,000 in our latest paving program, and this is completely our funds for building roads in the city.
I think if any of you get to drive over some of our streets, you will rotice we need streets and roads badly even inside the city.
The picture on our roads becomes a little further confused when another agency, called the Bureau of Public Roads under the Department of Commerce, is also in the picture. They have, as I understand, military access roads and also roads within public parks. We are not, of course, concerned with any public park roads because we have none. lIowever, we do believe we have military access roads, and we have appealed to them on numerous occasions for funds or some help in work on this access road. To date we have been very unsuccessful. On the other hand, we now find they are conducting a survey which will reroute the road and, if so, will render the military project or a portion of it and the city's paving project inoperable.
As you came in last evening it was quite dark and rainy, so you didn't get to see what we know as the slide area, which is very dangerous between here and the base. Each year we have a number of accidents. None of them, however, have been fatal, fortunately.
Various groups in the city, including the city council, chamber of commerce, have been after these various Government agencies to do something with the slide area. About a year ago we had rocks come down and strike one vehicle in which a marine and his wife were riding. One of the rocks came through the top of the car and bashed in the marine's head, and he lost control and went over and hit a guard rail and did not go over the 300- or 400-foot cliff on the left-hand side of the road.
There have been numerous cases of bad accidents, high maintenance costs, and we certainly hope we can get some Government agency to do something about this slide area on the road system. We think prob