Tlingit & Haida Indians of Alaska v. United States

Lakamoke, Judge,

delivered the opinion of the court:

This is a suit against the United States by the Tlingit and Haida Indians of Alaska. 1 The jurisdictional act 2 under which this suit is brought is set forth in full in finding 1. The act authorizes the court to “hear, examine, adjudicate, and enter judgment upon any and all claims which said Indians may have, or claim to have, against the United States.” Section 1 of the act defines the Tlingit and Haida Indians of Alaska as “all those Indians of the whole or mixed blood of the Tlingit and Haida Tribes who are residing in Russian America, now called the Territory of *318 Alaska, in the region known and described as southeastern Alaska, lying east of the one hundred and forty-first meridian.” Section 2 of the act describes and defines the claims which are authorized to be submitted to the court for “settlement and determination of the amount equitably and justly due to said Indians from the United States,” as (1) all claims, legal or equitable for lands or other tribal or community property rights taken from the Tlingit and Haida Indians by the United States without compensation therefor, or (2) for the failure or refusal of the United States to compensate the claimant Indians for lands or other tribal or community property rights claimed to be owned by the claimant Indians and which property or property rights the United States appropriated to its own uses without the consent of the Indians, or (3) for the failure or refusal of the United States to protect the interest of the claimant Indians in their lands or in other tribal or community property, and for the loss of the same (a) at the time of the purchase of Alaska from Eussia in 1867, or (b) at some later date prior to the passage of the jurisdictional act. The same section provides that the loss to the claimant Indians of “their right, title, or interest, arising from occupancy and use, in the lands or other tribal or community property, without just compensation therefor, shall be held sufficient ground for relief hereunder.” Section 4 of the act provides, among other things, that it shall be no bar to the suit that the Indians may have been made citizens of the United States or that they may have severed their tribal relations with the Tlingit and Haida Tribes. Section 7 sets forth those Tlingit and Haida Indians who are entitled to share in any judgment of the court and provides for the making of Tlingit and Haida rolls. Section 8 of the act provides for the deposit of the judgment in the Treasury to the credit of each community of Tlingit and Haida Indians, and for the use of such money for the benefit of all the Indians. It also provides that none of the funds recovered or interest thereon may be used for per capita payments.

On February 29, 1956, the court, under Eule 38(b), ordered a separate trial be held of the issues relating to the *319 liability of the defendant with respect to (1) whether the claimant Indians had Indian title to the lands and waters claimed in Alaska at the time in 1867 when Alaska was purchased by the United States from the Russians, and if so, the extent of land and waters so owned; (2) whether the plaintiffs’ Indian title rights in the land and waters were taken or impaired by the United States in 1867, or (3) assuming plaintiffs had Indian title to lands and waters in Alaska in 1867 and thereafter, and such rights survived and were not later abandoned, whether plaintiffs are entitled to recover under the act. The issue of abandonment of any property or rights therein and the amount of recovery and the amount of offsets, if any, were matters reserved for further proceedings.

After extensive hearings held pursuant to the above order, the Commissioner of the Court made detailed findings of fact concerning the culture and characteristics of the Tlingit and Haida Indians, the manner in which they used and occupied the claimed lands, and the extent and location of the land so used and occupied in 1867 and long prior thereto. Findings 7 through 57.

The Commissioner found that the Tlingit Indians were a homogeneous and interrelated group of Indians speaking a single language different from that of their neighbors; that they were a nonagricultural people who were noted primarily for their use of marine products and wood; that their social structure emphasized formalistic family groups or clans, each clan having rights, respected by other clans, to the use of particular land and water areas of economic importance such as ocean waterfronts, bays, rivers, streams, or inland hunting areas; that the clans were acutely aware of their identity as Tlingit Indians in general and as members of households and clans in particular; that they had no central political body to govern the entire Tlingit people, although collectively they occupied a contiguous stretch of coast on the mainland and adjoining islands and were closely unified by common customs, language, family ties, trade, ceremonials, and a consciousness of their oneness as a homogeneous group. The Haida Indians were also a homogeneous group having customs and modes of life *320 closely resembling those of the Tlingits. The Haidas spoke a different language and did not use the interior of their islands to the same extent that the Tlingits did. Neither the Tlingits nor the Haidas were organized politically in a manner resembling the tribal organizations of the Indians of the United States, and the relatively large subgroups within each group were not organized politically as are Indian tribes usually. These subgroups, sometimes called “tribes” or “kons” by the Indians themselves, took names which had geographical significance, being the name of the river, bay, or island which the particular clan used and occupied. A map introduced in evidence as plaintiffs’ exhibit 169 is reproduced herein to show the location of the principal villages of the Tlingit and Haida Indians between 1867 and 1884 and also in modern times, and the areas occupied by the various kons. The somewhat complex social structure of the various divisions and subdivisions of the Tlingit and Haida Indians is described in finding 24.

In general', the Tlingits and Haidas were each divided into two groups or moieties, and each moiety was divided into a number of clans. Membership in a clan descended through the mother, and marriage within the clan or within the moiety was forbidden so that a clan was often distributed or divided among several villages, some of the larger clans or families being widely scattered throughout southeastern Alaska. Since no one in a clan could marry anyone else from that clan and had to associate with another clan from the opposite moiety, two local 1 clans from opposite moieties settling in a village constituted the closest thing to a “tribe” as that term is known in its usual sense. Usually, however, several local clans would settle in a single village. The villages consisted of large houses in each of which one or more families belonging to the local clans would live, and each house had a local clan designation. Each local clan in a village owned and used, in accordance with the Tlingit and Haida manner, large land and water areas adjacent to the village. The several larger Tlingit and Haida subdivisions which took the names of their principal winter villages are listed in finding 25.

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*321 The land and water owned and claimed by each local clan division in a village was usually well-defined as to area and use. Clan property included fishing streams, coastal waters and shores, hunting grounds, berrying areas, sealing rocks, house sites in the villages, and the rights to passes into the interior. Tracts of local clan territory were parceled out or assigned to the individual house groups for use and exploitation and the chief of the local clan, assisted by other house chief elders of the clan, formed a sort of council which controlled the clan’s affairs. Smaller areas belonging to a house within a clan remained clan property whenever a house ceased to exist. The modes of living and of dealing with property among these Indians were regulated by rigidly enforced tradition and custom, and, except under special circumstances, there was no authority in a clan or clan division to sell, transfer or otherwise dispose of, in whole or in part, any claimed area of land or water. Land was transferred from one clan to another only as compensation for damages, as gifts in connection with marriages and the like, and such transfers were infrequent. In addition to the areas which were claimed and used exclusively by individual houses, there were certain common areas which could be used by all the clans comprising a particular group of clans residing in a single geographical area. Certain designated offshore fishing and sea mammal hunting areas in larger bodies of water, channels and bays and stretches of open sea could also be used in common by all members of the various clans residing in a particular geographical area, but Indians residing in other geographical areas had no right to such use.

The Tlingit and Haida Indians made extensive use of most of the natural resources of their country, both of the land and sea, including the fish, sea mammals, shellfish, kelp and seaweed, animals, birds, timber, berry bushes, plants and minerals. Finding 33. Prior to our acquisition of Alaska, these Indians enjoyed a relatively high degree of civilization, were industrious and prosperous, and the accumulation of surplus wealth was a basic feature of their economy. From their earliest history these Indians carried on extensive trade with each other, with neighboring tribes and later with the Russians and the Americans. Large surpluses of materials *322 were necessary to these people and were regularly accumulated to carry on their trading and also to make possible the yearly traditional ceremonial activities and potlach important to their prestige. The clans and groups which used the mainland were, on the whole, better off materially than the Indians who lived on the islands because the mainlanders controlled the valuable trade carried on with the interior Indians. During the winter months the Tlingit and Haida Indians lived in their permanent villages. In the summer, the Indians went, by family and clan, to their customary summer camps to make use of the fishing, hunting and gathering areas belonging to the house or clan. The riverine clans along the mainland coast were able to secure great quantities of their staple foods for the long winter seasons close to their permanent villages and thus spent longer periods in their winter or permanent villages than did the other groups. The Indians residing along the coast did more inland hunting and overland traveling than did the groups living on the islands. The mainland Indians hunted large and small land mammals and traded extensively with the Athabaskan Indians, their neighbors to the east. For this purpose they traveled through well defined trails and passes inland for long distances beyond the coastal range of mountains.

The Tlingit and Haida Indians made intensive use of all accessible and usable shore areas within their claimed territories. Closely related to and integrated with their use of the shores, was their use of the waters of southeastern Alaska. In addition to the oceans, bays, inlets, rivers and streams fronting on the shores, and the inland lakes accessible from the shores, the Indians used the inland streams and rivers as means of travel. Even the nonnavigable portions of the streams were useful for access by portage to navigable inland lakes. The waters of southeastern Alaska formed a network of routes for travel by canoe used by the Indians to make their seasonal rounds of fishing, hunting, gathering and trading expeditions, and in the winter months, these routes were used when the clans exchanged visits with each other on occasions of ceremonial feasts. These routes of travel cut deep into the forests and inland reaches of *323 Tlingit and Haida territory and gave the Indians access by water to the greater part of southeastern Alaska.

The Indians used the accessible forests and inland areas of southeastern Alaska for hunting and trapping as well as for gathering roots, berries and other vegetable products. These Indians made extensive use of wood and bark for their houses, canoes and totem poles. Some items, such as lichens used for dye, took the Indians into very high and otherwise barren areas inland.

The social organization, the propensity for trade, and the industrious character of the Tlingit and Haida Indians, impelled them to use to the fullest the many resources available and accessible to them in the claimed areas of southeastern Alaska. The peculiar social structure of their groups rendered their society a highly competitive one in which rank depended in large part on the accumulation, display and disposal of great material wealth. This wealth was secured by fishing, hunting, gathering, and by trade with each other, with neighboring Indians of the interior, and later with the Russian and American traders. The increasing demand by American and European markets, especially for furs, made these Indians exert themselves even more to make heavy use of all of the accessible portions of their territory.

The Commissioner has estimated from all the evidence that the population of the Tlingit and Haida Indians in early historic times was approximately 10,000; that in 1867, it was approximately 6,000, and that at the present time the population is approximately 7,000.

From early times until 1867, and for a number of years thereafter, the Tlingit and Haida Indians made intensive and exclusive use of their territory to the exclusion of other Indians and of white explorers, traders, miners and settlers. There is no evidence of any other native people pressing to move into Tlingit or Haida territory in 1867 or prior thereto. For a number of years subsequent to the purchase of Alaska by the United States in 1867, there were only minor and limited intrusions into this territory by way of a few trading posts established along the coast and the settlement at Sitka.

The record as a whole establishes, and the Commissioner has found, that as of 1867 the Tlingit and Haida Indians *324 exclusively used and occupied all of that area of southeastern Alaska claimed by those Indians and shown on a map introduced in evidence as plaintiffs’ exhibit 168 and reproduced herein. In finding 57 the Commissioner described the area so used and occupied from time immemorial and in 1867. In the same finding the Commissioner pointed out certain areas that were not actually used for any productive purpose by the claimant Indians and this aspect of finding 57 has given rise to exceptions by both parties and to a dispute as to the significance of the exclusions or limitations thus made by the Commissioner.

The areas of territory which the Commissioner found were not put to any productive use by the claimant Indians consist generally of inaccessible or useless areas of land located within and completely surrounded by the larger area which was intensively used for productive purposes by the Indians, and also certain inaccessible mountain crests which were useful only as marking the borders of the claimed and used territory and forming a barrier between the claimant Indians and their neighbors to the east. The Commissioner pointed to nonnavigable waters not used by the Indians, glacier areas having no resources of value for the Indians, barren rocky slopes and inaccessible gorges which at places formed impassable barriers to the interior, and high mountain peaks covered by deep snows the year around. The Commissioner did not attempt to estimate the acreage of these barren and inaccessible areas inasmuch as the record does not now afford a basis for making such estimates.

The Government has excepted to finding 57 for the reason that it does not give the precise location or areal estimates of barren, inaccessible land or of inaccessible or unusable waterways, and that, as a result, it is impossible to ascertain from the findings the amount of land and water which was actually used and occupied by the Tlingit and Haida Indians and for which the Government will be liable in the event the court decides that defendant took or failed to protect the interest of the Indians in such land and water. In support of its contention that the findings on the location and extent of land and water used and occupied by the Indians are inadequate, defendant relies on United States v. Seminole *325 Nation, 299 U.S. 417 , Causby v. United States, 328 U.S. 256 , and United States v. Penn Manufacturing Co., 337 U.S. 198 .

Plaintiffs except to the exclusions contained in finding 57 on the ground that where the record established use and occupancy by Indians of contiguous areas which together form a single contiguous territory containing some non-exploitable or inaccessible land and water within the outer-boundaries of exploitable and exploited land and water, and where it is obvious, as here, that the Indian occupants of the overall territory exercised dominion and control over the barren and inaccessible areas within their lands to the exclusion of all other Indians, it has been the established practice of this court to consider the entire area as being owned by the Indian claimants. Put another way, plaintiffs urge that the use and occupancy test applied to determine the amount of land used and occupied by a claimant Indian group has never been applied to require a showing of actual exploitation for material resources of each unusable internal tract found to be encompassed within the outerboundaries of an Indian title territory.

Insofar as the past practice in this court and at the Indian Claims Commission is concerned, the accessibility or exploit-ability test has not been applied to determine the extent of Indian title ownership where the inaccessible or useless areas were encompassed within an overall area found to be actively used and occupied by the claimant Indians. These useless (to the Indians) and sometimes inaccessible areas become important, however, at the valuation stage of proceedings in Indian litigation involving land, and it is at this stage that the land is classified and the barren and inaccessible areas are measured and eliminated from valuation.

In the case of the Uintah and White River Bands of Ute Indians, 139 C. Cls. 1 , the Indians sued the United States under a special jurisdictional act for just compensation for the taking of nearly a million acres of land in the State of Utah. The land was described in the findings as a horseshoe shaped tract surrounded on three sides by mountains “the crest of which was the reservation boundary.” The findings of fact noted that some of the mountain crests exceeded 13,000 feet in elevation and that about 90 percent of *326 the lands in suit lay at elevations above 8,000 feet. The upper reaches of the north arm of the horseshoe were rocky barren ridges and peaks rising abruptly from large glaciated basins located high in the Uintah Mountains and much of the land in that north arm was barren and inaccessible. The reservation containing such land had been carved out of a larger territory which the Utes had held by aboriginal use and occupancy title, i.e., Indian title. Uintah Utes of Utah v. United States, 5 Ind. Cls. Comm. 1 (1957). In creating this reservation and defining its boundaries, the parties to the treaty were following a well known custom of giving the area some visible and familiar boundaries such as mountain crests. Obviously the Indians had never used and occupied these high, barren peaks for any productive purpose when the land was held by them under Indian title and they would not use those inaccessible crests in the sense of exploiting them for any productive use once the mountains were included within or as a boundary of the reservation.

Indian lands, prior to the extinguishment of Indian title, were not surveyed. They were not fenced to shut out trespassers or to mark boundaries. But the land which Indian groups claimed and used did have boundaries which were known to them and to their neighbors, and those boundaries were frequently stretches of land useless for any purpose except for serving as markers to define the limits of their land ownership.

In the Uintah case, sufra, as in numerous other Indian cases, it is apparent that within the confines of an area of land found to have been used and occupied to the exclusion of all others, there were smaller areas of land or water which were not used for any productive purpose because such areas were not capable of use by the Indians. Such areas might be stretches of desert land or swamps. Furthermore, rivers and streams which criscrossed Indian lands might be used extensively for fishing or travel in those portions which could be used for those purposes, and be largely neglected in those portions not so usable. It has never been supposed that those interior areas of land or those portions of streams and rivers did not “belong” to the tribe which used and occupied in a *327 more active sense the areas completely surrounding them. In the case of Alcea Band of Tillamooks v. United States, 103 C. Cls. 494 , aff'd. 329 U.S. 40 , the Indians used the streams which rose in the mountains forming the eastern boundary of their lands only so far as those streams were productive of fish. The crest or summit of the Coast Range of Mountains was “used” by the Alcea only as a boundary marker. The useless portions of their streams were not used by the Alceas but the Alceas saw to it that no other Indians trespassed in their vicinity, and the summit of the Coast Range was recognized and respected by neighboring tribes as the boundary of the Alcea lands.

Obviously some account must be taken of the amount of barren, useless and inaccessible lands and waters which are encompassed within the area of land exploited exclusively by an Indian claimant group, or which form the borders of their lands. Such account is taken in connection with the valuation of their lands for the purpose of making an award if the court decides that there is liability on the part of the Government. In the past it has been at the valuation stage of the proceedings (where the case has been tried in two stages as here) that the land to be valued has been classified as to types, the amount of acreage of each type estimated as nearly as possible, and no value assigned to land classified as barren and inaccessible. See finding 69 in the Uintah case, supra.

While, in the event of a judgment, the net monetary award would be the same whether land classification and acreage determination of barren and inaccessible land is undertaken at the liability stage or at the later valuation stage, it seems to us that there are compelling practical reasons for postponing such classification and acreage determination of inaccessible and barren land until the valuation stage of the proceedings. Classification of land types and determination of exact acreage of each type so classified is a matter for experts. It is an expensive and time-consuming matter for both the Indian claimants and for the Government. If the Government is held to be not liable in the suit brought, such classification and acreage proof would be useless since the precise extent and location of usable and nonusable land is *328 not essential to the overall issue of liability. If the Government is held to be liable to the Indians then the proof on valuation will have to include land classification and the elimination from valuation of all areas of barren and inaccessible land and waters which were of no use or value to the Indians.

We do not mean to depart in any sense from the rule of long standing that Indian title to lands must be shown by proof of actual use and occupancy from time immemorial. But it is obvious from a study of the many cases involving proof of Indian title to lands both in this court and at the Indian Claims Commission that where the Indians have proved that they used and occupied a definable area of land, the barren, inaccessible or useless areas encompassed within such overall tract and controlled and dominated by the owners of that surrounding land, as well as the barren mountain peaks recognized by all as the borders of the area of land, have not been eliminated from the area of total ownership but rather have been assigned no value in the making of an award, if any, to the Indians.

Because of the established practice of this court and the Commissiou, 3 and also because of the practical considerations mentioned above and the fact that the ultimate monetary result will not be affected by postponing proof of land *329 classification and measuring until the valuation stage of the proceedings, we conclude that failure to prove the precise extent of inaccessible, barren or unused land at this stage is not fatal to the claimants on the issue of liability. We hold that the Tlingit Indians owned by Indian title the area shown on plaintiff’s exhibit 168, reproduced herein, and that the Haida Indians owned by Indian title the area indicated on the same map, as of 1867 when the United States acquired Alaska, and for several years thereafter.

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*329 Before passing to the matter of whether or not the Government took the property of the Indian claimants or refused or failed to protect their rights in such property, we consider the Government’s contention that under a proper interpretation of the special jurisdictional act these Indians may not recover in any event. Defendant urges that because neither the Tlingit nor Haida Indians were organized politically as a “tribe,” they could not have owned any “tribal or community property” within the meaning of the jurisdictional act 4 which uses those precise terms to describe the property which may be made the basis of suit. Defendant does not contend that these Indians are not authorized to bring suit under the act because they did not constitute a tribe or tribes, but merely that they cannot recover because they were not a tribe or tribes and therefore did not own land and property as tribes. Defendant relies on the rule of statutory construction which requires that special jurisdictional acts permitting suit against the sovereign be strictly construed against the party so authorized to sue. Schillinger v. United States, 155 U.S. 163 . It is true that the jurisdictional act refers to “lands or other tribal or community property rights” and neither the Tlingit nor Haida Indians were organized politically as tribes for the purpose of owning land or for any other purpose.

A similar argument concerning statutory construction of a statute enlarging the Government’s consent to be sued was *330 made by defendant in the case of Otoe and Missouria Indians v. United States, 131 C. Cls. 593 , cert. den. 350 U.S. 848 . The subject matter of some of the claims sued on in that case was Indian title land and the Government argued that because section 2 of the Indian Claims Commission Act did not specifically mention Indian title land as a basis for a claim under the act, such land could not be made the subject matter of a suit brought under that act, citing the Schillinger case, supra. The claimant Indians in that case argued that because the Indian Claims Commission Act was remedial legislation it should be liberally construed in favor of the class it was intended to benefit and in the light of the injustices it was intended by Congress to correct. The court discussed the various rules of statutory construction and interpretation urged by the parties and noted that the Act was in the nature of a special' jurisdictional act in that it broadened the Government’s consent to suit and was thus in derogation of its sovereignty; that it conferred special privileges upon Indian claimants apart from the rest of the community and was to some extent in derogation of the common law; that, on the other hand, it was remedial legislation in that it was intended to remedy defects in the common law and in preexisting statutory law affecting Indians, and was designed to correct certain injustices of long standing which were well known to Congress, such injustices having to do, among other things, with the manner in which the Government dealt with the Indians concerning land they held by Indian title. The court then stated at page 602:

Fortunately, under these circumstances, rules of interpretation and construction are subordinate to the principle that the object of all construction and interpretation is the just and reasonable operation of the particular statute, and accordingly it should be possible to construe the statute liberally to effect its remedial purposes and intent, and strictly to limit undue abrogation of fundamental rights or to prevent undue extension of extraordinary remedies.

Eesorting to the legislative history of the Indian Claims Commission Act, the court concluded that Congress had intended that Indian title lands should be the basis of claims brought under the Act.

*331 In the instant case the special jurisdictional act, read as a whole and in the light of its legislative history, reveals that Congress was fully aware of the fact that the Tlingit and Haida Indians did not have the sort of tribal organization which the Indians of the United States had. Congress knew that despite this fact, each was a homogeneous group of Indians having its own language and customs. Congress knew that these Indians did not own land as the Indians of the United States owned lands, that is, as a tribe, but rather that land was held by them more as white people own land, although even in the case of the Tlingits and Haidas, land was not owned by individuals but by family groups and clans. The fact that the United States never attempted to make treaties with these Indians is not significant since shortly after the acquisition of Alaska from Russia in 1867, Congress enacted the Act of March 3,1871, 16 Stat. 544 , 566, prohibiting any further dealings with Indians by treaty. 5

When Congress was considering the special jurisdictional act under which this suit was brought it knew that the claimants were urging that land, fishing, hunting and timber rights, which were claimed or owned by individual families or clans of the Tlingit and Haida Indians had been taken from them leaving these people with barely sufficient resources on which to exist. One of the early bills considered by Congress (S. 1196,72d Cong., 1st Sess.) provided that not only could tribal and community claims be adjudicated by the court, but also individual claims for the loss of property and property rights, and it also provided that any award should be distributed per capita. In a report on this legislation prepared by the Department of the Interior it was suggested that these two provisions be eliminated and the claims be treated as though they were tribal claims despite the lack of a true tribal political organization in either group of Indians and despite the fact that the land was owned by smaller family or clan groups. It was also suggested that any award should be made for the benefit of each group as a whole and apportioned to the several Tlingit and Haida *332 communities, rather than for the individual members or families in the groups. The report 6 gave the following reasons for the suggested amendments:

* * * the resources treated in the bill are capital resources, serving at a former time to maintain the entire native population and, before the advent of the white man were available for the use of successive generations. Therefore, I argue that the equivalent of these resources if and when restored to the natives should be in the form of capital for the permanent benefit of the natives concerned. * * * I therefore suggest that an amendment be submitted providing for a “tribal” fund to be used to secure such permanent productive “tribal” assets as may be decided upon by the Indians concerned and by the Commissioner of Indian Affairs.

In accordance with the above suggestions Congress eliminated individual claims from the act and prohibited the making of any per capita payments from the award, if any, granted by the court. 7

Thus it is clear from the legislative history of the special jurisdictional act that when Congress used the terms “tribal or community property rights” in the act it intended to refer to property and property rights which belonged to the claimants as they were defined in the act which claimants Congress understood were not organized as a tribe or tribes and did not own property as a tribe or tribes. To say *333 that Congress authorized nontribal Indians to sue in connection with a type of property right which Congress knew they did not have, i.e., tribal property, is to say that Congress knowingly performed an absurd and useless act in enacting the special jurisdictional legislation. And this brings us to another well known rule of statutory construction which is that it is the duty of courts to give to acts of Congress an intent which does not result in an absurdity if that is at all possible. Lloyd Lester Jennings, et al. v. United States, 144 C. Cls. 28 , and cases cited therein. We have no difficulty in concluding that in enacting the special jurisdictional act under which this suit is brought, Congress intended that the Indians identified in section 1 should be allowed to sue for and recover judgment for the loss of property or rights in property which belonged to them in the manner in which they owned land and property; and that when Congress employed the word “tribal” to describe the property which should be the basis of suit under the act, it did not use the word in its usual sense. Holy Trinity Church v. United States, 143 U.S. 457 .

Defendant nest contends that if the court should hold that the act permits local clans or families to sue and recover for land or property lost because of the acts of the Government, then the plaintiffs may not recover because the Commissioner has not found the well defined hunting, fishing and gathering areas used by each clan. Inasmuch as the judgment, if any, is not to be paid to individuals or families or clans but rather is to be deposited in the Treasury for the benefit of the several communities of Tlingits and Haidas listed on the roll provided for in section 7 of the jurisdictional act, and since the Commissioner has found that in the case of each group the clan holdings formed one contiguous and well defined area, the extent of individual or family or clan holdings of land and water areas is not a matter of importance. The map introduced in evidence as plaintiffs’ exhibit 169 and reproduced herein shows the locations of the various communities and the areas of land and water claimed and used by each.

The Commissioner has found and we have adopted his findings that the use and occupancy title of the Tlingit and *334 Haida Indians to the area shown on the map reproduced herein was not extinguished by the Treaty of 1867 between the United States and Russia, nor were any rights held by these Indians arising out of their occupancy and use extinguished by the treaty. The negotiations leading up to the treaty and the language of the treaty itself show that it was not intended to have any effect on the rights of the Indians in Alaska and it was left to the United States to decide how it was going to deal with the native Indian population of the newly acquired territory.

We next turn to the question whether, subsequent to 1867, the United States did or failed to do anything that interfered with or deprived the Indians of their property or any interests which they had in such property, giving rise to an action which the jurisdictional act has authorized this court to hear and adjudicate.

For approximately 17 years after the United States acquired Alaska, the Tlingit and Haida Indians continued to use and occupy their traditional areas without molestation or restriction. Between 1867 and 1877 the Army of the United States was in charge of the administration of Alaska and Army posts were established at Tongass, Wrangell and Sitka. When the Indians first learned that Alaska had been sold to the United States they objected and advised the United States officials that the Russians had lived in Alaska territory only with the permission of the natives. The behavior of the Government officials and the few white traders and settlers during the early years gave the Indians no cause for alarm and the trade which developed between the Indians and the whites was greatly to the material advantage of the Indians. On rare occasions Army officers found it necessary to call together influential members of clans in order to keep peace within the Indian groups and between the Indians and the whites. During the Indian wars in Idaho, Alaska was virtually without a government. In 1879 the United States Navy took over the civil and military government of southeastern Alaska with headquarters at Sitka.

In 1877 the first fish cannery was built at Klawak. Soon another cannery was built at Sitka and miners began working Schuck Creek at the head of Wyndham Bay. In 1879 *335 a factory for the extraction of oil and the manufacture of fertilizer was built at Killisnoo. American traders came in boats to trade with the Indians of southeast Alaska during the summer months, the fur trade being the principal intercourse between the Indians and white people. In 1880 the Chilkat chiefs agreed to allow white miners to pass through their lands in order to prospect for gold and in that same year gold was discovered in considerable quantities at Rockwell, now known as Juneau, in Tlingit territory. In 1881 Commander Henry Glass persuaded the Indians living in the vicinity of Rockwell to move out of the town and the miners and white men who had settled there raised a sum of money to pay the Indians compensation for their land and for damages.

In 1883 a number of new fisheries were started by white settlers and a large fishing station was opened at Pyramid Harbor. At about this time the timber resources of the area were beginning to attract attention. Although the Indians were beginning to be concerned about the increasing number of white people settling in their lands, the actual interference with their way of life was not considerable and they were reluctant to antagonize the Navy which had burned two or three native winter villages as punishment for Indian crimes against the white settlers.

Hp to 1884 the land laws of the United States had not been extended to the territory of Alaska and although settlers and miners filed claims to the land they had preempted in the Customhouse in Sitka, they were unable to secure legal title to the land. On May 17, 1884, Congress passed the Organic Act of Alaska, 23 Stat. 24 . Section 8 of that Act provided that Alaska should be a land district and that a land office for the district should be located at Sitka; that the laws of the United States relating to miming claims should be in full force and effect in the district which would be administered under regulations to be made by the Secretary of the Interior. It provided that persons who had already located mines or mineral privileges or who had occupied and improved claims should not be disturbed in such claims but should be allowed to perfect their titles to the claims by payment; that land, up to 640 acres in each instance *336 which had been occupied as missionary stations among the Indians should be continued in such occupancy until Congress should take further action. The act provided that the general land laws of the United States were not being put in general effect in Alaska.

With respect to the Indians inhabiting Alaska, the Organic Act provided, in Section 8, as follows:

* * * That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now- claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress: * * *. [Italics supplied.]

Section 12 of the Organic Act provided that the Secretary of the Interior should arrange for an investigation into the condition of the Indians of the Territory and for the making of a report on them and what lands, if any, were to be reserved for their use, what provision' should be made for their education, and what rights by occupation of settlers recognized, for the purpose of helping Congress to decide what limitations or conditions to impose when the land laws of the United States were extended to Alaska.

Thereafter, in the subsequent administration of the Organic Act of 1884 and in the rulings of the United States Land Office, miners were permitted to locate, work, perfect and patent mining claims in areas which the Tlingits and Haida Indians had aboriginally used and occupied. The saving provision of the act relating to Indian rights in the land they occupied and claimed was applied only to protect them from the extension of mining claims in areas where the Indian permanent villages existed Or other areas which were actually and visually occupied and improved by individual Indians. Other areas of Indian use and exploitation were not protected.

In 1885 the Eeport authorized by the Organic Act was made concerning the Indians of Alaska. The Eeport recommended that they should have deeds to the land they actually used and occupied and that they should be secured in the use of their fishing sites. The Eeport also recommended that the Indians be given the same right to acquire land as *337 the white people had. It was recommended that the timber lands of Alaska which were largely inaccessible at that time be opened for sale in large tracts for a small price. Nothing was said about any possible Indian claim to these timber areas. It was recommended that coal lands also be sold at low prices. The Keport did not recommend the preserving to the Indians of areas traditionally used for hunting, fishing and gathering, it being assumed that these areas would be opened for white settlement and exploitation.

Between 1884 and 1891 patents and legal title could only be secured to cover mineral claims and there was much agitation on the part of settlers to have the land laws of the United States extended to Alaska so that fishing claims and home sites as well as town and industrial sites might be legally patented to the squatters who had taken them over. Such claims were filed in Sitka and they did have some effect since, after filing, most settlers and the Indians felt the claims were good against all but the Government and that at any time the land laws would be extended to Alaska and such claims would then be validated.

By 1889, 11 sawmills and 36 salmon canneries were in operation in southeastern Alaska. Fishing stations were located by whites at every point affording a good supply of fish. As a result of this activity, the Indians were having a difficult time securing enough fish for their own use, game was largely frightened away, and there was little work for Indians in the canneries which imported Chinese workmen. In 1890 the Indians of southeastern Alaska secured the services of an attorney who wrote to the President concerning their problems. From then on the Indians made claims and protests over their treatment and the rapidly diminishing state of their land and water holdings. They finally asked that they be given a reservation and the protection of the Government. There was little official response to repeated protests and requests for help and the official policy of the Government seemed to have been to ignore the claims of these Indians arising from the aboriginal use and occupancy of southeastern Alaska and instead to create a situation in which the Indians would be forced to assimilate into the white man’s society and system of property ownership.

*338 On March 3,1891, Congress enacted a law ( 26 Stat. 1095 ) which dealt a severe blow to any hopes the Tlingits and Haidas might have had of regaining their lands. The Act permitted Alaskan lands to be entered for townsite and industrial site purposes and it exempted from the operation of the law only Indian lands to which the Indians had prior rights by virtue of “actual occupation.” The Act gave the United States the power to regulate the taking of salmon from Alaskan waters. It provided that the cutting of timber, which had previously been prohibited, might be done for agricultural, mining, manufacturing and domestic purposes under Department of Interior regulation. No mention was made of any rights claimed by the Indians in land bearing timber. Section 15 of the Act set apart and reserved the Annette Islands in Tlingit territory as a reservation for the use of a group of Christian Tsimshian Indians who had formerly resided in British Columbia and had squatted on the Islands with their British leader, William Duncan. The reservation, known thereafter as the Metlakahtla Indian reservation, was administered by the Secretary of the Interior and became very prosperous. It was probably the success of this reservation which prompted the Tlingits and Haidas to ask that.they be given a reservation where they could develop their own fishing, mining and timber industries unmolested by the white settlers and used under the protection of the Government.

The Act of May 14,1898, 30 Stat. 409 , extended the homestead laws of the United States to Alaska. Homesteaders were allowed to take up 80 acre tracts and the Secretary of the Interior was authorized to reserve for the use of the Indians suitable tracts of land along the waterfront of any stream, inlet, bay or seashore for “landing places for canoes and other craft used by such natives,” thus giving some sort of recognition to the fact that the Tlingit and Haidas were still living on the land bordering the waters mentioned. No provision was made, however, to protect the land holdings or water rights of these Indians.

By the Act of June 6,1900, 31 Stat. 321 , the United States laws relating to mining claims and mineral locations were extended to Alaska. Again the Indians were to be pro *339 tected only in lands “actually in their use and occupation” and by that time it must have been apparent to Congress that the administrative interpretation of such language, which had appeared in prior acts, meant only village and home sites in intensive daily use, excluding hunting, fishing and gathering areas which these Indians had once used to the exclusion of all others.

Section 24 of the Act of March 3, 1891, supra, authorized the President to set apart and reserve public lands bearing forests as public reservations. By presidential proclamations issued on August 20, 1902, on September 10, 1907, and on February 16, 1909, some 16,000,000 acres of Tlingit and Haida lands were set apart and reserved as the Tongass National Forest, exempting from such reservation only lands which had already been patented or disposed of pursuant to public land laws applicable to Alaska. Pursuant to the Act of June 8,1906, 34 Stat. 225 , some 2,297,598 acres of Tlingit land in the northern part of southeastern Alaska was, by Presidential proclamation of February 26,1925, set apart as Glacier Bay National Monument.

The special jurisdictional act now before us authorizes these Indians to bring suit against the United States on all claims, legal or equitable, which they may have for lands or other tribal or community property rights “taken from them by the United States without compensation therefor,” and that the loss to the Indians of their right, title, or interest, “arising from occupancy and use,” in such lands or other tribal or community property without just compensation therefor, shall be held by this court to be sufficient ground for relief under the act. The act also authorizes the claimant Indians to bring suit on all claims which they may have arising out of the failure or refusal of the United States to protect their interests in land or other tribal or community property in Alaska and for the loss of the use of such property.

The events described above as taking place between 1884 and 1900 do not, except for the setting apart of the reservation on the Annette Islands, represent any outright takings by the United States of Tlingit and Haida land or property rights. However, the manner in which the Government *340 officials administered the Organic Act of 1884, and the actual provisions of subsequent legislation relative to land in Alaska, made it possible for white settlers, miners, traders and businessmen, to legally deprive the Tlingit and Haida Indians of their use of the fishing areas, their hunting and gathering grounds and their timber lands and that is precisely what was done. . These Indians protested to the Government and their protests went unheeded. They had no weapons with which to combat Navy gunboats which had burned their villages when they attempted to take the law into their own hands. Although these Indians were relatively civilized, were excellent fishermen and hunters and were noted for their industry, they had no conception of how to start a modern fishing industry, to build canneries, to harvest lumber on a large scale, or to file claims in Sitka for town and industrial sites. Whenever white settlers and businessmen entered their lands for the purpose of settlement or exploitation, the Indians were forced to move out. The new industries in their lands did not employ them, preferring imported Chinese labor. The game which had been abundant in the area was driven off by the large settlements and industrial enterprises. The amount of salmon and other fish taken from the streams and waters by the new white fishing industries and canneries left hardly enough fish to afford bare subsistence for the Tlingits and Haidas and nothing for trade or accumulation of wealth. Thus it seems clear that the United States both failed and refused to protect the interests of these Indians in their lands and other property in southeastern Alaska within the meaning of section 2 of the special jurisdictional act and that the United States is liable under such act to compensate the Indians for the losses so sustained.

The major part of the lands aboriginally used and occupied by the Tlingit and Haida Indians in southeastern Alaska was actually taken from them by the United States without the payment of any compensation therefor. The land so taken was, first, some 86,740 acres comprising the Annette Islands in the southern part of Tlingit territory taken as a reservation for the Tsimshian (Metlakahtla) Indians pursuant to the Act of March 3, 1891; next, some *341 16,000,000 acres of Tlingit and Haida lands set aside by the Government in 1902,1907 and 1909 as the Tongass National Forest; and finally, approximately 2,297,598 acres of Tlingit lands set apart by the Government as the Glacier Bay National Monument in 1925, pursuant to the Act of June 8, 1906, 34 Stat. 225 . See Confederated Bands of Ute Indians v. United States, 100 C. Cls. 413 . In none of the acts authorizing the setting apart of these lands as public reservations was there any recognition of the Tlingit or Haida rights of use and occupancy although the rights of white settlers in the areas were protected. These acts on the part of the Government represent takings of land and water aboriginally used and occupied by the Tlingit and Haida Indians for which they are entitled to compensation under the terms of the jurisdictional act.

The record indicates that part of the land set aside as the Glacier Bay National Monument may have been previously included in the Tongass National Forest, but that matter as well as the extent and location of all the lands which these Indians lost, as well as their value at the time of loss or taking, will be determined in further proceedings.

The most valuable asset lost to these Indians was their fishing rights in the area they once used and occupied to the exclusion of all others. The plaintiffs have suggested that since the effective exploitation of their fisheries was dependent upon their continued occupancy and use of the shore lands, the fishing rights might be considered in the nature of easements fixed in such lands. Viewed in this way, they could be considered as having been lost or taken as of the dates on which the shore areas were lost or appropriated, and the value of the fishing rights can be considered in determining the value of the land areas to which they were attached as of the date of the taking or loss of the land areas. The same will be true of lands which were valuable to the Indians for hunting and gathering, or from which they took limited amounts of minerals or timber.

In addition to the amount of recovery and offsets which have been reserved for further proceedings, the order of the court issued February 29, 1956, reserves also the issue of voluntary abandonment of lands included in the area found *342 to have been aboriginally used and occupied by the claimant Indians in 1867 and thereafter. The plaintiffs contend that the findings of the Commissioner are sufficient at this stage to establish the fact that there was no abandonment of any part of the area claimed. Inasmuch as this issue was reserved for further proceedings and the Government has indicated that it intends to offer proof on the issue, we will not pass on plaintiffs’ arguments'at this time.

In conclusion, we hold that the plaintiffs have established their use and occupancy, i.e., Indian title, of the lands and waters in southeastern Alaska shown on the map, marked plaintiffs’ exhibit 168 and reproduced as a part of this opinion ; that they were using and occupying that land according to their native manner of use and occupancy in 1867 when the United States acquired Alaska from Eussia; that following the purchase of Alaska in 1867 these Indians continued to exclusively use and occupy the same areas of land and water as previously, and that such use and occupancy was not interfered with by the United States or its citizens until 1884; that beginning in 1884 and continuing thereafter, these Indians lost most of their land in southeastern Alaska through the Government’s failure and refusal to protect the rights of the Indians in such lands and waters, through the administration of its laws and through the provisions of the laws themselves; that a large area of land and water in southeastern Alaska was actually taken without compensation and without the consent of the Indians, through Presidential proclamations issued pursuant to law, and through reservation of part of the land for Canadian Indians under the Act of March 3, 1891. The plaintiffs are entitled to recover for all usable and accessible land which they used and occupied, and the amount of such recovery and the amount of offsets, if any, and the issue of voluntary abandonment or relinquishment of any areas are reserved for further proceedings in accordance with the order of the court issued February 29,1956.

It is so ordered.

Wilbur K. Miller, Circuit Judge, sitting by designation; MaddeN, Judge, Whitaker, Judge, and Jokes, Chief Judge, concur.

*343 FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner S. E. Gamer, and the briefs and argument of counsel, makes findings of fact as follows:

1. The petition herein was filed on October 1, 1947, under and pursuant to the following acts of Congress:

AN ACT

Authorizing the Tlingit and Haida Indians of Alaska to bring suit in the United States Court of Claims, and conferring jurisdiction upon said court to hear, examine, adjudicate, and enter judgment upon any and all claims which said Indians may have, or claim to have, against the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purposes of this Act the Tlingit and Haida Indians of Alaska shall be defined to be all those Indians of the whole or mixed blood of the Tlingit and Haida Tribes who are residing in Eussian America, now called the Territory of Alaska, in the region known and described as southeastern Alaska, lying east of the one hundred and forty-first meridian.

sec. 2. All claims of whatever nature, legal or equitable, which the said Tlingit and Haida Indians of Alaska may have, or claim to have, against the United States, for lands or other tribal or community property rights, taken from them by the United States without compensation therefor, or for the failure or refusal of the United States to compensate them for said lands or other tribal or community property rights, claimed to be owned by said Indians, and which the United States appropriated to its own uses 'and purposes without the consent of said Indians, or for the failure or refusal of the United States to protect their interests in lands or other tribal or community property in Alaska, and for loss of use of the same, at the time of the purchase of the said Eussian America, now Alaska, from Eussia, or at any time since that date and prior to the passage and approval of this Act., shall be submitted to the said Court of Claims by said Tlingit and Haida Indians of Alaska for the settlement and determination of the equitable and just value thereof, and the amount equitably and justly due to said Indians from the United States therefor; and the loss to said *344 Indians of their right, title, or interest, arising from occupancy and use, in lands or other tribal or community property, without just compensation therefor, shall be held sufficient ground for relief hereunder; and jurisdiction is hereby conferred upon said Court to hear such claims and to render judgment and decree thereon for such sum as said court shall find to be equitable and just for the reasonable value of their said property, if any was so taken by the United States without the consent of the said Indians and without compensation therefor; that from the decision of the Court of Claims in any suit or suits prosecuted under the authority of this Act an appeal may be taken by either party, as in other cases, to the Supreme Court of the United States.

seo. 3. That the claim or claims of said Tlingit and Haid'a Indians of Alaska may be presented and prosecuted separately or jointly in one or more suits, by petition or petitions setting out the facts upon which they base their demands for relief and judgment or decree; the petition or petitions may be amended when necessary more fully or specifically to set forth their said claim or claims, and said suit or suits shall be filed in said Court of Claims within seven years after the date of the passage of this Act; such suit or suits shall make the said Indians parties plaintiff and the United States party defendant, and the final judgment or decree shall conclude and forever settle the claim or claims so presented; the Court of Claims shall have full authority by proper orders and process to bring in and make parties to such suit or suits any and all parties deemed by it necessary or proper to the final determination of the matters in controversy; such petition or petitions may be verified by any attorney or attorneys employed by said Indians, under contract approved by the Commissioner of Indian Affairs and the Secretary of the Interior, and said contract shall be executed in behalf of said Indians by a committee chosen by them under the direction and approval of the Commissioner of Indian Affairs and the Secretary of the Interior; verification may be upon information and belief as to the facts alleged; a true copy of the written contract or contracts by which such attorney or attorneys are employed by said Indians to represent them in such suit or suits shall be filed in said Court of Claims, as their authority by the said attorney or attorneys to so appear in said suit or suits for said Indians and to prosecute their said claim or claims in said Court of Claims.

*345 sec. 4. That if any claim or claims shall be submitted to said court it shall hear and settle the equitable and just rights therein, notwithstanding lapse of time, or statutes of limitations, or the fact that the said claim or claims have not been presented to any other tribunal, or the fact that said Tlingit and Haida Indians of Alaska may have been made citizens of the United States by the Act of Congress of June 2, 1924 (43 Stat. L. 253), or by any other law of the United States, or the fact that the said Indians, or any of them, collectively, prior to the passage and approval of this Act, may have severed their tribal relations with the said Tlingit and Haida Tribes. Any payment which may have been made by the United States or moneys heretofore or hereafter expended to date of award for the benefit of the said Tlingit and Haida Indians of Alaska, made under specific appropriations for the support, education, health, and civilization of said Indians, including purchase of lands, shall not be pleaded as an estoppel but may be pleaded by way of set-off.

sec. 5. Official letters, papers, documents, and public records, or certified copies thereof, from the files and records of the United States, or the Territory of Alaska, and Kussian documents and similar records, and historical data and books prepared by American or other standard historians or authors, relating to the subject matter in controversy in said suit or suits, may be used in evidence by either party, and the departments of the United States Government shall give the attorneys for both parties access to such papers, correspondence, and documents as are in the files.

sec. 6. The Court of Claims shall appoint at the proper time a commissioner or commissioners under the provisions of the Act of February 24, 1925 (43 Stat. L. 964), and Acts supplemental thereto, who shall have the aid of a stenographer to take the testimony to be used in the investigation of such claims. In addition to the present powers of such commissioner to take such testimony, he is hereby authorized to take the testimony of said Alaska Indians and their witnesses at such place or places in Alaska as are most convenient for said Indians and their witnesses; that the said Alaska Indians shall produce their witnesses in Alaska at such times and places as said commissioner shall direct, at their own expense, but the expenses of said commissioner and stenographer shall be paid by the United States out of the funds provided for such pur *346 poses in the said Act of February 24, 1925, and said Supplemental Acts.

seo. 7. That Tlingit and Haida Indians of Alaska who are entitled to share in any judgment or appropriation made to pay said claim or claims shall consist of all persons of Tlingit or Haida blood, living in or belonging to any local commnunity of these tribes in the territory described in section 1 of this Act. Each tribal community shall prepare a roll of its tribal membership, which roll shall be submitted to a Tlingit and Haida central council for its approval. The said central council shall prepare a combined roll of all communities and submit it to the Secretary of the Interior for approval. Approval of the roll by the said Secretary of the Interior shall operate as final proof of the right of such Indian communities to share in the benefits of this Act as set forth in section 8.

seo. 8. The amount of any judgment in favor of said Tlingit and Haida Indians of Alaska, after payment of attorneys fees, shall be apportioned to the different Tlingit and Haida communities listed in the roll provided for in section 1 in direct proportion to the number of names on each roll, and shall become an asset thereof, and shall be deposited in the Treasury of the United States to the credit of each community, and such funds shall bear interest at the rate of 4 per centum per annum, and shall be expended from time to time upon requisition by the said communities by and with advice and consent of the Secretary of the Interior, and under regulations as he may prescribe, for the future economic security and stability of said Indian groups, through the acquisition or creation of productive economic instruments and resources of public benefit to such Indian communities: Provided, however, That the interest on such funds may be used for beneficial purposes such as the relief of distress, emergency relief and health: Provided further, That none of the funds above indicated or the interest thereon shall ever be used for per capita payments.

seo. 9. That upon the final determination of any suit or suits instituted under this Act, if there is judgment for the plaintiff Indians, the Court of Claims shall inquire into the agreement or contract which said Indians have made with their attorneys for compensation for their services in said suit or suits, and if said Court of Claims shall find that such services have been faithfully performed by said attorneys, it shall make a finding to that effect and adjudge that said attorneys’ *347 compensation shall be paid as agreed upon in said contract out of the appropriation made for the payment of the sum found due to said Indians, but in no case to exceed 10 per centum of the amount of the total recovery, and said sum 1 so found to be due to said attorneys shall be paid in full out of the sums so found due to said Indians and the remainder of said total sum due to said Indians shall be expended as provided in section 8 of this Act.

seo. io. A copy of the petition and other pleadings and briefs in said suit or suits brought under this Act shall be served upon the Attorney General of the United States, and he, or some attorney from the Department of Justice to be designated by him, is hereby directed to appear and defend the interests of the United States in such case or cases.

(Act of June 19, 1935, 49 Stat. 388 , Ch. 275)

* $ # $ *

AN ACT

For the relief of the Tlingit and Haida Indians of Alaska.

Be it emoted by the Senate and House of Representatives of the United States of America m Congress assembled, That the time within which suit or suits may be filed by the Tlingit and Haida Indians of Alaska under the terms of the Act of Congress of June 19,1935 (ch. 275,49 Stat. L. 388), is hereby extended for a period of three years from and after the date of the approval of this Act.

(Act of June 5,1942, 56 Stat. 323 , Ch. 347)

AN ACT

To amend the Act of Congress entitled “An Act for the relief of the Tlingit and Haida Indians of Alaska”, approved June 5,1942.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress as sembled, That an Act entitled “An Act for the relief of the Tlingit and Haida Indians of Alaska”, approved June 5, 1942 ( 56 Stat. 323 ), is amended to read as follows:

“That the time within which suit or suits may be filed by the Tlingit and Haida Indians of Alaska under the *348 terms of the Act of Congress of June 19, 1935 (ch. 275, 49 Stat. L. 388), is hereby extended- for a period of six years from and after the date of the approval of this

(Act of June 4,1945, 59 Stat. 231 , Ch. 173)

2. On April 8, 1954, Harry Douglas and 18 others, who were described in their motion papers as chiefs or active leaders of various clans of the Tlingit Indians, were permitted to intervene as parties plaintiff.

3. On February 29,1956, the court, under Rule 38 (b), ordered that a separate trial of the issues relating to the following should be had:

1. The issues of law and fact relating to the plaintiffs’ use and occupancy of, or Indian title to, the lands and waters in Alaska, and the extent thereof, as of the time of the purchase of Alaska by the United States from Russia in 1867.

2'. The issues of law and fact relating to the right of the plaintiffs to recover herein for any taking or loss of, or failure of the United States to protect, their use and occupancy of, or Indian title to, lands or waters in Alaska that occurred in the year 1867, reserving the determination of the amount of recovery and the amount of offsets, if any, for further proceedings.

3. The issues of law and fact relating to the right of the plaintiffs to recover assuming the plaintiffs’ use, occupancy and Indian title to lands and waters in Alaska as determined for the year 1867 survived the defendant’s 1867 acquisition of sovereignty over Alaska and were in no part thereafter voluntarily abandoned or relinquished by the plaintiffs, reserving for further proceedings the determination of any such abandonment or relinquishment, and the amount of recovery and the amount of offsets, if any.

THE AREA CLAIMED

4. In this suit the Tlingit and Haida Indians are asserting claims arising out of their use and occupancy of certain areas in southeastern Alaska east of the 141st meridian. Adjoining areas in Canada and in Alaska west of the 141st meridian that were or may have been used or occupied by such Indians are not claimed in this suit.

*349 5. The boundaries of the area for which the Tlingit and Haida Indians claim a right to recover compensation on the alleged basis of their aboriginal use and occupancy, including the bays, inlets, islands, streams, lakes, and tidelands embraced therein, are set forth on a map introduced in evidence as plaintiffs’ exhibit. 168, which map is reproduced in finding 57. In most regions, these Tlingit and Haida boundaries, as so mapped, correspond closely to the boundaries of southeastern Alaska. However, in a number of places, the claimed boundaries fall within the boundaries of southeastern Alaska, thereby excluding a portion of that region from the claim. For instance, the western watershed of Portland Canal northward from the divide south of Halibut Bay is not included within the claimed area. The eastern boundary of the claimed Tlingit and Haida territory follows the curvatures of the high ridges of the coastal mountain range which forms the Alaskan-Canadian boundary, and generally runs in straight lines from peak to peak along this coastal range. In the northwestern part of southeastern Alaska, the map includes within the claimed Tlingit and Haida territory only a narrow strip of land and water along the west shore of Yakutat Bay and westward to the 141st meridian. Accordingly, for the purposes of this suit, the area for which use and occupancy as of 1867 is claimed by the Tlingit and Haida Indians of Alaska may be taken to be the area bounded in red and black on plaintiffs’ exhibit 168.

6. The area to which the Tlingit and Haida Indians claim aboriginal Indian title as of 1867 is approximately 350 miles long and 120 miles wide. It contains in land area over 20 million of the 22,738,000 acres which comprise the so-called “panhandle” or southeastern Alaska. It includes the entire Tongass National Forest, which covers over 16,000,000 acres, the entire Glacier Bay National Monument, which embraces 2,297,598 acres, and the entire Annette Island Indian Beser-vation, comprising 86,740 acres. The area claimed extends from latitude 54° 30' on the south to 60° on the north and from the 130th meridian on the east to the 141st on the west. It comprises approximately the First Judicial District of Alaska. It includes the archipelago of islands, large and small, that shields the coast from Dixon Entrance on the *350 south, to Cross Sound on the north, together with the stretch of coast extending inland to the mountain ridges that form the coastal watershed. The entire area, both coastal and island, is laced with numerous bays, inlets, channels, and fiords, and with myriads of inland lakes and precipitous streams. The islands and coast are largely mountainous, frequently rising to elevations over 4,000 feet. In many places, the mountains rise sharply from the water’s edge,, Among the mountains are numerous valleys. At their feet there are comparatively narrow areas of level or gently rising lands. Most of the land area from tidewater to about 2,000 feet altitude is densely covered with underbrush and trees, principally spruce, hemlock, and cedar. Throughout many of the mountain regions glaciers are numerous, especially around Glacier Bay and the Fairweather and Mount St. Elias Banges. The temperature, because of the warming Japanese Current, is generally mild both in the summer and winter. However, along the northern coastal region and up the inlets back from the coast, there are areas characterized by extremes of heat in summer and cold in winter. The entire region is one of heavy precipitation which contributes to the luxuriant growth of timber and other vegetation. The forests form one of the prominent features of the country.

TLINGIT AND HAIDA USE AND OCCUPANCY IN 1867 AND EARLIER

First Contacts Between White Men and the Tlingit amd Haida Indians.

7. The Tlingit Indians or their ancestors first migrated into southeastern Alaska many generations before the first arrival of a white man. The movement of the Haida Indians into this territory did not take place until years later. The Haida Indians pressed in upon the Tlingit, coming north from their home on Queen Charlotte Island and wresting from the Tlingit the southern shores of Prince of Wales Island. This migration of the Haida Indians occurred about the middle of the 18th century and before any part of this territory had been visited by any white man.

8. The first visits by white men to southeastern Alaska were by European explorers and traders in the 18th century. The Bussians came first. In 1741, Chirikof, a commander *351 in Bering’s expedition, sent two small boats ashore in the neighborhood of the southern end of Chatham Straits. Neither boat returned, and, over 30 years later, when the Spaniard Juan Perez landed in 1774 on the south point of Prince of Wales Island, he found that the natives possessed some iron implements and Eussian bayonets. During the last quarter of the 18th century, Spanish, French, Eussian, English and American explorers and traders visited this region in increasing numbers and made numerous accounts of native life. Such voyages were made by Bodega y Cuadra in 1775, Ignacio Arteaga in 1776, Cook in 1778, LaPerouse in 1786, Lowrie and Meares in 1786, Dixon and Portlock in 1786 and 1787, Ismailof and Bocharof in 1788, Marchand, Gray and Kendrick in 1790, Malaspina and In-graham in 1791, Caamano in 1792, Vancouver in 1793 and 1794, and Cleveland in 1799. The natives described in these narratives were unquestionably Tlingit and Haida Indians. These narratives evidence that the extensive portions of the territory visited were regions well-populated by Tlingit and Plaida Indians in the terms of the native cultures then existing along this coast and that these Indians were skilled traders, eager to exchange the furs, foods, and implements of their culture for firearms, clothes, ornaments and tools. They also show that the Tlingit and Haida Indians at these early dates had a highly developed sense of their proprietorship over the lands and waters of the areas they occupied and the resources that could be obtained from them.

The Fur Trade Prior to 1867.

9. In the last decades of the 18th century and through the first half of the 19th century, trade" for furs was the principal attraction that drew Europeans and Americans to the northwest coast of America. In 1778 Captain Cook’s expedition left Tlingit and Haida territory with a great quantity of furs obtained in trade with the Indians. Later this expedition landed at Macao, China. Here the crew found that its furs, especially the sea otter furs, were highly prized. Thereafter, the opportunity thus opened for a profitable trade became widely known.

*352 10. Over the years that followed, three means for exploiting the fur trade developed. First, sailing ships, largely from England and America, went through the channels, bays and inlets of Tlingit-Haida territory exchanging European and American wares for cargoes of furs. Second, the Russian American Company, under the leadership of Bar-anof, established a number of settlements in Tlingit and Haida territory. The principal settlement was established at Sitka in 1799. A few years later, Nikolayevsk was founded at Yakutat Bay and Simeyonosk on the Cape of St. Elias, and again some years later a post was established at Wrangell. Each of these posts was set up primarily to gather furs through trade with the Tlingit Indians. Third, beginning in the third decade of the 19th century, the Hudson’s Bay Company, moving north and west from British Columbia, attempted to establish trading posts along the coastal strip in Tlingit and Haida territory. In 1839, the Company secured from the Russians a right to establish its trading posts in this area by a lease made with the Russian American Company. However, by this time the supply of sea otter furs had been considerably depleted, the Chinese market had been depressed, and the long voyages of the sailing ships were no longer profitable. Consequently, the fur trade with the Tlingit and Haida Indians that had earlier been done in largest measure with sailing ships shifted to the trading posts of the Hudson’s Bay Company and the Russian American Company.

11. The fur trade changed and enriched the material culture of the Tlingit and Haida Indians. By this trade the Indians were supplied with firearms and steel traps to the point where former weapons and trapping methods were largely abandoned. Flour, molasses, rice, tobacco, whiskey, knives, and shirts became staples of the new material culture. Trapping and hunting became a major economic activity and a principal avenue to the material wealth important to the power and prestige of the Tlingit and Haida clans, as hereinafter more particularly described. This fur trade also tended to concentrate the Indians into larger villages and sometimes to reduce the number of these villages to one for each tribe, also as that term is hereinafter defined. *353 However, before 1850, the intensive trapping and hunting of the Tlingit and Haida Indians had begun to reduce the total annual product of furs from their territory.

12. The fur trade hereinabove described did not impinge in any material respect upon the Tlingit and Haida Indians’ concept of their proprietorship over their lands and waters. The Europeans and Americans, with only insignificant exceptions, did not send hunting or trapping expeditions into Tlingit-Haida territory. They did not come into the territory with intent to cultivate the land or even with intent to make permanent settlements beyond the minimal needs of trading posts. Even the few posts that were established by the Russians and British were secured from the Indians either by conquest, followed by a grudging consent, or by an initial purchase or trade in accordance with the Indian concept of their right to their land. The incentive that the fur trade gave these Indians to hunt and trap succeeded in securing to the white man the fur product of the area without doing violence to the Indians’ concept of proprietorship over the territory.

Russian Sovereignty Prior to Sale of Alasita m 1867.

13. The Russians explored the shores of the northern basin of the Pacific in the first decades of the 18th century. Yevreinov and Luzhin in 1719 and Bering in 1728 sought to learn whether Asia and America were joined. In 1732, Russian navigators crossed Bering Straits and first visited American shores near the Cape of Prince of Wales. As set forth in finding 8, in 1741 and 1742, Bering and Chirikof explored parts of the American coast, reaching east to Tlingit and Haida territory. Russia’s title to Russian America is considered as dating from 1741. Thereafter, year by year, Russian traders, largely through barter with the natives, took valuable cargoes of furs, first from the Aleutian Islands and later penetrating farther into the Alaskan peninsula. In the last quarter of the 18th century, five settlements were made on islands that enclosed the Bering Sea. About 1784, a settlement was established on Kodiak Island. By 1793-1794, when Vancouver explored the waterways of southeastern Alaska, the Russians still had *354 not discovered whether the outside shores along Tlingit and Haida territory were island or mainland.

14. Commencing about 1795, the Eussians made their first settlements in Tlingit and Haida territory, one at Sitka, one in Yakutat Bay, and one on Cape St. Elias. These three settlements were the last of the Eussian settlements to he established in the area of Alaska. Thereafter, the Eussians secured from time to time a few additional trading posts or forts, but the period of Eussian expansion into the Alaska area had been substantially concluded by the end of the first decade of the 19 th century. With the demonstration by Vancouver of the nonexistence of a satisfactory strait to Hudson’s Bay, the interest of the English in the northwest coast of America dwindled. The Spaniards also gave up their claims to the area. Thus, the enterprises of the Eussians led to their permanent possession of the coast.

15. From 1799 to 1867, the Eussian Government exercised its rule over Alaska through the Eussian American Company. This Company was originally chartered in 1799 and granted a monopoly to “all profits 'and advantages” to be derived from hunting and trading on the coast of America from latitude 55° to Bering Strait and beyond. The charter recited that the Government was exercising its right to grant it “By the right of discovery in past times by Eus-sian navigators of the northeastern [sic] part of America, be ginning from the fifty-fifth degree of north latitude * * * and by right of possession of the same by Eussia * * It further permitted the Company “to make new discoveries not only north of the fifty-fifth degree of north latitude, but farther to the south, and to occupy the new lands discovered, as Eussian possessions * * The Company was rechartered in 1821 'and 1844. The 1844 charter was to expire January 1, 1862, but by Imperial decree of May 29, 1861, was continued effective until the sale of Alaska in 1867. From the organization of this Company until the sale of Alaska, the Eussian American Company remained the only body granted authority by the Eussian Government to use, trade in, or otherwise to exploit Alaska and its resources.

*355 16. The charter issued by the Russian Government in 1799 to govern the hunting and trading monopoly granted to the Russian American Company contained no provisions to govern the status of the natives of Alaska or of the land used and inhabited by these natives. The years 1799-1821 under this first charter were marked by a number of hostilities between the Russian American Company and the Tlingit Indians, by a number of partially successful efforts on the part of the Company to establish peaceful relations with these Indians, and by the ultimate recognition on the part of the Company that the Indians had maintained, and would continue to maintain, a measure of independence from the Company’s authority. Thereafter, by the 1821 and 1844 charters of the Company, the Russian Government limited by regulation the authority of the Company to deal with those natives of Alaska that inhabited regions not “administered by the Company” or that held themselves “not wholly dependent” upon the Company. By these regulations the Government also limited the use to be made by the Company of regions inhabited by such natives. These regulations were considered by the Russians as being applicable to the Tlingit and Haida Indians, who were considered as being “independent” and even hostile. In this respect, the 1821 charter provided as follows:

sec. 57. The principal object of the Company being catching of the sea animals and wild beasts, the Company has no need to spread its rule from the coast where it practices such catchings, into the interior of the country, and it should not make effort to conquer tribes inhabiting these coasts; therefore, if the Company should think it in its interest to establish posts in some localities of the American continent in order to secure its commerce, it shall do so with the consent of the aboriginal inhabitants of such localities and shall use all possible means in order to maintain a good relationship with them, avoiding anything which might create in these people suspicion of the intention to violate their independence.

Article II of this charter provided that the Company shall have the privilege of carrying on, to the exclusion of all other Russians, and of the subjects of foreign States, all industries connected with the capture of wild animals and all fishing industries, on the shores of *356 North-western America which have from time immemorial belonged to Eussia, * * *.

The 1844 charter provided:

seo. 280. The tribes dwelling within the boundaries of the Eussian colonies, but not wholly dependent, shall enjoy the protection of the colonial administration only on m n.bin g a request therefor, and when such request is deemed worthy of consideration.

sec. 28i. The colonial government shall not forcibly extend the possessions of the Company in regions inhabited by tribes not dependent on the colonial authorities.

sec. 282. If the colonial government deems it useful to open, for the safety of its trade operations, factories, redoubts, or so-called single posts in some places of the American continent, it shall proceed by the consent of the natives of these places, and apply all possible means to obtain their favor, trying to avoid anything which might arouse their suspicion of any intention to violate their independence.

sec. 283. The Company shall be prohibited from demanding from these people tributes, taxes, or donations of any kind whatever and in times of peace, shall not forcibly take any of them away from their own race, save only the hostages given under the usage heretofore existing. The hostages shall be kept in comfort, and the authorities shall exercise special vigilance that no insult be offered them.

sec. 284. In the event of any of these people desiring to move into localities occupied by the settled tribes, the colonial administration may permit such migration, if it shall appear that the colonies will not thereby be endangered. Such immigrants shall be received into the number of the settled tribes and shall enjoy the rights and immunities granted to that class of persons.

sec. 285. The relations of the colonial administration with the independent tribes shall be limited to the exchange, by mutual consent, of European wares for furs and native products.

This third charter also provided:

in. * * * there is granted to the Company the right to carry on the fur and fishing industries to the exclusion of all Eussian subjects.

iv. The Company is permitted to hold and use all things heretofore found and hereafter to be found * * * *357 without regard for any claim thereto on the part of others.

v. The Company is allowed in future according to necessity and its best judgment * * * wherever it may be found necessary to establish new settlements and fortifications for safe habitation; and those formerly established may be extended and improved, the Company being allowed to send to those regions vessels carrying merchandise and laborers without any let or hindrance.

17. Under the Treaty of 1824 between the United States and Russia, the privilege of trading with the natives was given to Americans for 10 years, by the following provision:

aetiole iv. It is, nevertheless, understood, that during a term of ten years * * * the ships of the two powers, or which belong to their citizens or subjects, respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks upon the coast mentioned in the preceding article, for the purpose of fishing and trading with the natives of the country.

Upon the expiration of this treaty the United States sought a renewal of this privilege of trading with the natives but this privilege was refused by Russia.

18. Russia claimed sovereignty and dominion over Alaska by reason of first discovery. By the Imperial decree of March 2, 1766, the Russian Government expressly declared the natives of the Aleutian Islands and the Alaskan Peninsula to be Russian subjects. However, Sitka was established in 1799 only after vigorous resistance from the Indians and following a final negotiation of purchase. Nevertheless, it was captured and destroyed by the natives in 1802. In 1805, the natives destroyed the settlement at Yakutat. Sitka was reestablished in 1805, but no new stations were ever established in Yakutat Bay. Other Russian posts established in Tlingit and Haida territory were secured only by force or after first obtaining the consent of the Indians. In some instances, authority was attempted to be exercised over the Tlingit and Haida Indians through the native chiefs. However, the Tlingit and Haida Indians for the most part continued to live under their own customs and the Russians avoided doing violence to their native rules *358 and customs. Tbe Russians generally did not burnt or fish or otherwise exploit by their own actions the resources of the Tlingit and Haida territory. Instead, they obtained most of their food, fuel, furs and other products of the region by purchases made from the Tlingit and Haida Indians. Even in this matter of trading with the Indians, the Russians depended largely upon the Indians to bring their products into Sitka or other Russian posts rather than undertaking themselves to visit the Tlingit and Haida villages. Only a few of the native tribes of the mainland and in the vicinity of the trading posts were in permanent contact with the Company. The Russians did not distinguish between the native tribes of southeastern Alaska. They applied the Russian word “Koloshes” to all the Indians in this territory. 1

19. Extending up to 1867, when Russian sovereignty over Alaska terminated by sale of the territory to the United States, the only part of southeast Alaska upon which the Russians actually entered into physical possession was Sitka and a few other temporary settlements and trading posts. To accomplish its primary object of exploiting the fur resources of the region, the Russian Government never felt the need and never attempted to conquer the Tlingit and Haida Indians, or to introduce a system of land ownership which would replace the Indian manner of tenure. Instead the Russians largely confined their efforts to seeking peaceful trade with the Tlingit and Haida tribes and permitted the Indians to continue in the use and occupancy of their villages, hunting and fishing grounds, and wild food gathering areas. In 1839, the Russian American Company, with the approval of the Russian Government, leased to the Hudson’s Bay Company the exclusive right of trading on the coast of southeastern Alaska between 54°41' and the estuary of Cross Strait. This arrangement was continued until the sale of Alaska to the United States and under it the bulk of trade with the Indians was conducted by the Hudson’s Bay Company. In this trading that Company, like the Russian American *359 Company, left the natives’ habits and customs largely undisturbed and confined its activities to purchasing from the natives the furs and other products of the native culture.

Basie and Distinctive Tlmgit and Haida Culture Characteristics.

20. The Indians on the northwest coast of the American continent from Cape Mendocino in California and extending to and including the Indians in the Tlingit-Haida territory had in aboriginal times a culture distinct and separate from that of any other group of American Indians. Anthropologically, the Tlingit and Haida Indians, as is true of the northwest coast Indians generally, are classified as a fishing, hunting and gathering people. They were for the most part nonagricuitural and had no domestic animals other than the dog. They were distinctive for their predominant use of marine products, their use of wood, their social structure that emphasized the formalistic family group or clan, and their concepts of definite rights to the utilization of areas of economic importance. Among al'l these Indians the core to each such area consisted of some stretch of water’s edge, such as an ocean waterfront, a bay, a river, or a stream.

21. Among northwest coast Indians, the Tlingit and Haida Indians each formed distinct groups. Each represented a high level of development of northwest coast Indian culture. The Tlingit Indian had a consciousness or awareness of his identity as a Tlingit. He called himself a Tlingit. Under the social organization of his people, he knew himself to be a member of a particular Tlmgit family or dan and to belong to a particular house group which had its winter home in a particular Tlingit community or tribe. In the same manner, each Haida Indian knew himself to be a Haida. The Tlingit Indians spoke the Tlingit language and the Haida Indians, the Haida language. Neither was intelligible to the other, nor to any other people.

The Tlingit Indians were a homogeneous group. In addition to speaking a common language, they shared for the most part customs and habits common to all Tlingits. Such culture differences as existed are traceable to local differences in natural resources. For instance, on the mainland, the mopn- *360 tain goat was a resource. On the outer islands, the cod and halibut were resources of importance. These different resources naturally resulted in a number of different activities and customs as between the Tlingit on the islands and those on the mainland coast. These differences were few as compared with the predominant likeness of customs and habits throughout all the Tlingit Indians, which gave them a sense of unity. Intermarriage between Tlingits from different Tlingit tribes or villages was frequent. Trade throughout Tlingit territory between the several Tlingit tribes or villages was common. On ceremonial occasions, invitations were frequently extended to Tlingits from neighboring or even distant villages.

In the same manner, the Haida Indians of Alaska likewise formed a homogeneous group. However, the Tlingits have always been closely associated with the Haidas, with whom they had close trade relations, their modes of life, customs, and habits closely resembling each other. The principal differences between the two groups are the language and the almost exclusive degree of dependence of the Haidas for their support on the coast, since they gave the interior of their islands little attention. Certain similarities between the two languages have caused some anthropologists to conclude that the Tlingit and the Haida are remote branches of the same stock.

The Tlingit Indians as of 1867 had no chief or other political body to govern them as a group. The Russians on at least two occasions had appointed a head chief for all the Tlingit, but these appointments had not changed the established customs of the Indians, which featured many highly developed rights, such as rights to authority, possessions, and prestige. None of these rights encompassed any authority over the entire Tlingit people. However, any infringement of these rights that did exist in their culture demanded retribution in equal measure. From earliest times, the Tlingit Indians were noted for a strict application of the law of an eye for an eye and for the feuds that were waged among them. Accordingly, the Tlingit Indians as a whole, though occupying one contiguous stretch of coast on the mainland and the adjoining islands, and though unified *361 by common customs, family ties, trade, ceremonials, and the consciousness of their oneness, nevertheless had not established by 1867 any political body to govern the entire Tlingit people. In like manner, the Haida Indians had no political chief or body as of 1867.

22. The neighbors of the Tlingit and Haida Indians were the Athabaskan Indians on the east, inland from the coast, and the Tsimshian Indians on the southeast, in the region about Portland Canal. On the south, separated by Dixon Entrance, were the Queen Charlotte Island Haidas, constituting a different group of Haidas from those involved in this suit, who principally inhabited Prince of Wales and its adjoining islands. The culture of the Athabaskan Indians was not that of the northwest coast Indians. The Athabaskans were an inland people and were considered by the Tlingit, who dominated them in trade dealings, 'as an inferior people. In most areas the Athabaskans were effectively separated from the Tlmgit by the coastal mountain range which generally formed a practically impassable physical barrier. The Tsimshians, on the other hand, were northwest coast Indians with a culture similar to that of the Tlingit and Haida. The Tlingit and Haida Indians were the only Indians who inhabited, used, and occupied their portions of southeast Alaska.

The Tlmgit and Haida Social Structure — The Tribes.

23. The term “tribe” is frequently employed to describe the entire Tlingit people, as well as the Haidas as a whole. It is also used in connection with their various divisions and subdivisions, as hereinafter described. As so variously applied, it has been used loosely and in an inexact sense. There were no political divisions of these Indians to which the term “tribe” can be technically applied. However, in an anthropological sense, the term has been most frequently applied to specific groups of these Indians who were located in certain areas of southeast Alaska. The term, as applied to these Indians, has geographical, rather than any political or organizational significance. The tribes, called “kons” by the Indians themselves (the word meaning “people”), were named after the river, bay, or island upon which their villages were situated. For instance, the Indians who settled or *362 bad their villages in the Sitka area were in the earliest times, and ever since have always been, referred to as Indians of the Sitka “tribe” or “Sitka-kon.” Similarly, the Indians in the Yakutat area were referred to as the Yakutat “tribe,” or “Yakutat-kon.” It is only in this geographical sense that the term “tribe” is generally used by anthropologists and in these findings.

24. The social structure and various divisions and subdivisions of the Tlingit and Haida Indians are as follows:

As stated in finding 21, neither the Tlingit nor Haida, as such, was a political organization. Technically, these terms refer only to two separate, native languages, the Indians speaking these separate languages having come to be referred to as “Tlingit” or “Haida” Indians. The word “Tlingit” means “man” in their language.

All of these Indians were divided into two phratries or moieties. Among the Tlingit, one was called Wolf and the other Eaven, and among the Haida, one was called Eagle and the other likewise Eaven. Similarly, neither moiety had any social or political organization.

Each moiety was in turn divided into a number of clans, membership in which descended through the mother. Each clan had its own distinctive name, traditions, and crests. Marriage within the clan or moiety was forbidden. Originally there were approximately 55 of these clans, which, again, had no social or political structure. Indians of these various clans, however, settled throughout the Tlingit and Haida territory, and the division of a larger clan which settled at a certain site or permanent village became known as a local clan. Thus, a clan Was often distributed or divided among several villages, some of the larger clans being widely scattered throughout southeastern Alaska. However, other clans were wholly localized in a single community.

Since no one in the clan could marry anyone else from that clan, a local clan had to associate with another local clan from the opposite moiety. Thus the two local clans from the opposite moieties settling in a village would constitute a “tribe.” Usually, however, several local clans would settle in a village.

*363 The local clan divisions in a village were made up of house groups. A village consisted of a number of large houses of the local clans, each house sheltering a number of families. Some houses were large enough to shelter a dozen families.

Each house had a local clan designation. Its nucleus was the men of that clan, usually related to each other, such as brothers. The' house had its highest ranking man, or chief, usually the eldest member of the house. Also, each local clan in the village had its highest ranking house, the chief of which was recognized as the highest ranking local clan chief. Thus, it was the local clan subdivision and the house group of families which had any semblance of social or political organization.

As will be hereinafter more fully described, the local clans in the village owned or claimed, in accordance with the Indian manner, large areas adjacent to the village. In some of these areas so owned or claimed, there were two or more villages, sometimes not distantly separated, in which case the Indians of all these villages, comprising all their houses and local clans, were known as a “tribe.” While there was no head of a tribe as such, nevertheless there was a sense of tribal unity and a community feeling of belonging to a particular geographical unit, which was bound together by ties of intermarriage, as well as ceremonial relationships.

25. In 1867, the names of the Tlingit and Haida tribes, and the names of their principal winter villages, were as follows:

Name of Tribe Name of Villages as of 1867

TLINGITS

1. Yakutat Yakutat

2. Chilkat-Chilkoot (sometimes referred to merely as the Chilkats, the Chilkoots being considered as a subdivision)

1. Klukwan

2. Kalkwalt

3. Chilkoot

4. Yandestuka

5. Diea

3. Huna

1. Huna

2. Tuxugu

4. Auk

Aynskultu

5. Taku-Sumdum (sometimes referred to merely as the Takus, the Sumdums being considered as a subdivision)

1. Taku

2. Sumdum

*364

Name of Trite Name of Villages as of 1867

TLIN GITS — Continued

6. Hutsnuwu (sometimes referred to as the “Angoons”)

1. Basket Bay

2. Angoon

3. Killisnoo

4. Neltushkun

7. Sitka

Sitka

8. Kake

1. Kake Village

2. Kake

9.Kuiu

Kuiu

10.Stikine

Wrangell

11.Henya

1. Shakan

2. Tuxekon

3. Klawak

12. Sanya (sometimes referred to as the “Cape Fox” Indians, as well as the “Saxman” Indians)

1. Yes Bay

2. Cape Fox

3. Loring

13. Tongass (sometimes the Sanyas and the Tongass are grouped together as one tribe, the Tongass)

Tongass

RAIDAS

1. Kaigani

1. Kasaan

2. Sukkwan

3. Hawkan

4. Klinkwan

5. Koianglas

At the present time the Tlingit and Haida Indians live in a number of native villages which are almost entirely Indian, but some live in large communities in principal cities of Alaska. The following are the names of the modern communities where the Indians of the Tlingit tribes live: 1. Yakutat tribe: Yakutat (located at the same place as the original village); 2. CMlJcat-GMlhoot tribe: (a) Klukwan (located at the same place as the original village), (b) Haines; 3. Hwna> tribe: Hoonah (located at the same place as the original village of Huna); 4. Auk tribe: Juneau; 5. Taku-Sumdum tribe: Douglas; 6. Hutsnwwu tribe: Angoon (located at the same place as the original village); 7. Sitka tribe: Sitka (located at the same place as the original village) ; 8. Kake tribe: Kake (located at the same place as the original village); 9. Kuiu tribe: none; 10. Stikine tribe: Wrangell (located at the same place as the original village);

*0

*365 11. Henya tribe: Klawak (located at the same place as the original village); 12. Sanya tribe: Ketchikan; 13. Tongass tribe: Saxman.

The Haidas now live in Hydaburg.

Yakutat, Klukwan, Hoonah, Angoon, Kake, Klawak, Sax-man, and Hydaburg are the native villages.

A map introduced in evidence as plaintiffs’ exhibit 169 and showing the location of Tlingit and Haida villages from 1867 to 1884 and the location of their modern villages is reproduced herein.

26. The Kuiu is no longer in existence as a tribe. It disintegrated around 1890, some members of the tribe moving to Klawak, others to Kake, and others to Wrangell.

Tlingit and Haida Land Claiming and Using Croups.

27. The local clan division in a village was the important social unit among these Indians. It was the entity in which control and authority, in the political sense, existed. It was the primary property claiming or owning group or entity. It held claims to well-defined hunting, fishing and gathering areas. Clan property included the fishing streams, the coastal waters and shores, the hunting grounds, the berrying areas, the sealing rocks, the house sites in the villages, and the rights to passes into the interior. Hunting grounds usually consisted of the watersheds of the streams or rivers. The protection of these resources was a local clan matter.

Each house group of the local clan was vested with the right to exploit certain defined clan areas, the chief of the local clan being generally responsible for the administration of all of the property. Thus, tracts of local clan territory were parceled out or assigned to individual house groups for exploitation. It was the chief of the local clan, assisted by the other house chief elders of the clan, all of whom formed a “council”, who controlled the clan’s affairs.

Although each area claimed by a local clan was divided into smaller areas, each in turn claimed by a house belonging to that clan, whenever a house ceased for a period of time to make use of a part of its area, that part remained within the area claimed by the local clan to which that house belonged. Accordingly, the claims to these areas were basically *366 claims that belonged to and were administered by the local clan.

28. These local clan and house claims were meaningful in the culture of the Tlingit and Haida Indians to regulate the use of the claimed areas. The group of Indians privileged to use each claimed area was determined by long established and rigidly enforced customs of the people. While the claims were administered principally by the local clan chief, with the assistance of the house chiefs, yet these chiefs had only a measure of individual authority over the claimed areas because each in turn acted only by agreement with the leading men in his clan or house and only in accordance with the well-established customs of the people. For instance, except under special circumstances fixed by custom, authority to sell, transfer or otherwise alienate in whole or in part any claimed area did not exist. In essence, the local clan and house chiefs were responsible for enforcing the customs of the Indians that regulated who should use the areas claimed by a local clan or house. While the local clan chief was the general administrator of the clan’s property, nevertheless he did not have the power to dispose of any land, which could be disposed of only with the general consent of the clan members. Land was not commercially bartered. It was transferred from one clan to another only as compensation for damages, or as gifts in connection with marriages, but such transfers were infrequent. The members of a family in a house who occupied the assigned area were recognized as having permanently an inalienable right to the property, and these rights were inherited, the inheritance, however, being required to take place within the same clan.

29. The Tlingit and Haida house was the primary and regular user of each area claimed by a local clan. While it was the practical working unit for the exploitation of the local clan lands, its rights were secondary and derivative from the land rights of the local clan. Each Tlingit and Haida house formed an economic unit engaged in exploiting the resources of its claimed areas for the enrichment of the house and its leading families. The occupants of the house by both individual and cooperative enterprises used the various hunting, fishing, and gathering areas claimed by the house to *367 acquire the products needed to the Indian manner of living. These products were brought back to the house, where they were consumed or added to the accumulated wealth of the house and its families or moved into trade for other products needed or helpful to the survival or prestige of the house and its families.

The occupants of a Tlingit or Haida house consisted of the male Indians born to membership in the house and, if married, their wives and children (excepting sons over the age of ten, and daughters who had married outside of the house). The wives and children, including daughters married to men of the house and their children, were all bom to membership in another house in a clan of the opposite moiety. Accordingly, the house occupants who were the primary and regular users of the areas claimed by the house included in approximately equal number Indians of the local clan to which the house belonged and Indians of other clans in the opposite moiety. In this manner, the areas claimed by a local clan were used and exploited primarily and regularly by a group of Indians who were occupants of the several houses in the local clan and who were composed of members of the local clan that claimed the area and members of other clans in the opposite moiety, each in approximately equal number.

30. In addition to the occupants of the several houses that belonged to the local clan, other Indians were privileged to use the same area claimed by the local clan. Brothers-in-law of the male members of a house had an absolute right to use the area claimed by the house. The wives of these brothers-in-law were born to membership in the house and their children formed the next generation of members of the house. In addition, sons of male members of the house, though also necessarily members of a different house in a clan in the opposite moiety because of the theory of matrilineal descent, had an absolute right to use the areas claimed by their father’s house during the lifetime of the father. Finally, any member of the clan to which a house belonged and his or her spouse, upon making an appropriate request, had the privilege of free use of any area claimed by the local clan to which the house belonged. This group of additional Indians *368 privileged to use the areas claimed by a local clan, like the occupants of the several houses of the local clan, was composed both of members of the local clan and members of other clans of the opposite moiety, each in approximately equal number.

31. Since an overall clan frequently had local divisions in more than one village, and therefore, more than one tribe, a number of the Indians privileged to use the areas claimed by a local clan were members of tribes other than the tribe to which the local clan belonged. This resulted from the fact, as stated, that any member of the clan and his or her spouse, even though belonging to another tribe, had the privilege, upon request, to make free use of the areas claimed by a local division of that clan. Likewise, particularly among high rank families, marriages were made from time to time beyond the limits of a tribe. In such cases, kinship ties applied as between tribes to cause the occupants of a house privileged to use the areas claimed by a house to include members of one or more other tribes. The number of such Indians of other tribes that used the areas claimed by a local clan, however, was not large.

32. There were, in addition, certain areas that could be used by all the clans comprising a tribe. There were also areas as to which no local clan or house had any claim. These residual areas comprised primarily offshore fishing and sea-mammal hunting areas in the larger bodies of water, the channels, the bays and the open sea. The customs of these Indians gave to any member of the tribe the right to use any part of these areas. In this manner, these areas were used in common by all members of the tribe. Other Indians belonging to other tribes had no such right of use to such areas.

General Material Culture as Related to Territorial Use in 1867.

33. The native material culture of the Tlingit and Haida Indians generally made use of a great variety and number of natural resources of both land and sea. The major resources used included: Fish: salmon, halibut, cod, olachen, herring, trout and snapper; Sea mammals: sea otter, seal, sea lion, whale and porpoise; Shellfish: a variety of clams, *369 mussels, cockles and snails; Other resources of the teach and shoreline: a variety of kelps and seaweeds, some eaten and some used for other purposes; Animals: the deer, bear, fox, mountain goat and sheep, porcupine, marmot, otter, mink, beaver, squirrel, lynx, marten, rabbit, weasel, wolf, muskrat and coon; Birds: duck, geese, grouse, ptarmigan, gull, crane, crow, including the eggs of many; Trees: principally the red and yellow cedar, and, in addition, the hemlock, spruce, cottonwood, willow, birch, pine, alder, maple and mountain ash; Berry tushes: the cranberry, soapberry, huckleberry, blueberry, and many others; Plants: a variety of grasses weeds and roots useful both as foods and for fiber, and of herbs and lichens useful as dyes and for medicinal and ceremonial purposes; Minerals: a variety of hard stones and copper.

34. Fish was the principal food resource, of which salmon was the most important, and fishing was the most important economic activity of these Indians. Generally, land hunting and other land activities were of much less importance in their economy. While these Indians were expert fishermen, they were not considered as good hunters. The Tlingit and Haida Indians made from these natural resources of their territory their food, shelter, clothing, and the tools, fabricated articles and commodities used by them in their trade and other activities. Fish, animal meats, berries, roots, clams, fish oil, many grasses and other products were made into food both for immediate consumption and dried and stored for winter feasting and for use in trade. Wood, in the use of which they were highly skilled, was the primary material for most of their manufactures. Their houses, canoes, boxes in which they stored their foods and other articles of value, totem poles upon which they carved their crests, and most of the implements they used in day to day living, were fabricated from wood. They made a host of articles from bark, particularly the inner bark of the red and yellow cedar. The well-known Chilkat blankets were made in part of wool from the mountain goat and of bark, and sometimes lined with the fur of the sea otter. Other fibers were also woven. At the time of first contact with Europeans, furs provided the principal clothing for these *370 Indians. Later, as hereinabove set forth, the European and American markets greatly increased the demand for furs. In exchange for their furs, the Indians obtained European and, American clothing that replaced their native clothing. They also obtained firearms, traps and metal utensils that replaced their native weapons as well as many of the native utensils earlier made out of wood, copper, and stone. In addition to hunting, fishing, and gathering, these Indians devoted a great part of their time to trade and to their important ceremonial feasts, called “potlachs.” In addition to food products, the principal articles of trade, which were exchanged among the Indians themselves in great quantities, were furs, cedar logs and canoes, oil made from the olachen fish, bark, robes made of marmot skins, wool-bark blankets, carved utensils, shells, lichen for dyes, copper, and, after its introduction by white traders, the potato which the natives cultivated to some extent where they found suitable ground. At their winter ceremonial feasts or potlachs, these Indians consumed and gave gifts of great quantities of surplus food, blankets, furs, and other commodities. In this manner, the Tlingit and Haida Indians obtained from their territory an economy that, for a primitive people, was rich in the variety and extent of its material wealth.

35. The accumulation of surplus wealth was a basic feature of the Tlingit and Haida economy. The house group and its individual families maintained their rank and acquired higher rank by accumulating surplus materials. Trade, in which these Indians were deeply steeped from earliest historical times, demanded surplus materials. This need for trade articles was further intensified by contact with the Americans and Europeans. The winter season of ceremonial activities and potlachs, important to the prestige of these people, sometimes cost the Indians years of accumulated surpluses. Accordingly, the economy of the Tlingit and Haida Indians drew from the resources of their territory a volume of material wealth greatly in excess of that which would have supported these Indians had their customs and manner of living been different. There was, however, a marked difference in the wealth and condition of the various tribes. The mainland tribes were better off than the *371 islanders principally because the mainlanders controlled the valuable trade with the interior Indians.

36. Throughout the winter months of November through February, the Tlingit and Haida Indians generally lived in one or another of the permanent villages which composed their tribes. This was their real home and is sometimes referred to as the “winter village” to distinguish it from the temporary summer camps. The massive ceremonial houses of the local clans were located in these villages. The village ordinarily stretched along some sheltered beach near some especially fruitful fishing, hunting and gathering area. However, most of the time throughout the spring, summer and fall the Indians were scattered, each family generally taking by canoe some customary route of its own whereby, together with the other occupants of its house, they would use the various fishing, hunting and gathering areas of the house, each area being used in the season of its special productivity. At these times, the winter village was all but deserted. During these spring, summer and fall rounds, the Indians lived mostly in crude shelters, the permanence of each depending upon the time spent in the particular area. Where a family customarily stayed for several weeks, it would build a camp of substantial planks. However, where the family customarily stopped for days only, its shelter would consist of little more than a heap of boughs or a skin tent. These summer shelters, like the permanent villages, were ordinarily located close to some fruitful region of some sheltered beach where the canoes of the Indians could be safely landed. In this manner, the habitations of the Tlingit and Haida Indians were scattered along the waterfronts of their territory, such as the ocean, the bays and inlets, up the rivers, wherever the waters were navigable by canoe, and also, to a lesser extent, on the shores of fresh water inland lakes where salmon spawned. Because of their remaining in their fixed dwellings only in the winter, and roving throughout their territory by means of their waterways during the remaining seasons of the year, the term “marine nomads” has been applied to these Indians.

37. Among Tlingit and Haida Indians, the annual round differed somewhat between the various tribes. The riverine *372 Tlingit tribes along the mainland coast, such, as the Chilkat-Chilkoot tribe, were able to secure great quantities of their staple foods for long seasons close to their permanent villages. They spent longer periods of the year in their permanent villages than did the island tribes. On the other hand, the coastal tribes generally did more inland hunting, and more overland traveling than did the island tribes. The mountain goat and marmot were obtained along the mountain slopes of the coastal range on the mainland. In addition, the mainland Indians had access to various other animals that were not found on the islands, such as wolf and grizzly bear, as well as the larger land mammals, such as elk and moose. The coastal tribes jealously guarded their trade monopoly with their Athabaskan neighbors to the east, and for this purpose, through well-defined trails and passes, traveled inland long distances beyond the coastal range. In general, however, the Tlingit and Haida Indians scattered out from their winter villages early in March. On the islands, this was the time for halibut and cod fishing and gathering herring roe, and on the mainland, for trout fishing. Shellfish were then at their best and were gathered in great quantities, dried, smoked and packed in airtight boxes. The coastal tribes traded dried meats and hides for these island shellfish, and engaged in trapping and hunting. In particular, this was the month for hunting bears, sea otter and seal. Deep sea and trout fishing continued in April, at which time the women gathered seaweeds of various kinds. The hunters continued trapping on the mainland, but on the islands, since the hair of the fur-bearing animals became thin with the approaching warm weather, the hunters sought other animals,, such as rabbits and porcupines. On the mainland, marmots were dug out of their holes on the mountainsides. Ducks were hunted on the water and grouse on the hillsides. In May, the search for green plant foods began. Many varieties of roots were collected by the women, boiled, dried and packed away. In this month, immense quantities of fish oil were prepared, this being the season for catching the olachen, a small extremely oily fish spawned in the river mouths. The oil from this fish was eaten with most foods and was used *373 for preserving berries, roots and herbs. The end of May was a time for trading expeditions, the tribes at the river months exchanging their oil, the coastal tribes their blankets and marmot robes, the island tribes their cod and halibut, and the Haida their large canoes, for the commodities of other tribes. In June, berries began to ripen and many varieties of berries and roots, herbs, hemlock bark, and birds’ eggs were gathered by the women for immediate consumption, for storage, and for trade. This was also a time for feasts and building ceremonial houses, using timbers that had been prepared during the winter. Trading continued throughout June, and long voyages were undertaken. In late June or July, the first salmon runs began, and by August the storage of large quantities of food became the principal activity. Women gathered berries and men hunted for meat, which was dried and stored. In September, most of the Indians concentrated upon salmon, the men fishing, the women drying, smoking, and storing. In October, the emphasis shifted to hunting such animals as the deer and the mountain goat. In this month, the coastal tribes made their last trading trips inland before the winter closed the passes. Toward the end of October, plans were laid for the ceremonial potlachs that took place in November and December. In winter, the days were short, the weather wet, and the nights suited to the great feasts. During these months, the tribes lived largely on the supplies gathered in other months. However, trapping and some hunting were carried on throughout the winter months, the Indians tending traplines that generally extended several miles up a stream or along some waterfront. In November and December most of the productive activities took place in the winter villages. The women prepared fibers for weaving and the men, wood, stone and shell for toolmaking. The men also searched the forests for trees for canoes and house timbers. By January, most ceremonial feasts were past. The women made garments and wove baskets and the men made canvas, totem poles, ceremonial articles, and tools. In February, preparations started for the new seasons’ rounds of fishing, hunting and gathering. Canoes, fishing and hunting equipment were repaired. The men made short *374 fishing trips. Soon thereafter each family set out, as the year before, to fish, hunt, and gather in the various areas allotted to it by the customs of its house and local clan.

Uses of the Shores.

38. As shown, a substantial part of the native materials used by the Tlingit and Haida Indians in their economy was obtained from the accessible beaches and along the accessible shoreline of bays, inlets, streams, rivers and inland lakes. As noted in finding 20, each claim to a fishing, hunting, or gathering area had its core along some defined stretch of waterfront or shoreline. The portion of their territory most thoroughly known and used by these Indians lay along the waterfront. From this core, their fishing, hunting, and gathering activities spread out into the waters on the one side and, on the other, into the accessible portions of the forests 'and mountains which were exploited.

All the habitations of the Tlingit and Haida Indians, their winter villages, summer camps, and forts, were located on or near the waterfront, either on the coast, on flat, sandy, beaches or quiet inlets, or at the mouth or lower part of the rivers or streams. There is no evidence that any Tlingit or Haida village was ever located inland, either on the islands or on the mainland of southeast Alaska. Generally these habitations were located along some shore where canoes could be conveniently landed. The burial grounds, the garden plots, the fishing stations, the areas where birds’ eggs, seaweeds, kelp and edible algae were gathered, the flats and bars where the Indians found fish and shellfish, all lay for the most part along the shoreline. Most of the hunting and trapping of the animals that lived in the forests or out in the lakes and streams was accomplished by the Indians at the water’s edge or close by the shore, in broad, flat areas. In this manner, the Indians secured a major portion of the materials used in their economy from the shores within the Tlingit and Haida territory.

39. The 32 principal winter villages used by the Tlingit and Haida Indians as of 1867 are set forth in finding 25. 2 The locations of permanent villages were only rarely moved. *375 As indicated in said finding 25, most of the present nature communities are located on the sites of original winter villages. In these villages, the massive houses were lined up along the forest edge back from the beach. Near these village sites, the Indians had their burial grounds, which also stretched along the forest line back of the beach. As of 1867, a small amount of agricultural activities was taken up by these Indians, and some of the villages had garden plots where the Indians raised for their own use and for trade, potatoes, turnips, radishes, and tobacco-like plants. Sites of abandoned villages were also used by the Indians to provide additional garden plots. Even though the winter villages were almost completely deserted by the Indians from early March until late October, the accumulated material wealth of the Indians, their ceremonial treasures, and their traditions were centered in the winter villages.

40. Summer camps were the centers of the fishing, hunting, and gathering activities of the Indians during the spring, summer, and fall. Practically every bay and stream, insofar as it was navigable, and each stretch of beach and accessible inland lake, had its use or uses for the Indians. Each had its season of productivity, in accordance with the varied activities set forth above, some long, some short, and some more highly prized than others. As shown in finding 36, the most highly prized places had shelters built of substantial plank construction, but in other less favored places the Indians that used the area would stop only for a day or so, erect a rough shelter of boughs, and leave little, if any, permanent camp. In this manner the accessible shorelines within Tlingit and Haida territory had large numbers of summer campsites of the Indians.

Use of Waters.

41. The use of the waters of southeastern Alaska by these Indians was, of course, closely related to and integrated with the use of the shores. The oceans, bays, inlets, rivers, and streams fronting the shores, and the inland lakes accessible from the shores, provided the Indians with the major part of their food supply, as well as with furs and other materials important to their economy. Fish, principally salmon, halibut, cod, flounder, herring, trout and olachan, *376 formed their primary food and an important article of trade. The Indians used hook and line, spears, gill nets, and at strategic stations along the coast and rivers, weirs and traps. However, the hook and line could not be used to catch the most prized fish, the sockeye and humpback salmon, which could only be caught in the quiet waters of certain rivers and lakes during the spawning season. It was salmon that was of first importance in the native economy. Hunting for sea lions, sea otter, fur seals, and birds’ eggs, was done on rocks 'and reefs off the ocean shores. Whales, porpoises and hair seals followed the fish runs. All these large sea animals were hunted with harpoon, bow and arrow, and gun, the Indians sometimes working a single canoe and at other times joining in a mass hunt with 20 to 30 canoes. However, while the Indians occasionally went out some distance into the open sea, they did not normally range out great distances. They generally remained in the close inshore and the enclosed bodies of water. Birds also were hunted on the water with bow and arrow or gun. As set forth in finding 37, each of these activities had its time and place in the seasonal round of the Indians. In their pursuit, the Tlingit and Haida Indians intensively searched and used the accessible waters fronting and within their territory.

42. The waters within Tlingit and Haida territory also provided the Indians with their principal means of travel. The ocean reaches along the coast, as well as the straits, bays, inlets, and large rivers were all navigable by canoe. Fiords penetrate deep into the mainland and larger islands. However, the streams were for the most part swift and precipitous and were seldom navigable for more than short distances. Nevertheless, they frequently afforded access by portage to navigable inland lakes. All these waters formed a network of routes for travel by canoe. Over these routes, the Indians made their seasonal rounds for fishing, hunting, gathering, and trade expeditions, and exchanged their visits in the winter months of ceremonial feasts. Almost everywhere these routes of travel cut deep into the forests and inland reaches of Tlingit and Haida territory and in this manner gave the Indians 'access by water to a large part of *377 southeastern Alaska. Canoe voyages of hundreds of miles were sometimes made on their waterways.

The Tlingit and Haida Indians were so oriented to the water in their customs and habits that they are commonly referred to as “coast” Indians. The great bulk of their resources came from the beach, river or sea.

Use of Forests and Inland Areas.

43. Although the Tlingit Indians were principally oriented to the water in their economy and culture, nevertheless most of the clans in varying degrees made use of certain land areas. The controlling factor in the use they made of forests and inland areas was the nature of the terrain, i. e., whether it was accessible and of any economic utility. Most of the islands are covered with a dense forest growth. Some portions of southeast Alaska, especially on the coast, are extremely rugged and mountainous and in places virtually inaccessible to man. There were extensive glacier areas along the coast as well as inland, extending in some places to the Canadian border, which were inaccessible to the Indians, and offered no economic resources. Likewise, especially in the northern part of the territory, some of the mountain peaks rise to altitudes above 6,000 feet and embrace areas of permanent snow where no Indian would ordinarily go. While the southern coast and island area of southeast Alaska is less rugged and was, therefore, more accessible to the Indians in their search for the resources useful to their way of life, there were also mountainous areas in this part of the territory which were inaccessible and unused, since most of the inland streams were not wholly navigable by canoe. There was such an abundance of supply of food and other resources obtainable from the waters and the adjoining shores that the need to exploit the rugged inland areas was not pressing. Forested areas extending up to the timberline of approximately 2,500 feet were generally used for the hunting, trapping, berrying and other inland activities hereinbe-fore described. However, mountainous areas above the timberline, which was generally at a height of approximately 2,500 feet, were not used or occupied to any appreciable degree, as was also true of the extensive glacier areas found in southeastern Alaska.

*378 44. In most of their searches for resources, the Tlingit Indians did not go more than two or three miles inland from some stream, lake, river or branch of the ocean. However, by reason of the network of these waters that laces southeast Alaska, a large part of this territory lay within this distance from some waterway. Some of the mainland tribes regularly traveled many miles inland, both to obtain the resources for which their area was especially noted, in particular the mountain goat and marmot, and also to trade with their Athabaskan neighbors. Similarly, many of the tribes extended their searches for resources to distances that did not depend upon distance from water. For instance, in hunting and trapping small fur-bearing animals and the ptarmigan, and gathering high altitude blueberries, the Indian extended his searches inland to accessible, favored, locations without regard to distance from water, provided, as stated, that the altitude was not in excess of approximately 2,500 feet. Nevertheless, the portions of Tlingit territory most extensively searched and used lay largely within about three miles’ distance of some waterway.

45. The Tlingit Indians used the accessible forests and inland areas for hunting and trapping, which provided them with furs, food and other articles. Furs were consumed and traded in large quantities. Deer was hunted in large numbers, both for the hide and the meat. Usually, however, the Indians took deer and other game along the beaches and in areas near the water. This is where the great bulk of the hunting and trapping of these Indians took place. On occasion, particularly in the summer when the deer fed deep in the woods and on mountain slopes near the timberline, the hunt for deer took the Indians inland. Many of the small fur-bearing animals, in particular the otter, beaver, muskrat and mink, were trapped in the interiors on the water’s edge. Others of relatively less importance, such as rabbits, marmot, martens, squirrels, and porcupines, were trapped and hunted in wooded areas and along mountain slopes away from water. Still others, in particular foxes, wolves, raccoons and bears, ranged widely and were hunted and trapped by the Indians wherever they were found. Bears in particular were highly prized for their fur and their dens were sought after *379 widely. A few of the animals that the Indians hunted, in particular the mountain goat, mountain sheep, and marmot, could generally be found only at high altitudes. However, the mountain goat would descend quite low on the mountain slopes during the winter and was there more accessible to the Indians. A large number of birds were also hunted inland. The Indians frequently hunted the grouse in inland wooded areas. The ptarmigan was occasionally hunted high on mountainsides. In this manner, except for the areas not accessible to the Indians, and mountain areas generally in excess of 2,500 feet in height, the hunting and trapping done by the Tlingit Indians necessitated the use of forested and inland areas within the Tlingit territory.

46. The berries, roots and other vegetable products that the Tlingit Indians gathered were frequently found in many different kinds of forested and inland areas. As shown, a number of varieties of roots and vegetables were used. Berries were preserved by the Indians in fish oil and formed an important part of the Indians’ diet as well as an article of trade. In many wooded areas, the Indians found huckleberries and on the edge of the forests and on mountain slopes, they found currants, gooseberries, raspberries, and blackberries. In high altitudes at about the timberline of approximately 2,500 feet, the Indians gathered the most highly prized blueberries and dwarf huckleberries. Along the banks of streams they found soapberries, and in low-lying deep woody spots, strawberries. Though berries grew in great profusion throughout many parts of southeast Alaska, the places where berries were clustered in sufficient quantity to make for efficient picking were known to the Indians and each such place was customarily claimed by a house or local clan. They generally returned year after year to each such place at the time best suited to harvest the berries.

47. As shown in finding 34, these Indians generally made extensive use of wood, bark, and other vegetable fibers. The red and yellow cedar which provided the logs from which they fashioned their houses, canoes, and totem poles often grew some distance back in the dense woods where the trees rose straight and tall without branching. The felling and dragging of a log to the nearest water was arduous and time *380 consuming. Accordingly, the Indians searched the forests for trees best suited to their use and only those that presented the greatest promise were selected. As also set forth in finding 34, the bark of the cedar was consumed in great quantities. Its fiber was used in a great number of the household and other articles of the Indians. Cedar logs and bark were an important article of trade among the Indians. For bark, the Indians also needed the cedars that grew in the dense woods where no low branches prevented stripping a single length of bark high up the tree. Trees thus stripped ordinarily died. Accordingly, the gathering of bark consumed large areas of dense forest and in this search the Indians ranged throughout their areas, sometimes penetrating two to three miles from the nearest water. Other trees used by the Indians, chiefly for their wood, included the spruce, hemlock and cottonwood. The bark of the hemlock was gathered in the spring for food. In addition to its other uses, wood served the Indians as fuel. Also by 1867, the Indians cut and sold wood for fuel to traders, ships and other white persons in their country.

48. Other items, both vegetable and mineral, were taken by the Tlingit Indians from the forests and inland areas. Most of these items were found 'in the areas of most -intensive search within two or three miles of the water’s edge. However, lichens used for dye were found only at high altitudes and at about the timberline of approximately 2,500 feet.

49. The network of waterways throughout Tlingit territory gave the Indians an abundance of -routes of travel. However, the hunting and gathering activities of these Indians made them familiar with large areas of land as well as the water. -Some of the tribes, such as the Chilkat-Chilkoot, had detailed knowledge of various parts of the rugged and mountainous interior regions of their territory. The Indians of these tribes were extraordinarily strong in packing heavy loads up certain of the mountainous slopes. For the most part these Indians used the trails made by animals. They did have in some places, however, well-established Indian trails. The most notable of these trails were those that led from the mainland coast into the interior. Other 'Indian-made trails provided portages between f requently used waterways.

*381 Saturation of Indian Use of Their Territory — Population.

50. The social organization, the propensity for trade and the industrious character of these Indians, all as above-described, were factors that generally impelled them to use to the full the resources available to them in their claimed areas. The social gradation among them made for a competitive society in which rant in large part depended upon the accumulation, display and disposal of material wealth. Such wealth, in turn, naturally depended largely upon the extent and nature of the fishing, hunting, and gathering areas claimed by each local clan, house, or family in a tribe and upon the success with which the Indians using the claimed areas harvested the resources useful to their economy. In addition, as set forth above, trade afforded to these Indians another avenue to material wealth and another stimulant to the vigorous exploitation of the resources of their territory. The demand that was provided by the American and European markets, especially for furs, exceeded in substantial quantities the earlier demands of the trade that existed between the Indians themselves. In response to this new market, the Indians exerted great energies in hunting, trapping, and other pursuits that yielded articles for trade with the white man. These activities were substantial in 1867 and through the decades immediately following. Accordingly, the way of life of these Indians made, .in their manner, for an extensive use of the accessible portions of their territory.

51. The history of the movement and settlement of these tribes into southeastern Alaska confirms the completeness of Tlingit and Haida use of the entire usable shore and adjoining water area of this region. A tribe’s arrival into its area generally resulted from its departure from an area of overcrowding and feuding to move into a new region where resources were again plentiful. This migration continued until the shores and, generally, the accessible and usable areas adjacent thereto, were completely claimed and until further movements both to areas inside and outside the territory were blocked by adverse claims. Prior to the advent of the white man, these Tlingit and Haida areas were completely *382 claimed by the Tlingit and Haida tribes, local clans and bouses.

52. Generally, each of tbe tribes occupied an area adjoining the area occupied 'by its neighboring tribe or tribes, leaving no area of vacuum with respect to accessible and usable lands and waters. There were at times disputes as to the boundaries between adjoining tribes, clans, or houses, and there are at present some differences of opinion by authorities as to certain of such boundaries, some attributing an area to one tribe or clan, and others to another. However, for the purposes of this case, such differences are immaterial, since the dispute was only among Tlingit or Haida Indians themselves, in whose overall behalf this suit is brought. For the most part, however, there is even little dispute of importance concerning the boundary of each tribal area, there being substantial agreement and uniformity in the establishment for each tribe of an area defined both by the outer limits of the regions used and claimed by its members and also by the outer limits of the regions used and claimed by the members of its neighboring tribes.

Similarly, the boundaries of the local clan and house areas which were accessible and usable adjoined one another, leaving no such areas unclaimed except for the few areas specified in finding 32. Along the coast, each of the waterways, rocks, bays, headlands, and other physical features, had its Indian name.

53. The population of the Tlingit and Haida Indians prior to 1867 and as of that approximate year has been variously estimated. An actual count of these Indians was not obtained with any accuracy until long after 1867. The first census takers worked in Tlingit and Haida territory during the summer season when the Indians were scattered and the results were therefore uncertain. Earlier counts were made in a few communities, but not over the entire Tlingit and Haida territory. Moreover the population was drastically reduced by smallpox epidemics in 1787, 1836, and 1862, and typhoid in 1819, 1848, and 1855. On all the evidence, it is reasonable to conclude that the population of the Tlingit and Haida Indians in early historic times was approximately 10,000 and that in 1867 this population was approximately *383 6,000. This latter level of population, which reflects in part the changed conditions brought about by the advent of white civilization, has remained comparatively stable to the present time, being now approximately 7,000.

Exclusiveness of Tlingit and Haida Use of Their Territory'.

54. The concept that the tribes, the local clans in the tribal villages, the houses and even the families had their areas of material resources in respect of which only certain Indians had the right of use was basic to Tlingit and Haida culture. This feature of the culture of these Indians came early and forcibly to the attention of the first European and American explorers and traders in Tlingit and Haida territory. The sensitivity of the Tlingit and Haida Indians to defend against and secure compensation for any encroachment upon their concepts of the ownership of their territory and the rights to its use is clear from the relations of the Tlingit and Haida Indians among themselves, their relations with other Indians, and with Europeans and Americans who came into their territory. To the extent possible, consistent with their manner of life and their social and political organization, they maintained the exclusive use of their territory both as against other Indians and as against white explorers, traders, miners, and settlers.

55. As of 1867 and for many years earlier, no Indian nor native people other than the Tlingit and Haida Indians used or occupied, or made any claim to use or occupy, any part of their territory. The neighboring Indians that came into Tlingit and Haida territory came to trade, visit, or raid, the raids, however, not being for purposes of territorial expansion. There is no evidence of any native people pressing to move in upon any part of Tlingit and Haida territory in 1867 or for years earlier. When Indians from other regions came into Tlingit and Haida territory to visit or trade, they did not live off the land. They brought provisions with them or sought permission to use the land.

56. As of 1867, the Europeans and Americans had made only a few scattered intrusions into Tlingit and Haida territory. These intrusions consisted of the settlement at Sitka and a few trading posts along the coast. Excepting only these limited areas of actual white possession, the Tlingit *384 and Haida Indians as of 1867 still retained, in accordance with their native customs and concepts, the exclusive use and occupancy of their territory. The mainland tribes acted in the capacity of agents between the whites and the interior Indians. Access to the interior Indians was principally maintained by going up various rivers to the interior. The interior Indians supplied considerable furs, such as mink, marten, fox and bear, and the skin of the mountain sheep. The mainland Tlingit tribes did not allow the interior Indians to come to the white settlements to trade, nor did they permit the whites to pass into the upper country to trade with the interior Indians.

The Territory Used and. Occupied By the Tlingit a/nd Haida Indians as of 1867.

57. There is reproduced and shown opposite this finding, a map of southeastern Alaska in evidence as plaintiffs’ exhibit 168. On this map is shown the area claimed by the Tlingits and the area claimed by the Haidas. There is also reproduced and incorporated herein plaintiffs’ exhibit 169 which shows the same area and the inner boundaries of each part claimed by the individual groups of Indians enumerated in finding 25. See finding 25 for map.

These maps set forth as accurate a delineation of the territory actually used and occupied by the Tlingit and Haida Indians and the subdivisions or clan groups, as of 1867, as it is possible to determine at the present time. While these Indians did not have the modern man’s concept of precise areal boundaries in connection with their clan, house or overall claims to land and water, they did have, as previously shown, very definite concepts of proprietary rights in their territories extending to well known landmarks, such as rivers, rocks, reefs, mountain peaks, valleys or natural characteristics or points on the shores, bays, inlets or watersheds. In some instances, particularly in Haida territory, where there might be no natural landmark on the shore to serve as the dividing line between the territory of two clans or house groups, a stake would be driven on the shore to serve such purpose. Accordingly, lines drawn, as on these maps, to indicate the scope of the territories used and *385 occupied by these Indians and their clans and tribes do serve to depict the outer limits of such territories with reasonable accuracy. Therefore it is found that these maps, for the purposes herein involved, accurately delineate the territory used and occupied by these Indians as of 1867. This is particularly so insofar as concerns all the shores within the territory so delineated on these maps, and the waters adjoining them, both on the mainland and the innumerable islands of the Alexander Archipelago off the mainland, and including the shores and waters of the bays, inlets, straits, sounds, lakes, rivers, streams and tributaries in such territory and fronting on and connected with the coastline. Not only the streams and rivers themselves were used and occupied, but the entire watershed flowing into the stream or river was claimed as part of the clans’ possessions. Such shores and waters were used and occupied as detailed in findings 38, 39, 40, 41 and 42. While the fishing and sea animal hunting activities of these Indians did not extend far into the ocean, the western outer boundary on the maps portrays a fair and reasonable delineation of the extent of such activities into the Pacific Ocean.

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*385 UNITED STATES PURCHASE OP ALASKA

The Negotiations and Treaty.

58. In March 1867, William H. Seward, Secretary of State, and Edouard de Stoeckl, Eussian Minister at Washington, entered negotiations for the purchase of Alaska by the United States from Eussia. On March 15, and March 19, 1867, Seward laid before the President’s Cabinet drafts of treaties for the purchase of Alaska for $7,000,000 in gold. The draft of March 19 was approved by the Cabinet and it was then to be sent to Eussia for approval. This draft provided, in article VI, that: *386 Seward had included this provision because he was unwilling that the United States by the treaty should confirm the title of the Russian American Company or of any other company, such as the Hudson’s Bay Company, to properties in Alaska. Seward knew at that time that a convention made between the United States and Great Britain had resulted in the confirmation of the title of the Hudson’s Bay Company to properties in Oregon Territory. He was aware of difficulties that had thereafter ensued in that instance. He also knew that the Russian American Company had properties and privileges in Alaska; that, as hereinabove set forth in findings 10 and 19, it had leased its privileges in a portion of the Alaska mainland to the Hudson’s Bay Company, and that it had entered into other commercial arrangements with the American Russian Commercial Company. Accordingly, under date of March 23, 1867, Seward wrote de StoecH concerning this article:

*385 * * * 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, Eussian, or any other, or by any parties, except merely private individual property holders * * *.

*386 With reference to the proposed convention between our respective governments for a cession by Russia of her American territory to the United States, I have the honor to acquaint you that I must insist upon that clause in the sixth article of the draught which declares the cession, 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, etc., and must regard it as an ultimatum; with the President’s approval, however, I will add two hundred thousand dollars to the consideration money on that account.

Mr. de Stoeckl, under date of March 25, 1867, responded as follows:

I have had the honor to receive the note which you were pleased to address to me on the 23d March, 1867, to inform me that the federal government insists that the clause inserted in article sixth of the project of convention must be strictly maintained, and that the territory to be ceded to the United States must be free from any arrangement and privileges conceded either by government or by companies.

In answer, I believe myself authorized, Mr. Secretary of State, to accede literally to this request on the conditions indicated in your note.

*387 Thereupon the purchase price was increased from $7,000,000 to $7,200,000. The treaty was executed by Seward and de StoecM, on March 30, 1867. The ratifications of both governments were exchanged and the treaty proclaimed on June 20,1867.

59. The treaty by which the United States purchased Alaska from Russia provided, in part, as follows:

Article I. His Majesty the Emperor of all the Rus-sias 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, the same being contained within the geographical limits herein set forth * * *.

Article II. 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 choose to therein. * * *

Article III. 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 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 aboriginal tribes of that country.

***** Article VI. * * * 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 *388 belonging to Russia in the said territory or dominion, and appurtenances thereto.

60. An undated draft of the proposed treaty terms stated in part as follows:

Mr. Seward proposes that Russia cede and convey to US Her possessions on the North American continent and the adjacent Aleutian islands, the line to be drawn through the center of Bherings straits and include all the islands East of and including Attoo the dominion to be embraced of the Government and Company Russian Fur Company and all other the therein individual private titles which shall be confirmed. The White population remaining to be citizens U. S. the Indians to be on the footing of Indian [illegible word] in the U. S.

61. Subsequent to the ratification of the treaty but prior to the formal transfer of the territory, Secretary Seward sent a letter dated September 6, 1867, to the Secretary of War, stating as follows:

In relation to the despatch of Major General Halleck, of the 2d of September, instant, in which he requests that the President will by proclamation declare the newly acquired Russian territory an Indian territory in order to prevent the introduction of ardent spirits among the Indians there, I am instructed to say that the President will retain the same for further consideration. At the same time he desires that Major General Halleck will confer with General Rousseau upon that subject, to the end that the matured views of those officers may be submitted to the President as early as practicable.

For the information of the War Department, I communicate a copy of an opinion of E. Peshine Smith, esq., Examiner of Claims m this department, which sets forth a view of the laws of the United States bearing upon that question, which view is adopted by this department.

The opinion referred to in the letter read as follows:

bureau oe claims,

September 5, 1867

Proclamation that the territory ceded by Russia is Indian territory:

Such a proclamation is recommended by General Hal-leck in order to prevent the introduction of whiskey among the Indians.

*389 Tbe act of 1834, (4 Stat., 729) “to regulate trade and intercourse with the Indian tribes,” provides that, “all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana or the Territory of Arkansas, * * * for the purposes of this act be deemed and taken to be the Indian country.”

The question is, whether the provisions of that act in respect to trade and intercourse with Indians are to.be restricted to their operation in the Indian country which was within the United States at the time of the passage of the act, or whether they take effect and apply to new territory acquired by conquest or treaty, without any further legislation giving them such extension.'

I think this question has been settled by the Supreme Court of the United States in the case of Cross vs. Harrison, (16 Howard’s B., 164, 199.) The question there was, whether upon the ratification of the treaty for the cession of California the existing several laws came into operation so as to regulate the rate of duties on imported goods without any act of Congress declaring their will in that respect, and creating collection districts. The court held that the ratification of the treaty made California a part of the United States, and that so soon as it became so the territory instantly became subject to the acts which were in force to regulate foreign commerce with the United States.

The argument was urged in that case that the revenue laws applied only to the territory under our jurisdiction when they were passed, until Congress, by creating collection districts m the new Territory, or some other act of the same nature, had manifested its will that the laws should be thus applied. That argument was overruled by the court, and it would, therefore, be overruled in respect to Alaska and commerce with the Indian tribes.

I think, therefore, that the new territory became a part of the Indian country on the 20th June last. A proclamation by the President is only necessary for the information of persons going into the territory of the restrictions

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