(specially concurring).
When the decision was filed in this case, I announced that while I joined in the opinion of the court I would file a specially concurring opinion. I join in the opinion filed except that I think the history of the Alaska Indians and the circumstances under which the disclaimer provision of the Alaska statehood act was enacted are so dissimilar from the history and circumstances surrounding the enactment of the disclaimer provisions of the New Mexico Enabling Act that the construction placed on the disclaimer provision of the Alaska act by Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573, is wholly inapplicable to our act.
The opinion of the court, in the instant case, quotes from Kake construing the statehood act to disclaim only a proprietary interest' in Indian lands and property rather than a governmental interest. The question before the court, in Kake, was whether the State of Alaska could enforce its anti-fish-trap laws to prevent Indians from maintaining fish traps.
Differences in the language of the Alas-ha and New Mexico statehood acts; in the history of the Indians and Indian property in Alaska and New Mexico; and, the history of the congressional action regarding the two acts, show that the construction placed on the Alaska act in the Kake decision was intended to be limited to that act alone.
The Alaskan Indians were never in the hostile and isolated position of many of the tribes in other states, including the treaty Indians of New Mexico. There were never treaty Indians in Alaska, nor was there ever an attempt there to isolate them on reservations. For many years prior to Alaskan statehood, the Indians had substantially adopted and been adopted by the civilization of the territory. Alaskan Indians occupy important public offices in state government. Metlakatla Indian Community Annette Island Reserve v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562. Justice Frankfurter in Metlakatla points out a further important distinction in the history of the Indians of Alaska as compared to the treaty Indians of other states, in saying:
“As early as 1886 a federal judge, holding Alaska Indians subject to the Thirteenth Amendment, denied that the principle of Indian National sovereignty enunciated in Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, applied to them.”
Furthermore, in Kake the court extensively detailed the discussions in congressional committee hearings on the Alaska statehood bill and said that these discussions afforded a basis for determining what was intended by Congress. In saying that the disclaimer by Alaska was a disclaimer of proprietary rather than of governmental interest, it will be noted the language is very similar to statements made in the hearings as to the meaning of the language. Moreover, it was there said that the act must be construed in the light of the history leading up to and the circumstances of the legislative enactment. That history and the history and situation of the Indians residing on reservations in New Mexico is so different that the construction of the disclaimer provision of the Alaska Act seems to me to be clearly distinguishable.
The construction placed on the Alaska statehood act in Organized Village of Kake v. Egan, supra, is not necessary to the decision reached by the court in the instant case. For all of the other reasons given in the opinion, I concur in the opinion of the court except I do not think that the construction placed on the disclaimer provision of the Alaska statehood act is controlling as to the disclaimer provision of the New Mexico Enabling Act.