us-cbp-cross-rulings-hq-109632•HQ 109632: Applicability of coastwise laws to waters located within Indian reservations.
HQ 109632: Applicability of coastwise laws to waters located within Indian reservations.
us-cbp-cross-rulings-hq-109632HQ 109632: Applicability of coastwise laws to waters located within Indian reservations.Guidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
July 12, 1988
HQ 109632
July 12, 1988
VES-3-06-CO:R:P:C 109632 GV
CATEGORY: Carriers
Peter D. Westphal
Attache
Embassy of the Federal Republic
of Germany
4645 Reservoir Road, N.W.
Washington, D.C. 20007-1998
RE: Applicability of coastwise laws to waters located
within Indian reservations.
Dear Mr. Westphal:
This is in reference to your letter of July 6, 1988,
requesting a ruling as to whether a German-built ferry boat
would be allowed to operate in waters located within the Fort
Berthold Indian Reservation or whether this would be prohibited
by the "Jones Act".
FACTS:
The Fort Berthold Reservation was established for the
Arikara, Mandan, and Hidatsa Tribes by the Fort Laramie Treaty
of 1851. Located in central North Dakota, the Reservation
occupies sections of six counties: Mountrail, McLean, Dunn,
McKenzie, Mercer, and Ward.
The total area within the boundaries of the Reservation is
approximately one million acres of which about one-half is
trust land. Lake Sakakawea, formed by the Garrison Dam,
traverses the Reservation and splits it into five parts which
are tenuously tied together by the road system. This lake has
approximately 600 miles of shoreline lying within the
Reservation boundaries.
-2-
The original, major Indian communities on Fort Berthold
were inundated with the construction of the Garrison Dam on the
Missouri River in the 1950's. While there are Indian families
living throughout the Reservation, the majority live in the
local communities of Mandaree, White Shield, Twin Buttes, and
the incorporated towns of Parshall and New Town; the last
containing the Tribal and Bureau of Indian Affairs
headquarters. The current resident Indian population of the
Reservation is estimated to be 3,310 persons.
The Fort Berthold Reservation is divided into six
political subdivisions called Segments. They are referred to
as: Mandaree Segment, New Town/Little Shell Segment, Twin
Buttes Segment, White Shield Segment, Four Bears Segment, and
Parshall/Lucky Mound Segment.
These six segments are separated by the Garrison Reservoir
(i.e., Lake Sakakawea) which occupies 155,000 acres of land in
the middle of the Reservation. This completely separates the
Twin Buttes Segment from the rest of the Reservation. There is
no bridge crossing the lake except between the New Town and
Four Bears areas in the northwestern corner.
The Tribal Government is a representative, democratic
form. Six members (elected from each segment) and a chairman
(elected at-large) form the Tribal Business Council. The tribal
Business Council of the three affiliated tribes (Arikara,
Mandan and Hidatsa) has approached the Embassy of the Federal
Republic of Germany about acquiring a German-built ferry boat
with a capacity of holding ten vehicles for use on the waters
of the Fort Berthold Reservation described above.
ISSUE:
Whether the use of a German-built ferry boat on Lake
Sakakawea/Garrison Reservoir in Fort Berthold Indian
Reservation located in central North Dakota is prohibited by
46 U.S.C. App. 289 and 883.
LAW AND ANALYSIS:
Title 46, United States Code Appendix, section 883 (46
U.S.C. App. 883), often called the "Jones Act", provides, in
part, that no merchandise shall be transported between points
in the United States embraced within the coastwise laws, either
directly or via a foreign port, or for any part of the
transportation, in any vessel other than a vessel built in and
- 3 -
documented under the laws of the United States and owned by
persons who are citizens of the United States (i.e., a
coastwise-qualified vessel). Section 289 of title 46 (46
U.S.C. App. 289), as interpreted by the Customs Service,
prohibits the transportation of passengers between points in
the United States embraced within the coastwise laws, either
directly or by way of a foreign port, in a non-coastwise-
qualified vessel (see above).
In its administration of 46 U.S.C. App. 289, the Customs
Service has ruled that the carriage of passengers entirely
within territorial waters, even though the passengers disembark
at their point of embarkation and the vessel touches no other
coastwise point, is considered coastwise trade subject to the
coastwise laws. However, the transportation of passengers to
the high seas (i.e., beyond U.S. territorial waters) and back
to the point of embarkation, assuming the passengers do not go
ashore, even temporarily, at another United States point, often
called a "voyage to nowhere," is not considered coastwise
trade. It should be noted that the carriage of fishing parties
for hire, even if the vessel proceeds beyond territorial waters
and returns to the point of the passenger's embarkation, is
considered coastwise trade.
In interpreting the coastwise laws, Customs has ruled that
a point in United States territorial waters is a point in the
United States embraced within the coastwise laws. The
territorial waters of the United States consist of those inland
U.S. waters deemed navigable, and the territorial sea, defined
as the belt, 3 nautical miles wide, adjacent to the coast of
the United States and seaward of the territorial sea baseline.
It is without question that although physically within the
territory of the United States the unique historical origins of
tribal sovereignty, which predate that of our own Government,
have posed a problematic factor in demarcating the realm of
authority (i.e.,the applicability of various laws) over Indian
reservations specifically with regard to state, local and
tribal control. Nevertheless, the Court has continued to
stress that Indian tribes retain "attributes of sovereignty
over both their numbers and their territory." White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578,
2583, 65 L.Ed.2d 665 (1980), quoting United States v. Mazurie,
419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975).
As a result of their sovereign status, tribes and their
reservation lands are insulated in some respects by an
"historical immunity from state and local control." New Mexico
v. Mescalero Apache Tribe, 462 U.S. 324, 332, 103 S.Ct. 2378,
2385, 76 L.Ed.2d 6ll (1983), quoting Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114
(1973).
- 4
However, unlike state and local authority, federal
authority over Indian matters is much broader pursuant to the
United States Constitution, specifically Article I, Section 8,
Clause 3, relating to Indian Commerce, and Article II, Section
2, Clause 2, relating to treaty making. McClanahan v. State
Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.
Ed.2d 129 (1973). In regard to tribal versus federal
authority, the Court has stated that tribes retain any aspect
of their historical sovereignty not "inconsistent with the
overriding interests of the National Government." New Mexico
v. Mescalero Apache Tribe, supra, 462 U.S. at 332, 103 S.Ct. at
2385, quoting Washington v. Confederated Tribes of Colville
Indian Reservation, 447 U.S. 134, 153, 100 S.Ct. 2069, 2081, 65
L.Ed.2d 10 (1980). Furthermore, the Court has established that
"a general statute in terms applying to all persons includes
Indians and their property interests." Federal Power
Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.
Ct. 543, 553, 4 L.Ed.2d 584 (1960).
In view of the above-cited authority, the coastwise laws
(i.e., 46 U.S.C. App. 289, 883) would apply to navigable waters
located on any Indian Reservation within the United States. To
hold otherwise would be inconsistent with the overriding
interests of Congress in protecting the domestic shipping
industry and create an exception neither Congress nor the Court
has thus far seen fit to recognize.
HOLDING:
The use of a German-built ferry boat on Lake
Sakakawea/Garrison Resrvoir in Fort Berthold Indian Reservation
located in central North Dakota is prohibited by 46 U.S.C. App.
289 and 883.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch
CO:R:P:C:GVERB:mr: 7/19/88
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.