HQ 109632: Applicability of coastwise laws to waters located within Indian reservations.

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