HQ 0109632 - Applicability of coastwise laws to waters located within Indian reservations. - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1990 HQ Rulings > HQ 0109391 - HQ 0220023 > HQ 0109632

July 12, 1988

HQ 109632

July 12, 1988

VES-3-06-CO:R:P:C 109632 GV

CATEGORY: CARRIER

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.

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
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).

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

Previous Ruling Next Ruling