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THE ALLEGED BRITISH PROTESTS.
An effort is made in the British Case to show that protests have been made to the Government of the United States at various times against its real or supposed claim to the boundary line. Noticing them in the order of time, the first advanced is the representation made respecting the report of Lieutenant Schwatka of a reconnaissance in 1883 conducted by him in Alaska and adjoining British territory. The report was published in full with maps in 1885. From this it appears that he was sent by the general commanding one of the military departments on the Pacific coast, to examine into the condition of the Indians of the Territory of Alaska, and to report upon the resources of the country in view of possible military operations against the tribes. His instructions contemplated no survey of the boundary and his report does not develop any intention or attempt to do so.
Two years after the report appeared the British minister in Washington enclosed a memorandum in a note to the Secretary of State, without making any comment upon it, and added that “he (Schwatka) traversed British territory for a considerable distance without any intimation having been given the British authorities of his intention to do so;" but he stated that “no doubt had their acquiescence been asked it would not have been refused." The chief allegation of the memorandum was that in his report he had indicated Perrier Pass “as defining the international boundary.” The statement which gave rise to this assertion was, “the country beyond Perrier Pass, in the Kotusk mountains, lies in British territory." The context shows that there was no intention to define the boundary, and this was so apparent that the minister did not feel called upon to make any comment. His note was regarded as of so little importance that it did not evoke a reply from the Secretary of State, and nothing further was heard of the incident until after the adjournment of the Joint High Commission in 1899, when the subject of the boundary became a matter of discussion between Lord Salisbury and Mr. Choate. This is styled “Canada's Protest” in the British Case.
In 1888 the British Minister brought to the notice of the Secretary of State - a rumour
that a charter is about to be granted by the authorities of Alaska for certain privileges in a part of that coun
« U. S. Counter Case, App., p. 89.
(U. S. Case, App., p. 89. d British Case, p. 91.
try which is claimed by Great Britain," without giving the slightest information as to the locality. Secretary Bayard naturally responded that “the rumour
is, as stated hy you, certainly vague and indetinite;" that his department had no notice of it; but that he would make inquiry of his colleagne, the Secretary of the Interior. few days he informed the minister that the official named had no information on the subject, and there the correspondence closed." This is termed a further protest of Her Majesty's Government.")
In June, 1891, the British minister in Washington addressed the Secretary of State a note in which he inserted an extract from the la-t report of the Superintendent of the United States Coast and Geodetie Survey, stating that, in accordance with recent enactments of Congress, a preliminary survey of the Alaska boundary had been made, and described the line very much as it had been drawn in the Coast Survey map published by the Secretary of State at the time of the cession in 1867, and as it had been marked on every map issued by the Government of the United States sin e that date. The minister followed the extract with the following statement: “The Dominion Government have expressed a desire that the Government of the C'nited States may be reminded that the question of the boundary at this point is, at the present time, the subject of some difference of opinion and of considerable correspondence, and that the actual boundary line can only be properly determined by an International Commission."
As the extract described the line from the southern extremity of Prince of Wales Island to the Arctic Ocean, a distance of 1,100 miles. it was difficult to determine the locality referred to as “at this point." The survey was the one which grew out of the correspondence initiated by Secretary Bayard in 1855, and in which the Canadian Government had been invited but had failed to participate. The note in 1885 was so vague and indefinite that no reply seems to have been made to it, and neither government again alluded to it until eleven years afterwards, when it was cited by the British chargé in 1902 as evidence of dissent from the claim of the United States to the water boundary along the Portland Canal. This is styled “The British Protest of June, 1991."
a British Case, App., pp. 265–67.
Ibid., p. 295.
Had it been the serious intention of the British Government to enter a protest against the claim of the Cnited States to the boundary as indicated in the Coast Survey maps, an appropriate time would have occurred when the latter government issued the map of 1867, while the treaty of cession was pending and before the transfer of Alaska was made. Another suitable occasion presented itself when, at the request of Earl Granville, on November 17, 1883, the annual reports of the l'nited States Coast and Geodetic Survey for the year 1874, 1875, 1876, 1877, 1878, and 1879, were delivered to the British legation in Washington for the information and use of its government. These reports contained maps marking the boundary in the same manner as in the report which was made the subject of the legation note of June 5, 1891.
Again the British Case asserts that “the Canadian Government, in the early part of the year 1898, formally protested to the Imperial Government that the United States had established a sub-port of customs at Dyea, in territory which they claimed was rightfully British,") but it is not alleged that this protest ever reached the Government of the United States. The British ambassador, on February 23, 1898, wrote the Secretary of State, that “the great traffic which is now attracted to the valley of the Yukon in the Northwest Territory by the recent discovery of gold in that region finds its way there from the coast, principally through certain passes at the head of the Lynn Camal, and it has become more important than ever for jurisdictional purposes that the boundary, especially in that particular locality, should be ascertained and defined.” Out of that note grew the modus
( rivendi of 1898–9 respecting White and Chilkoot Passes and the Klehini River; but there is no indication in it of a protest even at that late date against the occupancy of Dyea by the United States authorities.
The foregoing constitute a review of all the allegations in the British Case that the attention of the United States has been called to the fact that the Government of His Britannic Majesty entertained views as to the interpretation of the treaty of 1825 opposed to those of the l'nited States, and that His Majesty's Government has made protest against the claims of the United States and against the occupancy of the territory now in controversy.
c British Case, App., p. 291.
a U. S. Counter Case, App., p. 88. British Case, p. 96.
The United States submits that the acts stated and the so-called protests fall far short of the requirements of international law and the practice of nations, in cases of such importance and gravity as those involving large areas of territory and rights of navigation and commerce of the highest value. When matters of such moment are involved it is not the custom of governments to make known their views by means of an informal meeting of two citizens or subjects, clothed with no authority either to speak or act for them. Neither is it usual when an unwarranted assumption of territorial sovereignty is charged to present protests in language so vague and indefinite as to fail to make them understood by the offending government.
The contention of the United States is that up to August 1, 1898, it had no distinct and official announcement that the British Government entertained view respecting the interpretation of the treaty of 1825 materially at variance with those uniformly put forth and maintained by the United States from the date of the acquisition of Alaska. It admits that there has existed some uncertainty as to the exact point where the line should be drawn on the rivers and streams which flow from British through American territory into the sea; but not until a copy of the instructions of the British members of the Joint High Commission were sent to the Secretary of State on August 1, 1898, was any special assertion of a claim to the heads of the inlets made by the British Government; and not until the British Case was delivered on May 2, 1903, was there a distinet and formal averment made by that government that it contested the water boundary as laid down upon all of the official maps of the United States since 1867.
On the other hand the United States submitted to the Tribunal in its Case a mass of evidence to show that Russia and the United States have since the treaty of 1825 been and remained in uncontested possession of the lisière as claimed by them; and it herewith submits further evidence to show not only the acquiescence of Great Britain in this peaceful possession, but the recognition of this possession by various of its authorities and their declarations that no protests have been made against the American occupation.
In addition to other acts, cited in this ('ounter Case, of acquiescence by the British authorities in the occupation of the United States, attention is called to the declaration of Lord Lansdowne, the present
head of the British Foreign Office. In his reply to Mr. Choate he says: “The main question in this controversy is that which involves the ownership of the heads of inlets in general, and of the Lynn Canal in particular.”a In the Case of the United States and elsewhere in this Counter Case the facts of the American occupation of that portion of Alaska are fully discussed. It is now desired to submit to the Tribunal the testimony of the highest British authorities as to what has been the character of the protests, if any, which have been made to the American occupation of the inlets at the head of Lynn Canal.
During the debate in the Canadian House of Commons on the Yukon railway bill, February 11, 1898, the Minister of the Interior, Honorable Clifford Sifton, was questioned as to the ownership of the territory in the vicinity of the passes about the head of Lynn Canal, and he replied as follows:
Difficulties also arose in the White Pass, behind the village of Skagway, and at Chilkat Pass behind Dyea. I believe our contention is that Skagway and Dyea are really in Canadian territory, but as the l'nited States have had undisputed possession of these for some time past, we are precluded from attempting to take possession of that territory..
Sir CHARLES HIBBERT TUPPER. May I be excused for saying that I do not think the Honourable Minister meant to say "undisputed possession”.
The MINISTER OF THE INTERIOR. There have been no protests made. It must be taken as undisputed when there has been no protest made against the occupation of that territory by the United States.
Sir CHARLES HIBBERT TUPPER. A claim, I suppose, was made and adhered to?
The MINISTER OF THE INTERIOR. There is nothing in the records to show that any protest has been made-an unfortunate thing for us, but it is a fact. I do not know that that particularly affects the discussion, because there has been no real discussion about that particular point.
Five days later the Prime Minister, Sir Wilfred Laurier, was asked by the member from Victoria, British Columbia, respecting a report that the United States was about to send troops to Dyea and Skagway. The Prime Minister sta that he was not informed as to the intentions of the Government of the United States and added:
My honourable friend is aware that, although this is disputed territory, it has been in the possession of the l'nited States ever since they acquired this country from the Russian Government in 1867, and, so far as my information goes, I am not aware
al. S. Counter Case, App., p. 158.
1 Ibid., p. 169.