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Had it been the serious intention of the British Government to enter a protest against the claim of the United 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 United 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 Canal, 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 vivendi 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.
€ British (ase, 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 distinct 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 L'nited 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 Counter 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."« 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 United 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 stated 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 United States ever since they acquired this country from the Russian Government in 1867, and, so far as my information goes, I am not aware that any protest has ever been raised by any Government against the occupation of Dyea and Skagway by the l'nited States. It is only in recent years that the attention of the public has been drawn to it.a
a U. S. Counter Case, App., p. 158.
Ibid., p. 169.
The foregoing are the declarations of the Minister to whose de partment the subject of the boundary specially pertained, and of the head of the Dominion Government—the two officials best qualified and most fully authorized to make a public statement of the facts involved. It is not to be presumed that they spoke unadvisedly or without a proper investigation of the official records. But the published - Debates" show that in the month following, after ample time had elapsed for examination, the subject was before the House of Commons again, upon a motion by the leader of the opposition, Sir Charles Tupper. In his reply, the Prime Minister, Sir Wilfred Laurier, said:
Now I will not recriminate here; this is not the time nor the occasion for doing so; but so far as I am aware no protest has ever been entered against the occupation of Dyea by the American authorities; and when the American authorities are in possession of that strip of territory on the sea which has Dyea as its harbour, succeeding the possession of the Russians from time immemorial, it becomes manifest to everybody that at this moment we can not dispute their possession, and that before their possession can be disputed, the question must be determined by a settlement of the question involved in the treaty..
When it is remembered that all the acts which are cited as “protests” in the British Case, with one exception, had a presumed relation to the territory about the passes at the head of Lynn Canal, the Tribunal may determine, in the light of the public declarations of the Prime Minister and the Minister of the Interior of the Dominion of Canada, relating to what Lord Landsdowne terms "the main question in this controversy," what weight should be attached to the averments now made on behalf of Great Britain.
The l'oited States submitted in its Case an overwhelming array of evidence to establish its complete, continuous and uncontested occupation and control over the territory which it received from Russia, and upon that evidence it would be quite content to leave to the Tribunal the decision of the question, how far that occupation and control, in connection with the acts of the litigant parties respecting it, affect the true interpretation and meaning of the treaty.
(U. S. Counter ('ase, App., p. 170.
1) Ibid., p. 172.
But the British Case, in treating upon this subject, contains some strange assertions of fact and conclusions, which it is deemed proper should receive attention. It contends that, up to a recent day, there has been a marked absence of control by the United States throughout the lisière; a it is able to cite but two cases between 1869 and 1890 - to show the very slight nature of the control occasionally exercised by the United States over the inhabitants of Alaska"), it states that the isolated acts of possession of citizens of the United States at the head of Lynn Canal bear no importance in the present case and that they were in violation of law; that the primitive condition of the country remained unchanged until about 1896, which date is fixed as the beginning of the mining exploitation; and that the assumed claim of the United States, that the possession about Dyea and Skagway should influence the Tribunal in its decision, "is wholly disputed.""
By reference to the Case of the United States it will be seen that for several years after the cession of Alaska it was held, so far as the Visière was concerned, mainly as an Indian territory and that the laws of the United States, except so far as was necessary for the preservation of order and the protection of commerce and the revenue were concerned, were not extended over it. This naturally had a restraining influence upon iminigration and white settlement. But it was shown by indubitable official evidence that during that period the authority of the United States was continuously exercised by the army, the navy and the revenue service throughout the whole of the lisière, and especially along the Stikine River and up to the heads of all the inlets; that peace and order was enforced among the Indians in those regions, and they were made to recognize the unquestioned authority of the United States; and that the customs regulations were in operation throughout the territory. It also was shown that during the same period surveys of all the coasts of the lisière, including the inlets and the rivers emptying into them, were made.
It was not until 1884 that the Congress of the United States decided to give the territory a civil government, but a considerable white settlement had existed at Wrangell at the mouth of the Stikine from the date of the cession; in 1880 the town of Juneau on the mainland was founded, and about the same time a mission school was established at Haines at the head of Lynn Canal and white settlers began to enter
a British Case, p. 89.
b Ibid., p. 90.
Ibid., pp. 92, 93.