The defendants have jointly filed a motion to dismiss the complaint upon the grounds that it fails to state a claim against the defendants upon which relief can be granted. This motion is supported by a memorandum raising the issue that a decision of the former United States District Court for the District (Territory) of Alaska, First Division, in the case of United States v. 10.95 Acres of Land at Juneau, 75 F. Supp. 841, 11 Alaska 518, is res judicata of the issues in this case. In a subsequent motion for summary judgment the defendants raise the same issue.

Necessarily much of the evidence consisted of Haida traditions — the accuracy of which seems to vary inversely as the square of their remoteness in time and space from the events which they describe. Undoubtedly it was this deficiency in the proof that left the plaintiff no alternative but to fall back on aboriginal title, requiring less proof, as was done in United States v. 10.95 Acres of Land, D.C., 75 F. Supp. 841, or urge upon the Court the view that aboriginal title should be assimilated to possessory title based on actual use or occupancy. This shift, of course, would be unavailing so long as the barrier of Miller v. United States, supra, remained, so this Court is asked to simply ignore it. Not only is that case imperative authority, but there is no conflict of opinion among the circuits, and it is not perceived how such a conflict could arise since the question of the existence of aboriginal title in Alaska could hardly be litigated in any other circuit.

It relies also, p. 1001, on Minnesota v. Hitchcock, 185 U.S. 373, and United States v. Klamath Indians, 304 U.S. 119. These cases, however, concern Government taking of lands held under Indian title recognized by the United States as an Indian reservation. See 185 U.S., at 390, 304 U.S., at 121, 16 Stat. 707, United States v. Algoma Lumber Co., 305 U.S. 415, 420, and 329 U.S. 40, 52, note 29. See United States v. 10.95 Acres of Land, 75 F. Supp. 841.The statement concerning the Miller case was needed to meet the Grimes Packing Company argument that Congress could not have intended to authorize the Interior Department to include an important and valuable fishing area, see Hynes v. Grimes Packing Co., 337 U.S., at 95, note 10, in a permanent reservation for an Indian population of 57 eligible voters.

The opinion upon which they chiefly United States v. Alcea Band of Tillamooks, 329 U.S. 40, is not an authority for this position. That opinion does not hold the Indian right of occupancy compensable without specific legislative direction to make payment. See also United States v. 10.95 Acres of Land in Juneau, 75 F. Supp. 841. (b) An argument that the reservation is a nonrevocable grant can be made. Under the Act of June 18, 1934, § 16, applicable to Alaska, see § 13, an Indian tribe was authorized to adopt a constitution and by-laws for its government.

The right also must have been continuously exercised since that time. See United States v. 10.95 Acres of Land, 75 F. Supp. 841 (D.Alaska 1948) (rights under 1884 statute recognized in Miller, supra, lost by lack of continuous occupation). The district court held that Dewey and Sophie Dann held an aboriginal right to graze 170 head of cattle, plus calves, and 10 horses, plus foals, upon the public domain.

        Motions to dismiss and for summary judgment had previously been denied by this Court by opinion rendered October 10, 1961, 197 F.Supp. 834, in which the Court held that no new rights or titles were created by the 1957 and 1958 Acts, but that such Acts simply preserved all rights or interests of the United States in such lands which were 'held' by the United States for the benefit of the Indians or in trust for them under the Act of 1884. In this opinion it was held that we are not here concerned with the matter of 'aboriginal title' discussed by the Supreme Court in cases cited in such opinion, but with the right of occupancy as clearly defined by the Circuit Court of Appeals of the Ninth Circuit in Miller v. United States, 159 F.2d 997, 11 Alaska 285 and by the former District Court for the District of Alaska in United States v. 10.95 Acres of Land in Juneau, 75 F.Supp. 841, 11 Alaska 518. These cases involved a claimed right of compensation to the Indians for a tract of tidelands adjacent to the tract here in question known as the 'Subport Area'; the tract here involved was described by the District Judge in his opinion as a 'contiguous area' to the tidelands there condemned.

Most of these contentions, as well as those not mentioned, are devoid of merit. A costom may not prevail over an established rule of law and it is well established that tidelands or submerged lands may be possessed only by actual use or occupancy, continuous in character, U.S. v. 10.95 Acres of Land, D.C., 75 F. Supp. 841, and that the first occupant has the superior right, Lind v. Markley, D.C., 105 F. Supp. 50; Fisher v. Everett, D.C., 66 F. Supp. 540, and cases there cited. Incidentally, this observation disposes of the contention that the defendant has acquired a prescriptive right in the site.

The precise question presented is whether this evidence of such use or occupancy is sufficient, as a matter of law, to constitute a possessory title as against all but the United States. It would serve no useful purpose to attempt a review of the testimony. Suffice it to say that since the perimeter fill and those made for the roadways below the line of mean high tide, serve no useful purpose, they are insufficient to support a possessory title, United States v. 10.95 Acres of Land, D.C. 75 F. Supp. 841. An analogy is suggested to grid irons and fish traps but the analogy, if any exists, is extremely remote. A grid iron and fish trap are intended to be used at any stage of the tide.

That opinion does not hold the Indian right of occupancy compensable without specific legislative direction to make payment. See also United States v. 10.95 Acres of Land in Juneau, D.C., 75 F. Supp. 841."

Our interpretation of AS 38.05.320(d) (1) and (4) differs significantly from that of the hearing officer. The hearing officer also relied on United States v. 10.95 Acres of Land, 75 F. Supp. 841, 11 Alaska 518 (D.Alaska 1948 and Isler v. Jensen, 382 P.2d 901 (Alaska 1963). For reasons which we have heretofore set out, we do not find these authorities apposite. As to scope of review, see Fischback Moore, Inc. v. Lynn, 407 P.2d 174, 177-178 (Alaska 1965), where the scope of review of the Alaska Workmen's Compensation Board's findings of fact was directed to whether the board's findings were supported by substantial evidence.