This Court will construe a treaty with Indians as they
understood it and as justice and reason demand.
The right of taking fish at all usual and accustomed places in
common with the citizens of the Territory of Washington and the
right of erecting temporary buildings for curing them, reserved to
the Yakima Indians in the Treaty of 1859, was not a grant of right
to the Indians, but a reservation by the Indians of rights already
possessed and not granted away by them. The rights so reserved
imposed a servitude on the entire land relinquished to the United
States under the treaty and which, as was intended to be, was
continuing against the United States and its grantees, as well as
against the state and its grantees.
The United States has power to create rights appropriate to the
object for which it holds territory while preparing the way for
future states to be carved therefrom and admitted to the Union;
securing the right to the Indians to fish is appropriate to such
object, and after its admission to the Union, the state cannot
disregard the right so secured on the ground of its equal footing
with the original states.
Patents granted by the United States for lands in Washington
along the Columbia River and by the state for lands under the water
thereof and rights given by the state to use fishing wheels are
subject to such reasonable regulations as will secure to the Yakima
Indians the fishery rights reserved by the Treaty of 1859.
The facts are stated in the opinion.
Page 198 U. S. 377
MR. JUSTICE McKENNA delivered the opinion of the Court.
This suit was brought to enjoin the respondents from obstructing
certain Indians of the Yakima Nation, in the State of Washington,
from exercising fishing rights and privileges on the Columbia River
in that state claimed under the provisions of the treaty between
the United States and the Indians made in 1859.
There is no substantial dispute of facts, or none that is
important to our inquiry.
The treaty is as follows:
"Article I. The aforesaid confederated tribes and bands of
Indians hereby cede, relinquish, and convey to the United States
all their right, title, and interest in and to the lands and
country occupied and claimed by them. . . ."
"Article II. There is, however, reserved from the lands above
ceded, for the use and occupation of the aforesaid confederated
tribes and bands of Indians, the tract of land included within the
following boundaries:"
"
* * * *"
"All of which tract shall be set apart, and, so far as
necessary, surveyed and marked out, for the exclusive use and
benefit of said confederated tribes and bands of Indians as an
Indian reservation; nor shall any white man, excepting those
Page 198 U. S. 378
in the employment of the Indian Department, be permitted to
reside upon the said reservation without permission of the tribe
and the superintendent and agent. And the said confederated tribes
and bands agree to remove to and settle upon the same within one
year after the ratification of this treaty. In the meantime, it
shall be lawful for them to reside upon any ground not in the
actual claim and occupation of citizens of the United States, and
upon any ground claimed or occupied, if with the permission of the
owner or claimant."
"Guaranteeing, however, the right to all citizens of the United
States to enter upon and occupy as settlers any lands not actually
occupied and cultivated by said Indians at this time, and not
included in the reservation above named. . . ."
"Article III.
And provided that, if necessary for the
public convenience, roads may be run through the said reservation,
and, on the other hand, the right of way, with free access from the
same to the nearest public highways, is secured to them, as also
the right, in common with citizens of the United States, to travel
upon all public highways."
"The exclusive right of taking fish in all the streams where
running through or bordering said reservation is further secured to
said confederated tribes and bands of Indians, as also the right of
taking fish at all usual and accustomed places, in common with
citizens of the territory, and of erecting temporary buildings for
curing them, together with the privilege of hunting, gathering
roots and berries, and pasturing their horses and cattle upon open
and unclaimed land."
"
* * * *"
"Article X.
And provided that there is also reserved
and set apart from the lands ceded by this treaty, for the use and
benefit of the aforesaid confederated tribes and bands, a tract of
land not exceeding in quantity one township of six miles square,
situated at the forks of the Pisquouse or Wenatshapam River, and
known as the 'Wenatshapam fishery,' which said reservation shall be
surveyed and marked out whenever the President may direct, and be
subject to the same provisions and restrictions as other Indian
reservations."
12 Stat. 951.
Page 198 U. S. 379
The respondents or their predecessors in title claim under
patents of the United States the lands bordering on the Columbia
River, and under grants from the State of Washington to the shore
land which, it is alleged, fronts on the patented land. They also
introduced in evidence licenses from the state to maintain devices
for taking fish called fish wheels.
At the time the treaty was made, the fishing places were part of
the Indian country, subject to the occupancy of the Indians, with
all the rights such occupancy gave. The object of the treaty was to
limit the occupancy to certain lands, and to define rights outside
of them.
The pivot of the controversy is the construction of the second
paragraph. Respondents contend that the words "the right of taking
fish at all usual and accustomed places in common with the citizens
of the territory" confer only such rights as a white man would have
under the conditions of ownership of the lands bordering on the
river, and under the laws of the state, and, such being the rights
conferred, the respondents further contend that they have the power
to exclude the Indians from the river by reason of such ownership.
Before filing their answer, respondents demurred to the bill. The
court overruled the demurrer, holding that the bill stated facts
sufficient to show that the Indians were excluded from the exercise
of the rights given them by the treaty. The court further found,
however, that it would "not be justified in issuing process to
compel the defendants to permit the Indians to make a camping
ground of their property while engaged in fishing." 73 F. 72. The
injunction that had been granted upon the filing of the bill was
modified by stipulation in accordance with the view of the
court.
Testimony was taken on the issues made by the bill and answer,
and upon the submission of the case, the bill was dismissed, the
court applying the doctrine expressed by it in
United States v.
Alaska Packers' Assn., 79 F. 152;
The James G. Swan,
50 F. 108, expressing its views as follows:
Page 198 U. S. 380
"After the ruling on the demurrer, the only issue left for
determination in this case is as to whether the defendants have
interfered or threatened to interfere with the rights of the
Indians to share in the common right of the public of taking fish
from the Columbia River, and I have given careful consideration to
the testimony bearing upon this question. I find from the evidence
that the defendants have excluded the Indians from their own lands,
to which a perfect, absolute title has been acquired from the
United States government by patents, and they have more than once
instituted legal proceedings against the Indians for trespassing,
and the defendants have placed in the river in front of their lands
fishing wheels for which licenses were granted to them by the State
of Washington, and they claim the right to operate these fishing
wheels, which necessitates the exclusive possession of the space
occupied by the wheels. Otherwise the defendants have not molested
the Indians nor threatened to do so. The Indians are at the present
time on an equal footing with the citizens of the United States,
who have not acquired exclusive proprietary rights, and this it
seems to me is all that they can legally demand with respect to
fishing privileges in waters outside the limits of Indian
reservations under the terms of their treaty with the United
States."
The remarks of the court clearly stated the issue and the
grounds of decision. The contention of the respondents was
sustained. In other words, it was decided that the Indians acquired
no rights but what any inhabitant of the territory or state would
have. Indeed, acquired no rights but such as they would have
without the treaty. This is certainly an impotent outcome to
negotiations and a convention which seemed to promise more, and
give the word of the nation for more. And we have said we will
construe a treaty with the Indians as "that unlettered people"
understood it, and "as justice and reason demand, in all cases
where power is exerted by the strong over those to whom they owe
care and protection," and counterpoise the inequality "by the
superior justice
Page 198 U. S. 381
which looks only to the substance of the right, without regard
to technical rules."
119 U. S. 119 U.S.
1; 175 U. S. 175 U.S.
1. How the treaty in question was understood may be gathered from
the circumstances.
The right to resort to the fishing places in controversy was a
part of larger rights possessed by the Indians, upon the exercise
of which there was not a shadow of impediment, and which were not
much less necessary to the existence of the Indians than the
atmosphere they breathed. New conditions came into existence, to
which those rights had to be accommodated. Only a limitation of
them, however, was necessary and intended, not a taking away. In
other words, the treaty was not a grant of rights to the Indians,
but a grant of right from them -- a reservation of those not
granted. And the form of the instrument and its language was
adapted to that purpose. Reservations were not of particular
parcels of land, and could not be expressed in deeds, as dealings
between private individuals. The reservations were in large areas
of territory, and the negotiations were with the tribe. They
reserved rights, however, to every individual Indian, as though
named therein. They imposed a servitude upon every piece of land as
though described therein. There was an exclusive right of fishing
reserved within certain boundaries. There was a right outside of
those boundaries reserved "in common with citizens of the
territory." As a mere right, it was not exclusive in the Indians.
Citizens might share it, but the Indians were secured in its
enjoyment by a special provision of means for its exercise. They
were given "the right of taking fish at all usual and accustomed
places," and the right "of erecting temporary buildings for curing
them." The contingency of the future ownership of the lands
therefore was foreseen and provided for; in other words, the
Indians were given a right in the land -- the right of crossing it
to the river -- the right to occupy it to the extent and for the
purpose mentioned. No other conclusion would give effect to the
treaty. And the right was intended to be continuing against the
United States
Page 198 U. S. 382
and its grantees as well as against the state and its
grantees.
The respondents urge an argument based upon the different
capacities of white men and Indians to devise and make use of
instrumentalities to enjoy the common right. Counsel say:
"The fishing right was in common, and aside from the right of
the state to license fish wheels, the wheel fishing is one of the
civilized man's methods, as legitimate as the substitution of the
modern combined harvester for the ancient sickle and flail."
But the result does not follow that the Indians may be
absolutely excluded. It needs no argument to show that the
superiority of a combined harvester over the ancient sickle neither
increased nor decreased rights to the use of land held in common.
In the actual taking of fish, white men may not be confined to a
spear or crude net, but it does not follow that they may construct
and use a device which gives them exclusive possession of the
fishing places, as it is admitted a fish wheel does. Besides, the
fish wheel is not relied on alone. Its monopoly is made complete by
a license from the state. The argument based on the inferiority of
the Indians is peculiar. If the Indians had not been inferior in
capacity and power, what the treaty would have been, or that there
would have been any treaty, would be hard to guess.
The construction of the treaty disposes of certain subsidiary
contentions of respondents. The Land Department could grant no
exemptions from its provisions. It makes no difference, therefore,
that the patents issued by the Department are absolute in form.
They are subject to the treaty as to the other laws of the
land.
It is further contended that the rights conferred upon the
Indians are subordinate to the powers acquired by the state upon
its admission into the Union. In other words, it is contended that
the state acquired by its admission into the Union "upon an equal
footing with the original states" the power to grant rights in or
to dispose of the shore lands upon navigable streams, and such
power is subject only to the
Page 198 U. S. 383
paramount authority of Congress with regard to public navigation
and commerce. The United States therefore, it is contended, could
neither grant nor retain rights in the shore or to the lands under
water.
The elements of this contention and the answer to it are
expressed in
Shively v. Bowlby, 152 U. S.
1. It is unnecessary, and it would be difficult, to add
anything to the reasoning of that case. The power and rights of the
states in and over shore lands were carefully defined, but the
power of the United States, while it held the country as a
territory, to create rights which would be binding on the states
was also announced, opposing the dicta scattered through the cases,
which seemed to assert a contrary view. It was said by the court,
through Mr. Justice Gray:
"Notwithstanding the dicta contained in some of the opinions of
this Court, already quoted, to the effect that Congress has no
power to grant any land below high water mark of navigable waters
in a territory of the United States, it is evident that this is not
strictly true."
"
* * * *"
"By the Constitution, as is now well settled, the United States
having rightfully acquired the territories, and being the only
government which can impose laws upon them, have the entire
dominion and sovereignty, national and municipal, federal and
state, over all the territories, so long as they remain in a
territorial condition.
American Ins. Co. v. 356 Bales of
Cotton, 1 Pet. 511,
26 U. S.
542;
Benner v. Porter, 9 How.
235,
50 U. S. 242;
Cross v.
Harrison, 16 How. 164,
57 U. S.
193;
First Nat. Bank v. Yankton County,
101 U. S.
129,
101 U. S. 133;
Murphy v.
Ramsey, 114 U. S. 15,
114 U. S.
44;
Mormon Church v. United States,
136 U. S.
1,
136 U. S. 42-43;
McAllister
v. United States, 141 U. S. 174,
141 U. S.
181."
Many cases were cited. And it was further said:
"We cannot doubt, therefore, that Congress has the power to make
grants of lands below high water mark of navigable waters in any
territory of the United States whenever it becomes necessary to do
so in order to perform international
Page 198 U. S. 384
obligations, or to effect the improvement of such lands for the
promotion and convenience of commerce with foreign nations and
among the several states, or to carry out other public purposes
appropriate to the objects for which the United States hold the
territory."
The extinguishment of the Indian title, opening the land for
settlement and preparing the way for future states, were
appropriate to the objects for which the United States held the
territory. And surely it was within the competency of the nation to
secure to the Indians such a remnant of the great rights they
possessed as "taking fish at all usual and accustomed places." Nor
does it restrain the state unreasonably, if at all, in the
regulation of the right. It only fixes in the land such easements
as enable the right to be exercised.
The license from the state which respondents plead to maintain a
fishing wheel gives no power to them to exclude the Indians, nor
was it intended to give such power. It was the permission of the
state to use a particular device. What rights the Indians had were
not determined or limited. This was a matter for judicial
determination regarding the rights of the Indians and rights of the
respondents. And that there may be an adjustment and accommodation
of them the Solicitor General concedes, and points out the way. We
think, however, that such adjustment and accommodation are more
within the province of the circuit court in the first instance than
of this Court.
Decree reversed, and the case remanded for further proceedings
in accordance with this opinion.
MR. JUSTICE WHITE dissents.