198 U.S. 371 (1905), 180, United States v. Winans

Docket Nº:No. 180
Citation:198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089
Party Name:United States v. Winans
Case Date:May 15, 1905
Court:United States Supreme Court

Page 371

198 U.S. 371 (1905)

25 S.Ct. 662, 49 L.Ed. 1089

United States



No. 180

United States Supreme Court

May 15, 1905

Argued April 3-4, 1905




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 377

MCKENNA, J., lead opinion

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, [25 S.Ct. 663] 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 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 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...

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