United States v. Lineas Winans

• Decision Date: 15 May 1905
• Docket Number: No. 180,180
• Citation: 49 L.Ed. 1089,25 S.Ct. 662,198 U.S. 371
• Parties: UNITED STATES, Thomas Simpson, and White Swan, Appts. , v. LINEAS WINANS and Audubon Winans, Partners, Doing Business under the Firm Name of Winans Brothers
• Court: U.S. Supreme Court

198 U.S. 371

25 S.Ct. 662

49 L.Ed. 1089

UNITED STATES, Thomas Simpson, and White Swan, Appts.,

v LINEAS WINANS and Audubon Winans, Partners, Doing Business under the Firm Name of Winans Brothers.

No. 180.

Argued April 3, 4, 1905.

Decided May 15, 1905.

Solicitor General Hoyt for appellants.

[Argument of Counsel from pages 371-375 intentionally omitted] Messrs. Charles H. Carey, F. P. Mays, and Huntington & Wilson for appellees.

[Argument of Counsel from pages 375-377 intentionally omitted] 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 1. 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 2. 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 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 3. 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 10. 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. at L. 951.

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 pagagraph. 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 Fed. 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' Asso. 79 Fed. 152; United States v. The James G. Swan, 50 Fed. 108, expressing its views as follows:

'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...