Miles v. Veatch

• Decision Date: 29 August 1950
• Citation: 221 P.2d 905,189 Or. 506
• Parties: MILES et al. v. VEATCH et al. (COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION et al., Intervenors).
• Court: Oregon Supreme Court

221 P.2d 905

189 Or. 506

MILES et al. v. VEATCH et al. (COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION et al., Intervenors).

Supreme Court of Oregon.

August 29, 1950

A. C. Fulton, of Astoria, and Jay Bowerman, of Portland for the petition.

George Neuner, Attorney General of Oregon, and Cecil H. Quesseth Assistant Attorney General, for appellants, contra.

Anderson &amp Franklin, of Portland, for intervenors-appellants contra.

Before LUSK, C. J., and BRAND, BELT, ROSSMAN, HAY and LATOURETTE, JJ.

HAY, Justice.

The respondents have petitioned for a rehearing, and have supported their petition by brief.

Their principal contention is that we erred in holding that we are bound to interpret the initiative act in conformity with treaties which were entered into between the United States and certain Indian 'nations'. See our opinion in Anthony v Veatch, Or., 220 P.2d 493, which opinion, pro tanto, we adopted for the case at bar. Respondents say that some of these treaties are no longer effective, having been abrogated by the high contracting parties. Moreover, they argue that, although the treaties were signed while Oregon was a territory, none of them were ratified by the President and Senate of the United States until after the date of the state's admission into the Union, all of them contained clauses deferring their obligatory effect until ratification by the President and Senate, and, therefore, ratification did not cause them to relate back to the respective dates of their signing. They maintain, further, that ratification of the treaties subsequent to the admission of Oregon into the Union did not make them effective as against intervening private rights.

The amended complaint recited the making of the Indian treaties, and alleged that such treaties 'secured' to the Indians the right, in common with citizens of the United States, to fish on the Columbia River, without the Indian reservations, at all usual and accustomed places. It did not even suggest that any of the treaties had been abrogated, or modified, or was in any respect invalid. Upon this phase of the case, it sought to have the initiative act declared unconstitutional on the ground that, by exempting from its operation Indians fishing under federal regulation, it gave them, in their usual and accustomed fishing places, a right to fish with seines, which right it denied to citizens of the state.

The exemption of Indians fishing under federal regulation, that is to say Indians fishing under rights reserved to them by the treaties, United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089, 1092, did not 'give' the Indians any rights whatever. It simply recognized whatever fishing rights, as confirmed by the treaties, the Indians may have. Respondents, both in the amended complaint and on brief, concede that the Indians do have some rights in the premises. In that connection, we are concerned only with the allegation that the initiative act...