State v. Towessnute

• Decision Date: 04 February 1916
• Docket Number: 13083.
• Citation: State v. Towessnute, 89 Wash. 478, 154 P. 805 (Wash. 1916)
• Parties: STATE v. TOWESSNUTE.
• Court: Washington Supreme Court

154 P. 805

89 Wash. 478

STATE v. TOWESSNUTE.

No. 13083.

Supreme Court of Washington

February 4, 1916

Department 1. Appeal from Superior Court, Benton County; Bert Linn Judge.

Alec Towessnute was charged with fishing without a license in violation of statute. A demurrer to the information was sustained, and the State appeals. Reversed, with directions that case be reinstated, and demurrer overruled.

Holcomb J., dissenting.

W. V Tanner, Atty. Gen., C. W. Fristoe, of Prosser, and Lindsay L. Thompson, of Olympia, for the State.

Francis A. Garrecht, of Spokane, for respondent.

BAUSMAN J.

It is conceded by stipulation and in argument that the Indian Towessnute, tribal inhabitant of the Yakima Indian reservation, has committed violations of our fishing statutes on the Yakima river, not only several miles outside of the reservation, but at a spot in no way appurtenant to it by path or easement. It is also conceded that, if his tribe may continue to do these things, the salmon industry of this state must be grievously wounded in its very nurseries, because the Yakimas and other tribes, whose contentions in cases now pending are the same, claim many such spots on various waters to be exempt from these statutes, and because these people, once savage and wandering, now in some degree pursue fishing for a profit. The habits of salmon in seeking at certain seasons the highest fountains of our streams to spawn in are well known, and such is their persistence and thronging at the entrance to them and at either rapids or dams that the state has found it imperative to save them at such places by regulations.

These considerations, together with what we conceive to be a misunderstanding of certain federal decisions, make it best to discuss this case somewhat at length. Inconvenience or loss to ourselves, however great, is no ground, indeed, for taking away any rights that the Indians may actually possess, but is proper to be considered in deciding from a dubious document whether Congress, looking to the future of this commonwealth ever intended to bestow them.

What Towessnute did contrary to the statute was to fish without a license, snag salmon with a gaff hook, and catch fish without hook or line within a mile of the dam. These acts constitute for the purpose of this discussion one offense, since all were committed at one place where Indian privileges are asserted to justify them. Towessnute's defense is that his manner of fishing was ancient in his tribe, and the spot an immemorial resort where he required no license. The lower court justified him under the Yakima Treaty of March 8, 1859 (12 Stats. at Large, 951), which was passed after Washington had been made a territory with legislative power over 'all rightful subjects of legislation,' and which, after creating a reservation whither the Yakimas should retire, provided:

'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.'

The reasoning was that the words 'in common with' would be unduly stretched if the Indians were to be subjected even at a fishing resort beyond the reservation to state regulation. All that he lost by that phrase, it was contended, was that the white man might fish there, too. Within the reservation only the Indian might fish; outside both; the former in his old way; the white man as the state should prescribe. To express the argument concisely, the Indian, as a sovereign, merely yielded a partnership. The old locations were his before the treaties. By that convention he admitted the white man but the white man got only what the Indian clearly conceded. In terms, indeed, the treaty, mentioning nothing of the manner of fishing, secured to the Indian only the place. But it was not necessary to secure the manner also in express terms. Not surrendered, it was retained. In support of this argument counsel point to the priority of the Indian's possession, to the fact that the document is called a treaty, that this treaty deals with the Yakimas as a 'nation,' and that the words on the Indian side are 'concede,' 'convey,' and 'relinquish.' In short, the Yakimas kept the reservation and ceded the outside places on their own terms.

The premise of Indian sovereignty we reject. The treaty is not to be interpreted in that light. At no time did our ancestors. in getting title to this continent, ever regard the aborigines as other than mere occupants, and incompetent occupants, of the soil. Any title that could be had from them was always disdained. From France, from Spain, from Mexico, and from England we have ever proclaimed our title by purchase, by conquest, and by cession, in all of which great transactions the migratory occupant was ignored. Only that title was esteemed which came from white men, and the rights of these have always been ascribed by the highest authority to lawful discovery of lands occupied, to be sure, but not owned, by any one before. Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681. If in Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, the Supreme Court speaks of the Indians having something which the whites had yet to purchase, it was not title, but mere possessory uses for subsistence. Later cases continue to plant our title on discovery. Martin v. Waddell, 16 Pet. 367, 409, 10 L.Ed. 997; United States v. Rogers, 4 How. 567, 572, 11 L.Ed. 1105.

The Indian was a child, and a dangerous child, of nature, to be both protected and restrained. In his nomadic life he was to be left so long as civilization did not demand his region. When it did demand that region he was to be allotted a more confined area with permanent subsistence. True, arrangements took the form of treaty and of terms like 'cede,' 'relinquish,' 'reserve.' But never were these agreements between equals. Even when we dealt with a 'nation,' the Indians were not 'within the description * * * of an independent state or sovereign nation, but of an Indian tribe, * * * wards of the nation, * * * communities dependent on the United States, * * * the recognized relation, * * * that between a superior and an inferior.' Choctaw Nation v. United States, 119 U.S. 1, 27, 7 S.Ct. 75, 30 L.Ed. 306.

These arrangements were but the announcement of our benevolence, which, notwithstanding our frequent frailties, has been continuously displayed. Neither Rome nor sagacious Britain ever dealt more liberally with their subject races than we with these savage tribes, whom it was generally tempting and always easy to destroy, and whom we have so often permitted to squander vast areas of fertile land before our eyes.

The treaty, then, interpreted as provision from the great guardian of this tribe, should be construed toward benevolence, and even be bent somewhat toward the Indian's notion of his rights. On the other hand, the children of the donor are not to be ignored. The whites, too, were to enjoy, and enjoy by right, the waters and the soil. The document must be read from that point of view as well. But suppose in it a purpose solely of protecting the Indian; we must here first inquire what was particularly aimed at in allowing him these outside resorts of fishery, when the reservation itself is watered by the Yakima and other streams. It could not have been to insure the Indian's existence. It certainly was not done out of a fear that he would not find within the reservation sufficient food; for, if that was in the mind of the donor or of the Indian, why was the white man allowed to share these resorts? Nothing could be plainer than that the numbers of the white fishers, their advancing population, and their encroaching towns and mills would speedily render the reserved fishing spot worthless. Accordingly those who deem these locations of vital importance to the Indian must surely wonder why Congress failed to state in positive words that these resorts too were to remain exclusively the Indian's. Why were they not declared inviolate on both banks of all the streams and forever? Not only was this not said, but there are inserted the words 'in common with citizens of the territory.' Such as argue that the Indians relied on either the literal words or the general spirit of this treaty must acknowledge that this expression is perfectly plain, that the Indian expressly admitted the white man to these locations, and that he did not deem it indispensable to keep the white man off them altogether. It must be assumed that the Indians understood this simple phrase. In our opinion, they did understand it and did not object to it; but, since it is asserted to be historically true that there was great discontent among the Yakimas concerning this treaty, and that some of their chiefs refused to sign it, it is possible that they understood this privilege as we understand it, and that this feature was one of the things not acceptable to them.

As for Congress and the intent of that body, it was not unaware that Indians, when off the reservation, have ever been subject to the criminal laws of the states and territories, that the police power is indispensable to any commonwealth, and that the right of regulating fish and game is a proper exertion of such a right. Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793; State v. Tice, 69 Wash. 403, 125 P. 168, 41 L. R. A. (N. S.) 469; Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835.

Was it then, intended that the Yakimas at...