United States v. Winans

• Decision Date: 31 March 1896
• Citation: 73 F. 72
• Parties: UNITED STATES et al. v. WINANS et al.
• Court: United States Circuit Court, District of Washington, Southern Division

73 F. 72

UNITED STATES et al. v. WINANS et al.

United States Circuit Court, D. Washington, Southern Division.

March 31, 1896

Wm. H Brinker, U.S. Atty.

F. P Mays, for defendants.

HANFORD District Judge.

The bill of complaint in this case claims for the Yakama Indians an unlimited right to take fish from the Columbia river at a certain specified place, and a right of ingress and egress to and from said place, and a right to erect temporary buildings for curing fish, and for the habitations of said Indians during each fishing season, to the same extent as if such rights were especially granted and conferred by a patent from the proprietor and sovereign of the country. The basis for the claims is to be found in the reservations contained in the treaty between the United States and the Indians of the Yakama Nation, whereby the said Indians ceded to the United States the Indian title to certain lands. The provisions of the treaty material to be considered are 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. * * *

'Art 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. * * * 'Art. 3. And provided, that, if necessary for the public convenience, roads may be run through the said reservation; and on the other land, the right of way, with free access from the same to the nearest public highway, 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. * * * '

'Art. 10. And provided, that there is also reserved and set apart from the land 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.

It is plain that the treaty, whether considered as a grant from the United States government to the Indians or as a reservation by the Indians, secures to the Indians rights of two kinds viz. exclusive rights and rights to be enjoyed in common with citizens. The rights of fishery within the tract set apart for the Indians, and in streams bordering the same, are exclusive in favor of the Indians; while the right to take fish at usual and accustomed places, outside of reservations, is to be enjoyed in common with citizens of the territory. This common right of fishery...