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Show 94 REPORT OF TEE COMMISSIONER OF INDIAN AFFAIRS. sideration shted therein for the cession of their claim and right to the cou~ltryth en occupied by them would be no consideration a t all. For, if this treaty did not swnre to them some preference lights in the accustomed fisheries which the Government should protect, at least to the extent of preventing an unfair exclusion of the Indians from such fisheries, then it gave the Indians no rights that are not possessed by every inhabitant of the United States,namely, the right to fish in pub-lic waters. Hence the cession by the Indians of their possessory right to the soil and Werics would have been obtained by means of fraud practiced upon them hg the agents of the Government. Mr. Brinker cites the faet that the Supreme Court has more than once said that treaties should be construed in the light in which they were understood by the parties at the time, and especially by the I n d h ~ ~asn;d that in case of treaties with Indians a very liberal con-struction should be placed upon them. He lays down the principk that the treaty in question is a contract; that the Government con-sidered the Indians as possessing the capacity to contract and so contracted with them; that the fundamental rule in construing and enforcing all contracts is that they must be enforced according to the intention and understanding of the parties at the time they were made. Be is of the opinion that Judge Eanford's decision reverses this rule by holding that while the Indians are bound by the contract and the Government has rightfully acquired the possession of the lands ceded by them in the making of this contract, and has adopted a system of disposing of these lands under which the defendauts claim, yet that the consideration upon which this title was obtained by the Govern-ment may, by the mere patent or quitclaim of the Government, be defeated and destroyed. The district attorney contends that this is not good law, and declares that if the Indians are bound by this treaty so far as the cession of their right to the occupancy of the land and the fisheries is concerned, the Government ought certainly to he hound also. He adds that the testimony in the case is very voluminons and that an appeal would be expensive, but that the Government ought not to hesitate on the ground of expense to carry cut its obligations to the Indians. He therefore filed a motion for a rehearing pro forma, and awaited the instructions of the AttorueyGeneral in the matter. The Attorney-General directed Mr. Brinker, March 25,1897, to take an appeal in this case, in view of its importance and its probable bearing upon other mses pending or likely to arise aEecting the rights of Indians under their treaties. It is gratifying to he able to report that this perplexing and long-troublesome question is now in position for a fiual decision. Whataver may be the opinion of the Supreme Court, the matter will be settled, and the oEce hereafter will know how to advise the Indians and whether they can he protected from trespassers. |