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Show United States, rendered May 15,1905, in the case of the United States, Thomas Simpson, and White Swan, appellants, v. Lineas Winans and Audobon Winans, partners doing business under the firm name of Winans Brothers, respondents, appealed from the circuit court of the United States for the district of Washington. The Supreme Court said : This suit was brought to enjoin the respondents from obstructing certain Indians of the Yakima Natlon in the State of Washington from exercising fish- Ing 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 IS€&. 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, £~.onts 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, ~nbject 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 court says that "the pivot of the controversy is the construc- ' tion of the second paragraph. * " * 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." The respondents contended that this provision conferred only such rights as a white man would have under the conditions of ownership of the lands bordering on the river ; also that they had the power to exclude the Indians from the river by reason of the ownership of the land. The contention of the respondents was sustained by the lower court, which 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." The Supreme Court said: 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 and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and W t e e tion," and counterpoise the inequality "by the superior justice which looks only to the substance of the right without regard to technical rules." (119 U. S., 1; 175 U. S., 1.) How the treae in question was nnderstood may be gathered from the circumstances. The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment and whlch were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to he accommodated Only a limitation of |
