OCR Text |
Show OO~ISSIONER 06 INDIAN AFFAIRS. 151 them, however, was necessary and inteltded, not a taking away. In other worda, tbe treaty was not a grant of rights to the Indians, but a grant of rights from them-a resemation of those not manted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular oarcels of iand. and could not be exvressed in deeds as dealings between private individuals. The reservations were-in large areas of territo6 and the negotia-tions were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon erery piece of land, as though described therein. There was an exclusive right of flshlng reserved within certain boundaries. There was a right outside of those houri-daries reserved " in common with citizens of the Territory." As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. Thef were given "the right of taking fish at all usual and accustomed places," and the right "of erecting temporary buildings for curing them." The contin-gency of the future ownership of the lands, therefore, was foreseen and provided for. In other words, the Indians were given a right in the land: the right of crossing it to the river; the rlght to occupy it to the extent and for the pnrpose mentloned. No other conclusion would give effect to the treaty. And the right was intended to he continuing against tbe United States and its grantees, as well as against the State and its grantees. The construction of the treatv disnoses of certain snbsidiarv contentions of ~~~ respondents. The Land ~epar tmencto uld grant no exemptions from Its provf-sions. It makes no difference. therefore. that the ~a t e n t sis sued by the Depart-ment are absolute in form. They are subject to the treaty ns to the other laws of the iand. It is further contended that the rights conferred upon the Indians are snb-ordinate to the powers acquired by the State upon its udmission into the Union. In other words, it is contended that the State acquired, by its admission into the Union "upon an equal footing with the origlnal States," the power to grant rights in or to dispose of the shore lands upon navigable streams, and such power is subject only to the paramount authority of Congress with regard to public navigation and commerce. The United States, therefore, it is contended, w i d neither grant nor retain rights in the shore or to the lands under water. The elements of thfs Contention and the answer to it are expressed in Wively u. Bowlby (152 U. S., 1). It is unnecessary, and it would be diEcnlt, to add anything to the reasoning of that case. The power iand rights of the States in and over shore lands were carefully defined, but the power of the Unlted States, while it held the country as a Territory, to create rlghts whfch would be binding on the States n.as also announced, opposing the dicta scattered rcmngh the cases, which seemed to assert a contrary riew. It was said by the court, through MI: Justice Gray : " Kotwithsmndizlg the dicrrr contained in some of rhe opinions of the court already quoted, to rbe effect tllrtt Collgress llan nu power to grant any lnnd beluw I~ieh-anterm ark of navieabie waters i n n Terriforr of the r~l i fedS tnren. it is e&ent that this is not skctly true. * * * "By the Constitution, as is now well settled, the United States having right-fully acquired the Territories, and being the only Government which can impose laws upon them, have the entire dominion and sovereignty, national and munic-ipal, Federal and State, over all the Territories so long as they remain in a Territorial condition. (American Ins. Co. u. Canter, 1 Pet, 511, 542; Benner u. Porter, 9 How., 235, 242 ; Cross u. Harrison, 16 How., 164,193; National Bank v. Yankton County, 101 U. S., 129, 133: Murphy u. Ramsey, 114 U. S., 15.44; Mor-mon Church u. United States, 136 U. S., 1, 42, 43; McAllister u. United States, 141 U. S., 174, 18l.)" |