140 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



States tbat this right of fishery does not exist, and the concession to 

 the Indians. It does not seem to me that the suggestion has given or 

 will be likely to give the Tribunal much trouble. What is conceded to 

 the Indian is not a right — it is a toleration — it is a charity — it is a pro- 

 vision which the nations are bound to make for their wards. That is 

 all. If we come to the question of strict right, an Indian has no more 

 right to pursue this business than a white man. He has as much ; he 

 has no more. 



They are a people who stand by themselves, and will not stand very 

 long. They are a relic of a race that belongs to that Continent. Its 

 original denizens, its original proprietors, who have almost entirely 

 passed away and will soon be gone. They must be provided for by the 

 nation who under the necessities of civilization has taken from them 

 their homes, their means of subsistence. They must be provided for 

 in their own way, because civilization is to them a curse. If they are 

 to live at all, they must be permitted to live, as far as possible in the 

 changed condition of human affairs, in their own way, and to get their 

 subsistence from the table of the Almighty, and not from any of the 

 conventional arrangements of civilization. They are the gleaners 

 that follow the harvest, not upon a legal right, but upon a toleration 

 that all the world approves of. They are like the recipients of your 

 charity who, if they undertake to demand it, become highwaymen 

 and are dealt with accordingly. Again, nothing that these Indians 

 have ever done in their aboriginal condition as Indians, before they 

 become the instruments, the paid employes of others who are entered 

 upon a very different business — nothing they ever did for their own 

 subsistence — their food, their clothing — perhaps the simple barter to 

 provide them with other necessities, ever worked the least appre- 

 ciable harm to this- herd. The great fact on which the case of the 

 United States depends, that the right which is asserted against them 

 is, as I have said, the right of extermination, does not api)ly as against 

 these Indians. Ko possible scrutiny would ever discover in the diminu- 

 tion of this herd the consequence of any inroad upon them which they 

 have made, and the reason why we have put into the regulations this 

 exception in favor of the Indian, is in order to enable them to continue 

 harmlessly that simple pursuit which is necessary to their subsistence, 

 which, if it were withdrawn, must be supplied by the Government with 

 some new means — some new and, to them, unnatural means — of pro- 

 vision. That, Sir, concludes, with the exception I have stated, to 

 which I shall have to ask your indulgence to refer, perhaps to-morrow, a 

 little out of its order, what I desired to say upon the principal question 

 of how far these animals are to be regarded as ferce naturae. Here comes 

 in. Sir, in my apprehension, with propriety, as corroborating and sus- 

 taining the proposition we have advanced on this subject of property, 

 the questions that are submitted in this Treaty regarding the former 

 Eussian occupation of the islands, and the extent to which we, the 

 United States, derive any claim from it. 



I said in the opening that those questions were necessarily subordi- 

 date, not because they were made so by one side or the other, but because 

 they must be so; because they are of no sort of consequence except so 

 far as they may help to throw light upon the claims of the one side or 

 the other; because as you will readily see, Sir, if you are to answer 

 those questions, all of them, in favor of the contention of the United 

 States, and yet decide that we have no right to protect ourselves against 

 this business, we have gained nothing by that decision. On the other 

 hand, if you should decide them all in favor of the contention of Great 



