ARGUMENT OF JOHN S. EWART. 1399 



other tribes of Indians in Washington territory. U. S. v. The James 

 G. Swan, 50 Fed. 108 ; U. S. v. Winans, 73 Fed. 72. Up to the present 

 time these decisions stand unreversed. 



" To construct permanent fish traps and fixed appliances in such 

 a manner as to wholly deprive the Indians of any chance to take fish 

 for their own use at any usual or accustomed fishing place, as the bill 

 of complaint in this case charges that the Alaska Packers' Associa- 

 tion has done, would certainly be an infringement of the rights guar- 

 anteed to the Indians by the treaty." 



He goes on to declare that the Indians can exercise the rights 

 which they had before the treaty just as effectively as previously 

 if they would only adopt better methods than they had been ac- 

 customed to adopt. They had been accustomed to use some very 

 crude sort of nets, and the judge said that if they would use better 

 nets they would do better work. For that reason he thinks their 

 rights had not been wholly taken away, and that the statutory regu- 

 lation was a reasonable one. Continuing from the paragraph break 

 on p. 6, he says : 



" Conceding that the fish traps complained of do impede the fish- 

 ing operations of the Indians, to the extent of restricting them in 

 the choice of means for taking fish, or even to the extent of depriving 

 them of the choice of locations upon the fishing grounds, by obstruct- 

 ing the fish from running to the places where they have formerly 

 been accustomed to anchor their nets, still it must be considered that 

 the fish traps as constructed are authorized and licensed by the 

 State government, pursuant to laws enacted for the purpose of regu- 

 lating fisheries within the State." 



I call special attention, Sirs, to the fact that this is not the only 

 decision upon the point; that there are two others; and that the 

 United States has acquiesced in the correctness of these decisions by 

 leaving them unappealed to the Supreme Court. I am probably 

 correct in saying that if the United States felt that these decisions 

 were wrong, they would have felt bound to have given the Indians 

 the benefit of an appeal to the Supreme Court ; and I think we may 

 take it that the United States has acquiesced in the decisions, though 

 I cannot, of course, say that they acquiesced in all the reasoning by 

 which the learned judge has arrived at the decision from which I 

 have quoted. 



The only other observation I would make is that it does seem to 

 me that this Indian treaty makes it very clear that such words as 

 we have in the 1818 treaty, and as were used in the Indian treaty, 

 cannot mean that the grantee of the liberty is to be free from regula- 

 tion. In the Indian case it does seem to me to be impossible to have 

 argued that because the Indians had secured to them a liberty of 

 fishing in common, that they residing alongside of other persons 

 in the same State should be free from the laws which regulated 

 the operations of the other men. What is meant by giving the In- 



