ABGUMENT OF ELIHU BOOT. 2133 



There was, however, one case which was referred to as indicating 

 that the courts of the United States took a rather inconsistent posi- 

 tion with regard to the rights conferred upon an Indian tribe by 

 what we call a treaty. That comes pretty nearly being a matter of 

 internal polity, for our Indian tribes are rather dependent sover- 

 eigns; nevertheless, the case is worthy of attention because it involves 

 a charge of inconsistency. 



It was the case of the United States against the Alaska Packers' 

 Association, 79 Federal Reporter. That case decided against certain 

 rights which were secured to Indians by treaty, to be exercised in 

 common with the citizens of Washington territory generally, upon 

 the north-western coast. The case was decided upon the authority of 

 certain previous decisions, and the Judge who wrote the opinion says, 

 " I have given the same interpretation to similar treaties with other 

 tribes of Indians in Washington territory," citing United States 

 against James G. Swan, 50 Federal Reporter, and United States 

 against Winans, 73 Federal Reporter, p. 72, and he says up to the 

 present time these decisions have not been reversed. 



They have now been reversed by the Supreme Court of the United 

 States in the case of the United States v. Winans. That is the case 

 which is mentioned there as decided by the same Judge, and followed 

 by him in his decision. 



The case is reported in 198 United States Reports, p. 371, and was 

 decided at the October term, 1904. I cannot ask anything better 

 from the Tribunal than the decision of this case would lead to 

 inevitably. The syllabus begins : 



" This court will construe a treaty with Indians as they understood 

 it and as justice and reason demand. 



"The right of taking fish at all usual and accustomed places in 

 common with the citizens of the Territory of Washington and the 

 right of erecting temporary buildings for curing them, reserved to 

 the Yakima Indians in the treaty of 1859, was not a grant of right 

 to the Indians but a reservation by the Indians of the rights already 

 possessed and not granted away by them. The rights so reserved 

 imposed a servitude on the entire land relinquished to the United 

 States under the treaty and which, as was intended to be, was con- 

 tinuing against the United States and its grantees as well as against 

 the State and its grantees." 



And accordingly upon that ground they reversed the decision cited 

 by my learned friend on the other side. 

 The Court says (p. 379) : 



"The pivot of the controversy is the construction of the second 

 paragraph. Respondents contend that the words ' the right of taking 

 fish at all usual and accustomed places in common with the citizens 



of the Territory ' confer only such rights as a white man would 

 1290 have under the conditions of ownership of the lands bordering 



on the river, and under the laws of the State, and, such being 



