ARGUMENT OF MR. ROOT 253 



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 northwestern 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 interpreta- 

 tion to similar treaties with other tribes of Indians in Washington 

 territory," citing United States vs. James G. Swan, 50 Federal 

 Reporter, and United States vs. 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 vs. 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 

 continuing 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 para- 

 graph. 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 have under the conditions of 

 ownership of the lands bordering on the river, and under the laws of the state, 



