172 
FOREST AND STREAM. 
[Feb. 29, 1896. 
tance. We have often heard boys even boasting of the 
Dumber of small birds they had killed or crippled with 
their rifles or airguns; many, without doubt, thinking 
there is no harm in the practice of shooting them, yet the 
effect remains, and although the law may be severe 
against destroying birds and their eggs, it is in a great 
number of cases impossible or impracticable to put it in 
force. Now, as large numbers of young persons in the 
aggregate thus armed traverse goodly portions of the 
country adjoining their respective homes, and during the 
year each kills or cripples quite a number of birds, what 
a large portion is thus destroyed. Throughout the coun- 
try the number must be incredible. 
We think it is the duty of parents and guardians, as 
well as teachers, to do all they can among boys under 
their charge to break up the bad practice of killing off the 
birds, and also of the practice of some in destroying the 
nests and eggs, often very easily obtained. 
Although many think the climate and unseasonable 
storms have much to do with the bird decrease, we think 
the factor above written of has more to do with it than 
the climatic effects or any other. A. L, L. 
[Bird feathers for millinery use are commonly dyed, so 
plain feathers are available and are adapted for this pur- 
pose.] 
Grouse and Bantam Cross. 
Estevan, Assa, Canada, — In a recent issue of Forest 
and Stream a correspondent intimates that a friend of 
his is going to try the experiment of inter-breeding be- 
tween the grouse and domestic bantam. A few years ago 
in the North Saskatchewan District of Canada, a region 
where both varieties of grouse — the ruffed and sharp- 
tailed prairie grouse — abound to a remarkable extent, 
the writer attempted to produce a cross between the male 
prairie grouse and the domestic hen. Two of the smallest 
specimens of the latter obtainable in that vicinity were 
mated in separate yards with two tame prairie grouse 
cocks. After a few days' acquaintance they were seen to 
mate in both instances and soon it become evident that 
these heretofore denizens of the prairie were more atten- 
tive to the hens in this respect than would have been males 
of their own species. In due time both hens commenced to 
lay and continued thereat till ten and twelve eggs re- 
spectively were secured, whereupon they simultaneously 
took to batching. For several weeks they persevered in 
the discharge of their incubatory duties with a fidelity 
that was remarkable, but with negative results. Finally 
an examination of the eggs revealed the fact that in every 
instance they had been devoid of vitality. 
These experiments conducted under favorable con- 
ditions and with the greatest care were accepted as con- 
clusive evidence that attempting; to inter- breed between 
these species implies a condition of things for which 
nature made no provision. W. M. 
Albino Quail. 
Yankton, S. D., Feb. 17. — While hunting about twenty- 
five miles northwest of this city, along the James River, I 
came across a covey of quail, and among them were two 
white ones. These I shot, and found them to be unlike 
anything I have ever seen or heard of. They are some- 
what larger 'than the ordinary quail, and of a white or 
cream color, speckled with brown, and at a little distance 
appear nearly white. Their appearance was not disturbed 
by shooting, so I had them nicely mounted. They make 
an exceedingly fine specimen. 
Would you kindly inform me if they are of any special 
breed, or they may be a freak? Could they be sold, and 
for how much? W. L. BRUCE. 
[It is an instance of albinism which is likely to occur 
hi all forms of animal life from man to mice. We have 
recorded white deer, white crows, white quail, and re- 
cently illustrated a white blackbird. The cause of the 
phenomena is found in an abnormal condition of the col- 
oring agencies.] 
A February Song Sparrow. 
New York, Feb. 22. — While walking along St. Nicholas 
Place in the upper part of the city yesterday afternoon 
(Feb. 21), I was surprised to hear a song sparrow in full 
song. I think I have never heard this bird so early in 
the season. Wm. C. Dornin, Jr. 
xmp-tgm eglickmngis. 
"That reminds me." 
Brooklyn, N. Y.— Before the light thrown by the burn- 
ing hickory log dies out I must relate a little incident 
which has nothing in common with that "bell-on-the- 
moose story" which I have just read in Forest and 
Stream. By the way, if James Monkhouse, Jr., had 
reason to believe that he did hang that bell on the moose's 
neck be should not hang his story on the big bell,_for sev- 
eral reasons. 
The other day when I had come in from a fox chase 
and was remarking how tiresome it was to stand at a 
runway waiting for fox and hounds to come back, the 
father of my guide told me that he once took a young 
man with him fox hunting who lacked that great virtue 
of patience, if he lacked nothing else. After giving the 
young man a bit of advice and a good stand near a sand- 
bar which foxes in that particular region often used, he 
took the hounds with him and soon had a fox afoot. 
After two hours' driving the fox headed for the sandbar. 
The old gentleman, following the hounds as best he could, 
was astonished not to hear the young man's gun. Arriv- 
ing at the sandbar the young man was nowhere to be 
seen, but there was a circle in the sand and the words 
"Gone home," and through the very circle and words the 
fox had run, as was shown by his footprints. 
E. C. J. K. 
When you've got a thing to say, 
Say it ! Don't take half a day. 
When your tale's got little in it, 
Crowd the whole thing in a minute! 
Life is short— a fleeting vapor— 
Don't you fill the whole blamed paper 
With a tale which at a pinch 
Could be covered in an inch ! 
Boil her down until she simmers, 
Palish her until shu glimmers. 
When jou've got a thing to say, 
Fay it! Don't, take half a day. 
—AtUmtQ Constitution, 
ntt{£ Jf#tJ Mtd ^tttU 
FIXTURES. 
March 16 to 21, 1896.— Second annual Sportsmen's Exposition, under 
the auspices of the Sportsmen's Association, at Madison Square 
Garden, New York city. Frank W. Sanger, Manager. 
THE BANNOCK INDIANS AND THE 
WYOMING GAME LAWS. 
Editor Forest and Stream: 
The hunting right of the Bannock Indians in Wyoming 
has been the subject of much controversy and some blood- 
shed. 
Race Horse, an Indian, had killed seven elk, contrary 
to the Wyoming law prohibiting the killing of more than 
were immediately needed for food. The Federal judge in 
that State decided that the Indian right under the treaty 
was paramount to the laws of that State. 
The opinion of the judge, as well as all other discus- 
sions I have seen, seem to overlook several important con- 
siderations. 
1. They proceed first upon the theory that a police 
power of a State (the right to legislate for the general wel- 
fare, including the protection of game) has its origin when 
the State is admitted to the Union; and, second, that the 
right of the Bannock Indians under the treaty is neces- 
sarily in conflict with game laws, and that the only ques- 
tion is which must yield. 
The first proposition involves too broad a discussion in a 
newspaper review, but the following extract on the sub- 
ject from Black's Constitutional Law will give some idea 
of its origin and nature : 
"It cannot be doubted that the origin of this power 
must be sought in the very purpose and framework of or- 
ganized society. It is fundamental and essential to gov- 
ernment, * * * a necessary and inherent attribute to 
sovereignty. It antedates all laws, and may be described 
as the assumption on which constitutions rest. * * * 
It has always been held that the police power is an inalien- 
able attribute of sovereignty and can never, therefore, be 
curtailed nor diminished; that it is present by implication 
in every act of legislation." 
It must therefore be considered that this principle was 
had in mind by Congress in all acts and treaties relating 
to Indians and their hunting rights, and that it entered 
into and became a part of them, and must be read into 
this Bannock treaty. 
2. But this really becomes unimportant under what 
seems to me a proper view of the second proposition above 
stated. The treaty with these Indians was made in 1868, 
and after providing for their removal to new reservations 
and the relinquishment of the old, proceeds : 
"Article IV. The Indians herein named agree, when 
the agency house and other buildings shall be constructed 
on their reservations, named, they will make said reserva- 
tions their permanent home, and they will make no per- 
manent settlement elsewhere; but they shall have the 
right to hunt on the unoccupied lands of the United States 
8© long as ga ne may be found thereon, and so long as 
peace subsists among the whites and Indians on the bor- 
ders of the hunting districts." 
Upon this article is based the alleged right to hunt and 
kill game regardless of the Wyoming laws. 
The right of the white citizen to hunt on public lands is 
a natural one, subject, however, to such restrictions as 
the State in which the lands lie may see fit to impose for 
the protection and preservation of the game. That of the 
Indian, under this treaty, is an acquired one. 
Was it then the intention of Congress, or a proper con- 
struction of the treaty, that the Indian right to hunt 
should be other and greater than that of the white citizen 
in the same territory ? 
The American right to "life, liberty and the pursuit of 
happiness" is declared to be inalienable, and has always 
been considered as the highest human right known, al- 
though at all times enjoyed subject to such legal restric- 
tions as promote the public welfare. Yet it is claimed 
that this copper- colored right to slaughter game is in some 
way a notch higher, and subject to no control whatever. 
If so, to be a white man and an American citizen is a mis- 
fortune, contrary to human experience, and a doctrine 
which courts should be slow to declare. 
It will be noticed that Article IV., after providing that 
the new reservations shall be the "permanent home" of 
the Indians, and that they shall "make no permanent set- 
tlement elsewhere," proceeds with a "but," to the effect 
that "they shall have a right to hunt on the unoccupied 
lands of the United States" so long as certain conditions 
exist. 
The United States has always regarded the Indians as 
its wards, and exercised an absolute and paternal control 
over their actions to the extent that no Indian is allowed 
to leave his reservation for any purpose without a permit 
from the agent. 
It is reasonable that after agreeing to the provision that 
they must have a permanent home the Indians should in- 
sist on a stipulation that they might nevertheless have the 
right to go and hunt, which no agent could arbitrarily 
deny, and does not the contract show that this language 
is merely permissive as to leaving such home, and simply 
a qualification of the implied obligation to remain there ? 
It will also be observed that the right to hunt is not con- 
fined to their former reservation, nor to the State of 
Wyoming, but extends to all "unoccupied lands of the 
United States," wherever game and peace exists. 
This is the express language of the article, and it is sig- 
nificant that all hunting privileges contained in previous 
Indian treaties (so far as they have come under my notice) 
are restricted to a right to return and hunt on the lands 
relinquished under the respective treaties. This extend- 
ing of the privilege in this treaty must, then, have been 
for some purpose, and it is fair to assume that, as the res- 
ervation relinquished by the Bannocks was small and was 
to be opened to white settlement, it was recognized that 
the game might soon be driven beyond its limits. 
This furnishes an obvious reason why the privilege was 
not restricted, as usual, but extended to all the unoccu- 
pied lands where game was to be found. The concluding 
words, referring to the "hunting districts," also clearly 
imply that the privilege was not confined to one district 
or region. 
If, then, this right was not permissive aa to leave of ab- 
sence merely, but an affirmative grant of a right to hunt 
pn unoccupied lands, notwithstanding the game laws 
there existing, Congress undertook to grant to these In- 
dians a right paramount to the game laws of every State 
in the Union where game is found on public land, regard- 
less of the time or terms of its admission to the Union. 
This it could not do, as most of the States had been ad- 
mitted long prior to the date of the treaty, and their police 
powers were not subject to curtailment. 
It will not be claimed by anyone that Congress had any 
such power or intention. Yet such is the inevitable result 
if this treaty is repugnant and paramount to the game 
laws of Wyoming. For it must be equally so as to every 
State in the Union where public land and game are found, 
as its terms unmistakably extend to all alike. It must 
have been intended to be paramount to all or to none. It 
either creates a class of non-residents who may invade a 
State at will and remain exempt from the restraints or 
control of its police power, or it is a right subject to reason- 
able control. The mischief that would flow from the for- 
mer theory is so serious that it cannot be adopted unless 
the meaning is the inevitable deduction from the language 
used. 
This furnishes a strong ground for holding the right as 
permissive only, and as being nothing more than an irre- 
vocable privilege to leave their otherwise permanent home 
for the purpose of hunting on the public lands wherever 
game is found and peace exists on the borders of the 
"hunting districts." 
3. But if we concede that this treaty provision was not 
merely permissive, but conferred an affirmative right to 
hunt and kill game on public lands, it does not purport to 
give an unrestricted right. The Wyoming laws do not 
deny the Indians a right to hunt in the sense that con- 
flicts with the treaty right. 
The right to hunt is neither denied by law to the white 
man nor to the Indian; it is merely restricted and con- 
trolled, as every other right may be, even those which 
are denominated inalienable. 
A fundamental canon of construction as to the conflict 
of laws is that there must be a manifest repugnancy, an 
irreconcilable conflict, in order to hold that one over- 
throws the other. No such repugnancy exists between 
this treaty and the game laws of Wyoming. Both can 
stand, and have some force and meaning, and such con- 
struction is imperative. 
It must have been obvious to Congress that to confer a 
right on these Indians superior not only to that of the 
citizen, but of the State, would sooner or later provoke 
disorder and conflict. 
The fair conclusion, then, is that if this right is more 
than a mere permission to leave their permanent reserva- 
tion for hunting purposes, it is by no means an unrestricted 
license in contravention of the game laws, or more than 
a guarantee to the Indians against discrimination. The 
Wyoming laws do not so discriminate. They merely 
regulate the killing of game, protecting it against wanton 
and useless slaughter, preserving it alike for the Indian 
and the white man; allowing each the same privileges. 
These laws do not attempt to destroy or deny the right. 
On the contrary, they tend to its preservation and per- 
petuity, are beneficial and not detrimental to the Indian, 
and are not, therefore, repugnant to the treaty, in a legal 
sense, so as to require them to be held void. 
It seems to me, then, quite clear that this treaty should 
be construed as a mere privilege to the Indians to leave 
their permanent reservationsf or hunting purposes. Or, if 
it is more than that, and actually confers a right to hunt 
on public lands, it is a right subject to the restrictions im- 
posed by the State laws where it ought to be exercised. 
Thus construed, the law stands, the treaty staxids, and 
the Indian stands on the same footing as the citizen, and 
all conflict and difficulty disappears. £>. 0. BeamajST. 
Denver, Col. 
MAINE AND MASSACHUSETTS. 
Boston, Feb. 22. — Does the scalp or pate of a deer, after 
it has been treated to a solution for preservation, consti- 
tute an article of merchandise under the Maine game 
laws? Mr. F. B. Webster, of Hyde Park, Mass. , and sev- 
eral Boston men are interested in this question, and con- 
tend that the above-mentioned articles come under the 
head of manufactured goods, and are therefore subject to 
shipment out of the State without penalty or seizure. 
Mr. Webster had a small box containing a few of these 
scalps shipped to him in December, but they did not 
get any further than Bangor, as the goods were seized in 
that city by Warden Harriman and turned over to a tax- 
idermist for safekeeping. In due time Mr. Webster in- 
quired of the express company about his goods and was 
by them referred to a letter received from Game Com- 
missioner T. H. Wentworth under date of Feb. 4, in 
which, after stating the fact of seizure, Mr. Wentworth 
states that the scalps were in a closed box, not accom- 
panied by the owner, and were being shipped in violation 
of the regulations relating to shipment of game or parts 
thereof. Be admits that there is a question as to whether 
the scalps were so far cured as to become manufactured 
goods. Again he says the scalps are of little value, but 
under the law he thinks are forfeited to the warden. 
Finally he says that Mr. Webster can have them by the 
payment of a small charge to the warden and to the tax- 
idermist who has them in charge. Now, this is the one 
thing Mr. Webster will not do. He says it is a matter of 
principle, claims they were unlawfully seized, and in a 
letter to Mr. Wentworth demands that they be turned 
over to him without extra charges and without delay. 
He will not admit that tanned skins are game, or that a 
skin must be tanned by a prescribed plan of another or 
outside party in order to conform with the laws of Maine. 
Instead of making a payment for their release he claims 
a loss by the delay, and thinks the whole matter shows a 
peculiar way of protecting game interests. 
The Bangor taxidermist in whose charge the scalps were 
placed has on different occasions shipped the same goods 
out of the State to his customers without hindrance, and 
one gentleman in Providence who received two pates from 
him some time ago is distinctly of the impression that 
they were prepared or cured by the same identical prep- . 
aration as those of Mr. Webster which were seized. A 
Boston taxidermist has also received some of these scalps 
from this same Bangor party within the last two weeks. 
It is becoming quite the impression in Boston and vicinity 
that the extremely close watch and frequent seizures of 
game at Bangor is not altogether for the public good, but 
is sometimes made to serve personal interests. The com- 
missioners should certainly look into these matters closely 
and see that perfectly fair and impartial treatment is 
accorded to all by those under them. In the matter of 
