S96 
FOREST AND STREAM. 
[MAY 16, 1896. 
The Man Behind the Gun. 
Editor Forest and Stream: 
Mr. Lew Wilmofc's article beaded "The Man Behind the 
Gun" is the kind of argument that should settle the gun 
question. Que writer says a hunter is lucky if he hits a 
running deer anywhere between the head and tail, and 
for that reason he should shoot a large, hard-hitting gun 
— or words to that effect. 
He evidently loses sight of the roan behind the gun. 
A hunter should be able to hit a running deer within a 
circle whose diameter is the width of the deer's body, and 
at any d stance that his gun will shoot accurately. He 
may be able to do this with a short, compactly built gun 
like the .88 40 or .44 40 Winchester, but fail with a long- 
barreled gun Bhooting a long cartridge, for the simple 
reason that he cannot handle the large gun. But if the 
gun feels right in his hands — is light, and comes up to his 
face properly, so he does not have to look a second time 
for eithtr the sights or the mark — he should hit his deer 
nearly where he chooses. He can tumble rabbits on the 
jump and clip the heads off walking partridges in the 
second of time the head is still before making the for- 
ward or backward movement. 
I once shot two deer as they ran past me about 75yds. 
distant, the firsr some three jumps in advance of the other. 
My Little .32 20 Winchester put a ball through the fore- 
most one a little a bpve the heart. I had only time enough 
to pump my magazine and catch the other deer on the 
same ground — a small open depression between ridges 
covered with undergrowth and scattering trees. 
The holes in the two skins did not vary over 2in. from 
the same spot. It does not matter whether a man is able 
to hit a deer or not, he is entitled to a trial; but he must 
not expect his gun to do more than its share of the work. 
A good gun will shoot where it is held. I prefer to be 
sure of my aim and hit a deer in a vital spot, or clip a 
partridge head, than to shoot an unwieldy rifle or a shot- 
gun at random. G. W. Cunningham. 
THE INDIANS AND THE FISH LAWS. 
CATTARAUGUS COUNTY COURT. 
THE PEOPLE VS. JAMES PIERCE. 
G. W. Cole, Attorney for the People. 
D. C. Rilly, Attorney for Defendant. 
Ojrinion—O. S. Vreeland, County Judge. 
The defendant was convicted by and before a Justice of 
the Peace of the town ol Salamanca of thee ffenseof hav- 
ing on thf 13th day of October, lb95, killed fish in the 
Alleghany R ver, in Cattaraugus county, by the explosion 
of dynamite, contrary to the provisions ot See. 102, Chan. 
974, of the laws of 1895. * 
Upon such conviction the defendant was sentenced by 
the justice to pay a fine of $40, and in addition to be im- 
prisoned for thirty days in the c unty jail of the c junty. 
It was substantially ci -reeded upon the trial by defend- 
ant that be bad exploded dynamite in the river for tbe 
purpose of killing fi 0 h; and by the people that defendant 
was a Seneca Indian, a member of the Seneca Nation of 
Indians, and that the particular spot in the river where 
the explosive had been used was upon the Alleghany In- 
dian Reservation. 
Upon this statement of facts the defendant asked to be 
exempted before the justice from liability to the provi- 
sions of the statute cited, and upon this appeal makes 
the broad claim that, since he is a Seneca Indian, and 
the alleged offense was committed upon the r servation 
which bis tribe occupies, therefore the Legislature of the 
State of New York has no authority or jurisdiction over 
the reservation or its waters; that it cannot control or re- 
b rict tbe right of himself or his people to take fish from 
this river in any manner they choose to adopt, and for 
these reasons the act referred to is invalid and void so far 
as he is cc ncerned. These Indians have possessed a right 
to occupy these lands from a time in the past, "whereof 
the memory of man -runneth not to the contrary," and 
the story of such right and of their relations to the 
United States and the State of New York has been often 
old. 
In 1628-9 the king ruling England granted to the 
eoleny tl Massachusetts Bay, in America, certain 
lands described, in the quaint language of the day, as 
follows: "All that parte of Niwe EDglande, in America, 
which lyes and extendes between a create river there 
commonlie called Monomsick, alias M iriernack, and a 
certen other river there called Charier River, being in the 
bottome of a certayne bay there con monlie called Massa- 
chusetts, alias Mattachusetts, alias Massatusetts Bay, and 
also all and singuler those landes and hereditaments 
whatsoever lyeing within the space of three English 
myles on the south part of the said Charles River, and 
also the landes lyeing and being within three English 
myles to the southward of the southmost part of the 
saide bay. 
"And also all those lands and hereditaments whatso- 
ever which lye and be within the space of three English 
myles to the northward of the said river called Mono- 
mack. 
"And all the landes and hereditaments whatsoever lyeing 
within the lymy tts aforeeaide, north and south in latitude, 
and in lrngih and longitude, of and within all the bredth 
aforesaide, throughout the mayne lande3 there, from the 
Atlantic and westerne sea and ccean on the east parte, to 
the south sea on the west parte." 
On March 12, 1664, the king then ruling England 
granted to hiB brother, Duke of York, certain other lands 
"of Newe Englande." Out of the latter grant was carved 
the Colony and later the State of New York, and from 
the former grant were formed the Colony and State of 
Massachusetts. 
During the long years embracing the French and Indian 
■wars, and the period of the Revolution, no notice appears 
to have been taken of tbe fact that the grant to the Duke 
overlapped the earlier grant, but when the affairs of the 
Colonies began to take more definite shape, after the treaty 
of Paris, the Colony of Massachusetts took steps to locate 
the boundaries of their grant, mapped the same as extend- 
ing between parallels 42° and 45°, from the Atlantic to 
thePacifio, ard laid claim to almost the whole of the 
State of New Yak not actually settled. 
New York resisted the claim and a convention between 
tbe two States was held at Hartford in the Colony of Con- 
necticut in 1786, where, on Defi, 16 of that year, a stipula- 
tion was signed by Rufus K ng and three others for 
Massachusetts, and by Robert R. Livingston and five 
others for New York, establishing a line across the State 
north and south from the Pennsylvania boundary, c m- 
mencing at the southeast corner of Steuben county, run- 
ning along the westerly shore of Seneca Lake and termi- 
nating in Sodus Bay on Like Oatario. 
New York ceded to Massachusetts "the right of pre- 
emption of the soil from the native Indians, and all their 
estate, right, title and property (the right and title of 
government, sovereignty and jurisdiction excepted) which 
the State of New York hath" m the territory lying on the 
west of the line marked; and Massachusetts ceded to New 
York "all the claim, right and title which the Common- 
wealth of Massachusetts hath to the government, 
sovereignty and jurisdiction" of the lands in question. 
Under the authority reserved in this stipulation the 
State of New York has assumed to extend its laws over all 
this land once claimed by Massachusetts, and has enacted 
and now Beeks to enforce the act in question, as against 
the tribe of Indians Btill occupying a pcrtion of the 
original tract. 
It seems reasonably clear that this may be done. 
The words chosen — "government, sovereignty and 
jurisdiction" — are among tbe broadest in the language. 
"Government" is "The exercise of authority in the ad- 
ministration of the fcffairs of a State, community or 
society; the authoritative direction and restraint exer- 
cised over the actions of men in communities, societies or 
States."— Century Dictionary. 
"Sovereignty" is "The supreme, absolute, uncontrollable 
power by which any State is governed."— Cooley, Con., 
lAm, 
■ "Jurisdiction" iB "Controlling authority— the right of 
making or enforcing laws or regulations — the capacity of 
determining rules of action or use, and exacting penalties; 
the function or capacity of judging or governing in gen- 
e al; the inherent power of decision or control." — Century 
£> ctionary, 
These definitions certainly cover the case under consid- 
eration. 
It iB not the purpose of the statute to absolutely pro- 
hibit the taking of fish from the waters of the State, but 
to regulate and control su^h taking, and to prevent the 
wholesale destruction of this important food product. 
This fish law is the result of years of study and expe- 
rience in the nature and habits of the finny tribe with a 
view to prevent their destruction, and to promote, to the 
greatest extent, their growth and increase. 
Its purpose is as much for tl e welfare of the Indians 
as for that of their white neighbors. 
Experience has taught that unless the melhods of tak- 
irg hah can be controlled, and the aeafon for taking them 
regulated so as not to interfere with their propagation, 
a lthe fish in the waterB of the State are doomed to de- 
struction. 
Such a result would be more disastrous to the interests 
of the Indians, and be more quickly and keenly felt by 
tbem than by the w hites. 
To confine the question, however, to the exact point at 
issue, it does not appear that tbe slaughter of fish by the 
explosion of dynamite in their native waters iB "fishing" 
within any fair interpretation of the term. 
By this means large numbers of fish are destroyed and 
only a few are secured — young and old alike are killed. 
Their habits of breeding and taking food are disturbed and 
inttrfered with. 
Under these conditions it is clear that the provisions of 
this law are wiBe and just, and ought to be upheld and 
enfe reed 
The claim of the defendant that the terms of this stat- 
ute are hostile to existing statutes of the United States, 
or to the stipulations contained in the treatie s heretofore 
made with thiB tribe of Indians, is not tenable. 
So far as I can discover, the United StateB has never 
enacted by its Congress any statute, or given out any de- 
cision by its courts, in opposition to the rieht of the State 
of New York to exercise its "sovereignty" over these 
lands. 
Tbe relations of the United States with these Indians 
began soon after the close of tbe Revolution, when a 
treaty was held whereby the Government "gavepeace"to 
these Indians, and "a* cured and ccnflimed" them in the 
possesion oi their lands. 
Beyond this, excepting to supervise their dealings with 
the whites, the gent ral government has di ne nothing. 
The claim is made by the defendant ihat the United 
States expressly guaranteed to his nation the right to fish 
without interference in these waters' by express treaty, 
but sucb does not appear to be the case. 
The only reference to their rrgbt to fish and bunt ap- 
pears to be in the deed executed by the nation to Robert 
Morris in r<97, made under the tupervision of the general 
goverrment, whereby all the vast tract con pricing western 
New York was conveyed to him, and in which tie right 
to huut and fish in the lands conveyed was reserved. 
Under this provision, the right of the Indians over the 
waters in question is in no way superior to their rights in 
all the other streams embraced in the lands so conveyed. 
It is not likely that any express treaty was necessary to 
entitle tbem to the reasonable use of tbe waters for fish- 
ing, but the fact cited does prove that they have no such 
exclusive authority over this river as to entitle them to 
defy the "sovereignty" of the State of New York when 
exercised with reason and judgment over the same. 
The Indians themselves have aluo invoked tbe "sov- 
ereignty" of the State upon repeated occasions. A3 early 
as 1813, laws were enacted by the State to prevent tres- 
passes upon their lands by white persons, and these laws 
have been frequently amended and extended in scope 
and their aid invoked by the tribe. The very corporate 
existence of the Seneca Nation itself depends upon a 
statute of the State. 
The statutes forbidding trespasses upon their lands by 
whites and providing for the removal of intruders have 
been upheld as a police regulation (The People ex rel, 
vs. Dibble, 16 N. Y., 203), and it seems plain that the pres- 
ent law may be sustained upon tbe same ground. 
The case has been considered at greater length than the 
precise question involved demands, but in view of the 
surroundings it has seemed advisable to ascertain the 
result to which an examination of the whole question 
might lead. 
Such examination leads me to the conclusion that the 
State of New York has the authority to make and enf oroe 
these laws, and tl at Indians are amenable to their provi- 
sions in the samo manner and to the same extent as are 
the whites. 
The sentence imposed by the justice was a fine of $40 
and imprisonment in the county jail for thirty days; and 
was apparently imposed under the general provisions of 
tbe statute regulating punishment for misdemeanors. 
Sf c. 102, under which the prosecution was conducted, 
provides the punishment, which may be imprisonment 
for not less than thirty days, but does not authorize a 
fine. 
The judgment of conviction must therefore be modified 
by remitting the fine, and, as so modified, the judgment 
of conviction and the sentence affirmed. 
CHICAGO AND THE WEST. 
Chicago, 111., May 2.— Hearing of the sport along the 
Fox, and being minded to have a day out of doors this 
week, I made a solemn agreement with three friends of 
mine, each of whom declared himself ready to depart on 
an hour's notice, to take a run out to St. Charles, on the 
Fox, and have a look over the country with an eye to a 
trip a little later on. One of these friends is an ardent bi- 
cyclist, and announced himself ready to ride out across 
country with me almost any evening to have a look at the 
river. Of course, when the time came to start, this 
solemn compact snowed itself to be about like most fish- 
ing-trip agreements, and no one was ready to start One 
man had bought him a yoke of oxen and another had 
married a wife, or was going to, and one or another such 
insufficient reasons broke up the deal all around; so I was 
left alone. Now, I have a superstition that it is unlucky 
for a man ever to change his mind , especially about going 
fishing, when he has once made it up. It seems to me 
that when a fellow has gone to all the trouble of making 
up that member, he ought not to go and lightly rub that 
make-up off without great provocation. Believing this, 
there was only one thing to be done, and that was to start 
alone, which accordingly I did, leaving Chicago at 9 P. 
M. on bicycle-back for the ride of thirty-eight miles to Sb. 
Charles. The weather probabilities said there would be 
local thunder showers that night, and that was the first 
time I ever knew the weather man to guess it right. I 
was not three miles down the boulevard before it began 
to get black and blow great guns, while tbe lightning 
played hide and seek around a big cloud in the west, the 
direction in which I was traveling I knew I was being 
another variety of idiot in going on, but I was too mad by 
that time to turn back, so went ahead. I had intended to 
ride out slowly till ihe moon roBe, about 10 P.M., and 
then push on over the country roads as far as 1 could tha 1- . 
night, hoping 10 get over most of the distance by 2 or 3 
o'clock the next morning; but what I planned to do and 
what I really did were two very d fferent things. The 
storm caught me at Oak Park, and 1 got wet in just about 
half a minute. Oas Park is a very respectable suburb, 
devoted to private residences of wealthy folk and not laid 
out with a view to transient travelers' comfort. I looked 
all up and down the street and saw no place where a wet 
bicyclist could hide. Everything was highly reep ctable 
and repeJlant. At last I saw a bright and cheery light 
shining in an inviting way at a store window, and I ven- 
tured up on the stoop and withdrew into the shelter of the 
archway, the way tbe wronged maidens do in cathedrals 
in the novels. I found that my house of refuge was an 
undertaker's shep; but it was the cheerfulest place in the 
town, so 1 didn't mind. The undertaker was a pleaBant 
man, and he looked me over with interest, but possibly 
undertakers are always glad to see a man drop in now 
and then. He gave me his card, and I promised, to see 
him again some day; but then the rain stopped a trifle 
and I determined to ride on. When a fellow is going 
fishing he always wants to have hiB mam idea fixed in his 
mind, and must not rIIow himself to be diverted by the 
temptations which offer by the wayside. 
1 rode on for three or four stadia and a couple of pard- 
sangs more until I came to May wood, and here I round 
that the moon, which was Blated to appear at that time 
and place, was not working at all that night, and 
that my ride was going to be cut Bhort. There was a 
temptation to turn around and ride back home and go to 
bed, but this I rejected with scorn, and instead sought 
lodging at a hotel I discovered near by. This was a Lrge 
hotel w ith about a thousand rooms in it, once devoted to 
the use of the operatives of a factory or something of 
that sort, and as the factory was shut down I thought I 
could get a room there. The night clerk said I could, 
but when I told him I wanted to get up at 4 o'clock in the 
morning he mutinied, and said he didn't see how he could 
afford to Bit up all night to call me at that hour; but he 
finally agreed to chance it, and I took harborage with 
him. 
I have been thinking it over Bince then, and I sort of 
believe that that night clerk was a humorist or some- 
thing of that kind. He must have been joking about 
calling me in the morning. What really happened was 
that he put me into a room next to one that had a light 
in it and was evidently occupied — these being the only 
two rooms of the thousand that had any body in them that 
night. I waited and waited for that light to go out, but. 
it never failed all night long. Neither did there ceases 
the conversation audibly in progress between the inmate* 
of the room, which were apparently of Semitic cast, as I 
inferred from sundry exclamations of, "Chrashua me; 
vat vouid you exbect?" "Nol nol id vas all rigdt" "Bud 
I deli you, Rosenbaum," etc., etc. Those people argued 
for five hours by the watch, for I kept time on them, 
they only pausing momentarily when I wrapped on the 
wall and swore at tbem. Meantime there was a lamp 
placed in the hall in front of my door, so that the light 
streamed in cheerily over the transom, and the Bound of 
heavy footsteps, as of a man engaged in deep thought, con- 
tinued up and down the hall all the time. I supposed this 
"was the night clerk, and that thiB was his way of waking 
me up at 4 o'clock, so I had no right to criticise his 
methods, and as I don't mind a little thing like that any- 
how when I am going fishing, I didn't say anything to 
him about it at the time. I didn't really need to be called 
at 4 A. M., for at 3:30 I saw the streaks of dawn appear, 
and bo arose and dressed and went out in the hall to see 
how my uneasy friend with the footsteps was getting 
along. I asked him what was troubling his mind, and 
what was the matter with the fellows in the other room, 
and he said they were witnesses in a lawsuit over a fire 
there had been in town, and he was the bailiff stationed 
over them to keep them from getting away. 
