450 
FOREST AND STREAM. 
[June 6, 1896. 
as peace subsists among the whites and Indians on the borders of the 
hunting districts.'" 
It may at once be conceded that the words "unoccupied 
lands of the United States," if they stood alone, and were 
detached from the other provisions of the treaty on the 
same subject, would convey the meaning of lands owned 
by the United States, and the title to or occupancy of 
which had not been disposed of. But in interpreting 
these words in the treaty they cannot be considered alone, 
but must be construed with reference to the context in 
which they are found. Adopting this elementary method, 
it becomes at once clear that the unoccupied lands con- 
templated were not all such lands of the United States 
wherever situated, but were only lands of that character 
embraced within what the treaty denominates as hunting 
districts. This view follows as a necessary result from 
the provision which says that the right to hunt on the 
unoccupied lands shall only be availed of as long as peace 
and came within the authority and jurisdiction of a 
State. The right to hunt given by the treaty clearly 
contemplated the disappearance of the conditions therein 
specified. Indeed, it made the right depend on whether 
the land in the hunting districts was unoccupied public 
land of the United States. This, as we have said, left the 
whole question subject entirely to the will of the United 
States, since it provided, in effect, that the right to hunt 
should cease the moment the United States parted with 
the title to its land in the hunting districts. No restraint 
was imposed by the treaty on the power of the United 
States to sell, although such sale, under the settled policy 
of the Government, was a result naturally to come from 
the advance of the white settlements in the hunting dis- 
tricts to which the treaty referred. And this view of the 
temporary and precarious nature of the right reserved in 
the hunting districts is manifest by the act of Congress 
creating the Yellowstone Park Reservation, for it wassub- 
ELK IN JACKSON'S HOLE. 
From a photo, March, 1896, by S. N. 
Leek. 
subsists on the borders of the hunting districts. Unless 
the districts thus referred to be taken as controlling the 
words unoccupied lands, then the reference to the hunt- 
ing districts would become wholly meaningless, and the 
cardinal rule of interpretation would be violated, which 
ordains that such construction be adopted as gives effect 
to all the language of the statute. Nor can this conse- 
quence be avoided by saying that the words "hunting 
districts" simply signified places where game was to be 
found, for this would read out of the treaty the provision 
as "to peace on the borders" of suoh districts, which 
clearly pointed to the fact that the territory referred to 
was one beyond the borders of the white settlements. 
The unoccupied lands referred to, being therefore con- 
tained within the hunting districts, by the ascertainment 
of the latter the former will be necessarily determined, as 
the less is contained in the greater. The elucidation of 
this issue will be made plain by an appreciation of the 
situation existing at the time of the adoption of the 
treaty, of the necessities which brought it into being and 
of the purposes intended to be by it accomplished. 
When in 186"8 the treaty was framed the progress of the 
white settlements westward had hardly, except in a very 
scattered way, reached the confines of the place selected 
for the Indian reservation. While this was true, the 
march of advancing civilization foreshadowed the fact 
that the wilderness, which lay on all sides of the point 
selected for the reservation, was destined to be occupied 
and settled by the white man, hence interfering with the 
hitherto untrammelled right of occupancy of the Indian. 
For this reason, to protect his rights and to preserve for 
him a home w here his tribal relations might be enjoyed 
under the shelter of the authority of the United States, 
the reservation was created. While confining him to the 
reservation, and in order to give him the privilege of 
hunting in the designated districts, so long as the neces- 
sities of civilization did not require otherwise, the pro- 
vision in question was doubtless adopted, care being, bow- 
ever, taken to make the whole enjoyment in this regard 
dependent absolutely upon the will of Congress. To pre- 
vent this privilege from becoming dangerous to the peace 
of the new settlements as they advanced, the provision 
allowing the Indian to avail himself of it only while peace 
reigned on the borders was inserted. To suppose that the 
words of the treaty intended to give to the Indian the 
right to enter into already established StateB and seek out 
every portion of unoccupied Government land and there 
exercise the right of hunting, in violation of the municipal 
law, would be to presume that the treaty was so drawn as 
to frustrate the very object it had in view. It would also 
render necessary the assumption that Congress, while pre- 
paring the way, by the treaty, for new settlements and 
new States, yet created a provision not only detrimental 
to their future well-being, but also irreconcilably in con- 
flict with the powers of the States already existing. It is 
undoubted that the place in the State of Wyoming where 
the game in question was killed was at the time of the 
treaty, in 1868, embraced within the hunting districts 
therein referred to. But this fact does not justify the im- 
plication that the treaty authorized the continued enjoy- 
ment of the right of killing game therein, when the 
territory ceased to be a part of the hunting districts 
sequently carved out of what constituted the hunting dis- 
tricts at the time of the adoption of the treaty, and is a 
clear indication of the sense of Congress on the subject. 
(17 Stat. 32; 28 Stat. 73.) The construction which would 
affix to the language of the treaty any other meaning 
than that which we have above indicated would neces- 
sarily imply that Congress had violated the faith of the 
Government and defrauded the Indians by proceeding 
immediately to forbid hunting in a large portion of the 
Territory where it is now asserted there was a contract 
right, to kill game, created by the treaty in favor of the 
Indians. 
The argument, now advanced, in favor of the continued 
existence of the right to hunt over the land mentioned in 
the treaty, after it had become subject to State authority, 
rule undoubtedly is that repeals by implication are not 
favored, and will not be held to exist if there be any other 
reasonable construction. (Cope v. Cope, 137 U. S. 682, and 
authorities there cited,) But in ascertaining whether both 
statutes can be maintained it is not to be considered that 
any possible theory, by which both can be enforced, must 
be adopted, but only that repeal by implication must be 
held not to have taken place if there be a reasonable con- 
struction by which both laws can coexist consistently 
with the intention of Congress. (United States v. Sixty- 
seven Packages Dry Goods, 17 How. 87; District of Colum- 
bia v. Hutten, 143 U. S. 18; Frost v. Wenie, 157 U. S. 46.) 
The act which admitted Wyoming into the Union, as we 
have said, expressly declared that that State should have 
all the powers of "the other States of the Union, and made 
no reservation whatever in favor of the Indians. These 
provisions alone considered would be in conflict with the 
treaty if it was so construed as to allow the Indians to 
seek out every unoccupied piece of Government land and 
thereon disregard and violate the State law, passed in the 
undoubted exercise of its municipal authority. But the 
language of the act admitting Wyoming into the Union, 
which recognized her coequal rights, was merely declara- 
tory of the general rule. 
In Pollard v. Hagan, 3 How. 212 (1845), the contro- 
versy was as to the validity of a patent from the United 
States to lands situate in Alabama, which at the date of 
the formation of that State were part of the shore of the 
Mobile River between high and low water mark. It was 
held that the shores of navigable waters and the soil 
under them were not granted by the Constitution to the 
United States, and hence the jurisdiction exercised there- 
over by the Federal Government, before the formation of 
the new State, was held temporarily and in trust for the 
new State to be thereafter created, and that such State 
when created, by virtue of its being, possessed the same 
rights and jurisdiction as had the original States, And, 
replying to an argument based upon the assumption that 
the United States had acquired the whole of Alabama 
from Spain, the court observed that the United States 
would then have held it subject to the Constitution and 
laws of its own Government. The court declared, p. 229, 
that to refuse to concede to Alabama sovereignty and 
jurisdiction over all the territory within her limits would 
be to "deny that Alabama has been admitted into the 
Union on an equal footing with the original States." 
The same principles were applied in Louisiana v. First 
Municipality (3 How. 589). 
In Withers v. Buckley, 20 How. 84 (1857), it was held 
that a statute of Mississippi creating commissioners for a 
river within the State, and prescribing their powers and 
duties, was within the legitimate and essential powers" of 
the State. In answer to the contention that the statute 
conflicted with the act of Congress which authorized the 
ELK ON THEIR WINTER RANGE IN JACKSON'S 
From photo, Jan. 9, 1896, by S. N. Leek. 
HOLS. 
admits that the privilege would cease by the mere fact 
that the United States disposed of its title to any of the » 
land, although such disposition, when made to an indi- 
vidual, would give him no authority over game, and yet 
that the privilege continued when the United States had 
called into being a sovereign State, a necessary incident 
of whose authority was the complete power to regulate 
the killing of game within its borders. This argument 
indicates at once the confliot between the right to hunt in 
the unoccupied lands within the hunting districts and the 
assertion of the power to continue the exercise of the 
privilege in question in the State of Wyoming in defiance 
of its laws. That "a treaty may supersede a prior act of 
Congress, and an act of Congress supersede a prior treaty," 
is elementary. (Tong Yue Ting v. United States, 149 U. 
S. 698; The Cherokee Tobacco, 11 Wall. 621.) In the last 
case it was held that a law of Congress imposing a tax on 
tobacco, if in conflict with a prior treaty with the Chero- 
was paramount to the treaty. Of course the settled 
people of Mississippi Territory to form a constitution, Li 
that it was inconsistent with the provision in the act that 
"the navigable rivers and waters leading into the same 
shall be common highways, and forever free, as well to 
the inhabitants of the State of Mississippi as to other citi- 
zens of the United States," the court said (p. 92): 
" In considering this act of Congress of March 1, 1817, it is unneces- 
sary to institute any examination or criticism as to its legitimate 
meaning, or operation, or binding authority, further than to affirm 
that it could have no effect to restrict the new State in any of its 
necessary attributes as an independent sovereign government, nor to 
inhibit or diminish its perfect equality with the other members of the 
confederacy wi - h which it was to have been associated. These con- 
clusions follow from the very nature and objacts of the confederacy, 
from the language of the constitution adopted by the States, and 
from the rule of interpretation pronounced by this court in the case 
of Pollard's Lessee v. Hagan (3 How. 223;." 
A like ruling was made in Escanaba Co. v. Chicago, 
107 U. S. 678 (1882), where provisions of the ordinance of 
1787 were claimed to operate to deprive the State of Illi- 
nois of the power to authorize the construction of bridges 
