Forest and Stream. 
A Weekly Journal of the Rod and Gun. 
CoPYKiGHT, 1902, BY Forest and Stream Pubushikg Co. 
Terms, a Year. 10 Cts. a Copv. I 
Six Months, $2. ) 
NEW YORK, SATURDAY, AUGUST 16, 1902. 
{ 
VOL. LIX.— No. 1. 
No. 346 Broadway, New York. 
The Forest amd Stream is the recognized mediuin of entertain- 
ment, instruction and information between American sportsmen. 
The editors invite communications on the subjects to which its 
pages are devoted. Anonymous communications will not be re- 
garded. . While it is intended to give wide latitude in discussion 
of current topics, the editors are not responsible for the views of 
correspondents.. 
Subscriptions may begin at any time. Terms: For single 
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particulars respecting subscriptions, see prospectus on page iii. 
SHEEPMEN AND CATTLEMEN. 
The battles in the West between the sheepmen and the 
cattlemen, of which we frequently read in the newspapers, 
are not without their interest. Yet it may well enough 
be that few except those who have spent more or less time 
in the West have any very clear understanding as to 
what these battles are about. 
From the time of the early Spanish settlements there 
have always been sheep in the extreme Southwest, but 
for many, many years they were confined to Mexico, New 
Mexico and California. So long as hostile Indians were 
found in the- West and Southwest, there was little spread 
of the sheep, and, as of course is well known, there were 
practically' no cattle in the West and Northwest until 
about forty years ago. Between i860 and 1880 the cattle 
business in the Northwest grew and flourished enormous- 
ly, following closely the extermination of the buffalo and 
the driving out of the Indian. 
As the flocks of sheep in the Southwest gradually in- 
creased and proved more and more profitable, the industry 
naturally expanded. The sheepmen needed more range, 
and drove their flocks further and further from home; 
while along the lines 'of travel which were gradually be- 
ing extended out into the Western country, new sheep 
ranches were started in regions that had never before 
known sheep. 
Now, it is well known that sheep, in large bunches, eat 
off the grass from the ranges over which they are driven 
down to the very- roots, and sometimes eat off the roots 
themselves. The soil, cut up by a multitude of hoofs into 
fine dust, is often blown away, leaving bare the subjacent 
gravel or sand, from which nothing will grow. Also the 
odor left by the sheep is disagreeable to horses and cattle, 
which will not pasture on a range which has been run 
over by sheep. 
From these facts it results that sheep are very unpopu- 
lar with men who have horses and cattle on the range, for 
they believe that if sheep are introduced to the country 
which they have been occupying they will be obliged to 
move, partly because the grass will soon all be destroyed, 
or if not that because their cattle will not remain on the 
range polluted by the sheep, but will desert it for some 
other place. Now the cattlemen and horsemen have no 
more right to the range than the sheepmen have, but 
because they have occupied it for a long time, and per- 
laps have made improvements on certain small areas to 
which they possess title, they feel that they do have rights 
there, and that they are injured when sheep are driven in. 
On the other hand, the sheepmen say that they have as 
much right there as the cattlemen, which is true. Since, 
lowever, there seems to be no lawful method of getting 
!"id of the sheepmen, force has frequently been resorted 
:o, and for years we have heard of large bunches of sheep 
:eing destroyed and their herders being frightened out of 
^he country or sometimes even killed. It is but a year or 
wo since we were told that the residents of Jackson's 
Hole, in Wyoming, and the neighboring country, had de- 
ermined to resist the advance of the sheepmen by force 
of arms, and such conflicts are now taking place in 
Wyoming. 
To some extent one's sympathies are enlisted in behalf 
if the cattlemen, because they are permanent dwellers in 
he' country. They have taken up land, built houses, taken 
DUt irrigation ditches and made hay meadows, built fences 
nd corrals, and generally acted as if they had come to stay 
nd to help build up the country. The sheepherder on the 
ither hand is a real nomad. He has his sheep, his dogs, 
lis tent, and his wagon. He moves from place to place, 
ats up the grass here, and to-morrow goes on somewhere 
Ise, and where he has passed too often it is as if a blight 
lad fallen on the country. 
The interest of the sportsman in advance of the sheep 
nust be a keen one, and is two fold. Sheep destroy the 
:ood in ft co«ntry as other domestic animals do not, and 
game will not graze where large bodies of sheep have 
been, any more than will horses and cattle. Beside this, 
in many sections of the West the sheep are driven into or 
through the forests, and destroy the young and growing 
vegetation. We are told of a section of Oregon where a 
tribe of Indians, who from time immemorial had sub- 
sisted largely on the huckleberries that grew there, were 
recently in a starving condition, because the sheep driven 
in there had exterminated over a territory about forty 
miles square the huckleberry bushes, the fruit of which 
these Indians used to gather. 
It is unnecessary to write of the harm the sheep have 
done in California, not only by their browsing, but by the 
forest fires set by the herders. We may all watch with 
interest the progress of this conflict between the sheepmen 
and the cattlemen. It is a quarter of a century old in 
this country, and is still going on, and it may last much 
longer. The damage done to forests and range by the 
sheep is quite comparable to that done in France three- 
quarters of a century ago, and which France endured until 
about the year i860, when it began its fight for reforest- 
irig the country of the Rhone. 
INDIAN TERRITORY QUAIL. 
We print elsewhere two communications in comment 
upon our remarks last week on the exportation of live 
quail from the Indian Territory for stocking purposes. 
One correspondent avers that the intercepted quail had 
been exported in violation of law, and he says, "If it is 
unlawful, under the State law, to net or trap quail in 
■ Illinois, it is consequently unlawful under the Lacey Act 
to ship them from one State to another." We will all 
endorse the proposition that quail should not be exported 
in violation of a State law ; but the "consequently" in 
our correspondent's quoted assertion does not follow. 
The Lacey Act has nothing to do with the transportation 
of live birds ; it has to do only with "the dead bodies or 
parts thereof of any wild birds or animals, where such 
animals or birds have been killed in violation of the laws 
of the State, Territory or District in which the same 
were killed." The "consequently" that does follow is 
that the seizure of live birds in transit under an assump- 
tion of authority conferred by the Lacey Act is arbitrary 
and outside of the law. This is all that was suggested in 
the comment alluded to; but it is not to say that the un- 
lawful exportation of game should not be suppressed and 
punished. It should be — by the proper authorities and in 
the proper way. 
The statement is made by our other correspondent that 
the Federal courts of the Indian Territory hold that the 
export of quail is forbidden under Sec. 2137 of the Revised 
Statutes of the United States. 
If this interpretation of the court is correct the author- 
ities of the Territory should take all proper measures to 
prevent the exportation of live birds for stocking pur- 
poses. 
This Sec. 2137 is an interesting bit of game legislation. 
The law of 1873 is a re-enactment of a law adopted in the 
thirties just after the setting apart of the Indian Terri- 
tory as a district for exclusive occupancy by certain In- 
dian tribes. It reads : 
Revised Statutes of the United States, 1878.— Sec. 2137. Every 
person, other than an Indian, who, within the limits of any tribe 
with whom the United States lias existing treaties, hunts or traps, 
or takes and destroys any peltries or game, except for subsistence 
in the Indian cotlntry, shall forfeit all the traps, gtins and ammu- 
nition in his possession, used or procured to be used for that 
purpose, and all peltries so taken, and shall be liable in addition 
to a penalty of $500. 
The intent of this provision was to prevent hunting by 
white men in the Indian country, for the two-fold purpose 
of protecting the Indians in their sole hunting rights and 
of preventing friction between red man and white caused 
by hunters in Indian territory. A few years ago when 
the question came up in the courts whether quail were in- 
cluded in the prohibition of Sec. 2137, the claim was ad- 
vanced that the birds had not been present in the Terri- 
tory, as a recognized factor of the game supply at the time 
when, seventy years ago, the statute was framed. There 
were two aspects in which the question might be con- 
sidered — one of the letter of the law, the other of its 
spirit. By the letter there could be no question that the 
quail were game within the statute. Considered in the 
spirit of the law, there was rooru for debate. If applied 
to quail the statute would mean that white residents in thfe 
Terriixjry might not take any <|tiail. Would such a pro- 
hibition assure to the Indian any existing right he sought 
to maintain, and would it prevent friction between In- 
dians and white killers of quail? These questions prob- 
ably would have been answered negatively ; and the 
statute being construed in the light of its intent, the quail 
would not have been included as coming under the desig- 
nation of game. The point was, however, construed ac- 
cording to the letter of the law, and as a consequence it 
follows that no white man in the Indian Territory, 
whether resident or visitor, has any right to take any 
quail either by shooting or trapping, except "for sub- 
sistence." This exception was made in favor of those 
white men who were obliged to depend on the game of 
the country through which they were traveling or in which 
they were stationed; it Avas a provision which was essen- 
tial at the time, but could hardly be considered as perti- 
nent now, except in very rare instances, for in a settled 
country men do not kill game for subsistence. The de- 
fense of an Indian Territory quail shooter that he killed 
the game for subsistence would be specious in the ex- 
treme. 
In considering the question of the exportation of quail 
from the Indian Territory, then, it must be remembered 
that the white people of the Territory, since they are 
absolutely forbidden to take quail in any way, have no 
shadow of right or privilege which requires protection. 
The only interest to be considered is that of the Indians ; 
and those who are familiar with the attitude of the In- 
dian toward quail, know of course that the only use the 
Indian has for quail is to market them dead or alive. 
Under these conditions, the white people being denied 
them by law, and the Indians not desiring them by reason 
of Indian nature, the best possible disposition to make of 
the birds would be to send them to States where citizens 
have both the right and disposition to work their dogs 
on them. 
The exportation of quail from the Indian Territory is 
perfectly lawful, if the birds are captured by Indians in 
districts which are outside of the Chickasaw Nation ; for , 
having lawfully been reduced to possession by the In- 
dians, the birds become lawful subjects of commerce, and 
may be sent out of the Territory by and to the agents of 
game clubs. State commissioners and others. In the 
cases of seizure alluded to by us in our issue of last week, 
the information given respecting them was that the birds 
had been taken under lawful conditions — that is to say, by 
Indians ; and that they were therefore legitimate subjects 
of commerce. If this was the case, the seizure of them 
by United States marshals under the assumption of 
authority conferred by the Lacey Act was not erroneously 
characterized as arbitrary. 
If it was arbitrary it was indefensible. The protection 
of game is an important interest, but it is not an interest 
of such moment as to justify resort to measures not clearly 
w^ithin the sanction of law. There is to be noted in cer- 
tain quarters — and to note it is to deplore it — a tendency 
on the part of zealous game protectors to accomplish their 
purpose at all costs ; and the rulings of the courts in game 
cases are not always conclusive as to their wisdom and 
justice. In Illinois, for example, where a bungling Legis- 
lature failed to prescribe any close time for quail, shooters 
have been arrested for killing quail at times which the 
Commissioner considered improper; and have been 
nmlcted in fines by justices, who in taking their money 
were as truly robbing them as if they had robbed them 
on the highway. Indeed, it was worse than highway rob- 
bery, because done under guise of law by those whose 
high duty it is to uphold the law and to do justice. 
Our correspondent's suggestion that State laws should 
be modified to permit the interchange of game birds for 
stocking is an excellent one. There are a few States in 
which, under supervision of proper authorities, certain 
birds might be taken for export in restricted number. Un- 
til we have such a system, the Indian Territory appears to 
afford the best available supply of game for stocking 
purposes. It is a region fertile in quail. The whitf 
people there have no right to take any quail ; the Indians 
use them only for market purposes, and the best market 
use to put them to is to sell them alive for stocking pur- 
poses. If the Department of Agriculture can do nothing 
in the work of game stocking because of lack of appro- 
priations, it can at least j)romote the work of replenishing 
Eastern game fields by Encouraging the Indian Territory; 
red men to export their birds. 
