I am unable to agree with the conclusion reached by the majority.
The pertinent provisions of the treaty are contained in sub-paragraph 2 of article 3, which reads as follows:
"The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory, and of erecting temporary buildings for curing them; . . ."
All Indian treaties are construed liberally by our courts, in good faith and in favor of the Indians, because of the dominant position of the United States. Worcester v. Georgia,31 U.S. 515, 8 L. Ed. 483; United States v. Kagama, 118 U.S. 375,30 L. Ed. 228, 6 S. Ct. 1109; Choctaw Nation v. United States,119 U.S. 1, 30 L. Ed. 306, 7 S. Ct. 75; Jones v. Meehan, 175 U.S. 1,44 L. Ed. 49, 20 S. Ct. 1; United States v. Winans, 198 U.S. 371,49 L. Ed. 1089, 25 S. Ct. 662. *Page 143
In the Worcester case, supra, the supreme court of the United States said:
"The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend, that the word `allotted,' in reference to the land guaranteed to the Indians, in certain treaties, indicates a favor conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the words ofthe treaty were understood by this unlettered people, rather thantheir critical meaning, should form the rule of construction.
"The question may be asked, is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nations of Europe, with whom we have made treaties? The inquiry is not, what station shall now be given to the Indian tribes in our country? but what relation have they sustained to us, since the commencement of our government? We have made treaties with them; and are those treaties to be disregarded on our part, because they were entered into with an uncivilized people? Does this lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to bind themselves, and to impose obligations on us?" (Italics mine.)
In the Jones case, supra, that court again announced the rule of construction in the following language:
"In construing any treaty between the United States and an Indian tribe, it must always (as was pointed out by the counsel for the appellees) be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is *Page 144 drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty musttherefore be construed, not according to the technical meaning ofits words to learned lawyers, but in the sense in which theywould naturally be understood by the Indians." (Italics mine.)
Rights not expressly granted in treaties with the Indians are reserved by them. Winters v. United States, 207 U.S. 564,52 L. Ed. 340, 28 S. Ct. 207. Having this rule in mind, let us view the situation surrounding the making of the treaty of 1855, entered into between the Federal government and various Indian tribes of the northwest, including the Yakimas, of which appellant is a member.
The meeting at which the treaty was arranged was held at the council grounds in Walla Walla valley. It started May 18, 1855, and ended June 11, 1855. Governor Isaac I. Stevens of the territory of Washington and General Joel Palmer of the territory of Oregon represented the United States government, and chiefs of the various tribes represented the Indians. Many speeches were made by those present, chiefly by Governor Stevens and General Palmer.
As a result of the treaty, 16,920 square miles of territory were ceded to the United States by the Indians and 1,233 square miles of land were retained by the Indians in two reservations.
Among other things, Governor Stevens told the Indians,
"We have near to our hearts the property of the Indians and the propositions to be made to you will prove it." *Page 145
Speaking of the tracts to be retained by the Indians, he said:
"On each tract we wish to have one or more schools; we want on each tract one or more blacksmiths; one or more carpenters; one or more farmers; we want you and your children to learn to make ploughs, to learn to make waggons, and everything which you need in your house. We want your women and your daughters to spin, and to weave and to make clothes. We want to do this for a certain number of years.
"Then you the men will be farmers and mechanics, or you will be doctors and lawyers like white men; your women and your daughters will then teach their children, those who come after them to spin, to weave, to knit, to sew, and all the work of the house and lodges, you will have your own teachers, your own farmers, blacksmiths, wheelwrights and mechanics; besides this we want on each tract a saw mill and a grist mill."
At another time, he made the following statement concerning the care which the government would exercise in order to help the Indians:
"I have spoken of an agent, I will speak more. If we agree at the council we have many things to do for you; the agent will live with you and see that it is done; if you think we have not done our part go to the agent and tell him so, and he will see that we do do it. If we think you have not done your part the agent will go to the chiefs and say so frankly and arrange it with them; he will be your elder brother, and will see that you are not wronged, and that the bargain is carried out."
Again, he stated:
"If we make a Treaty with you and our Great Chief and his Council approves it, you can rely on all its provisions being carried out strictly. My heart is that it is wise for you to do so. I will not speak any longer."
Governor Stevens made a definite statement relative to the Indian's right to fish in the following words: *Page 146
"There is plenty of salmon on these reservations, there are roots and berries. There is also some game. You will be near the Great Road and can take your horses and your cattle down the river and to the Sound to market. . . .
"You will be allowed to go to the usual places and fish in common with the whites . . . together with all outside the reservation."
"In the paper for the Yakamas we have included the tribes who acknowledge Kam-i-ah-kan for their head chief. The Piscouse, the Swan-wap-um and Palouse, the Yakamas and all the bands on the Columbia below the Walla Walla down to the White Salmon River. They have their reservation and fishing stations, which they well know and which I understand is satisfactory. . . .
"You will not be called according to the paper to move on the reservation for two or three years; then is secured to you your right to fish, to get roots and berries, and to kill game; then your payments are secured to you as agreed; then your schools, your shops, and physicians and other things we have promised are secured; then the salaries, the houses and the 10-acre farms of your chiefs are secured to him. . . .
"I will ask of Looking Glass whether he has been told of our Council. Looking Glass knows that in this reservation settlers cannot go, that he can graze his cattle outside of the reservation on lands not claimed by settlers, that he can catchfish at any of the fishing stations. . . ." (Italics mine.)
All of these statements were made in good faith by Governor Stevens at a time when the northwest was very much of a wilderness. They were made at a time when Indians and white men alike hunted and fished as they desired without let or hindrance from the Federal or territorial governments. Regulations of fish and game were neither known nor dreamed of. The Indians had from time immemorial fished for salmon on the banks of the Columbia river. The catching *Page 147 of salmon was necessary for the sustenance of themselves and their families. Neither Governor Stevens nor the Indian chiefs could possibly have visualized present day conditions and present day restrictions. They entered into the treaty agreement under situations which existed at that time. We should interpret and construe the treaty and the rights of appellant in the light of the surroundings present at that time.
Without any doubt whatever, Governor Stevens and the Indians signed the treaty with the definite understanding that the Indians should be forever allowed to catch salmon from the Columbia river without any restrictions whatsoever. We should so construe the treaty.
It may be conceded that there is an ambiguity contained in the treaty. However, that ambiguity, if there is one, should be resolved in favor of the Indians. Winters v. United States,207 U.S. 564, 52 L. Ed. 340, 28 S. Ct. 207.
The state is not in a position, nor does it have the power, to modify or abrogate a treaty made by authority of the Congress of the United States. Article I, § 8, of the Federal constitution, gives to the Congress power
"To regulate commerce with foreign nations and among the several states and with the Indian tribes."
The Enabling Act, 1 Rem. Rev. Stat., 333, § 4, Second, recognized the position of the state in disclaiming all title to all lands
". . . owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States." *Page 148
There is a definite procedure insisted upon by the courts when the United States seeks to assert its position of dominance by abrogating or changing an Indian treaty, and that is by the passage of a clear and express act of Congress which is of such a nature that the treaty and the act cannot in any reasonable view stand together. Cope v. Cope, 137 U.S. 682, 34 L. Ed. 832,11 S. Ct. 222; Fong Yue Ting v. United States, 149 U.S. 698,37 L. Ed. 905, 13 S. Ct. 1016.
I realize that the majority opinion is founded upon the following decisions of this court: State v. Towessnute,89 Wash. 478, 154 P. 805; State v. Alexis, 89 Wash. 492,154 P. 810, 155 P. 1041; State v. Meninock, 115 Wash. 528,197 P. 641; and State v. Wallahee, 143 Wash. 117, 255 P. 94.
The last three cases cited are based upon the holding in theTowessnute case, supra. To my mind, that case is entirely wrong in principle, and is founded upon an unjust assumption. It states that the Indians are mere occupants of the soil of America. Not so, they owned it as much or more than we do. Our ancestors took the lands from the Indians by conquest because they had firearms and were better able to destroy than the Indians.
Again, the opinion states, in speaking of the words "in common with citizens":
"These words were not used to give something to the white man, but to give something to the red man; not to give the Indian an advantage, but to save him from disadvantage."
Where did the white man get the land to give? The answer is that all of his rights were derived from the Indians. UnitedStates v. Winans, 198 U.S. 371, 49 L. Ed. 1089, 25 S. Ct. 662. The Indians surrendered their land to the white man in consideration of glowing promises of care and protection. When he gave *Page 149 his land away, the red man reserved certain rights, among which was the right to fish at accustomed places, a right he had exercised for many, many generations.
It must be said, however, that at the time our former cases were decided, the court did not have the benefit of a report of the proceedings which led to the signing of the treaty under consideration.
The proper disposition of the question and interpretation of the treaty in question was made by the United States Supreme Court in United States v. Winans, supra. That court held that the Yakima Indians had a right in the real property, and an easement for certain express purposes in and to their usual and accustomed fishing places on the Columbia river. The court stated:
"The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. Inother words, the treaty was not a grant of rights to the Indians,but a grant of rights from them — a reservation of those notgranted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular parcels of land, and could not be expressed in deeds as dealings between private individuals. The reservations were in large areas of territory and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved `in common with citizens of the Territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, *Page 150 but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given `the right of taking fish at all usual and accustomed places,' and the right `of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for — in other words, the Indians were given a right in the land — the right of crossing it to the river — the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty.And the right was intended to be continuing against the UnitedStates and its grantees as well as against the State and itsgrantees." (Italics mine.)
Cf. United States v. Powers, 16 F. Supp. 155; UnitedStates v. Stotts, 49 F.2d 619; United States v. McGowan,62 F.2d 955.
The cases of State v. Towessnute, State v. Alexis, State v.Meninock, and State v. Wallahee, supra, should be reexamined and overruled.
If Governor Stevens was not sincere and the government secured from the Indians the large domain ceded to it by the making of promises it did not intend to keep, and did not keep, then fraud was practiced on the Indians, and the wrong done to them should be rectified. On the other hand, if the promises made by Governor Stevens were made in good faith, as I am sure they were, then all of the facts relative to the making of the treaty should be considered in arriving at the intent of the parties.
The treaty should be upheld as construed in the Winans case,supra, and the judgment of the trial court reversed.
MILLARD and BLAKE, JJ., concur with SIMPSON, J. *Page 151