(dissenting) — -Whatever may be the views of the majority as to what an Indian treaty with our national government is — whether it is a treaty between two sovereigns or not — it is certainly a solemn compact binding in law and in honor upon both parties to it.
The majority in this case treat this compact as one that the national government through Congress rightfully could, either expressly or by implication, set aside at will without the consent of the other party, the Indian tribe, and that it did so by implication by force of the enabling act authorizing the formation of the territory of Washington into a state.
I cannot concur therewith. Good faith requires the observance of the spirit as well as the letter of the compact with the Indians, more especially because the Indian tribe is the weaker of the two parties to the compact. In doubtful questions the doubt has most generally been resolved in favor of the Indian tribes.
The stress laid upon that phrase in the clause of the treaty under consideration, “the right of taking fish at all usual and accustomed places, in common with citizens of the territory” is a strained construction. Had the phrase been “upon the same terms” in place of “in common with” the citizens of the territory, the construction would have been just. At the time of the treaty it was not known, possibly not even surmised, that the future state would rigidly regulate and partially prohibit the fishing in its streams; that *490certain fishing apparatus would be prohibited; the number or quantity of fish taken limited; the fishing season limited, and license required to fish at all.
It is undoubted that the state can assume and assert its police power over game and fish for their protection and conservation. But that sovereign power is subject to a still more supreme power — that of the Federal government when exercising its lawful jurisdiction. In some fields of government, the state is supreme; in others, the nation. I am as jealous of the proper restriction of each as any one. In the exercise of its lawful power over a matter of which it had supreme and exclusive jurisdiction, the nation made a compact with the Yakima tribe of Indians, whereby the Yakima tribe “relinquished and ceded” to the United States its rights or claims, whichever term may be preferred, to certain territory, in return for which the United States granted to the Yakima tribe a certain area of land together with certain immutable rights outside thereof.
The view of the majority is exactly that of the district judge in United States v. Winans, who, concerning this same treaty and the same clause, said:
“The Indians are at the present time on an equal footing with the citizens of the United States who have not acquired proprietary rights, and this it seems to me is all that they can legally demand with respect to fishing privileges in waters outside the limits of Indian reservations under the terms of their treaty with the United States.”
That view was disapproved by the Federal supreme court in language rather testy and ironical. The case was appealed and the lower court was reversed by the supreme court, the decision being reported in 198 U. S. 371. The opinion stated the issue as above summarized, and further made these observations:
“In other words, it was decided that the Indians acquired no rights but what any inhabitant of the Territory or State would have. Indeed, acquired no rights but such as they *491would have without the treaty. [Italics mine.] This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. And we have said we will construe a treaty with the Indians as ‘that unlettered people’ understood it, and ‘as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection,’ and counterpoise the inequality ‘by the superior justice which looks only to the substance of the right without regard to technical rules.’ 119 U. S. 1; 175 U. S. 1. . . . There was a right outside of those boundaries [of the reservation] reserved ‘in common with citizens of the Territory.’ As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. . . . And the right was intended to he continuing against the United States and its grantees as well as against the state and its grantees. [Italics mine.]”
To my mind, by this construction, the rights of the appellant in question are as plainly and emphatically determined as if the decision were in the present case. It is conclusive of this controversy and binding in law upon this court. We have no option whatever but to construe this treaty right, as has the supreme court of the United States concerning the same treaty.
Furthermore, if the state can regulate the fishing of the Indians under the guise of police power, it can prohibit, and that in the face of the treaty, for regulation is a part of the power to prohibit and the one but a step toward the other. If the state should prohibit citizens of the state from fishing in any manner upon these streams in question, it would either be compelled to except Yakima Indians not citizens because of the treaty, or include them in the general effect of the law, and thus abrogate the treaty as to those rights — a thing the state cannot do.
I therefore dissent.