(dissenting).
I find myself in disagreement with the foregoing opinion. I think the trial court was correct in its decision.
I concede that treaties with the Indians should be interpreted as “that unlettered people” understood them. Doubts should be resolved in favor of the Indians. Their rights exist not by virtue of a grant from the government but because they were *549reserved to them. So viewing the treaty of July 16, 1855, I do not find in it any reservation of an exclusive right in the Indians to hunt as held in the majority opinion, nor do I think the Indians as a whole think so. That is why the tribal council passed the ordinance referred to in the majority opinion.
Article 3 of the treaty is the one involved here. It provides: “The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accuseustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.” 12 Stat. 975.
The word “exclusive” qualifies only the first sentence in the section. The second sentence expressly negatives any exclusive right in the Indians because it reserves only the right “in common with the citizens of the Territory.” The third sentence does not revive the word “exclusive” as used in the first sentence. Under no possible construction of the third sentence of Article 3 were the hunting rights ever intended to be exclusive. It simply reserved the right of hunting upon “open and unclaimed land.”
The land in question here was not open and unclaimed land. It was land to which a patent in fee had been given by the federal government.
Under section 4 of the Enabling Act, in speaking of Indian lands, it is provided 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 nf the United States * * *.” Ordinance 1, paragraph second of the constitution contains the same provision. Yol. 1, R. C. M. 1947, p. 293.
After title to the land has been extinguished the federal jurisdiction ceases and jurisdiction vests in the state. The rule *550applicable here was stated in State v. Big Sheep, 75 Mont. 219, 243 Pac. 1067, 1071, as follows:. “If defendant is a ward of the government, and the act was committed by him upon land to which the United States has relinquished title, the state has jurisdiction * * *. "We conclude, therefore, that, if the defendant * * * committed the offense upon land to which the United States has relinquished title, he is subject to the jurisdiction of the courts of this state for the offense committed; otherwise he is not.”
Most of the cases cited and relied on in the majority opinion are cases involving the right to fish and pertain to a different clause in the treaty from the one we are considering here. They were considering the clause giving the Indians the reserved right to fish at all “usual and accustomed places”. That is quite different from the provision before us reserving the right to hunt on all ‘ ‘ open and unclaimed land. ’ ’ But even in case of fishing rights under the second sentence of paragraph 3 of the treaty the courts concede the right of the state to place reasonable regulations regarding the time of fishing.
* In the case of United States v. Winans, 198 U. S. 371, 25 S. Ct. 662, 665, 49 L. Ed. 1089, the principal case relied on, the court was careful to point out that the treaty permitted reasonable state regulation. The court on that point said: “Nor" does it restrain the state unreasonably, if at all, in the regulation of the right.”
And in Tulee v. Washington, 315 U. S. 681, 62 S. Ct. 862, 864, 86 L. Ed. 1115, the court had before it the question of the right of the state of Washington to impose a license fee upon Indians for the privilege of catching fish in usual and accustomed places at a point outside the reservation but which was within the territory originally ceded by the Indians. The conrt stated: “We think the state’s construction of the treaty is too narrow and the appellant’s too broad; that while the treaty leaves the state with power to impose on Indians equallyvwith others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for *551the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.”
But whatever the rule may be as to fishing rights, it is clear that Article 3 of the treaty does not reserve hunting rights on patented land.
My associates place reliance on the case of State v. Arthur, 74 Idaho 251, 261 Pac. (2d) 135, 141, which dealt with a treaty identical with Article 3 of the treaty we are considering so far as hunting rights are concerned. The defendant was there charged with killing a deer out of season on National Forest land, outside the boundaries of the Indian reservation but within the exterior boundaries of lands ceded to the federal government by the Indian tribe. The court held that defendant had the right to hunt and kill deer on the lands in question. It reached this conclusion because the land where the deer was killed was ‘ ‘ ‘ open and unclaimed land ’ ’ ’ within the meaning of the treaty. The court on this point said: “ It will at once become apparent that the meaning of ‘open and unclaimed land’, as employed in the treaty, becomes more meaningful. It was intended to include and embrace such lands as were not settled and occupied by the whites under possessory rights or patent or otherwise appropriated to private ownership and was not intended to nor did it exclude lands title to which rested in the federal government, hence the National Forest Reserve upon which the game in question was killed was ‘open and unclaimed land.’ ”
Since the land where the antelope was killed by defendant here was not ‘‘open and unclaimed land” that case is not applicable here.
I do not attach much importance to Chapter 198, - Laws of 1947, so far as this case is concerned. The preamble recites that the treaty of July 16, 1855, gave to the Indians the exclusive right to fish and hunt on the Flathead Indian reservation, and the privilege of hunting in their usual hunting grounds on large areas of Montana. There is nothing in the treaty of July 16, 1855, which justifies such a statement. Obviously the preamble to the bill, or even the bill itself, could not alter the treaty pro*552vision. The general rule is that the preamble to a bill is not an essential part of it and that it neither enlarges nor confers powers. Portland Van & Storage Co. v. Hoss, 139 Or. 434, 9 Pac. (2d) 122, 81 A. L. R. 1136.
Whether the tribal court had jurisdiction to impose a fine upon defendant for violating the tribal ordinance is not before us in this action. The only question here is did the lower court have jurisdiction to do what it did. I think it did. Though perhaps not material it is noteworthy that the only evidence in the record indicates that the tribal court proceeded with the proceedings after the defendant was arrested in the state court.
I may say in passing that in my opinion this case is not comparable to a case where the laws of more than one sovereignty have been violated. Here either the tribal courts or the state courts had jurisdiction. Both cannot have jurisdiction over the same offense committed at the same place. It is my view that the state court had jurisdiction and that the tribal court did not have jurisdiction. The double penalty is improper but relief in my opinion should come from the tribal court which did not have jurisdiction.
I think the district court was right and that the judgment should be affirmed.