United States v. Stotts, 49 F.2d 619 (W.D. Wash. 1930)

*620 Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash.

John H. Dunbar, Atty. Gen., of Washington, and Lester T. Parker, Asst. Atty. Gen., of Washington, for defendants.

NETERER, District Judge (after stating the facts as above).

It is primer law that Indian treaties are to be liberally construed, to the end that Indians will retain the benefits conferred by the treaty at the time of its execution. Jones v. Meehan, 175 U.S. 1, 20 S. Ct. 1, 44 L. Ed. 49; United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089; Mason v. Sams (D. C.) 5 F.(2d) 255.

The Indians' right of occupancy is not predicated upon a grant by the United States, but under a reserved aboriginal right which the Indians inherently held in the land segregated and withheld from the land ceded by the Indians under the treaty. Gaines v. Nicholson, 9 How. (50 U. S.) 356, 13 L. Ed. 172. See, also, United States v. Winans, supra.

The Enabling Act (Rem. Comp. St. Wash. 1922, p. 31, § 4) disclaimed all title to all lands "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."

The executive order defining the limits is conclusive as to the boundaries, and extended to the low-water mark on the shores of the Gulf of Georgia, and thence along this line to the point of beginning at the eastern mouth of the Lummi river. United States v. Romaine (C. C. A.) 255 F. 253.

The right of the Indians to the lands of the reservation was a common right, and the allotment of a part of the reservation to some of the Indians does not destroy the common right to the enjoyment of the unallotted portion for any use to which it was adapted. And the fact that the survey did not include the tidelands cannot prejudice the rights of the Indians. Moss v. Ramey, 239 U.S. 538, 36 S. Ct. 183, 60 L. Ed. 425; United States v. Romaine, supra. "* * * Nor shall any white man be permitted to reside upon the same without permission of the said tribes or bands, and of the superintendent or agent, but, if necessary for the public convenience, roads may be run through the said reserves, the Indians being compensated for any damage thereby done them." Article 2 of Treaty, 12 Stat. 928.

It may not be said that the United States held these lands in trust for the state when admitted. While it held the land, the United States had the right to grant for appropriate purposes, titles, or rights in the land below the high-water mark or tidewater, and, the United States having acted in accordance with the interests of the Indians and the object for which the right was reserved, and, in this connection, I think the court may judicially know that the Indians subsisted during this time by hunting and fishing, and the tidelands were a necessary perquisite to *621 the enjoyment of fishing, and which was evidenced by the proclamation of the President carrying the reservation to low water, and this treaty having been promulgated and these rights having been enjoyed by the Indians from time immemorial and until after the admission of the territory as a state and to the present, the defendants may not complain. Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L. Ed. 331; United States v. Romaine, supra.

Each treaty and proclamation must rest upon its own provisions. The Quilayute Indian Reservation proclamation by President Cleveland does not contain any inference that the reserve for the Indians extended below high tide or included lands covered by the navigable waters adjoining the land conveyed. See Taylor et al. v. United States (9th Circuit) 44 F.(2d) 531.

The reservation of the tideland was made very plain by definite declaration in extending it to low tide (United States v. Holt, 270 U.S. 49, 46 S. Ct. 197, 70 L. Ed. 465), and the purpose is clear in article 5 of the Treaty, where the right to take fish on the usual and accustomed grounds and stations is reserved (12 Stat. 928), and, as said by the Supreme Court in United States v. Holt, supra, at page 59 of 270 U. S., 46 S. Ct. 197, 199: "It follows * * * that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was * * * made very plain."

In United States v. Holt, supra, there was nothing approaching a right to the underlying mudlake, nor anything indicating any purpose to withhold the land from the future state. In this case there is the specific declaration and the enjoyment during the entire period by the Indians.

There is nothing to show that the Indians have abandoned the reservation nor have allotments been made to all, and the reserved right is common to all. The allotments of the upland did not release the abutting tidelands from the reserved right as long as the land is used by the Indians, as here. There is nothing in United States v. Ashton (C. C.) 170 F. 509, nor in United States v. Holt, supra, relied upon by the defendants, against this conclusion. Every contention on the part of the government is fairly within the holding of the court in United States v. Romaine, supra.

Decree for plaintiff.