The full text of a memorandum dated
August 26 from the Portland regional solicitor
of the U.S. Department of the Interior, setting
forth a legal opinion which confirms the
contention of the Skokomish Indian Tribal
Council that the entire portion of the
Skokomish River adjacent to their reservation
boundary is part of the reservation and
the United States are not foreign nations; S.Ct. 183, 60 L.Ed. 425; United States v.
though distinct political communities, they Romaine. supra
are in a dependent condition; and Chief "** *
Justice Marshall's description, that "they are "It may not be said that the United States
in a state of pupilage," and "their relation to held these lands in trust for the state when
the United States resembles that of a ward to admitted. While it held the land, the United
his guardian" has become more and moreStates had the right to grant for appropriate
appropriate as they have grown less powerful purposes, titles, or rights in the land below the
villages may have been determined by
adjacent weir sites, as with yila 'lqo, the chief
Skokomish settlement, but annually used weir
sites also existed, at least on the Skokomish,
without any nearby village." (at 64)
(That particular site is slightly upstream of
the existing Skokomish Reservation. However,
other weir sites were located on the portion of
precondition to statehood, a requirement that
the people of the state forever disclaim all
right and 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 shall remain under the
IIIIIIIIIIIIIIIIIIIIlllllllll
on
subject to tribal control of non-Indian fishing, and more dependent. * * * high-water mark or tidewater, and, the United the river that was within the reservation. See absolute jurisdiction and control of Congress.
is as follows: "'In construing any treaty between the States having acted in accordance with the Id. at pp. 33-34.) ,, Act of February 22, 1889, Sec. 4, 25 Stat.
United States and an Indian tribe, it must interests of the Indians and the object for Promises under Indian treaties must be 676. Washington accepted this requirement i
To: Area Director, Bureau of Indian Affairs. always (as was pointed out by the counsel for which the right was reserved, and, in this interpreted as they would have understood and incorporated it into Article XXVI of the communities are to
From: Office of the Regional Solicitor, the appellees) be borne in mind that the connection, I think the court may judically them.' Choctaw Nation v. Oklahoma. supra. State Constitution. See State v. Edwards, doubtful expressions
Portland. negotiations for the treaty are conducted, on know that the Indians subsisted during this The language of the Executive Order estab- supra (Swinomish Reservation); Jones v. of the Indians Choate v.
Subject: Skokomish Indian Reservation - the part of the United States, an enlightened time by hunting and fishing, and the tidelands lishing the reservation describes one of its Cailvert, 32 Wash. 616, 73 P. 701 (1903) 675, 56 Led.'941,945,
river boundary, and powerful nation, by representatives were a necessary prerequisite to the enjoyment boundaries as "Beginning at the mouth of the (Tulalip,. Reservation);. Unitedt States v. and cases cited." (pp. 87
You have asked whether the lower portion skilled in diplomacy, masters of a written of fishing, and which was evidenced by the Skokomish River; thence up said river***." O Bnen, 170 F. 508 (Cir. C . D. Wash. W.D. The Skokomish Exe¢
of the Skokomish River, including the portion language, understanding the modes and forms proclamation of the President carrying the - There are only three interpretations that 1940) (Squaxin Island Reservation). contrasted with tlil
within Secs. 6, 7 and 12, T. 21 N., R. 3 W., of creating the various technical estates reservation to low water, and this treaty could possibly be placed upon that language. As recently as 1970 the U. S. Supreme establishing the Hoh R!
W.M., is within and a part of the Skokomish known to their law, and assisted by anyaving been promulgated and these rights The reservation boundary could run up the Court reaffirmed "well settled" holdings that describes that reservati~
Indian Reservation and whether fishing by interpreter employed by themselves; that the having been enjoyed by the Indians from time north bank of the river, up the middle of the the United States can dispose of landsa point in the middle of the
non-lndians on said portion is subject to the treaty is drawn up by them and in their own immemorial and until after the admission of river, or up the south bank. If interpretation underlying navigable waters and said that the River, Jefferson CountY;
provisions of 18 U.S.D. Sec. 1165. In our language; that the Indians, on the other hand, the territory as a state and to the present, the of an agreement with an Indian tribe were not question was whether it intended to convey runnin thence up said ~
opinion the answer to both questions is "yes." are a weak and dependent people, who have defendants may not complain. Shively v.involved, such choice of words would (or perhaps more accurately in the Skokomish chann~g thereof one mile,~
18 U.S.D. Sec. 1165 provides: no writ,en language and are wholly unfamiliar Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 LEd. probably denote a boundary up the middle of case, to reserve) title to the river bed to the the south bank of said rivet
"Whoever, without lawful authority or with all forms of legal expression, and whose 331 ; United States v. Romaine, supra, the river unless they were used to describe a Indians - citing Alaska Pacific Fisheries v. Order of Sept 11, 1893;e~t
permission, willfully and knowingly goes only knowledge of the terms in which the "**"* * * The allotments of the u land did conveyance to a private party in which case United States, 248 U.S. 78, 87 (1918) If it were intendedtO~
upon any land that belongs to any Indian or treaty is framed is that imparted to them by P ' the boundary would be along the near side (Annette Island Reservation); Moore v United Indians to only a ortion 0t
Indian tribe, band, or group and either are the interpreter employed by the Unitednot release the abutting tidelands from the "" • - P 0I
held by the United States in trust or are States; and that the treaty must therefore be reserved right as long as the land is used by the high water mark (meander line). The evidence States, 157 F.2d 760, 763 (9th Cir. 1946) so essential to their way
subject to a restriction against alienation construed, not according to the technical Indians, as here." (pp. 620-621) supports a conclusion that this portion of the (Quileute Reservation); Donnelly v. United a feature in determining
imposed by the United States, or upon any meaning of its words to learned lawyers, but The Indians were assured that they would Skokomish River is a navigable waterway. A States, 228 U.S. 243, 259 (1913) (Hoopa reservation, and whose tel'
lands of the United States that are reserved in the sense in which they would naturally be not have to leave their home at the mouth of 1941 Corps of Engineer map for an Valley Reservation, Extension). prominentlvj in the treat !
for Indian use, for the purpose of hunting, understood by the Indians.' Jones v. M,eehan, the Skokomish River, the principal salmon authorized Flood Control Survey shows the Acknowledging that such 'disposals by the surely this intent would
head of navigation at a point about in Sec. 14, United States during the territorial period are recisel ex ressed - as itl
trapping, or fishing theIeon, or for the 175 U.S. 1, 20 S.Ct. 1, 5, 44 LEd. 49.' State river for the entire Hood Canal area. They P Y P
removal of game, peltries, or fish therefrom, v Edwards et al., 188 Wash 467 62 P 2dwere assured they would not have to give up T. 21 N., R. 4 W., which is within thenot lightly to be inferred, and should not be the Hoh Reservation.
• • • , . , .... reservation but above the point involved here. regarded as intended unless the intention was What the WashingtOn ,
shall be fined not more than $200 or 1094 at 1095 (1936). their old modes of living and places of But this was not a private conveyance, el e
imprisoned not more than ninety days, or Light is shed on the meaning of the treaty seeking food ', that the Great Father will e v
both, and all game, fish and peltries in his to the Indians by the official records of the "protect you in taking fish", that the treaty This was a treaty reservation, 'a reservation of ~f~ Yh: ~a:e~ :rvO£eelW~: vmad:d ~hYe tbOU~xtehc:ttiermReseVve Order"l°w water.f~
(rights) not granted (to the United States)." c,!rcumstances of the grant to the tribe and Indian de"~i
possession shall be. forfeited.", negotiations, which, were conducted with the paperto be "secureSfor the Indians'Y°ur fish.",,use,,TheasreServatiOnwell as theirWaS Winans v. United States, supra. In the the countervailing rule of construction that term'ibegiatl'°nnnmgls ateq the
The Skokomish Indian Reservation was Clallams or S Klallams, Chemakums, and
established pursuant to the Treaty of January -Sko-Komish or Too-an-hooch, also svelled occupation. Choctaw case, supra, the Supreme Court well-founded doubt should be resolved m the Skokomish River, then ut)~
.... noted: (Indians') favor" when construing grants Executive Order f0r~
26, 1 855, with the "Skallams * * * To-an-hooch. These negotiations show thatThe evadence is clear that the Indians used "The grants to petitioners were pursuant to Indian treaties, as compelling it to Reservation"
Skokomish, Toan-hooch and Chemakum several spokesmen for the Skokomish, or weirs which they constructed across the entire ,
Tribes,' 12 Stat. 933. This treaty, known as Too-an-hooch, Indians expressed concern wadth of the Skokomish River as one of the undoubtedly to them as a political society' hold that the river bed belonged to the tribe. " 'Low water mark
Choctaw Nation v Oklahoma, supra " 1 ' in 187~,~
ne asked pnnc~pal means of taking salmon
the Treaty of Point No Point, was ratified about selling their lands. O. ! • • . and any 'well founded doubt' regarding the • • techmca_ meaning d to,
March 8, 1859, and proclaimed April 29, "What shall we eat if we do so? Our only ',* * * the salmon Were easily procured in boundaries must, of course, be resolved in The same conclusion is applicable in the executive order referre
Where t e the rivers and creeks artlcularl in the their favor." case of the lower portion of the Skokomish assumed that the Indians'~
1859. In it the aforementioned Indians ceded, food is berries, deer and salmon. , h n " , P " Y "
relinquished and conveyed to the United shall we find these? * * * I don t like the Skokomish River, and were ordinarily caught It has long been well established that while River. See also United States v. Larry Haug, et affected, knew of any~u¢ll:
• ' r us to live on I am there with traps The Indians had their basic
States all their right, title and interest in place you have chosen fo ,, ' - • . • • • the United States held a domain as a territory, al., Misc. Crim. No. 511, U.S. Dist. Ct. understand the words as l
er wllages up the rivers in sheltered wooded areas it may convey away the right to the bed of a Montana, Billings Div., June 9, 1971 other than that their tights
and to certain described lands along the not ready to sign the pap . " " ' navigable river, not retaining that property for (unpublished ...... opinion), sustaining prosecution far as the water ever recedet~
n Hood Canal Another said close to the rivers and creeks where salmon
Straits of Juan de Fuca a d . " , " under 18 U.S.C. Sec. 1165 for fishing on a their peninsula " State v: /
There was expressly reserved, "I do not want to leave the mouth of the abounded and othergame was readily transfer152 U.S.t°l, 48a future(1894).state. Shively v. Bowlby, navigable river withintheCrow Indian 1095 " e~I ~:
• * * for the present use and occupation River. I do not want to leave my old home, procurable. We cannot doubt, therefore, that " • See also United !
" Reservatmn Stat
of said tribes * * the amount of six sections, and my burying ground. "* *
• . * * * " * Congress has the power to make grants of In The Alaska Pacific Fisheries v. United By each of thetests 11
or 3,840 acres, situated at the head of Hood's The interpreter, a Mr. Shaw, "explained to "* * * the bulk of the salmon catch was lands below high-water mark of navigable States, supra, the Congress had set apart for Supreme Court in the firs
Canal to be hereafter set apart and so far as them that they were not called upon to give made in rivers, with weirs, dip nets and
necessary surveyed and marked out for their up their old modes of living and places of harpoons during late summer and fall runs. wheneverWaters in anYit becomesterrit°rYnecessary°f the Unitedto doStateS'so in Annettethe IndianSislands.,,"a bOdYTheOfsupremelands knowncourtasheldthe thefr°mSkokomishthe AlaSkaRes.ervati 3~Pacific 1~!
exclusive use." (Article 2) seeking food, but only to confine their houses Salt water trolling and netting was of minor order to perform international obligations, or that the reservation included the adjacent as including the enttre ~
Subsequently a specific tract of land along to one spot." importance, in particular to the Skokomish to effect the improvement of such lands for fishing waters and submerged land, tinding Skokomish River. Certl~i
the Skokomish River was selected and with their large river runs of salmon,the promotion and convenience of commerce that the fishing grounds were essential to the Indians with their fisla w
a 5 1874 the Governor Stevens stated "* * *
surveyed• On Febru ry 2 , , ,, . " " " " f 1 ese fish Kin with foreign nations and among the several subsistence and economic development of the dip nei' structures and Ih
The Great Father wants to ut ou River flshm or al th
President signed an Executive Order P Y g ( g' states, or to carry out other public purposes tribe and, accordingly, Congress must have needed to use the a~,
with&awing from sale or other disposition where you cannot be driven away. The Great silver, humpback, dog and steelhead) was appropriate to the objects for which the intended to include them. Skokomish River, the J
and setting*** apart, , Father besides giving you a home will give you primary, with weirs and associated dip .net. United States holds the territory." "As an appreciation of the circumstances livelihood and the t
" for the use of the S Klallam Indians a school, protect you in taking fish, break up structures the most productive method, tPl ,~,
, * * * ,, * ,,
the following tract of country on Hood s your land, give you clothes . . Skokomish Indian Tribe v. France, 320 There can be no question that reservation in which words are used usually is conducive choice of location o ~,
Canal in Washington Territory, inclusive of The Clallams apparently were then ready F.2d 205 at 209 and 211 (9th Cir. 1963) or grant of a river bed to an Indian tribe as and at times is essentiM to a ri~._ht., mise that "this paper gil,,r ~ ~
thesixsecti~nssituatedatthehead~fH~d~*`~.;t~ignt~treatybutth~~s~ig~J~[a~y (quoting findings of-District Cour4~,-gt,D. part of the agreement for cession of the tribe's understanding of them, it is important, in paper secures you .
~~k~Ja~.~tt~g~ Indians wogi~ rather wait until the ne~ ~f~" "Wisli~ B61dt,~Ju ,dge)~ .~ ~i,,,~ ~ • .. , claim to-other lands and as part of a fede%al, app~oachin~ e~ solution of the ques~stated,~>', e'xpe¢:ted to be
purpose to advance ~..the :welfare andto have in ~Ikid~/h~/~dirctiffi~ta~e~In--whiehrhe- -strbstantially""~/u~dtfi'
lanuary ~6i ,~855 * • * described "and .~uld talk~,t-,4~eri Accordingly the'~'~n~l ~' The Supe, rintendent o;f ir/diaii"A'~ffairsf6/ self-sufficiency of the Indians is carrying out reservation Wag created, '- tile' power of fldl[ifled; by a d,;sig~
bounded as follows: Beginning at the mouth was adjourned until the next morning, when Wasl~gton Territory, in" a report dated • ,.
of a public purpose.[l] It should be Congress in the premises, the location and come on to the p.nn,t
of the Skokomish River; thence up said river Governor Stevens again addressed them and January 2, 1862, noted that the S'Klallams
remembered that the peaceful extinguishment character of the islands, the situation and home to remove fish'
to a point intersected by the section lines again assured them, in part" were dissatisfied with their lot on the reserva- of Indian claims by treaty was repeatedly needs of the Indians, and the object to be the Indians.
between sections 15 and 16 of Township 21 "This paper gives you a home. * * * This tion, that many of them will not reside at the
North, in Range 4 West, thence north on said
line * * * thence southerly and easterly along
said Hood's Canal to the place of beginning."
The Executive Order was issued in
fulfillment of a treaty obligation of the
United States. In determining whether the
reservation includes the entire width of the
Skokomish River, certain rules of
construction of Indian treaties should be kept
in mind.
"* * * these treaties are not to be
considered as exercises in ordinary
conveyancing. The Indian Nations did not
seek out the United States and agree upon an
exchange of lands in an arm's-length
transaction. Rather, treaties were imposed
upon them and they had no choice but to
consent. As a consequence, this Court has
often held that treaties with the Indians must
be interpreted as they would have understood
them, see, e.g., Jones V. Meehan, 175 US 1,
11,44 L Ed 49, 54, 20 S Ct 1 (1899), and any
doubtful expressions in them should be
resolved in the Indians' favor." Choctaw
Nation v. Oklahoma, 397 U.S. 615, 620
(1970).
"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.'" U.S.v. Winans, 198 U.S.
371,380 (1905).
"But in the government's dealings with
the Indians the rule (regarding strict
construction of tax exemptions) is exactly the
contrary. The construction, instead of being
strict, is liberal; doubtful expressions, instead
of being resolved in favor of the United States
are to be resolved in favor of a weak and
defenseless people, who are wards of the
nation, and dependent wholly upon its
protection and good faith. This rule of
construction has been recognized, without
exception, for more than a hundred
years, * * *" Choate v. Trapp, 224 U.S. 665,
675(1912).
"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. * * * How the
words of the treaty were understood by this
unlettered people, rather than their critical
meaning, should form the rule of
construction." Worchester v. Georgia, 31 U.S.
(6 Peters) 515,582 (1832).
The Washington State Supreme Court has
ruled in similar language:
"Under well-settled law laid down by the
Supreme Court of the United States, we are
bound to construe the grant contained in the
treaty, as fixed by the executive order, as it
would naturally be understood by the Indians.
'"The Indian tribes within the limits of
Page 16 - Shelton-Mason County Journal
paper secures your fish. Does not a father give
fish to his children? Besides fish you can hunt,
gather roots and berries * * * "
Thereupon the Skokomish chief stated
that "we have thrown away the feeling of
yesterday and are now satisfied." Amid
further expressions of good faith from the
Government representatives, the Indians
signed the treaty.
The boundaries of the area to be set aside
as the Skokomish Reservation were surveyed
18 years later and the survey was approved on
December 2, 1873. (An additional tract on
the north side of the reservation was added
later.) Both the map accompanying.the survey
and the field notes pertaining to it indicate
that the survey extended only to the meander
line on the left bank, or reservation side, of
the Skokomish River. This, however, was in
accordance with usual land surveying practices
and is not relevant to what was promised to
the Indians in consideration for their
acceptance of the treaty. United States v.
Romaine, 225 F. 253 (9th Cir. 1919); United
States v. Stotts, 49 F.2d 619 (W.D. Wash.
1930) (both involving the Lummi
Reservation).
There the Treaty of Point Elliott, 12 Stat.
928, negotiated with other western
Washington tribes by the same treaty
negotiator four days before this treaty, used
the same language with respect to surveying
the reservation - "which tracts shall be set
place and will "only make annual visits to ***
catch fish at their old fishing grounds."
Findings of Fact of the Indian Claims
Commission in Docket No. 296, The
Skokomish Tribe of Indians v. United States
of America (1968), 6 Ind.Cls. Comm. 140.
The Indian Claims Commission has found that
the Skokomish Indians depended "upon a fish
eating economy as the prime means of
subsistence." Id. at 142. Edward S. Curtis in
Volume IX of his publication "The North
American Indian" (1913), observed, "The
dominating cultural influence of the tribes
(Salishan Tribes of the coast) * * * was their
dependence upon seafood." Id. at 143. Dr.
William W. Elmendorf, who has made
extensive studies of the Twana Indians, has
concluded, "Geographic location of winter
village sites accorded with patterns of food
economy." Id. at 144. The Government's
expert witness in the Indian Claims
Commission case, Dr. Carroll R. Riley,
discussing the matter of exclusive use of areas,
stated, "Your feelings of exclusiveness,.
inasmuch as there was a feeling of
exclusiveness, would be in the village area, the
winter village area or perhaps a tiny spot
peripheral to the village area * * * " Id. at
146. Dr. Elmendorf agreed:
"Territorial interests were
indistinguishable from subsistence interests,
and these adhered to useable stretches of
territory. The environs of a winter village
apart, and so far as necessary surveyed and community settlement were used intensively
marked out for their exclusive use." by and regarded as property of that
(Emphasis added) The Executive Order community. Away from the village environs
delineating the Luinmi Reservation was issued meant away from the local watercourse and
November 22, 18731a few months ahead of the feeling of group ownership faded out as
the Skokomish Reservation Order: The urve.y
in that case also went only to the high water
or meander line but the court in Romaine
said:
"The power to survey the lands so
reserved in the treaty was the power to cause
the whole or any portion of the reserved lands
to be surveyed into lots, and to assign the
same to individuals or families for permanent
homes. The land in controversy was not
adapted to such individual use, and there was
no occasion to survey it, or to take from the
Indians on the reservation the common right
to use it for the purposes of fishing and
digging shellfish, or other purposes, and the
surveyor general, in causing the survey to be
made, had no authority to exclude any of the
reserved lands from the boundaries of the
reservation. The error in failing to extend the
survey so as to include the lands in
controversy cannot prejudice the rights of the
Indians."
And in Stotts the court said:
"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
h)atershed drainage area boundaries were
reached." Id. at 148.
The Indians Claims Commission
concluded, "Their economy rests primarily
upon the seasonal uses of the bays and
rivers * * *." ld. at 150.
Dr. Elmendorf, in his extensive study
"The Structure of Twana Culture", published
as Monographic Supplement No. 2, Research
Studies, Washington State University, Vol.
XXVIII, No. 3, Supplement, September 1960,
states:
"The Twana placed five species of
salmonid fishes in a single class and recognized
them as the backbone of their subsistence and
economy. * * * The five kinds were those
usually denoted in western Washington .by the
English terms king, silver, humpback, dog and
steelhead. River fishing for all these fish was
primary, with weirs and associated dip-net
structures the most productive method.
Salmon, as weil as other types of fish, were
also trolled for with hook and line in canoes
in salt water but this method furnished a
relatively small proportion of the catch." (at
59-60, footnotes omitted) ,
Discussing the single-dam salmon weir, Dr.
Elmendorf said:
"These conditions' limited this type of
weir in large rivers, such as the Skokomish, to
fixed sites which became centers of seasonal
congregation. The location of some winter
- Thursday, September 9, 1971
mandated by Contress as a precondition to
widespread settlement and granting of lands
to settlers in the area. See, for example, the
Act of August 14, 1848, 9 Star. 323,
establishing the Oregon Territory, the Act of
June 5, 1850, 9 Star. 437, authorizing the
negotiation of treaties with Indians in the
Oregon Territory west of the Cascade
Mountains, the Act of March 2, 1853, 10 Star.
172, creating Washington Territory out of the
then existing Oregon Territory, the Act of
March 3, 1853, 10 Stat. 226,238, authorizing
treaties with western Indian tribes, and the
Act of July 31, 1854, 10 Star. 315, 380,
making appropriations for negotiating treaties
with Ind;an tribes in Washington Territory.
The Act of August 14, 1848, provided
that nothing contained in it "shall be
construed to impair the rights of person or
property now pertaining to the Indians in said
Territory, so long as such rights shall remain
unextinguished by treaty between the United
States and such Indians* * *." Section 14 of
that act extended the Northwest Ordinance of
1787, 1 Stat. 51, n. a, to the Oregon
Territory. Article 3 of that Ordinace provides
that "good faith shall always be observed
toward the Indians; their lands and property
shall never be taken from them without their
consent."
The Act of June 5, 1850, authorized the
appointment of commissioners to "negotiate
treaties with the several Indian tribes in the
territory of Oregon (which then included the
area now comprising the State of
Washington), for the extinguishment of their
claims to lands lying west of the Cascade
Mountains * * • ,,
The Organic Act of March 2, 1853,
created Washington Territory, provided that
the territorial governor should also be
Superintendent of Indian Affairs, and
provided that nothing in it "shall be construed
to affect the authority of the Government of
the United States to make any regulation
respecting the Indians of said territory, their
lands, property, or other rights, by treaty,
law, or otherwise, which it would have been
competent to the Government to make if this
act had never been passed."
The ApPropriation Act of March 3, 1853,
authorized the President to enter into
negotiation with Indian tribes west of the
States of Missouri and Iowa "for the purpose
of securing the assent of said tribes to the
settlement of the citizens of the United States
upon the lands claimed by said Indians, and
for the purpose of extinguishing the title of
said Indian tribes in whole or in part to said
lands; * * * "
The Appropriation Act of July 31, 1854,
authorized use of appropriations for making
treaties in several territories, including
Washington, prior to July 1, 1855.
And in 1946 Congress, in recognition that
some lands were taken without Indian
consent, or for an inadequate consideration,
enacted the Indian Claims Commission Act,
60 Star. 1049, to make belated recompense.
Moreover, Congress imposed on
Washington and several other states, as a
attained.
"That Congress had power to make the
reservation inclusive of the adjacent waters
and submerged land, as well as the upland,
needs little more than statement. All were the
property of the United States and within a
district where the entire dominion and
sovereignty rested in the United States, and
over whch Congress had complete legislative
authority. National Bank v. Yankton County,
101 U.S. 129, 133, 25 L. ed. 1046, 1047;
Shively v. Bowlby, 152 U.S. 1,47, 48, 58, 38
L. ed. 331, 348, 349, 14 Sup.Ct. Rep. 548;
United States v. Winans, 198 U.S. 371, 383,
49 L. ed. 1089, 1093, 25 Sup.Ct.Rep. 662.
The reservation was not in the nature of a
private grant, but simply a setting apart, 'until
otherwise provided by law,' of designated
public property for a recognized public
purpose, - that of safeguarding and advancing
a dependent Indian people dwelling within the
United States. See United States v. Kagama,
118 U.S. 375,379 et seq., 30 L. Ed. 228,229,
6 Sup. Ct. Rep. 1109; United States v.
Rickert, 188 U.S. 432, 437, 47 L. ed. 532,
536, 23 Sup. Ct. Rep. 478.
"* * * While bearing a fair supply of
timber, only a small portion of the upland is
arable, more than three fourths consisting of
mountains and rocks. Salmon and other fish
in large numbers frequent and pass through the
waters adjacent to the shore, and the
opportunity thus afforded for securing fish
for local consumption and for salting, curing,
canning, and sale gives to the islands a value
for settlement and inhabitance which otherwise
they would not have.
"The ourpose of the Metlakahtlans in
going to the islands was to establish an Indian
colony which would be self-sustaining and
reasonably free from obstacles which attend
the advancement of a primitive people. They
were largely fishermen and hunters,
accustomed to live from the returns of those
vocations, and looked upon the islands as a
suitable location for their colony, because the
fishery adjacent to the shore would afford a
primary means of subsistence and a promising
opportunity for industrial and commercial
development.
',* * *
"The purpose of creating the reservation
was to encourage, assist, and protect the
Indians in their effort to train themselves to
habits of industry, become self-sustaining, and
advance to the ways of civilized life. * * *
"The circumstances which we have recited
shed much light on what Congress intended
by 'the body of lands known as Annette
islands.' The Indians could not sustain
themselves from the use of the upland alone.
The use of the adjacent fishing grounds was
equally essential. Without this the colony
could not prosper in that location. The
Indians naturally looked on the fishing
grounds as part of the islands and proceeded
on that theory in soliciting the reservation. *
"This conclusion has support in the
general rule that statutes passed for the
benefit of dependent Indian tribes or
We cannot state
the Ninth Circuit
Annette Island case
v. United States (9th
281). There, ar here,
aside for the use of the.
their home. .i :.:
"What use?
agriculturalists *
fishermen and
living by fishing
fishing in waters
Island. The island
habitation of these
obtaining their food
immediately
The fact that
secures the right
reservation and
usual and
areas, where theY
non-lndians
impair
of exclusive use
aside for them
Although it
factor in construing
worthy of note
Department of
acknowledges that
part of the
the Skokomish River
from mouth of
Skokomish
Department of
general rule, excl
open areas
Department of
hand, make no
or off the
purport to open
under state game
Conclusion:
Indian treaties
they be construed
them. The
about their source
that the treaty
their fish. TheY,
river for their
fishing require
control over the
and facts to the
Executive Order,
the
the border of the
part of the
For the
George D.
Assistant
[ 1 ] The policy
reaffirmed by
Lands Act o
exempted from
"such lands
any interest in
States for the
group, of Indians
(Act of May
U.S.C. Sec. 131
