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and, so far as necessary, surveyed and marked out, for the exclusive use and benefit of said confederated tribes and bands of Indians as an Indian reservation; nor shall any white man, excepting those in the employment of the Indian Department, be permitted to reside upon the said reservation without permission of the tribe and the superintendent and agent. And the said confederated tribes and bands agree to remove to and settle upon the same within one year after the ratification of this treaty. In the meantime it shall be lawful for them to reside upon any ground not in the actual claim and occupation of citizens of the United States, and upon any ground claimed or occupied, if with the permission of the owner or claimant.

"Guaranteeing, however, the right to all citizens of the United States to enter upon and occupy as settlers any lands not actually occupied and cultivated by said Indians at this time, and not included in the reservation above named. .

"Article 3. And provided that, if necessary for the public convenience, roads may be run through the said reservation; and, on the other hand, the right of way, with free access from the same to the nearest public highways, is secured to them, as also the right, in common with citizens of the United States, to travel upon all public highways.

"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 In dians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the territory, and of erecting temporary buildings for curing them, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.

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"Article 10. And provided that there is also reserved and set apart from the lands ceded by this treaty, for the use and benefit of the aforesaid confederated tribes and bands, a tract of land not exceeding in quantity one township of six miles square, situated at the forks of the Pisquouse or Wenatshapam river, and known as the 'Wenatshapam fishery,' which said reservation shall be surveyed and marked out whenever the President may direct, and be subject to the same provisions and restrictions as other Indian reservations." 12 Stat. at L. 951.

The respondents or their predecessors in title claim under patents of the United States the lands bordering on the Columbia river, and under grants from the state of Washington to the shore land which, it is alleged, fronts on the patented land. They

also introduced in evidence licenses from the state to maintain devices for taking fish, called fish wheels.

At the time the treaty was made the fishing places were part of the Indian country, subject to the occupancy of the Indians, with all the rights such occupancy gave. The object of the treaty was to limit the occupancy to certain lands, and to define rights outside of them.

The pivot of the controversy is the construction of the second paragraph. Respondents contend that the words "the right of taking fish at all usual and accustomed places in common with the citizens of the territory" confer only such rights as a white man would have under the conditions of ownership of the lands bordering on the river, and under the laws of the state, and, such being the rights conferred, the respondents further contend that they have the power to exclude the Indians from the river by reason of such ownership. Before filing their answer respondents demurred to the bill. The court overruled the demurrer, holding that the bill stated facts sufficient to show that the Indians were excluded from the exercise of the rights given them by the treaty. The court further found, however, that it would "not be justified in issuing process to compel the defendants to permit the Indians to make a camping ground of their property while engaged in fishing." 73 Fed. 72. The injunction that had been granted upon the filing of the bill was modified by stipulation in accordance with the view of the court.

Testimony was taken on the issues made by the bill and answer, and upon the submission of the case the bill was dismissed, the court applying the doctrine expressed by it in United States v. Alaska Packers' Asso. 79 Fed. 152; United States v. The James G. Swan, 50 Fed. 108, expressing its views as follows:

"After the ruling on the demurrer the only issue left for determination in this case is as to whether the defendants have interfered or threatened to interfere with the rights of the Indians to share in the common right of the public of taking fish from the Columbia river and I have given careful consideration to the testimony bearing upon this question. I find from the evidence that the defendants have excluded the Indians from their own lands, to which a perfect, absolute title has been acquired from the United States government by patents, and they have more than once instituted legal proceedings against the Indians for trespassing, and the defendants have placed in the river in front of their lands fishing wheels for which licenses were granted to them by the state of Washington, and they

claim the right to operate these fishing | as though described therein. There was an wheels, which necessitates the exclusive possession of the space occupied by the wheels. Otherwise the defendants have not molested the Indians nor threatened to do so. The Indians are at the present time on an equal footing with the citizens of the United States who have not acquired exclusive 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."

The remarks of the court clearly stated the issue and the grounds of decision. The contention of the respondents was sustained. | 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 would have without the treaty. 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." [Choctaw Nation v. United States] 119 U. S. 1, 30 L. ed. 306, 7 Sup. Ct. Rep. 75; [Jones v. Meehan] 175 U. S. 1, 44 L. ed. 49, 20 Sup. Ct. Rep. 1. How the treaty in question was understood may be gathered from the circumstances.

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. In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them,a reservation of those not granted. 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

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, 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 United States and its grantees as well as against the state and its grantees.

The respondents urge an argument based upon the different capacities of white men and Indians to devise and make use of instrumentalities to enjoy the common right. Counsel say: "The fishing right was in common, and aside from the right of the state to license fish wheels, the wheel fishing is one of the civilized man's methods, as legitimate as the substitution of the modern combined harvester for the ancient sickle and flail." But the result does not follow that the Indians may be absolutely excluded. It needs no argument to show that the superiority of a combined harvester over the ancient sickle neither increased nor decreased rights to the use of land held in common. In the actual taking of fish white men may not be confined to a spear or crude net, but it does not follow that they may construct and use a device which gives them exclusive possession of the fishing places, as it is admitted a fish wheel does. Besides, the fish wheel is not relied on alone. Its monopoly is made complete by a license from the state. The argument based on the inferiority of the Indians is peculiar. If the Indians had not been inferior in capacity and power, what the treaty would have been, or that there would have been any treaty, would be hard to guess.

The construction of the treaty disposes of certain subsidiary contentions of respondents. The Land Department could grant no exemptions from its provisions. It makes no difference, therefore, that the patents issued by the Department are absolute in form. They are subject to the treaty as to the other laws of the land.

It is further contended that the rights conferred upon the Indians are subordinate to the powers acquired by the state upon

its admission into the Union. In other | effect the improvement of such lands for the words, it is contended that the state ac- promotion and convenience of commerce quired by its admission into the Union "up with foreign nations and among the several on an equal footing with the original states, or to carry out other public purposes states," the power to grant rights in or to appropriate to the objects for which the dispose of the shore lands upon navigable United States hold the territory." streams, and such power is subject only to The extinguishment of the Indian title, the paramount authority of Congress with opening the land for settlement, and preregard to public navigation and commerce. paring the way for future states, were apThe United States, therefore, it is contend-propriate to the objects for which the ed, could neither grant nor retain rights in United States held the territory. And surely the shore or to the lands under water.

The elements of this contention and the answer to it are expressed in Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548. It is unnecessary, and it would be difficult, to add anything to the reasoning of that case. The power and rights of the states in and over shore lands were carefully defined, but the power of the United States, while it held the country as a territory, to create rights which would be binding on the states, was also announced, opposing the dicta scattered through the cases, which seemed to assert a contrary view. It was said by the court, through Mr. Justice Gray:

"Notwithstanding the dicta contained in some of the opinions of this court, already quoted, to the effect that Congress has no power to grant any land below high-water mark of navigable waters in a territory of the United States, it is evident that this is not strictly true.

"By the Constitution, as is now well settled, the United States having rightfully acquired the territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and state, over all the territories, so long as they remain in a territorial condition. American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542, 7 L. ed. 243, 255; Benner v. Porter, 9 How. 235, 242, 13 L. ed. 119, 122; Cross v. Harrison, 16 How. 164, 193, 14 L. ed. 889, 901; First Nat. Bank v. Yankton County, 101 U. S. 129, 133, 25 L. ed. 1046, 1047; Murphy v. Ramsey, 114 U. S. 15, 44, 29 L. ed. 47, 57, 5 Sup. Ct. Rep. 747; Church of Jesus Christ, L. D. S. v. United States, 136 U. S. 1, 42, 43, 34 L. ed. 478, 490, 491, 10 Sup. Ct. Rep. 792; McAllister v. United States, 141 U. S. 174, 181, 35 L. ed. 693, 695, 11 Sup. Ct. Rep. 949."

Many cases were cited. And it was further said:

"We cannot doubt, therefore, that Congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to

it was within the competency of the nation to secure to the Indians such a remnant of the great rights they possessed as "taking fish at all usual and accustomed places." Nor does it restrain the state unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised.

The license from the state, which respondents plead, to maintain a fishing wheel, gives no power to them to exclude the Indians, nor was it intended to give such power. It was the permission of the state to use a particular device. What rights the Indians had were not determined or limited. This was a matter for judicial determination regarding the rights of the Indians and rights of the respondents. And that there may be an adjustment and accommodation of them the Solicitor General concedes and points out the way. We think, however, that such adjustment and accommodation are more within the province of the circuit court in the first instance than of this court.

Decree reversed, and the case remanded for further proceedings in accordance with this opinion.

Mr. Justice White dissents.

(198 U. S. 385) CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY, Appt.,

v.

UNITED STATES.

Postoffice-railway mail routes—compensation-adjustment.

The adjustment of compensation to a railway company for carrying the mails, made by the Postmaster General in the exercise of his authority under U. S. Rev. Stat. § 4002, U. S. Comp. Stat. 1901, p. 2719, to arrange the railway routes upon which the mail is to be carried, and to adjust and readjust compensation, may be confined, where an extension is made beyond the terminal of an established mail route, to the extension alone, without readjusting the compensation for the whole route as extended.

[No. 198.]

Submitted April 16, 1905. Decided May 15, | Milwaukee & Northern Railroad Company

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held its last stockholders' meeting and its last directors' meeting, and since that time it has not exercised any corporate functions or powers, nor has it pretended to do anything of the sort."

The United States demurred to the petition on the grounds that (1) "The claim came to the claimant, if at all, by a pretended assignment, which, as to the United States, was void; (2) the allegations of the amended petition did not state facts sufficient to constitute a claim against the

Mr. Justice McKenna delivered the opin- | United States." The demurrer was sustained ion of the court: and the petition dismissed, whereupon this appeal was taken.

The appellant, a Wisconsin corporation, filed a petition in the court of claims, August 25, 1896, which it amended July 19, 1900, and by which it sought recovery from the United States of the sum of $9,101.08, for compensation for carrying the mails from Milwaukee, Wisconsin, to Republic, Michigan, and thence to Champion, Michi

gan.

The services were rendered by the Milwaukee & Northern Railroad Company. Appellant's ownership was derived from that company, as alleged in the petition, as follows:

"Your petitioner further avers that on the 30th day of September, 1890, it become the purchaser, and thereupon it became the lawful owner, by assignment and transfer, of all of the capital stock of the said Milwaukee & Northern Railroad Company; that on the 1st day of October, 1890, the board of directors of the Milwaukee & Northern Railroad Company was reorganized by the election of persons who were either directors or officers of the petitioner, and the offices were filled by the election of persons who were officers of its company, with the solitary exception of the president of the Milwaukee & Northern Railroad Company; that from the 30th day of September, 1890, until the 26th day of June, 1893, that company operated the railroad as a separate organization and in the name of the Milwaukee & Northern Railroad Company; that on the 26th day of June, 1893, pursuant to a vote of the stockholders of the Milwaukee & Northern Railroad Company, the latter company executed a deed to the petitioner, whereby it conveyed to petitioner all its railroads, railways, rights of way, depot grants, tracks, bridges, etc., and also all other property and choses in action whatsoever, both real and personal, of the said Milwaukee & Northern Railroad Company, and all its rights, privileges, and corporate franchises connected with or relating to such railroad, or to the construction, maintenance, use, or operation of the same. And that thereafter, to wit, August 28, 1893, the

The demurrer presented the questions of the validity of the assignment and the merits of the claim. We rest our decision on the latter. We express no opinion of the validity of the assignment.

The Milwaukee & Northern Railroad ran from Wilwaukee, Wisconsin, to Republic, Michigan, a distance of 255.37 miles. Under the authority given him by law, "to arrange the railway routes on which mail is carried" (§ 3997 of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, p. 2717), the Postmaster General designated the road from Milwaukee to Republic as postal route No. 139,016, and compensation was fixed for carrying the mails thereon. On February 4, 1890, the road was extended to Champion, Michigan, a distance of 8.89 miles. Provision was made for the extension by an order dated February 4, 1890, which directed that service should be extended from Republic to Champion, increasing distance 9.16 miles, less .27 miles, making a net increase of 8.89 miles, "in accordance with distance circular, and with the understanding that the rate of compensation on this extension will be adjusted in a subsequent order, in accordance with law."

On December 1, 1890, the following order was made and directed to the general manager of the railroad:

Sir: The compensation for the transportation of mails, etc., on route No. 139,016, between Milwaukee, Wisconsin, and Champion, Michigan, has been fixed from September 23, 1890, to June 30, 1891 (unless otherwise ordered), under acts of March 3, 1873 [17 Stat. at L. 556, chap. 231], July 12, 1876 [19 Stat. at L. 78, chap. 179], and June 17, 1878 [20 Stat. at L. 140, chap. 259], upon returns showing the amount and character of the service for thirty successive working days, commencing September 23, 1890, at the rate of $35,022.37 per annum, being $132.53 per mile for 264.26 miles.

From February 24 to September 22, 1890, pay is allowed at the rate of $1,178.19 per

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annum, being $132.53 per mile for 8.89 miles | hundred pounds, seventy-five dollars; one extension between Republic and Champion, Michigan.

This adjustment is subject to future orders and to fines and deductions.

It will be observed that this order purports to fix the compensation on route 139,016 between Milwaukee and Champion.

The dates designated are somewhat confusing. However, in two days another order was issued and directed to the company,

which reads as follows:

Sir: The compensation for the transportation of mails, etc., on route No. 139,016, between Republic and Champion, Michigan, has been fixed from February 24, 1890, to June 30th, 1891 (unless otherwise ordered), under acts of March 3, 1873, July 12, 1876, and June 17, 1878, upon returns showing the amount and character of the service for thirty successive working days, commencing September 23, 1890, at the rate of $1,178.19 per annum, being $132.53 per mile

for 8.89 miles extension.

This adjustment is subject to future orders and to fines and deductions.

The first order revoked the compensation for carrying the mails from Milwaukee to Republic, which had been fixed, and was manifestly a mistake. The second order was intended to correct the mistake, and confine the adjustment to the extension from Republic to Champion.

The contention of appellant is that the Postmaster General had no power to issue the second order, but was required by § 4002 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 2719) to fix compensation for the whole route as extended. The appellant urges in support of the contention not only the provision of the section, but the practice and usage of the Post Office Department. Section 4002 is as follows:

"The Postmaster General is authorized and directed to readjust the compensation hereafter to be paid for the transportation of mails on railroad routes upon the conditions and at the rates hereinafter mentioned:

"First. That the mails shall be conveyed with due frequency and speed; and that sufficient and suitable room, fixtures, and furniture, in a car or apartment properly lighted and warmed, shall be provided for route agents to accompany and distribute the mails.

"Second. That the pay per mile per annum shall not exceed the following rates, namely: On routes carrying their whole length an average weight of mails per day of two hundred pounds, fifty dollars; five

thousand pounds, one hundred dollars; one thousand five hundred pounds, one hundred and twenty-five dollars; two thousand pounds, one hundred and fifty dollars; three thousand five hundred pounds, one hundred and seventy-five dollars; five thousand pounds, two hundred dollars, and twentyfive dollars additional for every additional two thousand pounds, the average weight to be ascertained, in every case, by the actual weighing of the mails for such a number of successive working days, not less than

thirty, at such times, after June thirtieth, eighteen hundred and seventy-three, and not less frequently than once in every four years, and the result to be stated and verified in such form and manner as the Postmaster General may direct."

The section does not sustain the appellant's contention. The Postmaster General is given the power to arrange the railway routes upon which the mail is to be carried, and to adjust and readjust compensation.

The orders of December 1 and December 3, respectively, reserved this power, and the only limitations on its exercise, expressed in § 4002, is as to the manner of ascertaining the rate, which is to be by the average weight of the mails. There is nothing in the section which requires the abrogation of prior contracts when an extension is made beyond the terminal of an established route, or precludes provision for the extension alone. A contract may not be forced upon a railway. It may accept, however, and become bound by the action of the Post Office Department. Eastern R. Co. v. United States, 129 U. S. 391, 32 L. ed. 730, 9 Sup. Ct. Rep. 320. The record does not show any protest against the order of December 3. Its terms were unmistakable, and, as counsel for the government observes, "it may be justly inferred" that the railroad company "viewed the order of December 3 in the same light, and as having the same force and effect, as intended by the postal authorities." Judgment affirmed.

(198 U. S. 390) ALICE I. BIRRELL, Plff. in Err.,

v.

NEW YORK & HARLEM RAILROAD COMPANY and New York Central & Hudson River Railroad Company. (No. 202.)

PATRICK KIERNS, Executor and Trustee of John Kierns, Deceased, Plff. in Err.,

v.

NEW YORK & HARLEM RAILROAD COMPANY and New York Central & Hudson River Railroad Company. (No. 203.) Contracts-impairment of obligation-effect of judicial decisions.

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