State v. Towessnute, 89 Wash. 478, 154 Pac. 805 (1916).


          [No. 13083. Department Two. February 4, 1916.]
               THE STATE OF WASHINGTON, Appellant, v.
                ALEC TOWESSNUTE, Respondent. 1

INDIANS - RIGHTS AND TITLE TO SOIL - EFFECT OF TREATY. The
prior occupancy of American soil by the Indian tribes did not vest
them with sovereignty or any title to the land that was ever
recognized by the white race, the Indian being merely an occupant
with possessory uses for subsistence, and a favored ward of the
Federal government.
SAME. The fact of Indian sovereignty and title to the land is
not admitted by a document called a "treaty" with the tribe as a
"nation" in prior possession, in terms which "concede," "convey,"
and "relinquish," rights to the Federal government.

SAME - INDIAN TREATY - CONSTRUCTION. An Indian treaty,
interpreted as a provision from a guardian of the tribe, should be
construed toward benevolence to the Indians, but with due regard
to the rights of the whites.

SAME - INDIAN TREATY - RIGHT TO FISH OUTSIDE RESERVATION -
EASEMENT - STATE REGULATIONS. The Indian treaty of 1859 (12 Stat.
at L. 951) securing to the Yakimas the exclusive right of taking
fish in all the streams running through or bordering upon the
reservation, and "also the right of taking fish at all usual and
accustomed places in common with citizens of the territory,"
merely grants an easement for ancient fishing places outside the
reservation, in common with the whites, upon equal terms, subject
to state regulation and laws requiring a fishing license.

CONSTITUTIONAL LAW - POLICE POWER - CONSERVATION OF FISH.
The police power is not confined to subjects of safety, but
extends to those of convenience and prosperity, including the
conservation of fish.

INDIANS - INDIAN TREATIES - CONSTITUTIONAL LAW - POLICE
POWERS. An Indian treaty will be held impliedly repealed by the
act admitting


1 Reported in 154 Pac. 805.

                         STATE v. TOWESSNUTE.                479
 Feb. 1916                   Opinion Per BAUSMAN, J.

a state to the Union, rather than that the state be crippled in
its police power.

INDIANS - INDIAN TREATIES - STATES - ADMISSION. An Indian
treaty respecting fishing rights in a territory cannot impair the
power of Congress to admit the territory to statehood upon terms
of sovereignty equal to that of the other states.
HOLCOMB, J., dissents.

Appeal from a judgment of the superior court for Benton
county, Linn, J., entered June 10, 1915, upon sustaining a
demurrer to the informations, dismissing consolidated
actions for the violations of laws relating to the taking of fish.
Reversed.

The Attorney General, C. W. Fristoe, and L. L. Thompson,
for appellant.

Francis A. Garrecht, for respondent.

BAUSMAN

BAUSMAN, J. - It is conceded, by stipulation and in
argument, that the Indian, Towessnute, tribal inhabitant of the
Yakima Indian reservation, has committed violations of our
fishing statutes on the Yakima river, not only several miles
outside of the reservation, but at a spot in no way
appurtenant to it by path or easement. It is also conceded that,
if his tribe may continue to do these things, the salmon
industry of this state must be grievously wounded in its very
nurseries, because the Yakimas and other tribes, whose
contentions in cases now pending are the same, claim many
such spots on various waters to be exempt from these
statutes, and because these people, once savage and wandering,
have become settled in their modes of life and frequently
pursue fishing for a profit. The habits of salmon in
seeking at certain seasons the highest fountains of our streams
to spawn in are well known, and such is their persistence and
thronging at the entrance to them and at either rapids or
dams that the state has found it imperative to save them at
such places by regulations.

 480    STATE v. TOWESSNUTE.
                     Opinion Per BAUSMAN, J.          89 Wash.

These considerations, together with what we conceive to
be a misunderstanding of certain Federal decisions, make it
best to discuss this case somewhat at length. Inconvenience
or loss to ourselves, however great, is no ground, indeed, for
taking away any rights that the Indians may actually
possess; but is proper to be considered, in deciding from a
dubious document, whether Congress, looking to the future
of this commonwealth, ever intended to bestow them.

What Towessnute did contrary to the statute was to fish
without a license, snag salmon with a gaff hook, and catch
fish without hook or line within a mile of the dam. These
acts constitute, for the purpose of this discussion, one
offense, since all were committed at one place where Indian
privileges are asserted to justify them. Towessnute's
defense is that his manner of fishing was ancient in his tribe
and the spot an immemorial resort where he required no
license. The lower court justified him under the Yakima
treaty of March, 1859 (12 Stat. at Large, 951), which was
passed after Washington had been made a territory with
legislative power over "all rightful subjects of legislation,"
and which, after creating a reservation whither the Yakimas
should retire, provided:

"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
Indians, 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."

The reasoning was that the words "in common with" would
be unduly stretched if the Indians were to be subjected, even
at a fishing resort beyond the reservation, to state
regulation. All that he lost by that phrase, it was contended, was
that the white man might fish there too. Within the

                          STATE v. TOWESSNUTE.                481
 Feb. 1916                    Opinion Per BAUSMAN, J.

reservation, only the Indian might fish; outside, both; the
former in his old way, the white man as the state should
prescribe. To express the argument concisely, the Indian,
as a sovereign, merely yielded a partnership. The old
locations were his before the treaties; by that convention he
admitted the white man, but the white man got only what the
Indian clearly conceded. In terms, indeed, the treaty,
mentioning' nothing of the manner of fishing, secured to the
Indian only the place. But it was not necessary to secure the
manner also in express terms. Not surrendered, it was
retained. In support of this argument, counsel point to the
priority of the Indian's possession; to the fact that the
document is called a treaty; that this treaty deals with the
Yakimas as a "nation ;" and that the words on the Indian
side are "concede," "convey," and "relinquish." In short,
the Yakimas kept the reservation and ceded the outside
places on their own terms.

The premise of Indian sovereignty we reject. The treaty
is ,tot to be interpreted in that light. At no time did out'
ancestors in getting title to this continent ever regard the
aborigines as other than mere occupants, and incompetent
occupants, of the soil. Any title that could be had from
them was always disdained. From France, from Spain, from
Mexico, and from England we have ever proclaimed our
title by purchase, by conquest, and by cession, in all of
which great transactions the migratory occupant was
ignored. Only that title was esteemed which came from white
men, and the rights of these have always been ascribed by
the highest authority to lawful discovery of lands, occupied,
to be sure, but not owned by any one before. Johnson v.
McIntosh, 8 Wheat. 543. If in Worcester v. Georgia, 6 Pet.
515, the supreme court speaks of the Indians having
something which the whites had yet to purchase, it was not title,
but mere possessory uses for subsistence. Later cases
continue to plant our title on discovery. Martin v. Waddell,

 482    STATE v. TOWESSNUTE.
                     Opinion Per BAUSMAN, J.           89 Wash.

16 Pet. 367, 409; United States v. Rogers, 4 How. 567, 572.

The Indian was a child, and a dangerous child, of nature,
to be both protected and restrained. In his nomadic life he
was to be left, so long as civilization did not demand his
region. When it did demand that region, he was to be
allotted a more confined area with permanent subsistence. True,
arrangements took the form of treaty and of terms like
"cede", "relinquish," "reserve." But never were these agreements
between equals. Even when we dealt with a "nation" the
Indians were not "within the description . . . of an in
dependent state or sovereign nation, but of an Indian
tribe . . . wards of the nation . . . communities dependent
on the United States . . . the recognized relation . . .
that between a superior and an inferior." Choctaw Nation
v. United States, 119 U.S. 1, 27.

These arrangements were but the announcement of our
benevolence which, notwithstanding our frequent frailties,
has been continuously displayed. Neither Rome nor
sagacious Britain ever dealt more liberally with their subject
races than we with these savage tribes, whom it was generally
tempting and always easy to destroy and whom we have so
often permitted to squander vast areas of fertile land before
our eyes.

The treaty, then, interpreted as provision from the great
guardian of this tribe, should be construed toward
benevolence,. and even be bent somewhat toward the Indian's notion
of his rights. On the other hand, the children of the donor
are not to be ignored. The whites, too, were to enjoy, and
enjoy by right, the waters and the soil. The document must
be read from that point of view as well.

But suppose in it a purpose solely of protecting the
Indian, we must here first inquire what was particularly aimed
at in allowing him these outside resorts of fishery, when the
reservation itself is watered by the Yakima and other streams.
It could not have been to insure the Indian's existence. It
certainly was not done out of a fear that he would not find

                         STATE v. TOWESSNUTE.                483
 Feb. 1916                   Opinion Per BAUSMAN, J.

within the reservation sufficient food. For if that was in
the mind of the donor or of the Indian, why was the white
man allowed to share these resorts? Nothing could, be
plainer than that the numbers of the white fishers, their
advancing population, and their encroaching towns and mills
would speedily render the reserved fishing spot worthless.
Accordingly, those who deem these locations of vital
importance to the Indian must surely wonder why Congress failed
to state in positive words that these resorts too were to
remain exclusively the Indian's. Why were they not declared
inviolate on both banks of all the streams and forever?

Not only was this not said, but there is inserted the words
"in common with citizens of the territory." Such as argue
that the Indians relied on either the literal words or the
general spirit of this treaty must acknowledge that this
expression is perfectly plain; that the Indian expressly
admitted the white man to these locations, and that he did not
deem it indispensable to keep the white man off them
altogether. It must be assumed that the Indians understood
this simple phrase. In our opinion, they did understand it
and did not object to it; but, since it is asserted to be
historically true that there was great discontent among the
Yakimas concerning this treaty, and that some of their
chiefs refused to sign it, it is possible that they understood
this privilege as we understand it, and that this feature was
one of the things not acceptable to them.

As for Congress and the intent of that body, it was not
unaware that Indians when off the reservation have ever been
subject to the criminal laws of the states and territories;
that the police power is indispensable to any commonwealth,
and that the right of regulating fish and game is a proper
exertion of such a right. Geer v. Connecticut, 161 U.S. 519;
State v. Tice,
69 Wash. 403, 125 Pac. 168, 41 L. R. A. (N.
S.) 469; Sligh v. Kirkwood, 237 U.S. 52.

Was it, then, intended that the Yakimas, at ancient places
of fishing outside of their reservation, were forever to fish as

 484    STATE v. TOWESSNUTE.
                     Opinion Per BAUSMAN, J.           89 Wash.

they pleased and when they pleased, ignoring the
regulations of the future commonwealth for the preservation of
what would keep such a place useful to both parties in
interest? Surely it is not fretful to suppose that the treaty
gave to the Indians the exclusive part of their privileges in
the reservation and that nothing better than equality with
the white man was given outside of it. Let us consider the
situation at that time. The Indian already saw the approaching
end of his rovings, already felt it best to get an
area that should be his alone. His hunting ground already
narrowed by the settlements, he was really giving up little.
By the treaty he was gaining an exclusive domain of eight
hundred thousand acres, immunity from intrusion by the
white man, freedom from local laws, either civil or criminal,
and perpetual existence in a valley both fair and ample. In
return we must suppose that he was to give up everything
outside of it. Whatever he could retain outside by this
negotiation was, so to speak, so much added to the bargain.

The main purpose of the government was to separate the
Indian from the white man and to care for the Indian in a
district more confined. Yet it was natural to indulge him
with the right of hunting on the outside public lands whilst
these remained unsold and to let him fish at his old resorts
outside. But at these last he should have no advantage over
the white man. The title to the spot should not be the
Indian's - only an casement. The two races should fish in
common. The territory, in general, was to be the white man's,
and he could even acquire absolute title, but he was to let
the Indian fish; and that he might not, by crafty statute,
subsequently cut off the Indian's privilege at these places, a
positive easement was impressed upon the land. Then were
inserted the words "in common with citizens." These words
were not used to give something to the white man, but to
give something to the red man; not to give the Indian an
advantage, but to save him from disadvantage. Such, in
our opinion, is their true intent. They are an eternal

                         STATE v. TOWESSNUTE.               485
 Feb. 1916                   Opinion Per BAUSMAN, J.

guaranty that at these spots the Indian shall have equal, but not
more than equal, rights. The fishing grounds remain for
both races without advantage to either. The white man's
laws may operate on the enjoyment of the right, but must
operate on both races alike, and the Indian, since the lands
were to be sold to settlers, should be sure of access to the
water by an easement.

To adopt the other construction is not only to ignore a
simple phrase and give the Indian an advantage, but is to
suppose that Congress designedly crippled the government
of a future state in powers salutary and essential. The
police power is not confined to subjects of safety, but extends
to those of convenience and prosperity. Chicago, B. & Q. R.
Co. v. Drainage Com'rs, 200 U.S. 561, 592. It undoubtedly
extends to the conservation of fish. Smith v. Maryland, 18
How. 71. Nor is it given up, nor can it be given up, by any
legislature to the national government. It must be exerted,
to be sure, in such manner as will not infringe other rights
which the states, by the constitution, gave up to the central
authority; but in controversies on this point the Federal
decisions clearly resolve every doubt in favor of the local law.
Indeed, even on a subject within the exclusive rights of the
general government, the state laws of police will be upheld
until the Federal law has actually been extended to that
subject. Sligh v. Kirkwood, supra.

It can hardly be imagined, then, that the easement was to
be forever exempt from that local sovereignty which, in the
promotion of mere prosperity, has compelled a railway
company to rebuild, at its own great expense, a lawfully
constructed bridge in order that tracts below might be rendered
not healthful but more salable and tillable; which has
compelled farmers to suffer without compensation floods that
were caused by the government's damming the stream; which
has cut off old and valuable landing places, by an artificial
shifting of a river, without compensation to the riparian
owner; which has rendered a dock useless and lost to the

 486    STATE v. TOWESSNUTE.
                     Opinion Per BAUSMAN, J.           89 Wash.

owner while the public tediously builds a tunnel. (See the
cases collected in Chicago, B. & Q. R. Co. v. Drainage Com'rs,
supra.)

But, it will be said, the local government may so legislate
that, at the place of easement, there can be no fishing in
future at all. Replying to this, it is plain that the white man
must in that event equally lose. In the second place, the
police power, when, exerted not for public health or safety
but for prosperity, it encounters vested rights, may become
unlawful by excessive degree, so it will be time enough to
discuss such a situation when it arises. On the one hand, an
owner cannot remove his property from the police power by
making a contract concerning it. On the other hand, the
state, under the police power, cannot commit a confiscation.
Thus it is properly instanced that, while a city may lawfully
restrict the height of buildings, it must not restrict to such
a degree as renders the land entirely useless. Hudson County
Water Co. v. McCarter, 209 U.S. 349, 355.

It is a peculiarity of almost every legal principle that,
enforced to an extreme, it changes its character; and as both
time and the circumstances must be considered in deciding
whether an exertion of police power is really gnawing a
constitutional right, it is not improbable that what might have
been reckoned a needless or excessive exertion of it over
these Indian rights in the early days of 1859, might be
adjudged a proper one in 1915 by reason of the vast changes in
the white population and the altered manners of the Indians.
As much undoubtedly was conceded by the Federal supreme
court in respect to the exclusive power of Congress to
prohibit the alcohol traffic with the Indians in a case in which
it was argued that a state's criminal jurisdiction would be
unfairly cramped by such Federal law, the court, while
upholding that statute, remarking as to a future situation in
which the Indians might greatly diminish and become
scattered through the state:

                         STATE v. TOWESSNUTE.                487
 Feb. 1916                   Opinion Per BAUSMAN, J.

"A prohibition valid in the beginning doubtless would
become inoperative when in regular course the Indians affected
were completely emancipated from Federal control. A
different view in either case would involve an unjustifiable
encroachment upon a power obviously residing in the state."
Perrin v. United States, 232 U.S. 478, 486.

If it be argued that the rights of this commonwealth while
a territory were less than those of a state and that the police
power was then at the mercy of Congress, we must remember
that the supreme Federal tribunal has held Congress itself
incompetent to cut off this power from a future state. Long
after one of these Indian treaties, Congress, by an act admitting
a state to the Union on equal terms with its sisters, was
adjudged to have revoked, and to have had the right to
revoke, whatever in the treaty itself may have impaired the
police power. Ward v. Race Horse, 163 U.S. 504. There
it was held that the act admitting Wyoming was superior to
a treaty with the Bannock Indians, in so far as the latter
were by that treaty eternally privileged to hunt as they
pleased on unoccupied Federal land, since so extensive,
numerous, and scattered were the unsold lands that Wyoming would
practically be deprived of her police power in respect to
game and would enter the Union no equal sister.

In Coyle v. Smith, 221 U.S. 559, Oklahoma was relieved
of a feature of its admission act that attempted to fix the
location of its capital city. Congress, it was held, had no
power to admit states under conditions unequal in these
respects.

The first decision establishes a repeal of an Indian treaty
even by implication rather than that a state be crippled in
its police power. The other decision maintains the
insufficiency of any act of Congress, even when designed to such
an end, to impair the equal sovereignty of the state that it
was then creating.

Nor is United States v. Winans, 198 U.S. 371, in conflict
with these views, though under this same Yakima treaty it

 488    STATE v. TOWESSNUTE.
                     Opinion Per BAUSMAN, J.           89 Wash.

sustains the tribe in an ancient fishing place on another
river, the Columbia. Nothing can be clearer than that what
was there involved was a white settler's attempt to ignore the
Indian's easement. The adjoining land had passed from the
general government to a white owner, who, the court
properly held, was making it impossible for the Indian to enjoy
his privilege. What the case decided was that the
government grantee had bought the land with that easement on it,
and even from this commonwealth the grantee could not get
something additional that would impair that easement. As
for the police power, it was neither involved nor discussed in
that case, so it is little in point to remark that the act
admitting this state to the Union was also held not to have
affected the easement derived by the treaty. The court was
careful to be understood as sustaining a mere easement.
That it might not put the privilege above the police power, it
says of the easement at page 384:

"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 enables the right to be exercised."

Winters v. United States, 207 U.S. 564, is as easily
distinguished, for what that decided was that the enabling act
of Montana did not give water appropriators rights superior
to appropriations made by government officials on an Indian
reservation for the benefit of that reservation, when the
appropriations were made before statehood. The equal footing
right of Montana when entering the Union was clearly not
impaired.

Neither do we find contrary authority in such cases as
United States v. Sandoval, 231 U.S. 28; Ex parte Webb,
225 U.S. 663; Dick v. United States, 208 U.S. 340. What
these and several other similar cases hold is that the acts
admitting territories into statehood do not prevent the
general government's continuing to protect Indians by its own
laws, and beyond the bounds of the reservation, from
persons who seek to sell them alcohol. The new state's equal

                         STATE v. TOWESSNUTE.                489
 Feb. 1916               Dissenting Opinion Per HOLCOMB, J.

footing is not diminished by such enactments or by the
continuation of such authority, for the tribal Indian is a ward
of the general government under the clause of the Federal
constitution to which the states expressly consent, and such
ward he remains wherever he may be.

The judgment is reversed, with instructions that the case
be reinstated and that the demurrer to the information be
overruled.

MORRIS, C.J., MAIN, and PARKER, JJ., concur.

HOLCOMB, J. (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

 490    STATE v. TOWESSNUTE.
                Dissenting Opinion Per HOLCOMB, J.      89 Wash.

certain 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

                          STATE v. TOWESSNUTE.               491
 Feb. 1916               Dissenting Opinion Per HOLCOMB, J.

would 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 be 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.