State v. Alexis, 89 Wash. 492, 154 Pac. 810; 155 Pac. 1041


 492    STATE v. ALEXIS.
                Dissenting Opinion Per HOLCOMB, J.      89 Wash.

          [No. 13084. Department Two. February 4, 1916.]
                          Appellant. 1

Congress, in making provisions by an Indian treaty for fishing
rights of the Indians of a territory, could not do so at the
expense of the police power of the future state, notwithstanding
that the Indians were more or less dependent upon the fish for
subsistence (HOLCOMB, J., dissenting).

Appeal from a judgment of the superior court for
Whatcom county, Hardin, J., entered August 17, 1915, upon a
trial and conviction of violating the laws relating to the
taking of fish. Affirmed.

Craven & Green, for appellant.

The Attorney General and W. P. Brown and L. L.
Thompson, for respondent.

PER CURIAM. - This case is identical in all respects with
State v. Towessnute, just decided, except that it involves the
rights of another tribe of Indians, the Lummi, and a different
treaty, the Muckl-teeoh, proclaimed in 1859. The language
involved in that treaty is the same as in State v. Towessnute,
ante p. 478, 154 Pac. 805, and the same justification is
attempted. The lower court in this case held with the state and,
under our opinion in the other, did so correctly. This cause
having been argued as one controversy with the Towessnute
case, it will not be necessary to enlarge upon our opinion
already rendered.

Judgment affirmed.

HOLCOMB, J. (dissenting) - For the reasons stated in my
dissent to the decision in State v. Towessnute, ante p. 478,
154 Pac. 805, I dissent.

1 Reported in 154 Pac. 810; 155 Pac. 1041.

                         STATE v. ALEXIS.                493
 Feb. 1916               Opinion Per Curiam.

                    ON PETITION FOR REHEARING.
                     [Decided March 17, 1916.]

PER CURIAM. - In a petition for rehearing, counsel for the
appellant Indian complain that we have not discussed certain
testimony which showed contemporaneous interpretation of
this treaty and assurances by the territorial governor,
Stevens. From this and other testimony, it is contended that the
Lummis, as distinguished from the Yakimas in State v.
Towessnute, ante p. 478, 154 Pac. 805, depended upon the
fish outside of the reservation, more or less, for subsistence.
It would appear, also, that they gained a livelihood by
trafficking in the catch. These things, which we are told
should relieve the Lummis froth the Towessnute decision,
do, on the contrary, emphasize against the Lummis the
reasoning of that case. Under the Federal decisions, as we
understand them, Congress, in making provision for Indians,
could not do it at the expense of the police power of the
future state. This Lummi case strikingly shows to what
ravages the salmon industry of Washington is exposed by
these Indian treaties, as they are sought to be interpreted.
Nor does it make any difference that the fish caught by the
Lummis were seeking foreign waters to spawn in, for it is
the policy of this state to protect these fish at certain times
in their migration to the fountains of British Columbia,
where they are not left without protection, but are permitted
to recreate themselves and replenish our waters.