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and, so far as necessary, surveyed and also introduced in evidence licenses from the marked out, for the exclusive use and benefit state to maintain devices for taking fish, of said confederated tribes and bands of In-called fish wheels. dians as an Indian reservation; nor shall At the time the treaty was made the fishany white man, excepting those in the em ing places were part of the Indian country, ployment of the Indian Department, be per- subject to the occupancy of the Indians, mitted to reside upon the said reservation with all the rights such occupancy gave. without permission of the tribe and the The object of the treaty was to limit the superintendent and agent. And the said con- occupancy to certain lands, and to define federated tribes and bands agree to remove rights outside of them. to and settle upon the same within one year The pivot of the controversy is the conafter the ratification of this treaty. In the struction of the second paragraph. Remeantime it shall be lawful for them to reside spondents contend that the words “the right upon any ground not in the actual claim of taking fish at all usual and accustomed and occupation of citizens of the United places in common with the citizens of the States, and upon any ground claimed or oc- territory” confer only such rights as a white cupied, if with the permission of the owner man would have under the conditions of or claimant.

ownership of the lands bordering on the “Guaranteeing, however, the right to all river, and under the laws of the state, and, citizens of the United States to enter upon such being the rights conferred, the respondand occupy as settlers any lands not actual-ents further contend that they have the ly occupied and cultivated by said Indians power to exclude the Indians from the river at this time, and not included in the reser-by reason of such ownership. Before filing vation above named.

their answer respondents demurred to the "Article 3. And provided that, if neces- bill. The court overruled the demurrer, sary for the public convenience, roads may holding that the bill stated facts sufficient be run through the said reservation; and, to show that the Indians were excluded from on the other hand, the right of way, with the exercise of the rights given them by the free access from the same to the nearest treaty. The court further found, however, public highways, is secured to them, as also that it would “not be justified in issuing the right, in common with citizens of the process to compel the defendants to permit United States, to travel upon all public the Indians to make a camping ground of highways.

their property while engaged in fishing.” “The exclusive right of taking fish in all | 73 Fed. 72. The injunction that had been the streams where running through or bor- granted upon the filing of the bill was modidering said reservation is further secured fied by stipulation in accordance with the to said confederated tribes and bands of In view of the court. dians, as also the right of taking fish at all Testimony was taken on the issues made usual and accustomed places, in common by the bill and answer, and upon the with citizens of the territory, and of erect-submission of the case the bill was dising temporary buildings for curing them, missed, the court applying the doctrine extogether with the privilege of hunting, pressed by it in United States v. Alaska gathering roots and berries, and pasturing Packers' Asso. 79 Fed. 152; United States v. their horses and cattle upon open and un- The James G. Swan, 50 Fed. 108, expressclaimed land.

ing its views as follows: “Article 10. And provided that there is "After the ruling on the demurrer the also reserved and set apart from the lands only issue left for determination in this case ceded by this treaty, for the use and benefit is as to whether the defendants have interof the aforesaid confederated tribes and bands, fered or threatened to interfere with the a tract of land not exceeding in quantity rights of the Indians to share in the comone township of six miles square, situated mon right of the public of taking fish from at the forks of the Pisquouse or Wenats- the Columbia river and I have given careful hapam river, and known as the 'Wenats consideration to the testimony bearing upon hapam fishery,' which said reservation shall this question. I find from the evidence that be surveyed and marked out whenever the the defendants have excluded the Indians President may direct, and be subject to the from their own lands, to which a perfect, same provisions and restrictions as other absolute title has been acquired from the Indian reservations." 12 Stat. at L. 951. United States government by patents, and

The respondents or their predecessors in they have more than once instituted legal title claim under patents of the United proceedings against the Indians for tresStates the lands bordering on the Columbia passing, and the defendants have placed in river, and under grants from the state of the river in front of their lands fishing Washington to the shore land which, it is wheels for which licenses were granted to alleged, fronts on the patented land. They' 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 pos-exclusive right of fishing reserved within session of the space occupied by the wheels. certain boundaries. There was a right outOtherwise the defendants have not molested side of those boundaries reserved "in comthe Indians nor threatened to do so. The mon with citizens of the territory.” As a Indians are at the present time on an equal mere right, it was not exclusive in the Infooting with the citizens of the United dians. Citizens might share it, but the States who have not acquired exclusive pro- Indians were secured in its enjoyment by a prietary rights, and this it seems to me is special provision of means for its exercise. all that they can legally demand with re. They were given “the right of taking fish spect to fishing privileges in waters outside at all usual and accustomed places,” and the limits of Indian reservations under the the right “of erecting temporary buildings terms of their treaty with the United for curing them.” The contingency of the States."

future ownership of the lands, therefore, The remarks of the court clearly stated was foreseen and provided for; in other the issue and the grounds of decision. The words, the Indians were given a right in the contention of the respondents was sustained. land,—the right of crossing it to the river, In other words, it was decided that the the right to occupy it to the extent and Indians acquired no rights but what any for the purpose mentioned. No other coninhabitant of the territory or state would clusion would give effect to the treaty. And have. Indeed, acquired no rights but such the right was intended to be continuing as they would have without the treaty. This against the United States and its grantees is certainly an impotent outcome to negotia as well as against the state and its grantees. tions and a convention which seemed to The respondents urge an argument based promise more, and give the word of the upon the different capacities of white men nation for more. And we have said we will and Indians to devise and make use of inconstrue a treaty with the Indians as “that strumentalities to enjoy the common right. unlettered people” understood it, and "as Counsel say: "The fishing right was in comjustice and reason demand, in all cases mon, and aside from the right of the state where power is exerted by the strong over to license fish wheels, the wheel fishing is those to whom they owe care and protec-one of the civilized man's methods, as tion,” and counterpoise the inequality "by legitimate as the substitution of the modern the superior justice which looks only to the combined harvester for the ancient sickle substance of the right, without regard to and flail.” But the result does not follow technical rules.” [Choctaw Nation v. United that the Indians may be absolutely excludStates) 119 U. S. 1, 30 L. ed. 306, 7 Sup. Ct. ed. It needs no argument to show that the Rep. 75; [Jones v. Meehan] 175 U. S. 1, 44 superiority of a combined harvester over L. ed. 49, 20 Sup. Ct. Rep. 1. How the the ancient sickle neither increased nor detreaty. in question was understood may be creased rights to the use of land held in gathered from the circumstances.

conimon. In the actual taking of fish white The right to resort to the fishing places in men may not be confined to a spear or crude controversy was a part of larger rights pos- net, but it does not follow that they may sessed by the Indians, upon the exercise of construct and use a device which gives them which there was not a shadow of impedi- exclusive possession of the fishing places, ment, and which were not much less neces- as it is admitted a fish wheel does. Besides, sary to the existence of the Indians than the the fish wheel is not relied on alone. Its atmosphere they breathed. New conditions monopoly is made complete by a license from came into existence, to which those rights the state. The argument based on the inhad to be accommodated. Only a limitation feriority of the Indians is peculiar. If the of them, however, was necessary and intend - Indians had not been inferior in capacity ed, not a taking away. In other words, the and power, what the treaty would have treaty was not a grant of rights to the been, or that there would have been any Indians, but a grant of right from them,- treaty, would be hard to guess.

, a reservation of those not granted. And the The construction of the treaty disposes of form of the instrument and its language certain subsidiary contentions of respondwas adapted to that purpose. Reservations ents. The Land Department could grant no were not of particular parcels of land, and exemptions from its provisions. It makes could not be expressed in deeds, as dealings no difference, therefore, that the patents between private individuals. The reserva- | issued by the Department are absolute in tions were in large areas of territory, and form. They are subject to the treaty as to the negotiations were with the tribe. They the other laws of the land. reserved rights, however, to every individual It is further contended that the rights Indian, as though named therein. They im- conferred upon the Indians are subordinate posed a servitude upon every piece of land '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. it was within the competency of the nation

The elements of this contention and the to secure to the Indians such a remnant of answer to it are expressed in Shively v. the great rights they possessed as "taking Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. fish at all usual and accustomed places.” Ct. Rep. 548. It is unnecessary, and it Nor does it restrain the state unreasonably, would be difficult, to add anything to the if at all, in the regulation of the right. It reasoning of that case. The power and rights only fixes in the land such easements as enof the states in and over shore lands were able the right to be exercised. carefully defined, but the power of the The license from the state, which reUnited States, while it held the country as spondents plead, to maintain a fishing a territory, to create rights which would be wheel, gives no power to them to exclude the binding on the states, was also announced, Indians, nor was it intended to give such opposing the dicta scattered through the power. It was the permission of the state cases, which seemed to assert a contrary to use a particular device. What rights the view. It was said by the court, through Mr. Indians had were not determined or limJustice Gray:

ited. This was a matter for judicial deter"Notwithstanding the dicta contained in mination regarding the rights of the Insome of the opinions of this court, already dians and rights of the respondents. And quoted, to the effect that Congress has no that there may be an adjustment and acpower to grant any land below high-water commodation of them the Solicitor General mark of navigable waters in a territory of concedes and points out the way. We the United States, it is evident that this is think, however, that such adjustment and not strictly true.

accommodation are more within the prov

ince of the circuit court in the first instance "By the Constitution, as is now well set-than of this court. tled, the United States having rightfully ac- Decree reversed, and the case remanded quired the territories, and being the only for further proceedings in accordance with government which can impose laws upon this opinion. them, have the entire dominion and sovereignty, national and municipal, Federal and

Mr. Justice White dissents. state, over all the territories, so long as they remain in a territorial condition.

(198 U. S. 385) American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542, 7 L. ed. 243, 255; Benner v.CHICAGO, MILWAUKEE, & ST. PAUL Porter, 9 How. 235, 242, 13 L. ed. 119, 122;

RAILWAY COMPANY, Appt., Cross v. Harrison, 16 How. 164, 193, 14 L. ed. 889, 901; First Nat. Bank v. Yankton

UNITED STATES. County, 101 U. S. 129, 133, 25 L. ed. 1046, 1047; Murphy v. Ramsey, 114 U. S. 15, 44, Postofficerailway mail routes-compensa29 L. ed. 47, 57, 5 Sup. Ct. Rep. 747; Church

tion-adjustment. of Jesus Christ, L. D. 8. v. United States, 136 U. S. 1, 42, 43, 34 L. ed. 478, 490, 491, The adjustment of compensation to a railway 10 Sup. Ct. Rep. 792; McAllister v. United company for carrying the mails, made by the States, 141 U. S. 174, 181, 35 L. ed. 693,

Postmaster General in the exercise of his

authority under U. S. Rev. Stat. § 4002, U. 695, 11 Sup. Ct. Rep. 949.”

S. Comp. Stat. 1901, p. 2719, to arrange the Many cases were cited. And it was fur- railway routes upon which the mail is to be ther said:

carried, and to adjust and readjust compensa“We cannot doubt, therefore, that Con- tion, may be confined, where an extension is gress has the power to make grants of lands

made beyond the terminal of an established

mail route, to the extension alone, without below high-water mark of navigable waters

readjusting the compensation for the whole in any territory of the United States, when

route as extended. ever it becomes necessary to do so in order to perform international obligations, or to

[No. 198.]


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

held its last stockholders' meeting and its

last directors' meeting, and since that time PPEAL from the Court of Claims to re- it has not exercised any corporate functions A

view the dismissal of a petition by a or powers, nor has it pretended to do anyrailway company to recover compensation thing of the sort.": for carrying the mails. Affirmed.

The United States demurred to the petiThe facts are stated in the opinion. tion on the grounds that (1) "The claim

Messrs. George R. Peck, W. W. Dud- came to the claimant, if at all, by a preley, and L. T. Michener for appellant. tended assignment, which, as to the United

Assistant Attorney General Pradt and States, was void; (2) the allegations of the Mr. John Q. Thompson for appellee. amended petition did not state facts suf

ficient 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 The appellant, a Wisconsin corporation, appeal was taken. filed a petition in the court of claims, Au- The demurrer presented the questions of gust 25, 1896, which it amended July 19, the validity of the assignment and the mer1900, and by which it sought recovery from its of the claim. We est our decision on the United States of the sum of $9,101.08, the latter. We express no opinion of the for compensation for carrying the mails validity of the assignment. from Milwaukee, Wisconsin, to Republic, The Milwaukee & Northern Railroad ran Michigan, and thence to Champion, Michi- from Wilwaukee, Wisconsin, to Republic, gan.

Michigan, a distance of 255.37 miles. Under The services were rendered by the Mil- the authority given him by law, “to arrange waukee & Northern Railroad Company. Ap- the railway routes on which mail is carried” pellant's ownership was derived from that (83997 of the Revised Statutes of the company, as alleged in the petition, as fol- United States, U. S. Comp. Stat. 1901, p. lows:

2717), the Postmaster General designated "Your petitioner further avers that on the road from Milwaukee to Republic as the 30th day of September, 1890, it become postal route No. 139,016, and compensathe purchaser, and thereupon it became the tion was fixed for carrying the mails therelawful owner, hy assignment and transfer, On February 4, 1890, the road was exof all of the capital stock of the said Mil-tended to Champion, Michigan, a distance of waukee & Northern Railroad Company; that 8.89 miles. Provision was made for the exon the 1st day of October, 1890, the board tension by an order dated February 4, 1890, of directors of the Milwaukee & Northern which directed that service should be exRailroad Company was reorganized by the tended from Republic to Champion, increaselection of persons who were either directors ing distance 9.16 miles, less .27 miles, makor officers of the petitioner, and the offices ing a net increase of 8.89 miles, “in accordwere filled by the election of persons who ance with distance circular, and with the unwere officers of its company, with the soli- derstanding that the rate of compensation tary exception of the president of the Mil- on this extension will be adjusted in a subwaukee & Northern Railroad Company; sequent order, in accordance with law." that from the 30th day of September, 1890, On December 1, 1890, the following order until the 26th day of June, 1893, that com- was made and directed to the general manpany operated the railroad as a separate or- ager of the railroad: ganization and in the name of the Milwaukee & Northern Railroad Company; that Sir: The compensation for the transporon the 26th day of June, 1893, pursuant to tation of mails, etc., on route No. 139,016, a vote of the stockholders of the Milwaukee between Milwaukee, Wisconsin, and Cham& Northern Railroad Company, the latter pion, Michigan, has been fixed from Septemcompany executed a deed to the petitioner, ber 23, 1890, to June 30, 1891 (unless otherwhereby it conveyed to petitioner all its wise ordered), under acts of March 3, 1873 railroads, railways, rights of way, depot [17 Stat. at L. 556, chap. 231], July 12, grants, tracks, bridges, etc., and also all 1876 [19 Stat. at L. 78, chap. 179], and other property and choses in action whatso- June 17, 1878 [20 Stat. at L. 140, chap. ever, both real and personal, of the said | 259], upon returns showing the amount and Milwaukee & Northern Railroad Company, character of the service for thirty successive and all its rights, privileges, and corporate working days, commencing September 23, franchises connected with or relating to 1890, at the rate of $35,022.37 per annum, such railroad, or to the construction, main being $132.53 per mile for 264.26 miles. tenance, use, or operation of the same. And From February 24 to September 22, 1890, that thereafter, to wit, August 28, 1893, the pay is allowed at the rate of $1,178.19 per annum, being $132.53 per mile for 8.89 miles | hundred pounds, seventy-five dollars; one extension between Republic and Champion, thousand pounds, one hundred dollars; one Michigan.

thousand five hundred pounds, one hundred This adjustment is subject to future or- and twenty-five dollars; two thousand ders and to fines and deductions.

pounds, one hundred and fifty dollars; three

thousand five hundred pounds, one hundred It will be observed that this order pur- and seventy-five dollars; five thousand ports to fix the compensation on route 139,- | pounds, two hundred dollars, and twenty016 between Milwaukee and Champion. five dollars additional for every additional

The dates designated are somewhat con- two thousand pounds, the average weight to fusing. However, in two days another or be ascertained, in every case, by the actual der was issued and directed to the company, weighing of the mails for such a number of which reads as follows:

successive working days, not less than Sir: The compensation for the transpor- thirty, at such times, after June thirtieth,

: tation of mails, etc., on route No. 139,016, eighteen hundred and seventy-three, and not between Republic and Champion, Michigan, less frequently than once in every four

, has been fixed from February 24, 1890, to years, and the result to be stated and veri

fied in such form and manner as the PostJune 30th, 1891 (unless otherwise ordered), under acts of March 3, 1873, July 12, 1876,

master General may direct." and June 17, 1878, upon returns showing

The section does not sustain the appelthe amount and character of the service lant's contention. The Postmaster General for thirty successive working days, com

is given the power to arrange the railway mencing September 23, 1890, at the rate of routes upon which the mail is to be carried, $1,178.19 per annum, being $132.53 per mile and to adjust and readjust compensation.

$ for 8.89 miles extension.

The orders of December 1 and December 3, This adjustment is subject to future or respectively, reserved this power, and the ders and to fines and deductions.

only limitations on its exercise, expressed in

§ 1002, is as to the manner of ascertaining The first order revoked the compensation the rate, which is to be by the average for carrying the mails from Milwaukee to weight of the mails. There is nothing in Republic, which had been fixed, and was the section which requires the abrogation of manifestly a mistake. The second order prior contracts when an extension is made was intended to correct the mistake, and beyond the terminal of an established route, confine the adjustment to the extension from or precludes provision for the extension Republic to Champion.

alone. A contract may not be forced upon The contention of appellant is that the a railway. It may accept, however, and bePostmaster General had no power to issue come bound by the action of the Post Office the second order, but was required by Department. Eastern R. Co. v. United 4002 of the Revised Statutes of the United States, 129 U. S. 391, 32 L. ed. 730, 9 Sup. States (U. S. Comp. Stat. 1901, p. 2719) to Ct. Rep. 320. The record does not show any fix compensation for the whole route as ex- protest against the order of December 3. tended. The appellant urges in support of Its terms were unmistakable, and, as counthe contention not only the provision of the sel for the government observes, "it may be section, but the practice and usage of the justly inferred” that the railroad company Post Office Department. Section 4002 is as “viewed the order of December 3 in the same follows:

light, and as having the same force and ef"The Postmaster General is authorized fect, as intended by the postal authorities." and directed to readjust the compensation Judgment affirmed. hereafter to be paid for the transportation of mails on railroad routes upon the condi

(198 U. S. 390)

ALICE I. BIRRELL, Piff. in Err., tions and at the rates hereinafter mentioned:

"First. That the mails shall be conveyed NEW YORK & HARLEM RAILROAD with due frequency and speed; and that suf

COMPANY and New York Central & Hudficient and suitable room, fixtures, and fur

son River Railroad Company. (No. 202.) niture, in a car or apartment properly PATRICK KIERNS, Executor and Trustee lighted and warmed, shall be provided for

of John Kierns, Deceased, Piff. in Err., route agents to accompany and distribute the mails. “Second. That the pay per mile per an

NEW YORK & HARLEM RAILROAD num shall not exceed the following rates,

COMPANY and New York Central & Hud. namely: On routes carrying their whole

son River Railroad Company. (No. 203.) length an average weight of mails per day Contracts_impairment of obligation-effect of two hundred pounds, fifty dollars; five

of judicial decisions.



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