136 Wis. 552 | Wis. | 1908
Tbe only question presented' is whether the fish and game laws apply to the defendant, a Chippewa Indian, bom within the jurisdiction of the United States and residing within the territory ceded by the Chippewa Indians to the United States by the treaty of September 30, 1854. It is urged that the defendant is not subject to the laws of this state because of an article in the treaty proclaimed March 28, 1843 (7 U. S. Stats, at Large, 592, art. 2), respecting this territory, and made between the United States and the Chippewa Indians, which article provides :
“The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required, to remove by the President of the United States, and that the laws of the United States shall be continued in force in respect to their trade and intercourse with the whites, until otherwise ordered by Congress.”
The treaty of September 30, 1854, provides that those Indians who reside in the territory ceded shall have the right to hunt and fish therein until otherwise ordered by the President
No claim is made but that this state has the power to regulate the taking of fish from the waters within the boundaries of the state, unless such right was reserved to the national government when the state was admitted into the Union. We deem the question presented in this case has been determined by the following decisions of the federal supreme court: Ward v. Race Horse, 163 U. S. 504, 16 Sup. Ct. 1076; Dick v. U. S. 208 U. S. 340, 28 Sup. Ct. 399; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600.
“The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.”
In Ward v. Race Horse, supra, it is held that an act of Congress which admits a state into the Union, and declares without reservation that such state shall have all the powers of the other states of the Union, is an abrogation of a previous treaty stipulation with Indians within the territory of such state respecting their right to fish and hunt. The court holds that to exempt such Indians from state laws regulating hunting and fishing within the borders of a state after its admission into the Union would deprive the state of its sovereign power to regulate the rights of hunting and fishing, and would deny to such state admission into the Union on an equal footing with the original states, upon the ground that a treaty with the national government giving the right to hunt and fish within territory which subsequently is embraced within the limits of a state is a privilege in conflict with the act of admitting the state into the Union on an equality with the other states and is repealed thereby. The instant case presents such a situation, and it follows that the stipulations in the treaty with the Chippewa Indians respecting their right to hunt and fish within the borders of this state were abrogated by the act of Congress admitting the state into the Union and making no reservation as to such rights.
It also appears under the facts that the defendant has become a citizen of the United States by virtue of and pursuant to sec. 6 of the act of Congress of February 8, 1887. Under the provisions of this act an Indian who has received an allot-
By the Court. — Tbe exceptions of tbe defendant are overruled, and tbe cause remanded with directions to tbe circuit court to proceed to judgment against the defendant.
