into the Union, the national government held the title to the shores and beds of navigable waters therein, as trustee for the future states. Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565. If there is any exception to this general rule, it must rest upon a special grant expressly authorized by a law enacted by Congress to provide for some peculiar requirement of the national government. Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331.

Fourth. The assertion of ownership in the shores and beds of navigable waters within its boundaries, made by the state of Washington, is founded upon the doctrine that no individual can acquire a proprietary right to any part of the sea, because the sea is a highway of commerce for the whole world, and the coast within the range of cannon shot is the limit of national dominion. Therefore jurisdiction of the seacoast and of all navigable inlets and bays is an attribute of sovereignty to be exercised for the general welfare of all people, and as the original states, which ordained our national Constitution, succeeded to the jurisdiction within their respective boundaries, which previous to their separation from the mother country appertained to the British Crown, the state of Washington at the time of its admission into the Union on an equality with them became vested with like jurisdiction.

Fifth. The space bordering the shores of the sea and navigable inlets and harbors which may be reclaimed from the sea, and devoted to beneficial uses without obstructing navigation, or detriment to the paramount rights of the public, is valuable, and may be granted to individuals by the state in the exercise of its sovereign power.

Sixth. The laws of the United States enacted by Congress for the parceling and disposition of the public domain prescribe a system of subdivision into 40-acre tracts and fractions. The lands are surveyed by running township and section lines, and establishing corner posts or monuments. The surveys of land bordering navigable water terminate at the line of ordinary high water. The shores are meandered to ascertain sinuosities, and all tracts which are cut into by shore lines are platted as fractional lots. In general, all grants and conveyances by the government give title only to land above the line of ordinary high water. Mann v. Tacoma Land Co. (C. C.) 44 Fed. 27; s. c., 153 U. S. 273, 14 Sup. Ct. 820, 38 L. Ed. 714. Whatever exceptions there may have been to this rule in actual transactions do not in any way affect the issues in this case.

The material facts to which these fundamental principles must be applied for the purpose of determining the rights of the parties herein are as follows:

The exclusive feature of the rights of Indians as occupiers of the country within the boundaries of Oregon Territory, which as originally organized included this state, was terminated by the act of Congress creating Oregon Territory, and the act of September 27, 1850, c. 76, 9 Stat. 496, familiarly known as the "Oregon Donation Law," because those acts were designed to encourage families to emigrate. from the states and become permanent inhabitants of Oregon. Notwithstanding that fact, however, the government subsequently made treaties with the Indians whereby they relinquished their rights to all

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land in this region not specifically held in reserve for their use. A treaty was made with the Puyallups and allied tribes December 26, 1854. 10 Stat. 1132. By that treaty the land designated as a reservation for the Puyallups comprised 1,280 acres on the west side of Commencement Bay, but it was never surveyed as a reservation nor occupied as such. Governor Stevens selected for the tribe a much larger and better body of land through which the Puyallup river flows into Commencement Bay, and caused it to be surveyed and a map made, showing its exterior boundaries, a photographic copy of which map is here exhibited.

The lands so selected, surveyed, and mapped were, by an order made by President Pierce in the year 1857, set apart as a reservation for the Puyallups in lieu of the 1,280 acres designated by the treaty, and was accepted by them. As shown by the map, part of the north and west boundaries follow the shore of Commencement Bay, but instead of adhering strictly to the shore line, part of the west boundary was a straight line cutting across points of land and indentures of the bay. After the government survey of the township in which this reservation is situated had been made, President Grant by an executive order dated September 6, 1873, extended the reservation so as to include therein a fractional lot of section 34 situated west of the straight line, said fraction being all of the upland contiguous to the straight line not previously included. Subsequently all of the reservation as extended, except a tract reserved for agency purposes situated south of the Puyallup river, was cut up into lots and surveyed and platted and allotted to the Indians in severalty, and patents were issued to the allottees. This survey and platting of the reservation was pursuant to authorization by Congress, which by an appropriation act approved May 29, 1872 (Act May 29, 1872, c. 233, 17 Stat. 186), appropriated $150,000 for the survey of the exterior boundaries of Indian reservations and subdividing portions of the same. The survey and plat were duly approved and became a public record in the General Land Office of the United States in the year 1874. In making this survey the straight line constituting part of the west boundary as shown by Governor Steven's map was disregarded, and the boundary was traced following the sinuosities of the shore in conformity to the general system of public land surveys, so that only the land above the line of ordinary high tide was included in the reservation and platted.

By the treaty of 1854 the Indians were guaranteed the right of taking fish at all usual and accustomed grounds and stations, in common with all citizens of the territory, and of erecting temporary houses for the purpose of curing; and, although denied by the defendants, it will be assumed as a fact for the purpose of this decision that the Indians were accustomed to resort to the shallow water adjacent to the reservation as fishing grounds. But they have never made other use of the tide land involved in this controversy, nor held corporeal possession. thereof.

In the year 1873 Tacoma was designated as the Western terminus of the Northern Pacific Railroad, and before the adoption of our state Constitution it had grown to be an important commercial city. It . has continued to grow and still grows; Commencement Bay is its harbor, and its shore lands between high and low water are of great value as sites for industrial works, and especially for terminal grounds for other railroads having projected lines extending to the city.

Under authority of the state these so-called tide lands have been platted, with projected streets intended to preserve the public right of free access to the harbor from the city and from the allotted lands of the Indians.

Article 26 of the Constitution of the state of Washington is a compact with the United States, by which the state makes the following disclaimer:

"That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.

*

Pursuant to Act Cong. Aug. 19, 1890, c. 807, 26 Stat. 354, a commission consisting of three eminent citizens was appointed to visit the Puyallup reservation and make a full investigation regarding it, with reference to specified points, including the following:

(1) The nature of the title to, and value of, the lands allotted in severalty. (2) Whether there are any common lands which have not been allotted, and, if so, the value of the same and of the interest of the Indians therein. (3) Whether such reservation embraces the land on Puget Sound between high and low water mark.

The commission made a report which was submitted to Congress by President Harrison, with an accompanying letter written by Hon. John W. Noble, Secretary of the Interior (Ex. Doc. No. 34, 52d Cong. 1st Sess). The Secretary's letter contains the following statements:

"Upon the receipt of the report of the commission it was referred to the Assistant Attorney General for this department for his opinion in regard to the conclusions arrived at by the commission. It was also referred to the Indian Office for an expression of opinion as to the views adopted by the commission.

"On comparing the several views thus obtained, I find quite a divergence of opinion on some of the points of investigation by the commission; and upon a careful consideration of them all, as fully set forth in the papers transmitted herewith, my views as to the propositions, taken in their regular order, are as follows: * As to whether the reservation embraces the land between high and low water mark.

"The Assistant Attorney General and the commission agree that the land below high-water mark is not embraced in the reservation, while the Commissioner of Indian Affairs thinks differently, as he believes it was the intention of the executive order to embrace it. In my judgment all that was granted by the executive order was contained in legal subdivisions only, which extended only to the meander line; which line did not extend to low-water mark."

After the report of the commission had been submitted, Congress made provision for the sale of such allotted lands as the allottees did not need for homes, and for the platting and sale of part of the agency tract. Act March 3, 1893, c. 209, 27 Stat. 633. Pursuant to that law a commission was appointed to select the lands to be sold and manage the sale thereof, and said functions of the commission have been executed with the approval of the Secretary of the Interior, and with apparent respect to the opinion of Secretary Noble, holding that the Indians have no right to tide lands.

The defendants are bona fide purchasers from the state of the lands involved in this litigation.

A very good decision of this case could be made in a short paragraph, stating the simple proposition that the complainants are not entitled to prevail, for the reason that they have failed to set forth in their bill of complaint any deed, grant, law, treaty, record, or prescriptive right evidencing any color of title in the Puyallup Tribe of

Indians as a community to any part of the shore lands involved in this litigation, nor have they made even a pretext of right by virtue of actual exclusive possession thereof. The foregoing statement of legal principles and narrative of facts has been made, however, because of the large interests involved, and out of respect for the learned lawyers who have laboriously and in good faith prepared the case and submitted it for adjudication.

The conclusions deducible from the premises are as follows:

(a) The aboriginal inhabitants of this country were not seised of titles to real estate. Johnson v. McIntosh, 8 Wheat. 543, 5 L. Ed. 681; United States v. Cook, 19 Wal. 591, 22 L. Ed. 210; Buttz v. Northern Pac. R. Co., 119 U. S. 55, 7 Sup. Ct. 100, 30 L. Ed. 330; United States v. Moore, 161 Fed. 513, 88 C. C. A. 455. All exclusive rights of the Indian complainants, as original occupiers of the country, were terminated by the Oregon donation law, and were relinquished by them by the treaty of 1854.

(b) Any disposition of proprietary rights in the seashore by the government of the United States, being obnoxious to the firmly established principle that control of the seacoast is an attribute of sovereignty appertaining to the states, could only be valid, if valid at all, by virtue of the exercise of the power vested in Congress to be exercised for the national welfare, and there is no pretext set forth in the bill of complaint or stated in the argument of the complainants' solicitors that any proprietary right to shore lands became vested in the Puyallup Tribe as a community by virtue of any provision, expressed or implied, of any act of Congress whatever. The treaty of 1854 was not in any sense a conveyance of title to any of the lands in controversy to the Puyallup Indians; on the contrary, the treaty was a relinquishment by said Indians of whatever rights to these. lands may have been theretofore claimed by them. For the reasons already stated, the President could not grant shore lands by the making of an executive order designating the tract of land to be held as a reservation, and the executive orders made by President Pierce and President Grant, referred to in this opinion, cannot by any rule of interpretation or construction be made to express an intention, on the part of either President, to effect an object other than that of setting apart land for the use of the Indians for whatever period of time it might be required for such use, and the orders referred to do not purport to fix the boundaries of the reservation irrevocably or permanently. They were made in the exercise of authority expressly assented to by the Indians in the treaty of 1854, vesting in the President the power to change and relocate the reservations, and by the approval of the survey and platting of the reservation, which was in legal effect the act of the President, the western boundary originally indicated by the straight line of Governor Steven's map was changed to a line following the sinuosities of the shore at ordinary high tide. The patents issued to the Indian allottees for designated tracts to be held in severalty, conveyed no proprietary rights in any land to the Puyallup Tribe as a community nor any incidental rights other than, or different from, the rights comprised within ordinary and usual conveyances, by patent, of land bordering tidal waters, which do not