Volume 49 — Federal Reporter, Second Series

<p>That in 1855, Governor Stevens, for Washington Territory, being thereunto daily authorized, entered into a treaty with the chiefs, headmen, and delegates of certain Indian tribes, whereby tracts of land would be set aside, and, as far as necessary, surveyed and marked for the exclusive use of Indians. That, for the purpose of defining and establishing the boundary, the President of the United States thereafter, on November 22, 1873, issued a proclamation establishing the Lummi Indian Reservation pursuant to the terms of the treaty, as follows:</p> <p>“Executive Mansion, November 22, 1873.</p> <p>“It is hereby ordered that the following tract of country in Washington Territory be withdrawn from sale and set apart for the use and occupation of the Dwamish and other allied tribes of Indians, viz: Commencing at the eastern mouth of Lummi River; thence up said river to the point where it is intersected by the line between sections 7 and 8 of township 38 north, range 8 east of the Willamette meridian; thence due north on said section line to the township line between townships 38 and 39; thence west along said township line to the low water mark on the shore of the Gulf of Georgia; thence southerly and easterly along the said shore, with the meanders thereof, across the western moutli of Lummi River, and around Point Francis; thence northeasterly to the place of beginning; so much thereof as lies south of the west fork of the Lummi River being a part of the island already set apart by the second article of the treaty with the Dwamish and other allied tribes of Indians, made and concluded January 22, 1857. (Stat. at Large, vol. 12, p. 928)</p> <p>“17. S. Grant.”</p> <p>That thereafter the lands within the exterior boundaries of the Lummi Reservation were devoted to the exclusive use and enjoyment of the Indians, and the lands set out in the bill of complaint have been and are a part of the reservation, a public domain of the United States, and the title has been held in fee simple for the use and benefit of the Indians, except as allotments have been made from time to time to individual Indians. That the state of Washington attempted to convey title to defendants by deeds, contracts, etc., and this casts a cloud, etc., upon plaintiff’s title. That the uplands adjacent to the tidelands. in issue have been surveyed and allotted to Indians, and by the Indians sold to the defendants, the present owners. That no tidelands have at any time been allotted to the Indians in the Lummi Reservation, and the policy has been in the survey of public lands bordering on navigable waters where tide ebbs and flows to extend the lines of survey to ordinary high-water marks, and the general instructions to the surveyors general have uniformly provided for such procedure.</p>