To the Editor (of the North Kitsap Herald, Poulsbo, Washington):

I was forwarded the letter below and asked by a friend to comment.

I'm writing to address Ms. McEnerney's comments regarding the Treaty of Neah Bay of 1855. Her letter demonstrates some of the misunderstandings that many Americans share.

First, the United States Supreme Court has a long-established, three-pronged precedent regarding our treaties - first, ambiguous expressions must be resolved in favor of the Indian parties concerned, McClanahan v. State Tax Commission, 411 US 164 (1973); second, Indian treaties must be interpreted as the Indians themselves would have understood them, Choctaw Nation v. Oklahoma, 397 US 620 (1970); and third, that Indian treaties must be liberally construed in favor of the Indians, Choctaw Nation v. US, 318 US 423 (1943). The construction of Indian treaties is akin to the construction of adhesion contracts, in that Indian treaties, like adhesion contracts, are liberally construed in favor of the weaker party, and their terms are given the meaning attached to them by laymen unversed in the law. The goal is to achieve the reasonable expectations of the weaker party.

The precedent case law that governs Ms. McEnerney's second complaint is long established as well. In US v. Winans, 198 U.S. 371 (1905), Justice McKenna wrote for the Supreme Court

"The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them,-a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particluar parcels of land, and could not be expressed in deeds, as dealings between private individuals. The reservations were in large areas of territory, and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved 'in common with citizens of the territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given 'the right of taking fish at all usual and assustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the Indians were given a right in the land,-the right of crossing it to the river,-the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the United States and its grantees as well as against the state and its grantees."