The opinion
On Petition eor Rehearing
Before Lusk, Chief Justice, and Brand, Belt, * Rossman, Hay, and Latourette, Justices.
HAY, J.
The respondents have petitioned for a rehearing, and have supported their petition by brief.
Their principal contention is that we erred in holding that we are bound to interpret the initiative act in conformity with treaties which were entered into between the United States and certain Indian “nations”. (See our opinion in Anthony v. Veatch, June 30, 1950, *534 which opinion, pro tanto, we adopted for the case at bar.) Respondents say that some of these treaties are no longer effective, having been abrogated by the high contracting parties. Moreover, they argne that, although the treaties were signed while Oregon was a territory, none of them were ratified by the President and Senate of the United States until after the date of the state’s admission into the Union, all of them contained clauses deferring their obligatory effect until ratification by the President and Senate, and, therefore, ratification did not cause them to relate back to the respective dates of their signing. They maintain, further, that ratification of the treaties subsequent to the admission of Oregon into the Union did not make them effective as against intervening private rights.
The amended complaint recited the making of the Indian treaties, and alleged that such treaties “secured” to the Indians the right, in common with citizens of the United States, to fish on the Columbia River, without the Indian reservations, at all usual and accustomed places. It did not even suggest that any of the treaties had been abrogated, or modified, or was in any respect invalid. Upon this phase of the case, it sought to have the initiative act declared unconstitutional on the ground that, by exempting from its operation Indians fishing under federal regulation, it gave them, in their usual and accustomed fishing places, a right to fish with seines, which right it denied to citizens of the state.
The exemption of Indians fishing under federal regulation, that is to say, Indians fishing under rights reserved to them by the treaties (United States v. Winans, 198 U. S. 371 , 49 L. ed. 1089, 1092, 25 Sup. Ct. 662), did not “give” the Indians any rights whatever. It *535 simply recognized whatever fishing rights, as confirmed by the treaties, the Indians may have. Respondents, both in the amended complaint and on brief, concede that the Indians do have some rights in the premises. In that connection, we are concerned only with the allegation that the initiative act gave the Indians a right which it denied to other citizens. Palpably, it did not do so.
It is suggested that we erred in treating the cause as one for a declaratory judgment. Respondents say that it was actually brought under the statute relative to injunctions, §§ 9-401 et seq., O. C. L. A., for the purpose of procuring an injunction to prevent threatened injury to their property and property rights. Even if that were so, the relief sought involved an adjudication that the initiative act was unconstitutional, and, therefore, was declaratory in character. 16 Am. Jur., Declaratory Judgments, § 3. The amended complaint might have been based upon either the uniform declaratory judgments act (§§6-601 to 6-616, O. C. L. A.) or the injunction statute. We construed it as being based upon the former, by reason of the fact that it prayed for a decree “declaring said initiative act * * * null and void in its entirety”. We were of the opinion that such a prayer indicated that the pleaders conceived that they had made a case for a declaratory decree. 41 Am. Jur., Pleading, § 110. In any event, under either form of suit, the amended complaint was equally vulnerable to general demurrer.
Respondents express the fear that our condensation of the allegations of the amended complaint may “occasion some future misunderstanding as to the title of” plaintiffs, Columbia River Packers Association, a corporation, and H. K. Parker, in “such of these *536 shorelands or tidelands or islands’ as they might actually own, thereby creating a cloud, based upon a misunderstanding of the facts.” We think that the fear is groundless. Our condensation of what, according to our interpretation, the amended complaint alleged, was not in any sense intended as an adjudication of title to any property, whether land or chattels. •
The petition contains other alleged errors, and we have considered such, but find no error therein nor any need for further discussion.
The petition for rehearing is denied.
In our opinion, we stated that the cause would be remanded for such further proceedings as might not be inconsistent therewith. On further consideration, it appears to us that a remand in such terms would be too indefinite. Our view was that the cause should be dismissed, and it will be remanded with directions to that effect.