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UIJllSJ 246 OREGON LAW REVIEW [Vol. 36 fishery has received little attention. But it should be mentioned that the resource is threatened; that the commission, acting upon some authority presumably implied in the Federal Power Act, decided that the damage, if any, would not be too great. Actually, of course, if any recognition should be accorded the claim of the state to sovereignty in the field of water rights and water administration, then the effect on the fisherv resource would be of consequence to the state, if to anyone.84 If the state has no sovereign rights on the subject, then the degree of destruc- tion to the resource would be worthy of attention only if Congress should see fit to require that the commission give consideration to it. Needless to say, the state has not relinquished its rights and nothing ill the Federal Power Act indicates that Congress intended the commis- sion to exercise control over fishery resources. Are these questions the idle fantasy of a mind obsessed with some outworn concept of "states' rights," some unreconstructed character from the hills, equipped with shotgun and jug? Let us examine some recent post-Pelton developments which may have some bearing: (I) The district court decision in the Ahtanu1I1 case, previously mentioned, preceded the Pelton decision by the Supreme Court. The decision of the Court of Appeals for the Ninth Circuit was published July 10, 1956, a year after the Pelton decision.85 While the facts are complex, the basic issue revolved on the right of the United States, as trustee for Indian allottees on the Yakima Reservation, to claim such amount of the waters of the Ahtanum as would be susceptible of bene- ficial use on those Indian lands. The treaty of 1855, whereby the Indians ceded to the United States a part of the lands they claimed, was not, so the Court of Appeals said, quoting Uniled States v. Winans,85. "a grant of rights to the Indians, but a grant from them-a reservation of those not granted."86 The quantum of the right to water was measured, not by past, but by future use. Thus the uses made in 1855 by the Indians ., 'l 84 It has been long recognized that wildlife within the borders of a state is sub- ject to state control. This was affirmed in a case involving the claims of Indians to hunt wild game pursuant to treaty rights acquired by the tribe prior to V>fyo- .ming', admission. Ward v. Race Horse. 163 U.S. 504 (18961. The statement of the Supreme Court is not without significance in the present (Pellon) case: "The power of all the States to regulate the killing of game within their borders will not be gainsaid, yet, if the treaty applies to the unoccupied land of the United States in the State of Wyoming, that State would be bereft of such power, since every isolated piece of land belonging to the United States as a private owner so long as it continued to be unoccupied land, would be exempt in this regard from the authority o[ the State. Wyoming, then, will have been admitted into the Union, not as an equal member, but as one shorn of a legislative power vested in all the other States of the Union, a pawer resulting from Ihe facl of slalehaod (lnd incident to its plenary existence." 163 U.S. at 514. 85236 F.2d 321 (9th Cir. 1956). 85" 198 U.S. 371 (1905). 86236 F.2d at 325.