United States v Winans, 198 U.S. 371 (1905)

Facts:

For at least 9,000 years the geologic formation at Celilo – the Great Falls – on the Columbia River created a reservoir of salmon that was central to the lifeways of the indigenous people that had continuously inhabited the place.  Until the 19th century, families would gather at Celilo Falls by the thousands in the spring months to harvest salmon through the fall.  White settlers began arriving in large numbers in the Northwest United States in the early 19th century, then in 1889 Washington became a state, issuing fishing and other land-use permits for the settlers.  In 1895, two brothers, Audubon and Linnaens Winans, erected a machine called a fish wheel at Celilo falls, hiring Indian guards to keep others away from the fishery by “force…intimidation…threats[,]…and assault.” This fish wheel was capable of extracting fish from the Columbia River by the ton.  The Winans’ fishery effectively prevented the Yakama from exercising the fishing and hunting rights enumerated in the Treaty of 1859.  The United States government, on behalf of the Tribe and in a series of local and State cases, eventually brought the matter before the Supreme Court, where the Winans’ brothers were found to “have excluded the Indians from their own lands” and ordered to remove the fishing wheels.

Issues:

Does the state have the legal right to license land-use for non-Indian residents that are not “subject to such reasonable regulations as will secure to the Yakama Indians the fishery rights reserved by the Treaty of 1859?”

Holding:

No.  The “the right of taking fish at all usual and accustomed places in common with the citizens of the Territory of Washington and the right of erecting temporary buildings or curing them” guaranteed by treaty cannot be abrogated by the state.

Reasoning:

Neither for the “equal footing” doctrine nor the fact that significant tracts of land had been ceded in the Treaty of 1859 precludes the tribe and its members from exercising their “exclusive right[s] of taking fish at all usual and accustomed places.”

Historical Significance:

In the post-Jacksonian era of removal and the new climate of assimilation, Justice Joseph McKenna’s eloquent and impassioned majority opinion surprised many by reinforcing the Court’s position on interpreting treaty language in favor of Indians.  McKenna noted that the treaty language “imposed a servitude on every piece of land as though described therein” by “a special provision” that could not be alienated, forever guaranteeing the Yakama rights to “taking fish at all usual and accustomed places.”  Furthermore, McKenna wrote that treaties are “not a grant of rights to Indians – but a grant of rights from them – a reservation of rights not granted.”  Therefore, the permits and other accommodations by the State are “subject to the treaty as to the other laws of the land,” a doctrine known as the reserved rights doctrine that has been used for 100 years to substantiate “recognizing tribal proprietary rights to natural resources and in protecting tribal sovereignty.” (Blumm 2006:490) McKenna observed that “the extinguishment of the Indian title…fixes in the land such easements as enable the right to be exercised.”

References

Blumm, Michael C., and James Brunberg. "Not Much Less Necessary...Than the Atmosphere They Breathed"

"Salmon, Indian Treaties, and the Supreme Court -A Centennial Remembrance of United States v Winans and its Enduring Significance." Natural Resources Journal No. 46. University of New Mexico. 2006.