United States v. Winans
Encyclopedia
United States v. Winans, , was a U.S. Supreme Court
case that held that the Treaty with the Yakima of 1855, negotiated and signed at the Walla Walla Council of 1855, as well as treaties similar to it, protected the Indians’
rights to fishing
, hunting
and other privileges.
entered into a series of treaties with many of the Indian tribes
of the Pacific Northwest. In exchange for Indian interest in certain lands in what is today the State of Washington, the Indians reserved relatively small parcels of land for their exclusive use (hence the term "reservation"), were given compensation in monetary payments, and other guarantees. The Treaty with the Yakima, signed on June 9, 1855, guaranteed to the Yakama "the right of taking fish
at all usual and accustomed places in common with the citizens of the Territory"
In the 1890s, Lineas and Audubon Winans operated a state-licensed fishing operation on homesteaded
land near Celilo Falls
. Celilo Falls, in the Columbia River Gorge
, was essential to the fishing practices of the Umatilla
, Yakama
and Nez Perce tribes. The Winans brothers obtained a license from the State of Washington to operate a fish wheel
, a device that could catch salmon
by the ton, thus depleting the Yakamas' fish supply. Most importantly for this case, the Winans brothers' actions also forcibly prevented the Yakama Indians from crossing the land recently purchased by the brothers, blocking their passage to the traditional fishing grounds of the tribe.
The legal dispute revolved around the treaty language that secured to the Indians "the right of taking fish at all usual and accustomed places in common with the citizens of the territory," Yakima Treaty of 1855, art. 3, ¶ 2, 12 Stat. 951. In 1905, the Supreme Court reaffirmed the off-reservation fishing rights possessed by the Yakama tribe: "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." Internationally recognized scholar on Native American issues, including tribal sovereignty, N.Bruce Duthu conveys that, although the arrival of settlers on Indian land called for a modification of rights Indians once possessed exclusively, the elimination of said rights was unlawful. Where Congress has inhibited fishing rights reserved under the treaties, or land or mineral rights (also treaty-reserved rights) are limited by private or government actors, tribes are often awarded monetary relief by the courts. Where private projects have obstructed treaty fishing rights, courts within the Ninth Circuit, however, have refused to pay monetary compensation to the tribes. The Indians brought suit to enjoin
the respondents from using the fish wheel
. The United States Circuit Court
for the District of Washington ruled for the respondents on the basis of their exclusive rights to private property. The Supreme Court reversed.
stated that a “Treaty between the United States and the Indians... is not a grant of rights to the Indians, but a grant of rights from them—a reservation
of those granted." This established for the first time the so-called "reserved rights" doctrine in American Indian law. The Court noted the historical and traditional importance of fishing and hunting to the Indians, and viewed these rights as part of a larger bundle of rights preserved under the treaty.
The Court observed that the treaty foresaw the contingency of future ownership, and secured the Indians’ rights and privileges both against the United States
and its grantees and against the state and its grantees. Therefore, the grant of a license to operate a fish wheel
gave the respondents no power to exclude the Indians from fishing. In other words, the State of Washington could not use common law
property rights to absolutely exclude the Indians from fishing on the Columbia River
.
Relying on its earlier decision in Shively v. Bowlby, 152 U.S. 1 (1894), the Court also dismissed the argument that the Indians’ treaty rights were subordinate to the powers acquired by the state upon its entry into the Union. The Court upheld the Indians' right of access to respondent's private property, thus protecting their privileges under the treaty.
was the lone dissenter, but did not write a dissenting opinion.
Through US v. Winans, the Reserved Rights Doctrine was also established, which states that treaties are not rights granted to the Indians, but rather "a reservation by the Indians of rights already possessed and not granted away by them."
Dr. David E. Wilkins writes in Uneven Ground: American Indian Sovereignty and Federal Law, "Tribes do not exercise rights because Congress granted them rights. Tribes exercise rights based on their original and indigenous sovereignty
." These "reserved" rights, meaning never having been transferred to the United States or any other sovereign, include property rights, which include the rights to fish, hunt and gather, and political rights. Political rights reserved to the Indian nations include the power to regulate domestic relations, tax, administer justice, or exercise civil and criminal jurisdiction.
, without having first obtained a state license. Because of a treaty made between the federal government and the Yakima nation, Tulee claimed that it was unlawful for the state to require him to obtain a fishing license. The case was brought before the Supreme Court and the opinion was delivered by Justice Black
. It was determined that, while a state could not require Indians to pay a license fee, they did have the power to "impose on the Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish."
In the second half of the twentieth century, processing technology improved and commercial canning operations emerged. These industries rapidly depleted the salmon run
s and the Indians' garnering of the salmon. In 1963, through the case Washington v. McCoy, tribal fishing laws were even further limited as Indians became the scapegoat for the decline in salmon populations. The ruling in Washington v. McCoy stated that the State of Washington had the power to regulate tribal fishing for conservation
purposes.
By the early 1960s, state enforcement officials openly ignored the ruling and made numerous arrests, as well as confiscated boats and fishing equipment. Some Indians, in attempt to gain back their treaty fishing rights, ignored the new regulations laid down by the state. The Puyallup
tribe of Washington were "primarily a piscatory people." Members of the Puyallup tribe, who ignored the regulations in attempt to gain back to fishing rights of their tribe were "met with arrests, beatings and confiscation of their gear and catch."
to Indian fisherman in 1964. That same year, in attempt to preserve off-reservation fishing rights dubbed "reserved" in the Winans case, Native Americans formed the protest organization known as Survival of American Indians Association (SAIA). The SAIA organized protests, known as fish-ins, in which Native Americans as well as non-Indian activists illegally fished Washington waters, particularly at Frank's Landing on the Nisqually River. Johnson, Nagel and Champagne write in American Indian Activism: Alcatraz to the Longest Walk, that "A large number of state and local law enforcement officers raided Frank's Landing in 1965, smashing boats and fishing gear, slashing nets, and attacking Indian people, including women and children." Celebrities such as Marlon Brando
, Jane Fonda
, and Dick Gregory
contributed acts of civil disobedience
and traveled to "Frank's Landing and other sites of protest in Washington State to lend their presence to the struggle."
made a speech before the United States Senate
in which he proposed a new era in regards to the nation's relationship with Native Americans. President Johnson asserted "a new goal for our Indian programs; a goal that ends the old debate about termination of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership and self-help."
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case that held that the Treaty with the Yakima of 1855, negotiated and signed at the Walla Walla Council of 1855, as well as treaties similar to it, protected the Indians’
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
rights to fishing
Fishing
Fishing is the activity of trying to catch wild fish. Fish are normally caught in the wild. Techniques for catching fish include hand gathering, spearing, netting, angling and trapping....
, hunting
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
and other privileges.
Background
In 1854 and 1855, the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
entered into a series of treaties with many of the Indian tribes
Indian tribes
The India's tribal belts refer to contiguous areas of indigenous settlement of tribal people of India.-Northwest India:The Tribal Belt of Northwest India includes the states of Rajasthan, Gujarat, Maharashtra, and Karnataka. The tribal people of this region have origins which precede the Vedic...
of the Pacific Northwest. In exchange for Indian interest in certain lands in what is today the State of Washington, the Indians reserved relatively small parcels of land for their exclusive use (hence the term "reservation"), were given compensation in monetary payments, and other guarantees. The Treaty with the Yakima, signed on June 9, 1855, guaranteed to the Yakama "the right of taking fish
Fish
Fish are a paraphyletic group of organisms that consist of all gill-bearing aquatic vertebrate animals that lack limbs with digits. Included in this definition are the living hagfish, lampreys, and cartilaginous and bony fish, as well as various extinct related groups...
at all usual and accustomed places in common with the citizens of the Territory"
In the 1890s, Lineas and Audubon Winans operated a state-licensed fishing operation on homesteaded
Homestead Act
A homestead act is one of three United States federal laws that gave an applicant freehold title to an area called a "homestead" – typically 160 acres of undeveloped federal land west of the Mississippi River....
land near Celilo Falls
Celilo Falls
Celilo Falls was a tribal fishing area on the Columbia River, just east of the Cascade Mountains, on what is today the border between the U.S. states of Oregon and Washington...
. Celilo Falls, in the Columbia River Gorge
Columbia River Gorge
The Columbia River Gorge is a canyon of the Columbia River in the Pacific Northwest of the United States. Up to deep, the canyon stretches for over as the river winds westward through the Cascade Range forming the boundary between the State of Washington to the north and Oregon to the south...
, was essential to the fishing practices of the Umatilla
Umatilla (tribe)
The Umatilla are a Sahaptin-speaking Native American group living on the Umatilla Indian Reservation, who traditionally inhabited the Columbia Plateau region of the northwestern United States....
, Yakama
Yakama
The Confederated Tribes and Bands of the Yakama Nation, or simply Yakama Nation , is a Native American group with nearly 10,000 enrolled members, living in Washington. Their reservation, along the Yakima River, covers an area of approximately 1.2 million acres...
and Nez Perce tribes. The Winans brothers obtained a license from the State of Washington to operate a fish wheel
Fish wheel
A fish wheel is a device for catching fish which operates much as a water-powered mill wheel. A wheel complete with baskets and paddles is attached to a floating dock. The wheel rotates due to the current of the stream it is placed into. The baskets on the wheel capture fish traveling upstream. ...
, a device that could catch salmon
Salmon
Salmon is the common name for several species of fish in the family Salmonidae. Several other fish in the same family are called trout; the difference is often said to be that salmon migrate and trout are resident, but this distinction does not strictly hold true...
by the ton, thus depleting the Yakamas' fish supply. Most importantly for this case, the Winans brothers' actions also forcibly prevented the Yakama Indians from crossing the land recently purchased by the brothers, blocking their passage to the traditional fishing grounds of the tribe.
The legal dispute revolved around the treaty language that secured to the Indians "the right of taking fish at all usual and accustomed places in common with the citizens of the territory," Yakima Treaty of 1855, art. 3, ¶ 2, 12 Stat. 951. In 1905, the Supreme Court reaffirmed the off-reservation fishing rights possessed by the Yakama tribe: "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." Internationally recognized scholar on Native American issues, including tribal sovereignty, N.Bruce Duthu conveys that, although the arrival of settlers on Indian land called for a modification of rights Indians once possessed exclusively, the elimination of said rights was unlawful. Where Congress has inhibited fishing rights reserved under the treaties, or land or mineral rights (also treaty-reserved rights) are limited by private or government actors, tribes are often awarded monetary relief by the courts. Where private projects have obstructed treaty fishing rights, courts within the Ninth Circuit, however, have refused to pay monetary compensation to the tribes. The Indians brought suit to enjoin
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
the respondents from using the fish wheel
Fish wheel
A fish wheel is a device for catching fish which operates much as a water-powered mill wheel. A wheel complete with baskets and paddles is attached to a floating dock. The wheel rotates due to the current of the stream it is placed into. The baskets on the wheel capture fish traveling upstream. ...
. The United States Circuit Court
United States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
for the District of Washington ruled for the respondents on the basis of their exclusive rights to private property. The Supreme Court reversed.
Legal analysis
The Court looked at the substance of the treaty and construed the disputed language as “that unlettered people understood it." In examining the negotiations with the Yakama nation, which was the largest of the Indian tribes, the District Court found that, "At the treaty council the United States negotiators promised, and the Indians understood, that the Yakamas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising." In writing for the majority, Justice McKennaJoseph McKenna
Joseph McKenna was an American politician who served in all three branches of the U.S. federal government, as a member of the U.S. House of Representatives, as U.S. Attorney General and as an Associate Justice of the Supreme Court...
stated that a “Treaty between the United States and the Indians... is not a grant of rights to the Indians, but a grant of rights from them—a reservation
Yakama Indian Reservation
The Yakama Indian Reservation is a United States Indian reservation located on the east side of the Cascade Mountains in southern Washington. It is the homeland of the Yakama tribe of Native Americans....
of those granted." This established for the first time the so-called "reserved rights" doctrine in American Indian law. The Court noted the historical and traditional importance of fishing and hunting to the Indians, and viewed these rights as part of a larger bundle of rights preserved under the treaty.
The Court observed that the treaty foresaw the contingency of future ownership, and secured the Indians’ rights and privileges both against the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and its grantees and against the state and its grantees. Therefore, the grant of a license to operate a fish wheel
Fish wheel
A fish wheel is a device for catching fish which operates much as a water-powered mill wheel. A wheel complete with baskets and paddles is attached to a floating dock. The wheel rotates due to the current of the stream it is placed into. The baskets on the wheel capture fish traveling upstream. ...
gave the respondents no power to exclude the Indians from fishing. In other words, the State of Washington could not use common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
property rights to absolutely exclude the Indians from fishing on the Columbia River
Columbia River
The Columbia River is the largest river in the Pacific Northwest region of North America. The river rises in the Rocky Mountains of British Columbia, Canada, flows northwest and then south into the U.S. state of Washington, then turns west to form most of the border between Washington and the state...
.
Relying on its earlier decision in Shively v. Bowlby, 152 U.S. 1 (1894), the Court also dismissed the argument that the Indians’ treaty rights were subordinate to the powers acquired by the state upon its entry into the Union. The Court upheld the Indians' right of access to respondent's private property, thus protecting their privileges under the treaty.
Dissent
Justice WhiteEdward Douglass White
Edward Douglass White, Jr. , American politician and jurist, was a United States senator, Associate Justice of the United States Supreme Court and the ninth Chief Justice of the United States. He was best known for formulating the Rule of Reason standard of antitrust law. He also sided with the...
was the lone dissenter, but did not write a dissenting opinion.
Influence
United States v. Winans was an important case as it set two regulations regarding the way treaties would henceforth be interpreted. First, it was determined that a treaty must be analyzed as the Indians who had agreed to the treaty would have understood it and "as justice and reason demand." In studying the negotiations made with the Yakama Nation, by far the largest of Indian nations, the District court found, "At the treaty council the United States negotiators promised, and the Indians understood, that the Yakamas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising."Through US v. Winans, the Reserved Rights Doctrine was also established, which states that treaties are not rights granted to the Indians, but rather "a reservation by the Indians of rights already possessed and not granted away by them."
Dr. David E. Wilkins writes in Uneven Ground: American Indian Sovereignty and Federal Law, "Tribes do not exercise rights because Congress granted them rights. Tribes exercise rights based on their original and indigenous sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
." These "reserved" rights, meaning never having been transferred to the United States or any other sovereign, include property rights, which include the rights to fish, hunt and gather, and political rights. Political rights reserved to the Indian nations include the power to regulate domestic relations, tax, administer justice, or exercise civil and criminal jurisdiction.
Ensuing opposition
For the early part of the twentieth century, treaty fishing rights were met with little opposition. In the 1942 Tulee v. Washington case, native fishing rights met their first major contest. In the case, Sampson Tulee was convicted of catching salmon with a netFishing net
A fishing net or fishnet is a net that is used for fishing. Fishing nets are meshes usually formed by knotting a relatively thin thread. Modern nets are usually made of artificial polyamides like nylon, although nets of organic polyamides such as wool or silk thread were common until recently and...
, without having first obtained a state license. Because of a treaty made between the federal government and the Yakima nation, Tulee claimed that it was unlawful for the state to require him to obtain a fishing license. The case was brought before the Supreme Court and the opinion was delivered by Justice Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
. It was determined that, while a state could not require Indians to pay a license fee, they did have the power to "impose on the Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish."
In the second half of the twentieth century, processing technology improved and commercial canning operations emerged. These industries rapidly depleted the salmon run
Salmon run
The salmon run is the time at which salmon swim back up the rivers in which they were born to spawn. All Pacific salmon die after spawning. While most Atlantic salmon die after their first spawn, about 5-10% return to the sea to feed between spawnings. The annual run is a major event for sport...
s and the Indians' garnering of the salmon. In 1963, through the case Washington v. McCoy, tribal fishing laws were even further limited as Indians became the scapegoat for the decline in salmon populations. The ruling in Washington v. McCoy stated that the State of Washington had the power to regulate tribal fishing for conservation
Wildlife management
Wildlife management attempts to balance the needs of wildlife with the needs of people using the best available science. Wildlife management can include game keeping, wildlife conservation and pest control...
purposes.
By the early 1960s, state enforcement officials openly ignored the ruling and made numerous arrests, as well as confiscated boats and fishing equipment. Some Indians, in attempt to gain back their treaty fishing rights, ignored the new regulations laid down by the state. The Puyallup
Puyallup (tribe)
The Puyallup are a Coast Salish Native American tribe from western Washington state, U.S.A. They were forcibly relocated onto reservation lands in what is today Tacoma, Washington, in late 1854, after signing the Treaty of Medicine Creek. The Puyallup Indian Reservation today is one of the most...
tribe of Washington were "primarily a piscatory people." Members of the Puyallup tribe, who ignored the regulations in attempt to gain back to fishing rights of their tribe were "met with arrests, beatings and confiscation of their gear and catch."
Indian response
In blatant defiance to the Winans ruling of 1905, Washington state courts closed the Nisqually RiverNisqually River
The Nisqually River is a river in west central Washington in the United States, approximately long. It drains part of the Cascade Range southwest of Tacoma, including the southern slope of Mount Rainier, and empties into the southern end of Puget Sound....
to Indian fisherman in 1964. That same year, in attempt to preserve off-reservation fishing rights dubbed "reserved" in the Winans case, Native Americans formed the protest organization known as Survival of American Indians Association (SAIA). The SAIA organized protests, known as fish-ins, in which Native Americans as well as non-Indian activists illegally fished Washington waters, particularly at Frank's Landing on the Nisqually River. Johnson, Nagel and Champagne write in American Indian Activism: Alcatraz to the Longest Walk, that "A large number of state and local law enforcement officers raided Frank's Landing in 1965, smashing boats and fishing gear, slashing nets, and attacking Indian people, including women and children." Celebrities such as Marlon Brando
Marlon Brando
Marlon Brando, Jr. was an American movie star and political activist. "Unchallenged as the most important actor in modern American Cinema" according to the St...
, Jane Fonda
Jane Fonda
Jane Fonda is an American actress, writer, political activist, former fashion model, and fitness guru. She rose to fame in the 1960s with films such as Barbarella and Cat Ballou. She has won two Academy Awards and received several other movie awards and nominations during more than 50 years as an...
, and Dick Gregory
Dick Gregory
Richard Claxton "Dick" Gregory is an American comedian, social activist, social critic, writer, and entrepreneur....
contributed acts of civil disobedience
Civil disobedience
Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...
and traveled to "Frank's Landing and other sites of protest in Washington State to lend their presence to the struggle."
Self-determination era
In March 1966, Lyndon B. JohnsonLyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
made a speech before the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
in which he proposed a new era in regards to the nation's relationship with Native Americans. President Johnson asserted "a new goal for our Indian programs; a goal that ends the old debate about termination of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership and self-help."