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'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


Michael C. Blumm


Lewis & Clark Law School

James Brunberg


Lewis & Clark Law School


Natural Resources Journal, Vol. 46, No. 2, 2006

Abstract:     
A century ago, the Supreme Court decided United States v. Winans, which upheld the Indian treaty right to cross private property to access traditional fishing grounds in the Columbia River. The Winans decision, a landmark in Indian treaty interpretation, protected critically important cultural and economic practices from white encroachment, a surprising result in an era committed to Indian assimilation and allotment. This article examines the case, its context, its participants, and its contributions to Indian natural resources law.

The dispute took place at Celilo Falls, the most important Indian fishing site in the Columbia Basin, although the government agents and attorneys viewed it as a test case, emblematic of the clash of cultures taking place throughout the Northwest at the end of the 19th century. In fact, the article considers in some depth two predecessor cases involving the same tract of land at issue in Winans and suggests that the Indian agents who pursued the case did so because they saw treaty fishing as an economic lifeline for Indians who had failed at agrarianism on-reservation.

The district court issued a confusing array of injunctions and opinions that ultimately culminated in dismissal of the case some eight years after it was filed. A direct appeal to the Supreme Court produced an opinion memorable almost as much for its poetic language as for its result. Justice Joseph McKenna, not otherwise known for his lyricism, wrote that fishing at Celilo Falls was not much less necessary to the Indians than the atmosphere they breathed and proceeded to rule that their treaty rights included the imposition of a servitude, a right in land necessary to access their traditional fishing sites. In response to the lower court's conclusion that the treaty language recognizing a tribal right of taking fish in common with settlers meant only equality of treatment, McKenna averred that such a result was certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.

The decision's lodestar status is not merely due to its language, however. It established the reserved rights doctrine, which holds that Indian treaties are not a grant of rights to the Indians but a grant of rights from them - a reservation of rights not granted. Over the last century, the reserved rights doctrine has been immensely important in recognizing tribal proprietary rights to natural resources and in recognizing tribal sovereignty. Winans also reaffirmed the rule that Indian treaties should be interpreted as the Indians, the weaker party, would have understood, and rejected claims that state ownership of the riverbed foreclosed federally created treaty rights. Both of these principles endure. Finally, the case recognized treaty fishing rights as property rights that would run against not only the federal government but also the state and private parties, a precedent that some recent lower court decisions seem to have overlooked.

Number of Pages in PDF File: 56

Keywords: Indigenous peoples law, natural resources law, property law, legal history

JEL Classification: K11, K32, N51

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Date posted: October 6, 2005  

Suggested Citation

Blumm, Michael C. and Brunberg, James, '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, Vol. 46, No. 2, 2006. Available at SSRN: http://ssrn.com/abstract=809804

Contact Information

Michael C. Blumm (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)
James Brunberg
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
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