It can be argued that United States v. Winans (1905) is an anomalous decision most favorable to Indians out of all of American case law. Winans ruled that the Indians’ treaty rights are perpetual, that a treaty is a reservation of rights granted from Indians, and that Indian treaties are binding on states and private citizens.
The language at question in the case was Article III of the Yakima Treaty that secured “the right of taking fish at all usual and accustomed places, in common with citizens of the territory.”1 All usual and accustomed places is a fine phrase, unless some day people argue over how to evaluate whether a place is usual and accustomed. The latter in common with citizens is the controversial phrase. Justice Joseph McKenna wrote in the Winans majority opinion: “The right to resort to the fishing places in controversy was a part of larger rights possessed by Indians […] which were not much less necessary to the existence of the Indians than the atmosphere that they breathed.”2 His lyrical diction helped secure the equal opportunity of Indians to fish and take fish in traditional areas. Since in common with citizens seems to imply up to half of the available fish, half of zero is still zero. Thus, if a regulation results in there being no fish to be fished, the Indian right to fish is effectively cancelled.
However, McKenna also addressed the Winans brothers’ argument that the state would have acquired a property right in the fishing places—the equal footing argument. For him, it was more of a federalism issue: the federal government’s extinguishment of Indian title is supreme over state regulation, just as federal laws and the Bill of Rights are supreme over state laws and constitutions. Thus, “equal footing claims are confined to lands submerged beneath navigable rivers”; the vast majority of fishing areas are not submerged (Blumm & Brunberg 543). In asserting that the treaty right was “a right in the land,”3 the property right of Indians would burden states and private actors. Unfortunately, the liberal Ninth Circuit has curiously ignored this principle in contemporary cases, and there is no guaranteed that the conservative Roberts Court will reaffirm Winans. Dating back to colonial days, the Lockean rights of life, liberty, and property were the main natural rights behind the philosophy of the Constitution. Although Indians by definition are not white descendants of Europeans, as citizens and as persons, they too should possess enduring treaty/property rights beyond the power of states and private parties to abridge.
1. Treaty with the Yakima, supra note 13, art. III.
2, 3. United States v. Winans, 198 U.S. 371 (1905)