United States v. Winans

US v Winans

US v Winans

by Grace Quinn -
Number of replies: 0

            While I found a lot of valuable information and analysis in the Blumm and Brunberg article, I had some trouble with the language it used to talk about the importance of salmon fishing to the Yakima Indians. In particular, it seems to romanticize the issue to the point of mythifying the salmon fishing tradition, which for me had the effect of drawing away from the political and ethical importance of the ruling.

I am still a little confused about why the authors chose to include a section (Volcanoes, Fish, and Floods??) about the geological history of the area, particularly one that is steeped in dramatic language and no anthropological information. I do think the next section about the long history, specific social organization, and spiritual significance of the salmon harvest is relevant in trying to understand the purpose and interpretation of the 1859 treaty. But the imagery, for example, of tribes who “bore torches in a rhythmic musical procession to the river” seems to be exotifying the Indian people to appeal to non-Indians’ superficial aesthetic interest more than building a framework for any legal argument (495). On p497, I was particularly caught by the syntax of “Lewis and Clark…documenting pools abounding with otter and banks lined with Indian fishing operations,” with the European explorers as the active subject, and the Indians as the object, compared to animals and natural features as passive parts of the landscape. It is possible that the authors are consciously trying to demonstrate the one-dimensional perspective of the settlers, but in the context of the previously discussed passages, I’m not so sure.

The authors also continuously praise Justice McKenna for composing such a “lyrical” and “poetic” court opinion, at one point even bluntly stating “Because of its poetic language, Winans would be worthy of citation a century later.” Perhaps its eloquence has contributed strongly to a continuing influence, I am not familiar enough with its legacy to say, but that surely is not what makes it worthy. The content of this ruling is outstanding in that it is the most honest and balanced interpretation of a treaty that we have looked at so far. I think the authors recognize this, as they claim “the Winans decision reflected a judicial attitude that was intolerant of justice,” which by the way is a really silly sentence (545). It’s another example of the authors being more romantic than analytical, which is dangerous.

I wonder how the court’s opinion and the authors’ reaction might have differed if the Indians of the Columbia River had adopted less traditional or more aggressive fishing methods. The tribes’ rights are so often referred to as “ancient” rather than “vital” or “legally secured,” it hints that there are reasons other than legal rights or blind justice that the authors, and probably many others, are interested in this case.