In “Putting the Flesh on the Bones of U.S. v. Winans,” Halm argues that “courts should award monetary relief to tribes when private parties impair tribal treaty rights to take actual fish” (p. 2). But does a monetary injunction really compensate for the loss of culture, heritage and livelihood (as outlined in the “Celilo Falls” article)?
The readings for this week highlighted a disconnect between the cultural importance of certain facets of the land (fish, water, trees, etc.); the treaty rights that protect those things; and the environmental rationales behind protecting them in certain cases. Taking the example of fish in the northwest, all three components (cultural, legal and environmental) have a stake in ensuring the continuity of the fish. Under Winans, the treaty is the only thing protecting the fish. Even if private and governmental parties don’t protect the fish for the sake of the tribe or the ecosystem, the treaty holds them to it.
This article repeatedly asserts Congress’s right to uphold Indian treaties, even if the Courts fail to do so. The “rights-focused rationale in the treaty land context” (10) means that Indian rights to certain “resources” are rendered discrete and, in the U.S. judicial system, replaceable with monetary compensation. Can money really replace the practical and ceremonial value of fish? How could monetary relief possibly “make the tribe whole,” and what does it mean for a tribe to be “whole”?
Roberts and Edmo suggest that the genesis of the struggles with the dam and treaty rights was in the privatization of land. Winans and treaty rights cases are thus directly connected to the Dawes Act and allotment, whose reverberations are still felt today. The ruling in Montana v. United States (1981) states that “tribes have only limited powers to regulate non-Indian hunting and fishing on non-Indian land within the reservation” (Pevar, p. 193). This non-Indian land is a direct result of allotment, without which that land would still belong to the tribe. States can regulate water use by non-Indians on such land, presumably for the same reason (Pevar p. 217). (Luckily Winters rights do not transfer to non-Indian purchasers of allotted land.)
What if, in order to protect tribes’ right to 50% of fish, the government decided to enact conservation measures to ensure that the fish did not drop beneath a certain limit, instead of noting that the tribe’s 50% will continue to drop as the overall fish reserves decrease? This could be a way of viewing these varied interests not as competing but as invested in seeing the same thing: the continuity of salmon in the northwest.