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Doctrine

treaty fishing rights

Treaties that reserved fishing rights have been read as rights the tribes kept, not gifts: Winans (1905), Fishing Vessel (1979) and Mille Lacs (1999).

Definition
Treaty-reserved rights to fish, hunt and gather off-reservation, such as the Stevens treaty and Great Lakes rights.

What happened

Many treaties in which Native nations gave up land kept the right to fish, hunt and gather. Three Supreme Court decisions explain how courts read those promises.

United States v. Winans (decided May 15, 1905) was a suit to stop the Winans brothers from obstructing Yakama Indians from fishing on the Columbia River. The brothers held state licenses for fish wheels there. The treaty, signed in 1855 and ratified in 1859, secured the right to take fish at all usual and accustomed places. The Court said the treaty was not a grant of rights to the Indians, but a grant of right from them, a reservation of those not granted.

Washington v. Washington State Commercial Passenger Fishing Vessel Association (decided July 2, 1979) concerned treaties from 1854 and 1855 guaranteeing a right of taking fish at usual and accustomed grounds in common with all citizens of the Territory. The Court held the language secured to the tribes a right to harvest a share of each run of salmon passing through tribal fishing areas. It said the share secures so much as, but no more than, is necessary to provide a livelihood, a moderate living, with a maximum of 50 percent.

In Minnesota v. Mille Lacs Band (1999), the Court concluded the Chippewa retain the hunting, fishing and gathering rights guaranteed by the 1837 Treaty, rejecting Minnesota's argument that statehood and other acts had ended them.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error

What the sources say, and how this was checked

Well supported by the sources below.

  1. the treaty was not a grant of rights to the Indians, but a grant of right from themUnited States v. Winans, 198 U.S. 371 (1905)
  2. secures to the Indian tribes a right to harvest a share of each run of anadromous fish that passes through tribal fishing areasWashington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979)
  3. secures so much as, but no more than, is necessary to provide the Indians with a livelihoodWashington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979)
  4. we conclude that the Chippewa retain the usufructuary rights guaranteed to them under the 1837 TreatyMinnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)

Research notes. The fishing-rights line also includes the Boldt decision, the Great Lakes cases and later salmon-culvert litigation, which are not covered here. "Salmon" is used for the opinion's "anadromous fish".

Who is doing the work

Native legal and land defense, nationally

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Connections

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Sources

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Kind
Doctrine
Confidence
Medium

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