Yakama treaty rights: Winans (1905) and Cougar Den (2019)

What happened

In the Treaty with the Yakama of 1855, the Yakama ceded land and kept rights outside the reservation. The treaty secures "the right of taking fish at all usual and accustomed places, in common with citizens of the Territory." It also secures "the right, in common with citizens of the United States, to travel upon all public highways."

In the early 1900s, private owners on the Columbia River used state-licensed fish wheels that blocked Yakama access to fishing sites. In United States v. Winans (1905), the Supreme Court held that the fishing right was not ended by private land patents or a state license. It reasoned that "the treaty was not a grant of rights to the Indians, but a grant of right from them," meaning the tribe kept what it did not give away.

More recently, Washington taxed fuel imported by a company called Cougar Den to supply the reservation. On March 19, 2019, a divided Court held, 5 to 4 in the judgment, that the 1855 right to travel preempted the tax as applied to a fuel importer owned by a Yakama member who hauled fuel to the reservation. Justice Breyer announced the judgment for three justices, and Justices Gorsuch and Ginsburg concurred in the judgment. Chief Justice Roberts dissented, joined by Justices Thomas, Alito and Kavanaugh. Both rulings upheld the treaty right. This is a case of rights upheld, not a loss of land.

Good to know. Here the courts upheld the treaty rights.

Summarized with AI assistance from 3 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error