Putting Flesh on the Bones of United States v. Winans: Private Party Liability under Treaties That Reserve Actual Fish for the Tribal Taking

Authors

Lindsay Halm

Abstract

One hundred years ago, in United States v. Winans, the United States Supreme Court announced that private parties are subject to the rights reserved by Indians under treaty. Accordingly, tribes enforce their treaty fishing rights in federal court to halt private and government actions that threaten to impair their reserved right to take a fair portion of fish from usual and accustomed fishing stations. In addition to injunctive relief, federal courts may award monetary relief to tribes where Congress limits the treaty fishing right. In general, monetary relief is a remedy against any defendant actor who impairs non-fishing treaty-reserved rights. Furthermore, courts have long awarded damages to commercial fishers for interference with their vocational rights. Courts in the Ninth Circuit, however, have denied monetary relief to tribes when private projects destroy the treaty right to take fish. This Comment argues that courts should award damages to tribes when private projects proximately cause harm to a tribe's right to take actual fish.

First Page

1181

Recommended Citation

Lindsay Halm, Notes and Comments, Putting Flesh on the Bones of United States v. Winans: Private Party Liability under Treaties That Reserve Actual Fish for the Tribal Taking, 79 Wash. L. Rev. 1181 (2004).
Available at: https://digitalcommons.law.uw.edu/wlr/vol79/iss4/5