1. Introduction to Federal Indian law
Module 8: The Marshall Trilogy and United States v. Winans
The Marshall Trilogy
In this segment of our lecture series we’re going to talk about the development of Nineteenth Century Indian policy and
the Supreme Court’s major precedents of the late Nineteenth Century era. We’ve discussed the Marshall trilogy of cases,
Johnson v. McIntosh decided in 1823 and then the two Cherokee Nation cases; Cherokee Nation v. Georgia of 1831 and
Worcester v. Georgia of 1832. These three cases set out several foundational principles of the federal/tribal relationship,
which Congress and the Supreme Court in the latter half of the Nineteenth Century build upon in developing United States
Indian law and policy. So, coming out of the Marshall trilogy, what are the foundational principles? We have first the idea,
affirmed in the Cherokee cases, of Congressional Plenary Power. The idea that Congress has ultimate authority over
Indian tribes of course derives from the Doctrine of Discovery, which we discussed in Johnson v. McIntosh. And as
successor to Great Britain’s discovery rights, the United States assumes the powers of sovereignty and dominion over
Indian nations within the borders of the United States. And it’s upon that discovery doctrine basis that Marshall articulates
the foundations of congressional powers in Indian affairs in the Cherokee cases. Also, coming out of the Marshall trilogy
is a second important principle, the principle of inherent tribal sovereignty. Marshall says expressly in the cases involving
the Cherokee Nation that the tribe’s powers are inherent powers of self-government, and only those that are expressly
denied by the Doctrine of Discovery are taken away. What he says in fact is that the doctrine denies the tribes the ability
to sell their land to whomsoever they please; they could only sell their land to their discovering nation. And it also denies
to them the ability to make treaties with foreign nations. They are in an exclusive relationship with the United States.
Marshall calls this the Domestic Dependent Nation relationship or the guardian/ward relationship. And that brings us to
the third principle of the Marshall trilogy and in fact, that is the trust doctrine, which grows out of this notion, which
Marshall announces as the guardian/ward relationship. The trust doctrine imposes certain types of fiduciary duties upon
the United States.
Canons of Construction
One aspect of the trust doctrine which is intimated in the Cherokee cases is the idea that our courts, the United States
Supreme Court in cases involving Indian tribes apply what are called Canons of Construction in so that if a treaty has
been negotiated between the United Sates and an Indian tribe we get the method from the Cherokee cases that Marshall
lays out as to how that treaty should be interpreted. You’ll remember in the Treaty of Hopewell of 1785, which is really the
central document of the Cherokee Nation cases because that’s the document that the Court is interpreting to understand
Georgia’s rights, if any, within the Cherokee Nation, and one of the clauses of that treaty said that the United States shall
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2. have the right to control all commerce and relations with the tribes. And the issue is did that really mean everything? Did
that mean that all aspects of Indian rights are to be defined by the United States? And Marshall says that you have to look
at that clause as the Indians would have understood it and against the broad backdrop and history of treaty relationships
going all the way back to the colonial era. And so, from this idea, later courts in the Nineteenth Century developed these
notions that in interpreting Indian treaties, ambiguities are to be resolved in favor of the tribes. Secondly, according to
these Canons of Construction, a canon means a rule, a guide, so if the language isn’t plain, courts turn to these canons.
The second canon is to interpret the treaties as Indians themselves would have understood them, and we see that clearly
applied by Marshall in the Cherokee cases. Then the third canon is that courts are to construe treaties liberally in favor of
tribes. In time, we in fact see federal courts apply these Canons of Construction not only to Indian treaties but to other
Indian legislation as well passed by Congress.
Summary
So, that in summarizing the legacy of the Marshall cases as we move into the latter Nineteenth Century, we can actually
identify four core principles that emerge from the Marshall trilogy that define the federal/tribal relationship. Congressional
plenary power and that power is so great that it keeps the states out of Indian affairs. As Marshall says in Worcester v.
Georgia, the laws of Georgia have no force, have no power within the Cherokee Nation, only federal authority applies and
it’s an exclusive tribal/federal relationship. The second principle is the inherent tribal sovereignty doctrine. Today,
oftentimes Indian rights lawyers will paraphrase the inherent tribal sovereignty doctrine by saying that whatever hasn’t
been taken away by Congress, by treaty, or statute remains. So, whatever hasn’t been taken away remains is a very
familiar phrase that Indian rights lawyers’ use and it’s a way to summarize exactly what that inherent sovereignty doctrine
means. It means that other than the Doctrine of Discovery, other than congressional exercises of plenary power that can
be found in a treaty, for example many treaties may restrict tribal jurisdiction over non-Indians. The “bad men” clauses in
some of the treaties that you see so often that required the tribes to turn “bad men” amongst the whites over to the United
States for prosecution. That’s an example of a restriction by Congress of tribal sovereignty. Or statute, such as the Major
Crimes Act by which Congress imposes federal criminal jurisdiction over the reservation. So, those are all examples of
aspects of inherent tribal sovereignty that have been diminished by the federal government under congressional plenary
power. But basically whatever hasn’t been taken away remains is an abiding principle of federal Indian law, which we’ll
see the court apply again and again. And then this third idea of the trust doctrine, that Congress has a fiduciary
relationship that it exercises certain powers over Indian property and Indian rights, but in doing so it must act as a trustee,
it must act for the benefit of the Indians. And as a fourth principle very closely connected to all of these other principles
and emanating from the trust doctrine, are the Canons of Construction and that defines the role of the courts. When
courts interpret Indian treaties or important statutes passed by Congress they apply these Canons, which all of them
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3. combined essentially say give the tribes a break. If there is any confusion, if there’s any ambiguities, if we’re not clear
how a treaty should be interpreted, interpret them in favor of the Indians, interpret them liberally, and interpret them as the
Indians themselves would have understood them.
United States v. Winans
A good example of a case, which applies the Marshall model in all its different elements, is an early Twentieth Century
case, United States versus Winans. It’s a 1905 case, its an important case because much of the litigation that develops
later in the Twentieth Century around treaty rights and that involves water rights throughout the Southwest for example, in
the great plains, fishing rights in the Pacific Northwest is all based upon the analysis that the Supreme Court engages in
United States v. Winans. And that case is a really classic application of the Marshall model. In this case involving an
1859 treaty between the Yakama Nation and the United States, Article I of the treaty provides that the tribe, “cedes,
relinquishes, and conveys all their right, title, and interest” in specified land. And this is a good opportunity to sort of
review the history of treaty negotiations that take place in the Nineteenth Century. What would normally happen, what
happens in the Pacific Northwest for example, is that the United States decides the time has come to settle this area of
the country with white settlers. And the first thing that has to be done is so called clearing Indian title, the aboriginal title
rights of tribes derived from the Doctrine of Discovery. And that also of course means clearing tribal sovereignty, inherent
sovereignty, diminishing that sovereignty, extinguishing it over lands that are granted to the United States. So, what
would happen is the United States in this case would send Governor Stevens up to negotiate individual treaties with the
tribes in the Northwest. He would ask these tribes at various treaty conferences to describe their traditional aboriginal
territory and that might be a very vast and expansive territory from one mountain range to a river for example. And
Stevens would then say the government is willing to negotiate over a much smaller reserved parcel of land from your
aboriginal title territory. So, you’d have the whole aboriginal title territory that would be identified by the tribes and then
the tribes and the United States government would negotiate over a smaller reserved portion of that territory and that
becomes the tribe’s reservation. And the aboriginal title and aboriginal rights that had existed in those reserved territories
now become recognized by the federal government. And we begin to understand how this idea of federal recognition of
tribes can arise from a treaty. That treaty, establishing those boundaries, establishing the area within which tribes can
exercise their sovereignty, their inherent sovereignty and jurisdictional rights, the area in which the trust relationship
applies to tribes, all derive from that treaty. So, in 1859 the Yakamas and the United States sign a treaty. The tribe cedes
and relinquishes a vast area of aboriginal title and reserves for its use and occupancy a smaller title.
United States v. Winans
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4. Now, the Yakamas were a fishing people, they relied on fishing and they recognized at the time that they sold this treaty
that many of their traditional and customary fishing grounds were excluded from their reservation, and they insisted not
only on the exclusive right of taking fish within their own reservation but they also demanded and negotiated and received
in the negotiations a guarantee of what are called off-reservation fishing rights. And so literally, the tribes spoke, if you
read the treaty negotiations, they spoke of their traditional fishing grounds and wanted to make sure that the treaty would
not exclude them from those fishing grounds. And so in the treaty, Article III contains a provision which is found
throughout what are called the Stevens Treaties, Governor Stevens negotiated a number of treaties with tribes throughout
the Northwest, and you find this language in most of those treaties. The tribes reserve the right to fish at all usual and
accustom places “in common with the citizens of the territory.” So, if you look at that language, it reserves to the tribes
important off-reservation rights to leave the reservation and go fish for salmon, steelhead trout at their traditional fishing
grounds, in common with the citizens of the territory. That’s [ratified] in 1859. The Winans case occurs almost fifty years
later so you can imagine what’s happened. There’s been an influx of white settlers into the territory, in fact canning is
invented; salmon becomes a very marketable commodity, and Mr. Winans and some other non-Indians decide that they’re
going to apply for a license from the state of Washington to set up a fishing wheel on the Columbia River, literally
scooping up those fish to the point where there’s not much fish left for the Indians to exercise their off-reservation rights.
Not only that, many of the fee simple landowners who had acquired these lands from the United States, so the way the
treaty works is the tribes cede, relinquish lands within their aboriginal territories, maintain title to their reservations.
Outside of those reservations then, the government divides up those lands and sells them in fee simple to non-Indian
settlers and these non-Indians settlers feel that they own the land, it’s theirs, they have what the common law call sole
and despotic dominion, and they don’t like Indians marching across their land to get to the Columbia River to exercise
their treaty rights. And so, the non-Indians attempt to prevent the tribes from exercising those important treaty rights.
What Would Justice Marshall Say?
And so the Court is asked to apply the basic principles of federal Indian law to this question of whether or not the Indians
continue to have a right under their 1859 treaty to exercise these off-reservations fishing rights. One of the games I play
with students in my class is what would Justice Marshall say? How would Justice Marshall analyze this case? I think this
is a good case to work with you as tribal leaders to understand how lawyers think, how lawyers apply what’s called the
Marshall model. So let’s literally go through our basic principles of the Marshall model and start thinking about the Winans
case as a way to apply that model and we’ll see how the Court itself, some seventy years after Marshall, faithfully does
apply his model. We begin with congressional plenary power. The treaty itself is an action of congressional plenary
power. Congress has authority under the Constitution to negotiate treaties with tribes and by virtue of that authority, the
supremacy clause of the Constitution, which makes federal law the law of the land, which overrides state law, locks in
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5. literally because of the supremacy clause the treaty supersedes any inconsistent state laws. So the fact that the state of
Washington may recognize fee simple property rights, and even a right of trespass over those lands, because federal law
is involved, because the exercise of congressional plenary power is involved, it trumps state authority. Remember the
second principle of the Marshall model, what would Justice Marshall say about inherent tribal sovereignty? Well, the tribes
prior to surrendering the lands outside their reservation in the treaty had inherent tribal sovereignty over their traditional
territory and that tribal sovereignty included the right to fish over their lands. It was in essence a property right of theirs
and in the treaty they refused to give that up. And so having refused to give that up, remember the principle, whatever
hasn’t been taken away remains. In fact the treaty doesn’t take away the tribal right to fish on those off-reservation lands,
it affirms it. So, here we have an affirmation of an inherent tribal sovereign power over these fishing grounds; the right to
get there and to exercise that fishing right. Remember the third principle of the Marshall model, the trust doctrine. You’ll
notice that this case is the United States versus Winans. It’s the United States exercising its trust responsibility to protect
Indian rights, in this case the treaty rights, suing a state resident and implicitly also suing the state of Washington to make
sure that it listens to federal law, and exercising that trust responsibility is bringing this case. Because you’ll remember in
Cherokee Nation v. Georgia the Court had held, Justice Marshall himself had held, that the tribes did not have the ability
to bring a suit against a sovereign state of the union. And so if the federal government doesn’t bring this case, no one will,
the tribes won’t have the right in this point in time in 1905. There was no federal statute as there is today that allows
tribes to bring cases in their own name against states in certain instances. And so here we see the trust doctrine locking
in as well and it will explain why the federal government has this obligation to protect this right guaranteed by treaty. And
then, finally, the Canons of Construction. What would Justice Marshall say about this language that reserves to the tribes
off-reservation rights at all usual and accustom places in common with citizens of the territory? He would say that you
would interpret that liberally in favor of the tribes, resolve any ambiguities. So, you look at this language of “in common
with,” well what does that mean? And as we know from cases in the later Twentieth Century this language, using the
Canons of Construction, was interpreted as meaning a fifty-fifty share. That’s the most liberal favorable construction that
the Court could come up with. The state of course was arguing that in common with meant that the tribes are regulated
along with the rest of the citizens of the state. And the Court applying the Marshall model says you can’t take that sort of
very narrow, negative view that diminishes tribal rights. So, you can see, what would Justice Marshall say about this
case? He would say Congress has plenary power to negotiate a treaty. Any treaty rights that are reserved trump state
sovereign rights. He would say that tribes have inherent sovereign rights, and whatever hasn’t been taken away remains.
So, they never surrendered their off-reservation fishing rights; in fact the treaty expressly memorializes them. He would
say the federal government has a trust responsibility to protect those rights. And he would say that in interpreting the
treaty, the Court should essentially interpret the terms in favor of the tribes. And what you’ll notice that as you work your
way through Winans, the Court faithfully applies all elements of the Marshall model.
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6. United States v. Winans
So Justice McKenna is delivering the opinion, one of the better known justices of the late Nineteenth and early Twentieth
Century Supreme Court. He notes that the United States had brought this action on behalf of the Yakama Nation to
enjoin respondents, Winans and other non-Indians, from obstructing these off-reservation fishing rights. He then begins
to deal with the arguments against the tribes that are being asserted. He says that the Indians, the argument that’s being
made by Winans and other non-Indians is that the Indians acquired no rights by the treaty other than what any inhabitant
of the state would have had. And what McKenna says on behalf of the Court is that that’s ridiculous. You have to go to
the Canons of Construction to understand what the tribes themselves understood their rights were. “The right to resort to
the fishing places in controversy was a part of larger rights possessed by the Indians.” So, here we get this notion of the
Reserved Rights Doctrine. Winans clearly establishes that a treaty reserves rights to the tribes from their aboriginal title;
takes those rights out and reserves them and puts them in the treaty, literally federalizes those. And upon the exercise of
these rights, he says, upon the exercise of which there was not a shadow of impediment. In other words the treaty says
nothing about any impediment, any attempt to limit those rights. “. . .and which were not much less necessary to the
existence of the Indians than the atmosphere they breathed. New conditions came into existence. . .” In other words,
many people moved into this area, many non-Indians. That’s what oftentimes happens in treaties, they’re negotiated fifty,
a hundred years ago, circumstances change. But what does that mean? He says well obviously their rights have to be
accommodated but “[o]nly a limitation of them. . .was necessary and intended, not a taking away. In other words the
treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.” And
clearly Congress under its plenary power has the authority to do that, to recognize inherent tribal sovereignty over those
rights. And so you can see how the court working its way through the issues here, applies the Marshall model, goes to
the treaty, interprets the treaty liberally in favor of the Indians, defined, in fact, that the treaty right continues to exist and
that it cannot be interfered with by the citizens of the state. And so in conclusion Justice McKenna writing for the Court,
with one dissent, says “[t]he license from the State, which respondents plead to maintain a fishing wheel, gives no power
to them to exclude the Indians, nor was it intended to give such power. It was the permission of the State to use a
particular device. What rights the Indians had were not determined or limited.” So congressional plenary power, the
treaty rights, the trust doctrine, inherent tribal sovereignty, and the Canons of Construction all come into play here to
decide this important early Twentieth Century case, upholding tribal rights.
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