PART VI – THE BOLDT DECISION (1974-1978)
The most important and controversial court decision that resulted from fishing disputes in the Northwest is what is now commonly referred to as the Boldt Decision. Although the subject of later appeals and court cases, the Boldt Decision is now the document that guides the state, Indians, and federal government through the often entangling web of fishing rights.
THE UNITED STATES vs. WASHINGTON
Several factors led the federal government to enter the fishing rights dispute. First, the state of Washington appeared to be reluctant to live up to the 1968 U.S. Supreme Court decision requiring that fishing regulation must be appropriate and non-discriminatory. Second, the ongoing tensions at Frank’s Landing and the violence at the Puyallup encampment convinced the federal government that the state and the tribes were headed toward increasingly violent encounters. The federal government entered the legal struggle on the side of the tribes. Twenty tribes, including the Puyallup, Nisqually, Muckleshoot, Skokomish, Makah, Quileute, Hoh, Lummi, Quinault, and others, joined forces with the U.S. government to file a suit in Federal District Court to clarify the fishery issue once and for all. The case would be known as U.S. vs. Washington (1974), but it became more popularly known as the “Boldt Decision” when a ruling was finally issued by Federal District Court Judge George Boldt.
In a three-week non-jury trial Judge Boldt listened to 50 witnesses and reviewed 4,600 pages of transcripts. He eventually issued a 208-page decision. (Actually there are two “Boldt” decisions: Phase I covers the nature and scope of treaty fishing rights and Phase II deals with the issues of hatchery fish and habitat protection.) The trial relied on anthropology, history, biology, resource management, and legal precedents.
THE DECISION: REFLECTIONS ON THE PAST
Judge Boldt began his decision by summarizing the long, sad history of fishing controversies in Washington state. Think back over the previous readings. Do you agree with this description?
To this court the evidence clearly shows that, in the past, root causes of treaty right dissension have been an almost total lack of meaningful communication on problems of treaty rights fishing between state, commercial and sport fishing officials and non-Indian fishermen on one side and tribal representatives on the other side, and the failure of many of them to speak to each other and act as fellow citizens of equal standing as far as treaty right fishing is concerned.
Here Judge Boldt took the view that there must be real communication and cooperation between Indian and non-Indian groups. This statement already implies that Judge Boldt saw a need to grant Indian groups much more power and influence in fishing rights that had been granted to them by the state up to this point.
THE DECISION: “USUAL & ACCUSTOMED”
Boldt then stated that he agreed with the interpretation of Barbara Lane, the anthropologist called by the tribes and the federal government to help explain the origins of the treaties and the traditional Indian fishing rights and practices. Dr. Lane had pointed out that the tribes in their original treaty negotiations had most likely believed that “usual and accustomed” grounds meant fishing as it always had been conducted. Judge Boldt realized that a major problem existed in the language used in the Medicine Creek Treaty of 1855. When the treaty was translated into a language that the Indians could understand (before they signed it), it was translated into a language called Chinook Jargon. This language is not really an Indian language at all, but rather a small group of words from many different Indian and European languages. Chinook jargon originated before the 19th century as Indians from different tribes (with different languages) developed a way of talking to each other for trading purposes. When white settlers came to the Northwest and started trading with the Native Americans, so many non-Indians learned Chinook jargon; soon words from English, Russian, and French came into the jargon as well. Chinook jargon grew in use (small dictionaries were even published), and it became an effective way to talk about buying and selling productes. However, Chinook jargon was never anyone’s native language. And because its words were mostly about things that could be bought or sold, it was not very useful for the precise legal language used in writing laws. Judge Boldt wrote:
The treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists differ.
One of the tools that justices use are what are known as precedents. Precedents are previous court decisions in which the court has dealt with a similar issue and made some definitive statement regarding a legal or constitutional concept. In the case of treaty language and Indians, Judge Boldt found an1899 decision which read, in part:
The language used in treaties with the Indians should never be construed to their prejudice . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.
He also quoted the 1905 Winans decision:
And we [the court] have said we will construe a treaty with the Indians as [they] understood it and as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection, and to counterpoise the inequality by the superior justice which looks only to the substance of the right, without regard to technical rules.
Here Judge Boldt opened up a very important new aspect of the meaning and interpretation of treaties. The court was going to try to comprehend (relying on the expert testimony provided during the trial) the frame of mind and understanding of the Indians who signed the treaty. This would be crucial when defining such important concepts as “usual and accustomed grounds and stations.” At the time of the signing of the treaties do you think that the Indians of Washington would have surrendered 64 million acres and their rights to fish off reservation? Boldt did not think so. The Indians at the time of the Medicine Creek Treaty must have had some other understanding of the treaty agreement.
THE DECISION: RIGHTS VERSUS PRIVILEGES
To figure out what that other understanding might have been, Judge Boldt returned to the Winans precedent. In the Winans decision the court wrote, “the treaty was not a grant of rights to the Indians, but a grant of right from them–a reservation of those [rights] not granted.” In other words, when the signatories of the treaties relinquished the title to nearly all of their land they retained their rights to continue fishing in their “usual and accustomed” places. Access to these fishing grounds was actually a privilege extended to non-Indians. The right of Indians to fish was their right as the original inhabitants of the land. The treaty they signed had the power of federal law behind it as if it were a treaty signed with a foreign nation. “[A] treaty right, guaranteed as the supreme law of the land by the Federal Constitution, can not be qualified (i.e. limited or modified in any way) by a state.” No state may ever alter that right. Only Congress, if it chose to do so, could alter that agreement. Judge Boldt went on to write:
Off reservation fishing by other citizens and residents of the state is not a right but merely a privilege which may be granted, limited or withdrawn by the state as the interests of the state or the exercise of the treaty fishing rights may require.
THE DECISION: WERE THE STATE’S DECISIONS DISCRIMINATORY?
The state had every right to regulate its steelhead seasons and limit fishing on the Puget Sound to a certain number of days, but those regulations could not be used to regulate Native American fishing rights.
Using the precedent of Puyallup Tribe vs. Game Department of Washington (1968), Boldt returned to the issue of whether state conservation measures met “appropriate standards and [did] not discriminate against the Indians.” Clearly, a decision to ban net fishing (a traditional Indian technique, in the Puyallup River–a “usual & accustomed” fishing ground), while at the same time allowing other fish to be caught (even though caught by rod and reel) was “discriminatory” and therefore unconstitutional. The fact that the whole decision-making system did not, for the most part, involve Indians at any stage of the policy planning and implementation also discriminated against Indian rights because it did not include “due process.”
The state had also argued that since some of the reservations had disappeared over the intervening years the state was no longer obligated to honor fishing rights claimed by individuals. The Boldt decision, however, claimed that those rights were also reserved to the descendants of treaty Indians, without limitation in time. Using an older Supreme Court case called Menominee Tribe vs. United States (1968), Boldt asserted that the elimination of a treaty “did not extinguish hunting and fishing rights.”
“IN COMMON WITH”
Another difficult phrase in the original Medicine Creek Treaty was the phrase “in common with.” Look again at the following sentence from the Medicine Creek Treaty: “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory…” What do you think “in common with” means in that sentence? The state of Washington had maintained that the language “fishing in common with” merely meant that Indians and non-Indians could have the same chance to fish. You may remember that earlier in this controversy the state had required that Indians follow the same laws regulating fishing as were applicable to non-Indians. You will also recall that these requirements were slowly struck down by the courts.
Boldt tackled this problem by trying to figure out what “in common with” must have meant to the Indian signatories of the original treaty. In his decision, Boldt wrote:
The ‘in common with’ language must have been understood and intended by both parties to assure non-Indians an opportunity to engage in fishing, but not at the expense of existing Indian claims and rights. Undoubtedly the Indians understood that the non-Indians would share access to saltwater seine and troll fisheries. Indians had no reason to expect that it would become necessary for the State to limit non-Indians’ harvest to provide an Indian harvest. The very fact that the United States made treaties indicates that the federal government was concerned to integrate Indians into the new order by peaceful and legal means. Legal recognition of preexisting Indian tenure and use rights is evidenced in the alienation of Indian lands by treaty-arranged compensation. Indian fishing rights were specifically exempted from such alienation, and this is further attested by the fact that no compensation was arranged for their extinguishment. In my opinion, the ‘in common’ language was intended to allow non-Indians to fish subject to prior Indian rights specifically assured by treaty.
In one of the most controversial parts of the decision Boldt continued on this subject:
By dictionary definition and as intended as used in the Indian treaties and this decision “in common with” means sharing equally the opportunity to take fish at the “usual and accustomed grounds and stations,” therefore, non-treaty fishermen shall have the opportunity to take up to 50% of the harvestable number of fish that may be taken by all fishermen at usual and accustomed grounds and stations, and treaty right fishermen shall have the opportunity to take up to the same percentage of harvestable fish.
This was further justified in Boldt’s mind as a way of partially compensating for the disproportionate numbers of fish, many of which might otherwise be available to treaty right fishermen for harvest, caught by nontreaty fishermen in marine areas closely adjacent to but beyond the territorial waters of the state, or outside the jurisdiction of the state though within Washington waters.
This meant, with some modifications, that Indian fishermen would be guaranteed fifty percent of the catch. At the time of the decision the Native American catch was around 5%. Clearly this decision was going to alter things quite significantly. To non-Indian fishermen this was a serious economic blow as well as a view of the treaty language they could not accept.
Later, fishermen would sue in court that this interpretation was a violation of their rights because this type of allotment of fish was discriminatory. However, the court ruled that this guarantee of 50% of the fish catch was not given to Indians because of some “racial” classification, but was provided to them according to a political classification which was a result of their treaty status with the American government.
In another part of his decision, Boldt also wrote: “The State must regulate non-Indian fishing in marine areas to assure, as far as possible, that an adequate number of harvestable fish reach the Indian fisheries.” This would be accomplished by manipulating the fishing season of non-Indians. The length of the season and the dates of the season would be limited to help guarantee Indians access to their share of the salmon runs.
Boldt’s decision came as a bitter blow to non-Indian fishermen who believed that this was giving special rights to Indian fishermen. There were protest marches on the federal court building and the state capitol. Some opponents of the decision resorted to vigilante violence. Judge Boldt was hung in effigy. There were fish-ins by non-Indian fishermen this time and dozens of arrests. Game Department officials were shot at, this time by non-Indian fishermen. There were dozens more lawsuits. To this day if you mention the name of Boldt to people interested in this issue, they will have strong opinions about the decision. His original decision was appealed by the state of Washington to the Federal Ninth Circuit Court of Appeals where the state lost again. The state tried one more time at the U.S. Supreme Court but in a 6-3 decision the Boldt decision (nearly all of it) was upheld as being sound.
“UPHOLDING BOLDT”
In one court challenge to the Boldt decision, the Ninth Circuit Court of Appeals (a federal court) reaffirmed the appropriateness of Boldts ruling. This court concluded that:
The state’s [Washington’s] extraordinary machinations in resisting the decree have forced the District Court to take over a larger share of the management of the state’s fishery in order to enforce its decrees. Except for some desegregation cases the district court has faced the most concerted official and private efforts to frustrate a decree of the federal court witnessed in this century. . . .The record in this case and the history set forth in the Puyallup [case] . . make it crystal clear that it has been the recalcitrance of Washington State officials (and their vocal non-Indian commercial and sports fishing allies) which produced the denial of Indian rights requiring intervention by the district court. This responsibility should neither escape notice nor be forgotten.
The U.S. Supreme Court (in the case of US vs. Washington, 1978) also affirmed the Boldt decision. In a 6-3 vote the Supreme Court once again ruled against the state by saying that the right to fish in the “usual and accustomed” places meant more than equal opportunity for Indians and non-Indians to fish. It guaranteed to the Indians an equal share of the salmon moving through their “usual and accustomed grounds and stations.” The court stated:
It is true that the words in common with may be read either as nothing more than a guarantee that individual Indians would have the same right as individual non-Indians . . . but we think greater importance should be given to the Indians likely understanding of the other words in the treaty and especially the reference to the right of taking fish . . . in this context, it makes sense to say that a party has a right to take–rather than merely an opportunity” to try to catch–some of the large quantities of fish . . .
In our view, the purpose and language of the treaties are unambiguous; they secured the Indians right to take a share of each run of fish that passes through tribal fishing areas.
In the final Fishing Rights case of this era, Washington v. Fishing Vessels Assoc (1979), the United States Supreme Court summarized the long legal struggle this way:
The purpose of our cases is clear. Non-Indian fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other “citizens of the territory.” Both sides have a right to take fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the rights of taking fish in common with other citizens.
The Boldt decision also included a number of rules that were adopted for the state and the Indians to manage the fishery together. In fact the federal court was, essentially, in charge of managing the Boldt Case Area for several years to come. As part of this co-management process the treaty tribes set up the Northwest Indian Fisheries Commission to work with state agencies to manage the fisheries in the region.
The impact of the ruling is best demonstrated in the following chart depicting fish catch in this state:
Treaty Catch = Native Americans Non Treaty = Non-Indians
As you can see from the above chart, the Boldt decision started to have a significant impact on who was catching fish in this state by the late 1970s. The percentage of fish being caught by Native Americans had increased from 5% to over 40% by 1982. Soon this figure would be at the 50% figure.
WHAT A LONG STRANGE TRIP IT HAS BEEN
The controversy over fishing continues to this day, but the focus has shifted from the issues of the Boldt decision. Today there is tremendous concern about the declining numbers of salmon. Pollution, dam construction, destruction of habitat, and overfishing have contributed to the overall decrease in returning runs of salmon. Today the 50-50 allocation divides up an ever-diminishing salmon resource.
For Indians the history of fishing rights cases was a slow vindication of their treaty rights. This legal struggle challenged Washington state’s policies, embedded in 19th century negative attitudes towards Indians. Through a series of court cases, Native Americans reversed decades of ill will and neglect from the government. Years of state court decisions which allowed the non-Indian fisheries to expand at the cost of the Native Americans of Washington were reversed or thrown out by the U.S. Supreme Court. The courts reaffirmed the supremacy of the federal government in matters related to Native Americans. For thousands of Native Americans and their supporters who had risked arrest, economic hardship, and physical suffering there grew an anticipation of what tomorrow would bring. The Boldt decision helped spur the growth of tribal fisheries and economic self-sufficiency. It created the need for trained biologists and technicians to maintain and run new hatcheries. Jobs were created in the new fisheries bureaucracy now to co-manage the salmon fisheries. For the state of Washington and its citizens, their relationship with the indigenous people of this area was forever altered. For most people in the state the controversy has disappeared from memory, but there can be no doubt that today “fishing in common” has finally taken place.