The Boldt Decision’s impact on Indigenous rights, 50 years later

By Nicholas K. Geranios of Crosscut

Fifty years ago, a federal judge in Western Washington issued a decision that dramatically improved the economic – and legal – prospects of Indigenous nations within the state.

U.S. District Judge George Hugo Boldt ruled on Feb. 12, 1974, that Native Americans were entitled to half the salmon catch in the state because of treaties signed a century before. It was a key decision in the long-running Fish Wars that had rocked Washington for decades.

The case, United States vs.Washington, is considered by experts one of the most comprehensive and complex legal fights in the history of Native American law, not only forcing the U.S. to keep promises in signed treaties but also affirming in U.S. law that tribes are sovereign nations.

It was so significant in its affirmation of Native American fishing rights that it is known simply as “the Boldt Decision.”

“Fifty years ago, many Nisqually families were struggling,” said Willie Frank III, chairman of the Nisqually Tribe and son of legendary fishing rights activist Billy Frank Jr., in a November opinion piece written for The Olympian. “The Boldt Decision made tribes equal partners with the state in salmon management and restoration.”

Even half a century later, the decision, which had huge implications for the state’s commercial fishing industry, is still contentious.

The roots of the decision start in the mid-1800s, when the Washington Territory’s first governor, Isaac Stevens, signed a series of treaties with 20 Indigenous nations that guaranteed their off-reservation fishing rights.

That was fine with the white settlers, who were more interested in farming and logging than fishing.

“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,” the treaties said.

But over time, the number of settlers greatly increased and large commercial fishing operations developed. The catch of the tribes was much smaller than what commercial fishermen were taking. The state also started to impose regulations and fishing fees on the tribes, who eventually sought legal remedies.

For decades, the issue remained unsettled. Eventually police arrests began for Native Americans fishing off their reservations. Actor Marlon Brando was arrested during a 1964 “fish-in,” a common method of Native American protest inspired by the Black civil rights movement.

By the 1970s tribal fishermen were getting only about 5% of the available salmon harvest each year, according to the Puyallup Tribe. Incidents of violence broke out in fishing camps, as tribal members were assaulted and arrested by game wardens and local authorities who contended that the treaties confined Native Americans to fishing only on reservations.

Native Americans disagreed.

“Tribal fishers have exercised their rights to fish on ancestral waterways since time immemorial,” editors of the Puyallup Tribal News said in a recent editorial.

The late Lorraine Loomis (Swinomish), who had been chair of the Northwest Indian Fisheries Commission, recalled, in a 2020 reflection on the Fish Wars, a key 1970 incident at a fish camp under the Puyallup River Bridge: State officials gassed and jailed some 60 tribal fishermen.

The incident was witnessed by Stan Pitkin, at the time the U.S. Attorney for the Western District of Washington. He was so upset by what he saw that nine days later his office filed a lawsuit against the state of Washington.

The bridge where the incident occurred is now called Fishing Wars Memorial Bridge.

The non-jury trial was held in Tacoma in 1973 in Boldt’s courtroom.

Boldt’s ruling upheld the validity and enforceability of the Stevens treaties of 1854-1856 to the current day, as well as the tribes’ right to take half of the available fish every year.

“The Boldt Decision really stands for the proposition that the treaties are the law, and they have to be followed, even as the tribes and the world have changed. The treaties never ended at any point in time,” said Eric Eberhard, associate director of the University of Washington Native American Law Center. “The state took the position that the tribes only had the rights to obtain a license from the state and to fish within the limits set by the state.”

While the lawsuit dealt with fishing rights, the Boldt Decision was more far-reaching in that it also affirmed the notion of tribal sovereignty. 

The decision was subsequently upheld by the Ninth Circuit Court of Appeals. The U.S. Supreme Court initially declined to hear the case, essentially making it the law of the land.

Native Americans rejoiced. 

“We didn’t have any money. We didn’t have any expensive attorneys,” said Billy Frank Jr. in 2014 on the 40th anniversary of the decision. A member of the Nisqually Tribe who pushed in the 1960s and ’70s for Native fishing rights, Frank had been arrested more than 50 times for his efforts. After his death in 2014, Frank was posthumously awarded the Presidential Medal of Freedom by President Obama. He had been chairman of the Northwest Indian Fisheries Commission for more than 30 years.

Commercial and sport fishermen were outraged by Boldt’s decision, and lashed out in protest. They drew crowds of supporters.

Washington State Historian John Hughes said commercial and sport fishermen suffered big declines in business after the Boldt Decision. “They protested mightily that their livelihoods were greatly diminished,” Hughes said. “The fallout for the [non-Native] fishermen was profound.”

Boldt, an Eisenhower appointee who died in 1984, was vilified.

“I was burned in effigy,” he told The New York Times in 1979, adding that he faced an “enormous amount of condemnation.” Boldt told the newspaper he got “bales of mail,” often containing “loathsome material.”

Hughes has written a new biography of the judge called “Lightning Boldt.” He recalled Boldt as “conservative looking, bald, bow-tied and upright.” It turned out the judge was something else. “He was a very complex man who knew the history of the issue,”  said Hughes, who attended two days of the trial in 1973 as a journalist.

The decision was issued on Abraham Lincoln’s birthday, to honor Lincoln’s civil rights legacy, Hughes said.

Even now, the issue is divisive. Hughes said he received calls from critics while researching the book asking if he was on the tribes’ payroll.

The state initially refused to enforce Boldt’s order, so Boldt took control of the fishery and tasked the Coast Guard and other federal agencies with enforcing his rulings. In 1979, the U.S. Supreme Court rejected continuing attacks on his decision, essentially settling the issue for good.

The Washington Attorney General at the time, Slade Gorton, argued the case against the Native American claims. Gorton, later a U.S. senator, insisted the decision granted Native Americans special rights in violation of the equal protection clause of the Constitution.

“The 14th Amendment mandates that no person shall be deprived of the equal protection of the laws by reason of race,” Gorton, who died in 2020, said in arguments. “In the Boldt Decision, the Supreme Court had to distort the plain meaning of the Stevens treaties, which gave the Indians equal rights to fish, not 50%.”

Since the original Boldt Decision, litigation has continued for 49 years to define which fish are included — such as shellfish — and what constitutes tribal rights under the treaties. 

Salmon fishing now is controlled by the Puget Sound Salmon Management Plan of 1985, developed by the state and Native nations, though some issues, such as protecting fish ecosystems, are still under debate.

The nations are also concerned over water quality and whether the fish are ill and dying due to water pollution.

“The salmon fishery is not doing well, and there’s real concern among the tribes that the fish could be headed toward extinction if more is not done to protect the fish and to restore their habitat,” Eberhard said.

But the past five decades have seen a dramatic improvement in the lives of the tribes, Willie Frank said. The Nisqually have built two major hatcheries to provide salmon for harvest, as well as a community center and housing for tribal members.

“Fifty years ago the tribe had minimal government infrastructure,” Frank said. “Currently the Nisqually Tribe has well over 2,000 employees, which has quite a substantial impact on our local economy.

“For Nisqually people, it’s a good time to be alive,” Frank said.

Debates continue

But the fight to save salmon continues. This time the enemy is environmental damage.

“Fifty years later, concerns about declining fish populations persist due to environmental challenges such as warming waters, rising sea levels and pollution,” the Puyallup Tribal News editorial said.

An increasing population of seals and sea lions is also a threat, the piece added.

Puget Sound Chinook have been listed as threatened since 1999, and numbers remain low.

By the time Boldt ruled, salmon runs had already greatly declined from their historical highs, Hughes said, in part because of construction of giant hydroelectric dams in the Northwest that cut off spawning grounds.

Even now, Native nations, public utilities and other governmental bodies fight over efforts to remove four dams on the Snake River in Washington that are blamed for reducing Columbia River salmon runs, Hughes noted.

“Replenishing the resource is the name of the game,” Hughes said.

Loomis — who was chair of the Northwest Indian Fisheries Commission, an organization comprising the 20 Native nations involved in the Boldt Decision to help with fish and resource management, from 2014 to her death in 2021 — said it is important to save the salmon.

“Fifty percent of nothing is nothing,” Loomis said in a 2020 reflection piece posted in publication Northwest Treaty Tribes, “and that is the direction that salmon are heading.

“It might take another 50 years or more to achieve salmon recovery, but we will get there,” Loomis said. “We will never stop fighting for the health of our cultures, communities and natural resources.”

This article was originally published on Crosscut. Crosscut is a service of Cascade Public Media, a nonprofit public media organization. Visit crosscut.com/membership to support independent journalism.io