“Treaty Justice: The Northwest Tribes, the Boldt Decision, and the Recognition of Fishing Rights”
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By Charles Wilkinson; University of Washington Press, 2024; 296 pages; $34.95.
On the 50th anniversary of the Boldt Decision, legal historian Charles Wilkinson has revisited the historic case that affirmed tribal sovereignty and fishing rights in Washington state. While that landmark decision was limited to fishery management in Washington, its influence regarding Native sovereignty and equitable allotments of resources swept well beyond those borders and continues to influence American, including Alaskan, society.
Put simply, in 1974 federal judge George Boldt, after a voluminous court proceeding, ruled that government promises to secure the fisheries (principally salmon) for Northwest tribes were central to the treaty-making process in the mid-1880s and that tribes held original rights to the fish. He further determined that the treaty language meant that tribes had a right to 50% of the fish and should participate in collaborative management. His ruling was upheld by both the Court of Appeals and the U.S. Supreme Court.
Nothing, however, was simple about the history involved, the decision-making, or the ramifications of such a transformative ruling.
Wilkinson, who worked as a staff attorney for the Native American Rights Fund in the 1970s, today teaches law at the University of Colorado and has written 14 previous books, mostly related to Native American issues. He never worked on the case that led to the Boldt Decision but followed it closely from the start. “Treaty Justice” is his exceptionally well-researched and clearly written account of the subject, from early Northwest Indian practices and the encroachment of settlers to the present day. If his bias in favor of tribal rights is demonstrated by his title and obvious approval of Boldt’s ruling, he’s also thorough in factually presenting and documenting every aspect of the story.
Early sections of the book go back to the origins of the Northwest’s Salmon People and their connections to the land, water and especially the fish on which they depended not only for food but for identity, trade, spirituality and cultural groundings. As America expanded westward, “The matter of tribal land possession was no minor or theoretical matter,” Wilkinson writes. An 1823 court decision had established that while the United States had obtained land title to all the West against foreign nations, tribes retained the right of occupancy. Settlers could not move onto tribal land without formal treaty approval.
Lengthy and revealing passages describe rushed treaty talks in 1854-55, in which Isaac Stevens, a military man appointed by President Pierce as governor of the new Washington Territory, set out to open up as much land as possible for homesteading. The “negotiations” with tribes were entirely one-sided, with hand-chosen tribal “leaders” being presented with documents to sign. As they ceded their ownership to vast regions and agreed to live on reservations, the one thing the tribes insisted on was that they be able to continue to use off-reservation lands. Largely, these were rights to fish at their traditional places. If the treaty language was a bit ambiguous in places, the intent and understanding of the tribes, as documented for the court case, were not. Article 3 read, “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.”
For some years, there was minimal conflict between tribal members and homesteaders. The homesteaders were intent on farming, not fishing, and tended to purchase their fish from Indians. That changed with the arrival of the salmon canning industry in 1877. Non-Native commercial fishermen quickly filled the waters; as their catches expanded, tribal catches shrunk. Salmon themselves went into sharp decline, not just from overharvesting but as the result of dam building and habitat destruction.
In its management, the Territory and then, after 1889, the State of Washington insisted that all fishermen obey the same laws and regulations regarding seasons and gear. By the early 1960s commercial fishermen were catching 85.5% of the Puget Sound harvest, sports fishermen 8.5%, and tribal fishermen 6%. When tribal members tried to assert their rights, they were arrested, often abused or beaten, and had their gear destroyed or confiscated.
The growing civil rights movement brought attention to minority rights in general, and young attorneys applied themselves to the poorly understood field of Indian law. When a 1969 Oregon case was decided in favor of “a fair share” for tribes and against state police power, the groundwork was laid for the Boldt Decision. For three years evidence was gathered and depositions taken. Everyone involved agreed that the litigation should produce a full record including historical and anthropological evidence. Among the facts established was that dictionaries of the 1850s defined “in common with” to mean “equal.”
The Boldt Decision is acknowledged today as the first big win for the modern tribal sovereignty movement. It was met with open defiance by non-Native fishermen and the state of Washington for the following five years until the U.S. Supreme Court upheld it. Opposition to the ruling, Wilkinson points out, “came to a Washington society that had little concept of the history, law, and constitutionalism that led Judge Boldt to rule as he did.” Many ordinary citizens considered the treaties to be discriminatory and unfair. Boldt, Wilkinson points out with emphasis, ruled not from popular opinion or fear of reprisals but only on legal and constitutional grounds.
By pulling Congress into awareness of fishery disputes, the Boldt Decision led to the passage of the Fisheries Conservation and Management Act of 1976 (now called the Magnuson-Stevens Act) and to successful co-management of resources. Although salmon runs continue to suffer in the Northwest, conservation efforts are undertaken cooperatively, and habitat is restored. The take-down of the Elwha dams (built on Elwha tribal land in 1911 and 1926 and destructive of the river’s salmon) was the first major dam removal in American history and, according to Wilkinson, “a testament to the Lower Elwha Klallam culture, sovereignty, treaty rights, and staying power.”
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