The Boldt Decision at 50

The fishing rights case that changed the Pacific Northwest

Feb 14, 2024

I like anniversaries. I’m not speaking of wedding anniversaries so much as historical anniversaries. And this past Monday marked 50 years since United States v. Washington was handed down in the U.S. District Court for the Western District of Washington. It is known colloquially as the Boldt Decision, after Judge George Boldt who presided over the trial. Few decisions have had so great an effect in the Pacific Northwest. For the last week, media coverage of this anniversary has swamped the region. Now, it is my turn to focus on it for The Classroom. Read on!

Salmon weir on Cowichan River, Vancouver Island, 1866. (Frederick Dally photo, public domain)

The Treaty Background

At the end of 1853, a young man arrived in Washington Territory bound to change history. Isaac Stevens held many roles. He was the surveyor for the northernmost route of a potential transcontinental railroad. He was the first territorial governor. And he served as the Superintendent of Indian Affairs.

Stevens got to work on the latter role right away, traveling across the territory in 1854-55 and making several treaties. Although negotiations occurred and each treaty had differences, some standard language was included in them across the state.

Here’s an example of that language that became critical to the Boldt Decision from Article 3 of the Treaty of Medicine Creek:

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, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries.

Challenging the Law

In the century following this treaty between sovereign nations, the state of Washington routinely prevented tribal fishers from exercising these treaty rights. The state imposed restrictions and arrested tribal people pursuing their treaty-guaranteed fishing, gathering, and hunting rights. By the 1960s, activists started fish-ins to protest and draw attention to the injustice, inspired by the sit-ins of civil right activists in the segregated South.

Tribal people and allies, including Marlon Brando, Jane Fonda, and Dick Gregory, fished in violation of what the state considered to be law. Billy Frank Jr. of the Nisqually Tribe was arrested 50 times and had his gear confiscated by the state dating back to 1945. In 1970, on the Puyallup River, shots were fired and 60 members of the Puyallup Tribe were arrested. That was but one incident in an ongoing, increasingly hostile standoff across the Northwest.

In late summer 1973, the U.S. Department of Justice filed a lawsuit against the state. Judge Boldt presided. He was known as a conservative judge (an Eisenhower appointee) but had signaled some sympathy. Still, given earlier experiences in state courts, Frank remembered thinking on the trial’s opening day, “I hope this place isn’t rigged.”1

District court judge George Boldt with his ubiquitous bow tie. (public domain)

The trial transcript stacked up to 4,600 pages. History played a central role in the trial, as the parties had to establish what “in common with the citizens of the Territory” meant.

Elders testified and made a difference. Forrest “Dutch” Kinley testified that, “We gave up our land without any restrictions. But when it came to hunting and fishing, we wanted exclusive rights to certain areas. We felt that we were giving the citizens a right to fish in common with us.”2 This is a perspective of who was giving to whom that too few understood or appreciated then or now.

The Ruling

Judge Boldt’s decision was thorough. The upshot was clear:

By dictionary definition and as intended and used in the Indian treaties and in this decision “in common with" means sharing equally the opportunity to take fish at “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, as stated above.

The state tried ignoring the decision. In 1977, an estimated 183,000 salmon were taken illegally by non-Native fishers without punishment. For a while, the court had to assume management given the state’s dereliction. The Supreme Court chided Washington for ignoring the ruling and its responsibilities and said only some desegregation cases faced such concerted efforts to ignore a federal court ruling.

The Aftermath

The 50-50 split enraged many, sparking an often-vile backlash, because it dramatically increased the harvest by tribes, which were only taking about 6% at the time, and just as dramatically reduced the harvest by non-tribal members. Boldt was hung in effigy in front of the courthouse. Later, another effigy was seen on a boat with a sign reading “A Dead Boldt is a Good Boldt” hung around the figure’s neck. Bumper stickers said, “Let’s Give 50 Percent of the Indians to Judge Boldt.”3 It had not settled down several years later when fishing boats still plied Puget Sound with handmade signs reading, “Indians are Racist” and “Non-Indian & Proud of It.” Today, salmon populations warrant federal protection, and I’ve been told by some locals that the Boldt Decision is to blame.

For the treaty tribes, the Boldt Decision vindicated them. Andy Fernando, an Upper Skagit, said, “To our elders, the court decision is a tribute to the resiliency and tenacity of their ancestors. . . . For young Indian boys and girls, the Boldt decision shapes a new image of self.”4

Besides this boost to identity, the decision affirmed tribal self-determination. It also set the tribes on the path to co-management of the fisheries, one of the most important shifts in natural resource management. It has fundamentally altered the modern region.

Tribal co-management is a significant legacy of the Boldt Decision. Seen here is a Quilete fisheries technician at work. (NWIFC, creative commons)

Local state Representative Debra Lekanoff (Tlingit) in a recent letter said, “The impact of the Boldt Decision reaches beyond fishing waters; it symbolizes a broader struggle for recognition, respect, and rights for Native Americans. It stands as a testament to decades of challenges and an unwavering fight to protect sovereignty and a unique way of life.”

The late legal scholar Charles Wilkinson put the decision in context: “Minority rights, judicial courage, morality, generations of Native persistence, and the truth of history converged in the federal courthouse in Tacoma in 1974 to create the kind of elevated justice to which our system can sometimes rise.”5 That seems like something to pay attention to 50 years on.

Relevant Reruns

You can read one of my earliest newsletters about treaties and maps marking land relevant to this discussion. A story I wrote for Smithsonian includes some discussion about the current efforts underway to address salmon decline and local tribes’ roles.

New Writing

For a couple months, I’ve been reporting on local food systems. The third and final (for now) story in a series has published this week in Salish Current. Take a look to see how local counties in Northwest Washington are making efforts to create a more resilient, just food system.

As always, you can find my books, and books where some of my work is included, at my Bookshop affiliate page (where, if you order, I get a small benefit).

Taking Bearings Next Week

Tomorrow, a new interview will be posted for paid subscribers featuring a local farmer, poet, and writer. In the past, I’ve sent previews to all subscribers; I’m stopping that practice. If you want to read the interview, which is a good one, you’ll need to check back on your own and pay for a subscription for full access.

I’m glad that next week is The Field Trip. I could use the opportunity to get out—or think back on another adventure. Stay tuned!

Taking Bearings