On February 12, Town Hall Seattle hosted a panel Reflecting on Treaty Justice and Tribal Sovereignty, commemorating the 50th Anniversary of the Boldt decision. A group of Northwest Justice Project attorneys who work with Tribal communities attended the event. Here, they reflect on that event and the ongoing impact of the Boldt decision.
The event began with a ceremony posthumously recognizing Charles Wilkinson and his acclaimed final book: Treaty Justice: The Northwest Tribes, the Boldt Decision and the Recognition of Fishing Rights. It featured several panelists, including Nancy Shippentower, a respected Puyallup elder; and Jeremiah "Jay" Julius, a fisherman, former Chairman of the Lummi Indian Business Council, and advocate for the Salish Sea.
They spoke to the centrality of salmon fishing to the life and culture of First Nations in the northwest. Various 19th century treaties expressly reserve the right to fish by the original inhabitants. Pivotal among these treaties is the Treaty of Point Elliot, signed in 1855. Its Article 5 specifically upholds for tribes, "The right of taking fish at usual and accustomed grounds and stations."
Living through the Fishing Wars
Ms. Shippentower and Mr. Julius provided first-hand accounts of fishing with their families for sustenance, and of the resolute fight to assert their fishing rights. It was this fight by coastal tribes that ultimately led to the Boldt decision.
Tribal efforts to do what the Treaty of Point Elliot guaranteed—the right to fish at their usual and accustomed places— led to the "Fishing Wars" of the 1960s and '70s, as then-Attorney General Slade Gorton promoted Native fishing grounds as tourist fishing destinations.
Ms. Shippentower recounted instances where 300-500 non-native fishermen crowded the waters, in contrast to just a handful of Native fishermen, who were constantly targeted by state officials. The situation escalated into boat battles, with game agents concealing themselves in bushes to assault or arrest Native fishermen. At one point, her 15-year-old cousin was beaten by law enforcement. Chaos plagued the riverbanks.
Two sides of the Boldt decision
Only after decades of activism by Native fishers and their allies did the conflict reach the courts in the case of United States v. Washington. It was heard by Judge George Boldt who relied on the Treaty of Point Elliott to affirm the fishing rights of Native tribes in his 1974 decision.
But that wasn't the end of it. The commercial fishing industry fought back, and the case ultimately went to the U.S. Supreme Court, which upheld the original decision. All the while, commercial fishers fished to excess, depleting the catch available to Native fishers even as fish habitat was decimated and hydroelectric dams took an ongoing toll on salmon populations. As Shippentower noted, after more than 10,000 years living in balance with nature, massive destruction ensued in a single generation.
Judge Boldt's decision was pivotal in upholding treaty rights. At the same time, the decision's interpretation of the Treaty of Point Elliott that tribes were entitled to "half" of the harvestable catch was controversial in tribal communities. Shippentower put it bluntly: "The decision stole half our fish."
In addition, the Boldt decision did not address protection of the environment salmon need to survive. As such, it was a far cry from enforcing the complete fishing rights of Native people so that they could continue to fish and support themselves in their usual and accustomed tradition. Today, Tribes catch less fish than before the Boldt decision due to depletion of fish stocks.
Despite these weaknesses, the Boldt decision did provide clarity and stability through its recognition of treaty rights. It continues to protect access to those rights and to provide tribes with a basis to compel the state to restore the environment for salmon runs.
Both Shippentower and Julius emphasized that the treaties should not be viewed as only relevant to Native people. They are treaties between the United States and tribal nations. That makes them the treaty of every U.S. resident, whether they are members of a tribal nation or not.
The Boldt decision, like other legal protections, was the result of a prolonged struggle that existed long before the decision and continues to this day. It was spurred by activism and resistance by courageous advocates who put their lives on the line protecting their lands and traditional way of life.