How an Indigenous rights battle in WA changed tribal law, from fishing to culverts

Fifty years ago, a landmark federal court case brought against Washington state reaffirmed the treaty rights of Native Americans to fish in traditional waters and shorelines.

From culvert rehab to dam removal, 1974's "Boldt Decision" has expanded far beyond fishing to legally empower tribes' ability to protect natural resources.

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us boycotts, peaceful sit-ins, and law enforcement violently corralling protestors in the Southern U.S. are indelible images of the struggle for civil rights for Black Americans in the 1960s. Around the same time in the Pacific Northwest, marches, political actions, and arrests also became international news, but were prompted by leaders of a different struggle: the fight for the right to fish.

"It was the Native American version of the Civil Rights Movement," said John Echohawk, co-founder and executive director of the Native American Rights Fund and a member of the Pawnee Nation. "Native American people wanted to get involved in asserting their civil rights, which didn't really focus on the equal rights issue that Black Americans were litigating. Ours were for recognition of our treaty rights, and the recognition of our tribal sovereignty."

Throughout the 1960s and 1970s, Native activists were repeatedly arrested for attempting to fish in locations that were traditionally significant, but not on federally recognized tribal land. At the time, Washington law enforcement claimed these arrests were to protect fragile salmon runs from overfishing — local canneries were booming, and combined with pollution, fish populations were declining. Yet frequently, non-Native boats were granted licenses to catch those same fish downriver.

The situation was so broken that finally, federal officials decided to step in and sue Washington state, acting as a trustee for Native Tribes in a case called United States v. State of Washington. At the core of the federal government's argument were stipulations made in nearly a dozen treaties signed in the 1850s stating that tribes held in reserve the right to fish in their traditional territory, which far exceeded the land granted under what are known as the "Stevens Treaties," named after Washington Territory Governor Isaac Stevens.

"The tribes had a right to fish in common with the citizens of the state at their usual and [customary] places," Echohawk said.

On Feb. 12, 1974, U.S. District Court Judge George Boldt ruled in favor of tribes, agreeing that the state's fisheries had to split catches 50/50 between Native and non-Native fishermen. Furthermore, tribes would have a major role in managing the fisheries going forward.

"50% was a huge change because at that time, the native fishermen were only catching about 2% of the salmon because of all of the enforcement against them by the State of Washington," Echohawk said.

The decision was polarizing. An effigy of Judge Boldt was hung outside of the old Tacoma Courthouse, and many Washington boats ignored the ruling.

"It got so bad that at one point, Judge Bolt basically took over the fishery and said, 'I'm issuing regulations and I'll enforce them with federal marshals,'" said Mason Morisset, an attorney specializing in Indian law who was part of the team arguing the fishing rights case against Washington state.

"For a while we had a federal fishing season with federal marshals enforcing the season, and the state was left in the dust," he added.

During that time, the state Attorney General, Slade Gorton, appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, which upheld Boldt’s ruling. Gorton then tried appealing the case to the U.S. Supreme Court, but it declined to hear the case, affirming Boldt’s decision to split the fisheries and his use of federal marshals to enforce it.

Those appeals ultimately lasted five more years, ending in a solid decision for tribes in 1979. Pretty quickly, lawyers saw the Boldt Decision would be a critical precedent for a wider set of Indian law cases in the Northwest, and across the country.

"It was a major victory for the recognition of treaty rights in this country, and tribes were starting to assert their sovereign rights — their treaty rights — in all kinds of issues and areas across the country," Echohawk said. "We had all kinds of sovereignty and self-determination cases based on treaties starting up across the country at that time, showing that those treaties were not just ancient history; they were still the Supreme law of the land."

Over the course of five decades, the Boldt Decision has become part of the basis for the push to remove dams on the Lower Snake River, broaden access to ancestral shellfish beds, and ward off developments to sacred shorelines.

The decision was also leveraged in court for a 2013 injunction compelling the state to fix road culverts, which extended protections past fishermen to the fish themselves.

"Not only did tribes have a right to fish at their stations, or to cross private land to get there, but also to have fish available," said Robert Anderson, solicitor of the Department of the Interior, professor emeritus of law at the University of Washington, where he oversaw the Native American Law Center, and member of the a member of the Bois Forte Band of Chippewa.

"It demonstrates that the tribes have federally protected property rights in their fisheries, and also have the fishing right to rely upon — to influence — our state, private, and federal landowners [who] develop their resources in ways that might adversely affect the fisheries."

As salmon face contemporary challenges with species listed under the Endangered Species Act, Anderson said the preservation of fish is a goal shared by everyone involved in fishery management.

"Remember that the states have the right to the 50% that the tribes have. And so there's a common goal that the states and the tribes share."

Listen to Soundside's segment about the Boldt Decision by clicking the play icon at the top of this story.