Tribal Sovereignty on the Line: The Boldt Decision and the Future of Indigenous Rights
Tribal members had been fishing for subsistence for thousands of years prior to contact with European settlers in the mid 1800’s. To the Native Americans of the Pacific Northwest, fishing was inextricably intertwined with their social customs, subsistence behaviors, and religious beliefs. So intertwined with their very existence was fishing that during the negotiations of the treaties of territory Governor Isaac Stevens in 1854 and 1855, representatives of Native Tribes refused to sign unless provisions were made securing their right to fish as they were accustomed (Johnson, Dana; 1995). This series of nine treaties, which encompassed twenty three tribes and confederations or bands, opened the area to white settlement (Mulier, Vincent; 2006).
While Stevens was primarily concerned with the acquisition of lands for white settlement and expansion, all parties involved recognized the importance of fishing to Native subsistence; according to Jovana Brown, “when territorial Governor Isaac Stevens came to the territory in 1853 to open it for white settlement, his party lived off of salmon supplied by the Indians” (Brown, 1994; p. 1). Fishing was so lucrative for the Native Tribes that estimates stand at over 43 million pounds per year in the Columbia basin (Blumm and Swift, 1998; p. 421). This quantity would have allowed Native Americans to not only fish for their own subsistence, but for trade as well.
Through the treaties, Northwest Tribes ceded around sixty four million acres of land to the federal government (Mulier, 2006). Despite retaining small reservations, the most important issue within the treaty terms was the retention of fishing rights. The verbage of one such treaty (the Treaty of Point Elliot, Article V) was as follows: “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 and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.” (Brown, 1994; p. 1).
It is no surprise that nearly all of the Stevens treaties contain similar clauses that are nearly identical in language (Caskey, 2008; p. 6). The vague wording of this clause was bitterly disputed for over a century, as non-indians and Washington State ignored Native fishing rights. Following the ratification of the treaties, issues quickly arose in the form of white settlers blocking Native access to their “usual and accustomed places”.
Examples of this practice can be seen in the federal court cases of US v. Taylor (1887), US v. Winans (1905), and US v. Seufert (1919). Each case was marked by an instance in which fishwheel owners, often through the construction of fences, denied Tribal members access to traditional fishing grounds. Rulings were awarded in favor of Tribal members’ treaty rights in each case, but the rulings did not address the rights of the state to enforce regulations in cases of off-reservation fishing (Fisher, 2004; p. 189).
State regulations often took the form of conservation efforts, and Washington State implemented its first legislation restricting the use of traditional fishing methods such as spearing and snaring in 1915 to combat declining salmon populations due to over-fishing and destruction of habitats (Fisher, 2004; p. 190). Washington State continued to attempt to enforce state conservation laws on Tribal members throughout the first half of the twentieth century, with tensions coming to a head in the 1960’s. At the time, Washington State officials would “regularly confiscate Indian fishing and boat gear, arrest and jail Indians for fishing…” (Brown, 1994; p. 2). A tumultuous period of protests and demonstrations followed, culminating with the federal government filing suit against the State of Washington in 1970 “seeking for the Tribes (1) a ‘ fair share’ of the salmon harvests of Puget Sound, which the government alledged was 50% of the harvestable salmon; (2) inclusion of hatchery fish within this 50% treaty share; and (3) protection of the fish habitat upon which the harvests depended.” (Blumm and Swift, 1998; Part I).
Federal District Court Judge George Boldt was assigned the case. He subsequently spent three years researching not only the case at hand, but previous judicial rulings as well, before issuing his ruling in February of 1974, wherein he determined that “treaty tribes had been systematically denied their rights to fish off their reservations.” (Brown; p. 2). Judge Boldt defined “in common with the citizens of the territory” as encompassing half of all harvestable salmon and steelhead returning to, from or passing through the usual and accustomed places (Brown; p. 2). This was a landmark ruling as it defined the vague verbage present in early treaties. The Boldt decision, however, resolved only one portion of the federal suit. The second phase of US v. Washington was heard by Federal District Court Judge Orrick in 1980 and, after a series of rehearings and appeals, ultimately determined that hatchery-bred fish were to be included in the “fair share” (Brown; p. 2).
Phase II of the Boldt decision went on to further establish Tribal responsibility in protecting fish habitats in tandem with Washington State. According to Zoltan Grossman, “if logging, construction, or dams destroyed the salmon and steelhead fisheries, the reasoning went, treaty rights would be rendered moot” (Grossman, 2005; p. 26). Northwest Tribes challenged this responsibility on the part of the State of Washington in a request for determination in 2001, stating that “the State has a treaty-based duty to preserve fish runs and habitat sufficiently for the Tribes to earn a ‘moderate living’” (Morisset and Summers, 2009; p. 49). The Tribes were joined by the United States government in seeking an injunction which would require the State of Washington to “refrain from constructing and maintaining culverts under State roads that degrade fish habitat so that adult fish production is reduced, which in turn, reduces the number of fish available for harvest by the Tribes” (Morisset and Summers; p. 50).
A ruling by Federal District Court Judge Ricardo Martinez in August of 2007 determined that the State of Washington has a duty to preserve the harvestable fish runs and that their culverts reduce the fish populations, this violating that duty (Morisset and Summers; p. 50). This is but one ruling that set the precedent for recent suits brought against private companies as well as government entities. One such example was that of a suit that the Lummi Nation brought in defense of their fishing rights. In a recent ruling, “the Lummi and other tribes successfully argued that a proposed coal port at Cherry Point in Northwest Washington would jeopardize their treaty-protected fishing rights. The U.S. Corps of Engineers agreed and declined to issue a permit for the project.” (Large, Jerry; 2016).
The importance of this decision in future rulings cannot be understated. Even recently, the ninth circuit court has expanded upon the ruling of the Boldt decision to include shellfish. Hopefully these legal precedents can be applied to legal disputes over traditional lands and treaty rights, such as the Standing Rock Sioux and their fight against the Dakota Access Pipeline. While the media coverage surrounding the situation focuses primarily on the occupation of the area, as well as protests and demonstrations, many people fail to realize that the Standing Rock Sioux have pursued the proper legal paths towards stopping or rerouting the pipeline, as well. As of July 27th, the Standing Rock Sioux have filed a complaint in federal court against the pipeline (indiancountrytodaymedianetwork.com). The rulings surrounding the Boldt decision have given numerous Tribes around the United States ground to stand on.
References
Brown, Jovana J. "Treaty Rights: Twenty Years after the Boldt Decision." Wicazo Sa Review 10, no. 2 (1994): 1. doi:10.2307/1409130.
Russel, Caskey. "The Paradox of Sovereignty: Contingencies of Meaning in American Indian Treaty Discourse." American Indian Culture and Research Journal 32, no. 1 (2008): 1-19.
Johnson, Dana. "Native American Treaty Rights to Scarce Natural Resources." UCLA Law Review, December 1995.
Grossman, Zoltan. "Unlikely Alliances: Treaty Conflicts and Environmental Cooperation Between Native American and Rural White Communities." American Indian Culture and Research Journal 29, no. 4 (2005): 21-43.
Fisher, Andrew H. "Tangled Nets: Treaty Rights and Tribal Identities at Celilo Falls." Oregon Historical Quarterly 105, no. 2 (Summer 2004): 178-211.
Mulier, Vincent. "Recognizing the Full Scope of the Right to Take Fish Under the Stevens Treaties: The History of Fishing Rights Litigation in the Pacific Northwest." American Indian Law Review, 2006.
Blumm, Michael C., and Brett M. Swift. "The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach." University of Colorado Law Review, 1998.
Large, Jerry. "Dakota Access Pipeline Fight a Product of Ignored Rights." The Seattle Times, 2016. http://www.seattletimes.com/seattle-news/environment/dakota-pipeline-fight-a-product-of-ignored-rights/.
Morisset, Mason D., and Carly A. Summers. "Clear Passage: The Culvert Case Decision as a Foundation for Habitat Protection and Preservation." The Seattle Journal of Environmental Law & Policy, Spring 2009.