by Trova Heffernan | February 11th, 2014
Wednesday marks the 40th anniversary of a landmark tribal fishing rights ruling by a federal judge that pleased Native Americans and shocked and angered non-Indian fishermen around the Northwest. The polarizing decision unleashed both celebrations and protests on Washington rivers.
Major court opinions rarely carry the name of the judge, but the case U.S. v. Washington is commonly known as the Boldt Decision, after George Hugo Boldt (right), a federal district judge who presided over the case.
Prior to that monumental decision that was released Feb. 12, 1974, there were decades of skirmishes between Native and non-Indian fishermen in the face of depleting runs and a state crackdown on tribes. Native fishermen took their case to the media and the courts, asserting that their fishing rights were protected by 19th century treaties.
Boldt was vilified for his ruling that treaty tribes were entitled to up to 50 percent of the harvestable catch.
“I was burned in effigy and they still do that,” Boldt said in a 1979 New York Times story. “The fishermen have a champion and he maligns me continually and steadily, and he’s spurred on by the attorney general here. He’s got to be with the fishermen, don’t you see? You just can’t be honest in this state and get anywhere because of the enormous amount of condemnation heaped on me since I wrote that decision. Sometimes I get bales and bales of mail. Loathsome material. Sometimes they say, and put it in the paper, that my wife is an Indian. Well, she wouldn’t mind that at all, but she happens to be a Scotch Presbyterian.”
Eventually, Indians and non-Indians began dividing and co-managing the resource.
Our office’s Legacy Project has published two biographies that detail the decision and its aftermath from the perspectives of the treaty tribes and the state of Washington. See excerpts from Where the Salmon Run: The Life and Legacy of Billy Frank Jr. and Slade Gorton: A Half-Century in Politics. (The decision is referenced throughout both books.)
“My views on Indians and other minorities are simple and consistent,” says Gorton, then Washington’s Attorney General. It was Gorton who argued the case before the High Court. “The 14th Amendment mandates that ‘no person’ shall be deprived of the equal protection of the laws by reason of race. Nothing could be clearer – except to six members of the Supreme Court.
“In the case of Indians, the court avoids the dilemma by saying that the rights derive from treaty status, not race, a distinction without a difference; a distinction that allows Indian casinos that can’t be matched by non-Indians and that can’t be affected by the state’s policies on gambling, good or ill. In the Boldt Decision, the Supreme Court had to distort the plain meaning of the Stevens treaties, which gave the Indians equal rights to fish, not 50 percent.”
Frank, longtime head of the Northwest Indian Fisheries Commission, said the Boldt Decision was a defining moment for the tribes.
“That for me is one of the biggest decisions of our time—in U.S. history, in world history. We didn’t have any money. We didn’t have any expensive attorneys. We didn’t have any infrastructure to work with the state . . . or the federal government or the neighbors of anybody or the utilities that put the dams on the river. … And what [Boldt] said was the twenty tribes will all be self regulatory tribes at the end of this time. And you’ll have your infrastructure. All your tribes will be together from Lummi to the ocean, from South Sound to North Sound and the Pacific Ocean.
“You guys will all have your infrastructure, you’ll have your science, your technical people, your collecting data, your policy people, and your lawyers. . . . And the United States government said you guys will go back to Congress and you’ll get the money. We’ll get the money for the infrastructure of what we’re doing, the Northwest Indian Fish Commission, to coordinate all of this. And so that’s how this place was born. . . . Oh, god. It was just great.”
The Washington State Archives holds expansive documentation and images that relate to the Boldt Decision, including some arrest records and pictures of game officials. The Washington State Library holds special collections that detail the day-to-day strife between the tribes and the state.
Billy Frank Jr. in a 1973 photo. (Photo courtesy of Northwest Indian Fisheries Commission)