Decades later, landmark fishing rights decision still makes sense

Forty years ago, a decision by federal judge George Boldt interpreting Indian treaties from the 1850s sent shock waves through the fishing communities of Western Washington. The Boldt Decision addressed many legal questions about the fishing rights of local tribes, but at its heart was the ruling that tribes had a right to take up to half the salmon that passed through their traditional fishing grounds. In 1994, another federal judge extended that right to shellfish. These decisions and their impacts have been extensively and often bitterly debated over the intervening years.

October 28, 2014 4:41 pm

By BILL TOBIN
For The Beachcomber

Forty years ago, a decision by federal judge George Boldt interpreting Indian treaties from the 1850s sent shock waves through the fishing communities of Western Washington. The Boldt Decision addressed many legal questions about the fishing rights of local tribes, but at its heart was the ruling that tribes had a right to take up to half the salmon that passed through their traditional fishing grounds. In 1994, another federal judge extended that right to shellfish. These decisions and their impacts have been extensively and often bitterly debated over the intervening years.

I have represented the Nisqually Indian Tribe for more than 20 years and have been involved in many of the events that make up the legal history of the fishing rights case. Although I have considerable sympathy for the non-treaty fishers and shellfish farmers whose livelihoods have been impacted by these rulings, I firmly believe that Judge Boldt did the right thing in upholding the sacred word of the United States to protect the ancient fisheries of our Native peoples. Often, criticism of Judge Boldt arises from a lack of understanding of the principles that guided his decision.

In the early 1500s, a Spanish legal scholar pondered the legal status of the aboriginal peoples who occupied the lands being discovered by European monarchies. This scholar developed the Doctrine of Discovery, which recognized the natives as nations and held that they possessed “aboriginal title” to the lands they occupied. In order for Europeans to claim those lands, aboriginal title had to be extinguished, which was accomplished by treaty or by war.

When the United States was formed, it continued the process of making treaties with Indian nations for the cession of lands. The lands of Western Washington were ceded to the U.S. in the 1850s, and those treaties contained a clause that guaranteed the right to fish “in common” with non-Indian settlers. This clause was first interpreted by the Supreme Court in 1905, when the court described the fishing right as “not much less necessary to the existence of the Indians than the atmosphere they breathed.” In this decision involving fishing sites on the Columbia River, the court explained that the Indians’ fishing rights had not been given to them, but had been reserved by them and acted like an easement on the land.

The concept of reserved rights lies at the base of my view of treaty rights. Think of these treaties as land sale contracts, which in essence they were, having two legal parties and a sale price. But as in many land sale contracts, not all rights in the land are sold — some are reserved. The right to take fish at traditional places is like a reserved easement. It is a property right that is passed down through the tribes’ generations.

Judge Boldt recognized the nature of this right, which explains his approach, but many have questioned the 50-50 allocation. The treaty says “in common.” With two parties to the treaty, a 50-50 division is the most logical and fair. Other criticisms have held that the fishing right is race-based and violates constitutional equal protection. But the right is not a classic civil right, but a property right, and not all persons have equal amounts of property. The right is not secured to fishers because they are Native Americans, but because they are descendants of the people who lived in the area and signed the treaties. The only treaty fishers around Vashon Island are from the Puyallup Tribe, which is where the aboriginal occupants of Vashon moved. You won’t see any Apaches or Mohawks out on the water.

Since Judge Boldt’s decision, there have been efforts to set aside the benefits to tribes, perhaps because the treaties are “old” or because “times have changed.” Congress has the power to nullify Indian treaties, but I don’t think that will happen because the American people don’t want to break any more treaty promises.

Today, fishing remains central to the culture and economies of Puget Sound Native people. Since 1974, treaty tribes have increased their management capabilities, working with state and federal regulators to monitor catch and protect the habitat necessary to ensure a sustainable supply of fish for treaty and non-treaty fishers. Tribal marketing and distribution networks enhance economic benefits to the industry. Surplus hatchery fish are donated to food banks across the region. These are some of the ways treaty fishing enriches us all.

The film “As Long as the Rivers Run” tells the story of the events of the fishing rights struggle, including the fish-ins, arrests and determination better than I can, and I recommend it to anyone who lived through those events or who would like to learn more about them.

As to Judge Boldt, many have sought to explain his ruling, but he put it best when he said, “A deal is a deal.”

— Bill Tobin is an island attorney.

The Vashon-Maury Island Heritage Association will show “As Long as the Rivers Run” at 6:30 p.m. Thursday, Nov. 6, at the Land Trust Building. Several Puyallup tribe members will attend to discuss the film and answer questions.